Category Archives: Law

A Law Unto Themselves

Constitution, Founding Fathers, Healthcare, Justice, Law, The Courts

Why stage a judicial intervention when you can sit back and let the executive and the legislature accrue more power, a power that invariably will redound to the Courts as well?

On Monday, the High Court, which should check the other two branches of government—how is that working out?—decided against taking up “the constitutionality of the National Security Agency’s surveillance program that collects bulk telephone data of millions of Americans.” (NJ)

When the Supreme Court has the chance to strike down rights-violating laws and legislation (like the Obamacare individual mandate)—it so often declines.

“Monday’s decision,” concludes the National Journal (too charitably, in my opinion), “reaffirms expectations that the justices would rather allow the issue to percolate within the circuit courts first.”

(At least NJ covers such stuff.)

In the case of Obama’s Affordable Care Act, John G. Roberts Jr., chief of the country’s legal politburo of proctologists, rewrote Obamacare, and then proceeded to provide the fifth vote to uphold the individual mandate undergirding the law, thereby undeniably and obscenely extending Congress’s taxing power.

Face it, the idea of a judiciary that would police the executive as an arm of a self-correcting tripartite government is worse than naive. Rather, it WAS recklessly naive of the American Founding Fathers to imagine that branches of a government, each of whose power is enhanced when the power of the other branches grows, would serve as a check on one another.

Government Motors (GM) Is Reckless? You Don’t Say!

Business, Free Markets, Government, Law, Welfare

The greater the incursion of government into markets, the less quality control consumers are able to exert over the products they purchase.

GM (Government Motors) has been propped up by “government-backed guarantees,” on the backs of taxpayers. That’s government’s SOP (Standard Operating Procedure).

Government Motors was further inoculated against legal liability by filing for Chapter 11 protection, or bankruptcy.

“Immunity is pure cowardice,” complained a plaintiff. “They are hiding behind bankruptcy.”

You got it. That’s what government-supported bankruptcy did for Government Motors. It conferred “legal immunity from liability for deaths or injuries in accidents that happened before the current company was created out of the government-supported bankruptcy in July 2009. It was left free of old claims and lawsuits and those remained with ‘old GM,’ which holds assets and liabilities that did not go with the ‘new GM.'”

People have to make up their minds, for once and for all. Do they wish to rely on the benevolence of market forces or the malevolence of government force.

The Talented Mr. Turley

Constitution, Federalism, History, Law, libertarianism

I find myself having to often defend against libertarian critique of my interest in the U.S. Constitution and the history of the republic. (Yes, imagine making excuses for intellectual curiosity.) I’m fascinated by it all. The disdain for American constitutional history among some libertarians seems to stem from laziness, which has invariably fed an attitude that treats the non-aggression axiom as if it materialized magically, and was handed down to the faithful at a Mount-Sinai like event, rather than from “the nit and the grit of the history and culture from which it emerged,” in the words of Jack Kerwick, Ph.D.

It’s pitiful that one should have to defend against an incurious, ahistorical mindset. Nevertheless, I plead guilty of an interest in Jonathan Turley’s February 26, 2014 remarks to the Committee on the Judiciary, of the United States House of Representatives, even though, as a libertarian, I most certainly do not identify with their impetus: “Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws.”

Most of what the government does is either naturally illicit, immoral or both. If a president arose who refused to enforce MOST of our laws; I’d cheer him on. And one can hardly accuse the Judiciary of not doing much, as Turley does. The opposite is the case: there are no means to punish the Bench for its infractions (such as Zero Care).

Still and all, Turley is interesting (I apologized for my interest, did I not?), and he writes beautifully, using some marvelous analogies:

… We are in the midst of a constitutional crisis with sweeping implications for our system of government. There has been a massive gravitational shift of authority to the Executive Branch that threatens
the stability and functionality of our tripartite system. To be sure, this shift did not begin with President Obama. However, it has accelerated at an alarming rate under this Administration. These changes are occurring in a political environment with seemingly little oxygen for dialogue, let alone compromise. Indeed, the current
anaerobic conditions are breaking down the muscle of the constitutional
system that protects us all. Of even greater concern is the fact that the other two branches appear passive, if not inert, as the Executive Branch has assumed such power. As someone who voted for President Obama and agrees with many of his policies, it is often hard to separate the ends from the means of presidential action. Indeed, despite decades of thinking and writing about the separation of powers, I have had momentary lapses where I privately rejoiced in seeing actions on goals that I share, even though they
were done in the circumvention of Congress.

There is no license in our system to act, as President Obama has promised, “with or without Congress” in these areas. During periods of political division, compromise is clearly often hard to come by. That reflects a divided country as a whole. Such opposition cannot be the justification for circumvention of the legislative branch. Otherwise, the separation of powers would only be respected to the extent that it
serves to ratify the wishes of a president …

MORE.

The Mindset Of A Subject

Healthcare, Law, Natural Law, Reason

“It is the law of the land,” parrot the statists, whenever the notion of repealing Zero Care is raised.

But even the legal positivist, for whom the law does not have to embody the “ideals of justice, democracy, or the rule of law” to remain in force, must concede that Obamacare is destructive to all Americans.

Americans are certainly coming to this realization. Polls show that “82% of Republicans and 58% of voters not affiliated with either party view the law unfavorably.”

As one natural-law scholar put it, “The human person is not a means for the ruler’s use.” (p. 174.) “A rule that does not issue from the activity of reason, an arbitrary rule or an arbitrary decree would savor of lawlessness rather than law.” (p. 172.)