Free Markets, Free People
Those of us on the libertarian-ish end if things support, at the very least, a return of government size and scope to its constitutionally defined bounds. As part of that, the last thing we generally want is more Federal laws about most things. We’re supposed to support a more federal system, and decry most Federal pre-emption of state laws. But I’ve been thinking lately there there are a few Federal laws I’d like to see that do pre-empt local and state laws.
In several states, photographers and videographers have been arrested and charged under various wiretapping statutes for filming police officers and other public officials in public. Just yesterday, I wrote about a young woman who was prosecuted for surreptitiously making an audio recording of police officers who were urging her to drop an official complaint against another officer. Whether you are an elected official or a DMV clerk, your duties should be completely open to public audit—except for some rather obvious and narrow military or national security exemptions—and you should have no expectation of privacy in the performance of your duties. Anybody should be able to film or record you at any time you are performing those duties.
There should be some system whereby any private citizen who has performed federal military or law enforcement service can obtain a federal concealed weapons permit that is valid in every place in the United States, irrespective of any state or local laws to the contrary. Those eligible should have completed at least one term of service with an honorable discharge or its equivalent, have no criminal record, and no history of mental illness.
There have been a troubling number of incidents where police officials have served warrants in the wrong locations, often late at night, resulting in armed confrontations with homeowners. Sometimes, the homeowner is shot and killed. Sometimes, as in the Corey Maye case, a police officer is shot and killed, and the homeowner faces a terrible legal ordeal. That’s just wrong. If the police serve a warrant at the wrong location, for any reason, they forfeit the right to charge the homeowner for any unfortunate gunplay that results. As the police are solely responsible for creating the situation, they should be solely responsible for the outcome, as well as any damages that might accrue from their mistake. This should include prosecution for animal cruelty for a police officer who commits puppycide during these raids. I hate it when they do that, and they seem to do it a lot.
You might notice that all my laws place burdens on the government, not the citizens. Maybe you could suggest some other liberty-friendly laws.
And that may be exactly what will happen when, inevitably, much of the law and regulation pushed by the Obama administration and passed by the Democratic Congress are challenged in court – a poor tactical choice may come back to haunt the administration.
You probably remember the incident. I remember remarking at the time that such a public embarrassment could come back to haunt Obama. And that may end up being the case:
But the year’s most important moment may have come on the January evening when the justices gathered at the Capitol for President Obama’s State of the Union address.
They had no warning about what was coming.
Obama and his advisors had weighed how to respond to the court’s ruling the week before, which gave corporations the same free-spending rights as ordinary Americans. They saw the ruling as a rash, radical move to tilt the political system toward big business as they coped with the fallout from the Wall Street collapse.
Some advisors counseled caution, but the president opted to criticize the conservative justices in the uncomfortable spotlight of national television as Senate Democrats roared their approval.
Chief Justice John G. Roberts Jr. is still angered by what he saw as a highly partisan insult to the independent judiciary. The incident put a public spotlight on the deep divide between the Obama White House and the Roberts court, one that could have a profound effect in the years ahead.
A public challenging of the integrity and independence of the court was more than a rookie mistake. It was dumb politics. It was an unforced error by Obama that may indeed have “profound effect” on the court’s rulings.
The court may have had to sit there and take it at the time, but once back in their seat of power, it is they who are all powerful and can wreak havoc on the administration’s regulation regime and legislation.
That’s not to say the conservative side of the court will intentionally go after the administration’s agenda items – damn the law- but it may mean that they cut the administration no slack whatsoever and commit themselves to very strict interpretations of the Constitution that leave little latitude for meaningful legislative change to satisfy the court.
So what does that mean practically? Take health care reform and the possible coming government arguments that the mandate to buy insurance is a) a tax or is b) covered by the interstate commerce clause.
Of course the court then has to decide on whether it is indeed a tax, if that tax is Constitutionally legal and whether Congress has the power to levy it.
Or, it will have to decide if such a mandate is indeed Constitutional under the commerce clause.
Given the incident during the State of the Union address, is there anyone who believes the administration’s arguments will be given the benefit of the doubt when it comes to a ruling on either question? If, in fact, it could conceivably go either way, I think most believe the way it will go will be the way least favored by the administration at least on the conservative side of the house.
Of course you’ll hear charges of “judicial activism” if that happens, but I’d be more likely to find a more narrow definition of the commerce clause or Congress’s taxing power to be anything but activist in nature.
It’ll be interesting to watch this all unfold. It’ll be a while before any of this reaches SCOTUS, but when it does, the fireworks generated will be much better than anything seen on the 4th of July.
The common sense is found in the decision of Judge Martin Feldman. In his opinion, all the pertinent and sensible questions that should have been a part of the Obama administration’s decision making process are asked – and, to most, the answers are obvious.
If some drilling equipment parts are flawed, is it rational to say all are? Are all airplanes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines? That sort of thinking seems heavy handed, and rather overbearing.
Over-reaction is one way those that are risk averse and not used to dealing with a crisis handle situations like this.
Throwing common sense out the window, the administration acted like the potential for another Deepwater Horizon was imminent and only shutting everything down would ensure such an occurrence wouldn’t happen. Yet for thousands of square miles, rig after rig has been producing for years without any sort of comparable problem. In fact, Deepwater Horizon is the outlier in deepwater drilling.
It was also an emotional and political response, instead of fact-based one of which our cool, calm and deliberative President is supposed to be famous. Again the judge sticks it to the administration:
Nonetheless, the Secretary’s determination that a six-month moratorium on issuance of new permits and on drilling by the thirty-three rigs is necessary does not seem to be fact-specific and refuses to take into measure the safety records of those others in the Gulf. There is no evidence presented indicating that the Secretary balanced the concern for environmental safety with the policy of making leases available for development. There is no suggestion that the Secretary considered any alternatives…
Of course he’s talking about Secretary Ken Salazar, but it is understood that this decision to declare a 6 month moratorium on drilling came from the top. Judge Feldman notes the administration’s decision was an arbitrary decision, not one that carefully weighed the facts and safety history of the industry and then made a deliberate decision based in fact. Apparently, as the judge notes, no other alternatives were considered.
Lastly, Judge Feldman chastises the administration about their poorly thought-out decision and the impact it has on those that live in the region:
An invalid agency decision to suspend drilling of wells in depths of over 500 feet simply cannot justify the immeasurable effect on the plaintiffs, the local economy, the Gulf region, and the critical present-day aspect of the availability of domestic energy in this country.
Thankfully the judiciary is looking after the “small people” and their livelihoods even if the administration isn’t. Of course, the administration will appeal this common sense decision.
No surprise there.
Here’s a question for readers of all political stripes:
How big would a moral outrage have to be before you turned to violence?
Imagine that you live in a place in which what you perceive as a grave moral injustice–specifically violence against innocents–is enshrined in law. You may perceive your opponents as anywhere from mean-spirited to perfectly well-meaning, but either way they are determined to continue, and your prospects for overturning this outrage through the normal legal process any time soon are scarce or nil. In the meantime, you believe something horrific is happening on a massive scale.
For our purposes, try to think of different governments — direct democracy, representative democracy, oligarchy, monarchy, whatever.
At what point do you decide to act against law, by an alternative code? And specifically, I mean turning to violence: threats, destruction of property, assault, assassination, even terrorism* and revolution.
What prevents you from acting violently up to that point?
- The high personal cost?
- The low probability of success?
- The fear that things will turn out worse than simply allowing the grave injustice to continue?
- Simple aversion to personally engaging in violence, despite your belief that the status quo is violence under color of law?
I’m trying to get at what flips a switch in someone to get them to turn to political violence. Can you imagine a situation in which you would turn to such violence?
I suppose this turned into more of a thought experiment than a question. But your input is welcome.
* I prefer Philip Bobbitt’s definition of terrorism in Terror and Consent as “the pursuit of political goals through the use of violence against noncombatants in order to dissuade them from doing what they have a lawful right to do,” so remember, you oppose these noncombatants for supporting laws.