To review: The debate over so-called "deem and pass" (also called the "Slaughter House Rules"), under which cowardly House members could pretend to pass the Senate version of health care without actually voting on it, had (so we thought) been so thoroughly bitch-slapped by those willing to remember the unambiguous text of the Constitution's Presentment Clause (or, alternatively, Schoolhouse Rock) that supporters of ObamaCare and opponents alike had thought the matter closed.

Then, somehow, the constitutional brush fires sparked by the damn-it-all ferocity of Democratic leaders to force socialized medicine on an unwilling majority have jumped from Article I to something called the Enrolled Bill Doctrine:

In other words, the signatures of the Speaker of the House and President Pro Tempore of the Senate are considered authoritative on the question of process. The court refused to interfere on a political question in 1892 and has maintained that precedent since.

I vaguely recalled learning the Enrolled Bill Doctrine in law school. Not in a Constitutional Law class, mind you, but in Statutory Interpretation. That's because the Doctrine is not a true constitutional principle. It is, at best, an editorial footnote, one that deals only with Congressional scrivener's errors, not with major foundational questions of federal lawmaking.

This is why those — even those who oppose Obamacare — citing to the Enrolled Bill Doctrine are misguided. Unlike so many other judicial atrocities, the Supreme Court has never before — and will not now — nullify the Presentment Clause (or tolerate its nullification by Congress, the President or both). We saw that as recently as Clinton v. New York, 524 U.S. 417 (1998), in which the Court struck down the line-item veto.

But there's another reason why trying to cite to the Enrolled Bill Doctrine is misguided: That 1892 Supreme Court case stating the modern Doctrine, Field v. Clark, 143 U.S. 649 (1892), did not just fail to uphold a political-branch negation of Article I, Section 7, as some seem to infer. It actually held that such a negation would be so preposterous as to be, literally, unthinkable:

It is said that under any other view, it becomes possible for the Speaker of the House of Representatives and the President of the Senate to impose upon the people as a law a bill that was never passed by Congress. But this possibility is too remote to be seriously considered in the present inquiry. It suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the Constitution. Judicial action based upon such a suggestion is forbidden by the respect due to a coordinate branch of the government.

Try to process what Justice Harlan is saying: Honest bureaucratic mistakes in Presentment happen and are not constitutional crises. But Congressional leaders wilfully trying to evade the Presentment Clause? That would be so outrageous, such a betrayal of the Constitution, that to ask a court to even entertain the notion would be, to coin a phrase, judicial activism of the most egregious kind.

Justice Harlan, meet Speaker Pelosi. "Too remote" just got a lot closer.

(Via Below the Beltway.)

I was even willing to let this confused blather slip by unaddressed:

America is not just a country but an idea, a great idea about opportunity for all and responsibility to your fellow man.

Bono is referring to some recent remarks by President Obama and trying, by definition futilely, to justify his absurd, outrageous and offensive winning of the Nobel Peace Prize. Whatever — generally speaking, I only value musicians' opinions when they're discussing music.

But a few minutes later I came across a blogpost praising some other thoughts about "America as an idea" — also in the context of a Nobel Prize:

[I]t is all too apparent that financial obligations associated with social entitlements intended to solve welfare problems and advance public welfare threaten the viability of basic monetary and financial institutions. In my judgment, American democracy is at risk. Why has a flood of crises inundated the United States of America and other democracies in the contemporary world?

Perhaps the answer is to be found in the superficial way we think about citizenship in democratic societies. How people conduct themselves as they directly relate to one another in the ordinary exigencies of life is much more fundamental to a democratic way of life than the principle of "one person, one vote, majority rule." Person-to-person, citizen-to-citizen relationships are what life in democratic society is all about. Democratic ways of life turn on self-organizing and self-governing capabilities rather than presuming that something called "the Government" governs.

That is Vincent Ostrom, husband of the co-winner of the Nobel Prize in economics, and written in 1997, long before the current "flood of crises" in American "basic monetary and financial institutions."

These two quotes — Bono and Ostrom — both verbatim, reminded me of another quote — well, misquote — that circles around libertarian cyberspace every so often.

Ostrom is basically re-stating that infamous faux quote repeatedly (and incorrectly) attributed to de Tocqueville, that "the American Republic will endure until the day Congress discovers that it can bribe the public with the public's money."

Stated differently:

"How people conduct themselves as they directly relate to one another in the ordinary exigencies of life is much more fundamental to a democratic way of life than the principle of 'one person, one vote, majority rule.'"

Which is to say that "America qua idea" (cf., Bono's op-ed) is less about raw democracy for its own sake, and more about freedom — freedom to own and control property, freedom of contract (including the freedom to refuse a contract, such as health insurance), freedom to decide one's own charitable giving (rather than to have it forced upon you via taxes and subsidies), freedom to experiment entrepreneurially, freedom to take risks (but not subsidized risks), etc.

Which, yes, includes the reciprocal freedoms: freedom to fail, freedom to regret one's choices, freedom to be gullible, freedom to be weak-willed. Etc.

All of which is fundamentally incompatible with unbridled democracy — which, one more time, is at the end of the day nothing more than mob rule. The fact that the mob — or Bono — may consider itself "well-intended" or "enlightened" is utterly irrelevant.

America is indeed an idea. Or at least it was. Once upon a time…

What I would prefer is to look at the relative magnitude of this man's achievements — relative to two other groups that also had, so to speak, a tremendous impact on human populations:

1. The Communists. Soviet and Chinese Communism both tried, at least ostensibly, to do precisely what Borlaug did: bring principles of systematized mass production to agriculture. The problem, however, was that Communism (and socialism and Marxism and …) requires as a key premise the denial of the very existence, let alone the value, of innovation in economic activity. To a Communist, a farm (or a factory) is no different from a forest or a river: it is a mere "resource," that always existed and needs no entrepreneurial skill to utilize.

To a Communist, the only way to increase agricultural output was "more of the same" — more tractors, more pesticides, more peasants, etc. The concept of utilizing more science, more thinking, was incomprehensible to Stalin and Mao. And when their "plans" and "leaps" not only failed to enhance agricultural yields, but actually reduced them (i.e., through mismanagement, pollution, etc.), they then turned to an alternative somewhat less incomprehensible to them: slaughter the people. A dead peasant consumes no food.

2. The Dogmatic Religions. Almost all the blood spilled in the history of humanity has been in God's name. One of the most insolent responses by the apologists of dogmatic religions, especially the Roman Catholic Church, is that yes, religions have an ignoble past — and even an ignoble present (the Vatican's neanderthal attitude toward women, the Mormon Church's soulless attitude toward gays, Islam's … well, everything about Islam) — but they strive to atone for their past sins. The Church does good works…

Good works? Compared to Borlaug? Religion's apologists dare make such a comparison? What is a stray missionary expedition, parochial school, hospital or adoption charity (all of which, we should recall, are to this day tainted with some cruel sin of their own) compared to feeding the entire world?

There is a certain irony to the fact that the old saying, "Give a man a fish / teach a man to fish…" is in fact not from any dogmatic religious text (though many if not most Christians ignorantly think it is). For had any great large religion actually embraced this concept (shall we start calling it the Borlaug Doctrine?), then they would not now have to squirm under the light of their blood-soaked past and vomit-soaked present and blather on about their puny little "good works."

—

A post script:

He insisted that governments pay poor farmers world prices for their grain. At the time, many developing nations — eager to supply cheap food to their urban citizens, who might otherwise rebel — required their farmers to sell into a government concession that paid them less than half of the world market price for their agricultural products. The result, predictably, was hoarding and underproduction.

As I have said many, many times: The only reason there are poor people in the world is because thugs with guns keep them poor.

Reason Magazine's 2000 interview with Borlaug here.

The basic problem is that the American people have gotten used to high-tech, all-everything health care, under the illusion that they don't have to pay for it and that it's always better for them. Politicians are unwilling to force voters and donors to give up that sort of system, even the parts that are ineffective.

Sorta kinda close. But not quite.

The "basic problem" of health care costs is that the consumer is not the customer. The consumer's employer, or the government, is the customer. Our current private system, a "temporary" and "emergency" schizophrenic tax scheme dating back to World War II, has created a foggy maze in which the consumer simply cannot make informed decisions — because the information required to make those decisions is muddled, obfuscated or downright withheld from them.

Under such a system (which, incidentally, is also the proximate cause of our inflated "number of uninsured" statistics), is it any wonder that, as Brooks puts it, "the American people have gotten used to high-tech, all-everything health care, under the illusion that they don't have to pay for it"?

But where Brooks falls short is the innuendo that the "illusion" is somehow the American people's fault. It is not. It is the result of a 60-year government policy of disrupting and complicating what really should be a very simple business.

No health care socialist I'm familiar with is willing even to acknowledge, let alone attempt to answer, this very simple question: Why do we have these cost-driven problems in health insurance — and only in health insurance?

There is no inflation crisis in automobile insurance, or homeowners insurance, or life insurance. Other insurance industries may be regulated (that's another blogpost), but they are still basically private. The consumer is also the customer — and the providers compete for their business — directly and fiercely (how long can you go before seeing a car insurance commercial on television?).

If we were to scrap the absurd system of making health insurance tax-advantaged for employers but not employees (i.e., either tax it all equally, or exempt it all equally), then employers would exit the "health insurance middleman" business (which, incidentally, would lower their human resources cost — which in turn means higher wages, lower prices and higher profits). Employees, armed with larger paychecks and smaller benefits packages, would become not only the consumer but also the customer — and would be directly courted by the health insurers. And the same kind of intense price and service competition that we see in the "GEICO v. Allstate v. Progressive" wars would also take place in health insurance.

To a health care socialist, the only viable response to this proposal is, "Oh the horror!"

There's more to the story, of course: Medicare, ER open-door rules, legacy costs of existing programs and other entanglements would also have to be addressed. Point conceded.

But the core debate will continue to be futile, "angels on the head of a pin" parlor room (and committee chamber) chit-chat unless and until the root cause of the "basic problem" — the entirely artificial and entirely unnecessary government-spawned dichotomy between "consumer" and "customer" that underlies our failing health care leviathan — is at least on the agenda, if not at the top of it.

If the first step is admitting you have a problem, then surely the second step is figuring out what the problem actually is. Especially the "basic" problem.

Previously:
–Socialized Medicine Archive

I once countered, in a throwaway post, that even government-run lotteries are technically an affront to liberty because a government-run lottery would crowd out private lotteries. People who want to go into the lottery business have a natural right to do so without having to compete with the government.

Guess I shouldn't have thrown that post away after all:

In a White House news conference, Mr. Obama dismissed as "not logical" the suggestion that a public plan, which is intended to create more competition and therefore act as a brake on the rise of health insurance costs, would undermine the private insurance market.
…
He brushed aside concerns that a government plan would drive private insurers out of business.

"If private insurers say that the marketplace provides the best quality health care, if they tell us that they're offering a good deal, then why is it that the government — which they say can't run anything — suddenly is going to drive them out of business?" Mr. Obama said. "That's not logical."

Not logical?

The federal government is, by definition, exempt from federal business taxes. (Is it "logical" to speak of the government taxing itself?)

The federal government can, and often does, exempt itself from most federal (and all state) business regulations.

The federal government can, and often does, acquire property (e.g., for office buildings) via eminent domain, wherever it likes, for whatever price it chooses to pay.

And, most importantly, the federal government can, and often always does, run operating deficits ad infinitum via its unique ability to borrow unimaginable sums of money, at uniquely favorable terms.

But, according to the president, to suggest, despite all this, that a government-run health care insurance option would not cripple — perhaps outright destroy — the private companies trying to compete with it is "not logical"?

President Obama is either a liar or an idiot. And he's not an idiot.

(Via F.E.E. Blog.)

This is ugly business. They’re quoting a doctor who specializes in pancreatic and gastrointestinal surgery as saying (1) that it’s common for someone who had the cancer Jobs had to subsequently get cancer in their liver; (2) that liver transplants are not proven to help in such cases; and (3) obtaining a liver transplant in such cases is therefore controversial because it's taking a liver that could otherwise have been put to better use by someone with some other type of liver ailment. There is no other way to read this than as an implication that Steve Jobs may have gotten a liver that should have gone to someone else.

"This is ugly business." By which we mean:

–That there are not now, nor will there ever be, enough livers for everybody?

–That this will always be the case, no matter how much money, especially other people's money, is thrown at the problem?

–That choices therefore have to be made, and that health care resources therefore have to be rationed — just like every other good and service throughout the rest of the economy?

–That the only real question is therefore who gets to make the choices, for whom, and by what standard?

I guess economics is not only the dismal science, but also the ugly science too.

Via Kevin, MD.

But most important, what ensures survival in a zombie story are the progressive ideals of common cause and collective action. A small group of people from varying backgrounds are thrust together and find that they can transcend their differences of age, race, and gender (the typical band of survivors is a veritable United Nations of cultural diversity). They come to understand that if they're going to get out of this with their brains kept securely housed in their skulls and not travelling down some zombie's gullet, they've got to act as though they're all in it together. Surviving the tide of zombies requires community and mutual responsibility. What could be more progressive than that?

To which a libertarian replies:

The politics tend to lean left, but zombie entertainment approaches a level of discontent more elemental than mere anti-capitalism or shopping mall burlesque. Apocalyptic and piously disdainful of the carnal realities of human life, zombie cinema is a shocking, uproarious meditation on the nature of death—on what, if anything, we owe to the dead.

To which I replied:

What a Randroid would say, not entirely incorrectly, is that zombie movies celebrate reason over mysticism. Ever read Rand's West Point commencement address with its brief "science fiction" introduction?

Besides the obvious anti-religion backdrop required in any zombie movie, the people who survive are invariably the ones who think, reflect, reason and act. The ones who just sit, hope –and eventually scream — are the ones who perish.

A better question would be why so many of these movies have anti-Romanticist endings these days (i.e., the protagonists perish in the end anyway).

"Cloverfield" comes to mind, as does "Alien 3," "The Happening," "Invasion of the Body Snatchers" (1978 version), as well as the cut-away endings of the video games "Dead Space" and "F.E.A.R."

Leaving an opening for a sequel is one thing, but there's something disturbing and unfortunate about the popularity of gratuitous, existentialist, "it was all for nothing" endings in zombie and apocalyptic fiction.

I've also noted, but off-blog I think, the no-mere-coincidence that George Lucas made droids (i.e., not people) the main target of mass destruction in I-II-III at about the same time that Peter Jackson did the same with orcs (i.e., not people) in LOTR. Easier to justify the violence that way.

Another important trend to watch is the ratio of "government caused this" scenarios (e.g., "Day of the Triffids," "Colossus: The Forbin Project," "TDTESS v1.0") to "capitalism caused this" scenarios (e.g., "Jurassic Park," "Poltergeist," "Mad Max," "Waterworld," "TDTESS v2.0").

Previously:
–Klaatu's Externalities, Then and Now

Faith organizations and individuals who view homosexuality as sinful and refuse to provide services to gay people are losing a growing number of legal battles that they say are costing them their religious freedom.

The lawsuits have resulted from states and communities that have banned discrimination based on sexual orientation. Those laws have created a clash between the right to be free from discrimination and the right to freedom of religion, religious groups said, with faith losing. They point to what they say are ominous recent examples:

– A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney's costs after she refused to photograph a gay couple's commitment ceremony.

– A psychologist in Georgia was fired after she declined for religious reasons to counsel a lesbian about her relationship.

– Christian fertility doctors in California who refused to artificially inseminate a lesbian patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.

– A Christian student group was not recognized at a University of California law school because it denies membership to anyone practicing sex outside of traditional marriage.
…
"People seem to say that if you enter the world of commerce, you lose all your First Amendment rights" to free exercise of religion, said Jordan Lorence, senior counsel at the Alliance Defense Fund, a Christian legal organization that has represented several businesses. "They … have become nothing more than vending machines, and the government can dictate the conditions under which they dispense their goods and services."

This is, of course, a decidedly libertarian argument. In Libertopia, all interactions, or at least all those involving competent adults, are strictly voluntary. There would be what the law calls "economic substantive due process," in the same way (and for the same reasons) that there is "privacy substantive due process" (e.g., Roe v. Wade, Lawrence v. Texas).

This is where libertarians tend to get into trouble. When confronted by non-libertarians with charges such as, "you oppose the Civil Rights Act" or "you believe in the right to be a racist business owner," we basically have to plead "guilty."

Of course, we also have the affirmative defense of asymptotic irrelevance. In Libertopia, there wouldn't be a Civil Rights Act because there wouldn't need to be a Civil Rights Act. Recall that Libertopia would be a capitalist society — and capitalism is always the first best weapon against bigotry. If you're a "greedy" businessperson, then you'll gladly buy from blacks, sell to Jews and hire gays. And if you don't, then you will suffer the punitive damages of competition — which far exceed those that could be imposed by any court of law.

So yes, on a strictly superficial level, libertarians would generally agree with the aforementioned laments by the bigots and theocrats. Point conceded.

But consider: What if the aforementioned litany of horribles had not been exclusively about gays?

– A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney's costs after she refused to photograph an interracial couple's commitment ceremony.

– A psychologist in Georgia was fired after she declined for religious reasons to counsel a Jew about her relationship.

– Christian fertility doctors in California who refused to artificially inseminate a disabled patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.

– A Christian student group was not recognized at a University of California law school because it denies membership to foreign students.

Most hard-core libertarians would be unfazed in their support of economic substantive due process and its requisite toleration of such private discrimination in most of these scenarios. In fact, I would wager that libertarians as a group would be more likely to defend all the bigots than the bigots themselves would be ("Blacks are Christians; our problem is with Jews." "Jews are white; our problem is with blacks." Etc.)

The "victimized" Christian bigots are of course not making a thorough, comprehensive (i.e., truly libertarian) demand for full entrepreneurial freedom of contract — and its reciprocal "right to refuse service to anyone." All they want to do is discriminate against gays. Not "anyone and everyone." Just gays.

Which is precisely why they should not be allowed to do so. As I have blogged previously: Whether or not you approve of bans on private discrimination is not the point — we are not debating the creation of Libertopia.

The point is instead whether, given that we already have such laws, are we going to craft and apply those laws consistently, logically and equitably — or are we going to short-circuit the entire raison d'être of such laws by allowing the majoritarian mob to fashion carve-outs for the very same insular minorities who are most in need of such laws?

If the religious bigots really want to invoke libertarian arguments to legitimize their bigotry, then they better be prepared to be judged by real libertarians about the entire spectrum of libertarian issues — including separation of church and state.

Think they'll go for it?

Previously:
–On the ENDA-T Conundrum
–eHarmony, eCommerce and eBigotry
–Separation of Ice Cream Parlor and State?

When he goes before a Congressional panel Tuesday morning, Timothy F. Geithner, the Treasury secretary, is expected to call for the Treasury Department to be granted greater powers to seize troubled financial institutions that aren't banks.
…
In his opening statement, Mr. Geithner calls for the Treasury Department to have the kind of tools for winding down nonbanks, such as A.I.G., that the Federal Deposit Insurance Corporation has to seize failed banks.

Well.

A few pesky details about the FDIC:

• It's actually voluntary, at least nominally. People often forget that. The FDIC cannot seize any bank that does not participate in the deposit insurance system.
• The FDIC only seizes insolvent banks, not "troubled" banks. FDIC seizure is, literally, the remedy of last resort. Is Geithner really seeking an open-ended power to seize "troubled" non-banks? Who gets to decide what constitutes "troubled? Geithner, under an unsupervised regulatory mandate? Congress, subsequent to legislation? The President, subsequent to some Bush-like theory of "emergency economic powers"?
• FDIC's "seizure" power does not exist in a vacuum, and is technically not even a regulatory power in the literal sense. Whether strictly voluntary or of a more "Luca Brasi" nature, a bank's relationship with the FDIC is contractual: the bank pays insurance premiums (and, perhaps more important, pledges not to mismanage itself into insolvency), and in return the FDIC guarantees deposits (up to a point) and agrees, as a beneficial service, to take over a distressed bank's operations in anticipation of restructuring, sale or orderly liquidation.

Whatever Geithner is seeking, it is not "like the FDIC." The FDIC at least goes through the motions, however disingenuous, of being independent and voluntary. Geithner is simply slicing through the pretense and going stright to "a gun at your head and a contract on the table."

Previously:
–When Did Luca Brasi Become Deputy Treasury Secretary?
–FDIC for Dummies (and Politicians)

So who is going to eventually pay for this accelerating debt, temporarily held by the Chinese and others? As the national debt's percentage of GDP moves from about 40 percent to perhaps 70 percent, there will not be enough wealthy people left to bleed. Once the economy recovers, broad tax increases will be unavoidable. Or Obama's "once-in-a-generation chance" will actually involve the imposition of massive burdens on the next generation.

While hardly irrelevant, the question of "paying off the debt" is not the truly urgent issue. If one assumes, foolhardily or otherwise, that the United States Government is what accountants call a "going concern," then all that Treasury debt can be refinanced by new borrowing as it comes due. Businesses do that all the time.

The truly urgent issue is the interest on that debt. Now at almost half a trillion dollars every year and doomed to rise stratospherically as Washington commits to trillion-dollar deficits as far as the eye can see and the spreadsheet can add new columns.

Unlike, say, the Social Security "trust fund," the interest on the federal debt is not some empty accounting gimmick in a binder in a file cabinet in West Virginia. That is real cash money that must be paid, on time and in full, to whoever happens to own Treasury debt.

And who owns all that debt and collects all that cash interest? Maybe the Chinese and other foreigners. Maybe rich Americans. But this much is certain: Not the poor, and for the most part not even the middle class that Obama & Co. are so eager to buy off. They just get to pay the taxes.

That is what now passes as "enlightened" post-laissez-faire progressive macroeconomic policy.

Previously:
–On Budget Deficit Obliviousness (Or: "Trillions All the Way Down")
–CRS Recommendation: The National Debt
–CRS Recommendation: Foreign Holdings of Public Debt
–Government Bringing Back 30-Year Bond
–Defining "Balanced Budget" Down