Debating monetary policy, new “cool” thing

True inflation of gas and food prices, a weakened dollar, booms, busts – who’s to blame?

Yes, congressional influence on the economy has much to do with it, but there is something else. Did you know that two of the most powerful drivers in the American economy, and even the world economy, are not driven by Congress?

Those two areas are: interest rates and the amount of money being printed. So, who controls these enormous drivers in the economy? A private, unaccountable, un-auditable, unchecked entity called the Federal Reserve Bank.

There is one elected official who has been raising the red flags on the dangers of central banking and the lack of transparency for years, and that’s Presidential candidate Ron Paul. But, I was surprised to see another Presidential candidate take up this battle cry – Newt Gingrich. I actually found myself agreeing with Gingrich on this new found enthusiasm for correcting the debacle of an entity known as our Federal Reserve Bank.

If Gingrich is willing to take a hard look at this, he should be given credit. I’m glad Dr. Ron Paul isn’t alone in this Presidential field with his belief that the free market system works, and that no market is truly free when constrained by central planning from an entity like the Federal Reserve.

This may seem like Econ 101 to some of you, but humor me for a moment with regards to central planning and the Federal Reserve…I know, I know…already super econ-geeky. I’ll stay with layman’s terms for this little review, since that’s all I’m capable of anyway.

Most would agree economic booms only to be followed by busts aren’t the best cycle for individuals. Instead, consistency is preferred. But what causes economic these artificial booms?

One cause is top down economic planning by a central bank like the Federal Reserve. Ironically, the Federal Reserve was supposed to be “managing” this exact problem. Instead, it creates artificial stimulus to the economy by inflating the supply of money through printing of cash or manipulating credit by controlling interest rates designed to encourage lending and stimulate or control the market an “appropriate” pace.

What backers of the current Federal Reserve system don’t understand is that successful central planning of an economy is IMPOSSIBLE because typical and naturally occurring signals which would cause markets to expand or contract are hidden or ignored through artificial manipulation of those same signals when central planning is implemented. Bottom line – central planning completely ignores the real market.

Therefore unnatural or sustained booms inevitably result in even larger busts because the market was never permitted to make smaller, more incremental corrections as needed.

Example – manipulated signals of plenty of cash and low interest rates directly contributed to the mortgage boom, then catastrophic bust coming to fruition in 2008. Both buyers and lenders engaged in behavior natural market adjustments would have signaled against had central planning not been attempted.

Another factor was that government regulations and laws actually created the means for the private market place to make decisions it would have previously shunned – all because central planning was deemed appropriate for manufacturing prosperity or equality (depending on which side of the aisle a Congressman sits). Home ownership was considered a right, so through multiple Presidencies, laws were passed to force banks into sub-prime lending, when in the past – they were not in this business.

The market adjusted to natural supply and demand of new buyers in the market place– home purchases and prices rose, and banks sought to diversify this new risk through credit swaps and securities. In lieu of new economic policy and law provided by the “full faith and credit” of the US government (AKA…we’ll bail you out) – the entire economy began running on a view of endless growth and cheap credit. We embraced the artificial boom created by bad laws and bad monetary policy.

We can thank our friends at the Federal Reserve Bank for all the free flowing money and credit that perpetuated the entire boom. Of course, it all busted in the end costing everyone involved much more than they earned along the way and placing the entire US economy in limbo, but – hey, central planning, government stimulus and big spending work great, right?

Bottom line –If you want to cure the bust, don’t create the boom. Economic growth must be based on real factors, not phony stimulus from the Federal Reserve like printing money and artificially cheap credit. Unfortunately, central planning has become a bi-partisan approach with both Bush and Obama most recently approving of such methods like many before them. Both had stimulus packages. Both engaged in monstrous spending, governmental growth and debt to fix problems. Both allowed an unchecked federal reserve to increase money supply and manipulate credit. Both tried to pick winners and losers through subsidies, regulations and laws.

By the way, this doesn’t even account for the ridiculous amounts of unchecked foreign lending, treasury purchases and crony capitalist sweetheart deals the friends of our Federal Reserve Bank continue to receive every year. “Government” Sachs and “DC” Morgan-Chase are like hogs at the troth lapping up billions while the veiled monetary policy continues.

We continue to arrive in the same place and ask ourselves how we got there. From the last bust, what has changed?

Various forms of central planning continue to be used by Congress. Couple this with flawed monetary policy from an institution with no oversight and you have created a perfect recipe for instability. Welcome to the modern American economy – an unsustainable welfare-warfare state with central economic planning as the master.

The fixes to these problems are so easy, it’s scary. Unfortunately, both sides in DC have come to accept economic central planning as the only way to “fix” our economic problems. With very little real diversity in their approaches to the economy – don’t count on real changes to the economy any time soon.

Most politicians are there to be heroes, when what we really need them to be are stewards. Less is always more. Thanks to Dr. Ron Paul for his years of work on the dangers of our unaccountable Federal Reserve system, and most recently – dare I say it…Newt Gingrich who has made a point to raise this as a campaign issue as well. Apparently debating monetary policy is, all of a sudden, “cool.”

Chris Littleton is Co-Founder of the Ohio Liberty Council, a coalition of over 75 liberty minded organizations across Ohio.


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“Democracy” – the beginning of the end

In part 2 for this series on “pragmatic libertarian” philosophy, I’ll take a look at what “democracy” has come to mean. Much of this summary is directly quoted, or at least summarized from Dr. Ron Paul’s Liberty Defined and Dr. Paul Rahe’s Soft Despotism: Democracy’s Drift. I hope you enjoy – “Democracy” – the beginning of the end.

Governmental systems find trouble when they move from small to large. It was precisely this fear of government size that lead the founding generation to form a Republic. In this way democracy was utilized under strict and consistent rules designed to rotate the management of government and therefore its size.

Today that has changed, and not for the better. And in this way, more than any other – people should not be able to vote to take away the rights of others. And yet, this is what the slogan of “democracy” has come to mean. It does not mean that people prevail over government, it has come to mean that government prevails over people by claiming the blessing of mass opinion. This form of government has no limit. Even tyranny would not be ruled out.

A republic, on the other hand, is a non-monarchial system that makes no claim to somehow embody the will of the people. It is a system merely for the appointment of leaders and application of the law – which should be fundamentally, and constitutionally limited.

This does not mean that democratic elections can’t be used to choose leaders whose job it should be to promote liberty. But that is a far cry from allowing minorities to be victimized by a coalition making up the majority.

Our Constitution was designed to protect individual rights, and the founders clearly knew they wanted a republic, not a democracy, where the majority could not dictate the definition of rights to the minority. Ironically, in drafting the Constitution the authors yielded to democratic majority by allowing for the continuance of slavery.

Decisions like this and many others over the years have made the concept of rights arbitrary and capricious, while individual and natural rights are no longer cherished or understood. It is this failed understanding that permits the welfare-warfare state while destroying the concept of civil liberties, self-ownership and responsibility.

Today, the majority, or a well-organized minority, can force government to dictate behavior to all Americans. Voluntary associations are regulated and victimless behavior is made criminal.
What people see as a majority now define rights – what people want, demand, need or wish can be declared a right by merely writing a law. This was never meant to be, and we now have a tyranny of the majority.

How you ask?

Because this “democracy” has drifted us into a highly controlled administrative state, or what Alexis de Toqueville called a “despotism of administrators.” Dr. Paul Rahe should be credited with observing this drift as he looked at Montesquieu’s idea of the balance of power (on which the US Constitution was based) to contrast Rousseau’s worldview, only to confirm the dangers and possibilities for self-governance with Alexis de Toqueville.

Democracy’s drift is basically this: free societies based on commerce bring prosperity. Prosperity brings comfort. Comfort brings entitlement, and when entitled – people willingly hand over personal liberties to maintain that comfort, giving way to a giant administrative state and the despotism that comes with it.

This is only solved by a strong sense of self-direction at the most local of levels – even self-started local civic associations and townships are extremely important for this reason. Without this sense of self-control, self-direction and self-worth – we give in to what Montesquieu called “inquietude,” a general lack of security and uneasiness about life. This inquietude is only solved with individual purpose, and that is only fulfilled when one feels in control of their own destiny.

Problems begin, when people (in order to achieve the comfort they seek), embrace the administrative state to meet their needs for comfort. At that point, they are content to vote, through administrators, against individual rights and personal liberty. They embrace statism in the name of freedom, and of course we know – central planning and a strong administrative state necessarily kill liberty, and without the freedom to choose…well, we have given up everything.

And so we stand, with a republic abandoned and a democracy drifting through the despotism of administration.

The only solution is for the republic to be strengthened, and that begins with the deconstruction of the federal government. It means less control and administration, not more. Only this, will correct the course. At that point, the republican form of government is restored and those daily decisions are moved into the hands of individuals once again – not to be a democracy, but to be free thinking individuals who plot the course of our own lives with very little intervention from any form of government.

Part 1 of pragmatic libertarian philosophy dealt with America’s role in the world.


America’s role in the world: the arm chair quarterback edition

As Dr. Ron Paul (aka the Original Dr. Paul – the ODP, if you will) has thrown his name back in the Presidential game, comments from many “conservatives” have been things like – I don’t agree with his position on foreign aid or defense, so I just can’t support him.

So, I ask myself why? What defines these positions?

Why do I differ with any individual on these issues when I agree with them on a great many others? For that matter, how are Dr. Paul’s positions on these matters not considered truly “conservative”? And, for those reading this and thinking, I’m not a conservative at all. Why should I care about this? Well, I’m not a conservative either.

That category as perceived by popular culture just doesn’t fit who I am at all. In fact, I think the popular political labels don’t apply to most Americans, nor do any of the political parties. To make it even more interesting, the political parties are quickly losing relevance because they have become caricatures of themselves and no one takes them seriously.

So, I have made up a new name for my belief system. I am a “pragmatic libertarian,” which means I support economic and personal liberty for every person, and pursue a pragmatic approach to protecting those things in everyday life. I am not so purely ideological that I can’t have a conversation about what is really happening in the world, and I deal in application not theory to the world’s problems.

The following blog summarizes my position on both foreign aid and national defense. I completely understand there are tremendous resources on these topics already, and this may simply be an exercise of catharsis from my end. Heck – I don’t even claim this is the view of Dr. Paul or any organization to which I am attached.

Nonetheless, I wanted to clarify what I think is a pragmatic and liberty minded approach to foreign policy that can’t be considered “unpatriotic,” “pacifist,” “warmongering“ or “isolationist.” I think the US approach to foreign policy has become too attached to both major political parties, and they determine their approach to foreign policy based on self-preservation rather than practicality, and they certainly don’t consider effectiveness.

I believe this brief critique of foreign policy remains entirely consistent with a liberty minded approach to life and politics, and is my attempt at defining an issue for any unknown friends who may consider themselves pragmatic libertarians. Enjoy, and please offer your comments!

Foreign Aid

Foreign aid is pretty easy to explain from this perspective: We are broke and can’t afford it, and it is ineffective in terms of results. On both accounts – it’s bad policy.

Here is an excerpt from Dr. Ron Paul’s 2011 CPAC speech discussing foreign aid:

“Some people want to argue about that and say we have a moral responsibility to spread our goodness around the world and it’s our obligation to do this. But let me tell you, fiscal conservatives should look at this carefully, how much did we invest in that dictator over the past 30 years? $70 billion we invested in Egypt. And guess what? The government is crumbling and the people are upset, not only with their government by they’re upset with us for propping up that puppet dictator for all those years. Now to add insult to injury, where do you think the money went? To a Swiss bank account! That family, the Mubarak family had 40, 50, 60 billion dollars – nobody knows – stashed away in other countries, of your money, that is true.

Then you know, it used to be the conservatives were against foreign aid. I’m still against foreign aid – for everybody. Now I was saying that I used to describe foreign aid: “Foreign aid is taking money from the poor people of a rich country and giving it to the rich people of a poor country.” And there can’t be a better example of that than what we did with Egypt. We took money from you, made people poor, it contributed to our debt, billions and billions of dollars, and all we get is chaos from it and instability. There’s nothing wrong with what the founders talked about. They talked about having friendships and trade and getting along with people and staying out of entangling alliances and the internal affairs of foreign nations when it’s none of our business.”

I agree with ODP’s summary. Abuse of foreign aid is the case with the vast majority of developing countries – they embezzle and steal from their people and corrupt leaders make themselves rich. Lose-lose situation. But, let’s say that the money was actually getting to the people. Why would we want to institute a global welfare system? Doesn’t work in the US. We see the effects of generational welfare in urban communities. Is that what we want for the world – dependence on someone else besides themselves to get by? I think not. Once again, lose-lose situation.

In the case of non-developing countries like European nations – they don’t need the money.  In these instances, we are trying to buy our friends and create dependence on the US. Is your friend really your friend if you have to pay them to be you friend? Obviously not. In the case of European nations, if your systems work so great, why do you need assistance from the US? Viva la socialism! Stand on your own. Embrace your own collectivist mindset and be done with us. It is not our role to be aiding foreign countries.

Some words on Israel. Israel can remain a friend and partner in commerce without our monetary or military aid. They are one of the highest educated and fastest growing economies in the world. They are creative and industrious all without the help of the US.

Lastly, people say the US is “rich,” and has a responsibility to give. That makes no sense on the grounds of the statement nor the veiled intent. Individuals are rich. The government shouldn’t even be holding property and money except with the expressed purpose of being stewards for the tax payers for constitutionally defined reasons. The US government is not “rich.” It is not an independent possessor of wealth, and for the love of god – its breaking itself and all the US citizens right now anyway. That line of thinking does not work. It embraces of view of collectivist wealth and property. It’s anti-private property, and should be denounced on its face.

Bottom line – foreign aid is a matter of common sense. We shouldn’t define foreign policy around any nation except our own and this includes foreign aid. Money can’t fix anyone’s problems.  It’s a lesson we know all too well at home, so let’s not attempt to use money as a fix to another nation’s problems. Trade, commerce and a mutual desire to prosper are much better long term benefits in foreign relationships. And, that is a win-win!

National Defense

The constitution codified the federal government’s ability to provide for the common defense of our Republic. When legitimately threatened and attacked, and we are from time to time, we rightfully possess the ability to defend ourselves. This is just like our constitutionally codified ability to bear arms. We must possess the ability to protect ourselves and families from harm. Not too many would argue these conclusions.

But, this does not mean we need to have troops in over 130 countries. It also does not include nation building for other countries, nor serving as the military for other countries. Current uses of our military have catastrophic implications. Some reasons provided below:

1. Cost

We have a completely unsustainable foreign policy from a purely financial point of view. Spending over ¾ of a TRILLION dollars each year on the military cannot be done, so we have to look at our foreign policy and common defense from a perspective of financial sustainability and fiscal responsibility. If we aren’t financially solvent as a country – our common defense is destroyed anyway.

In Europe’s case, we are wasting amazing amounts of money. Why do I say this? They use our military to fund their socialism. Basically they outsource their defense needs to the US and save the money they would have spent on their own defense to perpetuate socialist policies in their own countries, which would have failed even sooner (though, they are still failing right now) without our help in propping them up.

In the US, we are just stupid enough to be trying both at the same time right now – socialism and expansive military policy. I seem to recall another nation who fell with this same formula…mmmmm …oh, that’s right, the Soviet Union, but that’s another blog. European nations should be cut off and start providing for their own defense. Germany, Italy, Britain, etc – they do not need our military installations to protect them.

We cannot and should not be in the position to be the world’s military. It is 100% unsustainable, and this is a non-partisan and purely mathematical fact. It’s not “unpatriotic” to say we can’t continue military growth at our current pace. It’s merely common sense. There isn’t enough money to do so. Is anyone questioning that fact?

To provide just a tiny sampling of how expansive the military has become- we have 11 fully operational naval carrier fleets around the world with two more underway. The rest of the world combined has – zero.

Common defense of our Republic does not mean police and protector for every country in the world. Sovereign nations must protect themselves. Foreign aid and intervention are not a recipe for peace, but instead, a recipe for resentment. People resent dependence on anyone for their existence or protection, because with dependence comes influence. The hand that gives is the hand that guides, so as well intentioned as military intervention or bases of operation in various countries may seem, help and assistance quickly turn to governmental influence out of necessity rather than desire.

Would we like that in the US? Would we like someone using military influence in the US (with bases and troops in our country) to effect the direction of our nation? As well intended as these military installations and expenditures in other countries are – they do not achieve the desired outcomes. Sovereign nations must stand on their own, and the mutual desire for them to succeed should come to fruition through shared commerce, not military influence or dependency.

Our military presence in foreign countries is a bad investment, and has cost us dearly for some time. By our military continuing to give much more than we can afford, we are adding to our own fiscal problems and merely propping up nations who have become dependent on us for their military needs.

This is not the free market at work. It is the equivalent of big government and master planning using the military as an economic tool like the federal reserve or corporate subsidies. Like the market, “world peace” can’t possibly be managed or controlled from a top down approach, so save the resources, and let the free market thrive. Peace and prosperity can be long lasting when done through mutually beneficial commerce rather than military might…and, lest we forget – it’s also much more cost effective.

2. Military intervention around the world has not worked.

In fact, it has made things worse. How many times have we intervened only to have it blow up in our face? The CIA calls it “blowback.”

Example: we went into Kuwait in the first Gulf War under Bush 1 to protect Japanese and other foreign countries’ oil and economic interests. There is no doubt at all that Iraq and Hussein weren’t any kind of direct threat to the US. So, in the name of “global economic interests” we set up shop in Saudi Arabia and launched the first Gulf War. Everything is great. Hussein’s butt is kicked. Let’s celebrate, right? Wrong.

Osama Bin Laden is angered by the US and “infidels” setting up in the “Holy Land” (Saudi Arabia) for this war, so in his declaring a Jihad on the US – he cites as a primary reason – you guessed it – our invasion of the holy land as infidels. In ultimate irony, years before –the United States arming and training of Osama Bin Laden in Afghanistan lead to the Taliban gaining power and giving radical Islam a new base of operations they didn’t previously have.

Now of course Bin Laden is totally radicalized and there is nothing we can do to change who he is, but we gave him an outlet, a scapegoat if you will, to rally thousands of radicals to his side and develop the Al Qaeda network. All because in two key instances, we intervened in Afghanistan and Kuwait. That’s blowback.

By the way – our intervention and support in the toppling of Iran’s leaders, provided the creation of the world’s other top state sponsor of terrorism. Yet another example of blowback.

So in the 2 dominant homes for radical Islam and state sponsored terrorism (Iran and Afghanistan) – the problems wouldn’t have existed without US intervention. The US didn’t develop the mindset, but through our actions – we provided the means and motivation to rally Jihadists to a cause – destroying the infidels in the West.

Great job, huh? It’s only cost thousands of American lives and trillions of dollars. Is that anyone’s definition of successful foreign policy?

I’ll give you a definition for insanity: it’s doing the same thing over and over again, and expecting different results. That basically summarizes our late 20th and 21st century foreign policy to date. Would anyone in their personal life continue doing the same thing over and over again without changes if it wasn’t working? How about in business? Of course not. So, why does the US government do this on issues that affect the whole world?

Back onto the cost thing for a moment, our roles in Iraq and Afghanistan have become 100% nation building with never ending costs. In Iraq, I don’t know that we ever had a direction, but with regards to Afghanistan, we’ve really lost our way. If the goal was to prevent future terrorist attacks on the US, you achieve tactical victory through crushing their desire to remain as state sponsors of terror. Once you have slapped them upside the head (as was appropriate, because the Taliban facilitated Al Qaeda’s role in the 9/11 attack), you leave. It is not our responsibility to nation build. But, with tactical precision we accomplish the same goal – saying very clearly – don’t mess with us or else. As long as that threat remains credible, we are providing for our common defense.

Because if you believe (as I believe), you can’t stop crazy people (jihadists) from killing themselves and others for a ridiculous cause, then nation building doesn’t help a bit. All we should do is provide a tone and example that state sponsored terrorism against the US will not be tolerated. You can’t stop crazy people from doing crazy things, but you can position yourself to prevent states from engaging us because we assure their destruction  – kind of a Reagan approach to state sponsors of terrorism without a nuclear arms races. The threat ensures deterrence, not the nation building.

This isn’t pacifism or isolationism. It’s common sense. Don’t engage in unsustainable plans with no measurable success. A projection of peace through strength comes from the credibility to carry out a tactical strike – not long term occupation or nation building.

3. We are no longer fighting a traditional enemy, therefore traditional tactics aren’t appropriate.

If you rank the top threats to the US, and therefore justified as necessary to maintaining a common defense – who or what is on that list?

I think it would be widely agreed that “terrorism” represents a legitimate threat to the US. Not even considering the origins of the jihad (as I explained above, we helped create this problem), but simply looking at the direction it has taken – we are definitely hated by many in radical Islam. This is not by all Muslims, not by definition of their faith, and not by their existence as a culture or class of people, but we must admit there are a small percentage of murderers in Islam who are committed to a culture of death.

If you accept that premise, is the appropriate course for engagement and the common defense of our Republic military installations throughout the world?

Ever hear of a band of terrorists invading a country? Ever hear of a group of terrorists waging a traditional war in traditional methods with traditional combatants? Nope. It’s because that doesn’t happen. So how does a cold-war style shield of military installations placed throughout the world successfully prevent an enemy, who doesn’t care about traditional engagement –  how does this provide for our common defense? Well, of course it doesn’t.

Terrorist acts have been committed for years – well before 9/11, and the existence of US military bases throughout the world did absolutely nothing, not a thing, to prevent those attacks. That foreign policy was designed for the USSR. It was also post WW2, where we were intertwined in European and Asian affairs through war and already in the respective areas. How that played out is a whole other conversation, but I’m merely making the point that the Soviet Union and “terrorism” are two completely different types of strategic engagements. You can’t fight one in the way you fight the other – makes absolutely no sense.

Bottom line – military installations throughout the world are not an effective deterrence to terrorist threats, therefore our entire military/foreign policy is flawed by design.

So let’s turn our thoughts to actual traditional states who could engage in the traditional combat I outlined above. First let’s look at a state like Syria, arguably a state sponsored host of terrorist activity. If we engage in action when attacked, like we did in Afghanistan to hit the Taliban, and prove credibility and therefore deterrence – that’s about all we can do to negate their potential and theoretical desires to harm the US. We can give them assurance of destruction for such a move, and we maintain ourselves as a credible threat.

Because if they are a sovereign nation, which they are, and they engage in direct action against the US as a sovereign nation– we have every right to defend ourselves through an open (and Constitutional) declaration of war to protect ourselves.

However, I think everyone would agree this is a highly unlikely scenario as we haven’t seen it happen yet. The more likely scenario is that a state like this is soft or even supportive of terrorists in their country. Problematic, of course, but the threat of complete annihilation is still the deterrent to prevent their engagement, and they should know, as already stated – you mess with us, and there is a consequence.

As stated before, this is far more effective and sustainable than preemptively invading every country thought to support terrorists. In fact – for fans of Ronald Reagan, doesn’t that sound familiar? He once said, “Peace is not the absence of conflict. It is the ability to handle conflict through peaceful means.”

Reagan never engaged in massive military intervention and sustained military ground wars. Yes, there is a discussion to be had on his use of CIA and special forces in a number of places like Afghanistan and Central American countries, but that’s for another time and blog. Still – I think it’s pretty clear he sought to avoid full scale wars by threat of retribution, not through direct engagement.

Back to the nature of terrorists for a moment – huge armaments and multi-billion dollar tools don’t protect us from them. Military installations throughout the world don’t protect us from them. However the proof and credible willpower to use force as necessary does protect us from state sponsored terrorism.

As for media dubbed threats from China or other nations, that’s probably best addressed in another blog, but here are some very simple thoughts on China. Where is their incentive to engage us militarily?

Unlike the former Soviet Union, they are practically dependent on success in the US economy for their entire well-being. Should we have the massive amount of debt with them that we have? No, of course not. But, once again – they have every incentive for us not to fail and have no desire to take us to war, all because of economic benefit – their profit and prosperity motive if you will. They are a pretty good example of how partnerships through commerce bring about peace much easier than military intervention. Yes, I am oversimplifying for the sake of staying on topic, but the point is still valid.

Some argue that a world hegemon is important for general world peace, and looking back at world history, it’s a great conversation. But, I would argue that in this age of global commerce and trade, coupled with information and technology – economic freedom is far more effective than military hegemony at achieving peace.

And, let me be clear – we don’t need a one world government or world currency to accomplish that goal. We merely need sovereign nations engaged in a willing exchange of good and services through actual free trade that benefit all parties involved. Not a world bank, not an IMF, not any of that stuff – of course, real money is also important, not the fiat US dollar on which the world is currently far too dependent. Complex fixes needed – yes. But, military intervention needed for those fixes – no, I don’t think so.

As for dealing with individual cells of terrorists who aren’t state sponsored, but are instead independently committed to death – no traditional military intervention can stop an idiot from becoming  a murderer. This was proven true on one of our own military bases in the US when Major Hasan went crazy and shot people. Was there anything that could have prevented him or many like him from doing this? Of course not.

Macro-level foreign policy can’t protect the US from individual acts of terror, so how is ineffective foreign policy through traditional means keeping us “safe.” Well – it’s not. Scrap it, and change how we operate around the world.

Let’s have a scheduled draw down of troops throughout the world, being very conscious of the vacuum that will be created. This is a legitimate reality that must be addressed, so we can’t just bring every person home tomorrow. We ignorantly created messes, so these must be managed withdrawals – but immediate withdrawals nonetheless. Just because a vacuum is created doesn’t mean we have a responsibility to fill it. We must let nation’s stand on their own. Which brings me to the next point.

4.  Nation building, occupation and proactive military engagement by definition are anti-liberty.

It is not our job as a nation to impose our will, way of life or culture onto anyone else for any reason. Democracy flourishes when people have a desire for it to exist. But, no one can “force” democracy upon anyone else. It is not our place to force our belief system on anyone.

What if another nation decided to invade the US because they thought we weren’t tough enough on child molesters? Is the fact that our justice system isn’t tough enough on horribly grotesque behavior justification for another country to attack our nation? Who is worse than a child molester? Who does more harm to another person than a child molester? There are thousands of these despicable individuals in the US doing harm to the most helpless of US citizens every day. What could be worse?

But, I think you would agree it’s not appropriate that we could be invaded because another country feels the US isn’t tough enough on child molestation, despite its obviously horrible effects. It is also not appropriate to invade a nation even if they are allowing horrible activity, like terrorist organizing in their midst or a way of life we don’t like. It’s not appropriate because they are a sovereign nation, just like us.

If you want to stay with the example of more traditional threats from military, political and economic systems, rather than terrorism – then let’s remember that the fall of the Soviet Union was not through direct military intervention either. Neither proxy wars in Korea, nor Vietnam did anything to insure the failure of the Soviet Union. Communism is a flawed and ultimately self-destructive system not requiring direct engagement. It merely required a credible threat on our part to provide for our common defense and letting it fail on its own. Collectivism is its own worst enemy and never works.

No countries are perfect, including the US.  But at what point are we justified in invading a sovereign nation because we don’t like the way they handle or even support horrible people. In practically every country in the world, there are small unknown cells of terrorists plotting to do something very horrible to Americans or someone else in their own country. Do we tell each of these nations, I’m sorry you aren’t doing enough to keep the world “safe,” so we are coming into your country to set up shop and “fix” the problem. Would that be right?

Where is the regard for their sovereignty? We expect that respect for our sovereignty, so why would we not respect theirs?

We don’t have to like the way other countries do things, and we don’t have to agree with their systems. But, at what point is dedicating ourselves to being the savior of the world appropriate or even possible? Obviously, I believe it’s neither.

Liberty minded people know – we have no right to harm another person, unless we are defending ourselves from their aggression. With regards to nations, if they aren’t the aggressor and we have no need to defend ourselves – stay out of their business because we have no right to get involved. This is no different than our everyday lives, and a very common sense approach to domestic policy. Why would individual principles of personal and economic liberty not be applied to US foreign policy? Do we believe in liberty or not? I hope so. It works because it’s the right philosophy for life – the philosophy of liberty.


If looking at the intent of the founders, and the intent of creating a new Republic in the manner which the Declaration of Independence and US Constitution outline – do you see any semblance of nation building or world policing?

The founders were very opposed to foreign entanglements and interventions. They had significant desire to stay out of the world’s problems – to the point where Jefferson said, “Peace, commerce, and honest friendship with all nations — entangling alliances with none.”

If you recall the very young United States first use of military outside of US borders – it was the Barbary pirates raiding US trade ships. Jefferson sent the US military to make a strong statement. They kicked butt and came home. They did not stay to nation build in the staging country for the pirate’s activities. They left having accomplished their tactical objective and establishing themselves as a credible threat.

This is the type of military/foreign policy that steers clear of intervention unless absolutely needed, and it is incredibly consistent with the sole purpose of our government as designed by the founders – to protect the personal liberties of our citizens.

As an additional example of this in daily life – we can look at Christianity or most any major religion. Christianity contains a strong moral system and principled commitment to values, obviously good things. But, can you force anyone to become a Christian? Of course not. And if you could, should you? Both Christian philosophy and natural law intersect quite well when addressing this issue – free will is the all important factor. It’s about liberty – the freedom to choose.

Imposing systems or beliefs on people definitionally inhibits liberty, and without the freedom to choose – no governance system or culture is worth its while. That was the spark that ignited the American Revolution, and was later codified in the US Constitution. A government’s purpose should be to protect the liberty of its citizens. It doesn’t grant rights, and should only be responsible for protecting them.

So, America’s role in the world is not to salvage the future of every nation and create a democratic utopia for the planet – our job is to protect the personal liberties of our citizens, and promote a foreign and economic policy which adds to the prosperity for all who choose to willingly participate. This type of policy does not require the US being the world’s leader through force, but instead the world’s leader through prosperity.

“It is not we non-interventionists who are isolationists. The real isolationists are those who impose sanctions and embargos on countries and peoples across the globe and who chose to use force overseas to promote democracy. A counterproductive approach that actually leads the US to be more resented and more isolated in the world.” – Dr. Ron Paul


Obama and the “I” Word

Libya is now the third war America has become embroiled in.  Technically it’s higher than that as we have not truly finished World War II (bases in Germany and Japan), Korea or Vietnam.  Unlike World War II action, there is no perceived, implied or actual threat to America from Libya.  The leader of Libya was a few weeks ago on America’s Facebook page as a “Friend”.  Funny how quickly things change with a government whose emotional baseline is equitable to a thirteen year old girl.

“Follow the Constitution” is a frequent chorus and a universal cause for applause at Tea Party rallies across the nation.  Article one, Section 8 of the CONSTITUTION (most Tea Partiers like it better when it is yelled, hence the caps) states: “Congress shall have the power to declare war”.  For over fifty years, Congress has been shirking this responsibility, leaving the commander in chief the sole responsibility for declaring war.

Truman bypassed Congress for Korea.  Kennedy/Johnson sidestepped Congress for Vietnam.  Bush 1 did the same for Iraq 1, Bush 2 for Iraq 2 and Afghanistan, while Obama has the US engaged with Libya (and continuing Bush 2 wars).  The CONSTITUTION was written to limit the power of government, not to increase the powers of a specific office.  Being the commander and chief of the military gives the President final say in matters of declared war, not the right to pick fights.

The founders intentions were to reduce the ability of a single person (such as a king, in their experience) to declare war, leaving the representative body of Congress the responsibility to declare and fund a war.  In many ways the CONSTITUTION simply placed the President as single executive with some powers, but ultimately the task to approve bills set forth by the will of the people through Congress.

Which leads us to the question, does a President who declares war commit an impeachable offense?

The answer is clearly Yes, but the reality is a sound No.  We have over fifty years of precedent showing us that impeaching a President for declaring war without Congressional approval is a worthless endeavor, judging by the failed attempts.  The most recent occurring in 2008, as the Democrats abandoned a Dennis Kucinich sponsored resolution to impeach President Bush, understanding that war is profitable and great with voters for both Democrat antiwar voters and Republican neo-con constituents.  Even “anti-war” President Obama was quoted in 2007 when asked a question about impeaching then President Bush, “I think you reserve impeachment for grave, grave breaches, and intentional breaches of the president’s authority.”

Apparently the last grave breach was Monica Lewinsky.

I for one would be very surprised if the anti-war Democrats or the pro-war neo-con Republican majority Congress began rattling the impeachment saber around for Obama’s involvement in Libya, even though they should be doing just that.  The 2010 election was a call to Congress was to return to the rule of law in the Constitution, followed closely on the heels of a 2008 election to end our continual war and death machine.

It’s just one more inconsistency in a government that will never be of the people, by the people or for the people, as apparently this problem is not solved by “voting the bums out”.

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Constitutionality of the Individual Mandate (Healthcare Bill)

Jack Painter, founder of the Indian Hill Tea Party and member of the Ohio Liberty Council Board of Directors, recently spoke on a panel with University of Cincinnati Law Professors to discuss the constitutionality of the healthcare mandate. Enclosed are his prepared comments:

Are there limits on what the federal government can tell us to do, and, if so, what is the source of those limits?  We face that question because the individual mandate provision of the Patient Protection and Affordable Care Act requires most Americans to purchase health insurance from a private company or pay a penalty.  Intuitively, most of us are uncomfortable with the idea the federal government can force us to purchase private products, but exactly what prevents that?

The source of the Congressional power in question – Article I, Section 8.

The starting point in the constitutional analysis is a principle on which everyone agrees.  The federal government is one of enumerated powers, and it can exercise only the powers granted to it in the Constitution.

Article I, Section 8 of the Constitution says Congress has the power to “regulate Commerce . . . among the several States” and also has the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .”  The first clause is known as the Commerce Clause, and the second clause is known as the Necessary and Proper Clause. 

The Obama administration’s initial justification for the individual mandate – the “substantial effects doctrine”.

Initially, the Obama administration tried to justify the individual mandate under Article I, Section 8 of the Constitution based on an established Supreme Court doctrine referred to as the “substantial effects” doctrine.  Under that doctrine, Congress may regulate purely local activity if it is economic in nature and substantially affects interstate commerce.

But all the Supreme Court decisions applying this doctrine involve activity, such as controlling and using navigable waters, establishing wages and hours for employees, producing wheat for personal consumption, and turning away motel guests based on race.  So the Obama administration has been forced to argue that a failure to act (a decision not to purchase health insurance) constitutes activity or, in the alternative, that Congress’ commerce power reaches beyond activity to cover economic decisions.

Judge Kessler of the D.C District Court accepted this argument when she recently upheld the individual mandate on the grounds that Congress has the power to regulate what she called “mental activity.” 

The problem is that this argument doesn’t have any logical limits.  For example, a “decision” not to take a job or not to sell your house or not to buy a car would be “activity” that is commercial and economic in nature and could be mandated by Congress.

The Obama administration’s fallback position – Justice Scalia’s “essential to a broader regulatory scheme” theory.

So the Obama administration has shifted to the argument that Congress may do anything essential to a broader regulatory scheme to regulate interstate commerce.  Here, the broader regulatory scheme includes mandating that insurance companies cover people with pre-existing conditions.   The government says that without the individual mandate, that scheme won’t work because people will wait until they are sick to buy health insurance.

There are several problems with this argument. 

  • The Supreme Court has never adopted this doctrine.  It is based on a statement by Justice Scalia in his concurring opinion in Gonzales v. Raich, where he said “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”  Justice Scalia based that statement on dicta – meaning a comment not essential to the decision – in United States v. Lopez, where Justice Rehnquist said the Gun Free School Zone Act was not an essential part of a larger regulatory scheme and implied that if it had been, the decision in Lopez would have been different.
  • There is nothing in Justice Scalia’s concurring opinion that supports extending his proposed doctrine to inactivity. 
  • Doing so would permit Congress to mandate any form of private conduct.  All Congress would have to do is first adopt a permitted regulatory scheme that won’t work without a mandate and then impose the mandate.

The government’s argument in support of the individual mandate advances a theory of government power that has no limiting principle.

The proponents of the individual mandate argue that applying the “substantial effects” doctrine or Justice Scalia’s proposed “essential to a regulatory scheme” theory to inactivity really does have limits because healthcare is different.

But is that true?  As Judge Vinson noted in his decision in the recent Florida District Court case, “the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce . . . at least not any more so than the status of being without any particular good or service.”

The government responds that everyone will eventually need health care, and because emergency rooms must provide emergency medical care without first inquiring about ability to pay, a decision not to purchase health insurance is necessarily a choice to take a free ride on the healthcare system.

But that is clearly false.  Millions of people who do not have health insurance today, including a lot of young adults, will acquire it in the future before they incur emergency medical expenses they cannot afford.  And those who remain uninsured at the time they receive emergency medical care will still be legally obligated to pay their bill and won’t necessarily fail to do so.  As a result, the most that can be said is that some but not all who fail to purchase health insurance will eventually get a free ride.  (According to authoritative studies, the uninsured pay about a third of the aggregate cost of their care out of pocket, and the remaining uncompensated cost is shifted largely to government and has a negligible effect on private health insurance premiums.)    

So the principle being asserted by the government is that people shouldn’t be allowed to fail to act if in the aggregate that shifts costs to others.  Well, if that’s the principle, what about the failure to go to the doctor for preventative care or checkups?  Does that ultimately increase healthcare costs and result in additional cost shifting?  If so, does Congress have the power to force people to see their doctors?

Those who say “healthcare is different” also argue that a decision not to purchase health insurance limits the size of the pool of insured individuals and – assuming those not insured are young and healthy – drives up premium costs.  But that applies to all forms of insurance, not just health insurance.  And that argument also establishes the principle that people shouldn’t be allowed to shift costs to others and again raises the specter of forced doctor visits.

There’s one other problem.  The argument that healthcare is different is not a constitutional principle.  In the future, courts will never examine the factual differences between programs to see if economic mandates are appropriate.  Mandates will be constitutional if Congress deems them to be necessary.

If accepted, the government’s theory would give Congress virtually unlimited power to impose mandates on private conduct.

Lett’s assume, however, that Professor Bryant is correct, and the commerce power permits the individual mandate.  I’d like to know exactly what Professor Bryant thinks the limits are on Congressional power to mandate private conduct.

Erwin Chemerinsky, the dean of the California Irvine School of Law, argues that “Congress could use its commerce power to require people to buy cars.”  Presumably, Professor Bryant agrees.  He recently wrote that Congress is within its powers as long as it simply requires “the payment of money.”

What are the outer bounds of this federal power?  Can the federal government force us to buy broccoli or join a health club?  In recent Senate testimony, Former Solicitor General and Harvard law professor Charles Fried defended the constitutionality of the individual mandate and argued that Congress had the power to force people to buy broccoli.  What about going one step further to tell us we must eat broccoli or exercise?

The answers provided by Dean Chemerinsky and Professor Bryant are not very comforting.  Dean Chemerinsky says, “what people choose to eat well might be regarded as a personal liberty” and thus beyond Congressional control.  Professor Bryant stated in his recent Enquirer column that the federal government might not be permitted to force us to exercise.

From what I can determine, their theory is that those actions by the federal government would intrude on personal autonomy and therefore would not be a permissible regulation of commerce.  I’d like to know why government intrusion on decisions like whether to go to a doctor and how to pay for it don’t also intrude on personal autonomy.

I don’t know about you, but I find it alarming that the proponents of a broad commerce power can’t convincingly distinguish the individual mandate from forms of government coercion that are clearly inappropriate. 

Let me ask this.  How many of you in this room are comfortable with the idea that the federal government might be able to force you to buy broccoli, join a health club, or buy a car? 

Well, it appears Professor Bryant has some more explaining to do.

The “proper” test under the Necessary and Proper Clause must also be met.

Now let me offer three observations that relate to the “proper” test of the Necessary and Proper Clause. 

In McCullough v. Maryland, Chief Justice Marshall said the means chosen by Congress to exercise its commerce power are “proper” under the Necessary and Proper Clause only if consistent with “the letter and spirit of the Constitution.”

This proper test is relevant because Justice Scalia’s proposed essential to a regulatory scheme theory is based on the Necessary and Proper Clause.  The substantial effects doctrine seems to be as well, although the Supreme Court has not always been clear on that.  Even so, two of the seminal cases developing the substantial effects doctrine, United States v. Darby and Wickard v. Filburn, are explicitly based on both the Commerce Clause and the Necessary and Proper Clause.

First observation – The government’s theory puts the burden of protecting liberty almost entirely on individual liberty rights, and that has serious implications.

My first observation is that Professor Bryant’s view of the commerce power puts the burden of protecting liberty almost entirely on the concept of individual liberty rights, and that has serious implications for federalism and the protection of liberty.

It’s hard to read the Federalist Papers or the Constitution without concluding that the vision of our founding fathers was a sea of individual liberty rights with islands of government power.  We’ve debated for over 200 years about how many islands of government power exist and how big those islands are.  As the islands of government power have grown, we’ve evolved in the opposite direction towards a sea of government power with islands of individual liberty rights.

If I am correct in assessing Professor Bryant’s vision of the commerce power, Professor Bryant is asking us to fully accept the idea of a sea of government power with islands of individual liberty rights.

So what’s wrong with that?

Well, let’s look at what those islands of liberty rights are.  They fall into three categories.  First, minor limits on federal power under the commerce clause, like those recognized in United States v. Lopez (Congress cannot prohibit guns near schools.) and United States v. Morrison. (Congress cannot regulate gender-motivated violence.)  Second, the rights enumerated in the Bill of Rights.  And third, so-called “unenumerated rights” that the Supreme Court has read into the Constitution through the Fourteenth Amendment under a doctrine called “substantive due process.” 

Because the limitations on the commerce power are so minor under Professor Bryant’s theories, the islands of liberty rights really consist of the second and third categories – the Bill of Rights and unenumerated rights. 

That means the limits on federal and state power – the fences around their power, if you will – are effectively the same, and as a result the federal government has virtually the same powers as the states.  That is inconsistent with the idea stated by Madison in Federalist No. 45 that the powers of the federal government are “few and defined”, unlike the powers of the states, which are “numerous and indefinite.”  (The Supreme Court reaffirmed this famous statement by Madison as recently as United States v. Lopez.)  It is also inconsistent with the plain meaning of the Ninth and Tenth Amendments.      

It also means our liberty is at risk since existing individual liberty rights don’t provide much protection from the possible intrusions on personal autonomy mentioned above.  The Bill of Rights enumerates specific rights, like freedom of speech, but it isn’t well suited to protect us against the types of personal mandates we’re discussing, presumably because the framers of the Constitution never envisioned them.  That means we have to rely on the so-called “unenumerated rights” that have been recognized by the Supreme Court under the doctrine called “substantive due process.”  But those “unenumerated rights” are fairly narrow.  One line of cases recognizes a right to privacy and protects only “fundamental” rights, like the right to abortion.  Another line of cases, based on Lawrence v. Texas, recognizes a right to liberty itself but at best protects only conduct that is not harmful to others, such as certain private sexual conduct.  Based on this Supreme Court precedent, there is a real risk the courts will conclude that our failure to eat broccoli or exercise indirectly harms others by raising healthcare costs and is therefore not a protected right.  I believe that’s why Dean Chemerinsky and Professor Bryant hedged on whether the federal government could impose those mandates.

Second observation – The individual mandate is unprecedented, and government mandates like it are vastly more intrusive than mere prohibitions.

My second observation is that the individual mandate is unprecedented, and government mandates like it are vastly more intrusive than mere prohibitions.

To understand this, it helps to categorize government coercion, whether state or federal, into three categories: prohibitions of chosen activity, regulations of chosen activity, and mandates.

  • A prohibition of chosen activity occurs when the government says “You can’t do X.”  This happens, for example, when a law says you can’t drive above the speed limit or steal from your neighbor. 
  • A regulation of chosen activity occurs when the government says “If you choose to do X, you must do X in a certain manner.”  For example, if you choose to build a house, you must comply with building codes. Or the government says “If you choose to do X, you must do Y as well.”  For example, if you choose to drive a car on public roads, you must purchase auto insurance.
  • A mandate occurs when the government says flat out “You must do X”, and the coercion has nothing to do with chosen activity.  It applies merely because you reside in this country or are a citizen.

The individual mandate falls into this third category of coercion.  The federal government coerces you to act in specific ways (purchase health insurance) merely because you are a citizen.  You cannot make a choice to forego certain activities and avoid the government coercion.

This is unprecedented.  Until now, the only time the federal government has imposed such a flat out mandate is in the case of military conscription, jury service and census participation.  Unlike the individual mandate, those mandates are all contemplated by the explicit language of the Constitution.  (Military conscription is based on the power to declare war and raise armies found in Article 1, Section 8, Clauses 11 and 12;  jury service is contemplated by the Sixth Amendment, which mandates a right to trial by jury in criminal trials; and the census is specifically called for in Article I, Section 2, Clause 3.)  Those mandates are also all essential to the very existence of the federal government and therefore considered fundamental duties of citizenship.  No one seriously argues that the private purchase of health insurance is essential to the very existence of the federal government and therefore is a fundamental duty of citizenship.

Mandates like the individual mandate are also vastly more intrusive than mere prohibitions.  Imagine I tell you 100 things you may not do tomorrow.  For example, you may not run on a treadmill, eat broccoli, buy a car, and 97 other things.  While your liberty would be restricted, there would still be an infinite number of things you could do.  Now suppose I tell you 100 things you must do tomorrow.  You must run on a treadmill, eat broccoli, buy a car, and 97 other things.  These 100 mandates could potentially occupy all your time and consume all your financial resources. 

Some people claim the individual mandate isn’t unprecedented by citing various kinds of government coercion.  You should pay close attention, though, to the examples they give.  All of them involve what I call regulation of chosen activity.  In other words, the government says, “If you choose to do X, you must do X in a certain way or must also do Y.”  For example, if you choose to build a factory, you must install certain pollution control devices.  These are not flat out mandates like the individual mandate.

Others argue that the power to mandate private purchases is really no different or more intrusive than the power to impose taxes.  Both are claims on the fruits of your labor and therefore infringe on liberty.  In one case, the government forces you to give money to the government.  In the other, it forces you to give money to a private business.  Either way, you are out-of-pocket the money.

But that argument ignores the differences between the two:

  • We justify the infringement on liberty caused by taxation on the theory that taxes are essential to the very existence of government and, therefore, the payment of taxes is a fundamental duty of citizenship.  That justification doesn’t apply to the individual mandate. 
  • And the framers of the Constitution clearly recognized this unique justification for taxation.  Article I, Section 8 of the Constitution and the Sixteenth Amendment explicitly give Congress the power to impose taxes.  If the Constitution were as explicit about Congress’ power to mandate private purchases, we wouldn’t be debating the issue today.   
  • In any event, the fact that we gave the federal government the power to impose taxes doesn’t in itself mean we gave it carte blanche to mandate the purchase of products or the payment of money to others.  In fact, the history of the taxing power illustrates that one government power doesn’t automatically beget another.  Even though the original Constitution explicitly permitted various forms of taxation, a constitutional amendment was still necessary for the government to tax income from dividends, interest and rents.

There’s one other important distinction worth noting.  To one degree or another, there is an element of choice in taxation that often makes it a regulation of chosen activity rather than a flat out mandate.  You have a choice whether to purchase and continue to own real property and therefore pay real estate taxes.  You have a choice whether to invest in tax exempt bonds and avoid taxes on investment income.  And you have a choice whether to spend your savings and avoid some or all of the estate tax.  Admittedly, these choices have practical limitations, but they are still choices.  In contrast, the individual mandate doesn’t involve any chosen activity.  It applies merely because you are alive.

Third observation – Ultimately, the types of mandates at issue are inconsistent with the fundamental idea that underlies the theory of rights in the Declaration of Independence.


My final observation is that Professor Bryant’s vision of government is inconsistent with the fundamental idea that underlies the theory of rights in the Declaration of Independence – the idea that we own ourselves and, therefore, have the right to be left alone as long as we honor the equal right of others to be left alone. 

Professor Bryant suggested in his Enquirer article that the idea of a right to be left alone supports the individual mandate.  After all, he argues, people who fail to purchase health care insurance are imposing higher costs on others and violating their right to be left alone.

But since when do higher costs for things I choose to purchase violate my right to be left alone?  And if that does violate some right I have, why is the solution to impose economic mandates that further intrude on my personal autonomy?

And Professor Bryant seems to assume that the Patient Protection and Affordable Care Act eliminates subsidies to people who currently don’t purchase health insurance.  In fact, it just changes how subsidies get paid and apparently expands the number of people eligible for subsidies.  Currently, uninsured consumers receive subsidies (largely from taxpayers) but only if they don’t pay their hospital bill.  Under the Patient Protection and Affordable Care Act, people who meet certain tests and are below 400% of the poverty level receive subsidies (entirely from taxpayers) to purchase health insurance.        

In any event, the point is that if the government can force us to pay money to a private company for the rest of our lives, and by logical extension, force us to buy a car or join a health club and perhaps force us to eat broccoli or exercise, we have strayed far from the vision of liberty at the heart of our system of government.

Does the individual mandate pass the “proper” test in light of the above analysis?

My analysis of the individual mandate can be summed up as follows:

  • The government’s argument in support of the individual mandate advances a theory of government power that has no limiting principle.
  • If accepted, it would give Congress virtually unlimited power to impose mandates on private conduct.
  • Such a broad federal power would effectively eliminate the distinction between federal and state power that is fundamental to the structure of the Constitution.
  • It would also lead to improper infringements on liberty because the Bill of Rights and the so-called unenumerated rights currently recognized by the Supreme Court have limited application.
  • In any event, the individual mandate is unprecedented, and government mandates like it are vastly more intrusive than mere prohibitions. 
  • Ultimately, the types of mandates at issue are inconsistent with the idea of self ownership that underlies the theory of rights in the Declaration of Independence.

Given these conclusions, is the individual mandate “proper” under the Necessary and Proper Clause?  Specifically, is it consistent with the letter and spirit of the Constitution?

There are no Supreme Court decisions addressing whether economic mandates like the individual mandate meet this test, but that’s because they are novel and have never existed before.

There is precedent, however, that mandates on state governments are not proper.  In the 1990’s, the Supreme Court held that certain federal mandates constituted an unconstitutional commandeering of the state legislatures.  These included forcing state governments to take nuclear waste and mandating local sheriffs to run background checks on gun buyers.  These cases were ultimately grounded in the Tenth Amendment, but that Amendment recognizes not just state sovereignty but also the popular sovereignty of the people.

Professor Randy Barnett of the Georgetown University Law Center makes a strong argument that the individual mandate fails the “proper” test, and I find it persuasive.  If you’d like to read his argument, it’s part of a law review article he wrote that I’ve posted at

He also points out that refusing to extend the commerce power to inactivity will not overturn any Supreme Court precedent and will affect only this one law.  And extending the anti-commandeering doctrine to the people may be novel, but the individual mandate is itself novel, just as certain federal mandates on the states were novel before they were struck down.

The stakes are high.

To sum up, I believe the individual mandate crosses a threshold with significant implications and that it is time to acknowledge that and turn back.  As Judge Vinson said in his opinion, “It is difficult to imagine that a nation which began, at least in part, as a result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”    

I urge you to keep an open mind as you reflect on these issues.  When there is broad public opposition to a law because people think it improperly intrudes on their lives, it is incumbent on our elected representatives and those of us in the legal profession to pay attention.  The legitimacy of our system of laws depends on the consent of the governed.  If we lose that, we put our legal system at risk.

Given the importance of this issue, vigorous debate is critical.  I’d like to thank Professor Bryant and Dean Bilionis for giving me a chance to participate in this discussion and be part of that debate.

Jack Painter lives in Cincinnati, Ohio and is a corporate attorney.  He is the founder of the Indian Hill Tea Party and on the board of the Ohio Liberty Council.  He can be reached at


Patriot Act Sunset Vote: Making the Case for Transparency and Spending Cuts

The Patriot Act is quite possibly one of the most repressive and expensive laws in American history. It bumps up next to the Alien and Sedition Act of Thomas Jefferson and John Adams time as a law that trashes civil liberties and inserts the government in just about every part of normal everyday life.

The good news is that the sunset provision of the Patriot Act is coming up for a vote this Tuesday. The vote will be assuredly drowned in media coverage with talking heads giving advance reasons on the pros and cons of this bill, working up the masses into a whipped frenzy. Liberals and conservatives alike talking about safety, government intrusion, and your freedom.

What’s that you say? No headline news coverage? The vote is not an “on the record” vote? Yes, the reauthorization of the Patriot Act is a foregone conclusion, according to Congressional leadership, who have scheduled a suspension vote on Tuesday.

A suspension vote requires two thirds of Congress to be present in chamber, but is a voice only vote, which means the Speaker “counts” the “yay” and “nay” votes, easily resulting in the bills passage. An official vote can be requested, but that topic is usually overlooked.

So there you go. Government operating at it’s transparent best. The Patriot Act will pass, without a liberal scream but with a “conservative” whimper. I will forgo a long discussion on topics already mentioned related to the intrusion on everyone’s personal liberty, but I will question the new Congress essentially providing blind political cover to an Act that substantially increased the Federal deficit in the neighborhood of $65 billion per year.

Republicans last I checked were sent to Washington with a spending mandate, but apparently do not consider this a legitmate expense to cut, not even mentioning the redundant agencies already working “to keep us safe”.

Besides the Republicans have some huge budget cuts planned either way with or without cutting so called Homeland Security. Paul Ryan recently proposed a colossal $32 billion when he looked through the $3.8 trillion budget. Wow, it really looks like we picked the right guys to go to Washington.

Great work team. Just when I thought spending cuts were going too deep, personal liberties were too free, and transparency was at an all time high. Three months in and the hits just keep coming.

Dan Lillback is a member of the Cincinnati Tea Party Board of Directors.


H.R.1 – The Great Bellwether

The House of Representatives typically uses House Bill 1, the first formal piece of legislation of each new Congress, to indicate the charted direction for the following two years of the session. For over a decade, successive Congresses have charted a course away from Federalism and American hegemony and towards DC autocracy and Globalism. Consider the previous five Congressional bellwethers:

• In 2001, the first act of business for the 107th Congress was H.R.1, No Child Left Behind Act of 2001, a massive abrogation of state sovereignty under the Tenth Amendment and a key predictor of the freewheeling that would characterize the Bush/Hastert Era (2001-2007). Its chief sponsor: Representative John Boehner.
• In 2003, the first act of business for the 108th Congress was H.R.1, Medicare Prescription Drug, Improvement, and Modernization Act, President Bush’s enormous expansion of Medicare that only exacerbated and accelerated the insolvency of this social welfare program.
• In 2005, the first act of business for the 109th Congress was H.R.3, Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). What happened to H.R.1 and H.R.2? They were reserved to a tired Speaker Hastert, who had by then expended independent ideas, suspended critical thought, and never got around to attaching legislation. SAFETEA-LU was the final denouement of the free spending Bush/Hastert Congress: a multibillion dollar federal pork spending bill on transportation projects for districts and states across the nation.
• In 2007, the first act of business for the 110th Congress was H.R.1, the 9/11 Commission Recommendations Act, a frontal assault on the civil liberties of Americans and the dual sovereignty of the States.
• In 2009, the first act of business for the 111th Congress was H.R.1, American Recovery and Reinvestment Act (ARRA, or “Stimulus Bill”), a frontal assault on American’s financial stability that only succeeded in strengthening China’s stranglehold on American monetary policy.

No Child. Medicare Part D. Pork spending. Civil liberties diminished. Debt explosion. Compassionate Conservatism – a/k/a Progressive Lite – dominated the legislation of the 107th, 108th, and 109th Congresses, only to be replaced by Progressive Radicalism of the 110th and 111th Congresses. So, what tea leaves might one read from the actions of the 112th Congress?

Thus far, the new Congress has made good on its promises to grassroots conservatives. The first initiative undertaken by the Republican majority was the recently-passed H.R.2, Repealing the Job-Killing Health Care Law Act. Having succeeded in a repeal measure, the succeeding line-up of legislation aims to undermine Obamacare and the Progressive agenda on a variety of fronts:

• H.R.3, the No Taxpayer Funding for Abortion Act, will achieve by legislation what a ridiculous and futile Executive Order failed to accomplish: eliminate the Obamacare provision permitting taxpayer funded abortions. The only success of Obama’s March 2010 Executive Order was to dupe the Stupak 12 (only four of whom were reelected in November 2010) into voting for the Obamacare monstrosity.
• H.R.4, the Small Business Paperwork Mandate Elimination Act of 2011, aims to repeal the Obamacare provision that extends to corporations that are not tax-exempt the requirement to report payments of $600 or more — a monumental burden on American small business.
• H.R.10, the Regulations From the Executive in Need of Scrutiny Act of 2011, aims to curtail the ability of the Administrative State (the unspoken fourth branch of American government) from promulgating any major regulations (those in excess of $100 million) without the approval of Congress. In this manner, the GOP leadership plans to block the EPA and other agencies’ ability to impose cap-and-trade and regulatory atrocities via administrative fiat without Congressional oversight.
• H.R.25, the Fair Tax Act of 2011, a bill that would eliminate the Internal Revenue Service as well as taxes on income, capital gains, payroll, gasoline, and inheritance. Those taxes would be replaced by an inclusive 23 percent sales tax on all goods and services. (Eliminate the IRS? I like this already.)

These bellwethers bode well for conservative readers who hunger to shrink a federal government that has strayed from Constitutional principles for way too far and for way too long. Key to sustained momentum and ultimate success will be House Speaker John Boehner. An assessment of his voting record leads this author to conclude that Boehner, who as Speaker controls the House legislative agenda, is a Social Services Conservative: somewhere between a Mike Pence Firebrand and a Mike Castle RINO. Such is a precarious predicament for the fate of the Conservative movement: a career pol that on the one hand has a penchant for ignoring deficit spending on social service programs while on the other hand railing against the excesses of Progressive Americans. Time will tell if the newly anointed Speaker is an advocate of Tea Party Conservatism or merely a hostage to it.

Patriots must be mindful, but be assured: DC Hound is watching…


Healthcare Repeal…

The new Republican Congress repealed the dreaded Healthcare law enacted just last year.  The voters sent the Republicans to the house with just that mandate.  Even a CNN survey show that 48% of voters want a full repeal.  Momentum is building and Democrats or even a President that runs for political cover may end up just diving on a live electoral grenade.

Remembering back to fifth grade government class or Saturday morning cartoons, however, once a bill passes the House, it has to pass the Senate (read no Republican majority), and then it is signed into law by the President.  (I think this President sees this bill as his cornerstone legislation thus far, which might make a repeal a pretty tough sell — in same way that FDR and Johnson felt about Social Security and Medicare, respectively). 

However, this issue will be an election issue in 2012.  It only remains to be seen if the American public can hold their political attention span, equivalent to the full-time attention span of my 15-month old daughter (about 30 seconds), long enough to remember in 2012 the next “most important election of your lifetime” (queue the ominous music).  This also means that besides a repeal, the House should press hard on passing a bill that de-funds any programs created or to be created from the Healthcare Act, like the ridiculous 1099 provision on all goods or services over $600. See what happens when no reads the bill before they vote on it?

Regardless, out here in fly over country we are working on an amendment to the Ohio Constitution to repeal the Healthcare mandate.  Dr. Paul (original Dr. Paul, not to be confused with new Dr. Paul) told us recently in a meeting that our work would do “more good” in the end than a repeal in the House that goes nowhere (same for the other states working on similar things).  We have gathered nearly 75% of the required signatures, almost 300,000, if you are counting. 

The great news in Ohio in the recent election was that the new Republican House and Senate majority, House Speaker Batchelder, Senate Majority Leader Niehaus, and even new governor Kasich, are also in favor of putting our language in a joint session bill this year.  This bill could presumably be fast tracked to the statewide ballot in November, ending the immense effort of signature gathering, and solidifying Ohio as a state that would be able to reject the Healthcare mandate regardless of the results of the President’s reaction to the Republicans efforts in US Congress.  We, however, will continue to gather signatures until these presumptions become realized.

The good news for all us after Healthcare is defeated in Ohio and nationally, is that next we can all focus on the favorite single payer healthcare system of Tea Party constituents far and wide, Medicare (it’s listed under Health and Human Services there). 

Yeah, I said it.

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HR 4853 Tax Relief and Debt Expansion…Stimulus #3? Not Quite.

Let’s get a few things clear about this bill, it’s a dirty and messy deal, and it is a function of the current lame duck Congress run by Nancy Pelosi and Harry Reid (who won’t be in attendance for the signing of the extensions, they will be pouting).  Does that mean that the cut taxes while you increase spending Republicans would create a better deal in 2011?  Who knows.

The number quoted in the media is $858 billion.  That sounds like a number pretty close to TARP I and TARP II, but the majority of the money being quoted in this bill is maintaining tax rates at their current levels — this is not spending; it is a revenue reduction number.  That means they are not raising taxes, which is what would happen if this bill was not passed by the House — you keep more of your money in your paycheck.

$798 billion (93%) in the bill is the decrease in tax revenue as interpreted by the CBO from 2011-2020.  Again this means your first paycheck in January does not have a lower total on it.

Now that leaves the famous $56 billion question in unemployment extensions.  That is deficit spending if there ever was some.  This allows people on unemployment to stay on unemployment instead of taking a “productive” job.  Ladies and gentlemen, politics is in full action.  I want a bill with tax relief, not additional deficit spending.  Congrats are in order to John Boehner avoiding an unemployment extension immediately under his watch as the newest Speaker of the House.

So who voted against this dirty bill in Ohio?  Jim Jordan (citing estate tax issues) and our own Jean Schmidt from the Republican side, as well as Dems Marcia Fudge, Marcy Kaptur, and the outgoing Mary Jo Kilroy.  Which means a majority of the Ohio Democrat caucus voted for this provision, along with local rep Steve Austria, Mike Turner and incoming Speaker John “hold my feet to the fire”  Boehner.  My hats off to Steve Driehaus for caving as easily as his did voting for this “cut taxes and raise spending bill” against his party’s wishes.  If he had done that more often he may not be unemployed in January (at least unemployment benefits are available for him).

Another noteworthy vote came from Dr. No, Ron Paul, who voted for this bill.  His comments were directly related to his firm perspective to eliminate taxation completely founded a political reality that spans three decades of politics:

“Many people have urged that this tax bill be rejected and that Republicans come back in January to vote on a clean bill. Waiting until the next Congress would also mean that taxpayers would have much more of their salary withheld until any tax cuts could be made. While it is certainly possible to wait until January, we still have a Democratic Senate, and a Democratic president who would likely veto a clean tax bill. I too would prefer to see a completely clean bill, but that is not what we have been given. A vote against the bill before us today would be a vote to raise taxes on all Americans.”

Read more of Dr. Paul’s comments here.

So is it fair to assume that Jean, through her no vote, would have expected (or authored) a cleaner bill for this topic that could have passed through both sides of Congress and the President’s office in early January?  Would it have been retroactive through the beginning of the year from a tax perspective when it passed?  I think it’s great that our congress members are considering the potential cost of “additional deficit spending” as most have cited for their reasons to vote against this issue, but voting “No” today is the same as voting “Yes” to raises taxes on every constituent.  Save the spending argument for another day gang, I am highly optimistic your day for that will come all too soon.

Dan Lillback is a Cincinnati Tea Party board member.

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The American Entitlement Conundrum: Buffy, Jody, and Mr. French

Many political observers are acutely aware of Congress’ now annual raid on the federal credit line.  Indeed, since Democrats regained Legislative control of the federal government in January 2007, Congress has raised the debt ceiling a staggering six times.  Most recently, on February 12, 2010, Congress established the largest debt ceiling in US history:  $14.294 Trillion.  As current debt surpasses $13.872 Trillion as of this writing, it’s only a matter of months before the incoming 112th Congress must act to forestall a default on US treasury liabilities.

Such a dismal state of affairs masks an even darker reality:  $13.872 Trillion is merely the tip of the iceberg.  Invisible debt lurks underneath the surface in the form of entitlement “obligations” never characterized as simple debt using the federal ruse of shell game style accounting that would make Enron blush.  Social Security obligations now top $17.5 Trillion; Medicare Parts A, B, and D obligations exceed $89.3 Trillion.  All tallied, US debt actually exceeds $120 Trillion!

Following stunning Conservative victories in November 2010, the GOP Establishment hesitated to seize the mantle of leadership and instead embraced the more familiar rag cloth of compromise.  The tax agreement, negotiated between the President and Senate Republicans and signed into law on December 17, 2010, illustrates the ideological divide between Big Government Republicans and Grassroots Tea Party Conservatives:  the Bush tax cuts – a centerpiece of Tea Party-backed candidates – were extended a meager two years while irresponsible, debt-funded entitlement spending continues unchecked with the 13-month extension to unemployment benefits as well as a two-point rate cut in Social Security taxes.  Under the guise of fiscal responsibility Senate Republicans were anything but:  they failed to secure permanent tax rate reductions, failed to contract the over-encroaching power of the federal government into state affairs, and failed to extend the life of a misconceived and grossly mismanaged Social Security system.   Such Pyrrhic victories the Republic can ill afford.

Progressives have cleverly used entitlements to move successive generations of Americans onto the Democrat plantation of dependency.  Entitlement addiction is the opiate of the statist left, and our seeming inability to break the Congress and the populace from entitlement servitude now completely dictates the terms of American tax policy all the while pushing the American Treasury to the precipice of insolvency. We simply cannot sustain the current entitlement culture, nor can we afford to sustain Establishment leadership that seeks to move America to Eurostyle socialism…albeit at a slower pace.  On the key issues of Liberty, Limited Government, and Free Enterprise, the primaries of 2012 must again repeat the RINO killing fields of 2010.  In the meantime, true Conservatives must assert themselves in the 112th Congress and demand marked across-the-board spending cuts (-20% in two years should be the goal), lest the Compromise – and compromised – GOP Establishment so mismanage the conservative mandate as to allow Obama to reassemble the shards of his current Administration and reassert his mythical populist-centrist appeal to secure reelection in 2012.

It’s a “Family Affair” moment for the American Republic:  like Brian Keith in the great 1960’s sitcom, Tea Party Conservatives must sit down with the capricious Buffy and Jody progressives and break the bad news — we can no longer afford those vacations to Disney World, and we have to let Mr. French go.