Occupy versus Tea Party

There has been much ink and air time given over to how the Occupy Movement is the Left’s Tea Party. As a conservative, I wish that were true, but it’s unfair and I would caution politicians against aligning themselves with Occupiers. It’s unfair unless the Left wants to take up the cloak of overthrowing the system rather than working within it. The Tea (Taxed Enough Already) Party was established to impress upon our representatives three basic principles of governance: stop spending money you don’t have; stop assuming we will gladly pay to match your influence-peddling; and, please pay attention to the Constitution you swear to protect and defend as a condition of holding office.

Occupy Wall Street – the no-agenda agenda, its name, the location of the encampment and the date that it began – was the brainchild of two anarchists at Adbuster Magazine, as now chronicled in The New Yorker, a publication of impeccable liberal credentials.

The anarchists were quickly joined by leftists whose agenda couldn’t be more different – all-encompassing government versus no government, highly organized versus “horizontal” organization (read: no organization) – thereby muddling whatever message could be deciphered from the crowd. These were joined by the homeless who were in search of food and shelter. The result is a collection of differing causes, all culminating in contempt for authority, hostility toward people trying to get through them to go to work (mostly “99-percenters”), and an unfocused anger that began to express itself in ugly ways.

After weeks at Zuccotti Park, they had become a health hazard and a dangerous place for citizens to be after dark. Women were assaulted, cars were used as toilets, hundreds were arrested, nearby businesses were shut down for lack of customers, and so on. Many of those who jumped on the Occupy bandwagon are now putting distance between themselves and the Movement.

As badly as the press would love to find a congruity between the Tea Party and the Occupy Movement, they haven’t been able to do so because there is no real message coming out of these encampments other than cities should leave them alone and let them squat.

I wish there was a vocal expression of a contemporary liberal agenda, more specific than “eat the rich.” What, exactly, is “rich;” what, exactly, is their “fair share;” where, exactly, is your budget for FY2011 or FY2012? It’s a debate the voters deserve.

See Mattathias Schwartz, Pre-Occupied, in The New Yorker, November 28 2011.

Pyrrhic Victory?

King Pyrrhus of Epirus defeated the Romans at Heraclea (280BC) and at Asculum (279BC), but at the cost of irreplaceable casualties to his own forces. Upon being congratulated by a cohort, the King replied, “one more such victory would utterly undo me[1].”

I get an inkling of King Pyrrus’s lament as I consider Democrats’ reaction to Judge Laurence Silberman’s (a Reagan appointee) majority opinion of the US Court of Appeals for the DC Circuit in affirming the individual mandate provision of the Affordable Care Act. Democrats are, of course, gloating over a conservative judge’s agreement with the liberal dream of establishing a nationalized healthcare system. They apparently read the verdict but not the opinion itself.

Does Congress’ enumerated power to regulate interstate commerce empower it to compel individuals, as a condition of living in America, to engage in a commercial activity? If any inactivity can be said to have economic consequences, can it be required by Congress? Can Congress forbid the inactivity of not purchasing a product from a private provider? Judge Silberman say yes: “We acknowledge some discomfort with the government’s failure to advance any clear doctrinal principles limiting Congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right.”

I have a problem with that logic that I believe the Supreme Court may share.

Judge Brett Kavanaugh, dissenting on the DC Circuit Court, dryly praised Silberman’s “candor” in “admitting that there is no real limiting principle” to the Commerce Clause jurisprudence embraced by the court’s majority. He emphasizes the asymmetry between, on the one hand, regulating or prohibiting commercial activity and, on the other hand, compelling such activity[2].

Here’s something for liberals to consider: limitless Congressional power means that a Republican one-party rule could constitutionally command the replacing of Social Security with mandatory private retirement accounts (going a long way toward balancing the federal budget), or order states and communities to allow any and all religious displays on any and all public lands (neither favoring nor discriminating against any over others). Judge Kavanaugh rejects Silberman’s attempt “to mitigate the dramatic implications of its no-limiting-principle holding” by noting that “Congress is subject to a political check.” This abdication of judicial duty totally ignores the fact of how the Affordable Care Act came to be – rammed through a Congress devoid of the possibility of a political check, having legislative majorities in both Houses and a compliant president, and in the face of a virulent public rejection. There still exists a majority opinion that the law needs to be repealed.

If this demonstrably impotent “political check” were all that was necessary to protect the public from Congress, there would be no need of a Supreme Court. I think the Justices will recognize the danger hidden from Judge Silberman, and begin to end the New Deal era of the High Court.

[1] Plutarch, Pyrrhus, John Dryden (trans).

[2] See George F Will, No Government Limits Results in No Liberty, in Washington Post, November 20 2011, p. A16.

Mandate, Severability and Standing


The Supreme Court has agreed to combine three cases (National Federation of Independent Business v Sebelius, No 11-393; US Department of Health and Human Services v Florida, No 11-398; and Florida v Department of Health and Human Services, No 11-400) to review for ruling on the legal legitimacy of the Patient Protection and Affordable Care Act.

The three issues the Justices feel in need of clarification include the primary question of whether Congress overreached its authority in mandating that, just by being alive, one must purchase health insurance. Also included are the issues of severability (if the mandate is struck down, can the rest of the law be valid?) and standing (can any challenge be brought before the bar before they are in effect – i.e., before there are actual victims of the law). Oral arguments have been slated for March, and an unprecedented 5½ hours have been set aside to hear them. In the normal course of events, a ruling could be expected in June or July, probably after a Republican nominee has been virtually anointed.

Paul Heldman, senior analyst at Potomac Research Group, which provides Washington policy research for the investment community, said he still leaned toward the view that the law’s requirement that individuals buy insurance will be upheld. “We continue to have a high level of conviction that the Supreme Court will leave much of the health reform law standing, even if finds unconstitutional the requirement that individuals buy coverage,” he wrote in a recent note. I would like to see that entire note, because while I agree with him on the severability question (SCOTUS will likely leave in tact any parts of ObamaCare not overturned), but, as an advisory to investors, should have included something about the economic unfeasibility of the Act in the absence of universal participation – the mandate accounts for fully half of the admitted cost of the bill (which will undoubtedly not be close to the actual cost. Laws always cost more than their authors admit). As a legal matter, the Court may well infer severability, but as a practical matter, it cannot survive without its major funding mechanism.

The administration has pointed to other landmark laws, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, all of which enjoy a degree of universality and all of which have survived similar legal challenges. Of these, two rest on precursor acts (Social Security Act – working, and Voting Rights Act – voting), leaving the Civil Rights Act as the most congruent to the question of the mandate – one’s involuntary and irreversible ethnicity is transparent to the applicability of the Equal Protection Clause of the Constitution. It’s black letter law. The mandate is only ambiguously addressed by the Commerce Clause, and the questions raised involve a wider concern regarding the resulting freeing Congress of any limitations whatsoever.

“Let’s go right to what is your most difficult problem,” Judge Laurence H Silberman told a lawyer at an argument in September before the US Court of Appeals for the DC Circuit. “What limiting principle do you articulate? If Congress may require people to purchase health insurance, he asked, what else can it force them to buy? Where do you draw the line? Would it be unconstitutional to require people to buy broccoli?”

“No,” said the lawyer, Beth S Brinkmann. “It depends.”

“Could people making more than $500,000 be required to buy cars from General Motors to keep it in business?”

“I would have to know much more about the empirical findings,” she replied.

Thus is the arrogance of government in assuming that its agenda is more important than the petty concerns of its people or the requirements of law. This applies to government generally, regardless of which party occupies the White House.

Whether anyone has standing to challenge an aspect of law that has no actual victims is an interesting one. Like most issues swirling around the Affordable Care Act, there is a degree of ambiguity around this one, too.

It is Court tradition (but not a matter of law) not to grant certiorari to issues not yet in play – they deny standing to complainants who have not actually been harmed by the law they protest. The complication is one of severability, as parts of the law are already in effect, and if there is no severability and some aspect is, in fact unconstitutional, then the whole law – including that which is already in force – is unconstitutional.

The questions in play here have nothing to do with healthcare. Just as in case law, where the trial is about the behavior of plaintiff and accused, and the appeal is about the behavior of the lawyers and the judge, at the Supreme Court level, the case is about the behavior of government. This is that over which the Supreme Court has authority.

See James Vicini, Supreme Court to take on Obama healthcare law, Reuters, November 14 2011.

See Adam Liptak, Health Law Puts Focus on Limits of Federal Power, in New York Times, November 14 2011, p. A1.

a Civilizational Crisis


The fall of the Soviet Union, geopolitically profound as it was, didn’t usher in “a New World Order.” The world still lives in the warmth and prosperity of the dominance of Western Civilization. A collapse of the European Union could well end that world order – which is on notice of a challenge by a Sino-centric power center in any event. But the failure of the eurozone could hasten the challenge and wage it on Beijing’s, not our, terms.

The transatlantic axis, anchored by a prosperous Europe and America, represents a philosophically consistent worldview (Judeo-Christian Greco-Romanism) that has largely driven history for the better part of the last two millennia. The Age of Empire crumbled in the aftermath of World War I; The Second World War brought Japan into the Western fold, and the reinstatement of Israel established a Western outpost in the Muslim Middle East; President Nixon began a process (still underway) to entice a Maoist China in the direction of market republicanism; the collapse of Europe’s last great empire – the Soviet Union – brought about an opportunity to reorient Moscow toward a Western worldview. These last two are works-in-progress that are trending poorly.

The imperial intensions of the Soviet Union were exposed immediately post-World War II, and the Untied States countered by forming NATO to geographically encircle Eurasian Russia, and the Marshall Plan to economically isolate it. “Containment,” we called it. Military competition between us and the Soviets led to the space programs of each, which led to exponential expansion of the ability of each to inflict violence on the other. “Deterrence,” we called it. Containment and deterrence held Soviet expansionism in check until the revelation of stealth technology and our undertaking the design and construction of a ballistic missile shield rendered the Soviet Union economically irrelevant.

It’s ironic that governance failures in Greece and Italy may sink the predominance of Greco-Roman-based Western Civilization. It’s more likely than probable, and more potential then likely, but it could happen; and if a tipping point is reached, our “friends” in Beijing and Moscow will help push us over the edge. An evening of the global balance of power is in PRC’s and Russia’s best interests, and I would expect nothing less from them.

The problem isn’t Greek and Italian prolificacy as much as the false promise of European economic homogenization. It was never possible, awaiting only the first time is was actually needed to illuminate the fraud. Many commentators point to Ireland as the index-case, saying that the euro delivered on its promise – Ireland was bailed-out and has (thus far) repented and is sinning no more. That’s correct, but Ireland isn’t the disease, only the first symptom. The disease is the social-democratic model of European political economics. It just doesn’t work, and the eurozone remedies for assisting individual countries isn’t up to rescuing the ill-designed system upon which the eurozone is based. A failure of the eurozone could bring down the European Union, likewise based upon a myth – that of Europe’s people being more comfortable being citizens of Europe than being citizens of Germany, or France, or Poland, etc. A collapse of the Union in the midst of a surge in nationalist sentiments and economic impotence would provide a feeding frenzy for Moscow and a further economic isolation of the Untied States.

This would not be a collapse of the Old World Order, but it could well begin an irresistible shift in that direction, culminating in a Beijing-centric (or, less likely, a Beijing/Moscow-centric) New World Order in a generation or two.

What that would mean for the rest of the world depends on whether Beijing perceives it in their interest to maintain free world trade, or seeks to dominate world trade for short-term, parochial gain only. Much would depend on whether Beijing sees rabid Islamism as threat to civilization, or suppresses only Uyghur and Tibetan insurrections. Just as Hawaii is a strategic lynchpin in America’s ability to dominate the Pacific, it presents a strategic obstacle for anyone else’s dominance of it – how will a Chinese superpower handle the Hawaiian irritant?

All of this, of course, assumes continued Chinese economic progress, which is in no way a certainty. They are having their very own real estate bubble, but theirs is happening inside a larger, more dangerous currency bubble. Neither is sustainable, and how Beijing handles them will be outcome-relevant to what happens in the wake of Europe’s struggle to restructure itself on the fly.

If Greece fails, or is excommunicated from the euro, the euro will probably collapse as a serious world currency. That would initiate serious self-doubts among members of the European Union, a failure of which would dissolve Europe into Germany, England, the probable loss of much of Eastern Europe into the Russian shadow, and near-Third World conditions in southern Europe. Europe, as a player, would be off the table for at least a couple of generations.

Eat the Rich!

That’s this year’s HopeyChange message from Team Obama.

Those Wall Street fat cats, corporate jet owners and oil tycoons have crashed the economy, and they did it by stealing everybody else’s hard-earned home equity and 401(k) values. That’s what our post-partisan, the-only-adult-in-the-room, let’s-lower-the-rhetorical-heat president’s team is telling people these days.

Other points of interest in this year’s Silly Season:

This may be the first presidential campaign where both parties run on a “do-nothing Congress” message – Democrats against an “obstructionist” Congress, Republicans favoring a “stop-the-bleeding” one.

President Obama tells Jay Leno that he’s waiting “til they’re all voted off the island” before paying attention to the GOP debates – although we can rest assured that his Pre-Primary Debates Czar is paying riveted attention to them because the White House always has detailed criticism of the candidates’ comments the day after each one.

There are three interesting things happening in the Republican field – Romney’s static numbers, Cain’s durability, and Gingrich’s slow, steady climb.

· Mitt Romney has held between 20 and 25% since announcing, regardless of how the other contenders are doing. In other words, he’s neither losing nor gaining support to or from the fortunes of his competitors. That’s interesting because normally one candidate’s slip in the polls is absorbed by the favorite’s campaign, but not this time. Mr Romney’s poll numbers seem independent of how the other candidates are doing.

· Herman Cain’s meteoric rise matched that of Michele Bachmann’s and Rick Perry’s. But the latter two both quickly swooned, and Mr Cain has not. Mr Perry’s rapid rise appears to have been at the expense of Ms Bachmann, whose numbers declined in concert with his announcement and spike in the polls. Mr Perry’s disastrous (and Mr Cain’s strong) performances in the debates seems to have transferred Mr Perry’s numbers to Mr Cain’s column. Where they have stayed. Mr Cain is, in fact, mounting a slow gain on Mr Romney’s steady fifth of Republican primary voters.

· Newt Gingrich who, if the debates were actually scored like debates, has won them all. His numbers are steadily inching upward with each performance.

As an old analyst of political polls, I would make the following observations. Romney’s plateau suggests to me that there is strong sentiment among professional Republicans that he is “electable” – that he can beat President Obama. But there is no enthusiasm. Romney is a known quantity (he has been running for this office for five or six years now), and he’s a moderate with few discernable conservative principles. They like him but they don’t love him. He will get the nomination (and their backing) if he’s the last man standing.

Mr Cain’s longevity as “flavor of the day” has two dynamics – no new candidates since his rise; and, he can hang in there at least until the first caucuses/primaries – debates are cheap; retail campaigns are expensive. Mr Cain is a little out of left field and unconventional for the Republican establishment, and they aren’t going to throw their weight behind him until they’re sure he’s more than a curiosity. He’s going to have to win a couple of caucuses and primaries on his own before the establishment (and their bundlers) show open support. Beyond, say, Florida, steady infusions of money could be fatally lacking for Mr Cain if he hasn’t persuaded the establishment to support him by then.

Everybody knows the problems we face, Newt Gingrich knows the solutions that will probably pass Congress. He knows this because he has spent the last eight years formulating solutions and polling likely voters of both parties to find which enjoy majority support. He is not telegenic, and he has baggage from his days as Speaker of the House, but his debate performances have been flawless – he knows what will sell, and in most cases, he’s the only one selling – the rest are using playbooks largely prepared by “experts” (like economists who missed the coming of the Great Recession).

What we have, I think, is separation of the moderate (Romney), pragmatic (Gingrich) and conservative (BachmannàPerryàCain) wings of the party, and it will probably stay pretty much like this until the primaries begin sorting out winners and losers. If Cain falters, it will become a short, asymmetrical contest between Romney and Gingrich – asymmetrical because the establishment money will go with Romney in that case.

Although I think there have been (and will be) too many of these “debates,” there is no doubt that they have driven the Republican race so far. As long as we are devoting so much TV time to the candidates, I would rather see each given a show to lay out their plan and vision for America, after which two journalists, one liberal and one conservative, would ask questions restricted to the material raised during the candidate’s speech (no outside matters allowed). I think we would learn more about the people seeking high office.