Crucify Them? What do to about Petty Dictators

We have all seen the mid-level EPA administrator in the video talking about his philosophy of enforcement, which might be summed up as: “We make a few examples and everyone else stays in line.”  And I’m glad that he is no longer in his post, though he should have been fired, not allowed to resign.

The problem is not simply with Mr. Armendariz; it is not simply that he is not a satrap for some absolute monarch, free to interpret the law as he pleases.  (It was clear that he wanted the law to work that way, that is exactly what he said – more than a year ago.  And we must assume that he pursued that policy as much as he was able until this public airing of the video forced him to recant.

What he demonstrated, and the reason why he should have been fired, was that he demonstrated precisely how a nation of laws does NOT work.  Further, I suspect that his actions were an indication of more than the extent to which the Obama administration hates the oil and gas industry.  That hate is relatively insignificant when placed against a much larger issue: the issue of the corruption and abuse of power.

Now the abuse of power is not new; it has been going on for 6,000 years at least.  But it seems as if it has been increasing over the last several years (in the US and world-wide).  While we can debate what it is about power that is so corrosive of morals and behavior, the simple fact is that it is intolerable in a democracy, in any nation that believes that bureaucrats and elected officials are the servants of the people, and that they must be held to strict accountability at all times.

Mr. Armendariz’s video demonstrated at a minimum a flippancy to the rule of law.  It is probably more accurate to say that he believes, as do many in government, certainly many that worked for him, with him, and presumably those he worked for (who did not correct his behavior, but whose hands were forced only when – more than a year after that video, a member of Congress made it public) that the law is what they say it is.  It is all well and good for people to assert that ‘he was just saying this for effect,’ and that ‘he apologized.’  But the fact is that the abuse of power is part of the process of usurpation of power by those in government.  And it must never be tolerated to any degree if we wish to keep our freedoms.

While elected officials are at least subject to recall by irate voters, the bureaucrats who work in the vast regulatory agencies of the federal government are not.  In fact, with the exception of the most senior officers in those various agencies, getting one removed for anything other than clearly illegal activity is difficult at best.  Yet these same regulators have, over time, come to assume the de facto power of Congress.  Legislation is passed creating an office and giving it general powers.  (Sometimes, there isn’t even legislation, simply a decision by the President, as President Nixon did in establishing the Environmental Protection Agency by executive order.)  Once the office is created the bureaucrats expand on these general orders with the crafting of regulations.  The only boundaries on those regulations are the imagination of the regulators, and the willingness of someone to sue them when the regulations become truly onerous.  There is no process of review unless people – citizens – object.  And then you have a citizen or business fighting against an entrenched bureaucracy with all the power of the federal government behind them.

This lack of any serious review of the expansion of powers has stripped the citizenry of real powers and transferred it into the hands of bureaucrats like the would-be petty dictators at EPA.  At a minimum there should be a thorough investigation of the EPA, as well as the dismissal of Mr. Armendariz’s immediate superior.  The nominal Inspector General’s office in the EPA should also be reviewed.  Then Congress must take up the debate of just how much latitude an agency had to draft regulations and what procedures might be implemented to force some sort of real, rather than cursory, oversight of these bureaucrats and petty dictators.

Education?

There is an odd belief that seems to have permeated much of the thought of the western nations that we should not present our beliefs on various issues because it might be perceived as domineering, bullying, even imperialistic.  Not only must we respect the beliefs of others, we are cautioned not to even mention our own.  This is particularly true in the world of education, where, seemingly, every idea must be accorded equal respect and equal credibility.  To do otherwise would, it would seem, be dogmatic, seemingly the worst insult one might hurl at modern educators.

There is only one small problem with this position: it is patently idiotic.

The thing of it is, education is about being dogmatic.  To educate is to choose, it is to present one particular concept and not another, recommend a handful of books to be read, and ignore 10,000 others. Those are choices, choices based on the knowledge, perceptions and opinions of the one making the choices, based on the simple concept that the one making the choice, the one constructing the reading list – the teacher or professor – knows more about subject X then do the students, the students’ parents or friends, or anyone else.  If we reject that idea, then we should reject being taught by that teacher or professor.  So, when a professor insists that he will not be dogmatic, he is insisting that he will not teach.

This all occurred to me when I read about the foolishness at Vanderbilt University.  In case you have not been keeping up on it, the ‘leadership’ at Vanderbilt weighed in on the guiding principles of one of the clubs being formed on campus.  So far, so good.  Presumably, they are insisting on their responsibility to guide the students, implicitly stating that ‘we know better then you, you will act in accordance with our guidance.’  Very dogmatic and very appropriate.  Presumably, this is what the parents are paying for.

But it is what they came up with that makes me wonder if they – the ‘leadership’ – slipped and hit their heads.  The group in question wants (or wanted to – presumably this is over?) to start a group to engage in Bible studies.  They issued, (per University rules I suppose all groups on campus must have guidelines (which seems far to organized for me)) guidelines for the club.  The University’s ‘front office’ reviewed the guidelines and ordered changes.  Here is the text in question and the recommended changes:

Original: “Criteria for officer selection [for officers of the club] will include level and quality of past involvement, personal commitment to Jesus Christ, commitment to the organization, and demonstrated leadership ability.”

The university directed the group to change the statement to read: “Criteria for officer selection will include level and quality of past involvement, commitment to the organization, and demonstrated leadership ability.”

The line dropped was 'personal commitment to Jesus Christ.'  I’ll return to that in just a second.  But first, let’s consider a simple analogy.

Let's say you want to form a group that will promote love of Italian cuisine - an 'Italian Food Club.'  Perfectly fine, feel free to do so.  And if you were feeling particularly motivated you might want to provide structure to your club and select people to run the club, make schedules, keep track of members, order pasta with a light cream sauce, all that sort of thing.  You might even want to write down some guidance on how to do certain things.  One thing you might write down is guidance on selection of the head of the club, the treasurer, the secretary, etc.  It would seem that one of the more reasonable criteria is that you pick people who really are interested in the club.  After all, we wouldn't pick someone who loves Scottish food more than anything else to head the club, would we?  We would want someone who loves Italian Food.  (Does anyone not love Italian food?)

Let's restate that for our Italian Food club: criteria for officer selection will include “commitment to the organization [which is about loving Italian Food], and has demonstrated a personal commitment to Italian Food.”  But wait, they aren't allowed to say that they have demonstrated a 'personal commitment to Italian Food.'  Well, how can you join an Italian Food Club and want to go eat Italian food and talk about Italian food and not be committed to Italian Food?  Here's a hint: you can't.  Just as obviously, no one is going to care about the Italian Food Lovers Club or its guidelines.  They will slip in under the radar.

Not so for the Christian Club (which isn’t actually its real name – they chose anonymity). 

Well, it’s fairly obvious why they are insisting on the changes; as they say, they don’t wish to bully anyone, to restrict membership in a group would be exclusive, not inclusive, it would be imperialistic, it would be dogmatic.  And that must not be allowed to happen in a modern university.

It is possible that the folks in the ‘front office’ at Vanderbilt really are genuinely afraid and concerned that someone will be offended or feel excluded or put upon because the words 'Jesus Christ' appear in the by-laws of a Christian Club.  (Never mind that Vanderbilt was founded as a Methodist University.)  It may well be that they truly cringe from the idea of forcing people to choose, to voice an opinion, and are equally reticent about voicing one themselves.  But, I ask you this: go back and read the recommended change to the bylaws (above).  Can you see any meaningful change in the outcome of the bylaws based on their changes?  Is it possible that an atheist could attend club meetings and show a commitment to the club that would result in his being elected?  I suppose.  Certainly, I would guess there are folks in the administration at Vanderbilt who would salivate at the thought.  But is it likely?

Perhaps it is purely malicious and they really just don’t like Christianity and the opportunity to force someone to delete 'personal commitment to Jesus Christ' either gives them great glee or at least lets them hide their fear and loathing of Christians and the anger and frustration at those who would practice Christianity.  But, at the same time it is apparently okay to have a Christian club wherein selection for officers will include 'commitment to the organization' - which is studying Jesus Christ. Which leads to my suspicion that some of them at least don’t really understand the words, nor do they understand their role – as educators – to tell people to do things: read a book, write a paper that discusses a particular thing from a particular point of view, etc.  And if they really don’t get that, then they really have serious issues, particularly as leaders of a once great university.  Or are they simply afraid of the words ‘Jesus Christ?’

In the end, there are only a few possibilities in how we define the professors and leadership at Vanderbilt: they may not understand what they are saying, in which case, they are idiots; they may really have a great dislike of Christianity, but lack the courage to say so, in which case they are cowards; they may simply recoil from their roles as educators – who are their to lead students to acquire knowledge, in which case they shouldn’t be teaching (one might argue that they are Not in fact teaching).

This is not an issue for lawyers or Constitutional scholars.  Vanderbilt is a private institution and if they want to act this way, they should feel free.  But they should also pay the price.  Their actions are the actions of idiots, fools, slouches or cowards.  None should be allowed to teach.  Here's my recommendation: to all parents and to all you people out there who hire folks: pass the word: Vanderbilt is run by a low and disreputable lot.  (Sorry for all the folks who are going there right now, I would advise you to leave; you aren't getting a quality education except by accident.)  If you ever find yourself in a position to hire someone and he or she went to Vanderbilt, take an extra hard look at them; there is a reasonably good bet that there are major gaps in their education.

Hubris in the Service of Our Nation

Secretary of Defense Panetta appears to have a problem with language. He regrets the cost of his weekly trips home, but he tells us it has to be, that he needs these trips because he “needs time with his family.”

To regret is to feel sorry, disappointed or distressed. That's the literal meaning. But the meaning implies, at least among morally consistent souls, that there will be a change in behavior. ‘I regret my actions and I will change.’

But, while Secretary Panetta says that he is looking for some way to reduce the costs, he also defended the trips saying that “[I]t’s healthy to get out of Washington periodically just to get your mind straight and your perspective straight.”

Now, I am sure that the psychiatrists and psychologists out there have a fancy name for it when someone says he ‘regrets’ a certain type of behavior that he keeps engaging in, and then turns right around and defends it. But from where I sit, there aren’t a lot of options. Either you regret something and you are going to stop it, or you don’t really regret it all that much. So you are going to keep doing it.

(Note, we aren’t talking about those particular events such as war – we can regret going to war, but still feel it is necessary. Nor is this like a bank foreclosing on someone’s mortgage, also regrettable but also sometimes necessary. This is about personal choices and personal behavior.)

In short, if a person truly regretted some sort of personal behavior, behavior that is a matter of clear choice, he would stop it. If he truly regretted this cost, he would stop doing this. But Secretary Panetta, while he ‘regrets’ this, clearly feels entitled to it – he deserves it. Apparently the other people in the DOD or the rest of government who have to be separated from family, who have to work long and stressful hours, they simply aren’t as special as he is. He is entitled to more special treatment then they.

There is a word for that; it’s hubris. And while theologians will tell you that hubris is the intellectual and spiritual foundation of all sin, in politics, hubris is the foundation of all abuses of power.

What the Secretary really regrets is that this has become a subject of discussion. Power has twisted him and in the self-absorbed world of Washington, he clearly feels he deserves this special treatment. He is not in that office to serve the nation, he is in that office because he has agreed to provide the nation with his assistance, as long as the nation recognizes his needs, and those needs supersede other, lesser considerations. Of course, he has done such a ‘superb’ job at Defense; retiring ships and airplanes, cutting troop strength, cutting programs and reducing capabilities, without seriously pushing back against the White House, apparently confident that conservatives in the House, more interested in preserving various DOD capabilities, will defend enough programs that he can do the President’s bidding, remain a committed liberal, and yet boast of having preserved the security of the nation.

This is unseemly behavior, but it does serve to point out what kind of person we have as the Secretary of Defense. The corruption of power is sometimes best observed in how people respond to the little things. No one begrudges the Secretary of Defense his secure vehicles or his military aircraft: he needs them to maintain his control over US forces. But the fact is that the Secretary has come to view these as his ‘due,’ as if somehow his tour as Secretary is different from the rest and that he therefore deserves different – special treatment. In a democracy such behavior is repugnant to the citizenry. We should insist on the Secretary’s removal – not for spending some several hundred thousand dollars, but for thinking himself to be apart, and clearly above, the citizens for whom he works.

What's Fair?

For the record, I think it’s great that the Obamas earn as much as they do. And it’s great that Mr. Buffet earns as much as they do. The question really is not, and should not be how much someone ‘brings home’ every year. That amount is, in fact, determined by all of us. A-Rod makes $30 million every year because millions of people will pay to see him hit a home run (I suppose some pay to see him strike out, but either way it’s still entertainment). We will pay to listen to Adele sing. We also will pay for a good lawyer or a sound financial analyst. So far, simple and straightforward.

But the question that needs to be asked is this: what is a fair tax? To answer that question we really need to ask to other questions: what does it mean for a society to say that something is fair? And the second question is what is the purpose and meaning of a tax?

In this context ‘fair’ means (or seems to mean) unprejudiced and unbiased, hence no preconceived judgments and an absence of preference or partiality. And what is a tax? A tax is nothing more than a fee levied by government to raise money to run government operations. So, a fair tax would be a charge, levied by government, which was impartial and based on no preconceptions.

As it now stands the US government and most of the other governments in the world use some sort of version of what is known as “progressive” taxation. “Progressive” taxation simply means that as your overall income increases (however it is measure for tax purposes) your rate of taxation increases.

The justification for progressive taxation takes several forms. First is the simple observation that for a family that earns $50,000 per year (again, this is the adjusted income), housing costs, food costs and other ‘necessary for survival’ expenses consume most if not all of that income. Since little is left over, it isn’t ‘fair’ to tax them heavily. In the 2011 tax table (for ‘head of a family’) the federal income tax on $50,000 taxable income is $7,274 (a rate of 14.548%). For a family that earns $150,000 per year, the argument is that there is more remaining at the end of the year after all the various expenses, and the tax rate goes up, and the federal income tax is $33,185.50 (a rate of 22.12%).

If it were that simple, we could probably stop right here. But it isn’t that simple. First, we need to answer the question of what constitutes income. As it turns out, that really is what the tax code does. And the tax code is – literally - thousands of pages long. A hyperlink to the US Tax Code shows it to be 24 megabytes, 3.4 millions words long, but this is not everything – all the regulations, rulings, etc., just the law itself. For an exercise in frustration, go to the Government Printing Office website and browse through all that comes up when you search for Tax Code. (http://www.gpo.gov/ ) What all those pages do is explain and outline deductions and exemptions and exceptions. There are the obvious: children and other dependents, mortgage payments, etc. But, in a very real sense, all the thousands of pages of the tax code and the accompanying rules and regulations are efforts to identify and explain thousands and thousands and thousands of exceptions to the rules. And just to be crystal clear, deductions and exceptions are also called ‘loopholes.’

So, who uses those rules (exceptions, deductions, loopholes)? Well, everyone does. President Obama does; that’s why he only paid $162,074 in taxes on an adjusted income of $789,674. If you go to the tax table (http://www.irs.gov/pub/irs-pdf/i1040tt.pdf ) you will find that the tax on an income of $789,674 is $250,320.90 . That would be a tax rate of 31.7%. Where do these exemptions and exceptions and deductions come from? From Congress, which continually adjusts the law based on inputs from all sorts of people who petition Congress to adjust the law so that it is ‘more fair.’ Petitioning Congress is what lobbyists do. So, we are back to lobbyists. And since all but a few of the thousands and thousands of deductions are only used by perhaps a few million people, these deductions are for distinct minorities, such as owners of family farms, or small businessmen or any of seemingly countless other groups.

In short, every one of these groups is getting special treatment by the government. And who pays for that special treatment? Well, the rest of us do. We subsidize their special treatment. In short, it seems that everyone is getting some sort of ‘special’ deal, we all have our own ‘loophole’ that lets us avoid paying some taxes, and all of us are therefore both subsidizing someone else and in turn being subsidized. Confusing isn’t it?

We’re not done yet.

There is also the issue of who gets the most from government. One of the questions that comes up from time to time is the question of whether someone – say Warren Buffet – benefits more from government then the rest of us. It’s a good question. The basic argument is this: if Warren Buffet has (2010 income, per Forbes Magazine) adjusted gross income of $62,855,038, isn’t he receiving substantially more benefits from the government then the rest of us? In this case, the ‘benefits’ in question are not specific entitlements, but rather that the benefits that he receives from the society as a whole, and the various effects of government. This argument is based on the concept that without the order and legal and economic framework provided by government, he would not be able to generate the income that he is generating.

There is one major problem with this concept: it suggests that his wealth (or anyone else’s wealth) in some way derives from the government, and that the government has primacy. In fact, the central point of the Constitution is that the people – the citizenry – have primacy, and the government’s assigned role is to create and maintain a ‘foundation,’ an ‘infrastructure’ which all can access equally, but after that it is up to the individual. Certainly, we can’t argue that Warren Buffet receives more police protection then anyone else, or more fire department protection. The US Army doesn’t protect him more than it does me, the Department of Education does not provide for him more than me. In fact, in as much as he pays 40 times as much taxes as do I, yet receives the same services at the federal, state and local level, one might argue that he is getting the short end of the stick. When you consider too that his money, when put back into the economy, either simply by way of deposit in a bank, or in a more aggressive and complex manner such as the direct investment in a business, results in both more jobs (at least one for every $100,000), as well as additional tax revenue from the income created by these second order economic actions. In short, Warren Buffet’s millions create more millions, and more tax revenue. So, charging him more because someone says he ‘gets more from the economy’ is really sort of foolish, isn’t it? (For the record, Buffet’s taxable income for 2010 was $39,814,784 and his federal income tax was $6,923,494.)

Finally, add on that there are dozens of different kinds of taxes: income taxes, sales taxes, inheritance (also called estate) taxes, excise taxes, capital gains taxes, and many, many more. And, then there are the taxes that you can’t really see. For example, not only are there federal and state taxes on gasoline (for example), there are also the federal and state taxes on the income of the oil company. And taxes on the company that owns the pipeline, the company that owns the truck, etc., etc. All of those payments – obviously – come out of the total revenue from gasoline sales – paid by the consumer. Which means that everyone, even those folks that the federal government says don’t need to pay taxes because they aren’t making enough money – the federal government IS making them pay taxes. It’s just being sneaky about it.

So, where does all this leave us? My mom and dad would probably remind me at this point that life isn’t fair, and I agree – it’s not. But, they would both agree that taxes need to be massively simplified. But before we talk about how taxes might be simplified (in a follow-on article), we really need to answer two final and fundamental questions: Why are there so called progressive tax rates in the first place? And do the benefits to society of ‘progressive tax rates’ more than compensate for any of the costs of such tax rates?

The concept of a progressive income tax is fairly simple: the more money you make, the higher your rate of taxation. \

Is it truly progress to tax people more for earning more? One might argue that, if we wish people to have an incentive to work hard, we – as a government – would reward them for earning more, and the only means the government would have to do such a thing would be to reduce tax rates as you earn more. As it now stands, if you make a certain amount of money and you will pay at a given rate unless of course you qualify for this or that deduction/exception/exemption/loophole, in which case you will pay at a lower rate; but if you earn more that rate will increase. But, and this has been demonstrated time and again by the high and mighty (President Obama and Mr. Buffet for example) that people will go through quite sophisticated gyrations to actually reduce their income and therefore keep their taxes down. Repeat that: people avoid income. Does that really sound like a good policy for any government? “Let’s set up a system under which people will try to avoid increasing their income past a certain level.” That is the unintended consequence of “progressive” taxation.

But certainly there are benefits to society of a progressive tax rate? In fact, progressive tax rates, because the result in skewed economics and often pretzel like twists and turns of logic to avoid taxation, arguably result in less tax revenue then would a simpler tax that was both easier to compute and easier to forecast. Assuming that the point of the taxes – from the government’s perspective – is to raise the most revenue, there has been little to show that progressive tax rates raise the most revenue. What then is the value to society of a progressive tax rate? It would seem that if the value is not to maximize revenue, then the tax scheme must be tailored to provide a non-financial benefit to society. The obvious choice is that a progressive tax scheme conveys to the populace the concept that wealthiest are shouldering the greatest burden. But, if such were the case wouldn’t it be in government’s interest to send the signal that the current tax structure is fair?

Why then is the White House constantly harping about the wealthy not paying their ‘fair share?’ I would recommend you take a look at this article and the chart about half way through the article. ( http://www.financialsamurai.com/2011/04/12/how-much-money-do-the-top-income-earners-make-percent/ ) Two numbers will suffice (numbers for 2010):

The top 1% makes about 20% of the total income in the US; they pay 38% of the income taxes; the top 5% account for 34.7% of all income; they pay 58.72% of all income taxes. And so my question to the President is this: Is that fair? 

Do As I Say, Not As I Do?

My mother always used to tell me that, when in doubt, “do what your father would do.” It has turned out to be sound advice, and I don’t think I can recall one instance that when I did try to do what I believe he would have done that it that it turned out to be the wrong decision. In a similar vein, I have a long list of mentors who have told me that – when in charge – it is how you act, what you do, that is by the far the most important single impetus in moving those who work for you to act in a certain way. You can talk until you are ‘blue in the face’ but it will be your actions more than any other thing that will influence how others really act.

And so we get to the President and his good buddy Warren Buffet, and their apparent mutual despair over the tax code and the President’s tax return.

Let’s just start with one small item: you do not NEED to take deductions. If you want to, you can report the money you made from sale of a stock or a home as regular income. Your choice. Sure, it means you will pay a higher tax rate, but you are free to choose.

And so, the papers are now reporting that the President and Mrs. Obama had 2011 earnings of $789,674 and paid $162,074 in taxes. For the record, that is a tax rate of 20.5%. In case anyone is wondering, in 2010 the President and Mrs. Obama had adjusted gross income of $1,728,096 and paid $453,770 in taxes, for a rate of 26.2%.

We have all heard Warren Buffet’s lament that he is only paying taxes at an effective rate of 20%, a lower rate than his secretary.

So, let me ask this question (not that I expect an answer): Why are they taking all these deductions? In 2010 the President claimed $373,289 in itemized deductions. He didn’t need to. According to high ranking political figures in Washington, there is no reason why he needs all those deductions. And neither he, nor his pal Warren, need avail themselves of those deductions. If you think the deductions are unfair, don’t take them. Is their argument that “Since the deductions are there I should take advantage of them even though I believe that the end result – that I, as a ‘1 per-center’ pay taxes at a rate of only 20% - is fundamentally wrong?” (Everyone will be quick to point out that the President was not a “1 per-center” in 2011. Yes, I know. But he was for the last several years.) The point is this: Is this really the signal the President wants to send? Because that is the signal he is sending.

I know we will never get an answer to such questions, but I really would like to know why I should do as he says, but not as he does.

As for a saner approach on taxes, more tomorrow.

He Ain't Crazy

It has become so commonplace we no longer notice it: someone does something bizarre, usually violent, and we quickly search and find some sign from his past and using some 50 cent buzz-phrase from the behaviorists, we say he’s insane, he’s ‘crazy.’

We have gone so far as to extend this line of reason into the world of politics and economics. Saddam Hussein was crazy, Bernie Madoff lost his mind. The fact is nothing could be further from the truth. Saddam Hussein was not only not crazy, he was one of the most calculating, rational political leaders on the planet. And Bernie Madoff: as with all great thefts, it is normal for everyone on the outside to wonder, even as we are grateful he has been caught, why he didn’t just pull up stakes at one point and head to some country where there is no extradition, and live the high life. He ‘must have been crazy’ to not have left, as if he ‘wanted to be caught.’ If he had not been so consumed by greed that he lost the ability to make a clear decision, he could have disappeared, etc., etc.

The fact is that there are very few people who can function normally, that is, make it form one end of the day to the other on their own, who are truly mad. We often hear people say that Hitler was mad. But the fact is that there are very few cases in all of recorded history where a national leader was truly mad, that, like the Red Queen, he rose from bed, asked for toast, and then yelled ‘Off with their heads.’ If such were the case it would be so much easier, because bad leaders would be easy to spot. But bad leaders aren’t crazy. They may be incompetent, they may even be evil. But most of them are quite rational. And this truth ‘trickles down’ through various government agencies to the lowest level bureaucrats. The people we deal with on any given day are usually very rational, that is, they have clear reasons why they are doing one thing and not another, why they have made a certain decision and not another. And often, those reasons are ‘unknowable’ to us. And they therefore appear at best arbitrary and at worst ‘crazy.’

But they aren’t.

And this is important because we see it in the actions of government agencies all the time. A friend sent me a notice the other day about E-85 gas and the fact that it is really not compatible with most boat engines. What this means for those who like to get in the skiff and head out for a morning of fishing, is that you shouldn’t use E-85 in your engine (of course you can’t buy regular gas very easily anymore in some states) and if you do you will burn more gas per mile and your engine will need more maintenance. That is, more pollution, higher maintenance costs, and more engine wear and tear.

But, you might ask, why would the government let such a thing happen? By insisting on this E-85 usage across much of the nation we have seen corn prices rise, oil use rates remain essentially the same, it has not served to hold down gasoline prices, there is no significant change in carbon footprint (a stated government goal), etc., etc. ‘This makes no sense.’

In fact, if the stated reasons for a decision appear to be unrelated or contradictory to the consequences of that decision, then we should conclude that either the decision-maker was either less than competent on the one hand or less than honest about the reasons for the decision on the other.

As an example, the consequences of the decision to promote E-85 has mainly been seen in higher corn prices – a de facto subsidy of corn farmers - with no substantive change in imports of oil, prices of gasoline, etc. (There have been fluctuations in imports, prices, etc., but none can be traced back to the E-85 decision with any credibility.) What was the aim of the politicians who made the decision to push E-85 usage? My own suspicion is that their sole goal was to ‘do something’ and thereby assuage their constituents who were frustrated at the lack of action out of Washington. So, they took action. Was it poorly thought out? Yes. And from their perspective, So What? The common objective was to do ‘something.’ And further, this ‘something’ would also mean money flowing into US farms, which is almost the Holy Grail in Washington. Objective met. Those few who actually wanted to achieve something else – reduction in US imports for example – found themselves arguing for complex, long-term solutions. Meanwhile, the bulk of the folks in Washington, to include the press, had a ‘something’ they could support right now. All rational decisions.

But if that is the case, why do they still support this action? There is the obvious rationale that no one likes to be seen to have made a mistake. So there will be real resistance to changing the decision simply because to do so means they lose credibility, at least in their own minds. (That there are people out in ‘Middle America’ who would welcome the idea that some politician or senior bureaucrat stood up and said ‘We tried XXX and it was a bad idea and now we are stopping’ is lost on those in Washington, that is, it is outside their normal intellectual ‘scan.’) But, at the same time we have to assume that the continued stressing of E-85 even after it has been shown to force an increased consumption of oil (increased energy used to make fertilizer, grow the corn, process it and move it) means that someone somewhere sees it as being in his interest to continue the program. What those reasons are I can guess at, but it would be just a guess. But, at the same time, I am absolutely certain there are reasons for it, and they have nothing at all to do with desires to control oil imports, clean up the environment or any other ‘social good.’

The point here is simply this: there is a reason for nearly every decision made by anyone in government. Very few of those decisions are transparent. In business we at least know that when Exxon or Apple does something it is simply motivated: they want to increase profits. The motivations are clear, and the decisions have an inherent rationale. But while the decisions that are made in governments are always publicly backed up by a wide range of justifications, the fact that the consequences of the decisions increasingly do not match the stated intentions must lead us to question true motivations. The decision-makers may be less than capable leaders – making poor decisions even when presented with the right information; incompetent – unable to recognize that they do not have the right information to make the correct decision; or deceptive – making a decision for reasons other than the ones they have publicly enunciated. There isn’t room for much more.

Let's Focus

Well, it’s not yet April 15th and the ballot for November is fairly close to being set. (It’s probably worth a comment that just a few weeks ago there was quite a collection of folks in the media running around in high dudgeon disclaiming that the Republican selection process was doomed. Never mind that in 2008 the Democrats didn’t finalize the selection of their candidate until June. So much for ‘experts.’) The question we now ask – or should ask – is this: what should the candidates debate as they try to lead us all to the ballot box?

It is always tempting for candidates, particularly presidential candidates, to try and have an answer about everything, for everyone. Some candidates have become quite famous for trying to be all things to all people and the list of ‘too glib by half’ candidates who always have a smooth and polished – and inevitably pointless – answer for any and every question is too long to contemplate. I would like to suggest for Governor Romney that he take a different tack on things.

The nation is now faced with a situation that arguably it has never faced. We as a nation have faced existential threats several times. Obviously we faced such a threat during the Revolution – but as there was no President, so also there was no national election that might debate that threat. During the War of 1812, which began 200 years ago this June 18th, the young United States found itself at war with England again, and woefully unprepared. At several points in the struggle we could have lost and lost catastrophically. During the Civil War we again faced the potential of the literal catastrophic failure of the nation. Twice Lincoln led the nation through a debate that touched on our very existence. Twice Lincoln focused that debate on the central issue of the war: the survival of the Union and the right of the federal government to limit (1860) or eliminate (1864) slavery. Other issues, while important, really had no bearing on the political debate.

We again faced an existential threat in 1940 and 1944 (and FDR managed a remarkable political juggling act in 1940 in both beginning the large-scale rearmament and the re-supply of England while ostensibly maintaining neutrality.) Throughout the Cold War we again faced a literal threat to our existence. One Presidential candidate after another focused on how best to preserve the nation: and while some candidates (and Presidents) were not quite as committed to facing the risk from the Soviet Union as we others, every candidate recognized that there was a hierarchy of issues and that some trumped others. In all of these elections the candidates focused on the key issues, they did not let the themes fall out of the limelight, nor did they let other issues mask the real decision-point.

But, since the collapse of the Soviet Union we have had a more difficult time, not simply in focusing on the central issues, but in identifying them. Even in 2004, just 3 years after the attacks of September 11th, there was already a crowding of issues, and the apparent existential threat that we all felt immediately after those attacks had faded. Terrorism represented a threat, but not one that might literally destroy the nation. Arguably, terrorism never posed a threat on the scale of those faced during the Cold War. Certainly terrorist attacks were (and are) more immediate and have a higher likelihood of occurring, but the effects were (and are) clearly more limited. And so, other issues have risen to be debated by our candidates. In fact, by 2008 it seemed that there were no concrete issues, rather the central debate devolved into ‘let’s do something different.’

All that has changed. Problems that were first identified years ago have festered and grown so severe that they truly do represent a long-term threat to our very national existence. Our level of debt threatens a general economic collapse that could destroy the nation as a political and economic entity. Our entitlement programs and the growing span of government involvement and overreach into day-to-day economic and individual activities threaten to change the very nature of our national culture. And the flow of power from town to state, and state to federal government, and the growing alienation of our politicians from our citizens threaten to undermine our concept of a government of, by and for the people.

Yet the incremental nature of this threat, the fact that collapse is ‘far off,’ means it can be ignored by some, and provided lip service by many others. We have candidates who seek to debate every single possible issue, and a President who seems to want to turn every high-profile incident across this nation into an opportunity to score points in the mainstream media, blame an administration that has been out of office for 39 months, while unwilling to address controlling the growth of government or the proliferation of regulations or to stem the tide of the unfettered spending of government agencies.

Governor Romney’s challenge, and his opportunity, is to tell the nation the nature of the risk it faces, to focus the nation’s attention, and to begin to address these dangers. The challenge of course is exacerbated by the simple fact that the collapse is going to be slow and drawn out over decades. But it is no less real for all that. He must focus the nation on no more than three issues: we must limit the size of government and balance the budget; we must focus the federal government on those few essential tasks that it alone can address and keep it otherwise uninvolved; we must provide for the defense of the nation. When asked about any other subject Romney must respond to the effect: that it an important issue, but it is not as important as our survival, and therefore it must be pushed aside for now.

President Reagan once remarked (I’m paraphrasing): “Show me someone who has 10 or 12 goals and I’ll show you someone with no goals.” No organization, particularly one as big as the federal government, can be managed when it is trying to do 10 things at once. Our nation can only survive if it focuses; I submit that the American people understand that; Governor Romney can now provide that focus.

Judicial Review and Presidential Confusion

I assume the President isn’t well and I hope he feels better soon. I say this because I can find no other ready excuse for his confusion on two fundamentally different concepts: Judicial Review and Judicial Activism.

The Free Dictionary (online) defines ‘Judicial Review’ as: review by a court of law of actions of a government official or entity or of some other legally appointed person or body or the review by an appellate court of the decision of a trial court.

The concept of judicial review well predates the founding of our country, and the founding fathers were fairly clear (or so it would seem) in outlining their views as to the role of the judiciary vis-à-vis the law. The basic tenets are defined in Article III of the Constitution (areas in bold by me):

Article III.

Section. 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another state--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Article IV establishes order of precedence:

Article. VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

As was explained in the Federalist Papers (written by a number of our founding fathers to convince the states to adopt the proposed Constitution, Alexander Hamilton argued that federal courts could declare laws unconstitutional. This would protect the citizens against both abuse of power by Congress, and also prevent tyranny of the majority – the central political-philosophical tenet behind the Bill of Rights). In the Federalist Papers Hamilton wrote (all from Federalist 78):

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

…that the prior act of a superior, ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former.

If then the courts of justice are to be considered as the bulwarks of a limited Constitution, against legislative encroachments,…

The case for Judicial Review was established in Court by Chief Justice Marshall, who served as Chief Justice from 1801 to 1835. Chief Justice Marshall stated:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

All of this is in contrast to Judicial Activism, which the same ‘Free Dictionary’ defines as

Judicial Activism: an interpretation of the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court)

Chief Justice Marshal also provided clarity in this regard:

To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; — is to repeat what has been already said more at large, and is all that can be necessary.

Now, the President is a Constitutional Scholar, so he is well aware of all this. Thus it is a bit mystifying that the President, just yesterday, cautioned the Supreme Court against judicial activism in upcoming decisions, and according to some observers went so far as to subtly threaten the Court. The difference between review and activism is clear. The separation of powers is clear. The President has sworn to uphold the Constitution.

Of course, the President knows all this. He is, after all, a Constitutional scholar. And so, I assume he must not be feeling well, else he would never have said something so completely wrong on so many levels.

For the record, according to Wikipedia, as of 2010 the Supreme Court has held as un-Constitutional some 163 acts of Congress.

Justice vs. the Law

When a boy dies in a shooting it is tragic. That Trayvon Martin’s death is terribly sad is given, and there is no one in the country who doesn’t wish that somehow it could be undone. It is not for the President to assert some sense of relations with the boy; it is for all of us. As John Donne observed, “Ask not for whom the bell tolls, it tolls for thee,” and in a real sense it is a personal loss for all of us.

At the same time there are calls for ‘Justice.’ And that is to be anticipated from his family. Families, caught up in the emotion that accompanies such a tragic event will call for justice. But for everyone else we should, we must resist that concept. That of course, sounds wrong. Why should be not seek justice? But, as Justice O.W. Holmes said, in reproving Judge Learned Hand, who had called on Holmes to “Do Justice:” “That is not my job. It is my job to apply the law.”

The courts must determine what happens to Mr. Zimmerman according to the law, as it is written. The court must ascertain the facts and then apply the law. If the people do not feel, after the facts are reviewed and the law is applied, that justice has been done, then the Congress and the President can – as Justice Holmes noted – seek to change the law and more closely approximate moral justice with the law. But our requirement now must be to let our system work and see how the law plays out.

As for those who are now calling for changes in the law, prior to the finding of facts, it would be best to remember some other words from John Adams, who uttered them while engaged in defending some wildly unpopular individuals from charges of murder, to wit his defense of the British soldiers following the Boston Massacre:

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”

We are indeed a nation of laws, not men. Let the legal system conduct an investigation and let us see how the situation is resolved. Then, following the precepts of the law, if the facts and the results are deemed insufficient for future purposes, we can calmly and intelligently pursue the changing of the law. But no good comes of circumventing the law or of trying to change the law to address our sensibilities while in the throes of passion.