Topic: Government and Politics

The Constitution? Not That Old Thing!

ConstitutionOver at Flypaper, Andy Smarick can’t figure out what the Obama administration thinks is the proper federal role in education.

A couple of weeks ago, commenting on a speech by U.S. Secretary of Education Arne Duncan, Smarick couldn’t tell whether Duncan was advocating that the feds be friendly Helpy Helpertons, no-excuses disciplinarians, or something in between. Yesterday, Smarick revisited the whither-the-feds theme, pointing out the frustrating contradiction when Duncan both praises local and state education control and blasts states for doing stuff he doesn’t like.

But Duncan isn’t alone in his fuzziness, according to Smarick, who says he’s “yet to come across anyone with a comprehensive, water-tight argument for what the feds should and should not do.”

I’m sure this is not the case, but from reading that you’d think Smarick had never run across a little thing called “the Constitution,” which furnishes just the “water-tight argument for what the feds should and should not do” that he seeks.  It also appears that he’s never encountered numerous things that I’ve written pointing this out. For instance, in Feds in the Classroom I wrote:

Because two of the sundry words that do not appear among the few legitimate federal functions enumerated in the Constitution are “education” and “school,” the federal government may have no role in schooling.

Ah, but what of the “general welfare” clause that comes before the enumerated powers in the Constitution’s Article I, Section 8? Doesn’t that give the feds authority to do anything that is in the nation’s best interest? At the very least, doesn’t it break the water-tight seal against federal education intervention?

Nope. I give you James Madison on the general welfare clause in Federalist no. 41:

For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

The general welfare clause confers no authority on the federal government, it just introduces the specific, enumerated powers that follow it. Among them, you’ll find not a peep about education.

Many educationists will think me hopelessly retrograde for bringing up the Constitution, although Duncan at least mentioned the dusty old document in his recent federalism speech. Unfortunately, he engaged it with all the courage and gusto of Sir Robin. But at least he acknowledged its existence – too many policymakers and wonks ignore the Constitution completely because it forbids Washington from doing the sundry things they want it to do.

But why shouldn’t the Constitution be treated like an ancient grandfather, a nice old guy whose utterances, in a half-hearted effort to be respectful, we acknowledge in the same tone we’d use with a toddler and then promptly ignore?

Because it is the Constitution that clearly establishes the bounds of what the federal government can and cannot do, that’s why! And because when we ignore the Constitution we get exactly the sort of government that is confounding Smarick: government that is capricious, often incoherent, and is ultimately an existential threat to freedom because government officials can claim power without bounds. See TARPcampaign finance, and executive pay for just a few examples of this last threat coming to fruition.

Which leaves all of the people who want Washington to have some role in education, but are frustrated by not knowing what else the feds might do, with only one choice. They can either continue to face inscrutable and ultimately unlimited federal power in hopes of getting what they want, or they can acknowledge what they keep choosing to ignore: That the Constitution is the supreme law of the land, and it gives the federal government no authority to govern American education.

Slipping Support for Government Health Insurance

Here’s a striking graphic of the results of continuing New York Times/CBS News polling on the question, “Do you think the federal government should guarantee health insurance for all Americans, or isn’t this the responsibility of the federal government?”

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Support for a government guarantee of health insurance starts dropping sharply as the country starts debating the topic. It’s not clear from this graphic, provided by Gallup, but support is at 64 percent in June, 55 in July, and 51 in late September, well after the Long Hot August and just after President Obama’s health care blitz that included his primetime speech to Congress and highly publicized rallies in Minnesota and Maryland. Note also that the question doesn’t mention any downsides of the government guarantee; respondents apparently had figured those out for themselves.

Oddly enough, if you search the New York Times site for this question, nothing comes up. And if you Google the question, the Times isn’t in the search results. It’s almost as if they didn’t want to publicize their very interesting finding. You can find a reference to it here and documentation here.

Another interesting take on support for health care “reform” can be found here – a graph of all the polls on health care plans offered by the president or in Congress, from January to present, showing opposition rising. Also from pollster.com: President Obama’s slipping approval numbers on health care.

Reid’s Accomplishment

Including a Fannie Med with a “state opt-out” provision in the Senate Democrats’ health care bill accomplishes only this: it helps Majority Leader Harry Reid (D-NV) survive as majority leader by appeasing his left wing.  It doesn’t make it any more (or less) likely that Fannie Med will survive.

(Cross-posted at Politico’s Health Care Arena.)

The Real Story Behind the Chrysler Bankruptcy

If you worry about the abuse of executive power and declining respect among elected officials for the rule of law, you should watch this eloquent illumination of what really went down in the Chrysler bankruptcy earlier this year. The speaker is Richard Mourdock, Treasurer of the state of Indiana. The setting is a Cato Institute policy forum on October 15 about the “sordid details of the Bush/Obama auto industry intervention.”

As state treasurer, Mourdock is the person responsible for investment decisions concerning Indiana’s state employee pension funds, some of which owned a small share of Chrysler’s $6.9 billion in secured debt and some of which opposed the administration’s offer of $.29 on the dollar for that debt. Though these small secured holders were publicly castigated by President Obama as “unpatriotic” and unwilling to sacrifice for the greater good, Mourdock led the effort to stop the “sale” of Chrysler all the way to the U.S. Supreme Court.

Mourdock’s presentation gives a flavor for the tactics employed by the  Obama administration to “encourage” senior, priority creditors to back off their claims so that chosen parties could take priority—tactics that included backroom reminders that some of those creditors had received and might seek more TARP funding, threats of bringing the full weight and measure of the White House press office to bear down on dissenters, public condemnation, and other forms of arm-twisting most Americans would find unseemly for a U.S. presidential administration.

At the Cato event, Mr. Mourdock was joined by University of Pennsylvania Law School professor and corporate law expert David Skeel, who demonstrated quite clearly that the “sale” of Chrysler, as orchestrated by the Obama administration under cover of Chapter 11 bankruptcy reorganization, was indeed a sham sale. Skeel’s presentation begins at 20:15 of this video.

If you want to have a better sense of what’s going on in Washington (or to affirm your worries), I recommend you watch Mourdock here, listen to Mourdock here, read the Indiana Pensioners’ petition for Writ of Certiorari (appeal to the Supreme Court), and read the Cato Institute’s amicus brief in support of the Indiana pensioners here.

German Masochists

A handful of guilt-ridden wealthy Germans are asking to pay more tax according to a BBC report. They could just give their money to the state, of course, but they want to impose their self-loathing policies on all successful Germans. The amusing part of the story is that these dilettantes were puzzled that so few people showed up to their protest. Maybe next time they could do some real redistribution and announce that they will be tossing real banknotes in the air:

A group of rich Germans has launched a petition calling for the government to make wealthy people pay higher taxes. The group say they have more money than they need, and the extra revenue could fund economic and social programmes…

Simply donating money to deal with the problems is not enough, they want a change in the whole approach.

…The man behind the petition, Dieter Lehmkuhl, told Berlin’s Tagesspiegel that there were 2.2 million people in Germany with a fortune of more than 500,000 euros. If they all paid the tax for two years, Germany could raise 100bn euros to fund ecological programmes, education and social projects, said the retired doctor and heir to a brewery. Signatory Peter Vollmer told AFP news agency he was supporting the proposal because he had inherited “a lot of money I do not need”. He said the tax would be “a viable and socially acceptable way out of the flagrant budget crisis”. The group held a demonstration in Berlin on Wednesday to draw attention to their plans, throwing fake banknotes into the air. Mr Vollmer said it was “really strange that so few people came”.

But not all tormented rich people live in Germany. A few months ago, I had a chance to debate an American version of this strange subspecies.

Fact-checking Drug Czar Barry McCaffrey

I appeared on the CNN program Lou Dobbs Tonight last Thursday (Oct. 22) to discuss the medical marijuana issue and the drug war in general.  There were two other guests: Peter Moskos from John Jay College and the organization Law Enforcement Against Prohibition (LEAP) and Barry McCaffrey, retired General of the U.S. Army and former “Drug Czar” under President Bill Clinton.

I was really astonished by the doubletalk coming from McCaffrey.  Watch the clip below and then I’ll explain two of the worst examples so you can come to your own conclusions about this guy.

Doubletalk: Example One:

Tim Lynch: “Some states have changed their marijuana laws to allow patients who are suffering from cancer and AIDS–people who want to use marijuana for medical reasons–they’re exempt from the law. But there’s a clash between the laws of the state governments and the federal government. The federal government has come in and said, ‘We’re going to threaten people with federal prosecution, bring them into federal court.’ And what the [new memo from the Obama Justice Department] does this week is change federal policy. Basically, Attorney General Eric Holder is saying, ‘Look, for people, genuine patients–people suffering from cancer, people suffering from AIDS–these people are now off limits to federal prosecutors.’ It’s a very small step in the direction of reform.”

Now comes Barry McCaffrey: “There is zero truth to the fact that the Drug Enforcement Administration or any other federal law enforcement ever threatened care-givers or individual patients. That’s fantasy!”

Zero truth? Fantasy?  This report from USA Today tells the story of several patients who were harassed and threatened by federal agents. Excerpt:  ”In August 2002, federal agents seized six plants from [Diane] Monson’s home and destroyed them.”

This report from the San Francisco Chronicle tells the story of Bryan Epis and Ed Rosenthal.  Both men, in separate incidents, were raided, arrested, and prosecuted by federal officials.  The feds called them “drug dealers.”  When the cases came to trial, both men were eager to inform their juries about the actual circumstances surrounding their cases–but they were not allowed to convey those circumstances to jurors.  Federal prosecutors insisted that information concerning the medical aspect of marijuana was “irrelevant.”   Both men were convicted and jailed.

This report from the New York Times tells readers about the death of Peter McWilliams.  The feds said he was a “drug dealer.”  McWilliams also wanted to tell his story to a jury, but pled guilty when the judge told him he would not be allowed to inform the jury of his medical condition.  Excerpt:  “At his death, Mr. McWilliams was waiting to be sentenced in federal court after being convicted of having conspired to possess, manufacture and sell marijuana…. They pleaded guilty to the charge last year after United States District Judge George H. King ruled that they could not use California’s medical marijuana initiative, Proposition 215, as a defense, or even tell the jury of the initiative’s existence and their own medical conditions.”  The late William F. Buckley wrote about McWilliams’ case here.

Imagine what Diane Monson, Bryan Epis, Ed Rosenthal, and Peter McWilliams (and others) would have thought had they seen a former top official claim that federal officials never threatened patients or caregivers?!

Doubletalk: Example Two:

Tim Lynch: “After California changed its laws to allow the medical use of marijuana, [General Barry McCaffrey] was the Drug Czar at the time and he came in taking a very hard line. The Clinton administration’s position was that they were going to threaten doctors simply for discussing the pros and cons of using marijuana with their patients. That policy was fought over in the courts and [the Clinton/McCaffrey] policy was later declared illegal and unconstitutional for violating the free speech of doctors and for interfering with the doctor-patient relationship. This was the ruling by the Ninth Circuit Court of Appeals in a case called Conant – “C-O-N-A-N-T.”

Lou Dobbs: “The ruling stood in the Ninth Circuit?”

Tim Lynch: “Yes, it did.”

Now comes Barry McCaffrey: “That’s all nonsense!”

Nonsense?  Really?

Go here to read the New York Times story about McCaffrey’s hard-line policy.

The Conant ruling can be found here.  The name of the case was initially Conant v. McCaffrey, but as the months passed and the case worked its way up to the appeals court, the case was renamed Conant v. Walters because Bush entered the White House and he appointed his own drug czar, John Walters, who maintained the hard line policy initiated by Clinton and McCaffrey.

I should also mention that Conant was not an obscure case that McCaffrey could have somehow ”missed.”  Here’s a snippet from another New York Times report:  “The Supreme Court, in a silent rebuff on Tuesday to federal policy on medical marijuana, let stand an appeals court ruling that doctors may not be investigated, threatened or punished by federal regulators for recommending marijuana as a medical treatment for their patients.”  The point here is that the case was covered by major media as it unfolded.

When our television segment concluded, Lou Dobbs asked me some follow-up questions and asked me to supply additional info to one of his producers, which I was happy to do.

Whatever one’s view happens to be on drug policy, the historical record is there for any fair-minded person to see – and yet McCaffrey looked right into the camera and denied  past actions by himself and other federal agents.  And he didn’t say, “I think that’s wrong” or “I don’t remember it that way.”  He baldly asserted that my recounting of the facts was “nonsense.”   Now I suppose some will say that falsehoods are spoken on TV fairly often–maybe, I’m not sure–but it is distressing that this character held the posts that he did and that he continues to instruct cadets at West Point!

My fellow panelist, Peter Moskos, has a related blog post here and he had a good piece published in the Washington Post just yesterday.  For more Cato scholarship on drug policy, go here.

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Bruce Bartlett’s VAT Delusions

I’ve known and liked Bruce Bartlett for more than 20 years, so you can imagine my dismay that he is now arguing for a value-added tax (VAT). I’m not sure whether his mind has been captured as part of a remake of Invasion of the Body Snatchers or if he’s just been hanging around Washington for too long, but his implication that it is possible to be a pro-market conservative while supporting a huge new tax to finance bigger government is absurd.

Conservatives (not counting the big spenders who call themselves “compassionate conservatives”) share the libertarian goal of smaller government. And trying to achieve smaller government by raising taxes is akin to treating alcoholics by giving them keys to a liquor store.

The VAT is a particularly bad idea because it would be a huge new source of revenue, as Bartlett acknowledges in an article for Forbes.com:

Based on the experience in other countries, I estimate that a U.S. VAT could realistically tax about a third of the gross domestic product (GDP), which would raise close to $50 billion per percentage point. If we adopted Europe’s average VAT rate of 20%, we could raise $1 trillion per year in 2009 dollars.

He makes the point that a VAT does not do as much damage, per dollar raised, as the personal or corporate income tax, but so what? That would only be a compelling argument if the VAT was used to eliminate other taxes. At the risk of pointing out the obvious, that’s not what he’s proposing.

Interestingly, even though his core argument is that we should adopt a VAT to give the government additional revenue, Bartlett tries to be all things to all people by mentioning that a VAT could replace other taxes:

Replacing the corporate tax with a VAT would unquestionably improve the competitiveness of all U.S. exporters.

Even here, though, his argument is misleading. A VAT would have no impact on U.S. exporters. All the benefits would occur only because the corporate income tax would disappear. Not that this matters since Bartlett is not advocating for that position.

He then continues to muddy the waters by citing Senator DeMint’s legislation, presumably to make it seem as if his plan is good by association.

Sen. Jim DeMint, R-S.C., introduced legislation (S. 1240) to establish a business consumption tax that is, in essence, a VAT.

There is a gigantic difference, of course, between Bartlett and DeMint. The senator proposes to replace the internal revenue code, whereas Bartlett wants to augment it.

He then complains that supporters of limited government attack his plan for facilitating bigger government, but he offers no refutation. That is no surprise since Bartlett is throwing in the towel, saying we should have a VAT since it is hopeless to fight against growing government:

[W]henever I suggest the idea of a VAT for the U.S., I am attacked by supply-siders and assorted right-wingers. The other day my friend Larry Kudlow criticized me for wanting to “Europeanize the American economy.” Their concern is that the VAT is a money machine that will lead to higher taxes and bigger government precisely because it is such a “good” tax. I myself held this same view for many years. But eventually I decided that it was stupid to oppose something because of its virtues. Opposing a VAT because it’s too good is like breaking up with your girlfriend because she is too beautiful.

The last line is clever, but ridiculous. The more appropriate analogy is that you are married to the Creature from the Black Lagoon, and Bartlett wants you to take the Wicked Witch of the West as a second wife.

If you want the real story on the VAT, watch this video.