Tag Archives: government

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.

Taxes, Fairness, and Equality

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President makes a big deal of his Progressive concept of “fairness,” and he makes no bones about his desire to use taxes to impose his fairness on the rest of us.  He also says plainly that his tax moves are “gimmicks” intended solely to impose his fairness, and they are not at all intended to be any sort of mechanism for improving our economy.  Fairness over growth—and he channels Theodore Roosevelt in the process.

Let’s explore this Progressive concept and an alternative concept of what is fair.

Candidate Obama said in a 2008 interview with Charlie Gibson,

Well, Charlie, what I’ve said is that I would look at raising the capital gains tax for purposes of fairness.

Last week, President Obama said,

There are others who are saying: “Well, this is just a gimmick. Just taxing millionaires and billionaires, just imposing the Buffett Rule, won’t do enough to close the deficit.”  Well, I agree. … I’d just point out that the Buffett Rule is something that will get us moving in the right direction towards fairness….

What the Progressives want is equal outcomes, all in the name of “fairness.”  Progressives insist that there comes a time when we’ve “made enough money,” and after that, we should “spread the wealth around.”  But is this truly fair?

What our Declaration of Independence talks about is

…all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness[.]

What John Adams talked about was

All men are born free and independent, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

What Theodore Roosevelt talked about, what he opened his “New Nationalism” speech with, was a desire for

an economic system under which each man shall be guaranteed the opportunity to show the best that there is in him

These all add up to equal opportunity.

“Fair share” is President Obama’s refrain.  Everyone should pay it.  Yet the top 10% of Americans by income paid nearly 70% of the total personal income taxes collected by the Federal government in 2008.  The bottom 50% paid nearly 3% of the total that year.  Further, the rich may be getting richer, but they’re also paying increasingly more in income taxes.  In 1999, those top 10% paid a little over 66%, and the bottom 50% paid 4%, of the total.

Under what economic system, though, is it most possible for a man to “show the best that there is in him,” to fully realize the potential in the opportunities open to him: a system where the most successful have their success truncated by having a government-defined excess trimmed off and given to another man, a system where the less successful are given, without effort of their own, a part of the earnings of another?

Or a system where each man can, indeed, achieve his fullest potential independently of the possible outcomes for others, even when that results in unequal outcomes?  After all, unequal outcomes are inevitable since while each of us is equal in our rights, equal before our Creator, we are not at all equal in our innate talent, our work ethic, our degree of interest in this or that endeavor.

Banks and Governmental Reform

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The World Bank report, “China 2030: Building a Modern, Harmonious, and Creative High-Income Society,” concerns China’s future over the next 25, or so, years, and it describes a number of “challenges” its economy faces.

The report suggests, with regard to the financial sector in particular (beginning in Chapter 5 of “Supporting Report 1”):

Despite the many reforms introduced so far, the Chinese financial system remains repressed, unbalanced, costly to maintain and potentially unstable….

and

Banks have been used as instruments of the government’s macroeconomic and sectoral policy goals and have not always been in a position to lend prudently.

The Epoch Times summarizes this way:

The report suggests that China’s financial sector is constrained by state ownership and regime interference. The Chinese state uses the financial sector to enforce its policies, preventing lending institutions from becoming a true market force.

Sound familiar?

 

h/t to Belmont Club

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.

Jobs

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The March Jobs report said there were 120,000 nonfarm jobs added in March, compared to economists’ expectations of 200,000 jobs and some 267,000, 275,000, and 240,000 added in December, January, and February, respectively.  The report also said that the population of folks actively looking for work—the denominator in the headline unemployment rate—shrank by 161,000 to 63.8% American adults as yet more people gave up on our suppressed economy and stopped looking for work.  This participation rate has fallen steadily for the last three years, from its nearby high of 65.8% in January 2009.

The long-term unemployed (jobless for 27 weeks and over) remained at 42.5% of the total unemployed.

Meanwhile, initial jobless claims increased by 13,000 to a seasonally adjusted 380,000 in the week ended April 7.  This also is the largest jump in a year.

Keep in mind that one month does not make a trend.

But.  Our economic recovery is in full bloom, all right.