Quick Hitters

Today's headlines and comments offer such a broad range of topics, I can hardly focus on any one in particular.

Thoughtful commenter Steve, who often challenges me and Dean asks "What alternative plan would get more people to engage in end of life planning?" in response to my objection to government incentives to have this discussion. My response, nothing. The discussion shouldn't be the subject of government incentives because it pollutes the discussion. Further, medicare needs to be fundamentally changed because the government has an incentive for people to die early. If we are going to subsidize elderly health care, then we would be better off providing them a voucher to purchase their own health insurance, to which they could add their own funds. The health insurers could offer plans that include the counseling or not and the individual patients could make the decision.

According to the New York Post, union sanitation workers deliberately slowed the clearing of city streets to protest budget cuts, and the demotion of supervisors. There are indications that the demoted supervisors were culpable. Thanks for making the case for privatization gang. If private firms were contracted to do the work, this would not have happened if proper incentives were in the contract. (A big if, but I know of many ways to put proper incentives in contracts.)

I am worried about the economic recovery. The Wall Street Journal has some contradictory indicators. First, loan activity to businesses is increasing, usually something that is a lagging indicator for economic for recovery. Contrariwise, we see home prices stalling which could presage a double dip recession. My intuition is that housing prices were never allowed to fall far enough to allow for the economy to recovery. Peter Schiff makes that case today, but a picture is often worth a thousand words:


The efforts to prop up the housing market are going to come back to bite this administration, as falling prices and loss of equity choke off recovery.

Finally, more government action to help you die more quickly, at least if you have breast cancer. The FDA is forbidding the use of Avastin in the late treatment of breast cancer, on the basis that it is not "sufficiently" effective. Sufficiently in this case means that it costs too much. When did the FDA get into the business of deciding which drugs are too expensive? Avastin is good enough to treat other forms of cancer, and the FDA has not been aggressive in the past about off label use, so why the rush now? Does Obamacare have anything to do with it? Rivkin and Foley lay out the whole sordid tale.

However, there is some good local news. Walmart collected enough signatures to put the big box ordinance on the ballot. Now the City Council is going to have reconsider their folly. I hope they will repeal the ordinance and spare us the expense of an election. Another opportunity for new council member Lorie Zapf to shine.

Another Pension Crisis

Teamster support for Democrats in 2008 isn't going to save them from pension disaster.

Two days ago I tweeted about the newest pension issue, the underfunding of the school district pensions, documented by the U-T. In the latest Reason magazine, yet another pension debacle is documented. This problem is a little trickier to explain. In many unionized industries, multiple companies join together to fund a defined benefit plan called a multiemployer plan. There are about 1,500 such plans covering 10 million workers. However, the plans have some catches that are causing problems. First, they are defined benefit plans, so stock market or other investment losses increase the funding required. Second, they have a "last man standing" rule, that works like this. If five companies were originally in the plan and four go bankrupt, the fifth company is liable for all of the pensions in the plan. Third, withdrawing from the plan requires discharging the debt to the plan, and every major firm that has withdrawn to reduce future liabilities has had to pay in, far more than the markets predicted. For example, in 2007, UPS had to cough up $6.1 billion to withdraw from the Teamsters plan.

This is where a new accounting rule put forward by the FASB comes into play. The FASB is moving towards requiring that company exposure to liabilities under multiemployer plans be fully disclosed in financial statements. (The FASB is not a government agency, but the SEC generally enforces adherence to their standards.) The problem facing the unions is that once the rules are in place, they will wipe huge amounts of book value from company balance sheets. This will erode stock price and put participating companies under threat of bankruptcy. The threat to private sector unions is huge. From Reason magazine "Labor's Last Stand?" by Mark Hemingway (not yet available online):

First, unions will no longer have one of their most effective selling points: the promise of a stable job and a generous defined-benefit retirement plan. Second, workers who are denied their promised retirement due to gross financial mismanagement are going to get awfully litigious, awfully fast. Once aggrieved union members become fully aware of the problem, you can expect a flurry of class action lawsuits, with workers looking to recoup their lost retirements by going after the assets of the employers -- and unions -- that managed their plans.

This is why the unions have been campaigning so hard for card check, they need fresh members to start shoring up the plans with new donations contributions. Further, Senator Bob Casey introduced legislation last March, the Orwellian named Create Jobs and Save Benefits Act of 2010 to create an unlimited entitlement to have the United States assume liability for these plans, just as if they were Treasury bonds. Fortunately, the bill has not made it out of committee and did not appear to get traction in the lame duck session. Neither did card check for that matter.

Meanwhile, the FASB has put on hold the proposed change, probably at the behest of unions. But it probably doesn't matter, because investors are increasingly demanding to understand these liabilities and pricing stocks accordingly. Ultimately, these plans collapse will go a long way to destroying what remains of America's private sector unions, down to 7% of the work force, because they will take down many of the companies that are liable for funding them.

About Those Death Panels - More Overreach

The left is on the defensive over federal funding to incentive doctors to counsel patients to forgo aggressive end of life treatment, aka "death panels." I am not arguing that doctors shouldn't have a discussion about end of life treatment and patients make their wishes known ahead of time rather than in extremis. Good planning is good planning. But here is why I object to the regulations: (For a full explanation of the issues see the BWD article and read the comments.)

• Under what sane system can the administration impose regulation explicitly rejected in the law by the Congress? (This is why this example gets the coveted dictatorial overreach moniker.)
  
• The regulation provides for unlimited number of discussions, albeit only annually. At some point how does this differ from your doctor bullying you?
• The left argues, as they always seem to when caught in some shenanigans, that this rule was first implemented under Bush. As if George Bush was suddenly elevated to paragon status by the left. I point out that under Bush doctors could only be reimbursed for this once.
  
• Why did Democrat Earl Blumenauer tell supporters of the rule to keep it quiet?
• Those supporting the regulation refuse to admit that the government has a financial interest in encouraging patients to forgo treatment. You can argue the merits of the regulation, but denying the government's financial interest is dishonest. And frankly, that's what gives average Americans the creeps. If the administration can incentivize the discussion, what's to stop them from incentivizing the outcome. What lack of awareness causes the left to be blind to this?
  

If you disagree, please comment.

Quote of the Week

Professor Perry has the quote of the week, maybe the decade.

I’d say that Julian Simon’s advice remains as good as ever. "You can always make news with doomsday predictions, but you can usually make money betting against them."

Al Gore, call your office.

New City Hall? Call Lorie Zapf

Will we get a shiny new City Hall without a public vote? It certainly seems to be an open question according to today's U-T.

The debate over whether to build a new San Diego City Hall is expected to begin anew early next year as city leaders weigh three choices: abandon the project, put it to a public vote or bypass voters and build it.

. . . Now the project — and its projected taxpayer savings — could be revived by a new-look City Council that may be willing to forego a public vote and break ground.

Last November, when we defeated the half cent sales tax increase, we were told how essential city services were at risk if the tax increase was not passed. But somehow there is now hundreds of millions of dollars available for a new city hall? I don't put "Enron by the Bay" as my location on my blogger profile without cause.

But the worse news is that recently elected council member Lorie Zapf, who campaigned on a platform of fiscal responsibility to fund core services, is considering voting for this spending without putting it to a vote of the people. If she did so, it would be a repudiation of her campaign as well as proof that she is nothing but a tool of downtown business interests. To be fair, she has not officially marked out her position. From the same U-T article:

During the campaign, Zapf said she opposed the project but was open to a public vote. She was far less committal when her office was asked last week where she stood on the issue.

Zapf’s spokesman, Job Nelson, said the councilwoman thinks there is some merit to the project given potential savings in building maintenance and leased office space but understands why many are struggling with the notion of building a new City Hall while cuts are threatened to public safety and other services.

“We’re kind of stuck in the middle of this one,” Nelson said. “I would say we side with the community and we need to fix the strong distrust they have before we can try.”

The project’s fate likely hangs on Zapf’s final decision.

I urge my fellow Tea Partiers and all San Diegans, especially those in the 6th district to let Zapf's office know how we feel. To help everyone out, here's how we get in touch.

Email: loriezapf@sandiego.gov
Phone: (619) 236-6616
Mail:
Lorie Zapf
202 "C" Street, 10th Floor
San Diego, CA 92101

For the record, I endorsed Zapf in the primary and the general. I thought she was the candidate who had the most consistent voice speaking out against the domination of city hall by the unions. This is a chance for her to live up to her campaign promises.

The War on Drugs - A Tea Party Perspective

I ask my fellow Tea Partiers and Americans in general to consider the lack of wisdom in our war on drugs. The news story that prompted me to return to this subject are the wikileaks involving the DEA. The extent to which a civilian law enforcement agency has come to operate an international intelligence gathering mission is astounding in its breath. It is also frightening in that we have historically built protections between agencies and the armed forces dedicated to defeating foreign foes, and domestic law enforcement agencies, to protect the rights of average American citizens. The cables reveal the extent to which drug trafficking is enriching foreign despots and the way in which these leaders seek to co-opt the DEA to do their dirty work for them.

So why is this a Tea Party issue? Here is my case:

• Cost. The article points to the ubiquity of drug trafficking world wide. Effectively winning a war on an inanimate substance requires huge resources that we just don't have. Drug legalization would simultaneously put the drug kingpins out of business while vastly reducing the need for law enforcement spending on interdiction, etc. Those resources could be split between returning the money to the taxpayer and more effective policing elsewhere.
• Control of the Border. The steady flow of narcotics across the border makes securing the border much more difficult. While the bandits that traffic in human beings are violent enough, adding the military paraphernalia of the drug cartels has made border enforcement a nightmare. The nation needs to solve the border security issue, the cross-border flow of drugs makes this that much more difficult.
• Death. Americans keep dying in the war on drugs. Either innocent bystanders or government agents are regularly dying at the hands of the drug cartels. The money to pay for their weapons would dry up if drug manufacture were normalized.
  
• Freedom. This is the ultimate Tea Party issue. We believe in free markets, except when we don't, like in the case of drugs. But drug use is not different in any significant way from alcohol or tobacco use (or Four Loko use) for that matter. We don't interfere with Americans' rights to recreational activities, even if some of them overindulge. When people overindulge, we hold them accountable and get them help, if necessary (and I don't mean government help, I mean the kind of help you give to friends.)
  

I would love to hear from Tea Party supporters as to why I am wrong about the war on drugs. But you better bring your best arguments, defending a "war" started by Nixon that we have been losing for almost 40 years is pretty tough.

Christmas Recovery?

Various news articles I have read indicate that retail sales over the holidays are picking up steam, and the economy might be truly recovering. I certainly hope so, because there are a lot of hurting people who could use a job and a lot of business owners who desperately need more sales. My worry is that the nation at large will take this as a sign that we don't have underlying structural issues and monster debts that require near term action. The advantage of the great recession was that it focused the minds of voters on the causes of our travails and they responded rationally, moving the legislatures and the Congress sharply to the right with new members committed to fiscal responsibility.

Even if we do have a recovery, another recession is inevitable, because we have not repealed the laws of economics, and all economies have boom and bust times. Unfortunately, if we don't deal with the underlying deficits, liabilities and out of control spending of federal, state and local government that recession will come sooner than later and will be a depression, not a recession.

Meanwhile, if you are the beneficiary of what might be a temporary improvement in the economy, be careful about preparing for the next down turn. The importance of the Tea Party in focusing on out of control spending and pensions is needed more than ever, if the economy is truly improving.

The other thing to consider is that given the precarious state of the finances of many cities and states, massive default on obligations might precipitate another panic. I hope not, but we should be realistic and prudent about the current situation.

Weekend Music Chill - Christmas Edition

Merry Christmas, we have been posting extra music this week in honor of Christmas. Here is Margaret Becker updating an old favorite.



For some reason this song seems to be made for Celtic voices, here is Enya performing.

Christmas and the Culture

Merry Christmas. I know that not all of my readers are believers in the divinity of Jesus, as I am. However, even non-believers can acknowledge the historical impact that Jesus' life and teaching and that of his followers have had on the world. We tend to forget that in the time of Jesus' birth, morality had a very different meaning than today. The Romans considered it a mercy to only slaughter a portion of the civilian inhabitants of a conquered nation while making the remaining inhabitants slaves. Women had no rights whatsoever in most cultures. The poor were considered cursed or morally flawed.

Following the rise of Christianity, these attitudes changed, sometimes slowly, but inexorably. Today, much of what we believe in terms of morality has roots in Christian teaching. I acknowledge there are many exceptions, but the broad outline holds.

So why does this matter to the Tea Party and the nation? I think that we are in practice, moving away from those historical moral lodestones. Looking at the financial crisis, we see that it starts with the attitude that lying about mortgage applications doesn't matter (by all parties, by the way). It is exacerbated by the practice of the federal government and federal reserve putting the interests of banks ahead of the general public, a severe injustice. The practice of running up debts at all branches of government, that we know cannot be repaid also violates long standing Christian principles as well. That both union leaders and politicians were involved makes it no less an affront.

Finally, we are raising a generation of fatherless children. This is not directly an issue for the Tea Party, but it has far reaching implications for us. For starters, single parent households are the leading cause of poverty in America, which has a direct budgeting consequence. Further, fatherless children beget more fatherless children exacerbating the same problem as more young women and their babies enter the welfare rolls. Finally, those children become academic underachievers, compared to children with two parents. The lack of education, and more importantly, solid work ethic and other useful social skills harms the economic growth of the nation.

Certainly, these problems would be lessened if we rewarded the bad behavior less, or punished it outright, in some cases. Federal reserve transparency, reducing California welfare generosity, and requiring proper accounting for liabilities (i.e. telling the truth about them) will certainly help. But ultimately there is a cultural component to the issues we face. Today is not the day to fight that fight, but I urge all of us in our private lives to be mindful of advancing an agenda of personal responsibility, truthfulness and accountability. I doubt that I have a reader who would disagree with those moral lodestones, Christian or not.

And Merry Christmas. We live in a great country where the values I cite are alive and strong, even if under attack. Because they reflect eternal truths, I am confident of their ultimate victory.

Which Is the More Outrageous TSA flaws or DHS response

Temple of Mut has been warning us that TSA measures for airport security have not been implemented using an appropriate risk assessment methodology. From her blog:

As a safety professional, I have been doing RISK ASSESSMENT for years. Essentially, it is the concept whereby different factors that could impact a business are reviewed, and the resources to eliminate or minimize a hazard are selected based on a) How harmful the hazard is; b) How often the hazard is faced; and, c) The amount of materials/training/work it will take to eliminate/reduce the risks associated with that hazard.

Now Drudge has a headline linking to an article about a pilot blowing the whistle on the stupid ways that security is implemented at our nation's airports, echoing the Temple's criticism.

Here's a little YouTube:



Look at the heavy-handed manner in which the Feds (and Big Sis specifically) respond to criticism. So my exit question, which is more outrageous, the mindless tactics and kabuki theater of our airport security or the the federal government's heavy handed response to questioning. Also, in a nation where the federal government and local law enforcement can't agree on how to process illegal aliens arrested for felonies, how is it that county sheriffs can seize this man's pistol four days after he posts some Youtube critical of the a federal agency? I mean, what the hell, you can't even get that kind of cooperation to take down Mafia dons.

Feel the power of the dark side, young jedi pilot.

Weekend Music Chill - Christmas Edition

Merry Christmas, here is some extra music for the week, for long time reader and prolific commenter Road Dawg, one of his favorite bands:



I know its not the weekend yet, but I took some vacation days, so it feels like it.

Dictatorial Overreach

Dictatorship can be characterized as the capricious rule by the political party in power rather than rule by impartial law. Obama is setting a pattern of attempting to imitate Hugo Chavez in abusing the powers of the executive branch to undermine the rule of law and play favorites.

Obama started his Presidency thinking he had been elected Mayor (of Chicago), not President. Look at the arrogant tone from two years ago.


The most recent and most egregious examples of overreach include:

"I'm making a list. . ."

• Obamacare implementation. Everyday we are surprised by some new waiver or re-interpretation of the law that we were previously unaware of. Secretary of Health and Human Services, Katherine Sebelius is alternately bullying insurance companies, Chicago style or issuing blanket waivers from the law depending on her mood, apparently. 222 favored unions and businesses have received waivers on the types of coverage they can provide. This is a feature, not a bug, as the administration has built a system that allows it to play favorites and thereby reap political support in return for those waivers. Explain how the Soviets fundamentally operated any differently.
• Regulation of Power Plants for CO2. The EPA has announced that it will move forward with regulation to limit greenhouse gases from power plants and refineries. However, their approach exceeds their authority. If CO2 is truly to be regulated, then the EPA must apply the rules evenly across the board to everything that emits above certain limits. That would include every vehicle on the road. Further, they have yet to prove in court that CO2 is a hazard, since it is already in the atmosphere. The only court case, Massachusetts v EPA, specifically called on the EPA to regulate automobile emissions for CO2 or show cause as to why they would not. So the EPA's decision doesn't even accord with the only Supreme Court case on the subject.
• Net Neutrality. As I previously pointed out, the FCC is clearly exceeding their writ, according to both the Congress and the Courts. But why let that stop a naked power grab.
• Gitmo detainees. I criticized Bush for the conduct of military tribunals to try unlawful combatants held at Guantanamo Bay, because Congress had not passed the necessary regulations to allow a lawful tribunal to proceed. But in 2006, Congress passed the appropriate law. However, that-hack-Holder (all one word) decided he was going to hold civilian show trials. I say show trials, because the administration stated that the prisoners would not be released even if found not guilty. This was to show the supposed superiority of our civilian courts. In the latest twist ". . . the Obama administration is working on an executive order authorizing the indefinite detention of certain terrorism suspects the administration deems too difficult to put on trial but too dangerous to release." Even George Bush wasn't so cruel. Why can't they apply the law that was passed? No seizing power for the executive is much more the Chicago Way practiced by the One.

Maybe we will make this a regular feature, as the administration has certainly set a trend. Sorry to those who think I exaggerate the threat, but this is how dictatorship can come about, through the steady erosion of the rule of law and constitutionality.

Beginning of the End for Obamacare?

Good news, as reported earlier, killing Omnibus is having the salutary effect of starting the strangulation of Obamacare. From today's WSJ, via Drudge.

A Senate deal to fund the federal government until early March doesn't include money to enact the health-care overhaul or stepped up regulation of Wall Street, boosting Republican efforts to curb key elements of President Barack Obama's domestic agenda.

Democrats last week sought $1 billion to expand federal agencies to cope with health-care demands as part of a proposed $1.1 trillion spending bill. That measure died after Senate Republicans closed ranks against it under pressure from conservative activists. [ed. note: aka Tea Party activists.]

The article goes on to say that the administration could conceivably shift funding from other sources to support the start up of health care death panels or Wall Street death panels, for that matter. However, that would seem to leave them open to both court challenge and Congressional subpoena over the "appropriations clause," neither of which the President might relish.

My assessment is that his only chance for re-election is to do the bipartisan shuffle. (Is that racist?) Picking a fight with the Congress that he loses in the courts is only going to hurt him. Further, the Republicans, by taking the House, hold the upper hand in this battle.

Net Neutrality

. . . has been a big headline on Drudge lately. You don't actually have to know anything about the issues to know the Democrats on the FCC are wrong. How do I know? Congress never granted the FCC the legal authority to regulate the internet. It's that simple, there should be no other argument. If Congress wants to pass a net neutrality law, they can surely do so, without a whimper from the Supremes no doubt. But the extra-constitutional power grab by the Obama administration is exactly what the left always complained about Bush. To be fair, I complained as well. But you don't see them protesting now.

From an article on the Comcast decision last April, whereby the FCC was smacked down by the D.C. Court of Appeals:

But Comcast argued that the FCC order was illegal because the agency was seeking to enforce mere policy principles, which don't have the force of regulations or law. That's one reason that Genachowski is now trying to formalize those rules.

The cable company had also argued the FCC lacks authority to mandate Net neutrality because it had deregulated broadband under the Bush administration, a decision upheld by the Supreme Court in 2005.

The FCC defines broadband as a lightly regulated information service. That means it is not subject to the obligations traditional telecommunications services have to share their networks with competitors and treat all traffic equally. The FCC maintains that existing law gives it authority to set rules for information services, including Net neutrality rules.

Tuesday's court decision rejected that reasoning, concluding that Congress has not given the FCC "untrammeled freedom" to regulate without explicit legal authority.

With so much at stake, the FCC now has several options. It could ask Congress to give it explicit authority to regulate broadband. Or it could appeal Tuesday's decision.

Hopefully, the Supremes will take this up and conclude, again, that the FCC is on tyrannical bender.

Lame Duck Session

. . . or what has the Tea Party wrought. There's a nice summary at the Atlantic about this year's lame duck session of Congress. I think that it is going well from a conservative/libertarian point of view. My own round up:

• Defeating Omnibus. This sets us up for some big budget battles, but with a Republican House of Representatives. Two bits of great news, Republicans learned that business as usual wasn't going to fly. Second, no spending to kick off the numerous panels and boards of Obamacare.
• Bush tax cuts extended. Mostly good, but the real issue is that the tax code has become a monstrosity of complexity, sucking the life force out of the economy by distorting investment and spending decisions. I also like the fact that it sets up a fight over the issue when Obama runs for re-election in 2010, where his own words can be used against him.
  
• Don't Ask, Don't Tell Repeal. Don't care. CDRSalamander had one thought of note.
  
• Food Safety Bill (warning, Orwellian Titling). Republicans seemed to have stopped this perverse expansion of FDA power (whose goal is to kill us with "kindness") into heretofore unregulated areas of food safety, like your garden. They managed to let it get passed.
  
• START Treaty. This seems to be losing momentum. I am honestly not sure if this is good or bad, but since the White House wants to rush, I have to assume it's not good.
• DREAM Act Killed. More backdoor measures promoting amnesty. No deals until we secure the borders. Then there might even be some provisions in the DREAM act we could support, until then NO DEALS.

Overall, the Republicans have played the end game of their very minority status pretty well. It is our job to keep them on the straight and narrow path come January.

Fire the San Diego City Pension Board

Former union boss get $700,000 for lost pension

So says the headline in today's U-T. In another example of handing out illegal benefits to senior union officials, the IRS ruled that the city of San Diego's award of a pension to Judie Italiano, former head of the city's white collar labor union was illegal since she wasn't actually an employee of the City. (She also previously was involved in a scandal involving union credit cards at casinos.) She argued that since the pension was promised, she should get it anyway, illegality be damned. Judge Joel Pressman also agreed that the city owed her nothing, but

The pension board unanimously approved the deal in closed session Oct. 1 — 45 days before the judge ruled against Italiano.

Notice the familiar pattern, closed door deals that favor senior union leaders. Here's what the judge had to say about the settlement:

“This court does not see this as a good faith settlement,” he wrote in a tentative ruling. “It is a settlement crafted to give judicial cover to an agreement based on prior illegal acts. This court is not inclined to grant that cover. If the parties choose, the settlement can go forward but without this court’s good faith determination.”

Even the City Attorney disagrees with the settlement. Take a look at the members of the board, 6 of 12 members are former government employees. The others have financial industry backgrounds. Who speaks for the taxpayer? I don't even know to whom to complain, it seems that the City Council doesn't have any control over this either.

Lorie Zapf, what are you going to do?

Walmart San Diego Update

As I posted earlier, the San Diego City Council voted to require extra hurdles before Super Walmarts that sell groceries can set up shop in San Diego. The hurdles all but guarantee that lower priced groceries won't be coming to a neighborhood near you if you live in the city limits of "Enron by the Bay."

Richard Rider likes Walmart's chances and is predicting a smack down for the City Council. He says it's a foregone conclusion that Walmart will gather the necessary signatures to put a repeal measure on the ballot. He is also predicting that at least one Democrat will flip and the measure will be repealed. If you haven't done so yet, get out to Walmart and sign the petition. I love nothing more than seeing this City Council get slapped down when they run roughshod over the desires of the people.

Programming Note - Twitter

I've signed up for Twitter and added my Twitter feed to the blog. I hope this gives me more flexibility in pointing out items of interest and links that maybe aren't worthy of a full blog article. You can follow my tweets at BDaddyLiberator.

Weekend Music Chill - Christmas Edition

Merry Christmas to my readers. Temple of Mut is asking about our favorite Christmas music, I like both the traditional and modern, but I haven't seen much of the traditional variety of late. Here is the King's College Choir of Cambridge performing God Rest Ye Merry Gentlemen:




And we also have Good King Wenceslas performed by the Royal College of Music Chamber Choir:

More Good News - Thank Your Neighborhood Tea Partyer

Harry Reid pulled the pork laden, earmarked to glory "omnibus" spending bill today. W.C. calls out the Tea Party for saving the nation from bipartisan pork (supposedly the tastiest treat in D.C.). Note the manner in which senior Republicans were outed for their free spending ways. This is why primary challenges to the likes of Mike Castle were important, they make very credible the threat of primary challenges and move the nation towards fiscal sanity.

Gotta love the Drudge headline and the little blurb about McConnell's one page bill.

Not So Happy Bill of Rights Day

Today is Bill of Rights Day. Cato has the lowdown on the many ways that our government and courts have undermined our rights over the years. From attempting to ban the publishing of pamphlets without prior approval to arresting dying patients for taking experimental drugs, the Bill of Rights seems to have taken a beating. Go on over and read the whole thing, but I warn you, it's depressing.

What do you think is the most egregious unsanctioned violation of the Bill of Rights in the last century? (Not all amendments included):

1. Campus speech codes at public universities.
2. Brian Aitken's seven year prison sentence for legally owning a gun that was disassembled in the trunk of his car, but he happened to be in New Jersey.
4. Crotch inspections and full body nudie pics just to get on an airplane.
5. The truly awful outcome of Kelo v New London.
6. The fact that only about 1% of all cases go to jury trial because prosecutors have rigged the system to aid in getting plea bargained guilty pleas.

More on Judge Hudson's Rulling on Obamacare

Brooklyn Law’s Jason Mazzone (via Jonathan Adler on Volokh) states that Judge Hudson's use of the word "activity" to describe constitutional limits on Congress under the Commerce Clause is written to influence Justice Scalia, who wrote a concurring opinion in Gonzales vs Raich, see my previous post. Scalia apparently wanted to place limits on the commerce clause authority granted to the Congress, hence his separate opinion.

Scalia’s opinion in Raich on the scope of the necessary and proper clause refers throughout to the regulation of activity: he uses the word 42 times. Activity is the key to understanding Judge Hudson’s opinion in Virginia v. Sebelius.

There is also another avenue of challenge to Obamacare that I don't believe has been fully explored, the prohibition on Bills of Attainder. From usconstitution.net:

In the context of the Constitution, a Bill of Attainder is meant to mean a bill that has a negative effect on a single person or group (for example, a fine or term of imprisonment). Originally, a Bill of Attainder sentenced an individual to death, though this detail is no longer required to have an enactment be ruled a Bill of Attainder.

In Fountas v Dormitzer, a challenge to Romneycare the law was challenged on those grounds:

The method of collecting the fines was contested as a Bill of Attainder as the fines are collected through the income tax return without any charges ever being filed and the law does not provide for a trial in a court of law to determine guilt. Bills of Attainder are prohibited to the states by Article 1 Section 10 of the US Constitution.

However, this argument did not get a full airing in court. Further, I think the manner in which it was articulated misses the point. In my view Obamacare punishes a class of citizens who have not been provided health care by their employer or by the government. These citizens, by not taking any specific action, are then being punished for that failure without due process.

Not Celebrating Yet

The victory for the plaintiffs in Virginia vs Seblius, where District Judge Henry E. Hudson struck down the "individual mandate" is an important victory for the cause of constitutional government. This victory is more like a first down in football, important to keep the ball moving forward, but it doesn't put points on the scoreboard. However, I'm not popping any bubbly yet. This issue will be decided by the Supremes and they won't like having a case like this. However, decided, it will be on the narrowest possible grounds, I predict.

I turned to the Volokh Conspiracy to get a sense of the pros and cons. A couple of snippets from today's posts:

Orin Kerr:

[quoting Judge Hudson] If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity.

David Kopel:

3. Necessary & Proper “must be tethered to the lawful exercise of an enumerated power.” “The Minimum Essential Coverage provision is neither within the letter nor the spirit of the Constitution.” Therefore N&P can’t be used to rescue the mandate. p. 24.

4. Is the penalty defensible under the tax power? No. First, it is a penalty, not a tax. The distinction between penalties and taxes is still viable. Kahriger. Congress chose to characterize the penalty as a “penalty,” and changed earlier drafts which had called it a “tax.”

Jonathan Adler:

The federal district court’s decision declaring portions of federal health care reform unconstitutional reaffirms that the federal government has limited and enumerated powers. The theories advanced by the federal government in support of the mandate were without bounds and could have justified virtually unlimited federal control of private activity. Reforming America’s health care system is important, but just like everything else, from national security to environmental protection, it must be done in a way that’s consistent with constitutional principles.

Timothy Jost from a New York Times blog:

Judge Hudson held that this requirement exceeded the power of Congress under the Commerce Clause because it does not regulate economic “activity.”

Judge Hudson has effectively rewritten the Commerce Clause, which nowhere contains the word “activity.” This is a version of an argument that has been rejected before. In two major Commerce Clause cases, Wickard v. Filburn and Gonzales v. Raich, the party challenging the statute claimed to be outside of the stream of commerce, but the Supreme Court held that the party nevertheless had an effect on interstate commerce.

It seems that the arguments boil down to this: Since any economic activity or lack of activity will have an effect on interstate commerce, is there any limit on the power of the Congress to regulate activity under the constitution.

By the way, the Gonzales v Raich case was a California medicinal marijuana law that I thought wrongly decided which relies upon a 1930s case regulating the production of wheat for home consumption, Wickard v. Filburn that I also thought was wrongly decided. Even though I am in agreement with the outcome of the case, the tide of historical case law is running against Judge Hudson's ruling. However, given that this ruling would remove any limit on the Congress under the Commerce Clause, I am not sure that the Supreme Court will want to set such a precedent.

Note however, that the argument that the penalty is a tax was thoroughly demolished here.

Ron Paul Will Head Fed Oversight Committee

Good news. The Republican leadership didn't cave to Wall Street and deprive Ron Paul of the leadership position as chair of the House Domestic Monetary Policy Subcommittee. This is great news considering this Bloomberg News report from December 2:

Five GOP leadership aides, speaking anonymously because a decision isn't final, say incoming House Speaker John Boehner has discussed ways to prevent Paul from becoming chairman or to keep him on a tight leash if he does.

I have had my differences with Ron Paul, I think he can be a crank, and his criticisms of the Iraq war in 2008 were unfounded. However, the Fed needs oversight and accountability to the American people and Ron Paul is the man to provide it.

I blogged previously that I have become uneasy with Fed policies that seem to lack a clear connection to their mission of acting as the country's central bank and policies designed to keep some businesses afloat on your dime. A core Christian principle is that we all need accountability and this goes for purportedly infallible institutions as well. I look forward to Federal Reserve Board of Governors members answering under oath how they perform their duties without favoritism and how they came to bail out businesses not even remotely involved in banking.

I am not advocating abolishing the Fed as Ron Paul has, only that it receive oversight and be held to the same level of scrutiny as all of our governmental institutions.

Mitch Daniels - Anti-Obama

Mitch Daniels is a dark horse for the Republican nomination for President in 2012. Mona Charen has some nice things to say about him today. He should get KT's nod with this quote (I also agree):

“If I could wave a magic wand, and change just one thing, it would be to guarantee that every American child could grow up in a two-parent home until the age of 18. That would solve maybe three-quarters of our problems.”

However, Daniels has famously called for "truce" on social issues. From a Weekly Standard interview:

Beyond the debt and the deficit, in Daniels’s telling, all other issues fade to comparative insignificance. He’s an agnostic on the science of global warming but says his views don’t matter. “I don’t know if the CO2 zealots are right,” he said. “But I don’t care, because we can’t afford to do what they want to do. Unless you want to go broke, in which case the world isn’t going to be any greener. Poor nations are never green.”

And then, he says, the next president, whoever he is, “would have to call a truce on the so-called social issues. We’re going to just have to agree to get along for a little while,” until the economic issues are resolved.

Indeed, this is the view of the Tea Party. Notice that Daniels never says that social issues aren't important, just that the magnitude of the deficit spending and economic crisis requires our attention, first and foremost. That Mike Huckabee came out swinging and arguing against this view of priorities disqualifies Huckabee for the nomination, in my judgment as an ideologist for the Tea Party movement.

Here are a couple of interviews in which Daniels makes eminent sense.






Mitch Daniels seems a bit charismatically challenged, but he has an impressive record. Exit question, can the 2012 Republican nominee win with a "my record" is my charisma approach? My answer is a resounding yes, people will be tiring of the faux charisma and failure of the current administration.

Clinton and Obama Impromptu Presser

Apparently, he's thrown in the towel, and I don't mean Clinton. The Republicans need to nominate someone reasonable in 2012 and they can easily beat this man who has apparently given up.

Fast forward to the 10:45 point for the money shot from today's impromptu press event:



What a tour de force, even if you disagree with the man, he has a command of the issues that escape the current occupant of the White House. Skip to any section of this video and ask yourself who could have done better. His understanding of the meaning of current high cash balances held by major corporations is beyond any living Democrat politician.

Best snark via Hotair on Twitter: "Finally, America has a black President again" (Michael Goldfarb).

Just remember, it's always about Bill.

Weekend Music Chill

Tomorrow is Army-Navy, so I wanted to play a tune that was reminded me of my time in Annapolis. I'll leave it to the reader to figure out the connection.



In the meantime, Go Navy, Beat Army!

As Predicted

. . The Obama "framework" on a tax cut deal is not done. Drudge is linking to a story that House Democrats are unified in opposition. What this means is not known. But what is known is this, Obama by agreeing to something that he then angrily denounced has played a strong hand badly and is now going to look weak(er) and (more) ineffectual regardless of the outcome. Meanwhile, all taxpayers are going to experience tax increases on January 1 almost assuredly, because the lengthy negotiations to get out a bill won't leave the IRS time to change payroll deduction tables. With unemployment again on the rise, back up to 9.8%, this is as foolish of a political move by the Democrats as I could have imagined, validating the voters' judgment about their competence as expressed last November and leaving out all room for doubt. Great shot of Princess Nancy on Drudge:

"Let them eat cake. "

Democrats Advancing the Freedom Coalition Agenda

Before the Tea Party movement started, I blogged that the Republican Party needed a new agenda based on its founding principles. An early post was my Freedom Coalition agenda, which I revised again last March. One of the platform planks is school choice.

But the fact is that it is Democrats who are actually advancing this cause. Dean opines is because they have the constituents in the worst schools where conditions are horrific enough to prompt action. Dean has the goods on the latest effort in Compton. This is a classic showdown between traditional Democrat constituencies of inner city African-Americans vs. the teacher's union.

Not Putting Their Money Where Their Mouths Are

I am often appalled by the likes of Warren Buffet and Bill Gates saying that taxes should be raised. Just because they are uber-wealthy and aren't really impacted, they think they can tell everyone else what their tax rates should be. Here is Warren Buffet:

"But I think that people at the high end -- people like myself -- should be paying a lot more in taxes. We have it better than we've ever had it."

Gates admitted that he voted for the Washington state ballot measure that would have implemented an income tax and was sorry it lost.

But dig this, Buffet and Gates are among 16 billionaires that have pledged to give their billions to charity. That's right, higher taxes for you and I, estate taxes for those whose family business is the means of support for their heirs, but when it comes down to choosing where their money goes, these billionaires aren't about to let Uncle Sam make that decision. From the WSJ:

The Giving Pledge is an effort organized by software mogul Bill Gates and investor Warren Buffett to persuade the world's rich to boost their giving. . . .
The Giving Pledge was born in part from a dislike by Mr. Buffett for dynastic wealth. Mr. Buffett over the years has schooled Mr. Gates on philanthropy, giving him a copy of "The Gospel of Wealth," in which steel tycoon Andrew Carnegie argued that fortunes were often wasted by heirs and thus should be put to charitable use.
Starting last year, Mr. Gates, his wife Melinda Gates, Mr. Buffett and other wealthy individuals hosted a series of dinners for billionaires to discuss setting up the pledge. That led to an announcement in June of the pledge and its earliest signers.

Sadly, I don't think they see the hypocrisy of their position.

P.S. I apologize for the lack of graphics or video the last few posts. I am getting limited time on Mrs. Daddy's computer as the behemoth BDaddy iMac is in the shop, again. I have never had so much trouble with a computer, even the one I once built myself. The ROI on my Apple Care investment is better than any stock I ever picked.

Wikileaks

A quick note on wikileaks. The justification for the publication of secret material illegally stolen from the United States government is that wikileaks is dedicated to exposing corruption. However, little in the leaked material to date suggests corruption in the slightest, but rather it portrays realistic American diplomats working to advance the interests of the United States and being publicly much more truthful than any other nation on earth.

W.C. Varones points out that in the past wikileaks has exposed corruption in China and Russia. That may be so, but that argument doesn't hold water in this latest fiasco. Diplomacy requires a certain amount of secrecy and hypocrisy. If that is all our government were guilty of, I would be very happy indeed.

Now, the reaction to the leaks has also been abysmal. Calling for death for Assange is unacceptable, the real traitor is the American with the clearance who downloaded and removed the material. We need to keep a level head on the matter. Perhaps a life prison term for PFC Bradley Manning will be appropriate punishment to deter others.

As a separate matter, the IT security of the U.S. military has taken another black eye. Clearly PFC Manning no "need to know" the material he had downloaded, yet lack of controls allowed him free run of the federal government's entire classified network. There are any number of technical solutions to prevent this outcome, but the U.S. seemed oblivious to the insider threat. Further, I agree with those who point out that we have made the problem of protecting secrets too difficult by over-classification. Much of the material, while embarrassing, is certainly not a matter of national security. In fact, if the embarrassing though inconsequential information had been passed through unclassified channels, but encrypted only for those intended to read it, much of the material would have never been published in the first place. The operational assumption that data is secure because the network is secure proved to be fallacious, because it ignores the insider threat.

Taxes, Triangulation and the Deficit

Obama has apparently angered his left leaning base over the agreement on a "framework" to keep the Bush tax cuts in place. The WSJ is reporting that

In reaching the deal, whose details still need to be worked out, Mr. Obama brushed past the demands of many in his own party to curb tax cuts for the wealthy. Some liberal lawmakers and activists were left seething, particularly over last-minute concessions to Republicans on the estate tax.

Looking at the outlines, I am not particularly pleased either, but for other reasons. I think Obama knows what he's doing and may have outsmarted the Republicans, at least in the short term. The key to understanding his position is that all of these measures are temporary, while blowing a hole in the deficit that a Republican House will have to deal with. Don't get me wrong, I favor extending the Bush era tax cuts permanently, but this deal has real issues.

First, temporarily reducing the payroll tax is not going to increase hiring, except in some high turnover occupations. In general, businesses think longer term about their work force structure, so they my belief is that this will only serve to push Social Security towards acknowledge insolvency more quickly. This will resurrect attempts to later bring about tax increases "for the rich" including extending the maximum wages on which social security taxes are levied.

Second, extending unemployment benefits is going to slow the necessary restructuring needed in the labor force. Clearly, many people need to move, change occupations, or go into business for themselves, because the recession permanently altered the demand for the labor by skill set and geography. Propping up housing markets and extending unemployment benefits only delays the inevitable restructuring.

Third, given the level of unhappiness of liberal Democrats, I don't know if this can pass in a lame duck session that still sports overwhelming Democrat majorities in both houses. That may have been part of Obama's plan. Obama can appear to have reached bipartisan consensus, see triangulation, but can count on lefties in his own party from blocking a deal. Right now, the headlines all project sweetness, light and tax cuts, but this is not yet a done deal. I would not be shocked if this unravels.

Not everything in the deal is bad:

The deal would extend a raft of business tax breaks, including credit for spending on research. It would extend current tax rates on capital gains and dividends for two years, including for higher earners. It would also maintain protection for middle-class families from the alternative minimum tax.

Stay tuned, it could be a wild ride.

More Pictures - Stimulus Prevents Unemployment from Exceeding 8%

Chart from the Bureau of Labor Statistics.

Another scary graph regarding economic performance. Even worse, I think it understates the actual unemployment. The latest economic headlines tout an unemployment rate of 9.8%.

The chart below is also pretty scary, showing the duration of unemployment compared to previous recessions.

Image courtesy of calculatedriskblog.com.

If there is a greater indictment of the administration's policies, I can't think of it.

Why The Tea Party Must Capture the Repubican Party

Heritage Foundation graphic via Cato Institute.

Sometimes a picture is a worth thousand words, as the saying goes. Great article from the Cato Institute on the trend line in the growth of government. It points out that federal spending has grown regardless of who has control of Congress. If this is so, then the Party that at least pays lip service to the concept of limited government needs to be taken over by a movement that in fact cares about limited governmnent.

Supporting Walmart - UPDATED

I love Walmart. Every time I shop there, which isn't that often because they don't have enough locations in San Diego convenient to me, I am surprised by some new low priced item. However, the San Diego City Council, by overriding the mayor's veto of the "Big Box" ordinance doesn't think I should be able to get the most for my shopping dollar. In brief, this ordinance is aimed directly at Walmart.

Walmart and other ordinance opponents said it would create a de facto ban on retailers that have are least 90,000 square feet and dedicate at least 10 percent of its floorspace to nontaxable items like groceries and prescription drugs.

Even supporters of the ordinance admit that this is the goal of the ordinance. Note too, that the primary supporters of preventing Walmart supercenters in San Diego are all Democrats. I also note that most African-Americans support Democrats. But here is what happened at the council hearing on the matter.

And then the tone in council chambers changed sharply as one after another black resident approached the microphone to appeal to the council, painting a drab, disheartening portrait of the dearth of opportunity that exists in one of the city's most economically struggling districts, the one represented by Councilman Tony Young, and the one they said could most benefit from the arrival of a supercenter like Walmart. They asked the council not to make it harder for the company to move in.

Dominic Littleton told the council he was the father of six children, and that he had lost his union job 3 years ago and been unemployed ever since.

Taesha McCall said she needed a job, and that she thought Walmart would help her community.

Note this fact as well:

In Los Angeles, no superstore applications have been submitted since the city adopted a similar ordinance in 2004.

Fortunately, it appears that there will be a petition drive to put a measure on the ballot to overturn this ordinance.

Walmart is going to the voters to get its supercenter stores in San Diego. A signature drive began this morning at Walmart's four stores in the city.
. . .
The signature gathering started at the Walmart store in Murphy Canyon this morning. Walmart has 30-days to collect 31-thousand signatures.

I will definitely be heading to Walmart to sign a petition. Maybe I'll wear that yellow T-shirt. Watch this video to hear more gory details.



I hope to also contact Lorie Zapf's office to ensure that she would be a vote to repeal the Walmart ban. She certainly campaigned hard against union special interests during the recent campaign.

UPDATE:

Commenter Scott notes that I misspelled ordinance as "ordnance" in the original post, which I have corrected. However, in my feeble defense, it seems that the law is actually "ordnance" aimed at Walmart.

Addendum on Paul Ryan and the Deficit Commission

I didn't fully understand why Paul Ryan objected to the Deficit Commission recommendations, but I published his video yesterday anyway, because he has a good reputation as an "anti-progressive." (In this day and age, could there be a more reverential honorific?) Today's WSJ gives more detail on why Paul Ryan made the right move:

Longer-term, the problems are the liberal entitlements of Medicare, Medicaid, Social Security, and, starting in 2014, ObamaCare, which will add about 20 million to the Medicaid rolls. Democrats want to keep these programs as they are and pay for them with much higher taxes—first by balancing the budget at 25% of GDP, and later by necessity at 30%, 40% or more. The alternative—which we support—is to reform the programs and reduce their scope.

Yet, incredibly, the Simpson-Bowles report has almost nothing to say about the runaway health-care entitlements. This is a bow to the left and the White House, which cut Medicare by $500 billion to finance a corner of ObamaCare and wants its signature achievement untouched. But this is like doing a Pentagon budget review and excluding Iraq and Afghanistan. Republicans ought to reject the report on those grounds alone

This is the key failure of the commission, and why its work, however worthwhile, doesn't go far enough in addressing the key problems at hand.

Look at the graph from my previous post on this subject and you see that without addressing social security, and medical entitlements there is no long term hope for deficit reduction. My biggest fear is that a short term recovery, which seems to be in the offing, will remove the sense of urgency over the issues at hand. I am a firm believer in the long term prospects for America, but the debt issues are going to take a decade to work out, IMHO. If a recovery gives some breathing space, we better use it to repair the balance sheets of the federal government.

A not small consolation in this whole exercise was that using the commission as a stealth means to get a VAT into the political discussion never happened. No wonder the Democrats have little good to say about the commission.

Weekend Music Chill

Dean and I were discussing how only some artists' music will get air time on the country music stations. This traditional gets new life in Bruce Springsteen's care. We've got guitar, banjo and fiddle, so it is about as country as you can get. The album from which it came, We Shall Overcome: The Seeger Sessions, did win a Grammy Award for Best Traditional Folk Album.

Conversation at the Mall Today

I took my iMac back to the Apple Store for repairs, for the second time, same issue with the display. Word to the wise, buy Apple care when you buy their products, they appear to break easily. After exiting the store, an earnest young man with longish hair and a wan mustache and square, Olbermann style glasses approached me with a clipboard and asked "Do you support gay marriage?" Uh oh, I thought, here we go. "No I don't," I responded, smiling pleasantly. "Why is that?" he asked, looking a little animated.
B-Daddy: "Because it impinges on my free speech rights."
Wan Mustache: "How is that?"
B-Daddy: "Because it compels me to recognize a union between two men as a marriage and I choose not to do so?"
Wan Mustache: "Do you think it's right to teach our children to treat people differently because they're different?"
B-Daddy: "The are different or they choose to be?"
Wan Mustache: (visibly upset) "That's a glib answer, you should have an open mind and read up on the subject." He then abruptly walked away.

I note a couple of points. I never got upset, remained calm and pleasant, but the young man became angry that I would not agree with him and he refused to talk to me further. Yet somehow I am the hater? Why do gays seem to crave the societal approval that gay marriage would seem to confer? They have the same rights as a straight married couple, just not the title. As a Christian, I don't crave approval from Buddhists or Muslims, or atheists for that matter. I am willing to engage them in discussion and explain my faith, but if they disagree that is in God's hands, and doesn't change my opinion of my own belief. Gay marriage advocates are very emotional abut the subject; if they were certain of their own life style's morality, they would not be so hung up on this issue.

By the way, I don't think the government has any business discriminating on the basis of sexual orientation with regards to the rule of law. I am not even sure that the government should be granting marriage licenses, but that is a post for another day. (I believe so strongly in marriage, that I don't think government should be fiddling around in it, same goes for education.) If someone believes they were born a certain way, I am not going to argue. But behavior is choice, regardless of our genes. I can be born with the gene or genes that gives a predilection for addiction to alcohol and still not become an alcoholic, so the whole "I was born this way" argument is flawed.


*FTC Disclaimer: I may or may not have received valuable consideration in the form of swag, jack and/or coin to endorse these products. I am not saying and have the right not to do so.