What an unbelievable spectacle it has been reading the news coming out of Capitol Hill this past week.  It was only a mere month and a half ago that American citizens, old and young, from all across the nation issued their resounding call that when it comes to big government, enough is enough.  In district after district, conservative candidates won surprise victories in primaries and in the general elections, or made strong showings in places where in elections past there would hardly have been reason to give Republican candidates a second thought.  State legislatures and executive offices also swam in the red tide as people cried for the death of big government and the return of individual liberty.  Yet, it seems, for Republicans on the Hill, with the elections gone it’s back to business as usual, with personal freedom still squarely in the crosshairs.

So much digital ink has been spilled about the Bush Tax Cuts that it’s hardly worth adding much more.  The general consensus seems to be that Republicans would have been better off dropping the deal and trying again for a better package in the new year.  That may be true, but it could also have guaranteed a tax hike.  For now, at least, I’m willing to write that episode off as a lose-lose-lose scenario for Republicans, Democrats, and the American people.  In any case, there are far clearer examples of how out of touch Republicans still are.

The first of these examples is the CALM Act, a law passed to authorize and mandate the FCC to create regulations about how loud commercials can be during television programming.  The law itself is a trifle of a thing, but it was passed by Congress and signed by the President without a single recorded vote.  The clear implication is that Republicans are still complicit in the expansion of government power.  Without objection, another tendril has been injected into American enterprise from the chambers of Congress.  Laws like this are precisely what we voted against a mere six weeks ago.

Another example is a food safety bill passed by Congress to give more authority to the FDA, supposedly to help combat food-borne illnesses.  In reality, it’s a $1.4 billion injection of 17,800 government bureaucrats into the US economy.  The bill would give the government the authority to mandate food recalls and to arbitrarily review the records of farms and food producers.  This measure could certainly be taken up in Congress next year — there is no food-borne illness crisis — but is instead being rammed through the Senate late on a Sunday one week before Christmas.  All without the benefit of a vote, and all, apparently, with Mitch McConnell’s blessing.

This past Election Day, the American people could hardly have been more clear that they are tired of seeing more government at every turn.  So far, although Harry Reid set himself up for failure, the only thing he seems to be failing at is failing.  Nothing important would have been lost had Republicans held the line and shut down the Senate until the new session next year.  Instead, they seem to be as complicit as ever in the expansion of government over the American people.

The real conservatives can’t get started soon enough.

Congress is about to hand Americans another case of government overreach.  It appears that the House of Representatives has just approved the cutely named CALM Act, which now makes its way to President Obama for signature.  The bill, in essence, requires the FCC to enact regulations to control the volume of commercials on television to ensure that they are not too loud.  That the government has spent time on such a venture is entirely ridiculous.

To begin with the pragmatic question first, why in the world is the government wasting time on a bill like this?  When commercials are broadcast louder than the shows that are otherwise airing, it’s safe to say that what results is a minor annoyance at best.  I’m not someone who watches TV often, but I have noticed some commercials are louder than others.  Usually, though, it’s not too bad, and the thought of reaching for the remote never even crosses my mind.  Perhaps the most awful effect coming from the volume of commercials is that it wakes up people who fell asleep during a television show.  National security has never been compromised, and nobody has ever been hurt, because a commercial was louder than the TV show during which it aired.  The problem is, in sum, a minor trifle of an annoyance.

The government’s effort to “fix” this non-problem is likely to create some actual problems to be solved.  TV stations will, of course, be required to comply with whatever regulation the FCC ultimately decides to adopt.  It is likely that networks will be required to invest in hardware and software to analyze the broadcast volume of television shows and commercials to ensure that they are properly equalized.  This hurts small broadcasters who likely have much better things to spend that money on, as well as consumers who will ultimately be responsible for picking up the tab.

In the end, it’s impossible to see this bill as anything other than another example of government intervention into the everyday lives of Americans.  This legislation, quite simply, serves no greater purpose.  It is most unfortunate (though not surprising) that it was passed without a single recorded vote in either the House or the Senate; underscoring the triviality of the bill as well as the careless disregard with which Congress is willing to enact such legislation.

Tags: free markets, government overreach, technology

As we should all be fully aware by now, the TSA has managed to reach new levels of absurdity in its performance of security theater at America’s airports.  Americans, in view of the invasiveness of the new fully body scanning devices, are being encouraged to stage a protest against the machines by opting for pat-downs on Thanksgiving Eve.  Hiding in some cave somewhere in Afghanistan, the leaders of al Qaeda must be rolling over with laughter.

Americans, it seems, are poised to do a much better job of terrorizing America’s airways this Thanksgiving than al Qaeda has managed since shutting down all air travel on 9/11.  And, for al Qaeda, what better way to attack America than by doing nothing at all?  That is, in effect, what’s going to end up happening this year if even a small percentage of flying Americans decide to participate in the opt-out effort.

To be sure, al Qaeda is the underlying cause of the disruption that is about to occur in airports across the country.  Their persistent and repeated attempts to attack American civilians have caused the US government to step up efforts to ensure our safety, despite the fact that most of al Qaeda’s most recent attacks have resulted in what appears to be abject failure.  Despite having failed to kill anybody, al Qaeda has, nevertheless, slowly but surely encouraged Americans to give up more and more freedoms to a national government all too eager to take them away.  This is a trend that I’ve noted before, but at least, up until now, our fear has been caused by actual terrorist threats.

This new breed of disruption is a natural consequence of the expansion of the American government’s efforts to combat terrorism at home.  Americans are, by their nature, a freedom loving people.  The recent elections have shown that we also believe in independence, not only as a nation from others, but as individuals from our government as well.  As security measures became more invasive and draconian, it was only a matter of time before the people would begin to push back in dramatic ways.  This, it seems, may be the first round.

Terrorists are not fundamentally murderers.  Murder, to them, is a tool to be used in advancing their agenda.  This holiday season, Americans need not worry about murder as a cause of mayhem.  Government overreach and popular backlash could make as big a mess as a bomb scare would.

As tensions rise and division increases, al Qaeda gets exactly what it wants.  Only this time it is, literally, all our own fault.

Over in Newsweek lurks an interesting question by Daniel Stone.  Is the Presidency too big a job? It’s difficult to decide exactly what the author is aiming toward with his article.  My very first thought upon finding the article is that he was going to write something of an apologia for President Obama, that part of the reason he seems to have done so poorly is simply that he has far too much to do.  Reading through the article, however, it seemed more as if the author was trying to argue in favor of giving more power to government agencies.  Whatever his purpose, the author certainly fails to take note of the most fundamental causes of Presidential overload.  Put simply, the President has too much to do because he has to do too much.

One item that Mr. Stone chronicles nicely in his article is the growth of the Presidency.  To some degree, the changes can be explained by differences in public expectations and leadership styles.  The American people have come to believe that a modern President needs to be something of a Renaissance Man, knowledgeable about economics, the military, disaster recovery, emergency relief, law, the environment, and all manner of other things; and that when something goes wrong, that the President is the person to blame.  At the same time, Presidents have tended to help encourage that perception — President Obama moreso than most — by personally involving themselves in being the large public mouthpiece for the positions they advocate.  Looked at from that standpoint, Mr. Stone’s assertion that the President should delegate more to the agencies would certainly seem to make sense.

The trouble with Mr. Stone’s analysis is that it fails to look even one level deeper to understand why modern Presidents seem to have so much more to do.  The change isn’t simply due to perception, or failure to delegate.  Presidents seem to have more to do because, in fact, they do have more to do.  The growth of the regulatory state since the 1930s generally tracks with Mr. Stone’s chronicle of the expansion of the President’s role over the same time period.

As President Truman once said, “The buck stops [with the President].”  As government has expanded, so too have the number of “bucks” being passed around from one bureaucrat to another.  Many of those, ultimately, end up on the President’s desk.

The way to solve the problem of the overworked President isn’t to cut back on the number of advisors or to put more work on the shoulders of the regulatory agencies.  It is, quite simply, to give the government (and, thus, the President) less work to do.  Many of the areas where the federal government has extended its authority could be handled at least as well by the states, local governments, private businesses, and charities.  Such a shift would allow the President, and federal government at large, to focus more intently on those issues which truly must be handled by the federal government, without the distraction of so many minor issues occupying his time.

Of course, such a change would also require bureaucrats to give up the power that they have unconstitutionally amassed for themselves over the past eighty years.  While the nation would be better off, it remains to be seen when the political class will see fit to make such a transformation reality.  With the success of conservatism this past November, it’s possible that the groundwork is finally being laid.

Without that sort of fundamental change, however, it is all but inevitable that the role of the President will continue to grow.  At what point the job becomes unsustainable and collapses is hard to tell, but what is certain is that it will happen.  No amount of delegation can cure the fattening of the American bureaucracy, or the over-extended role of the American President.

Over in the New York Times, David Herszhenhorn proves that he needs only a paragraph to declare his misunderstanding of both the debate over earmarks and the Constitution:

At the same time, the renewed push against earmarks highlighted a potential conflict between the calls to eliminate the spending items and demands by many Tea Party supporters for greater fidelity to the Constitution. It is the Constitution, after all, that put Congress in charge of deciding how to spend the taxpayers’ money. In pledging not to let individual lawmakers designate federal money for local purposes, the anti-earmark contingent is in effect ceding more power to the executive branch over how taxpayer dollars are spent, presumably not the outcome desired by the new crop of grass-roots conservatives.

His statement is apparently meant to tell conservatives that a win on the issue of earmarks is really a loss for the Constitution.  His argument is built on a rather silly looking straw man and his conclusion is, constitutionally speaking, insane.

Beginning with the straw man, it appears as if the author is generally assuming that whatever money is spent on earmarks will be spent by the government in one way or another.  In his view, Congress is going to authorize the same amount of money one way or another, with the only question being who in the government is going to have the authority to decide how to spend it.  Were that to be the actual argument, it may indeed be wise to earmark money as a way to impose some constraints on the President.  The debate, however, isn’t about that.

Earmarks have been jumped on by liberals and conservatives alike as examples of government waste (at best) and corruption (at worst).  The problem isn’t that Congress is choosing where to spend the money rather than the President; the problem is that the government is deciding where to spend that money rather than leaving it in the hands of the taxpayers who earned it.  The goal and point isn’t to change how federal bureaucrats spend the money, it’s to stop the bureaucrats from spending the money at all.  The job isn’t done until the number of dollars spent by the government goes down.

On the matter of the Constitution, it actually specifies a lot less about who gets to decide how government money is spent than the author imagines.  The Constitution, of course, gives the job of creating a budget to Congress, and the President is bound by any budget that Congress is able to pass into law.  The Constitution, however, offers no particular level of specificity that Congress must meet in order to have satisfied its duty.  As far as the Constitution is concerned, it is enough for them to create a budget that says the President has some number of dollars to spend in the furtherance of his duties.

What the Constitution is very specific about, however, is the list of categories for which money may be spent.  These categories are not defined by Congress, but are actually written into the Constitution itself.  Congress may, of course, add some specificity to the given categories, but they may not, under the Constitution as written, go outside of what the Constitution says.  It’s hard to find a single earmark that fits within this constitutional framework.  Put more bluntly, it’s hard to find a constitutional earmark.

Of course, Congress hasn’t cared too deeply about the constitutional limits on their spending power for quite some time.  Both major parties have a long history of using earmarks to pay off political favors, and no incumbent is eager to dismantle a system which tends to add to their power.  To make matters worse, spending decisions are largely immune from challenge in court, leaving few checks or balances on earmarking.

The American people, on the other hand, care a great deal about what the Constitution has to say.  While it doesn’t explicitly say “No Earmarks,” it also doesn’t provide the government any authorization to pay political debts with the people’s money.  Whether the dollar value is high or small, earmark is spending mostly unconstitutional waste that needs to be stopped — stopped in Congress, stopped in the White House; stopped everywhere.

Reporting on the matter so far is sparse, but it appears that there may be an activist federal district judge in Oklahoma who has decided to begin the work of frustrating the will of the people.  The case involves an Oklahoma ballot measure to amend the state’s constitution to clarify what lines of authority the state’s courts are allowed to use in performing their judicial function.  The amendment language, among other things, calls out Sharia law as being one line of authority that Oklahoma’s courts are to specifically avoid using.  A Muslim activist sued, prompting Chief Judge Vicki Miles-LaGrange, appointed by Clinton in 1994 to the U.S. District Court in Oklahoma City, to issue an injunction against the measure pending a hearing on its constitutionality under the Federal Constitution.  Far from enjoining the law pending a hearing, this lawsuit should have been dismissed as frivolous without so much as a second thought.

The Oklahoma International Law Amendment of 2010 amends the state constitution with the following language (emphasis added):

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

It is difficult, if not impossible, to mistake the clear purpose of this language.  The people of Oklahoma want their courts deciding cases based on US law.  Though much more specific, this is no different than the thrust of the Federal Constitution which limits courts to cases “arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” (US Const. Article III)

The argument apparently being made against the Oklahoma amendment is twofold. The complaint apparently alleges that the amendment stigmatizes the Muslim religion and would invalidate the complainant’s will, which is based on Sharia law.  In reality, the Oklahoma amendment does no such thing.

The fact that the amendment calls out Sharia law has nothing to do in any way with religion, and certainly does not stigmatize Muslim.  The amendment cites certain authorities of non-domestic character which judges are meant to specifically avoid, including “international or Sharia Law.”  Both international (sometimes called foreign) law and Sharia law are notable in two important ways.  First, international law and Sharia law differ from traditional US law in a variety of important ways, which could easily lead a judge to rule in a way contrary to the legal traditions of America.  Second, and probably more importantly, actual judges deciding actual cases have used international and Sharia law to reach results which are (at least arguably) contrary to the letter and spirit of US domestic law.  Were Sharia law not being used to (arguably) circumvent US law, there would have been no reason to name it in the amendment.

As far as the complainant’s will is concerned, his belief that the amendment would cause it to become invalid seriously misunderstands the plain meaning of the amendment.  A will, in basic terms, is a legal document that establishes instructions for how to dispose of an estate following a person’s death.  Courts enforce wills though a body of US domestic law known as Probate.  Probate law, though not perfectly so, is largely indifferent to the specific instructions provided in an individual’s will and focuses, instead, on providing a general framework for executing the instructions, whatever they may be.  When courts interpret wills, probate law generally requires that wills be evaluated on their own terms.  Thus, when presented with a Sharia will, a court “adher[ing] to the law as provided in … Oklahoma [s]tatutes” must consider the will as a valid instruction set, irrespective of its religious backing, as long as it doesn’t conflict with with probate law.  Of course, if there is a conflict, probate law must win; but that’s true of all wills, not just those inspired by Sharia principles.

The American people are well within their right to insist that judges follow, first and foremost, US domestic law as defined by constitution, statute, and American legal tradition.  The people of Oklahoma have identified two bodies of non-domestic law which are of special significance to today’s legal landscape because real judges in actual cases have begun using them in ways contrary to domestic law.

Because the Oklahoma amendment is perfectly justifiable on non-religious grounds and does not interfere with religious practice, there is no reason to think it may be unconstitutional.  The lawsuit against it should be dismissed.

Tags: 1st Amendment, court opinions, sharia law

That’s the question that I’d like to ask Stephen Gutwillig of the LA Times in regard to his seriously bizarre article about the defeat of Proposition 19 in California.  If I follow the line of reasoning right, what I think the author is trying to tell us is that the mere fact that marijuana legalization appeared on the ballot at all is proof that it will, one day, be legal in California.  If ever there were an article overreaching to get to a preferred conclusion, this opinion piece in the LA Times is it.

The recent history of marijuana legislation in America has spent the past several years moving in an interesting direction.  Advocates of marijuana use have made modest success in positioning marijuana as a sort of medical utility drug, particularly for people like cancer patients and others who suffer from some sort of otherwise supposedly untreatable pain.  Across the nation, a number of states have passed laws allowing for limited medical marijuana use.  Though laws do vary some from state to state, most such laws allow people to grow their own personal supply of marijuana and use the plant for their own purposes as long as they have a doctor’s prescription.  Of course, the FDA finds no medical benefit from smoking and, to the extent that there are benefits, we know how to isolate the active ingredients from the marijuana plant, and some of them have been reformulated into manufactured pharmaceuticals.

Based on this history, it’s easy to see the game that marijuana advocates are playing.  The ultimate goal is to legalize the drug.  By supporting medical marijuana, advocates for total legalization are able to get people familiar with the drug by, in effect, reintroducing it into good society.  More importantly, legalizing marijuana makes enforcement of marijuana laws significantly more difficult because there is easier access to the drug supply and because it’s harder to identify legal from illegal users.  Indeed, it seems to be an open secret that medical marijuana advocacy is, for the most part, a proxy for legal marijuana advocacy.

When it comes right down to it, the history of marijuana in America has not been favorable to people who want to use the drug for recreational purposes.  California has had a medical marijuana law since 1996, making it one of the oldest medical marijuana laws in the country.  Practically speaking, it’s doubtful that anyone in California who wants to smoke marijuana will have much difficulty purchasing it.  In theory, those facts, combined with the general political landscape of California, should have made the state a prime candidate give the final victory to marijuana proponents.  Yet, when presented with the question head on, the people of California joined the countless majorities before them who would rather not have people smoking marijuana without a compelling need.

In the end, this result should hardly be surprising.  Modern history has not been kind to smokers of any variety.  The national persecution of tobacco users continues to spread to bars and restaurants as people have decided that they prefer to breathe clean air rather than air filled with other people’s emissions.  Whatever the science may say about second hand tobacco smoke, it seems to me that the main reason people don’t want to be around the stuff isn’t its damaging properties, but is simply how unpleasant it is to breathe.  Marijuana smoke has a different scent, but the unpleasantness remains.

There may eventually come a day when the conversation about marijuana becomes honest enough to be taken seriously.  But trumpeting the idea of marijuana as a medical wonder drug, or cheering the economic “stimulus” from legalizing and then punitively taxing marijuana use are not the kind of honesty that the American people expect or deserve.  Nor is it helpful to present an imagined future history which runs counter to the clear reality that, when given a chance to legalize marijuana, the American people just say no to drugs.

This past Tuesday, conservatives carried out a historic rout of Democrats and liberalism across America.  The war to reclaim America is far from over — it’s only just begun — but the first round certainly belongs to the Right.  The victory wasn’t accomplished with perfection — guys like Barney Frank and Harry Reid weren’t fired — but such glitches are minor compared to the sweeping victory won by conservatives nationally.  Indeed, far from the mainstream coverage and national headlines, conservatives made dramatic gains in the states; even Union/Democrat strongholds like Michigan.  In the numbers game of counting bodies, there is more than enough to be excited about.  But, as one reader here asked, there is a question remaining:  Now that conservatives have won, what are they going to do?  Do they even have an agenda other than stopping Obama?  This is, for sure, a very good question, and one that is entirely appropriate.

To answer the question, it’s important to pay attention to what this election was actually about, because it was different from most of the elections that America has faced in recent history.  Unlike the historic election of the first black President, Barack Obama, in 2008, this election had very little to do with the candidates.  What’s more, unlike most elections, this one really wasn’t about particular policies.  This election, more than anything, was about ideology and the role of government in Americans’ lives.we

What the election tells us more than anything is that the American people believe in conservative principles.  In particular, conservative economic principles and liberty through minimizing the size and scope of government.  The Tea Party originated as a direct reaction to liberal, big government policies like TARP, the stimulus, bailouts of various industries, threats of even more stimulus, pork in the omnibus spending bill, Obamacare, and so on.  The overall theme of the entire Tea Party was the message that Americans have been “Taxed Enough Already” and that the government is already spending too much time and money getting in everybody’s way.

Looked at a little bit differently, American conservatives finally had enough of swallowing hard when choosing between moderate liberalism and radical leftism at the ballot box.

Of course, conservatives do have some policy ideas which the partisan political media has pointedly ignored for the past two years and will pointedly ignore for at least two more.  On health care, the idea is to demolish Obamacare and replace it with a more competitive market by allowing insurers to operate across state lines.  On spending, the plan is to quit coming up with pork projects and find ways to decrease overall government spending.  On taxation, the goal is to maintain the current tax code and look for ways to grant even more tax cuts (not rebates, not credits, actual cuts) to businesses.  On the military, the key is to make sure that the troops are able to keep up the mission of protecting America from foreign governments and Islamic jihadists.  On social issues, there really is no agenda, although it’s likely that any votes that do come up on social matters will trend to the Right.

Ultimately, though, everyone who looked at this past election realistically knew that no matter what policies the candidates have, it really makes very little difference.  The partisan political media won’t acknowledge conservative policies at all unless it’s to unfairly denounce them.  There was never a guarantee (or even a realistic probability) that Republicans would take a majority of the Senate (even if they did, it was mathematically impossible that they could become filibuster-proof), so Republicans will be hard pressed to pass bills.  Not that passing bills would matter, since Obama would veto them anyway.  For the next two years, Republicans literally cannot win on policy, so talking about any kind of policy in detail is, for now, right around 18 months premature.

For the next two years, the key for conservatives is to stay true to the principles that swept them into office this past Tuesday.  The American people know that there is a serious limit to how much conservatives will be able to get done as long as Democrats control the Senate and Obama controls the White House.  But the American people also know that the last time Republicans took control preaching conservatism, they got into office and wandered off to the left.  Conservatives now are prepared to be patient as long as the people they elected this year stay on the path of conservatism.

So, what is it that conservatives are going to do?  This above all, to thine own self be true.

It’s starting to get right down to the wire in this year’s wild election season, with Election Day right here upon us.  Skimming through the reporting in the so-called news, one would tend to think that November 2nd is the coming of some sort of apocalypse.  Of course, for them and their liberal comrades, it very nearly might be.  Election Day marks the first day of substance in the conservative ascendancy sweeping across the United States.  It marks our first chance to “vote the bums out” and begin to fill the government with leaders who truly understand the needs of the American people: The need to live out their lives as they, not as bureaucrats, see fit.

Americans today are as angry at government as they’ve been in generations, having seen for two years the government violate its sacred trust with the American people.  Even in the country’s most liberalized classrooms, children learning basic civics are taught that America is a democracy and that when it comes to governance, it is the people, by their vote, who ultimately decide the fate of the nation.  Even President Obama has told us that elections have consequences.  Yet, these past two years, Democrats (and a few Republicans) have been ruling against the American people based on a false “mandate” spawned from the President’s victory and liberal egotism to transform America.  Every fifth grader knows that that isn’t how it’s supposed to work.

Americans, though, are a patient people who believe fundamentally in the system, even as they watch the political class corrupt the system toward their own ends.  We know and believe that constitutional government is greater than any man or any Congress.  Despite Speaker Pelosi having spent so much time and energy “draining the swamp” into the waste collection facility known as the House of Representatives, Americans know that on the first Tuesday after the first Monday in November, we gain access to the most powerful bureaucratic cleanser in the world: The American Ballot Box.

When it comes to regime change, the standard in the world generally comes down to some form of military conquest.  When people get mad at their government, votes are counted in bodies, and the party that creates the most usually wins.  This year, it’s beyond question that the American people are mad — we’ve been lied to, cheated, ignored, belittled, insulted, assaulted, and robbed, and we’re not going to take it anymore.  But for all of the anger — all of it justified — the Party of Guns will dismantle the government without firing a single shot.

For our trouble, the Left will give us the same vitriolic hazing as ever, communicated from on high in the ruling class through the bullhorn of the so-called news.  We will spend the next two years watching America not get any better as we listen to the partisan political operatives in the media tell us that we have no ideas, have nothing to offer, and will have, by the end of the next two years, no accomplishments.

The challenge after Election Day will be for the American people to stay focused.  Things may get worse before they get better (and the media will say that things are getting much worse even if they improve).  But the goal for this Congress is not to accomplish anything other than stopping the Left from pushing America further down the path of destruction.  This is the year for the setup guys.

Let the cleansing begin!