Thursday, November 08, 2012
You ain't seen nothing yet
With the House still in Republican control, there is not much damage Obama and his Democrats can do via legislation but Obama's regulatory powers are immense. Just the EPA could destroy American business singlehandedly and they are going to try. They will undoubtedly be held up in the courts but, with Obama appointments to SCOTUS, the EPA will prevail in the end.
The re-election of Obama after 4 years of great economic failure is immensely disturbing. It suggests that no conservative can now be elected President. With the media, most minorites and the 47% behind them, are the Democrats now unbeatable? It seems likely. It seems that America's decline is now well underway and is probably irreversible. I am glad I am not an American who wants a job -- JR
At a low point in the fortunes of the Tory party, Disraeli said, “The pendulum swings.” It does indeed, but it is not going to swing back to limited-government republicanism any time soon; in fact such republicanism has for some time been effectively dead in California, New York, and the other arrantly blue states. Nor, to judge from yesterday’s election, is such republicanism especially vibrant in middle-of-the-road states like Florida, Virginia, Ohio, and Colorado. Put it another way: only once since the 1980s has a Republican candidate won a greater number of votes in a presidential election than the Democratic candidate (Bush in 2004).
Defeat offers clarity. If we had any doubts as to our position, yesterday’s election put an end to them. Those of us who continue to oppose the fiscal and constitutional overreach of the modern social state now find ourselves in the wilderness.
Insofar as politics are concerned, the best the center-right in America can do, in the foreseeable future, is to act as a check on folly in the political arena, and in doing so hope to prove Macaulay wrong when he said that the American Republic would fail because the poor would plunder the rich and increase the country’s distress by devouring the “seed-corn” of future growth.
Some examples of anti-business regulation at work
According to conventional progressive wisdom, regulation is the means by which a compassionate government protects the weak and innocent from the strong and malevolent.
Try telling that to Brad Jones. Jones is one of the owners of Buckingham Slate, a Virginia business a little over an hour's drive west of Richmond. The company is distinguished by the quality of the highly valued Arvonia slate it produces. And by the fact that its roots trace back almost to the Civil War. And by the fact that federal regulators smacked it with a $4,000 fine.
Over a trash can. The offending can — or "waste receptacle," in the words of the Mine Safety and Health Administration's official citation — was "not covered." What's more, "the receptacle was full." It "could be smelled." There were — brace yourself — "flies fl[y]ing in and around the receptacle." And to crown all, "management engaged in aggravated conduct constituting more than ordinary negligence" by allowing this "condition to exist." The horror.
Buckingham Slate has racked up other fines, too — such as a $70,000 fine imposed because one of its trucks had an inoperable horn. Perhaps regulators were following the approach advocated by Al Armendariz, the former EPA official who said enforcers should "crucify" offenders to "make an example" of them, which would then make others "easy to manage."
According to President Obama's campaign rhetoric, Republicans have nothing to offer but "the same prescription they've had for the last 30 years. . .: 'Feel a cold coming on? Take two tax cuts, roll back some regulations, and call us in the morning!' "
Funny stuff. But Martha Boneta isn't laughing.
Boneta, a Fauquier County farmer, hosted a birthday party for eight 10-year-old girls — an occasion for which she lacked the proper "events permit." For this, the county slammed her with a $5,000 fine. She also got in hot water for selling items, such as yarn and birdhouses, that she had not made herself.
Outraged over how the county was treating her, local farmers showed up at a zoning-board meeting a couple of months ago with pitchforks in hand. But the demonstration was only so useful. She ended up closing her shop anyway.
Americans should place more trust in "the guiding hand of government," according to the president and his supporters.
But try telling that to Nathan Hammock and his family. The Hammocks own a dairy farm in Museville. Because of drought, they wanted to put an irrigation pond on their property. They eventually managed to — after three years trying to get permission from the Environmental Protection Agency and the Army Corps of Engineers. "I think we've spent close to $30,000" in the process, Hammock says.
Hammock made the comment in a video you can find on the website of Rep. Robert Hurt (go to http://hurt.house.gov/ and click on "Videos"). Hurt, who represents Virginia's Fifth District, has introduced legislation to let farmers farm without having to navigate a "tremendous bureaucratic maze." It is moving through Congress — slowly.
The plural of anecdote, of course, is not data. So here are some data: In its first three years the Obama administration imposed more than 100 economically significant regulations — those costing $100 million or more. That's roughly four times as many as the Bush administration did during a similar period, according to the conservative Heritage Foundation.
Liberal outfits insist Heritage is wrong. But even by their Obama-friendly accounting, the current president has been issuing major rules at a rate 24 percent faster than Bush. Despite the lip service he often pays to the free market, the president has overseen massive regulatory expansions. See, e.g., the banking industry; vehicle mileage standards; Obamacare's seemingly endless new rules; carbon emission limits on coal-fired power plants; energy-efficiency standards for home appliances; and dozens more.
According to a report by the House Committee on Oversight and Government Reform, "The published regulatory burden for 2012 [alone] could exceed $105 billion. . . . Since January 1, the federal government has imposed $56.6 billion in compliance costs and more than 114 million annual paperwork burden hours."
Ask Jones about paperwork. Buckingham Slate is overseen by an alphabet soup of federal and state agencies, and "each one of them wants something from us all the time that is costing us money" — spill-prevention plans that require hiring an engineer; pre-shift inspections; dust monitoring; and more. Jones estimates that five of his 45 employees spend 20 percent of their time simply filling out paperwork.
Of course we need regulation. It helps keep our food safe to eat and our air safe to breathe. Companies shouldn't be able to shift the costs of production onto the public by dumping pollutants into the environment. Everybody agrees with that. The real question is: At what point does regulation go too far?
"If you're a small operator, they're just putting you out of business," says Jones. "It doesn't matter that we can compete globally. . . . Sooner or later, that kind of regulation is going to shut you down."
Obama Supreme Court would attack free speech and right to equal protection
The Obama Administration has avidly attacked certain constitutional rights. In one Supreme Court case, it argued that the government had the power to ban a non-profit corporation from publishing a book critical of a political candidate (the Supreme Court rejected this argument in a 5-to-4 vote, over a dissent by the liberal justices). In another, it took a position rejected by a unanimous Supreme Court, arguing that it could dictate who churches can hire as ministers or select to speak for them on matters of religious doctrine — a position so extreme that would have violated the Establishment Clause and the Free Exercise Clause of the First Amendment.
It has sought to not only preserve racial preferences where they already exist (like in admissions to colleges and universities, and in government hiring and federal contracts), but also to extend them to new areas, like health care, and racial quotas in school discipline, which violates a federal appeals court ruling enforcing constitutional equal-protection guarantees). And it wants to ban speech that it views as constituting, or inciting, discrimination, which would reach a vast range of speech ranging from the politically-incorrect to the blandly economic.
Former Education Department lawyer Curt Levey discusses the implications of Obama replacing two Supreme Court justices who will reach the age of 80 in a few years. Here is his “Top Ten” list of potential Supreme Court rulings that might result from Justice Scalia or Justice Kennedy being replaced as they reach an advanced age and retire:
#10 – A ban on voter ID laws, making it impossible to stop voter fraud.
#9 – Carte blanche for hate-speech laws that ban videos and other expression deemed offensive to Muslims and other minorities.
#8 – Abolition of the death penalty.
#7 – A prohibition on tuition vouchers being used for religious schools, crippling the school choice movement.
#6 – Elimination of all legal limits on racial preferences for minorities.
#5 – A requirement for taxpayer-funding of abortions through the third trimester of pregnancy.
#4 – Invention of a constitutional right to gay marriage that would trump all state laws and religious objections.
#3 – Striking down, as unconstitutional discrimination, any serious attempt to curtail the flow of illegal immigrants into the country or to deny them government benefits.
#2 – Elimination of an individual right to possess firearms.
#1 – Enshrinement of welfare and government-provided healthcare as constitutional rights, thus fulfilling Barack Obama’s dream of a Supreme Court willing to bring about “redistribution of wealth” by “break[ing] free from the essential constraints that were placed by the Founding Fathers in the Constitution.” (quoting 2001 PBS interview with Obama).
Some of his predictions will likely come true under an Obama Supreme Court, in whole or in part (I don't view all of the things he predicts as being bad, although most of them are).
Levy argues that an Obama-picked Supreme Court will give the government “carte blanche for hate-speech laws.” This is both an overstatement and an understatement, but it contains more than a kernel of truth. I think that an Obama Supreme Court would interpret the Fourteenth Amendment as forcing colleges and universities — and conceivably cities and counties as well — to restrict hateful (and not-so-hateful) speech that creates a “hostile environment” (i.e., a "hostile educational environment" or “hostile municipal environment.”)
A liberal federal appeals court has already ruled this year in DiStiso v. Cook that school officials are liable under the Fourteenth Amendment for racially-hostile “educational environments” created by racial name-calling and racist speech among kindergartners, effectively requiring teachers to ban such speech under fear of personal liability, even though students are not state actors or agents of their schools (just as private citizens are not state actors, or agents of their city or county). This radical ruling, which ignores the state-action doctrine accepted by the current Supreme Court, was unnecessary to prevent true harassment, since Title VI of the Civil Rights Act already reaches racial harassment by peers that is “severe and pervasive” enough to interfere with an education.
(The plaintiff in the DiStiso case argued that the “harassment” was actionable under the Fourteenth Amendment even if it was not severe enough to violate Title VI or Title IX, effectively circumventing statutory limits on liability.) Another federal appeals court has held that the government is liable for harassment by state actors in society generally, outside the workplace and schools. See Johnson v. Martin, 195 F.3d 1208 (10th Cir. 1999). If you put these two rulings together, as a logical chain, you could argue that local governments are obligated to suppress racist or sexual speech in the larger society as well, to prevent a racially or sexually hostile “municipal environment.”
(All sorts of speech is forbidden in the workplace to prevent a “hostile work environment,” like when a liberal federal appeals court allowed a secretary to sue for sexual harassment over a professor’s looking at porn on his office computer. A federal appeals court relied on the First Amendment to dismiss a racial harassment lawsuit over a professor’s anti-immigration emails, but it didn’t deny that they fell within the broad concept of “hostile work environment,” and liberal lawyers argued the speech should be suppressed as equality-depriving “verbal conduct”).
On the other hand, if they wish to restrict hate speech, local governments will not have “carte blanche” even under an Obama Court, since they will have to frame any hate-speech ban as a ban on “verbal conduct” that creates a “hostile environment,” using “verbal conduct” as a euphemism for speech (an argument that worked in the California Supreme Court in the Aguilar v. Avis case), rather than coming right out and declaring their intention to ban all hate speech, irrespective of whether it contributes to a hostile municipal environment. Liberal judges like banning certain speech, but only when they can call it something other than speech. By contrast, four conservative and moderate Supreme Court justices once worried that banning speech that creates a “hostile educational environment” could lead to violations of academic freedom in the college setting, in their dissent in a K-12 harassment case where no First Amendment defense was raised or ruled on.
But for the reasons I have given elsewhere, I think #4 on Levy's list, dealing with gay marriage, is partly erroneous. I don’t think churches will ever be forced to perform gay marriages if they don’t want to. Conversely, given strong support for gay marriage in the legal profession, which is much more socially liberal than the general population, I believe that the days of gay marriage being banned are numbered, regardless of who is president. (A bipartisan panel of a federal appeals court struck down the federal Defense of Marriage Act, based on reasoning that could also take down state gay marriage bans).
I do agree with him that Obama Supreme Court nominees are more likely to override the religious objections of non-churches, such as religious schools and hospitals, to various coercive government mandates favored by gay-rights lobbying groups, than are Justices appointed by more conservative presidents. Even Republican or libertarian lawyers who support gay marriage often believe that religious businesses and professionals should have a First Amendment right not to be forced to participate in publicizing or photographing gay unions, as this amicus brief in a New Mexico case illustrates. (Note that New Mexico does not even recognize gay marriage, so banning gay marriage doesn't make religious liberties problems go away.) This distinguishes conservative lawyers and judges from their liberal counterparts, who tend to like such government mandates, and believe that it is legitimate to use government power to try to extinguish religiously-motivated prejudices and change people’s thinking.)
Levey also argues that an Obama Court would lead to a “requirement for taxpayer-funding of abortions.” This is right, to at least a certain extent. The Supreme Court’s decision that state Medicaid programs don’t have to pay for abortion was decided by a 5-to-4 vote (see Harris v. McRae). Liberal law professors have denounced that ruling ever since. Moreover, if you accept Justice Ginsburg’s argument that abortion restrictions are automatically a form of sex-discrimination (a very controversial argument, to be sure), then the decision was wrongly decided.
So I think that even a single Obama appointee to the Supreme Court over the next few years could result in that ruling being overruled. Some abortion rulings seem unlikely to be overruled regardless of who is president. Ever since Nixon, who railed against “acid, amnesty, and abortion,” Republican presidents have denounced abortion, but the only effect this seems to have had on abortion is on the area of funding, not the legality of abortion (taxpayer funding for abortion, both at home and overseas, has been more limited under conservative Congresses and Administrations than under liberal ones, but even when the Supreme Court included seven GOP appointees and only two Democratic appointees in 1992, it reaffirmed Roe v. Wade in its Planned Parenthood v. Casey decision.) Another Obama appointment to the Court could also lead to an overruling of the Supreme Court’s 5-to-4 ruling upholding a restriction on a particular procedure used in so-called “partial birth abortion,” since that ruling was decided over a dissent by all of the Supreme Court’s liberal justices.
For more blog postings from me, see TONGUE-TIED, EDUCATION WATCH INTERNATIONAL, GREENIE WATCH, POLITICAL CORRECTNESS WATCH, FOOD & HEALTH SKEPTIC, AUSTRALIAN POLITICS, IMMIGRATION WATCH INTERNATIONAL, EYE ON BRITAIN and Paralipomena . GUN WATCH is now put together by Dean Weingarten.
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The Big Lie of the late 20th century was that Nazism was Rightist. It was in fact typical of the Leftism of its day. It was only to the Right of Stalin's Communism. The very word "Nazi" is a German abbreviation for "National Socialist" (Nationalsozialist) and the full name of Hitler's political party (translated) was "The National Socialist German Workers' Party" (In German: Nationalsozialistische Deutsche Arbeiterpartei)
Posted by JR at 12:06 AM