Tag Archives: Congress

We Asked; We Told

Lawyers about town David Rivkin and Lee Casey argue for reviewing “Don’t Ask, Don’t Tell” under a Lawrence standard in today’s WaPo:

In the 2003 case Lawrence v. Texas, the Supreme Court struck down a Texas law criminalizing same-gender sexual relations, reasoning that such conduct was part of a constitutionally protected liberty interest. The court also suggested that the Texas statute was vulnerable to challenge as a denial of equal protection of the laws. And it is application of the equal protection doctrine to the military’s professional assessment of the impact that openly gay service members have on combat effectiveness that is likely to be the end of “don’t ask, don’t tell.”

This works, even despite the Army’s privilege for rulemaking within its ranks.  What I don’t really understand though is the policy-to-law shift Rivkin takes for granted:

When the Pentagon’s top brass announced last week that they no longer believe military unit cohesion suffers from the presence of openly gay men or women in the ranks, they effectively transformed a policy question into a legal one, to which the answer is clear: Congress can no longer mandate discrimination in the armed forces on the basis of sexual orientation

Sure, our Constitutional tradition dictates that when Congress has no reason to regulate they should not regulate.  But we’ve hardly operated under such measured standards for the past 200 years.

No libertarian worth her salt would argue for keeping “Don’t Ask.”  It just seems disingenuous — or perhaps overly hopeful — to argue that we’ve either a) elevated sexuality to an immutable category requiring stricter-than-baseline review; much less b) outgrown the rational basis required to keep such a policy in place.

Finally, perhaps it’s just the conservative in me (or perhaps I’ve simply written a “forward operating base” address across too many love-note-containing envelops) but it makes even my gay-for-freedom heart churn a bit to discuss Lawrence in an Army context.

Lawrence was a case about two dudes writing soul music in that nonbiblical way in their own house.  No doubt the rule applies and in practice we should absolutely scrap that policy.  Even as a libertarian tho I’m wary of extracting broad privacy-mongering provisions from caselaw that passed primarily only on policy (read: judicial activism) grounds for the narrowest purpose of protecting private behavior in one’s own home.

Lawrence represents a sort of dramatic coup overturning caselaw upon which many lower courts had relied.  Yes, Lawrence was the right decision on the facts.  But extrapolating at length from such a narrow margin against stare decisis would do enormous disservice to the rule of law.

Misapplying Lawrence would undermine the separation of powers.  Worse, it could potentially trample the military’s ability to govern its troops to all of our detriment.


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Obvious, but . . .

Krauthammer railed Holder for his “failure is not an option” attitude re KSM’s civilian trial CF, because using the judiciary as a showboat is a nightmare, a travesty, etc.

I completely agree, which isn’t really a shocking change when it comes to Krauthammer’s general brilliance.  But what bugs me is that no one is pointing out the obvious:

The purpose of rule of law is to preclude failure from being an option.

By which I mean: If we all know it would be a travesty to acquit terrorists in civilian courts we find a way to avoid that becoming possible.  If something is bound to fail, our entire constitutional republic is geared towards making that thing actually (as opposed to theoretically) impossible.

Conversely, if it’s all just language and AG Holder isn’t certain that KSM is a terrorist, that “failure” to convict is in fact an option, then don’t talk tough in a way that will make you look like a fool if we do fail to convict.

Since even before b-school I’ve talked about “competition” (tho not on this blog).  There’s a sort of fledgling academic school comparing this meta law-finance-governance concept.  I’m pretty certain that it’s in combining all of those traditionally-specialized schools that it’ll become obvious where a community’s destiny lies in terms of “success” or “failure.”

It seems so obvious that deviation from sovereignty — this weird desire to extend embracing jurisprudence to all the world, rather than protecting citizens at the expense of foreigners or at least alien combatants — spells failure.  Similarly placing the potential for failure in the hands of a select few (the Fed, the Court, the Congress, a practically-unchecked Exec) will ultimately unravel the rules.

If failure is not an option, or if the Fed is “too big to fail,” then why flirt with failure?

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IJ Protects Individuals from Arbitrary, Life-threatening Legislation

Jeff Rowes introducing IJ’s new case:

Here’s an analogy. Congress doesn’t like big pets attacking people. After 18 months of hearings, Congress outlaws selling pets over five pounds, and defines “pets” as “dogs, cats,” and, inexplicably, “pet rocks,” even though “pet rocks” were never mentioned during the hearings, are not actually household pets, and banning their sale doesn’t advance any interest Congress was trying to address by banning the sale of dogs and cats.

The inclusion of bone marrow in NOTA, like the inclusion of pet rocks in the hypothetical law, is not the result of Congress “making a hard call” or “drawing the line somewhere.” It was just sheer error, one that has undoubtedly cost tens of thousands of lives.

Of course, not every legislative mistake is unconstitutional. But a legislative mistake so profound as to render a statutory provision irrational is unconstitutional when it affects liberty. The Supreme Court has invalidated irrational statutes under the rational basis test at least a dozen times and there are literally hundreds of state and federal cases doing the same thing.

Here’s our constitutional theory in a nutshell. The provable absence of a rational basis for the bone marrow provision of NOTA means that the statute violates the substantive due process right of doctors, nurses, patients, and donors to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

Next, throwing people in prison for compensating marrow-cell donors, but not throwing people in prison for compensating blood or sperm donors, violates equal protection because there is no non-arbitrary distinction between these acts. In all cases, the donor is being compensated for safely donating renewable cells. The flip side is also true. Just as it is arbitrary to treat similar things differently, it is also arbitrary to treat solid organs such as kidneys like bone marrow.

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Pelosi Whines of Health Care: I Can’t Hear the Discussion Over All This Dissent!

‘Un-American’ attacks can’t derail health care debate

Americans have been waiting for nearly a century for quality, affordable health care.

By Nancy Pelosi and Steny Hoyer

Great start. Why engage with your detractors when you can just levy an ad hominem attack and point a sweeping finger instead?

Health coverage for all was on the national agenda as early as 1912, thanks to Teddy Roosevelt’s Bull Moose presidential run. Months after World War II came to an end in 1945, President Harry Truman called on Congress to guarantee all Americans the “right to adequate medical care and protection from the economic fears of sickness.” From President Lyndon Johnson to President Bill Clinton, to President Obama’s winning campaign on the promise of reform, there hasn’t been a more debated domestic issue than the promise of affordable health care for all.

This is a classic call for central planning. Remember in Animal Farm when Snowball seemed genuinely interested in the entire farm’s best interests, and then Napoleon took over? Napoleon was interested only in power. That’s the problem with centralizing power in one person’s hands: Absolute power corrupts absolutely.

The “un-American” dissenters that bother Pelosi are not only concerned with the ramifications of public health care (though those are also grave concerns). We are concerned with changing the individual’s relationship to the state, and the state’s requited relationship to the individual.

Even if Snowball was in fact a good and faithful leader, this centralized power will inevitably pass to the next set of hands. People who crave power over policy are typically interested in having that power, NOT in the well being of all affected by the policy. Rather than marginalize a collected will to central consciousness, we should encourage growth along a strong, lower center of gravity. The free market may seem vulnerable to shocks and bumps in the short run, but it is invincible to sustained Napoleonic manipulation. Central planning, though invulnerable to the short-term jostling that makes a market strong, remains susceptible to more invidious power transfers that eventually cause the fall of whichever nation adopted it.

It’s frustrating that “Snowball’s” policies are not the most efficient. But the real problem lies in the fact that centralizing all control in one helpful soul’s hands leaves that balled power entity ripe for Napoleon to pluck and do with what he pleases.

We believe it is healthy for such a historic effort to be subject to so much scrutiny and debate. The failure of past attempts is a reminder that health insurance reform is a defining moment in our nation’s history — it is well worth the time it takes to get it right. We are confident that we will get this right.

Already, three House committees have passed this critical legislation and over August, the two of us will work closely with those three committees to produce one strong piece of legislation that the House will approve in September.

In the meantime, as members of Congress spend time at home during August, they are talking with their constituents about reform. The dialogue between elected representatives and constituents is at the heart of our democracy and plays an integral role in assuring that the legislation we write reflects the genuine needs and concerns of the people we represent.

However, it is now evident that an ugly campaign is underway not merely to misrepresent the health insurance reform legislation, but to disrupt public meetings and prevent members of Congress and constituents from conducting a civil dialogue. These tactics have included hanging in effigy one Democratic member of Congress in Maryland and protesters holding a sign displaying a tombstone with the name of another congressman in Texas, where protesters also shouted “Just say no!” drowning out those who wanted to hold a substantive discussion.

I’ve never been a fan of really radical dissent. Discussing the merits of ideological fringe—like libertarians promoting anarchy—does nothing more than remove your ideas from discourse, alienating the strong, centered base capable of making change. The point of having ideas isn’t to navel-gaze among those who already agree with you.

A more fruitful course of action requires debate, dissent, and “come to Jesus” moments on both sides. If one or both debaters resist the necessity to engage actively in the discussion then neither side gets anywhere.

Pelosi whines that she wants a “substantive discussion,” but she misses the point: her constituency is shouting “Just say no!”

Our government is structured around the idea that those who care most about an idea will come to the forefront of relevant discussion. Whichever “faction” cares most about government subsidies for sugar will be front-and-center when the time comes to lobby for sustained subsidies, and those of us who have better things to do than care about sugar subsidies will not get involved. This disparate cost compared to contained benefit means that lobbyists perpetuate subsidies; taxpayers simply aren’t interested enough to lobby against paying.

Pelosi claims she wants a discussion, but she is ignoring what her constituents say. No, Nancy! Just say no to National Socialism; just say NO to socialized health care! You want to ignore the loud, passionate faction that just drowned out your comrades, but the more acutely-affected faction appears determined to be heard.

Let the facts be heard

These disruptions are occurring because opponents are afraid not just of differing views — but of the facts themselves. Drowning out opposing views is simply un-American. Drowning out the facts is how we failed at this task for decades.

Health care is complex. It touches every American life. It drives our economy. People must be allowed to learn the facts.

In fact, both sides have chosen a set of facts that drive their arguments. Your facts rest on speculation, and the ever-more-insistent call for Hope and Change. The townhall-crashers no doubt look to existing examples of public health care—including, close to home, the miserable option available to the military—as ominous specters of our future. As the summer wears on we are reminded of the aphorism: The more things change, the more they stay the same. Power will always fall into the hands of those who intend to use it. Paternalistic politicians will always ignore the cries from a constituency the politician deems helpless.

The first fact is that health insurance reform will mean more patient choice. It will allow every American who likes his or her current plan to keep it. And it will free doctors and patients to make the health decisions that make the most sense, not the most profits for insurance companies.

Reform will mean stability and peace of mind for the middle class. Never again will medical bills drive Americans into bankruptcy; never again will Americans be in danger of losing coverage if they lose their jobs or if they become sick; never again will insurance companies be allowed to deny patients coverage because of pre-existing conditions.

The current administration has been successful because they never directly disparage free markets. Rahm Emmanuel never says “the free market is a myth”; he claims that “with a little intervention” that market will be stronger.

Yet intervention effectively freezes the pipes through which a market economy flows. “Reform will mean stability and peace of mind for the middle class,” but cryogenically freezing them would obtain the same effect. I feel for those who need in-vitro fertilization to conceive, I really do, but I don’t think I should pay for it. Nor does it make sense to tax everyone enough to cover the broad range of abortions permitted in this country. While I would not necessarily condemn either procedure, I am not willing to pay for yours. We already fund Planned Parenthood, which uses 80% of its national funding to subsidize abortions. Need we pay more into this controversial pot?

Doesn’t it make more sense to leave money in the spenders’ pockets, to spend as they wish? Then the market for services will mirror demand for those services. Instead, Pelosi suggests that we take just a little bit more out of people’s pockets to contribute to a central pot, to be redistributed per whatever method “the factions” choose. I’d rather decide my fate than leave that up to a committee. I’m sure Nancy would rather decide hers, too. What’s good for the goose is good for the gander, Nancy. Why can’t you just leave us free to decide?

Lower costs, better care

Reform will mean affordable coverage for all Americans. Our plan’s cost-lowering measures include a public health insurance option to bring competitive pressure to bear on rapidly consolidating private insurers, research on health outcomes to better inform the decisions of patients and doctors, and electronic medical records to help doctors save money by working together. For seniors, the plan closes the notorious Medicare Part D “doughnut hole” that denies drug coverage to those with between $2,700 and $6,100 per year in prescriptions.

This would take two strokes of a legislative pen to fix. No need to write a thousand page referendum full of additional unforeseen oversights that will no doubt become the “hook” for selling your next reform.

Besides, a “doughnut hole” in legislation is a classic characteristic of government planning. When one central power-at-be who “knows better” takes it upon himself to distribute according to what he assumes “the people want,” he will always overlook some groups. Medicare Part D is nefarious because it overlooks a critical faction who could not speak for themselves.

It would make more sense to leave it to the people to buy what they need (which necessitates lowering taxes or promoting competition so drug prices will all fall in the long run) and avoid gaps, rather than than take people’s taxes and redistribute what you think they need, subject to gaps and holes.

Reform will also mean higher-quality care by promoting preventive care so health problems can be addressed before they become crises. This, too, will save money. We’ll be a much healthier country if all patients can receive regular checkups and tests, such as mammograms and diabetes exams, without paying a dime out-of-pocket.

This month, despite the disruptions, members of Congress will listen to their constituents back home and explain reform legislation. We are confident that our principles of affordable, quality health care will stand up to any and all critics.

Now — with Americans strongly supporting health insurance reform, with Congress reaching consensus on a plan, and with a president who ran and won on this specific promise of change — America is closer than ever to this century-deferred goal.

This fall, at long last, we must reach it.

Nancy Pelosi, D-Calif., is speaker of the House and

Steny Hoyer, D-Md., is House majority leader.

Perhaps there is nothing more “American” than debate. Rather than face her opposition tete-a-tete with interest and curiosity, Pelosi disparages them with her pen. She chooses a medium unlikely to reach her dissenters—an oped in the USA Today—so her appeal falls dead on arrival.

This is not a discussion. This is a whine. Pelosi reveals that she understands precious little about how our Constitutional Republic works. Reform is indeed necessary. But this step away from market competition will leave the public welfare in government’s often-incapable hands. Switching to a public system cannot be undone. Leaving private choice with regard to health is the first step down a path yet unchartered in American history. Future government interference with private lives will differ only in degree, but not in kind.

Discouraging debate and ignoring factions is not what politicians are hired to do. Pelosi’s decision to avoid confrontation by whining to the USA Today rather than facing her shouting (“Just say no!”) constituents like an adult perfectly characterizes the relationship she wishes individuals had with the state.

With all due respect, Ms. Pelosi, that is what I would call “un-American.”

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