Friday, October 11, 2013

School is ALWAYS in session.

Here's a recent headline from the New York Times:


In the article, Richard H. Thaler points out that 2 out of 3 adult Americans (over 50 years of age) could not correctly answer three simple questions dealing with interest, inflation, and diversification (and believe me, they're simple questions. Click through the headline and try them out).

He goes on to discuss how these issues may be addressed, with a lot of time spent on what is taught in high school.

That may be useful. I surely think that if more students understood finances, fewer would saddle themselves with onerous student debt to get a college degree that is of dubious value in their actual lives. And if more employers understood that lack of value, they would be insisting on hiring people who were gullible enough to do it. But that's another rant...

I'm a big fan of "just in time" education. When you know you're soon to face an important decision, you educate yourself on it. You have enough prior education to understand the basics, and hone yourself on the details when they matter. This has the benefit of keeping the education fresh in your mind. For another, things change. Options change. At 50+ years old it's just irresponsible to try to make life decisions based on the state of the world as you knew it in high school, more than 32 years ago.  It's ridiculous to expect people to do that. It's naive (at best) to pretend that you're preparing them for that.

If you're a teacher reading this, know that the ONE thing that you can do to most prepare your students for the future... any students, at any level, in any class... is to encourage in them a desire for continuing education.  They must be told over and over and over again that this is the most important thing they must learn in formal school. It's more important than getting the best grades; it's more important than going to college.

In my profession, technology consulting, you have to basically retrain yourself every three (3) years. It used to be five, but the pace has picked up a bit. This means that by the time you become a senior consultant, the things you learned in college are obsolete. You can build on them and use them as a foundation, but your entire focus will have changed. By the time you're managing it will have changed several times. And there is nothing that you learned then that you could not have otherwise picked up.

The point here isn't that college is unnecessary... it gives you a leg up if you can afford it, and places you under the tutelage of people who are willing to focus their attention on teaching you... but that continuing education is VASTLY MORE IMPORTANT. If when you leave school you think it's "over"... then it is. You will most probably fail. But if you are willing to continue to learn, you will succeed, regardless of your level of formal education.

I have a huge library acquired over the years. This is not an exaggeration: the weight of my books exceeds the weight of my other personal possessions combined. I acquired them over a period of many years, and I've read (almost) all of them. It was expensive to acquire and expensive to move from place to place, and worth every single solitary penny. These days we're so much more fortunate to have the Internet. We as individuals have access to the combined intellectual wealth of a PLANET. If you regularly employ it, and you can separate the succulent fruits from the pile of crap they grow in, and approach the information you find not as dogma but as topics to be considered and weighed, then you will have an education worth diamonds. And you get it for free.

You even have access to college courses through sites like Coursera, Open Culture, and MIT Open Courseware. Search Google for more... you'll be surprised.

Now sometimes you need to get a certification or a degree in order to pursue the career you want. Perfect! Do it! That's a prime example of targeted education for a tangible result. But here's the VERY most important thing. If you take absolutely NOTHING else from what I'm telling you, believe this... it's true 99.999% of the time: It doesn't matter what you get credit for... it matters what you KNOW. Your self-improvement is for your benefit. Don't waste a bunch of time seeking the validation of others when it is not important to do so. Learn for its own sake. School is ALWAYS in session.


Let's jog your memory some more

Every single time someone -- particularly the President of these United States -- tells you how the Affordable Care Act was passed by a majority, and that a small minority is  opposing it, I want you to remember how the bill was actually passed into law.

As I reminded folks in a previous post, then-Speaker Nancy Pelosi advised the Public that "we have to pass the bill so that you can find out what is in it away from the fog of a controversy." I claimed in that post that her statement was a ploy to pass the bill sight unseen so that the voters wouldn't be able to complain before it was too late. Let's back that up with some history, shall we?

To what extent did the Democrats go to keep this "sight unseen"?  Well, Republicans weren't even part of the negotiations. Let's let CNN's Jack Cafferty explain it. As you watch this, I want you to keep in mind that Cafferty is a commentator on CNN; and that he's earned distinguished recognition in his career, including the Edward R. Murrow Award, an Emmy award and the New York Associated Press State Broadcasters Award. This is a snapshot in time, from 2010:



Cafferty's closing statement was prophetic.

Do you seriously have any question as to why the Democrats were voted out of power in the House of Representatives at the earliest possible opportunity? Do you seriously have a question as to why the Democrats could not regain power in the election following that? Do you seriously question why the Republicans are so hell-bent on reversing legislation over which they were shut out by ad-hoc tactics that flew in the face of all legislative precedent? Do you seriously wonder why this law has been opposed, not by a minority as the President's wishful thinking would have it, but by the Republican majority in the House of Representatives?

If you're a Democrat in Congress and you still question the why's of this situation, then you have a problem with your memory, you have a problem with your grasp of history, and you need to wake up to the realization that this is it the situation that you caused. You made this bed. It's your fault.

Yes, everyone gets their share. But I'm sick to death of the Democrats' pretense of lily-white innocence. It's a blatant, deliberate, premeditated lie formulated by the Democratic leaders who are now acting like their stubborn equine mascot, and repeated knowingly by their media minions. They know better than anyone that Republican intransigence isn't the cause of an unfair and warped legislative process, it's the result. What? You didn't think the voters would notice?

Tuesday, October 08, 2013

Who Watches the Watchmen?


"When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated." 
 --Thomas Jefferson to Charles Hammond, 1821
If I were influential enough to amend the US Constitution, it would be to establish additional checks and balances to prevent the Federal government from encroaching on the powers of the individual states. As it stands the 10th Amendment reserves to the States those powers that are not enumerated in the Constitution, but there is no mechanism for enforcement. As a result, the Constitution, while it has "checks and balances" to correct abuses committed by any particular branch ... Executive, Legslative, Judicial... it does not prevent collusion between those branches.

The passage of the Affordable Care Act is one such collusion, where the Supreme Court re-interpreted the plain language of the law specifically to save it from being struck down under the Commerce Clause. Other examples include the education, energy, and housing. The Constitution grants the Federal government dominion over none of those things. It is only through ignoring the 10th Amendment that they exist at all. Their functions are properly left to to the States, and to the People.

It really doesn't matter how "nice" something would be to have, nor whether I would personally agree with it, nor whether I would personally profit from it, nor whether it would be more efficiently run by a central "authority"; if it is not an enumerated power of the Federal Government, then we should provide it by other means or amend the Constitution to provide it. Having two perfectly reasonable courses of action, there's no amenable justification to ignore the Constitution. This simply leads to further usurpation. Yes, it's a slippery slope argument, but a valid one, as we have actually seen it at work. Once we allow that the Constitution may be ignored, then it is ignored on more and more issues, and the law becomes subject to whim and abuse.

However, the only redress of Federal abuses come within Federal courts, which don't exactly have a spotless track record.
Neither the Constitution, nor the rule of law can long endure the blight of a misinformed public. As friends of liberty, our eternally vigilant task must be an educational one. The people must ever remember the words of the founders, the wisdom of economists, and the lessons of history. Let us endeavor to turn back the regulatory lords in Washington, the twentieth-century pretenders to our property.



Monday, October 07, 2013

Ranting Part 2: Health Care vs. Auto Care

OK, I've got just a minor dilemma. Unless someone's a public figure I don't usually like posting direct quotes, etc. Sometimes it's necessary, though, to prevent the charge of twisting statements that would result from paraphrasing. So I'm going to do it today, with the understanding that I'm not naming anyone. He's free to self-identify in comments.

And when I say "a friend", I really do mean that. Despite the fact that we sometimes trade barbed language and disagree on political methods, I know him to be a genuinely good, charitable person. I believe he knows the same about me, as he has assisted me with one of the children's charities I work with.

In a response to my last post, a friend included the statement, "I also suspect that you understand why mandatory health coverage is no different than mandatory auto insurance for all drivers." Now, while I'm not an insurance specialist, I am a former part-owner of a medical information systems company, for which I personally wrote the software, a vital part of which was the filing of insurance claims to both government and private healthcare insurers. Our office was a functioning general practitioner's office, and my primary business partner was a practicing GP. I was the project manager in charge of HIPAA compliance for RBC Liberty Insurance, and personally oversaw that compliance project on behalf of RBC Liberty and their customers, Allstate and Pacific Life. I spent seven years working on various IT insurance-related projects for United Guaranty, a mortgage insurance subsidiary of AIG. I'm not a stranger to insurance concepts, be they for government Medicare, Medicaid, or private companies, or be they for medical or non-medical insurance.

While my specialty is IT, not insurance, I do have a dozen years of direct industry experience conceiving, creating, managing, and supervising projects directly related to various forms of insurance. So I believe I understand numerous reasons why mandatory auto insurance and mandatory healthcare insurance are not alike despite both being insurance:

AUTO INSURANCE HEALTHCARE INSURANCE
Auto insurance is not mandatory. One can choose not to drive and thus avoid buying it. Healthcare insurance under Obamacare is mandatory. The only way one can "choose" not to buy it is to choose not to live... suicide.
Auto insurance is required when you engage in risky behavior... driving;  Healthcare insurance is required for the mere fact of your existence. To the extent that it is a tax, it is a tax on life itself.
Your auto insurance company bases your premiums on risk factors. Not your income.  Healthcare costs are subsidized, and risk pools are broadened, resulting in actual costs based on income. 
Auto insurance is required for anyone who drives.  Obamacare is limited to citizens. Now, it is true that non-citizens may buy health insurance, but it is not mandatory for them to do so, and we're only talking about "mandatory health coverage."
Penalties for lack of auto insurance are not collected by the IRS Penalties for the lack of Healthcare insurance are collected by the IRS. As such your insurance status is reported to the IRS.
Auto insurance is not Federally imposed. This would violate the Commerce Clause of the US Constitution. Healthcare insurance IS Federally imposed. It DOES violate the Commerce Clause of the US Constitution... or would have if the Supreme Court had not declared its penalties to be taxes. This is not my conclusion... the Supreme Court states it outright in the same decision.
The laws mandating auto insurance do not originate in the Senate of the United States, and thus do not violate the Origination Clause of the US Constitution. The law mandating healthcare insurance legislation does originate in the Senate of the United States, thus violating the Origination Clause of the US Constitution. (this is being debated in court)
Auto insurance does not pay out for routine auto maintenance. Mandatory health insurance is actually a prepayment plan that does pay out for routine maintenance.

These should be sufficient differences to illustrate that these are not "no different", at least not from a standpoint of risk, payment, coverage, or imposition. They're not necessarily ways in which one is better or worse, but different.

Of these, I am concerned about constitutionality and the imposition on our liberties. For all that use of the word "mandatory," auto insurance isn't actually mandatory. You can choose not to drive. In urban locations that can be an advantage, not an imposition. For instance, I can't imagine the need for a car in Manhattan.

Nevertheless, my friend insisted, "Certainly there are differences, after all we are talking about driving versus living, but choosing to not have health insurance is not the same as choosing to not drive." Other than the blatantly obvious admission of differences between policies that supposedly have no differences, do you see the logical mistake? He's not comparing the insurance to the insurance, or the reason to the reason; rather, he's comparing the insurance on the one hand to the reason for it on the other. It's a bit mixed up, but you have to do that so that the logic will take you to a predisposed conclusion.

So, regarding the mandatory aspect of the insurance. I invited my friend to pretend it's math... eliminate the common denominator: insurance. Now you can make a fair comparison between living and driving. You can choose not to drive. You'll be inconvenienced to varying degree depending on your location. But choose not to live. and you're just dead. That's why Obamacare fails the Commerce Clause and auto insurance doesn't.

So now we're up to speed, and here's the response that got me to write this post:

========================================
I will accept your premise IF living doesn't require any medical care at all. This is one of the hypocritical about "pro-life" libertarians. If mothers and babies (and children) require medical care and are uninsured, who pays for it? Should uninsured folks not be admitted to the ER? Should uninsured mothers get no pre-natal or post-natal care? Show me the person who NEVER requires medical attention and I will agree with you, but otherwise there is no difference between mandatory auto insurance and mandatory health insurance. 
Think of it this way. Why do states require auto insurance for drivers? Because drivers might get into an accident and burden taxpayers for the cost of the accident. Why might the same person require medical insurance? Well, if you get into an auto accident, it's very likely that she may require medical attention. Furthermore, she might get cancer or get hit by random space junk. Whereas a non-driver WILL NOT get into a car accident (at least as the driver), there are no guarantees that she may not get sick, and then we ALL pay. Unless you're one of the libertarians who think we should leave uninsured people to die on the side of the highway, but that hardly seems sanitary or humane. . .
===========================

There are so much wrong here that I'm just going to have to go pick it apart, so please bear with me.
I will accept your premise IF living doesn't require any medical care at all.
Medical care is not the same as medical insurance, and medical insurance is not the same as affordable healthcare. For instance, if I go to the doctor and either pay him outright, or set up a payment plan with him, as I have done repeatedly, then there is no argument for insurance. The doctor was paid. No burden on Society. Furthermore, most medical care is self-care, involving over-the-counter medications, bandages, ointments and supplements. Barring "any medical care at all" simply ignores the fact that a great deal of medicine need have nothing to do with insurance.
This is one of the hypocritical about "pro-life" libertarians.
Really? Hypocritical? Libertarians believe that your liberties, including your right to life not be taken from you by force. Your right to Life is yours, as is your right to do what you want with your own Life: how to live it, how to maintain it, how to end it. I think it's completely consistent.

Those Leftists who would use the "right to choose" as an excuse to forcibly deprive another human being of Life are the glaring hypocrites in the room. They invoke "it's my body" only when convenient to their pre-packaged agenda, discarding the concept entirely when inconvenient. It's provably not your DNA... not your body. If you "follow the science" and you allow that this is another person, then as Barack Obama noted, that person would have rights. So it's very important to the ideology to maintain the conceit that it's "your body". But when the topic really is your body and you don't mind being fat or it's your body and you want to determine for yourself how to maintain it, then suddenly it's the world's business and you don't get much say in it. Hypocrisy? I wasn't pro-Life until I stopped being a hypocrite.
If mothers and babies (and children) require medical care and are uninsured, who pays for it?
This presumes that the ONLY means of payment for medical services is insurance. It implies a false dichotomy: either some insurance company pays for it, or it doesn't get paid. This is factually incorrect. He is actually talking about the poor.  Who pays the costs for poor people? Certainly not "everybody" because a lot of them are poor, too. Unless you make everybody buy insurance and thus spread the costs into the middle class and poor, then rich people pay the costs, as usual. The appropriate question is how?
Should uninsured folks not be admitted to the ER?
Uninsured people have been required to be admitted to emergency rooms since 1986 with a very few exceptions for specific specialty hospitals. Any American reading this can go to their ER and look at the wall near the entrance. It will contain a poster with the bold title "IT'S THE LAW" and in my area is accompanied by a similar poster in Spanish: "ES LA LEY". ERs are required to treat patients irrespective of their ability to pay. However, emergency rooms are exactly that; they provide emergency care only. So take care not to ask this question when you really want to know about office visits.
Should uninsured mothers get no pre-natal or post-natal care?
Of course they should. Healthcare should be affordable and available to all. But this still does not require insurance. It requires affordable healthcare, which is the one thing the "Affordable Healthcare Act" doesn't give us. Again we have the false dichotomy that you must either get your care through insurance or you don't get it at all.
Show me the person who NEVER requires medical attention and I will agree with you, but otherwise there is no difference between mandatory auto insurance and mandatory health insurance.
There is nothing in my friend's philosophy, thus far stated, that admits to solutions that involve anything but universal payment brokered by means of a prepay insurance plan, excluding whatever token co-pays may be allowed. And that includes your fiscal responsibility for someone else getting struck by "random space junk." The way insurance works is that people who don't use it pay premiums that are used to pay off the bets of the people who do. And if I prefer that people can decide whether to exercise personal sovereignty over their own bodies, then I must be in favor of leaving people to die on the highway. However, if I agree to these faulty premises and if I am sufficiently cowed by hypothetical character assassination to abandon logic in my desire to avoid being labeled, then I perceive he will be agreeable with me.

It's a comforting offer... but I'll pass. You see, his biggest fallacy has been his assumption that I'm interested in gaining his agreement. I could do that in a skinny minute by simply saying what I know he already agrees with. Rather, these are opportunities to make the case to OTHER people... the onlookers. He's not my audience; YOU are.

So having gotten past that let's get serious. I'm going to do that in the next post, because I really don't want the issues of the nature of insurance and coverage for the impoverished buried at the end of this long response.

Sunday, October 06, 2013

Why They're Blocking Off Monuments

After hearing about such puzzling government actions as blocking off open-air monuments and trying to close the Bay of Florida; I, like a lot of citizens, found myself wondering what train of thought led them to that. After all, these monuments and properties are Public property. They belong to all citizens of the United States. We have no monarch, so they do not belong to "the Crown", nor does "the Government" own them apart from the People.

This is even more puzzling in the situation of a partial government "shutdown", since the conceit here is that the government doesn't have the money to manage people; so how could it have the money to post more people to block access? I assumed, like many, that the President ordered these closings. I assumed that such an order must come from the Office of the President, but I don't like assuming. I wanted to find out.

Fortunately, not every office is closed. The Office of the President is one of those functions that is exempt from this sort of thing. So the Whitehouse.gov website is still up and running. If you visit you'll find that though it's exempt they put up a gimpy message like many non-exempt agencies.

This is sitting on the website, under the Office of Management and Budget (OMB):


The link is to a PDF file. Don't worry, it's not hacking and not infringement... it's a public document. Though documents can be classified, government documents are in the public domain.

This memorandum from the White House OMB was published Sept 17, 2013 (a couple of weeks before the partial government shutdown). It links to a circular (OMB Circular A-11 [PDF] ), a booklet called Guidance for Shutdown Furloughs from the Office of Personnel Management [PDF]. OMB Circular A-11 links to an opinion from the Justice Department dated 1995.

This document explains why we're seeing that gimpy message on government websites that could function perfectly normally during the shutdown. But it's Question 5 on page 14 of the memo that piqued my interest.
Q5. What if the cost of shutting down a website exceeds the cost of maintaining services? 
A5. The determination of which services continue during an appropriations lapse is not affected by whether the costs of shutdown exceed the costs of maintaining services.
OK, so they don't care if it cost more to shutdown or not, but this doesn't say who decided to keep things open and where the money's coming from. More reading...

According to OMB Circular A-11:
"Each agency head must determine the specific actions that will be taken; however, all your actions must contribute to an orderly shutdown of the agency and give primary consideration to protecting life and safeguarding Government property and records."
According to the OMB memorandum:
"There are very limited circumstances under which such work may continue, notwithstanding the lapse in appropriations..."
under which is listed:
"1. An "orderly shutdown" when there has been a lapse in appropriations,"
Taken together, this would appear to me to mean that if some agency yahoo decides that paying cops to cordon off and guard monuments is part of an "orderly shutdown" because it is "safeguarding Government property", he can do that, and still incur the obligation to pay, though according to the memos he can't "disburse the funds" (write the check).

HOWEVER, the memorandum goes on to say,
"OMB Circular A-ll requires agencies to provide OMB with written justification for the conduct of orderly shutdown activities in excess of a half-day"
So while this isn't a smoking gun, according to the White House's published documents, it looks like the authorization for those ridiculous closing had to come from the White House. As to whether the idea came from the White House, that doesn't really matter. by authorizing it and being in charge, they own the idea. It also doesn't mean that the President personally made that decision; Sylvia M. Burwell issued the memo. However we can assume the President is briefed daily, and has access to the media like everyone else. If he didn't order it, he knows about it, and again, he's in charge of the directives that comes out of that building. It's one of those things that comes with being the boss.

As to the motivation... that's speculation. But we already know from the sequestration that the Administration wants people to feel the pain. I'm convinced they're deliberately making the closings as artificially inconvenient as they possibly can. Like a theme park closing for the Winter, they want to lock the gates and exclude the People.


Saturday, October 05, 2013

Is this a rant? I can't tell anymore.

I promised someone that I'd explain why the House Republicans' actions regarding the current partial government shutdown are not as arbitrary as they may appear in the media. I'm spending particular attention to the conservative point of view, because that's what we're talking about. The explanation is for those Leftists with the patience to listen. It is deliberately one side's point-of-view.

In our discussion we'll need to look at the players and notice who they are. This is important. We'll also look at the fact that their issue is the Affordable Care Act (ACA). Also important.

This will be long, and it will not have many pictures. Sorry.

For reference:
     Here's the Affordable Care Act (PDF 906 pages)
     And the Reconciliation Act (PDF 55 pages)


Now let's study some history.

Wikipedia summarizes the legislative history of the ACA in more detail, and I invite you to read more there. Here are some highlight relevant to our discussion:

You already know the ACA is a huge overhaul to our healthcare insurance system, and everything that touches it. It has from the very beginning been controversial, with Leftist proponents declaring that universal healthcare is a "right", and Conservatives opposing the law on grounds that it violates personal liberties and they believe it's both economically unsound and unconstitutional. My purpose here isn't to argue over which side is correct on these matters. But the constitutional argument will be important to motivation. Among the ACA's many features are an "individual mandate", which requires all people to purchase insurance or pay a fine; and an "employer mandate", which requires all employers with more than 50 employees to offer health insurance to their full-time workers or pay a penalty.

In 2009 the House of Representatives passed something called "Affordable Health Care for America Act". This was pretty much ignored and died quietly. Meanwhile, A completely different bill was gutted and replaced in its entirety by the Senate. No fooling... H.R. 3590 was supposed to give tax breaks to military members who were trying to buy or sell a house. It had nothing whatsoever to do with healthcare. Remember this when someone tells you it's "disingenuous" to add amendments to a bill. The Senate took the entire bill.... they threw it away... and they replaced the contents with a massive healthcare proposal that had nothing to do with the original bill.... and they pretended that it originated in the House because they kept the number. The only thing about the bill that originated in the House was its number. A system of exchanges, mandates, fees and penalties was proposed, passed by the Senate, and sent to the House of Representatives for consideration and was sent back to the Senate on its way to the President for a signature.

Whether you like the ACA or hate it, you must concede that it was a big-ass bill. So big that some of the lawmakers who sponsored it never read it. And despite Obama's campaign promise that he would have "the most transparent administration ever," (a matter of some debate) and that all bills would be posted on-line, the public didn't get to read it in advance. We were famously told by then-Speaker Nancy Pelosi that "we have to pass the bill so that you can find out what is in it away from the fog of a controversy."


This caused no little bit of consternation among Conservatives. For one thing, it's completely condescending. For another, it's patently obvious that you have an infinitely better chance of "finding out what is in it away from the fog of a controversy" if you're able to just read the plain text without commentary. It was the lack of transparency that generated that "fog" she was talking about. The only thing "transparent" about it was that her statement was a ploy to pass the bill sight unseen so that the voters wouldn't be able to complain before it was too late.

And to what extent did they go to keep this "sight unseen"?  Well, Republicans weren't even part of the negotiations. Let's let CNN's Jack Cafferty explain it. As you watch this, I want you to keep in mind that Cafferty is a commentator on CNN; and that he's earned distinguished recognition in his career, including the Edward R. Murrow Award, an Emmy award and the New York Associated Press State Broadcasters Award:

Cafferty's closing statement was prophetic. Keep reading.

All this secrecy and shutout tactics worked. The ACA was passed by the House of Representatives (then controlled by the Democratic Party), and was eventually signed into law on March 23, 2010, and we got to see what was in it.

It should be hardly surprising that the Republicans have no love for a plan concerning which they were shut out of the legislative process. Conservatives were even less thrilled to find out that the details of the law that had to be passed to see were somewhat different from the picture painted by its proponents. Among other things, it provided "affordable care" by imposing additional fees on pharmaceutical drugs and medical devices. We found that our costs overall would be significantly different than what we were told, and that in many cases we would NOT get to keep the insurance we have, although we were strenuously and repeatedly told that we were.

Almost immediately, lawsuits were brought to declare the law unconstitutional on multiple grounds. One, the National Federation of Independent Business v. Sebelius, was brought before the Supreme Court.

Now it gets a little dicey. 
      (really? They already gutted and replaced a bill!)
             Really.

From the inception of the ACA, President Obama promised that it wouldn't raise taxes, and the government never once argued that it did raise taxes. Instead, they described a system of fees and penalties. In fact, the majority of the Supreme Court did strike down the part of the law pertaining to Medicaid expansion, and found that the individual mandate ran afoul of the Constitution's Commerce Clause and the Necessary and Proper Clause. Basically, up to now it's not been in the Government's power to make you buy stuff, so you couldn't be penalized for not engaging in commerce. However, having already found that the law could not survive the Commerce Clause, Chief Justice Roberts in the 5-4 majority opinion (PDF) ruled that the fees and penalties were in fact taxation and not fees and penalties at all, even though the law doesn't call them taxes, and the Justice Department itself did not say they were taxes, AND the Court itself ruled that ACA wasn't covered by the Anti-Injunction Act because it contained penalties and not taxes. The end result would be that the inaction that cannot be regulated under the Commerce Clause can be taxed. Bottom line... they can't penalize you for not buying insurance, but they can tax you if you don't, and not tax you if you do. Looks like a penalty, acts like a penalty, spends like a penalty. It IS a penalty in every particular except for the stroke of Justice Roberts' pen. If not for that declaration, which does nothing to change the actual fact of the penalties, it would be unconstitutional.


Again, this ruffles Conservative feathers because it is an astonishing move for a Justice to introduce a meaning into law that is neither in the language of the law, nor argued for by the Justice Department as being in the spirit of the law. This is such a tortured reading of the law that I think it's fair to say that Justice Roberts and the other four Justices just made it up. Conservatives don't like "legislating from the bench", as it's a violation of the Constitutional separation of powers. Nevertheless, that's the ruling we're living with.

But there's another issue which was NOT considered by the Justices.

If the ACA raises taxes, as the Supreme Court has ruled, and it originated in the Senate as it plainly did, then many feel it runs afoul of the Origination Clause because taxation bills must originate in the House of Representatives. Now, the Senators claim that all they did was "amend" H.R. 3590 by taking everything out of it and replacing the entire thing, but that is understandably a highly debatable point.  In other words, there is still an open and legitimate question as to whether the ACA is Constitutional on those grounds.

That question is currently the subject of a lawsuit, Sissel v. HHS (PDF) which is working its way through the circuit courts with the intent to appeal to the Supreme Court.

It is certainly possible to say, "well, it's too late now, we can't strike it down for unconstitutionality because both chambers passed it and the President signed it." It's possible to say, but not possible to get away with without court intervention, because that same reasoning would prevent any law from being declared unconstitutional for any reason. It would be impossible, for instance, to strike down a violation of the First Amendment so long as it passed the House and Senate and had a signature. It would completely invalidate the power of the Supreme Court. This is a plainly ridiculous outcome, so it can't be correct. Therefore the origination claim actually has some legs.

So here we have the law coming into effect in the present, and it's not quite the settled matter of law that the President would have you believe. We'll have more on that claim in a moment, too.

That brings us to today, where the House is trying to have these issues addressed. Meanwhile, the Senate and President resolutely demand the passage of an entire, unmarked, unchanged budget and telling any camera they can find that the House is just being inexplicably obstinate because they're so darned mean. And we will, for just a moment, ignore the spectacle of one co-equal branch of government demanding that another not perform the functions to which it's morally obligated and Constitutionally entitled.


MEANWHILE, THERE WERE ELECTIONS

Remember wayyyy up top where I said we have to look at the people who are making Obamacare an issue in the budget battle? Yes? Well, this isn't the House that passed the ACA, and that's not just a matter of semantics.

On October 1st, the President heralded the start of the ACA, declaiming:
"I know it's strange that one party would make keeping people uninsured the centerpiece of their agenda. But that apparently is what it and, of course, what's stranger still is that shutting down our government doesn't accomplish their stated goal. The Affordable Care Act is a law that passed the House, it passed the Senate, the Supreme Court ruled it constitutional. It was a central issue in last year's election. It is settled. And it is here to stay."
The President is either mistaken or deliberately mis-stating the Republicans' position on several points. I'm unaware of any candidate who ran on a platform of "keeping people uninsured". They would rather fix the economy and get people employed so they can buy insurance -- or not -- as they themselves desire. They ran on a platform of retaining control of your own Life and Liberty, and economic stability.

He's also mistaken in saying that their goal isn't addressed by shutting down the government. What they're addressing is not primarily the funding of Obamacare. Rather, they want the individual mandate delayed (much as the President has already decided not to enforce the Employer Mandate for one year. I'd say he "delayed" it, but he doesn't have the Constitutional power to change the legislation in that fashion. If you hold him to his enumerated powers, he's just basically decided to allow everyone to break the law for a year). In voting to delay or "de-fund" Obamacare, the House is addressing the new taxes that are imposed by that legislation. You remember now that these new taxes are the only reason that the ACA was not struck down in its entirety as being unconstitutional. Taxation is a proper topic to be addressed in a fiscal legislation.

Since the partial shutdown began, a secondary goal has presented itself. The "essential" government functions are still up and running. By shutting down non-essential functions, the freshman Congressmen have found an opportunity to highlight the sheer number of non-essential functions there are, and how little they affect the average American. This is so obvious that the President has had to resort to tactics much as he used in sequestration, to make the shutdown as painful as possible. So on the pretext of having no money, the President has spent additional money for mounted guards and barricades to actively block access to open-air monuments that have never before been blocked during any of the previous 17 "shutdowns". I used to live in Washington DC. In the America I lived in, those monuments were just accessible all the time. You could go there at midnight and walk, even when there were no guards, no attendants, no gift shops. The President is spending more to keep us, the People, away from them than he did when they weren't "shut down". Now he's tried to close Florida Bay. He clearly wants you to feel the effect of cutting out the waste that you wouldn't otherwise feel at all.

Likewise with Harry Reid, Democrat, leader of the Senate. When asked by Dana Bash (a reporter), "But if you can help one child who has cancer, why wouldn’t you do it?" Reid responded, "Why would we want to do that? I have 1,100 people at Nellis Air Force base that are sitting home. They have a few problems of their own. This is — to have someone of your intelligence to suggest such a thing maybe means you’re irresponsible and reckless."  Why indeed would he do that? His entire premise is that all of that big honkin' government is absolutely essential. It must be an all or nothing approach. Nothing can be prioritized. Nothing can be delayed. Irresponsibility and recklessness exchanging their labels with prudence and restraint. Up is down, left is right, black is white, and "non-essential" is "indispensable". A show of compassion would damage his valuable political point.

The President is correct about it being a central issue in last year's election. But we can't stop at that. The ACA was signed into law on March 23rd, 2010, just prior to the November 2010 elections. The Supreme Court ruled on June 18th, 2012, just prior to the November 2012 elections. In both cases, all 535 seats in the House of Representatives up for election. In both cases, the ACA was a central issue and in both cases the Republicans gained or retained control of the House. These majorities were elected after "Obamacare" passed and after the People got a chance to find out what was in it. They were elected after it was clear that there were actual (not potential) cases of employers firing, not hiring, or reducing full-time employees to part-time status to avoid the new taxes. They're the ones who were elected to spank the ones who passed "Obamacare" unread. Ted Cruz (whose filibuster you remember) is one of the freshmen, and he came in with a mandate from his voters. So it's not clear what the President intended to prove by the remarks, except that the voters elected representatives who were opposed to the ACA. This is what they voted for. Both these new lawmakers and their constituents rallied against Obamacare, feeling a bit like the schoolboy who got beat up by one bully so the other one could steal his lunch money. In their view they've got legislation created by an irregular process, sold on the basis of lies, and supported by a ruling that doesn't resemble the law. As stated in the New York Post,  "ObamaCare swiftly is becoming the biggest bait-and-switch in American history."

The President is also mistaken about it being "settled". It is ALWAYS the prerogative of the People to change the laws under which they live. Can you imagine how stupid it would sound if you said that Prohibition could not be overturned because it was "settled"? Or segregation? Well, it sounds every bit as stupid when you say it about any other law.

These stubborn Conservatives were elected on this very platform, and they are carrying out the purpose for which they were elected. Although you may not agree with their position, it is hardly capricious. It's possible that they will lose re-election for the bad ju-ju they're stirring up. It's equally possible that they'll handily win re-election if they stick to their guns. And if they lose, they lose with a clear conscience. This isn't because they're out there to starve babies and murder pensioners, any more than Democrats are out to deliberately ruin the economy and sell our grandchildren into slavery. The Conservatives are doing what they're doing because they honestly believe that "Those who would give up Liberty for safety deserve neither."


WHAT I THINK

As to whether this is "settled" and "here to stay"... that hasn't been settled. I BELIEVE that we will have SOME form of the ACA, either as-is or modified, as I know of no case ever where government entitlements have been initiated and then repealed. The moment people start getting freebies, some portion of them will find it immediately impossible to live without them. It doesn't matter if it's a healthy guy being given a wheelchair. If it's a government wheelchair, publicly funded propaganda will assault his ears. He'll be told how wonderful it is and how lucky he is to have it. Then he'll sit in it and depend upon it and fail to exercise his own legs until they rot and fall off.

But this current back-and-forth. Despite what my most rabid Leftist friends insist, it's part of the process if that's what's necessary to get discussions moving again. "Pass it, then we'll discuss it" is ridiculous. While I do have sympathy for the Federal workers who are affected  I'm not terribly concerned about the long-term consequences of this action because I've seen 17 of these things, and when the dust clears folks go back to work and back-pay is authorized by Congress. After all, why not? They'd have paid it anyway had they just passed a funding resolution. But the posing does cause unnecessary pain for the affected workers in the short term. That said, it's not remotely possible for either of the involved sides to vilify the other for their insensitivity with any semblance of credibility. They are the pot and the kettle.

I'm a bit more concerned that these things are resolved by conference and respectful conversation, and these players will have none of it. Should anyone want to actually get past the impasse, then you have to talk to them. This is what joint committees are for. The Senate is doing no one a favor by refusing to do so.




SOME OTHER PERSONAL THOUGHTS

Sometimes I'm accused of being a Leftist because I'm opposed to such things as criminalized drugs (it's your body, dude) or gay marriage (none of my business) or war (I'm generally against it), or my tolerance for the views of those who disrespect religion (their rights are equal to mine). When I explain my position to Republicans they try to talk me out of it, but typically wind up understanding my position even when they cannot adopt it. We part in respectful disagreement. That's not always the case, but usually. And the farther "Left" a belief is, and the more subjects someone disagrees with them on, the more likely they are to be negative about it.

On this subject, I'm accused, not of being a Conservative... but specifically of being a Republican (spit it, like a Klansman saying the "N" word). I can count on two hands the socialist Democrats I have met who can separate the two concepts. I can count on one hand those who can do so respectfully. By and large, when discussing politics, (and specifically then) I find them far less pleasant to talk to; quicker to stereotype; quicker to judge; quicker to assign negative motives to others; suckers for logical fallacies; and deplorable analogists. I find that if you disagree with one on one subject, he will typically assume that you not only disagree with him on a plethora of other subjects you've never discussed, but that you are the "enemy" because of those beliefs that he has assigned to you without your confirmation or assent, even if you are otherwise friendly on other topics. This is far more likely to be true of males than females. I say all of this only because I know quite a few of them... enough to characterize my own personal experience. And there's a reason I'm doing that now.

On philosophical grounds, I personally am opposed to having my Liberty and freedom of choice taken from me. This act does do that. It exchanges them for safety. There are many other laws that do that as well. Guess what? I'm philosophically opposed to them, too. But I'm practical, and certainly believe in obeying the law of the land. Even then, I'm not nearly naive enough to imagine that those laws cannot be set and repealed by the People who made them. Nor am I conniving or manipulative enough to misrepresent and hide the contents of a law in order to ram it down the throats of an unwilling populace.

When I say I want Liberty, I do not mean that I do not want affordable healthcare. This is one of those logical fallacies the rabid Leftists are prone to... the false dichotomy. They use it so often it's really expected. "If you don't want my piece of environmental legislation, you want polluted rivers!" Jame Carville took it to new heights in the early 90s when he accused Republicans of actually wanting to starve babies. You have Carville to thank for the fact that as a tactic, it became laughably cartoonish, and it still is. In fact, I do want exactly affordable healthcare, not mandatory pre-payment posing as "insurance". I think there are better ways to get it. I also want myself and and others of like mind to have the economic and political empowerment to purchase it or not, as they desire. It is not my intent to tell you what to do or how to do it when you are a grown adult in charge of your own body and your own family. Today that freedom has been stolen from a good number of Americans. Tomorrow it will be more. By virtue of the fact that someone else has a financial interest in your care, you will eventually be told what to eat, what to drink, and how to spend your illusory "free time".

It is also my intent, fervently pursued, to be charitable. I believe that others have a natural tendency to be charitable as well. I believe that if both Democrats and Republicans alike would stop being so all-fired stubborn, and actually look around themselves with an objective eye, they would come to the same conclusion. And I'm talking to you now. You ALL believe yourselves to be charitable. The problem is, you think everyone ELSE is selfish. Imagine that... every single INDIVIDUAL one of you is charitable, but everyone ELSE is selfish. You've been taught that other people are self-centered, so they must be forced to do what is right. You're taught that the Government will enforce what those horrible people won't do for themselves. Sure... you know better, but they're idiots. Of course, it's not taught in those words, but that's the lesson. And if you elect some government overseer, then you've done your part! Kayn Aynhoreh! The skies will clear, the seas will part! All will be well! And you can truly join the ranks of the selfish without remorse because you're a taxpayer and you're entitled. And you've been lied to by your idols, and you're a chump.

Because you can't be the only one and part of a like-minded mass. Most people would rather be successful and pull their own weight than depend on the dole. And they would gladly help someone else when presented the opportunity rather than let faceless strangers do it, because they know what it's like to need the help, and to get it in a fashion whereby they overcome that need, so it's not strung out into an endless dependency. And I know they would because I've been there. And I've helped other people do it. And I've seen them do the same. And I'm so very sorry for you if you haven't, because it's wonderful. And the only way to know for a fact that this is true is to stop saying "someone should". Stop saying "the government should" and say "I should. I can. I will." And then do it. And if you say you've done it, and you're still saying "government! government! government!" then I strongly suspect you're a fucking liar.

So when I say I want people to be independent and exercise Liberty to its fullest extent, understand that there is not one iota of mean, selfish, dastardly intent there. And I do not believe that people, be they on the Left or Right, get into public service because they're out to intentionally harm innocents. Nevertheless, they believe that other people do. And what's worse, they act on that belief. It's not just factually wrong: it's dangerous. It's divisive. It is this that keeps people from talking and understanding one another's point of view. It is this that causes them to deliberately lie and scheme to pass legislation rather than to work together on mutually acceptable solutions. This is the most polarized Congress ever, and it's because of exactly that... stupid... attitude.


Wednesday, October 02, 2013

The Government "Shutdown" Is Business As Usual.

Hey, remember sequestration? You know... that "austerity program" where "budget cuts" forced the closure of all sorts of government agencies because the Government projected a mere $110 billion more to spend than they had before.

Yeah... that was tough, wasn't it? Right up until the point when people noticed that the Administration was deliberately making a Big Deal out of nothing, and were directing agencies to make their "cuts" as deliberately painful as possible.

OK, so last Monday the House of Representatives passed a budget with two amendments: one would delay Obamacare for a year. The other amendment repeals the ACA's medical device tax. As per rules, the bill then goes back to the Senate. The Senate and the House hash out the differences between their versions in a joint committee and come up with a compromise bill that both can pass. Here's a nice infographic:

How Does a Bill Become a Law?


Explore more infographics like this one on the web's largest information design community - Visually.

This is normal operating procedure. Happens all the time. Remember Schoolhouse Rock?

BILL: "I'm gonna go to the House of Representatives and they're gonna vote on me."
BOY: "If they vote yes, what happens?"
BILL: "Well, then I go to the Senate and the whole thing starts all over again."
That's the part of the song that Jon Stewart skipped over when he was mugging for the camera. So while the vast majority of the media are frothing over the Republicans "being responsible" for the "shutdown", the plain fact of the matter is that they passed a budget. They actually did what they were supposed to do. The ball's in the Senate's court, and they have refused to play. They could negotiate with the House so that one of the amendments is adopted, or perhaps there's an adjustment of the delay, or on any number of points, but they refuse.

Now we already know that the Administration is neither philosophically nor practically averse to a delay. They did it themselves, without Congress' intervention. By Executive Order, President Obama delayed the Employer Mandate for one year. The interesting part here is that if your employer DOES offer insurance, you're not eligible for subsidies on the healthcare exchange. For instance, I'm not eligible. My son is. But that requirement is already delayed a year by the President himself, so it's not clear what would happen if you signed up now. By unilaterally delaying part of the law, the President has changed it without Congress' approval. So the Democrats' insistence that there be "no changes" falls flat. Too late, it's done.

Nevertheless, it's a law, passed and signed. Delaying it seems  like dirty pool to the Democrats, despite the fact that they already did that very same thing to key provisions.

So, due to some recalcitrance we can rightly blame on BOTH Houses (sorry, all you rabid partisan dogs, but it's fact), we now have a "government shutdown", which isn't a shutdown either. There's plenty of "government" still up and running.

How can a government "shut down"?

I have friends in other countries that are doubtless wondering how the HELL a government can shut down. That's because they live in a parliamentary system. In that form of government, the leader (usually a "Prime Minister" or "Chancellor") is selected by the party in power. If the Parliament can't reach agreement on a budget, then this triggers an election and they "form a new government". It's a system designed to make it easy to "govern".

The United States doesn't "form a new government". We never even think of it in those terms. We put new people in the same seats. The Administration may change, the Congress may change, but the Government is the Government. And the President is chosen in a completely different election from the Houses (the House of Representatives and the Senate). They have to agree on our Supreme Court Justices, most of which were chosen in previous decades by prior administrations. ALL of these bodies have different term lengths. A Supreme Court Justice serves for life; the President for four years; a Senator for six years. The House of Representatives has an election every two years, and is thus most responsive to the current will of the People. However, Representatives have the smallest constituency. Our whole system is deliberately and famously designed as a series of "checks and balances" in a conscious effort to make it DIFFICULT to govern. Each branch of our government is deliberately intended to limit the others.

That's because Americans don't want to be "governed". At least, they didn't when the Constitution written. Some of us still don't want it. We would rather govern ourselves to the maximum extent practicable. There has since been a great deal of indoctrination by the Left to push Big Government, even as the Right resists it (on paper, anyway). But to change that, they'd have to change the Constitution.

In any case, if the two Houses can't come to an agreement on the budget, then they don't have authorization to pay employees, and send them home. Whether they actually have money isn't an issue... we haven't had money for YEARS. Nevertheless, they've structured things so that "essential" services keep on running. Meaning, of course, that the things that shut down are non-essential by definition.

Anyway, back to the Constitution. I watched a bit of video where the Republicans were on the Capitol steps explaining what they had done and asking, if this was such an emergency, why the Senate took the day off. There was a woman bicyclist screaming at the top of her lungs (the fun starts at about 1:35) that OBAMA was elected by the American people, not that Congresswoman she was addressing, and that OBAMA was there do the will of the people...

... as if that Congresswoman had not been elected. More recently, too. She is doing what she was elected to do, representing her constituents and delivering on her campaign promises. The folks who are up in arms about "Congress" "not doing their jobs" aren't really showing off the best side of the American education system... they don't know much about civics. Congressmen are elected to represent constituencies, NOT their parties, and NOT the Nation. I don't like partisan grandstanding, but I can't begrudge any Congressman doing what he was elected to do. It's through arguing and conflict that compromises are reached, and that IS their job. And yup, all these different elections with different scopes in different years result in clashes, because that's what our system does. Of course, this bicyclist shouting on the steps doesn't really care about that. She wants what she wants, and is frustrated that she doesn't have a magic genie who can provide it for her yesterday. Of course, she got the camera stuck in her face. Ignorance is "good TV".

Frankly, she doesn't have my sympathy. When I see people declaiming the benefits of dictatorial rule, then I'm very, very glad that we have a system that makes it bloody difficult to do anything really big. That means that it takes a lot of agreement to make those changes. Again, it's a deliberate construction, to thwart the tyranny of the majority.

The system is what it is. We've had seventeen (17) "shutdowns" in my lifetime resulting in a cumulative total of one hundred and ten (110) days of government downtime. The world goes on. Eventually someone will blink and the situation will be resolved. Whether that comes sooner rather than later has historically depended upon leadership from the White House.

NEWS FLASH:
This just in from the New York Times
(received just as I finished writing this)


Yup. He won't negotiate the budget until the budget is passed. As previously noted, the House did pass such a bill. Now the House of Representatives is working on emergency funding bills which have already been rejected in advance by the White House.  This little back-and-forth is reminiscent of the situation just days ago when the Senate leader would only meet in a joint conference committee IF the House passed a "clean" bill... i.e., one that doesn't require a joint committee. That's just stupid.

Y'know that stuff I just said about leadership from the White House? 

Forget it.

I get more than a little bit pissed-off when the guy sitting in the Oval Office forgets that he's addressing a branch of government of equal stature with his own. I suspect that for a lot of Americans, this will not work in Obama's favor. I, for one, would be quite content if the House stopped working on every "emergency" spending bill and just said, "We gave you a budget. You say you want those non-essential government functions re-opened so bad? Prove it."