Tag: congress

Boehner Out

John Boehner is apparently resigning from Congress and stepping down as Speaker. I’ll most more as events warrant. We’ll have to see what the GOP does. I know a lot of people don’t like Boehner because he didn’t have enough government- and party-wrecking confrontations. He’s has had a delicate balancing act over the last few years. But I think he’s gotten a reasonable amount done with a Democratic President in charge. If the GOP goes with someone crazy — a non-zero possibility — that’s all the more reason to be nervous about a unified Republican government. Hopefully they’ll go with someone like Paul Ryan.

Governing is the art of the possible. Boehner wasn’t perfect but he found things to do that were possible. We’ll have to see if the next speaker is interested in that or is interesting in making big dramatic gestures that accomplish nothing (e.g., the recent effort to defund Planned Parenthood which was apparently part of the impetus for Boehner’s resignation).

The IRS Lies, Steals, Extorts

Why do we need to outlaw asset forfeiture without trial? Why do we need to abolish structuring laws? Why do we need to burn the IRS down and salt the Earth?

This is why:

Last October, in response to the outrage provoked by “structuring” cases in which the government took people’s money because their bank deposits were too small, the IRS said it would no longer do that unless there was evidence that the money came from an illegal source. In March the Justice Department announced a similar policy for seizures based on structuring, which entails making deposits of less than $10,000 with the intent of evading bank reporting requirements. Yet both the IRS and the DOJ are continuing to pursue the forfeiture of $107,000 that belongs to Lyndon McLellan, the owner of a convenience store in rural North Carolina, based on nothing but suspicion of structuring.

As in other structuring cases, McLellan lost his money because of well-intentioned but bad advice from a bank teller. The teller told McLellan’s niece, who usually handled L&M Convenience Mart’s deposits, she could save the bank burdensome paperwork by keeping the deposits below $10,000, the reporting threshold. Based on the resulting pattern of deposits, the IRS cleaned out McLellan’s bank account a year ago, even though there was no evidence that the money came from anything other than his perfectly legal business, which combines a store with a gas station and restaurant. The Institute for Justice, which is suing the IRS and the DOJ on McLellan’s behalf, notes that “the government filed its forfeiture complaint in December 2014, two months after the IRS announced it would not forfeit money in cases like this one.”

Reminder: when Elliot Spitzer, who had prosecuted people for structuring, structured payments to his madam to avoid detection, he wasn’t punished at all. This law is frequently applied to people who can’t afford to fight it or make a ruckus. The only reason McLellan can fight this is because the IJ — one of the more singularly awesome organizations in the country — is fighting on his behalf.

It gets worse. North Carolina congressman George Holding grilled the IRS commissioner about this case. This pissed off the federal prosecutor. You see, the warrant is under seal by the court. Ostensibly, this is to “protect” the defendant but in reality it protects the government from having their scumbag behavior exposed (see here for where these seals have been used to silence Scott Walker supporters when they have been subjected to midnight raids and fishing expeditions to try to find some evidence … any evidence … of wrong-doing). Similar gag orders were used to try to silence the late Siobhan Reynolds when she opposed government efforts to crack down on pain-killer use.

Of course, when sealed records are leaked by prosecutors — such as when Barry Bond’s sealed testimony in the BALCO case was leaked — no one cares.

Anyway, the prosecutor’s response has to be read to be believed:

I’m a bit concerned. At your request, I provided you a copy of the application for seizure warrant, which remains under seal with the Court, and now it appears it has been made available to a congressional committee? I do not know who did that, and I am accusing no one, but it was not from our office and could only have come from your clients. That was certainly not my intent in making this available. My intent was for you and your clients to be able to actually know the facts so you could review them and have an intelligent discussion with me. Whoever made it public may serve their own interest but will not help this particular case.

Your client needs to resolve this or litigate it. But publicity about it doesn’t help. It just ratchets up feelings in the agency.

Not unreasonable. But … wait for it.

My offer is to return 50% of the money. The offer is good until March 30th COB.

In other words, “shut the hell up and we’ll give you back the half the money”. And remember, if it weren’t for the support he’s receiving from the IJ, this would likely be the best outcome for McClellan.

A few weeks ago, John Oliver — whose commentary I normally find funny and occasional insightful — defended the IRS. He pointed out, correctly, that they didn’t make the tax law so ridiculously byzantine and that they barely have the resources to deal with the ungodly mess Congress has handed to them. He pointed out that for every dollar we spend on the IRS, we get six back. I don’t find it particularly persuasive since that means more money extracted from our citizens (sometimes in error and frequently at the expense of people like McClellan, who can’t afford to fight).

But this illustrates perfectly why people hate the IRS and the prosecutorial machinery that surrounds them. This is an agency that once had “Seizure Fever — Catch It!” posters printed up. This is an agency that zealously uses the unconstitutional powers Congress gives them. This is an agency that has happily complied with Presidential requests for targeted political audits and harassment. And now it is an agency that lied about what they were doing, seized someone’s assets and threatened him when he went public with it.

So yeah, we need to burn the tax code down. Yes, we need to pass laws to stop asset forfeiture — it’s clear that we can’t rely on the agencies to do it on their own. But once we do that, we also need to tear down the IRS and replace it with something else. They are too used to using and abusing the power our Congress and our Courts have stupidly given them.

Trying Their Hand at Diplomacy

Barack Obama has been negotiating with Iran for a potential deal that would delay their nuclear ambitions while lightening sanctions. We’ve been debating the wisdom of this in the comments for a while. The Republicans oppose any deal without more sanctions and invited Netanyahu to address Congress without consulting the President, an unusual move (although I found Netanyahu’s speech itself to be reasonable and conciliatory).

But this week, things took an interesting turn:

A group of 47 Republican senators has written an open letter to Iran’s leaders warning them that any nuclear deal they sign with President Barack Obama’s administration won’t last after Obama leaves office.

Organized by freshman Senator Tom Cotton and signed by the chamber’s entire party leadership as well as potential 2016 presidential contenders Marco Rubio, Ted Cruz and Rand Paul, the letter is meant not just to discourage the Iranian regime from signing a deal but also to pressure the White House into giving Congress some authority over the process.

“It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system … Anything not approved by Congress is a mere executive agreement,” the senators wrote. “The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.”

As a matter of law, the Republicans are right. Any deal will not be a formal treaty ratified by Congress. As a matter of practical politics, however, I find this meaningless. If, two years from now, Iran is violating the terms of the deal, there will no problem in revoking it. However, if the deal is working, I don’t see how a Republican President could possibly revoke it and basically put Iran on a faster path to a nuclear weapon. If we were to unilaterally back out, Iran would be able to resume a nuclear program without international sanctions, which is a worse situation than we have right now. In fact, I would argue that issuing this threat at this time is likely to make the Iranian situation worse. Doug Mataconis:

First of all, as several observers have noted since the letter was released yesterday, the threat that an agreement reached with the Obama Administration might not be honored by the next President, or that it could be undermined by Republicans in Congress through a variety of methods is likely to reinforce the position of Iranian hardliners who are against any agreement at all. This letter reinforces exactly what they already believe, that the United States cannot be trusted and that Iran must move forward with a nuclear program to protect its national interests. Second, the current sanctions regime is working largely only because the other major nations in the world are on board with it because they believe that it will help in the ongoing negotiations in Geneva to persuade the Iranians that there could be a benefit to agreeing to limits on their nuclear program, namely the gradual lifting of sanctions. Even the Russians and Chinese have signed on to this strategy, for now. If these other nations start to see the U.S. as taking a hard line position that makes diplomacy impossible, though, it’s unlikely that they are going to stick with the program or that they will agree to the kind of tougher sanctions that Republicans, and the Israeli Prime Minister favor. If the international sanctions regime is undermined, then there goes the pressure on Iran to come to the negotiating table. Finally, the simple fact of the matter that these Republicans seem to be ignoring is that Iran is not going to give up its nuclear program the way that nations like Libya and South Africa, to pick two examples that Senator Cotton cited this morning, did simply because history has shown them what happens to regimes who give up their WMD programs, such as Libya and Iraq, and those that do not, such as North Korea. Rather than aiming for an impossible objective, then, it strikes me that the best alternative is to try to get the Iranians to agree to confine their research to peaceful uses of nuclear technology. Senator Cotton and his colleagues just helped to undermine that objective.

I would also add that it endangers the cooperation Iran is giving us in fighting ISIS, which I regard as the greater of two evils at the moment.

Iran’s foreign minister has responded to the letter quite forcefully, indicated the letter is having the effect of encouraging Iranian hardliners. And parts of the Left Wing is accusing the Republicans of sabotaging Obama on foreign policy. I’m inclined to somewhat agree.

Foreign policy is one of the few arenas where the President has primary authority. Congress has some say — funding the President’s initiatives and ratifying treaties and so on. But it is not the job of Congress to act like amateur diplomats. Acting like amateur diplomats is the job of Obama’s bumbling State Department. I said as much when Nancy Pelosi went to Syria to meet with Assad: that was not her damned job. It was not the job of Congressmen to undermine the President’s foreign policy then; it’s not the job of Congressmen to undermine the President’s foreign policy now.

As is their wont, the Left is taking a reasonable point and becoming absurd, accusing the Republicans of “treason” for this. This isn’t treason, no matter what you think of it. I’d reserve that to … say … a sitting Senator negotiating with a hostile foreign power to influence an American election.

It’s one thing for Congress to influence policy through the power of the purse or the power of law. But this sort of direct communication with a foreign government during negotiations is a bridge too far. They need to cut it out. If they want to cancel any deal with Iran, they can try to pass a law over Obama’s veto. Or they can the election in 2016 and abrogate it then. But they need to leave off the theatrics. The situation with Iran is delicate enough without 47 senators barging into it.

Punting Power

This is pure BS:

House Speaker John Boehner (R-OH) told This Week he’d “bring the Congress back” to vote on a new resolution authorizing military force against ISIS in Iraq and Syria, but only if President Barack Obama requested one. Congress has received heaps of criticism for staying out of town during the airstrikes against ISIS, with some suggesting they’re happy to avoid a contentious vote on the issue.

Boehner reprised his line that typically the president initiated the resolution, a position of faux-politesse that the Daily Show already mocked last week. This led George Sephanopoulos [sic] to wonder if Boehner was avoiding the vote because it might split his party ahead of the midterms, something he said was whispered to ABC News political reporter Jeff Zeleny.

Boehner further opines that the existing AUMF is enough for Obama to act on.

One of the reasons Barack Obama has been allowed to usurp so much power is because Congress has allowed him to. Almost all legislative powers reside with Congress, yet they stand around while he rules by executive order, rewrites the laws to his purpose and starts wars on his own. The war-making power lies with Congress. Yet, for the second time, they are allowing the President to start bombing another country. Yes, the President is supposed to ask for their authorization. But they are supposed to assert their authority on this. They should be meeting right now either to give the President the authority to attack Syria or to refuse it. And if he won’t comply, they can exercise the power of the purse to cut the funding.

Stephanopoulos sideswipes the issue by noting this would potentially split the Republican Party. There is a significant fraction that would oppose this but they are still a small minority. The real issue is that the Republicans — like everyone else — have mixed feelings about this. On the one hand, ISIS is horrific: a radical Islamist regime that is imposing severe sharia over the regions they control, murdering ethnic and religious minorities and spreading terror over the region. On the other hand, do we really need another boondoggle in the Middle East? Do we really want to spend the treasure and lives needed, even assuming we can destroy ISIS?

It’s a hard debate. I can see why Congress wants to avoid it. But having hard debates is part of their fucking job description. The Civil Rights debate was hard too. So was the Vietnam War. Balancing the budget in the 90’s was hard. But those Congresses argued, debated and eventually voted. They did their job. And they were held responsible for it, a nation that terrifies our current leaders.

This is pure cowardice. It’s the same cowardice the Congress showed in 2003 when, rather than declare war on Iraq, they punted that authority to the President. They didn’t want to oppose it. But they didn’t want to take responsibility if it went wrong. And sure enough, when it went wrong, the Democrats said, “Well, we didn’t declare war on Iraq; we left that decision to Bush!”

Make a decision, guys. Have the debate. We’re dropping bombs on two countries and have over four hundred boots on the ground. If this goes wrong, it’s still on you for failing to stop it. Get your lazy asses back to Washington and do your damned job.

The Pledge

As you know, Obama invoked his imperial executive powers to delay the employer mandate for businesses with 50-99 employees. One aspect of it, however, has not caught much attention. In order to qualify for the exemption, businesses must certify, under penalty of perjury, that they did not cut down on employment to get under the 100 employee cap:

This week, the Obama administration finalized a regulation that delays enforcement of the employer mandate until 2015 for companies with 50 to 99 workers. Contained in the regulation was the clearest admission to date that Obamacare, and its employer mandate in particular, will indeed have a negative effect on jobs: To qualify for the delay, employers must certify that they haven’t reduced the number of workers in their company, or the total hours of service of its employees.

Put another way, if employers are going to take advantage of the one-year delay in enforcement of the employer mandate, they have to attest (under penalty of perjury) that they aren’t cutting jobs or reducing hours because of Obamacare. By pointing this out as a possibility — or an outcome to be avoided — the administration is acknowledging what it long denied: The law creates incentives for employers to cut hours and jobs.

Chen goes on to point out that this attestation of faith is purely political. Obama wants to be able to say that no business is cutting employees or hours to comply with Obamacare — and he has their own sworn statements to prove it!


Think about how lunatic this is. There is nothing even faintly illegal about businesses’ – indeed, all economic actors’ – making financial decisions based on tax consequences. (And remember, notwithstanding Obama’s misrepresentations to the contrary, Obamacare mandates are taxes – as Obama’s Justice Department argued and as Chief Justice Roberts & Co. concluded.) The tax consequences of Obamacare are profound – that is precisely the reason that Obama is “waiving” them. No responsible officers in a corporation of relevant size would fail to take them into account in making the decision to staff at over or under 100 employees; in determining whether some full-time employees should be terminated or shifted to part-time; or in making any number of the decisions Obamacare’s mind-numbing complexity requires.

The officers’ responsibility is to the owners of the company, the shareholders. The business exists to create value, not to provide employment – employing workers is a function of the value added to the enterprise, not the need to create a more favorable election environment for the statist political party. Corporate officers who overlooked material tax consequences would be unfit to be corporate officers.

What is illegal and irrational is not a company’s commonsense deliberation over its costs, it is Obama’s edict. And look what attends this one: criminal prosecution if Obama’s Justice Department decides the business has falsely certified that its staffing decision was not motivated by Obamacare.

Think about that for a second. The waiver is illegal. It flouts the language of the Obamacare statute, under which the employer mandate is required already to have been implemented by now. There is nothing in the law that empowers Obama to waive the mandate, much less to attach lawless conditions to such a lawless waiver. A business that seeks the waiver and fails to pay the mandated tax (in lieu of providing the required coverage) is in violation of federal statutory law, regardless of its compliance with Obama’s outlaw edict. The payments required by the statute, after all, are owed to the public, not to Obama – he’s got no authority to deprive the government of these funds just because it would harm Democrats to collect them.

I think the later point is very very important. Remember what I wrote a couple of weeks ago about Obama saying he won’t prosecute people who sell legal marijuana in Colorado and Washington? Obama is creating a system where people can be violate a stupid law but he will not prosecute them. For now. However, this waiver can be removed at any time at his pleasure. He invites companies to break the Obamacare law and then puts them at his mercy. Holder recently said banks could process funds for legal marijuana business but the banks are hesitant because they are not that stupid. They know the Feds could turn on them at any moment and seize all of their assets, claiming they are laundering drug money (and indeed, they would be, under federal law).

I realize that Congress is in a do-nothing mode. Having passed a budget and raised the debt ceiling, there are now rumbling that they are basically done with legislation for the year (note: they will still be paid as if they were legislating). Tax reform, immigration reform, Obamacare overhaul … all of these look like they will never happen. We have an absentee government.

Normally, that might not be such a bad thing. But we have a number of critical issues that need to be addressed. If Obama says he will waive Obamacare requirements for smaller businesses, Congress should pass a law (and remove the oath part). If Obama says we shouldn’t prosecute legal pot business, Congress should pass that into law. Without the protection of Congressional legislation codifying these things, everyone is at the President’s mercy.

Does anyone doubt there will be political games and favoritism in who is and isn’t prosecuted for violating the 100-employee rule? Does anyone doubt that political games and favoritism will play into which legal pot shops are prosecuted? Executive rule is arbitrary rule. It is no longer rule of law, it is the rule of man … a very specific man who has given little reason to believe he can be entrusted with that kind of discretionary power.

As I have said many times, this isn’t a partisan issue. Liberals shouldn’t want that kind of authority given to President Rubio in 2016. Congressional Democrats shouldn’t want their power usurped. Legal marijuana supporters shouldn’t want pot shops to be operating under the mercy of the President. Forget the letter next to the guy’s name. This is wrong and this is dangerous. It’s time to put a stop to it.

Meanwhile, businesses that qualify for the Obamacare waiver should refuse to take advantage of it. This will hurt and they will have to fire employees. But it’s better than swearing an oath that can’t possibly be true, violating a law passed by Congress and putting themselves at the mercy of the President.

The Clemency Question

The NYT has run an op-ed calling for Edward Snowden to be granted clemency or a plea deal so that he can return to the United States. While acknowledging that he broke the law, they argue:

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.

In retrospect, Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not. Beyond the mass collection of phone and Internet data, consider just a few of the violations he revealed or the legal actions he provoked:

■ The N.S.A. broke federal privacy laws, or exceeded its authority, thousands of times per year, according to the agency’s own internal auditor.

■ The agency broke into the communications links of major data centers around the world, allowing it to spy on hundreds of millions of user accounts and infuriating the Internet companies that own the centers. Many of those companies are now scrambling to install systems that the N.S.A. cannot yet penetrate.

■ The N.S.A. systematically undermined the basic encryption systems of the Internet, making it impossible to know if sensitive banking or medical data is truly private, damaging businesses that depended on this trust.

■ His leaks revealed that James Clapper Jr., the director of national intelligence, lied to Congress when testifying in March that the N.S.A. was not collecting data on millions of Americans. (There has been no discussion of punishment for that lie.)

■ The Foreign Intelligence Surveillance Court rebuked the N.S.A. for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents. One of the practices violated the Constitution, according to the chief judge of the court.

■ A federal district judge ruled earlier this month that the phone-records-collection program probably violates the Fourth Amendment of the Constitution. He called the program “almost Orwellian” and said there was no evidence that it stopped any imminent act of terror.

The shrill brigade of his critics say Mr. Snowden has done profound damage to intelligence operations of the United States, but none has presented the slightest proof that his disclosures really hurt the nation’s security. Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as the presidential panel recommended.

If you want read the dispatches of that shrill brigade, you can check them out here and here. Most of it is the usual boilerplate — Snowden’s a traitor, the NSA is saving our lives, don’t be so hysterical. But they do raise one valid point. If we were to cut some kind of a deal to allow Snowden to return, does this create a moral hazard for other NSA or CIA employees to reveal classified information?

That is a legitimate concern. Our country does have some secrets it needs to keep. But I find myself agreeing with Conor Friedersdorf that we can craft things so that we allow true whistleblowers to come forward while not endangering necesssary secrets:

Here are some possible standards:

When the leak reveals lawbreaking by the U.S. government

When the leak reveals behavior deemed unconstitutional by multiple federal judges

When a presidential panel that reviews the leaked information recommends significant reforms

When the leak inspires multiple pieces of reform legislation in Congress

When the leak reveals that a high-ranking national-security official perjured himself before Congress

When the leak causes multiple members of Congress to express alarm at policies being carried out without their knowledge

All of these are obviously met by Snowden as they were crafted around his acts. But that is the point. Clemency or pardon or a plea deal is not obviating the law. It is acknowledging that the law was broken but forgoing or reducing punishment due to extenuating circumstances. In this case, it is very easy to make clear what those extenuating circumstances were and tailor the circumstances to just cover Snowden.

Mataconis responds to the “hang Snowden” critics, most notably on the contention that Snowden should have gone to Congress. But he also raises a practical point:

There is, of course, one final point to keep in mind. Edward Snowden is currently beyond the reach of U.S. Law Enforcement and Intelligence Agencies for the foreseeable future. This means that we will remain unaware of what else it is that he might be in possession of that could be made public someday? Wouldn’t it make more sense to discuss making some kind of deal with him, in exchange for his full cooperation in exploring (1) what data he was able to obtain, (2) How he was able to obtain it even in cases where he apparently didn’t have the proper Security Clearances, and (3) How Intelligence Agencies could make their systems more secure in the future, rather than just leaving him hanging out there, apparently happy with his current living conditions, wondering when the next shoe is going to drop?

This carries a lot of weight with me. While Snowden is in foreign countries, the information he has, whatever it might be, in in danger of being revealed to our geopolitical enemies. Wouldn’t we much rather have him and his computers on American soil?

In the end, I find myself coming around to the idea that Snowden should be granted some sort of clemency … but only on things covered under the conditions Conor lists above: things related to massive surveillance, to law-breaking or to deception. He should not be granted any sort of clemency for any information he has given to Russia or China that compromises our national security. If Snowden has not revealed that kind of critical information to those countries, as he and his supporters claim, he should have no trouble accepting such a bargain.

Obama won’t do this, of course. He and his supporters have a lot invested in vilifying Snowden and defending the surveillance state. But maybe it’s something for Future President Rubio to consider.

Cutting USPS Loose

After spending quite a bit of time complaining that the post office is losing money (partially because they are being forced to actually fund their pensions like a regular business), Congress has turned a quick about face:

A spending measure passed by the House on Wednesday to keep the government operating through September requires that the Postal Service maintain a six-day mail delivery schedule, a potential setback for the agency, which announced last month that it planned go to five-day deliveries to cut costs.

Faced with billions of dollars in losses, Postal Service officials said last month that beginning in August the service would stop delivering mail on Saturdays, though it would continue to deliver packages on a six-day schedule. The agency said cutting Saturday delivery would save about $2 billion a year.

The agency lost about $15.9 billion last year, partly the a result of a 2006 law requiring it to pay about $5.5 billion into a health benefits fund for its future retirees. A drop in mail volume has also hurt the agency’s finances.

Congress also wants to prevent the closure of seldom-used rural post offices.

Look, there is no magical efficiency engine that the Post Office can kick to make the system work. Either they massively raise postal rates or they cut services or we continue to pour billions of dollars into them. It’s possible — possible — that a massive overhaul of the system would make everything work. But given the maze of regulations and existing contracts, such massive reform is almost impossible. And it would certainly not work with six-day delivery and thousands of rural post offices. And if you think Congress is interfering now, just wait to see what they would do if USPS tried to change union contracts.

(If you want some amusement, throw these facts onto a liberal blog and read all the ensuing comments about how the postal service connects us all to each other like some kind of national psychic mucus. Even if you go in for such woozy sentiments … that was not the intention of the post office.)

The alternative to letting the Post Office cut services is allowing private companies to compete with them. While this ideas has its merits, it would only make the situation with USPS itself worse. Private companies would instantly slurp up the most profitable parts of the business leaving USPS — tied down by federal regulations and union contracts — to become an even purer money hole. You could, of course, then allow USPS to sink completely below the waves. But that would leave the government, by federal law, on the hook for their pensions and leave rural areas either cut off or paying gigantic postal rates. And that’s leaving out the thorny Constitutional issue that Congress is mandated to establish post offices and post roads.

In any case, those are the choices: privatization with the problems it entails, continued massive subsidies or curtailing of services. There is no other alternative.

But Congress has never felt particularly bound by the laws of mathematics. They want a monopoly Post Office that delivers everywhere six days a week at current prices but doesn’t lose any money. They might as well wish for a postal service run by unicorns.

The Founding Fathers Said What?

I must hand it to Harvard: only at Harvard could someone be educated enough to make such a weak argument:

In making the legal case against Obamacare’s individual mandate, challengers have argued that the framers of our Constitution would certainly have found such a measure to be unconstitutional. Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases. The framers, challengers have claimed, thought a constitutional ban on purchase mandates was too “obvious” to mention. Their core basis for this claim is that purchase mandates are unprecedented, which they say would not be the case if it was understood this power existed.

But there’s a major problem with this line of argument: It just isn’t true. The founding fathers, it turns out, passed several mandates of their own.

Einer Elhauge, a Harvard law professor, is the author of this piece. He cites three example: two mandates on shipowners insuring their sailors and a mandate on able-bodied men to buy firearms.

There are a huge number of problems with this argument, which is probably why, as Randy Barnett points out, the argument was dismissed by the lower courts and not even mentioned by the Solicitor General. First, the Founding Fathers also passed the Alien and Sedition Acts, the last of which was blatantly unconstitutional. These acts all preceeded Marbury, when judicial review was really established. Had the concept of judicial review been in place, they might not have been upheld.

Second, these mandates are in areas that are a federal concern. The first two deal with ships in navigable waters, which are and have been federally regulated. The third concerns the militia which is an explicit federal concern. Neither involves a purchase requirement on people not engaging in commerce and neither forces commerce to be undertaken. To compare this to a mandate covering the largest industry in the country, a mandate that will affect every citizen and compel them to spend thousands of dollars is ridiculous.

Third, the modern insurance industry, as we know it, did not exist until the mid- to late-19th century. What the hell was this insurance? We’ll go to Volokh again, who points out that this was, in fact, a tax levied on ships coming into American ports that was used to fund hospitals for sailors. To go to the hospitals, the sailors had to produce a proof that the tax had been paid. This isn’t really comparable to Blue Cross. As was pointed out about a million times during the healthcare debate, Congress could have made this Constitutional by putting it in as a tax used to pay for the uninsured. But they were so obsessed with not appearing to raise taxes, they didn’t go that route.

You can feel the desperation out there, can’t you? They are clutching at straws, trying to render the Court’s verdict unacceptable before it is even delivered.

Best argument…

About why what the left has been doing to us for the last century, whether you think it was meant to do good or not, is wrong, was made by Glenn H. Reynolds, he of Instapundit fame, here:

The Constitution of the United States was supposed to create a federal government limited to the comparatively few powers specifically enumerated therein, mostly in Article I, Section 8. The idea was that the federal government would address subjects that really needed to be handled on a national level. The states would do the rest, or people would take care of matters on their own.

As James Madison wrote in the Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

To underscore this arrangement, the Tenth Amendment provided that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This division of powers was intended to protect freedom by limiting the scope of the powerful national government. It was also intended to reduce the extent of corruption in the federal government. The powers most likely to encourage corruption were left to the states.

Our forefathers understood that the bane of every system of government was the abrogation of power at the highest/ federal level that would encourage the type of corruption that turned Europe into freedom lacking the shit hole it was then and to many extents in far worse ways, is today. Obamacare is just the latest step on the road to full blown government control of everything.

Yeah, the cultists that love Marx’s dumb idea will vehemently disown marxism, but the end goal, even if many amongst the masses aren’t bright enough to see that yet, and the politicians that push it deny that’s the intent, is full blown state control of everything and everyone. Maybe not direct control of all aspects of life like we saw in the USSR, but then again, when you have a government with not just the power to pick winners and losers, but a justification to do it all that is seen as noble – social justice – that it hides behind, and a justice system that enforces that power and agenda, you pretty much get the same with the veneer of legitimacy and democracy.

Obamacare was just another step in that direction. One that was set up to allow the political class to basically define healthcare to be whatever government decided it was whenever it wanted, by basically completely destroying the limitations the constitution placed on the federal government. The bonus plan I believe is that even if it were to fail this dastardly constitutional challenge, they hoped it would it would come too late and with such pain that it all but set up the system to allow them to achieve the real goal: a single payer system.

Look, I do not for a second believe that the left hasn’t spent the last half century passed law after law to increase the power & control of the federal government on healthcare system to make it better. Sure, that’s what they told us, but the intent has always been a government controlled system. But as long as the one we had worked well, they where never going to sell the public on this idiotic notion we all could see fail everywhere. Hence the massive and idiotic mountain of regulations and mandates, coupled with the bull about healthcare being a ‘right”, which have brought the existing system to the brink of implosion. And like they did when their regulations caused the recent economic disaster – they chose double down on even more meaningless regulation, while not just keeping the fundamental underlying problem that they want to use the lending industry to social engineer, but expanding on it – this is just more of the same.

The game is to overload the system till it brakes and people HAVE to accept the government controlled single payer system they want. Obamacare took the next step, and as Reynolds put it, basically decided to make the case that there should be no limits on what the federal government wants to do if they claim it is for the welfare of people and to regulate commerce or some such nonsense. Have no doubt that next step was the plan:

There are always arguments about the precise scope of delegated powers, and such arguments have regularly come before the Supreme Court. But it is one thing to argue about the precise extent of limits to enumerated power, and it is another thing entirely to deny their existence.

And there you have it in a nutshell. The left doesn’t care right now: they hold the reigns of power, and their guy is pretty blatantly willing to do whatever to push their power to new heights. What can go wrong? After all, this is about doing a good, nay great, thing. Healthcare is a right, and we should all get it for free! Never mind that there is nothing that’s free, ever. So here we get the left, perplexed that even some of the leftists on the SCOTUS is weary of this dangerous usurpation of power, but the problem is a simple one with dire consequences.

Will the court be willing to remove the “almost” and let Congress do anything it wants under the commerce power? I don’t know, but if it doesn’t go along with Obamacare, don’t blame Donald Verrilli. Instead, blame — or, rather, credit — the Constitution.

Be afraid. Our media is doing us a disservice not pointing this out too. But what’s new? Obamacare isn’t even about healthcare: it is about removing any limitations from the feds. While you might have no problem with that today because your team has the reins of power, think about what it means when they don’t. Of course, the left has figure that once they take power they won’t ever lose it again, but then again, even the Supreme Soviets learned that lesson eventually.

We Will Decide How Much You Can Keep

The “Speaking Of Geniuses” thread is still active, your money and how much of it you get to hold on to is near and dear to everyone’s heart, but for you corporate tycoons and runners of businesses, remember one thing, Washington wants what is yours and will legislate to steal it:

Six House Democrats, led by Rep. Dennis Kucinich (D-Ohio), want to set up a “Reasonable Profits Board” to control gas profits.

The Democrats, worried about higher gas prices, want to set up a board that would apply a “windfall profit tax” as high as 100 percent on the sale of oil and gas, according to their legislation. The bill provides no specific guidance for how the board would determine what constitutes a reasonable profit.

The Gas Price Spike Act, H.R. 3784, would apply a windfall tax on the sale of oil and gas that ranges from 50 percent to 100 percent on all surplus earnings exceeding “a reasonable profit.” It would set up a Reasonable Profits Board made up of three presidential nominees that will serve three-year terms. Unlike other bills setting up advisory boards, the Reasonable Profits Board would not be made up of any nominees from Congress.

I know that was a lot to digest, let me break that down for you:

1) Six Democrats (the party that keeps tripping over themselves waving their capitalism bona fides) thinks it is a good idea to limit capitalism.
2) They want government to decide how much money you can make and at what point every dollar over that gets taxed at 100%.
3) Unclear of what that level should be (we will decide that later, trust us).
4) They are only targeting one small portion on one sector of the economy (the sale of oil and gas).
5) The president gets to decide who sits on that regulatory board (no qualifications are mentioned, those obviously being only limited to abide by his notion of fairness).
6) Congress gets no say regarding the appointees, further strengthening the power grab of executive order, and consistent with his attitude lately of ,”Congress? I don’t need no stinkin’ Congress”.

Funny, but I don’t hear about any movement to limit the profits of grotesquely obese filmmakers, or penis nosed pasty white skinned talk show personalities. In the last few days my local paper has been populated with stories regarding Tim Lincecum, and whether the Giants will pay him $21 million for next season, all for throwing a baseball.

But Kucinich, being the good greeny that he is, he wants all this tax money to go down that alternative energy rathole, there has got to be more Solyndra’s out there.

This clearly could be a golden goose. Start out with the oil industry, then move on to financials, pharmaceuticals, telecommunications, consumer stables, utilities, hell, the sky is the limit.

If these 6 little monkey’s in a barrel were so concerned about high gas prices, where was their leverage (and now where is the outcry) in getting Obama to approve the pipeline? If we are to glean any themes from the president’s actions, he wants to keep unemployment high, gas prices high, and America dependent on foreign oil (and the enemies that produce it).

I’m trying to think of some stupid stuff that Congress (or members of) has proposed lately that would rank on the idiocy level with this. No, it won’t pass, but still, it shows you the type of people there that can and do influence our lives.