Daily Archives: 6 April 2012

The Supreme Court and Rule By Law

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Steven Hayward, at Power Line, wonders whether the Supreme Court could take a mulligan on the Patient Protection and Affordable Care Act case before them.  The background for his question is this:

What people forget is that Citizens United was reargued, because the Justice Department also could not give a coherent answer to a killer question, this time from Justice Alito, as to whether the campaign finance laws that prohibited the distribution of Hillary, the Movie wouldn’t also allow the Federal Election Commission to regulate the distribution of books near election day.  Then-solicitor general Donald Stewart answered Yes, notwithstanding that pesky little First Amendment thingie.

Alarmed, the Court ordered the case reargued, specifically expanding its scope to ask whether certain previous cases that provided the basis for Stewart’s answer had been erroneously decided and should be overruled.  During the second oral argument, a new solicitor general—Elena Kagan—was asked the same killer question, and answered: “No [we can’t regulate books]; the government’s position has changed.”

Stop and dwell on that one phrase for a moment: “The government’s position has changed.”  That says about all you need to know about the rule of law in the liberal wonderland of today’s administrative state.

The question in the Court’s present PPACA case that raised Hayward’s concern was Justice Kennedy’s “Can you create commerce in order to regulate it?”

The question I have, though, concerns the Court’s position on the rule of law vs rule by law.  Why did the Court need to wait on the Executive’s instruction to it of the distinction between one form of free speech and another form of the same speech?  Surely it knows that there is no distinction, and it can rule on its own initiative.  Surely, it could have recognized on its own judgment that a proper ruling in Citizens (i.e., that speech really is a matter of freedom) would require acceptance that it had decided erroneously on earlier cases, and that those opinions would have to be overruled.  How many times was Brown argued on the recognition that Plessy would have to be overruled?

Surely the Court knows that when commerce does not exist, there is nothing to regulate, and by extension, government cannot create commerce out of the æther in order to have something to do.

That this Court needs these answers makes me wonder about its own attitude toward rule of law.  It got Citizens right, but it shouldn’t have needed additional (and in the event both erroneous and irrelevant) instruction from the Executive in order to do so.  It shouldn’t need additional instruction here, either.

He Just Doesn’t Get It, Treasury Precinct

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Eric Morath, of The Wall Street Journal, describes Secretary Treasury Timothy Geithner’s speech this week before the Economic Club of Chicago.  Geithner said,

The challenges facing the American economy today…are about the barriers to economic opportunity and economic security for many Americans and the political constraints that now stand in the way of better economic outcomes[.]

So far, so good.  But then, Geithner claims that the deficit- and debt-exploding “stimulus” spending this administration and its predecessor inflicted on our economy in 2008 and 2009 helped avoid a much deeper depression.  (As an aside, it’s interesting to note that, just as everyone else in this administration who’s made this claim has done, Geithner declined to offer any evidence whatsoever to support his claim.)  He also insists that government needs to do yet more to stimulate our economy.

Then he argued, in all seriousness, that cutting spending and taxes won’t stimulate the economy.  Here’s the Treasury Secretary insisting that leaving more of our money in our hands to spend—or save—according to our needs isn’t stimulative.

Additionally, here’s that same Treasury Secretary arguing the old, failed Keynesian thought that government spending, of its nature, is stimulative.  The thing with government spending, though, is that it crowds out private spending, it doesn’t add to it.  With the government buying, there’s less need for individuals or businesses to buy: government will, and give it to us.  Look at health care.  Look at food stamps (which I pick on due, among other things, to the impact of farm price supports and the government-mandated ethanol program on food prices).

And

There is no economic or financial case for using the fear of future deficits to cut as deeply into core functions of the government, to weaken the safety net or fundamentally alter Medicare benefits[.]

No, of course not.  He’ll just have more money printed up to cover those costs.  Never mind that all that inflowing printed currency is just inflation, either today or tomorrow, which will only erode the value of the money coming from that Federal spending—and the value of what money we still have after taxes.  The government can print money to keep up with its inflation.  We cannot.

No, Mr Geithner, the political constraints challenging our economy today consists entirely of too much Federal government interference in our economy.  The most important thing that government needs to do more of right now, to help our economy, to stimulate our economy, is to sit down and put its collective hands in its collective pockets.  Do more nothing