Archives: 12/2010

Wikileaks: Galvanizing ‘Cyber-Conservatism’?

Mercatus Center senior research fellow (and Cato alum) Jerry Brito has an interesting Wikileaks post on Tech Liberation Front.

The most vocal and strident reaction against Wikileaks has come from folks we can identify as neocons. Aside from demanding that the U.S. hunt down Julian Assange, Charles Krauthammer wrote, “Putting U.S. secrets on the Internet, a medium of universal dissemination new in human history, requires a reconceptualization of sabotage and espionage — and the laws to punish and prevent them.” Meanwhile Marc Thiessen, ignoring the distributed nature of WikiLeaks, called for the U.S. to “rally a coalition of the willing to defeat WikiLeaks by shutting down its servers and cutting off its finances.” And William Kristol, for his part, asked rhetorically, “Why can’t we disrupt and destroy WikiLeaks in both cyberspace and physical space, to the extent possible? Why can’t we warn others of repercussions from assisting this criminal enterprise hostile to the United States?”

Jerry is kind to these commentators, who will find fighting the Internet like fighting the wind. From the right, they join voices on the left who argue for limitations on Internet communications in the name of privacy and human dignity.

Where do libertarians stand? (Or “cyber-libertarians,” if we must.)

Says Brito,

To me, libertarians simply have a narrower view of what information control is desirable, with harm to individuals as the relevant standard. They also prefer individual choices and self-regulation to state control. And to the extent that state control is unavoidable, they want to ensure robust due process and protection of individual liberties.

ObamaCare Comes Up against the Constitution

Today POLITICO Arena askes:

How badly does today’s ObamaCare ruling set back the Democrat’s signature domestic achievement? Should Tenth Amendment enthusiasts take heart that other federal laws with which state officials disagree can be struck down?

My response:

A quick reading of Judge Henry Hudson’s opinion today striking the “individual mandate” provision of ObamaCare gives hope to those of us who have long urged, more broadly, for a restoration of limited constitutional government. As Judge Hudson put in granting summary judgment to Virginia, “the legislative process must still operate within constitutional bounds.”

The administration had argued that Congress had authority to enact and enforce the individual mandate to buy health insurance under its power to regulate interstate commerce. But Judge Hudson responded that “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.” Indeed, he noted, the administration’s reasoning could apply to “transportation, housing, or nutritional decisions. This broad definition of economic activity [to include inactivity] subject to congressional regulation lacks logical limitation.” The federal government remains, in short, one of delegated, enumerated, and thus limited powers, notwithstanding the leviathan that surrounds us today.

This is a significant setback for the administration, not least because Judge Hudson cites to a similar argument set forth by federal district Judge Roger Vinson in Vinson’s October 14 opinion denying the administration’s motion to dismiss the ObamaCare suit brought against it by 21 states, with more to follow. There will be more litigation on these issues, of course, but for today, at least, the Tenth Amendment and the limited government it implies are alive and well.

Yes, Virginia, There Are Limits on Federal Power

Yes, Virginia, there are limits on federal power.

Today is a good day for liberty.  And a bad day for those who say that Congress is the arbiter of Congress’s powers.  By striking down the individual mandate, Judge Hudson vindicated the idea that ours is a government of delegated and enumerated – and thus limited – powers.  Even if the Supreme Court has broadened over the years the scope of Congress’s authority to legislate under the guise of regulating interstate commerce or to tax for the general welfare, “the constraining principles articulated in this line of cases… remains viable and applicable to the immediate dispute.”

In short, we have come far from the days when pundits dismissed the lawsuits challenging the new health care law as frivolous political gimmicks. This is just one district court – whose opinion is not binding on the judges who will now consider the government’s appeal – but we can now see the day where this unprecedented assertion of federal power is definitively rejected as fundamentally contrary to our constitutional order.

As Judge Hudson said, “Despite the laudable intentions of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within constitutional bounds.  Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers.”

Federal Court Declares ObamaCare’s Individual Mandate Unconstitutional

ObamaCare has always hung by an absurdity.  ObamaCare supporters claim that the Constitution’s words “Congress shall have the Power…To regulate Commerce…among the several States” somehow give Congress the power to compel Americans to engage in commerce.  This ruling exposes that absurdity, and exposes as desperate political spin the Obama administration’s claims that these lawsuits are frivolous.

This ruling’s shortcoming is that it did not overturn the entire law.  Anyone familiar with ObamaCare knows that Congress would not have approved any of its major provisions absent the individual mandate.  The compulsion contained in the individual mandate was the main reason that most Democrats voted in favor of the law.  Yet the law still passed Congress by the narrowest of all margins – by one vote, in the dead of night, on Christmas Eve – and required Herculean legislative maneuvering to overcome nine months of solid public opposition.  The fact that Congress did not provide for a “severability clause” indicates that lawmakers viewed the law as one measure.

Despite that shortcoming, this ruling threatens not just the individual mandate, but the entire edifice of ObamaCare.  The centerpiece of ObamaCare is a three-legged stool, comprised of the individual mandate, the government price controls that compress health insurance premiums, and the massive new subsidies to help Americans comply with the mandate.  Knock out any of those three legs, and whole endeavor falls.

Moreover, the individual mandate is not the law’s only unconstitutional provision.

These lawsuits and the continuing legislative debate over ObamaCare are about more than health care.  They are about whether the United States has a government of specifically enumerated powers, or whether the Constitution grants the federal government the power to do whatever the politicians please, subject only to a few specifically enumerated restraints.  This ruling has pulled America back from that precipice.

President Obama, Overreacher-in-Chief

At the Britannica blog, some thoughts on President Obama, the overreacher-in-chief, at the halfway point of his administration:

In a way, you have to give President Obama credit. In the face of manifest public opposition to most of his high-profile policies – the health-care bill, the automobile company takeovers, cap-and-trade, higher government spending – he pressed on and passed much of his ambitious, unpopular agenda. He said he’d rather be a “really good one-term president” than a “mediocre two-term president.” He may still escape that choice. But he certainly demonstrated that he was willing to sacrifice dozens of Democratic congressional seats in order to get a permanently larger federal government….

As David Paul Kuhn wrote at RealClearPolitics, Obama’s activist agenda “has revived the enduring American challenge to the state.” Some of us hope that that revival of the small-government impulse in American politics – after the desert of the Bush years – will be President Obama’s most lasting legacy.

More Britannica bloggers on the first two years here.

The ‘Consumer Spending’ Myth

Journalists talk endlessly these days about the need for more consumer spending to revive the economy, and for government programs to juice consumer spending. Economist Steven Horwitz takes on the assumption that spending is the key to economic activity:

One of the most pernicious and widespread economic fallacies is the belief that consumption is the key to a healthy economy.  We hear this idea all the time in the popular press and casual conversation, particularly during economic downturns.  People say things like, “Well, if folks would just start buying things again, the economy would pick up” or “If we could only get more money in the hands of consumers, we’d get out of this recession.”  This belief in the power of consumption is also what has guided much of economic policy in the last couple of years, with its endless stream of stimulus packages.

This belief is an inheritance of misguided Keynesian thinking. Production, not consumption, is the source of wealth.  If we want a healthy economy, we need to create the conditions under which producers can get on with the process of creating wealth for others to consume, and under which households and firms can engage in thesaving necessary to finance that production….

Putting more resources in the hands of consumers through a government stimulus package fails precisely because the wealth so transferred ultimately has to come from producers.  This is obvious when the spending is financed by taxation, but it’s equally true for deficit spending and inflation.  With deficit spending the wealth comes from producers’ purchases of government bonds.  With inflation it comes proportionately from holders of dollars (obtained through acts of production) whose purchasing power is weakened by the excess supply of money.  In neither case does government create wealth. Nor does consumption.  The new ability to consume still originates in prior acts of production.  If we want real stimulus, we need to free up producers by creating a more hospitable environment for production and not penalize the saving that finances them.