There is Hope

Yesterday, the US Court of Appeals for the District of Columbia (the court of jurisdiction, for those who are interested in such things, because this is the appellate court for matters pertaining to the NLRB orders) ruled unanimously that President Barack Obama’s “recess” appointments to the National Labor Relations Board of Richard Griffin, Sharon Block, and Terence Flynn (the latter of whom resigned from the NLRB shortly after) were “constitutionally invalid” because the Senate was not in recess at the time of the appointments.

Writing for the court, Judge David Sentelle had this to say, according to Bloomberg at the above link:

Considering the text, history and structure of the Constitution, these appointments were invalid from their inception[.]

The court expanded on that point in equally clear terms:

…the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings [an adjournment].

The natural interpretation of the [Recess Appointments] Clause is that the Constitution is noting a difference between “the Recess” and the “Session.”  Either the Senate is in session, or it is in the recess.  If it has broken for three days within an ongoing session, it is not in “the Recess.”

The court noted further that the Senate was in session at the time of these…appointments.

…the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued.

This also has implications for Richard Cordray and the Consumer Financial Protection Bureau he was “appointed” to chair, since he was put up in that same now known to be illegal batch of “appointments” as those NLRB folks.  The thousands of pages of regulations that board has already written now are of only questionable validity; although the question here isn’t so cut and dried: the CFPB had a quorum, and the matter here is the necessity of a formally seated chairman.  It also lends color to his nomination, for the current Senate’s consideration, to that same post.

Apparently, though, there are limits to Obama’s fiat governance.

An Out of Control CFPB?

But we knew that would be the case with a budget funded by on-demand calls to the Treasury and a deliberate lack of Congressional oversight.  Here are three examples, from Skadden Arps, the “second best global law firm,” according to Spirit of Enterprise.  In each case, the Consumer Financial Protection Bureau imposed enforcement orders that charged both restitution payments and civil penalties for the miscreancies that wanted restitution.  Those miscreancies generally centered on “deceptive marketing and sales practices” and “deceptive debt collection practices.”

Capital One: Required to pay $140 million in restitution and a $25 million civil penalty.  The penalty was nearly 18% of the restitution.

Discover Bank: Required to pay $200 million in restitution and a $14 million civil penalty.  The penalty was 7% of the restitution.

American Express: Required to pay $85 million in restitution and a $27.5 million civil penalty.  The penalty was 32% of the restitution.

Assuming the restitution amounts are reasonable assessments of the severity of the banks’ misbehaviors, those civil penalties seem to bear no relation at all to the…crimes.  They seem, in fact, to be capricious and out of control—just a grabbing of what an unaccountable bureaucrat felt like taking.

Skadden’s complete report (it’s long and wide-ranging) can be seen here.

Lies and Gun Control

The Coalition to Stop Gun Violence released this video, cynically and dishonestly omitting a key phrase from Congressman John Barrow’s (D, GA) campaign ad: “to stop a lynching.”  Here’s Barrow’s original campaign ad.  Play them both to completion, and you can see further cynical editing and distortion of Barrow’s actual position.

Asked about the editing, CSGV spokesman Ladd Everitt said this:

We didn’t have time to run his entire campaign ad[.]

But they did have time to lie.

Here’s another…misleading…claim, this time by Senator Dianne Feinstein (D, CA).

Feinstein points to two studies by criminology professors Chris Koper and Jeff Roth for the National Institute of Justice to back up her contention that the ban reduced crime.  She claims that their first study in 1997 showed that the ban decreased “total gun murders.”

However,

…the authors wrote [about the ’97 study]: “the evidence is not strong enough for us to conclude that there was any meaningful effect (i.e., that the effect was different from zero).”

Moreover,

Messrs. Koper and Roth suggested that after the ban had been in effect for more years it might be possible to find a benefit.  Seven years later, in 2004, they published a follow-up study for the National Institute of Justice with fellow criminologist Dan Woods that concluded, “we cannot clearly credit the ban with any of the nation’s recent drop in gun violence.  And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.”

Never let the truth get in the way of a good yarn, eh?

How very Progressive of these two.

Digital Democracy and Intellectual Property Rights

Aaron Swartz was a freedom of the Internet activist and an alleged hacker who was being prosecuted under an accusation of having hacked into an MIT JSTOR repository and downloading millions of copyrighted documents and making them freely available.  During pre-trial plea bargain negotiations, he committed suicide.  His suicide has put a spotlight on a serious debate, this one between intellectual property and digital democracy.

This debate flows from a false dichotomy.  Digital democracy demands the existence of intellectual property (rights), for without intellectual property rights, there can be no (digital) democracy—there can be only the rule of the stronger over the weaker, or the richer over the poorer.

Our own social compact recognizes the importance of this.  Article I, Section 8 says

The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]

Without such protections, there can be little incentive to invent at all, physically or intellectually, since the work can be taken by anyone with the physical or financial means to do so and made freely available—or for a fee of the taker’s choosing and payable only to the taker—thereby denying the inventor the ability to recoup even his development costs, much less to earn a living from his work.  Moreover, those inventions that can have significant financial value in a market and so will be developed anyway will, without such protections, be developed only in secret, at the attendant slow pace, and then only made available at high cost to well-off buyers—since once made available at all, the secret will be public and the mechanism of the invention freely available.  In short, the wherewithal to innovate will not exist for the common man, being only available to the strongest or the richest, and so innovation will occur only glacially and secretively, or not at all.

It is, further, the protection of property rights, intellectual or any other, that gives a man the wherewithal to improve his own lot in life, to increase his own prospects and prosperity, to satisfy his duty to family, friends, and neighbors.  It is the (temporary) monopoly control over his invention that enables the inventor to recoup his costs and subsequently to earn his living from that work.

On a practical level, it’s expensive to feed, digitize, and organize, for instance, JSTOR’s millions of files; accordingly, JSTOR charges subscription fees to recoup those costs.  Were Swartz and his fellows allowed to proceed with such hacks, innovations like JSTOR might not even exist to be attacked.

Reasonable men can argue about how long a man’s monopoly protection of his invention should last, but that he should enjoy that sole control over his invention and its issue for some period should be beyond dispute.

Texas on Gun Control

Copied shamelessly from Texas Attorney General Greg Abbott’s Facebook post.

You’ll fit right in here in Texas!

Here in Texas, you will have the liberty and the opportunity to achieve your dreams. On top of that, we have no income tax, yet still manage to have a multi-billion dollar budget surplus.

We have right to work laws and a reasonable regulatory environment. Texas has created more than 275,000 jobs in the last year alone! And we’ll fight like hell to protect your rights.

You’ll also get to keep more of what you earn and use some of that extra money to buy more ammo.

I hope to see you soon in Texas. In the meantime, sign up to show your support for our second amendment rights.

Sincerely,Attorney General of Texas

Take careful note of the details.