Free Markets, Free People

IRS


The (potential) unravelling of ObamaCare

In the DC Circuit this week:

The U.S. Court of Appeals for the D.C. Circuit delivered a huge blow to Obamacare this morning, ruling that the insurance subsidies granted through the federally run health exchange, which covered 36 states for the first open enrollment period, are not allowed by the law.

The highly anticipated opinion in the case of Jacqueline Halbig v. Sylvia Mathews Burwell reversed a lower court ruling finding that federally run exchanges did have the authority to disburse subsidies.

Today’s ruling vacates the Internal Revenue Service (IRS) regulation allowing the federal exchanges to give subsidies. The large majority of individuals, about 86 percent, in the federal exchange system received subsidies, and in those cases the subsidies covered about 76 percent of the premium on average.

The essence of the court’s ruling is that, according to the law, those subsidies are illegal. They were always illegal, and the administration never had the authority to offer them. (According to an administration official, however, the subsidies will continue to flow throughout the appeals process.)

Don’t get to excited about this yet.  It was a 3 judge panel. And it will likely go to the Supreme Court. Finally, in a different Circuit (4th) a ruling says the subsidies are legal:

A different circuit court ruled today that subsidies offered through federally run exchanges are authorized on the law. This creates a circuit court split, which increases, but does not guarantee, the chances of an eventual hearing by the Supreme Court. It is also possible, and arguably even more likely, that the circuit split will be dealt with via en banc review.

Bottom line: a heavy shot across the bow of the sinking ship ObamaCare.  If the DC Circuit finding survives the review and an appeal to the Supreme Court, then foundering ship will take the next shot below the water line.  As for the law, it’s not going to get changed anytime soon with a Republican House.

As for the law, the DC Court said it was pretty clear to them:

“We conclude that appellants have the better of the argument: a federal Exchange is not an ‘Exchange established by the State,’ and [the relevant section of the law] does not authorize the IRS to provide tax credits for insurance purchased on federal Exchanges,” the decision says.

The law “plainly makes subsidies available only on Exchanges established by states,” the ruling says. “And in the absence of any contrary indications, that text is conclusive evidence of Congress’s intent. To hold otherwise would be to say that enacted legislation, on its own, does not command our respect—an utterly untenable proposition.”

Plain law, literally interpreted and applied.  Certainly not what we’re used too.  So let’s see how convoluted this gets moving up the line.  My guess is it will be unrecognizable after the lawyers begin to redefine terms and words and make their arguments.  By the end of it, it wouldn’t surprise me in the least to learn that “federal exchanges” now means whatever the IRS wants it to mean.  But clearly, the way to kill this monstrosity is to starve it.  And the way you starve it is to defund it … even if you have to do it bit by bit.

~McQ


Time to put the IRS back in its place

This should be interesting:

A federal judge has ordered the IRS to explain “under oath” how the agency lost a trove of emails from the official at the heart of the Tea Party targeting scandal.

U.S. District Judge Emmet G. Sullivan gave the tax agency 30 days to file a declaration by an “appropriate official” to address the computer issues with ex-official Lois Lerner.

The decision came Thursday as part of a Freedom of Information Act lawsuit by conservative watchdog group Judicial Watch, which along with GOP lawmakers on Capitol Hill has questioned how the IRS lost the emails and, in some cases, had no apparent way to retrieve them.

The IRS first acknowledged it lost the emails in a letter to senators last month.

“In our view, there has been a cover-up that has been going on,” Judicial Watch President Tom Fitton said. “The Department of Justice, the IRS, had an obligation, an absolute obligation … to alert the court and alert Judicial Watch as soon as they knew when these records were supposedly lost.”

This isn’t Congress we’re talking about here.  Dissembling “under oath” in a Federal Court has (or at least used to have) severe consequences.  That ass that is the director of the IRS won’t be able to play his arrogant games this time.  And, his agency will actually have to have a plausible explanation and proof instead of hand-waves and fake outrage at the questions asked and answers demanded.

As polls have demonstrated, almost no one in the country believes the IRS’s convenient explanations – convenient for them.  And, as others have pointed out, they were in violation of the law when they didn’t archive all correspondence pending lawsuits they were involved in.  This wasn’t just some “slip up”.  The IRS knows what its legal responsibilities are and have exercised them in the past.  Their legal department knew that they were required, under the law, to ensure all internal correspondence was available.

This isn’t about a couple of “rogue agents in Cincinnati”.  This is about a rogue agency … period.  Time to bring it under control again and for once, figuratively speaking, seeing some bureaucratic heads roll.

~McQ


Is it finally Obama’s turn “under the bus?”

As the crisis at our southern border continues to stagger on, a recent IBD/TIPP poll found that a majority of Americans hold President Obama and his administration responsible for the problem:

The public largely blames President Obama for the flood of children who have poured over the border in recent weeks, creating a growing humanitarian crisis, according to the latest IBD/TIPP Poll released Monday.

[...]

The poll found that 59% of those closely following the immigration crisis agree that “current administration policies and lack of focus on securing the border” are behind the human tide of illegal crossings. Six in 10 say that the children should be ordered to leave the country. (The survey found that 73% of Americans are following this story closely.)

The responsibility for the border crisis is one Obama can’t duck or deny – it is a crisis of his own making.  His refusal to enforce the laws of the land and his permissive policies and rhetoric all but invited this to happen.  Now that it has, he’s “frustrated” with Congress – his personal candidate for being tossed under the blame bus, and is asking for 2 billion in emergency funds to address the crisis he created.  As you can see, most Americans aren’t buying the White House spin.

He doesn’t get a pass on Iraq either.  Per the poll, 56% believe his decision to withdraw troops in 2011 had a direct bearing on the crisis there today.

What’s more, 55% say that Obama wasn’t being honest when he claimed that Iraq Prime Minister Nouri al-Maliki was entirely responsible for the decision to bring the troops home.

Meanwhile, 55% say that the administration’s failure to contain the Syria conflict contributed to the rise of the militant forces in Iraq. Just 27% give Obama high marks for his handling of the Iraq situation.

Finally, the IRS scandal is considered anything but a “phony scandal” by the public:

The IBD/TIPP poll found that 65% believe that the lost IRS emails are an attempt by the administration to “hide evidence that the IRS deliberately targeted conservative groups” prior to the 2012 presidential election.

The lost emails are the latest twist in a more than year-long saga that erupted when an inspector general report detailed how the IRS held up Tea Party groups’ applications for tax-exempt status before the 2012 elections.

[...]

Obama dismissed the IRS scandal earlier this year, saying there was not “even a smidgen of corruption.” Congressional Democrats argue that the IRS wasn’t singling out right-wing groups.

Those defenses aren’t flying with most Americans who’ve been tracking this story. Among independents, 66% think the lost emails were an attempt to cover up wrongdoing. Even 36% of Democrats say it was a cover-up.

These are three very hot topics that Americans are following  closely and a majority doesn’t believe the administration’s side of the story.  As Mr. Obama’s favorite preacher would say, it appears as if the Obama chickens “are coming home to roost”.

~McQ


The bureaucratic state

While the enemies of freedom certainly are made up of politicians who would limit or take away your freedom, probably the most insidious of those enemies is the bureaucrat. As we’ve seen for decades, politicians come and go, but bureaucracies run the day to day machine of government. And as we’re seeing right now with the IRS, they’re both unelected and unaccountable, despite the volume of the outrage.

But remember, on the political side of this, one of the goals of the current administration was to help us believe that “big government” was a good thing … much better for many things than the private markets out there. One of the goals of ObamaCare was to take a giant step toward fully government run, single payer health care. But we’ve been feeding you stories for years about how badly the UK’s NHS performs and we’ve also pointed out that theirs isn’t an “exception” to the rule. If there is a rule, it is the rule of bureaucracies which says they exist to expand and protect themselves and really don’t much care about the original mission, in terms of performance. However, they’ll do just about anything to protect themselves. As I pointed out yesterday, the IRS director has committed himself to one of the most improbable stories about the fate of Lois Lerner’s emails since Bill Clinton uttered his infamous “I didn’t have sex with that woman …”. Everyone in the room knew he had. Everyone. And everyone in the Congressional hearing, including the witness, knew that his excuse for the loss of those emails was bogus.

Back to the point about “big government” being the best way to go and the liberal wet dream of government run health care (single payer) becoming reality. If, in fact, we want the American version of the NHS, we simply need to look at the only government run health care system in the America – VA (yes, I realize the military also runs a “single payer” system, but it isn’t set up for long care, etc – it’s a necessity that goes with the job). And what do we find in VA? Well check this out and tell me it doesn’t remind you of some of the horror stories you’ve seen from NHS. As you’ll see, it could very well be the NHS. As you’ll also see, the fault lies where? With the uncaring bureaucracy that has grown up around this system and its abuses are now coming to light:

Two psychiatric patients at a veterans facility in Brockton received no regular evaluations of their condition for years, part of a “troubling pattern of deficient patient care” that federal investigators say they have confirmed at veterans health care facilities nationwide.

One of the neglected patients at the Brockton Community Living Center who had been admitted for “significant and chronic mental health issues” was living in the 106-bed facility for eight years before he received his first psychiatric evaluation, investigators reported.

The other unidentified patient, although he was classified as 100 percent mentally disabled due to his military service, had only a single “psychiatric note” placed in his medical file between 2005 and 2013.

Let me make a prediction – as they get more and more into this, they’ll find this is just the proverbial “tip of the iceberg”. Of course, making such a prediction is certainly no high-risk venture.  Just look around you and take a gander at how well Leviathan is doing on almost any front.  Let’s just say “poorly” would be a compliment.  Justice?  Trashed.  Political influence of agencies?  See IRS.  See the misnamed Justice Department.  Bureaucratic overreach – see EPA and others.  Criminal incompetence?  See VA.   Etc.

Americans are going to have to make a choice and they’re going to have to make it quickly.  The bureaucratic state or the state of freedom.  Some would argue that we’re at the tipping point.  Some argue we’re beyond it.  That we’re looking at our future and the future is all down hill as the bureaucratic state transitions from servant to master.  Unelected, unaccountable and, frankly, uncaring – except to further its existence.

~McQ


Bald faced lies are okay if you’re from the government

The arrogant jerk that is the commissioner of the IRS typifies the type person who hasn’t and never will understand the term ‘public servant’.  He’s a bureaucrat, through and through, and he runs an agency which would never accept the asinine answer to the lost emails that he’s proffered to Congress. But he expects you to accept it without question because, well, because he said so.

Anyone with the IQ of a tea cup knows that emails don’t just reside on “hard drives”. They know that servers are involved. And competent companies and bureaucracies use systems that are redundant and back each other up (like RAID). No company OR agency of any size or worth would be without such a system.

But the arrogant prick that is the director of the IRS sits smugly before Congress and takes offense at being called a liar when he puts the excuse forward that he has. John Hideraker over at PowerLine points out something that you might not have known:

It has emerged over the last few days that at the time of Lois Lerner’s hard drive crash, the IRS had a contract with a company called Sonasoft (“Email archiving done right.”) Sonasoft promoted its relationship with the IRS in 2009: “If the IRS uses Sonasoft products to backup their servers why wouldn’t you choose them to protect your servers?”

So why doesn’t that solve the problem of the missing IRS emails? Because the IRS canceled its contract with Sonasoft in September 2011, a couple of months after Lerner’s hard drive crash. Everyone seems to assume that Sonasoft would have deleted whatever information it had gotten from the IRS at that time. That is certainly a logical assumption; in fact, it would make sense to require Sonasoft to get rid of any customer’s data once the business relationship ends. But it wouldn’t hurt for a House committee to lay a subpoena on Sonasoft to learn more about the IRS’s dealings with that company and make certain that it doesn’t still have any IRS records.

Two observations about the Sonasoft story: first, the IRS’s cancellation of the Sonasoft contract occurred in the context of a $1.8 billion annual budget for information services, plus $330 million annually for “business systems modernization.” All of that, and the IRS couldn’t afford an email archiving service? Not only that, it had to recycle its backup tapes to save money? Ridiculous.

Sure is convenient though, isn’t it?

An analogy as to how outrageous and unbelievable this all is comes from Kyle Smith:

To understand the latest outrage in the IRS scandal, mull over what might happen if regulators found significant evidence to implicate Goldman Sachs CEO Lloyd Blankfein in an insider trading scheme.

Let’s say Blankfein asserted his Fifth Amendment right not to answer any questions. Say Goldman was subpoenaed to provide all of Blankfein’s e-mails. Goldman replied that, instead of complying with the subpoena, it was itself reviewing the e-mails in question and was considering which ones to release.

Now imagine that, nearly a year later, Goldman admitted that it had not, in fact, reviewed the e-mails in question, because they had been lost in a computer crash two months before it claimed to be reviewing them. Imagine Goldman also said copies of the e-mails were lost, because while under subpoena it had destroyed the “backup tapes” (whatever those are) that held them and that it had also thrown away Blankfein’s actual hard drive.

The thing about dogs eating homework is, it could actually happen. This can’t. . . . Lerner wouldn’t have pleaded the Fifth unless she had reason to believe that there was potential illegality and it could be tied to her.

This is in-your-face corruption. This is a bureaucracy saying “screw you” and smugly looking on as you voice your outrage knowing full well nothing will happen to them. Unaccountable and unrepentant … the true face of big government.

~McQ


The pathetic bias of the New York Times, summarized in two pics

(This screen cap done at 9:00 AM CST 15 June, 2014)

We’ve known that the New York Times has been part of the palace guard for Democrats for quite a while.* But this is a new low.

If 18 minutes of lost taped conversations in Nixon’s White House is good for weeks of coverage, surely close to two years of lost emails from someone accused targeting the president’s political opponents is even more important.

The story has been on the networks’ web sites since Friday (NBC, CBS, Fox) plus outlets like Forbes, the Fiscal Times, and lots of others. Given that, no serious, objective media outlet would ever ignore the lost IRS email story for two days, and leave it out of their biggest edition of the week. Not the “paper of record”. Not the publication that brags it contains “all the news that’s fit to print”.

But that’s exactly what the Times has done.

The Washington Post is marginally better. No front page story, as the story manifestly deserves. No original reporting, even though the story is in their own backyard. But they do have a couple of Associated Press reports in two sections Politics and Business (yeah, Business – I don’t get it either).

If you still think the Times and Post have not chosen sides politically, then you are a willfully blind, naive fool.

 

*Occasionally a decent article slips through, or perhaps is done as camouflage to bolster the idea that they are serious objective journalists. They stopped fooling anyone connected to reality quite a while back.


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.


Give government power and they’ll abuse it: Part II

Well, well, well … here’s a surprise!  Not!

Remember the post the other day about how the DEA was “recreating the investigative trail” to hide where they got some of their initial info (you know, the newest euphemism for lying)?

As with most of these sorts of stories, it apparently only exposed the tip of the proverbial iceberg:

Details of a U.S. Drug Enforcement Administration program that feeds tips to federal agents and then instructs them to alter the investigative trail were published in a manual used by agents of the Internal Revenue Service for two years.

The practice of recreating the investigative trail, highly criticized by former prosecutors and defense lawyers after Reuters reported it this week, is now under review by the Justice Department. Two high-profile Republicans have also raised questions about the procedure.

A 350-word entry in the Internal Revenue Manual instructed agents of the U.S. tax agency to omit any reference to tips supplied by the DEA’s Special Operations Division, especially from affidavits, court proceedings or investigative files. The entry was published and posted online in 2005 and 2006, and was removed in early 2007. The IRS is among two dozen arms of the government working with the Special Operations Division, including the Federal Bureau of Investigation, the National Security Agency and the Central Intelligence Agency.

So … it could even go deeper, no?  And of course, this just adds more mud to the IRS’s already mud-spattered reputation.

Show of hands … how many would be shocked, shocked I tell you to learn that the FBI, CIA, NSA and a myriad of other alphabet soup Federal agencies were doing this as well? 

For those not raising your hand, naïve doesn’t even begin to cover it.

~McQ


IRS scandal cover-up begins to unravel

The IRS scandal took on new impetus today with a interesting revelation:

Top IRS officials in Washington, D.C. planned and oversaw the agency’s improper targeting of conservative groups, according to the 72-year old retiring IRS lawyer who will testify Thursday before the House Oversight Committee.

Retiring IRS lawyer Carter C. Hull implicated the IRS Chief Counsel’s office, headed by Obama appointee William J. Wilkins, and Lois Lerner, the embattled head of the IRS’ exempt organizations office, in the IRS targeting scandal and made clear that the targeting started in Washington, according to leaked interviews that Hull granted to the Oversight Committee in advance of Thursday’s hearing.

Treasury Inspector General J. Russell George will return to Republican chairman Darrell Issa’s committee Thursday along with two central characters in the IRS saga: Hull and Cincinnati-based IRS employee Elizabeth Hofacre, who previously gave Hull’s name to congressional investigators, fingering him as her Washington-based supervisor.

Yup, the rats are deserting the sinking ship.  They are certainly not willing to go down with it and so they’re naming names.  And contrary to all the claims previously, it seems that Washington D.C. was indeed involved and not just a “couple of rogue agents in Cincinnati” as we were told in the beginning.

It’s usually never the crime itself that hangs politicians, but the attempted (and ham-fisted) cover-up.  And that’s precisely what this is beginning to look like.  As for being “ham-fisted”, is there anything this administration does that isn’t ham-fisted?

~McQ

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