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Thursday

18

July 2013

0

COMMENTS

Harry Reid’s Filib(l)uster and the NLRB

Written by , Posted in The Courts, Criminal Justice & Tort

The big news yesterday was that Republicans apparently caved on their opposition to several Obama administration appointees, a deal which will stave off Harry Reid’s plan to invoke the so-called “nuclear option” to end filibusters on presidential appointments. There are two things I find of interest in this whole brouhaha – the administration’s abuse of recess appointments to circumvent the Senate’s role to provide Advice and Consent, and the implications should Harry Reid go through with the “nuclear option.”

Here’s what I previously said about President Obama’s “recess” appointments:

What’s interesting to me is how ridiculous is much of the rhetorical justification for the move. The argument I frequently see goes something like this: Republicans blocked Obama’s appointments, therefore he just had to act.

This line of reasoning renders meaningless the entire concept of Advice and Consent. What is the point of even requiring Senate confirmation if the refusal of the Senate to do so just means that the President should go around them? If the Senate is expected to be nothing more than a rubber stamp, then the whole process is a massive waste of time.

The appointments have since been found by multiple courts to be invalid, the most recent of which being the Fourth Circuit in a ruling issued just yesterday afternoon. The Obama administration has insisted they were legitimate appointments, and the issue is now before the Supreme Court in NLRB v. Noel Canning.

The exact fallout from the rulings remains uncertain at least until Noel is decided, due largely to the fact that the legality of rulings issued thanks to Obama’s invalid appointments are in question, though many other challenges are currently proceeding.

Bruce McQuain raises an interesting question regarding how the deal to avoid Harry Reid’s bombing of Senate rules plays into the issue. President Obama and Democrats responded to the rulings against the NLRB by insisting they were legal appointments, yet now are promising two new appointments. McQuain writes:

If the Democrats agreed to have two new appointments made to the NLRB, aren’t they at least tacitly admitting the current two appointments are illegal?  And if so, what does that make any rulings the current NLRB made during that time it was illegally constituted?  Common sense says those rulings should be invalidated, don’t you think?

We’ll see how the issue shakes out with upcoming cases, but it’s worth pointing out that this mess is the direct result of the President’s novel insistence that he knows better than the Senate when they are in session or not.

The other issue of interest regarding the deal is the nature and structure of the Senate itself. Harry Reid has essentially said he and 50 other Senators can change the rules at any time to read as they please. If that is going to be the case, why even bother with rules? Just make it a majority rules, anything goes body and be done with it.

This contrasts with the purpose and understanding of the Senate as constructed. Senators were given longer terms and their elections staggered (not to mentioned originally not even determined by popular vote) in order so that it would serve as a counter-weight to the fickle nature of popular opinion that would hold greater sway in the House of Representatives.

Senator Lamar Alexander did a pretty good job with this argument in yesterday’s Washington Times:

This week’s “nuclear option” debate about whether U.S. senators should be permitted to filibuster presidential nominations was not about filibusters.

It was instead about whether a majority of senators should be able to change the rules of the Senate anytime for any purpose. Former Sen. Arthur Vandenberg of Michigan once offered the precise trouble with this idea: “If a majority of the Senate can change its rules at any time, there are no rules.”

…Over the years, there have been seven sub-Cabinet nominees blocked by filibuster — three Republicans and four Democrats, all since 1994.

…So, what were Democrats complaining about?For many Democrats, getting rid of the filibuster for nominees is the first step in turning the Senate into an institution where the majority rules lock, stock and barrel.

The Senate would become like the House of Representatives, in which a majority of only one vote could establish a Rules Committee with nine members of the majority and four of the minority. Every meaningful decision would be controlled by the majority. The result: The minority, its views and those it represents would become irrelevant.

It would be an unfortunate development if the Senate were to be turned into just a smaller House of Representatives. For those of us that welcome Congressional gridlock as a means to stay the worst impulses of knee-jerk legislators, the role of the Senate is essential. Though it’s worth pointing out that when the power shifts, many on both sides of the debate will switch sides. It may in the future be Lamar Alexander and his colleagues crying foul over minority obstructionism while Harry Reid demands respect for minority party rights. It wouldn’t be the first time.

 

Saturday

13

July 2013

3

COMMENTS

DC Council to the Poor: Screw You!

Written by , Posted in Big Government, Economics & the Economy, Government Meddling, Labor Unions

The unemployment rate in Washington DC is 8.5%, a point higher than the national average. Compared to the rest of the nation, the District is poverty and crime-ridden. Given these facts, you’d think the DC Council would welcome the nation’s largest employer to the area. But that’s failing to take into account the fact that DC politicians are reactionary economic illiterates.

D.C. lawmakers gave final approval Wednesday to a bill requiring some large retailers to pay their employees a 50 percent premium over the city’s minimum wage, a day after Wal-Mart warned that the law would jeopardize its plans in the city.

The retail giant had linked the future of at least three planned stores in the District to the proposal. But its ultimatum did not change any legislators’ minds. The 8 to 5 roll call matched the outcome of an earlier vote on the matter, taken before Wal-Mart’s warning.

The law, which unconstitutionally targets specific businesses with different rules (in a handout to Big Labor, it exempts unionized shops that would otherwise fit the criteria), amounts to a big middle finger aimed at the District’s poor.

Not only are politicians making it harder for them to find work, but in doing their best to keep Wal-Mart out they are reducing access to lower priced goods that could raise their standard of living. Even left-wing economist Jason Furman, appointed by Obama to be Chairman of the Council of Economic Advisors, understands the tremendous impact Wal-Mart has had in helping America’s poor:

Wal-Mart’s low prices help to increase real wages for the 120 million Americans employed in other sectors of the economy. And the company itself does not appear to pay lower wages or benefits than similar companies, or to cause substantially lower wages in the retail sector…

[T]o the degree the anti-Wal-Mart campaign slows or halts the spread of Wal-Mart to new areas, it will lead to higher prices that disproportionately harm lower-income families…

By acting in the interests of its shareholders, Wal-Mart has innovated and expanded competition, resulting in huge benefits for the American middle class and even proportionately larger benefits for moderate-income Americans.

Friday

12

July 2013

1

COMMENTS

I’m From the Government’s IT Department, and I’m Here to Help

Written by , Posted in Waste & Government Reform

Ronald Reagan said the nine most terrifying words in the English language are “I’m from the government and I’m here to help.” For those of us who care about things like sound fiscal stewardship of taxpayer dollars, a close second may be “I’m from the government’s IT Department, and I’m here to help.”

Let’s back up a moment before we get to that. You’re on a computer right now. At some point in time, it’s probably been infected with malware. Heck, it probably is right now. But at some point you probably actually did something about. What did you do, may I ask? Did you take a sledge hammer to it? Chuck it out a 3rd story window? I imagine not, as that’s an expensive and unnecessary solution when you can just run a bit of free (or cheap) software and be rid of the problem.

But government bureaucrats don’t do things the easy way, nor do they care about wasting money. After all, it’s not their money. Here’s what they did when faced with the same problem according to the Department of Commerce’s Office of Inspector General (Hat-tip: Gizmodo):

EDA’s CIO concluded that the risk, or potential risk, of extremely persistent malware and nation-state activity (which did not exist) was great enough to necessitate the physical destruction of all of EDA’s IT components. EDA’s management agreed with this risk assessment and EDA initially destroyed more than $170,000 worth of its IT components,21 including desktops, printers, TVs, cameras, computer mice, and keyboards. By August 1, 2012, EDA had exhausted funds for this effort and therefore halted the destruction of its remaining IT components, valued at over $3 million. EDA intended to resume this activity once funds were available. However, the destruction of IT components was clearly unnecessary because only common malware was present on EDA’s IT systems.

This is astonishing even by government standards. They literally had to run out of money in order to stop destroying their own equipment over a little bit of malware. That’s like trying to amputate all your limbs over a few mosquito bites, but stopping at just taking off one only because you ran out of saws.

Keep this in mind the next time you’re told that spending can’t possibly be cut by 2% without ending life on this planet as we know it.

Monday

8

July 2013

0

COMMENTS

Overgovernment: Weed Wackos Edition

Written by , Posted in Big Government, The Nanny State & A Regulated Society

Chicago is hung up on weeds. First, there’s this story of a man fined for picking dandelions to eat:

Most agree, dandelions are a notorious weed. But some recognize that dandelion greens can contribute to a tasty and nutritious meal.

Among the fans of the food is John Taris, a 75-year-old retiree who lives in the Chicago area with his wife on a $1,500-a-month social security payment. When the couple’s food supply was a bit low recently, he volunteered to go pick some to provide a vegetable, writes columnist John Kass in the Chicago Tribune (sub. req.).

But, caught in the act of picking the weeds by a Cook County Forest Preserve cop, he was issued a $75 ticket. His court date is July 9.

A spokeswoman for the forest preserve district noted that foraging is prohibited there and called the practice “unsustainable, especially when it’s done for commercial purposes,” the article reports.

I’m not sure what “commercial purposes” the government may have manufactured here. I imagine it’s being used in a similar fashion as “intent to distribute” is when a suspect is caught with a small amount of drugs – in other words, without any regard to the actual facts. It’s all fine to protect public lands from succumbing to the tragedy of the commons, but it’s freaking dandelions.

The second story also comes from Chicago. This time it’s a retired teacher fined $600 dollars for growing weeds.

A retired Chicago teacher had wanted to appeal the $600 fine she got last year for growing “weeds” in her prize-winning Chicago garden. (The prize, which was presented personally by former Mayor Richard Daley, includes a photo of Kathy Cummings’ yard.)

But it wasn’t until Cummings chatted with a neighbor that she was able to find an attorney to represent her in the case.

…Her complaint, which was filed last month, contends that the ordinance is unconstitutionally vague on its face and has been arbitrarily applied in violation of equal protection and due process in order to increase city revenue. The ordinance bans vegetation taller than 10 inches that isn’t maintained, but doesn’t define what is, and isn’t, a weed.

Is it just me, or does Chicago have some weird fascination with weeds? Whatever the case, there is clearly overgovernment at work.

Saturday

6

July 2013

0

COMMENTS

We Are the Press

Written by , Posted in Liberty & Limited Government

Sen. Dick Durbin recently authored an op-ed calling for some sort of legislation to determine who qualifies for speech protections:

In Branzburg’s case, the Supreme Court ruled that there was no absolute privilege for journalists to refuse to reveal sources to a grand jury. The ruling did, however, seem to recognize a qualified privilege for journalists. Today, some federal courts recognize a qualified privilege for journalists, while others do not.

The vagueness of this decision has led 49 states, including Illinois, to recognize a journalist privilege by statute or common law. These laws state that a protected journalist cannot be compelled to disclose sources or documents unless a judge determines there is an extraordinary circumstance or compelling public interest.

But who should be considered to be a journalist?

The answer to the Senator’s question is stunningly easy: anyone who practices journalism. If a person engages in an act of journalism, regardless of what they do for a living or how frequently they practice journalism, then regarding that act and any issues that arise surrounding it, they are a journalist.

He goes on to state:

For a few years now, a bill to protect journalists from revealing their sources and documents has been making its way through Congress. With no current federal statute recognizing a privilege for journalists, the so-called “media shield” law attempts to establish one.

Everyone, regardless of the mode of expression, has a constitutionally protected right to free speech. But when it comes to freedom of the press, I believe we must define a journalist and the constitutional and statutory protections those journalists should receive.

I think it is all well and good if Congress is simply attempting to “define…the constitutional and statutory protections … journalists should receive.” Obviously the Constitution contains a broad protection for free speech, one frequently violated, but at some point the exact implications of the right must be applied to particular circumstances. Its limits must be marked. The courts typically play a large role in defining the boundaries or scope of these rights, but they shouldn’t be the only participant in the process. Congress should be involved as well. I don’t know  the particular details of the bill Sen. Durbin references, though I know it’s bipartisan and therefore immediately suspect in my mind as a conspiracy against the people, or whether it is a good or bad attempt to define the boundaries of journalistic protections, and the courts will continue to be there to weigh in if they should be unconstitutionally narrow. But it’s better if our legislative body do the actual legislating, rather than the judiciary.

But it is by no means necessary to reserve the rights of journalists to a privileged class. The very description of the idea leaves a sour taste. Such power in the hands of politicians to decide who deserves the full slate of journalistic rights would render ineffective the most powerful purpose for having a free and independent press: keeping the political class in check.

Sen. Durbin counters with this:

To those who feel politicians shouldn’t define who a journalist is, I’d remind them that they likely live in one of the 49 states, like Illinois, where elected officials have already made that decision.

Even if this is true, it’s no argue for federal legislation. At least with 49 different definitions there is a chance that one or more doesn’t suck. And there is recourse for those in states with bad definitions that would not be available if the same happens at the federal level.

It’s important to remember that the Constitution is not a broad grant of government authority with a few particular carve-outs. It is the opposite – a narrow and particular grant of authority for government to act in the preservation of rights. The First Amendment really ought not even have been necessary as government has no expressly granted authority to violate the rights of speech or the press, which was an argument made at the time against the inclusion of the Bill of Rights. Its existence has been wrongly interpreted over the years to mean that anything not expressly protected is fair game, and now Sen. Durbin is looking to chip away at even those limited protection by defining down nature of the press. Don’t let him do it.

Saturday

20

April 2013

1

COMMENTS

Thoughts on Security Post Boston Marathon

Written by , Posted in Foreign Affairs & Policy

As the dust settles on the bombing in Boston, and the flurry of misinformation and speculation finally begins to settle down now that the two primary suspects have been killed and apprehended, respectively, it’s possible to begin reflecting thoughtfully on the incident and what it means from a security policy perspective.

First and foremost it’s a reminder that pan-Islamic jihad continues to exist, much to the befuddlement of legacy media. However, in an exception that proves the rule sort of way, it’s also a reminder that we are relatively safe from such attacks in America, which have proven to be extremely rare even in this day of heightened global Islamist activity. For whatever reason – whether because attempts have been foiled by good intelligence, or because we have kept the fight overseas, among other possible reasons – we have not seen the kind of increase in attacks that I think many expected would follow 9/11.

Absent additional information, it appears the Tsarnaev brothers were self-radicalizing, which is difficult to defend against. We’ve been pretty effective at undermining the capabilities of the major organized terrorist groups wanting to operate in the US. But from an intelligence point of view, self-radicalized individuals are much more difficult to identify. Even with reports that the FBI was asked to look into the older brother, Tamerlan, evidence is hard to find when there isn’t any group for the individual to interact with.

Overall the evidence at this stage seems to point to an individual, Tamerlan, who was angry, unsuccessful in his endeavors and prone to violence. He found, perhaps due in part to his Chechen background where such extremism is common, an outlet through which to direct his violence in the form radical Islam. His influence then brought his brother into the fold.

All of this is to say, there’s very little here to suggest a need for systemic or drastic changes to our intelligence and counter-terrorism efforts. The tendency when things like this happen is to overreact, but it’s important to keep perspective on how rare such occurrences have been. Otherwise, you run the risk of adopting bad ideas that expand the power and size of the state at the expense of individual freedom.

Saturday

13

April 2013

1

COMMENTS

Shocking New Study: Lack of Legal Accountability Breeds Corruption

Written by , Posted in The Courts, Criminal Justice & Tort, Waste & Government Reform

Not that I intend to demean the folks who conducted this study, as there is utility in confirming with evidence things that seem obvious or intuitive, but I can’t help but laugh at the headline, “Corruption soars when politicians are placed above the law, study finds:”

In a new study, Stern School of Business assistant professor of economics Vasiliki Skreta and co-authors, Karthik Reddy of Harvard Law School and Moritz Schularick of the University of Bonn, examine statutory immunity provisions that obstruct or limit the criminal liability of politicians, and which exist throughout much of the modern democratic world.

…The researchers quantified the strength of immunity protection in 74 democracies and verified that immunity is strongly associated with corruption on an aggregate level. They also developed a theoretical model that demonstrated how stronger immunity protection can lead to higher corruption. The model suggested that unaccountable politicians under immunity protection can enhance their chance of re-election by using illegal means, namely supporting interest groups through lax law enforcement, non-collection of taxes, and other forms of favoritism that will go unpunished.

Certainly how a system constrains those in power is an important and worthy area of study in the social sciences. Most, however, probably already accept that politicians should not be above the law. In that sense the study may have limited impact. However, if we generalize its findings a bit and begin to question the accountability of other government officials, it could theoretically have broader implications.

Consider prosecutors, who were once described by Supreme Court Justice Robert Jackson as having “more control over life, liberty and reputation than any other person in America.” Their charging power, he said, is an “immense power to strike at citizens, not with mere individual strength, but with all the force of government itself.” And yet, they have absolute immunity, which renders them impervious to any legal repercussions for such decisions. Making matters worse is that the Supreme Court has given them a slightly less comprehensive standard of qualified immunity in situations where they actually investigate evidence. In other words, prosecutors are given a comparative disincentive from investigating the strength of the evidence they will use to try and convict someone, and then given complete immunity for how those decisions turn out.

Sadly, as Radley Balko reports, “prosecutors are rarely disciplined even for serious misconduct.” For every Mike Nifong of Duke Lacrosse fame who actually gets disciplined, there are orders of magnitude more who get off scot-free. They are held to essentially no legal standard at all. It is a system ripe for corruption, and corruption is precisely what frequently occurs.

Tuesday

2

April 2013

0

COMMENTS

Monday

1

April 2013

0

COMMENTS

Whose Vision Would You Trust?

Written by , Posted in Big Government, Culture & Society, Liberty & Limited Government

Rick Santorum had this to say in Politico (Hat-tip: Reason):

“Look, the Republican Party isn’t going to change. If we do change, we’ll be the Whig Party. …We’re not the Libertarian Party, we’re the Republican Party.”

Rather than respond directly to this assertion, I’ll simply offer another quote and then contrast the electoral records of the two speakers.

“If you analyze it I believe the very heart and soul of conservatism is libertarianism.”

That one was from Ronald Reagan.

Let’s compare and contrast their electoral careers.

Rick Santorum narrowly won his first House seat 51%-49%. After two terms he then narrowly won a Senate seat with just 49% of the vote despite running during the ’94 Republican wave. After two terms he was then ousted, getting thumped by Bob Casey Jr. 59%-41%. In the 2012 Presidential election, he managed a virtual tie in the Iowa caucus, followed by a few wins in the south before petering out and losing the nomination to Mitt Romney.

Ronald Reagan, on the other hand, was twice elected governor of California, the largest state in the union. After almost accomplishing the rare feat of defeating an incumbent President in a primary in 1976, albeit one appointed by Richard Nixon, Reagan went on and won a decisive victory in 1980 against incumbent President Jimmy Carter, and was then reelected in one of the most lopsided contests in Presidential history, taking 49 of 50 states against Walter Mondale. He is widely believed to have cemented an electoral realignment that brought millions of new voters (so-called “Reagan Democrats”) to the Republican Party.

So whose vision should today’s Republican Party adopt? The big government, social-and-values-based conservatism of Rick Santorum? Or the keep-government-out-of-our-values, limited-government conservatism of Ronald Reagan (perhaps best exemplified today by Rand Paul, Marco Rubio and Ted Cruz)? Which sounds like the recipe for success to you?

 

Tuesday

12

March 2013

0

COMMENTS

Is There a Fundamental or Unalienable Right to Homeschool?

Written by , Posted in Big Government, Education, Liberty & Limited Government

Do parents have the rights to educate their own children? That’s the question at the heart of an ongoing legal battle between the Obama administration and a German couple who sought, and were originally granted, political asylum in the US on the grounds that Germany’s ban on homeschooling was a violation of their rights, and that being forced to return home would subject them to persecution. Reason covered the issue rather thoroughly in this video:

After a judge originally granted the couple’s request, noting that Germany’s policy was “utterly repellent to everything we believe as Americans,” the Obama administration naturally stepped up to defend the indefensible, claiming that homeschooling is “not a fundamental right.”

This is an outrageous assertion. There are few rights more fundamental than that of parents to direct the upbringing of their children. The US Supreme Court has afforded parental rights the respect they deserve, noting in Pierce v. Society of Sisters that “the child is not the mere creature of the state; those who nurture him and direct his destiny have the right and the high duty, to recognize and prepare him for additional obligations.”

Given its views on power in general, I suppose it shouldn’t be all that surprising to see the Obama administration disagree. Parental authority is, after all, in direct competition with that of the state, and is an important and necessary check against the growth of tyranny. It’s no coincidence that a Nazi-era German law is at issue here. Affording the state the unique power to indoctrinate the next generation with its own propaganda, without competition or recourse, is a serious threat to basic human liberty, and is also why we need to do a lot more than the basic minimum of allowing home or private schooling in the US. We need to end government monopoly schooling across the country and replace it with a system of choice, not only to improve educational outcomes, but also in defense of our liberty.

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About Me

profileI serve as Vice President of the Center for Freedom and Prosperity, a non-profit think tank dedicated to preserving tax competition and free markets. This site features my personal views, which are not reflective of CF&P.

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