Beating a Dead Tortured Horse

I know, I'm probably beating a dead horse – I love that metaphor, by the way. It so perfectly captures the idea of acting futilely. At the very least, I'm beating a thoroughly tortured hourse. Nonetheless, it is important that we face how utterly corrupted our elites have become regarding the rule of law – and the mental gymnastics they must perform to ignore obvious unpunished criminality.

Again, Andrew Sullivan writes from publicly available sources. His conclusions are unassailable. Many of our military and past political leaders are war criminals - and we (as a citzenry) refuse to hold them accountable.

Sullivan's money quote:

“The US in 1948 prosecuted German soldiers for using hypothermia techniques, and sentenced its practitioners to death. One wonders: why, if the Geneva Conventions mean anything, is Stanley McChrystal, who bears legal and command authority for everything committed under his command, not in jail? And why are not Bush and Cheney on trial at the Hague? And why does Obama hold the Geneva Conventions in such contempt that he too insists on violating their clear and pressing legal obligation to investigate and prosecute all such war criminals, whoever they are?

[Obama] took an oath to enforce the laws of the land. He is violating that oath, thereby subverting both the Constitution and the rule of law.”

All of this is exactly right. If we refuse to face this, we have no honor - which is probably the least of our problems.

Joe H.

The Rule of Law

It is very hard to read this article describing the criminal wrongdoing by the executives of our six major investment banks
and wonder - in amazement and horror - why no one has been indicted and subsequently imprisoned? Try it and see for yourself.

I don't mention this to make you angry - although it should. I mention this because the de facto immunity that Obama's Justice Department extended to Bush Administration officials - for felonious torture and illegal spying - has been extended to greedy banking executives whose crimes nearly destroyed the world's economy.

In short, the political and financial elites of our country are exempting themselves from legal accountability. And they're immunizing themselves with the apparent blessing of the rest of the citzenry.

There are things I like about President Obama - chiefly that he's a far more responsible and thoughtful leader than almost all of his Republican counterparts. There are other things I don't like about him, which I've mentioned at length in previous posts. But Barack Obama is the chief facilitator for the creation of the impunity state. His administration is violating the law by refusing to investigate and prosecute Bush administration officials for their publicly admitted authorization of torture. Whatever good he may accomplish as President will be VASTLY overshadowed by the inevitable effects of immunizing political and financial elites from criminal responsibility.

Happy New Year.

Joe H.

If One Thinks About It

From Glenn Greenwald:

"If one thinks about it, there's something quite surreal about sitting there listening to a CNN anchor and her fellow CNN employee angrily proclaim that Julian Assange [creator of Wikileaks] is a "terrorist" and a "criminal" when the CNN employee doing that is . . . . George W. Bush's Homeland Security and Terrorism adviser. Fran Townsend was a high-level national security official for a President who destroyed another nation with an illegal, lie-fueled military attack that killed well over 100,000 innocent people, created a worldwide torture regime, illegally spied on his own citizens without warrants, disappeared people to CIA "black sites," and erected a due-process-free gulag where scores of knowingly innocent people were put in cages for years. Julian Assange never did any of those things, or anything like them. But it's Assange who is the "terrorist" and the "criminal.""

There's our corporate media culture in a nutshell.

Joe H.

Enlightenment

"Enlightenment is man's emergence from his self-imposed immaturity. Immaturity is the inability to use one's understanding without guidance from another. This immaturity is self-imposed when its cause lies not in lack of understanding, but in lack of resolve and courage to use it without guidance from another. Sapere Aude! [dare to know] "Have courage to use your own understanding!"--that is the motto of enlightenment."

I. Kant
Konigsberg in Prussia, 30 September 1784

Those of you brave enough to tackle the entire essay (it is short) click here.


Joe H.

40% Of Us Are Young Earth Creationsts

Apparently, 120,000,000 of our fellow citizens still believe that our universe, including human beings in their present form, was created by God ex nihlo less than 10,000 years ago. This fact exemplifies the extreme danger of allowing faith to supplant reason as a method for selecting beliefs. If 40% of a modern educated democracy can maintain a belief so manifestly in conflict with the readily available evidence, what belief can’t be maintained by such people?

Faith often supplements judgment to good ends. But American Christians have been trained to allow faith to entirely supplant their judgment. This results in a blind, militant, destructive, and irredeemable "faith" with all of its attendant evils.

Hebrews 11:6 says “without faith, it is impossible to please God, for he who comes to God must believe that he is and that he is a rewarder of those who diligently seek him.” Of course, this statement applies to any relationship we establish. If someone wants a relationship with you, you can’t please them without approaching them with the expectation that your ensuing relationship will itself be a rewarding experience for you. If they suspect you’re merely tolerating them, or humoring them, as a means to some other end, they won’t be pleased.

Fair enough. God wants us to approach him expecting that our relationship with him will be rewarding for us. He will not be pleased if we approach him as a means to some other end. I have no problem with “faith” so defined. It makes perfect sense

But Jesus also said, “Blessed are those who have not seen, and yet believed.” Here Jesus appears to proclaim that believing without evidence is a “blessed” state of affairs. However, those who believed in Jesus’ resurrection prior to seeing him alive had other reasons to believe. They had (allegedly) seen him do miraculous things, including raising the dead, during his lifetime. Jesus also told them that he would rise from the dead after three days. In the context of this story, Jesus appears to be saying, “Blessed are those of you who didn’t lose confidence in me despite your despair.”

Again, fair enough. We say things like that all the time. When we come through on a promise, and subsequently discover that there were doubters among the promisees, we naturally praise those who believed in us during the hard times. Jesus’ statement, in this context, makes perfect sense.

But American Christians have taken faith to an entirely different level. Our mantra appears to be, “blessed are those who believe whatever they find in the Bible, no matter what the evidence indicates, no matter how counter-intuitive the belief seems, and no matter what sound argument seems to prove.”

I honestly can’t see how this pleases God. Why would God be pleased with intellectual zombies? Why would he recommend an epistemological strategy guaranteed to deliver his people to delusion and radicalism?

I can see how this type of "faith" lines the pockets of the unscrupulous and allows others to amass power. But please God? No way!

Joe H.

Necessary and Proper

The hysteria regarding the “individual mandate” portion of the Health Care Reform Act is not surprising. The right becomes hysterical prior to every liberal advance. Don’t believe me, click here.

What interested me today is the following argument articulated by the Attorney General of the Commonwealth of Virginia – If Congress has the power to force individuals to purchase a product from a private vendor, then it can force individuals to do anything it wants and freedom is thereby destroyed.

Let me put this argument, in all its various versions, to bed. Under the Commerce Clause, Congress has the authority to regulate activities “substantially affecting interstate commerce.” The first thing to note about this phrase is that each of its elements limits Congress’ regulatory power. “Substantially,” “affect,” “interstate,” “commerce.” An activity has to fit each of these four criteria for Congress to have Commerce Clause jurisdiction over it.

(“Jurisdiction,” by the way, comes from two latin words – “Juris” which means law, and “Dicta” which means speech. Taken literally, “jurisdiction” is the power to say what the law is).

The “Necessary and Proper” clause expands Congress’ commerce clause jurisdiction to any activity, commercial and noncommercial, interstate and intrastate, even to activity that has no affect on interstate commerce – but only if the activity being regulated is part of a broader regulatory scheme and is necessary to effectuate legitimate commerce clause ends.

In other words, Congress has no power to regulate activities unless these activities substantially affect interstate commerce. The Supreme Court, for example, has struck down congressionally enacted laws banning firearms within 500 feet of schools, and granting federal civil remedies to victims of domestic violence, because these laws were too attenuated from, and had too little affect upon, interstate commerce.

However, if an activity (such as insurance companies denying people coverage, or pricing individuals out of the market, or capping lifetime benefits) substantially affects interstate commerce – and no one denies that these practices substantially affect interstate commerce – the “Necessary and Proper” clause allows Congress to regulate any activity what so ever – including forcing individuals to purchase health insurance - but only if that regulation is necessary to effectuate the desired commercial reforms (which, as I explained yesterday, the individual mandate clearly is).

That’s quite a sentence – but I’m going with it.

Anyway, all this talk about the government forcing you to purchase and eat vegetables or to buy a car from Chevrolet is nonsense. The government mandating our purchase of a private product is novel – but, in this case, it is well within established Constitutional jurisprudence limiting congressional power.

Your freedoms are safe. Enjoy your weekend.

Joe H.

Individual Mandate Unconstitutioinal? I don't think so.

Yesterday, a Federal District Court ruled that the individual mandate provision of the Affordable Health Care Act was unconstitutional because it exceeded Congress’ authority to regulate interstate commerce. The Court held that a decision not to purchase health insurance was not an “activity” and, therefore, not an “economic activity” subject to Congressional authority under the Commerce Clause.

Forget the fact that everyone eventually requires health care, and those who access our health care system without insurance shift the cost of their care onto the rest of us. Although this seems like "economic activity affecting interstate commerce" to me, what do I know. I say "forget that fact" because yesterday’s decision is flawed in a far more fundamental way. A way that might earn you a “D” on a law school exam were you to have written Judge Hudson's opinion.

A good explanation of the flaw can be found here
– but the bottom line is pretty simple. Congress not only possesses the power to enact laws regulating interstate commerce, it also possesses the authority to “enact laws necessary and proper for the regulation of interstate commerce.” The Supreme Court has repeatedly interpreted this to mean that Congress has the authority to enact laws that are "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."

Regarding health care, the argument is straight forward. Congress determined that it needed to impose regulations on insurance companies requiring them to insure all comers, regardless of pre-existing conditions, at community pricing – meaning that insurance companies cannot price individuals with pre-existing conditions out of the market by charging a premium commensurate with their true risk.

However, this regulatory scheme cannot work without an individual mandate. People could (and many would) simply wait until they needed insurance and purchase it at that time – leaving inadequate resources to pay for the care of those who paid the premiums. This would force insurers to raise premiums, which would strengthen the incentive for people to forego purchasing insurance until they needed it, and so on. This dynamic would quickly destroy the private insurance system.

Recognizing this, Congress also passed the individual mandate as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."

A more appropriate exercise of Congress’ “Necessary and Proper” authority I cannot imagine. How Judge Hudson failed to address this line of cases is beyond me, but I predict he’s going to be taken to task pretty hard.

Below is the text from Gonzales v. Raich, where the Supreme Court explained all of this. (I removed the Court’s citation to other cases for readibility).

“As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." This statement referred to those cases permitting the regulation of intrastate activities "which in a substantial way interfere with or obstruct the exercise of the granted power." As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation effective."

Although this power "to make . . . regulation effective" commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce, and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power.

Gonzales v. Raich, 545 U.S. 1, 36-37 (2005)

None of Us is as Irresponsible as All of Us - Obama Lacks Spine

I’m back after a respite.

My thoughts on the Obama tax cut deal? Obama has no spine. My second thought? None of us is as stupid as all of us! Or better yet; none of us is as irresponsible as all of us!

Proof? The estate tax is currently set to automatically revert to pre-Bush era levels. There will be a $1,000,000.00 exemption for individuals ($2,000,000.00 for couples), after which an estate’s assets will be taxed at 55%. This will happen if the lame duck Congress does nothing. Republicans currently have no power to bring bills up for a vote. Democrats are in complete control over what bills are brought to the floor.

Additionally, Congress has already passed a bill retaining the Bush era income tax rates for all wage/salary income below $200,000.00 ($250,000.00 for couples). Obama has said repeatedly, and correctly, that extending the Bush tax cuts for income above these levels does nothing to stimulate our economy, and is harmful to our long-term budget outlook. All that has to happen to retain the tax cuts on lower levels of income, without extending the tax cuts to the higher levels of income, is to get the Senate to pass the House bill.

One would think that if Obama really believed what he’s said repeatedly on these matters, he would go to the Republican Senators, point to the House bill, and say, “take it or leave it. But if you leave it, know now that I will veto any legislation passed by the next Congress that cuts taxes on higher levels of income.”

He could also say, “I understand the problem with the estate tax and small businesses, so I’m willing to accept a deal in which estate tax exemptions are raised to $3,500,000.00 for individuals ($7,000.000.00 couples), with a 45% assessment on assets above those levels. That way, only the super-rich will face estate tax liability.” Obama could even do this in concert with Nancy Pelocy, who could promise not to bring up any other bills during the lame duck session. Harry Reid could even get in on the act by promissing not to hold a vote on the House bill until the Senate allows an up or down (no filibuster) vote on the Dream Act and the repeal of DADT. All of this would encourage and please the millions of liberals who constitute the Democratic base.

Such a strategy would also project strength and conviction from a political party famous for its fecklessness.

Frankly, except for spite, I don’t see how Republicans wouldn’t fold. Republicans would be responsible for allowing tax increases on all levels of income, when they could have lowered taxes on all income below $250,000.00 – which exhausts the income earned by 97 percent of U.S. families. They would also be responsible for allowing the estate tax to revert back to Clinton era levels, when they could have gotten a reduction to protect small businesses. And what would Republicans (and their rich supporters) gain by their obstruction? Nothing!

So what does Obama do? Instead of cooperating with Congressional Democrats in executing this squeeze play, Obama goes to the Republicans and cuts a deal extending the Bush tax cuts for all levels of income. The deal further sets the estate tax exemptions at $5,000,000.00 and $10,000.000.00 for individuals and couples respectively, with a new rate of 35% for assets above those levels. Obama then rebuffs Congressional Democrats for pointing out the obvious - that this was a terrible deal – and that what Obama got in return, mainly an extension of unemployment benefits - would almost certainly have happened anyway.

Negotiate with your adversaries instead of cooperating with your friends, and, in the process, disparage your supporters while abandoning your principles. That’s Obama’s strategy, in a nutshell.

Also, think about the difference between a 35% rate on estate assets above $10,000,000.00, verses a 55% rate. This cuts taxes $200,000,000.00 for estates with assets totaling $1,000,000,000.00. The Walmart family alone stands to gain $32,000,000,000.00 in tax relief from this deal.

What kind of country borrows money from China to finance a $32,000,000,000.00 tax break for its wealthiest family?

As I said – Obama lacks spine. And none of us is as irresponsible as all of us.

Joe H.