Monday, March 7, 2011

Gold, Inflation, and the American Saver

Quite a bit of ink has been spilled about gold, whether it does or doesn't have any intrinsic value and whether it is or isn't an appropriate investment.  Dr. Gary North had an interesting essay on this on Lew Rockwell's site on Friday (hat tip to Controlled Greed), which I generally agree with and that I recommend. 

There are a few points that Dr. North didn't make in that post and that I don't generally see discussed, but that I think are important for individual investors and generally for citizens interested in our nation's fiscal health.

1) First, and from an economics perspective most important, it is true that gold has no intrinsic value.  But as Dr. North pointed out neither does anything else.  And all of the points commonly made against gold - how do you value something with no cash flows, why is a metal with very little practical use so valuable, etc. - apply with equal force to dollars.

2) Second, dollars do have one very important intrinsic advantage over gold.  And that is the fact that the fixed price debts that are owed by most Americans - including mortgages and car loans - are denominated in dollars and not in gold.  To put this differently, if you are saving dollars to pay off a mortgage loan, your savings are at no risk as long as you are in fact going to put them towards paying off that mortgage loan.  Likewise, if you are saving a "rainy day" fund, on a rainy day that fund would likely be spent on fix-priced dollar-denominated obligations such as your mortgage or car payments.  If you convert those savings into gold, you are taking on risk - you can't use that gold to pay the mortgage loan, you first have to convert it back into dollars at the future exchange rate.  The point is that when people claim gold may be a conservative investment, that depends in large point on what the investment is for. 

3) Third, and related to point 2 above, if you truly expect hyper-inflation at some point in the near future, and if you think the market is under-estimating that risk, from a financial perspective borrowing money at a fixed rate to purchase farmland would be a great strategy.  So would simply going short the dollar.  And, likely, so would holding gold.  But there's nothing that naturally makes one strategy better than the other.  If what you're trying to buy is inflation insurance, those would likely all be effective methods, and the relevant question is how expensive is the insurance.   

4) Fourth, as Dr. North points out, gold has historically held value over long periods of time.  If the average Roman citizen in Ceasar's time left all of his gold to his children, and that bequest was passed down over the centuries, it would still have (likely considerable) value today. 

5) Fifth, if you save dollars over a long period of time, at that later time those dollars will still be good for paying off the same amount of fixed price dollar-denominated debt as they were good for when they were initially saved.  But unlike the Roman citizen's gold, they certainly won't be able to purchase the amount of other items as they could have purchased when they were saved.  How do I know that with certainty?  Because it is bi-partisan government policy for dollars to be worth less over time.  That's not conspiracy theory, that is a widely acknowledged fact.  It's the policy of the Obama administration, it was the policy of the Bush administration, and so on back through the beginning of the modern American welfare state during the Great Depression.  Again, that isn't a conspiracy theory - those policies are explicit and constantly acknowledged by relevant policymakers.  T 

6) Sixth, discussions about whether the federal government is supplying too many (conservatives saying this) or too few (liberals and sometimes some policymakers in conservative administrations saying this) dollars seem to me to be frankly silly and a little beside the point.  They are like arguments about how much grain American farms should produce.  Cash is a commodity just like any other, and its just as silly to talk about the "correct" amount of dollars as it is to talk about the "correct" amount of grain. 

If you take what Mr. Bernanke says at face value, he thinks there are currently too few dollars and that if more aren't created there will be adverse economic consequences.  And he may very well be right.  I doubt he is because of the terrible incentive that permitting the largest borrower in the nation to print the currency in which its debt is denominated gives the currency printer.  But it could be the case.  I can't analyze the question any better than I could anaylze the question of what is the correct amount of grain for the U.S. to produce.  The Soviet Union tried to let its experts answer that question and people starved.  The U.S. lets its experts answer the question in regards to money and we have violent business cycles.  I'm about as surprised by both of those facts as I was surprised to see the sun come up this morning.

So where does this leave an individual in the United States?  Frankly, in a bad place.  Suppose you want to be a saver rather than a speculator on asset prices.  Too bad!  Saving doesn't exist.  Why is that?  At least party because it's government policy for it not to exist.  Instead, the federal government has decided to impose a penalty tax on savings and distribute the proceeds of that tax to debtors (like itself) and exporters.  As I said before, that's a long term, bipartisan policy.  Whether you or I like it or not, the chances of it changing any time soon are extremely low.

My own personal rule is that if you're saving to repay fixed-rate dollar-denominated debt, such as a fixed-rate mortage loan in the United States, or if you're saving a rainy-day fund, then save dollars. (I personally use excess savings from a rainy-day fund to pay mortgage debt.  If you're just saving to pay a mortgage, there's a good question of why you're not immediately applying those dollars to the mortage so the interest doesn't accumulate.) To the extent you convert savings you plan to use for that type of purpose into gold, you are taking on risk and should be comfortable that you are receiving prospects for an adequately compensatory return.

With respect to my retirement savings, on the other hand, it is important to me that I at least maintain the current purchasing value of those savings.  And so for those purposes I do currently have some significant part of those retirement savings in gold (or rather, gold-related securities).  I would like to have a very conservative investment plan for my retirements savings, but as long as the government's policy is to quite rapidly reduce the value of the currency (as opposed to the slower reduction that's been the case in the past), I feel I don't have a choice.  To me gold currently seems like high-priced but nonetheless conservative insurance on the value of my retirement savings.  It has the added advantage of holding up just fine in deflation, also, which the markets have been signaling over the past few years is as or more possible than inflation.  (And for the record, it is not inconsistent for people to expect price inflation and deflation.)

What is the correct policy response to all of this mess?  To start, I believe that the answer is probably not for the currency monopolist to adopt a gold- or other metals-backed currency, at least not without other changes.  Mr. Bernanke is certainly right about one thing, which is that it can be a problem for there to be too little currency.  In fact, that can be a quite devastating problem.  This is why over the vast millenia when gold was the primary currency silver and other metals were used also - there simply isn't enough gold for it to be the only currency.

Instead, I believe the answer is for the government to give up its monopoly on producing the commodity that is currency.  To me, saying that is about as wacky as saying that government shouldn't produce grain - I think we should be able to stipulate that central planners don't have a great track record in predicting future demand for commodities.  Let people produce alternatives for themselves and let them sell their goods in those alternatives and market them as dollar alternatives if that's what they want to do.  The dollar would still have a huge advantage because taxes would need to be paid in dollars, but this would at least give U.S. citizens one more tool to protect themselves.  It would be sort of like the Soviet Union allowing people to trade their own grain.  (Note that this change likely wouldn't accomplish too much.  Because I have to pay taxes in dollars, and my employer has to send in withholding in dollars, I have to be paid in dollars, etc.  But it would be a very small step in the right direction.)   

A second improvement that I think conservatives should think about strongly is to require that a much larger part of the government's debt be inflation-indexed.  From an investor's point of view I worry about investing in TIPS as inflation protection for anything other than mild inflation because in a pinch the government will just default the old fashioned way.  But from the perspective of the country's finances, requiring the government to finance itself with inflation-protected securities would go some way towards curing the terrible incentives it currently has to steal from some of the least well-off members of society to finance its operations.

Monday, February 28, 2011

Did the Federal Reserve Break the Law in Propping Up Fannie and Freddie?

At least one very smart money manager thinks that's the case.  Here's John Hussman's description of the problem:

"While QE2 is clearly both legal and constitutional, this contrasts with the activities of the Federal Reserve in creating Maiden Lane and other off-balance sheet vehicles to purchase private debt, as well as the first round of quantitative easing. In these instances, I am convinced that these transactions were outside of the restrictions of the Federal Reserve Act. 

QE1 was clearly the most egregious, because the Fed bought obligations of Fannie Mae and Freddie Mac outright - securities that were not "fully guaranteed by the United States as to the principal and interest," and whose issuers were insolvent and in conservatorship when the Fed bought the securities. Even though Fannie and Freddie securities maturing before 2012 have since been effectively guaranteed by the Treasury, the Fed's ownership of later maturities is still legally problematic.

Moreover, even if these purchases were consistent with the Federal Reserve Act, they still have, in Bernanke's own words, "a fiscal component." This makes them unconstitutional. The Fed cannot simply make transactions that have a "fiscal component" - such as buying bad debt to make what Bernanke calls a "money-financed gift to the private sector" - unless that expenditure is the consequence of appropriations made by law (per Article 1, Section 9 of the Constitution). [Ed. Note - I very much doubt this constitutional argument is correct.  Without much looking into it I believe he must be making a non-delegation argument, and those are loser arguments currently.]"
Read the whole thing.  I think the constitutional argument is probably wrong (although I haven't given it the thought it deserves), but the statutory analysis is interesting.  

If this is even possibly true, this needs to be investigated by and given prominence by the Republican House.  Moving away from the legal analysis, there is a moral issue here in that the response of the federal government to the greatest financial disaster since the Great Depression was to give away trillions of dollars to the wealthiest people in the country. 

This should be the subject of bipartisan outrage, and frankly among the public I think it is.  But among elected officials it was the bipartisan policy response.  Again, its very telling to me that liberal politicians, supposedly working hard to guard the interests of the poor, played a prominent part in orchestrating what was probably the largest redistribution in history in terms of absolute wealth, and one that was made from the middle class to the wealthy.  (And again, so-called "conservatives" in Washington, particularly the leadership, didn't do any better on this.)

In a healthy, sane world Ben Bernanke and Tim Geithner would be explaining to federal prosecutors where all the money went.  That's won't happen.  But they should at least have to explain this to Ron Paul. 

Friday, February 25, 2011

Larry Sparks - I'd Like to Be a Train

Get it here: I'd Like To Be A Train

Larry Sparks is like a white soul singer who sings bluegrass.  It sounds weird when you say it that way, but its actually really great. 

This song is actually isn't the best example of what people think of when they think Larry Sparks.  For that, try this one: John Deere Tractor.  But what this song is is a really fun, fast bluegrass song sung by a guy with an A caliber voice, which unfortunately is a little rare.  Whenever you hear somebody with a voice this good singing traditional bluegrass or bluegrass honky tonk, buy everything you can. 

Killer Line - "Cause trains don't have no heart to break, and they don't feel no pain"

Thursday, February 24, 2011

Please, please, shut it down

The sad fact of this is that Boehner and the Republican leadership in Congress would love to find a way to back down and avoiding a government shutdown, and unfortunately they'll probably be successful. 

The only reason the Democrats are willing to even willing to think about slowing down the spending increases is that they know the Republican base has put Boehner in a position where its hard for him to agree to anything that can't be spun as a cut.

The fact is that the louder the Republican base is in demanding cuts, the more the bargaining position of anyone on the Hill who wants cuts gets.  Its called credible pre-commitment.

Wednesday, February 23, 2011

Mitch Daniels

Suffice it to say, I'm not a fan.  At some point I'll get around to posting on all of the Republican presidential candidates, but this guy should be a non-starter.

Tuesday, February 22, 2011

Handicapping Obamacare/the Effect of Comstock

Here are a pair of great posts on the Volokh Conspiracy arguing about the meaning of Comstock to Obamacare. 

I think the bottom line is what I tried to get at in my initial post on this topic: Justices Thomas and Scalia are probably going to come out the right way for conservatives, but we have major issues with Justices Roberts, Kennedy, and Alito.  In fact, as I think more and more about this, I may be more worried about Justice Roberts than I am about Justice Kennedy.

Monday, February 21, 2011

Justice Scalia's Brand of Originalism

I've started a series to handicap Obamacare in the Supreme Court.  I explained in a general way in the first post why I'm much more worried than many conservatives, and then examined Justice Thomas's likely vote in a follow-up post

I'm planning on going through each of the justices in the same way as I did Justice Thomas, but with very long work days lately its slow going.  I've at least started to work on Justice Scalia, and thinking about him has gotten me off onto another train of thought about the different kinds of ways that judges may be conservative.

Here's a good paper I came across from Randy Barnett, a law professor who in a lot of ways has been huge in the fight against Obamacare.  He talks about Justice Scalia's particular way of being a judicial conservative.  In the long run, I think the legal fight over Obamacare is a good opportunity for conservatives to think more carefully about exactly what they want in a judicial conservative.

Government Shutdown - I Was 15 in 1995

And I remember those cold, scary days when the federal government was shut down.  One of my most traumatic experiences was being molested by a federal convict who was released as a result of the shutdown.  After that molestation and on my way home from school, I was brutally beat by a gang of marauding Mexicans who were on the loose because the border was wide open with the shutdown. 

And when I finally made it home, tired and bleeding, weeping uncontrollably from what I'd been through, I found I didn't have a home.  The U.S.'s defense had been shut down because of the shutdown, and my home town in rural Virginia was destroyed by the Chinese People's Army. 

I've spent the past 16 years trying to recover from those events in late 1995 and early 1996 . . .

Actually, none of that is true at all.  The government shut down and you know what happened - not a whole lot!  Honestly, if there weren't people talking about it on the news 24/7 I'm not sure anyone would have noticed. 

I've been feeling a real disconnect from Washington Republicans as I here about how concerned they are about a shutdown.  I think they completely missed the lesson they should have learned from the 2010 elections:

The federal government discontinuing all non-essential services is not a short-term problem, its the long term goal.

Wisconsin Sick Notes

Here's a PolitiFact article in which they appear to have confirmed that doctors in Wisconsin have in fact been handing out sick notes to the protesting teachers. 

What I want to know is whether Dr. Lou Sanner or Dr. Kathy Oriel could face any type of repurcussions for this?  Dr. Oriel in particular seems to have admitted on television to handing out sick notes to people who are not sick.

At the very least, I would think that given this the Wisconsin public schools should never accept a sick note from either of these doctors.

Sunday, February 20, 2011

Rep. Steve King on Obamacare and Debt Ceiling

Great news in this article!

But before that, note that Representative King explains why the provisions that were included in the Continuing Resolution do not completely block Obamacare in the manner that his offered provision, which I blogged about here, would have. 

Now, on to the good part.  I'll let Representative King say it in his own words: "Weneed to put my language onto every appropriations bill all the way through the 112th Congress . . . [t]he debt ceiling is another good place for leverage . . . [t]here’s been a suggestion just to – with limited constraints – bring a debt ceiling bill and put the complete repeal of ObamaCare right on it.”

Exactly!  Representative King is singing my song.  If I were from the 5th district in Iowa, I'd be pretty proud for my congressman about now.

Now that I've gotten over my elation, I'll go back to my usual pessimistic disposition.  If you read the linked article closely, and a few others Representative King has been in lately (I believe he had one in one of the Washington papers), its hard not to get the feeling that there are a lot of people in the leadership that don't really want to push this.  And that's the House leadership.  Oh well, its good to know there are at least a few Congressmen who are going to keep this fight alive and try and embarrass the leadership in really working to do what they've promised.

I was talking the other day to someone about Obamacare and criticizing the Republican leadership, and they said "But really, given who controls the senate and the White House, what could the really do?"  My reply was that if Republican leadership cared as much about repealing Obamacare as they cared about being elected and advancing their own political careers, it'd be off the books tomorrow.

The Continuing Resolution and the House Rules Committee's Valentine to Obamacare

Red Meat Conservative has some nice posts here and here about Republican opposition to some proposed spending cuts in the Continuing Resolution.  I've long thought someone needs to put together a group to pressure Republicans to vote for spending cuts in the way that Americans for Tax Reform has pressured candidates to sign no tax increase pledges.  Those pledges actually do seem to have some effect.

For me, the biggest dissapointment on the Continuing Resolution was the failure of the (Republican controlled) House Rules Committee in a vote on Valentine's Day to give a special rule to Representative Steve King to offer the following amendment:

"Notwithstanding any other provision of law, none of the funds made available in this Act or any previous Act may be used to carry out the provisions of Public Law 111–148, Public Law 111–152 [Obamacare], or any amendment made by either such Public Law."

Because he didn't get a rule the amendment was out of order under House Rule XXI.  

This was really a beautiful amendment, and would have been much more efficacious than the reconciliation strategy I blogged about here because it would have prevented funds to be used to enforce the law, including the guaranteed coverage provisions.  My understanding is that it would have been at least somewhat unusual for the Rules Committee to have given Representative King a special rule, but in any case I think its fair to say that there are a lot of people even in the House leadership who want to move pass Obamacare and get onto other things.  That's why we as conservatives need to keep the pressure up.

Note that this Continuing Resolution is to authorize spending, not borrowing, and this bill isn't the same thing as the debt ceiling vote I blogged about here.  That's still the point where Republicans are likely to have their greatest leverage, and I hope Representative King or someone else tries this again on that vote.

Friday, February 18, 2011

Gary Stewart - Drinkin' Thing

Get it here:  Drinkin' Thing

I don't think Gary Stewart gets enough play among casual country music fans, but he's not a secret by any means to critics.  He had a technically weak vibratto voice, and frankly the vast majority of his stuff didn't really connect with me.  But goodness gracious when he hit one out of the park, he really did.

This song has the exact same subject matter as most of his really great ones.  He's got a drinking thing to keep from thinking about his wife or girlfriend cheating on him.

You can tell his voice really strains on this song, but somehow that just makes it sound even better.  You never hear a voice more perfectly suited to a song than with Gary's big hits.

These songs to me sound like a weird combination of super hardcore honky tonk and late 70's early 80's pop.  I ready somewhere that he actually didn't like these songs but was forced to do them by the record label guys.  If that's the case, then its another example of what I think is a rule in hillbilly music: To be any good, it needs to be hardcore, but it also needs to be commercial. 

Killer Line - "I've got this drinkin' thing, to keep from thinkin things"

If you like this one, a couple more greats are here:

1.  Out Of Hand

2.  She's Actin' Single (I'm Drinkin' Doubles)

Thursday, February 17, 2011

Why is NPR Trying to Encourage "Climate Migration"

Here's a link to a story I heard on the way to work this morning. 

Click on "Listen to the Story" from Morning Edition at the top and click to around 6:25 to listen to the NPR's smug correspondent literally trying to convince islanders from Kiribati to leave their
homes because of climate change.  Here's the money quote:

"I told him and his wife that the earth has gotten warmer, that glaciers are melting, that sea levels have already risen, but nothing changed their minds . . ."

Listen about 30 seconds before too, though, so you get to hear the uneducated islanders poking fun at the NPR correspondent's climate change religion.  As between the guy saying he thinks God will take care of him and the guy who says "quick, run now before climate change drowns your family" I know who sounds more reasonable to me.

Your tax dollars at work. 

Wednesday, February 16, 2011

Some Good Ideas

Most of this won't make it, but we can dream.  Some of the proposed amendments to the Continuing Resolution:

1.  Amendment No. 11—Rep. Pence (R-IN):  The amendment would direct that none of the funds made available by this Act may be made available for any purpose to Planned Parenthood Federation of America, Inc. or any of its main affiliates.

2.  Amendment No. 25—Rep. Graves (R-GA):  The amendment would prohibit any of the funds made available by this Act from being used to implement or enforce the Report and Order of the Federal Communications Commission relating to the matter of preserving the open Internet and broadband industry practices (FCC 10-201).

3.  Amendment No. 42—Rep. Sessions (R-TX):  The amendment would prohibit funds made available by the bill to be used to implement any policy, directive, administrative regulation, circular, or action to convert from private sector to public sector performance any functions or positions that are not inherently governmental in nature.  [I don't even know what that means, but I like it.]

4.  Amendment No. 79—Rep. Gardner (R-CO):  The amendment would prohibit any funds made available in this Act from being used to pay the salary of any employee or officer of the Department of Health and Human Services who develops or promulgates regulations or guidance regarding Exchanges under the Patient Protection and Affordable Care Act (“ObamaCare”).

5.  Amendment No. 109—Rep. Griffith (R-VA):  The amendment would prohibit funds in the bill from being used to carry out, implement, administer, or enforce any policy or procedure set forth in an EPA and Defense Department memorandum entitled “Enhanced Surface Coal Mining Pending Permit Coordination Procedures” dated June 11, 2009.   The amendment would also prohibit funding to set forth the guidance issued by the EPA entitled “Improving EPA Review of Appalachian Surface Coal Mining Operations under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order.”

6.  Amendment No. 119—Rep. Gohmert (R-TX):  The amendment would prohibit any funds made available in this Act from being used to carry out any program under, promulgate any regulation pursuant to, or defend against any lawsuit challenging any provision of ObamaCare.

7.  Amendment No. 149—Rep. Luetkemeyer (R-MO):  The amendment would prohibit any funds made available in this Act from being used for contributions to the Intergovernmental Panel on Climate Change (IPCC).

8.  Amendment No. 198—Rep. Poe (R-TX):  The amendment would prohibit the use of funds made available by this Act to be used by the EPA to implement, administer, or enforce (1) a cap and trade program; or (2) and requirements pertaining to the emissions of green house gases.

9.  Amendment No. 199—Rep. Poe (R-TX):  The amendment would prohibit the use of funds made available by this Act to be used by the Department of Justice, or any other Agency, to litigate the continuation of the case Untied States of America v. The State of Arizona and Janice K. Brewer regarding Arizona law S.B. 1070.

10.  Amendment No. 204—Rep. Scalise (R-LA):  The amendment would prohibit any funds under the bill from being made available to pay the salaries and expenses for the following positions and their offices:
  • Director, White House Office of Health Reform;
  • Assistant to the President for Energy and Climate Change;
  • Special Envoy for Climate Change;
  • Special Advisor for Green Jobs, Enterprise and Innovation, and Council on Environmental Quality;
  • Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy;
  • White House Director of Urban Affairs;
  • Special Envoy to oversee the closure of the Detention Center at Guantanamo Bay;
  • Special Master for TARP Executive Compensation, Department of the Treasury; and
  • Associate General Counsel and Chief Diversity Officer, Federal Communications Commission. 
11. Amendment No. 255—Rep. Huelskamp (R-KS):  The amendment would prohibit any funds made available by this Act from being used by the National l.1abor Relations Board to certify the results of an election of a labor organization under section 9 (c)(1) of the National Labor Relations Act that is not conducted by secret ballot.

12.  Amendment No. 263—Rep. Broun (R-OH):  The amendment would prohibit funds from being used to pay dues to the United Nations.

13.  Amendment No. 266—Rep. King (R-IA):  The amendment would prohibit funds from being used to carry out the provisions of Public Law 111-14 or Public Law 111-152 (ObamaCare).

14.  Amendment No. 164—Rep. Mulvaney (R-SC):  The amendment would prohibit the use of funds made available by this Act in excess of the amount available for such accounts during fiscal year 2006, with certain exceptions including the Department of Defense and Israel.

Not all of the good ones, obviously, I just flipped through.  Unfortunately, I think the rule mavens may strike a lot of these as out of order because they legislate, including Representative King's.  He asked for a special rule from the Republican controlled rules committee and didn't get it.

Tuesday, February 15, 2011

Where Am I Supposed to Get an Extra $127K?

I can't really complain about my own financial circumstances.  I'm well off enough that the wolf is not exactly at the door.  But I also don't really have an extra $127K lying around.   As a U.S. taxpayer, that's my share of the federal government's debt as of right now. 

Where exactly am I supposed to get $127K?  Should I put that before my kids' education?  How can I take a vacation this year knowing that not only do I owe that much, but that it just keeps on growing with no end in sight. 

There's been a lot of talk today about the president's proposed budget, which would add to that burden.  Liberals in Washington are already accusing conservatives of being immoral for opposing all of the increased spending in that budget. 

Have we gone completely to loo-loo land?  Somebody needs to shake these weirdos and say "for goodness sake guys, $127 thousand dollars!  Where do you think that's coming from.  You're right that its a moral issue."

How is it that you guys think you can stick me up for $127K, send the money to a bunch of programs I didn't want, many of which fund things that I believe are deeply disgusting and immoral, and then lecture me on ethics? 

Have I said $127K enough yet?  Sorry, end of rant.

Monday, February 14, 2011

Handicapping Obamacare # 1 - Justice Thomas

As I promised in a previous post, I'm going to work my way through the Supreme Court justices and try and determine how likely each is to vote that Congress exceeded its authority under the Commerce Clause when it enacted the individual mandate.  I'll start with Justice Thomas.  This is the good news!

I'll be researching these posts as I do them, but my initial somewhat educated impression is that Justice Thomas is probably the only Justice who is close to being a very high probability "unconstitutional vote" in a case decided on the merits.

To start at the beginning, at least in terms of late 20th century commerce clause jurisprudence, Justice Thomas made it clear in U.S. v. Lopez, the 1995 decision in which the Court struck down a portion of the first President Bush's Gun Free School Zones Act, that he had the stomach to largely rework the Court's Commerce Clause cases, which since the New Deal had come to be extremely permissive.  (As an aside, I presume its fairly well known in conservative circles that the first President Bush was a very anti-Second Amendment president, one of the primary reasons he couldn't carry his base and was defeated by President Clinton, who contrary to popular misconceptions had a lot of weaknesses as a politician but was blessed with two opponents who couldn't generate any excitement among their own base.) 

The Court ruled in Lopez that the government had exceeded its authority under the Commerce Clause in enacting the Gun Free School Zones Act.  At the time, this was a huge decision.  It really marked the first time since the Great Depression cases that the Court said there are in fact limits to what the federal government can do under the Commerce Clause.  Before this case, the conventional wisdom in legal circles was that the federal government could do anything it wanted under the Commerce Clause - i.e., that the federal government was not really one of enumerated powers - and that the only limits on the federal government were the negative limits in the Constitution (the Bill of Rights and a few other constitutional provisions).

In Lopez, the Court finally said that the Commerce Clause does not give the federal government general police powers.  Justice Thomas consented to the Court's decision, saying in a separate opinion that the Court's Commerce Clause cases had gone far beyond the text of the constitution.  He specifically said that what the Court calls the "substantial effects" test - the idea that anything that has a substantial effect on interstate commerce can be regulated by the federal government - needed to be reconsidered and replaced with something respectful of existing precedent but more in line with the original meaning of the Commerce Clause.  (He also said he wanted to chuck the "aggregation principle", but that would be included in any case in doing away with the substantial effects test.)  He has said over and over again that it is very important that the Court make it very clear that Congress does not have a general police power.

Since Lopez, Thomas has been consistent in his opinions on the Commerce Clause.  In the next big case, U.S. v. Morrison, Thomas wrote a one paragraph concurring opinion in which he said simply that the Court needed to ditch the substantial effects test.  Even in Gonzalez v. Raich, the medical marijuana case where many think Justice Scalia apostatized himself (I'll explain in a future post why I think that was a very difficult case for Scalia), Justice Thomas stuck to his guns, asking how Congress could possibly regulate the cultivation and use of marijuana that never crossed state lines.

Finally, in his recent dissent to the Court's denial of cert in the 9th Circuit Alderman case, a case dealing with a federal law making it a federal crime for a person convicted of a crime to own body armor, he again said emphatically that the Commerce Clause does not give the federal government a general police power.  He said in particular that the mere fact that there is an interstate "hook" is not enough to give the federal government the power to regulate something under the Commerce Clause.  The regulation really does need to relate to commerce. 

And that brings us to the present day.  If I were to give someone the cliff's notes to the Court's rulings in Lopez and Morrison, which set out the test the Court purports to apply today, I would say that the cases stand for the principal that the federal government can't do things that aren't really economic under the Commerce Clause.  So you can say that violence against women, or possession of firearms near school property, have an economic effect.  But the Court has said yeah right, we all know those are really criminal laws and have nothing to do with commerce no matter how you define it.  (This is not completely accurate - under the current test, there are other ways Congress could exercise power under the commerce clause.  E.g., even though drug laws really have nothing to do with economics, at least 8 and I think maybe all 9 of the justices would agree that the federal government can make it illegal to sell crack across state lines.  But in general, this is the "point" the Court was making.)

Justice Thomas has been very emphatic on these points, saying basically that the Court needs to discard the substantial effects test and saying over and over again that the federal government does not have a general police power.  When he says this, what he means is that the federal government does not have a general power to regulate the lives of its citizens.  

You will probably have noticed that, say what you want about it, Obamacare really is about economics.  So even for Justice Thomas, I think Obamacare is in some sense "new ground."  There's nothing in his record that you could point to and say he will obviously say this is unconstitutional. 

But I'm nonetheless pretty sure he's going to be an "unconstitutional" vote in any case decided on the merits.  Why is that?

If you read his opinion in Lopez closely, he pretty clearly says that he thinks the Court took a wrong turn during the Great Depression cases, and that he thinks commerce really means commerce.  He said that for purposes of "stare decisis and reliance interests" he, or at least the Court generally, was willing to make some sort of peace with the Court's New Deal commerce clause jurisprudence.  But with Obamacare, you have something that is really distinguishable.  The regulation of inactivity, even as a part of a larger scheme that clearly is economic, is something new.  And where there isn't a compelling reason not to, Justice Thomas clearly wants to go back to an original understanding of the Commerce Clause.

Under that understanding, I think the case is pretty easy.  "Commerce . . . among the several states" means pretty much what it sounds like it means - trade between the states.  And regulation of that commerce means regulation of the trade, not regulation styled as regulation of trade that in practical effect amounts to regulation of production or something else.

So under the original understanding, could Congress regulate the offering of an insurance product by an insurer in Texas to an insured in California?  That's a tough question.  The answer is that it probably could regulate that trade to some extent.  But that wouldn't give it general authority to regulate the Texas insurer - it could only literally regulate the offering of insurance across the state line. 

Lets give some examples.  Under that original understanding, the federal government could probably say if you want to offer insurance outside of Texas, you have to tell the truth in your offering across state lines.  But it probably couldn't have said if you want to offering insurance outside of Texas, you have to be adequately capitalized.  (Or, if you want to offer insurance outside of Texas, you have to offer it to people with pre-existing conditions.)  Because that isn't really regulating commerce.  That's really Congress stepping in and regulating the business of insurance, and that's something that was left to the states.

(I admit that insurance is a difficult case.  The principle might be easier to see with securities.  Congress could say that if you want to sell securities across state lines, you need to not commit fraud in the sale.  But it probably couldn't say that the company offering the securities needs to have at least a majority of independent directors.  That has everything to do with business and economics, and nothing to do with trade.  Remember, the Constitution talks about commerce among the several states the same way that it talks about commerce with foreign nations.  Also remember that I'm talking about the original understanding, not the current interpretation.  Under current doctrine, Congress can regulate pretty much any activity that is economic.)

I would guess that even Justice Thomas probably would say that he's stuck on the question of whether Congress can require insurance companies to offer insurance to people with pre-existing conditions.  But would that in turn give Congress the authority to tell the citizen of California they had to buy the Texas insurer's insurance?  No way.  Your decision of whether to buy insurance might be very economic, but commerce doesn't mean "economic", it means commerce. And sitting at home just isn't commerce any way you slice it.

What about the argument that the government has made, that it really is commerce because of its economic effects on the insurance industry?  Or that they can do it because its necessary and proper to do it in order to be able to effectively regulate the insurance industry.  (This is really a necessary and proper clause argument the federal government has made.  To Justice Thomas, that wouldn't make any difference here, as I think he made clear in Comstock.)  It seems clear that Justice Thomas would say you can't make that move.  That's pretty clearly getting you back to a general police power, and Justice Thomas has said over and over again that the Court can't let that be the case. 

So if I'm a lawyer for the government, I'm saying that my main issue in getting a vote from Justice Thomas is how do I describe Congress's power to require people to purchase insurance in a way that does not give the federal government a general power to regulate the activities of the American people?  If I have to start combining it with other things that Congress can do, then I think I pretty quickly get back to a general police power. 

So I think you could say with a high degree of probability that in a case on the merits, Justice Thomas would vote "unconstitutional". 

One last note - Why do I keep referring to a decision on the merits?  The reason is that I think the standing issue, which is one that in general the conservatives on the Court have taken more seriously than the liberals (I know, this is painting with a very broad brush), is a very serious issue here.  I'm not a litigator and am very unqualified to analyze the standing issue, but my gut feeling is that this case seems very much like something the Court might say is not really a "case or controversy".  What I can say with some certainty is that whatever you think the likelihood is that the Court will say Obamacare or any part of it is unconstitutional, you should revise the likelihood of the law being held unconstitutional downward because of the standing issue.  It at least has the potential to pick off a vote or 2.

Sunday, February 13, 2011

Liberal Law Professors and the Virginia Law on Obamacare

Does anyone else remember the commentary from 2010 when Virginia passed its law stating that no resident of the state would be required by an act of Congress to purchase insurance?  I distinctly remember listening to NPR at the time and them having only one law professor on the program discussing this.  I remember that he said the act was absurd because of course under the Supremacy Clause a state legislature cannot overrule the federal government.

I remember how angry this commentary made me because it was extremely dishonest.  It is simply impossible that any attorney could hear about the Virginia statute and not immediately understand that it was passed at least in part to get around the standing problem.  It was partly a political statement to the citizens of Virginia, but it was clearly also passed with the health care lawsuits in mind.  The standing issue is a very serious legal hurdle that the challenges to Obama Care have to pass. (And because many judicial conservatives have typically taken a very narrow approach to standing, its an issue that has the possibility of pulling off some of the conservatives out of the "unconstitutional" camp.)

To put this differently, its not that these legal professors failed to correctly predict how the courts would rule, or got their analysis wrong.  Its that they purposefully and dishonestly decided not to discuss one very valid and important purpose of these statutes, which was to in essence try to create standing to challenge the mandate where the states wouldn't otherwise have had it.

If anyone can find links to any of these old interviews discussing the mandate, particularly the ones on NPR, please do post them in the comments.  This sort of thing is the kind of thing that conservatives need to focus on in connection with the debate over whether federal tax dollars should go to fund NPR.  NPR does some things pretty well, but at the end of the day your tax dollars are going to fund an organization that not only has an obviously liberal bias but that basically tries to hide its political arguments in the guise of "expert analysis" so that they are less likely to be challenged.

(And by the way, I understand the way they do this on Obamacare, because I have the legal training to understand what's going on.  But I don't have the training to understand what their "experts" are doing on climate change.  I strongly suspect the same thing is going on, and its not just a coincidence that they start the global warming stories every summer and lay off them during the winter.)

Using Reconciliation to Repeal ObamaCare

Karl Rove has suggested in a WSJ article that large parts of Obama Care could be repealed through reconciliation, meaning that Republicans could repeal with just a majority of the Senate and not need to worry about a filibuster.  So, in essence the idea is to (i) maintain control of the House, (ii) gain control of a majority of the Senate in 2012 (which at this point seems somewhat likely), and (iii) win the presidency in 2012 (which at this point unfortunately appears somewhat unlikely).

The point of Rove's argument here is that we're closer than we think we are to repeal.  Everyone knows its unlikely at this point that the Republicans will have 60 seats in the Senate after teh 2010 elections, but its likely they will have a majority. 

But if we did all that, are we saying we could repeal the entire thing in 2012 as long as we kept every Republican senator in line?  Not exactly.  Here's what Keith Hennessey, a Bush administration economist and as I understand it the inspiration for Rove's article, says:

 "A few minor odds and ends could not be repealed in reconciliation.  That is strategically unimportant".  Rove clarifies that the things that could not be repealed through reconciliation are not the "big-cost drivers".  He also says specifically that the insurance provisions might not be able to be removed through reconciliation.

My understanding is that the test of whether something can or cannot be changed through reconciliation is whether the item affects the federal government's taxes (or other revenues) or its spending.  So what are some provisions that might not be repealable through reconciliation?

My biggest worry is that the provisions regulating the insurance industry, particularly those preventing insurance companies from denying coverage based on pre-existing conditions, would not be repealable through reconciliation.  This is worrisome because it is hard to understand in theory how a private insurance company can operate without being able to decide not to write insurance for someone who has an existing illness.  (I might feel a little schadenfreude at this whole state of affairs given the cynical role of the insurance companies in structuring the health care law as basically a statute that mandates that every single person in the country buy their product, but notwithstanding that I don't think its in anyone's interests to regulate the industry out of business.)

No sane business person would do that - it doesn't have anything to do with the business of insurance.  Its really just old-fashioned redistribution and is what I would call an off the books entitlement program.  The spending part of the program is providing "insurance" to people with pre-existing conditions, and the tax part of the program is the individual mandate.  The democrats could have set up an economically identical scheme with a traditional government spending program but they didn't because they understand that this is off the books (meaning it doesn't look like it massively increases the size of government, even though it does in fact) and they know how popular the pre-existing conditions provision is.

So my worry is that if you pass repeal through reconciliation, you might have to leave unrepealed for another day incredibly horrible policies like the pre-existing conditions provisions of the law (and I haven't even touched on all of the other stupid stuff that you might not be able to get through reconcilation, like the requirement that fast food restaurants post calorie information on their menus).

This is why I would say that defunding is a dangerous option.  Politically, it would be very difficult for even a Republican Congress to repeal the pre-existing conditions provision.  To me its just as bad as the individual mandate, but its nonetheless extremely popular.

If I thought it were the case that either (i) I'm wrong and these provisions could get through reconciliation or (ii) the repeal of the individual mandate would lead the insurance companies into such a lobbying frenzy that even Democrats would agree to repeal the insurance provisions, then I'd so go for it.  But if neither of those things are the case, I'd worry that we'd be left with a lot of bad policy that would be very hard to repeal on its own.  At the end of the day, Policy Priority # 1 needs to be repealing this entire monstrosity and returning the health insurance industry back to the pre-Obama status quo.  I think the jury's out on whether repeal through reconciliation would move us further towards that goal or put us in a position where its politically impossible.

Friday, February 11, 2011

Jimmy Martin - Drink Up and Go Home

You can listen to a sample on Disc 3 here.

Apparently I'm not the only person who thinks Jimmy Martin is one of the greatest hillbilly artists ever, right up there with other greats like Hank Williams and George Jones.  He is called the King of Bluegrass, after all.  (Although I think he may have started that himself - he was a big self-promoter.)

For my birthday last year my in-laws got me a big Bear Family box set with a lot (I don't think all, but I may be wrong) of his material between 54 and 74.  Its not a greatest hits set - its supposed to be comprehensive.  But it sure seems like a greatest hits set.  Just song after song of great hillbilly music.

I don't think its accurate to call him a bluegrass singer.  A lot of this is what I call honky tonk with a banjo, which is a real sweet spot for me.  And his voice is just nuts - seriously Jimmy Martin sounds as good as George Jones to me.

This is one of many surprising songs for me in this box set.  Strangely I'd never heard it.  I say its strange given that from a google search it seems like tons of people have covered it.  It was originally done by a guy named Freddie Hart apparently just a few years before Jimmy did it.  I don't know anything about Freddie Hart, other than that he doesn't sound like he sings my kind of music.

Anyway, back to this song, its kind of funny to hear Jimmy Martin telling people not to cry in their beer about their troubles.  He made a career out of singing about crying over your troubles!  But the delivery on this song is just awesome.  And every time he wails out the line below, I just about can't help doing the same thing myself.

Killer Line - "I'm fresh out of prison, six years in the pen, lost my wife and family, no one to call friend"

My Favorite Obama Quote

From candidate Obama:

"If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house".

Stick a Fork in It!

So said Megan McCardle on January 20, 2010, referring to Obama Care. 
Two months and three days later it was signed into law, fork notwithstanding. 

I don't mean to pick on Ms. McCardle.  That was a common opinion among conservatives at the time.  After the special election of Scott Brown, I was told by someone with connections to Republicans on the Hill that the Democratic staffers were already leaving Washington to go start the campaigns back home, and that there definitely wouldn't be any big legislation until after the elections.  In my dreams!

The thing is that its easy to believe that the things you want the most will come to pass.  And the reaction of conservatives on the net to the Florida ruling reminds me a lot of their reaction to Scott Brown.  I hope they're right and I'm not, but I'm worried that's not the case. 

That's why I think we need to take every other action we can to fully repeal Obama Care as
soon as possible.

Thursday, February 10, 2011

Handicapping Obama Care in the Courts

In my last post, I promised I'd explain why I don't think we can count on the federal courts to help us out on Obama Care.  I should say up front that I'm not saying I think the courts shouldn't rule Obama Care unconstitutional.  I think the federal government has gone so far past what its permitted to under the constitution that its hard for me to see a way back.

And I'm also not saying that I think the federal courts definitely won't help us out.  I think there's a chance they will.  But since the Florida decision, I've seen a lot of conservative blog posts seeming very satisfied with how the process is going and with our chances.  And I think that's a mistake - I think at the best we're talking about a 50% chance - and I want to explain why that is.

Here's the main point.  What if I told you candidate A was running against candidate B in a jurisdiction with 9 voters.  Polls showed that 2 of the 9 voters will definitely vote for candidate A, 4 of the 9 will definitely vote for candidate B, and that while we think all 3 of the other 9 voters will vote for candidate A, there's a 30% chance each of them won't.  Who would you predict would win the election?  Well, the way I count it A has 2+(.7*3) = 4.1 votes and B has the other 4.9 votes.

I'm sure most people can guess who each of the 9 voters is.  I'm not trying to suggest that these percentages are exact.  In fact, I think they're definitely wrong.  If someone made me give an estimate, I'd guesstimate the chances of an "unconstitutional" vote as being something like Thomas = 100%, Scalia = 90%, Alito = 80%, Roberts = 60%, Kennedy = 50%, Sotomayor, Breyer, Kagan, Ginsburg = 0%. 

But to some extent the exact numbers don't matter.  The point is that we have 2 votes, Obama has 4, and we have to pick up all 3 remaining votes to prevail.  That isn't impossible - it may well be more likely than not that we'll pick up each of the other three - but its hard.  The bottom line is that the numbers are bad enough that we need alternative plans.

In subsequent posts, I'll look at each of the 5 "conservative" justices to try and figure out in a little more detail how they might vote.

Wednesday, February 9, 2011

Obama Care and the Debt Ceiling

With my first post, I want to talk about the issue that inspired me to start this blog.  Very soon, Congress will have to vote to raise the federal government's statutory debt limit.  The limit is currently at $14.3 trillion.

At the end of 2010, the Republicans retook control of the U.S. House, in a sea change election based in large part on public disgust with the ballooning size of the federal government, with the bail outs, with the "stimulus", and with one piece of legislation in particular: The Patient Protection and Affordable Care Act, aka ObamaCare.

But the anti-Obama Care party only controls one half of one of the three branches of government.  As has already been shown, and as was obvious anyway, Republicans in Congress have no ability to push through repeal by ordinary legislative means.  Obama Care simply will not be repealed at least until 2013 through the legislative process, and even 2013 is a stretch.

And what if we get to 2013, and despite all indications to the contrary Republicans control the House, 60 seats in the Senate, and the Presidency?  What always happens?  Something else will have the chattering class's attention, and the conservatives who got us to that point will be abandoned again.

I started this blog and I'm writing this post to ask conservatives who agree with me that repealing Obama Care, in its entirety, needs to be Policy Priority # 1, to let their GOP representatives know that a repeal of Obama Care should be tied to the debt ceiling vote and sent to the Senate as one piece of legislation.  Call them, talk about it, publish it, ask them about it in print.

I've called my representative, called one of my Senators (I didn't waste my time with Lindsey Graham), called the House budget committee, called the House majority leader's office, and emailed the National Review.  And I've gotten crickets.  Is there some procedural reason this isn't possible?  Maybe there is, but we deserve an explanation of what that is, and an explanation of what else is going to happen other than votes that no one expects to win.

So now I'm sending this out into space.

I'm not a cheerleader.  The chances of ever repealing ACA are slim.  Quick, name me all the entitlement programs that have ever been repealed?  If there's any chance Obama Care is going to be repealed, it needs to happen quick.  And the debt ceiling vote is the best leverage we're going to get.

In subsequent posts, I'll explain why I don't think the courts are going to help us, and talk about some other avenues we also need to pursue.