Free Markets, Free People
Eric Posner wants us to understand that we “value” freedom of speech much too much. Because, after all, the rest of the world doesn’t see it the way we do, and thus, one gathers from his article, we should become more like them. In the title to his article he says we “overvalue” the right of freedom of speech. Here’s what the hoary whisper of oppression sounds like:
This is that Americans need to learn that the rest of the world—and not just Muslims—see no sense in the First Amendment. Even other Western nations take a more circumspect position on freedom of expression than we do, realizing that often free speech must yield to other values and the need for order. Our own history suggests that they might have a point.
He goes on to give examples of our history where government has been less than supportive of the right.
Notice what he values more than free speech? Order. I wish I had a dollar for every pop-gun totalitarian whose clarion call was for “order” over other rights.
You see one of the acknowledged problems with freedom is it’s messy. That’s right, people get to make choices you don’t agree with and, even more importantly, get to act on them without your permission.
That’s just too “messy” for some, like Posner. Instead we sh0uld voluntarily curtail our freedoms to placate mobs and murderers half a world away because they choose to become violent over something someone said.
Posner spends the rest of the article trying to defend his premise and sound reasonable. Interestingly it devolves into a secondary attack on conservatives who apparently use this wretched overvalued freedom to oppose such wonderful and valuable things like hate speech laws and political correctness.
Make no mistake about it, at bottom, this is an appeal for speech codes and legal remedy for speech those like Posner find to be “invaluable” for whatever reason – in this case “order”.
Putting this to the old libertarian test, i.e. “freedom = choice”, it flunks. It limits or removes choice in the face of mob violence half a world away. It gives in to people who chose to be violent.
Anyone with more than a day on this earth knows that such a move would only encourage more acting out by those mobs. They sack an embassy, we clamp down on our own rights. Any time they can dictate a limiting of our freedoms with their actions we essentially play right into their hand and they win. For some reason, those like Posner can’t see the dark hand of al Qaeda and other violent radical Islamic gangs behind this. And the first thing these cut-and-run cowards suggest we do is limit our freedoms to placate those who would willingly kill us if given the chance?
We’ve been told for some time that violent crime in America is actually at its lowest point since the 1970s.
But we’re also being told by a certain element that gun deaths are out of hand and we need to reconsider tightening our gun laws.
So lets take one of those “perspective” looks shall we?
First a chart that takes us through 2004 showing murders by firearms:
As an aside, the Assault Weapons ban was in effect from 1994 to 2004. Assault weapons would be found under “other guns”. You’ll note that “other methods” and knives, for the most part, were involved in more murders than “assault weapons” (further note that not all “other guns” were “Assault Weapons”, but may have been hunting rifles or shotguns). Rifles of any sort just aren’t the usual weapon of choice for murders.
Also note that murders of all types have been trending down over the years. If you hit the link in the first sentence, it will show you that in 2004 the number of violent crimes per 100,000 was 463.2 and in 2010 it had fallen to 403.6.
If you add handguns and “other guns” from the chart in 2004, you see approximately 10,500 to 11,000 murders by firearms.
The most recent FBI figures show just 358 of the 8,775 murders by firearm in 2010 involved rifles of any type.
By the way, the article that was pulled from noted that in 2010, more people were beaten to death by fists (758) than were killed by “other guns”, aka rifles of any sort.
Michael Wade does the math:
So, based on these two sites (http://wiki.answers.com/Q/How_many_households_are_in_the_US)(http://www.gallup.com/poll/150353/self-reported-gun-ownership-highest-1993.aspx) there were approximately 115 million households in 2010, and between 41% and 49% (depending on how you do the numbers) had firearms in them.
That’s a minimum of 57.5 million arms (if we assume one firearm per household, which we know isn’t even close to the right number).
If we then assume that each of the 8,775 murders was committed by a separate firearm from a different household each time (again, an assumption we know is wrong but increases the number of households involved), then approximately 0.015% of American households who owned guns were involved with murder by firearm in 2010.
Again, these assumptions make that percentage much higher than it actually is since (a) undoubtedly more households have firearms but don’t report them, (b) households with firearms will typically have more than just one, and may have several, (c) one firearm likely accounted for more than one of the 8,775 murders, and (d) the vast majority of the murders were likely committed with firearms that were illegally possessed!
Even so, slightly more than one one-thousandth of one percent of gun owners is the highest amount you are going to be able to implicate in murder by firearm, despite all the generous assumptions made in favor of the gun control side.
That does not speak to a winning argument IMHO.
No it sure doesn’t, not that they won’t try anyway. Additionally, when you do the math about chances of being a victim of firearm murder, the figure 312.8 million is what you need to divide into the 8,775 yielding a terrifying 0.000028% chance of being a victim of a firearm murder in 2010 (if you’re a gambler, though, move to Chicago and you can quickly reduce the odds).
In fact, you’re much more likely to die from one of these causes than a gunshot murder:
Chance of dying from any kind of injury during the next year: 1 in 1,820
Chance of dying from intentional self-harm: 1 in 9,380
Chance of dying from an assault: 1 in 16,421
Chance of dying from a car accident: 1 in 18,585
Chance of dying from any kind of fall: 1 in 20,666
Chance of dying from accidental drowning: 1 in 79,065
Chance of dying from exposure to smoke, fire, and flames: 1 in 81,524
Chance of dying in an explosion: 1 in 107,787
Life is perilous, but for the most part, not because of guns.
As someone recently said, we don’t need gun control, we need idiot control. Not sure how we control the idiots, but I’m sympathetic to the idea. Statistically though, the number of firearm murders per year simply doesn’t justify any renewed call for banning or restricting the sale or possession of firearms.
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.
Frankly, I think Chick-fil-A has jumped the shark by taking a position at all on a social issue. The purpose of their business, I assume, is to sell sandwiches.
However, they have taken one and it is controversial.
Viva la free speech. Welcome to America.
What is just as controversial however, are government entities deciding to take action based on the company’s exercise of its right to free speech.
This is where I totally disagree. This is none of any government’s business. None.
I think Mike Krempasky has it just about right, and this is one of those “let’s put the shoe on the other foot” moments where you have to do a little thinking about how you’d react if such a thing was done to an entity which said something you agree with:
For those of you cheering the mayors of Boston and Chicago for taking such a courageous stance against the creeping horde of Chick-fil-A stores because of the speech and beliefs of its leadership – WHAT THE H#!! IS WRONG WITH YOU?
I presume you’d be outraged and maybe even scared of your government if some arch-conservative mayor or city manager just declared that Ben and Jerry’s stores would no longer be granted building permits.
I’m sure you’d head to the barricades if a governor of state decided that only Republicans or only Democrats were allowed to operate businesses in that state just because of how the voters choose politicians.
If *you* don’t like the values of a company, than *you* shouldn’t shop there. And then you should spend your energy, attention, and yes – money (yay Citizens United!) to encourage your friends and community not to shop there. But enlisting the help of government to punish your competitors, your enemies, or even just those you find distasteful? Rewarding the politicians willing do so so? Might as well just start distributing Little Red Books.
I disagree with the Chick-fil-A stance (and from a business standpoint, find it abysmally stupid, but hey, it is their company and in a free society, they, like Ben and Jerry’s, are free to do stupid things). As Mike points out, I disagree with much of what the owners of Ben and Jerry’s have publicly said. I also have the ability to do something about that and have. Because, the right to free speech doesn’t mean there aren’t consequences. It just means government can’t levy them.
One thing I have never done nor would ever condone is government action or intervention –at any level – in reaction to a social stance by a business. Instead, I have simply never, ever knowingly put a spoonful of Ben and Jerry’s ice cream in my mouth nor bought a single ounce of it. I’ll most likely punish Chick-fil-A the same way. There are lots of choices out there.
But government at any level has no business at all involved in this – none – and anyone who says they should be involved has got to realize the ramifications of such a demand. It could, at some point, be used against some business you support. And you wouldn’t have a moral or ethical leg to stand on in protest against such action.
Freedom of speech is there to protect the speaker from government. Its biggest test comes with speech we don’t agree with.
In the case of Chick-fil-A the calls for government action (and the threats by government against the business) are in contravention of that right and fail that test.
Those calling for government action against speech they don’t agree with be should be ashamed.
My how things change over the course of 200+ years.
Back at the beginning of this experiment, people rejected a large and intrusive government. They’d been the victims of one and threw off that yoke. They acclaimed freedom as their goal and chose liberty as their battle cry.
When they finally got around to forming their own government, they carefully wrote a document which I’m sure they figured was an iron-clad guarantee that this country’s future would never see the same sort of tyranny they’d suffered under.
I just wonder what they’d think of this sprawling, debt ridden and intrusive mess we have now? I wonder what they’d think of over half the population getting some sort of compensation from government.
I wonder what they’d think of a Supreme Court Chief Justice more worried about what they’ll say about him and the court on the cocktail circuit and in the media than he is about upholding the Constitution, his sworn duty. I think I know.
And I’m pretty sure I know what they’d think of this:
Our nation’s current debt, nearing $16 trillion, and our annual budget deficit of $1.2 trillion, indicate that our government’s addiction to spending is nowhere near its limit.
Of that $16 trillion debt, the U.S. owes more than $5 trillion to foreign nations, an all-time high. So much for independence. We’re now a debtor nation, and unless we get our fiscal house in order, that debt will endanger our nation’s prospects for long-term growth.
If that sounds alarmist, consider this: In August 2011, Vice President Joe Biden visited China. This wasn’t just any diplomatic visit — it was the supplication of a debtor, in which Biden undertook to reassure our Chinese debtors that their investment is sound.
Biden assured his hosts that they had "nothing to worry about" when it comes to the U.S. honoring its obligations. It wasn’t the first time a high-ranking U.S. official has had to offer soothing words to our creditors, and at this rate it won’t be the last.
Let’s be clear. This administration isn’t the cause of all that debt. It’s just the latest (and the worst) to add to it, to the point that our debt now stands at more than our GDP. We are indeed a debtor nation.
That’s not at all how this began is it? Nor was that ever the plan.
I’m also pretty sure I know how they’d feel about the level of intrusion government now routinely practices (and increases) in this country. For example:
IRS officials on background tell FOX Business the U.S. Supreme Court ruling on health reform gives the IRS even more powers than previously understood.
The IRS now gets to know about a small business’s entire payroll, the level of their insurance coverage — and it gets to know the income of not just the primary breadwinner in your house, but your entire family’s income, in order to assess/collect the mandated tax.
Plus, it gets to share your personal info with all sorts of government agencies, insurance companies and employers.
And that’s just the tip of the iceberg. "We expect even more lien and levy powers," an IRS official says. Even the Taxpayer Advocate is deeply concerned.
As government takes more and more control of your lives, it intrudes deeper and deeper into them:
The TAO [Taxpayer Advocate Office] says that the “IRS will need to determine a taxpayer’s compliance with the individual [insurance] mandate and assess a penalty if coverage is inadequate.”
However, the penalty isn’t based on just your personal net income. The penalty will be based on an entirely different number that is more than just your paycheck earnings — your ‘household income.’
“This determination is based on a concept of ‘household income,’” TAO has said, adding, “this may differ from the income reported on the taxpayer’s return, because it is a composite of all of the income reported by members of a taxpayer’s household — information that may not be readily accessible to the IRS."
If the IRS finds you have fallen short of the law, it would hit you with a penalty tied to your household income (which may be that of an individual or several family members).
Under the new health law, the IRS penalty would be based on “modified adjusted gross income,” not adjusted gross income that you normally report at the bottom of the first page of your tax form 1040, before you take deductions or personal exemptions.
The modifications add back in things like non-taxable interest and excluded foreign income to this number.
Health reform’s insurance mandate says if you do not have “adequate” insurance, you’ll have to pay a fine as part of your tax return. If your business doesn’t provide “affordable” coverage, that business may have to pay a fine to the IRS, too, as part of its tax return filings.
The TAO has noted Americans must now tell the IRS under the new law:
*Insurance plan information, including who is covered under the plan and the dates of coverage;
*The costs of your family’s health insurance plans;
*Whether a taxpayer had an offer of employer-sponsored health insurance;
*The cost of employer-sponsored insurance;
*Whether a taxpayer received a premium tax credit; and
*Whether a taxpayer has an exemption from the individual responsibility requirement.
The TAO has warned: “This is different from the type of information the IRS typically deals with, and some taxpayers may feel uncomfortable about sharing it with the IRS.”
In fact, it is incumbent upon you to prove to the IRS that you have “adequate coverage”, whatever that ends up meaning. And:
The TAO has also reported that “obtaining this new information will require the IRS to communicate with entities and government agencies that it may not deal with now,” including:
*New state-run insurance exchanges;
*Insurance companies; and
*Government insurance programs.
But remember the sales pitch – government will make health care simpler, more cost effective and better.
Congratulations to all the simpletons out there who bought into this scam and ended up foisting this intrusive monstrosity on the rest of us. In fact, thanks to all, who through out the 200 years it has taken us to to get to this point, worked so hard to achieve it “for the common good”. </sarc> Nice mess you’ve given us.
As for the rest of you, happy Dependence day!
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.
George Will has a column out today declaring that conservatism won “a substantial victory” yesterday:
Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional rationale for the mandate — Congress’s rationale — that was pregnant with rampant statism.
The case challenged the court to fashion a judicially administrable principle that limits Congress’s power to act on the mere pretense of regulating interstate commerce. At least Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance:
“The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”
If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”
The court held that the mandate is constitutional only because Congress could have identified its enforcement penalty as a tax. The court thereby guaranteed that the argument ignited by the mandate will continue as the principal fault line in our polity.
I’m sorry, I’m just not feeling it. What part of the “tax” isn’t “pregnant with rampant statism”? Why did John Roberts feel compelled to save the mandate by helping the administration identify it as a tax?
And more importantly, since when did taxation go from simply being a means for funding the functions of government to a means of incentivizing/controlling behavior? To me that’s what approving the mandate as a tax has sanctioned. We make fun of the nannies who want to control what we do, eat, say, etc. This precedent just sanctioned a method of doing so. It says it is okay to coerce desired behavior through taxation.
Perhaps, as Will opines, it will limit the Commerce clause which is already insanely overstretched in application. Maybe it finally does draw a much brighter line around the clause, at least marginally.
However, the downside is worse than any upside. The ruling essentially sanctioned the state’s requirement to purchase health insurance and gave it the okay to “tax” those who don’t comply. I’m sorry, you may want to play the word game with them and call it a tax, but it is clearly identifiable to me as a penalty.
That’s just wrong.
One of the more interesting ironies is that within the same ruling the Court found that the Federal government was being coercive toward the states by requiring they comply with the new Medicaid mandates or lose their current Medicaid funding.
How is that anymore coercive than the “tax” required to be paid if an individual decides not to purchase health care insurance?
Taxation as a mechanism of control and/or enforcement of desired behavior is as coercive as the part on Medicaid which was struck down by the court. At least in my opinion.
There may indeed be a silver lining in the ruling as Will outlines. But a “substantial victory”? It sounds like David Axlerod trying to spin the Wisconsin results as a huge win for Obama and trouble for Romney, doesn’t it? If this was a “substantial victory”, then so was Pearl Harbor.
Just some random thoughts as we await the Supreme Court ruling on healthcare.
I can’t help thinking the title is precisely what is on the line today. Given the implications of upholding that odious law, I can’t help but feel this is indeed the most momentous decision in my lifetime. Oh, certainly, there have been many other important ones, to be sure, but never one that had the potential, at least as I see it, to give government carte blanc to expand and intrude into my life.
I’ve said it often, liberty (freedom) equals choice. Today’s decision will either uphold our ability to make individual choices (to include not having health insurance for whatever reason) in our lives or limit them – severely.
You know, when I was a kid I had to read the Constitution. I didn’t find it either difficult to read or understand. Yet since then, we’ve seen veritable oceans of words telling us what we read and the common understanding of what those words in the Constitution mean isn’t what they really mean. And the way the Constitution is treated by our politicians is simply shameful (and that applies to both sides).
It has also been ironic to me to see the “living Constitution” crowd whine and complain that the SCOTUS may be overturning “years of precedent”. That’s a true traditionalist argument. In fact, though, if it does strike down the mandate, then it will be a traditionalist ruling.
I’m not sure how the left will reconcile that without their heads exploding.
I’m also convinced that even if overturned, either partially or completely, this is only the beginning of the fight to have government take over health care. Next step? Single payer.
In fact, there are probably many on the left who actually hope this monstrosity will be overturned so they can proceed to what has always been the extreme left’s dream – single payer, government run health care. And, of course, Medicare provides precedence for that, doesn’t it.
So as we sit here waiting and hoping, it might behoove us to consider that even if the decision goes as we hope it will go, spiking the ball will be premature.
A ruling against the law won’t signal the end of this fight. I’m afraid it will only signal the end of round 1 of a multi-round championship fight.
Whatever the ruling, I worry for our country.
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.
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
homeabroad 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”.
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.
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.
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.