In what one could only wish was an April Fool’s joke, the EPA and NHTSA have released their new standard for Corporate Average Fuel Economy (CAFE) on American automobiles.  Based on the new standards, it appears that CAFE now joins the growing list of government names which don’t actually mean what they say.  Forget fuel economy, CAFE is now all about Carbon Dioxide.

To understand exactly what’s going on, it’s worth a brief history lesson in the history of vehicle output regulations.  In the US, vehicle regulations have essentially taken on two basic forms, one dealing with emissions, and the other dealing with efficiency.  Emissions based regulations focus, as the name suggests, on the chemicals being emitted from the vehicle’s tailpipe, and are designed to eliminate atmospheric pollutants which are directly harmful to human health, believed to cause global warming, or both.  Efficiency regulations, by contrast, are designed to reduce the amount of fuel used by vehicles in light of the fact that petroleum is a scarce resource.

The history of CAFE can be tied pretty much directly to the Arab Oil Embargo of the early 1970s.  At the time, fuel was not a particularly scarce resource, and the average motorist had little reason to be overly concerned about the amount of money being spent at the pump.  Auto makers, accordingly, focused on features that consumers were interested in; things like power and luxury.  This, of course, became a problem when the fuel supply shrank rapidly, causing people to become suddenly conscious of how far they could drive on a tank of gas.  In modern politics, fuel efficiency has been linked primarily to concerns over energy independence and the price of gasoline.

The new CAFE standard abandons that history entirely.  By refocusing CAFE on CO₂, the EPA has transformed an efficiency regulation into an emissions regulation.  Rather than regulating fuel efficiency directly, the EPA is now regulating the number of grams of CO₂ emitted per mile.  To maintain the illusion that CAFE remains about fuel efficiency as opposed to CO₂ efficiency, the EPA has put together a chart showing both grams of CO₂ per mile and the “equivalent” traditional miles per gallon.

The equivalence between Carbon Dioxide and fuel mileage, however, is based on a set of assumptions about how vehicle manufacturers design their cars and trucks.  In essence, it assumes that a standard vehicle emits a certain number of grams of CO₂ per gallon of gasoline.  Unfortunately for consumers who care about fuel economy, there is nothing magical about that number.  Manufacturers could, for instance, install a heavy CO₂ scrubber which adds weight to the vehicle, thus reducing its miles per gallon, even as it drives CO₂ emissions toward zero.  That approach is, in essence, exactly the approach taken to reducing other pollutants to comply with emissions regulations.

At present, consumers have become reasonably conscious of fuel efficiency and consider the number of miles their vehicle will travel per gallon of gas as a factor in buying a new car or truck.  As such, it’s an open question whether this revision to CAFE will have any effect on fuel efficiency overall.  It is important to be aware, however, that the government will no longer be in the business of driving up fuel efficiency.  They have now set their entire focus on carbon.

Tags: climate change, energy

A post today by Michelle Malkin brings to light an interesting provision of Obamacare which will apparently target funding at racial minorities.  As she details with a good deal of clarity, this would seem to be an invitation for generating illegal racial preferences in healthcare.  While this, itself, is not a violation of the Civil Rights Act (which Congress may modify or ignore at will), it may present a legal conundrum within the world of medicine.  It also reminded me of concerns that I expressed privately months ago about healthcare being used as a vehicle for political preferences; concerns which are now certainly credible enough to be worth active discussion.

While I do not recall when it first occurred to me, I have been concerned since sometime last summer about the possibility that the healthcare bill would eventually be used as a tool to leverage votes for Democrats.  The basic scenario works as follows: When healthcare rationing inevitably begins, funds will be directed preferentially toward states, counties, and cities which routinely vote Democrat.  The more insidious scenario looks a little bit different: Medical records will be paired, secretly or explicitly, with rolls of party affiliation, campaign contributions, and political activism, and those individuals who support Democrat candidates and policies will receive care more quickly and completely than individuals who are opposed.  However unlikely those scenarios seem, neither one is impossible, and the first appears to be already happening.

Regardless of which scenario ultimately plays out, the result is that voters will be placed into a voting system built from a framework of oppression.  While politicians are well known to offer money to favored constituencies, this becomes the first time in America’s history that politicians can literally begin to equate votes to matters of life and death.  Most voters would not find it a difficult choice to select between supporting some policy that they don’t like, or a politician that they would otherwise oppose, when the alternative is that they will not be able to receive a life saving cancer treatment in time.

No neutral observer could call trading votes for life anything other than false liberty.

Strangely, though, this potential avenue for abuse has been almost entirely absent from the debate over health care.  Throughout the entire debate, I can only recall having seen the question show up once, in a survey published by the RNC asking if voters were concerned “that the government could use voter registration to determine a person’s political affiliation, prompting fears that GOP voters might be discriminated against for medical treatment in a Democrat-imposed health care rationing system.”  My vote, of course, would have been (and is) quite affirmative, especially as the full blown public option was still alive and well as a possibility in August when that survey was published.  The flash of furor, though, was apparently strong enough that the impotent GOP backpedaled, said that the question was “inartfully worded,” and tried to re-frame it as being about privacy rather than political gamesmanship.  With the GOP’s apology issued, the issue promptly disappeared from the debate.

But as we are already beginning to see, the GOP was right the first time.  Trading healthcare for votes is a serious issue about which Americans need to seriously engage.  Even liberals, who may think they’re safe with Obama in charge, should be scared of the potential for abuse.  Imagine, after all, if George W. Bush had been in charge of making your medical decisions; imagine the future of medicine under President Karl Rove.  Tying political support to medical treatment is far more dangerous than the financial quid pro quo that Americans have, unfortunately, gotten used to.

Perhaps Michelle discovering this first attempt will finally shed some light on a looming problem that should have been discussed months ago.

Tags: freedom, healthcare

In watching the House vote on healthcare this evening, I was struck rather profoundly by the fact that after the predictable cheering, the Democrat delegation broke out into a chant of “yes we can.” Perhaps I should have predicted that too, but it was a disgusting spectacle to watch as our elected politicians worked themselves into such a self-congratulatory frenzy. It is even more disturbing when you considered what they now proclaim they can do.

Most of the drama leading up to this vote comes from the fact that the American people did not want this bill to pass. If the people were on board, tonight’s vote would have been a mere formality; furthermore, it would have happened months ago. But the people stood up against the bill, some on principle, others formore specific reasons, but a clear majority did not want what happened tonight to occur. The people expressed their views in polls, by mail, by phone, by internet, and at the ballot box where a series of candidates did better than they should have had any reason to simply because they ran on conservative principles. Congress knew that the clear will of the people was that the bill must die.

So when they chant at us, “Yes we can,” what they are really chanting is that they can defy the will of the people, openly and in plain sight. They are saying that they can govern against us, not just against our will, but to our own detriment. They are loudly proclaiming that they can defile every principle the nation was built from, enshrined in the constitution, and cherished by everyone who believes in liberty.

I look forward to the coming election, where I expect the American people will have their own chance to be equally jovial in the streets. I look forward to 2012, when Obama will be thrown from office in disgrace. On these says of reckoning, the people will have their chance to take to the streets in and greet Washington with their own rallying cries:

“No, you can’t.” “Freedom reigns.”

As reluctant as I am to take issue with the well considered opinion of Mark Levin, I find myself doubting that the constitutional case against the Slaughter Rule is as open and shut as I have heard him and other conservative commentators describe.  While the procedure set forth in the Slaughter Rule of considering the Senate Bill to have been “deemed passed” is clearly contrary to the legal history and tradition of the country, and to the concept of democracy more generally, there is no particular command in Article 1, Section 7 of the Constitution, or any other place within its text, that definitively rebuts the Slaughter Rule.

Article 1, section 7 of the Constitution states:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Mark Levin and other commentators point out from that text two phrases of paramount importance.  The first is the first sentence which states that “Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States,” and the second comes in the middle of the paragraph to say that “in all such cases the votes of both Houses shall be determined by yeas and nays.”  From these two phrases, and with reference to Clinton v. City of New York, commentators have deemed it obvious that the Constitution requires actually voting on the bill to pass it.  Obvious and correct as this ought to be, it’s not actually what the Constitution says.

To begin again at the start of the paragraph, the clause introduces itself with the words “Every bill which shall have passed” (emphasis added).  Those words, right there, are in the past tense.  This paragraph, right from the start, is not talking about how to pass a bill; it is, rather, talking about how to take a passed bill and turn it into a law.  The remainder of the paragraph is consistent with the understanding that it applies to passed bills, rather than bills to be passed.  It first describes the presentment to the President, explains the process for handling a veto, including its override, and further explains what happens to bills that the President leaves sitting on his desk.  All of the things described by the paragraph are only possible on bills which both houses have finished with.  This paragraph, in other words, assumes that a bill has been passed somehow, but offers no command for how that passage must come about.

Reading on to the second interesting clause, the bill says that “the votes of both Houses shall be determined by yeas and nays” in “all such cases.”  The inclusion of the word “such” is clearly an invitation to examine the preceding context of that phrase and to limit its scope accordingly.  The preceding context is none other than the process for overriding a Presidential veto, meaning that what that sentence tells us is that vetos may be overridden only by yeas and nays, and that it is limited to that meaning by its own terms.  Had the word “such” been omitted, Levin would have a stronger position, although he would still have an uphill battle to defeat the obvious context in which that phrase was placed.

Ultimately, the strongest argument against the Slaughter Rule are originalist rather than textualist, and Clinton v. New York guides the way.  In that case, the Supreme Court held that laws can only be formed when (among other things) “a bill containing its exact text was approved by a majority of the Members of the House of Representatives.”  But even this language leaves open the argument that, because it takes a majority to adopt a rule, and the rule contains an approval of the bill, passing the rule is tantamount to a majority of Representatives approving the bill.  Regardless, it is clear that the Supreme Court has recognized that there is a traditional process for passing laws, which is a good sign.

I have little doubt that the founders would be astonished to learn that the Slaughter Rule is even being considered.  The English law traditions they inherited and the process the country has followed consistently ever since the founding is clear in that bills are passed with majority votes, not with parliamentary trickery.

If the Senate Bill should pass on the basis of the Slaughter Rule, I wish Mark Levin the best of luck in bringing his lawsuit and having the bill stricken in court.  There is no doubt that the proposed rule is an abuse of process and a direct assault on American tradition, perpetrated by politicians waging a war against the liberty of the American people.  I do believe, though, that it would be a mistake to rely on the text of the Constitution alone to defeat the Slaughter Rule.

Tags: constitution, healthcare

As one would not doubt expect from today, the media has been abuzz with thoughts and comments related to this afternoon’s oral argument in the case of McDonald v. Chicago. Most of the reporting has managed to crystallize around two salient facts: The Supreme Court will incorporate the Second Amendment, but the won’t do it through Privileges and Immunities.

With respect to the first fact, no piece of reporting I’ve yet to see has managed any more than a statement of agreement or disagreement with that the Court is poised to do. I’ll join this silly straw poll: Incorporating the Second Amendment would be an activist decision; Incorporation ignores the original understanding of the scope of the amendment, it ignores the unique anti-federal-involvement-in-state-gun-laws purpose which motivated the amendment, and it has no basis in the Constitution’s text.

More interesting is the bizarre confusion about what’s at stake when it comes to the use of the Privileges and Immunities Clause for bringing about that incorporation.

Under the Court’s current precedent, the Due Process Clause of the 14th Amendment provides every tool that McDonald could ever need to bring about incorporation of the 2nd Amendment. It also contains a great many other things. Most of what the Due Process Clause is said to contain has been rightly criticized by conservatives as being impossible to support under any reasonable reading of the text of the amendment. The Due Process Clause has become, in essence, an open-ended clause which allows the Court to pretty much do whatever it wants.

Perhaps recognizing that they would eventually need to reconcile their appropriate disdain for “substantive due process” with their misplaced desire to allow the Court to make activist decisions which favor conservative policy preferences, there has been a push to breathe new life into the Privileges and Immunities Clause of the 14th Amendment. Leading with a smear campaign against the Slaughterhouse Cases and culminating with today’s argument in McDonald, conservatives have certainly put up a good fight.

Despite an effort to promote the Privileges and Immunities Clause as being somehow more restrained than “substantive due process,” it was apparent that the justices saw at least partly through the charade. A parenthetical on SCOTUSblog tells the tale:

(In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause. He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?” It was obvious that it troubled the Court.)

A more appropriate question might have been, “Why does the Constitution need two open ended clauses?” Or perhaps, “What does anyone gain by replacing one open ended clause with another?”

And if, as Roger Pilon states over on Bench Memos, “[most 14th Amendment cases] should have been decided under the more substantive Privileges or Immunities Clause,” might not one be forgiven for wondering what the point is in promoting this distinction without a difference? When the Court can turn Due Process (among other things) into “emanations from penumbras” into a “right to privacy” into a right to abortion on demand, it seems unlikely that any amount of “history,” no matter how much “better [it] informed the Court,” would have done anything to have “better checked the Court’s occasional activism.” After all, activism happens when a court ignores the overwhelming weight of text and history to arrive at a preferred decision.

I continue to be disappointed that conservatives have generally failed to remain true to the principles of judicial restraint when it comes to carrying guns. As I said at the time, the Court in Heller got to the right conclusion — individual right, no flat ban on handguns — but did so in a terribly activist way with an opinion I would not have joined. In this case, however, I continue to believe that incorporation is nowhere to be found in the Constitution and that, while a respect for precedent may council against disicorporating the Bill of Rights, there is no reason to extend its impropriety beyond where it has already gone.

Tags: 2nd Amendment, constitution

All of the major news outlets have been filled with reports of President Obama’s new promise to provide loan guarantees for the creation of new nuclear plants.  The promise comes amid efforts by Obama and Democrats to make forward progress on their effort to impose cap and trade legislation on the energy sector.  Obama’s bid, clearly targeted at Republicans who he feels may be willing to compromise on cap and trade in exchange for nuclear energy, appears to be little more than yet another empty promise by him and his administration.  Republicans should ignore the President’s meaningless promise and continue to oppose cap and trade.

Nuclear power is a source of energy which has been advocated by conservatives and energy producers for years.  Nuclear power offers an opportunity to significantly increase energy production in America, reduce dependence of foreign resources, and meet the politically expedient desire to avoid increasing carbon production.  The economics of nuclear energy are relatively straightforward, involving a significant upfront investment with significant payout over the life of the power station.  This is something that power companies have been ready to jump at for decades, and for which they would have no problem securing funding from the usual private sector debt markets.

Far from economics, the primary problem with nuclear energy has been from the environmental arena.  By citing concerns about the potential danger from nuclear facilities, environmentalists have managed to build a strong NIMBY sentiment in the areas where nuclear power has been considered.  Additional concerns over the disposal of reactor waste have further complicated the issue, primarily because of political resistance to building a properly designed disposal facility.  The regulatory system has further compounded the political issues by developing a process which borders on impenetrable for the approval of permits to construct new nuclear facilities.

By guaranteeing loans for the construction of nuclear facilities, Obama proposes to extend government investment to solve a non-problem.  His position allows him to portray himself as supporting nuclear power to Republicans in hope of winning their support on cap and trade legislation, all without running any risk that new nuclear power plants will actually be permitted.  Obama’s promise is, in short, a ruse to win support from gullible conservatives with no downside for his liberal base.

Republicans should see through and reject Obama’s empty promise.

Tags: cap and trade, energy, nuclear power

Over in the Guardian, Sasha Abramsky invites us to consider the resurgence of apathy in a post-Obama America.  His central thesis is the idea that just a year after the high level of political engagement Americans exhibited during the 2008 election, the electorate has once again disengaged from the political process.  In truth, for Mr. Abramsky’s fellow liberals, such a charge may be the truth.  However, the American electorate as a whole has done precisely the opposite, becoming demonstrably more engaged in the political conversation than anyone was likely prepared for.

Mr. Abramsky is correct in noting the resurgence of political engagement shown by the American people during the election cycle in 2008.  Heading into the election, many things were up for grabs.  America was in the grip of what may be called two wars, Iraq and Afghanistan, both aspects of the larger war against terrorism and Radical Islam.  The country in general, and border states in particular, faced challenges from a broken immigration system and the pressing question — never resolved — of how to deal with people crossing onto US soil illegally.  The nation’s deficit had grown, putting a strain on the national economy even before the bubble burst.

Americans had a lot to be engaged about.

Where Mr. Abramsky’s argument comes off the rails is obvious in what happened next.  Democrats won the White House and the House of Representatives, and for a time held a filibuster-proof majority in the Senate.  The stimulus, cap and trade, health care, invasive bank and industry regulation, and all manner of Democrat projects which had been held in check for years or decades suddenly became possible.  Riding their “mandate from the American people,” Democrats could literally not be defeated in the political  branches.

Democrats, however, have been defeated.  When the American people realized that the destruction of personal liberty and freedom, the destruction of the private sector, the destruction of the Constitution and any pretense that the government would not be in control of every aspect of their lives, the American people responded.  No disengaged populous could have defeated the unstoppable Democrat government.

Clearly, the American people have not returned to apathy by way of hope and change.  Americans saw the hope and change that awaited them and ran pointedly in the opposite direction.

Americans, I’m sure, still care about the environment, about health car reform, about jobs, and about the economy.  But Americans also care about liberty and freedom.  They care about personal rights, personal responsibilities, and “the right to be left alone.”  We care about having a limited government run by people who do not lie to us, who do not shut us out from the debate, and who do not act to secure their own power against/over the American people and contrary to our clearly expressed will.

But please, Mr. Abramsky, continue to encourage the American people to become even more engaged.  American apathy very well could lead to the revival of the Democrat agenda.  A disengaged populous is a very unfortunate thing.

It’s time again for the Olympics to kick off into full force.  Already as I write this, the athletes have been hard at work for the past two days competing for gold on the world stage.  Every two years, the games present a wonderful opportunity to forget about politics and focus on a much more wholesome form of competition.

Of course, Vancouver has more to offer than just a collection of top athletes.  Their opening ceremony was also pretty interesting, and I particularly loved the lighting of the torch.  And then there was the fiddler in the canoe who fought against his own shadow.  Or, perhaps I should say, the Batman…

Best of luck to all the athletes competing in Winter Olympics 2010!

Michelle Malkin suggests that Republicans should avoid the open-camera discussion with Obama about health care.  She suggests that they’re just opening themselves up to being cast as the villains in an Obama-run theatrical event.

I disagree.

I think there’s no good that would come from rebuffing Obama’s overtures, regardless of how insincere we believe them to be.  For one thing, that will just get the Republicans branded as blind obstructionists, with no way to counter that opinion.

More importantly, though, where Obama goes, so go the cameras.  The Republicans have submitted, over the past year, at least three health care bills that have gotten no exposure.  Congressional Democrats have buried them, and the media hasn’t even had the courtesy to attend the funeral.  To run an obituary for non-Obama health care reform would be to acknowledge that the deceased existed at all.

Beyond that, however, it allows the Republicans to make their case and force the Democrats to defend mandates, union favors, and denying mammograms to women.  Republicans can push the issue and show America that there is a clear reason Republicans have been opposing Obamacare for so long and that not only do we have the answers, but the Democrats do not.

Did I mention that it would give us a chance to show that we have the answers?  Good, just making sure.

We have the initiative in this debate; it would be folly not to pursue it.

That being said, the Republicans are going to have to do two things in order to pull this off.

First, they’re going to have to find someone in that gaggle of politicians who understands the issues and the issues behind the issues, and who can step up and be the voice of the party.  He should be someone who is unashamed of the free-market concept of health care, an advocate of liberty, and eloquent.  Unfortunately, Dr. Thomas Sowell doesn’t hold elected office, so we’ll have to find someone else.

Second, the Republicans will need to find a stage manager – someone who can take on Rahm Emanuel, head-to-head, and keep the Republicans from being hamstrung by absurd rules that give Obama all the stage time, and relegate the Republicans to ten seconds of rebuttal following a ten-hour Obama speech (with or without teleprompter – by the sixth hour, does its presence even matter anymore?).  This someone’s sole job is to make sure it’s a fair fight for a change.  Karl Rove, are you out there?

Tags: Health Care