Monthly Archives: April 2014

More Government Regulation Foolishness

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Used to be, brewers could send their spent grains, the leftovers after their brewing is done and the beverage…decanted…to ranchers to add to the latter’s feed supply.  Now, though, the FDA is “proposing” a set of regulations that would require brewers to treat their spent grains as pet food(!), meaning these leftovers must be dried and packaged without human contact.

This is expensive—too expensive for most brewers to handle.  Their landfill alternative isn’t any better: one Chicago brewer says it would cost him $100,000, every year, to send his leftover grains to a landfill.

To illustrate the benefits of this arrangement, so disliked by the government, for both parties, there’s this example.

…the brewers get those leftovers removed from their facilities for free.

And

…dairy and cattle farmers like Jim Minich, who gets 30 tons of spent grain from Revolution Brewing each week.  Not only does the grain save him more than $100,000 a year in feed costs, his 750 cows also produce more milk after [getting the spent grains.]

Never mind that there’s never been a problem for cattle or for humans eating/drinking the beef or milk from spent grain-fed cows.

There might be.  Sometime.  Maybe.  Gotta regulate.

The FDA does say, after a hue and cry, that they’re looking at revising these proposed regulations.  We’ll see.

Desperate for Revenue

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All those free perks, ranging from free food in company cafeterias, laundry services, and so on: Uncle Sugar now is looking to tax those things.  They’re in the stage currently of trying to discern who benefits—the company, which gets better productivity, or the employee who gets the goody—so the IRS can levy the tax against the “proper” target.

To what extent is this intended as a perk, a form of compensation, for the benefit of the employee, or to what extent is this just another way the employer gets the employee to work harder and longer and do things for the benefit of the employer? [David Gamage, Assistant Professor of Law at UC, Berkeley] said.

Will they come next after our coffee slush funds, the snack machines provided for free (even if we must pay for the actual snack—and which choices Momma Obama already is trying to regulate), the popcorn machines, the…?

But who benefits isn’t relevant.  The government is scratching for pennies here, and that’s a sign of desperation for money.  If the government is that needy—or even if it isn’t—it must cut spending, so its need for money is lessened.  The Feds have plenty of our money already; it needs no more of it.

Which is More Important?

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A Federal judge’s oath of office, or adherence to superior court precedent?  To be sure, both hierarchy in our judiciary and the precedence of rulings are critical to rule of law and to the US remaining a nation of laws and not of men.  But so is a judge’s adherence to his oath of office, and so is the Constitution.

Here’s the oath:

I, _________, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.  So help me God.

This oath is tightly bound to the Constitution of the United States in Article VI:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution….

Moreover, the Constitution is the supreme Law of the Land.

Hence my question: in a conflict between a judge’s (subordinate, in particular, but all judges in general) oath and rulings of a superior court, how must a judge resolve this?

The principles statement of our social compact shows one way:

[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…when a long train of abuses and usurpations…evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off….

While keeping in mind that such a thing is not to be done lightly or for triflings:

Governments long established should not be changed for light and transient causes….

Had subordinate judges been willing to rule contrary to the Taney Court on a matter of runaway slaves, a war might have been averted.  Had subordinate judges been willing to rule contrary to a superior court’s ruling, the 80 years of injustice flowing from Plessy might have been cut short.  Had subordinate judges been willing to contradict superior courts, property rights might still be intact.  The list goes on and on.  Notice that plural, though.  A single judge acting contrary is likely to act wrongly, and a court of law is not the proper venue for a lone act of civil disobedience.

Still, the question demands a care: is the precedent contrary to the Constitution, or is the judge’s opinion on the matter the thing that is wrong?  This answer can be sought out only after we recognize that neither a law nor the supreme Law is what a judge thinks it is; the law, the Constitution, is what the law, the Constitution, says it is.

Given this, is it possible for a judge to adhere to precedent and, as a result, violate his oath of office?  You bet.  Must he rule against precedent, then?  That’s harder in a practical sense.

The judge certainly can discuss matters with his fellows and develop a unified position to rule, all of them, against superior courts when they believe the superior ruling at hand is wrong—a morally necessary act of throwing off.  Notice though that this is a throwing off of the superior ruling, not of the superior court itself.

But when a single judge embarks on such a course, is it legitimate revolution, or is it insubordination?  A revolution requires more than just a single actor acting in disobedience; it requires a significant fraction of the men and women available to join the action.  Hence, that collection of like-minded judges, if such a collection can be assembled.  If a collection cannot, this does not, of necessity, demonstrate that he’s the one who’s wrong; however, the failure must give the single judge pause.  If that man still believes he cannot rule in accordance with his superiors, his proper course becomes to resign his office.

To return to the question, it’s clear that adhering to the oath is far more important than adhering to precedent.  The former never is wrong; the latter often is, because the precedent itself often is.  However, the response to such a conflict must be influenced by how widespread the error can be demonstrated to be.

Obamacare Rates

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So much (to pound the dead horse) for rates going down $2,500 per, courtesy of Obamacare.

The research team at investment bank Morgan Stanley surveyed 131 brokers, finding that December 2013 rates are rising in excess of 6% in the small group market, and 9% in the individual market.

But that’s just chump change, so far (except for the victims of the rise).

More:

[H]ealth plans are also predicting higher cost trends in 2014, after years of stabilization (much of it attributable to the economic downturn [and its long-term non-recovery, say I], which reduced medical utilization rates).

And:

Among the states seeing the highest annualized rate hikes (for the full 2013 year) in the individual market are Connecticut, which is averaging a 37% increase; Florida (42%); Illinois (33%); Michigan (39%); and Minnesota (35%).

Among the states with the biggest annualized spike in the small group rates are Delaware, which is averaging a 35% increase; Michigan (30%); and Minnesota (50%).

It’s interesting, too, to note that these are some of the most tightly regulated states; their regulations (now superseded by Obamacare regulations) greatly suppressed health “insurance” rates.

What To Do About Ukraine

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KT McFarland has some thoughts.  After taking notice of President Barack Obama’s foolishness in worrying that supporting the victim of Russian invasion in any material way might antagonize the victim’s attacker, she suggests [emphasis hers]

First, if the Ukrainian people want to fight for their freedom, we should help them.  …with intelligence, communications, and logistics.
If it comes to a civil war, the fighting will be short and bloody, and Russia will win.

Second, we should shore up our NATO allies.  We should reverse course and build the missile shield in Poland and the Czech Republic.

Finally, the US should take aim at Russia’s economy.  Russia does not have a modern economy, it’s a petro-power.  The only thing it sells that the world wants to buy is oil and natural gas.

To which I add, since I’m as unwilling as the Ukrainians to surrender their Crimea Oblast to the Russians, the following.

Arm the Ukrainian army: anti-tank and anti-aircraft weapons are easily transported, and these should be rushed in—by military convoy and by military cargo aircraft.  Russia still will win a short, sharp fight, as McFarland suggests, but they should pay a hard price in soldiers and military equipment, not only in rubles.  And if the supplies are sufficient to drag out the fight, well….

Send a squadron of the US Navy into the Black Sea.  Directly challenge the Russians in occupied Crimea—but make the Russians fire first, or not at all.  Make clear to the Russians that they need to consider challenging the US as well as Ukraine.

Third, in addition to reviving the missile shield, forward deploy—in Poland and the Czech Republic, certainly, but also in the Baltics.  And run some of those forces, along with a naval flotilla, up to the Polish and Lithuanian borders and Baltic Sea boundary surrounding Russia’s Kaliningrad Oblast.

Add some serious economic sanctions.

Drill, baby, drill.  And frack, baby, frack.  And sell the output to Europe and Ukraine.  This will immediately drop the price of oil and gas on the world market, severely reducing the major source of Russian income, making it difficult for Russia to maintain its armies in the field—and to continue developing, in contravention of existing arms control agreement, its medium range nuclear missiles.

We also need to deny Russia’s access to the US’ banking system, which is a major part of the international banking system, and pressure Europe to deny Russia access to the European banking system, which is most of the rest of the international banking system.  Without access to credit, dollars, or petrodollars/rubles, the Russian economy—which Senator John McCain (R, AZ) has accurately called a gas station masquerading as an economy—will be severely constrained, if it doesn’t collapse altogether.

Other than the prompt price drop, drilling/fracking won’t have an immediate effect on the Russian economy as a whole until the oil and gas actually start arriving in Europe and Ukraine, and freezing Russia out of the international banking system won’t produce an immediate effect until the Russians run out of dollar reserves.  But we need to keep both pressures on, not just until Russia pulls back from eastern and southern Ukraine, but also until Russia withdraws from Crimea.  And agrees to cancel its lease on the naval base in Sevastopol.  Russia has demonstrated these last several months that it can’t be trusted with military bases on other nations’ territory.

Finally, we have an agreement with Ukraine—as do Great Britain and Russia (which has already welched on that agreement) under the 1994 Budapest Memorandum—to guarantee Ukraine’s territorial integrity if they give up what was at the time the third largest nuclear weapon inventory in the world.  They did their part; we need to do ours.  Alone, if needs be.

Whatever we decide to do, though, we can’t wait on the EU or the rest of NATO.  They’re even more timid (if you can believe it) than Obama when it comes to Russia (or to the PRC, or Iran, or Syria, or northern Korea, or… but let’s stick with Russia’s invasion of Ukraine for now).

We need to move; Ukraine is out of time.  The window for idle chit-chat has closed.  Unless we’re going abjectly to surrender.

Update: According to General Wesley Clark (USA, Ret) and Phillip Karber, this administration even has refused Ukraine’s request for requests for such passive defensive equipment as body armor, night-vision goggles, and communications equipment. Such things are…provocative.

Appalling timidity from the Obama administration.