constitution

Politics is Conflict

by Fred Smith on May 3, 2010 · 1 comment

in Energy, Environment

In Massachusetts vs. EPA, the Supreme Court sided with a group of Green States seeking to impose draconian energy rationing schemes on America.  A few states have access to non-carbon energy sources (hydro-power or older nuclear power) and, thus, can reward their ideological majorities at lower cost.  But most Americans will become poorer as energy prices sky rocket.   With EPA moving aggressively toward mandating this new power, restricting energy use throughout the nation, conflict will surely erupt among the states of the union.

One of the most creative features of our Constitution was its concept of competitive federalism.  States were to be the laboratories of democracy.  The goal was not to impose national uniformity but to allow states to try different ideas – as long as those policies did not harm interstate voluntary exchanges. 

The Massachusetts decision harmed that arrangement as did the 1857 Dred Scott decision, which forced northern states to enforce southern slavery rules.  The concept of ensuring voluntary interstate commerce had little to do with the coercive institution of slavery but the recognition that slaves were “property” was stretched to force non-slave states into policies that they viewed as harmful and immoral.  Non-slave states responded by enacting laws nullifying that decision, refusing to allocate funds for its implementation and eventually to the Civil War.

The impact of Massachusetts is different but perhaps as significant.  Religious Malthusians are determined to enforce their Puritanical vision on America.  They are most powerful in a handful of coastal states and seem very willing to use federal coercion to force their beliefs on middle America.  States are already moving to enact laws and resolutions to oppose this push.  And as the lights go out and plants are shuttered throughout America, we may find ourselves moving toward greater conflict here too.  The prospect is worrisome.

Republicans Will Lose Many Seats in Congress Due to Right-Wing Paranoia About the Census

by Hans Bader on March 31, 2010

in Legal, Nanny State, Personal Liberty, Politics as Usual, Precaution & Risk, Privacy, Zeitgeist

Republicans will lose many seats in Congress due to right-wing paranoia about the census and refusal to fill out Census forms, gloats the liberal web site Daily Kos. The number of congressional districts a state gets is based on how many of its citizens return completed Census forms.  Because voters in conservative states are completing and returning Census forms at lower rates than voters in liberal states, conservative states will lose many seats in the House of Representatives that they would otherwise gain due to increases in their population.

Republican-leaning “Red States” will also lose out on billions of dollars in federal funds, which are apportioned based largely on population.

Unlike many things the federal government does, the Census is expressly authorized by the explicit language of the Constitution.  (As a believer in free markets, limited government, and the Constitution, I have criticized some of the legislation backed by the Obama administration as being unconstitutional and beyond Congress’s enumerated powers.  But the Census and the questions it asks are perfectly constitutional, even though some of those questions may seem unnecessary.)

A few white Census respondents are stupidly listing their race as “human” or “some other race” rather than white.  Many commenters at the conservative website Free Republic say they will just refuse to report their race on their Census forms, viewing it as irrelevant.

This inaccurate reporting of racial information may unintentionally prolong racial set-aside programs that are obsolete and no longer necessary.  By making the white percentage of the population appear smaller than it in fact is, such responses can make it easier for the federal government to get away with racial quotas, which are based on so-called disparity studies, which measure the supposed gap between racial percentages in the population and racial percentages in awards of government contracts.  Under Supreme Court rulings like the 1987 Paradise decision, quotas are supposed to be used only as a “last resort” and for no longer than absolutely necessary.  But faulty Census data can give them a new lease on life, even when they serve no valid purpose, and enforce, rather than remedy, discrimination.

Liberty Activists get a Black Eye, Keep on Fighting

by Jonathan Moore on March 24, 2010 · 1 comment

in Healthcare, Insurance, Legal, Odds & Ends, Regulation

As would be expected in the face of recently passed health care legislation this sweeping and controversial, pro-liberty citizens have been stepping out to oppose the bill.  One of the unusual tactics they have used is to turn to their state legislatures for what they see as protection from the encroachments on their liberties from the federal government. Legislation declaring a state’s opposition in one way or another to items in the federal health reform has been introduced in 37 states. Many states have even passed this legislation, and had it signed into law by their governors.

A hearing was recently held on one of these pieces of legislation, Maryland House Bill 603, the Health Care Freedom Act of 2010.  This bill would add an amendment to the Maryland constitution making it so that no person in Maryland would have to comply with an individual mandate to purchase health insurance, and that no person in Maryland will have to pay fees or penalties for refusing to buy health insurance. In short, it would preserve the freedom of Marylanders to contract with doctors they want to contract on their own terms, if they choose to do so.

There was much talk at the hearing about the Constitution, individual rights, and sovereignty of the states. One of the individuals providing testimony in favor of the bill at the hearing was Mark Kreslins, who leads a citizens’ political organization in Frederick, Maryland, known as We Surround Them (WST). WST is an organization dedicated to returning government to what they believe is the original intent of the Founding Fathers as enshrined in the founding documents of American.

They believe that the Constitution limits the federal government to 17 defined powers in Article 1, Section 8. Any government action which extends beyond the enumerated powers in Article 1, Section 8, is thus unconstitutional. They believe that the Constitution reserves the vast majority of state power for the states. The states, after all, existed before the federal government, and created it for clearly defined purposes. And the 10th Amendment to the Constitution states that all powers not delegated to the federal government are reserved to the states, or to the people. If the federal government was created with the intention that it have essentially limitless power to do as it wishes, then the 10th Amendment seems to be a nonsensical inclusion into the Constitution.

Mr. Kreslins testified that an individual mandate would be an unconstitutional exercise of federal authority, as the Constitution never gives the federal government the authority to mandate that all people buy insurance, and that it is the responsibility of the states to stand up for their sovereign rights, and to stand up for the rights of their citizens to own their own property and to do with it what they wish. It is thus entirely within the states’ authority, according to him, to refuse to obey this unconstitutional action on behalf of their citizens.

Many prominent constitutional scholars agree with state legislatures that an individual mandate for health insurance would exceed the power given to the federal government in the Constitution. For instance, Heritage Foundation legal scholars and well-known legal scholar Randy Barnett (who was a lead attorney in the Gonzales v. Raich case before the Supreme Court in 2005), have argued that the individual mandate is not only an unprecedented (few would debate this), but also an unconstitutional exercise of federal power.

Citizens fighting for individual liberty have gained some powerful allies in many state legislatures. The constitutional logic for state sovereignty is far from universally accepted by constitutional scholars. It will likely take a Supreme Court case to decide whether these nullification attempts will succeed in shielding state citizens from the most far reaching aspects of health care reform. But pro-liberty activists have not given up, even after passage of the vast health care reform bill.

In the spirit of full disclosure, Mark Kreslins is the author’s future father-in-law, the primary reason why the author was at the hearing at all.

Experts Question Enormous Cost and Constitutionality of Healthcare Legislation

by Hans Bader on January 13, 2010 · 1 comment

in Health and Illness, Healthcare, Insurance, Legal, Nanny State, Politics as Usual, Precaution & Risk, Regulation

The health care legislation backed by the president and congressional leaders will increase Americans’ health care costs by more than $200 billion, concludes an expert at the federal Centers for Medicaid and Medicare Services.

Earlier, Senator Orrin Hatch (R-Utah), a lawyer, argued that the “individual mandate” in the health care bill legislation, which forces people to buy health insurance, is unconstitutional.  Florida Attorney General Bill McCollum likewise is questioning whether it is constitutional to force people to do so.

This so-called “individual mandate” is unprecedented and appears to exceed Congress’s power under the Commerce Clause of the Constitution.  As the Congressional Budget Office noted in 1994, “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

As a news story notes, in Supreme Court rulings issued in 1995 and 2000, “the high court said the commerce clause is limited to economic activities that substantially affect interstate trade.”  (I was an attorney in the latter ruling, United States v. Morrison (2000).)  As UPI notes, “the weight of Supreme Court jurisprudence seems to favor a Commerce Clause challenge” to the health care legislation.

The individual mandate does not regulate activities, much less economic activities, but rather inactivity, by penalizing those who decline to buy health insurance. That exceeds Congress’s powers under the Supreme Court’s Morrison ruling, as I explained earlier.

The health care legislation also contains unconstitutional racial preferences for minority applicants, and lower standards of care for patients in predominantly-minority institutions.  These drew criticism from the Civil Rights Commission.

Most Americans oppose the health care legislation. It would reduce lifesaving medical innovation, raise taxes, drive up insurance premiums and the deficit, break many campaign promises, and impose heavy burdens on state budgets.  It  would also jeopardize the quality of medical care for many, while imposing restrictions that failed when tried at the state level, and ignoring advice from federal and academic experts, and lessons from countries with universal health care, about how to keep costs down.

Peekaboo! PCAOB More Powerful and Less Accountable than Government Claims

by Jonathan Moore on December 4, 2009 · 7 comments

in Legal

On December 7, the U.S. Supreme Court will hear Free Enterprise Fund v. Public Company Accounting Oversight Board. The case, brought by CEI and Jones Day attorneys on behalf of the Free Enterprise Fund, challenges the constitutionality of the way Public Company Accounting Oversight Board (also known as PCAOB, or not so affectionately as Peekaboo) members are appointed. The PCAOB, which was established by the Sarbanes-Oxley Act of 2002, is an independent governmental agency (according to Sarbanes-Oxley it is a private institution, but even supporters of the Board’s structure admit that it is a governmental body) whose members are selected by the SEC commissioners collectively. The lawyers arguing the case argue that this selection process violates the appointments clause of the Constitution.

The Constitution, in Article 2 sec. 2, establishes that the President “Shall have Power, by and with the Advice and Consent of the Senate to… nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

According to the Constitution, the President is responsible for appointing what has later been defined as “principal officers.” Further, if the officers are deemed to be “inferior officers,” Congress may give appointment power to the President, a judge, or the head of a department. Lawyers for the Free Enterprise Fund charge that regardless of whether the PCAOB members are principal or inferior, the Constitution has been violated. The President does not appoint the board members, and as such, if they are principal officers, the Constitution has been violated. If the board members, however, are inferior officers, they have not been appointed by a head of a department, rather, they have been appointed by the SEC commissioners.

Lawyers defending the constitutionality of the PCAOB have charged that the board members are inferior officers, and that the SEC commissioners collectively are the head of the SEC. Further, they claim that the SEC has complete control over the PCAOB through several powers, including the power to review all PCAOB rules, and approving the PCAOB’s budget. As such, they argue, this direct supervisory authority makes the PCAOB clear inferior officers, and since the President has control over the SEC commissioners, who have control over the PCAOB, the President has “fully effective control” over the PCAOB.

Yesterday, however, at an American Enterprise Institute event titled “Public Company Accounting Oversight Board: A Preview”, former SEC Commissioner (2002-2008) Paul Atkins provided an alternative story of the SEC’s control over the PCAOB, as well as refuting the claim that the SEC commissioners are collectively the head of the SEC.

Atkins noted several areas in which the PCAOB managed to evade SEC controls and operate very independently of the SEC. First, he stated that the PCAOB’s budget was not nearly as under control by the SEC as has been claimed. Atkins stated that the “staff at Peekaboo were not telling the truth” to the SEC about the PCAOB’s budget. His experience at the SEC led him to the conclusion that the SEC “didn’t really have the authority it supposedly did” over the PCAOB’s budget.

At one point, the SEC asked the PCAOB for a business plan regarding their operations. The PCAOB chairman informed the SEC that Sarbanes-Oxley “was his business plan” and for five years the PCAOB evaded the SEC’s demand for a business plan.

After the PCAOB produced their “Audit Standard 2”, “all five” SEC commissioners were in favor of “radical” changes to it, and yet it took the SEC years to even make “some” changes to the auditing standards due in part to PCAOB recalcitrance.

He stated that the PCAOB used “informal rulemaking” to adopt “staff-driven” rules which evaded the need to obtain SEC approval for all rules. As an example, he says that the PCAOB’s rule making regarding stock options was “not subject to any rule at all” despite functioning as a rule.

Atkins directly refuted the claim that the SEC has plenary power over the PCAOB, stating bluntly that the SEC’s “power is not plenary” regarding the PCAOB. He even said that a good analogy for SEC oversight of the PCAOB was that of “pushing on a string”.

Atkins also implied that considering the SEC commissioners as a collective head for the SEC was ignoring the realities of the day-to-day operation of the SEC. He stated that the chairman has considerably more power than the other commissioners. He noted that the 1950 Reorganization Plan 10 gave “authority over the budget” and “HR decisions” to the SEC’s chairman. He did say that consensus among the commissioners is generally important, but said that “in reality, he can still appoint whoever he wants” to critical appointment posts. And yet, this does not apply to the PCAOB, who are appointed collectively by the SEC. Further, Atkins even questioned whether or not the President had direct power over the SEC, a lynchpin of the defenders of the SEC’s argument. He stated that the SEC’s history “illustrates how difficult it is for the President to assert authority” over the SEC, much less the PCAOB.

Atkins’ telling of the SEC and PCAOB’s relationship calls much of the PCAOB’s legal defense into question. If the SEC lacks reliable control over the PCAOB, how can the President have “fully effective control” over the PCAOB? If, one wonders, the SEC chairman is treated as the appointer for other positions within the SEC, which implies that he is the head of the department, why is it that he does not have the power to appoint the PCAOB members? And why is the SEC chairman sufficiently powerful to act as the head in all other appointment cases, but when it comes to the PCAOB he must act as an equal to his fellow commissioners? And further, if the President lacks even control over the SEC, how can he truly have control over the PCAOB members, who are an additional step further down the chain of command?

These are some questions the justices should be asking on December 7.

Madison on National Health Care Reform

by Jonathan Moore on October 14, 2009

in Healthcare

Here is the letter I wrote that appeared in the Los Angeles Times in response to Erwin Chemerinsky’s article on the constitutionality of health care reform.  Chemerinsky teaches at UC Irvine’s law school.

Chemerinsky argues that according to Supreme Court precedent, the proposed health care reform bills will be considered constitutional.

Unfortunately, he is probably right.

The author of our Constitution, however, would disagree. In Federalist 45, Madison writes, “the powers delegated by the proposed Constitution to the federal government, are few and defined.”  According to Chemerinsky’s reasoning, Congress’ powers are anything but few and defined.

[click to continue…]

LibertyWeek 59: The New March on Washington

by Richard Morrison on September 9, 2009

in CEI Projects, Features, Podcast, Zeitgeist

Host Richard Morrison welcomes guest co-hosts Michelle Minton and Lee Doren to Episode 59 of the LibertyWeek podcast. This week we take a detour from the usual format and focus on the upcoming 9/12 March on Washington, where thousands of Americans from across the country will converge on Capitol Hill to protest record levels of government spending and borrowing. The demonstration is about defending our liberty and about restoring our Constitution by reducing the size and scope of the federal government.

The Irony of the Liberty Bill

by Evan Banks on June 21, 2009 · 2 comments

in Culture, Politics as Usual, Zeitgeist

H.R. 2854, a proposed bill making its way through committees, would require the Treasury Secretary to give the greenback a makeover. The bill aims to replace the Great Seal of the United States (which Franklin Delano Roosevelt incorporated in 1935) on the reverse of the dollar with excerpts from the U.S. Constitution including the preamble, a list of Articles, and a list of Amendments in the founding document. The bill, cited as the “Liberty Bill Act,” states that Congress believes that “many Americans are unaware of the provisions of the Constitution of the United States” and that the proposed new Federal Reserve notes would “remind the American people of the historical importance of the Constitution and its impact on their lives” and “remind Americans of the blessings of liberty. . .[and] of the framework of the United States government.”

Granted, I don’t consider myself an average citizen, but I personally carry a copy of the Constitution and the Bill of Rights with me to remind myself of the limits our forefathers placed on governmental power — limits which have secured to our nation the trappings of liberty and prosperity throughout the years. Undoubtedly it would be a good thing to see more people knowledgeable and well-versed in the basic principles of the founding documents of our country. There is a great and weighty irony, however, in printing portions of this document on Federal Reserve Notes, an institution which, according to some experts, is nowhere to be found in the Constitution.

I am reminded of George Orwell’s Animal Farm when I hear of proposed bills such as this one. You’ll perhaps remember the Seven Commandments which were written on the barn wall by Napoleon and Co. “in great white letters that could be read thirty yards away,” which constituted “an unalterable law by which all the animals on Animal Farm must live for ever after”:

1. Whatever goes upon two legs is an enemy.

2. Whatever goes upon four legs, or has wings, is a friend.

3. No animal shall wear clothes.

4. No animal shall sleep in a bed.

5. No animal shall drink alcohol.

6. No animal shall kill any other animal.

7. All animals are equal.

As anyone who has read the story knows, in the following pages the pigs go on to pervert, circumscribe, and later rescind every Commandment save one in the aforementioned list, concluding infamously and chillingly with the line “All animals are equal, but some animals are more equal than others.” Perhaps what is most troubling about this downward spiral, however, are the other animals’ reactions toward the pigs’ alterations, or rather their lackadaisical compliance to the pigs’ demands. Time and time again we are told that “somehow or another” the animals had forgotten that the pigs’ alterations to the Commandments had been there “all along,” or that it “did not seem strange” as the treacherous pigs increasingly take on the physical and amoral qualities of their former human masters.

Public display of the Commandments did nothing to halt or slow their eventual corruption. In fact, by turning them into a mantra (the sheep were especially fond of commandments one and two, but in the end fell to the pigs’ twisted influence all the same), Napoleon and Squealer were able to warp their meaning to the point at which the Commandments were used against the impressionable animals. Putting the Commandments on stage served as an accelerant to this end; the crafty swine knew that under constant public scrutiny what was once absolute would become slippery, then give way altogether and fall into a morass of meaningless impotence. Orwell himself cautioned in Politics and the English Language that “. . .if thought corrupts language, language can also corrupt thought.”

Too often in politics the meaning of words become liquid campaign slogans, transformed by gilded tongues into passionate promises and adamant assertions, or they are primed and charged with so many attached packets of meaning that the original meaning of the word stands as a hollow husk of what it once signified. By this process words become labels, and labels in turn become a little less than zeitgeist on the backs of transfixed ideologues.

As Friedrich Hayek put it in The Road to Serfdom:

The most effective way of making people accept the validity of the values they are to serve is to persuade them that they are really the same as those which they. . .have always held, but which were not properly understood or recognized before. And the most efficient technique to this end is to use the old words but change their meaning. Few traits of totalitarian regimes are at the same time so confusing to the superficial observer and yet so characteristic of the whole intellectual climate as the complete perversion of language, the change of meaning of the words by which the ideals of the new regimes are expressed.

Indeed, we must proceed with caution on this ground, or not at all. Rubber-stamping our money with the likeness of our most cherished pact between citizenry and government may make one set of papers more important, but it could render another set impotent as well.

On the other hoof, Congress has a point, I think, in stating that many Americans are unaware of the meaning and importance of the Constitution. I’m just not sure that the back of an inflated, central-bank issued fiat currency is the appropriate medium for learning about limited government.

What do you think? Would this bill profane one of the greatest foundations of our liberty by opening it up to the liquefying subversion of linguistic politics? Or will it actually serve to educate and remind people of the limits of government at a time when limited government is so badly needed?

D.C. Tea Party and the 1,000,000 Teabags

by Richard Morrison on April 16, 2009

in Video, Zeitgeist

[youtube:http://www.youtube.com/watch?v=4Bour14qOiE 285 234]

Tea Parties Should be More than Anti-Tax

by Michelle Minton on April 13, 2009 · 1 comment

in Culture, Features, Zeitgeist

You undoubtedly have heard that on April 15th many Americans will participate in Tax Day “Tea Parties,” a reference to the colonial tea parties that occurred in 18th century America. The protests have been widely covered by a broad range of media outlets.

The sentiment behind modern tea parties isn’t clear; it is varied. Some attending the protests want lower taxes, or to show their objection to the ways taxes are being used, some are there to object to the very idea of involuntary taxes all together and other protesters object to bailouts.

Like the original tea party modern tax day rallies should NOT be about taxes. Americans should protest the philosophy that led to high taxes, bailouts, and government waste; namely the presumption that government has a right to interfere in our economic lives at all. We should protest the presumption that government has the right to do anything other than protect the individual liberty of American citizens.

In 1773 The Tea Act gave special privileges to the East India Company that allowed it to sell tea at lower rates than all other companies, saving the company from economic ruin (a bailout 18th century style). Colonists refused the tea, turning away ships and in the case of Boston, destroying it. Why? Because Bostonians in the 18th century recognized the danger of such abuses of government power even though it provided a cheaper product in the short term. They rejected the tea on principle and it is that principle we should stand on today.

The American government seems to be mirroring the 18th century British government; applying discriminatory taxes on businesses, products, and citizens, using appropriated money to prop up preferred companies and failing to protect the freedom of individuals to pursue their own happiness. All the while those in power implicitly and explicitly in some cases attack capitalism, the only system under which individual rights are supreme. It is this attack on free markets and individual rights that citizens must oppose.

In the last two centuries Americans have forgotten that the only proper function of government should be to protect our individual rights which include the right to property, freedom from foreign and domestic force, and freedom to pursue happiness as we define it–not the happiness a governing body or society allows us to pursue.

It is time to remind the public that a government of the people and for the people must be constantly checked by the people. As Samuel Adams said

“The liberties of our country, the freedom of our civil constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks”

If you want to participate in a tea party in your neighborhood you can find out more here

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