Tag Archives: regulation

Freely Traveling and Peaceable Assembly

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The US government offers no adequate method for people to challenge their placement on its no-fly list, a federal judge ruled Tuesday in a case involving 13 Muslims who believe they’re on the list.

US District Court Judge Anna Brown found people lack a meaningful way to challenge their placement on the list, which bars them from flying to or within the United States. She also said the 13 people who sued the government have been unconstitutionally deprived of their right to fly.

The Federal government’s no-fly list is treated as secret, and it’s through this list that the Federal government determines who is barred from flying from or to US airports.

Brown earlier had ruled people had a constitutional right to travel and via this list, the Federal government had violated that right.

How do I get from this to peaceable assembly? These 13 innocents, by their placement—against their will—in company with terrorists who are on the no-fly list is one path. The government’s denial of their right, through denying them a pathway, to protest against that association and be removed from it is another. Preventing these 13 from traveling via a transportation of their choice—and so of associating themselves with travelers of their choice (strangers they may be, but still fellow air travelers)—is a third path.

Entitlements and Taxes

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Dr Ben Carson had a couple thoughts a while ago; they’re still valid.

On taxes:

What we need to do is come up with something simple. And when I pick up my Bible, you know what I see? I see the fairest individual in the universe, God, and he’s given us a system. It’s called a tithe.

We don’t necessarily have to do 10% but it’s the principle. He didn’t say if your crops fail, don’t give me any tithe, or if you have a bumper crop, give me triple tithe. So there must be something inherently fair about proportionality. You make $10 billion, you put in a billion. You make $10 you put in one. Of course you’ve got to get rid of the loopholes.

On health care:

Here’s my solution: when a person is born, give him a birth certificate, an electronic medical record, and a health savings account to which money can be contributed—pretax—from the time you’re born ’til the time you die. If you die, you can pass it on to your family members, and there’s nobody talking about death panels. We can make contributions for people who are indigent. Instead of sending all this money to some bureaucracy, let’s put it in their HSAs. Now they have some control over their own health care. And very quickly they’re going to learn how to be responsible.

The only place I disagree with him is on the degree of heritability of the HSA. Given the slowness of growth of the relevant supply (of health-related services) compared with the rapidity of growth of its demand, accumulating wealth in an HSA would over just a couple of generations create too much money earmarked for health services; this money would rapidly increase health services prices. And that would price those just starting out—newborns, new immigrants, and so on—out of the health services market, just as the present system and its immediate precursor have done. Instead, let the dearly departed’s remaining HSA be passed into his estate as an ordinary asset of the estate, and let each new entrant—those newborns, new immigrants, and so on—start their own HSAs anew.

Nonetheless, The Wall Street Journal titled their article about these thoughts “Ben Carson for President.” We could do worse.

Obama Is Legally Allowed to Enforce—or Not Enforce—the Law

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Amazingly, a professor at the University of Chicago’s law school wrote this in the New Republic, and he’s serious. Yet he cites not a single clause from the Constitution, not a single phrase, to support his…thesis.

Eric Posner wrote, among other things,

Would President Barack Obama, by refusing to enforce the immigration laws against millions of undocumented immigrants, be engaging in “domestic Caesarism,” as Ross Douthat charges [in a New York Times op-ed]?

…if he chooses not to enforce immigration laws against “up to half the country’s population of illegal immigrants,” as Douthat claims, the president wouldn’t be doing anything different from what his predecessors have done (or rather, not done).

There’s that Progressive morality, again. The rightness or wrongness of a behavior isn’t at all inherent in the behavior. No, the behavior’s morality is determined solely by whether someone else did it first or is doing it also.

And

The president cannot suspend or change the law: when he leaves office, the law will remain the same as it was, and the next president will be free to enforce it or not.

No, no president, nor Obama nor any “next president,” is free to not enforce the law (nor has any past president been, although past ones have been guilty of this, also; Posner is right on this much). Here’s what Article II, Section 3, has to say on the matter:

he shall take Care that the Laws be faithfully executed

Full stop. There’s nothing in there about taking Care if he feels like it or taking Care not to faithfully execute.

And

The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious.

with

Nearly all of this non-enforcement takes place with implicit congressional acquiescence….

This merely means Congress may be failing its tasks, too (“may be:” Congress has no obligation to allocate money to be spent in amounts a president might demand. A case can be made, in fact, that Congress allocates too much as it is); it in no way legitimizes Presidential lawlessness. Certainly, a lack of resources does increase the difficulty for a President. However, the difficulty in no way legitimizes choosing not to enforce.

This is, also, a straw man. This President also chooses not to enforce laws for which he has the resources: the Business Mandate and the Individual Mandate of the ACA; border security; delivery of subpoenaed documents to the Congress that subpoenaed them, including Benghazi, Fast and Furious, the IRS; refusing to comply with Congressional oversight; the list runs on.

Then there’s this:

People like Douthat wrongly think that separation of powers means that the president must do what Congress decides. That’s not the principle of separation of powers….

This is another straw man. The Constitution gave the President executive power for the purpose, among others, to take Care that the Laws be faithfully executed, not to choose among them to enforce only those convenient to him. In this guise, the President must, indeed, do what Congress decides: he must enforce the laws that they pass—and that become actual law when he signs the bill and thereby enacts it, or when they pass it again, over his veto. To do otherwise is the principle of Executive supremacy, embodied in monarchies like an earlier Britain’s, against which we rebelled some years ago.

And this:

If Congress cannot pass any laws because of gridlock, then it has violated its obligations under the Constitution, and accordingly the president has the right to use his enforcement powers to implement policies that serve the public interest.

Of course, a President has no such right. There’s that pesky Art II, Sect 3 clause, after all, which also contains no syllable of authorization for a President to create “law” on which he might then presume to act. Further, in the entirety of that second Article of our Constitution, there’s no such “right,” or power, or authority identified.

Above all that, the President has no authority to decide what “policies…serve the public interest.” That’s the province of We the People, who are the public, and we make those determinations through our elected representatives in the Congress.

Posner’s piece goes on, but you get the idea.

Appellate Court En Banc Hearings

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The DC Circuit a short time ago held in Halbig v Burwell that Federal regulations regarding Federal health plan exchanges violate Obamacare’s plain language: Federal subsidies, contrary to those regulations, are available only to health plan holders who got their plans through State-run health plan exchanges.

Adam White, in a recent Wall Street Journal piece in the context of that ruling and the Federal government’s subsequent appeal to the DC Circuit to rehear the case en banc, noted a couple of things.

One is how rare en banc (re)hearings are, especially for the DC Circuit:

The DC Circuit rehears virtually none of its cases. Each year the court’s three-judge panels make roughly 500 rulings, but the court averages roughly one en banc rehearing. This year has produced a bumper crop: two. The previous year: zero.

Then he got into why this is so.

…the court’s high standard, found in the Federal Rules of Appellate Procedure: en banc rehearing “is not favored and ordinarily will not be ordered” unless the case satisfies one of two standards. First, an en banc rehearing may be needed to “secure or maintain uniformity of the court’s decisions.” A three-judge panel is not allowed to overrule old precedents, even when precedents are in conflict; only the full court can do so, en banc.

Second, en banc rehearing is appropriate for what the federal appellate rules call cases of “exceptional importance.” For the DC Circuit, this standard has been met almost exclusively by cases raising serious constitutional issues. Over the past decade seven of the nine cases reheard en banc raised difficult questions of constitutional law, such as the rights of Guantanamo detainees or of terminally ill patients.

Cases that will substantially affect the court’s own workings also can be deemed of “exceptional importance.” In 2011, the court sat en banc to decide whether taxpayers could file lawsuits challenging IRS procedures for obtaining tax refunds.

Halbig was a straightforward application of the Obamacare law as it was written. That the 4th Circuit saw this differently isn’t relevant; the DC Circuit can only rehear its own cases, not those of sister appellate courts. There’s no precedent conflict here. Some might argue that the question has Constitutional significance, and I’d agree with them. However, neither set of litigants raised any sort of Constitutional question, and the case and the ruling turned on the law itself. There’s no Constitutional controversy here, either.

What about the case’s “exceptional importance?” Judge Harry Edwards, who dissented in Halbig, wrote this in a 1987 case [Edwards’ emphasis]:

[N]o judge agrees with all of the decisions handed down in the circuit….” But if each judge called for en banc rehearing simply to overturn a panel decision with which he personally disagrees, it would do “substantial violence to the collegiality that is indispensable to judicial decision-making.” Rather, en banc review must be reserved for “the rarest of circumstances… [with] real significance to the legal process.”

In the context ofHalbig, it’ll be instructive to see whether the DC Circuit’s newly appointed judges are appellate judges who happen to be Democrats or whether they are Democrats who happen to be appellate judges.

Another Government Overreach

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In a recent op-ed piece, The Wall Street Journal correctly decried the Financial Industry Regulatory Authority’s CARDS program. This program, cynically named “Comprehensive Automated Risk Data System,” is a program that wants to require all of our brokerage houses to report to FINRA massive amounts of data concerning our investment accounts, including what we’re doing in (with?) those accounts.

The op-ed correctly objected to CARDS’ massive collection of data, saying

FINRA says the ocean of data will help it spot a problem almost in real time, far earlier than if it showed up during a regular examination. …

But the financial crisis showed that more data doesn’t guarantee that regulators will know what to do with the information, and it’s as likely the data flood will overwhelm FINRA.

 

But the WSJ missed a far larger problem with CARDS (and with FINRA generally). The piece cited FINRA’s Chairman and CEO Richard Ketchum’s statement about CARDS’ purpose:

CARDS will allow us to collect and manage data from firms in such a way that we can quickly identify trends and product concentrations that are harmful to investors and take swift, responsive action.

Whose definition of “product concentrations that are harmful?” Why, Big Government’s, of course. This is the real danger of this sort of program: government usurping the free market’s role—and so, deprecating the market—in determining what is harmful. This simply makes the definition of “harmful” a political one, rather than a legitimate one.