Tune in to my show Devil’s Advocate as our senior education policy analyst Ben DeGrow highlights the upcoming December 15 deadline for Colorado Education Association members to request up to $63 in Every Member Option political refunds. The episode featured a showing of the 45-second Schoolhouse Rock-style animated video explaining the refund option.
Anyone interested in the constitutional debate over the “Affordable Care Act” should pick up a copy of the new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case.
This “conspiracy” was not a political plot or an illegal combination. Rather, it is one of the nation’s two top constitutional law websites—a blog called the Volokh Conspiracy, founded by UCLA law professor Gene Volokh.
The book is about more than constitutional arguments over Obamacare. It is also about the cracking of a monopoly (or more precisely an oligopoly): the grip on constitutional discourse by a relatively small, and overwhelmingly liberal, cohort of professors who teach at certain elite law schools. These schools include the University of Michigan, Columbia, the University of Chicago—and most notably Harvard and Yale.
Faculty at elite law schools tend to dominate constitutional discourse for a number of reasons. Their prestige attracts a disproportionate amount of legal talent—bright students who later take influential positions as judges, advocates, and policymakers. (Disclosure: I was admitted to several of these institutions, but nevertheless elected to attend Cornell Law School, which is considered very good but not in the “top ten.”) The mainstream media seeks out these professors, largely to the exclusion of other legal experts.
The elite professors also dominate, indirectly, the highly influential law journals published by their own law schools. These journals are edited by law students, who lack the knowledge necessary to measure the quality of a submitted article. Hence, in deciding whether to publish a submission they often rely on the attitudes of their own faculty and/or where the article’s author teaches or attended law school. My own publication career offers two (negative) illustrations of the monopoly’s methods: (1) As a student I resigned from from my own law review in disgust because the editorial board, in imitation of the elite journals, was running the review with a leftist agenda, and (2) as a law professor, I saw all my earlier constitutional articles—including those that ultimately proved most influential—uniformly rejected by the Harvard-Yale axis.
When the Obamacare law was first challenged in court, the Harvard-Yale axis pronounced it “obviously” constitutional. The six authors of this book dared to disagree, and most of the book consists of their postings. In addition to the Independence Institute’s own Dave Kopel, the authors include five full-time law professors, none of whom work at Harvard or Yale. They are Randy Barnett of Georgetown, Jonathan Adler of Case Western, David Bernstein and Ilya Somin of George Mason, and Orin Kerr of George Washington University. All lean libertarian except Kerr; his dissents add spice to the discussion.
Of course, these authors ultimately were vindicated. The Supreme Court’s decision to uphold the individual insurance mandate as a “tax” was a 5-4 squeaker. The Court also held that the mandate was outside the Commerce Clause and the Necessary and Proper Clause, and that the Obamacare Medicaid expansion was partly unconstitutional. As you make your way through the book, you can see how the winning arguments evolved. My favorite was the realization that the Supreme Court’s “substantial effects” test is a (mis-) application not of the Commerce Clause but of the Necessary and Proper Clause.
At the end of the volume is a section called “Postscript and Concluding Thoughts.” It encompasses six original essays in which the authors discuss the Obamacare case and its outcome. Probably the longest of these is Dave Kopel’s. I personally found it most interesting because it provides historical context and tells the story of the Independence Institute’s participation in the case.
A Conspiracy Against Obamacare is published by Palgrave MacMillan and edited by the Cato Institute’s Trever Burrus. Paul Clement, the former U.S. Solicitor General who argued the case against Obamacare in the Supreme Court, has written an engaging Foreward.
Advocates of freedom and constitutional rights won a victory today when Senator Evie Hudak resigned to avoid being recalled.
For years, people have asked me, “When a Member of Congress repeatedly violates his or her oath of office, what can we do?” Because Congressmen can’t be impeached (and their colleagues rarely expel them), my answer always has been, “You have no alternative but oppose him or her in the next election.”
But for Colorado elected officials, we do have an alternative: recall. And after long failure to use that tool, the voters finally have deployed it—three times this year.
Recall elections work because in recall elections, unlike general elections, issues aren’t “bundled” together in inseparable packages. You vote on one office, and on the record of one politician. Of course, the political class doesn’t like that: They like it when government is involved in so many matters and election campaigns are so muddled that you don’t really have a clear “yes” or “no” vote: So you just re-elect the person whose name you know—the incumbent.
But a recall, like a voter initiative, offers the electorate a much more focused choice. It’s democracy at its finest.
In some other states, the political class (sometimes through the courts) have gelded the recall process by requiring adequate “cause” for a recall. In those states, whether there is “cause” is decided by (guess who?) the politicians or judges. In light of what has happened this year, look for an effort to limit recall in Colorado, too. If they do try to limit recall, just remember: In a republic, lawmakers are the agents of the people, and the only judges of whether an agent has been faithful are those who hired him.
In the case of Evie Hudak, the signs were that a majority of her district believed she had been faithless: Contrary to her oath of office and contrary to her employers’ instructions (as set forth in the state and federal Constitutions), she had attacked our right to keep and bear arms. Because of this, she deserved to be gone, just as much as if she had attacked our right of free speech or our state constitutional right to vote on tax increases.
History tends to correct the errors of contemporaneous perceptions, and on the 50th anniversary of his assassination there were far fewer mentions than in prior years about President Kennedy’s “greatness.”
I was coming of age when President Kennedy was shot, and well remember the shock, first in my high school study hall and next in Spanish class. But by the time of the tragedy I already knew too much about his administration, and in subsequent decades other Americans and I were to learn much more that we really did not want to know.
A useful corrective to Kennedy hagiography is the section on his administration in Paul Johnson’s History of the American People. (Caveat: Johnson sometimes makes factual errors as a historian, but not on this topic.) Johnson ranks Kennedy among the worst Presidents, somewhat below President Warren Harding in his revisionist view. But let Mr. Johnson speak for his eloquent self. I’ll review what I already knew at age 15 and also some of what we all have learned since.
Neither I nor anyone else except the admiring Washington press corps knew that this President was in some ways a modern-day Emperor Commodus—a handsome young man of promise who wasted enormous amounts of irreplaceable time on adulterous affairs rather than attending to his official responsibilities. Nor was he particularly discrete about whom he bedded: Years later, the nation was shocked to learn that he had been sharing a mistress with a Mafia don. All this was fun for him, of course, but one wonders what the nation gained—or rather lost—from it.
Being from a medical family, I already was aware that Kennedy was promoting enormous new federal involvement in the American health care system, and that he was far understating the actual cost. Sydney Natelson (1911-2007), my father, was a physician and a close observer of national politics. He noted that Kennedy’s Medicare proposal was partly duplicative of existing state programs, but was structured in a way that would undermine the traditional doctor/patient relationship and turn independent physicians into bureaucrats. My father also predicted it would raise the deficit. No one, except maybe the Kennedy aides who knew the real numbers, understood that Medicare also would help render health care unaffordable for the middle class, and eventually threaten the nation with bankruptcy.
Kennedy is remembered for the “Kennedy round” of income tax cuts, a Keynesian exercise designed as “stimulus,” and later pointed to as a model by Republicans as well. Its flaws were that without spending reductions, the tax cuts added to the deficit and any stimulus effect soon expired, being replaced with inflation and/or renewed sluggishness. Kennedy’s Harvard boys (unlike Obama’s Harvard boys and girls) understood that lower tax rates encourage enterprise, but they thought government spending does also. Actually, government spending ultimately discourages enterprise by inefficient use of valuable resources, creating incentives not to be productive, and feeding the corps of regulators and dependents that weaken the private sector.
In foreign affairs, Kennedy cultivated an image of toughness, but the record was otherwise. During his 1960 campaign, he argued that the Eisenhower administration had allowed the U.S. to lag behind the USSR in missiles (the “missile gap”). This turned out to be fiction. While President, Kennedy authorized a coup d’etat against the elected president of South Vietnam, thereby eliminating the only leader with a hope of handling the Communist Viet Cong. The result was a much wider war and much deeper American involvement.
Then there was Cuba: In 1961, over the objections of advisors such as Commander of Naval Operations Arleigh Burke, Kennedy deserted at the Bay of Pigs an army of Cuban freedom fighters the U.S. had trained and delivered. The year after the ensuing massacre, Kennedy’s administration repeatedly denied reliable reports that the Soviets were placing inter-continental ballistic missiles in Cuba. Kennedy changed his mind a few days before the mid-term congressional elections, a timing that helped contain Democrat losses. In a dramatic address (which I remember watching), Kennedy outlined a plan to force those missiles out. This confrontation took us to the edge of World War III, but the ultimate outcome was a fizzle. In exchange for unverified removal of the missiles, Kennedy made a series of unpublicized concessions to the Soviets. Among them: The U.S. was to remove missiles from NATO ally Turkey, and Castro was to remain in power indefinitely. Castro thereby was left in place to promote international discord for another 40 years; and the Cuban people even now remain locked in the prison he constructed.
Then there were the widespread wiretapping and other civil liberties violations, Kennedy’s relative inability to deal with Congress, and so forth.
In recent days, there has been some speculation about what might have happened if Kennedy had lived. These speculations take for granted that he would have won a second term. But this is an inadmissible assumption: Just before his death, Kennedy’s re-election was far from assured. It could have been forestalled completely by one or two more missteps of the kind he had already made.
A more interesting topic for speculation is what might have happened if the votes had been counted honestly in Kennedy’s first election—and if Vice-President Nixon had been as persistent in demanding a recount in 1960 as Vice-President Gore was to be in 2000. There have been widespread claims of theft in several closely-contested American presidential contests (1824, 1876, 2000). The election of 1960, however, was the most likely to have been stolen. The vote counting in both Illinois and Texas was deeply compromised (this is no longer a matter of dispute), and the switch of both states’ electoral votes would have prevented Kennedy from becoming President.
Richard Nixon was then less jaded than he later became, and although young, was older than Kennedy and a good deal more diligent and experienced. His presidency could hardly have been worse than Kennedy’s, and might have been a good deal better. At least we might not today be at the edge of fiscal ruin.
Alright. Here’s my terrible analogy. Really, I don’t think it’s all that good, so please let me know if the point gets across.
Have you ever seen a house being built? They get the framing up, and then it looks like everything just stalls. I mean there’s like no progress, but you still see guys just milling around. And then one day, out of seemingly nowhere, the drywall goes up, and you think, “Wow, look at all that progress; it all happened overnight!”
Well, Tuesday night’s amazing election victories might seem like that, too. Amendment 66 went down to defeat by a 2 to 1 vote, and school reformers won in Dougco, Jeffco, and Loveland school boards. Wow, all that happened overnight!
What you might not have seen at the house being built were all the small and crucial tasks that MUST be completed before the drywall goes up — electricians running wires, plumbers laying pipe, HVAC guys bending sheet metal for vents, and so on. From a distance, you don’t really see any of that work,but you sure notice when the walls go up. It looks like big movement.
Conservatives, especially in Colorado, lose and lose and lose because they keep trying to put up the walls before doing the prep work first. That prep work takes years, it’s hard, it’s often boring, and it takes resources.
We at the Independence Institute are in the business of doing that political prep work. And I think folks just might be starting to get it. Without the coalition building, detailed policy work, investigative news reporting, community organizing, and educational efforts that we do, victory simply is not possible.
Take for example the story of Douglas County School District. This district, the third largest school district in the state, was the first in the nation to implement a voucher program on its own and basically de-certified its union among many other great reforms. And on Tuesday, despite a massive influx of national union money to defeat the reform candidates, Douglas County residents gave them a “thumbs up” and re-elected them.
The prep work you might not have seen started over six years ago when our education policy stars, Pam Benigno and Ben DeGrow, started working with school board members in the minority. In 2009, we worked with the new candidates before they were elected and then continued to provide assistance as they carefully crafted and implemented their reforms. Starting a year ago, we brought in community organizers and implemented a door-to-door, face-to-face educational campaign to educate the voters in Douglas County, so they could better understand the impact of these powerful reforms. When the battle to re-elect these reformers came, the prep work was done.
Well before Governor Hickenlooper launched his campaign to raise Colorado income taxes by 27% with Amendment 66, we had already been working on our “Kids Are First” educational campaign. The goal was to show that throwing even more money into a failed system was helping unions and monopolies, not children. We advocated raising expectations, not taxes.
But it was the years of work before that, building relationships and coalitions, investigating the phone conversations between the Guv and Michael Bloomberg, detailing how to get a billion dollars more out of our state budget without a tax increase with our “Citizen’s Budget,” and building a network of freedom fighters around the state that made the difference. The prep work took years. The loss of Amendment 66 was a formality.
For those who invest in and are part of our long, slow, methodical political prep work, well, I just can’t thank you enough. You made Tuesday’s victories possible.
Now back to more prep work…
Debates about climate change always have been clouded (wordplay intended) by two key facts: (1) The discussion is dominated by government agencies and by persons and entities soaked in government money, and (2) their incentives are to promote stormy scenarios that (supposedly) justify even more government control.
For example, a lot of the high pressure blast on the subject (and some would say “hysteria”) blows out of the Intergovernmental Panel on Climate Change (IPCC). The IPCC is not only funded by governments, but is, in turn, sheltered by the UN, an entity consisting of governments.
An alternative to IPCC is the Nongovernmental International Panel on Climate Change (NIPCC), a collection of distinguished scientists whose conclusions differ markedly from the views of their governmental rivals. The NIPCC has issued a new report. It finds that, not surprisingly, global temperatures have changed over time, but that
* There has been no warming for the last 15 years despite an increase in atmospheric CO2,
* the past shows that warming tends to precede CO2 buildups, not follow them,
* by historical and pre-historical standards, the present atmosphere is actually “starved” of CO2,
* if the planet does experience a rise in CO2 levels, with or without some warming, this would be a sunny, not a dismal, thing for the environment.
The findings are much more detailed that that. Get a summary of the full tsunami of evidence here.
P.S.: The summary doesn’t say so, but even if the best forecast is for significant warming, the best response would be freedom, not regulation. History shows that the wealth and flexibility of free economies afford far more ability to respond to changed conditions than command-and-control “solutions.” Wealthy people can afford ecological response; impoverished people cannot.
When it comes to raising debt and taxes, John Hickenlooper is a rainmaker. As mayor of Denver, he jumped out of airplanes to poke a hole in TABOR, wore a blue bear suit for tourism taxes, rode the trolley for RTD’s Fastracks boondoggle, walked with Sesame Street-like letters A through I to raise property taxes and money for Pro-comp for Denver teachers, and a new jail…
Now, in his first foray into tax hikes as governor, he is AWOL. He has worked the phones to pull in millions for the Amendment 66 campaign and said nice things about this 27.4% income tax hike at public events, but he has been missing in action when it comes to taking the lead in selling it. Why? Your guess is as good as mine.
In his past anti-taxpayer conquests, he was able to build a broard coalition of diverse organizations and bipartisan support. But not a single elected Republican supports 66. His usual partners in crime at the Denver Metro Chamber won’t even stand by him. Business groups like the NFIB and Colorado Concern have endorsed a “No” vote. Even Left-leaning editorial boards like the Fort Collins Coloradoan urge defeat.
Without the comfort of the herd, Hick seems content to play only a supporting, backroom fundraising role. Could it be that, after his debacle taking Michael Bloomberg’s advice on gun control (which cost him two senate seats), angering rural Colorado with a renewable energy mandate, and being unwilling or unable to make a decision on clemency for mass-killer Nathan Dunlap, Hick wants distance from another potential embarrassing loss?
Well, we can’t stay quiet and MIA like Hick. The Independence Institute has taken the lead in spreading the truth about Amendment 66. In fact, our work has made it up to our friends on The Wall Street Journal’s editorial page. Their lead editorial today warns: “Democrats and unions try to kill Colorado’s flat tax.”
Our educational effort is called Kids Are First. I urge you to go to www.KidsAreFirst.org right now. There, you’ll see many resources, including the videos we’ve been airing on television. Please share this site with everyone you know. Unlike Hick’s team, we don’t have $7 million+ to get the word out.
And our scholars have been busy actually READING this 150 page monstrosity. Learn about their findings:
Ben DeGrow’s Issue Paper: Amendment 66: Unfair and Overpriced
Ben’s op-ed: Tax Hike Won’t Deliver on its promise
Linda Gorman’s Issue Paper:
A Billion Dollars Worth of Bad Ideas: Amendment 66 Tax Hike
Linda’s Issue Backgrounder: Amendment 66: Spend More, Get Less
My debate with Senator Michael Johnston: 9News video
You know the whole country is still reeling from the last bill we “had to pass to see what’s inside of it.” Amendment 66 is Colorado’s version.
Just to show you that hypocrisy is alive and well in Washington, D.C. (as if you didn’t know), Title V of the Republican bill to “repeal and replace Obamacare” contains some of the same constitutional problems that led 27 states to challenge Obamacare. Under Title V, Congress would partially assume command of state court procedures—including how they conduct jury trials and what evidence is introduced.
Not surprisingly, the bill’s purported “justification” is the much-abused Commerce Power. However, it likely runs afoul of those parts of Chief Justice Roberts’ decision in which he held that (1) Congress could not invade certain core state powers and (2) although the individual insurance mandate was valid as a tax, it exceeded the Commerce Power.
This week I wrote an essay on the bill’s constitutional problems, which I’ve reproduced below, and in PDF form here.
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.