Friday, October 27, 2017

Restore the Electoral College

It’s not often appreciated that the office of President of the United States actually has a job description. Most of it can be found in Section 2 of Article II of the Constitution:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” [1]

Then there is Section 3 of the same Article:

“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

So the president is to, among other things, be the commander-in-chief of the military, decide on the granting of pardons for federal crimes, make treaties, make recommendations to Congress, and ensure that all federal laws are properly executed. A job like that calls for quite a skill set. It requires a certain level of facility in military matters, foreign policy, law, and law enforcement. How will we ever find qualified people?

Let’s suppose we’re starting the country today, and that we have to decide the best method of selecting an individual who will meet the requirements. Let us further imagine that someone proposes that we will select this person by means of a nationwide vote involving every citizen, above 18-years-old, who wishes to participate, who will make their decision based on what they see on television.

That’s ridiculous. Isn’t it?

Much has been said lately about the need to abolish the Electoral College, and let the popular vote prevail. That would probably be an improvement on our current method of electing presidents, where in all but two states, a candidate who receives only a plurality of votes, no matter how narrowly, gets all of the electoral votes from a given state. But what if, instead of abolishing the Electoral College, we restored it?

As originally conceived, the electors weren’t pledged to any one candidate. They would be selected in the manner chosen by their state legislatures, and meet in their respective states to cast their ballot. In other words, electors were originally conceived as actual electors, rather than rubber stamps for political parties.

This could still be done today. Under such a scheme, the popular vote would be for the electors; the people would choose those they believed to have the judgment best suited for the selection of a president. Between the election of the electors and the presidential election, the electors could interview any number of people for the position, and not just those who were running for office. In fact, if our nation became one day truly blessed and fortunate, running for the office of president would be considered a classless act.

Such a system would have some marked advantages. First of all, we would have the comfortable knowledge that we were operating the system in the manner in which it was designed. Secondly, the electors would be capable of making the penetrating investigation that really is necessary in the selection of a president. Thirdly, we would be spared the circus we witness every four years wherein people paradoxically demean themselves in order to attain higher office. 

Of course the Electoral College system was designed without political parties in mind, and would run much better without them. But getting rid of the parties is another subject for another time.

Tuesday, October 24, 2017

We Have to Get Better at This: Tillerson's Gaffe and Our Ongoing Fecklessness in Iraq

Secretary of State Rex Tillerson thinks that it is time for the Iranian militias to leave Iraq. “Iranian militias that are in Iraq, now that the fight against Daesh and ISIS is coming to a close, those militias need to go home,” he said on Sunday. “Any foreign fighters in Iraq need to go home and allow the Iraqi people to regain control of areas that had been overtaken by ISIS.” [1]

That sounds reasonable. There’s a problem though: the fighters are already home. They’re Iraqis!

Unsurprisingly, Iraqi Prime Minister Haider al-Abadi took exception to Secretary Tillerson’s remarks. “Members of the militias are Iraqi patriots who ‘have sacrificed greatly to defend their country,’ Mr. Abadi’s statement said. ‘No side has the right to intervene in Iraq’s affairs or decide what Iraqis should do.’”

Of course, the prime minister is correct. The American secretary of state shouldn’t suggest that Iraqi citizens leave their own country.

Now there is the point to be made that perhaps the prime minister should improve his sense of humor. After all, it is obvious that Secretary Tillerson thought he was talking about Iranians. On the other hand, maybe the fact that our secretary of state didn’t bother to properly inform himself before making such a pronouncement makes him as nervous as it should make Americans. 
On Mr. Tillerson’s behalf, however, it should be pointed out that a “top Iranian commander, Maj. Gen. Qassam Suleimani, has advised the militias inside Iraq, prompting some Iraqi lawmakers to describe them as an arm of Iran’s Revolutionary Guards Corps.” That’s not the same thing as being Iranians, of course, and the secretary’s aides “later tried to clarify his remarks as only meaning that Iraq’s military needed a unified chain of command…,” manifesting awareness of the previous inaccuracy.

But we shouldn’t single out Secretary Tillerson. He is hardly the first of Americans in high places to misunderstand the situation in Iraq. The majority of Iraqis are Shi’a Muslims. [2] It borders on Iran, which is 90% to 95% Shi’a Muslim. [3] In 2003 the United States, for no reason, invaded Iraq to topple Saddam Hussein [4], who had policies that favored Sunni Muslims, and now we’re concerned that Iran has too much influence with Iraq. This is a level of fecklessness that couldn’t be dreamed up by a fiction writer, and will provide no small amount of amusement for history students in the ensuing centuries.   

We have to think of a better way to select our national leadership.

Thursday, October 19, 2017

A Stunning Example of the Growing Republican Misanthropy

One argument for making sure that everyone is covered by health insurance in the United States has been that without such protection hospital emergency rooms end up treating the poor, effectively for free, thereby driving up prices for everyone else. This is because hospitals that take Medicare are required to screen and provide appropriate treatment for individuals who show up in their emergency departments, regardless of whether those individuals are covered by health insurance or have the ability to pay. [1] Hospitals covered by the law are permitted to transfer such individuals to other facilities only under restricted circumstances.

This is an unfunded mandate. [2] Hospitals get no money from the federal government to assist with compliance. “Hospitals and physicians shoulder the financial burden for the uninsured by incurring billions of dollars in bad debt or ‘uncompensated care’ each year.” [3] But medical providers might not be able to make up the difference with their insured patients as much as they would like due to controls on prices brought to bear by insurers. In any event, the cost is borne either by the medical providers, or by the insured population, or by both.

Now the argument that we need to have a more sensible plan to get healthcare to people who can’t afford it assumes that providing healthcare to everybody is a required goal for a decent and civilized society. But it seems that we are being treated to more and more misanthropic creativity from the Republican Party every day.

Last week Representative Diane Black, a Republican from Tennessee, was being interviewed by Chuck Todd on MSNBC regarding congressional progress on healthcare. [4] At one point during the interview she expressed the wish that that President Trump would eliminate both individual and employer mandates by executive order, as if that could lawfully be done, in order to obtain the presumed salutary effects of market forces. Chuck Todd responded by asking whether one can legitimately talk about a market with the situation being what it is in hospital emergency rooms providing uncompensated care. To that problem Ms. Black replied that she would like to get rid of the law requiring hospital emergency rooms to treat whoever shows up.

Yes, you read that correctly. Ms. Black would like to relieve hospitals of the burden of providing emergency treatment to all regardless of ability to pay. It’s as if making sure that everyone receives the emergency treatment that they need isn’t a priority for her at all. Presented with the problem that our current method of providing low-income people with medical care will keep her market idea from working, she literally proposed that we should, therefore, put a stop those with low income from obtaining medical services. A more sardonic display would be hard to find. 

Politics, with its clothes off, really is about control of resources within a society. We should expect nothing else. That’s a good thing to remember so we don’t inadvertently vote for someone who would harm us.

Tuesday, October 17, 2017

No Free Market Solutions to Healthcare

Senator Lamar Alexander, the Republican chairman of the Senate health committee, and Senator Patty Murray, the committee’s Democratic ranking member, have reached an accord between themselves, whereby the health insurance subsidies, the cost sharing reductions to be exact [1], will be funded for two years. [2] This is the funding that was revoked last week by the president, ostensibly to force Congress to come up with a replacement for the Affordable Care Act (ACA), popularly known as “Obamacare,” but which has actually been an unauthorized expenditure due to the fact that Congress has failed to appropriate the money for it.

What remains to be seen is whether the rest of Congress will go along with the plan. Some Republicans have taken the position that the cost sharing reduction subsidies are “a bailout to insurers.” They surely are that, since it reimburses the health insurers for the lower deductibles and co-pays for lower income individuals and families that are required by the ACA. Without those subsidies, insurers will be forced to raise premiums higher than they would otherwise, and the ACA will not be able to operate as designed. Particularly hurt will be those with incomes too high to qualify for subsidies, and insurers might well be incentivized to withdraw from the exchanges.

Of course, forcing the ACA to implode is one strategy for getting rid of it, which has been the Holy Grail for Republicans for some time now. So critical a goal has this been for the Republicans that they have been willing to propose alternatives that would actually reduce the number of Americans covered by health insurance. President Trump, who during the campaign promised that his healthcare plan would cover everybody, at government expense if need be [3], has been caught up in the desperation, giving full-throated endorsement of the misanthropic Republican proposals.

The ideology made manifest in the objection to subsidizing insurers is the neo-liberal dogma that eschews government involvement in markets. But for whatever merit the dogma has for the selling of vacuum cleaners and tennis rackets, it is certainly misapplied to health insurance.

For one thing, the very existence of health insurance drives up the cost of medical care. Health insurers, in essence, provide deep pockets for health providers to charge against, allowing them to charge more than they would be able to charge individuals. Thus there are not the market restraints on healthcare providers that are present for other goods and services. Rising medical costs are met with rising health insurance premiums, the cost of which are largely borne by employers. Employers also have deeper pockets than individuals, and so the insurers are able to charge higher premiums than they would if they were restricted to selling to individual people and families. Meanwhile, the health insurers don’t have the market strength to sufficiently resist healthcare cost increases. But we can’t just rid ourselves of health insurance, because advancing medical technology will increase the cost of medical care by itself. So instead of sellers and buyers engaged in a dynamic that will bring them to an equilibrium price, we see a spiraling upward.

Now there are other factors involved in medical costs. The general health of the population, for example, will be a critical element. But it should be obvious that the notion that there is going to be some kind of “free-market” solution to healthcare is a delusion. Besides, even if a free-market was initially obtainable, there would still be those who could not afford medical care, which, in a decent society, would necessitate government assistance. Government then, as now, would provide a deep pocket for the medical providers to charge against, and the process would begin again.

The critics of the ACA are, therefore, correct, to a point, when they say that it increases healthcare costs, because it surely deepens the pockets against which the health providers can charge. But by making health insurance affordable to more people through subsidies, it sustains the health insurance industry against collapse longer than would otherwise be the case. That is because the health insurers, forced to raise their premiums higher and higher, will be able to sell their policies to fewer and fewer people, and even fewer and fewer employers.

So the Republican critics are right when they say that the cost sharing reduction subsidies are a bailout for insurers. What they are not acknowledging, or they are not telling us, is that without that bailout substantially fewer Americans would be able to have health insurance.

The answer, of course, is to create one health insurer that every medical provider would be required to deal with. That one health insurer would be the only available customer for the medical services industry. Obviously, this one insurer would have significant bargaining power as against the medical providers, and, barring an outlandish level of corruption (which could always be prosecuted), would have the ability to restrain medical cost increases. If we could get over our dystopian tendencies, we could even adjust premiums to the ability of people to pay, and thereby cover everyone (as Donald Trump promised during the campaign).

This is an idea that could garner a good deal of support as long as we don’t call it by its true name: single-payer. Nowadays when you say “single-payer,” dishonest (or ignorant) politicians scream “socialism.” But it is nothing of the sort. Socialism, notwithstanding its prodigious misuse as a term nowadays, is actually a specific thing: government ownership of the means of production. But single-payer doesn’t require a single doctor or nurse to be a government employee, and every hospital could become private (a circumstance not prevailing even now). Indeed, even the single health insurer, the single payer, could be set up as a quasi-governmental corporation. That would probably be the best way to do it, in fact, to make sure it operated according to proper actuarial standards rather than political whim. 

It is true that the private health insurers would go away. It is tempting to ask whether they would be genuinely missed by anyone, but we should not be so cavalier about an industry that employs a good number of people. We can, however, try something different and actually do something to help displaced employees. That said, it is to be acknowledged that the health insurance business, the way it is practiced, is unsustainable. The health insurers are going away anyway, because they will eventually price themselves out of business. The ACA, Obamacare, turns out to be a last ditch attempt to preserve the health insurance industry, but it remains to be seen how long it can delay the inevitable.  

Friday, October 13, 2017

An Execution Is Not a Death by Natural Causes: the Latest Attack on the Affordable Care Act

Article I, Section 9 of the U.S. Constitution says that no “Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law….” [1] To legitimately withdraw money from the U.S. Treasury, the Congress must authorize it by legislation.

A simple legislative direction to pay is not the same thing; “a direction to pay without a designation of the source of funds is not an appropriation” as required by the Constitution. [2] Similarly, “the designation of a source, without a specific direction to pay, is not an appropriation….Both are required.”

An appropriation can be “permanent” or “continuing,” in which case the funds will be “available indefinitely for their specified purpose; no further action by Congress is needed….A ‘current appropriation,’ by contrast, allows an agency to obligate funds only in the year or years for which they are appropriated.”

The Affordable Care Act involves two kinds of “subsidies.” The first is actually a tax credit. “Those taxpayers ‘whose household income for the taxable year equals or exceeds 100 percent but does not exceed 400 percent of an amount equal to the poverty line for a family of the size involved’ are entitled to tax credits to cover their health insurance premiums.” The premium tax credits are advanced to the insurers to reduce the premiums paid by the eligible individuals. There is a permanent or continuing appropriation to fund this program.

The second kind are “cost sharing reductions.” This provision requires insurers on the health insurance exchanges “to reduce deductibles, coinsurance, copayments, and similar charges for eligible insured individuals enrolled in their plans,” for which they are supposed to receive reimbursement from the Department of Health and Human Services. “To qualify for reduced cost sharing, an individual must enroll in a qualified health plan and have a household income that ‘exceeds 100 percent but does not exceed 400 percent of the poverty line for a family of the size involved,” and individuals with an income “between 100 and 250 percent of the poverty line qualify for an ‘additional reduction.’”

Amounts to reimburse insurers for cost sharing reductions, unlike the tax credits, do not derive from a continuing appropriation, but have to be re-appropriated periodically. Unsurprisingly, the Republican Congress has not seen fit to appropriate funds for cost sharing reductions. Reimbursements to insurers have continued nonetheless, but there is a very good, and probably unassailable argument that they are unauthorized, since there have been no corresponding appropriations. Indeed, the United States District Court for the District of Columbia has so decided in U.S. House of Representatives v. Burwell, though the impact of that decision has been delayed pending appeal.

The cost sharing reductions are what are affected by President Trump’s decision to halt subsidies. [3] He cannot legitimately refuse to pay over the amounts associated with the premium tax credit, since that is subject to a continuing appropriation. It is quite arguable that the president may not pay for cost sharing reductions even if he wants to do so because of the lack of appropriations, though he has not indicated that he regrets the situation. But the fact that there have been no appropriations made by the Republican Congress for cost sharing reductions should be emphasized so that it is understood that this latest attack on the Affordable Care Act is a joint Republican operation rather than a unilateral action taken by Mr. Trump.

Now even though there will be no more reimbursements for cost sharing reductions, insurance “companies still have to give the discounts to low-income customers. So if the government doesn’t reimburse the insurers, they’ll make up the money by charging higher premiums for coverage.” This “will most directly affect middle-class families who buy their own insurance without financial help from the government. Consumers who earn more than 400 percent of the federal poverty level — an individual with income of about $48,000 or a family of four that makes more than $98,400 — will likely see their costs for coverage rise next year by an average of about 20 percent nationwide,” as NPR points out. But since the premium tax credit will remain in place, people “with lower incomes will be unaffected….” The tax credits will ensure that “their out-of-pocket insurance costs remain stable.” When the premiums rise, the tax credits will “rise in tandem.”

The prospect of health insurers not getting reimbursed for cost sharing reductions might well cause some of them to abandon the exchanges. Government reimbursements were what made the Affordable Care Act palatable to the insurance companies to begin with. The Republican refusal to fund the cost sharing reductions should be seen for what it is: a deliberate effort to make the Affordable Care Act implode. If the effort is successful no one should be deceived into believing that the Affordable Care Act failed because of any defect in the legislation itself. Its failure will have been deliberately engineered by a political party that decided that a successful health plan, nicknamed for a president from the opposing party, was not in its partisan interests.

Thursday, October 12, 2017

The Iran Nuclear Deal and the Rule of Law

“President Trump is expected to announce his decision on the fate of the Iran nuclear deal in a speech on Friday,” and “is expected to ‘decertify’ the Iran nuclear deal forged by the Obama administration and declare that it no longer serves U.S. national security interests,” according to ABC News. [1] “That decision not to certify the agreement would give Congress 60 days to re-impose sanctions against Iran that were suspended in 2015 as part of the agreement.”

But the legality of such an action would be highly questionable. The State Department opined in 2015 that the nuclear deal, formally known as the Joint Comprehensive Plan of Action (JCPOA), is not legally binding on the United States [2], which would make withdrawal from the agreement at any time permissible.

That might have been true if the JCPOA had gone no further than the agreement between the parties. But the agreement was subsequently adopted by the United Nations Security Council, in Resolution 2231 [3], and, according to Article 25 of the United Nations Charter, the “Members of the United Nations agree to accept and carry out the decisions of the Security Council….” [4]

Article II, Section II of the U.S. Constitution provides that the president has the power, “by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur….” [5] Article VI of the Constitution says, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  

The UN Charter is an international treaty that was duly ratified by the United States Senate [6], and thus is federal law according to the U.S. Constitution. The United States is, therefore, legally bound by the terms of the JCPOA, until there is a superseding Security Council resolution, the U.S. Constitution is amended to eliminate treaties as binding law, or the United States somehow withdraws from the United Nations.

So withdrawal of the United States from the JCPOA would not only violate international law, an authority that often evokes sneers from those who adhere to a philosophy of might-makes-right, it would also violate federal law. What’s more, the suspicion that Iran is not complying with the agreement is insufficient, by itself, to justify withdrawal. Instead, if the United States believes that Iran is not complying, the correct procedure is to first refer the matter to a “Joint Commission” consisting of the parties to the agreement. [7] It could thereafter withdraw after going through specific procedures that would make it clear if objections were being made in bad faith. But there is no authority to withdraw from the agreement because the current president doesn’t believe that the agreement should have been entered into in the first place, or that it no longer serves American interests.

There are rational reasons for the United States to comply with international law, even though arguments for doing so often fall on domestic deaf ears. International law arises out of commitments previously made, and if the U.S. doesn’t live up to its commitments it simply can’t be trusted. That is not acceptable, even if the current state of affairs is such that the U.S. is not susceptible to military compulsion. Lawlessness on the part of the U.S. today is poor planning for the inevitable future when it will no longer be the world’s dominant power. Now would be a good time to establish adherence to international law as a precedent. Moreover, what incentive do other nations have to enter into agreements with the United States if subsequent administrations will simply breech agreements they don’t like? 

As for those who remain unpersuaded, who believe that it is sensible policy for the U.S. to ignore its commitments and violate international law with the impunity that its military power now affords, perhaps they will be persuaded by the fact that the JCPOA is really a feature of federal law by the provisions of the Constitution. To hold otherwise would be to maintain that we need not be subject to the rule of law.  

Tuesday, October 10, 2017

Not a Moron Exactly

Our president has descended to the level of ridiculing Senator Bob Corker for his five-foot-seven height. [1] You might think he is demeaning the presidency with behavior like this. Or you might, along with some of his advisers, be concerned that he is “further fracturing his relationship with congressional Republicans just a week before a vote critical to his tax cutting plan.” But if you think he is behaving stupidly, you ought to reconsider your position.

“Stupid” is a word that gets thrown around too much. We often use it for things that aren’t stupid exactly, but are things we disagree with, or even things we don’t understand. So we often say that a political figure has said something “stupid” as a way of strongly registering our disapproval. And we might say that a politician is going about the business of improving the economy in a “stupid” manner, although, unknown to us, his aim is not to improve the economy at all.

But how could making fun of Senator Corker’s height not be a stupid thing for President Trump to do? Even if he is not worried about demeaning the office he holds, he does need Congress to enact any legislation he desires, and it doesn’t seem wise to alienate its members in an ongoing argument that loses substance as it progresses.

This is confusing only so long as we think that Donald Trump has any objective in mind beyond being the president. But he does not. Ideologically and philosophically he is an empty suit. When he considers what ideas to adopt, he considers only two things: what will benefit him personally, and what will get him elected.

Thus, even though he was notably vocal about repealing the Affordable Care Act, he came up with nothing substantial himself in the way of a replacement. Congress, having gotten used to major initiatives of that kind coming from the White House, proved to have atrophied initiative muscles, and was unable to come up with a replacement that wasn’t palpably worse. 

Substance, of course, isn’t Mr. Trump’s bailiwick. He is a salesman. He is very, very good at it. He is a serial philanderer who sold himself as the Evangelical candidate. He is a one-percenter, calling for “supply-side” tax cuts, who sold himself as a champion of the working class. He is a draft evader who sold himself as a patriot who would “make America great again.” And like all good salesmen, he knows that, above all, he has to sell himself.  

He sells himself largely by knowing what will attract attention to himself. Allowing himself to be a curiosity, he manipulated the news media into giving him a good deal of free advertising during the primaries. He did this because he knows what attracts media attention. It is not a set of great ideas that attracts that attention, but those things that will enhance ratings and advertising revenue. A detailed and scholarly analysis on how to improve the economy or improve foreign relations won’t do that. Calling your political opponents names like “Crooked Hillary,” “Pocahontas,” “Crazy Bernie,” “Little Marco,” “Lyin’ Ted,” “Low Energy Jeb,” or “or Cryin’ Chuck” will do that. [2]

In behaving this way, he shocks the pundits, but only confirms what most Americans, with no small justification, already think about the political class. The pundits are outraged, but that very outrage garners media attention. Meanwhile he gives voice to the frustrations deeply held by a large segment of the populace.

There are risks to this strategy, of course. One thinks that, at some point, he will have to deliver with some substantial improvements. But he doesn’t seem overly concerned about that. During the campaign he said that his health plan would cover everyone. “I am going to take care of everybody,” he said. “I don’t care if it costs me votes or not. Everybody’s going to be taken care of much better than they’re taken care of now.” [3] Not only that, but he said that “the government’s gonna pay for it.” But once he was president he got behind GOP plans that would have resulted in millions fewer being covered. [4] He apparently felt that he would later be able to sell himself around the inconsistency. Perhaps he was right. He is a genius at media manipulation.

There are areas, however, where his aptitude will be of little use. He is trying the same strategy in his dealings with North Korea, even going so far as to deride Kim Jong Un with the epithet “Rocket Man” on the floor of the United Nations. [5] But the North Korean dictator’s position of power doesn’t depend on the American electorate, and a miscalculation here could have consequences more dire than lost votes. 

If Secretary of State Rex Tillerson really called Trump a “moron,” [6] he was mistaken. Mr. Trump’s political opponents should not make the same error, or they are likely to see the same electoral results in 2020.  

Thursday, October 5, 2017

No Free Tickets to the Moon

Vice-President Pence says he wants the United States to go back to the moon. “’We will return American astronauts to the moon, not only to leave behind footprints and flags, but to build the foundation we need to send Americans to Mars and beyond,’ Pence said.” [1] This remark, which “drew loud applause,” [2] was made at the “first meeting of the National Space Council, revived after it was disbanded in 1993.”

But the Washington Post reports that “details, such as how much the new ideas will cost, were scant and outside experts said they’ve heard grandiose plans before only to see them fizzle instead of launch.” And it is easy to see why it would be so. As President John Kennedy put it, “We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard.” [3]

That was the sort of America that existed in those days: one that was undaunted by challenge, but was, rather, inspired by it. But some disillusion has transpired since then. President Kennedy’s remarks were made before the Watergate scandal and the fall of Saigon. And while we have seen a resurgence in American bellicosity, we are governed by a party which has as an operating principle that the federal government should be reduced to the size where it can be drowned in the bathtub. [4]

On July 21, 1969, the world watched in wonder and amazement as Neil Armstrong stepped on the Moon for the first time. It was an incredible achievement, and a source of tremendous national pride. It would be fantastic to recreate a time like that. But in order to accomplish it, we are going to have to recreate the conditions that made it possible.    

When Apollo 11 landed on the Moon, the top marginal tax rate in the United States was 77%. [5] Now it’s at 39.6% [6], and the administration of which Mr. Pence is a member wants to reduce it to 35%. [7]

Although the United States was first to the Moon, we now have to hitch a ride with the Russians if we want to go to the International Space Station. [8] An earlier generation of Americans would have thought that disgraceful, but nowadays we apparently can bear the shame as long as we can keep taxes low for the wealthiest among us. 

If we want to do great things like go to the Moon, we have to be willing to pay for it. And we can only pay for it if we are raising sufficient revenue through our tax system.  

Wednesday, October 4, 2017

Confidence in Government, Grand Juries, and the Equifax Executives

“’This really stinks—it really smells really bad,’” said Senator Jon Tester of Montana to Richard Smith, the former chief executive officer of the credit bureau Equifax during a Senate Banking Committee hearing on Tuesday. But, he added, “’I guess smelling bad isn’t a crime.’” [1]

The olfactory reference was to Mr. Smith’s insistence that three Equifax executives sold $2 million worth of stock in the company after “a colossal data breach that compromised the data of more than 145 million people,” [2] but before the breach was disclosed to the public [3], without knowledge of the breach. And Senator Tester is correct when he says that something stinks. He is also right in pointing out that smelling bad isn’t a crime. But that misses the point that crime is among the things that stink, and that a stench of this kind ought to alert us to its presence.

Now far be it from your humble servant to state with confidence that someone should be charged with a felony based on what he has read in media reports. But we do have federal grand juries that are supposed to make exactly such determinations, based on evidence presented before them.

Unfortunately, grand juries have become prosecutorial creatures: usually indicting where the prosecutor desires it, and not doing so when the prosecutor does not. But that is not how they are supposed to function. Their purpose is actually to keep the charging of crimes from becoming too much of an executive, governmental function. Citizens are called, temporarily, for the purpose of making the determination of whether there is sufficient evidence to charge in the cases brought before them, thereby removing the decision from either vengeful or colluding executive officers.

Moreover, it prevents the charging function from becoming hampered by the indolence generated by bureaucratic inertia. Insider trading cases are uniquely difficult to prove, and this may give rise to an undue prosecutorial reticence.

If the Equifax officers move on with their lives without any review of their actions, we will be confronted with yet another cause for popular despair over the effectiveness of government operations. It will be assumed, perhaps rightly, that government in the United States is organized for the benefit of plutocrats. On the other hand, it would be no answer to descend into the mob justice that can so easily follow when a citizenry decides that the justice system has become non-operative. A return to the grand jury as it was intended to be, that operates under its own steam and initiative, is the way that we already know to prevent such eventualities.

Tuesday, October 3, 2017

The Second Amendment Does Not Stop Us

The Second Amendment to the U.S. Constitution reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” [1]

On its face, this might appear to protect the owning of weapons for militia purposes. But the Supreme Court has authoritatively opined that the prefatory language about the militia, while it expresses the purpose of the constitutional protection, does not limit the scope of that protection. [2] The individual possession of firearms for personal protection is protected by the Constitution.

Thus said the Court in District of Columbia v. Heller, a 2008 case, which summarily dispensed with decades of scholarly opinion about the Second Amendment to the effect that the right to keep and bear arms is essentially the right of states to maintain a militia. That, of course, was never an entirely honest approach, since the Second Amendment specifically speaks of “the right of the people to keep and bear Arms…,” not the power of the states to organize militias.

But the Second Amendment has been a source of discomfort for some time, speaking to a milieu that has long ceased to be operative, and portending absurd outcomes in an age of advanced weaponry. The Amendment was born of the jealousy against standing armies that characterized the early Republic, at a time when the difference between military and civilian arms was not so marked. Nowadays few doubt the necessity of a standing military, and fewer still imagine that an association of armed civilians could put up meaningful resistance to the United States armed forces.

What never changed, however, was the natural law right of a person to defend himself against deadly assaults, and to be suitably armed for that purpose. It wasn’t the focus of the Second Amendment, doubtlessly because no one anticipated that the federal government would be empowered to disarm the entire population, but it was a critical right recognized by the English Common Law that we inherited. [3]

What the Heller case did was dislodge the right to keep and bear arms from its militia moorings. And even if one can argue that it did not do so legitimately, it certainly did so effectively, for such is now the state of the law. But this is not to be lamented, because prior to Heller the law was, quite arguably, that the Second Amendment protected against banning possession of the standard military rifle [4], which nowadays is the fully automatic M-16. But after Heller there is no longer any doubt that such weapons can be prohibited for civilian use.

That means that civilian possession and ownership of the kind of weapons used by the Las Vegas shooter can constitutionally be prohibited. What’s more, now that the Second Amendment protects weapons ownership for self-defense solely, a reasonable restriction on the number of firearms a person owns could be enacted. [5] And it really needs to be done at long last. There simply is no sane argument that semi-automatic rifles with high-capacity magazines should be available to the general public. A restriction on the number of firearms one person may own is also necessary, so that a disturbed individual like the Las Vegas shooter cannot substitute a number of firearms for a high-capacity magazine.

There is, of course, the old argument that criminals don’t care about the law, and will own prohibited weapons regardless of what the law is. But that is only true to a point. We can expect the same sort of individuals who already traffic in contraband to gain access to prohibited weapons. But, strange as it may sound, those are not the individuals who would be directly targeted by such a law. The ones who would be targeted would be the sort who feel compelled to shoot concertgoers, or children in schoolyards, and there is no reason to suspect that individuals operating with that sort of mental disturbance would have underworld access.

The incident in Las Vegas is really the last straw, if it didn’t arrive before now. There is a serious need for strong legislative action. Now.