A Sincere Change of Heart?

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The old adage wisely instructs us to “give credit where credit is due.” I am about to give credit to someone to whom I have given extremely scant credit before: our current president. Obama is apparently doing something I want him to do: he is advocating more FTAs — free trade agreements.

This is a surprising — nay, mindboggling — reversal of the course he took during his first four years. In his first term, he started trade wars with Mexico, Canada, and other places. He stalled, until late in that term, any action on the three residual FTAs that President Bush had left him (with Colombia, Panama, and South Korea). And he generally mouthed the labor union line that free trade “steals” “American” jobs.

But shortly before his reelection, he caved. In the face of a clearly stagnant economy he signed the three FTAs. He has now gone farther. In some of his recent speeches, he has advocated two new large FTA deals — one with the EU, and one — initially proposed by Bush — called the Trans-Pacific Partnership (TPP). He is in favor of concluding those deals quickly. (The US started participating in the TPP negotiations under Bush in 2008.)

Obama backed the notion of an EU deal in his state of the union address, saying, “Tonight, I’m announcing that we will launch talks on a comprehensive trans-Atlantic trade and investment partnership with the European Union . . . because trade that is fair and free across the Atlantic supports millions of good-paying American jobs.”

Of course, free trade with anywhere supports millions of “good-paying” jobs. This proposition has been urged by mainstream economists ever since the debacle of the Smoot-Hawley tariffs — or for that matter since Adam Smith. It has recently been brilliantly explored by Daniel Griswold in his primer on the subject, Mad about Trade (which I have reviewed for these pages). Obama is, it seems, only just learning this.

The trade deal with the EU would be huge. The economies of the EU and the US together constitute over half of world GDP, and the trade between them already accounts for one-third of all trade flows.Not commonly known in the US, but explored in detail in Griswold’s book, is the fact that as of 2010, US private investment in France and Belgium (combined) exceeded US private investment in China and India (combined). According to some estimates, an EU-USA FTA would likely add as much as 1.5% to GDP growth in both regions.

Of course, free trade with anywhere supports millions of “good-paying” jobs. President Obama is, it seems, only just learning this.

Concluding the TPP would also be huge. It would greatly expand the current, modest FTA called the Trans-Pacific Strategic Economic Partnership (“P4” or “TPSEP”), which includes Brunei, Chile, New Zealand, and Singapore. The proposed TPP would embrace Australia, Canada, Malaysia, Mexico, Peru, Vietnam, and us. Japan has just announced that it will join the TPP talks as well. Obama hasn’t commented on the Japanese dimension, but he has indicated that he favors the TPP, viewing it as his “pivot” toward Asia.

There would be great advantage to including Japan in a large free trade zone with the US. The other nations with whom we are negotiating either have FTAs already (Australia, Canada, Chile, and Mexico), or are very small potatoes economically (Brunei, New Zealand, Malaysia, Peru, and so on). Japan, by contrast, is a country with which we have no FTA, and is the third largest economy on earth.

But as happy as I am that Obama seems to be seeing the light, I find myself filled with doubts.

Start with the fact that the president is a notorious liar and dissembler. As a senator, he feigned support for immigration reform but covertly helped kill Bush’s bill, and in the two years in which his party controlled both houses of Congress he refused to introduce a bill of his own. Yet he campaigned for reelection promising — comprehensive immigration reform!

Similarly, as a senator and during his first term (to which he was elected with enormous contributions from union funds) he fought off or stalled all free trade measures. Now he favors free trade? One can be forgiven for wondering whether his conversion is sincere.

Doubt also arises from the question of how persuasive Obama can be on the issue. The opponents of the new FTAs will use his own past arguments against him — the canards about free trade costing jobs, about its resulting in the famous “race to the bottom,” and so on.

Most importantly, the new FTAs are fraught with special difficulties. Let’s begin with the EU. The problem lies with countries such as France, which is highly unlikely to open its domestic manufacturing sector to true competition. The French are notorious for protecting their film and other “cultural” industries by import quotas and direct subsidies. They are famed for their inventiveness in erecting “non-tariff barriers” to trade. And they just elected a Socialist government that loathes free-market economics (which leftist Europeans disparagingly call “neoliberal economic theory”).

The opponents of the new free trade agreements will use Obama's own past arguments against him — the canards about free trade costing jobs, about its resulting in the famous “race to the bottom,” and so on.

Especially contentious is the issue of agricultural imports. America has always been an agricultural hyperpower, thanks to the vast expanse of its arable land and the incredible productivity of its farmers. American farmers have been at the forefront of agronomic invention, from the use of tractors to the use of GPS (global positioning satellite location finding) to the genetic manipulation of grains. France, in particular, and Europe, in general, oppose the sale of genetically modified foods, and are lavish in their subsidization of their farmers.

With unemployment running high in many EU countries — especially Greece and Spain, where it approaches 25%, or about what the US suffered during the Great Depression — an FTA with America will be a tough sell. The average European is as much a believer in populist economic fallacies as the average American, and especially in the myth that free trade costs domestic jobs. (It’s always funny how opponents on both sides of an FTA can argue that it will send jobs over to the other side).

You can catch a glimmer of the difficulty in clenching this deal when you hear Karel De Gucht, no less than the EU trade commissioner, who is pitching an FTA with the US to lower the automobile tariffs that make cars so expensive in Europe, hasten to assure France that it would never be required to dismantle its subsidies and quotas on cultural industries.

Even more problematic will be an FTA that involves Japan. The Japanese certainly want the benefits an FTA with America would bring, such as an end to the tariff we impose on their automobiles — a tariff that runs as high as 25%. If these tariffs were eliminated, Japan’s auto imports alone would jump by perhaps 6%. (No doubt this is why the UAW, the AFL-CIO, and the domestic automakers are alarmed at the very idea of ending those tariffs). But Japan is erecting large obstacles to an early deal for true free trade. They are aggressively “pulling a Bernanke,” that is, weakening the value of the yen, so that Japanese manufactured goods will drop in price compared to American goods. This would rather quickly reduce the impact of our tariff barriers.

An even more significant problem is the fact that a real FTA that included Japan would immediately open Japanese farmers to massive competition by America’s vastly more efficient agriculture. To cite one example: Japan imposes a stunning 778% tariff on imported rice. In other words, Japan’s rice farmers are so comparatively inefficient that they need to be protected by a tariff of nearly eight-fold the American price — a whole new meaning for the Eightfold Way!

Japanese Prime Minister Shinzo Abe, who decided to join the TPP talks, already faces opposition to his move, and has promised, “I will protect Japan’s agriculture and its food at all costs.” That doesn’t make it sound as if there were much chance of a major deal to open trade on both sides.

Over the long term, of course, competition would be good, very good, for Japan. Its citizens would get cheaper food, enabling them to buy more of other things or save more capital to create or expand competitive industries. Free trade would free up people from the farms, enabling them to work more creatively and productively in knowledge-based industries. This would be a major advantage, given that Japan’s population is aging rapidly.

But economics is not the same as culture. In a nation as socially cohesive and static as if Japan, it will be very difficult to convince people to allow their farm industry to shrink. Yet you don’t need to be Japanese to succumb to the myths of protectionism. Populist economics is popular all over the world because, well, the populace is basically the same all over the world. As Hayek noted, our evolution from hunter-gatherers has left us with instincts that are often counterproductive.

If Obama really has seen the light — about which, again, I am skeptical — he would do better to emulate Bush. Go for bilateral FTAs with countries with whom we have a better chance of success. I would urge him to focus on just two countries: Brazil and India. I will be brief here, having discussed the possibility of an FTA with Brazil elsewhere.

Start with the fact that bilateral FTAs are inherently easier to negotiate, since the special interest groups, those omnipresent rentseekers, are easier to hold in check, being fewer than those aroused by action on a broader front.

In a nation as socially cohesive and static as if Japan, it will be very difficult to convince people to allow their farm industry to shrink.

Second, note that while countries such as Japan and France are very culturally homogeneous, Brazil and India are, like the US, ethnically and culturally diverse. Such diversity tends to lessen (though not to eliminate) the tribalist-populist impulse to fear trade with the Other.

Third, Brazil and India are big countries. Brazil, with 200 million citizens, is the fifth largest country in population, and India is the second largest. Unlike Japan and most of Europe, Brazil and India are still growing in population, so they will have a young labor force for decades to come. They are likelier than other countries to allow the importation of food, and more eager to gain access to our manufactured goods markets.

Finally, both countries are growing economically at a fast clip. Brazil already has the world’s sixth largest economy. Both are nations whose greatest economic growth lies in their future, not their past.

They seem altogether better bets than those the administration is pursuing. Maybe — my recurring skepticism whispers — that is why the administration isn’t pursuing them.

ldquo;race to the bottom,

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The Audacity of a 1% Hope

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Federal Judge Roger Vinson of the Northern District of Florida has declared Obamacare unconstitutional in a lawsuit joined by numerous states seeking to escape from the onerous burdens that the law places upon them. But when I read that his rationale is that the mandate requiring people to buy health insurance exceeds the power of Congress under the commerce clause, I became a little bit sad — sad not because Judge Vinson is just dangling the dream of a new attempt to use commerce clause jurisprudence to limit the government’s meddling in the economy, but because there is only about a one in 100 chance that the United States Supreme Court will agree with his reasoning.

There was a time when Congress could only pass laws authorized by the specific enumerated powers of the Constitution. (This is ostensibly still true, but most congressmen don’t take it seriously.) One of those powers, indicated by the commerce clause, is the major one that Congress uses to destroy — I mean, to regulate — the economy. The commerce clause states: “Congress shall have power… to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” In my constitutional law class final exam two years ago, I argued that the commerce clause clearly gives Congress precisely the same power to regulate economic activity within a state that it has to regulate economic activity within foreign nations, and since we obviously cannot march into France and order them to have a minimum wage or a health insurance mandate, and we can really only regulate goods from France that come across the Atlantic Ocean, the commerce clause means that Congress can only regulate goods that physically cross state lines. I got an A in the class.

However, most lawyers don’t think that way. Even back in the 1800s the commerce clause case law said that Congress could regulate anything that did not take place entirely within one state. There was a time before the New Deal when the Supreme Court still took the commerce clause seriously and tried its hardest to allow Congress only to regulate interstate commerce. But this interfered with the New Deal. So, after FDR threatened the court with his infamous court-packing scheme, the Court made a “switch in time that saved nine,” in the landmark case of NLRB v. Jones & Laughlin Steel Corp. (1937); it began to undermine the commerce clause by permitting the commerce power to extend wherever commerce within one state had effects across state lines.

Later, US v. Darby (1941) made it clear that the commerce clause was now a joke and Congress could do anything it wanted. To throw a little paint on the feces, the Court decided Wickard v. Filburn (1942), which said that a private individual’s private behavior within one state could be “interstate commerce” under an aggregation theory that proposed the questions: “What if everybody did this? Would the aggregate cumulative effects have an impact on interstate commerce?” This meant that a person growing tomatoes in his own farm for his personal consumption could be engaged in interstate commerce, even though the tomatoes never left his farm, because he was somehow magically connected to all the other tomato farmers out there — a conclusion that is ridiculous only if one does not understand that it is a mere pretext for socialism. FDR’s supporters argued that economics had somehow fundamentally changed since America’s founding, and the law needed to change with it.

Commerce clause jurisprudence remained buried for decades, but in a shallow grave. In the 1990s, Chief Justice Rehnquist, with help from Justice Thomas and the Court’s other conservatives, tried to revive the distinction between economic and noneconomic, and national and local, in cases such as US v. Lopez (1995), which struck down a gun ban under the commerce power, and US v. Morrison (2000), which struck down an anti-gender violence law as having nothing to do with interstate commerce. Then Justice Scalia murdered Rehnquist’s commerce clause revival in Raich v. Gonzales (2005), saying that the commerce power authorized the criminalization of medical marijuana because of the necessary and proper clause: “Congress shall have power . . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” For some reason, Scalia failed to understand that the necessary and proper clause is irrelevant if Congress cannot pass a law under the commerce clause in the first place.

The fate of America’s healthcare system now turns on how the Supreme Court will interpret the commerce clause, whether the justices will hold that the aggregate effects of choosing not to buy health insurance constitute interstate commerce. I predict that the vote will go along political ideological lines, as the choice of whether to take the commerce clause seriously as a limit on Congress’s power is as much a political as a legal decision. But there is no way to tell how Justice Kennedy will vote, and it is still too early to tell how Obama’s appointees will vote. Still, I estimate that there is only a 1% chance that Obamacare will be struck down. It has been many decades since the commerce clause limitation had teeth; and the Court will be afraid of accusations that it is frustrating the will of the American voters if it strikes Obamacare down, even though it is the role of the judiciary to check the tyranny of the majority, and most Americans don’t like Obamacare, anyway.

Nonetheless, if libertarians are to make ourselves known in the legal world, then the commerce clause is one of the main weapons that will need to be in our arsenal. We can hope that one day our constitutional jurisprudence will return America to the Founding Fathers’ vision of a federal government that cannot do whatever it wants. As my constitutional law professor was fond of saying, constitutional doctrines fade away, but they can always come back, and there are libertarian legal doctrines from American history that we can revive if and when we develop the power to make our voices heard in within the legal system.




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Dr. Jekyll and President Hide

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In one of the scenes in Citizen Kane, the protagonist's former friend Jed Leland describes the character of the flamboyant politician and tycoon. "He had a generous mind," Leland says. "But he never gave himself away. He never gave anything away. He just . . . left you a tip."

He might have been describing President Obama.

Like Kane, Obama is a colossal self-advertiser. He first made his reputation, indeed, by writing a book of quasi-autobiography. Like Kane, he can hardly get through a sentence without using the word "I." He constantly refers to government entities as "my secretary of state," "my secretary of the treasury," "my department of defense," and so on. Yet when it comes to revealing himself . . . no. He'd rather be tortured than give up any pieces of the sacred substance, or anything even associated with it.

One assumes that Obama bogarted all specifics about his supposedly close and inspiring relationship with Reverend Wright because Wright had become a political embarrassment. And one assumes that Obama wants to keep his college records secret because he wasn't a very good student. These are assumptions, however, because Obama keeps his stuff to himself even when it would do him good to give it away.

The classic example of this compulsion is his logically pointless war against the people who wanted to see his birth certificate. He conceded the struggle only when he started to fear that it was costing him support for reelection, thus torturing him beyond the limits of even his endurance. For years he had made a public fool of himself by not releasing an innocuous scrap of paper.

Why, after that performance, I expected him to surrender the Osama death photos, I don't know. Maybe I thought he had reformed, and some nice, generous, "transparent" Dr. Jekyll had replaced the clutching, anal, emotionally threatened President Hide. But whatever I thought, I was wrong. The preposterous decision not to release the pictures, ostensibly to chasten radical Islamicists with the evidence of our moral superiority, will merely convince the world that Barry Obama, like Charlie Kane, has more than a small screw loose.

But what about the "tip" — "he just left you a tip"? In Citizen Kane, the protagonist paid other people for "services rendered." He demanded their love, but "he had no love to give." So he offered them money or power or other crass "tips." And that, in his way, is what Obama does. Of all the politicians I can think of, he is the greediest for love but the least interested in other people. His speech is without stories or anecdotes. He seldom alludes to any actual historical event, anything that people actually did in the past. He appears to retain no vivid memories of the people in his own past, or any real interest in the people he meets today. He speaks always as if he were reminding his audience of things they should already have been taught, never as if he wanted to learn from their responses what they themselves would like to know. In lieu of real human concern, he professes a vast interest in abstractions — progress, equality, fairness, proving to our enemies that we are better than they are in some vague, general way.

These are not the kind of tips you can take home and spend. The real stuff — he keeps that to himself. You're not getting any of that.

that




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The Invisible Tribe

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People who say the Constitution is “living” or “invisible” usually don’t like what it says and don’t have the patience or the votes to amend it.

In February, the New York Times ran a piece by Laurence Tribe entitled "On Health Care, Justice Will Prevail," in which he argues that not only is the individual mandate in the new healthcare law constitutional, but it is both necessary and good. He also delivers what sounds like a series of short pregame pep-talks to the more conservative Supreme Court justices, seemingly trying to finagle them into joining the majority that he confidently predicts will uphold the constitutionality of the mandate.

Laurence Tribe is a professor of constitutional law at Harvard Law School and the Carl M. Loeb Professor at Harvard University. Widely considered to be the foremost current authority on the laws and Constitution of the United States, he has argued 34 cases before the Supreme Court, including Bush v.Gore, arguing for Mr. Gore. Among Tribe's former students and research assistants are Supreme Court Justice Elena Kagan, Chief Justice John Roberts, and President Barack Obama, whom he called “the best student I ever had” (The Concord Monitor, November 14, 2007).

Here I will examine four specific points in Tribe's essay in the Times: (1) an error in word choice, (2) a sentence that misleads through lack of clarity, (3) a conclusion built on a false premise, and (4) an answer that begs a question. The constitutionality of the mandate and its fate in the Court will be addressed only when they touch on these smaller points. The pep-talks will not be examined. The elusiveness of objectivity will be the subject of the conclusion.

The first and second points are in paragraph four:

"Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability."

The first point is in second sentence, where Tribe asserts that, if “risk-prone individuals could opt out of insurance,” those remaining could be saddled with “unacceptably high premiums.” Using the same formula: If all drunks who ride motorcycles opted out of a health insurance pool, the premium paid by the people who remained would go sky-high.

It is as though Laurence Tribe has stood on a soapbox in Harvard Yard and shouted, albeit in bureaucratese, “The individual mandate is Marxist.”

This is nonsense. Only when risk-averse, not risk-prone, individuals drop out en masse do the premiums for those remaining rise. The wrong word was used. Using the corrected formula, the point that Tribe may have been trying to make can be illustrated with the same hypothetical: all teetotalers who do not ride motorcycles must be made to pay health insurance premiums high enough to cover not just their own modest health-related expenses, but also the astronomical medical bills of drunks on Harleys.

Now it makes sense; that is to say, the revised formula’s effect on the price of premiums makes sense, not the system that doesn’t permit sober people to opt out.

The second point is the wording of the final phrase, “for the system to work, all individuals . . . must participate to the extent of their economic ability.” This is the sort of vague language bureaucrats use to camouflage authoritarian unpleasantness.

If clarity had been the goal, it might have said: “Each person must be compelled to buy health insurance and to pay a price directly proportional to the amount of money he has so that medical care can be provided to each person according to his medical needs.” Sorry, that’s less clear, and too wordy. Try this: “From each according to his ability, to each according to his needs” (Marx, Karl, Critique of the Gotha Program).

If the reader pauses now, and dispassionately compares Tribe’s meaning with Marx’s, he will, if he is honest with himself, conclude that the two are, in fact, the same. It is as though Laurence Tribe has stood on a soapbox in Harvard Yard and shouted, albeit in bureaucratese, “The individual mandate is Marxist,” a term employed here not in any pejorative sense, but in an effort accurately to convey the meaning of the carefully crafted phrase “must participate to the extent of their economic ability.”

To make matters even more jarringly redistributive, equivalent amounts of medical care will not be provided under this steeply progressive pricing scheme. Because good health and wealth are positively correlated, “for the system to work,” those with the most modest medical bills will pay the most for the insurance and those with the most expensive bills will pay little or nothing. Tribe was probably trying to state this truth as plainly as he could without triggering the howls of the anticommunists among us.

Given his endorsement of the compulsory and redistributive nature of the mandate, however, it is unlikely that Tribe would deny the accuracy of the label “Marxist” or, for that matter, be offended by it. To expect either outcome would insult his intellectual honesty and integrity.

The annoying aspect of this second point is that, by cloaking the mandate’s naked Marxist core in vague language, Tribe may have been trying to strengthen his argument. A strong argument does not need camouflage.

The third point is in the last part of paragraph six, where Tribe neatly summarizes a set of premises and conclusions that is widely held to be true, but isn’t:

"Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation."

Consider the case of Mr. A, who has studied the actuarial tables and discovered that the only insurance he would be allowed to buy is priced according to the risk factors of people who almost certainly will have medical expenses many times as costly as his. He has saved enough money so he could afford to buy that insurance, if he wanted to, but he realized that actuarially it would be cheaper for him to pay his own medical bills out of pocket. In fact, he has saved enough money so he could afford to pay even catastrophic medical bills, if it came to that. Mr. A has chosen not to buy the insurance offered because, for him, it is not a good deal. He has chosen to self-insure.

So, while Mr. A did not purchase insurance he could afford, he has not “made a choice to take a free ride on the health care system.” Mr. A can and doespay for emergency room visits in full upon receipt of the bill. Unlike people covered by Medicaid, who really are taking a “free ride,” he has never asked the public or anyone else to pick up the tab, and never will. Mr. A’s “conscious choice” to self-insure carries “serious consequences for the national health care market” only to the extent that the government, having spent itself into a yawning sinkhole of debt, and finding voters reluctant to pay higher taxes, has passed a law that would strongarm Mr. A into picking up the tab not only for himself, as he has been all along, but for others as well.

That Tribe did not take into account those who choose to responsibly self-insure is odd. Surely he knows people who are successful, self-reliant, and self-insured. But whatever his reason, half-truths were used to reach a conclusion that as a result is, at best, 50% nonsense.

Fourth, and finally, in the seventh paragraph, Tribe tries to demonstrate that the constitutionality of the mandate does not depend on the commerce clause:

"Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out."

Let’s see. If the commerce clause, even in its broadest interpretation, fails to persuade a majority of the Court that the mandate is constitutional, the fact that the new healthcare law levies a fine on those who fail to comply with the mandate creates an opening. Because the law names the IRS as the collection agent for the fine, that fine takes on the coloration of taxation. Therefore (if therefore is not too strong a word in this line of reasoning), the Court can conclude that the individual mandate is constitutional because Congress is simply exercising its power to tax.

If all Congress has to do to make a law constitutional is to impose a fine for failure to comply and make the IRS the bill collector, then Congress can constitutionally make anyone do anything it wants.

Note that Tribe does not argue that the individual mandate itself is a form of taxation, but that it is “enforced through taxation.” He cannot claim that the mandate is a tax because the money is passed directly from the hands of the private citizen into the maw of the private insurance corporation. The government only oversees this unfunded individual mandate. So Tribe must be content to say that the fine itself is a tax.

Is it really that simple? If all Congress has to do to make a law constitutional is to impose a fine for failure to comply with that law, and make the IRS the bill collector so that the fine can be called a tax, then Congress can constitutionally make anyone do anything it wants by tacking a fine onto not doing it. That can’t be right.

Let us say that a law is passed that compels all obese people to lose a certain portion of their weight annually until a desirable target weight is achieved. Even though the massive weight-loss industry crosses state lines, and eliminating the scourge of obesity would benefit the national economy, an unimaginative Supreme Court stubbornly maintains that the government does not have the power to force people to lose weight. But then it is brought to the Court’s attention that the law imposes a small fine, payable to the IRS, on obese citizens who fail to meet their federally mandated weight-loss targets. Does the Court have no choice but meekly to acquiesce and uphold the law as constitutional?

Is there a legal philosopher’s stone that transmutes fines into taxes and through this magic transforms otherwise unconstitutional laws into models of constitutional compliance? Or is this an example of a more subtle proposition, “When I use a word, it means just what I choose it to mean, neither more nor less” (Dumpty, Humpty, Through the Looking Glass).

Even if either the mandate or the fine were a tax, the resulting legal axiom still wouldn’t pass the sniff test: “It is taxed, therefore, it is constitutional.” Deep in the penumbra of the Constitution that may not look like nonsense, but here on the sunny side, it certainly does. It sounds like the Red Queen channeling Descartes and Tribe simultaneously.

The fact that the Congress has the constitutional power to tax surely cannot mean that anything it chooses to tax is, as a result, constitutional. The argument begs the question. The fact that a fine is attached to the mandate does not make it constitutional.

The Times piece leaves the impression that Tribe has not given the problem of the individual mandate his full attention, which is understandable, given that his specialty is the law, not medicine, insurance, or economics. Besides, as a tenured professor at Harvard, he probably has essentially free healthcare for life as an untaxed benefit, making any concern that he has about the unfunded mandate entirely academic.

To say that “justice will prevail” if the Court upholds the mandate is easy for Tribe.He will not be asked to sacrifice anything at all, while others, many of more modest means, will be compelled to pay thousands of after-tax dollars per year to cover someone else’s higher risks.

To put this in another way, Laurence Tribe will not be picking up the tab when the Harley goes skittering across the freeway; others will.

And where is the justice in that?

***

In his 2008 book, The Invisible Constitution, Tribe explains the futility of relying on the text of the Constitution to resolve constitutional questions. He tells of what he calls the “dark matter” in the “shadow constitution” and the “ocean of ideas, propositions, recovered memories, and imagined experiences” that comprise the real mass of the “invisible” Constitution, which dwarfs the mere document. (One good review is: The Dark Matter of Our Cherished Document: What you see in the Constitution isn't what you get,Dahlia Lithwick, in Slate,Nov. 17, 2008)

If the written text of the Constitution, and its accompanying case law, which everyone can read and compare notes on, is but the tip of the iceberg, and the real mass is hidden below, in the ocean of collective consciousness, imagination, memory, or even the collective unconscious, then its truths can only be accurately interpreted by initiates specially trained to dive beneath the surface like cormorants to fathom and retrieve its complex meanings. Or, to switch metaphors, perhaps this Constitution is an ethereal entity whose cryptic messages can be divined only by oracles who breathe the heady air found in the realm above the clouds of partisanship and bring down to us the purity of its truths without relying on an old scrap of parchment.

On May 4, 2009, Laurence Tribe wrote a letter to his star pupil, assessing potential nominees to the Supreme Court. In it, he sized up Sonia Sotomayor, then a Court of Appeals judge, advising President Obama that, “Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court . . .” Another of his former students, Ed Whalen, posted the letter on the website of the Ethics and Public Policy Center.

 

Perhaps this Constitution is an ethereal entity whose cryptic messages can be divined only by oracles who breathe the heady air found in the realm above the clouds of partisanship.

To interpret this letter, Sonia Sotomayor, who studied law at Yale, not Harvard, might want to take a page from The Invisible Constitution and acknowledge the futility of relying on the rows of tiny symbols strung haphazardly together that constitute the actual text. There is so much more dark matter between the lines and in the murky ocean upon which such a letter floats.

The now Associate Justice Sotomayor may be comforted if she peers into the dark waters and discerns the outline of a psychological defense mechanism, first proposed by Freud, and called projection. A person who uses this tool unconsciously denies his own negative attributes and projects them onto others. This reduces his anxiety by allowing the expression of unconscious fears and desires without letting the conscious mind recognize them as his own.

Some of the people who say that the Constitution is “living” or “invisible” become judges so they can creatively distort the parts they disagree with from the bench. They are judicial activists posing as unbiased judges. Others work from the sidelines to bend and twist those parts so that the Constitution may be forged into a weapon that adds fire power to liberal impulses in the ongoing ideological battle. These are not legal analysts; they are merely political actors striking unconvincing poses of objectivity.




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A Surprise Hit

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Last week I attended a screening of Atlas Shrugged, Part I, and was amazed to see that the theater was literally sold out and packed full. I cannot ever recall seeing that before. After all, this is not your usual fluffy romantic farce, comic book superhero movie, or action flick. It is an honest effort to put Ayn Rand’s extremely long novel into movie format.

Producers Harmon Kaslow and John Aglialoro are expanding the release from the initial 299 theaters to 425 by this weekend, and as many as 1,000 by the end of April. This is stunning, considering that the marketing plan was considered lame by Hollywood insiders, because it used the internet rather than more traditional venues, such as TV and radio, for running ads.

Not only are ticket sales doing well, but film-related merchandise — including replicas of the bracelet Dagny Taggart (Taylor Schilling) wears in the movie (made out of “Rearden metal”) — are flying off the shelves.

Aglialoro, a businessman who put $10 million of his personal capital into the flick, as well as co-writing and co-producing it, attributes its success in great measure to fortunate timing. I think that in this he is absolutely right. Obama’s leftist regime, with its bash-the-rich and blame-the-businesses rhetoric, massive new regulations, crony capitalism, and redistributionist mindset, has created a ready market for the movie.

Ironically, Obama may prove to be the cause of a whole new wave of Rand mania. That is well worth a chuckle or two, no?




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A Whiff of Smoke

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I have oft reflected, in this place, on the fiscal fires advancing toward us.

The United States is running massive deficits, even as it creates massive new entitlement programs (e.g., Obamacare). Our national debt is about to hit $14.3 trillion. Our three main existing entitlement programs (Social Security, Medicare, and Medicaid) are underfunded by more than $100 trillion. And consider such under-the-radar unfunded liabilities as the Pension Benefit Guaranty Corporation, which "guarantees" the pensions of millions of private industry workers and is underfunded in the tens of billions. That's now. Later, as more workers retire . . . you can guess what will happen. Meanwhile, the deficits of those Twin Towers of moral hazard, Freddie Mac and Fannie Mae, continue rising.

All these are at the federal level. The states are another matter.

The states are currently running a deficit of around $125 billion, which may not sound like much in this context. But at their level there is also more than $3 trillion in outstanding bond debt (counting municipal as well as state bonds), and what we can only estimate at about $3 trillion in unfunded liabilities.

The alarming rise in this ocean of red ink has caused Standard & Poor’s to cut its outlook on the US credit rating from “stable” to “negative,” meaning that in the credit agency’s view, we have about a one-third chance of having our AAA credit rating lowered during the next two years. Should that happen, the cost of our staggering amount of borrowing will explode.

The agency’s decision reflects more than its worries about our current deficit of $1.6 trillion (about 10.8% of current GDP) and our total debt of $14.3 trillion (over 91% of our GDP). It also registers the agency's skepticism about whether the wise solons in Washington will be able to staunch the flow of red ink anytime soon.

A number of predictable events have quickly followed. First, the Obama regime immediately pooh-poohed the embarrassing announcement. Spokesman Jay Carney said, “The political process will outperform S&P’s expectations. . . . The fact is where the issues are important, history shows that both sides can come together and get things done.” Obama’s unserious budget proposals belie these words.

Also predictable was the immediate drop in the stock markets. The Dow fell by 1.1% (140 points) that day, and London’s FTSE 100 fell by 2% (126). Equally predictable was the immediate weakening of the dollar, and gold's breaking the important psychological barrier of $1,500 an ounce. (It wasn't very long ago that it broke the psychological barriers of $500, then $1,000.)

The continuing housing bust masks our increasing inflation. While the official American inflation rate remains about 3%, prices have been rising rapidly in food and energy. Commodity prices are at or near their historic highs.

The public is now receiving a small whiff of smoke from the myriad fires that endanger us. People haven’t yet seen the flames, but when they do, the reaction will be severe. This is only the first year in which baby boomers are starting to retire. When all 78 million of them are on Social Security, Medicare, SSDI, Obamacare, and so on, you can expect a fiscal firestorm — probably hyperinflation or bond defaults.

The good news is that in those fiscal flames the hubristic and vicious (in the sense of vice producing) progressive-liberal state will likely be consumed. One hopes that will mitigate the pain.




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Losing the Battle, Spinning the War

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March was a time of judgment on the American official language — the language spoken by the people considered most qualified to sling words around: politicians, media operatives, public educators of all kinds. The official language was weighed in the balance, and found wanting. It proved grossly unequal to the challenge of such mighty events as the Japanese earthquake, labor unrest in Wisconsin, and the political embarrassments of government radio. And then along came Libya.

As usual, the commander in chief led the nation into linguistic battle on most of the fronts available; and as usual, he was beaten in every skirmish. About Wisconsin he did what he ordinarily does; he tried to get into the fight, while also trying to stay out of it. A violent proponent of unions, and an eager recipient of union funds, he still hopes to win the electoral votes of all those states that are in financial turmoil because of the demands of public employee unions. So he acknowledged the states’ budget problems, and then he said, “It is wrong to use those budget cuts to vilify workers.” A little later, when asked to state Obama’s position on the continuing turmoil in Wisconsin, his press agent repeated that inane remark.

Of course, nobody was vilifying workers, even if you are crazy enough to equate workers with government employees. What some people were doing — and suddenly, such a lot of people — was trying to keep the unions that represent people employed by state and local governments from bankrupting their employers. Obama’s feckless verbal feint would have turned into a factual rout if some White House correspondent had asked the obvious question: “What vilification are you referring to?” But nobody seemed able to do that.

The commander in chief led the nation into linguistic battle on most of the fronts available; and as usual, he was beaten in every skirmish.

Meanwhile, union shock troops were occupying the capitol of Wisconsin, trying to prevent its legislature from voting. These vilified workers caused over seven million dollars of damage. Yet even Fox News’ Megyn Kelly, a rightwing personality on a rightwing channel, was willing to call the Wisconsin actions “peaceful.” You see what I mean about the official language not being adequate to the crisis? Suppose I came over to your house with a few thousand friends chanting obscene slogans against you, and we camped in your living room for weeks, attempting to force you to do what we wanted you to do — would you call that peaceful? Of course not, but only one person in the media, a volunteer bloggist whom Yahoo! News, in a fit of common sense, allowed on its site, made a point like that. Congratulations, bloggist. You have linguistic qualifications that none of the media professionals can equal. But they’re the ones who are getting paid.

Among this country’s most influential purveyors of the American official language is National Public Radio. I’m calling it that because it is currently attempting to deny its identity as government radio by calling itself by a set of non-referential initials: it just wants to be known as good ‘ol “NPR.” Well, sorry, alphabetical agency: we all know the smell of a government medium. It comes from the money it tries to cadge from the taxpayers.

In early March a highly paid government-radio official was caught on video telling some “Muslim” potential donors that “NPR” would actually be better off without government help, presumably because it would no longer have to pay any attention to the majority of the American people, whom he suggested were ignorant and stupid and susceptible to the racist propaganda of people who actually, believe it or not, would like a smaller government. He identified the tragedy of America as the fact that its educated elite (clearly typified by himself) was so small and uninfluential. Those were the views that Mr. Ron Schiller, senior vice president of National Public Radio, expressed concerning the citizens of the United States, who (perhaps tragically) put the “N” in “NPR.”

Suppose I came over to your house with a few thousand friends chanting obscene slogans against you, and we camped in your living room for weeks, attempting to force you to do what we wanted you to do — would you call that peaceful?

Schiller was forced to resign immediately. His brief public statement assesses his behavior in this way: “While the meeting I participated in turned out to be a ruse, I made statements during the course of the meeting that are counter to NPR’s values and also not reflective of my own beliefs. I offer my sincere apology to those I offended.”

Again we see the limitations of the official language, which proved utterly incapable of specifying what went wrong with Mr. Schiller, who might be offended by his remarks, or why anybody might be offended. In short, the official language was incapable of answering any question that anyone who read his statement would probably ask. And it created new and damaging questions: Why did you make statements that were not reflective of your own beliefs — that is, lie? By the way, what are your beliefs? Do you actually believe that other Americans are smart but you are dumb, yet for some reason you keep maintaining the opposite? If so, how does that happen?What were you thinking, anyway? But no one in the high-class media found the words to ask such simple questions.

Now we come to the terrible events in Japan. Again, Obama was in the vanguard of our linguistic forces. And again . . . Here’s what he said about the earthquake and tsunami, on March 11 — in prepared remarks, presumably edited by numerous White House word wizards, who were struggling to get exactly the right tone. “This,” Obama said, “is a potentially catastrophic disaster.”

Gosh, this thing is so bad, something really bad may happen.

When the president is attacked and captured by his own language, what can we expect of his assistant priests, the writers and readers of the “news” media? The answer is, Even worse. And we got it.

Particularly impressive was the horror-movie approach, with the Japanese cast as Godzilla: “Operators at the Fukushima Daiichi plant's Unit 1 scrambled ferociously to tamp down heat and pressure inside the reactor” (AP report, March 11). I have trouble picturing anyone tamping down heat orpressure, but it’s even harder for me to picture someone doing it ferociously, unless that someone is a monster trying to rescue its offspring from the accursed humans’ nuclear experiments.

But maybe the ferocious beings were actually the talking heads of American TV. On the selfsame day, March 11, Fox News’ late-night guy was calling the earthquake and tsunami “one of the worst natural disasters in the history of mankind.” Fox News’ Rick Folbaum called it “the fifth worst earthquake in the history of earthquakes, folks.” Yet again, the official language just isn’t up to the task. It ought to be able to distinguish between “the hundred years since earthquake records have been scientifically kept” and “the history of earthquakes” or “the history of mankind,” but evidently it can’t. Under communism, hundreds of thousands of people in China lost their lives in natural disasters — but we have no words to speak of them, do we? Or maybe, just maybe, we never read a book, so we don’t know nothin’ ‘bout things like that. In either case, the problem lies with words. We can’t use them, and we can’t read them either.

After Folbaum made his immortal declaration, his colleague, Marianne Rafferty, consoled the audience by promising, “We will keep everyone up-to-dated.” Would anyone who had ever read a book—I mean a real book, with real words—say a thing like that? What would you have to be paid to make such a statement before an audience of educated people, or even just people?

The worst thing is that words are related, in certain ways, to thoughts; so if you don’t have thoughts . . . Some examples:

“Is Japan getting the assistance it needs?” That’s the question that Wolf Blitzer asked the Japanese ambassador to the United States (March 12, CNN). I thought it was a little strange that Japan, one of the richest and most technologically advanced nations on the planet, should be the object of that question. But never mind. In reply, the ambassador noted, somewhat vaguely, that his prime minister had ordered one-fourth of the nation’s armed forces to help the people currently starving a moderate distance north of Tokyo. That apparently satisfied Blitzer. He didn’t say what you would have said: “What! Why isn’t he mobilizing the entire army?” He didn’t say what you would have expected him to say: “Wait a minute! What’s your God damned army for, anyhow? We can get our correspondents into the disaster zone — why can’t you get your army in? And if you can’t, why don’t you air-drop supplies? In short, Mr. Ambassador, what the hell are you talking about?” But I guess Blitzer couldn’t think of those questions. After all, he’s merely one of America’s most famous interviewers.

Marianne Rafferty consoled the audience by promising, “We will keep everyone up-to-dated.” Would anyone who had ever read a book—I mean a real book, with real words—say a thing like that?

“There’s the sense that they’re in this together, and they’re just trying to get along as best they can.” That’s what CNN’s Anderson Cooper said on March 14, describing Japanese people waiting hours for government water, only to have an official tell them that the government had run out of water and they would have to wait an undetermined number of additional hours in line. He liked the way the victims remained stolidly in that line. He thought it was good that they didn’t complain. Yes, in subsequent days of reporting, he did begin doing what any normal information-processor would have done right away: he criticized the Japanese government for its lies and incompetence, at least about the lurking threat that we all fear, nuclear reactors. But he never questioned his favorable view of the people’s passivity (the media word was “calm”). It just wasn’t in him to make the connection between the people’s passivity and the government’s incompetence. Again, he didn’t have the words. I assume that he didn’t have the thoughts, either.

Here’s another instance. “You wonder how any government could deal with such a thing,” intoned Shepard Smith, a Fox News figure momentarily stationed in Japan, on the evening of March 15. He was referring to the combination of the nuclear issue and the disaster relief issue, both of which the Japanese government was supposed to “deal with.” Personally, I didn’t “wonder” about that. I suspect that you didn’t either. Any responsible government could find out how to deal with such problems. There are known procedures for addressing dangers in nuclear power plants, and disaster relief is not an unknown science. This wasn’t World War II. But maybe the Japanese official class is like our own — so tied up in its own linguistic incapacities that it can’t formulate an efficient thought.

Now to Libya. I’ve recently written two reflections about Libya for this journal, so I can hit the ground running. What everyone with a brain is still laughing about is President Obama’s address to the nation on March 28. Generally, watchers identified the most risible part of the speech as Obama’s denial that he intended to get rid of Qaddafi. Admittedly, he wanted Qaddafi gone; yet, he said, “broadening our mission to include regime change would be a mistake.” He couldn’t find the words to say “ousting Qaddafi,” so he said “regime change.” If you’ve got the magic decoder, you’ll understand this. But you still may not understand his policy.

By denying his lust for regime change, he costumed himself as a dove. Unfortunately, that made the hawks wonder whether he really, truly, wanted Qaddafi out. (They’d heard double-talk before.) So on the next day, he back went on TV, to express his satisfaction that the members of Qaddafi’s inner circle supposedly “understand that the noose is tightening.” Ah! Now we are the executioner with the noose. So both the hawks and the doves are happy, right? Well, maybe not.

The vocabulary is missing. The official language has no words for “war,” “making war,” or anything else that Obama was obviously doing.

You can tell when somebody is really dumb, or is really desperate for the attention of people in Washington: that person is eager to go on TV and defend nonsense like this, which nobody else could possibly defend. Thus Bill Richardson, once Clinton’s ambassador to Monica Lewinsky, then governor of New Mexico, now television expert on constitutional law, informing CNN that Obama was acting purely in order “to avert a humanitarian disaster” when he started bombing Libya. Asked whether the president shouldn’t have consulted with someone in Congress before going to war, Richardson said there was no need: “This is not a war powers situation.”

You see! You see! There it is again. The vocabulary is missing. The official language has no words for “war,” “making war,” or anything else that Obama was obviously doing. So we are forced to watch this strange, slow shifting of vehicles around the used car lot, as political salesmen try to find some piece of junk that the suckers will buy: “this is not a war powers situation.

Imagine Libyan planes and rockets bombarding the New Jersey coast. Would that be a war powers situation? Would it turn into one if its goal were regime change? Or would it still be a mission to avert a humanitarian disaster, and therefore immune from legislative review?

But here’s the real stuff. In his address to the nation on March 28, President Obama tried to calculate the scale of the humanitarian disaster he was trying to avert, without the help of long (or even short) consultations with Congress: “We knew that if we waited one more day, Benghazi — a city nearly the size of Charlotte — could suffer a massacre that would have reverberated across the region and stained the conscience of the world."

I know, I know — you can’t resist the unintentional humor of “a city nearly the size of Charlotte,” as if anybody knew, or cared, how large Charlotte (North Carolina?) might be. The desired impression was: Whoa! That big, dude? Then I guess we gotta go to war! The real impression was: Not!

But there are so many other things to notice:

The image that simply makes no sense: try to picture a massacre that reverberates.

The modesty that presidents get whenever they know they’re in trouble, and “I” just naturally transforms itself to “we.” (Were YOU waiting? Did YOU know?)

The Victorian prissiness of “suffer a massacre.”

The pathological specificity of “one more day” and “nearly the size.”

The moral stupidity of “stained the conscience of the world,” which literally means that if some bad thing happens, everyone in the world becomes guilty of it. (All right; you think I’m just being sarcastic. Then tell me what the phrase actually means.)

And finally, the breakdown in thought and grammar evident in the goofy progression of verbs: “If we waited . . . Benghazi could suffer a massacre that would have reverberated.” To see what’s happened here, insert some normal words into the various grammatical slots. Like this: “I knew that if I waited, you could write me a check that would have made me rich.” Huh?

Anyone who knew grammar would have fixed that one up, but as we know, Obama, the world-famous author, has no knowledge of grammar, never having mastered even the like-as distinction, let alone verb progression. But examine his inability to distinguish the meanings of “could” and “would.” The president was forced to admit that he had made a decision, that what he did wasn’t inevitable, and that he wasn’t, like Yahweh, absolutely certain about the future. That’s how “could” got into that abominable sentence. Yet at the same time, he wanted to imply that he was certain about the future: why else could, or might, “we” have made the decision we made? So he put in “would.”

And that solved his problem. So far as he could tell.

Don’t blame him. He speaks only the official language.




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Libya and 2012

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By intervening in the Libyan civil war and dragging the United States into war with Libya, President Obama has effectively signed his resignation papers. There is no way that he will win in 2012.

Republicans already hate Obama, but more and more the modern-liberal Democrats are turning on him. Some say he hasn’t done enough to fight global warming (although he’s done too much already); some say he should implement the end of Don’t Ask Don’t Tell more quickly (which is quite true); some say that he makes too many compromises (although he doesn’t make enough of them). But all these things aside, Obama was elected first and foremost on an anti-war platform. He has failed to stabilize the situation in Iraq, he has failed to get us out of Afghanistan, and now he has started a war with Libya, a war that he cannot blame on Bush.

And why did we get involved in Libya? Either because of its oil reserves, or because we are now the world’s policeman. Neither reason befits an anti-war politician. The anti-war people are soon going to start abandoning Obama in droves, and he will find that the modern-liberal wing of the Democratic Party is not going to worship him as it did back in 2008. Obama’s “change” has been revealed for what it always was, more of the same old politics. He is vulnerable in 2012, especially if the Republic Party nominates an anti-war, libertarian-leaning candidate.




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One Video That Should Go Viral

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Here's something that's two minutes long, but you'll probably watch it at least 10 times.

The people you'll see are well known to Liberty's readers. They are Mark and Jo Ann Skousen. But what you'll see is . . . Well, just watch it.




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Bubblin' Crude

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