Monthly Archives: March 2012

Some Thoughts on a Missile Shield

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Having gotten us to accede, back in 2009, to Russian demands that we not defend ourselves or our European allies against nuclear missile attacks from rogue states like Iran, the Russians are pushing the Obama administration around again.

Russian outgoing President Dmitry Medvedev is saying that any improvement to our—or to NATO’s—missile defense capability will be taken as breaking the existing nuclear parity with Russia, and they “will be forced” to retaliate.  Medvedev insists

No one has explained to me why we should believe that the new missile defense system in Europe isn’t directed against us.

He also has instructed his defense establishment that

By 2017-2018 we must be fully prepared, fully armed.

And he repeated an earlier threat to aim missiles at the U.S.-led NATO missile shield.  Left unspoken was his generals’ earlier explicit threat to immolate Poland with nuclear war if we were to put missile shield components there.  Never mind that the US has never been a threat to Russia or to Russian allies, while Russia has actively invaded and partitioned ours—Georgia being only the latest example, with Russian interference with Ukrainian elections their latest non-military interference.  And don’t forget the cyberwar they inflicted on Estonia in 2007.

President Obama’s response?  He hasn’t made one of substance.  “I don’t bluff,” he said in a different venue.  But what does that mean, if he has to protest that he doesn’t?

It’s clear to me that the Russian threats are a prime reason for going ahead with the deployment of a missile shield at our fastest pace.  And for updating and upgrading our military establishment generally, including our nuclear and cyber forces.

Two Tax Plans

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On the one hand, we have the House Republicans’ proposed tax plan, one whose construction was led by the House Budget Committee Chairman, Congressman Paul Ryan (R, WI).  The outline of this plan contains replacement of our present six income tax brackets with just two, 10% and 25%, and reduction or elimination of tax loopholes used by (the nebulously defined) “high-income” Americans.  Ryan suggested

Take away the tax shelter, subject all of their income to taxation, and get more revenue—and we can lower everybody’s tax rate in return.

Beyond that, Ryan conceded that at this early stage, it’s not possible to know whether these “wealthy” would gain or lose from the exchange, and he refused to go into detail on the loopholes to be cut or eliminated.  It’s the House Ways and Means Committee’s task to work out the tax details in any budget proposal; until the details are worked out, the impact of the changes is inherently unknowable; and Ways and Means discussions should be held by that committee in public, not by Ryan on talk television programs, including Fox News Sunday, where these remarks were recorded.

President Obama didn’t waste time objecting to the plan.  Through his senior advisor, David Plouffe, he told Fox News Sunday that Ryan’s plan “fails the test of balance, fairness and shared responsibility.”  This certainly does draw a stark contrast between the Republicans’ ideas and his own: he continues to demand his right to raise taxes, with the inherent unfairness of taking money that doesn’t belong to government in the first place, or of raising taxes to get money the government doesn’t need.  Obama went on, claiming the Ryan plan would give the “average millionaire and billionaire” a tax cut of $150,000:

It showers huge tax cuts on millionaires and billionaires, paid for by seniors and veterans.

Here is demonstrated Obama’s breathtaking omnipotence: it’s not possible to know the effect since the Ways and Means Committee has not written the details, but he “knows,” anyway.

Obama then disparaged the Ryan plan’s vouchers for Medicare while continuing to refuse to offer any evidence of the downside of such vouchers—continuing, instead, his drumbeat of cynically unsubstantiated claims of rising costs to seniors.  With these aspersions, he also ignores the market competition effects on costs from seniors shopping their business around among private health insurers.  Moreover, his complaint comes with his continued refusal to offer a solution of his own.  He insists, instead, on simply defunding Medicare through his Patient Protection and Affordable Care Act and his payroll tax cut, despite the pending financial failure of the current Medicare system.

On the other hand, the Table below shows Democratic Party’s tax plan for our consideration and discussion:

Oh, wait: they don’t have one.  They’ve refused these last three years even to offer one beyond the cynical jokes contained in Obama’s “budget” proposals.  They’ve just had the courage of sitting on the sidelines sniping at plans that others have offered—and then refusing even to discuss those other plans in the Senate.

A Thought on Regulations

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The Heritage Foundation has an interesting article about the costs of President Obama’s regulations.  I want to talk briefly about one aspect of that article, and to disagree a bit with the Foundation.

One of the outcomes of the Obama explosion of regulations is a concomitant explosion in red tape, and the Foundation suggests a solution to this.  The article at the above link cites an article by  James Gattuso and Diane Katz as containing the proper response: additional congressional oversight, claiming that such a thing is necessary to protect us and our economy from overregulation.  Moreover, Congress should require congressional approval of “new major rules promulgated by agencies, establish a congressional office of regulatory analysis, and establish a sunset date for federal regulations in order to ensure that substantive review of existing regulations continually occurs.”

Gattuso and Katz have it partially right.  There is no need for additional bureaucracy, Congressional or otherwise, to “oversee” us or our government.  That’s how we got Obamacare and Dodd-Frank and how we got the EPA foisted onto us.  The oversight is our duty as citizens, and we’ve been derelict in carrying out that duty.  It’s on us finally to get off our duffs and do our job.

There’s also no need for a “congressional office of regulatory analysis.”  That’s just more red tape waiting to happen.  If we want to know what a proposed regulation might cost, we already have an Office of Management and Budget in the Executive branch and a Congressional Budget Office in the Legislative branch to give us (perhaps conflicting) estimates.  These estimates then can help inform Congressional debate—see below.

The other two ideas are quite sound.  Every new rule proposed should be subject—individually, not in groups—to Congressional debate and Congressional approval, or rejection.  Moreover, every rule approved should be sunsetted: it should automatically expire after five years (to minimize the impact of political cycles).  If renewal is desired, then see above for proposed rules.

Some will object that this will greatly slow down the pace of rule-making, or that it interferes with Executive branch powers.  As to the first, what’s the downside of that slower pace?  As to the second, there is no such Executive branch power.  Executive regulatory rule-making authority is nothing more than a Congressional delegation of a limited capacity to the Executive branch, and that delegation can be withdrawn quite easily.

Bookkeeping

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Related to the Health and Human Services mandate to provide—and so to buy—contraception and abortion health insurance coverage at no cost to the “purchaser” is another final rule from HHS that requires those plans that cover abortion to collect a separate fee of $1 or more directly from the policy customers, with the money collected being used for abortion coverage.  The administration’s claim is that doing it this way means that abortions are not subsidized with taxpayer subsidies.

However.

Congressman Chris Smith (R, NJ) correctly observes,

Requiring the segregation of funds into allocation accounts—a mere bookkeeping exercise, is a cheap political trick designed to circumvent longstanding prohibitions on taxpayer funding of abortion.

Moreover, as Smith also notes, the rule pushes insurance companies obscure information about the surcharge in their benefits materials, so that customers are not readily able to discriminate among policies that do and do not cover abortions.  We’re all still subsidizing abortions, which violates the consciences and religious teachings of many of us.

With regard to the government as middleman denial, we’re all taxpayers—at least those of us who work and so must buy these policies and this coverage under that other HHS rule.  The idea that the Federal government isn’t acting as middleman in the collection and transfer of the funds doesn’t alter at all the fact that it is us taxpayers’ money that’s being used to subsidize abortion coverage.  But the premise that government isn’t middleman in this set of transactions is itself fictitious: it’s government that’s mandating the funds transfer; it is the necessary middleman here.

Finally, the dishonesty of this bookkeeping separation of the money is easily illustrated with a thought experiment.  Imagine a woman who has, in her mind, three needs: pay the rent, buy food, and get an abortion.  Imagine further that each of these items costs $1 and that the woman has only $2 to her name.  Now imagine a government man approaches the woman and says to her, “Here’s $1.  The only string attached is that you may not use this dollar to get an abortion.”  With the $3 the woman now has, she goes out and gets all three: she pays the rent, buys food, and get the abortion.  Prove the taxpayers’ dollar, which the government man gave the woman, was not used to get the abortion, when without that third dollar, she could not get all three, and with it, she actually did get all three.  That third dollar made it possible.

Some Thoughts on Obamacare

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Since the Supreme Court is taking up the Patient Protection and Affordable Act this week, I thought I’d rumble on about it for a bit.  There’s a nearby post of my rumblings on one aspect of the Act, the HHS contraceptives and abortion mandate, nearby.

As Adam White, of The Weekly Standard, points out,

Ordinarily, judges decide cases by applying the text of laws and the precedents laid down in previous cases. But the Supreme Court is no ordinary court, and the cases that it chooses to decide are not ordinary ones. Cases in which the lower courts disagree; cases of utmost national importance; cases for which there is little precedent or the written law is ambiguous​—​this is the Supreme Court’s daily fare.

Indeed.  However, for the Supreme Court, the text of the law can flow only from these sources: the supreme Law of the Land—our Constitution—and the law, here PPACA, as Congress wrote it and the President signed it.  Moreover, the Supreme Court can use that lesser law in its rulings only after finding that law to be constitutional—proper and necessary (not to the law’s purpose, but to effectuate one or more of Art I, Section 8’s enumerated Congressional powers).  If the law is not both proper and necessary, then the Court cannot use it in its ruling but must strike it down instead—and that, generally, becomes the substance of the Court’s ruling.

This is the sum of the present case before the Court: is the Individual Mandate part of PPACA constitutional, and by extension can PPACA without the Individual Mandate survive: is the Individual Mandate both proper and necessary.  Also informing the Court’s ruling, though, are secondary precedents, prior rulings by the Court in similar controversies.  These rulings are secondary precedents because they can only (legitimately) come into play after due consideration of what the Constitution actually says on this matter and then only after due consideration of the law itself—PPACA.

The present case rests on whether the Commerce Clause allows Congress to regulate individual entry into transactions, or whether such decisions can only be made by the individuals involved and only in accordance with the individuals’ own imperatives.  Next, the PPACA as an implementation of that regulation must be both a proper means of implementation—i.e., in conformance with the Constitution—and necessary—i.e., the most efficient and least intrusive means of effecting that regulation.

White goes on make a case for PPACA’s impact on the very structure of our governmental system, and the erosion, if not elimination, of the federalism system we have now, should PPACA be upheld.  In my meager post, I want to stay with the narrower questions: PPACA’s relationship with the Commerce Clause, the Necessary and Proper Clause, and individual liberty.

Commerce Clause argument

The Commerce Clause was well understood to regulate commerce solely among the several States and to regulate only the commerce of a product in being, explicitly excluding the original production of that product, regardless of the purpose of producing it (e.g., for interstate trafficking).  Thomas Jefferson made this point in his February 1791 Opinion… letter to President George Washington concerning the constitutionality of a national bank:

For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.

Plainly, the Commerce Clause was not intended to enable the Federal government to reach inside any State to regulate trafficking, either the State’s internal commerce, or any individual’s commerce, any more than could the government reach inside any of the other Sovereign entities of the clause.

Nor was the clause intended to empower the Federal government to control in any way that inter-State trafficking.  The Federal government was only to regularize, or make uniform, the methods by, and the framework within which, the States with their aggregated trade might engage in commerce with each other and with other Sovereign powers.  Moreover, the trade in question consists in the commercial interactions themselves; it does not include the behavior of engaging in those transactions.  What was regularized was the exchange, and regularization does not include dictating behavior to Sovereign entities, including (Sovereign) individual citizens.

Finally, health insurance, explicitly, is not interstate commerce: the 50 states all have their own mandated requirements concerning what coverages must be included in policies and what range of premiums can be charged for those policies.  And more to the point, those policies cannot be sold in across state boundaries.  PPACA plainly violates all of this, reaching as it does inside each state to require its citizens to obey a Federal mandate to engage in trade at all.  Thus, PPACA fails the Commerce Clause test and is unconstitutional.

Necessary and Proper Clause argument

The “necessary and proper” phrasing of this clause requires that laws, to be legitimate, must be required for the goal to be achieved; further, they cannot be just for any legislative or “worthwhile” desire.  Chief Justice William Howard Taft made this clear the “Child Labor Tax Case” [emphasis mine]:

It is the high duty and function of this court…to decline to recognize or enforce seeming laws of Congress, dealing with subjects not entrusted to Congress, but left or committed by the supreme law of the land to the control of the States.  We cannot avoid the duty even though it require us to refuse to give effect to legislation designed to promote the highest good.  The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

Under the limited government of our social compact, if there are two laws that can be considered, the less intrusive, the less restrictive, one must be the one chosen; the less extensive law meets the need and does not attempt to do more.  Further, to be a proper Law, even if it were the only means of achieving a Congressional goal—necessary—that Law must be strictly fit and suitable: it must satisfy one of the enumerated powers.

Again, PPACA fails.  It is not proper because it’s unconstitutional under the Commerce Clause.

Quite apart from that, though, it’s not necessary because there are a myriad of other, less intrusive, means of addressing the claimed problem of too high, and increasing, health care and health insurance costs.  One method, for instance, would be to regularize the commerce of health insurance across state lines, beginning with allowing that in the first place, thereby allowing competition in this trafficking to bring down costs.  Related to that step is the framework step of requiring policies of differing companies that cover similar conditions to describe those coverages in similar terms, thus to ease consumer understanding.  Related, also, would be the step of disallowing government price-fixing of insurance coverage, including allowing the insurance companies to charge risk-based premiums—which will increase coverage of, among other things, preexisting conditions thus allowing price competition to bring down prices.  And this is just a sample of alternative, less intrusive, less restrictive laws.

Individual liberty argument

The Individual Mandate, by itself, takes away our freedom of choice.  No longer can we choose, for instance, not to buy health insurance and roll the dice on our health—no matter how foolish some might think such a choice.  Instead, Government presumes to choose for us—for our own good: we must buy.  Supporters claim that, since we all will consume health services at some time in our lives, those of us who do so while uninsured are freeloading off those who are insured.  This, though, is a dishonest canard.  There are many cases—my own included—where uninsured consumers pay their own way, entirely, out of their own resources.  And in my case, it was not done out of an abundance of wealth: my family was a bit above the then Federal Poverty Guideline in current income when we paid cash, from our own carefully husbanded-against-the-eventuality resources, for my wife’s biopsy and her subsequent bilateral mastectomy.

The loss of freedom extends far beyond the mere loss of choice concerning health insurance.  If the Federal government can require, under the Commerce Clause or any other rationale, an individual to buy health insurance, then that government can require that same American to buy another product, also (a particular automobile, perhaps).  That government can require that American to not buy yet another product (a firearm, perhaps).  And more generally, that government can require that American to buy, or not buy, on the government’s schedule and at the government’s dictated price.  We will have lost all of our freedom, and all of our control over our own property with this single Act.

What is the limiting principle, the principle that keeps this law from being utterly boundless?  There is no such limit.

Finally, those who argue that Wickard, and the like, will require the Supreme Court to uphold the PPACA must also explain why Brown erroneously did not uphold Plessy, and they must justify an act of naked Federal coercion, at gunpoint, to reverse Dred Scott.

In a just world, the Individual Mandate can only be struck down as unconstitutional. And since the Government has made the Individual Mandate an integral part of PPACA, explicitly eschewing any severability, PPACA must be struck down in its entirety.