Free Markets, Free People

Congress


Saxby Chambliss: Poster boy for what’s wrong in DC

Here is a good example of what is wrong with politics today – this time from the right:

Sen. Saxby Chambliss (R-Ga.) on Saturday defended his decision to break with conservative activist Grover Norquist’s anti-tax pledge, telling constituents he would not be “dictated to by anybody in Washington.”

“I think that you sent me to Washington to think for myself. And I want to vote the way you want me to vote,” Chambliss said to a group of local constituents at a Cobb County Republican party event, according to the Atlanta Journal-Constitution. “I don’t want to be dictated to by anybody in Washington, as to how I’m going to vote on anything.”

You see, Chambliss doesn’t seem to get the basic point: he made a pledge.  HE made a pledge.  Not someone else – him.  He didn’t have his arm twisted behind his back when he made the pledge.  He did so voluntarily.  The dirty little secret, however, is he didn’t make the pledge out of principle, he made the pledge because it was politically helpful and expedient to do so at the time.

Now he wants to back out of his pledge.  It is no longer expedient or helpful politically.   He, like our President, is trying to blame the predicament he finds himself in – i.e. breaking a voluntary pledge – on someone else.  It’s their fault he’s in this predicament.  And by gosh he won’t “be dictated to by anybody”.

Well he hasn’t been dictated to by anyone.  Again,  he voluntarily took a pledge back when it was politically helpful and popular to do so.  Now he wants to bail on it.  I don’t know about you, but when I pledge something, I give my unbreakable word I’ll do what I pledge to do.  I don’t enter into them lightly.  And I do everything in my power to live up to the pledge.

It’s about honor.

But apparently that’s a concept that is passe in today’s political world.

Go ahead Mr. Chambliss.  Break your pledge.  But remember what happened when a certain president bailed on his no new taxes pledge?

I can only hope I’ll be part of the lesson teaching when your time for re-election comes.  Then, by Georgia, you’ll be “dictated too” by the people of this state.  And you’ll be looking for new work.

~McQ


The Senate filibuster fight gins up – hypocrites to the left of us, hypocrites to the right … (Update)

Another example of why you can’t ever take anything a politician says at face value or believe them when they say they stand on ‘principle’.

For instance, consider the looming Senate fight over the filibuster.

Once a cause championed by a few Democratic senators, changing the filibuster has become a top priority for Senate Democrats who’ve repeatedly complained about Republicans blocking legislation from even being debated on the Senate floor. Reid noted on Monday that in his nearly six years as majority leader, he has faced 386 Republican-led filibusters in the chamber.

“We can’t continue like this,” a visibly frustrated Reid Monday said in a response to McConnell.

Of course the “visibly frustrated” Senate Majority Leader, Democrat Harry Reid, was one of those huge champions of the filibuster when he was a minority leader and then the new Majority Leader because he’d used it many times in his long political career:

SEN. HARRY REID (D-NV):“As majority leader, I intend to run the Senate with respect for the rules and for the minority rights the rules protect. The Senate was not established to be efficient. Sometimes the rules get in the way of efficiency. The Senate was established to make sure that minorities are protected. Majorities can always protect themselves, but minorities cannot. That is what the Senate is all about.” (Sen. Reid, Congressional Record, S.11591, 12/8/06)

REID: “For more than 200 years, the rules of the Senate have protected the American people, and rightfully so. The need to muster 60 votes in order to terminate Senate debate naturally frustrates the majority and oftentimes the minority. I am sure it will frustrate me when I assume the office of majority leader in a few weeks. But I recognize this requirement is a tool that serves the long-term interest of the Senate and the American people and our country.” (Sen. Reid, Congressional Record, S.11591, 12/8/06)

REID: “I say on this floor that I love so much that I believe in the Golden Rule. I am going to treat my Republican colleagues the way that I expect to be treated. There is no ‘I’ve got you,’ no get even. I am going to do everything I can to preserve the traditions and rules of this institution that I love.” (Sen. Reid, Congressional Record, S.11591, 12/8/06)

REID:“…one of the most sacred rules of the Senate – the filibuster… It is a unique privilege that serves to aid small states from being trampled by the desires of larger states. Indeed, I view the use of the filibuster as a shield, rather than a sword. Invoked to protect rights, not to suppress them.” (Sen. Reid, Congressional Record, S.434, 1/5/95)

Yeah, well that was then and this is now. The “world has changed” as Republican Senator Saxby Chambliss said this week as he sought to duck out on his pledge of years past not to vote on raising taxes.

You have to love the Reid line about the Senate not being established to be efficient – see the budget.  Going on 4 years without one.  But you see, getting a budget passed would require Reid and the Democrats to compromise with the Republicans in order to achieve that 60 vote margin and, well, he’s just not willing to accomodate the minority despite his stirring words to the contrary about protecting the rights of the Senate minority, words, by the way, he’s likely to dismiss now.

And, as you hear the fight gin up, don’t forget the past words of other Democrats who will now call the GOP minority obstructionists and tell us all the filibuster is bad and has no place in the Senate.  For instance, if we hear the President opining, it’s alway nice to remember his words on the subject for the brief period he was a Senator and take his words, on both sides of the issue, with a grain of salt:

SEN. BARACK OBAMA (D-IL): “The American people want less partisanship in this town, but everyone in this Chamber knows that if the majority chooses to end the filibuster, if they choose to change the rules and put an end to democratic debate, then the fighting, the bitterness, and the gridlock will only get worse.” (Sen. Obama, Congressional Record, S.3512, 4/13/05)

OBAMA: “[T]he American people sent us here to be their voice… What they do not expect is for one party, be it Republican or Democrat, to change the rules in the middle of the game so they can make all the decisions while the other party is told to sit down and keep quiet.” (Sen. Obama, Congressional Record, S.3512, 4/13/05)

And, of course, that’s precisely what the Democrats and Obama want the Senate GOP to do – sit down and be quiet.

On any subject, you know little Chucky Schumer has an opinion:

SEN. CHUCK SCHUMER (D-NY) On Any Threat To The Filibuster: “The basic makeup of our Senate is at stake. The checks and balances that Americans prize are at stake. The idea of bipartisanship, where you have to come together and can’t just ram everything through because you have a narrow majority, is at stake. The very things we treasure and love about this grand republic are at stake.” (Sen. Schumer, Congressional Record, S.4801, 5/10/05)

SCHUMER: “We are on the precipice of a crisis, a constitutional crisis. The checks and balances which have been at the core of this republic are about to be evaporated by the nuclear option. The checks and balances which say that if you get 51% of the vote you don’t get your way 100% of the time. It is amazing it’s almost a temper tantrum… They want their way every single time, and they will change the rules, break the rules, misread the Constitution so they will get their way.” (Sen. Schumer, Congressional Record, S.5208, 5/16/05)

Yes, it was a “Constitutional crisis” in ’05. Now? Not so much.  Speaking of temper tantrums, funny how one’s words can come back to haunt them, not that they care.

Finally, we have dandy Dick Durbin who also thinks it is time to change the filibuster rules, although in ’05, he had a completely different take on the subject:

SEN. RICHARD DURBIN (D-IL): “Those who would attack and destroy the institution of the filibuster are attacking the very force within the Senate that creates compromise and bipartisanship.” (Sen. Durbin, Congressional Record, S.3763, 4/15/05)

DURBIN: The filibuster is “[one] of the most treasured and cherished traditions of the United States Senate.” “Many of us in the Senate feel that this agreement tonight means that some of the most treasured and cherished traditions of the United States Senate will be preserved, will not be attacked and will not be destroyed.” (Sen. Durbin, “Statement Of Sen. Dick Durbin Regarding The Agreement On Judicial Nominations In The Senate,” Press Release, 5/23/05)

It’s not so treasured any more, is it?  At least not by Senate Democrats who were so enamored with it in ’05.

The point of course is obvious.  Don’t ever believe anything any politician of either side says on any subject – ever. They’ll bail on it in a New York minute if they see political advantage in doing so.  Pledges and “traditions” mean nothing to them.

If faith in government is built on trust, and trust is built on political leaders promising to do things and then keeping their word, trust in this government died quite a while ago.

And that’s sort of the crux of the problem isn’t it?  We are represented by an amoral political class who doesn’t hold their word to mean anything and reserve the right to change their “principles” on the fly in an attempt to gain temporary political advantage.

We’re served by the worst political class I can remember.

The problem is we can’t blame them – we elected them, and, like Harry Reid and Saxby Chambliss, we’ve kept them in office for decades.

Unfortunately, when you don’t pay attention and you just tune in when it is convenient for you, you get exactly what you deserve in DC.  This is just another in a long line of examples of that truth.

UPDATE: Apparently the WSJ and I are on the same wave-length today:

One of the more amazing post-election spectacles is the media celebration of Republicans who say they’re willing to repudiate their pledge against raising taxes. So the same folks who like to denounce politicians because they can’t be trusted are now praising politicians who openly admit they can’t be trusted.

[...]

If Republicans in Congress want to repudiate the pledge, they are free to do so at any time. They could even quote Edmund Burke’s line that a democratic representative owes his electors his best judgment, not a slavish fealty to majority opinion. But that would mean saying they didn’t mean it when they signed the pledge. So they are now busy pretending that Mr. Norquist is a modern Merlin who conned them into signing the pledge and must be eliminated before they can do the “right thing” and raise taxes.

[...]

Republican voters know that elections have consequences and that Mitt Romney’s defeat means there will be policy defeats too. But they will give the House and Senate GOP credit if it fights for its principles and drives a hard bargain.  The voters are also smart enough to know that Republicans who focus on Mr. Norquist are part of the problem.

But apparently, for some, it’s too much to ask our politicians to stand by their word.  Apparently, principles are only important when these people say they’re important.  At other times, they’re very malleable or can be thrown to the side and rationalized away.  And in this case, the rationalization apparently says that political necessity now requires that a crumb be thrown to “public opinion”.

With other people’s money, of course.

~McQ


Obama’s “tax negotiations” are no such thing

Obama has strained to make everyone believe he is open to “negotiations” on the tax rates in dispute that are leading us inexorably to this “fiscal cliff” everyone is talking about.

The word “negotiate” implies compromise.  You give a little, he gives a little, you reach a deal neither really likes but both can live with.

He has no intention of giving anything.  Why should he?  He can’t run for a third term.  He has nothing to lose if he stands his ground.  Nope, the only one’s who have anything to lose in this one are the usual deer-in-the-headlights suspects.  And, of course, Obama has someone else to blame:

By taking an absolutist line, he’s basically gambling that Republicans will be more reasonable than he is and will blink. But if they don’t blink and we go over the cliff, from his point of view so what? Mr. Obama then has an excuse to blame Republicans if there’s another recession. Meanwhile, he pockets the higher tax rates that take effect on January 1 anyway, and he can then negotiate a budget deal next year without having to make any tax concessions.

He pleases his left wing for which higher tax rates are a secular religion, while pinning one more defeat on Republicans. Lest you think this is a conservative fantasy, it’s more or less the tax cliff strategy that Democratic Senator Patty Murray of Washington advocated on Sunday on ABC’s “This Week” and that labor leaders lobbied for at the White House on Tuesday.

So, as we wander toward Taxmageddon, fear not, either way it goes, Obama figures he wins.  So why try?

Indeed.

Why negotiate?

~McQ


Look West, Young Ukraine

“Freedom is the right to question and change the established way of doing things. It is the continuous revolution of the marketplace. It is the understanding that allows to recognize shortcomings and seek solutions.”

Ronald Reagan — Address to students at Moscow State University, May 31, 1988

Remember the Orange Revolution? Believe it or not, it’s still pretty darned important.

We’re knee-deep in a presidential election. The European Union is witnessing a slow-motion meltdown. Syria is quickly becoming a bloody nightmare, while North Africa seethes under the vicissitudes of the Arab Spring. Iran marches closer to nuclear arms, and perhaps war with Israel. And Sino-Japanese relations threaten to simmer out of control. So why care about the Ukraine?

The simple answer is because Ukrainians have had a taste of freedom, and liked it, and we should encourage that journey towards liberalization to continue. We have an interest in such development – via free and fair elections, open markets and greater legal protections in its reformed court system – because this is how individuals become personally invested in the growth of the nation, and thus how liberty spreads. As President Reagan emphasized in 1981, “only when individuals are given a personal stake in deciding economic policies and benefiting from their success — only then can societies remain economically alive, dynamic, progressive, and free.” The more societies like that in the world, and especially in the Eurasian region, the better. And this is exactly where Ukraine is poised to go.

Unfortunately, we may be taking steps to discourage further liberalization in the form of a Senate resolution essentially demanding that Ukraine act exactly like a western democracy immediately or face consequences. The reality is that the former soviet republic of nearly 50 million souls is at a crossroads. Will they continue to move towards alignment with the West, or turn back towards familiar haunts in Moscow?

To be sure, the current government has expressed great interest in being integrated into the European Union, going so far as to ink an Association Agreement in March:

The Association Agreement creates a framework for cooperation and stipulates establishing closer economic, cultural, and social ties between the signees. Moreover, Brussels officials expect the document to promote the rule of law, democracy, and human rights in Ukraine.

This first step to entering the EU (which still needs to be ratified) requires a concrete demonstration from Ukraine that it is moving towards “an independent judicial system, free and fair elections and constitutional reform.”

These are exactly the sorts of reforms that serve to expand liberty. Indeed, as Ukraine has liberalized over the past two decades since independence, it has since fits and starts of great economic growth and expanded prosperity. For example, between 2001 and 2008, the economy expanded at an average rate of 7.5%, and despite a severe downturn in 2009, it has continued to grow with exports increasing by 30% in 2010 alone. Indeed, Ukraine is ranked by CNBC.com as the second best country for long-term growth in the world, right behind the Philippines. Ukraine has also begun to institute judicial reforms that promise to train better judges, hold them accountable, and strengthen the fairness of the system that has long been burdened with rampant corruption and cronyism. And for the first time ever, outside election observers will be allowed to monitor the parliamentary elections this month.

Yet, these necessary and welcome reforms lie on a fragile bed.

Ukraine has been moving toward a market economy since it declared independence in 1991. The way has been extremely difficult and bumpy. Twenty years after the beginning of market reforms, Ukraine is still struggling to build a strong, transparent, and sustainable economic system that can provide the Ukrainian people with economic prosperity and social security.

Moving towards greater integration with the West, via the EU, will strengthen that bed. Demanding that Ukraine act as a long-established western democracy right now, today, only serves to further weaken it :

Economics 101 defines the problem of scarcity as unlimited wants with limited resources, and, to paraphrase George Shultz, the laws of economics apply as much in foreign policy as they do at home. While it may be rhetorically satisfying and politically convenient for Americans to assert an equal commitment to every priority in Ukraine, ranging from democratic development to removal of weapons-grade uranium, the reality is that some priorities are achievable, at an acceptable cost and within a realistic timeframe, while others are not.

If we cannot advance all of our values and all of our interests all of the time, then we are left with the necessity of ranking our national priorities. While it is clearly important that Ukraine put an end to politically motivated prosecutions, it bears asking whether resources and attention from Washington that have been focused exclusively on this issue are crowding out other compelling U.S. national interests.

The Orange Revolution was not a battle or a war. It was, and is, a movement. Our national interests will always be aligned with fostering greater liberty, which is what the Orange Revolution movement is all about. Instead of throwing up roadblocks in the Senate, we should be helping build road signs that lead towards further peace, prosperity and freedom.


When government chooses not to enforce the law of the land

As you might imagine, it has consequences, and, given this situation, it is very hard to pretend the consequences are unintended.  Why? Because even a 5th grader could have predicted this outcome:

In a startling allegation, the president of the union representing Immigration and Customs Enforcement officers claimed illegal immigrants are "taking advantage" of a new directive allowing some undocumented residents who came to the U.S. as children to stay in the country. Union boss Chris Crane said the policy ends up allowing illegal immigrants to avoid detention without any proof — particularly so-called "dreamers," or those illegal immigrants who would benefit under the "DREAM Act" proposal, which Congress has not passed but the administration  has partially implemented.

"Prosecutorial discretion for dreamers is solely based on the individual’s claims. Our orders are if an alien says they went to high school, then let them go," he said at a press conference with GOP senators. "Officers have been told that there is no burden for the alien to prove anything. … At this point we don’t even know why DHS has criteria at all, as there is no requirement or burden to prove anything on the part of the alien.

"We believe that significant numbers of people who are not dreamers are taking advantage of this practice to avoid arrest," he said.

Whether or not you agree with the immigration laws of the country, executive fiat is not the method the Constitution outlines as legitimate redress.  And, unsurprisingly, those illegals who would benefit, even if not actually eligible, will exploit an opportunity such executive fiat presents.

According to Chris Crane, that’s precisely what is happening. 

The allegations from the union were expressed in unusually blunt terms Thursday.

George McCubbin, president of the National Border Patrol Council union, said the Department of Homeland Security has made it impossible for agents to do their jobs.  

Crane said it’s led to disorganization and "confusion" at ICE.

Not that ICE hasn’t had its share of confusion in the past, but now, it is even more difficult to do their jobs. 

Crane cited one case in which, he said, an immigrant facing criminal charges was let go under the policy. Further, he complained that officers are "under threat of losing their jobs" if they defy the policy.

Anyone who thinks this is how our system should work needs to re-examine the Constitution.  One branch creates the laws (legislative) and one branch enforces the laws (executive).  If you don’t like a law or want it changed or repealed then it’s back to the legislative branch.  And no, inaction by the legislative branch doesn’t mean the executive branch can arbitrarily ignore the law or decide it’s not going to enforce it.  Not and still be a Constitutional republic.

I’m on record saying our current immigration system sucks.  There’s no reason in this day of cyber advances that we couldn’t have the slickest and quickest system on earth.  And yes, I hold Congress directly responsible for the inactivity that has led to the mess at the border. 

But that doesn’t give the executive license to ignore laws or selectively enforce them.   Kings do that, not presidents, and we have no kings.  We just have a president who thinks he’s one.

~McQ

Twitter: @McQandO


Crop cronyism’s destructive results

We talk about it.  Politicians condemn it.  Nothing ever happens to change it though.

This year’s agriculture bill again redistributes your money to rent seekers:

Combine a Midwestern drought with pointless ethanol mandates, and the supplies of corn inevitably dwindle, driving prices sky high. Politicians like Sen. Claire McCaskill, Missouri Democrat, are citing the crop crisis as an excuse to ram through a near-$1 trillion farm bill. While a bit of that cash might find its way to a small farmer, the bulk of the loot will be transferred to individuals who are anything but poor. Like the bank bailouts and TARP, the farm bill illustrates the capture of the legislative process by special interests.

The last farm bill in 2008 was the focus of $173.5 million in lobbying expenditure, according to a report released Tuesday by Food & Water Watch. This is all money spent on what the Mercatus Center’s Matthew Mitchell calls “unproductive entrepreneurship” where people are organizing and expending their talent to become rent seekers, and the end result is wealth redistribution, not wealth creation. Real entrepreneurship innovates in ways that are socially useful. Cronyism diverts resources — both money and talent — into a system that rewards privileges to favored groups. In the case of the 2008 farm bill, recipients of subsidies of $30,000 or more had an average household income of $210,000.

Mr. Mitchell argues that “government-granted privilege is an extraordinarily destructive force” because it not only results in a misallocation of resources and slower growth, it undermines civil society and the legitimacy of government by providing a rich soil for corruption.”

She’s absolutely right.  And, of course, when you mess with markets, like has been done with the corn market and mandated ethanol, the expected results occur when something unanticipated, like a drought, happens:

Corn and soybeans soared to record highs on Thursday as the worsening drought in the U.S. farm belt stirred fears of a food crisis, with prices coming off peaks after investors cashed out of the biggest grains rally since 2008.

Corn prices crossed into uncharted territory above $8 per bushel — about three-and-a-half times the average price 10 years ago of $2.28. Soybeans punched past $17 for the first time — also three-and-a-half times the 2002 average.

Analysts said that while forecasts for continued dry weather are expected to sustain the rally, corn prices could be vulnerable to any move by the government to lower the amount of corn-based ethanol blenders are required to mix with gasoline.

Notice what entity is mentioned in the last paragraph?  Yes, government. A key player in the increase in corn prices (yes, understood, they’d be higher with the drought alone, but government’s ethanol mandate has driven them even higher yet).

Meanwhile, as mentioned above, we’re subsidizing agriculture to the tune of $1 trillion dollars of your money (in cash or in debt to be paid back in the future).  Meanwhile, you’ll be paying more for corn based products at the grocery store as well.

Nita Ghei lays out the bottom line problem with this sort of cronyism and rent seeking:

Government privileges come in many forms, direct and indirect. It might be a monopoly, such as the one granted to utilities like Pepco. Regulations such as licensing can be used to limit entry to a particular field to the benefit of existing businesses. Lobbying and the revolving door in Washington create what economists call “regulatory capture,” which is what happens when existing firms use regulatory agencies to benefit themselves. Tax breaks, loan guarantees and subsidies are the most direct signs of a government’s favor. Bailouts of big banks under TARP, and Fannie Mae and Freddie Mac when the housing bubble burst, are the most recent examples of direct action.

Extending each of these privileges reduces America’s economic competitiveness. A monopoly protected by the government has little incentive to provide good service. The greater the availability of privileges, the greater is the incentive to indulge in rent seeking, which diverts resources from truly productive activities. In the long run, the result of anti-competitive policies is less innovation, lower growth and a smaller pie to share.

The greatest scourge to the honest Midwest farmer is not unfavorable weather, pestilence or disease. Far worse for them is the plague of politicians who create an artificial market in which only those with influence can truly compete. Defeating the budget-busting 2012 farm bill is the best chance at a good harvest.

The chances of that happening, however, are slim to none.  Regulatory capture is as common now as government debt and unemployment.  It is a systemic problem that rewards rent seekers and the well connected to the detriment of innovators and competition.  It is the antithesis of capitalism.

Unless we have the will to stop this sort of cronyism, we’re on a short road to failure.  This is another, in a long line of government programs, that are unsustainable, destructive and just flat something government shouldn’t be involved in.

But my guess is, this time next year, we’ll still be talking about it, politicians will still be condemning it and nothing will change except the higher national debt number.

~McQ

Twitter: @McQandO


Obama and taxes

President Obama is on his newest attempt to change the subject and find something to take to the people that might interest them and distract from his abysmal economic performance.  It’s taxes.  Specifically, he’s decided to make an issue of the automatic tax increases that will take effect in January and claim he does not want to see taxes increase on anyone but those nasty rich who need to “pay their fair share”.  Or, back to class warfare.

A) He likes to refer to these as the “Bush tax cuts”.  In fact, they’re the current tax rate.  Have been for years.  What he wants to do is see a tax increase on the rich, but no one else.  I’m not sure how else one characterizes that but “class warfare”, especially given the percentage of total taxes that top income group pays already.

B) Republicans are saying no tax increases on anyone.  Democrats like to characterize that as protecting the rich.  I like to characterize it as an attempt to address the real problem – out of control government spending.

C) The nasty “rich” Obama wants to tax also include almost a million small businesses.  That’s one of the primary reasons, in this weakening economy, that Republicans are right not to agree to any tax increases.  It is both stupid and economically suicidal.  But then you have to know about economics and the business world to understand that.

D) Democrats had two years of a complete monopoly on government to get this done and didn’t.  It’s not the Republicans who have prevented anything.  It is total incompetence on the Democratic side of the aisle.  And, as Obama’s favorite pastor likes to say, “those chickens are coming home to roost”.

E) Finally, Barack Obama has already raised taxes on the middle class despite his statement in a speech yesterday claiming he had no desire to raise middle class taxes.

The tax is called the mandate in ObamaCare.  It goes like this:

 

Taxmandate

 

75% of the mandate tax falls on the middle class.    That is a middle class tax hike in anyone’s book.

So when he claims he has no desire to raise the taxes on the middle class, that may be true … now.  Because, in fact, he’s already done it.

~McQ

Twitter: @McQandO


ObamaCare: The fallout

I’ve read all the pundits and listened to all the talking head elite tell us how incredibly nuanced and subtle the Chief Justice was by approving the law as a tax.  In fact one described him as “"a chess master, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times."

I say “BS”.  He sold out.  He ended up being more worried about the perception of the court and his legacy than upholding the Constitution of the United States.  And I’m not the only one who feels that way.  The Wall Street Journal also throws a punch or two at Roberts:

His ruling, with its multiple contradictions and inconsistencies, reads if it were written by someone affronted by the government’s core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.

If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court’s legitimacy than any abuse it would have taken from a ruling that President Obama disliked. The irony is that the Chief Justice’s cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.

"It is not our job," the Chief Justice writes, "to protect the people from the consequences of their political choices." But the Court’s most important role is to protect liberty when the political branches exceed the Constitution’s bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.

Precisely.  And Roberts caved.  From the lecture the court got from Obama during a State of the Union address till now, he became a cautious old lady more concerned with his reputation in perpetuity than serving the people and the Constitution he swore to uphold. 

That, as the WSJ says, is “more corrosive to the rule of law and the Court’s legitimacy” than anything he could have done.  He didn’t have the spine to take the heat from a controversial but proper decision so he took the easy way out.  He threw away his integrity for popularity and peace.   A judicial Chamberlin if you will.

Jacob Sullum at Reason gives you the rest of the bad news:

The Journal notes that the tax power endorsed by Roberts is no less sweeping and dangerous to liberty than the Commerce Clause argument he rejected. "From now on," it says, "Congress can simply regulate interstate commerce by imposing ‘taxes’ whenever someone does or does not do something contrary to its desires." Worse, as I pointed out last week, the tax trick allows Congress to dispense with claims about interstate commerce altogether. As long as a mandate is disguised as a tax (and as long as it does not violate explicit limits on federal power such as those listed in the Bill of Rights), "because we said so" is reason enough.

Mandates “disguised as a tax” give Congress almost limitless power to control your life.  That is the power Roberts handed our elected officials. 

Oh, but the apologists say, that will never happen.  They’d never abuse that power.  Yeah, a little lesson in history.   When the Constitutional amendment for the income tax was being debated some wanted to put a 2% limit on it. “Don’t do that,” the others said, “it will encourage Congress to immediately go that high.”

And here we are.

The Congress no longer need wrestle with intrusion in your life via the Commerce clause.  Justice Roberts just gave them an infinitely easier route that doesn’t require a Constitutional check.  He effectively removed the Court from its role in protecting you from increasing government intrusion.

And clever politicians will find a way to use that power he handed them when necessary.  Don’t you ever doubt that.

As for Roberts.  I have little or no use for a man who sits on the bench of the Supreme Court and puts politics in front of the Constitution he’s sworn to uphold.

~McQ

Twitter: @McQandO


Supreme Court strikes down most of AZ immigration law, Homeland Security strikes down the rest

I won’t belabor you with a full detailing of how the court ruled yesterday on Arizona’s immigration laws except to say most of it was struck down with the Court supporting the “supremacy clause” as its basis for doing so.

However, it did find for AZ in one part of the law – the requirement to produce identification, if asked, proving citizenship if law enforcement is has a reasonable suspicion the person is in the country illegally.

Note the last word.

Illegally”.

You see, that’s the word that is often left off when discussing immigration, as in “the right is anti-immigration”.  Of course that’s a totally inaccurate assertion.  The vast majority of the right is against illegal immigration.  Legal immigrants are both wanted and welcome.

That said, we all know that our immigration system is flat out broken.  It sucks.  It is terrible.   And in this day and time, given advances in the speed and efficiency of communications, there is absolutely no reason that should be the case.  Upgrading and speeding up the system should be a priority.

But that doesn’t change the fact that people who go around that antiquated system and take it upon themselves to enter the US illegally are lawbreakers.

So, to yesterday’s ruling:  Arizona’s law was a result of the federal government’s refusal to enforce existing immigration law.  It was a law born of frustration.  Arizona is a border state.  Non-enforcement was causing strains on the state that for the most part, non-border states didn’t have to deal with.   And, after numerous appeals to the federal government to enforce the laws of the land, the state took the drastic step of passing its own laws that mirrored the federal statutes.

Yesterday the Supreme Court struck most of them down.  I understand and don’t necessarily disagree with the basis of the ruling. I understand the importance of the “supremacy clause”.  But I also understand when it is improperly used – in this case to not enforce existing law.  That is not a choice made by an administration dedicated to the rule of law.   That’s the choice made by one which is driven by an ideological agenda.

To make the point, yesterday after the ruling, Homeland Security, the executive agency that ICE falls under, made it clear that it would not cooperate on section 2 (b) of the AZ law, the section the Supreme Court upheld, effectively nullifying it:

The Obama administration said Monday it is suspending existing agreements with Arizona police over enforcement of federal immigration laws, and said it has issued a directive telling federal authorities to decline many of the calls reporting illegal immigrants that the Homeland Security Department may get from Arizona police.

Administration officials, speaking on condition they not be named, told reporters they expect to see an increase in the number of calls they get from Arizona police — but that won’t change President Obama’s decision to limit whom the government actually tries to detain and deport…

Federal officials said they’ll still perform the checks as required by law but will respond only when someone has a felony conviction on his or her record. Absent that, ICE will tell the local police to release the person

On Monday the administration officials also said they are ending the seven 287(g) task force agreements with Arizona law enforcement officials, which proactively had granted some local police the powers to enforce immigration laws.

Or, more simply, the President has directed his agencies not to enforce the law of the land, a clear violation of his oath of office, but in full compliance with his recent enactment of the “DREAM act” by fiat.

By the way, that raging righty, Mickey Kaus updates us on what the real results of Obama’s decision concerning a certain type of illegal really means:

The maddening details of Obama’s DREAM Decree are becoming clearer. As this CIS report notes, 1) The decree doesn’t just apply to illegal immigrants who were “brought to this country by their parents.” It also would give work permits to those who snuck across the border by themselves as teenagers. “Through no fault of their own” is a talking point for DREAM proselytizers, not an actual legal requirement. 2) The same goes for the phrase “and know only this country as home.” That’s a highly imaginative riff on the decree’s actual requirement, which is for 5 years “continuous residence.”  It turns out “continuous residence” doesn’t mean what you think it means. “Immigration attorneys have been successful in getting immigration courts to whittle this down to a point where it is almost meaningless,” says CIS’s Jon Feere. As an illegal immigrant you can go back home abroad for multiple 6-month stints during those five years–but, if precedent holds, in Janet Napolitano’s eyes you will still “know only this country as home.” …

He has a couple of updates that are worth the read as well that show this for the broad attempt at amnesty it really is.

Look … this may indeed be how it all ends up, but this isn’t how it should be done.  There’s a clear, legal and Constitutional path for changing laws we don’t like or think need to be changed … that is if we are a nation of laws. 

Barack Obama seemed to think that was important once:

I believe that we can be a nation of laws and a nation of immigrants.

Now?  Not so much.

So here we have the nation’s chief law enforcement officer refusing to enforce the law.

His excuse is he’s frustrated with the lack of movement in Congress (of course he’s exerted no leadership or effort to resolve the issue)?

Hey, wait, wasn’t that the same sort frustration Arizona expressed about the administration’s refusal to enforce the law of the land?

So why is Obama’s refusal to enforce the law rewarded while Arizona’s attempt to enforce it isn’t?

Because George Orwell is alive and well and renaming his book “2012”.

~McQ

Twitter: @McQandO


With the options available, why did Obama choose to invoke executive privilege?

That, at least to me, is the pregnant question.  He had a number of other options but  4 months from a critical election, chose the most controversial and potentially damaging one.

Why?

Let’s begin with a quote from  a former White House counsel from a Powerline post:

Even with his fawning press, [President Obama] will pay a price for this one. He knows this, meaning that the documents now to be withheld must be dynamite. They have to show either that Holder knew what was going on with Fast and Furious and approved it, or that he directly committed perjury in his Congressional testimony, or both. I just can’t see any other explanation for such a risky move.

Wasn’t the Washington Post just covering big time the 40th anniversary of Watergate? I wonder how much coverage this one will get.

That’s the result of the move – speculation that the documents being withheld point to perjury by Holder or the President, or both.

So let’s break this down a bit.  If it was all about Holder, why would the president risk this sort of a controversial move this close to an election.  It’s not like he’s never thrown anyone under the bus.  In fact James Carville is on record advising Obama to dump Holder.

Obama had the option, then, of letting Holder face contempt charges (not much happens as we’ve seen in the past, to those who are served with contempt of Congress charges) and drag out the document release until after the election.

With the election season gearing up, it is likely that while the controversy would have been an issue, it wouldn’t have been a major issue.   Now it certainly is.

He could have asked Holder to resign.  He could have then used the opportunity to appear as a statesman, a leader and bi-partisan all in one fell swoop.  Depending on how he handled that it could actually have been a positive for him heading into an election.  In the meantime, an acting AG could continue to delay on providing documents.

But he did neither of those things.  For some unknown reason (at least to this point) he chose to do the least likely and most politically damaging thing – invoke executive privilege.  As the lawyer quoted has said, those documents must be “dynamite” to have the president make this move.

And, unsaid by the lawyer is the speculation that the documents show the involvement of the White House to a degree that is damaging – apparently more damaging than the speculation and attention this move by the President has brought.

David Kopel at Volokh Conspiracy gives you a great history of the controversy.  As for the documents Kopel notes:

According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege log–which would identify withheld documents, and the legal reason for their being withheld.

Matthew Boyle at the DC caller points out that Holder has retracted two previous statements he made to Congress where he gave them inaccurate information in an attempt to blame previous AGs or administrations.  It seems that’s a standard operating procedure with all parts of this administration.  So Holder is left holding the bag all by himself on this one, or so it seemed, at least, to the point that executive privilege was invoked.

That brings us to these 4 point by Todd Gaziano at the Heritage Foundation about the use of executive privilege:

First, the Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. The courts held that Nixon’s purported invocation of executive privilege was illegitimate, in part, for that reason. There is reason to suspect that this might be the case in the Fast and Furious cover-up and stonewalling effort. Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilege—and more.

Second, even the “deliberative process” species of executive privilege, which is reasonably broad, does not shield the ultimate decisions from congressional inquiry. Congress is entitled to at least some documents and other information that indicate who the ultimate decision maker was for this disastrous program and why these decisions were made. That information is among the most important documents that are being withheld.

Third, the Supreme Court in the Nixon case also held that even a proper invocation must yield to other branches’ need for information in some cases. So even a proper invocation of executive privilege regarding particular documents is not final.

And lastly, the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way. For example, it does not harm executive power for the President to selectively waive executive privilege in most instances, even if it hurts him politically by exposing a terrible policy failure or wrongdoing among his staff. The history of executive–congressional relations is filled with accommodations and waivers of privilege. In contrast to voluntary waivers of privilege, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency when Congress and the courts impose new constraints on the President’s discretion or power (some rightful and some not).

The key point, of course, is executive privilege cannot be used to “shield wrongdoing”.  While it is speculative, it appears highly likely – given the other options available – that executive privilege is being used for precisely that reason in this case.

Additionally, given the choices available to the President, it is not at all out of bounds to speculate that the most transparent administration in history is trying desperately to hide something even more terrible than the political fallout from this choice.

The White House cites internal discussions and ongoing investigations are the reason for its denial and claims the investigations would be jeopardized with the release of the documents.  But, as Gaziano points out, accommodations can be made in that regard.  The total number of documents requested is 1,300.  The White House is simply refusing to cooperate or accommodate.

Why?

We’re still left with that question.  

And the answer, given the  actions to date, lead to some logical speculation – what is contained in those documents is much more damaging politically than the damage done by the decision.  Additionally, Obama can’t afford to let Holder go because if he does there’s the potential that Holder will then spill the beans.

Oh, and finally, this move has suddenly brought Fast and Furious to page one and the top of the newscast like nothing else could.  The majority of the country, which was mostly ignorant of this scandal are now in the loop.

As the cited former White House counsel said, “the documents now to be withheld must be dynamite.”  In fact, they must be so explosive that the White House is desperate enough to try to weather this self-inflicted political storm in lieu of exposing them.

That says a lot.

~McQ

Twitter: @McQandO