Archive for the 'Growth of Government' Category

Bennett-Burr “Bipartisanship” = Yet Another Federal Power Grab

Posted by on Jan 01 2014 | congress, Constitutional History, Constitutional Law, Economics, federalism, Growth of Government, Health Care, Natelson Rob', obamacare, Op-eds, Rob Natelson, supreme court, Tenth Amendment, U.S. Constitution

When politicians start talking about “bi-partisan cooperation,” smart citizens get nervous. It usually means another transfer of freedom and taxes to the federal government at the expense of individuals, families, localities, and states.

Case in point: a Denver Post op-ed by two U.S. Senators (or their staffs) on their latest “bipartisan” deal. The Senators are Michael Bennett (D.-Colo.) and Richard Burr (R.-N.C.). The op-ed is pure political blather, a haze of almost incomprehensible feel-good rhetoric. But the upshot is this: The two distinguished solons are very proud of themselves for managing yet another transfer of authority from the states to the federal government.

You can read the op-ed here. As you can see, it is filled with mind-deadening phrases refined by pollsters and focus group research: “we have worked with,” “bipartisan,” “ensure the safety,” “stakeholders,” “pragmatism and hard work,” etc., etc.

As for the law itself, it has the kind of title we have come to expect from Congress in recent years: The Drug Quality and Security Act. (Doesn’t that title make you feel good?) Of course, many of these labels have about as much correspondence to the real world as the “Patient Protection and Affordable Care Act.”

The text of the measure is almost impossible for anyone without legal training to understand. (You can see for yourself here.) Essentially, however, it transfers to the federal government areas of drug compounding and distribution traditionally controlled by the states. It imposes new obligations, licenses, and/or paperwork on manufacturers, repackagers, wholesalers, and your local pharmacy. It takes major steps toward federal control of our state pharmacy boards, and restricts state regulatory choices in the areas it covers.

The bill is also about revenue: It authorizes the federal government to collect various new “fees.” (I put the word in quotation marks because those “fees” are really taxes.)

Like the op-ed, the text of the law is filled with mind-numbing, and sometimes deceptive, language. Consider this provision:

Nothing in this section shall be construed to preempt State requirements related to the distribution of prescription drugs if such requirements are not related to product tracing as described in subsection (a) or wholesale distributor and third-party logistics provider licensure as described in subsection (b) applicable under section 503(e) (as amended by the Drug Supply Chain Security Act) or this subchapter (or regulations issued thereunder).

At first, you might think the bill leaves state regulations in effect. But look closer: The provision really is about where federal law does preempt: “requirements . . . related to product tracing . . .. [and] wholesale distributor and third-party logistics provider licensure.” Another passage makes it clear that much state flexibility is gone:

Beginning on the date of enactment of the Drug Supply Chain Security Act, no State or political subdivision of a State may establish or continue any standards, requirements, or regulations with respect to wholesale prescription drug distributor or third-party logistics provider licensure that are inconsistent with, less stringent than, directly related to, or covered by the standards and requirements applicable under section 503(e).

The measure does not set forth its constitutional justification. In other words, it does not cite any of Congress’s enumerated powers as the basis for the authority it claims. Occasional mentions of “commerce” suggest that it relies on the Constitution’s much-abused grant of power to “regulate Commerce . . . among the several States.” In fact, however, the bill sweeps deeply into in-state commerce and into activities that really are not “commerce” at all.

The op-ed touts the bill’s “strong [meaning "intrusive"], uniform” [meaning "centralized"] standards. But the Constitution limited congressional powers precisely to protect us from too many centralized standards. The federalism created by our Constitution is about local control, responsiveness to local preferences, better government, diversity, and the ability of each state to learn from the experience of others. Moreover, as the Supreme Court has pointed out repeatedly, federalism is also about fracturing power to preserve freedom.

Our Founders and generations of Americans have concluded that human freedom and the other benefits of federalism are worth the occasional inconvenience arising from lack of uniformity. This should be particularly true today, when technology has reduced both the benefits of uniformity and the costs of diversity.

“The Drug Quality and Security Act,” however, appears to have been the product of one of those classic deals among politicians and lobbyists. The two Senators assure us that all the “stakeholders” (i.e., groups with lobbyists) were consulted.

But were you?

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Not raising the debt limit = balancing the budget

Posted by on Oct 16 2013 | congress, Constitutional Law, debt, federal shutdown, Government Largess, Government Largess, Growth of Government, Spending Clause

Not raising the debt limit is simply running a balanced budget.

Yes, that’s right: The President and Congress may have to balance the federal budget in the next few days! Horrors!

Let’s get some clarity here. When the federal government hits the debt limit it does NOT mean that it can’t borrow or that it can’t pay existing debts. It just means it cannot continue to run a deficit. Spending becomes limited by revenue, and existing debt may be replaced by new debt. The government just can’t add MORE debt.

That means the government has to prioritize. The obvious priorities are:

* First, pay principal and interest on existing debts to avoid default. (There is plenty of tax revenue for this.)

* Pay the military and spend what is necessary for defense. (There is plenty of tax revenue for this, also.)

* Pay for other programs authorized by the Constitution. (Ditto)

* If money is left over, pay debts previously incurred for programs not authorized by the Constitution. (There will not be enough for this, so they will have to be closed down and paid off over time.)

This is the basic situation that Washington, D.C., its hangers-on, and the mainstream media think is so terrible.

Granted, suddenly balancing the budget may not be pretty. The states will have to take up some of the services the feds have been running on borrowed money. But they can do it better and more efficiently, anyway. (Colorado already is responding by keeping Rocky Mountain National Park open during the partial federal shutdown.)

Even if it’s not pretty, the history of other indebted nations during the last few decades—including our neighbor Canada—shows that shock treatment may be the best way for a country to get its fiscal health in order.

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VIDEO: Rob Natelson on Guns Rights in Colorado

Posted by on Mar 28 2013 | Constitutional History, Constitutional Law, Growth of Government, guns, PPC, U.S. Constitution, Video

Independence Institute friend and long-time contributor Ari Armstrong shot this video of Constitution scholar Rob Natelson speaking in Grand Junction on gun rights, the Second Amendment, and Colorado’s new gun controls. We can’t thank Ari enough for shooting, editing, and posting the video.

Below you’ll find the whole speech, but before you watch the whole thing, check out this 4 minute segment where Rob makes a great analogy between gun controls and sex controls. It’s pure genius.

And here is the whole 34 minute speech.

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Major Announcement on New Gun Laws

Posted by on Mar 21 2013 | Growth of Government, guns, overcriminalization, PPC, Second Amendment

“Over? Did you say it’s ‘over’? Nothing is over until we decide it is. Was it over when the Germans bombed Pearl Harbor? Hell no! And it ain’t over now!” – John Blutarsky

Yesterday Colorado Governor John Hickenlooper confirmed Colorado as a pawn in a national game of gun control. He signed three anti-Second Amendment bills into law, making our previously liberty-loving state into the nation’s Hate State against gun owners.

Independence Institute was the lead voice educating policy makers and the Governor himself of the dangers and sloppiness of these bills. They wouldn’t listen to us. They wouldn’t listen to Coloradans. They instead listened to Mayor Bloomberg and Joe Biden, who called legislators and Hickenlooper personally.

We urged the Governor to veto the bills and send them back to the legislature for re-drafting. Our Second Amendment expert, Dave Kopel, told him that the magazine ban is horribly miswritten, with numerous constitutional problems, even beyond the core Second Amendment issue.

But the national anti-gun interests have more influence in Colorado than we citizens. Now the sale or transfer of nearly every gun magazine in Colorado will be crime, because almost every single magazine is “readily convertible” to hold more than 15 rounds. Watch our video on this here.

And due to the must “maintain continuous possession” clause to grandfather in previously owned mags, I won’t be able to teach my daughter how to shoot my gun – she cannot hold the gun that uses the original magazine. My brother, a volunteer gun range officer will not be able to assist a gun student with a malfunctioning gun. As he says in this op-ed, he will have to choose between keeping the gun range safe or becoming a criminal. A husband cannot lend his gun with an original magazine to his wife. Watch our video on this here.

All 62 County Sheriffs vigorously opposed these bills. Many say that won’t enforce them when they become law because they cannot be enforced.

We have said for years that Colorado is the national test case to turn a freedom-loving western state into a progressive strong hold. Today Colorado citizens learned the hard way that elections have consequences. Today our Governor cemented our path to become California.

But I guarantee you, this fight has just begun. We at Independence love Colorado and love liberty too much to just sit back and watch in dismay.

Today I am proud to announce that the Independence Institute will lead the civil rights lawsuit against the State of Colorado to free us from these unconstitutional laws.

Our lawsuit will be based on the Second and Fourteenth Amendments to the United States Constitution, among other grounds. The lawsuit will be brought on behalf of a large coalition of local and national law enforcement, including many of the Sheriffs who opposed the bills, disability rights organizations, gun safety organizations, civil rights organizations, and others.

Lead attorney in the lawsuit will be Dave Kopel, who is also a Denver University Adjunct Professor of Constitutional Law. Kopel served on the U.S. Supreme Court oral argument team which won the 2008 case District of Columbia v. Heller. His briefs and scholarship have been cited by Justices Alito, Breyer, and Stevens, and by the 10th Circuit Court of Appeals, among others.

This will be a long and expensive legal battle. But that is nothing new to us. We are honored to fight for Freedom, to fight for Colorado. We are honored to fight for you.

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Does any government have the legitimate power to ban medical marijuana?

Posted by on Dec 10 2012 | Constitutional History, Constitutional Law, Constitutional Theory, Criminal Law, Growth of Government, Paternalism

Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government’s power to regulate health, safety, welfare and morals. It is distinct from other government powers, such as the tax power, or the military power. In the U.S. system, the federal government does not have a police power, except as to federal territories, but the States do have a police power.)

Freund’s expansive view of the police power aimed to overthrow the then-prevailing (at least in theory) view, articulated by Christopher Tiedeman in his 1886  A Treatise on the Limitations of the Police Power in the United States, that the police power could only be used to prevent people from harming others or violating their rights. In the long run, Freund’s view became the mainstream.

So what would Freund, that great advocate for loosening the restraints on big government, have to say about laws which prohibit the medical use of marijuana? Here’s what he wrote about liquor prohibition:

All prohibitory laws make an exception in favor of sales for medical purposes. This is not a legislative indulgence but a constitutional necessity, since the state could not validly prohibit the use of valuable curative agencies on account of remote possibility of abuse. “[T]he power of the legislature to prohibit the prescription and sale of liquor to be used as medicine does not exist, and its exercise would be as purely arbitrary as the prohibition of its sale for religious purposes….” The right to an adequate supply of medicines cannot be cut off by the legislature, and when legal provisions would have such effect they must that extent be inoperative.

Freund, at 210-11, quoting Sarrls v. Commonwealth, 83 Ky. 327, 332-33 (1885) (interpreting physician exception in statutory ban on liquor transfers).

In The Evolving Police Power: Some Observations for a New Century (27 Hastings Const’l L.Q. 511 (Spring 2000)), Glenn Reynolds and examined the trend in some courts towards judicial recognition of an issue on which Freund and Tiedman agreed: however one defines the boundaries of the police power, it is not infinite, and there are some personal zones into which it cannot reach.

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After the election: What now?

Posted by on Nov 09 2012 | Commerce Clause, congress, Constitutional Amendments, Constitutional History, Constitutional Law, Growth of Government, Health Care, health control law, obama, obamacare, Presidency, Tenth Amendment, U.S. Constitution, U.S. Constitution

The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.

Obviously, that decades-long strategy has failed—spectacularly.

They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent: When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate.

The fundamental fallacy behind the federally-centered strategy lies in assuming federal politicians and federal judges will somehow restore limits on federal power. That is implausible as an abstract proposition. And practical experience over many decades also shows that strategy to be a failure.

There are several reasons for the failure of the federal election strategy. First, for this approach to work, you have to elect a majority—actually a super-majority (at least 60 in the Senate)—of constitutionalists to Congress. You also have to elect a person of similar views to the presidency. And you have to do this so they are all in office at the same time.

Second, constitutionalists face inherent handicaps running for federal office: Most are by nature non-political, and therefore don’t make good or persistent politicians. Their views prevent them from promising farmers more subsidies, seniors more health care, or students more loans. And those views also discourage campaign contributions.

Third, even when constitutionalists do achieve federal office, a critical proportion of them forget or weaken their commitments amid the enticements of Washington, D.C. and the fleshpots of power.

The Founders foresaw this sort of thing. That’s why they inserted in the Constitution’s Article V language allowing the states to respond to federal abuse by amending the document. At the behest of 2/3 of the states, all convene together to propose constitutional amendments, which 3/4 may ratify.

This provision was designed explicitly to enable the states to bypass federal politicians.

Incredibly, however, the convention method of proposing amendments has never been used. This largely explains why our governmental system is so unbalanced today.

Year after year, well-meaning people have rejected the convention approach in the vain hope that federal elections are the answer. In the light of Tuesday’s results, they need to re-assess. This reassessment is now more urgent than ever, because even more than the Constitution is at stake. So also is our national solvency.

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“Failure: Why We Need It”

Posted by on Oct 30 2012 | Growth of Government, Paternalism, Russia

That was the provocative title of a seminar earlier this month organized by the Istituto Bruno Leoni, Italy’s free market think tank. The event was the IBL’s 9th annual Mises Seminar. As is common at multinational seminars in Europe, the event and the papers were in English, which is today’s lingua franca among well-educated Europeans.

My favorite paper was presented by Kaetana Leontjeva, who is a Senior Policy Analyst at the Lithuanian Free Market Institute. Her paper, Old-age state social insurance: may its failure be averted?, examines the history of old-age pension systems throughout Europe, with a special focus on the USSR, Lithuania and Georgia. She shows how these programs, initially of modest size, grew to an unustainable  level that is financed by borrowing. She argues that there are only two realistic alternatives:

1. Continuing the present systems, with only “technical” reforms. This will eventually lead to complete failure of the old-age pension system, as occurred in the USSR. “ This would lead to a sudden and dramatic change in conditions of the elderly, bringing about poverty and chronic insecurity.” OR

2. “managed failure.” This means starting to shrinking the existing pension systems, by requiring that they operate on a balanced budget. Young people should not be told to depend on the current system, but should be encouraged to start making plans for their own retirement, by setting aside some of their current income to provide for their retirement. “For the ‘managed failure’ approach to work, one generation has to concede and make a sacrifice by paying for the pensions of the current retirees and for their own. In the absence of such a consent and solidarity, the generation to make the sacrifice would emerge spontaneously, and the process of an unexpected old-age social insurance failure would be much more painful.”

Another interesting paper came from Peter J. Boettke (Mercatus Center, George Mason University) and Daniel J. Smith (Manual H. Johnson Center for Political Economy, Troy University). “Monetary Policy and the Quest for Robust Political Economy” examines the failures of economists in thinking about the Federal Reserve. It is possible to imagine a Federal Reserve which conducts its affairs in an economically sound and apolitical fashion. But in practice, the Fed has often been a pump-priming engine of inflation, for political reasons. In other words, “Technical optima are nonoperational in a contemporary democratic setting.” In the wake of the Great Recession, the economics profession has been busy dissecting recent technical mistakes by Fed. Boettke and Smith argue that economists instead ought to be analyzing the only solutions which can put an end to a century of Federal Reserve failures: the adoption of a monetary policy (e.g., based on an external standard, such as a commodities bundle) which removes Fed discretion to promote inflation. While such a policy might not be politically feasible in the short run, it is the only constructive alternative, and would become more politically feasible if economists did not self-censor their recommendations based on short-term political viability.

In “Bankruptcy: Why are Banks Treated Differently Anyway?,” Mathieu Bédard (Ph.D. candidate in economics, Aix-Marseille Université, and a Fellow at the Institute for Humane Studies) classifies and analyzes the 29 different forms of government intervention into bank failures. He argues that ordinary bankruptcy is often superior to liquidations managed by the Federal Deposit Insurance Corporation.

Even if you don’t agree with the policy recommendations in these papers, they are worth reading for their thoughtful analysis.

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Like Free Markets? Like Movies? Check This Out!

Posted by on Sep 17 2012 | Economic LIberties, Economics, Economy, Events, Government Largess, Growth of Government, nanny state, PPC, Video, War on Drugs, War on Terror

From September 28th- 30th, the Young Americans for Liberty at the University of Colorado at Colorado Springs will host a weekend full of films, presentations, and thought provoking discussions at the Second Annual Free Minds Film Festival. The festival explores the ideas of a free society and the specific topics will include the war on drugs, eminent domain, cronyism, gun control, the trail of tears and government sponsored genocide, luck and equality, lessons from ancient Rome and Panem, the horrors of the Soviet Union, and, of course, how to change the world!

Featured titles include blockbuster “The Hunger Games,” Academy Award shortlisted documentary “Battle for Brooklyn,” locally made “Guns and Weed: The Road to Freedom,” the inspiring true story “Amazing Grace,” and “The Soviet Story” will return as a permanent tradition.

Local and national experts will speak after the films and take questions from the audience. Speakers include Lawrence Reed, President of the Foundation for Economic Education, Metropolitan State University of Denver Economics Professor Dr. Alexandre Padilla, Isaac Morehouse from the Institute for Humane Studies, Dr. Amy Sturgis Interdisciplinary Studies professor at Lenoir-Rhyne University and the Mythgard Institute, retired Denver Police Officer Tony Ryan, and Denver- based Philosopher Dr. Diana Hsieh.

Friday and Saturday night will conclude with free beer and food and great conversation at BJ’s Brewhouse courtesy of Liberty on the Rocks.

The first Free Minds Film Festival was nominated for “Event of the Year” at the International Students For Liberty Conference and attracted over 90 attendees. The event is free and open to the public and the media.

A full schedule of the weekend including trailers, biographies, and directions to the event is available at www.freemindsfilmfestival.com.

Register here for FREE!

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The Ruby Ridge murders, 20 years later

Posted by on Aug 22 2012 | Criminal Law, Executive Branch, Growth of Government, guns, Self-Defense, Targeted Killing, War on Drugs

The Prologue to my book No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix it, includes a section on the Ruby Ridge case. Much more on Waco and Ruby Ridge is available on the Waco page on my website.

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Independence Institute Writers in the News

Posted by on Aug 13 2012 | criminal justice, denver, Growth of Government, guns, Op-eds, PPC, Right to carry, Taxes

Gun laws, tax increases and the Californication of Republicans are all topics of recently published works by Independence Institute writers.

In USA Today, the Denver Post and National Review Online, Independence Institute research director Dave Kopel makes the case for both resisting calls for expanded gun control in the wake of the Aurora theater shooting and for not inadvertently making a celebrity of the killer.

Also in the Denver Post, guest writer joshua Sharf explains that Denver Mayor Michael Hancock’s proposed permanent property tax increase lacks vision:

The mayor’s proposal assumes that rising home values necessarily mean rising incomes. But the Bureau of Labor Statistics reports Denver’s weekly income fell nearly 5 percent in 2011. The mayor’s mill levy override scheme would mean an immediate property tax increase of 10 percent for households who are still finding it difficult to make ends meet.

Whole thing here.

In the Colorado Springs Gazette, senior fellow Barry Fagin advises Colorado Republican against Californicating themselves:

Do Republicans want to be like Democrats, or do they want to beat them? If Colorado is to avoid California’s fate, then Colorado should avoid California’s Republicans. They should hit economic issues much harder, and stop obsessing over problems that the federal government can’t solve, are fundamentally religious in nature, or are better addressed through cultural change and not the ballot box.

Read it all here.

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