Never miss a chance to keep your mouth shut.
Robert Newton Peck
Strike Fear into the Heart of Every Progressive:
Trick Them Into Saying 'RENHCOL'
Okay, who didn't read Superman comics as a kid? One of Superman's most notorious foes was Mr. Mxyzptlk, a sorcerer from the fifth dimension. Superman's powers are largely useless against him; the only way the Man of Steel can get rid of his nemesis is to trick him into saying or spelling his surname in reverse, i.e., 'Kltpzyxm', sending him back to the fifth dimension for a limited period of time.
The mere name "Lochner" strikes fear in the heart of every progressive; progressives recall that the Supreme Court from the early twentieth century through the early years of FDR's New Deal handed down a series of rulings against a series of both state and federal government laws unduly infringing on economic rights of the individual or business. (The unalienable right of property clearly has no meaning if one does not have the liberty to attain property.) Perhaps if we tricked progressives into saying 'renhcol', it would take them back in time to when SCOTUS still believed in limited discerning government and protected individual liberties against unwise, counterproductive government meddling and intervention by condescending professional politician busybodies.
We can conceptualize the status of individual rights on two tracks: state law and federal law. (By "state law" here, I'm also including relevant "local law" consideration as well.) Until the end of the nineteenth century, the Bill of Rights was enforced primarily on the federal level as per the due process clause of the fifth amendment. However, subsequently under the indoctrination doctrine of the Bill of Rights the Due Process clause of the fourteenth amendment was used to protect individual/business economic rights (whether or not specifically enumerated).
It should be noted (although you won't hear Barack Obama or other ideological progressives mention it) that these liberties were never considered absolute but state/local government retains police powers, i.e., "capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants." The basic exceptions underlying federal involvement are the common defense (the US military) and interstate commerce. Notice that police powers are not absolute themselves but subject to constraints of reasonableness, so they don't unduly impede economic liberty.
This provides a context for discussing the 1905 Lochner v New York decision; SCOTUS ruled that state restrictions on a number of hours a baker could work were unconstitutional: the state (Big Nanny) was arbitrarily restricting a baker's right to earn money to support himself and his family.
(It should be noted that one of my favorite conservative jurists, Robert Bork, strongly disagrees with the Lochner decision, but for different reasons than progressives. The problem he has is with the subsequent divining of unenumerated rights in general and the fourteenth amendment due process clause used by liberal justices to overturn traditional state laws, e.g., restricting abortion.)
When Obama talks about Lochner, he's not talking about the specifics of the case, which invalided state, not federal law. He's really talking about a judicial perspective underlying a series of decisions up to the West Coast Hotel case in 1937.
David Bernstein (George Mason Law) of the Volokh Conspiracy (a well-known conservative/libertarian law blog which I intend to add to my blog roll) describes the Lochner era in this way:
Before the New Deal, various constitutional provisions and doctrines limited the scope of government power to regulate the economy. These included the Contracts Clause, the Commerce Clause, the nondelegation doctrine, the Tenth Amendment, the Eleventh Amendment, and the liberty of contract doctrine.FDR, who had found some of New Deal legislation rejected by SCOTUS, responded after his overwhelming reelection with a proposal to pack the court (obviously with New Deal-friendly jurists). Justice Owen Roberts voted against his conscience under the persuasion of the Chief Justice, upholding a Washington state minimum wage for women law.
But although symbolically the Lochner era ended with West Coast Hotel, the real turning point for expansionist government at the expense of individual liberty was confirmed by FDR's subsequent nominations to the Supreme Court (e.g., Hugo Black) and the Carolene Products case.
Carolene Products was barred by federal law from selling its milk products across state lines (manifestly a violation of economic liberty; in concept, the role of the federal government in domestic economic affairs is to promote a free market among the states, e..g, reserving tariff authority: "tariffs between states is prohibited by the U.S. Constitution and all domestically made products can be imported or shipped to another state tax free.") SCOTUS, as in the case of West Coast Hotel, looked the other way on the question of economic liberty (however counterproductive government interventions in economic affairs have been and continue to be); more ominously, the Court decided to establish a barrier of entry (i.e., broad deference to state and federal regulation in economic policy issues) to Court involvement through the infamous Footnote 4. (This decision is wrong on so many levels it isn't funny: it basically repealed the concept of limited government.)
David Bernstein wrote another excellent piece just eviscerating Obama's muddled thinking on Lochner (in 2005 remarks against the appointment of a conservative jurist, Janice Rogers Brown). It's embarrassing (I'm just recounting a few criticisms here): Obama confuses property rights with the right to contract; he references Oliver Wendell Holmes in an invalid reference to Carolene Products, and moreover Holmes retired before FDR became President; Obama confounds decisions under Due Process and the Commerce Clause (i.e., some decisions were favorable to Due Process because of the states' general police power that the federal government does not possess, generally restricted to interstate commerce issues); the Court didn't reject all New Deal programs (and the Social Security Act was held to be constitutional by a 7-2 vote) and not all cases were decided on grounds of the right to contract and similar considerations.
One sore point with Bernstein is Obama's failure to acknowledge the Lochner Era legacy in important civil rights issues. Glenn Beck frequently points out on his programs that the early years of the Progressive movement were hardly receptive to minority concerns. SCOTUS during the Lochner Era was supportive of minority rights (e.g., against segregated zoning).
So why are we talking about Lochner? Well, just as I pointed out in my Easter post, Obama is in his rerun season. Here he is about 10 days ago essentially arguing that ObamaCare should be afforded broad discretion as in Footnote 4, pretending, for instance, the federal government ordering you to buy a very expensive form of "health insurance" preempts your economic liberty:
Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.Healthcare is regulated at the state level under constitutionally recognized traditional police power. It's bad enough that Obama expects his listeners to overlook fact that the police power of the federal government is limited and commerce authority is limited to INTERSTATE commerce; he's also expecting his listeners to concede that individual rights are subordinated to unbounded regulation by the whims of majoritarian government. This is tyranny of progressive government run amok; we are no longer on the road to serfdom: we are already there.
This is a guy who used to lecture on constitutional law at the University of Chicago? Are you kidding me? I've never gone to law school (Thank God! What a waste of a good mind!), but if I turned that quote into Professor Kingsfield, he would write below a grade of zero, "a skull full of mush".
Courtesy of televisiontunes.com
No, Mr. President: the whole purpose of the Bill of Rights is to protect individuals against the tyranny of the majority--and I seriously doubt SCOTUS has ever reviewed a purely partisan law, passed without a single Republican vote in either chamber of Congress--a particularly odious legislative abuse of power seeking to swallow a sixth of the nation's economy in one fell swoop, overwhelmingly rejected by a majority of the American people months before it was enacted and has remained unpopular.
Bernstein suggests that the real issue is whether the Congress' rights to regulate are limited or not. If they are unlimited, why does the Constitution only enumerate interstate commerce? [And health care really isn't interstate commerce in the sense the individual can't shop across state lines.] If the government can mandate the purchase of any product, can't it mandate the purchase of any arbitrary products? Recall that there was resistance against enumerating specific individual rights under the Bill of Rights; many Americans at the time felt that specifications instantly diminished other unlisted individual liberties. So Obama refuses to acknowledge an individual's economic liberty because it's not enumerated (although clearly implied) in the Bill of Rights, but he thinks it's clear that the government has unenumerated regulatory powers, including to mandate the purchase of something costing up to $15K/year? How in the world can you compel someone to purchase something material to the budget of any American family other than the very well-to-do? How in the world are we not enslaved when a health insurance bill every month could exceed every other bill in the household, including a mortgage payment? The government already thinks it can load any benefit it desires under their mandate--it's like giving the Congress or Executive Branch a blank check. I don't see how it's possible for any reasonable Supreme Court to authorize a blank check.
Let me close with a quote from the wonderful Don Boudreaux of Club Hayek and George Mason (along with Russ Roberts, David Bernstein, Walter Williams, etc: I wonder if they need an MIS professor? The brownbag lunches must be awesome!), whom has a brilliantly sarcastic, pithy approach at getting to the heart of the matter:
The “vision” that Mr. Cohn, Pres. Obama, and many other pundits and pols applaud as being “out of fashion” is one in which Uncle Sam’s itch to meddle in the private economic affairs of Americans knows no constitutional limits. Congress and the White House are to be trusted, unconditionally – without being restricted by any of those quaint pre-New Deal fears that government can be just as destructive and tyrannical when it regulates the economy as when it regulates the likes of speech or reproductive activities. It’s a recipe for tyranny.
IPPON!
The GSA 'Jackass Award'?
As faithful readers know, I have a mock annual award called the "Jackass of the Year"; this is a play on words for a male donkey (the symbol of the Democratic Party) and is used to describe a Democratic politician whom has engaged in particularly egregious behavior. Past winners of this award include: Eliot Spitzer, Alan Grayson, Ken Salazar, and last year's Wisconsin state senators.
In the ongoing GSA junket scandal, Roll Call obtained a transcript explaining how federal managers work around rules and regulations to obtain funding for employee events (among other things), playing games to get around restrictions for government-paid events where federal employees are fed. (Heaven forbid employees with six-figure compensation (salary and benefits) should have to live within per diem or buy their own dinner...) So, for instance, if you can't get funding for, say, a regular employee event, but the government will fund awards events, you can create sham awards to rationalize event funding, of course a violation of the spirit and intent of the restrictions:
"Typically at any — any conference in my memory over the last three or four years, probably even further back, there was always — there’s always one night where we have an awards ceremony and people are fed." Describing the award ceremonies as a “running joke,” the employee said, supervisors explained that the fake awards were designed to justify dinner events at the conferences. “He says: ‘OK, everybody, just remember, the only way we can have food is if we have an awards ceremony.’" [What kind of awards?] "Well, there’d be like someone’s 30 years of service awards. Sometimes there’s just been ridiculous-type silly ass awards.Well, I just remember one year like someone got like the jackass award or something for doing something stupid. It wasn’t just one goofy award. There were maybe six goofy awards."I have a general issue even with the idea of holding conferences on the taxpayer dime: in most consulting companies I've worked with over the past decade, even training dollars were considered a perk. To give an anecdotal real-life example, I was working at one company where the sales guys ran into a dry spell landing new project business; I wanted to do some training between gigs. I was rejected; I was told that they might reconsider in the future if I got my utilization rate up (billing hour percentage), a factor beyond my control. (This is Alice in Wonderland thinking, of course. The time you want to do training is when you're on the bench, which makes you more marketable.)
In the real world, people try to stretch their income: they put off vacations, start brown-bagging their lunches, or don't buy a new car after paying off the old one. I believe that the figure I saw was the 111th Congress added a sticky 24% to domestic discretionary spending--at the same time tax receipts were reeling from slumping tax payments from individuals and businesses in a weak economy. While businesses are forced to close plants, lay people off, cut hours or salaries, and/or suspend matching 401K contributions, business travel or training, the federal government has done absolutely nothing material to cut back--while even state and city governments have had to make difficult staffing decisions, sell off assets or reduce offices and/operating hours.
Through all this, we have an overbuilt federal bureaucracy with gross duplication of effort and waste (not to mention totally unnecessary, counterproductive regulations and bureaucracies from the get-go) and, other than a minor pay freeze during a period where federal employees also have paid a fraction of what state and local employees paid towards their own unsustainable pension systems (which isn't that much to begin with), it's been largely "let them eat cake" business-as-usual.
I honestly don't think I could ever be a federal employee seeing this hubris, this self-entitlement mentality. I've had issues just in the role of being a contractor. For example, when I was administering databases at NASA, I wanted to take on more work--I wanted to upgrade the databases and ran into bureaucratic resistance; the prime contractor was loaning me out free to do things like train other DBA's how to apply Oracle security patches on a Windows database server (at GSFC, I was working on Unix, but I had worked on multiple platforms including Windows), helping this retiring Maximo administrator/DBA adapt Oracle's logical standby database technology to bridge his operational and data warehouse databases, and administering Oracle technical support accounts. I could have handled 4 times the workload without breaking a sweat, but other contractors held those contracts. However, the Oracle DBA work was distributed among various contracts, beyond the prime contractor's control.
To readers who were wondering if Democrats have been angels this year because I haven't announced any nominations for this year's Jackass of the Year, we're starting off with two women: Martha Johnson, the GSA Administrator whom resigned in the wake of the GSA Las Vegas junket scandal; and Hilary Rosen, the Democratic strategist whom just slammed Mitt Romney's wife Ann for having been a stay-at-home mom.
Stairway to
Ah, yes. The wonderful Metro system (which, by the way, doesn't have public restrooms: non sumus angeli).
If you like what the bureaucrats do with escalators, you'll LOVE what they do with healthcare:
Why are Metro's escalators so bad? The problem stems partly from a decision made 20 years ago. In 1992, Metro got rid of the private contractors that repaired and maintained the system and started hiring and training its own escalator mechanics. The rationale was that government employees would do a better job for less money.
- on any given day, about one out of eight moving stairs are out of service.
- in 2002, an escalator at Brookland Station set a record by breaking down 147 times over the course of one year.
- in 2010, some progressive demonstrators boarded an escalator at L'Enfant Station that suddenly started running as fast as a roller coaster, landing four passengers in the hospital
Musical Interlude: My Favorite Groups
Doobie Brothers, "Real Love".
