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Deep Ignorance

Deep Ignorance

This column was first published in The Hill on February 20, 2018.

The web has been ablaze over the ignorance displayed by Senator Brian Schatz (D-Hawaii), who showed himself unaware of the Anglo-American legal heritage. Schatz revealed his lack of knowledge by mistaking Attorney General Jeff Session’s reference to that heritage for a racist dog whistle.

For those who have been living on Pluto — or serving in Congress — the phrases “Anglo-American heritage” and “Anglo-American legal system” are standard ways of referring to the jurisprudence America inherited from England. To a considerable extent, we still share that jurisprudence with our mother country. The Constitution itself is filled with English legal terms (such as habeas corpus, and privileges and immunities) that cannot be fully grasped without understanding the English heritage. Many, if not most, states — including Schatz’s state of Hawaii — have constitutional provisions or “reception statutes” formally adopting the common law of England.

If Schatz’s comment were unique, it would simply mark him as uniquely unfit to be a lawmaker. Unfortunately, in recent years other top officials have revealed similar deep ignorance. By this I mean ignorance not merely of academic or esoteric facts but of matters central to an officeholder’s responsibilities — and sometimes central to citizenship itself.

Readers may recall that in 2010 a reporter asked U.S. Rep. John Conyers(D-Mich.) what provision of the Constitution supported Obamacare’s individual insurance mandate. A video camera caught Conyers’ response:

Under several clauses. The good and welfare clause, and a couple others. All the scholars, all the constitutional scholars that I know— I’m chairman of the Judiciary Committee, as you know — they all say there’s nothing unconstitutional in this bill. 

Of course, the Constitution contains no “good and welfare clause.” What is just as disturbing is that Conyers apparently did not know that legal scholars had issued constitutional warnings about ObamaCare on several fronts, including its mandates on the states and the procedure Congress used in adopting it. (Some of these warnings were later vindicated by the Supreme Court.)

As Conyers observed, he was then chairman of the House Judiciary Committee. According to its website, that committee “has been called the lawyer for the House of Representatives because of its jurisdiction over matters relating to the administration of justice in federal courts, administrative bodies, and law enforcement agencies.” Because the Constitution is the federal government’s basic rule book, the committee is deeply immersed in constitutional issues. Conyers was not only its chairman; he had served on the committee for 45 years!

Educated citizens who enter politics eventually learn that deep ignorance is not unusual among elected officials. To idealists, the discovery can be a shock.

It was a shock to me. As a Montana political activist and candidate during the 1990s, I was stunned to learn that the incumbent Republican governor did not know whether the state budget he had approved was smaller or larger than the previous budget. He also was uninformed of the contents of other major bills he had signed into law. And after four years in office supposedly dealing with education issues, his second lieutenant governor still had no clue what a charter school was.

Deep ignorance is not limited to matters of law and policy. The “you didn’t build that” comments in 2012 by President Obama and Senator Elizabeth Warren (D-Mass.) represent a case in point. Claiming an entrepreneur did not build his business because he used pre-existing resources is like saying to an employee that he didn’t earn his salary because the employer provided the job. The comment reveals fundamental unawareness of how creativity and effort operate in a free enterprise context. This is a risk of electing people who have little or no private sector experience.

To be sure, deep ignorance is not the biggest problem in government right now. A more basic problem is that government has gotten too massive for officials to do their jobs, even if they all had the extraordinary knowledge and capacity of, say, the late Sen. Daniel Patrick Moynihan (D-N.Y.). Still, electing ignorant people to office aggravates the federal dysfunction so concerning to most Americans.

Government Shutdown? Maybe for the Best

Government Shutdown? Maybe for the Best

An earlier version of his column appeared in The Hill on February 6, 2018.

Once again, this year we were threatened with a federal government “shutdown.”

Well, for the future this citizen out in the hinterland says, “Bring it on!”

Most of the interrupted functions aren’t really constitutional anyway, and we could do well without them. In fact, we should defund some of them permanently to help close the federal deficit. Most of the affected workers wouldn’t be out of work for long: Right now the private sector is desperate to use more efficiently the kind of skilled people now employed, and sometimes ineptly utilized, by the federal government.

I put the word “shutdown” in quotation marks because it is really a misnomer. Labeling it as such has been a huge rhetorical coup by apologists for unbridled federal power. In fact, it’s just a temporary pause in the otherwise-inexorable growth of federal spending.

Sometimes this pause occurs because members of Congress can’t agree how much to increase expenditures. (They rarely propose reducing them.) Sometimes it happens because they can’t agree on raising the debt limit. The D.C. crowd considers not raising the debt limit particularly disastrous because it actually forces the federal government to balance its budget in the interim.

Now, let’s look at the agencies whose operations may be interrupted in event of a “shutdown.” The list comes courtesy of Keep in mind, however, that the list is misleading because funding for some of their major operations is on statutory auto-pilot — “mandatory spending,” which is D.C.-speak for “we let it continue without renewing it annually.”

For example, even though the Department of Health and Human Services is on the list below, during a “shutdown” it will continue to cut checks for Social Security and for most of ObamaCare.

So, with that caveat in mind, let’s review the list of agencies that may suffer partial closure:

  • Commerce Department, except the National Oceanic and Atmospheric Administration.
  • Department of Education.
  • Department of Energy (except certain safety functions remain open).
  • Environmental Protection Agency.
  • Food and Drug Administration.
  • Department of Health and Human Services.
  • Department of Housing and Urban Development.
  • Department of the Interior (although the Department will not be shutting down the national parks this time).
  • The Internal Revenue Service, except those processing tax returns.
  • The Department of Labor, including Bureau of Labor Statistics.
  • NASA.
  • The National Institute of Health.
  • The Smithsonian.

Retrieve your pocket Constitution. Look through it and identify those functions the Constitution actually authorizes. Then go over the list of “shutdown” agencies again.

The Constitution empowers the federal government to regulate commerce, which encompasses many functions of the Commerce Department and the Food and Drug Administration. The Constitution also authorizes national defense (including, in part, NASA), and administration of the District of Columbia (including, by implication, the Smithsonian).

But otherwise you won’t find much overlap between what the Constitution authorizes and what a shutdown would interrupt. The Constitution contains not a single word about regulating or funding urban development, education, or labor. But it does contain the Ninth and Tenth Amendments, which reserve such matters to the states and the people.

Some agencies subject to closure already are duplicated, or can be duplicated, by the private sector or by interstate compact, rendering federal involvement unnecessary. Others are operations state governments could handle easily.

For example, during the 2013 shutdown, the Department of the Interior announced it was closing Rocky Mountain National Park in Colorado. No problem: Colorado state government kicked in the money necessary to keep the park open, and it stayed open. A few Coloradans began to ask, “Who needs the feds to run the park after all?”

That kind of question is the real threat of a prolonged government shutdown. It is a threat to federal politicians, functionaries, grant recipients, and the complicit segment of the mass media: Americans might come to realize they can get along very nicely without much of the federal bureaucracy. The ease with which Colorado funded Rocky Mountain National Park is a case in point. In fact, it may be the reason the federal government will not be closing the parks this time.

If, unlike me, you really are worried about a government shutdown, then be assured: Congress will not allow it to continue for too long. Otherwise, Americans might discover just how disposable most federal agencies are.

Abolish the Filibuster? Maybe We Should

Abolish the Filibuster? Maybe We Should

Should freedom advocates support the U.S. Senate’s “filibuster” rule? The traditional answer has been “yes.” But we might want to take another look.

The Senate’s filibuster system allows individual Senators to block legislative action by making long speeches (i.e., “filibuster”) on the floor. When several Senators take turns speaking, they can block legislative action indefinitely.

The Senate adopted the filibuster system in 1806. The system derives from optional Senate rule, not from the Constitution. In 1917 the Senate adopted Rule 22, which allowed a two-thirds majority to force an end to a filibuster (“cloture”). In 1975, the Senate reduced the required cloture margin to 60 percent.

Advocates of limited government tend to favor super-majority requirements because—in theory anyway—(1) they stall government action and (2) they assure that when government does act, its measures benefit a very broad segment of the public.

In recent years, however, some researchers have questioned the benefits of super-majorities in legislative chambers with significantly more than 50 members. Apparently a rule that works well in a smaller chamber may prove counterproductive in a larger one.

Whether or not this generalization is correct, experience does show that the filibuster has not restrained the growth of the federal government. Instead it has helped create a one-way ratchet whereby the federal government sometimes expands, sometimes remains constant, but never shrinks.

One reason appears to be a large, highly organized and permanent pro-government element in national politics. This element includes the media, the education establishment, the bureaucracy, and certain powerful lobbying groups such as the AARP. These groups amplify the effect of liberal electoral victories while diluting the effect of conservative victories. (Think of how they have molded public perceptions of so-called “government shutdowns”). As a result, in the U.S. Senate liberal majorities sometimes become super-majorities, while conservative majorities almost never do.

Another reason the filibuster has acted as a one-way ratchet may be the different levels of respect for rules displayed by liberals and conservatives. When conservatives are in majority, they usually respect the prerogative of the liberal minority to filibuster against proposals to reduce the size of government. Liberals tend to grant less respect to conservative filibusters.

As a result, “filibuster politics” usually ends well for the Left. Here are some historical examples:

* In 1917, the Democratic Senate adopted Rule 22 at the request of President Woodrow Wilson to allow cloture for the first time—by a two thirds majority.

* In 1965, Senate Democrats enjoyed a 67-32 majority, which enabled them to override any filibuster possibility and enact Medicare and Medicaid—thereby rendering the federal government the dominant player in American health care.

* In 1975 a liberal Senate reduced the cloture margin to 60. Note that when Senate conservatives recovered their majority, they did not reverse this action.

* In 2007, a liberal Senate used a technique called “reconciliation” to override a filibuster threat and pass the College Affordability and Accountability Act. That measure assured greater federal control of higher education.

* In 2010, a liberal Senate did the same to adopt Obamacare.

* In Nov. 2013 a liberal Senate adopted the so-called “nuclear option” to abolish filibusters on judicial nominees. But they carefully excepted the Supreme Court from the change, so liberals still could filibuster against appointment of more originalist justices such as Clarence Thomas and Antonin Scalia. This change was not reversed when the Republicans took control of the Senate in 2015.

Note how the filibuster rule was swept aside when it stood athwart a liberal majority’s wish to expand government. I was able to find no instances in which a Senate majority lifted the filibuster to reduce the size of government.

In some countries, the size of government has been reduced significantly in recent years. Illustrations include Margaret Thatcher’s Britain and Roger Douglas’ New Zealand. However, the parliamentary majorities accomplishing this were never super-majorities. Had the filibuster rule been in effect in those countries, both would still be languishing in socialist stagnation.

New Article on What "Taxes" Are (And Aren't) Under the Constitution, and the Implications for Obamacare

New Article on What "Taxes" Are (And Aren't) Under the Constitution, and the Implications for Obamacare

2005-10 RGNStPaulsWas the Supreme Court right to call Obamacare’s insurance penalty a “tax?”

Not according to the Founders.

Rob’s new article explaining just what the Constitution means by “tax” has just come out. It explains also the Constitution’s other financial terms: “Revenue,” “Excises,” “Tonnage,” “Duties,” and “Imposts.”

You can get a copy here.


New Origination Clause Article Now Published

New Origination Clause Article Now Published

2009 RGN

The Harvard Journal of Law and Public Policy has now published my article on the Origination Clause. That’s the article documenting the research that found—contrary to all expectations—that the taxes in Obamacare were validly adopted.

But it also found that the regulations and appropriations in Obamacare were invalidly adopted.

You can read a summary of my findings here, and new evidence to support them (which just barely made it into the article) here.

You can find the article itself here.