The federal budget plan of Rep. Paul Ryan has been repeatedly characterized as “extreme.” (I Googled, “Ryan plan extreme” and got over 43,100,000 hits.) Among those making the charge have been the editorial writers over at the Denver Post.

In reality, several Western democracies have enacted far more “extreme” deficit elimination plans in recent years—and with great success. In the early 1990s, Canada was laboring under about as much debt as the U.S. now is, measured as a share of the economy. In a new article, former Canadian prime minister Paul Martin (a Liberal Party prime minister, no less) tells us how his government cut federal spending in absolute terms, balanced the budget in about five years, and lowered taxes.

The Canadian reforms were preceded by similar successes in places like Alberta, New Zealand, and Great Britain. All required absolute drops in spending, with no sacred cows. Everyone has to feel that he or she is making a sacrifice for all.

Ryan’s plan would only slow the increase in spending, not cut it. It would exempt people over 55 from Medicare changes, a political as well as a budgetary mistake. And it would not balance the budget until at least 2040—if at all.

In other words, a fundamental flaw of the Ryan plan is that it is not sweeping enough.

You can expect Lefty activities to throw dirt on any plan that would curb even minimally the out-of-control welfare state. But the Post editors—who write for Colorado’s newspaper of record—need to exercise more discretion.

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.

Today’s Wall Street Journal has an article about a potentially heart-rending development: The movement by many companies, forced by the Obamacare insurance mandates, to permanently replace full-time workers with part-timers.

Obamacare forces businesses to purchase expensive health insurance for full-time workers or pay stiff penalties. Businesses are not permitted to compromise, as many now do, by purchasing cheaper, skeleton policies—even though those are fully adequate for most younger workers. (I covered myself with such a policy when I was in my early 30s, but they will be essentially illegal under Obamacare)

The businesses most affected are in retailing and hospitality, except for those that cater to the ultra-wealthy. The latter, such as the parent company of the Ritz-Carlton Hotels, can afford to meet the health care law’s mandates.

It doesn’t take much imagination to see how this development will affect workers and families, particularly young families. Some will be forced to take multiple part-time jobs. Some will be forced into the ranks of the working poor. Primary-caretaker parents who otherwise would stay at home to care for small children will be forced into outside employment so they can pay their bills.

As Nancy Pelosi promised, only after its passage are we now learning about the details of Obamacare. And specifically, we are learning that it is more than just bad policy: It is an evil, evil law.

Here is our constitution scholar Rob Natelson explaining the ObamaCare Supreme Court ruling on my TV show:

Here is Colorado Springs Gazette editorial page editor Wayne Laugesen on the saga of the Waldo Canyon wildfire.

Here’s another take on the recent Supreme Court’s ObamaCare decision. This time we get to hear from perhaps the most famous constitutional scholar in the country, Randy Barnett of Georgetown University. He sat down with Damon Root of Reason TV for this half hour interview. I’ve watched the whole thing and it is well worth your time. (yes I know. 30 minutes YouTube time is 2.5 days real time). Randy has a couple of insights that are incredibly profound. I’ll mention just one here: that Chief Justice Roberts’ ruling was unique on a level that is still difficult to appreciate. It was so unique that ONLY HE held the position. Not a single law scholar, constitutional lawyer, lower court, academic, law student, man, woman, or child anywhere in the world held the view Justice Roberts espoused. Watch the whole video here.

The Supreme Court Obamcare decisions and the first Amendment are topics of recently published works by Independence Institute writers.

In the Denver Post, Health Care Policy Center director Linda Gorman lays out some straightforward, market-based health care reforms should Congress attempt to replace and repeal Obamacare.  Writes Linda:

Advocates of Obamacare claim that unless we let the government (mis)manage even more of the health care system, there will no health safety net.

To the contrary, with patient-centered reforms, we can reduce ordinary health care costs for everyone, make insurance for extraordinary costs accessible and affordable, and provide an effective safety net for the poor.

Whole thing here.

In the Great Falls (Montana) Tribune, Rob Natelson writes on the importance of First Amendment freedoms when politicians, from both sides of the aisle, go gunning for media outlets they don’t like, using Great Britain as an example.  Writes Rob:

At a minimum, mainstream reporters have to mute what they write about sitting office holders so they can maintain access to sources. Less scrupulous reporters amplify messages promoted by favored politicos and dig up (or manufacture) dirt against political opponents.

Whole thing here.

In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a “tax,” even though the Obamacare statute calls it a “penalty.”

Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

The above language is a plausible argument for the Chief Justice’s tax/penalty analysis. But by discussing a window tax, the Roberts opinion provides one more reminder why the individual mandate, if it is a tax, is a direct tax, not an indirect tax. Direct taxes must be apportioned by state population. Art. I, sect. 9, cl. 4. If the individual mandate is a direct tax, then it is unconstitutional, because it is not apportioned by state population.

Pursuant to the 16th Amendment, direct taxes on income need not be apportioned, but neither the individual mandate nor the hypothetical window tax are taxes on income. Constitutionally, “income” subject to the federal income tax must be  ”undeniable accessions to wealth.” Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955). A decision not to buy overpriced insurance from Congress’s Big Insurance pets, like the decision not to buy a particular type of window, is not an “accession to wealth.” The decision provides no additional income to the person.

So let’s accept Chief Justice Roberts’ theory that a window tax and the individual mandate are analytically comparable. On July 9, 1798, Congress enacted a direct tax statute, to pay for national defense preparations against France. “An Act to provide for the valuation of lands and dwelling-houses, and the enumeration of slaves, within the United States. On July 14, Congress passed the “Direct Tax Act,” to provide for collection of the July 9 taxes. Pursuant to the Direct Tax Act, federal assessors were to examine houses to assess them for purposes of the direct tax. In addition, the Direct Tax Act ordered the assessors make records of the number and sizes of windows in each house. The window data were to be gathered so that Congress could, in the future, decide to impose a direct tax on windows. Paul Douglas Newman, Fries’s Rebellion: The Enduring Struggle for the American Revolution 76-77 (2004).

It seems there was no dispute that a window tax was a direct tax. A fortiori, a tax on not having certain types of windows would be also be a direct tax. This is one more piece of evidence that Chief Justice Roberts was wrong in stating that the individual mandate “tax” is not a direct tax. Much more extensive discussion of the direct/indirect tax issue (but not of window taxes) can be found in Rob Natelson’s 27 minute podcast on the subject, for iVoices.org.

In case you missed the Hands of my Health Care rally at the state capitol last week, we’ve got a sample of what went down on behalf of health care freedom. In this video, Constitutional scholar and Independence Institute senior fellow Rob Natelson shares his thoughts on the Supreme Courts decision to uphold the individual mandate as a “tax.” He calls the reasoning, “sophistry.” Heh. Go get ‘em Rob!

Extra special thanks to Ari Armstrong for filming Rob and putting it on YouTube.

This aired Friday night, just a day after the SCOTUS decision dropped.

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same effect in deterring any future thoughts of congressionally-imposed mandates. (Putting aside the obvious exception for mandates that have a solid basis in the constitutional text, such as jury service.)

The enactment of the mandate has also significantly increased the probability that the next Supreme Court appointments will be made by a President and confirmed by a Senate which denounces the mandate as unconstitutional, and that the new Justices will be the kind who are inclined to vigorously enforce the many strong constitutional limits on congressional over-reaching which are articulated in NFIB v. Sebelius.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.