Monthly Archives: September 2020

Maybe It’s Time

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On two fronts. First is the Eu’s nakedly bad faith and extortionist attempt to interfere in Great Britain’s internal affairs.

The European Union on Thursday demanded that the United Kingdom immediately rewrite a new Brexit bill that would change parts of a divorce agreement it signed with the EU last year—threatening legal action if the outgoing member does not comply.
European Commission Vice President Maros Sefcovic met with UK Cabinet Office minister Michael Gove for crisis talks after the UK government proposed a new Internal Market Bill, which would allow ministers to “disapply” certain rules related to Northern Ireland agreed to in last year’s Withdrawal Agreement.

And Sefcovic’s ultimatum:

…withdraw these measures from the draft Bill in the shortest time possible and in any case by the end of the month….

The European Union has no beef with the Brits over their domestic bill until an actual violation of “international law” actually occurs. Sefvovic knows that full well. His threat is a naked attempt at intimidation and an example of the way the EU will treat all nations with the effrontery to seek to leave the EU, or even merely to object EU governance.

The other front is this: House Speaker Nancy Pelosi (D, CA)

[last] Wednesday warned the UK there would be “no chance” of a US-UK free trade deal if the UK undermined the Good Friday Agreement.

This is an arrogant and unconscionable intrusion by the Speaker into the Executive Branch’s Constitutional sphere: foreign policy. Pelosi also willfully ignores the additional Constitutional fact that the House has no say setting treaties of any sort: ratification of an international agreement into a treaty is the sole province of the Senate.

It’s time for Great Britain to stop wasting time and resources on trying to deal with the EU and to simply close out the “talks.” Prime Minister Boris Johnson and his government should spend the remaining months until 2021 setting their nation up for the no-deal separation that the EU is forcing as the EU’s offered alternative of surrender.

Equal Protection

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Recall that California, earlier this year, enacted a law requiring gig employers to reclassify those folks from contractors to formal employees—with all of the employee expenses that entails: half the payroll taxes due, retirement benefits, health benefits, paid time off, etc, etc, etc.

In response, a number of companies who’ve centered their business models on gig employees, have sued and have been fighting to force the law—AB-5—onto this fall’s ballot for the actual citizens to decide.

Related to the law and the hoo-raw surrounding it, are some additional consequences illustrated by this:

[M]agicians, freelance journalists, and interpreters have found themselves losing work: many small businesses say such measures would be too costly to implement, and have instead opted to cut back on their use of independent workers.

The Left doesn’t care, though, about this collateral damage [emphasis added]:

The ride-sharing and delivery companies’ legal and political push against AB-5 is “such a frustrating example of the way you can buy your way into a regulatory environment that suits you,” said Veena Dubal, a professor who studies employment law at University of California, Hastings, and has been a vocal critic of the companies. “They have been defying the order since Jan. 1. Meanwhile, a yoga studio doesn’t have that luxury.”

Sadly, this is a typical Leftist attitude. The well-off don’t deserve access to the means of legal defense or pushback because they’re well-off and others aren’t. The Left has not a syllable of a move to help those not-well-off gain the same access.

Dubal’s outcome would be one of no one having access. Which would cede everything to Government, where the Left thinks it all belongs, anyway.

Economic Evolution?

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In a Wall Street Journal Letters offering, one writer, in supporting the Chamber of Commerce’s change of position regarding massive government intervention into our private economy, wrote

The 2020 economy is far different than that of 1980, and so what is good for business now is necessarily different.

This is wrong on two counts. The first is that the reason the economy of 1980 seems different from that of 2020 is the explosion of government intervention and intrusive regulation over those 40 years. That’s not actually an economic difference, though; it’s a government behavior difference, with the economy changing in result, not from its own intrinsic evolution.

The other is that what’s good for business is a constant: a free market that’s competitive among businesses, a free market with government intervention and regulation limited to ensuring that business managers don’t lie in their contracts or their advertising and that those managers don’t abuse whatever monopoly power might come their way. Sound economic principles don’t change.

Raising Taxes on Day One

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That’s what Progressive-Democratic Party Presidential candidate Joe Biden has said he intends to do; his latest iteration of that intent was last Thursday in a CNN interview.

I’d make the changes on the corporate taxes on day one[.]

Leaving aside the…foolishness…of implementing such an attack on our economy’s health, there has been pushback on the Day One timing—no President, not even a Progressive-Democratic one, can raise taxes by fiat; such a move can only come from the Congress (and subsequently signed by a President or his veto overridden).

That brings up the scenario by which such a raise could, in fact, be implemented on the first day of a President’s term.

Recall that the new Congress always is seated roughly two-and-a-half weeks before the President is inaugurated. (That’s useful, since in the event a Presidential or Vice Presidential candidate doesn’t achieve an outright majority in the Electoral College, it’s the relevant house of Congress that selects the President or Vice President.) If the new Congress has Progressive-Democrat majorities in both the House and the Senate, it easily can pass the relevant tax increases and have the bill ready for the new President to sign into law in the hour after his swearing-in on 20 January 2021—Day One.

That adds to the premium on voting Republican all up and down the ticket in a bit under two months.

Textualism and Newspeak

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A 5th Circuit Court of Appeals has a case that’s well summarized (for the sake of my thesis) by the Institute for Justice in this way:

What are judges to do when they wish to be faithful to text but two provisions of the same law irreconcilably conflict? The Fifth Circuit brings us the answer with an annual Medicare health care provider compensation formula that overlaps for one day each year.

The court’s answer is a blithe engagement in Newspeak, textualism, and a misunderstanding of the duties of judges. The details of the case itself needn’t concern us here; it’s sufficient that it centers on those two provisions of a statute that contradict each other:

Here’s the conflict:  Federal regulations establish a compensation formula for the payment of certain health care providers—a formula that changes once a year.  But there’s a glitch.  Each formula takes effect on January 1 and runs until January 1 of the following year. That means that, on 364 days of every year, there’s no conflict. But on January 1, two competing formulas purport to apply, making it unclear which one governs:  the new one, or the one from the preceding year.

Now it might seem that a conflict of a single day and a judge or panel of judges picking one of them to govern is a trivial matter. But there’s a principle involved centered on the judiciary’s duty vs that of the political branches that far outweighs the trivium of a single day’s conflict.

Thus:

First, the court engaged in this bit of newspeak [cite omitted]:

respect for text requires that “judges must do the least damage they can.” And doing the “least damage” to the text means attempting to determine, if at all possible, which of the two conflicting provisions should govern in a particular case.

Then the court uttered this newspeak [cite omitted]:

“This is no departure from textualism,” but rather a “recognition” that the law “has produced a series of texts that cannot coexist.”

Of course it is a departure from textualism. The statute says what it says, neither more nor less.

It’s also the case that, under our Constitution, it is the Congress in concert with the Executive (occasionally overruling the Executive)—the political branches of our government—that write the statute; no one in the Judiciary branch has that authority.

Thus, when the plain, obvious, and rational meaning of one clause of a statute directly contradicts the plain, obvious, and rational meaning of another clause of the same statute in such a way that the statute cannot function until its internal contradiction is resolved, only the political branches that resolve the matter.

What, after all, is the court’s limiting principle here? When does a contradiction (for instance) exceed judges’ ability to do the least damage they can? How far can judges depart from the plain, obvious, and rational meaning of this or that clause without altering its plain, obvious, and rational meaning or disregarding it altogether?

How far can judges intrude into the role of the political branches of our government and remain true to their own duties as members of the Judiciary?

The questions answer themselves, and rather tautologically: judges cannot depart from the text without rewriting it. Not by a minim.

Nor can judges intrude into political matters farther than a minim. They can intrude to the limit of a minim, however, and the intrusion takes a much shorter path than trying to find one’s way through the Labyrinth of an Orwellian dictionary: they can rule that, taken as a whole, the statute is unconstitutionally vague from that internal contradiction rendering the statute inoperable, even if its separate clauses are crystalline; they can strike it.

The ruling can be read here.

 

H/t to Institute for Justice‘s Short Circuit newsletter [by free subscription; although IJ gratefully accepts donations at the link in this h/t.