Tag Archives: Donald Trump

Ballot Bamboozles, Enablers, and Trust

10 Tuesday Nov 2020

Posted by in Election Fraud

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Since Saturday I’ve heard people in the media refer to “President-Elect Biden”, and I heard “President Biden” in one instance. He is neither, at least not yet. If and when the results of the election are certified in enough states to give Biden 270+ electoral votes, my attitude will be “Que Sera, Sera“. We can then move on to other challenges. But we aren’t there yet. Much remains to be settled in several states, and whether there is a change in the outcome of the presidential election might not be as important as cleaning up the mess that’s become of our election system.

Here’s a little primer on the signs of election fraud from the BBC. Several of those signs appear very much like what we see now. The list of red flags arising from the results of this election is long, and the denials from authorities in charge of the process in various jurisdictions look increasingly suspicious. We have turnout greater than the number of registered voters in several areas, dead voters, out-of-state voters, poll observers who were refused entry or held at impractical distances, late-night suspension of counts resuming after observers departed, ballot arrivals with no chain of custody, a huge number of Biden ballots with no votes for down-ballot candidates and few cases of the same for Trump. If you hadn’t guessed, the down-ballot discrepancy smacks of vote manufacturing. The sheer volume of last day “provisional” ballots is suggestive of ballot harvesting activity. And there are a number of other irregularities. A retired auditor/blogger compiled a nice list of red flags several days ago. This update is even better.)

As Jonathan Turley notes, as Americans we should welcome reviews of close elections. It would be a travesty to ignore these strong indications of fraud. Doing so would disenfranchise millions of voters, destroy confidence in our democratic system, and reward aberrant behavior. And for readers of this blog who might be aghast that we’re unwilling to simply absolve election authorities and other helpers who managed to produce or allow these red flags, the simple fact of the matter is we don’t trust them, and we don’t trust you either!

No, we do not trust authorities who tell us to ignore the kinds of obvious red flags that have arisen in this election. Election fraud has a long history in many of the jurisdictions now in dispute. This is just one form of the corruption endemic to one-party rule in many of these localities. No one is accountable and rules can be broken with the support of the local party machine. These are mini-swamps, and they should be drained.

The media is of course a giant swamp of its own, refusing to acknowledge or report on the very real warning signs of fraud. This is not journalism, and sadly, those who would contemplate violating the code are victims of intimidation. The very act of pronouncing Joe Biden the “President-Elect” at this stage is bad enough as an assertion of power. In addition, we have social media platforms censoring those who would call attention to obvious signs of fraud. This is an authoritarian play. It goes without saying that we do not trust the media, who are doing their best to game these challenges out of existence. Not gonna happen.

And neither do we trust those who would burn our cities, or forgive those who do; who would keep lists of those with whom they disagree and suggest reeducation; who would engage in eliminationist rhetoric; who would unfairly accuse opponents of racism, despite the racism and anti-semitism in their own ranks; who for years years would parrot false claims of Russian collusion, attempting to invalidate the last election; who would ignore the Biden family history of influence peddling and lies! And who would insist that the media’s proclamation of a winner in this election is beyond question. If that’s who you are, you are in the swamp. You’re either naive or evil. No, we don’t trust you.

The recent changes in election rules, ostensibly due to COVID, produced a chaotic situation many foresaw. I view the overwhelming support for these changes on the Left as wholly opportunistic. It created ample opportunities for fraud, and not only in the mini-swamps. Now, the presumed outcome, no matter how likely or how much you might like it, is no excuse for failing to adjudicate very real disputes, investigate or audit irregularities, and recount votes where state law or the courts demand it.

One reservation I have about the claims of fraud has to do with so-called violations of Benford’s Law. It is a “forensic” test of fraud based on statistical theory, but I do not trust the form in which it’s been invoked thus far. Violations have been cited in several counties over the past few days. However, a violation of this law obviously doesn’t constitute direct evidence of fraud, and the test is a reliable indicator only when the number of voters in different precincts vary by order of magnitude (there must be a mix of 10s, 100s, 1,000s, 10,000s). With precinct sizes, that is often not the case. There is a more reliable form of Bedford’s law, but I have not seen its application to any results in this election.

One last point that might be of interest: a reasonable scenario would leave the electoral college tied at 269. This would involve Trump taking NC and AK, while AZ, GA, and WI flip to Trump with MI and PA remaining in Biden’s column. The election would then be decided in the House of Representatives. However, the outcome there is not based on a straight vote. Instead, there is a single vote for each state delegation. As it turns out, Republicans hold the advantage there, despite their minority membership in the House.

Biden Brainstorm: Nationwide Lockdown, Mask Mandate

01 Sunday Nov 2020

Posted by in Liberty, Pandemic, Tyranny

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Ah, so Mayor Pete Buttigieg of South Bend, Indiana, one of garbling Joe Biden’s campaign surrogates, says Biden will indeed consider a national lockdown if elected. Oh, fine. And Biden accused Trump of destroying the economy? These dumb-asses must think people have memory spans of about a second.

There are several gigantic problems with foggy Joe’s idea: first, it’s not within a president’s power to impose a nationwide lockdown, as the chorus of experts reminded us last spring when Trump mentioned it. Second, the evidence suggests that lockdowns don’t work to eliminate the virus; they delay its spread at best. Third, as we’ve witnessed, lockdowns themselves have enormous public health consequences, leading to a variety of severe maladies, despondency, and excess non-COVID deaths. That’s simply unacceptable. Finally, the economic damage imposed by lockdowns is horrific and often permanent. We’re talking about destroying the independent livelihoods of people. Permanently! Lockdowns are especially hard on those at the bottom of the economic ladder, who are disproportionately minorities. That’s so obvious, and yet very difficult for elites to gather in.

Here’s another one: today Biden said he would impose a “national mandate” on masks and social distancing on Day One of his presidency. Like lockdowns, evidence is accumulating that masks do not work to contain the virus, and in fact they might be counter-productive (also see here, here, here, and here). Biden’s people will probably also insist on a mandating a government-approved contact-tracing app on your cell phone. Not if I can help it! But don’t get me wrong… I wear a mask in public buildings as an act of voluntary cooperation and to be polite. I also hold out some hope that it will keep the viral load minimal should anything float my way, but whatever lands on the mask might stick with it … and me!

Measures like those Biden contemplates are major assaults on our liberty. And the thing is, if any of it comes to pass, the restrictions might never go away. We’ll be asked to do this every flu season, or perhaps permanently to protect each other from “germs”. This is an authoritarian move, one that we should all resist, even if you’re freaked out by the virus. The best way to resist right now is to vote for Donald Trump.

And please, don’t give me any bullshit about our “responsibility” to lock down, and how mandatory masks are necessary to protect the vulnerable. Is poverty now a “responsibility”? The most highly vulnerable can be protected without masks, and maybe better. Beyond that, people must be free to determine their own level of risk tolerance, just as they have for millennia with respect to a broad spectrum of serious risks, pathogens or otherwise. That’s a dimension of freedom about which no one should be so cavalier.

Four More Years to MAGAA

28 Wednesday Oct 2020

Posted by in Big Government, Liberty, Politics

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As a “practical” libertarian, my primary test for any candidate for public office is whether he or she supports less government dominance over private decisions than the status quo. When it comes to Joe Biden and his pack of ventriloquists, the answer is a resounding NO! That should clinch it, right? Probably, but Donald Trump is more complicated….

I’ve always viewed Trump as a corporatist at heart, one who, as a private businessman, didn’t give a thought to free market integrity when he saw rent-seeking opportunities. Now, as a public servant, his laudable desire to “get things done” can also manifest to the advantage of cronyists, which he probably thinks is no big deal. Unfortunately, that is often the way of government, as the Biden family knows all too well. On balance, however, Trump generally stands against big government, as some of the points below will demonstrate.

Trump’s spoken “stream of consciousness” can be maddening. He tends to be inarticulate in discussing policy issues, but at times I enjoy hearing him wonder aloud about policy; at other times, it sounds like an exercise in self-rationalization. He seldom prevaricates when his mind is made up, however.

Not that Biden is such a great orator. He needs cheat sheets, and his cadence and pitch often sound like a weak, repeating loop. In fairness, however, he manages to break it up a bit with an occasional “C’mon, man!”, or “Here’s the deal.”

I have mixed feelings about Trump’s bumptiousness. For example, his verbal treatment of leftists is usually well-deserved and entertaining. Then there are his jokes and sarcasm, for which one apparently must have an ear. He can amuse me, but then he can grate on me. There are times when he’s far too defensive. He tweets just a bit too much. But he talks like a tough, New York working man, which is basically in his DNA. He keeps an insane schedule, and I believe this is true: nobody works harder.

With that mixed bag, I’ll now get on to policy:

Deregulation: Trump has sought to reduce federal regulation and has succeeded to an impressive extent, eliminating about five old regulations for every new federal rule-making. This ranges from rolling back the EPA’s authority to regulate certain “waters” under the Clean Water Act, to liberalized future mileage standards on car manufacturers, to ending destructive efforts to enforce so-called net neutrality. By minimizing opportunities for over-reach by federal regulators, resources can be conserved and managed more efficiently, paving the way for greater productivity and lower costs.

And now, look! Trump has signed a new executive order making federal workers employees-at-will! Yes, let’s “deconstruct the administrative state”. And another new executive order prohibits critical race theory training both in the federal bureaucracy and by federal contractors. End the ridiculous struggle sessions!

Judicial Appointments: Bravo! Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and over 200 federal judges have been placed on the bench by Trump in a single term. I like constitutional originalism and I believe a “living constitution” is a corrupt judicial philosophy. The founding document is as relevant today as it was at its original drafting and at the time of every amendment. I think Trump understands this.

Corporate Taxes: Trump’s reductions in corporate tax rates have promoted economic growth and higher labor income. In 2017, I noted that labor shares the burden of the corporate income tax, so a reversal of those cuts would be counterproductive for labor and capital.

At the same time, the 2017 tax package was a mixed blessing for many so-called “pass-through” businesses (proprietors, partnerships, and S corporations). It wasn’t exactly a simplification, nor was it uniformly a tax cut.

Individual Income Taxes: Rates were reduced for many taxpayers, but not for all, and taxes were certainly not simplified in a meaningful way. The link in the last paragraph provides a few more details.

I am not a big fan of Trump’s proposed payroll tax cut. Such a temporary move will not be of any direct help to those who are unemployed, and it’s unlikely to stimulate much spending from those who are employed. Moreover, without significant reform, payroll tax cuts will directly accelerate the coming insolvency of the Social Security and Medicare Trust Funds.

Nonetheless, I believe permanent tax cuts are stimulative to the economy in ways that increased government spending is not: they improve incentives for effort, capital investment, and innovation, thus increasing the nation’s productive capacity. Trump seems to agree.

Upward Mobility: Here’s Joel Kotkin on the gains enjoyed by minorities under the Trump Administration. The credit goes to strong private economic growth, pre-pandemic, as opposed to government aid programs.

Foreign Policy: Peace in the Middle East is shaping up as a real possibility under the Abraham Accords. While the issue of coexisting, sovereign Palestinian and Zionist homelands remains unsettled, it now seems achievable. Progress like this has eluded diplomatic efforts for well over five decades, and Trump deserves a peace prize for getting this far with it.

Iran is a thorn, and the regime is a terrorist actor. I support a tough approach with respect to the ayatollahs, which a Trump has delivered. He’s also pushed for troop withdrawals in various parts of the world. He has moved U.S. troops out of Germany and into Poland, where they represent a greater deterrent to Russian expansionism. Trump has pushed our NATO allies to take responsibility for more of their own defense needs, all to the better. Trump has successfully managed North Korean intransigence, though it is an ongoing problem. We are at odds with the leadership in mainland China, but the regime is adversarial, expansionist, and genocidal, so I believe it’s best to take a tough approach with them. At the UN, some of our international “partners” have successfully manipulated the organization in ways that make continued participation by the U.S. of questionable value. Like me, Trump is no fan of UN governance as it is currently practiced.

Gun Rights: Trump is far more likely to stand for Second Amendment rights than Joe Biden. Especially now, given the riots in many cities and calls to “defund police”, it is vitally important that people have a means of self-defense. See this excellent piece by David E. Bernstein on that point.

National Defense: a pure public good; I’m sympathetic to the argument that much of our “defense capital” has deteriorated. Therefore, Trump’s effort to rebuild was overdue. The improved deterrent value of these assets reduces the chance they will ever have to be used against adversaries. Of course, this investment makes budget balance a much more difficult proposition, but a strong national defense is a priority, as long as we avoid the role of the world’s policeman.

Energy Policy: The Trump Administration has made efforts to encourage U.S. energy independence with a series of deregulatory moves. This has succeeded to the extent the U.S. is now a net energy exporter. At the same time, Trump has sought to eliminate subsidies for wasteful renewable energy projects. Unfortunately, ethanol is still favored by energy policy, which might reflect Trump’s desire to assuage the farm lobby.

Climate Policy: Trump kept us out of the costly Paris Climate Accord, which would have cost the U.S. trillions of dollars in lost GDP and subsidies to other nations. Trump saw through the accord as a scam under which leading carbon-emitting nations (such as China) face few real obligations. Meanwhile, the U.S. has led the world in reductions in carbon emissions during Trump’s term, even pre-pandemic. That’s partly a consequence of increased reliance on natural gas relative to other fossil fuels. Trump has also supported efforts to develop more nuclear energy capacity, which is the ultimate green fuel.

COVID-19 Response: As I’ve written several times, in the midst of a distracting and fraudulent impeachment attempt, Trump took swift action to halt inbound flights from China. He marshaled resources to obtain PPE, equipment, and extra hospital space in hot spots, and he kick-started the rapid development of vaccines. He followed the advice of his sometimes fickle medical experts early in the pandemic, which was not always a good thing. In general, his policy stance honored federalist principles by allowing lower levels of government to address local pandemic conditions on appropriate terms. If the pandemic has you in economic straits, you probably have your governor or local officials to thank. As for the most recent efforts to pass federal COVID relief, Nancy Pelosi and House Democrats have insisted on loading up the legislation with non-COVID spending provisions. They have otherwise refused to negotiate pre-election, as if to blame the delay on Trump.

Immigration: My libertarian leanings often put me at odds with nationalists, but I do believe in national sovereignty and the obligation of the federal government to control our borders. Trump is obviously on board with that. My qualms with the border wall are its cost and the availability of cheaper alternatives leveraging technological surveillance. I might differ with Trump in my belief in liberalizing legal immigration. I more strongly differ with his opposition to granting permanent legal residency to so-called Dreamers, individuals who arrived in the U.S. as minors with parents who entered illegally. However, Trump did offer a legal path to citizenship for Dreamers in exchange for funding of the border wall, a deal refused by congressional Democrats.

Health Care: No more penalty (tax?) to enforce the individual mandate, and the mandate itself is likely to be struck down by the Supreme Court as beyond legislative intent. Trump also oversaw a liberalization of insurance offerings and competition by authorizing short-term coverage of up to a year and enabling small businesses to pool their employees with others in order to obtain better rates, among other reforms. Trump seems to have deferred work on a full-fledged plan to replace the Affordable Care Act because there’s been little chance of an acceptable deal with congressional Democrats. That’s unfortunate, but I count it as a concession to political reality.

Foreign Trade: I’m generally a free-trader, so I’m not wholeheartedly behind Trump’s approach to trade. However, our trade deals of the past have hardly constituted “free trade” in action, so tough negotiation has its place. It’s also true that foreign governments regularly apply tariffs and subsidize their home industries to place them at a competitive advantage vis-a-vis the U.S. As the COVID pandemic has shown, there are valid national security arguments to be made for protecting domestic industries. But make no mistake: ultimately consumers pay the price of tariffs and quotas on foreign goods. I cut Trump some slack here, but this is an area about which I have concerns.

Executive Action: Barack Obama boasted that he had a pen and a phone, his euphemism for exercising authority over the executive branch within the scope of existing law. Trump is taking full advantage of his authority when he deems it necessary. It’s unfortunate that legislation must be so general as to allow significant leeway for executive-branch interpretation and rule-making. But there are times when the proper boundaries for these executive actions are debatable.

Presidents have increasingly pressed their authority to extremes over the years, and sometimes Trump seems eager to push the limits. Part of this is born out of his frustration with the legislative process, but I’m uncomfortable with the notion of unchecked executive authority.

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Of course I’ll vote for Trump! I had greater misgivings about voting for him in 2016, when I couldn’t be sure what we’d get once he took office. After all, his politics had been all over the map over preceding decades. But in many ways I’ve been pleasantly surprised. I’m much more confident now that he is our best presidential bet for peace, prosperity, and liberty.

Portents of Harris-Biden Nation

22 Thursday Oct 2020

Posted by in Politics

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Joe Biden is a weak figurehead, a one-time moderate faltering over a coalition of leftists. If you wonder why Nancy Pelosi floated legislation to establish a committee on “presidential capacity,” don’t think so much about her loathing for Donald Trump; think about poor Joe Biden. He might be shunted aside just as soon as the power grab isn’t too obvious. They know well how Barack Obama famously said, “Don’t underestimate Joe’s ability to f*ck things up.” But whether Joe Biden is in control of anything, think about who he stands with:

The Violent Left: Marxist Antifa and Marxist BLM; opposed to law and order; burning cities; spewing eliminationist rhetoric; hissing n*g**r at black cops;

Police Defunders: won’t acknowledge good policing is needed more than ever, especially in minority communities;

“Ministers of Truth”: social media platforms exerting control over what we say and what we see;

Re-Educators: democrats push for a “Truth and Reconciliation Commission” to address the “issue” of Trump supporters;

Critical Race Theorists: a Marxist front whereby every word and action is viewed in the context of racial bias and victimization; they want reparations; on your knees.

The Scientistic: who labor under the delusion that “science” should guide all administrative and political decisions. Or someone’s version of science. The very idea is antithetical to the scientific domain, which deals only with falsifiable hypotheses. Few matters of value can be addressed using the tools of science exclusively, nor can they address matters of ethics.

Fear Mongers: would rule by precaution; risks are always worth exaggerating to existential proportions;

Lockdown Tyrants: refuse to acknowledge the steep public health costs of lockdowns; stripping individual liberties indefinitely, including the right to contract, free practice of religion, and assembly;

Insurrectionists: who fabricated a Russian collusion hoax to subvert the 2016 election, and later to overthrow a sitting president;

Gun Confiscators: they will if we let them;

Abortionists: would use federal tax dollars to fund the murder of millions of babies late into pregnancy, primarily black babies;

Fluid-Genderists: insist that children should be encouraged to explore transgenderism;

Taxers: won’t stop with punitive taxes on the wealthy and employers; it’s just not easy to milk high earners in a way that’s sufficient to pay for the fiscal debauchery demanded by the Biden-Harris constituency. Joe says he will raise taxes by $3.4 trillion.

Spenders: $2 trillion of new federal education outlays, including universal pre-K and free community college; the Green New Deal (see below). After all, the democrats are the party that can’t tell the difference between a cut in spending and a reduction in spending growth. If you think Trump is a big spender, their plans are astonishing;

Green New Dealers: would spend trillions to restrict energy choices, transfer U.S. wealth overseas in the name of international carbon reduction, and reduce our standard of living;

Redistributionists: would tax job creators not simply for the benefit of supporting the needy, but for anyone regardless of need (see UBI); this extends to plans to bail out blue states and cities with insolvent public employee pension funds;

Interventionists: would regulate all phases of life, including straws, sugary drinks, and your fireplace; they will burden private initiative; create artificial, politically-favored winners skilled at manipulating regulatory rules for competitive reasons; and create losers who are typically too small to handle the burden;

Medical Socialists: will strip your private health insurance, dictate the care you may receive, fix prices, and regulate physicians and other providers. You’ll love the care abroad, if you can afford to get out when your sick.

Public School Monopolists: poorly performing, beholden to teachers’ unions, unresponsive to taxpayers and often parents; they would happily revoke school choice;

Federal Suburb Rezoners: demanding low-income housing in every community;

Court Packers: to destroy the independent judiciary;

Iran Apologists: give them cash on the tarmac, let them develop their “peaceful” nuclear program; alienate the rest of the Middle East;

Grifters: marketing their influence as public servants for private gain; never exclusive to one side of the aisle, but the Biden family has certainly traded on Joe to enrich themselves;

Smear Merchants: fabricated allegations against Brett Kavanaugh; impugned Amy Coney Barrett’s religious faith;

Perverts: Harvey Weinstein, Anthony Weiner, Jeffrey Toobin, Hunter Biden, and Bill Clinton, to name just a few; even Joe has his #MeToo accusers;

I could go on and on, but Harris-Biden voters should get a strong taste of their compatriots from the list above. It reflects the overriding prescriptive, bullying, and sometimes violent nature of the Left. They’d have you think all material goods can be free. Presto! They presume to have the knowledge and wisdom to plan the economy and your life better than you, Better than free markets and free people. What they’ll need is a lot of magic, or it won’t go well. You’ll get poverty and tears. I’m not sure Joe has the desire or the wherewithal to rein in his coalition of idiots.

COVID, Trump, and Tyrants

11 Sunday Oct 2020

Posted by in Pandemic, Public Health, Trump Administration

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I’ve said this before, but it bears repeating: allegations of the White House’s “poor leadership” and preparedness for COVID-19 (C19) are a matter of selective memory. At the link above, I “graded” Trump’s pandemic job performance through May. Among other things, I said:

“Many have criticized the Trump Administration for not being ‘ready’ for a pandemic. I assign no grade on that basis because absolutely no one was ready, at least not in the West, so there is no sound premise for judgement. I also view the very general charge that Trump did not provide “leadership” as code for either ‘I don’t like him’, or ‘he refused to impose more authoritarian measures’, like a full-scale nationwide lockdown. Such is the over-prescriptive instinct of the Left.”

The President of the United States does not have the constitutional authority to impose a national lockdown, though Trump himself seemed confused at times as to whether he had that power. However, on this basis at least, the ad nauseam denigration of his “leadership” is vapid. At this point, the course of the pandemic in the U.S. is less severe than in several other industrialized countries who didn’t even have Andrew Cuomo around to exacerbate the toll, and it’s still not as deadly in per capita terms as the Asian Flu of 1957-58.

Who exactly was “ready” for C19? Perhaps critics are thinking of South Korea, or parts of South Asia. Those countries might have been “ready” to the extent that they had significant prior exposure to SARS viruses. There was already some degree of immunological protection. Those countries also were exposed to an earlier genetic variant of C19 that was much less severe than the strain that hit most of the western world. These are hardly reasons to blame Trump for a lack of “readiness”.

A related charge I hear all the time is that Trump “ignored the advice of medical experts“, or that he “ignored the science“. Presumably, those “experts” include the darling of the Prescriptive Class, Dr. Anthony Fauci. On February 28, Dr Fauci said:

“Right now, at this moment, there’s no need to change anything you’re doing on a day by day basis.“

All-righty then! So this was the advice Trump “should” have followed. Oh, wait… he did! And Fauci, on March 9, said there was no reason for young, healthy people to avoid cruise ships.

Likewise, Dr. Robert Redfield, Director of the Centers for Disease Control, said the following on February 27:

“The risk to the American public is low. We have an aggressive containment strategy that really has worked up to this time, 15 cases in the United States. Until the last case that we just had in Sacramento we hadn’t had a new case in two weeks.”

Then there is the World Health Organization, which downplayed the virus in January and February, and giving a convincing impression that it servied as a mouthpiece for the CCP.

In fact, the American people were badly harmed by wrongheaded decisions made by the “experts” at the CDC in January and February, when the agency insisted that testing could not proceed until a test of their own design was ready. Then, the first version it approved was discovered to be flawed! This set the testing effort back by well over a month, a delay that proved critical. It’s no exaggeration to say this bureaucratic overreach denied the whole country, and Trump, the information needed to properly assess the spread of the virus.

But let’s think about actual policy once it became clear that the virus was getting to be a serious matter in parts of the U.S. Here’s another excerpt from my post in May:

“Trump cannot be accused of ignoring expert advice through the episode. He was obviously on-board with Fauci, Dr. Deborah Birx, Dr. Robert Redfield, and other health care advisors on the ‘15 Days to Slow the Spread‘ guidelines issued on March 16. His messaging wavered during those 15 days, expressing a desire to fully reopen the nation by Easter, which Vice President Michael Pence later described as “aspirational”. Before the end of March, however, Trump went along with a 30-day extension of the guidelines. Finally, by mid-April, the White House released guidelines for ‘Opening Up America Again‘, which was a collaboration between Trump’s health care experts and the economic team. Trump agreed that the timeline for reopening should be governed by ‘the data’.” 

We should give Trump credit for shutting down flights into the U.S. from China, where the virus originated, late in January. That was an undeniably prescient move. Let’s also not forget that the original intent of the “15 Days” was to prevent hospitals and other medical resources from being overwhelmed. Today, the data show a strong seasonal tendency to the spread of the virus, but medical resources are not close to being overwhelmed, our ability to treat the virus has vastly improved, and its consequences are much less deadly than in the spring. That’s good progress, whatever the President’s detractors may say.

More than anything else, what Trump’s COVID critics fail to understand is that the executive leader of a republic is not possessed of monarchical powers. And in the U.S., the Constitution provides an additional layer of sovereignty for member states of the Union, a manifestation of the federalist principals without which the Union would not have been possible. The 15-day guidelines produced by the White House, and the guidelines for reopening, were consistent with this framework. The states have adapted their own policies to actual conditions and, if their leaders haven’t worn out their goodwill among voters, internal political realities. Those adaptations were often bad from my perspective, or even tyrannical, but sometimes good. That is exactly how our federalist system was designed to work.

Joe’s “Boom”: Mendacity or Memory Loss?

06 Tuesday Oct 2020

Posted by in economic growth, Executive Authority

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Joe Biden has claimed that he and Barack Obama had left Donald Trump with a “booming” economy to start his term in office. Of course, if he had anything to do with economic performance during the Obama Administration, it may have been his oversight of the mismanaged and ineffective “shovel-ready” stimulus program of 2009, For his sake, one might hope (and suspect) his oversight was nominal. In any case, his characterization of the Obama economy is not really accurate, as this editorial at Issues and Insights demonstrates. I could argue with a few of their points, but the thrust of it is correct. The economy weakened in 2015 and 2016, and expectations were for continued slow growth or possibly a recession in 2017 or after. At that point, many economists thought the aging expansion might be on its last legs. But economic growth exceeded expectations after Trump took office. As for job growth, economists predicted relatively sluggish growth in 2017-2019, but actual job growth exceeded those projections by more than three times.

Finally, Biden’s assertion that “Trump caused the recession” was laughable, especially when the punchline is his willingness to “shut down the economy“! He insists “I would listen to the scientists”, presumably the same knuckleheads who don’t understand the public health tradeoffs between the pandemic itself and lockdown risks (and who don’t understand the Constitution). Biden might not understand that the President lacks constitutional powers to demand a nationwide shutdown. Trump was quite sensibly persuaded to leave non-pharmaceutical interventions in the hands of the private sector as well as state and local governments, with guidance from federal health authorities. That some state and local leaders instituted draconian policies, which were largely ineffective and often damaging. was and is a terrible misfortune. The more sensible approach is to  protect the most vulnerable and allow others to gauge their own risks, as we always have in earlier pandemics.

Barrett v. Obamacare

04 Sunday Oct 2020

Posted by in Health Insurance, Obamacare

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Obamacare’s survival has emerged as the democrats’ big talking point against Amy Coney Barrett’s nomination to the Supreme Court, especially since a case challenging the health care law is scheduled be heard by the Court on November 10th. I’m certainly no a fan of the Affordable Care Act (ACA, or Obamacare). It is anticompetitive and it is a regulatory and pricing nightmare. However, the chances it will be struck down in its entirety are slim to none, whether Barrett is confirmed or not.

The Case Before the Court

The case at hand is California v. Texas, in which 21 democrat state attorneys general appealed a decision by a lower court that the ACA’s individual mandate is unconstitutional. The case against the ACA was originally brought by 20 republican state attorneys general based on Congress’ earlier repeal of the “tax” levied on violations of the law’s individual mandate. With that repeal, the mandate itself became unenforceable because it effectively disqualified the mandate as a matter of congressional intent. More background on the case can be found here.

The reinterpretation of the ACA penalty as a tax was the key turning point in an earlier case, National Federation of Independent Business v. Sebelius, in which Chief Justice John Roberts’ deciding vote upheld the ACA’s individual mandate under Congress’ taxing power. Now, in California v. Texas, a District Court ruled for the plaintiffs that the entire ACA is unconstitutional, not just the individual mandate. Subsequently, however, an Appeals Court ruled only against the mandate. Thus, the case before the Supreme Court is primarily about the standing of the states that originally brought the suit and the status of the individual mandate. The case is unlikely to involve other components of the law, such as the list of minimum essential benefits and protections on pre-existing conditions.

Severability

The Appeals Court decision can be upheld by the Supreme Court without striking down the whole of the ACA. This rests on the doctrine of severability, which holds that a law’s unconstitutional provision(s) do not invalidate other provisions within the same law. The Court has often applied this doctrine in deference to the intent of legislation, to the extent that other parts of a law can stand on their own. Jonathan Adler, who has filed a brief with the Court in California v. Texas, writes that the individual mandate is clearly severable from the rest of the ACA:

“When part of a statute becomes unenforceable, a court usually must ask whether Congress would have preferred what remains of the statute to no statute at all. Typically, it is a court that renders a provision unenforceable, and the court must hypothesize what Congress would have intended in that scenario. Courts also will sometimes assess whether the statute functions without the provision— a proxy for legislative intent.

But this case is unusual. It presents no need for any of these difficult inquiries because Congress itself—not a court—eliminated enforcement of the provision in question and left the rest of the statute standing. So congressional intent is clear; it is embodied in the text and substance of the statutory amendment itself.”

Furthermore, contrary to the claims of the republican plaintiffs in the case, the ACA does not contain an inseverability clause. The Court is likely to invoke the severability doctrine, so Amy Coney Barrett’s (ACB’s) confirmation prior to the hearing would not lead to a ruling against the whole of Obamacare. The Court seems to like small steps.

What She Said

ACB has written that the Court’s original interpretation of the penalty for violating the mandate as a tax was flawed. Again, the argument was attributable to the opinion written by Chief Justice Roberts in NFIB v. Sebelius. The ACA never used the term “tax” in the context of an individual’s failure to comply with the mandate. Instead, it referred to the “penalty” multiple times. In the law’s original form, the clear legislative intent was to penalize certain behavior: failing to buy a product. ACB wrote the following of Roberts’ opinion in 2017:

“He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power. Had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power. … One would be hard-pressed to find many originalists who think that a court should find a way to uphold a statute when determinate text points in the opposite direction.”

Recusal

Josh Blackman says ACB need not recuse herself from hearing California v. Texas. First, the case is not a reconsideration of NFIB because the “tax” no longer exists; second, the current challenge to the mandate does not hinge on the plausibility of Roberts’ opinion in that case; and finally, recusals at the Supreme Court typically require a higher bar than lower courts in order to avoid a short-handed Court. Jonathon Adler discusses a recent moot court on California v. Texas in which ACB participated, and he seems to agree that recusal is unnecessary.

So ACB said the penalty was a penalty, not a tax, but the penalty no longer exists in any case. Congress left the individual mandate with no enforcement mechanism, a clear signal of its intent to set the mandate aside. The severability of the mandate from the ACA, and the “tax vs. penalty” focus of ACB’s remarks on the NFIB decision, offer little rationale for the view that ACB would argue to overturn the entirety of the ACA in California vs. Texas.

Essential Benefits

ACB has had another beef with the ACA, however, which has to do with certain items on the list of minimum essential benefits mandated by the law. The purpose of the list was much like that of the individual mandate: to force payment by all parties to cross-subsidize those who desired certain benefits. The list included contraceptives, abortifacients, and sterilization, and the requirements applied to individual policies as well as plans offered by private organizations, including those having moral and religious objections to the use of these products or services. Those individuals would be forced to offer and pay for the objectionable benefits just the same. In 2012, ACB signed a statement that called the requirement an “assault on religious liberty and the rights of conscience“. That argument seems even more compelling with today’s availability of cheap contraceptives over-the-counter. But the point raised by ACB is now irrelevant: this summer, the Court ruled against the requirement on contraceptives, but the Court didn’t say the whole list is unconstitutional. That aside, the list of essential benefits impedes the objective of offering low-cost coverage to the broadest swath of the population, and it is one of the reasons for the astonishingly high deductibles on Obamacare health policies.

Conclusion

The ACA has many flaws and has prompted a large number of legal challenges. It will continue to do so. Seven of those cases have already risen to the level of the Supreme Court, and there could be more. The ACA is a terrible law: it has driven up the cost of health insurance coverage through community rating and benefits mandates. It has driven up the cost of care through excessive regulatory measures and incentives for providers to consolidate. But while I am no fan of the law, the appointment of Amy Coney Barrett to the Court does not presage its complete overturn. That will almost certainly have to wait for legislation on a complete replacement for Obamacare, which doesn’t seem imminent.

You think he was pissed off?

01 Thursday Oct 2020

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Many were put-off and even offended by President Trump’s aggressive approach to the first debate with Joe Biden on Tuesday. I’m not bothered except that he didn’t give Biden enough time to lose his way. This debate was tame compared to the standards set at the Lincoln-Douglas debates, which were full of insults, crude language, and racial epithets.

It was Joe Biden who began the unending series of interruptions on Tuesday. Biden interrupted Trump three times at that point, after which the moderator, Chris Wallace, declared “open discussion”. Go back and watch! So if you care, Biden started it. And Biden became rather abusive in his language as the debate wore on.

As to Trump’s pugilistic style, here is Sean Trende:

“… debates are usually staid affairs, pitched to politically knowledgeable elites who like to evaluate things on the merits. Trump’s debates are pitched to someone completely different. His behavior toward Clinton seemed bizarre and juvenile, and made for classic “SNL” fodder. It also apparently worked reasonably well; the townhall-style debate was one of his best received performances. So the interrupting and refusal to answer questions was off-putting for me, but I recognize that I’m not the target audience.”

Okay, fair enough, but Trump’s debate performance was more visceral than calculated. In fact, even members of his debate team were surprised: Chris Christie said it was “too hot”. Trump’s guns blaze because he’s pissed off, and he should be! Just to regard the countenance of the man across the stage was probably enough to infuriate Trump: Biden helped instigate the fraudulent investigation of General Michael Flynn (James Comey’s denial notwithstanding), Trump’s first national security advisor. Biden has repeatedly stooped to the same unfounded accusations of racism against the President that have been made by Democrats since Trump announced his first candidacy in 2015. This despite Biden’s own racial gaffes and affiliations with racists over the years. Biden was involved in a Ukrainian shakedown, admitting that he threatened the country’s President to have U.S. aid withheld if a Ukrainian prosecutor was not fired. That prosecutor was investigating the energy company Burisma, which just so happened to be paying a handsome retainer to Biden’s son, Hunter. Yet Trump was falsely accused of a similar transgression! Talk about the self-projections of Democrats! Trump has every reason to be pissed off, and to let it flow.

Biden represents the same Democrat party that has conspired to have Trump thrown out of office since before he was inaugurated. The same party has spread disinformation about collusion with Russians since before the 2016 election. The same party voted to impeach Trump in the House of Representatives on that fallacious basis. The same party promotes the idiotic suggestion that Trump “killed 200,000 people” with coronavirus; blames Trump for the economic malaise due to coronavirus lockdowns, then insists the economy must be shut down to end the pandemic; refuses to cooperate in passing a targeted coronavirus aid package; supports the violence perpetrated by Antifa and Black Lives Matter (“mostly peaceful protests”), with prominent democrats contributing to the payment of bail for arrested rioters; calls Trump a dictator for offering to help state and local leaders end the violent civil disorder; refuses to call-out the racism promoted by Antifa and BLM; promotes the Marxism and racism of critical race theory; and attacks his latest Supreme Court nominee on religious grounds. The Democrats also threaten to instigate one-party rule by packing the Supreme Court, ending the legislative filibuster, and admitting new states to the union and dividing old ones in order to create a permanent Democrat majority in Congress (but the Constitution prohibits DC from statehood). A one-party nation! And, of course, Democrats have pushed for universal mail-in ballots, with all the bedlam and challenges that is likely to bring to the electoral process.

Then we have the debate moderator, Chris Wallace. There was little doubt about Wallace’s sympathies. He interrupted Trump much more frequently than he interrupted Biden. He asked Trump whether he denounces white supremacist organizations, and Trump immediately said, “Of course.” Trump has denounced them, but Wallace thought it necessary to relitigate the matter. Wallace’s follow-up regarding the “Proud Boys” was misplaced, as the group might be nationalist, but it is not a white supremacist organization (their president is Afro-Cuban). Meanwhile, Wallace failed to ask Biden to denounce Antifa and BLM. Wallace failed to ask Biden about his son’s dealings with the mayor of Moscow and his Chinese clients. He also let Biden off the hook quite readily when he refused to give his opinion on court packing and eliminating the filibuster. Biden refused to answer… Wallace was like, “okay”!

If anything, my biggest frustration with Trump on Tuesday was his typical sloppy articulation of his policies and views. He seldom makes his best and most obvious supporting arguments. Whiff! Instead, what I hear often seems off-point and semi-coherent. Of course, I understand most of what he’s trying to get across, and so do many others when they’re not too busy self-projecting. So maybe Trump is a great communicator after all, despite his seeming lack of clarity.

Biden says he “is” the Democrat Party. Then he has a lot to answer for. I’m glad Trump lit into him. No reasonable person can blame Trump for being pissed off. Hey, I’m pissed off, and you should be pissed off too, because Joe Biden and the Democrat Party is ready to subjugate you!

Atheism Cannot Disqualify for Public Office

26 Saturday Sep 2020

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Amy Coney Barrett makes a lousy target for personal attacks by the Left. Barrett is President Trump’s nominee for the Supreme Court vacancy following the death of Justice Ruth Bader Ginsburg. A fabricated scandal against Barrett would be much less credible than even the allegations made against Bret Kavanaugh at his confirmation hearings in 2018. So Democrats believe their best opportunity is to paint Barrett as a religious “crazy” who, if confirmed by the Senate, will allow her religious convictions to influence her opinions on the Court relative to issues such as abortion rights under Roe v. Wade.

Barrett has offered rejoinders to Senator Diane Feinstein’s comments (“The dogma lives loudly within you.“) at the hearings on Barrett’s appointment to the Federal Appeals Court in 2017. In particular, Barrett has noted that a religious test is unconstitutional as a criterion for public office, including judgeships. In fact, in another way, Barrett has demolished the claims made by leftists against the qualifications for the bench of those of deep faith. Her argument exposes the Leftist position as an absurdity.

The presumption is that someone having religious convictions has a certain set of moral principles that might be brought to bear on court decisions. We’re expected to believe that’s a danger unique to those of faith. Barrett notes that non-religious individuals, even atheists, have their own set of moral principles. By the same standard, should we not concern ourselves that an atheistic nominee might bring their moral principles to bear on court decisions? Or are we to believe those principles are somehow superior to those associated with religious convictions? That they should simply be overlooked, but not for those of religious faith? Rather, a fundamental requirement is whether a nominee understands and respects the difference between jurisprudence and legislating from the bench, a distinction that was sometimes lost on Ginsburg.

To assert that an atheist’s moral convictions are more objective than those of a religious individual is a flaw in logic and a horrific value judgement. I am not a particularly religious person, but I respect people of faith as well as the protections afforded to the free practice of religion by the First Amendment of the U.S. Constitution. It’s worth noting that those protections apply to atheists as well as religious sects. As Barrett’s position implies, to distrust the judicial judgement of a person of religious faith is as wrongheaded as to distrust the judicial judgement of a nominee devoid of religious faith.

Nominate and Confirm

23 Wednesday Sep 2020

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Many on the left practically cheered the passing of Antonin Scalia in 2016, a reaction I witnessed with disgust on my own social media feeds. Now, we should all mourn the death of Ruth Bader Ginsburg, but some of the same people seem almost comically furious with her for “choosing such a bad time to die”, just 46 days before the presidential election! Or, for refusing to step down during the Obama administration, when she could have been replaced with a much more youthful lefty jurist.

Of course, the Left is also furious that President Trump plans to nominate a candidate for Ginsburg’s vacancy on the Court, and that Republican leadership in the Senate plans to bring the nomination to a vote, perhaps before November 3rd.

Trump and the GOP majority are entitled to do that under the Constitution, and they should. Senator Ted Cruz explained the primary reason:

“Democrats and Joe Biden have made clear they intend to challenge this election. They intend to fight the legitimacy of the election. As you you know Hillary Clinton has told Joe Biden ‘under no circumstances should you concede, you should challenge this election.’ and we cannot have election day come and go with a 4-4 court. A 4-4 court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of … a contested election.” 

This presidential election might be fraught with more procedural controversy than any before. The coronavirus, or its promoters in the media and the Democrat party, has spooked many voters into the belief that going to a polling place in-person on Election Day is too dangerous. This despite the fact that distancing and masks will be required, and the time it takes to complete a ballot does not require “prolonged exposure” to anyone. So now we face the prospect of mail-in balloting on an unprecedented scale, which is an invitation to manipulation and fraud. A couple of examples:

“… consider some of the suspect decisions already being made in various states that deliberately weaken ballot security. The Pennsylvania Supreme Court, for example, voted last week along party lines (the judges are elected) that county drop boxes, including unattended ones, could be used to collect votes. Gov. Tom Wolf, a Democrat, and his party supported the measure, which reached the court by lawsuits, thus avoiding GOP control of both legislative chambers. The decision obviously opens the door to potential fraud because ballots in unsecured drop boxes could be tampered with or stolen. 

New Jersey’s Democratic Gov. Phil Murphy also made some curious decisions. A Jersey friend sent me a mailer he received that was addressed only to ‘Residential Customer.’ Inside, a pamphlet from the county clerk in Bergen County said that a Murphy order ‘requires’ every county to mail a ballot to ‘every active registered voter.’ That raises the chances of thousands of unmarked ballots being stolen from the post office or front porches, practices not exactly unheard of in New Jersey.”

Already a number of lawsuits have been filed in various states over absentee ballots. There have been missed deadlines, disputes over whether certain candidates should appear on those ballots, invalidated pre-filled applications for ballots, and an incorrect mailer sent by the U.S. Postal Service to voters nationwide regarding absentee ballots. Let’s face it: for all the earlier denials by Democrats that the mail-in ballot process was not subject to gaming or fraud, neither side trusts the other. There will be many more disputes as ballots are counted before and after Election Day.

It’s reasonable to expect that a few cases might rise to the level of the U.S. Supreme Count before election tallies are final in some states, as in the Florida recount in the Bush vs. Gore election of 2000. A 4 – 4 tie on the Court would leave lower, state-court rulings in place that could decide the outcome of a federal election. That’s not how the process is intended to work. Needless to say, that’s another reason why Democrats oppose a Trump nominee prior to the election. There’s no doubt they’d push forward with their own nominee were the shoe on the other foot, however, just as Republicans opposed the confirmation of Merrick Garland in 2016.

So who’s a hypocrite? Republicans who said that they wouldn’t confirm or even conduct a confirmation process in an election year, as in 2016, certainly qualify (Lindsey Graham, among others). It must have seemed expedient to stay so at the time, but it was foolish. And Democrats who now protest after insisting in 2016 (and before) that a Supreme Court vacancy should be filled by the sitting president, even in an election year, also qualify (Chuck Schumer, Barack Obama, Hillary Clinton, and Joe Biden, among others). Here’s what some top progressive legal minds were saying in 2016: It’s a duty and obligation for the president to nominate and for the Senate to undertake a confirmation process!!

Here’s the key issue: The president has the authority to nominate Supreme Court justices any time during his term. If the Senate confirms, then a new justice is seated. If the Senate chooses not to confirm, the vacancy remains. That’s how it works. There have been 29 vacancies on the Court in election years, and in 22 of those cases the sitting president sent a nomination to the Senate. As Justice Ginsburg said in 2016:

“There’s nothing in the Constitution that says the president stops being the president in his last year.”

Her purported wish on her death bed, that her replacement would be chosen by a new president, was not hypocritical. It was a wish, not a legal opinion. It was just as “political” as the contradictory statements made by the politicians, however.

Ginsburg also said it’s the Senate’s job to take up a vote, which the Republicans refused to do in 2016. That was their prerogative, however, and the decision does not bind anyone in the current circumstance.

Mitch McConnell is right:

“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year. By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”  

Democrats have promised to “pack the Court” by adding seats to the bench for new, ideologically-preferred justices if a Trump nominee is confirmed, among other threats. They should heed the caution of moderates who know how dangerous that may be. The mere threat gives Republicans reason to pack the Court themselves, when they can, which might be as soon as January. Moreover, nothing could do more to undermine confidence in the Court. RBG herself had the following to say about Court packing:

“Well, if anything, it would make the court appear partisan. It would be that one side saying, ‘when we’re in power, it was only to enlarge the number of judges so we will have more people who will vote the way we want them to…’ So I am not at all in favor of that solution to what I see as a temporary situation.”

Well, of course the Court is divided along certain ideological lines, and to some extent those differences break along dimensions of legal philosophy, such as originalism vs. a “living Constitution”, or judicial activism. That’s not to say that the Court is always partisan, however. The process of nominating and confirming justices should not be as partisan as it has become in the last 25 years (see the last link). Let’s not make it worse.

Trump will nominate an able jurist. Senators should meet and independently assess that individual’s legal qualifications and temperament. My expectation is they will vote to confirm, and I hope that vote takes place without rancor.

Note: Thanks to the Washington Free Beacon for the wonderful meme at the top of this post.