Free Markets, Free People

Constitution


Government abuse: not surprising, not unexpected, but certainly something that needs to be stopped – now!

This has been in the news recently and now it is getting some Congressional attention.  It has to do with possible illegal activities involving the NSA and DEA.  As you know, the NSA’s job is to focus outside the US, not inside, and primarily on enemies of the United States, not it’s citizens:

Eight Democratic senators and congressmen have asked Attorney General Eric Holder to answer questions about a Reuters report that the National Security Agency supplies the Drug Enforcement Administration with intelligence information used to make non-terrorism cases against American citizens.

The August report revealed that a secretive DEA unit passes the NSA information to agents in the field, including those from the Internal Revenue Service, the FBI and Homeland Security, with instructions to never disclose the original source, even in court. In most cases, the NSA tips involve drugs, money laundering and organized crime, not terrorism.

Five Democrats in the Senate and three senior Democrats on the House Judiciary Committee submitted questions to Holder about the NSA-DEA relationship, joining two prominent Republicans who have expressed concerns. The matter will be discussed during classified briefings scheduled for September, Republican and Democratic aides said.

“These allegations raise serious concerns that gaps in the policy and law are allowing overreach by the federal government’s intelligence gathering apparatus,” wrote the senators – Tammy Baldwin of Wisconsin, Ron Wyden of Oregon, Tom Udall of New Mexico, Richard Blumenthal of Connecticut and Sherrod Brown of Ohio.

Why, other than the fact that the NSA has no charter or permission to pass its information about American citizens on to other agencies, is this important?

The Reuters reports cited internal documents that show how DEA’s Special Operations Division funnels information from overseas NSA intercepts, domestic wiretaps, informants and a large DEA database of telephone records to authorities nationwide to help them launch criminal investigations of Americans.

The documents show that agents have been trained to conceal how such investigations truly begin – to “recreate” the investigative trail to effectively cover up the original source of the information, raising questions about whether exculpatory information might be withheld from defendants at trial.

The internal documents describe the process of recreating the evidence trail to omit any reference to the Special Operations Division as “parallel construction.” For example, agents said in interviews, they act as if a drug investigation began with a traffic stop for speeding or a broken taillight, instead of a tip passed from the NSA. An IRS document describes a similar process for tax agency investigators.

Emphasis mine. So not only is passing such information to these agencies unauthorized, the government then instructs its agents on how to lie about the source of their information (a lie of omission). And, of course, it is also legitimate to ask whether or not exculpatory evidence could also have been available but not passed to these agencies.

Is this really the type government we want?  One that spies on us, intercepts our electronic messages and phone calls and uses them secretly by passing what should be private to various other government agencies and then lies about it?  Peggy Noonan addresses those questions quite directly today:

If the citizens of the United States don’t put up a halting hand, the government can’t be expected to. It is in the nature of security professionals to always want more, and since their mission is worthy they’re less likely to have constitutional qualms, to dwell on such abstractions as abuse of the Fourth Amendment and the impact of that abuse on the First.

If you assume all the information that can and will be gleaned will be confined to NSA and national security purposes, you are not sufficiently imaginative or informed. If you believe the information will never be used wrongly or recklessly, you are touchingly innocent.

If you assume you can trust the administration on this issue you are not following the bouncing ball, from Director of National Intelligence James Clapper, who told Congress under oath the NSA didn’t gather “any type of data at all on millions or hundreds of millions of Americans” (he later had to apologize) to President Obama, who told Jay Leno: “We don’t have a domestic program.” What we do have, the president said, is “some mechanism that can track a phone number or an email address that is connected to a terrorist attack.”

Oh, we have more than that.

Almost every politician in America lives in fear of one big thing: a terrorist attack they can later be accused of not having done everything to stop. And so they’ll do anything. They are looking to preserve their political viability and historical standing. We, as citizens, must keep other things in mind, such as the rights we are born with as Americans, one of which is privacy.

Lord Acton nailed it when he said “Power corrupts …”.  We’re currently in the midst of watching exactly that happen to an even greater degree than in the past. If you give government power, it will do everything it can to expand that power – whether legitimately or illegitimately.  It is the nature of the beast.  And we have to put up a hand to stop it.

If you’re wondering why the Tea Party is characterized in such nasty ways by the establishment of both parties, it is because it does indeed attempt to put up a hand to stop these sorts of abuses and remove power from the abusers.  They threaten the very base of power the political establishment has worked so hard to build over the years.

~McQ


Governing By Expert

On last night’s podcast, Dale and I discussed the rise of a soft tyranny and expansion of the regulatory state in this country. Pres. Obama has, on more than one occasion, unilaterally declared the power to pick and choose what laws to enforce, or to simply change the way they are enforced, without any consequences (i.e. checks and/or balances). He’s not the first POTUS to act that way (albeit the most brazen about it), and probably won’t be the last.

The primary reason he, or any other POTUS, is even able to act this way is because of the massive regulatory apparatus at the disposal of the Executive branch. An apparatus created by Congress; one it seems strangely reluctant to rein in. As Kevin Williamson notes, “Barack Obama did not invent managerial liberalism,” and while his agenda is painfully horrendous, it’s “a good deal less ambitious than was Woodrow Wilson’s or Richard Nixon’s.” However, Obama has used the leeway provided by Congresses past and present to further expand the regulatory state. Williamson characterizes this as Obama’s “utterly predictable approach to domestic politics: appoint a panel of credentialed experts.”

His faith in the powers of pedigreed professionals is apparently absolute. Consider his hallmark achievement, the Affordable Care Act, the centerpiece of which is the appointment of a committee, the Independent Payment Advisory Board (IPAB), the mission of which is to achieve targeted savings in Medicare without reducing the scope or quality of care. How that is to be achieved was contemplated in detail neither by the lawmakers who wrote the health-care bill nor by the president himself. But they did pay a great deal of attention to the processes touching IPAB: For example, if that committee of experts fails to achieve the demanded savings, then the ball is passed to . . . a new committee of experts, this one under the guidance of the secretary of health and human services. IPAB’s powers are nearly plenipotentiary: Its proposals, like a presidential veto, require a supermajority of Congress to be overridden.

IPAB is the most dramatic example of President Obama’s approach to government by expert decree, but much of the rest of his domestic program, from the Dodd-Frank financial-reform law to his economic agenda, is substantially similar. In total, it amounts to that fundamental transformation of American society that President Obama promised as a candidate: but instead of the new birth of hope and change, it is the transformation of a constitutional republic operating under laws passed by democratically accountable legislators into a servile nation under the management of an unaccountable administrative state. The real import of Barack Obama’s political career will be felt long after he leaves office, in the form of a permanently expanded state that is more assertive of its own interests and more ruthless in punishing its enemies. At times, he has advanced this project abetted by congressional Democrats, as with the health-care law’s investiture of extraordinary powers in the executive bureaucracy, but he also has advanced it without legislative assistance — and, more troubling still, in plain violation of the law. President Obama and his admirers choose to call this “pragmatism,” but what it is is a mild expression of totalitarianism, under which the interests of the country are conflated with those of the president’s administration and his party.

(emphasis added)

I likened the expansion and independence of the regulatory state to 2001: A Space Odyssey or The Terminator in that these things that were created to ostensibly serve in the aid of their users developed a life, mind and interests of their own, and eventually turned on the users. A perfect example would be if the IRS scandal of targeting conservatives turns out to be completely divorced of any political direction, and instead was completely self-initiated from within the department. As James Taranto often points out, that is the far scarier scenario than the one where the White House directed the agency to target its political enemies. Corrupt politicians are bad, but they are expected and can be dealt with in a summary manner. An unelected, unaccountable and extremely powerful organization exercising its own political agenda is orders of magnitude worse.

Williamson continues:

Democracy never lasts long,” [John] Adams famously said. “It soon wastes, exhausts and murders itself. There was never a democracy that did not commit suicide.” For liberal regimes, a very common starting point on the road to serfdom is the over-delegation of legislative powers to the executive. France very nearly ended up in a permanent dictatorship as a result of that error, and was spared that fate mostly by good luck and Charles de Gaulle’s patriotism. Long before she declared her infamous state of emergency, Indira Gandhi had been centralizing power in the prime minister’s office, and India was spared a permanent dictatorship only by her political miscalculation and her dynasty-minded son’s having gotten himself killed in a plane wreck. Salazar in Portugal, Austria under Dollfuss, similar stories. But the United States is not going to fall for a strongman government. Instead of delegating power to a would-be president-for-life, we delegate it to a bureaucracy-without-death. You do not need to install a dictator when you’ve already had a politically supercharged permanent bureaucracy in place for 40 years or more. As is made clear by everything from campaign donations to the IRS jihad, the bureaucracy is the Left, and the Left is the bureaucracy. Elections will be held, politicians will come and go, but if you expand the power of the bureaucracy, you expand the power of the Left, of the managers and minions who share Barack Obama’s view of the world. Barack Obama isn’t the leader of the free world; he’s the front man for the permanent bureaucracy, the smiley-face mask hiding the pitiless yawning maw of total politics.

(emphasis added)

I would add that, if the politics were reversed (i.e. “the bureaucracy is Right, and the Right is bureaucracy”) we would still have the same issue: an unaccountable power structure that invades every aspect of our lives. Coupled with a President who exercises that power based on political whims, and we have a serious issue:

The job of the president is to execute the law — that is what the executive branch is there to do. If Barack Obama had wanted to keep pursuing his career as a lawmaker, then the people of Illinois probably would have been content to preserve him in the Senate for half a century or so. As president, he has no more power to decide not to enforce the provisions of a duly enacted federal law than does John Boehner, Anthony Weiner, or Whoopi Goldberg. And unlike them, he has a constitutional duty to enforce the law.

So, one might ask (as Dale did last night), why isn’t the President being impeached for dereliction of duty? Partisan politics is one answer (see, e.g., the failure of the Clinton impeachment). A lack of will is another. Perhaps the simplest answer, however, is that Congress is quite complicit in this expansion and abuse of the regulatory state:

Congress’s supine ceding of its powers, and the Obama administration’s usurpation of both legal and extralegal powers, is worrisome. But what is particularly disturbing is the quiet, polite, workaday manner with which the administration goes about its business — and with which the American public accepts it. As Christopher Hitchens once put it, “The essence of tyranny is not iron law; it is capricious law.”

[snip]

Barack Obama’s administration is unmoored from the institutions that have long kept the imperial tendencies of the American presidency in check. That is partly the fault of Congress, which has punted too many of its legislative responsibilities to the president’s army of faceless regulators, but it is in no small part the result of an intentional strategy on the part of the administration. He has spent the past five years methodically testing the limits of what he can get away with, like one of those crafty velociraptors testing the electric fence in Jurassic Park. Barack Obama is a Harvard Law graduate, and he knows that he cannot make recess appointments when Congress is not in recess. He knows that his HHS is promulgating regulations that conflict with federal statutes. He knows that he is not constitutionally empowered to pick and choose which laws will be enforced. This is a might-makes-right presidency, and if Barack Obama has been from time to time muddled and contradictory, he has been clear on the point that he has no intention of being limited by something so trivial as the law.

I agree with Williamson that Obama has pushed the limits, but I think he lets Congress off the hook too easily. Every POTUS presses the limits. Indeed, Williamson provides the example of Nixon’s abuses, and even compares Obama favorably: “… it is impossible to imagine President Obama making the announcement that President Richard Nixon did on August 15, 1971: ‘I am today ordering a freeze on all prices and wages throughout the United States.’” Williamson notes that Nixon was able to make that announcement because of power invested in him by Congress. Just as Obama has been entrusted with incredible power via such instruments as the IPAB which requires a super-majority of Congress to override its decisions. While Obama is bad, clearly the issue here is that Congress isn’t doing its job either.

Recall that in Federalist #51, James Madison explained that the way the Constitution controls the new federal government, such that “the private interest of every individual may be a sentinel over the public rights”, was to divide the different departments in a way that each had interests sufficiently distinct from one another so as to provide an incentive for each to jealously guard those interests and maintain their power. This system of checks and balances was meant to prevent consolidation of power in any one part of the government.

The problem we seem to have run into since then is when the two most powerful departments combine their interests and secret away their combined powers in an unaccountable regulatory apparatus, safe from the will of the electorate. That the office of POTUS would be willing to do this is to be expected, and indeed is a large part of why there was much resistance to its creation. However, that Congress has done so much to aid and abet the effort is contemptible. Unless and until Congress rights the balance, and vigorously pursues its checking role, the problem will only worsen.


What if Obama can’t lead?

That’s the question headlining a Ron Fournier article in National Journal.  My first reaction was to laugh out loud.  My second reaction was to wonder why it has taken all this time for someone in the press to actually ask that question.

The evidence of his lack of leadership has been on the table for 4 plus years.  And for me that’s a double edged sword.  On the one side, I’m happy he’s such a dismal leader because it limits what he can destroy.  On the other side, especially the policy side both foreign and domestic, it has led to a decline in almost all areas.  A decline a real leader will have to address when Obama is finally relegated to history. 

Anyway, here’s Fournier’s take:

In March, a reporter asked Obama why he didn’t lock congressional leaders in a room until they agreed on a budget deal. Obama’s answer was based on two assumptions. First, that his opinion is supreme. Second, he can’t break the logjam. What a remarkable combination of arrogance and impotence.

"I am not a dictator. I’m the president," he said. "I know that this has been some of the conventional wisdom that’s been floating around Washington; that somehow, even though most people agree that I’m being reasonable, that most people agree I’m presenting a fair deal, the fact that they don’t take it means that I should somehow do a Jedi mind meld with these folks and convince them to do what’s right."

Obama could still do great things. But not if he and his advisers underestimate a president’s powers, and don’t know how to exploit them. Not if his sympathizers give Obama cover by minimizing his influence. Cover to fail. Not if the president himself is outwardly and boundlessly dismissive of his critics, telling The New York Times, "I’m not concerned about their opinions."

To say the situation is intractable seems akin to waving a white flag over a polarized capital: Republicans suck. We can’t deal with them. Let’s quit.

I’m afraid they have quit—all of them, on both sides. At the White House and in Congress, most Democrats and Republicans have abandoned hope of fixing the nation’s problems. If leadership was merely about speaking to the converted, winning fights and positioning for blame, America would be in great hands. But it’s not.

Well I’m not so sure they’ve quit … or at least Obama hasn’t quit. He has no desire to persuade or do the hard work of  a leader and work with Congress.   Instead, where he’s headed does give lie to his claim of not being dictator.  That’s precisely what he’d prefer to be.  And Daniel Henninger brings you that bit of insight:

Please don’t complain later that you didn’t see it coming. As always, Mr. Obama states publicly what his intentions are. He is doing that now. Toward the end of his speech last week in Jacksonville, Fla., he said: "So where I can act on my own, I’m going to act on my own. I won’t wait for Congress." (Applause.)

The July 24 speech at Knox College in Galesburg, Ill., has at least four references to his intent to act on his own authority, as he interprets it: "That means whatever executive authority I have to help the middle class, I’ll use it." (Applause.) And: "We’re going to do everything we can, wherever we can, with or without Congress."

Every president since George Washington has felt frustration with the American system’s impediments to change. This president is done with Congress.

The political left, historically inclined by ideological belief to public policy that is imposed rather than legislated, will support Mr. Obama’s expansion of authority. The rest of us should not.

And Obama is engaged in the systematic demonization of the other two coequal branches of government in order to sway the public toward his dictatorial inclinations:

To create public support for so much unilateral authority, Mr. Obama needs to lessen support for the other two branches of government—Congress and the judiciary. He is doing that.

Mr. Obama and his supporters in the punditocracy are defending this escalation by arguing that Congress is "gridlocked." But don’t overstate that low congressional approval rating. This is the one branch that represents the views of all Americans. It’s gridlocked because voters are.

Take a closer look at the Galesburg and Jacksonville speeches. Mr. Obama doesn’t merely criticize Congress. He mocks it repeatedly. Washington "ignored" problems. It "made things worse." It "manufactures" crises and "phony scandals." He is persuading his audiences to set Congress aside and let him act.

So too the judiciary. During his 2010 State of the Union speech, Mr. Obama denounced the Supreme Court Justices in front of him. The National Labor Relations Board has continued to issue orders despite two federal court rulings forbidding it to do so. Attorney General Eric Holder says he will use a different section of the Voting Rights Act to impose requirements on Southern states that the Supreme Court ruled illegal. Mr. Obama’s repeated flouting of the judiciary and its decisions are undermining its institutional authority, as intended.

Clearly, Obama’s arrogance leads him to believe that a ruler is what we need, not a president.  And he’s up for that job, because it doesn’t brook interference and it doesn’t require leadership.  Tyranny is the the usual place people who couldn’t lead an alcoholic to a bar end up.  And we’re watching that happen now. 

Henninger ends his piece with a final, ironic quote:

"To ensure that no person or group would amass too much power, the founders established a government in which the powers to create, implement, and adjudicate laws were separated. Each branch of government is balanced by powers in the other two coequal branches." Source: The White House website of President Barack Obama.

Our Constitutional scholar is now involved in a process to wreck that balance and enhance executive powers to the point that he really doesn’t need Congress or the courts.  And a compliant media along will the left will do everything in their power to enable the transition.  Because their ideas and ideology would never pass the test of a real democracy and they have little chance of persuading the population to go along with them.  So imposition is truly the only route open.  That’s precisely what you’re going to see in Obama’s remaining years as president.  Executive imposition of his version of laws or, if you prefer, a brand of executive lawlessness unprecedented in our history.

But then, that’s what dictators do, isn’t it?

~McQ


Did Republicans cave to avoid the “nuclear option” in the Senate?

Jonathan Chait certainly thinks so:

Unlike the last time Democrats threatened to change the Senate rules, and backed down without winning anything, this time they won something important: They broke Senate Republicans’ ability to hold presidential appointments hostage. It’s a total victory for the Democrats.

In fact, Chait says the bottom line is this:

Democrats had proposed to change the Senate’s rules to prevent filibusters on executive branch nominations (but not to ban filibusters of legislation or judicial nominees). They’ve won.

However:

Republicans got one face-saving concession: Democrats have to pick new names for the NLRB. This became an issue because Obama tried to execute an end-run around Congress by appointing them to their positions when Congress was functionally, though not technically, in recess, and was struck down by the Republican-controlled D.C. circuit court.

You can obviously tell which side Chait comes down on if you didn’t know before.   The D.C. circuit court struck it down not because it is “Republican-controlled” but because the appointments were Constitutionally illegal. By the way, so did the Third circuit court.

But it leaves us with a very interesting question.  If the Democrats agreed to have two new appointments made to the NLRB, aren’t they at least tacitly admitting the current two appointments are illegal?  And if so, what does that make any rulings the current NLRB made during that time it was illegally constituted?  Common sense says those rulings should be invalidated, don’t you think?  And that’s what Cablevision is still asking.  It was one of the companies this illegally constituted board issued a ruling against:

“The role of Congress is to ensure a balanced NLRB and the Obama Administration bypassed Congress in order to stack the NLRB in favor of Big Labor. Two different federal courts — the D.C. Circuit and the Third Circuit — have established that the NLRB is illegally constituted and has no authority to take action. The NLRB continues to ignore these rulings, and we ask the Supreme Court to compel the NLRB to immediately halt its unlawful proceedings against Cablevision.”

Will anyone address this?  Will anyone actually take action to annul these rulings from an illegally constituted board? Or, as usual, will we see it ignored, the injustice shrugged off and the usual lack of accountability further enshrined in our political culture?

~McQ


Reid under pressure to use “nuclear option” to limit minority party power (update)

You remember the post I did about the presidential appointments to the NLRB that were deemed by all but the Democrats to be illegal?

Well, there’s a move afoot to use what is being referred to as the “nuclear option” to fix that.  The Washington Examiner explains:

Senate Democrats are considering invoking the so-called “nuclear option,” which would curb the minority party’s use of the filibuster and prevent Republicans from blocking presidential nominations.

Senate Majority Leader Harry Reid, D-Nev., signaled privately to President Obama that he may change Senate rules this month so it would take only 51 votes – instead of the current 60 – to approve judicial and executive branch nominees.

Democrats now control 55 Senate votes. Republicans have 45, but the GOP often still asserts itself by using the filibuster to keep nominations or legislation from coming to a vote.

Republicans charge that imposing the nuclear option would virtually eliminate the minority party’s chief means of keeping the majority in check and jeopardize any potential bipartisan agreements on top-priority legislation, including immigration reform, the budget and tax reform.

So, what would happen in the case of the NLRB appointments?  If Reid (who by the way, adamantly opposed such a rule change when he was in the minority and spoke eloquently  - well as eloquently as is possible for Harry Reid – about how it destroyed the rights of the minority) does this, then 51 Democrats will dutifully line up and “legalize” the NLRB without the minority party having had any voice in the matter.

That’s not how our republic was supposed to function.  In fact, our founders were just as adamant as Reid was previously about minority rights.  James Madison wrote in Federalist No. 10, “the great danger in republics is that the majority will not respect the rights of minority.” President Thomas Jeffersonproclaimed in his first inaugural address, “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.”

Reid, of course, now believes that to be poppycock.  Instead he’d prefer that the minority simply hush and let he and the Democrats appoint whomever they wish whenever they wish.  Of course, we all know how quickly his position would change should he suddenly become the minority leader again.  And that should tell you all you need to know about why this is a terrible idea and one that he nor the Democrats would stand for were they on the other side of the line.

But then, political expediency seems to trump statesmanship today and we’re all the worse for it.

UPDATE: Ah, the other shoe drops:

The Hill reports: “The nuclear option strategy is gaining momentum in the Senate in part because of growing pressure from organized labor, which wants Reid to break the impasse over the NLRB.  AFL-CIO President Richard Trumka … will call for rules changes at the Center for American Progress, a Democratic think tank, Wednesday morning.”

Payoff time.

~McQ


Congress? Who needs Congress? And the Constitution? Forget about it

That’s preciesly what this administration and president have done. Bypassed Congress and trashed the Constitution:

The employer mandate in the Affordable Care Act contains no provision allowing the president to suspend, delay or repeal it. Section 1513(d) states in no uncertain terms that “The amendments made by this section shall apply to months beginning after December 31, 2013.” Imagine the outcry if Mitt Romney had been elected president and simply refused to enforce the whole of ObamaCare.

This is not the first time Mr. Obama has suspended the operation of statutes by executive decree, but it is the most barefaced. In June of last year, for example, the administration stopped initiating deportation proceedings against some 800,000 illegal immigrants who came to the U.S. before age 16, lived here at least five years, and met a variety of other criteria. This was after Congress refused to enact the Dream Act, which would have allowed these individuals to stay in accordance with these conditions. Earlier in 2012, the president effectively replaced congressional requirements governing state compliance under the No Child Left Behind Act with new ones crafted by his administration.

The president defended his suspension of the immigration laws as an exercise of prosecutorial discretion. He defended his amending of No Child Left Behind as an exercise of authority in the statute to waive certain requirements. The administration has yet to offer a legal justification for last week’s suspension of the employer mandate.

There’s even talk of impeachment, although you know that will go nowhere (see my last post).  No one has the stomach to really enforce any rules up there and that goes for both sides.  But, as the Constitutional scholar that wrote the above points out, the Constitution pointedly charges the executive with “the faithful enforcement of the law”.  In fact it is his or her constitutional duty.

The Supreme Court has been pretty clear on this too.

Of all the stretches of executive power Americans have seen in the past few years, the president’s unilateral suspension of statutes may have the most disturbing long-term effects. As the Supreme Court said long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes passed by Congress “would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice.”

And that’s pretty much where this is headed.  We are being subjected to the arbitrary enforcement of law.  The rule of men.  In the case of the statutes for ObamaCare, it’s because of politics.  That’s why you hear no outraged voiced by Democrats.  They will benefit electorally by not having to face the uproar sure to come with it’s implementation should that happen before the 2014 midterms.  However, as noted above, if Mitt Romney had been elected and was the one doing this, Democrats would be squealing like stuck Constitutional hogs.

Another recent example of Obama’s arrogance is his “recess that wasn’t a recess” appointments to the National Labor Relations Board.  How can anyone have confidence in the rulings of the NLRB when it appears to have been illegally constituted – another arrogant example of ignoring the lines between executive and legislative power.  If a board is illegal, how are its rulings enforceable?

These are important questions that demand an answer.   Instead, they’re ignored, the corruption and arrogance grows and we’re subjected to arbitrary rule with no check.

If I’m not mistaken, we once based a revolution on those sorts of abuses.

~McQ


NLRB appointments indicative of Obama’s desire for executive rule

Here’s a story not getting much attention, but is indicative of how President Obama tends to use executive power when he can’t get his way with Congress.  Rule by executive fiat.

What am I talking about?  As you may recall, Obama made appointments to the National Labor Relations Board (NLRB) during a supposed Congressional recess.  Except it wasn’t really a recess.  Congress was not between sessions (that constitutes a recess), but was instead it was on an intrasession break, one of many Congress takes during any session.  Never have those been considered recesses of the type in which recess appointments could be legally made.

That is until this administration.  That’s precisely how the vacant slots on the NLRB were filled with Obama appointees.

Enter Cablevision.

Over the past year, Cablevision has been in the midst of a brutal public battle with the Communication Workers of America over pay for technicians and allegations of union-busting. In May, Cablevision sought the intervention of an appeals court to stay proceedings at the NLRB, and now, the company is hoping that the high court will take up the issue of the NLRB’s authority.

The point, of course, isn’t particularly about the dispute.  It’s one in a long line of management and labor disputes. The question is whether or not the NLRB is legally constituted given the way the appointments were made.  It’s about the rule of law.  When citizens see the government flout the law or ignore it, it doesn’t set a good precedent.  Yet that’s precisely what has happened in this case.

And that’s what Cablevision is questioning.  How is there legitimacy in an illegally appointed board?   And why, should their rulings be obeyed, given the circumstances of the board’s recent constitution. Here’s the point:

“The role of Congress is to ensure a balanced NLRB and the Obama Administration bypassed Congress in order to stack the NLRB in favor of Big Labor. Two different federal courts — the D.C. Circuit and the Third Circuit — have established that the NLRB is illegally constituted and has no authority to take action. The NLRB continues to ignore these rulings, and we ask the Supreme Court to compel the NLRB to immediately halt its unlawful proceedings against Cablevision.”

Shades of Hugo Chavez’s Venezuela – Chavez kept the institutions of a democracy, but he packed them with his loyal appointees that shared the same ideology and agenda.  With what has happened with the IRS and the EPA, etc, that’s not as big a stretch as one might imagine.

~McQ


Damn the facts and costs, full speed ahead

We often talk about how poorly we’re served by our political class.  The examples are legion (just take a gander at the “Gang of 8′s” travesty of an immigration bill).  But most puzzling about what they do is when there are real world examples of why what they propose is doomed to costly failure, they go ahead anyway.  Hubris?  Arrogance?  Ideology? A giant dollop of all?

Take Obama’s latest – his late entry into the climate change nonsense just as everyone else has realized it’s a costly boondoggle and are pulling out.  For example:

In May, Europe’s heads of state and government at the EU Summit promoted shale gas and reduced energy prices. They would rather promote competition than stop global warming.

Obama just returned from Northern Ireland at the G8 meeting where he evidently didn’t ask why the United Kingdom removed climate change from the agenda.

European carbon markets had collapsed with the price of carbon hitting record lows, wrecking the European Union’s trading scheme for industrial CO2 emissions.

British Gas owner Centrica was buying up shale gas drilling rights in Lancashire for fracking operations. Green investors faced bankruptcy as Spain cut subsidies even further.

Large German companies such as Siemens and Bosch abandoned the solar industry, which had lost them billions, while investments in failed solar companies, including Q-Cells and SolarWorld, destroyed 21 billion euros of capital.

In response, German Chancellor Angela Merkel told a June energy conference in Berlin to expect reduced government spending on energy like wind and solar power to keep Germany economically competitive. Europe’s clean energy economy had become a black hole eating euros.

Last week, Merkel’s government warned EU member states that German car makers would shut down production in their countries unless they support more affordable vehicle emissions rules.

At the same time, our oblivious president spoke at Berlin’s Brandenburg Gate, saying, “The United States will “do more,” before it’s “too late” to prevent “dangerous” global warming.

Yeah.  We’ll do “more”.  Meanwhile, everyone else has decided to do much less or … nothing.  And that “more” Obama is talking about?  Well, apparently it’s time to wreck another industry:

Myron Ebell, director of the Center for Energy and Environment at the Competitive Enterprise Institute, told me, “The centerpiece of President Obama’s climate plan is a declaration of all-out war on coal. The only affordable way to reduce emissions from existing coal-fired power plants – which now provide 40 percent of the nation’s electricity – is to close them down.”

Obama’s plan has political implications as well, Ebell said. “Coal dominates the heartland states that tend to vote Republican. Major industries are located there because coal produces cheap electricity. If electric rates go up to California levels in the heartland, where will American manufacturing go?”

Good question, no?  Answer: he doesn’t really care.  Seriously.  This is all about ideology.  Blinders on, facts ignored, examples discarded, it’s about legacy and “saving the world from itself” even if he has to do so autocratically.  Because, you know, that Constitution thingie just get’s in the way of good governance … or something.

~McQ


Common thread in all of these scandals? Abuse of power

That’s the conclusion Insty comes too in his USA Today column:

The NSA spying scandal goes deep, and the Obama administration’s only upside is that the furor over its poking into Americans’ private business on a wholesale basis will distract people from the furor over the use of the IRS and other federal agencies to target political enemies — and even donors to Republican causes — and the furor over the Benghazi screwup and subsequent lies (scapegoated filmmaker Nakoula is still in jail), the furor over the “Fast And Furious” gunrunning scandal that left literally scores of Mexicans dead, the scandal over the DOJ’s poking into phone records of journalists (and their parents), HHS Secretary Kathleen Sebelius’ shakedown of companies she regulates for “donations” to pay for ObamaCare implementation that Congress has refused to fund, the Pigford scandal where the Treasury Department’s “Judgment Fund” appears to have been raided for political purposes — well, it’s getting to where you need a scorecard to keep up.

But, in fact, there’s a common theme in all of these scandals: Abuse of power. And, what’s more, that abuse-of-power theme is what makes the NSA snooping story bigger than it otherwise would be. It all comes down to trust.

Anyone who, in fact, trusts government these days is simply not paying attention or is a part of it.  As Reynolds outlines above, each and every one of the scandals mentioned do, in some degree or another, involve an abuse of power.  And an abuse of power is always an abuse of trust.  This administration has been just about as abusive of both power and trust as any in our history.

What should bother you is they don’t seem to care.   To me that points to a culture that has come to accept the fact – at least in their world – that government is all powerful and can do no real wrong.  It’s “for the people”, after all, that they commit these abuses.  It is also in the name of “security” – that all-purpose reason to grind away at the freedoms we enjoy and put us under more and more government control.

One of those old dead white men who helped found this country saw the possibility of the latter long ago.  In fact, he’d seen it in his lifetime and had done all in his power to escape it and to build a system that wouldn’t tolerate the types of abuses of power we do today:

“The means of defense against foreign danger historically have become the instruments of tyranny at home.” – James Madison

Bottom line, we’re saddled with an arrogant and abusive, totally out of control goverment that badly needs reigning in.  The problem – we need statesmen who can do that.  And we all know where we are in that particular case. Without, that’s where. We’re stuck with self-serving politicians.

By the way, are we really any safer since the draconian security measures have been implemented?

Anonymous government sources quoted in news reports say yes, but we know that all that snooping didn’t catch the Tsarnaev brothers before they bombed the Boston Marathon — even though they made extensive use of email and the Internet, and even though Russian security officials had warned us that they were a threat. The snooping didn’t catch Major Nidal Hasan before he perpetrated the Fort Hood Massacre, though he should have been spotted easily enough. It didn’t, apparently, warn us of the Benghazi attacks — though perhaps it explains how administration flacks were able to find and scapegoat a YouTube filmmaker so quickly . But in terms of keeping us safe, the snooping doesn’t look so great.

And it remains “snooping” regardless whether it great or not.

Is this the the type of country in which we really want to live?  Where we’re afraid of our own shadow and our government to boot?

~McQ


More gun control “cognitive dissonance”

From The Hill, this paragraph concerning the brothers who perpetrated the Boston bombings:

The news that the suspects were not authorized to own firearms will likely add fuel to calls for tougher gun laws – an issue that was put on the back-burner last week after the Senate blocked the central elements of a gun-control package backed by President Obama.

A) I told you so … I said a few days ago that the defeat of the latest gun control legislation was only a set back and hardly the end of the left’s efforts to further restrict the right to own a firearm.  B) I also told you I feared the aftermath of the bombings.  And here we go.   And finally C) WTF?

It is clear that Massachusetts’ very strict gun control laws has no effect here. None.  Absolutely zero.  How many times and in how many ways must we say that scofflaws don’t obey laws?  How often does the “we ought to pass a law” crowd who think legislation and restriction is the answer to everything have to see that their way is a failure before they quit trying to take our freedoms away?

Gun control laws don’t work.  If they did, there’d be no criminals running around with “illegal” guns, would there?  There’d be no source of those guns if those laws worked.  But, in fact, criminals almost exclusively obtain “illegal” guns and/or completely ignore any gun control legislation.  Look at Chicago for heaven sake.  Some of the most restrictive gun control laws in America and criminals have all but made it a free-fire zone.

When will the left understand that the problem isn’t guns, it’s criminals?  How often does it have to be pointed out to them that criminals, by definition, don’t obey laws?  How will more legislation suddenly stop (or even deter) two determined people, like the Boston bombers, from illegally obtaining guns?  Harsher penalties?  Obviously they were willing to take the risk.  And that seems to be the case with all the other criminals who use guns in the commission of their crimes.

The only people that will be deterred and restricted by new gun control legislation are the law abiding.  And watch out for this – at the end of this road (or slippery slope if you prefer) is the rationalization that the only way to “control gun violence” is to completely outlaw guns.  It is the logical end of the left’s push for more and more restrictive gun legislation.  And, as they often do, they’re willing to spend the time, exploit and politicize tragedies and achieve incremental success in taking guns away.  It’s no different than ObamaCare.  That’s not the end of anything.  It is the first grab.  The end state, if you are a student of the left’s actions at all, is fully government run single-payer health care.  ObamaCare is just the beginning.  Once it fails, because government has, whether on purpose or inadvertently designed it to fail, government will blame “the market” and claim it is the solution.

It’s an old pattern being repeated, in a slightly different way, in the gun control saga.  One only has to harken to the era of prohibition (or not even that far back … how about drug laws?) to know that restrictive legislation doesn’t work, has never worked and will never work.

Violence and criminal behavior are the problems.  Passing all the laws in the world won’t change that.  As usual, government chooses to treat the symptoms and go after a tool rather than the actual problem.

If and when they finally find a way to ban all guns, run gun manufacturers out of the country and put more untold thousands of citizens in jail, they’ll be shocked, shocked I tell you, when gun violence continues and violence in general rises.

See the UK and Australia for case studies.

~McQ

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