Category Archives: rights

One Can Hope

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My post today comes almost entirely from an opinion supporting the DC Circuit Court of Appeals’ opinion upholding a lower court ruling denying a dairy farmer’s objection to milk price regulation as applied to his farms.  From the per curiam (i.e., from the court itself—the majority opinion is unsigned, although dissents and concurrences, if they exist, are signed) opinion in Hettinga v United States comes the summary of the farmer’s beef:

Plaintiff-appellants Hein and Ellen Hettinga appeal the dismissal of their constitutional challenges to two provisions of the Milk Regulatory Equity Act of 2005 (“MREA”), Pub. L. No. 109-215, 120 Stat. 328 (2006) (codified at 7 U.S.C. § 608c). The Hettingas alleged that the provisions, which subjected certain large producer-handlers of milk to contribution requirements applicable to all milk handlers, constituted a bill of attainder and violated the Equal Protection and Due Process Clauses.

The Hettingas’ dairy farms were the only farms in the United States that were affected by the MREA; however, the Appellate Court upheld the application of MREA over the Hettingas’ constitutionally grounded objections.

From Circuit Judge Janice Rogers Brown’s, with whom Chief Judge David B Sentelle agreed (forced) concurrence:

…their consternation at being confronted with the gap between the rhetoric of free markets and the reality of ubiquitous regulation. The Hettingas’ collision with the MREA—the latest iteration of the venerable AMAA—reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

More from her opinion:

As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights.

The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions.

She adds [her emphasis]:

…the Constitution created the countermajoritarian difficulty in order to thwart more potent threats to the Republic: the political temptation to exploit the public appetite for other people’s money—either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.

And

As another court has noted, federal regulation of milk pricing “is premised on dissatisfaction with the results of competition.” Alto Dairy v. Veneman, 336 F.3d 560, 562 (7th Cir. 2003). “M]ilk price discrimination is intended to redistribute wealth from consumers to producers of milk.” Id.

In the end, Judge Brown is quite blunt:

Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.'”

Are we seeing a pattern begin to emerge?  Is not the Patient Protection and Affordable Care Act the outcome of a similar political temptation to…buy consent with a broad-based entitlement and subsidy?  Is not PPACA a similar attempt to redistribute wealth from healthy consumers to the unhealthy—or those who are timorous about their future after a lifetime of their own health-related choices?

And by extension is not all New Deal and later Commerce Clause regulation similar pandering and playing on dissatisfaction with competitive outcomes in order to preserve the status of incumbents?  After all, the Commerce Clause was intended to regularize the commerce of the several states among each other and to give Federal control over international trade.  And nothing more.

And Judge Brown also is right about the legal argument of “rational basis review.”  There’s nothing at all rational about it.  Arguments for or against any regulation, or any law, must proceed from how well that regulation or law preserves individual liberties and responsibilities, not from how well the regulation or law asserts dominance of any group over the individual.

 

h/t Power Line, and both a hat tip and a bow to DC Circuit Judge Janice Rogers Brown.

Buncha Crybabies

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Officials at Six Rivers Planned Parenthood of Eureka, CA, launched a “40 Days of Prayer” “prayer campaign” in March that offers daily prayers for pregnant women and clinicians who perform abortions.

Naturally, the Progressives have their panties in a twist over it.  Liberty Counsel, a pro-life…litigation group…is bellyaching that this is just a “desperate attempt” to garner publicity and funding by mocking pro-choicers.

They whine, for instance,

Planned Parenthood’s prayer crusade is an attempt to mock and marginalize the highly effective “40 Days for Life,” which has unified half a million voices for the cause and saved at least 5,838 lives….

Here’s Liberty Counsel founder Matthew Staver:

“Planned Parenthood’s ‘prayer’ campaign is offensive.”

I might think, “poor babies,” were the beef not so cynical.

As a commenter at Villainous Company puts it in a related venue,

Pro-choice? Most on the Left side of the aisle are extremely ANTI-CHOICE; do it their way or don’t do it.  Applies to lifestyles (no conservatives, no big families, no religion), work (no traditional one-worker families), the environment (no industry, assumed to pollute without question, global warming), and so on.  NO CHOICE ALLOWED which contradicts, interferes or denies leftist policy; no flexibility, even when the participants agree on what they want.
WE MUST OBEY or be criticized in every available arena….

National Security and Education

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We don’t have enough concerns for our future.  Now a couple of items point out yet another.

The Council for Foreign Relations commissioned a report by an Independent Task Force which was co-chaired by chaired by Joel I. Klein, former head of New York City public schools, and Condoleezza Rice, former US National Security Advisor and Secretary of State.  The report laid out in so many words the failure of our K-12 education system, and the costs to our nation’s ability to survive if we don’t correct these failures.

A member of the task force, ex-Secretary of Education, Margaret Spellings, has one summary:

We don’t have nearly enough people who are capable in the STEM fields: science, technology, engineering and math.  When we think about the modern world of defense, the fact that we don’t have people who are capable to do this work is scary.

And

We don’t have people who know and understand foreign languages and other cultures….

The report itself summarized those concerns and put them in the context of five key aspects to the US’ competitiveness, and by extension, our survival as an independent nation:

Educational failure puts the United States’ future economic prosperity, global position, and physical safety at risk

These, according to the report, consist of economic growth and competitiveness, US physical safety, Intellectual property, US global awareness. and US unity and cohesion.

Moreover, funding isn’t the issue, actual performance is:

[While] the United States invests more in K-12 public education than many other developed countries, its students are ill prepared to compete with their global peers.

The failures, the report says, include these:

  • More than 25 percent of students fail to graduate from high school in four years; for African-American and Hispanic students, this number is approaching 40 percent.
  • In civics, only a quarter of U.S. students are proficient or better on the National Assessment of Educational Progress.
  • Although the United States is a nation of immigrants, roughly eight in ten Americans speak only English and a decreasing number of schools are teaching foreign languages.
  • A recent report by ACT, the not-for-profit testing organization, found that only 22 percent of U.S. high school students met “college ready” standards in all of their core subjects; these figures are even lower for African-American and Hispanic students.
  • The College Board reported that even among college-bound seniors, only 43 percent met college-ready standards, meaning that more college students need to take remedial courses.

For a nation of immigrants, and a nation whose demography requires a large and steady influx of immigrants, these are especially damaging.  How can we expect to remain the nation we have been, retain the cultural imperatives that made us so great, if we can no longer recognize who we are, or teach these to our newcomers—whether newborn or new immigrants?  How can we expect to remain the nation we have been, retain the cultural imperatives that made us so great, if we can no longer recognize where we came from, or identify where we want, as a nation, to go?

Klein added, and this is especially a propos that lack of a civics education, as well as our economic and defense technology competitiveness,

A massively undereducated country is not going to be competitive. It’s not going to be cohesive.

The Task Force offered three high-level policy recommendations:

  • Implement educational expectations and assessments in subjects vital to protecting national security.  Science, technology, and foreign languages are essential—as are creative problem-solving skills and civic awareness.
  • Make structural changes to provide students with good choices.  States and districts should stop locking disadvantaged students into failing schools without any options….  Enhanced choice and competition, in an environment of equitable resource allocation, will fuel the innovation necessary to transform results.
  • Launch a “national security readiness audit” to hold schools and policymakers accountable for results and to raise public awareness.  At the heart of this recommendation is the creation of more meaningful assessments and simulations of student learning and, then, a coordinated, national effort to create targets and repercussions….

The full report, U.S. Education Reform and National Security, is here:

As always, the devil is in the details.  These standards, this accountability, must be strict, rigorous, and followed with prompt reassignment or termination of those teachers or administrators who do not deliver.  The STEM courses not only should be taught at all grades, they should be supplemented at all grades with courses in American history, American civics, and the history of civilization.

And the standards and accountability must be applied to the students, also.  Those who do not perform must be held back until they do measure up.  And that, in addition to enabling our nation’s continued success, is the true path to Johnny’s self-esteem.

Lobbying with a Red Herring

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The Associated Press is joining the lobbying of the Supreme Court over the Patient Protection and Affordable Care Act, and its effort is either cynical or ignorant, depending on their motive for their chosen focus:

During the recent oral arguments some of the justices and the lawyers appearing before them seemed to be under the impression that the law does not allow most consumers to buy low-cost, stripped-down insurance to satisfy its controversial coverage requirement.

The AP presents this as a “possible misunderstanding” the “could cloud” the Court’s deliberations.

Of course, cost is only a peripheral issue, arising primarily from Justice Antonin Scalia’s discussion of the subsidy a young, healthy American (who does not need health insurance—and who used to be able to make that decision for himself) must pay, through forced purchase of unneeded/undesired health insurance, so that others, claiming the need, can afford to get health insurance.

The question before the Court—as all the players understood, making their arguments concerning the constitutionality of PPACA’s Individual Mandate, and by extension of the PPACA itself, as they did—is the question of individual liberties and the degree to which Government can, under our Constitution, limit our liberty for our own good.

Cost isn’t the issue—freedom and government control over an individual’s decisions is.

Another Government Mandate

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Last December, the Director of the Labor Department’s Office of Federal Contract Compliance Programs, Patricia Shiu, proposed, in all seriousness, a regulation requiring companies, apparently with 50 or more employees, to adopt a 7% hiring quota for disabled job applicants or be debarred from doing business with the federal government.  Note that this isn’t 7% of the total number of employees—Ms Shiu is a better micromanager than that.  This is a quota of 7% in each separate job category: “one or more jobs with similar content, wages rates, and opportunities.”

Moreover, Shiu’s rule attempts to require companies to encourage all job applicants to label themselves as “disabled” prior to being hired—apparently without any screening of applications or applicants for accuracy of the claim—and to require companies to engage in an ongoing compliance regime: companies must encourage all employees “to label themselves disabled after being hired, and once a year thereafter,” again apparently without any regard for the accuracy of such self-labeling.  Additionally, the rule would require each company to document, in detail, for each applicant not hired, why that applicant was not hired.  I wonder whether “Because I already hired someone for the position” would be acceptable.  On top of this, each company would be required annually to (re)justify and to  (re)document “the physical and mental job qualifications for [every] job opening…and to provide an explanation as to why each requirement is related to the job to which it corresponds” and to prove each requirement to be “consistent with business necessity.”

Labor’s estimate of the cost of compliance is cynically understated by two orders of magnitude: they claim a cost of just $81 million for roughly 200,000 companies to comply—a cynical $400 per company.  HR Policy estimates the true cost (not counting productivity costs, which are much harder to estimate) to be in the region of $1.8 billion—a more realistic $9,000 per company.  Of course, not included in Labor’s estimate is the cost of hiring all those bureaucrats into Ms Shiu’s burgeoning empire to monitor compliance.  Nor is the cost of all the lawyers companies will have to retain to defend themselves against all the litigation such a rule is going to encourage.

What constitutes an eligible disability?  Reading, concentrating, thinking, communicating, and interaction with others all are on the list.  I have to wonder at the productivity costs of having to have folks on the payroll specifically to read instructions to employees who can’t read; to do so repeatedly to employees that can’t concentrate long enough to absorb the instructions; to monitor employees who can’t concentrate long enough to complete the job assigned; to guide employees who can’t think clearly enough to understand the instructions they’ve just read or had read to them, or to figure out a task when no monitor is readily available; who can’t explain the trouble they’re having to their peers or supervisors; or who don’t get along with their peers or supervisors.

Oh, and hypocrisy notice: the Federal government itself has only 5% disabled on its payrolls—and the Labor Department’s percentage of disabled employees has decreased every year since President Obama took office, despite Obama’s sharp increase in Labor hiring.

There went the “opportunities.”  Why would a company hire at all in such an environment?  Sounds like a good reason to decline to do business with the Federal government.