Saturday, June 30, 2012

- The Fundamental Transformation Continues

In order to demonstrate his great love of the country which has elected him to it's highest office, Barak H. Obama will be spending independence day attending a fundraiser ... in Paris. Since foreigners are prohibited from contributing to American election campaigns, he must be attending with those other Americans who also find this country too distasteful to actually live in.

What a proud moment for internationalists everywhere.

Friday, June 29, 2012

- The Odd and Unaccountable Justice Roberts



I have a pretty big ego. It is important to me to keep that in mind. I try to stay grounded by freely admitting when I have come up short.

One of the things I think I do well is predicting how a court will resolve a complex legal issue.   You first need to have a command of all the facts and correct assessment of which group of laws will apply.   With that drudgery over, you break down the dispute into its smallest component parts and lay it all out in a series of legal logic gates. It is more art than science, no doubt.

Once you establish the battlefield, you get into the heads of the enemies, especially the ones with the power to operate the logic gates. The egos of the gate operators that ordinarily stand at the pinnacles of the legal profession are quite often monumentally large.   I am glad when this is the case, because the bigger the ego the easier the prediction, when you know what makes a critical personality tick.   I then try to formulate an efficient strategy, because “By discovering the enemy's dispositions and remaining invisible ourselves, we can keep our forces concentrated, while the enemy's must be divided.”

The exercise I posted here, where I predicted the outcome of the Obamacare ruling, shows a little bit about the process I use to predict the judicial outcome of a case.   I zeroed in on Justice Kennedy.   I found portions of his commerce clause decisions that showed his disposition to revere federalism. Frankly, I completely nailed Justice Kennedy better than any other writer out there.   The Court did just what I said it would do on the commerce clause.   I also nailed what the court would have done on severability, if the commerce clause holding carried the day.

In the end, however, my exercise was just an exercise and not a fully formed legal assessment.   It looked only at the predisposition of Justice Kennedy.   A real analysis would have focused on the predispositions of Chief and the other Justices.   And yes, my ego is that big that I think I would have called the truly astounding, if I was engaged in more than just a leisurely exercise.   After all, “If we do not wish to fight, we can prevent the enemy from engaging us even though the lines of our encampment be merely traced out on the ground.  All we need do is to throw something odd and unaccountable in his way.”

I have not yet really come to grips with my profound disappointment with Justice Roberts.  Courts exist to resolve disputes that have fallen outside what people, business entities or political systems imagined when they formed their profitable interrelationships.   A court should fill those gaps, while reaching an end result that is in some manner predictable.   Otherwise, similarly situated relationship will unwind unpredictably.   Our national economy now fails an entire generation because of ‘uncertainty” emanating from a regulatory state.  In the face of this, Justice Roberts has given us something odd and unaccountable.

The worst part is the echo chamber of the chattering class has not yet stumbled upon a fair realization of the power the Court just gifted to Congress.

- Read My Lips...

No new taxes on anyone under $250K per year... oops.

- Stare Decisis


Now that the Supreme Court has ruled that Congress can regulate behavior through taxation, it will probably require a Constitutional Amendment to truly reverse this decision.
Repealing Obamacare isn't good enough. The court's decision needs to be encapsulated and buried in order to restore what remains of Liberty.

Damn You All to Hell!

Thursday, June 28, 2012

- The Largest Tax Increase In US History

While we're all crying into our coffee I'd just like to remind people that according to Justice Roberts, this is now officially a TAX. And not just any tax. President Obama, who is presiding over an economy with an 8%+ unemployment rate and middling growth, has just imposed the single largest middle class tax hike in US History, on his way into a reelection bid.

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I can't wait to see what happens when Hitler learns of this ruling.

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- The Opinion



The opinion is here. Chief's opinion is 59 pages, Justice Ginsburg's opinion is 61 pages, the four dissenters are 65 pages, followed by a short two-pager from Justice Thomas.  More later ...
 
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Roberts latched onto the state’s third backup argument. I apologize to the RFNJ readers that I was not more perceptive on this issue. 

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1:27 - I looked quickly at the commerce clause portion of majority opinion delivered by Justice Roberts. Of note, I have pulled the following quotes:
  • But Congress has never attempted to rely on [commerce] power to compel individuals not engaged in commerce to purchase an unwanted product.  
  • The power to regulate commerce presupposes the existence of com­mercial activity to be regulated.  
  • The individual mandate, however, does not regulate existing commercial activity. It instead compels individ­uals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.
  • People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.
  • The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.
The dissenting Justices joined in this portion of the Roberts opinion, making a pretty historic limitation on commerce power in a 5-4 decision. The dissent by Justice Kennedy vindicates federalism:
  • But as the discussion above makes clear, the decision to forgo participation in an interstate market is not itself commercial activity (or indeed any activity at all) within Congress’ power to regulate. It is true that, at the end of the day, it is inevitable that each American will affect commerce and become a part of it, even if not by choice. But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end. 
  • All of us consume food, and when we do so the Federal Government can prescribe what its quality must be and even how much we must pay. But the mere fact that we all consume food and are thus, sooner or later, participants in the “market” for food, does not empower the Government to say when and what we will buy. That is essentially what this Act seeks to do with respect to the purchase of health care. It exceeds federal power.
Justice Thomas vindicates my view that that the use of legal test has let a federal power genie out of the bottle:
  • I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” citations omitted. As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” citation omitted. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects inter­state commerce is a case in point.
At the very least, it appears this decision freezes the growth of commerce power at is present misshapen form.
 
I never really looked in my previous posts at the tax and spend powers the Constitution as providing the vampires in Congress a basis to support Obamacare, which was the point of my apology.  So I will pick up Honest Abe's tax cutting ax later.  Until then adieu. 
 

- Belly Dancers at the Supreme Court

spiral-clock

I am following a live blog of the action at the Court - we have been told there are "loud music, belly dancers, probably about 50 protesters for either side," lots of folks taking pictures of things and zillions of reporters. 

All think that Obamacare will be the last opinion of the morning.  So I will post a quick blurb about what the first report of the decision is, along with my reaction.  I will get a copy of the opinion and dissect it in a later post.  The Justices will take the bench at 10:00.

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10:09 - The individual mandate survives as a tax ...  Chief Justice Roberts joins the left of the Court...

10:12 - I am feeling unwell.

10:26 - The Court upheld the mandate 5-4.  At least I was right about Kennedy ...

10:28 - The Court holds that the mandate violates the Commerce Clause ...

I am regaining some composure now ...

10:29 - In opening his statement in dissent, Kennedy says: "In our view, the entire Act before us is invalid in its entirety."

- Justice Kennedy's Federalism



Nancy Pelosi thinks the Court will come down 6-3 in favor of keeping the individual mandate in Obamacare.  This worried me, after I had looked at a claim running around the blogosphere that the Obamacare opinion had been leaked to the administration. 

Instead of getting caught up in the chatter, I just wanted to quote what I wrote on June 12, 2012:

At the root of our federal system is the Westphalian notion that the individual States possess inviolable autonomy to regulate economically, while the federal government ensures the peace by facilitating free commercial intercourse. After all, our founders knew well that Europe’s then most destructive conflict, the twin Thirty Years War and Eighty Years War, ended in 1648 when the combatants recognized exclusive sovereignty of each party over its own lands. They also knew Westphalian peace gave rise to a patchwork of German principalities that taxed and inspected commerce until they all impoverished their subjects. As a result, the founders created an innovative American federal/state balance, which lit an engine of peace, stability and economic growth. 

I think Justice Kennedy understands the importance of federalism, because in his concurring opinion in U.S. v. Lopez, he summarized the history of the Court’s commerce clause jurisprudence. He then wrote that, “only concerning [federalism] does there seem to be much uncertainty respecting the existence, and the content, of standards that allow the judiciary to play a significant role in maintaining the design contemplated by the Framers.” He mused that, “There is irony in this, because … federalism was the unique contribution of the Framers to political science and political theory.”

In Bond v. U.S, a unanimous decision, Justice Kennedy likewise wrote:

Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. "State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.' "

One who so eloquently describes that, "federalism protects the liberty of the individual from arbitrary power," will not turn on a dime to embrace a first ever federal compulsion to enter an unwanted contract. 

I have described that without federalism and with an all-encompassing power in Washington to regulate any activity that has an "impact" or "affect" on commerce, the Department of Redundancy Department will have the power to rule just about anything politicians can immagine.  Justice Kennedy will vote to strike the mandate because he believes in federalism.  It will be a 5 to 4 decision.  If I really have it nailed, Justice Kennedy will write a concurring opinion that features federalism. 

While I'm at it, and just for fun, I thought I would repost this afternoon's news headlines (if the Court delivers its opinion today) which I wrote more than three weeks ago:

In a surprise move, the conservative members of the Supreme Court banded together to strike all of Obamacare, rather than keeping the parts that pass constitutional muster. The Administration has expressed disappointment that the Court divided along partisan lines to kill a popular a law passed by both houses of Congress.

Wednesday, June 27, 2012

- A Euro Rube Goldberg Device

OK I've got it. I've figured out one way that Frau Merkel and the Euro leadership can use their favorite motivator (force) to compel the European voters to float the bill to keep the club-med countries in the Euro. It comes in the form of several administrative steps which should not require the approval of European voters:

1. A new class of sovereign debt is designed which is paid only by the issuing country but is administered by the ECB. The Coupon, prepayment concerns, issuance amount etc is all managed by the ECB as if it were the issuing banker and bond administrator. But this debt does not encumber the ECB or any other non-issuing country as being liable for payment should the issuing country default.

2. All public pensions in the issuing countries will implement new rules to share any shortfalls between current and future pensioners equally.

3. All public pensions are required to purchase a set amount of the new debt issuance - precise amounts depending upon the the pension size and the needs of the issuing country.

4. The issuing countries elect to "write down" ONLY the newly issued class of debt to a fixed percentage of the face value. The debt is structured as a convertible so that any write down of face value is automatically replaced with a callable zero coupon instrument of an equal face value. The zero paper is pegged at a 20 years, but can be called and replaced with new paper at any time. The initial write down "conversion" does not trigger a default event.

So the losses are immediately transferred to the public pensioners and the public balance sheets are corrected in the form of reduced pension outlays. Of course it screws the pensioners, but someone has to get screwed. And up to now those public pensioners are the ones who have been doing all the screwing. Besides, you can't screw the bond holders because, as I've written before, they are not required to participate in this farce and can leave at any time. The burden will only be paid by someone who has no choice in the matter. The pensioners have no choice.

I may be a little fast and loose with the regs here - I'm no expert on European pension rules. But I think the Eurocrats can squeak it by if they do it late at night and all at once. It's an option anyway.

- The Vatican's Secret Archives

I'm an awful catholic, and I don't pretend otherwise. But in all humility, I think I am a better than average student of Catholicism. And as such, I find this a fascinating story. The Vatican has opened part of it's "secret archives" and made available to a limited scholarly viewing, many of the founding documents of western civilization.

It's things like this that remind me of how the church really does take the long view. They play the game of civilization on a stage and a schedule that seems glacial to most of us, but with good reason. It's been that steady hand on the moral rudder of the west that has steered us this far in our journey, and I believe it will be the thing we eventually come to rely on again, if we are to endure in the future.

There is no institution as unfairly maligned by the left as the Roman Catholic church. I hope I live to see the end of that libelous tradition, and things like this can only help to achieve that goal.

- A Telling Scalia Dissent



There is a very interesting tea leaf reading piece by a former SCOTUS Law Clerk over at NRO.  

Mr. Whelan notes that Justices usually read only one dissent from the bench during a single term. Justice Scalia read his dissent in the Arizona case. If Scalia was not in the majority in Obamacare, he would likely be the senior Justice in dissent, which would give him first dibbs on writing the dissent. So it is a good guess that Scalia is in the majority on Obamacare.  

Additionally, Justice Roberts has not delivered a majority opinion from the March and April sittings and he has delivered fewer majority opinions than the other Justices. It seems that Roberts may be delivering the majority opinion.

- Iran's Nuke Delivery "Dry Run" Halted

I always figured if we had to be afraid of an Islamic sourced nuclear weapon in the eastern US, the delivery mechanism would be something low tech like this. The vast numbers make it difficult, if not totally impossible, to check thoroughly. None of this is to say that this is what's actually happened here, but it's easy to imagine.

Fortunately for me, I now live upwind and far enough away so that I don't have to fear any immediate problems. It may seem a little nuts to worry about that sort of thing, but I think of it like insurance. If it costs you close to nothing to give yourself that extra protection, then why not?

- Another From The Looking Spoon

Tuesday, June 26, 2012

- Lanny Breuer is Deep in the Cheese



I am finally at the end of this thread about executive privilege and Fast and Furious. Congratulations to anybody who has stayed with it! So this is the old, new borrowed and blue moment, where I will try to tie it all together and tell you where I think it will go.

The big dog in the Nixon executive privilege case was Archibald “Bowties are Cool” Cox. He digested the testimony of White House aides and others who appeared before Congress, and put together a devastating response to the Nixon White House claim of executive privilege. His methods set the legal standard for piercing the privilege.

If Nixon gave us a textbook example of how not to assert executive privilege, Bill Clinton showed us the right way to do it. In his Administration, Mike Espy came under investigation in 1994 for claims that he accepted gifts while he did the work of the U.S. Department of Agriculture. On September 9, 1994 Congress appointed an Independent Counsel to investigate. Espy resigned On October 3, 1994.

On October 11, 1994, long before Congress could take any testimony, the White House publicly released a report prepared by the White House Counsel that answered two Presidents questions: 1) Whether the President should direct any further action regarding Secretary Espy's conduct, and; 2) What actions should be taken to ensure that similar incidents are avoided by other Members of the Cabinet.” This was a master stroke in fitting all White House knowledge about Espy’s conduct within both the deliberative and presidential communication executive privileges.

The Espy Independent Counsel followed the Archibald Cox model by in convening a Grand Jury that issued a subpoena for documents used by the White House Counsel to answer the President's questions. The White Hose asserted deliberative process and presidential communications privilege over 84 pages, cryptically described in a privilege log. The U.S. District Court found that the Special Prosecutor did not establish a great enough need to pierce the privileges the White House asserted.

In In re Sealed Case (Espy), 121 F.3d 729 (D.C. Circuit 1997) the D.C. Circuit wrote a textbook opinion about executive privilege in affirming the District Court in part, finding all of the documents withheld by the White House subject to the presidential communications privilege, especially in light that there was no ongoing investigation of any officials then serving in the White House.

I would not be surprised if Lanny Breuer had a hand somewhere in the Espy case. Without a doubt, he and his Deputies at the DOJ have looked to In re Sealed Case as a model for their attempt to cut off Congressional inquiry into Fast and Furious.   Like when the the Clinton White House saw an Independent Counsel in the offing, Lanny Breuer directed that the investigation begin, once the DOJ knew there was trouble as it issued its February 4, 2011 letter.  He put Jason Weinstein, the one who seemingly knows where the most bodies are buried, into a critical investigative role, making him a very long reach for a Congressional inquiry.

Fast and Furious, however, differs much from the simpler, and as history has shown, undignified case against Espy. Certainly, the roles of Breuer and Weinstein do not fall within the “floating pyramid” of presidential communications privilege. Instead, the Obama Administration seems likely to assert only evaluative process privilege, leaving Breuer “deep in the cheese.” Likewise, it seems that too many Fast and Furious worms have escaped the deliberative can, and it may be too big a job to get them all back in. 15 years has changed much about how information moves. These days it seems to swarm rather than inch along.

The most telling development, as I see it, is the rhetoric on the left has risen a few octaves, as the focus of Committe on Oversight and Government Reform seems to be less about what went wrong and more about whether somebody broke the law. Once Fast and Furious crosses into the official misconduct realm, the Espy model no longer works. So, as a worker bee in the information swarm, I have tried to show how the Lanny Breuer corner of this story seems a little worse than just not adding up.

When it comes time to tell it to the Judge, I think DOJ will be ordered to disclose far, far more than what they have provided so far. I just don’t think the parts DOJ really wants to hold onto will come out in time to influence the 2012 election. The wild card is whether more swarming information like wiretap packages from unidentified sources puts together a picture of malfeasance that may sink the invincible.

- The Judicial Review Of Obamacare

In the buildup to their announcement Thursday morning, here we see a rare piece of footage detailing the internal process of the US Supreme Court and their review of the "Obamacare" affordable care act. If you look very carefully you can see that it's Chief Justice John Robert's tossing a copy of the bill into it's rightful and most productive place - the gaping fiery maw of an active volcano.

OK, you got me. It's not actually a copy of the Obamacare Bill at all, it's just comparatively ordinary trash. But a guy can dream right?

- Fast Lanny Breuer and the Furious Congress



Now that we have laid out the inside baseball rules of executive privilege, I want to look at what seems to have poked the the Fast and Furious bees nest over at the Committe on Oversight and Government Reform. At the root of the inquiry is a February 4, 2011 United States Department of Justice (DOJ) letter sent to Congress denying whistleblower allegations and that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) “makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico."

The Committee recently let the public know that it received wiretap application packages from a secret source. As I see it, the wiretap information shifted the Committee investigation into a higher gear, which led to the Obama administration assertion of executive privilege. So let’s look at what can see to understand who is involved and what the facts are.

I start with Lanny Breuer, who is the Assistant Attorney General for the Criminal Division in the DOJ. He was part of the team that represented Bill Clinton from 1997 to 1999 and is well known for representation of subjects of Congressional investigations, like Sandy "The Pants" Berger. His Criminal Division prosecuted Thomas Andrews Drake, an NSA whistleblower indicted in 2010 under the Espionage Act of 1917.

A couple of threads crossed in September of 2009. At that time, Arizona U.S. Attorney was balking at the prosecution of several targets in the ATF Wide Receiver operation, citing certain objections to operational tactics. At the same time, the DOJ Criminal Division and ATF were in talks about coordination between “gun trafficking and gang-related initiatives.”

Lanny Breuer sent Laura Gwinn to Arizona to assist the U.S. Attorney in the Wide Receiver prosecution. She reported back to the Gang Unit on September 3, 2009 about an operation that involved the sale of 300 to 500 guns. Thereafter, Lanny Breuer asked Deputy Assistant Attorney General Jason Weinstein for a briefing on Operation Wide Receiver in a September 10, 2009 E-mail.

Moving forward to December 2, 2009, Acting ATF Director Ken Melson sought the advice of Lanny Breuer about whether ATF should treat the seizure of multiple guns in Mexico as one case. Breuer responded by email:

We think this is a terrific idea and a great way to approach the investigations of these seizures. Our Gang Unit will be assigning an attorney to help you coordinate this effort.

ATF’s Office of Strategic Information and Intelligence (OSII) alerted senior ATF officials on December 8, 2009 that a large number of Fast and Furious weapons were discovered in Mexico. By December 18, 2009, ATF identified fifteen interconnected straw purchasers that sold about 500 firearms. On January 5, 2010, OSII presented senior ATF officials with a summary of all of the weapons that could be linked to known straw purchasers, who bought 685 guns in under two months.

On the same day, January 5, 2010, Lanny Breuer later met with ATF officials, including Deputy Director Billy Hoover and Assistant Director for Field Operations Mark Chait at the Robert F. Kennedy Building, Room 2107, Jan. 5, 2010, 10:00 AM. Before this time, Hoover had received numerous communications from the ATF Phoenix Field Division about recovery of Fast and Furious weapons in Mexico.

In late January 2010, the ATF Phoenix Field Division applied for Fast and Furious to become an Organized Crime Drug Enforcement Task Force (OCDETF) case. Approval was granted, resulting in new operational funding and making Fast and Furious a U.S. Attorney for the District of Arizona led OCDETF Strike Force that joined with the Federal Bureau of Investigation, Drug Enforcement Administration, Internal Revenue Service, and Immigrations and Customs Enforcement.

The DOJ Criminal Division remained in contact with Fast and Furious through wiretap applications. The Criminal Division Office of Enforcement Operations (OEO) holds a primary responsibility to review wiretap authorizations to ensure that they meet statutory requirements and DOJ policies. When OEO completes its review of a wiretap package, as required by statute, a Deputy Assistant Attorney General in the Criminal Division reviews and authorizes each package. Every package includes an affidavit stating a suficient factual basis that permits the authorization. The Criminal Division authorized Fast and Furious wiretap applications on March 10, 2010, April 15, 2010, May 6, 2010, May 14, 2010, June 1, 2010 and July 1, 2010, which the DOJ will not provide to Congress.

Each approved application package included a memorandum from Lanny Breuer to Paul O’Brien, Director of OEO.

I now bring you the testimony of Lanny Breuer:
http://youtu.be/uSwAu0TNotY

So Breuer recognized right away that gun walking in Wide Receiver was a problem, but he made no similar realization with Fast and Furious. He was asked, but really never said why. He claims in other testimony that he just was not aware of tactics employed in Fast and Furious. Nevertheless, he dove on his sword, admitting his mistake.

As a set up for its claim of deliberative process executive privilege, DOJ began its own internal investigation about how to deal with Fast and Furious following the delivery of its February 4, 2011 Congressional letter of denial. Since then, DOJ will not answer questions about anything that was the focus of the internal probe. It turns out that Jason Weinstein, who received the September 10, 2009 email request from Breuer for a briefing on Wide Receiver, was one of the Deputy Assistant Attorney Generals that reviewed Fast & Furious wiretap applications. Weinstein, with approval Breuer does not recall, even helped edit the February 4, 2011 letter.

Who directed that the internal investigation be started? Lanny Breuer. Who did Breuer tap to conduct it? Jason Weinstein.

- An Election Season News Media Prediction

I predict that someone relatively respectable (not Bill Maher or one of the MSNBC buffoons) will sometime between now and Obama's defeat, blow a gasket and have an on air meltdown not too dissimilar from the latest bit of HBO liberal propaganda, the Newsroom.

I know a few journalists. Not guys like the Derb (for whom I have nothing but respect), but the kind of people who write "hard news". They all think they are smarter and more integral to our social processes than anyone else does. They are, as a rule, of unremarkable intelligence; but don't try telling them that. And I really think one of their higher profile brethren is going to copy that new HBO show because it's such an appealing delusion for them.

I think this is a particularly good piece on how the kind of delusion that show represents will actually end up hurting the very people who are trying to use it as a salve to mediate the pain of losing to the Tea Party. I highly recommend reading it, so you don't have to watch the actual show either. I had the chance last night but couldn't bring myself to do it.

- Embracing The Bourgeoisie

Forgive my absence, I've been traveling. I thought I was only going to Minneapolis, but when my flight landed Sunday morning and I made my way to my hotel downtown, there were a dozen men in the lobby who had me thinking differently. From there it looked like I had landed on another planet.

These men were the kind of guys I'd expect to see working (or at least standing around) in a road crew in NJ. They were burly and unshaven with broad chests and broader bellies. But instead of work boots and coveralls, there were all dressed in 17th century ball gowns complete with three foot tall powdered wigs. As I watched with amazement, one of these men managed to simultaneously balance his headgear while bending to put on a size 16 high heel. It was as if Circque du Solei had hired a retired defensive lineman. That's when I remembered that I'd seen quite a few people wearing rainbow colored gear as I wove through the downtown streets, and I realized that I had arrived in the middle of the Minnesota Gay Pride parade.

As soon as I realized what was going on my discomfort over the whole thing vanished. You can't live in Manhattan for as long as I did without having a "live and let live" attitude when it comes to other people dress, habits or manners. And since I'm not gay, that's pretty much the way I see the 'gay' community - as a group of people whose manners and dress (at least that day) is different from mine. Besides, I'm an alpha male, and not particularly insecure about my masculinity.

Which raises another issue I've always had with Minneapolis, and is the main reason I don't really feel very comfortable here. It's a city filled with Beta males. I don't know the exact Beta per Alpha percentages, but I'm certain that it's much higher than the ratio in NY. And this changes the culture of the city in strange and unpredictable ways. The traffic is where it's most noticeable. It reminds me of a PJO'Rourke line he used to describe the Korean election riots in the early 90's - Spontaneous regimentation. These people must feel some bizarre urge to intentionally line up and wait.

They will obediently get in line for miles in advance of an exit from the highway. And they'll sit and wait patiently there, listening to their radio or whatever, while I and the few alpha male imports from Chicago calmly drive past them to the head of the line and cut in at the front, saving ourselves 45 minutes of bumper to bumper queuing. They don't get angry when we do it. The few times I've checked for reactions in my mirror I see looks which range from mild surprise, to defeated embarrassment. Each of them the reaction of a Beta who knows that he's in the presence of an Alpha, and can't really compete with him on that level.

You see it in the bars and restaurants too. I'm traveling alone so I spend a fair amount of time during my meals people watching. Up close, the Beta men often have thick beards - you know...to prove how manly they are. The sleeves of their button down shirts are rolled down in spite of the heat, not out of a sense of style but purely as a demonstration of conformity. They talk with their dates about how they aspire to work in middle management one day, and are hoping to eventually make their way up to owning a small house in a middle class suburb. The women they choose, while not ugly, are of unremarkable physical appeal and don't seem particularly bright or charming. In short, both these men and the women they chose are destined for the middle of the pack, where they will spend their lives attending PTA meeting, going to church, and happily waiting in very long lines.

As an alpha male, it's hard for me to imagine a life like theirs, but that isn't the same as having contempt for it. On the contrary, in some ways I envy them. My 'alpha-ness' has been dominated by a lack of contentment with my life, my wealth, and my position. It's the tendency to measure yourself and your progress in life against your ambitions that is the defining characteristic of Alpha males. And although it does sometimes (with a little luck) lead to great achievement, it makes for a constant state of discontent. While the Beta's may be reconciling themselves to much less in life than an Alpha, they are probably much happier with it than an Alpha is, even with considerably more.

And then we have the guys with their ball gowns and heels, trying to figure out if large pink ceramic earrings go better with their dress than the gold ones, even though they aren't period correct.

The thing about everyone on the left (not just the gay community) is that they have abandoned all the things that give a life meaning, and now have nothing left but politics and their egos. The latest example of this is the 'redefine marriage' amendment on the ballot in Minnesota which they were promoting all over town during the parade. But these guys don't really want to get married. They don't want to be bourgeois. They want to be a flame that flickers bright and brief and is then snuffed out too soon when they get the hem of their ball gown caught in the escalator and are crushed to death - much too young, but at least still handsome.

The only reason they want to see the 'gay marriage' bill passed at all is so that the state will then command the rest of us to see them as 'normal'. They don't want to actually be normal; that would never make them happy. But they do want the rest of us to see them that way. In a strange way, they are like that Beta male I cut in front of at the 35W exit. That Beta would like to be an Alpha male - at least at that moment. But he doesn't want to take the risk, or be seen as rude when he cuts in at the front, or live with all the discontentment that comes with Alpha male life. To his credit, he's reconciling himself to the trade-offs and choosing a life of contentment instead.

In the same way, the gay man in the ball gown doesn't actually want a job in middle management, an unattractive but loyal and loving wife, and a 1/4 acre suburban split level. But he wants the rest of us to believe that he does. And he's unwilling to recognize that he's got to sacrifice that sense of 'average-ness' in order to have his "fabulous" life. (You go girl.) The truth is, if we were to give him the thing he says he wants, it wouldn't really make him happy. And he would then only look to destroy some other tradition of ours.

In 2012 America no one will tell a gay couple that they can't live together, or sleep together, or adopt children and raise them together. They can love whoever they like on whatever terms they choose. In fact, they can already pursue all the things that give life meaning, but they don't really want to. What they want is for the government to force the rest of us to call them normal, even if they choose the ball gown and wig over the suburban lot and the job in middle management. And I don't see that happening, on this or any other planet.

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I'm not always amazed when life confirms my thesis on a subject, but this is a little quick even for me. (I saw it for the first time AFTER I wrote this piece.)

Monday, June 25, 2012

- The Euro Virus is Spreading


Seed Pods? No ... Euros!
Ok, we saw is coming.  Cyprus needs a Bailout. That was last week. Today - Fitch cut Cypress to Junk. I'd link my BB terminal on this if I could, but you'll have to take my word for it.
So no big deal... Right? Not unless you are a Cypriot looking for a lifeline. The gall is that certain ECB and EU upper-echelon players are shrugging this off as a "so what" moment. Arrogance.
Spain asks for formal bailout. Sure - now we have terms!

So the Bailout Tally looks like this so far (in Euros):
Portugal: 85 Billion
Ireland:  113 billion
Greece:  300 billion
Spain: 100 billion (looking more like 165 billion)
Cyprus: 10 billion


Italy could need 1 trillion (and no one is talking about it...)
France is in the same boat as Italy, but France doesn't have the same problem. France is like combining Greece and Italy. France wouldn't matter because if Italy goes then Europe goes.
France and Belgium have taken on the toxic debt of Dexia bank through joint nationalization. They have no plan and its been speculated that they have been sitting on the debt waiting for a moment to dump it (that'll be a long wait) or they have been repackaging the debt back to their Euro Buddies.
The Bail-Out mechanisms are getting depleted. If the they decide to leverage the fund with good ol' Euro debt (face it - it's all toxic), then they will need to induce vomiting immediately.
Germany is not immune and has been obscuring a little "problem" of their own. Back when the wall came down, the re-unification brought on a huge debt problem for new Germany. The Eurogroup then said they would "look the other way" if Germany did them a solid - Join the Monetary Union - thereby castrating the bundesbank... (That didn't work either, but these silly Eurocrats are a stubborn lot!)
The Tragedy of the Euro explains a lot of this mess.

Be warned. The virus has been carried to all parts of the Globe thanks to Spanish Banks (they are everywhere). It is similar to the Sicilian Merchant ships spreading the Plague, where we have Spanish Banks in every corner of the world... I wouldn't be surprised if there is a Santander branch in Antarctica! Possibly a good reason why China has been sidelined...
Next thing is a full blown credit crisis...
The result of the system : Everyone gets bailed-out. The Bailed-out countries get to host Cristine Lagarde for lunch after she is done tanning... No reprieve for the sinners - but we'll see as the Squeaky Greek Wheel is still getting the grease!

As far as the system is concerned - Nigel Farage has been correct :
And in case you had missed it: whenever someone mentions the wonders of the Euro Leaders and how special they are, Nigel Nailed them from the get-go. Europe - you can never be America Junior because we ELECT our idiots to office rather than "accept" them by fiat.

Saturday, June 23, 2012

- Fast and Furious in a Bleak House



I have written before about the general shape of the executive deliberative process and presidential communications privileges.  I suppose this is timely because the unctuous weasels now telling us what Fast and Furious is “really all about” will be congratulating each other this week about the historic coverage of the Watergate scandal. What I have written here will seem a lesson in useless picayune procedure.  Nevertheless, I hope this will show how the parties or the court may employ procedure to delay or even completely push an issue off to the side where it dies a death of neglect. 

The U.S. Court of Appeals upheld an order that President Nixon supply tapes of his conversations in response to a subpoena issued by grand jury investigating crimes in Nixon v. Sirica, 487 F.2d 700 (D.C.Cir. 1973). Special Prosecutor Archibald Cox convinced the grand jury to issue the subpoena, which the President resisted in a letter made public to then Chief Judge Sirica. Prosecutor Cox filed suit in the US District Court seeking to enforce the subpoena. In response, the President filed a Special Appearance, which formally asserted his executive privilege claim. The Court allowed the special prosecutor to submit a briefing, which was a "well-documented and imposing” exposition of evidence, including conflicting testimony of presidential aids before the Senate, which created an inference of perjury. 

The Court rejected the President’s argument that it was, “His responsibility, and his alone, to determine whether particular information falls beyond the scope of the privilege.” Rather, the Court accepted a “presumption” that certain presidential communications were privileged, based upon the public interest and separation of powers. However, it found the presumption yielded to the power of a grand jury to investigate crime, once prosecutor Cox demonstrated a particularized showing of need.  

The procedure the court set filtered out all material not responsive to the grand jury’s showing that the evidence it sought was directly relevant to its deliberations.  Only after Prosecutor Cox made such a showing, did the court require the President to submit the subpoenaed evidence to the court. At this point, the court alone would review the evidence “in camera,” while considering specific arguments of the President that information unrelated to the Watergate inquiry, covered by state secrets privilege or so intertwined with irrelevant issues, "may be excised so that only unprivileged matter goes before the grand jury." 

In the years following, the courts have pierced executive privilege in civil cases, as well as in to criminal probes. As the procedure has generally developed, the party seeking information must carry a burden of showing that it has a particularized need for certain information, which it cannot get from any other source. Only then will the executive be required to come forward with a formal invocation of privilege.

The power of Congress to pierce executive privilege in court is yet a different story. Congress has a limited but constitutionally rooted right of access to the information it needs to perform its Article I legislative and oversight functions. As such, William Rehnquist opined, as the Assistant Attorney General to President Nixon, that executive branch witnesses whose sole responsibility is to advise the President should not be required to appear before Congress at all. While this may be so for some officials, others administer departments or agencies established by Congress, which as a result may require testimony, subject to claims of privilege. Notwithstanding, the U.S. Supreme Court has not squarely determined when the executive may use privilege to thwart a Congressional subpoena.   

The vindication of executive privilege must be tested following procedures to compel testimony. Upon being met with an executive failure to comply with a subpoena, Congress may invoke its inherent contempt authority, which involves a trial at the bar of the Senate or House. It also has a statutory remedy under 2 USC § 194 to refer a certified statement of facts under the seal to the United States attorney, whose duty it shall be to bring the matter before the grand jury for its action. 

There is yet a third and more likely alternative.  Congress referred such a contempt matter to the US Attorney, when on February 14, 2008 it found that Harriet Meyers and Josh Bolten declined to respond to a subpoena seeking information about the resignations of certain U.S. Attorneys. The day following the referral, however, the US Attorney declined to take up the case. The Committee then filed suit in the District Court on March 10, 2008 seeking declaratory relief. 

The District Court later ordered Ms. Miers and Mr. Bolten to produce all non-privileged documents, to provide privilege logs describing any documents not produced and that Ms. Meyers was to appear before Congress to testify about matters not subject to executive privilege. The DC Circuit granted an appeal, to decide whether the procedure ordered by the District Court required disclosure of privileged information. However, the court declined to address the matter on an expedited basis, noting that 110th Congress ended on January 3, 2009, the date its subpoenas will have expired. In this way the Court, which included Ruth Bader Ginsburg, expressly provided the “benefit of permitting the new President and the new House an opportunity to express their views on the merits of the lawsuit.” 

So there you have it. Justice delayed is justice granted.  What better way could there be than for Fast and Furious to disapear into a mind numbing array of procedural gobbledy gook:   

This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit.

-Charles Dickens, A Bleak House

Friday, June 22, 2012

- Still Not Funny

But I do kind of ask myself why Carolyn Maloney, an idiot congresswoman if ever there was one, is being asked to comment on this story by the Dem leadership.

She was originally elected on a one issue platform of banning all firearms after her husband was killed and her son injured in the LI Railroad shooting. Since then she has been a one issue congresswoman dedicated to the bureaucratic elimination of the Second amendment. But for the fact that's she's proven so ineffective (owing I think to her blatant and obvious stupidity) she would be the most anti-gun politician in the Republic.

And she's who they picked to comment on this "Fast And Furious" issue for the Dems. Curious.

In the meantime, Jon Stewart still sounds like a whiny kid attempting condescension, even when he's saying things I like to hear him say. I just don't find the guy funny at all.

- The Most Arrogant Man In The World

We kid my buddy Jose, because he looks, sounds and acts like a younger version of the Dos Equis "most interesting man". On my phone right now is an exchange between by buddy Tim and I where we explain to each other that Jose's blood smells like cologne and a full third of his body weight is made up of gravitas. But I think this ad works too.

Stay ignorant my friends.

- Understanding "Operation Twist"

I want to explain something about operation twist, but first I have to explain some terminology.

We on the institutional side of the financial markets tend to talk and think about finance differently than the people who deal with retail investors. We have our own language of sorts. And since the people we talk to know about as much as we do, we end up using terminology that amounts to abbreviations that retail people don't typically recognize. If you pay attention to the financial centric posts on this blog you might see Ikaika and I doing it a bit.

Finance itself has a lot of words which mean something in that context that they don't to the general population. And that leaves us saying things to each other which sound like nonsense to others. If I were to discuss a "forward - forward" for instance, some readers might think I was stuttering. Or if I talk about an "implied option" or some other "implied derivative", it all sounds like I'm not talking about an actual thing", but I very much am. And one other word which is very commonly misunderstood is the way we use the term "duration".

Duration is a way of referring to interest rates and the dollars received from a bond or a portfolio of bonds. We use the term to help describe the sensitivity of those bonds to a change in interest rate (actually the interest rate curve), which in turn helps us to manage the risks associated with the portfolio. In a broad and simplified sense, to have a higher 'duration' is to have a greater sensitivity to interest rates. So it would be sort of correct to say that Duration describes the 'substance' of a bond portfolio.

So here's the thing about operation twist that I don't think retail investors understand. If the Fed buys long term debt and issues only newly printed dollars, it's called "monetizing debt". People understand that and don't care for it. But suppose instead the Fed buys long term debt and then issues 3 month debt instead of dollars. Is that monetizing the debt? The answer is, mostly yes. The "cash" has a duration of zero. Rates can change in any way and it's still going to be worth a dollar. Short term debt, in this environment has a duration of almost zero. So the Fed is almost doing the same thing, except they're giving it enough political cover so the Maxine Waters' of the world and her like in Congress don't see it as a political issue.

Think of it this way, suppose the Fed bought Ten Year Treasuries and issued 1 day debt in an equal amount instead of the three month debt it's using in operation twist. Then tomorrow that newly issued debt would be converted to "cash". Most people get that this would be "monetization". Suppose then they kept rolling it over in greater and greater amounts so it doesn't show up as a difference on the balance sheet. How different is that? In terms of duration, it isn't different at all. It's exactly the same thing. But for some reason the retail market doesn't see that.

Now some caveats. I'm not saying that retail investors are stupid, they aren't. Their knowledge is just more diverse than ours in the institutional business, so the abbreviation of principles isn't as effective. I'm also not saying that this extremely simplified example I'm offering tells the whole story - it doesn't. But I do think it conveys the general principle as it's understood by the institutional side of the business.

Operation twist may seem politically like all is well because the Fed "isn't expanding its balance sheet". But in fact the duration of the Fed's portfolio is changing dramatically, and the duration available to the open market is changing dramatically too. It's monetization (or QE) by another name, covered in a way to slip it past congress and the idiot financial press. And to the disbelief of many of us on the institutional side, everyone seems to be falling for it. It's so obvious to us that it almost doesn't seem worth mentioning. But the press, the public, and especially the poltiicans, all seem to have been fooled.

Thursday, June 21, 2012

- Annuit Coeptis



I see two different shapes, as I conceptualize the forms for executive privilege that are all over the news. The first shape is a block of Swiss cheese and the second is pyramid floating in the air.

The deliberative process privilege allows the government to withhold information such as advisory opinions, recommendations and deliberations that form the basis for a governmental decisions or policy, so that fresh ideas from public servants will not be limited by fear of later public scrutiny. It does not extend to purely factual material. The withheld material must be "predecisional," meaning generated before the agency using the material adopted the policy or made a decision.

The deliberative process privilege is “conditional,” meaning that it can be overcome by a showing of need, which the court will examine on a case by case basis by considering “the relevance of the evidence,” “the availability of other evidence,” “the seriousness of the litigation,” “the role of the government,” and the “possibility of future timidity by government employees.” The Court routinely pierces the privilege where the information may shed light on government misconduct, because the purpose in shielding internal government deliberations to promote a public's interest in honest, effective government does not exist.

A block Swiss cheese is the right shape for deliberative process privilege. It is full of holes, melts when it gets hot and you can have it for lunch.

The presidential communications privilege provides a President and those who assist him the freedom to explore alternatives in shaping policies and making decisions in a way that may be unwilling, except to express themselves privately. This privilege is conditional as well, as former President Nixon learned the hard way. It may be pierced in a lowly civil action that alleges conspiracy among high officers of government to deny a class of citizens their constitutional rights AND (a big "and") where there has been sufficient evidentiary substantiation to avoid the inference that the demand reflects mere harassment. Where a litigant has carried this burden, the Court will conduct an in camera review, Judge's eyes only, and consider any argument by the President that the disclosure should be narrowed, before ordering the disclosure.   Thus, the presidential communications privilege crumbles when used as a shield against credible claims of misconduct.

The presidential comunications privilege covers factual information, to serve its underlying interest to ensure that presidential advisers provide knowledgeable and candid advice, which would be chilled, if public scrutiny included disclosing "what was known when." It likewise extends downward from the President to his advisors and to those from whom they “solicited and received” information, because advisers must rely on staff to investigate an issue, and formulate the advice to be given to the President. It applies, however, only to information that served to advise the President, and not, I would presume, to communications between Clinton staffers that pried "W" keys off keyboards just before they left the White House. So much like the translation of annuit coeptis on the Great Seal, presidential privilege applies where, “He favors our undertakings.”

The presidential communications privilege is like a stone pyramid floating in the air. It is tough to crack and you can’t figure out what’s keeping it up there.

Here, as far as I can tell, the Obama Administration decided to invoke decisional process privilege. As far as timing, the full house will need to vote whether to find Attorney General Holder in contempt. Next, the House will need to refer the case to the U.S. attorney for a criminal prosecution for contempt of Congress. The U.S. Attorney will likely decline the case because the administration invoked privilege. The House may then file a civil suit to enforce the subpoena.

The District Court will then begin its ad hoc process of slicing the Swiss cheese, to see where the holes fall and what information gets through. This will take time. As I see it, more time than before next November. So Fast and Furious will amble off to the Courts, where the Justice Department can litigate, and delay and pour as much cold water on this as they can.

- Hold On To Your Klan Robe And Hood

This ought to get your blood boiling.

I find this offensive at a level so deep I barely know how to respond. It's completely insulting in virtually every possible way. Beyond that, I can't even write a serious criticism of it. It's simply too ridiculous. It might be different if there were a single true word in it, but there isn't. It's as nonsensical as telling people you're the king of Siam.

These people have taken liberalism to it's logical and inevitable end, and since they have, they now belong in a mental institution.

- Even The KlansMen Aren't Racist Anymore

This is a breathtaking announcement. Charles Barron (shown above without his orange jumpsuit) former Black Panther, has been endorsed by none other than David Duke, former Klan leader. This is who we have in politics now. Former Black Panthers and Former Klansmen.

While I am thrilled that the "everything you white people do is because of racism" view has obviously been taken down a peg, I think I'm more disgusted than anything else.

By any reasonable estimation, both of these people are reprehensible human beings. And yet, in 21st century America, the word we have for someone like that is "political leader".

- The "Assault Weapons" Of Fast And Furious

It might have been some bureaucrat trying to make lemons of lemonade, but it has been documented that at least part of the motivation for the "Fast And Furious" ATF debacle was the Obama administration's desire to bring back the federal "Assault Weapons Ban". So they had been making the absolutely false statement that 90% of the guns in Mexico's drug war were being bought legally in the USA. At one point, the Obama administration even went so far as to support an ill fated piece of incremental legislation to force legal gun dealers near the border to report multiple purchases of long guns. Nothing came of it.

In the meantime though, even the people on the pro gun side of the debate are talking about how "Assault Weapons" were sold to "straw purchasers for the drug gangs" at the ATF insistence. I guess it's a small issue, but I take some exception to that characterization. Assuming that all the guns were really purchased from legal gun dealers, then none of these weapons were 'automatic weapons', none were "machine guns", and none were the dreaded "Assault weapons".

I don't know how it is that people who ostensibly write facts for a living, manage to still always get this wrong. But as far as I can tell it's a universal error. Surely someone somewhere in Journalism school must have gone hunting as a kid? Surely someone must have been in the military, or at least had a family member who did and can instruct them. But still they "ALL" seem to get it wrong, every single time. So for the umpteen millionth time, let me explain to both our friends and enemies in the press, how guns really work.

An "Assault Weapon" is a weapon designed for military use, which allows more than one bullet to leave the barrel each time the trigger is pulled. This is a very simple principle. After the trigger is squeezed, the bullets leave the gun "automatically" without the shooter doing anything new. There are two groups of "assault Weapons", called "select fire" and "full auto". But the truth is, that's a trifle that I only have to write because there are so many "know it alls" in the firearms community who insist on muddying the waters with irrelevant detail. If the only thing the press knew was that an "Assault Weapon" is an "Automatic Weapon" or a "Machine Gun", they'd be much close to correct than they are now, and I'm sure virtually everyone would let them slide on the differences.

Now here's another confusing thing the press always screws up. Although there are extremely limited circumstances under which specially licensed people are allowed to own an "Assault Weapon", virtually no one in America does. It's close enough to say that "Automatic Weapons" or "Machine Guns" or "Fully Automatic Weapons" or "Assault Weapons" are illegal for US citizens to own. They have been illegal (except in those extremely rare circumstances) since 1933, and none of the more recent laws which had the words "Assault Weapons" in the title actually apply to any "Assault Weapons".

The thing the "Assault Weapons" bans actually referred to was "Semi-Automatic" weapons, not at all unlike your grandfather's Deer rifle. The only difference was that it applied to those weapons which functioned just like any old Deer rifle, but had the general appearance of a military style weapon. This doesn't make them work that way, and the law didn't pretend they did. The law banned cosmetic features like "Flash Hiders" or "Bayonet Lugs". But it didn't have to make actual "Assault Weapons" illegal because they had already been illegal since 1933.

As a parallel to understand the principle, it's as if those laws didn't make it illegal to own a Ferrari (which was already illegal), they made it illegal to have your car look like a Ferrari. Appearance was all that it restricted. This is why we in the firearms community always thought they were such stupid laws, and why I (for example) legally own both an AK47 and an M16, even though NJ still has an "Assault Weapons" ban.

So to get back to the topic at hand, the only weapons which could have possibly been sold during the "fast and furious" debacle, were not "Assault rifles" at all but "semi automatic" rifles, which work no differently than many "Deer rifles". That is simply a fact. And I know this is so because they are the only ones which civilians (even civilians buying them for redistribution to the drug cartels at the ATF's insistence) can buy. You cannot walk into a gun shop, or a gun show, or anywhere else in America and buy a machine gun. Period. Contrary to what those pathological liars in the anti-gun movement have told you, it simply will not happen.

I've written this so many times now that I have honestly lost count, and I'm not the only one. Thousands of 2a activists have been telling this story for years, and the press still keeps getting it universally wrong. So let me try a new tack. I'll put it in terms so direct that even Gail Collins can understand it.

An actual assault weapon goes "click, Bang, bang, bang, bang, bang, bang, bang, bang, bang... all on its own. These are already illegal and have been for over 70 years. While the weapons declared illegal in the "Assault Weapons Ban" go click Bang, click bang, click bang, click bang, click bang, and they stop shooting on their own if the shooter doesn't pull the trigger again. These are not "Assault Weapons", even though the law that restricts them says they are. Even a five year old can get a handle on it like that I think.

And while it may not seem like much of a difference to a typical terrified New York Times columnist, I assure you, there is a very big difference to both the person firing the weapon, and the person having it fired at them. Wars are fought with actual assault weapons for a reason. And they were made more or less illegal for civilians in 1933 for the same reason.

Surely it can't be that 100% of the journalists in America are too stupid to figure that out.

- Understanding Nixon And Obama

I've got to confess I find myself in uncharted intellectual waters today. I'm sitting here wishing I knew more about Richard Nixon.

Nixon was a Republican, but because of the end he met, we conservatives tend to block him from our collective memory. He wasn't one of us. He held a general mistrust of the free market, and would find many of the ideals of today's Republican party fully misguided. He had probably never even heard of Milton Friedman, and thought that Ronald Reagan was a lightweight. He was a great lover of top down economic policy, wage and price controls, and was an absolute political hardball player.

They say he was the smartest man to ever sit in the oval office - as if Lex Luthor had won the Presidency. Had he been President today, he wouldn't have killed Osama bin Laden. Instead he'd be in a basement cell in Guantanamo while G. Gordon Liddy worked on him with a blowtorch and a pair of pliers. But Nixon would have probably told all of us that he's dead anyway. And he'd have giggled into his morning coffee every time Liddy sent him a severed finger along with a new map of terrorist outposts in Pakistan.

In short, he was a lot like Obama. He had a political enemies list like Obama. He waged war behind the scenes using the CIA and hit squads like Obama does. He'd have certainly used drones had they been invented in 1968, and wouldn't have lost a moment's sleep over the ambiguous legality and secret sins of the 'war on terror'. And it looks very much like they now have one more thing in common. It looks like they have both used 'executive privilege' improperly.

I don't know anything about this really - hopefully Frithguild is having a slow work day and is off in some dark corner somewhere crafting a post to explain to us all how the supreme court case, US v Nixon applies to this situation. But Mark Levin had a few things to say about it yesterday while I was stuck in traffic. He seemed to think (I'm sure you'll find this shocking) that Obama has stepped over some important legal line and has opened himself up to the same consequences which Nixon inevitably saw.

I have no clue. It's all outside my expertise. I'd like to be rid of Obama and his people because I think they're harming the Republic. I think it's at least possible that some law was broken, and I think it would send a useful signal to other would be tyrants to throw someone in jail. But in truth, all this discussion has left me feeling like the guys at my gun club do when I start trying to explain to them that "corporate greed" isn't really a problem at all that the only chance of getting the banks in line is to give them less regulation.

The law follows a trajectory that is within reach of logic, but is not defined by it. And the intersection of the law and politics is an even more crooked road. It's all beyond a simple tradesman like me.

So I find myself sitting here today wishing I knew more about Richard Nixon, in the hope that it would help me make sense of this and chart some future progression. I think it'd be a shame if Obama just loses the election and all things are sort of forgiven and forgotten. And there is a dead guy's family in Arizona who almost certainly feels the same way I do about it.

- Worth 1,000 4 Words

Wednesday, June 20, 2012

- Furiously Fascist


Executive Privilege Blocks F&F Doc's
Thanks to Drudge, we get all these headlines and links and even a little "blast from the righteous past!"
See the video when candidate Obama ruefully disdained the Bush Administration's reliance on privilege.
Well, what's good for the goose is good for the gander...

"I write now to inform you that the president has asserted executive privilege over the relevant post-February 4, 2011, documents," Deputy Attorney General James Cole wrote in a letter to Issa made public just before the committee meeting was scheduled to begin Wednesday.
"We regret that we have arrived at this point, after the many steps we have taken to address the committee's concerns and to accommodate the committee's legitimate oversight interests regarding Operation Fast and Furious," Cole's letter continued. "Although we are deeply disappointed that the committee appears intent on proceeding with a contempt vote, the department remains willing to work with the Committee to reach a mutually satisfactory resolution of the outstanding issues."
Grassley says:
“How can the president assert executive privilege if there was no White House involvement? How can the president exert executive privilege over documents he’s supposedly never seen? Is something very big being hidden to go to this extreme? The contempt citation is an important procedural mechanism in our system of checks and balances,” he said.
Mr. Issa, Mr Grassley, Please proceed with the contempt votes. The sooner the better.

- What I Think "Executive Privilege" Means

As is often the case when considering the actions of those in government, I find myself a little confused. I'm not sure what it means that President Obama has invoked "Executive Privileged" in support of Eric Holder's stonewalling on the "Fast And Furious" ATF debacle. If the WSJ piece I linked the other day can be believed, then in this case it's a signal that Eric Holder (or maybe even Obama) really does have something to hide. In which case there is all the more reason to begin immediate prosecutions all around.

The thing I'm confused about though, is that apart from an outright refusal to allow Congress to have the evidence to hang them with, I don't know what team Obama's refusal actually means. If it's a blatantly political act, then by all means, let's break out the lawyers and handcuffs and begin the trial. But if they have some other justification however transparent or threadbare, I'd very much like to hear it. I can't even imagine what excuse they can contrive.

I could be dead wrong about this, but from where I sit, this looks like yet another delaying tactic. But at this point I think the truth will out on this case eventually. There doesn't seem to be any avoiding it now. And since the stakes have just been bumped up so high, I hope Darryl Issa and his committee are going to go for broke.

From my desk, it looks very much like hundreds of innocent people have been killed (at least one of whom was an American Border Patrol agent) because Barak Obama and Eric holder wanted an excuse to bring back the useless "Assault Weapons Ban". They so despised the fact that Americans have the right to defend themselves, that they were willing to see thousands die to complete just a part of their goal. And if that turns out to be the case, they deserve to go to jail for their reckless disregard for human life.

If I'm making an error here guys please correct me. But this is how it looks to me.

- On The Bleachers




This quizzical AP piece caught my attention day before last because one reporter echoing the story changed “full speed” quote to “ramming speed.” So I got to think about one of my favorite pictures of all time – the Deathmobile emerging from the multicolor smoke bombs. The AP piece is sinking beneath the news flow sediment, except for an interview with the articulate and left thinking Gerry Connolly. These show a glimpse of the general shape of the administration spin and media coverage that will follow when the Supreme Court cuts the commerce clause cake.   

The AP piece relies on a “leading Democrat familiar with the administration's thinking” and “a high-level Capitol Hill staffer,” who said that, in the event the Supreme Court finds the individual mandate unconstitutional, but severable, "Legislatively we can't do a thing, and we are going to move full speed ahead (with implementation)." No big deal, really. 

The reporter goes on, however, to provide some unattributed analysis on the commerce clause argument, which I think is spin originating from the sources. It casts conservatives as rigid ideologues: “Opponents say the requirement that individuals have coverage is unconstitutional, that the federal government can't tell people to obtain particular goods or services.” It then portrays statists as intelligent problem solvers: “Supporters say the mandate is a necessary component of a broader scheme to regulate health insurance, which is well within the powers of Congress. By requiring people to carry health insurance or pay a fine, the law seeks to broaden the pool of people with coverage, helping to keep premiums affordable.” The statists score first by defining the argument.

Connolly was a great choice to clarify the rest of the gibberish in the AP piece. He believes passionately that expanding the state will best serve the underserved, he understands the law and he speaks well. He concludes, as have I, that Obamacare cannot stand in its entirety without the individual mandate.  He is poised to say that if the Court finds no constitutional power to compel the purchase of insurance, “One of the most partisan courts we’ve had since the 1930s” illegitimately “second-guess[ed] the legitimate decision made by the elected representatives of the people,” which is biggest mistake since Plessy v. Ferguson, where the Court allowed slavery and Dred Scott v. Sandford, which “actually nullified the Missouri Compromise, and it led directly to the Civil War.” He went on, “I would hope he [the President] would criticize the Supreme Court for such a radical intrusion in the constitutional role of the Congress of the United States.” I have to admit, I didn’t see the race baiting part of it coming. Hat tip to Mr. Connolly and score 2 for statists and 0 for the forces of liberty. 

I am not foolish enough to think that the media will give air to the present Romney campaign thinking about how to portray the loss of the individual mandate. We know Mr. Romney has said the entire law should be repealed, which sets up cloaking himself in a mantle of correctness. Perhaps he will say that without Obamacare, the lights will stay on at old jobs, a message that well targets battleground states. Perhaps the markets will show evidence before November that a gigantic weight on small business has been lifted. I just hope that the Romney campaign doesn’t stay on the bleachers too long, so it ends up on the ground making use of Marion Wormer’s other thumb. 

- Isn't It A Little Early For Outright Distortion?

I don't know if you've been following this piece of selective editing that happened over at smug condescension central, MSNBC. It seems Andrea Mitchell had a piece of Romney tape edited to make sure it seemed like he was having an "out of touch" moment, when really he was marveling at the difference between the private and public sector.

I'm not surprised that the left does this sort of thing. With as little as Team Obama has going for them I expect much dirtier tricks than this before it's over. But it does seem a little early in the game to be reduced to such a transparent and easily refuted distortion doesn't it?

Anyway, here's the comparative video:

BTW, I wonder if Andrea Mitchell has EVER been in a Wawa along the roadside in Pennsylvania. I have, and I actually think the Wawa sandwich maker is pretty cool. It's certainly much cooler than the 8 SEIU employees and 4 department supervisors it takes to make a sandwich at the Federal Bureau of sandwich regulation and condiment oversight.

- Know You Enemies, And Your Allies

Here is an interesting piece from Jonah Goldberg regarding the "demise" of the Republican party that liberals have been talking about... basically forever. It's a thoughtful and interesting piece which raises some points worth considering. It's well written and is everything that you would expect from a Jonah Goldberg piece. But it's got me thinking again about who Jonah is, and what he's actually saying.

Don't get me wrong, I'm a fan. But having read his work for some time now I'm finding some issues that leave me a little uncomfortable. Take for example his depiction of "compassionate conservatism". He said a lot of things about it during the Bush administration, as everyone did. But at the time his main point when it came up was that "It was the issue George Bush ran on, so we got what was advertised." This was true of course. But now that it's over, all of a sudden Jonah seems much more comfortable criticizing it than he ever was at the time.

Maybe that's a smart path to take. Maybe it's the way that Jonah remains most effective as a commentator. I don't mean to imply some hypocrisy on his part. I don't think he really feels any differently about 'compassionate conservatism" now than he did at the time. But I do think that he's very careful - one might even say, calculating, about how he presents his views. And in my experience the only people who guard their words as carefully as that are politicians. I don't trust the words of politicians, and more and more I'm finding that I don't trust Jonah Goldberg's words either. I feel like he's leaving the most important parts of what he feels, unsaid.

I'm sure some of this has to do with the way John Derbyshire was unceremoniously cut from the ranks of National Review. There was a lot of objectively verifiable truth in John's piece that NR found so objectionable. And I think a great opportunity to change the political dialog was lost when they knuckled under to the race baiting lobby and decided to toss that baby out with the bathwater. I think that was an unprincipled position to take, and since I'm raising a similar issue here, I'm probably just making some unconscious connection.

But none the less it's got me feeling... how do I say this... sort of ... un-trusting. It's got me wondering what other conservative truths that Jonah will find "indefensible". It was not his decision to fire John, but it was his decision to personally disavow him. And given that, I find I can't help but wonder what the next lump of truth is that Jonah will abandon because the left is angry about it.

Jonah is a smart cookie. It's quite likely that he quickly surrendered on this particular battle in order to keep fighting the war most effectively. I don't impugn his motives, which I couldn't hope to understand. But the fact that he wasn't there covering the conservative flank, like it or not, has left me feeling like he can't be relied upon. And that's the first thing in my mind lately every time I read his work.

Tuesday, June 19, 2012

- Dear Governor Christie...

You strike me as an intelligent and clear thinking man. I know from your past actions that you are not a man who is inclined to pretend that the world works differently than it really does. You have a history as NJ's Governor, of facing down problems rather than shirking from them or playing political 'pass the buck'. And I think you've done your best within the limits of your principles, to make things better for all residents of NJ.

And since that's so, I think new evidence has become available which should compel you to modify one of your past positions. The evidence I refer to is contained in this FBI study which indicates that as gun ownership rises, crime (particularly violent crime) falls.

I'm a NJ resident and a firearm owner. Which is to say that I've already demonstrated that I am a responsible and law abiding citizen. Beyond that, I'm also a business professional, a husband, a father, a homeowner, and a man with deep roots in the community. And I don't believe I'm terribly different from any of the other law abiding residents of NJ who have an interest in exercising their rights as guaranteed by the Second Amendment.

We are not "deranged psychos" one moment away from an inevitable killing spree. We aren't unstable or unpredictable. We aren't a hair's breath from an act of violence - quite the contrary. We are the people who build civilizations not tear them down. We are the the steady rock upon which our civilization is founded. And given the evidence referred to above, I think it's time for NJ's firearm laws to stop treating us as if we dangerous to others when it's increasingly clear that the opposite is true. Allowing people like me to carry firearms would increase the safety of others, not decrease it.

Of course, I'm willing to meet any reasonable requirement that the state may set to ensure that I am adequately trained in the responsible use of firearms. I'm willing to pay any reasonable fee (even a recurring fee) to compensate the state for its care in ensuring that I've met those requirements. But there is more than enough evidence to support the view that allowing steady responsible citizens like me to carry firearms actually makes all citizens safer not less safe. And since that is reality, I think you should change your position, and should now support my rights and the rights of others.

Almost every other state in the nation allows private citizens to exercise their right to carry firearms in their own defense. NJ's effective ban is an increasingly rare exception. Under NJ's current law a 'need' must be demonstrated to a judge, and NJ's judges have been notoriously reluctant to see such needs as valid. In the last 25 years there have only been a handful of private citizens who were allowed to exercise that right.

So for decades it's been all but illegal for NJ's citizens to exercise their rights under the constitution. This may have been done with the best intentions absent evidence, but that evidence now indicates that it's been to ill effect. And since precious few of our politicians are as clear headed about the real world as you are, I'm writing you this personal appeal.

I am not a 'villain'. I am not a 'nut'. I am not a danger to others in any way. There is no reason for anyone to fear me, irrational or otherwise. My only desire is to be allowed to exercise my full rights under the constitution. And since it's now clear that other NJ citizens would only benefit from my exercising them, I'm hoping you might serve all of our mutual interest, and help to make that possible in the future instead of standing in the way.

Thank You.