Rand Paul's Authoritarianism And Hypocrisy On Display Today

Rand Paul, who professes to be a libertarian and staunch believer in Constitutional rights and limited government is anything but. His professed respect for the freedom and liberty of others is situational at best. The most recent example of his authoritarianism and hypocrisy is his statement regarding marriage equality. Today on Fox he said the following:

I've always said that the states have the right to decide (the issue of marriage equality.) * * * I do believe in traditional marriage, Kentucky has decided it, and I don't think the federal government should tell us otherwise, * * * I don't want the government promoting something I don't believe in, but I also don't mind if the government tries to be neutral on the issue."

So let's parse this hypocritical drivel. First, he says "that the states have the right to decide." Well, why should the states have the right to decide any more than the federal government. If you are a true libertarian you don't believe that government at any level should have the right to decide how people live their own personal lives. For instance a true libertarian would follow the Libertarian Party platform on this issue which says

Sexual orientation, preference, gender, or gender identity should have no impact on the government's treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws. Government does not have the authority to define, license or restrict personal relationships. Consenting adults should be free to choose their own sexual practices and personal relationships.

(I am not a Libertarian, but this aspect of their platform is something agree with and coincidentally it largely mimics the Democratic platform.)

Next he says that while the states should have full authority to dictate how people live their individual lives, the federal government should have no role in the matter. This is strikingly at odds with the provisions of the federal Constitution which insure that not only the Federal government but the states cannot infringe on personal rights. It appears that while he has a problem with federal authoritarianism he is totally comfortable with state dictates.

But his hypocrisy goes much, much further. First, he says as a personal matter he believes in something he refers to as "traditional marriage." That's fine. He's entitled to any personal beliefs he has. That is not the question. The only question is what does he believe government should or should not do regarding the issue of marriage equality. On that subject he says "Kentucky has decided it, and I don't think the federal government should tell us otherwise." So not only does his libertarianism begin and end only with actions of the federal government but he is perfectly happy to have a state government that denies people their personal liberty simply because that denial comports with his personal beliefs.

Not satisfied with exhibiting hypocrisy and authoritarianism he adds some incoherence.

I don't want the government promoting something I don't believe in, but I also don't mind if the government tries to be neutral on the issue."

He doesn't want the Federal government promoting something he doesn't believe in but by extension he's more than happy with having the federal government promoting something he does believe in. And then he goes on to say I don't mind if the government tries to be neutral on the issue. Well, guess what? That is exactly what the proponents of marriage equality are after. Neutrality. What they don't want is for the federal government or the states to be biased in favor of one type of marriage by prohibiting others from enjoying the benefits of marriage.

If anyone ever had any doubts as to whether Rand Paul is a libertarian or for that matter someone who even believes in the rights guaranteed by our Constitution, his discussion of marriage equality leaves no doubt as to his true thinking. He only believes in rights that are consistent with his own personal beliefs and is more than happy to have the states infringe upon rights and for the federal government to be restricted in its ability to guarantee rights, Unless of course those federal actions are consistent with his "personal" beliefs.

Some libertarian! Rand Paul is nothing nothing more than a right-wing theocrat, and a hypocritical autocrat, pretending to be something else.

House Will Vote On Clean Debt Limit Bill on Wednesday

The House is going to raise the debt limit on Wednesday but will not actually be voting for a debt limit increase. Rather, to spare their poor members the embarrassment of actually having to raise the debt limit, the language of the bill will suspend the debt limit law until May 19, 2013, on which date the new debt limit will be whatever debt has accumulated between now and then.

When the bill is enacted, there will be no limit on how much debt can be issued until May 19. On that day, there will be a new, higher, limit in place. That new limit will include all the debt issued between now and May. It will also include the debt that will have been issued to cover the debt that has been deferred since January 1 through the "extraordinary measures" that were used by the Treasury to avoid default.

Putting aside the cowardice of the Republicans in their refusal to actually vote on a debt limit increase that has a big number in it, this is great news. This vindicates the President's determination to not negotiate with those who would hold America hostage, those who would jeopardize payments to Social Security recipients, those who would jeopardize the full faith and credit of United States debt in the world bond markets, those who are so irresponsible that they cannot accept their basic obligations as members of United States Congress.

This debt limit suspension bill does not include anything else except what is hoped to be a cudgel to be used on the members of Congress themselves. The bill provides that if by April 15 both the House and the Senate have not agreed on a joint budget resolution, then all pay of the members of the House and Senate will be held in escrow until such time as they agreed to a budget resolution. Interestingly, April 15 is the date that both Houses are supposed to agree to a joint budget resolution under the Budget and Impoundment Control Act of 1974.

By actually providing for payments of salaries to be made, but for them to be paid into an escrow account rather than distributed to members of Congress, the bill is designed to avoid the Constitutional prohibition against "varying" the salaries of the members of Congress during the term for which they were elected.

The interesting thing about it is that, to the extent it actually places pressure on members of Congress, it will have much less impact on the members of the Senate who by far are richer and much more able to live very comfortably without their Congressional salaries. It is also somewhat amusing that, once again, the Republicans think a ploy needs to be adopted to force the Members of Congress, including their own, to do their jobs.

Why The Debt Limit Fight Will Be A Political Face-Off With No Gimmicks Or Constitutional Crisis

In dealing with the upcoming debt limit crisis, President Obama will approach it in a fundamentally different way than he did back in 2011. But for a variety of very good reasons he will make it a straight up political face-off between the President on behalf of the people of the United States against a minority of Republicans in Congress who have recklessly threatened to put the country in default.

As he said in his press conference today "There are no magic tricks here, there are no loopholes." This reiterates what the President stated on Friday, through the Treasury, that he will not use the platinum coin option. That statement echoed his decision in 2011 that he would not use the 14th Amendment option. By these determination he has made clear will not circumvent the debt limit law by the use of one of several tactics that, while arguably legal, would be viewed by some as gimmicks, or that could develop into a significant Constitutional crisis. Moreover, he understands that the use of any of those options would merely delay the final day of reckoning. The debt limit must be increased and it is Congress' responsibility to do so.

To understand those issues we must first look at the debt limit law itself. There is a provision in the United States Code that limits the amount of money the United States can owe at any one time, and thus the amount it can borrow. It reads

31 USC 3101(b) The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaranteed by the United States Government (except guaranteed obligations held by the Secretary of the Treasury) may not be more than $14,294,000,000,000, outstanding at one time, . . . .

That limit is modified by the provision of law enacted as part of the 2011 debt limit confrontation which gives the President the authority through successive acts to further raise the debt limit to $16.394 Trillion.

The Treasury reached that $16 Trillion limit at the end of 2012. Here is a comprehensive Congressional Research Service Report report explaining the history and operations of the debt limit. Since the end of the year, Treasury has used some "extraordinary" powers, such as canceling Civil Service Retirement Fund obligations, to keep paying the bills.

There have been three options under discussion. It has been argued the President could use the authority to mint a platinum coin in a trillion dollar denomination and use those funds to continue to pay the Treasury's bills. The second alternative was to use his authority to issue scrip that would be used to pay the debts of United States until the debt limit that could be raised and real dollars borrowed. The third option was for the President to simply say that he has the authority under the 14th Amendment, or some other constitution provision, to issue debt notwithstanding the fact that the issuance would exceed the amount of the debt limit law.

The President did not choose the first two options because, whether or not one thinks he has the legal authority to issue a platinum coin or issue scrip, the President knew that both internationally and domestically taking either of those actions would be viewed as a gimmick, a magic trick. More importantly, either of those actions would merely be kicking the can down the road. They would be giving the Congress an excuse to not raise the debt limit because the President would have continued to keep the country operating and the Republicans would have been let lose to fight the President in the courts and through impeachment hearings.

The third option was for the President to assert that the 14th Amendment gives him the authority, if not a requirement, to avoid default notwithstanding the debt limit. But this assertion would create a significant Constitutional crisis, a crisis between the President and the Congress as well as between the President and the Supreme Court.

Asserting this position is not the same as a conflict between two statutes, where the President interprets one statute as overriding another. Many people have suggested this possibility by arguing that the Congress has passed Appropriations Acts and that they require the President to spend the money appropriated, a requirement which conflicts with the debt limit law. That argument has little merit. There is no statute that says money that is appropriated must be spent if there is no money available. In fact, if you look at every appropriations Act the lead off language is ,

"That the following sums are appropriated, out of any money in the Treasury not otherwise appropriated, . . . . . "

"Any money in the Treasury." Very soon, if Treasury cannot borrow money and put it in the Treasury, there will only be two dollars in the Treasury for every three dollars of bills coming due.

Appropriations acts simply do not authorize let alone require the expenditure of funds that the Treasury does not have. There is no conflict between Appropriations Laws and the Debt Limit law. One tells Treasury how to spend money in the Treasury. The other limits how much can be borrowed to put money in the Treasury. This question is totally different than the question of whether the President can refuse to spend appropriated funds when such funds are available, which the Supreme Court has ruled to be unconstitutional.

Simply put, we are talking about the President having the power to unilaterally decide whether he will comply with laws that are duly enacted by Congress and signed by the President. Except for Nixon, no President has done that in this way since Lincoln suspended the Habeas Corpus provisions of the Judiciary Act of 1789. The action was challenged by a prisoner but Lincoln ignored a court decision which ruled the action Unconstitutional. Eventually, however, Congress essentially ratified his action.

It is important to point out that this is not the same as the President's decision to not defend the Constitutionality of DOMA, the Defense of Marriage Act. In the case of DOMA, the Constitutionality of the law had been challenged in court. The President decided that the law was no longer Constitutionally defensible and argued that position in court. However, he also announced that he would continue to enforce DOMA until the courts struck it down.

Also, this is not like the President's decision regarding Libya and the War Powers Act. While all Presidents have questioned the Constitutionality of the War Powers Act, all have generally complied with it. In the case of Libya, the President argued that he complied with the requirement for him to consult with Congress and that, in any event, the Act did not apply because we were not involved in hostilities. Whether one agrees or disagrees with the President's positions, he clearly did not take the position that he even though the Act applied he could violate it based on his determination that it was not Constitutional.

In contrast with those situations, in the case of the debt limit the President would be directing the Treasury to ignore a law that clearly applied to its actions based on his unilateral; determination of its Constitutionality. He would be doing so even though the law has not been challenged let alone held to be Unconstitutional by a court.

Virtually all legal scholars believe that the President has a duty to enforce the law regardless of what he thinks about it because all laws that are duly enacted are presumptively Constitutional. This is a basic tenet of our legal system that was referred to in the 6th Circuit Decision upholding the Affordable Care Act

The minimum coverage provision, like all congressional enactments, is entitled to a “presumption of constitutionality,” and will be invalidated only upon a “plain showing that Congress has exceeded its constitutional bounds.” . . . The presumption that the minimum coverage provision is valid is “not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power . . .(citations omitted).

No Court has held that the President has the power to issue a binding ruling that any law, such as the debt limit, is Unconstitutional. Rather the courts have held that such power resides in the Supreme Court. Since the 1803 case of Marbury v Madison it has been accepted that only the Court can declare a law Unconstitutional. Unless that happens or until it is repealed, the debt limit is the law of the land.

Having rejected all other options, the President has decided to engage in a direct challenge to the Congress. He is not going to play games or kick the can down the road. And he certainly isn't going to give them ammunition to argue that he has exceeded his Presidential authority, which would create a sideshow of its own involving court cases and Congressional hearings. This is actually the boldest step he could take it is also the step most likely to succeed because it is a pure political challenge involving the power of a President who is just been reelected against a very unpopular Congress. As such it is by far the most likely to succeed.

White House Responds: No Secession Today Boys

The White House has issued its response to all the secession petitions filed on its website. In the politest way possible the petitioners were given a gigantic red raspberry. In addition, the White House took the opportunity to point out that secession runs counter to the precepts that undergird our democracy, has been ruled to be illegal by the Supreme Court and, tragically, has been tried once before at a cost of 600,000 lives.

Writing a response to the people who view secession as a viable option surely must have been a real challenge for the rational, professional, knowledgeable, and educated folks working at the White House. But they were up to the challenge and did a masterful job with this one. While the full text is set out below, I thought it useful to highlight what are arguably the most important points.

The White House pointed out that first and foremost we are a self-governing nation in which people have the power through the ballot box. Elections are the process that has been used for over 200 years for people to elect their representatives and seek to change their government. Destroying the Union or leaving it are not legitimate options. These thoughts are captured here,

Our founding fathers established the Constitution of the United States "in order to form a more perfect union" through the hard and frustrating but necessary work of self-government. They enshrined in that document the right to change our national government through the power of the ballot -- a right that generations of Americans have fought to secure for all. But they did not provide a right to walk away from it.

The White House then points out that not only is the ballot box the forum for resolving disputes, but that 150 years ago secession was tried with terrible results.

As President Abraham Lincoln explained in his first inaugural address in 1861, "in contemplation of universal law and of the Constitution the Union of these States is perpetual." In the years that followed, more than 600,000 Americans died in a long and bloody civil war that vindicated the principle that the Constitution establishes a permanent union between the States.

And for those who think that maybe states can secede without the Civil War, the White House also points out that when the Supreme Court addressed this issue it clearly held that secession is not a legal option for states.

And shortly after the Civil War ended, the Supreme Court confirmed that "[t]he Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States."

The Supreme Court case referred to is Texas v White, a case which should be mandatory reading for all would be secessionists. Here is a money quotation,

When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Of course none of this will assuage the anger and anxieties of the would be patriots in Texas and elsewhere who express their patriotism by wishing to dissolve the Union. They will only be satisfied when a person who looks like them, thinks like them and acts like them becomes President of United States. Of course to find that country they may have to leave the United States and band together to form the Disjointed Republic of Dimbulbistan.

Here is the full text of the White House petition response.

OFFICIAL WHITE HOUSE RESPONSE TO
Peacefully grant the State of Louisiana to withdraw from the United States of America and create its own NEW government. and 8 other petitions
Our States Remain United
By Jon Carson

Thank you for using the White House's online petitions platform to participate in your government.

In a nation of 300 million people -- each with their own set of deeply-held beliefs -- democracy can be noisy and controversial. And that's a good thing. Free and open debate is what makes this country work, and many people around the world risk their lives every day for the liberties we often take for granted.

But as much as we value a healthy debate, we don't let that debate tear us apart.

Our founding fathers established the Constitution of the United States "in order to form a more perfect union" through the hard and frustrating but necessary work of self-government. They enshrined in that document the right to change our national government through the power of the ballot -- a right that generations of Americans have fought to secure for all. But they did not provide a right to walk away from it. As President Abraham Lincoln explained in his first inaugural address in 1861, "in contemplation of universal law and of the Constitution the Union of these States is perpetual." In the years that followed, more than 600,000 Americans died in a long and bloody civil war that vindicated the principle that the Constitution establishes a permanent union between the States. And shortly after the Civil War ended, the Supreme Court confirmed that "[t]he Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States."

Although the founders established a perpetual union, they also provided for a government that is, as President Lincoln would later describe it, "of the people, by the people, and for the people" -- all of the people. Participation in, and engagement with, government is the cornerstone of our democracy. And because every American who wants to participate deserves a government that is accessible and responsive, the Obama Administration has created a host of new tools and channels to connect concerned citizens with White House. In fact, one of the most exciting aspects of the We the People platform is a chance to engage directly with our most outspoken critics.

So let's be clear: No one disputes that our country faces big challenges, and the recent election followed a vigorous debate about how they should be addressed. As President Obama said the night he won re-election, "We may have battled fiercely, but it's only because we love this country deeply and we care so strongly about its future."

Whether it's figuring out how to strengthen our economy, reduce our deficit in a responsible way, or protect our country, we will need to work together -- and hear from one another -- in order to find the best way to move forward. I hope you'll take a few minutes to learn more about the President's ideas and share more of your own.

Jon Carson is Director of the Office of Public Engagement

Letter To The President: Cutting Tax Spending and Fixing Long Term Social Security Deficit

President Barack Obama
White House
Washington D.C. 20500

Dear Mr. President,

I have a proposal for how you can deal with the upcoming push to continue to get a grand bargain, hopefully outside the context of the debt limit. The Republicans want to you to focus on cutting costs, saying that taxes have been decided. You should agree but only if all costs are looked at - those that involve the Treasury writing a check and those the involve the Treasury writing a back door check by telling a taxpayer he can reduce what he owes. We must focus on cutting all expenditures, those made by directly by appropriations acts and those made indirectly through the tax code.

There is no doubt that tax expenditures have been under discussion. But I have a proposal for how to do reframe that debate and implement changes that I have never heard discussed. It is an approach which would be much easier to understand, sell, and implement.

Everyone knows tax policy is hard and complex, but it can be made easier. If you have three goals: cutting spending made through the tax code (tax expenditures); making the tax system fairer and more progressive; and reducing or phasing out subsidies that have passed their useful life, here is a "relatively" simple way to achieve all those goals.

Eliminate all deductions by converting them into tax credits, unrefundable of course. Value those credits at 10%, which is the lowest tax rate. (That gives you some room to negotiate up on some if necessary.) Doing this will achieve many important things.

* It lowers the deficit by cutting wasteful costs we are making through tax expenditure without raising rates.

* It leaves every truly middle class tax payer, those earning within 50% of the income mean, in roughly the same place or better than they are today.

* It gives every taxpayer the same subsidy for doing the same thing. The wealthy will not get a back door check from Uncle Sam for 35% of the interest cost on their mortgage, while the working guys only get a benefit of 10% of their mortgage interest expense. The same for charitable deductions and all the rest. This cures an unacceptable unfairness in the code and runs counter to any legitimate public policy interest.

* It simplifies the code, eliminating the really complicated things like the recently reinstated Pease Plan which partially limits the value of deductions in an unnecessarily complex way.

* Finally it gives you a mechanism to phase out tax expenditures that have passed their time. If those phase outs are done at 1 to 2% per year per year will be as easy to tolerate as the phased out tax benefits enacted in the Reagan years that eliminated for instance the deductibility of non-mortgage consumer debt.

Look, I know everything has complexities but those things can be worked out. I also know that institutions and people have a “not invented here” mindset that make them resistant to change. But this really can work. And once your your folks analyze it you will see that I have only scratched the surface of the benefits it offers.

* * * * * *

Personally, we hoped all the Bush tax cuts would have expired, knowing that would have cost us several thousand dollars but ones we never knew we were missing in the nineties. I have spent a career dealing with economist and their charts and tables and respect their work, but I understand the limitations of that work are real. One need only look at how they totally under predicted the effects of the great recession when folks like me, who were tying to sell a house and seeing the swift and deep collapse of the market could readily see the impact it was going to have on not just housing but the entire overleaveraged financial system. It was clear to anyone not looking at recession charts of the last three decades that we were facing something much worse than what had been seen since the depressions. Conversely, those same experts have not accurately seen that now the rate of growth is increasing faster that they thought. Since they have been burned by under prediction in the past they don’t want to burned by over prediction now.

That is a long way to say we could generate far more tax revenue without hurting the economy than is being thought, and could use it for necessary expenditure as well as deficit reduction, which is going to be the key Republican mantra over the next four year. Not only that, higher revenue, with part used for more infrastructure spending as well as long term investment and the rest used for lowering with lowering the deficit will help us grow faster.

I have one final thought on Social Security and Medicare. I think the long term Social security issue could be solved by not only lifting the the wage tax cap but by making all dividends and capital gains subject to the full 12.4% rate. A version of this was done in the ACA for the Medicare tax. You could even add a new small benefit percentage in the calculation so the the super rich would see a bit of return on these contributions. I think you will find that this change would pretty much eliminate the projected Social Security shortfall. It would also have the salutary effect of getting the total tax rate on unearned income closer to par with the total tax rates paid on wages

* * * * * * *

We live in a great country but since the eighties we have been making it less great by increasing income inequality, and living off the legacy of public expenditures made by our fore-bearers. As a consequence we are sadly seeing a less just, stable and economically dynamic country.

I am confident you are the Leader that can continue on the course to turn this around. I first really heard it in the Osawatomie speech, which was brilliant and moving. I continue to hear echoes of that speech to this day. I hope what I am proposing here will be yet another way for you to present concrete proposals that will further the necessary aims you have for our Nation.

Yours Very Sincerely,



Gary L. Norton
Durango, CO 81303



I added a small postscript inviting him for a visit to our house in a beautiful part of the country. He hasn't been here but Michelle has and he should just ask her.

Dinner With Five Voltec Engineers

On October 23, my wife and I had dinner with five Voltec engineers in Durango Colorado. We had received a call about a week ago saying they would be stopping in town and wanting to know if we would be interested in talking with them. We, of course, we’re delighted to meet them and share our experience with the car.

These five engineers are part of the propulsion team. They were making a loop through Colorado that started in Denver and would end in Colorado Springs. They told us that they were testing various new components, and otherwise testing the performance of the vehicle in mountainous terrain. They did not share what those the new components might be.

At the outset I should note that these men seemed to be very proud of what they had achieved. They took great pride in the Volt. I was very complimentary towards the car and they told me how much they appreciate not only what I said, but also the very positive responses the Volt has received. Several of these guys had also worked on the hybrid Silverado and they were very proud of their achievements with that truck as well. I should also note that GM-Volt.com came up in the discussion several times, primarily raised by me. There were many smiles around the table and they assured me that they were very familiar with the site and it was monitored closely every day.

Our discussion started with their question as to why I bought the Volt. Condensing a long discussion, I said that I fell in love with the car. The car and I made a connection. It just felt right. I had never bought a Chevy before, and have only owned one other American car out of the dozens of cars I’ve owned. I had not expected to feel a connection with the car when I got in and drove it, but boy was I surprised. I was impressed by the quality and the quietness, by the feel of the breaks, steering, and doors, and above all I was impressed by the quickness, responsiveness, and seamless operation of the car. Yes, the extremely low operating costs, environmental considerations and cutting our dependance on oil are all very important factors. But if most buyers are like me, the first and most important question is whether the car feels right. In the case of the Volt, the answer was a definite yes for me.

Since they were propulsion engineers they were primarily interested in how the engine/ battery/drivetrain system worked in mountainous terrain. I told them I was very happy with Mountain Mode. I had tried to navigate the mountains without it, and ultimately concluded that Mountain Mode was the best. I did ask them about a phenomenon I had experienced on several occasions. Usually when I run out of battery power driving on the flats it shows that I consumed around 10.4 kW. However, on several occasions, and it seems primarily when driving in the mountains, I would only show a consumption of approximately 9.6 to 9.8 kW before I would run out of battery power. They did not have an answer for why this would occur but they may get some information that could could sort out, since they downloaded a whole bunch of data from my car.

They asked me about my likes and dislikes and I told them Chevrolet had struck a very good balance between the competing interests of battery power, weight, cost and engine efficiency. I did make one comment about the gasoline engine to the effect that on occasion I could feel a slight vibration through the steering wheel and possibly the floor. I suggested that since a vibration is connected to your sense of what you hear, that I may have been feeling the engine more than actually hearing it when driving in the mountains. I said the noise was very low, and not the least bit obtrusive, but I did on occasion notice it and therefore thought that they might want to think about inserting a little more isolation between the engine and other components.

They asked me if I had any recommendations on the display screens in the car. I said that maybe it was a lack of imagination, but I really didn’t, with one exception. In the power mode you can see the number of kilowatts consumed, but I would like to have an initial notation of how many kilowatts were in the battery before I started the trip. When the car is unplugged, there is a notice that is fully charged, but there is no numerical indication of what that charge is. I felt it would be useful to have that information, which would enable one to monitor how the battery was performing.

They asked about charging. I told him there were no public charging stations around here and all charging was done in my garage. They asked what kind of charger I used. I told them I had decided on the SPX Power Express since, although it was more expensive, it appeared to be a much heavier duty device than some of the cheaper models. There were some knowing smiles around the table. I explained I was very happy but had experienced two charging interruptions, which I attributed to lightning or some other problem with the electrical current. In response to their question I confirmed that the check engine light came on in both instances. The first time it cleared fairly quickly but the second time stayed on for several days. It stayed on long enough that I ended up making an appointment with the dealer to have it checked out, even though I was certain, based on my conversation with OnStar, that there was no problem. As these things go of course the next day it turned off. They explained that it is specifically designed to stay on through four cycles, a requirement having to do with the emission control standards.

We discussed a few non-propulsion things, primarily little quibbles. I suggested that the back door trim on the inside could easily be of a higher quality, similar to that on the front doors, without costing too much. I mentioned the need for a bit of rubber trim on the outside of the rear doors, to keep the doorjamb from getting dirty. They smiled, and said they were fully aware of that problem based on their experience every time they wash the cars. We discussed power seats a little. They explained that they were not included for weight and cost reasons. I said that in most cars I’ve found power seats unnecessary since my wife and I drive separate cars and rarely adjust the seats. Oddly, the Volt is an exception. We both love it so much, and prefer to our Acura, that it is always the first car out the garage and the other car is only driven if both of us are driving at the same time or if we are hauling a large load. Lastly we said we really loved the black roof, that it gave the Volt a distinctive appearance. While it was discontinued in 2013 it should at least be an option.

When they brought up the subject of the coming winter, we had a lengthy discussion about heat pumps. They said a heat pump was not included because of the experience with heat pumps in the EV-1. I explained that they should look at the issue again since heat pump technology has changed dramatically since the late 80s and early 90s and based on my household experience with heat pumps it seems to me that the possibility of it meeting the Volt’s heating needs were very high. My heat pump still works well at 10°.

We discussed marketing a little bit. I expressed the view that Chevrolet was not focusing on the biggest attribute of the vote, that the combination of a gas generator with a battery was a marriage made in heaven. The single largest drawback that keeps people from enjoying the seamless quiet power and economy of an electric vehicle is the concern that it cannot on trips of any distance. The volt solves that problem. Any time it needs to be driven on a long trip, the driver can do so simply by filling it with gasoline just as in any other car. However, for 80 to 90% of the daily usage of the car, the driver can simply run it on battery power, never using gasoline.

After dinner we went out to the Volt and I gladly agreed to their request to download data from the car. I also received an in-depth explanation of the operation of the drivetrain. I did mention that one chintzy little thing I didn’t like was the hood release latch. I said I assumed it was taken out of the Chevy parts bin but was really a bush league device that was not consistent with the high-quality engineering in the car. I asked about the Cadillac ELR and specifically about the news that it might get a turbocharged engine. The response was a knowing smile but otherwise, “no comment.”

It was a wonderful evening. I am very impressed with the attitude and confidence of these men. I left thinking that with these men working on the Volt, it and the other vehicles that will be developed with the Voltec technology have a bright future ahead of them.

The End Of Range Anxiety-The Future Of The Electric Car Is Here

For over a hundred years people have been trying to design practical cars that did not rely on petroleum - cars that run on electricity. But they always hit a road block. Electric cars have had one major drawback. They afflicted their owners with a gut wrenching condition referred to as range anxiety. It didn't matter whether the car had the 70 mile range of a Leaf or the 250 mile range of a Tesla, range anxiety was always there. Few people want as their only vehicle a car that that they can only drive ten, fifty, two hundred miles, if they then have to wait hours to recharge. Even on short trips, the moment you get in such a car you start thinking about whether you have enough juice to get back. Every attempt at building a truly practical electric car that average drivers could use as their only car failed. Yes, as battery technology improved you could increase the distance that could be driven on a charge and even reduce somewhat charging times but range anxiety was always there.

Genesis

Enter GM executives Bob Lutz and Jon Lauckner. Working together they conceived of an electric car that would solve the problem of range anxiety and use a revolutionary lithium-ion battery with a long life thermal management system. They designed a car that eighty percent of people would be able to drive in their daily commute using only electricity but, and here's the key, it would also have a gasoline powered generator that would give it the same range as any other gasoline powered car. In the process they also decided to make it sporty, practical and fun to drive.

The result is a marriage made in heaven. It's a car that you can charge up at home or work or wherever, and that you will usually drive without ever using a drop of gasoline. But this car is so much more. Unlike any other electric car you can drive it 100 miles, a thousand miles, across the country, or around the world (with a little help over the oceans) without having to wait hours to recharge the battery. You can do this because this electric car has its own on-board generator powered by a gasoline engine. When you deplete the battery, the generator starts up. And when the change happens, you don't hear or feel anything. You just see an icon change on the dashboard telling you that the "extended range" motor is now running, but that's about it. Like so many other aspects of the Volt, "seamless" is the best word to describe it.

The Volt is smooth, seamless and quiet but also very quick because of its electric motor with 273 lb.-ft. of torque that is immediately available the moment you step on the "gas." And make no mistake, it is always an electric car, even when the gas engine is running, because that engine is producing electricity that is powering the electric motor. It is a car that will accelerate with the best of them, with a top speed of 100 mph, but do it without a sound and with no herky jerky transmission shifts. Basically, it is more fun to drive than almost any car on the road.

The Car

So what does it all mean? The EPA says that you can expect to average 38 miles on a fully charged battery and that you will get 98 MPGe when running on that charge. MPGe is miles per gallon equivalent, which represents the number of electric miles that can driven on the amount of energy contained in a gallon of gasoline. EPA also says that when you run solely on the gasoline "extended range" motor your average should be 37 mpg. To make these numbers more meaningful the EPA then calculates the actual cost of driving by factoring in an average gasoline price of $3.70/gallon and an average electricity cost of 12 cents/KWH. According to the EPA, if you drive 12,000 miles per year you can expect to spend $601 when running solely on electricity and $1,302 when running solely on gasoline.

So what are the real life experiences of Volt drivers? Voltstats is a site that logs real time data on thousands of Volts. The fleet total mpg, which is miles driven divided by gasoline burned is 126.7 mpg. Since that does not count the cost of electricity they also computed the MPGe of the fleet, which is 64.3 MPGe. The fuel economy of the gasoline engine alone is 36.5 mpg. Volts are running on battery power for 71% of the miles driven and on gasoline the remaining 29% of the miles driven.

My experience is somewhat better. I drive about 90 percent of my miles on electricity and my off-peak electric rate is 4.6 cents/KWH, far lower that the 12 cent national average. I am currently driving about 47 electric miles on a full charge and my cost is about 1 cent per mile. In my first 1,000 miles I drove 950 miles on electricity and averaged 4.34 miles/KW. The total cost of the electricity consumed was $10.07. I also drove 50 miles on gasoline, using 1.4 gallons of gas. At a cost of $3.79 per gallon I spent $5.30 on gas. So it cost me $15.37 to drive 1,000 miles which works out to 1.5 cents per mile.

The car I traded got 20 mpg. Driving it 1,000 miles would have consumed 50 gallons at a cost of $189.50. My savings driving the Volt for that 1,000 miles was $174.13. Amazing.

Maybe more importantly we love driving the Volt. Except when we have to drive both cars or when hauling large loads, the Volt is the car of choice for both my wife and I. It is so smooth, so quiet, so well put together and so cool. Of all the 25 cars I've owned it is my favorite. Our other car is an Acura MDX. It is a really good car, but when I drive it now it feels positively clunky compared to the Volt.

Environment and the Nation

People ask whether electric cars are really better for the environment and the nation. The answer is clearly "yes." Based on EPA data the average internal combustion engine car produces 500 g/mile of greenhouse gasses. On average a Volt running on battery power will produce 260 g/mile, or roughly half that of a gasoline powered car. These are averages of course and the numbers vary widely depending on the fuel used to produce the electricity. Here is a really good article explaining the differences between fuels. In summary,

the average Coal burning power plant emits 2.17 pounds of CO2 for every kilowatt-hour it produces. (EIA) Now, coal makes up only 48% of our electrical generation. Natural Gas produces 20% and it also emits CO2 (1.4 pounds per kWh). But, 30% comes from nuclear and renewable sources. So, taken together, our national electrical supply generates, on the high side, 1.51 pounds of CO2 per kWh.

Similarly emissions of gasoline engines vary widely depending upon the efficiency of the engine. The best are 28% efficient while the worst are only 15% efficient. Consequently, the emission of CO2 of gasoline engines ranges between 1.9 lbs/kWh and 3.59 lbs/kWh. Thus the most efficient engines produce slightly less CO2 than coal plants but substantially more than gas, nuclear or renewable electricity. And the least efficient engines are far behind all sources of electricity.

But it's not all about CO2. It's also about reducing our dependance on oil and staying out of conflicts whose primary motivations seem to revolve around oil. In May GM noted that Volt drivers had travelled 40 million miles, saving 2.1 million gallons of gasoline and saving themselves $8 million in the process. That 2.1 million gallons would have filled an entire super-tanker. That is impressive. And this was achieved with fewer than 17,000 thousand Volts on the road. Imagine the impact if 10, 20, or 30 percent of us were driving extended range electric cars like the Volt.

A Chevy?

There's one more thing. Before the Volt I had only bought one other American car and it was a special purpose vehicle. Walking into a Chevrolet showroom and buying a Chevy was not part of my life experience. Guess what? This car is great. The engineering is second to none. The design and execution of the car is fantastic. Everything feels right, works right and looks right. The quality is as good and in some respects better than that of any comparable car.

My eyes have been opened. Chevy hit a home run and my whole attitude towards American cars and GM in particular has changed. On car forums people often ask how Volts drive and what are they comparable to. The frequent answer is that it feels like a BMW three series - every bit as tight, not quite as grippy, and a whole lot smoother and quieter. Remembering that, it was fascinating to read that BMW has hired away many Volt engineers and that the upcoming BMW i8 will be largely based on the Volt architecture. Chevrolet has over 200 patents on the Volt that they will work around but the signs are clear. The extended range electric vehicle pioneered by GM is here to stay and truly is a marriage made in heaven.

The Real Financial Cost

The Volt sells for between $39,000 and $44,000 depending on how well optioned it is. Even though the base Volt is pretty well loaded its price is more than the price of average new car which is now just shy of $31,000. But the Federal Government has a $7,500 tax credit that reduces the $39,000 cost to $31,500. And many states have additional incentives, such as Colorado, which has an additional $6,000 tax credit. When I also considered that the VOLT would save me $2,400 per year in energy costs the deal was too good to pass up.

All Things Considered

The Volt reduces our dependance on oil, saves money in operating costs, is an absolute blast to drive, is made in America, reduces greenhouse emissions, and is the smoothest, quietest, and quickest ride you can imagine. Also, it is way cool and has a UAW sticker on the door jam.

Anyone who is in the market for a mid-size sedan is doing themselves and our country a real disservice if they don't consider the Volt.



There is much detail about the Volt that is omitted for this post in order to keep it at a manageable length. For example, it has two electric motors, not one, but both are there to maximize efficiency. Under very rare circumstances the gas engine can drive the wheels directly, if it improves efficiency. Also, the battery is unique for several reasons. To maximize longevity it has a sophisticated heating and cooling system that keeps it at the optimal temperature. And to maximize longevity, it is never fully charged or discharged, generally using only about 65% of its total capacity.

The Obama Administration Made The Exact Tax Argument That the Court Accepted

There is much confusion regarding the ACA tax issue. Contrary to what some think, this is the same argument the President made. He said the penalty was not a tax for purposes of the Anti-injunction Act. The Majority agreed. He said it was a tax for purpose of Congress' Article I taxing authority, thus giving Congress power to enact the ACA. The majority agreed with that.

Do you remember how much criticism the Solicitor General received from some after oral argument. Many said that not only was he stumbling and ineffective but his seemingly contradictory arguments on the tax issues were lame. Well, it appears that ineffective and lame won the day.

Here is the relevant language from the Roberts opinion. First, the Court sets up the issue,

Government’s tax power argument asks us to view the statute differently than we did in considering its com- merce power theory. In making its Commerce Clause argument, the Government defended the mandate as a regulation requiring individuals to purchase health insurance. The Government does not claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.

Then he explains that the Court must find any reasonable reading that allows a law to be sustained,

The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads “no vehicles in the park” might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.” Parsons v. Bedford, 3 Pet. 433, 448–449 (1830). Justice Holmes made the same point a century later: “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion). The most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals “shall” maintain health insurance. 26 U. S. C. §5000A(a). Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.

Then he analyses the law to discern its essence as a tax,

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax. . . . . . The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many re- spects. The “[s]hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “tax- payer[s]” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the pay- ment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.” Supra, at 13–14. This process yields the essential feature of any tax: it produces at least some revenue for the Government. United States v. Kahriger, 345 U. S. 22, 28, n. 4 (1953). Indeed, the payment is expected to raise about $4 billion per year by 2017. Congressional Budget Office, Payments of Penalties for Being Uninsured Under the Patient Pro- tection and Affordable Care Act (Apr. 30, 2010), in Selected CBO Publications Related to Health Care Legislation, 2009–2010, p. 71 (rev. 2010).

Finally, he explains that the fact it is labeled as a "penalty" does not mean it isn't a tax for this purpose

It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Con- gress’s choice of label on that question. That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.

Although many thought the Solicitor General's argument was bizarre and convoluted, it won the day.

Anti-Injunction Act - A Simple Explanation Of The Issues Being Argued Today

There are many long and detailed articles about the Anti-Injunction Act issues being discussed in the Supreme Court today such as this one. However, since most of them may be a little dense for many people, here is a simpler and shorter explanation of the issues.

For over one hundred and fifty years there has been a law that says a person cannot challenge a tax law until the tax has actually been assessed and they pay the tax or challenge an IRS collection action. That law is the Anti-Injunction Act. If the law applies to a suit then, almost uniformly, courts have ruled that they cannot even hear the case. It must be thrown out because the court lacks jurisdiction.

Today the Court is hearing arguments on whether the Anti-Injunction Act applies to the suits challenging the Affordable Care Act.

The two main issues are whether the ACA provision that requires people to pay a penalty if they don't have insurance constitutes a tax, and whether a suit challenging the mandate is really a suit challenging that tax.

(There are some minor issues which are excluded here but explained in the linked article.)

One case challenging the ACA was dismissed on this ground but it is not before the court today. In another suit that is before the Court today, there is a dissenting opinion by a Judge Kavanagh in which he says that the case should be dismissed because of the Anti-Injunction Act.

The hearing today on the Anti-Injunction Act is a fairly rare event. The government is not arguing for it and of course the plaintiffs don't think it applies. However the Supreme Court itself decided that it wanted to hear arguments on the issue. To get the issue presented the Court appointed an outside lawyer to argue the Anti-Injunction Act issue before the court.

What is the significance of this issue? If the court finds that the penalty is a tax, and that the challenge to the mandate is really a challenge to that tax, then the Court will dismiss these ACA challenges on the Anti-Injunction Act grounds.

Some people think that such a ruling would merely be punting the issue down the road. I don't share that view for the following reasons. Substantively, if the penalty is a tax then it will almost certainly be upheld in any later suit. Keep in mind that if it is a tax it can only be challenged based on Congress' taxing authority, not the Commerce Clause or the other things being used to challenge the law now. Congress' taxing authority is very broad and I don't think there has been a case since the thirties that has overturned a tax.

Secondly, if it is a tax, no suits can be filed until 2015. It would be until 2017 before they make it to the Supreme Court. By then the entire landscape will have changed. Obama will not be President. Since the idea of a mandate was invented by Republicans one doesn't have to be cynical to conclude that the challenges to the ACA are merely challenges to Obama. Once the law is implemented it will be clear to all that the hysteria about "socialized medicine" is nonsense.

Additionally, the ACA has budgetary savings provisions that even the Republicans like. Those savings and the additional revenues will be built into future budgets. All the hue and cry will be tamped down in light of that reality.

Lastly, the state exchanges will be facts on the ground, The insurance companies will have adjusted and will be participants. People will see all the benefits in their own lives. There will be little appetite to go back to 2009.

Do not be surprised if this case is dismissed on AIA grounds. For Justices like Scalia who have written very expansive opinions on the Commerce clause it would be a really convenient way to avoid eating his past words if he ruled against the ACA or disappointing his base if he ruled in favor of the ACA.

What Does The Florida "Stand Your Ground" Law Really Say

The Florida Justifiable Use Of Force Statute, often referred to as the "Stand Your Ground" law, is an overreaching and violence inducing law for many reasons. But in the case of the killing of Trayvon Martin the problem may be less about the law than about the way it was interpreted and applied by the police and prosecutors.

One central problem with this case is how little concrete information we have about that night. The reason is that after George Zimmerman killed Trayvon he was taken to police headquarters, apparently interviewed for a short period of time, and released. His weapon was not seized, forensics weren't taken and there was apparently very little investigating done at the scene.

Why would that be? The police say that they could not hold him, let alone arrest him, because he had asserted self defense and was therefore protected by the Florida self-defense statute. That is horsepuckey and here is why.

The Florida law covers justifiable force by police and civilians. There are three categories of justifiable force by non-police officers: self-defense, home protection and defense of others. The only one applicable here is the first. That section says that you can use deadly force if you reasonably think it is necessary to prevent death or great bodily harm. You can't use deadly force if you are only trying to prevent the use of unlawful force against you. The distinction between fear of "death or great bodily harm" versus protecting your self from "unlawful force" can be critical. Here is the language of the statute:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to (the section dealing with Home Protection)

As discussed below there is an exception to the "no duty to retreat" language for anyone who instigates an altercation. But before looking at this more closely it is important to understand the section of the law that the police asserted as the reason why they were prohibited from detaining or arresting Zimmerman and keeping his gun.

There is a section of the law that says the police can use "standard procedures" for investigating the use of force but any person whose actions are protected by this law is immune from detention, arrest or prosecution. These restrictions on detention and so on don't apply if the police have "probable cause" to think the self-defense claim is invalid. Taken together, this means Zimmermann had to be released, but not if the police had probable cause to believe his claim of self defense was not covered by the statute. Here is the actual text of the relevant portion of this section,

776.032  Immunity from criminal prosecution and civil action for justifiable use of force.—

(1) A person who uses force as permitted in (self-defense, home protection or defense of others) is justified in using such force and is immune from criminal prosecution and civil action for the use of such force . . . . As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

. . . . . .

So the police could not detain or arrest Zimmermann unless they had probable cause to believe that his actions were not covered by the law. If they had probable cause they could proceed with their investigation as if the law didn't exist.

The facts clearly suggest probable cause to question Zimmermann's self-defense claim. His assertion that he feared fears death or imminent bodily harm requires an analysis of the relative size, age, weight and strength of Zimmermann and Trayvon. This was not a case of a 120 pound eighty year old being assaulted by a 220 pound weight lifter. Based on pictures and other information Zimmermann's physical presence appears to be at least equal to Trayvon's. Next, one looks to see if the individuals have weapons. The reasonableness of any fear on Zimmermann's part is seriously undercut by the fact that he had a 9 mm handgun and Trayvon had no weapon of any sort. Additionally, when analyzing the validity of Zimmermann's claims it would also be noteworthy that he had a history of making bogus 911 calls about imaginary wrong doing. Finally, and as discussed below probably most importantly, Zimmermann told the 911 dispatcher he was following Trayvon Martin and was told to cease his pursuit. These facts clearly suggest there was probable cause to believe that Zimmermann's self-defense claim was invalid.

As mentioned above, there is a section of the law that really blows a hole in Zimmermann's self-defense claim and put the lie to the police assertion that he could not be detained or arrested. The law specifically provides that the self-defense protection does not apply for anyone who "provokes the use of force" against himself. The fact that Zimmermann pursued Trayvon Martin clearly suggests that he provoked whatever subsequently transpired. And this section goes on to say that if you provoke the confrontation then you cannot use force unless you have retreated and the person is still attacking you with overwhelming force. Here is the relevant portion of that section,

776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

The evidence indicates that Zimmermann initiated and provoked this incident. There is no indication he retreated. There is no indication that he was faced with force that was likely to result in his death or great bodily harm.

Taken together Zimmermann's action do not appear to be covered by the self-defense law and, at the very least, the police had grounds to detain him and arrest him and conduct a thorough investigation to determine whether his actions were covered. Unfortunately, the failure to conduct a proper investigation at the time may make it hard to secure enough evidence to obtain a conviction now. Hopefully that will not be the case.

Beyond Believable. FOX Says Serial Philanderers, Like Newt, Make The Best Presidents

Fox's resident psych says that Newt's philandering, cheating and abuse of his prior wives will make him the perfect President.

No, this is not from the Onion, and yes, he is serious. According to "Dr." Keith Ablow the best evidence of Newt's qualifications are,

1) Three women have met Mr. Gingrich and been so moved by his emotional energy and intellect that they decided they wanted to spend the rest of their lives with him.

2) Two of these women felt this way even though Mr. Gingrich was already married.

3 ) One of them felt this way even though Mr. Gingrich was already married for the second time, was not exactly her equal in the looks department and had a wife (Marianne) who wanted to make his life without her as painful as possible.

Yes, you read that right. He goes on to say that

When three women want to sign on for life with a man who is now running for president, I worry more about whether we’ll be clamoring for a third Gingrich term, not whether we’ll want to let him go after one.

Now, if it's bad enough that this so called Doctor says that cheating on your wives numerous times and marrying three women who you conned into believing you loved them and wanted to spend the rest of their lives with you makes you an ideal President. But it gets worse. He also said that the manner in which he dumped his first two wives for new and improved younger versions is clear evidence of his strength. Our good Doctor has these precious insights to share,

Two women—Mr. Gingrich’s first two wives—have sat down with him while he delivered to them incredibly painful truths: that he no longer loved them as he did before, that he had fallen in love with other women and that he needed to follow his heart, despite the great price he would pay financially and the risk he would be taking with his reputation.

Conclusion: I can only hope Mr. Gingrich will be as direct and unsparing with the Congress, the American people and our allies. If this nation must now move with conviction in the direction of its heart, Newt Gingrich is obviously no stranger to that journey.

That's right. Cheating on your wives and then dumping them, one of whom was in the hospital with cancer, is a template for dealing with Congress.

And then our good Doctor concludes with his not very well concealed infatuation with Newt,

So, as far as I can tell, judging from the psychological data, we have only one real risk to America from his marital history if Newt Gingrich were to become president: We would need to worry that another nation, perhaps a little younger than ours, would be so taken by Mr. Gingrich that it would seduce him into marrying it and becoming its president.

Woah. If there's a Mrs. Ablow out there she has reason to be worried. And, whoever licensed this quack needs to review his status.

President Obama's Osawatomie Speech Defines The Democratic Vision Of America

Finally, we will be having the debate that has been glossed over for the last thirty years. What kind of America do we want. The President framed the debate perfectly and left no doubt where he stands. Here are a few excerpts.

Ever since, there has been a raging debate over the best way to restore growth and prosperity; balance and fairness. Throughout the country, it has sparked protests and political movements - from the Tea Party to the people who have been occupying the streets of New York and other cities. It’s left Washington in a near-constant state of gridlock. And it’s been the topic of heated and sometimes colorful discussion among the men and women who are running for president.

But this isn’t just another political debate. This is the defining issue of our time. This is a make or break moment for the middle class, and all those who are fighting to get into the middle class. At stake is whether this will be a country where working people can earn enough to raise a family, build a modest savings, own a home, and secure their retirement.

Repeatedly he explains how we are a better when we act together and those who fail to recognize that ignore our history.

Now, in the midst of this debate, there are some who seem to be suffering from a kind of collective amnesia. After all that’s happened, after the worst economic crisis since the Great Depression, they want to return to the same practices that got us into this mess. In fact, they want to go back to the same policies that have stacked the deck against middle-class Americans for too many years. Their philosophy is simple: we are better off when everyone is left to fend for themselves and play by their own rules.

And here he pulls no punches as he lays out his firm beliefs.

Well, I’m here to say they are wrong. I’m here to reaffirm my deep conviction that we are greater together than we are on our own. I believe that this country succeeds when everyone gets a fair shot, when everyone does their fair share, and when everyone plays by the same rules. Those aren’t Democratic or Republican values; 1% values or 99% values. They’re American values, and we have to reclaim them.

The speech was on the 100th anniversary of Teddy Roosevelt's famous speech calling for a New Nationalism and the Square Deal. After describing Teddy's background and the benefits of the markets President Obama said,

But Roosevelt also knew that the free market has never been a free license to take whatever you want from whoever you can. It only works when there are rules of the road to ensure that competition is fair, open, and honest. And so he busted up monopolies, forcing those companies to compete for customers with better services and better prices. And today, they still must. He fought to make sure businesses couldn’t profit by exploiting children, or selling food or medicine that wasn’t safe. And today, they still can’t.

In 1910, Teddy Roosevelt came here, to Osawatomie, and laid out his vision for what he called a New Nationalism. “Our country,” he said, “…means nothing unless it means the triumph of a real democracy…of an economic system under which each man shall be guaranteed the opportunity to show the best that there is in him.”

Then, in a great jibe at his critics the President said

For this, Roosevelt was called a radical, a socialist, even a communist. But today, we are a richer nation and a stronger democracy because of what he fought for in his last campaign: an eight hour work day and a minimum wage for women; insurance for the unemployed, the elderly, and those with disabilities; political reform and a progressive income tax.

One of the best parts, which puts the lie to the Republican narratives we hear today, is this.

Now, just as there was in Teddy Roosevelt’s time, there’s been a certain crowd in Washington for the last few decades who respond to this economic challenge with the same old tune. “The market will take care of everything,” they tell us. If only we cut more regulations and cut more taxes - especially for the wealthy - our economy will grow stronger. Sure, there will be winners and losers. But if the winners do really well, jobs and prosperity will eventually trickle down to everyone else. And even if prosperity doesn’t trickle down, they argue, that’s the price of liberty.

It’s a simple theory - one that speaks to our rugged individualism and healthy skepticism of too much government. It fits well on a bumper sticker. Here’s the problem: It doesn’t work. It’s never worked. It didn’t work when it was tried in the decade before the Great Depression. It’s not what led to the incredible post-war boom of the 50s and 60s. And it didn’t work when we tried it during the last decade.

It was a wonderful, inspiring and hard hitting speech that lays down the gauntlet. I hope it is picked up by all Democrats running for office.

The Affordable Care Act Upheld Yet Again

The District of Columbia Circuit, considered by many as the most prestigious Court of Appeals in the country, is the latest Circuit Court to uphold the Affordable Care Act. The case is Seven-Sky v Holder and it is important for several reasons. Two of the judges are Republicans, including a conservative icon, Judge Silberman. There was a dissenting opinion but only because that judge would have thrown the case out on jurisdictional grounds.


This is a very strong, well reasoned opinion. The case boiled down to whether the court would accept the plaintiffs argument that Congress could not regulate "inactivity." As discussed in this article that activity-inactivity argument is basically Constitutional misdirection and the DC circuit was having none of it.

As framed by the Court,

The contested issue here is whether the Government can require an immensely broad group of people–all Americans, including uninsured persons with no involvement in the health insurance and health care markets–to buy health insurance now, based on the mere likelihood that most will, at some point, need health care, thus virtually inevitably enter that market, and consequently substantially affect the health insurance market. Appellants say that Congress cannot regulate based on such sweeping generalizations. Only individuals who are voluntarily engaging in an “activity” related to interstate commerce–not the uninsured, who are “inactive”–are within the scope of the Commerce Clause.

The court's response goes on for many pages, but is best summarized in this paragraph,

The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.

That last sentence is the key. There is no Supreme Court president supporting the argument that the individual mandate is unconstitutional. None.

The Court also pointed out the the absurdities that would result from the plaintiffs' argument.

Indeed, were “activities” of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such “activity.” For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future. And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance. (citations omitted)

The Supreme Court has repeatedly rejected these kinds of distinctions in the past–disavowing, for instance, distinctions between “indirect” and “direct” effects on interstate commerce–because they were similarly unworkable.

The opinion discusses may Supreme Court precedents but relies most heavily on the great New Deal case Wickard v. Filburn. In Wickard,

[A] farmer ran afoul of his allowed wheat acreage under the Agricultural Adjustment Act of 1938 by growing additional wheat, not for sale, but to feed his family and his livestock. Filburn argued that the Act was unconstitutional as applied to him because he was not using the excess wheat for any activity in the interstate market. The Supreme Court unanimously rejected this claim. It held that even growing wheat for personal consumption, not for sale in any market, could affect the national price, and therefore was within the Commerce Clause.

This conclusion was not only because his wheat might be diverted into the national market, as was recognized in Gonzales v. Raich, 545 U.S. 1, 18-19 (2005). Justice Jackson said even “if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” Justice Jackson thus recognized that the Act “force[d] some farmers into the market to buy what they could provide for themselves.” Although a regulation limited the size of the farms covered, the logic of the opinion would apply to force any farmer, no matter how small, into buying wheat in the open market. Wickard, therefore, comes very close to authorizing a mandate similar to ours, at least indirectly, and the farmer’s “activity” could be as incidental to the regulation as simply owning a farm.

The citation of Wickard and more importantly Gonzalez v Raich is really critical. Gonzalez is a 2005 decision, in which Scalia wrote a concurring opinion. As discussed earlier this year,

in 2005, the Court decided Gonzalez v Raich, which should have much more of a bearing on the issue. Raich involved the question of whether the Federal Controlled Substances Act was Constitutional in so far as it regulated (criminalized) the private, noncommercial, growth and consumption of marijuana. The law was found to be within Congress’ Commerce Clause powers and was roundly criticized by many progressives. Whether one agrees with the result in that case or not, it does illustrates how broadly the Court, and Justice Scalia in particular, has been willing to read the powers of Congress under both the Commerce Clause and the Necessary and Proper Clause. In his concurring opinion Scalia stated,

The application of these principles to the case before us is straightforward. In the CSA [Controlled Substances Act], Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce “extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it.” To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances–both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce. (citations omitted)

To summarize, a non-economic, non-commercial, activity that occurs solely within a state can be regulated by Congress as long as it is an appropriate means for achieving a broader objective that involves regulating interstate commerce.

Anything can happen with the Supreme Court and there is reason to be skeptical about its most results oriented members. But for Scalia and the rest of the radicals on the Court to strike down the ACA they will have to find heir way around some very old and very new decisions, including a concurrence that Scalia authored.

Breaking: Supreme Court Rules Social Security Is Constitutional

Ok, as everyone who was paying attention in High School knows, this news actually broke in 1936. But Rick Perry was not paying attention so this is for him. You might enjoy it also.

Rick Perry, world renowned Constitutional scholar and bloviator of inanities par excellence, has issued his legal opinion that Social Security is unconstitutional. Perry originally issued this opinion in his book, and he restated his opinion in a political event.

And beyond expressing the results of his extensive legal research Perry has said Social Security is a lie and a ponzi scheme.

This is, of course, utter horse pucky as explained in a really great article from the hard working civil servants at the Social Security Administration designed for third grade readers that even Perry might comprehend.

The case that decided the Constitutionality of Social Security was Helvering v Davis. It was decided simultaneously with cases challenging the unemployment insurance provisions of the Social Security Act.

Now before getting to Mr Perry's position there is an important point to remember. Rick is entitled to the view that the Social Security is bad policy and he may disagree with the Helvering decision, but he is not entitled to the view that the law is Unconstitutional. As a guy who allegedly graduated from high school and went to Texas A&M he should know that since the decision in Marbury v Madison in 1803, it is settled law that the Supreme Court is the final arbiter on the question of whether a law is Constitutional. He can agree with or disagree with Supreme Court decision, but if the Court decides that a law is Constitutional that is the final word until such time as the Court reverses itself, which happens but rarely. (A&M is a school with a proud tradition and all A&M alumni should petition the school to investigate whether he truly did graduate.)

Moving on, the principle issue in the case was whether Social Security violated the Tenth Amendment. That is the provision which most Constitutional scholars say is a restatement of a truism,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Or, stated another way, "the Federal Government, which did not exist before this document was ratified, and which exists only by reason of the provisions of this document, only has the powers granted to it by this document. Therefore, accordingly and obviously, all the other rights and powers that existed in the world before this document that were not given to the Federal government by this document continue to reside wherever they reside."

The Court explained that since there were provisions in the Constitution that gave the Federal Government the powers it was exercising through Social Security, there was no Tenth Amendment problem. First, the Court said,

Congress may spend money in aid of the "general welfare." . . . There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. . . . The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground, or certainly a penumbra, in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law.

Now it would seem that is something that Perry and would warm right up to. The Court is saying that Congress has broad discretion and the Court shouldn't second guess their judgement.

But the Court didn't stop there. It went on to talk about how the needs of the Nation can change and that Congress can respond to those changes.

Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the wellbeing of the Nation. What is critical or urgent changes with the times.

The purge of nationwide calamity that began in 1929 has taught us many lessons. Not the least is the solidarity of interests that may once have seemed to be divided. Unemployment spreads from State to State, the hinterland now settled that, in pioneer days gave an avenue of escape. . . . Spreading from State to State, unemployment is an ill not particular, but general, which may be checked, if Congress so determines, by the resources of the Nation. If this can have been doubtful until now, our ruling today in the case of the Steward Machine Co., supra, has set the doubt at rest. But the ill is all one, or at least not greatly different, whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house, as well as from the haunting fear that such a lot awaits them when journey's end is near.

Wow, that's some heady stuff. It's reasonable for Congress to recognize the calamities befalling the Nation and its people and try to address them.

But then the Court suggested that Congress should just not have a free hand to act willy nilly, unless it had some facts to back its actions. The Court looked at the record and found that Congress had indeed done its homework. This paragraph is a jem for the ages.

Congress did not improvise a judgment when it found that the award of old age benefits would be conducive to the general welfare. The President's Committee on Economic Security made an investigation and report, aided by a research staff of Government officers and employees, and by an Advisory Council and seven other advisory groups. Extensive hearings followed before the House Committee on Ways and Means, and the Senate Committee on Finance. A great mass of evidence was brought together supporting the policy which finds expression in the act. Among the relevant facts are these: the number of persons in the United States 65 years of age or over is increasing proportionately as well as absolutely. What is even more important, the number of such persons unable to take care of themselves is growing at a threatening pace. More and more, our population is becoming urban and industrial, instead of rural and agricultural. The evidence is impressive that, among industrial workers, the younger men and women are preferred over the older. In times of retrenchment, the older are commonly the first to go, and even if retained, their wages are likely to be lowered. The plight of men and women at so low an age as 40 is hard, almost hopeless, when they are driven to seek for reemployment. Statistics are in the brief. A few illustrations will be chosen from many there collected. In 1930, out of 224 American factories investigated, 71, or almost one third, had fixed maximum hiring age limits; in 4 plants, the limit was under 40; in 41, it was under 46. In the other 153 plants, there were no fixed limits, but in practice few were hired if they were over 50 years of age. [n6] With the loss of savings inevitable in periods of idleness, [p*643] the fate of workers over 65, when thrown out of work, is little less than desperate. A recent study of the Social Security Board informs us that one-fifth of the aged in the United States were receiving old-age assistance, emergency relief, institutional care, employment under the works program, or some other form of aid from public or private funds; two-fifths to one-half were dependent on friends and relatives, one-eighth had some income from earnings, and possibly one-sixth had some savings or property. Approximately three out of four persons 65 or over were probably dependent wholly or partially on others for support. [n7]

Bolding Added.

This was written in 1936. 1936. It could have been written today.

And here is where the Court puts the stake in the heart of the tenthers and their fellow travelers. This is a national problem that cannot be dealt with by the States separately.

The problem is plainly national in area and dimensions. Moreover, laws of the separate states cannot deal with it effectively. Congress, at least, had a basis for that belief. States and local governments are often lacking in the resources that are necessary to finance an adequate program of security for the aged. This is brought out with a wealth of illustration in recent studies of the problem. [n9] Apart from the failure of resources, states and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors. We have seen this in our study of the problem of unemployment compensation. Steward Machine Co. v. Davis, supra. A system of old age pensions has special dangers of its own if put in force in one state and rejected in another. The existence of such a system is a bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose. Only a power that is national can serve the interests of all.

This last paragraph is a verbal back of the hand to all the bozos that existed then and their offspring who are with us today who argued that Social Security would breed dependancy.

Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield.

Look Rick, the law is Constitutional. You may not like it. Fine. But that doesn't affect its legality. And on a political note. you should tread lightly. Americans know where they've been, know where they are, and know where you want to take them. The hole you are falling in to is really deep.

Important Teacher Free Speech Decision With Ironic Twist

The Ninth Circuit issued a decision on August 19, 2011 which is an important victory for teachers and academic freedom in school. In Farnan v Capistrano Unified School District the court ruled that a high school teacher could not be sued for violating the Constitutional rights of a student who alleged that the teacher had made disparaging comments about religion, and Christianity in particular.

This case is important because it reinforces the academic freedom we expect to be granted our teachers, even those in high school. But it also demonstrates something that lawyers are familiar with but which can be frustrating for others. One of the precedents relied on in this case was a very recent Supreme Court decision that immunized Attorney General John Ashcroft from suit, a ruling that most civil libertarians disagree with. But first, the Farnan case.

The facts in the Farnan case are straightforward. Farnan was a fifteen year old student in an advanced placement course on European history. The course materials made clear that the role of religion would be discussed at length. During the discussions, the teacher, James Corbett, made some very pointed remarks about how serfs were duped by their religious beliefs and how the churches manipulated them. He compared the situation of the serfs to Republican voters in red states who are influenced by religion. He also equated belief in religion to belief in the Spaghetti Monster behind the moon. Here's an example,

I mean, all I’m saying is that, you know, the people who want to make the argument that God did it, there is as much evidence that God did it as there is that there is a giant spaghetti monster living behind the moon who did it. . . .

Farnan the student, took offense, but instead of talking to his teacher, he quit the class and sued. He argued that his first Amendment right to free exercise of religion and against the establishment of religion were violated and that he was entitled to relief under 42 USC 1983. That is the 1871 civil rights statute which is used to sue government officials for Constitutional violations.

The Court noted at the outset that the potential for liability existed because the Establishment Clause applies “not only to official condonement of a particular religion or religious belief, but also to official disapproval or hostility toward religion." Though having reached that threshold, the Circuit dismissed the lawsuit because it found the teacher Corbett was entitled to qualified immunity from suit. It reached this result by applying the two part test for qualified immunity,

(1) whether, taking the facts in the light most favorable to the nonmoving party, the government official’s conduct violated a constitutional right, and (2) whether the right was clearly established at the time of the alleged misconduct.

The court noted that you need only meet one part of the test to find immunity and in this case the court held that the second test was not satisfied.

We have little trouble concluding that the law was not clearly established at the time of the events in question — there has never been any reported case holding that a teacher violated the Establishment Clause by making statements in the classroom that were allegedly hostile to religion.

While that was the basis for the decision and could have been the end of the discussion the court went on to describe why it thought Corbett's statements were not Constitutionally inappropriate.

The Supreme Court has long recognized the importance of protecting the “robust exchange of ideas” in education, “which discovers truth ‘out of a multitude of tongues.’ . . . This academic freedom will sometimes lead to the examination of controversial issues. Both parties agree that AP Euro could not be taught without discussing religion. We have no doubt that the freedom to have a frank discussion about the role of religion in history is an integral part of any advanced history course. Indeed, a collective of organizations including the American Association of School Administrators, American Federation of Teachers, National Education Association and National School Boards Association, has long acknowledged that “[b]ecause religion plays a significant role in history and society, study about religion is essential to understanding both the nation and the world.”

. . .

In broaching controversial issues like religion, teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority. . . . But teachers must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.

It is a good well reasoned decision, but will it stand if it is appealed to the Supreme Court? Well, that's the rub. Because in reaching this decision the Ninth Circuit relied on a two month old Supreme Court decision of al-Kidd v Ashcroft in which The Supreme Court reversed the Ninth's ruling with very harsh language. In that case, Al-Kidd was arrested and detained under the material witness statute. He sued Ashcroft arguing that the statute was used as a pretext to detain him. The Supreme Court said that Ashcroft was eligible for qualified immunity because at the time of al-Kidd's arrest, "not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional."

We hold that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Because Ashcroft did not violate clearly established law, we need not address the more difficult question whether he enjoys absolute immunity.

In writing its decision in Al-Kidd, Scalia castigate the Ninth Circuit for its contrary ruling, saying

We have repeatedly told courts—and the Ninth Circuit in particular, . . . not to define clearly established law at a high level of generality. . . . The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.

Whether one agrees with the Al-Kidd ruling or not, the standard is clear. And that standard was applied in the Farnan case. A reversal by the Supreme Court would require some legal contortions by Scalia and the rest of the conservatives, the like of which might be difficult even for them.

One final note. This case is in marked contrast to the recent 7th Circuit decision in Vance v Rumsfeld where the court held that Rumsfeld could be sued for violating the Constitutional rights of Americans in a war zone. The court held that Rumsfeld was not entitled to qualified immunity because,

The law was clearly established in 2006 that the treatment plaintiffs have alleged was unconstitutional. No reasonable public official could have believed otherwise.

Here we have the opposite. A case where there is no hint from statutes or prior decisions that the actions are unconstitutional and, beyond that, where the court has serious doubts that they are unconstitutional.