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.

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 annually—it’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	Avg. Price
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.