Category Archives: rights

A Moral Question

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Dr Paul McHugh has one, in particular concerning Vermont’s just enacted Patient Choice and Control at End of Life Act, which authorizes physician-assisted suicide, and to which he objects.

As McHugh points out,

The reasons for opposing…physician-assisted suicide never went away.  The reasons have been with us since ancient Greek doctors wrote in the Hippocratic oath that “I will neither give a deadly drug to anybody if asked for it nor will I make a suggestion to that effect.”  The oath is a central tenet in the profession of medicine, and it has remained so for centuries.

Indeed, the reasons are both wide ranging and of long standing.  And wholly valid, for those who agree with McHugh.  However, these are all moral reasons, and morality is an arena in which government has no place, any more than it has a place dictating or preventing the exercise of religion—for it is through religion that most of us find our morals, including on the matter of suicide, physician assisted or otherwise.

Such morals are among (in the present example) the patient, those who love him (and where appropriate have control over his fate), the doctor involved, and God.  This is no place for government.

Moreover, nothing in Vermont’s law requires a doctor to participate in a patient’s suicide; the law only permits him to.  If a doctor considers such a participation to be immoral, or for any other reason he does not wish to participate, he remains free to decline.

But, but—economic pressures will force him to participate, or public opprobrium will force him to do so.  Nonsense.  Eliding, for instance, the fact that the widespread support for McHugh’s position demonstrates that opprobrium will be balanced with approbation, a doctor who allows himself to be pushed into an act he considers immoral—or allows himself to be pushed into overriding that “any other reason”—is not a victim of an absent law, but only of the weakness of his own morality.

A Thought on the IRS

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Peggy Noonan wants an investigation into the IRS and its behavior over the last few years.  She has ample justification for one:

We do not know who ordered the targeting of conservative groups and individuals, or why, or exactly when it began.  We don’t know who executed the orders or directives. We do not know the full scope or extent of the scandal.  We don’t know, for instance, how many applicants for tax-exempt status were abused.

We know the IRS commissioner wasn’t telling the truth in March 2012, when he testified: “There’s absolutely no targeting.”  We have learned that Lois Lerner lied when she claimed she had spontaneously admitted the targeting in a Q-and-A at a Washington meeting.  …  We know the tax-exempt bureau Ms Lerner ran did not simply make mistakes because it was overwhelmed with requests—the targeting began before a surge in applications.  And Ms Lerner did not learn about the targeting in 2012—the IRS audit timeline shows she was briefed in June 2011.  She said the targeting was the work of rogue agents in the Cincinnati office.  But the Washington Post spoke to an IRS worker there, who said: “Everything comes from the top.”

And, she points out that we know about Catherine Engelbrecht.  We also know that the weight of the targets do not support the premise of this being simply an inability by low-level IRS employees to interpret the relevant tax law—”they” interpreted it, in Noonan’s words, “with a vengeance.”  And we know who “they” is: as a worker in the IRS’ Cincinnati office told the Washington Post,

Everything comes from the top.  We don’t have any authority to make those decisions without someone signing off on them.  There has to be a directive.

“The top” would include Lerner, who after denying any wrong-doing then pled the 5th in an effort to prevent anyone questioning whether that was true.  “The top” would include the ex-IRS Commissioner Douglas Schulman, who lied to the House of Representatives when he testified that there was no targeting going on—even as it then was going full tilt.  “The top” would include soon-to-be ex-Acting IRS Commissioner Steven Miller, who actively stonewalled, if not outright lied to, the House during his own testimony.

Noonan wants an investigation, a dead serious one:

The IRS has colorfully demonstrated that it cannot investigate itself.  The Obama administration wants the FBI—which answers to Eric Holder’s Justice Department—to investigate, but that would not be credible.  The investigators of the IRS must be independent of the administration, or their conclusions will not be trustworthy.

An independent counsel, with all the powers of that office, is what we need.

As she says, if the IRS isn’t stopped now, it never will be.  But an independent investigation also will meet with stonewalling and delay—and we have two critical national elections coming up in 2014 and 2016, short one and three years away.

What’s needed is a complete elimination of the IRS and a new agency put into its place— with today’s IRS incumbents, at all levels, ineligible to apply for work there.  (Separately, but just as critically, a total reform of our tax code into a simple flat rate, no exceptions system is necessary—which would dovetail nicely with replacing the present IRS with a much smaller, simpler tax collection agency.)  Unfortunately, this both is no more likely to happen than a serious investigation, and it also will take time.

Which puts a premium on getting started.

Did Lois Lerner Waive Her 5th Amendment Right?

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At the start of her testimony before the House Oversight and Government Reform Committee, Lois Lerner, the head of the IRS facility that ran the targeting of government-disfavored Americans and groups of Americans, made a brief statement, asserted her 5th Amendment right not to testify against herself, and then refused to testify further.  Lerner said, in her statement,

On May 14th, the Treasury inspector general released a report finding that the Exempt Organizations field office in Cincinnati, Ohio used inappropriate criteria to identify for further review applications from organizations that planned to engage in political activity, which may mean that they did not qualify for tax exemption.

On that same day, the Department of Justice launched an investigation into the matters described in the inspector general’s report.  In addition, members of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption.

I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.

The bulk of the rest of her testimony was a statement that her counsel had advised her to plead the fifth, and she was doing so.

The Volokh Conspiracy (the above link) polled a number of professors with criminal procedure expertise on the question, including a bunch who were experts on the 5th Amendment in particular; their collected response was summarized thusly:

Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened.  If that view is right, Lerner successfully invoked her 5th Amendment rights and cannot be called again.  But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point.  So it’s at least a somewhat open question.

I’m not a lawyer, nor do I play one on the radio.  However, I disagree with these guys.  One of the things on which Lerner stands accused, as she acknowledged in her statement, is giving false testimony.  Her statement that she did not provide false information is an explicit statement about a fact of what happened under that accusation; it seems to me that she waived her 5th Amendment right in this area.

Furthermore, her broader statement of having “not done anything wrong…” in the context of her prior statements, which tie this claim explicitly and exclusively to the subject of that hearing, strikes me also as a statement about the facts of what happened under the implied accusations, and so again she seems to have waived her right—this time broadly so, concerning all of the subjects of the hearing.  This statement isn’t even akin to a plea of “not guilty;” it’s a statement of “I didn’t do the things related to this case about which you intend to question me.”  A “not guilty” plea is only a statement that the accuser cannot prove his case—which is all a not guilty verdict means: the state did not prove its case.

An Outcome of Big Government

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The proper lessons of the unfolding IRS scandal are twofold.  First, any effort to have the IRS police advocacy activities of social-welfare organizations is bound to be clumsy and prone to degenerate into either selective or broad witch hunts.  Second, the remedy is not to further limit political speech by nonprofit entities—which would certainly raise significant constitutional issues—but to encourage such speech by imposing fewer restrictions.

That combines with this:

There are two valid takeaways from the IRS scandal [and the other scandals: AP; Benghazi; Sebelius’ HHS “fund-raising” for Federal government’s health exchanges, just exposed this year].  First, it confirms that big government, whose power Obama is bent on expanding, cannot be trusted to behave properly.  Second, it calls for further investigation to determine how high up the chain the wrongdoing extends and whether the administration acted promptly to stop the targeting once it learned of that activity.

The need for an investigation and the firing of miscreants and subsequent jailing of those miscreants whose behavior was criminal certainly is warranted.  However, the IRS’ unconscionable behavior, and the Obama administration’s behavior vis-à-vis the other…scandals…, aren’t unique to the Obama administration.  These are the inevitable outcomes of Big Government, even when that government acts with the best of intentions.

Our Federal government needs to be drastically shrunk in size and scope, returning it to the small, limited, and so controllable, entity that it was designed to be.

A first step in this, in the present context, would be to do away with the distinction between 501(c)(3) and 501(c)(4) organizations—the legal distinction is wholly artificial and without meaning, anyway.  All entities engaged in otherwise tax exempt activities must be able to engage in some political activity.  That’s at the core of the speech clauses of the 1st Amendment:

Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There’s nothing in there about “except for when individual Americans or groups of them peaceably assembled are doing certain government-identified things.”

Subsequently, reform the tax code altogether to a single low, flat tax and thereby eliminate the need for tax exempt status for any organization.

Progress

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Recall that the DC Circuit had struck down President Barack Obama’s “appointment” of three of his folks to the NLRB, ruling in blunt terms that these appointments were unconstitutional since they had been made while the Senate was in session.

Now the 3rd Appellate Circuit, centering its opinion on the “appointment” of Craig Becker in March 2010, has expanded on that for its area of jurisdiction (Delaware, New Jersey, and Pennsylvania), ruling that rulings made by this unconstitutionally constituted board were without effect since the NLRB, lacking a quorum, had no capacity for issuing its rulings.  The 3rd Circuit’s ruling says in part

We hold that the “the Recess of the Senate,” in the Recess Appointments Clause refers to only intersession breaks.  As a consequence, we conclude that the National Labor Relations Board panel below lacked the requisite number of members [three] to exercise the Board’s authority.

The narrow outcome of the ruling is this:

…a disputed union election that occurred at a New Jersey nursing home.  The NLRB denied the nursing home’s motion that the board illegitimately forced the company to recognize unionized managers.  The Appeals Court ruled that the board did not have the authority to dismiss the motion because of the recess appointments.

The broader outcome of the ruling is to invalidate over 900 rulings issued by the NLRB while it had no quorum with which to do so, including more than 200 since the board’s current makeup was ruled unconstitutional by the DC Circuit, which has national jurisdiction in such matters.

This can have only salutary effects for our country.