Marbury Revisited

 
Dearly beloved,
We are gathered here today
To get through this thing called life.
Electric word, “life,” it means forever
And that’s a mighty long time.
—Prince and the Revolution, Let’s Go Crazy
A buddy of mine has at times accused me of pining away for the day Marbury v. Madison gets overruled.  I supposed in a sense he wasn’t far off. 
Then I started to think about it.
I know a number of my readers have Juris Doctorates, but I’ll bet few of you have given much thought to Marbury since law school.  It tends to be one of those things that’s taught academically, but in practice it’s sort of just accepted without discussion as part of the fundamental framework within which we have to function.  Kind of like air—we all know it’s there and it’s important, but we don’t consciously worry much about it unless/until something goes wrong with it. 
Perhaps it’s worth reviewing the history a bit, particularly for those who may have little more than a vague idea of Marbury and its significance.
During his lame-duck period, John Adams and the Federalists sought to pack the federal courts with a large number of newly-appointed Federalist judges and justices of the peace (even then, Liberal Statists sought to exercise power through the courts rather than legitimate electoral and legislative processes).  Outgoing-President Adams made dozens of appointments on his last day in office, all of which were immediately confirmed by the outgoing Federalist Senate.  Upon taking office the next day, new President Thomas Jefferson directed his administration not to deliver the signed commissions to the appointees, thus preventing them from assuming their positions.  Among those denied his commission was William Marbury, who sued directly in the Supreme Court for a writ of mandamus—a judicial order compelling a public official to discharge his duty—ordering Secretary of State James Madison to deliver it.
Chief Justice John Marshall, writing for a unanimous (at the time, 4-0) Court, held that the Supreme Court lacked authority to grant the relief Marbury sought.  The Judiciary Act of 1789 purported to grant the Supreme Court the power to hear suits for writs of mandamus as part of its “original jurisdiction”—that is, cases that could be brought directly in the Supreme Court, as opposed to on appeal from a lower court.  Marshall found that this grant conflicted with Article III of the Constitution, which provides that the Supreme Court’s original jurisdiction extends only to cases involving certain public officials and States as parties, and that “[i]n all the other Cases” the Supreme Court’s jurisdiction was appellate.  Thus, Marshall’s opinion on its face appears to be limiting the reach of the judicial branch, ceding an area as beyond the Court’s constitutional purview.
But notice the intellectual judo here.  In surrendering a limited bit of power in this isolated instance—the ability to grant mandamus relief—Marshall in fact embraced a much broader one.  His holding that the Judiciary Act’s grant of mandamus jurisdiction was unconstitutional secured for the Supreme Court (and, by extension, lower federal judges) the ability unilaterally to void acts of Congress (and the States under the Supremacy Clause) by claiming sole dominion over what is and is not allowable under the Constitution:
It is emphatically the province and duty of the Judicial Department to say what the law is.”
While this concept of “judicial review” was not new, Marshall’s opinion in Marbury cemented it forever into American jurisprudence. 
The doctrine has a certain practical necessity to it.  After all, someone has to determine what the Constitution says, and to enforce its limits.  And this power of judicial review serves as an important check against the other two branches of government (although one might argue the Court gave it back over time with its Commerce Clause jurisprudence, culminating with Wickard v. Filburn and its progeny).  Indeed, it is really the only backstop the minority has to defend against the capricious tyranny of the majority.
That was all well and good as long as the Court confined itself to applying the actual plain language of the Constitution as it is written.  But later Courts began “interpreting” that language, often bending the actual text (or even “implying” (read: inventing) text) not to enforce the law, but to promote a progressive agenda.  The Constitution ceased to be defined by the 6,000 or so words of the document itself (including Amendments), and instead by a maze of thousands of pages of case law. 
(As an aside, just stop with this nonsense about the genius of the Constitution being its character as a “living and breathing document.”  It either means what it says or it doesn’t.  If its meaning can change with the whim of the time (or at least of a majority of the then-sitting Court), then it is in effect without any meaning at all.  In a country founded upon the rule of law, where people govern their affairs based on the understanding that the same words that meant “XYZ” yesterday can be counted on to mean “XYZ” tomorrow, the supreme law of the land can’t be subject to amendment by vote of five (see Article V)).
While judicial review serves as a valuable check against Congress exceeding its power, there is no corresponding check against the judiciary in its use or abuse of that power. 
Compounding this problem is Article III’s provision for lifetime appointments.  The Founders created lifetime appointments for the judiciary for the sound reason of insulating the Courts from shifting political tides; judges need to be free to apply the law without fear of reprisal.  This worked well in 1789 when average life expectancy was less than 40, and the chance of anyone appointed to the federal bench remaining there very long was low.  You could only do so much damage. 
But today life expectancy is around 80, and it is not uncommon for judicial appointees to remain on the bench 30 years or more.  Justice Anthony Kennedy has 37 years on the federal bench, 24 of it in the Supreme Court.  Justices Ginsberg and Breyer each have 31 years on the federal bench.  District Judge Manuel Real (C.D. Cal.) tops the list of active federal lower court jurists with 46 years of judicial service.  Among federal judges with senior status, I count nearly forty with between 40 and 51 years (yes, some of those are Eisenhower appointees) on the federal bench.  What this means is absent impeachment—and that’s rare—federal judges often stay around a long time, which can spell real trouble if they are inclined to stray from constitutional moorings with no effective check.     
I don’t think the Framers foresaw our modern dilemma.  There needs to be some form of check against rogue judges perverting the Constitution.  I might suggest an Amendment establishing a protocol of periodic re-confirmation by a simple majority in the House.  Maybe something like every 6 years for District Courts, every 8 years for Courts of Appeals, and every 10 years for the Supreme Court, with a lifetime maximum of, say, 25 years at all levels combined.  This regimen would afford some kind of relief valve to limit the damage that can be done by judges who cannot or will not confine themselves to the Constitution.
Although some term limit reform is in order, on reflection, I don’t think I’d overturn Marbury and its important check on Congress.  As we sit here today, judicial review is our only meaningful hope of putting the brakes on Obamacare.  For all their campaign trail bluster, neither Mitt Romney, nor Rick Santorum, nor Newt Gingrich can repeal it if elected, because Presidents don’t have that power.  And it’s unlikely that there will be a sufficient swing in Congress any time soon to repeal it legislatively.  The judicial backstop of Marbury is all we have left to save our Constitution, if it’s not already too late.  
And if the elevator tries to bring you down—go crazy.
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You Got To Know When To Hold ‘Em

 
“Santino, come here.  What’s the matter with you?  I think your brain is going soft with all that comedy you’re playing with that young girl.  Never tell anyone outside the Family what you are thinking again.”
—Marlon Brando as Vito Corleone in The Godfather
This is what happens when you put someone with absolutely no real-world experience in charge.
President Obama is in South Korea this week for the Nuclear Security Summit.  Among other activities at the Summit, he met with outgoing Russian President Dmitri Medvedev on Monday.  You remember the Russians, right?  You know, the old Soviet Union, former co-superpower, and still extremely formidable possessor of a gigantic military machine and huge nuclear stockpile?  The guys who always team up with the Chinese to oppose basically any position the U.S. takes on the international stage, particularly if it involves trying to neutralize potentially dangerous rogue states like Iran, North Korea, or Syria?
Yes, those Russians.
In discussing with Medvedev the possibility of negotiations over the U.S.’s missile defense system—the old “star wars” program that shoots down enemy missiles, and which the Russians would really like to see dismantled (can’t think why)—Obama, thinking he was off-mic, told Medvedev:
“On all these issues, but particularly missile defense, this, this can be solved.  But it’s important for [incoming President Vladimir Putin] to give me space . . . This is my last election.  After my election, I have more flexibility.”
Medvedev responded that he understood and would pass it on to Putin.  Yeah, I’ll bet Medvedev and Putin understood all right.  I can just hear them snickering to each other over a vodka or six:
Medvedev:    I met with Obama.  He says to tell you if you wait until after the election he can bend over and give you whatever you want.
Putin:           Da.  Mahmoud was right.  The guy’s a pussy.
Medvedev:    Da.  Cheers!
This, of course, is not Obama’s first open-mic gaffe.  Recall back in November when open mics picked him up bad-mouthing Israeli Prime Minister Benjamin Netanyahu with French President Nicolas Sarkosy.  Repeatedly this President has displayed all the mature discretion of a 13-year-old girl at a middle school dance.
Worse, however, is Obama’s staggering degree of naïveté in dealing with the international community, particularly with respect to adversarial negotiations.  Here we have the most powerful human being on earth, and he’s opening negotiations by backpedaling.  Imagine going to the car dealership and offering to pay $20,000 today, but pulling the salesman aside and whispering to him that you’ll have more flexibility to pay $40,000 once your wife leaves.  That’s exactly what Obama has just done by unzipping his fly with Medvedev.
Good Lord, if that’s how he is when he’s the 800 pound gorilla, what does he do when he’s in a weak bargaining position?  Go directly to soiling himself?
Time and again Obama has either openly bid against himself, or assumed a public posture that even Neville Chamberlain would recognize as submissive and weak.  Consider some examples:
  • January 2009, Obama announces he is willing to have discussions with Iran without any preconditions, such as Iran suspending its uranium enrichment program.  All this did was tell Iran we weren’t going to do anything meaningful to stop them, and now three years later, they continue to press forward with their nuclear development.
  • Spring 2009, immediately after taking office, Obama travels the globe apologizing for American arrogance, American detachment, American dictation of terms, and American mistakes, thus setting the tone for his administration.  His popularity in Europe and elsewhere rises, but there is little or no move in international support for American initiatives.
  • May 2011, in advance of an official visit by Mr. Netanyahu, and without consulting with the Israeli Prime Minister, Obama gives a speech in which he unilaterally dictates that a two-state Palestinian solution must include Israel agreeing to retreat to its 1967 borders as the starting point for negotiations.  While the ’67 borders might ultimately prove a viable final resolution, and one that Israel might even be willing to accept, by jumping straight there as a starting point, Obama neutralized any negotiating power/room Netanyahu might have had.
  • March 2012, Obama falls all over himself to apologize for the burning of some Korans by troops in Afghanistan.  Rather than calming the situation, emboldened Afghans erupt in weeks of violent rioting in protest.
Even after three years of on-the-job-training, it remains amateur hour down at Obama manor, and everyone in the world sees it except him.  There’s a reason poker players wear sunglasses:  once your opponents know what you’re thinking, you’re done.  You can’t conduct relations with adversaries by curling up in the fetal position and making concessions before discussions even begin.  You certainly can’t open negotiations by disclosing that your bottom line is in reality much lower than what you’re offering, or by outright telling the other side that you’ll cave in if they’ll just wait you out a little longer.  Only an idiot negotiates from the middle instead of to the middle. 
Conceding and apologizing and backtracking may sell well with the Leftist voting base.  But when you do that, the rest of the world doesn’t see you as a peacemaker, but as a weakling—or a moron—and they’re perfectly prepared to take advantage.  That’s an exceedingly dangerous posture for our Commander-in-Chief to be in.  In the real world, the submissive and passive are the ones that get attacked and devoured, not the dominant and assertive. 
President Reagan beat the Russians (Soviets) and ended the Cold War because he understood the concept of peace through strength.  He stood tall and dealt calmly, but firmly, with the “evil empire.”  We never fired a shot at the Soviets under Reagan because we didn’t have to.  They knew perfectly well that he was no B.S.  Ultimately the Berlin Wall came down, not because of concessions and cowardice, but because the world understands and respects projected power.
Our national security took a serious hit this week.  God help us with how much worse it will get with another four years of the Appeaser-in-Chief, particularly when—as he is apparently so quick to advertise—he doesn’t have to face another re-election.  If only Obama could take a little advice from Rounders:
Mr. President, if you can’t spot the sucker at the table, then you are the sucker.
 
******************
Editor’s Note:  Yes, I am encouraged by what we heard yesterday from Justice Kennedy during the Obamacare arguments at the Supreme Court.  At least he’s asking the appropriate questions.  But I’ve been involved in enough legal arguments to know you can’t read too much into a judge’s questions as far as indicating how he or she will rule.  I’m more optimistic today than I was 3 days ago, but there’s still a long way to go. 

Why Obamacare?

 
 
“Don’t look for it, Taylor.  You may not like what you find.”
—Maurice Evans as Dr. Zaius in Planet of the Apes
 
The Supreme Court is hearing arguments this week on Obamacare.  This is the single most important case the Court has taken up in 40 years (yes, even more important than the 2000 election debacle), and maybe ever.  As we follow the proceedings, I have a few questions the implications of which those of you who support the legislation Obamacare should give some honest thought.
1.         If Obamacare was such a good idea, why did it have to be crafted in secret, without opposition input, and rammed through without meaningful discussion?
President Obama campaigned in 2008 in part on a promise of transparency, particularly with respect to healthcare reform:
“That’s what I will do in bringing all parties together, not negotiating behind closed doors, but bringing all parties together, and broadcasting those negotiations on C-SPAN so that the American people can see what the choices are, because part of what we have to do is enlist the American people in this process.”
He was supposed to be the great uniter, leading us all in a new bipartisan chorus of kum-bah-ya.
Oops.
Turns out the signature achievement of his administration to date has been the single most divisive, partisan, and rancorous federal endeavor since Vietnam.  Part of that is due to the Tea Party movement, and Congressional Republicans listening to the overwhelming voice of their constituents telling them not to give in.  But the bulk of it stems from the Democrats’ haste to enact the bill and almost complete exclusion of the Republicans from the process.
In fairness, President Obama did invite Congressional Republicans to a one-day “summit.”  He stared blankly at them and nodded as they outlined some compromise proposals, then proceeded to announce that he and the Democrats were going to move forward with their plans whether the Republicans got on board or not.  Like everything else with this President, “bipartisanship” means his way, or the highway.  The final healthcare legislation was crafted almost entirely behind closed doors—no Republicans allowed, thank you—and the 2,600+ page monstrosity was passed with many in Congress having never actually read the thing.  Recall then-Speaker Nancy Pelosi admonishing us that we’d have to “pass the bill so you can find out what’s in it.”
Why, if it was such a good idea, was so much of its crafting kept out of the public light?
2.         Why can’t any member of Congress articulate constitutional basis for it? 
As I reported a couple of weeks ago, when asked about the constitutional authority for Obamacare, Representative Kathy Hochul (D-NY) told a town hall meeting on February 24, “[W]e’re not looking to the Constitution on that aspect[.]”  She’s not alone in her disregard for the supreme law of the land.  Representative Phil Hare (D-IL), told a Tea Party activist at a town hall meeting in 2010, “I don’t worry about the Constitution on this.”  When CSN surveyed members of Congress back in 2011, many Democrats could not cite a provision in the Constitution conferring authority for the health care law, with responses ranging from the evasive and arrogant (“nobody questions [the constitutional authority]”—Senator Patrick Leahy (D-VT)), to the ignorant (citing the nonexistent “good and welfare”—Representative John Conyers (D-MI)—and “health”—Senator Roland Burris (D-IL)—clauses), to the honest “I don’t know”—Senators Bob Casey (D-PA), Daniel Akaka (D-HI), Jack Reed (D-RI), among others.  
These people all took an oath to uphold the Constitution.  Why, then, when asked where the Constitution grants the authority to enact Obamacare is the response almost always something to the effect of “I don’t know and I don’t care”?  If the Court tips in an activist direction it may ultimately find (or create) constitutional support for Obamacare.  But Congress should have already done that at the time it passed the bill.
3.         Why, if this was such a good idea, was it sold to the American people with so many demonstrable lies?
Cataloging all of the lies, half-truths, and distortions published as part of selling Obamacare to the public would take an entire column in itself.  Let me focus on three of the bigger ones.
First, the primary driver behind the healthcare bill was the supposed urgent crisis of upwards of 50 million Americans being without medical expense insurance—ignoring, of course, the fact that not long ago that virtually no one in the United States (or anywhere else) had such insurance.  The truth, however, is that of those 50 million (actually, 46 and change, but who’s counting?) some 9 million or more were actually not Americans, but illegal aliens.  Another 10 million were only temporarily without insurance for a short period of time.  14 million were already eligible to be covered by Medicare or Medicaid and for whatever reason were failing to register.  And 9 million or so were people making more than $75,000 a year (and thus capable of affording insurance if they wanted it) who were simply electing not to carry insurance.  The real number of long-term uninsured Americans is actually more like 8 million or fewer; in other words Obamacare proponents have exaggerated the scale of the supposed problem more than five-fold.  Furthermore, these 8 million people already have access to—and many of them use—“free” medical care at any hospital ER, which are required by law to treat them regardless of ability to pay.
Second, the President famously and repeatedly promised that “if you like your health care plan, you’ll be able to keep your health care plan, no matter what.”    In point of fact, non-grandfathered plans will have to conform to the mandates of the bill, meaning that no matter how much you like your plan, the minute it so much as changes a premium to reflect inflation—which happens with most plans annuallyit’s going to have to be altered to follow Obamacare.  But more to the point, once the new plan requirements become more expensive to employers than the penalty for not providing insurance—a 100% certainty—most will drop coverage altogether and simply pay the fine; surveys already show as many as 30% of small businesses say they will drop coverage, and the mandates haven’t even taken effect yet.  And, in fact, the CBO estimates that millions of Americans will be shifted from their employer-provided plans (i.e., their existing coverage) to the state-run exchanges or to Medicaid.
You’ll be able to keep your health care coverage—except when you don’t get to keep it.
Third, President Obama also swore that he would “not sign a plan that adds one dime to our deficit, now or in the future, period.”
Read my lips.
Unfortunately, that statement was never true, either.  The CBO said back in 2010 that the program was probably going to cost at least $115 billion more than originally estimated at the time it was passed.  The CBO now says Obamacare’s insurance coverage provisions will have a net cost of “just under $1.1 trillion” between 2012 and 2021. 
4.         Why did they need to do it this way, when it would have been cheaper and simpler simply to give out a voucher-based subsidy?
Perhaps the most important question I want you Obamacare supporters to ask yourselves is why did it have to be this way?  If the real objective was to ensure medical expense insurance coverage for indigent Americans, that could have been done through a direct subsidy.  $2,000 a year for 8 million people is $16 billion—not chump change, but a hell of a lot cheaper than the law Congress enacted.  And more effective, too.  Obamacare was supposed to provide coverage for indigents, but those are the very people exempted from its requirements.  Indeed, the CBO estimates that even with Obamacare, by 2016 there will still be approximately 26 million nonelderly people without insurance.
Does the water around you seem to be getting warmer?  Did you Obamacare supporters ever question why Congress needed to implement a law written in secret and for which most of Congress cannot articulate constitutional authority, and then lie to the public about both the scale of the need for the legislation and its immediate effects, when a cheaper, more effective, and far less intrusive alternative was available?  Have you wondered what it was they were really seeking to accomplish?  Have you given any thought to what the longer term implications might be if this authority Congress is claiming with Obamacare is carried to its logical conclusion?
Or are you not normally that inquisitive?

Easy A

I got some oceanfront property in Arizona
From my front porch you can see the sea
I got some oceanfront property in Arizona
Yeah, if you’ll buy that, I’ll throw the Golden Gate in free.
—George Strait, Oceanfront Property
In the words of the immortal Syndrome—look him up—ooohhh this is too good!  But make sure you’re sitting down and don’t have anything in your mouth, because I don’t want you to spit your coffee all over your computer when you read this:
Energy Secretary Steven Chu gives himself an “A” on controlling gasoline prices.
You read that right.  During a House Oversight and Government Reform Committee hearing Tuesday, Rep. Darrell Issa (R-CA) asked the physics-guru-turned-federal-investment-banker whether he still considered himself to be doing “A-minus” work on gasoline prices.  Chu responded that “I would say I would give myself a little higher.”  In other words, an “A.”  Regular unleaded gasoline now averages $3.87 a gallon and is well over $4 in some parts of California, and the Energy Secretary—with a straight face—gives himself (and, by extension, the administration) an “A.”
Wow.  Just.  Wow.
Even hard-core Obamaphiles have to at least raise an eyebrow at that one.  In their continuing fantasy land of blaming Bush for everything and accepting responsibility for absolutely nothing, can these people really be this bold and/or this out of touch with reality?  This is now so patently ridiculous that it is impossible for any rational adult to take anyone in this administration seriously.  
To refresh everyone, in addition to his fetish for giving away billions in taxpayer dollars to fund unproven green energy startups run by Obama campaign mega-bundlers, Dr. Chu is a rabid global warming fanatic, and crusader against fossil fuels.  In 2008 he told the Wall Street Journal that “we have to figure out how to boost the price of gasoline to the levels in Europe”—at that time upwards of $9/gallon—as a means of eliminating petroleum use in the U.S.  This guy is no friend of gasoline. 
Taking a page from the John Kerry playbook, when pressed about it, Chu backed away from that statement last week, arguing that he wasn’t the Energy Secretary at the time he said it, and now that he is part of the administration he supports what the President at least claims is the goal of lower gasoline prices. 
I guess Chu was for higher gasoline prices before he was against them. 
Interestingly, he qualified his backtracking by saying that the thinking was driven by the poor economy.  Apparently, the administration’s concern isn’t to see lower gasoline prices because that’s what people want or need, but only because higher gas prices might hurt the recovery (if any); the implicit corollary being that if the economy were in better condition, he wouldn’t mind the high gasoline prices so much.  I’m sure that altruism will really comfort middle and lower-income Americans now paying in some areas over $4/gallon.  Given Chu’s history and statements like this, I suppose we have to wonder a bit what he understands “controlling gasoline prices” to mean.
So what, exactly, has the administration been doing on energy, and what has been happening to gasoline prices, such that Dr. Chu is awarding an “A”?  Let’s see:
 
Date
Event
January 2009
Obama takes office; Chu appointed Energy Secretary.
$ 1.79
July 2009
Federal government takes over GM.
$ 2.53
September 2009
DOE approves $535 million loan to solar startup Solyndra.
$ 2.55
February 2010
South Dakota PUC grants permit for Keystone XL Pipeline to run new crude supplies from Canada to U.S. Gulf Coast refineries.
DOE restructures Solyndra loan.
$ 2.64
April 2010
DOE approves $529 million loan to electric luxury car maker Fisker Automotive.
$ 2.85
May 2010
Obama administration issues drilling moratorium in Gulf of Mexico.
$ 2.84
July 2010
Obama administration issues second drilling moratorium in Gulf.
$ 2.73
August 2010
DOE approves $43 million loan to green energy storage company Beacon Power.
$ 2.73
November 2010
GM rolls first production Chevy Volt off assembly line.
$ 2.86
December 2010
“Arab Spring” begins, eventually resulting in regime changes in Tunisia, Egypt, Libya, and Yemen, and tumult throughout much of the rest of the Middle East; Obama administration cheerleads as Islamists fill much of the resulting power void.
$ 2.99
May 2011
Federal judge orders Obama administration to act on stalled Gulf drilling permits.
$ 3.91
August 2011
State Department issues final report saying Keystone XL Pipeline will have “no significant impacts” on the environment, but the White House does not act.
Solyndra files for bankruptcy.
$ 3.64
September 2011
DOE approves $1.2 billion loan to solar firm SunPower Corp.
$ 3.61
October 2011
Beacon Power files for bankruptcy.
$ 3.45
November 2011
Chu takes responsibility for Solyndra decision, and defends the DOE loan program.
SunPower reorganizes, begins layoffs.
$ 3.38
December 2011
Fisker recalls all 239 units of its $100,000+ Karma.
$ 3.27
January 2012
Obama administration rejects Keystone XL Pipeline.
           
Green energy “stimulus” recipient Ener1 files for bankruptcy.
$ 3.38
February 2012
Fisker begins layoffs.
Obama administration claims credit for increased drilling actually resulting from permits granted under Bush.
$ 3.72
March 2012
GM suspends production of Volt due to poor sales.
Obama renews call for increased taxes on oil companies.
$ 3.87
In fairness, President Obama is right when he says there is no magic bullet.  As I’ve covered a number of times, gasoline prices are a function of the market; although the President doesn’t set that market (at least not yet), there can be no denying that administration policies can and do influence it.  The truth is, at every possible turn this administration has taken the road that raises gasoline prices rather than lowers them.  Obama has actively fomented unrest in the Middle East, driving futures speculators to bid up the price of crude.  He has suspended, then stalled drilling in the Gulf of Mexico, and forbids drilling in ANWR.  He delayed, then rejected the Keystone XL Pipeline that would have brought additional crude to U.S. refineries.  Meanwhile, his administration has poured billions of taxpayer dollars into serially bankrupt entities pushing energy technologies for which there is no market because they don’t yet work. 
The objective results are undeniable:  gasoline was $1.79 the day he took office, and today it’s $3.87.  Unless your goal is to drive the price to European levels, that can hardly be classified as “controlling” it.  Presumably we’ll soon hear some vague and unverifiable garbage from Jay Carney that what Chu meant was that gas prices—like unemployment, and the deficit, and the debt, and the anti-U.S. unrest in Afghanistan, etc.—would be much worse but for everything the administration has been doing.
Chu says he’s been “doing everything [he] can to get long-term solutions,” and that’s all well and good, but it doesn’t help anyone today.   I don’t care what my truck runs on, as long as it runs.  Some day that may be some kind of algal urine, but that technology isn’t currently viable and it remains to be seen whether it will ever be.  What we do know is that my truck will in fact run on gasoline right now—if I can continue to afford to fill it up.
On the current state of the record, for Chu to claim an “A” for this administration on energy policy, and specifically as to gasoline prices, is nothing short of laughable. 
If only it were funny.

The Song Remains The Same

 
Shepherd:      What I did tonight was not about political gain.
Kodak:      Yes, sir.  But it can be, sir.  What you did tonight was very “presidential.”
            —Michael Douglas as President Andrew Shepherd, and David Paymer as Leon Kodak in The American President
Does everything down at Obama Manor have to be turned into a political gambit?
Last weekend, President Obama—trying to turn adverse news on rising gasoline prices to his political advantage—renewed his assault on Big Oil, once again calling for an end to what he characterizes as a century of taxpayer subsidies.  I’ve dealt with this tired lie that Evil Big Oil is unfairly raping the rest of society here, and here, and to a lesser extent here, but it appears I’ll have to address this yet again.
There are no “taxpayer subsidies” for Big Oil.  A “subsidy” is when a government gives money to a private enterprise; see Solyndra, Ener1, GM, Chrysler, and anyone else who received “green energy” no-recourse federal loans, “stimulus” money, or TARP bailouts.  If anyone should know what a subsidy is, you’d think it’d be Obama.  Oil companies don’t receive government grants.  None of the major oil companies has received federal loan money, “stimulus” funds, or any kind of bailout.  What oil companies do receive—as I’ve explained many times—are certain tax deductions and credits that are common to any industrial business.  That’s not giving taxpayer money to the oil companies; that’s taking less of the oil companies’ money away from them.  The idea that federal taxpayers are subsidizing oil companies is an outright lie.
The fact of the matter is, if you’re concerned about how much you pay for gasoline, taxes are not the solution, taxes (and other government taking) are a huge part of the problem.  Depending on where you live, at an average price of $3.83 a gallon, between $0.54 and $0.73 is made up of taxes.  That’s direct taxes on the gasoline itself, and doesn’t include the overhead cost of the income taxes already levied on the oil company, or secondary capital gains taxes levied on the company’s shareholders on top of that.  It also doesn’t include government royalties and excise taxes levied on the oil used to make the gasoline, which can be as much as 25%; at $107 for a barrel of West Texas Intermediate crude (which yields 19.5 gallons of gasoline from a 42 gallon barrel), that’s another $0.67 per gallon going to the government.  All told, somewhere around half of that $3.83 per gallon actually already goes to the government.
Obama says fossil fuels are the “energy of the past,” and that we need to be looking to the energy of the future.  Does he really think it hasn’t dawned on Big Oil to investigate future technologies?  Exxon has committed to investing $600 million in algae research.  Chevron is actively involved in researching geothermal, solar, and biofuels technologies.  Although it has scaled back recently—because the technology isn’t getting anywhere, a fact to which the current administration is apparently oblivious—Royal Dutch Shell invested over $1 billion on wind, solar, and hydrogen projects between 1999 and 2006.  BP’s alternative energy subsidiary is participating in a $1 billion wind project.  ConocoPhillips recently committed to participate in investing in $300 million worth of “clean energy” startups.  The major energy companies are keenly aware that if the future indeed belongs to “green energy,” the first one to get there stands to make massive, massive profits.  But it is neither necessary nor desirable to mortgage the present in order to do it.
Obama’s call to “end subsidies” is counterproductive to all of his stated goals.  Raising taxes on oil companies isn’t going to reduce the price of gasoline.  With the government’s take already consuming about half the price, raising taxes is 100% certain to increase it.  Oil companies aren’t going to pay that tax.  You are.  Obama complains about Big Oil’s profits and pontificates about stopping the subsidies as though he’s championing the little guy, but it’s more like Curt Bois in Casablanca warning naive refugees to beware of villains while he’s simultaneously lifting their wallets.
Watch yourself.  Be on guard.  This place is full of vultures, vultures everywhere.
 
And all of this is reducing the amount of capital available to those with the greatest profit incentive to push for the development of new energy technologies, thus compromising Obama’s stated goal of leading us—by the nose, if need be—into the “green energy” future.
He has to know all this.  Obama has to know that is proposed tax increase isn’t going to pass—he couldn’t even get it passed when the Democrats held supermajorities in both houses—and even if it did it isn’t going to do anything to help regular Americans at the pump.  So why carry on with it?  It’s about is perpetuating the false zero-sum campaign narrative that you’re either for middle America, or you’re for Evil Big Oil.  Sounds great, even though on any kind of grown-up examination it doesn’t hold any water. 
This man has no substance or depth whatsoever.  Everything is about the political dog-and-pony, setting up the sound bite or the bumper sticker catch phrase.  Consider:
  •     Crying “tax the oil companies!” when gas prices rise;
  •     Telephoning a law student who wants someone else to pay for her $1000 a year in birth control when Rush called her a “slut,” but remaining totally silent when Letterman called Governor Palin a “slutty flight attendant”;
  •     Routinely using artificial scheduling issues to pre-empt or upstage the GOP, whether it’s unilaterally summoning a joint session of Congress in conflict with a GOP Presidential debate, or scheduling a pointless press conference on top of a GOP primary;
  •     Apologizing to anyone and everyone for everything being America’s fault;
  •    Deliberately dropping “Creator” when quoting the Declaration, and mis-identifying the national motto as “E Pluribus Unum”—it isn’t, it’s “In  God We Trust” (see 36 U.S.C. § 302);
  •     Essentially voting “present” on Israel;
  •     Rushing to condemn the Cambridge police for “acting stupidly,” in arresting Harvard Professor Henry Louis Gates, when 911 tapes later revealed Gates ignored multiple warnings to calm down or he would be arrested for disorderly conduct.
And on and on it goes with the Panderer-in-Chief.  It’s always about creating the best TV optics and throwing bones to his Leftist base.  Claim credit, deflect blame, posture everything as “us vs. them,” but never deal with substantive issues on their relative merits like an adult.
I only hope this broken record ends come November.

The Abortion Funding Charade

Idle:       Your wife . . . does she, er, does she “go,” eh?  Eh?  Eh? Know what I mean?  Know what I mean?  Nudge, nudge.  Say no more.
Jones:    Well, she sometimes goes, yes.
Idle:       I bet she does.  I bet she does.  I bet she does.  Know what I mean?  Nudge, nudge.
Jones:    I’m sorry, I don’t quite follow you.
Idle:       Follow me.  Follow me.  I like that.  That’s good.  A nod’s as good as a wink to a blind bat, eh?
—Eric Idle and Terry Jones in “Nudge Nudge” from Monty Python’s Flying Circus, Episode 3
I see that Planned Parenthood and the DNC were all over Mitt Romney last week for repeating his pledge to cut federal funding to Planned Parenthood.  We’ve seen similar hue and cry here in Texas over Governor Perry’s decision to forego federal funding of a women’s health program because he refuses to include Planned Parenthood (never mind that he has pledged to make up the difference in funding for the program itself out of the State budget).  It is, of course, a continuation of the Left’s tiresome “millionaires’ war against women” narrative.  They repeatedly cite the fact that—apart from its obvious function as an abortion provider/advocate—Planned Parenthood provides prenatal care, breast cancer screenings, and other legitimate women’s health services as evidence of Romney and the Right wanting to “undermine women’s health care,” and being “dangerous and out of touch with what most Americans want.”
Let’s just examine that for a second.
Let’s assume that all Planned Parenthood does is provide legitimate women’s healthcare services (i.e., leave the abortion issue out of it for now).  I like women, and I will accept that providing medical services such as breast cancer screenings is an intrinsically good thing.  Let’s further assume that most Americans want the federal government to subsidize that activity.  Neither the fact that it’s a good idea, nor the fact that a majority wants it, nor the combination of the two means that the federal government is authorized to do it.  As I’ve said many times, the Constitution only grants the federal government limited and defined authority; there is no “good ‘n’ plenty” clause, as Glenn Beck calls it.  If it ain’t in Article I, Congress can’t do it, no matter how good it is, or how many people want it.  And funding women’s health care, with or without abortions, ain’t in there.
What may be more interesting, though, is the problem that arises when we add Planned Parenthood’s abortion services back into the equation.  As even HHS Secretary Kathleen Sebelius has admitted (read: lied—and by the way, someone someday will have to explain to me how she hasn’t been excommunicated over her public abortion stance) “[i]t is illegal to spend any federal money on abortion.”  And, of course, President Obama promised Bart Stupak—one wonders if Stupak made him pinky-swear—he would sign an executive order banning the use of federal taxpayer money to subsidize abortions in exchange for Stupak’s deciding vote on Obamacare.  All of which begs the question:
If it’s illegal and against Presidential orders to spend federal money on abortions, how can the federal government fund Planned Parenthood, even if it were Constitutionally permitted to do so?
How, indeed.
The answer from the Left has to be that the federal money being funneled to Planned Parenthood isn’t going to the abortions, but to the other services Planned Parenthood provides.
You know, Rusty, all that stuff you just admitted was intrinsically good.
I’ve heard this song before.  When I was in private practice, the few of us partners who were conservative Catholics used to get browbeat with a similar argument when we refused to participate in the Firm’s United Way campaigns (some of you may not know this, but United Way, like the Susan G. Komen Foundation, contributes money to Planned Parenthood).  “You can earmark your donation so that it doesn’t go to Planned Parenthood,” the pitch always went.  Presumably that’s the Left’s position here, and indeed the Houston Chronicle has been running numerous pieces making various iterations of this very point: federal subsidies to Planned Parenthood aren’t being used to fund abortions, but for other activities.
I can’t tell whether they’re really this stupid, or if they just think the rest of us are.  Either way, the argument isn’t just accounting gimmickry, it’s childish.
You can’t both give money to Planned Parenthood, and still “earmark” your way out of paying for abortions.  Let me explain.  Assume that Planned Parenthood has the following budget:
Overhead and administrative expenses          $    500,000
Non-abortion clinical services                        $    250,000
Advertising                                                  $    200,000
Abortion services                                         $      50,000
Total expenses                                            $ 1,000,000
Assume further that Planned Parenthood receives 50% of its funding ($500,000) from the federal government under Title X, and the other 50% from private donations.  Absent the federal funding, Planned Parenthood would have to find a way to finance $1 million in expenses with only the $500,000 of revenue from private donations.  Can’t be done; it would have to cut some of what it does.  If it’s going to fund its overhead and other activities, it will have to reduce the number of abortions it provides, if not eliminate them altogether. 
With the federal funding, Planned Parenthood has the full $1 million to cover its budget.  Even if you restrict that federal funding to overhead and administrative expenses, that’s a $500,000 expense Planned Parenthood doesn’t have to cover out of the revenue it generates from private donations.  That money is then available to fund abortions at the full budgeted level.  Either way, whether it goes to general revenues, or it’s allocated away from abortion, the result is the same:   every dollar contributed by the federal government is necessarily—as a matter of basic mathematics—makes more money available to support Planned Parenthood’s abortion function.
Last year, the Washington Post ran a piece on the “Five Myths About Planned Parenthood,”  in which Clare Coleman made the bizarre argument that the “federal funding frees other money for abortion” position is wrong because “there is no other money.”  Never mind that her premise that there is no other money is wildly inaccurate—Planned Parenthood itself says about 2/3 of its revenues come from non-governmental sources.  If Planned Parenthood has no other money, we don’t need the “freeing up” argument because the federal money it does receive is in fact directly paying for abortions.
Surely the Left can’t be this mathematically challenged, which means they’re deliberately trying to manipulate you with this stupid lie.  You can’t separate the entity and say this money goes to the abortion side, and that money doesn’t.  Oh, no, you’re not paying for abortions, you’re paying for typewriters and mammograms, know what I mean?  Wink, wink, nudge, nudge.
Do they really expect anybody to believe this crap?
Of course, the is-it-or-is-it-not-funding-abortion charade, false as it is, really misses the point, which is that those of us who object to the practice don’t want to support organizations that perform them, even if we in fact wouldn’t be paying for the abortions themselves.  I wouldn’t cut the grass outside a Planned Parenthood clinic, even though I know they’re going to provide the same X number of abortions regardless of whether their grass gets cut; I don’t want to support them in any manner.
Say no more.

Dr. Strangegas or: How I Learned To Stop Worrying And Love The Fracking

Venkman:      This city is heading for a disaster of Biblical proportions.
Mayor:           What do you mean, “Biblical”?
Stantz:            What he means is Old Testament, Mr. Mayor, real wrath of God-type stuff.
Venkman:      Exactly.
Stantz:            Fire and brimstone coming down from the skies!  Rivers and seas boiling!
Spengler:        Forty years of darkness!  Earthquakes, volcanoes . . .
Zeddemore:    The dead rising from the grave!
Venkman:      Human sacrifice, dogs and cats living together, mass hysteria!
—Bill Murray as Dr. Peter Venkman, Dan Aykroyd as Dr. Raymond Stantz, David Margulies as the Mayor, Harold Ramis as Dr. Egon Spengler, and Ernie Hudson as Winston Zeddemore in Ghostbusters
Some of you in areas that are new to hydrocarbon (oil and gas) production need to get a grip and learn to embrace your new-found resource base.
I see the media-fueled hysteria over the energy industry’s use of a technique called “hydraulic fracturing” (“fracking,” in industry parlance) continues unabated.  Drinking water is fouled.  Earthquakes are shattering the countryside.  Big Oil is trying to ruin the environment and kill everyone.  And you know it’s all true, because Big Oil is doing it, and we know everything Big Oil does is evil by definition, right?
As a lifelong Texan and someone whose professional background has largely focused on oil and gas production, I have one word in response:
Bullcrap.
Time for some remedial education, because all this hysteria stems from a fundamental ignorance of how oil and gas wells are drilled, and how fracking works.
First, let’s consider how an oil or gas well is constructed.  Contrary to the Jed Clampett legend, you can’t just shoot your rabbit gun into the dirt and up from the ground comes a-bubblin’ crude (or gas).  You have to drill a well, and there’s a lot more to that than just poking a hole in the ground.  The drillers drill to the desired depth, and then a steel tube (“casing”) is inserted and cemented in place with concrete.  This is done to seal off the wellbore from any groundwater reservoirs that may have been penetrated in the process of drilling the well.  Typically a second pipe (“production tubing”) is run through the casing, and then a shotgun-like device is set off at the depth of the expected producing zone to penetrate (“perf”) the tubing, casing, and cement, allowing the hydrocarbons to flow into the well.  With this type of construction, groundwater is insulated from the hydrocarbons by two layers of steel pipe, plus a layer of concrete.
Second, let’s understand a little about oil and gas reservoirs (the geological formations from which oil or gas is obtained).  You may not know this, but oil and gas wells aren’t drilled into gigantic hollow places under the earth like an underground tank you can just tap with a straw (at least not anymore—that low-hanging fruit was all found and drained long ago).  Instead, oil and gas sits underground trapped in tiny pores in layers of porous rock (think of a kind of stone sponge).  The well is drilled into that layer of porous rock, “perfed” at that level, and with luck the natural underground pressure will drive the oil or gas from the rock, through the perfs, and into the production tubing.  When the natural pressure is not enough or becomes depleted, various pumping or reinjection techniques are employed either to suck or push the hydrocarbons out of the rock and into the well.
But sometimes the rock in which the hydrocarbon—in this case, typically natural gas—is trapped is not porous enough to permit the gas to flow into the well.  This is where fracking comes in.  The driller will pump water down the well at high pressure.  That water exits the well underground through the perfs, and creates a network of small cracks in the rock—how those of you in states long-accustomed to miners digging hundreds of miles of gigantic subterranean tunnels can be worried about this escapes me—through which the gas can now flow.  Mixed in that water are certain chemicals designed to facilitate flow, and either sand or tiny ceramic beads to help keep the cracks from closing.  The water is then pumped out of the well and disposed, and with any luck the well will now flow.
Let’s be clear about something before I move on.  This technique is not controversial, and it is not new.  It has been around since the 1940s, and most gas wells drilled in the last several decades were completed with some form of fracking procedure. 
What’s new is the way it’s being used with what is called “shale gas.”  The energy industry has long known that there were ENORMOUS gas reserves trapped in layers of shale rock deep beneath the surface.  The problem was the nature of shale made it uneconomical to produce.  Shale typically resides very deep—8,000 to 10,000 feet or deeper—and often in relatively thin layers (think of a parfait with a very thin layer of chocolate only near the bottom).  What this means is that the producing zone may be as little as 20 feet thick, which isn’t much area to produce in a 10,000 foot well.  And because shale is relatively non-porous, it requires fracking in order to release the gas it holds trapped.  But the cracks from a frack job only extend a couple hundred feet from the wellbore.  As a result, to get to shale gas, you had to drill an extremely expensive deep well, and you could only produce what was trapped within a short radius from a thin layer of shale.  You couldn’t produce enough gas that way to make the well worthwhile.
Modern drilling technology has changed that equation.  Drillers are now able to drill horizontally, meaning they can drive down to the desired depth, then bend the wellbore to run parallel to the productive zone.  Instead of just penetrating the thin layer of shale at a single point, they can now get to the shale and then run hundreds of feet along it.  This allows them to do many perfs, many fracks, and produce from a much broader area with a single well, making the shale gas now economical to access.
But Rusty, what about the people with fire coming out of their kitchen faucet?
The characteristics of shale gas and the fracking technique raise a few important difficulties for those who now want you to be all freaked out about all this.  As I mentioned, these shale deposits sit DEEP, typically 8,000-10,000 feet or more below ground.  The groundwater you drink—if you drink well water—is much shallower.  Private wells are usually no more than 50 to 100 feet deep.  Even deep municipal wells are not much more than 1,000 feet.  This means there is more than a mile of earth between any groundwater and the shale that’s being fracked.  Because fracking doesn’t extend more than a couple hundred feet from the wellbore, it simply can’t create a pathway from where the hydrocarbons and fracking fluid are to where the groundwater you’re drinking is.  Moreover, that mile of earth will always include a cap layer of impenetrable rock—otherwise, the gas would never have become trapped there in the first place.    
I don’t know what’s (allegedly) coming out of your tap, but it didn’t come from hydraulic fracking.
Nor is fracking responsible for the ground shaking in places like Ohio.  The kinetic energy of a frack job is less than that of seismic testing commonly used for decades to locate geologic formations, and at a depth of nearly two miles, it has less impact on surface stability than your basic 18-wheeler.  Moreover, the volumes, pressures, and duration are far less with fracking than with the longstanding practice of reinjecting the saltwater that is produced from many oil and gas wells.  What you are seeing in Ohio is the media (deliberately?) confusing hydraulic fracking with the latter practice.  A saltwater injection well, if improperly placed on a fault line, can cause seismic activity, and this is almost certainly what has happened in Ohio.
Hydraulic fracking is not poisoning your water, and it is not going to shake your house down.  What it is doing is allowing the energy industry to tap the equivalent of hundreds of millions of barrels of oil in the form of domestic reserves of clean-burning, cheap natural gas.  In the process, it’s creating thousands of jobs and generating billions of dollars in tax revenues.  And, yes, it’s also turning some of your neighbors who were smart enough to hang onto their mineral rights into millionaires, and what’s wrong with that?  

We seem to have done pretty well with it here in Texas, and we haven’t blown up, fallen into the Gulf of Mexico, or spawned generations of children with three eyes. 

The Boundless Commerce Clause

Phil:    Let me ask you guys a question.
Gus:    Shoot.
Phil:    What if there were no tomorrow?
Gus:    No tomorrow?  That would mean there would be no consequences.  There would be no hangovers.  We could do whatever we wanted!
—Bill Murray as Phil Connors, and Rick Ducommun as Gus in Groundhog Day
  
Last Friday, I had the privilege of listening to Senator Mike Lee (R-UT) address a luncheon gathering of the Houston Lawyers’ branch of the Federalist Society (and, let me say, his book The Freedom Agenda is a must-read).  Senator Lee’s theme was that liberty is a right that we as citizens must assert for ourselves; no one else is going to do it for us.  And if we don’t start doing it soon, it’s going to be too late.
What did he mean by that?  Well, I’ll bet you didn’t know that that the federal government has already claimed for itself the power to prevent you from growing your own food on your own private property, and to fine you if you do it.
Rusty, that’s crazy.  You’re off in government-conspiracy la-la land again.
Oh, yeah?  Let me introduce you to Roscoe Filburn (pictured above).  Filburn owned and operated a small family farm in Ohio, where he raised livestock and grew wheat.  It was his practice to sell part of that wheat that he grew on his own private property via the sweat of his own brow, and to use the other part of that wheat to feed his family, feed his animals, and as seed for the next year’s crop.  Sounds like pretty ordinary activity for a farmer, and commendable self-reliance.  Indeed, it’s precisely what Americans have done for themselves literally since the day our forbears got off the boat (longer than that if your forbears, like some of mine, met the boat when it landed).
There was just one problem.
In 1938, the New Deal was in full swing, and as part of that, Congress enacted the Agricultural Adjustment Act, which was intended to raise agricultural prices by artificially restricting supply.  It did this by paying farmers subsidies for not growing certain crops.  It was later amended to go a step further by establishing maximum quotas for the production of wheat, and imposing fines for growers who exceeded those limits.  In other words, the government went beyond simply incentivizing farmers not to grow, and actually criminalized the use of private property to grow more of certain crops than the government allowed.
Let me repeat, especially for those of you who like to talk about the need to do something about hungry babies: in order to prop up grain prices, the United States federal government made it a crime to grow food.
Under the AAA, Filburn’s 1941 allotment for wheat allowed him to sow 11.1 acres at a normal yield of 20.1 bushels per acre.  He nevertheless chose to plant 23 acres, resulting in the production of 239 more bushels of wheat than the government said he was allowed to produce.  Although Filburn’s extra production was intended for his own consumption and never entered commerce at all—much less crossed state lines to become interstate—he was fined, and the extra production was effectively impounded to secure the government’s lien to ensure payment of that fine.  Filburn sued, claiming that the regulation went beyond Congress’ authority under the Commerce Clause.
What resulted was the United States Supreme Court’s 1942 opinion in Wickard v. Filburn, 317 U.S. 111.  Writing for an inexplicably unanimous Court, Justice Robert Jackson upheld the regulation, reasoning that Congress has, under the Commerce Clause, the power to enact legislation regulating even private activity, however small, if the effect of that activity when aggregated together with the other similar activity “affects” interstate commerce.  In Filburn’s instance, his decision to provide for himself by growing his own wheat on his own property meant that he would not be buying the wheat he needed from someone else; if enough people did that, there would be less demand in the open market, and prices would fall.  This potential “effect” on interstate commerce was, in the Wickard Court’s judgment, sufficient to permit Congress to regulate Filburn under the Commerce Clause.
It is this perversion of the Commerce Clause that has gotten us where we are now, and the Framers wouldn’t recognize it.  But consider the actual text of Article I, Section 8 itself.  It’s not long, it’s not complicated, and you don’t need a J.D. from Harvard to be able to understand it:
“The Congress shall have Power To . . . regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes[.]”
The Framers never intended this clause to be an all-empowering provision authorizing Congress to do anything it deems a good idea, or to regulate private activity on private property just because if enough people did it it might “affect” interstate commerce. 
What the Framers meant by the “Power To . . . regulate Commerce” was the power to bring about order and uniformity; in other words, to avoid balkanizing—the breaking up of a whole into smaller hostile units—of the fledgling national economy through individual States enacting protectionist tariffs against trade from other States.  Madison and Hamilton addressed this idea repeatedly in the Federalist Papers.  Hamilton wrote in No. 7: 
“Competitions of commerce would be another fruitful source of contention [between the States].  The States less favorably circumstanced would be desirous of escaping from the disadvantages of the local situation, and of sharing in the advantages of their more fortunate neighbors.  Each State, or separate confederacy, would pursue a system of commercial policy peculiar to itself.  This would occasion distinctions, preferences, and exclusions, which would beget discontent.”
See also Federalist Papers Nos. 11, 22, and 42 (Madison), all discussing the same idea.  There is no question that what the Framers were getting at was they didn’t want New York imposing an import duty on goods made in New Jersey.  That’s all the Commerce Clause was intended to do.  And for 150 years, everyone pretty well understood this.
But somewhere along the way we lost the critical understanding that our federal government was intended to be a limited one whose powers were “few and defined.”  This lack of understanding, coupled with officials in all three branches of government pushing a self-perpetuating statist agenda, and the question stopped being asked whether government had the power to do this or that, and it became “who is going to stop us?”  Wickard cast aside any real pretense of limitation on Congress’ authority under the Commerce Clause, and only twice since 1942 has the Supreme Court told Congress it couldn’t do something under the Commerce Clause.  After all, if Congress can tell a farmer in Ohio that he cannot grow his own food on his own property, there is little else it cannot reach.  This is going to come as a tremendous shock to those trying to live “off the grid” when one day some bureaucrat comes to levy a fine on them because they are not purchasing electricity from the government-subsidized wind farm.  But that idea flows directly from Wickard’s grossly overbroad “interpretation” of the Commerce Clause.  There simply aren’t any real limits on federal authority if you follow Wickard to its logical conclusion.
Wickard, of course, also provides the intellectual framework for Obamacare, and therein lay what may be the biggest challenge and biggest opportunity in the upcoming Supreme Court battle.  The government will argue that the Supreme Court’s Commerce Clause jurisprudence under Wickard and its progeny support Congress’ authority to enact Obamacare, and it will have a point.  To overturn Obamacare, the Court may have to overturn Wickard and its progeny, and therein lay the opportunity.  Query, however, whether this Court has the temerity to do it.
Which brings us back to Wickard itself and Senator Lee’s challenge that we must assert these rights ourselves.  Justice Jackson’s opinion made this very point in Wickard that the ultimate check on the broad federal commerce power lay not with the courts, but with the electorate:
“[E]ffective restraints on its exercise must proceed from political rather than from judicial processes.”
We cannot count on the third branch to protect us; they have become complicit in the statist’s game.  We must assert these rights ourselves, which means winning at the ballot box.
Here’s hoping we can continue in November what was begun in 2010.

Setting Things Straight On The Contraception Mandate

 
“Well, that’s the real question, isn’t it: Why?  The ‘How’ and the ‘Who’ is just scenery for the public . . . Keeps ‘em guessing like some kind of parlor game.  Prevents ‘em from asking the most important question, ‘Why’?”
—Donald Sutherland as “X” in JFK
I really thought we’d be past this by now, but I see there remains some confusion about the contraception mandate.  The Left has flogged this issue as being about women’s right to “preventative healthcare,” and if you oppose that—however legitimate your religious or Constitutional objection may be—you’re a woman-hater.   There’s just one problem:
The contraception mandate has nothing to do with healthcare. 
It doesn’t.  And that’s so no matter how many times the Leftist media, or Kathleen Sebelius, or Debbie Wasserman-Schultz shriek that it does.
Of course it does, Rusty.  Don’t you know that The Pill is used for lots of other medical applications besides preventing pregnancy?
True enough, so far as it goes.  The Pill has indeed been shown to have some benefits in reducing the incidence of certain forms of cancer.  It is also prescribed for PMS, uterine cysts, and severe cases of acne (among other things).  Never discussed is the fact that The Pill is also associated with negative side effects such as severe clinical depression and increased incidence of certain potentially fatal embolisms, but I’ll leave those things aside and accept for purposes of this discussion the notion that The Pill has legitimate medical uses other than the prevention of pregnancy.
That misses the point almost entirely.
First, according to a Time e-magazine piece (referencing a study by the Guttmacher Institute, whose testimony is frequently cited by HHS in support of the mandate), only 14% of women use The Pill exclusively for non-contraceptive purposes (the percentage given for teens is higher—33%—but still a distinct minority).  What this tells us is that, despite the presence of these other healthcare applications, the vast majority of women who use The Pill are not doing so to realize those ancillary health benefits, but to avoid getting pregnant.  So for all the hysteria on the Left about objections to the contraceptive mandate being part of a “war on women,” you can’t hang it on the idea that women need The Pill as part of a health regimen apart from avoiding pregnancy, because it appears that by and large that simply isn’t how they’re using it.
Second, and maybe more to the point, this isn’t really the argument being advanced by Obamacare advocates to justify the contraception insurance mandate.  To the contrary, the focus is, and always has been, that the avoidance of pregnancy in and of itself is “preventative health care” (as though pregnancy, and the resulting children, are a disease to be prevented, just like malaria).  Secretary Sebelius—the one who actually issued the contraceptive mandate—testified last week before Congress that “the reduction in a number of pregnancies compensates for the cost of contraception.”  In other words, the plan pays for itself not by reducing the cost of treating these other conditions impacted by The Pill, but by reducing the number of pregnancies.  And the regs themselves echo this idea:
“In addition, there are significant cost savings to employers from the coverage of contraceptives.  A 2000 study estimated that it would cost employers 15 to 17 percent more not to provide contraceptive coverage in employee health plans than to provide such coverage, after accounting for both the direct medical costs of pregnancy and the indirect costs such as employee absence and productivity . . . Contraceptive coverage, by reducing the number of unintended and potentially unhealthy pregnancies, furthers the goal of eliminating [the economic disparity between men and women resulting from the fact that women get pregnant and men don’t] by allowing women to achieve equal status as healthy and productive members of the job force.
Final rules at 10-11 (emphasis added).
I’ve posted on this before:  if this is about women’s healthcare in the form of preventing pregnancy, as HHS suggests, you shouldn’t be pushing an insurance mandate covering contraception.  What you should be pushing is abstinence, which is infinitely cheaper, safer, and more effective than anything a doctor can prescribe or an insurance company can pay for.  Yet there’s not a peep about it.
Even if this were about women’s legitimate health issues beyond pregnancy, that would only extend the argument to condoms (which are far cheaper than other methods of contraception) and The Pill (which, as I’ve noted, by and large isn’t in fact used for these non-contraceptive purposes).  The argument would not extend to IUDs, diaphragms, sponges, spermicidal foams, and the early abortion drugs “Ella” and “Plan B,” none of which have any legitimate claim to ancillary medical benefits outside the prevention of pregnancy (and some aren’t even very good at that), yet all of which are included among the methods insurers will be required to cover. 
Why?
Why, if this is about the healthcare benefits of preventing pregnancy, would we not be focused on the safest, most effective, and least costly methods available?  Why, if this is about women’s preventative health care apart from the prevention of pregnancy, does the Obamacare mandate extend to contraceptive mechanisms that have no—no—medical utility whatsoever beyond their capacity to prevent pregnancy? 
The answer is simple:  because this debate is not, and it never has been, about “women’s preventative healthcare.”  That phrase is a deliberately charged label the Left has devised to posture the debate as one of the Right vs. women—after all, only a misogynist could be against women’s preventative healthcare—and they’re manipulating you with it.  They want you to equate (read: “confuse”) the phrase “my combined oral contraceptive pill is a drug” with the phrase “all contraception is a matter of women’s health,” which simply isn’t true.   It’s an iteration of the “Big Lie”; they repeat it over and over, and like Orwell’s sheep, many have picked up the cadence, unaware of what they’re saying or why they’re saying it.  Once we recognize that the mandate extends to every FDA-approved contraceptive mechanism regardless of its relative effectiveness or expense, and regardless of whether the mechanism has any conceivable health benefit outside of the prevention of pregnancy, it becomes clear that this is in fact not about women’s healthcare.  It is about providing access to whatever contraceptive mechanism people want, and making someone else pay for it.  Otherwise, there is no explanation for the mandate covering, for example, spermicidal sponges, which are about 15 times more expensive than a condom, have an effective rate according to the FDA as poor as 68%, and carry none of The Pill’s ancillary medical benefits. 
That’s not healthcare, that’s a matter of sexual convenience.
Once again, no one—not me, not Rush, not the Republican Party, not the Catholic Church, nobody—is stopping you from getting a prescription for The Pill, or buying a condom, or using a diaphragm, or otherwise using whatever contraceptive you choose, for whatever reason, whether it’s preventing pregnancy, reducing your acne, or whatever.  Moreover, as HHS itself notes in its final rules, 89% of insured plans already cover contraceptives, so the chances are very high that you’re already covered.  And I defy anyone to find an actual example of a live human being who wanted contraception but literally could not get it. 
So why insist on not only pushing forward with the contraception mandate, but also with hiding behind this charade that this a debate about women’s health when it’s demonstrably not?  Could it have something to do with deflecting attention from the real question of where the constitutional authority is for the federal government to force people who don’t want it to obtain from their employers insurance coverage covering something the employers don’t want to cover, paid for by insurance companies who (absent a premium adjustment) don’t want to pay for it?  As Representative Kathy Hochul (D-NY) responded to that very question in a town hall meeting February 24, “Well, basically, we’re not looking to the Constitution on that aspect . . . basically, the decision has been made by this Congress that American citizens are entitled to healthcare[.]”
 
We’re not looking to the Constitution, because the decision has been made by Congress.
Oh, really?

What’s Causing Your Pain At The Pump

 
“You got ninety percent of the American public out there with little or no net worth.  I create nothing.  I own.  We make the rules, pal.  The news, war, peace, famine, upheaval, the price of a paper clip.  We pick that rabbit out of the hat while everybody else sits out there wondering how we did it.  Now you’re not naïve enough to think we’re living in a democracy, are you, Buddy?  It’s the free market.  And you’re a part of it.”
—Michael Douglas as Gordon Gekko in Wall Street
The price of a gallon of gas creeps ever-upwards, now pushing the $4/gallon mark.  Some might view that as a kind of tipping-point psychological barrier—I thought that about $3 gas—and some of you have suggested that it could be the best possible tool to defeat Obama.  But I see he’s now using it as his own campaign point, once again beating the dead horse of Evil Big Oil taking billions in subsidies that should be going to “green energy,” while unfairly gouging Joe Six-Pack at the pump.
Time for a little reality check. 
First, as the Wall Street Journal reported a couple of weeks ago, in current dollar terms the price of a gallon of gas in the U.S. has almost always been between $2 and $4.  Optically $3.79 looks bad because we’ve never really seen it, and most of us are old enough to remember when gas was a buck or less.  But the fact is that relative to your purchasing power today, that $3.79 isn’t really all that different than $0.93  was in 1986.
Furthermore, before we go laying the blame for your pain at the pump at the feet of Evil Big Oil, let’s consider just where the price of gasoline comes from in real life.
 
According to the American Petroleum Institute, 71% of the cost of a gallon of gasoline is the cost of the crude oil from which it is produced.  But before we flog Evil Big Oil for current crude prices north of $100/barrel, let’s remember that as large as they are, the major private oil corporations are relatively small players in the global oil market, which is actually dominated by the huge national oil companies in Venezuela and the Middle East.  I’ve discussed this before:  of the five companies making up “Big Oil,” only ExxonMobil at #17 even cracks the top 20 globally in terms of reserves.  COMBINED the five companies making up Big Oil would barely be the 10th  largest oil company globally.  The simple fact is Big Oil has essentially no control over the cost of crude oil or gasoline.
 
But there are reasons oil is over $100, and gasoline is therefore as expensive as it is.
We need to understand the basic concept of a supply and demand curves.  When we decrease supply, we shift the supply curve to the left —the available quantity at any given price is less than it was previously.  This results in the supply curve intersecting the demand curve at a higher price point.  Likewise, if we increase demand, we shift the demand curve to the right–there is greater demand at any given price, meaning that the demand curve intersects the supply curve at a higher price point.  
As applied to our current gasoline situation, both decreased supply and increased demand are at work.  On the supply side, despite President Obama’s dubious protests that he’s been the most pro-drilling Chief Executive in history, regulation and government resistance to the permitting process are still limiting drilling (ANWR, anyone?).  The Obama administration’s blockage of the Keystone XL Pipeline project only adds to the problem by reducing the amount of crude available to U.S. refiners.  Abroad, turmoil in the Middle East continues to hamper production, further limiting supply.  On the demand side, the big driver is exploding growth in the developing world, particularly China and India.  Billions of new people wanting to drive cars equals a huge upswing in demand, with no added sources of supply to meet it.  And risk of war in the Middle East curtailing future supply has led to speculative investors being willing to pay higher prices now for oil or oil futures, betting that supply will drop further, resulting in even higher prices down the road.
The net result is we feel the squeeze from both sides of the supply/demand curve; the supply curve is moving to a more restricted quantity available, and the demand curve is moving dramatically to a higher quantity sought.  The equilibrium intersection is necessarily going to be at a higher price point, and neither move is something Evil Big Oil can do anything about. 
But government could.  It just won’t.
Government also impacts the price through taxes.  On average, 14% of the cost of a gallon of gas is taken up by government in the form of excise taxes.  That’s $0.56 on a $4 gallon.  It’s worse in states like California and New York, where the government take is over 19%.  You want to know who is gluttonously gouging you at the pump?  Take a look at the District, and your local statehouse.
Yet somehow Obama thinks that the solution to “high” gas prices (and the deficit) is to increase taxes on oil companies.  With taxes already comprising the single biggest component of the price after the cost of raw materials and refining, how is increasing taxes supposed to reduce that price?  And this idea that Evil Big Oil is receiving the benefit of some kind of unique and unfair form of federal subsidization is simply a lie.  As I’ve posted before, these “subsidies” actually consist of tax deductions and credits that are of a nature common to virtually all business taxes: deduction of intangible drilling costs such as drillsite preparation and engineering (similar to the R&D costs deducted by pharmaceutical firms), and tax credits for foreign taxes to prevent corporations with international operations from being double taxed (the same credit available to individuals). 
The fact is, between 2005 and 2009, U.S. oil producers paid over $98 billion in federal income taxes alone—that’s in addition to the billions in royalties paid on oil and gas production from government-owned lands—more than virtually any other industry.  The effective global tax rate on the oil and gas industry is 40%, which is higher than both the federal rate of 35%, and the average rate for manufacturers of 26.5%.  Eliminating the current tax deductions and credits (the so-called “subsidies” Obama is attacking) not only disadvantages the oil industry relative to other U.S. businesses, it disincentivizes production (thus further reducing domestic crude supplies), and harms the refining and retail side of the business.  The net result will inevitably be increased gasoline prices, not reduced—just check out Europe, where taxes comprise as much as 75% of the price of gasoline, and consumers pay upwards of two to three times what we pay in the U.S.
Nor is it necessary to increase taxes on oil companies to pay for “investments” in “green energy,” because those companies (actually more correctly referred to as “energy companies” for this very reason) are already doing that on their own.  Every major oil company in the world already has R&D departments investing billions of dollars a year to research alternative fuels technologies.  And if the future is, indeed, “green energy,” they have every incentive to do so.  But increasing taxes on them only leaves them with less capital to do that work.
Once again, this administration has it exactly backwards.  Increasing taxes on oil companies isn’t going to reduce the price of gasoline, reduce the deficit, help the economy, or accelerate a green future.  What it will do is give Obama a convenient Bogeyman to flail on the campaign trail before a gullible public. 
And they are the ones who will ultimately pay the price.