Free Markets, Free People

Constitution

U.S. Spurns Aid To California. Really?

In one of those “make sure you read the whole article” stories in the Washington Post, it begins like this:

The Obama administration has turned back pleas for emergency aid from one of the biggest remaining threats to the economy — the state of California.

Top state officials have gone hat in hand to the administration, armed with dire warnings of a fast-approaching “fiscal meltdown” caused by a budget shortfall. Concern has grown inside the White House in recent weeks as California’s fiscal condition has worsened, leading to high-level administration meetings. But federal officials are worried that a bailout of California would set off a cascade of demands from other states.

If you read no further than that, you’d probably think, “thank goodness, a modicum of sanity has returned to the federal government”. It is California’s mess and California, along with the other states, need to learn a hard but necessary fiscal lesson here.

But, while perfectly correct in your assessment, you’d be wrong to think that the present rejection is final. Buried a few paragraphs down is this:

These policymakers continue to watch the situation closely and do not rule out helping the state if its condition significantly deteriorates, a senior administration official said. But in that case, federal help would carry conditions to protect taxpayers and make similar requests for aid unattractive to other states, the official said. The official did not detail those conditions.

I’m sure he or she didn’t. This is another Geithner plan based in the premise that California is “too big to fail” – the 8th biggest economy in the world and its failure would slow down the economic recovery of the US.

Given that inclination on the part of Geithner, it would appear that nothing has been learned from the Chrysler and GM bailouts, failure and eventual bankruptcies. Granted, California’s “failure” would be quite a bit larger than those two, but haven’t we yet learned that propping up a unsustainable business or government model just doesn’t work?

While it may be painful for both California and the US, nothing changes in California unless massive cuts and changes are made in that government. And, as has been evident to even the most tuned out of constituents, the California government model has been unsustainable for over a decade.

Naturally, California wants to characterize their plight in the way that will appeal the most to the emotions:

“After June 15th, every day of inaction jeopardizes our state’s solvency and our ability to pay schools and teachers and to keep hospitals and ERs open,” Gov. Arnold Schwarzenegger (R) said Friday.

But the hard fact remains that the solvency of all those institutions are in jeopardy with or without a bailout. We’re simply talking about how long we want to extend the problem not how to solve it. Solutions mean massive cuts in government spending and resultant reductions in government services. Or said another way, California is finally going to have to live within its means or fail.

That’s not a condition the rest of the taxpayers in this country brought about, and it certainly isn’t one they should be on the hook to “bailout”. And that goes for every other state in that condition as well (see the article and its mention of how Treasury is thinking about doing something with auto suppliers in Michigan – is that the job of Treasury).

~McQ

Miranda Warnings In The Battlefield?

This simply can’t be right, can it? That the Obama administration secretly directed the military to Mirandize combatants and terrorists when captured? Surely this is just crazy talk:

… the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee. “The administration has decided to change the focus to law enforcement. Here’s the problem. You have foreign fighters who are targeting US troops today – foreign fighters who go to another country to kill Americans. We capture them…and they’re reading them their rights – Mirandizing these foreign fighters,” says Representative Mike Rogers, who recently met with military, intelligence and law enforcement officials on a fact-finding trip to Afghanistan.

Rogers, a former FBI special agent and U.S. Army officer, says the Obama administration has not briefed Congress on the new policy. “I was a little surprised to find it taking place when I showed up because we hadn’t been briefed on it, I didn’t know about it. We’re still trying to get to the bottom of it, but it is clearly a part of this new global justice initiative.”

Ever since the Boumediene decision I’ve been warning that we’re turning legitimate military actions into law enforcement nightmares. No matter how badly we may want to achieve a world where transparency and the rule of law are the basis for all government action, the fact of the matter is that there are plenty of people out there who want to see the US destroyed regardless of the cost to themselves or their families. If we start dealing with these people as if they were common criminals, then we erode the very fabric that binds us as a nation. No longer does the word “jurisdiction” mean anything. Instead, we hand our enemies the keys to the castle.

Consider the following:

A lawyer who has worked on detainee issues for the U.S. government offers this rationale for the Obama administration’s approach. “If the US is mirandizing certain suspects in Afghanistan, they’re likely doing it to ensure that the treatment of the suspect and the collection of information is done in a manner that will ensure the suspect can be prosecuted in a US court at some point in the future.”

But Republicans on Capitol Hill are not happy. “When they mirandize a suspect, the first thing they do is warn them that they have the ‘right to remain silent,’” says Representative Pete Hoekstra, the ranking Republican on the House Intelligence Committee. “It would seem the last thing we want is Khalid Sheikh Mohammed or any other al-Qaeda terrorist to remain silent. Our focus should be on preventing the next attack, not giving radical jihadists a new tactic to resist interrogation–lawyering up.”

According to Mike Rogers, that is precisely what some human rights organizations are advising detainees to do. “The International Red Cross, when they go into these detention facilities, has now started telling people – ‘Take the option. You want a lawyer.’”

Rogers adds: “The problem is you take that guy at three in the morning off of a compound right outside of Kabul where he’s building bomb materials to kill US soldiers, and read him his rights by four, and the Red Cross is saying take the lawyer – you have now created quite a confusion amongst the FBI, the CIA and the United States military. And confusion is the last thing you want in a combat zone.”

Prosecution of any war, regardless of what your betters may think, is absolutely impossible in a law enforcement setting. Imagine having to “arrest” enemy soldiers instead of shooting them on sight. Or worse, think about the complications involved when a soldier shoots anyone, as compared to when a policeman is involved in a shooting. How would it work to take custody or extract intelligence from any enemy soldier if our soldiers have to apply mercurial Supreme Court precedent to each situation before risking their lives? Any cop will tell you that it’s hard enough keeping up with the norms as laid down by the high court (and interpreted by the administrators) in order to simply arrest common criminals. The idea that soldiers in the field of battle have the time or ability to “arrest” terrorists and the like, in places where English is not likely to be a common language (N.B. does that mean the military will be required to provide interpreters before apprehending anyone?) is simply ludicrous.

War is not pretty, and anyone who pretends to make it so is simply a fool. Ugly, unmentionable, outrageous and despicable things happen in war, as they do in any struggle for life. Creating an imaginary world in which there are breaks for tea and the enemy plays by the same (or any) rules is how the British lost North America. Subjecting ourselves to the vagaries or our enemy’s backwardness, by ignoring their complete denial of our moral superiority, will only serve to hasten our defeat.

For the foregoing reasons, I have to assume that Stephen Hayes is on the wrong end of some very bad information. As much as I may disagree with the Obama administration on a great many things, I have a hard time believing that they could be this naive and unconcerned about the future of our country that they would grant unprecedented gratuity to those who most wish us ill. The policies are most certainly wrong, but they can’t possibly be this misguided.

“Health Care Reform” Update (Updated)

A few new developments, none of them good.

One – Obama has indicated his willingness to entertain legislation that would tax your private health care benefits. What that means is you’ll be taxed on the money your employer spends on your health care insurance. Of course the obvious immediate effect would be to raise revenue to pay for the public portion of his health care plan.

Two – Obama has decided that making insurance mandatory may not be such a bad idea. This is 180 degree change from candidate Obama who attempted to hide his statist tendencies by pretending that he wouldn’t require mandatory insurance for Americans.

Threein a letter to Democratic senators:

He told Democratic Sens. Edward Kennedy (Mass.) and Max Baucus (Mont.) that their legislation must include a government-run insurance option that would compete against the private sector. He also reaffirmed his support for a Massachusetts-style insurance exchange.

What do you suppose will happen if government-run insurance is an option for all? Depending on how it is structured (if, for instance, if it is a universal pool), we could see massive dumping of private insurance by businesses pointing their employees to the government option.

Four:

[I]mbuing a federal panel with the power to make Medicare payment recommendations that Congress must either accept or reject in their entirety.

Obama likens this proposal, based on the current Medicare Payment Advisory Commission, to the way military base closure decisions are made. To Republicans, however, the notion smacks of the kind of “rationing” dictated by government-run healthcare programs in Europe and Canada.

Ezra Klein explains the “federal panel’s” proposed role:

The health system changes too quickly for Congress to address through massive, infrequent, efforts at total reform. New technologies and new care structures create new problems. A health care reform package signed in 2009 might miss some real deficiencies, or real opportunities, that present themselves in 2012. A health reform process that recognizes that fact is a health reform process that is continual, rather than episodic.

But the reason health reform is so infrequent is that it’s structurally difficult. Small tweaks are too technically complex for Congress to easily conduct and so are dominated by lobbyists. Large reforms attract broad interest but are impeded by polarization and the threat of the filibuster. The MedPAC changes under discussion are, in other words, nothing less than a new process for health care cost reforms. They empower experts who won’t be intimidated by the intricacy of the issues and sidestep the filibuster’s ability to halt change in its tracks.

In other words health care decisions that will directly effect you will be in the hands of an unelected and unaccountable panel of bureaucrats just as all the critics of this sort have program have been claiming since the beginning of the debate.

The effect?

MedPAC, of course, is restricted to Medicare. But there’s little doubt that where Medicare leads, the health care industry follows. Private insurers frequently set their prices in relation to Medicare’s payment rates. Hospitals are sufficiently dependent on Medicare that a reform instituted by the entitlement program becomes a de facto change for the whole institution, and thus all patients. A process that empowers Medicare to aggressively and fluidly reform itself would end up dramatically changing the face of American health care in general.

Klein is exactly right, but most likely not for the reasons he thinks he is. The level of care, innovation and incentive will follow the decline in prices driven by MedPAC. What the nation needs is insurance reform, not “health care reform”. And while that is how the proponents of this try to spin the issue as just that, MedPAC’s existence and proposed expanded role argues persuasively against that spin.

Watch carefully – the Democrats are going to try to move this quickly and with little debate.

UPDATE: Apparently the letter from Obama I spoke about above also had another effect:

President Obama’s letter to Senate lawmakers yesterday saying a healthcare package must include a public option may have stalled progress on a bipartisan deal, Sen. Judd Gregg (R-N.H.) said Thursday.

Gregg said that the president’s letter, which said a public option should be included in the legislation, stalled “significant progress” in negotiations.

“We were making great progress up until yesterday, in my opinion,” Gregg said during an interview on CNBC. “There’s a working group under Sen. Baucus that involves senior Republican and Senate senior members who are involved in the healthcare debate, and we were, I thought, making some fairly significant progress.”

The most discouraging thing about this update is the fact that Republicans, who are claiming government is too big and we’re spending too much are knee deep in negotiating more government and more spending (i.e. selling out – again) having apparently swallowed the Democratic premise that this is necessary whole.

~McQ

Quote of the Day

Guess who is outdoing the avowed Socialists? And they’re jealous:

“Hey, Obama has just nationalized nothing more and nothing less than General Motors. Comrade Obama!” [Hugo] Chavez cheered on Venezuelan TV Tuesday. He gushingly added that he and Cuba’s Fidel Castro would now have to work harder just to keep up.

A real point of pride, huh?

~McQ

Policy Maker or Neutral Legal Umpire?

Which of those descriptions in the title would best describe your understanding of a Supreme Court Justice?

If you wonder what President Obama wants in a Supreme Court Justice, take a look at this excerpt from his speech explaining why he couldn’t vote for Justice Roberts.

He’s describing that 95% of the cases before the court will find all justices coming to the same conclusions. However, it is the 5% that concerned Obama and determined his inability to vote for Roberts. Here’s what he said:

In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country, or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, or whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

“Empathy” and “heart” do not equal “rule of law”.

Thomas Sowell distills the essence of the argument against Obama’s assertion:

Justice Oliver Wendell Holmes said that he “loathed” many of the people in whose favor he voted on the Supreme Court. Obviously, he had feelings. But he also had the good sense and integrity to rule on the basis of the law, not his feelings.

Laws are made for the benefit of the citizens, not for the self-indulgences of judges. Making excuses for such self-indulgences and calling them “inevitable” is part of the cleverness that has eroded the rule of law and undermined respect for the law.

[…]

It would be considered a disgrace if an umpire in a baseball game let his “empathy” determine whether a pitch was called a ball or strike. Surely we should accept nothing less from a judge.

And that is reason enough why all of his nominees should be subjected to rigorous examination that requires them to explain their judicial philosophies in light of the president’s stated desires.

~McQ

“Transparancy” Apparently Trumps The 1st Amendment

From the White House Blog in an entry written by Norm Eisen, special counsel to the president for ethics and government reform in “the spirit of transparancy”:

… [T]he President’s March 20, 2009 Memorandum on Ensuring Responsible Spending of Recovery Act Funds. Section 3 of the Memorandum required all oral communications between federally registered lobbyists and government officials concerning Recovery Act policy to be disclosed on the Internet; barred registered lobbyists from having oral communications with government officials about specific Recovery Act projects or applications and instead required those communications to be in writing; and also required those written communications to be posted on the Internet.

However, a couple of changes have been made, among them:

First, we will expand the restriction on oral communications to cover all persons, not just federally registered lobbyists. For the first time, we will reach contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process. We concluded this was necessary under the unique circumstances of the stimulus program.

So thinking this through, could “anyone” include a TV or print reporter asking an oral question to a government official concerning Recovery Ac Policy? Or a particular Recovery Act project that might impact their viewership or readership? Is it possible the information provided, if government officials are subjected to such oral scrutiny, might end up “exerting influence on the process”?

How about a concerned citizen who happens to be a blogger?

Doesn’t this give government officials the cover to duck such oral inquiries?  How does that enhance transparency?

And ultimately, doesn’t this smack of a wee bit of a conflict with the 1st Amendment (free speech, free press, the right to petition government)?

And if “the unique circumstances of the stimulus program” are enough to limit 1st Amendment rights, per this paragon of “ethics and government reform, what other “unique circumstances” might be cited in the future to do the same sort of thing, given the precedent this sets?

As Mark Tapscott says:

This is the Camel’s nose under the tent, being poked because of special circumstances.

Carter Wood notes:

“Lobbyists and organizations that lobby complained that the White House’s restrictions on lobbying on stimulus fund projects were discriminatory and unfair because the same restrictions didn’t apply to people like corporate executives or officials. So these memorandumly noted changes address that fairness issue by expanding the ban on orally petitioning the government or expressing one’s views through speech. In the interests of transparency the First Amendment must be sacrificed.

“The restrictions are also ambiguous enough that a lobbyist or other petitioner won’t be sure how to fully comply. So if someone runs afoul of White House officials, a phone call to a news outlet or a friendly prosecutor can punish the offender. Ambiguous rules plus capricious application equals negative rule of law.”

The only transparency in this process is the fact that the White House is telling you the rule. But the rule then precludes oral questioning which might make the process even more transparent. If even the remote possibility exists that such communication might “exert influence on the process” then it is prohibited.

The White House’s apparent intent is to run a transparent process. The result is overreaching by the executive branch with poorly thought through restrictions on speech that are seemingly unconstitutional. The problem is they obviously don’t feel that to be the case. Or if they do, they think they should have the right to restrict certain forms of communication between government and anyone they decide if “unique circumstances” are existent (guess who get’s to determine whether they are or not?).

Frankly that should bother you.

However, fear not – I’m sure those that continually cited the Bush administration for alleged expansion of executive power will be among the first to address this obvious abuse of Constitutional power and call for an immediate revocation of the rule.

~McQ

Sotomayor – Reason To Be Concerned?

While there is all sorts of silly criticism emerging on the right (including the pronunciation of her name and the fact that she likes certain latin foods), there is an emerging criticism which I think has some validity. Most of of focuses on a speech she delivered at UC Berkley in 2001 and published later by The Berkeley La Raza Law Journal.

“While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law,” Sotomayor said.

“Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

Although she attempts to have it both ways (“I agree” and “we do a disservice”), she seems to really be claiming that some level of gender or racial “empathy” is necessary to render “fair” judgments. And that only those who have lived that life are capable of such renderings. Here she essentially admits that to be the case as she perceives it:

“Personal experiences affect the facts that judges choose to see,” Sotomayor said. “My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

How else do you interpret her statement except to say, “we can’t change the fact that personal experiences affect our work and the best we can hope for is we will “take the good” for those experiences and apply them …?”

That, of course, helps explain the statement most of the right object too the most, i.e.:

“…a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Given what she said above, this makes perfect sense. Although she claims to agree “judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law”, she then builds the case that a) such isn’t really possible, and b) in fact race and gender based experience is a positive that should be injected in such “reason of law”.

Her ruling in the case of the 18 white firefighters in New Haven CT seems to indicate she is indeed inclined to use race and gender bias in her decisions.

That is a legitimate and troubling point and certainly one which requires a very close look. But Republicans need to lay off the silliness (and words like “racist”) and stick with the legitimate points of contention her nomination bring. And they need to explain their concerns in a way which is both complete and easy to understand.

~McQ

Obama: Rhetoric v. Reality

Another emerging hallmark of Obama rhetoric are the startling inconsistencies to be found there. For instance, his speech at the National Archives where he invoked the founding documents as the keepers of our fundamental rights and values and condemned the previous administration for its egregious violations of those right and values. All of it sounded lofty and certainly rhetorically satisfying. But then, within a few paragraphs, Obama trots out his policy plan for indefinite detention for those who we even suspect of wishing to do violence against the US.

And it was the past administration which did what that was so bad?

Even Sen. Russ Feingold can’t quite stomach the inconsistency:

While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world.

Gitmo is a place. And places can be shut down. But what Obama is talking about is a policy – a policy of government – in which people can be incarcerated without charges and held for as long as the government deems necessary. How again is that a difference from the previous administration? How is that better?

Feingold again:

Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security.

I had to laugh at this – “resist such a temptation”? For heaven sake Senator, his administration is suggesting the policy! Why would he “resist the temptation” when it is obvious that his administration sees it as a necessary tool to combat threats against the US?

Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues….

And that’s the point, isn’t it? Once it becomes policy – once it is enshrined in law (and I’m not, at this point, at all sure how the SCOTUS would rule on such a law although I’m certainly sure on how I think they should rule) it is open to use and abuse by government. So while we may or may not agree with what the previous administration did, in this regard, they never tried to make it policy and an legally blessed (but morally wrong) method of handling those we capture and incarcerate in this war against Islamic extremism.

Anyone monitoring what Barack Obama has been saying since taking the oath of office who doesn’t see a rather large authoritarian streak in the man hasn’t been paying attention. What he is suggesting is blatantly worse than what the Bush administration did. Unfortunately, it is mostly being lost in the ground clutter of the financial crisis. But it is certainly there for those who take the time to look.

~McQ

Sin Taxes To Fund Health Care?

First they came after the smokers. But I didn’t say anything because I don’t smoke. And then they came after the soda drinkers, and I didn’t say anything because I rarely drink soda.

But then they came after beer, but I couldn’t do anything because the precedent had been set (with apologies to Pastor Martin Niemöller).

Yes, sinners, you are going to pay for health care. You and the evil rich. “Sin” taxes are seemingly the chosen method of this administration for paying the bill for the upcoming health care debacle.

Consumers in the United States may have to hand over nearly $2 more for a case of beer to help provide health insurance for all.

Details of the proposed beer tax are described in a Senate Finance Committee document that will be used to brief lawmakers Wednesday at a closed-door meeting.

Taxes on wine and hard liquor would also go up.

Apparently they’re still discussing sugary drinks as well (although it seems diet drinks are not yet on the table) because, you know, obesity is a problem and since government will be paying for all of this (can taxing Oreos be far off?).

But remember:

“If you make less than a quarter of a million dollars a year, you will not see a single dime of your taxes go up. If you make $200,000 a year or less, your taxes will go down.”

Unless, of course, you’re a smoker, a fattie or a boozer (or, heaven forbid, all three).

~McQ

The “Constitution” Question

David Axelrod, Obama’s senior adviser talking about the appointment of a new Supreme Court Justice and the Constitution:

President Barack Obama began interviewing potential Supreme Court candidates Tuesday, while a senior White House official defended the president’s stated preference for a nominee who will give the powerless “a fair shake.”

White House adviser David Axelrod said the U.S. Constitution, like any document of its vintage, must be subject to interpretation in a modern context.

“Fidelity to the Constitution is paramount, but as with any document that was written no matter how brilliantly centuries ago, it couldn’t possibly have anticipated all the questions that would be asked in the 21st century,” Mr. Axelrod said.

Barack Obama, today, talking about the prisoners at Gitmo and the Constitution:

But I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values. The documents that we hold in this very hall – the Declaration of Independence, the Constitution, the Bill of Rights –are not simply words written into aging parchment. They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality and dignity in the world.

I stand here today as someone whose own life was made possible by these documents. My father came to our shores in search of the promise that they offered. My mother made me rise before dawn to learn of their truth when I lived as a child in a foreign land. My own American journey was paved by generations of citizens who gave meaning to those simple words – “to form a more perfect union.” I have studied the Constitution as a student; I have taught it as a teacher; I have been bound by it as a lawyer and legislator. I took an oath to preserve, protect and defend the Constitution as Commander-in-Chief, and as a citizen, I know that we must never – ever – turn our back on its enduring principles for expedience sake.

Per Obama’s speech, the Constitution apparently “anticipated all the questions that would be asked in the 21st century” when it comes to Gitmo. Yet there’s Axelrod, claiming it doesn’t cut the mustard when it comes to the job description or duties of a Supreme Court justice and implying we must turn our back on it for “expedience sake” and redefine the job (give the “powerless” a “fair shake” – the job of the legislature).

So, which is it?

~McQ