Category: Government

Well, I guess we already had one, what’s another? Can we all agree that we ought not have people in the White House who look to mass murderers when it comes to seeking guidance? Why is it OK to say you look up to Chairman Mao? If she had said the same thing about Hitler, what would the reaction have been?

She needs to be fired. There is no room for people like this in the American government.

The State of Missouri apparently has no evidence of the alert it sent out warning of a resuming militia movement.

Glenn Reynolds talks about protest:

One step going beyond mere protests and mockery, but well short of violence, is something like the U.K. fuel protests. Or what would happen if a lot of people showed up at banks and started withdrawing a lot of cash all at once?

[…]

I don’t have any answers, and we’re pretty clearly not at that point yet. At any rate, I’d encourage those interested in this to read Pauline Maier’s book. We’re not in colonial times any more, but while the specifics might change the principles are evergreen.

I think too many are tempted that it’s 1775, and we’re about to have some kind of violent resistance against the King’s tyranny. Too many are too quick to turn to or preach violence. Much like personal confrontations with people, that’s a last resort — only when nothing lesser will do. I agree that we’re not there yet, not even close.

Even though I have a great deal of concern over the commerce clause being so vastly expanded under the Supreme Court’s current case law, I wonder if we’re not being strategically short sighted in focusing on it. Rather, I’m wondering whether we ought to be focusing on the non-delegation doctrine, since if you look at how the courts are interpreting it today, it’s really a big chunk of what’s enabling the out-of-control and unaccountable regulatory state; what’s often called the Fourth Branch of Government.

The problem with revoking the New Deal commerce clause ruling is so much popular legislation is dependent on it, and the Supreme Court is typically reluctant to become overly politicized, lest they bring about a confrontation with the political branches. It’s not a minor concern for the Court, as happened before when the Court invalidated the National Industrial Recovery Act (which incidentally was a non-delegation case).  But the Court eventually capitulated to the New Deal.

By contrast, strengthening the non-delegation doctrine wouldn’t have as much effect on popular legislation. What got me thinking about it was the new FTC blogger regulations. If you look at the enabling legislation that creates the FTC, it’s appalling it’s even constitutional:

The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, …. from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.

So FTC gets to decide, all on its own, without Congress having to pass a single law, that your activity is “unfair competition” or a “deceptive act” and you are given no recourse except through the federal courts. The FTC is, essentially, a lawmaking body. Sadly, the Supreme Court has already ruled that similar bodies are constitutional, as it did in the 1989 case of Mistretta v. United States, where the Court upheld the Federal Sentencing Commission. That case was decided 8-1, with Justice Scalia being the lone dissenter. Scalia says in his dissent:

By reason of today’s decision, I anticipate that Congress will find delegation of its lawmaking powers much more attractive in the future. If rulemaking can be entirely unrelated to the exercise of judicial or executive powers, I foresee all manner of “expert” bodies, insulated from the political process, to which Congress will delegate various portions of its lawmaking responsibility. How tempting to create an expert Medical Commission (mostly M.D.’s, with perhaps a few Ph.D.’s in moral philosophy) to dispose of such thorny, “now-in” political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research. This is an undemocratic precedent that we set — not because of the scope of the delegated power, but because its recipient is not one of the three Branches of Government. The only governmental power the Commission possesses is the power to make law; and it is not the Congress.

Back then, Scalia was really the only principled judicial conservative on the court. Now we have three others. Perhaps it is time for libertarians and conservatives to put aside the Commerce Clause battle for now, and focus on strengthening the non-delegation doctrine. It would have less of a public impact, but would have a significant impact in reigning in a lot of the regulatory excesses that have come about since the New Deal. At the least, it would keep Congress busy for a while, having to create more detailed statutory authority to guide agencies and commissions.

The issue also messages better than Commerce Clause.  Take this meme, for instance:

“If Congress wants to make something illegal, they should have to pass a law.”

I think you’d find most people in agreement with that. It’s simple, and easy to understand. Compare that to presenting the Commerce Clause to people:

“Should the Endangered Species Act really be considered a legitimate exercise of Congress’ commerce powers?”

I think this issue ought to get more attention that it does from libertarians and conservatives. It might be more achievable. A lot of people would not be comfortable with the FDA or USDA disappearing, but would anyone really miss the FTC?

Certainly they are fans of government regulations, but that has consequences. Consequences like this. It’s very difficult, actually, for ordinary people to avoid committing federal crimes. How do progressives justify a regulatory state with the power to destroy lives over something so trivial? How do they justify strict liability for crimes that can put people away for such a long time?

From Joe Huffman, on the TSA’s new attention on powders aboard aircraft:

I wonder if my post contributed to that. I know it got some attention by “government employees”.

If it was my fault I’m not going to say I am sorry. One of the ways you get people to rethink their security systems is to overload them with false positives. If I could only demonstrate that it were relatively easy to bring down a plane by grinding up you hair into a fine powder and making an improvised explosive device out of it using a couple coins as tools…

What Joe is getting at is there’s really no way to adequately protect against the level of threat TSA is trying to protect against. It’s quite impossible to successfully screen for these kinds of items without a body cavity search. It was pointed out by science fiction writer David Brin not too long after 9/11:

Despite the yammerings on TV, a lack of security measures did not cause this tragedy. No, the failure on 9/11 was almost entirely one of DOCTRINE — a policy on how to deal with hijackers that was taught to pilots, flight attendants and the public for forty years.

He goes on to suggest what did work that day — individual initiative — that it was the passengers abroad flight 93 that changed the doctrine within an hour of the WTC attacks after they heard of it on their cell phones.

The doctrinal transformation – or change in the rules of engagement – took place swiftly and decisively, without deliberation by sober government agencies or sage committees. Three average men changed it upon hearing news via their own ‘intelligence network’. They acted as soldiers, heroes, without waiting for permission. It’s called initiative, a civic virtue, part of our national character that doesn’t get enough attention. Not from leaders and certainly not from our enemies.

You can’t defend against the level of threat Joe speaks of, and it’s probably not even worth it to try.  TSA should concentrate on the obvious threats, that can be easily screened for, and not worry so much about the threats you can’t screen for. Air travel is already miserable enough with all the security theater. The last thing we need is more of it.

Exurban Jon has an idea.

Megan McArdle has been a great voice in the national health care debate.  I’ve been reading her regularly.  This is a particularly good point in regards to why we don’t want the government doing pharmaceutical research, as the left has been arguing it ought to do if their national health program destroys medical innovation:

There is no country in which government has outperformed the market at the production of basic needs (distribution is a different question that we can fight about later).  The only industry that’s even vaguely hopeful is defense, and I hope I don’t need to persuade progressives that if our pharmaceutical industry starts looking like our defense industry, we’re screwed.  It’s usually dominated by a few major contractors who are deeply intertwined with the people who buy from them, it’s wildly expensive, everyone thinks it’s horribly inefficient and produces a lot of products we don’t need because they’re the pet project of some congressman, and the rest of the world free rides off of our hog-wild spending.  You don’t like me too drugs?  Wait until the pet company of some powerful committee member wastes billions of dollars chasing a never-never cure for cancer rather than a promising antidepressant that could produce a 20% improvement over existing treatments in large classes of patients.

This! Government pharma R&D won’t work, because drugs will be developed based on political considerations rather than what’s going to give us a lot of return for our R&D dollar.

Instapundit is reporting the Health Care bill has a provision buried in it that will make taxpayers strictly liable for mistakes, meaning you’ll be fined for them.  I’m wondering if this will apply to Obama’s cabinet too?