The King’s Prerogative

English: President Barack Obama's signature on...

English: President Barack Obama’s signature on the health insurance reform bill at the White House, March 23, 2010. The President signed the bill with 22 different pens. (Photo credit: Wikipedia)

We have talked several times about the rise of administrative law and it’s almost exact similarity with the King’s Prerogative. You can find those articles here, here, here, and one here at Jess’, nearly all of those articles also have links, if you’re interested.

Today we are going to speak of how the Obama administration and its Democratic sycophants are defending it. In the Affordable Care Act (ACA, Obamacare, and other less complimentary names), it states clearly and unequivocally, that to receive a subsidy one must purchase through an exchange established by a State.

In fact that was one of the major inducements included to try to force the states to establish exchanges. A majority of the states, being more attuned to the people than Washington is, refused. And the matter came to the DC court last week, which ruled that the words meant what the words said. That was what the Democrats had campaigned on back in the effort to pass the law, but now, they find it most inconvenient, since it means that many Americans will have to pay the full price of the overpriced, not very good insurance available on the exchanges.

So now, not understanding apparently, that we were listening (and that You-Tube exists) they are now saying that what they meant was an exchange established by a state or by the administrative bureaucracy of the federal government. Most of the administration, legislature and judicial officials owing loyalty to the Democratic party are supporting this nonsense, and some courts will no doubt rule accordingly. And so we are likely to end up at the Supreme Court again.

On Sunday Angelo M Codevilla wrote on the Library of Law and Liberty on this. Here is a bit of it.

[...]America has moved away from the rule of law in recent decades, as more and more of the decisions by which we must live are made by administrative agencies in consultation with their favorite constituencies and judges rather than by the people’s elected representatives. More and more, statutes passed by Congress are lengthy grants of power to administrative agencies, the content of which is determined by complex interactions between bureaucrats, special interests, and judges aligned with either. Hence House Minority Leader Nancy Pelosi’s famous statement—that the ACA’s meaning would be determined only after its passage—was true of it and most other modern legislation as well. This is the rule of men, not of law.

But the transition away from the rule of law has been masked by the (ever thinner) fiction that the administrators are merely filling in the interstices of laws. Were they to prevail, the administration’s arguments for casting aside the ACA’s explicit provision because it conflicts with its will and its clients’ convenience would mark the dropping of the mask. America’s transition from the rule of law to the rule of the sovereign, largely accomplished some time ago de facto,would now be fulfilled de jure. Openly, this President and his partisans would have trumped law by will. Thereafter, continuing to pretend that America lives by law would be a mockery.

The importance of this is difficult to exaggerate. The nation’s slide into something foreign to its past would accelerate.

Barack Obama is not the last President America will ever have. Sooner or later, someone will come into the presidency representing a majority of Americans who—rightly or wrongly—may be aggrieved by what they feel are measures that the previous administration and its partners have shoved down their throats. They may be eager to engage in retaliatory activity with lots of compound interest. The administrative machinery, the legal arguments, and the political precedents would be ready for them.[...]

You really need to read it all

This morning Robert Tracinski also wrote on The Federalist on this. He shows that this type of legislating is what we increasingly do. Here’s a bit of that:

[...]But the big question is: why do they think they can get away with this? Why do they think they can write something into the law, go around for a couple of years explaining that provision to audiences, and then pretend later that it wasn’t there at all and it’s patently ridiculous for anyone to think it ever was?

Partly this a measure of crass partisanship, and partly it’s a measure of desperation. Without the subsidies, what happens to ObamaCare? And without ObamaCare, what does their messiah have to show for his presidency?

But this also fits into a larger context. They think they can get away with rewriting the law on the fly because of the way we legislate now. For more than a century, it has become increasingly common for Congress to write laws that declare a broad, vague goal without clearly defining the specifics of its implementation—and then leave it to bureaucrats in federal agencies to fill in the blanks.[...]

Again, you should read his entire article

But the main takeaways here are that the legislative authority in our system is vested in the Congress, and only the Congress. One of the results of this mispractice is that Congress can evade their responsibility for what the legislation says, and simply blame HHS or EPA or whatever bureaucracy is concerned. That is not what the Founder’s intended. The bureaucracy (and the executive generally) were established to enforce the laws the Congress passed, essentially without comment, although it wouldn’t do any harm if the Legislative and Executive branches were to occasionally remember that they also have sworn to uphold the Constitution.

In truth this practice is not measurably different that The Statute of Proclamations (1539) that allowed Henry VIII to rule as a despot. This allowed the King to issue proclamations which had the force of an Act of Parliament.This essentially did away with the need for Parliament. And that is pretty much what we are seeing with Obama’s reliance on his “pen and a phone”. I should note that very soon after Henry’s death that Act of Proclamations was repealed, although all the way to 1689 English Monarchs kept trying personal rule under various guises.

This was one of the abuses that the Constitution was specifically written to prohibit. We’ve let it sneak back in, in the guise of administrative law.

Nothing new under the sun is there?

 

Three years of NEO!

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Three years ago this week Nebraskaenergyobserver made its debut on the Internet. So first, congratulations to my dearest friend Neo. Blogs are like Gibbon’s description of empires – they rise and fall and the sands of history cover them and their place knows them no more. It is, as I know myself, easy enough to start up a blog – it is the maintaining it which is the hard part. So, I think three years is something to celebrate.

Neo’s blog is a window on the world. He is part of an America which many of us admire, but which many foreigners (and quite a few Americans) never visit – the ‘fly-over States’. I spent a year in the mid-West twenty years ago, and retain a fondness for it and all it represents; this is one of the reasons I am fond of this place. It is redolent of American virtues: self-reliance; a sense of personal responsibility; but a willingness to do the right thing to help others, even at personal cost. You might say these are human virtues, and I would agree; but they are exemplified by the America which, at great cost, sustained the free world during the Cold War Years, ensuring that the gains from the defeat of Fascism were not lost. Neo, like many of his readers, has an admiration for the ‘greatest generation’ and a keen sense of patriotism. He is proud of America for what it has done and for what it represents. Other countries are countries – America is a dream.

That is why for him, and for so many, the past few years have been ones of grim realisation: realisation that, to use a Churchill quotation, our leaders have failed to ‘rise to the level of events'; we have great events and small men; nor is that a partisan political point; since Reagan and Thatcher the ‘free world’ has wanted a figure of stature.

As we look out from the prairie, the aspect is dark: the ‘Arab spring’ has given way to a winter of discontent, as the whole region is buffeted by the storms of radical Islam, a phenomenon which our secular, liberal elites fail to grasp; yes, these people really do believe women should be neither seen nor heard, they do believe in stoning homosexuals, and they will chop your head off. In Israel, the one democracy in the region is in a permanent state of siege, with only the US really supporting her; and across Europe, the complacency of a political elite is being rudely shattered by the realisation that President Putin is up to something and will not be stopped by being told he is being naughty. Super Powers may want to retire, but when they try, they may find themselves draw back from the plow.

In the meantime, America itself changes, and values which were once universal are relativised; social cohesion, always a difficult thing to achieve, is threatened; and faith in the rule of law is challenged by the rule of lawyers, in whom few place any confidence: the difference between a confidence trickster and a politician is that they both take your money, but only the latter demands you like him for it.

All of these trends Neo covers, but he also provides us with a great historical perspective, good company, good music and great movies, as well as a wry sense of humour which says that even if the world is going to hell in a handcart, it’s five o’clock somewhere – hence the clip – so join me in raising a glass to our friend Neo :)

Hobby Lobby, Obamacare, and Remedial Economics

English: Barack Obama delivers a speech at the...

English: Barack Obama delivers a speech at the University of Southern California (Video of the speech) (Photo credit: Wikipedia)

Well, I’m sure you know that the Supreme Court decided that a privately held corporation (defined as held by less than 5 people) can have religious beliefs. In fine it was decided that Hobby Lobby has the right not to provide, without cost 4 (out of 20) contraceptives. Their employees still can, of course, still obtain them, they just have to pay for them, as they have for twenty years. Those four act as abortifacients, which are defined as stopping a fertilized egg from implanting. It was a very narrow decision, not that you can tell from the absurd wailing and gnashing of teeth.

But what I really want to talk about today is economic theory. We are watching the greatest economic miracle in world history be subverted by a bunch of economic Luddites. I’m not at all sure that they are not full disciples of old Ned as long as they get to be the aristocracy. And that’s the difference as we’ll see here.

Let’s start with a superficial overview of world economic history. Here there really is a graph that looks like a hockey stick, unlike the charlatans of the ‘Church of Anthropogenic Global Warming’.

In case you missed it in the video, here is that graph again

Why then? Because of this

We’ve been hearing all our life how FDR saved the country in the Great Depression. He didn’t. He continued Hoover’s policies and even made them worse. What brought us out of the Great Depression was World War II, which you could make a pretty good case that the ‘great’ Progressive, Wilson, caused. Here:

Let’s bring it on down to now, and talk a bit about Obama’s policies

And do note that Bush played Hoover to Obama’s FDR quite well.

Just to bring us around the circle, here is what Dr. Sowell told us about Obamacare, even before it was passed.

The View From the North

Barack Obama, President of the United States o...

Barack Obama, President of the United States of America, with Stephen Harper, Prime Minister of Canada. (Photo credit: Wikipedia)

It’s important, I think, to occasionally take a look at how we look from the outside, especially how our friends, especially the really good ones see us. And who would be better friends that the Canadians? What are they seeing, particularly since so many of us admire PM Harper so much. So let’s have a look. The first article is from Colin Robertson of The Globe and Mail it’s entitled

Why Canada wants to feel more love from the U.S.

Living beside the United States, remarked Pierre Trudeau, is like sleeping with an elephant: “No matter how friendly or temperate the beast, one is affected by every twitch and grunt.” The twitching is getting to the Harper government and it has responded with a series of pokes.

A trio of senior ministers – John Baird, Joe Oliver, Greg Rickford – travelled to New York this month to voice what Stephen Harper calls our “profound disappointment” over the delayed Keystone XL KXL pipeline. Said Mr. Oliver: “This isn’t right, this isn’t fair.”

In Winnipeg, Agriculture Minister Gary Ritz accused the United States of behaving like a “schoolyard bully” over country-of-origin labelling.

Last week in Washington, Ambassador Gary Doer and MP Rob Merrifield delivered an invitation from House of Commons Speaker Andrew Scheer to Republican House Speaker John Boehner to visit Canada for discussions on KXL and other issues.

If the Obama administration wants further evidence that Canada deserves some attention it should watch the recent exchange between former ambassador Frank McKenna and U.S. Ambassador Bruce Heyman. “It’s like a marriage. It might be really good for you but I’ve got some problems,” said Mr. McKenna of Canadian frustration over KXL and financing the Windsor-Detroit customs plaza.

Canada-U.S. relations operate on three levels: international, intermestic and people-to-people.

Ours is a complex relationship that goes beyond the traditional diplomatic conventions. Supported by the hidden wiring of connections between provinces and states, business and civil society, it is usually a model for neighbourly relations.

In international summitry, President Barack Obama and Prime Minister Harper are aligned on the big-ticket issues of peace and security, banking and finance, even if they differ on approaches to climate change.

The people-to-people relationship is solid. Americans like us more than we like them. We share much in common, at work and at play, although beating Team USA at hockey is now our main Olympic goal.

It’s on the transactional level of trade and commerce that we have problems, with KXL top of the list. For Canada, KXL is i>the problem with the partner. For the United States, KXL is a problem with a partner.

via CDFAI – New From Colin Robertson.

If I’m honest (and I always try to be) I think he’s pretty much right on all counts

Daryl Copeland give us a Canadian view of the world. While I don’t completely agree with everything he says here, his view is certainly at least as valid as mine, and I think we should at least consider what he says.

Blowback: Iraq and the law of unintended consequences

Under relentless pressure from the jihadist movement Islamic State of Iraq and Syria (ISIS), the political collapse and territorial disintegration of Iraq in recent weeks has been striking. If this process is not reversed, the emergence of a radical Islamist enclave is likely to cause serious security problems for decades, both in the Middle East and beyond.

That has been the focus of most reporting to date. The big-picture implications are even more profound.

To be sure, the roots of the current crisis are complex and tangled. They can be traced back at least to the unravelling of the Ottoman Empire following the First World War, and the subsequent division of the territorial spoils by Britain and France according to the terms of the Sykes-Picot Agreement.

That said, and notwithstanding Tony Blair’s apparent amnesia, much of the current disaster appears directly attributable to the ill-fated decision on the part of the United States and its coalition allies to intervene militarily in Iraq 2003-11. As it happened, much of the “shock and awe” was reserved for the invaders. That colossal strategic error cost some $1.7 trillion, resulted in the deaths of over 150,000 Iraqis and 4,800 coalition soldiers and, together with the Great Recession, spelled the end of unipolarity — American international dominance.

While those costs are extraordinary, the longer term damage may prove even greater. The ISIS gains in Syria and Iraq may be only the beginning, and could give rise to further developments inimical to peace, progress and prosperity, both in the region and further afield. The obvious hazards are related to Islamic extremism, sectarian strife, civil war and ethnic partition.

Of even greater concern, however, is the continued militarization of international policy.

via CDFAI – In the Media

I think one of the key points here is that the world is seeing that the unipolar power structure that has held since 1990 is unraveling. It is doing so because America is letting it, nothing has really changed, except for the will of our government. If that is what the American people want (which I doubt, very strongly) then so be it. If it isn’t we need to start thinking about what we are going to do after Obama. We haven’t been thinking long-term we have been fighting a reactive (not pro active) battle against the administration, and that is why we’re losing. What are we for. Americans are an optimistic forward-looking people, we’re not known for being against things but for better things. We should be doing politics the same way.

What are we for; and will we fight for it?

Ahem: Bill Whittle & Louis XV

Sorry guys, my antihistamine keeps me from putting three coherent thoughts together, so here’s Bill Whittle and the comparisons between King Obama I and Louis XV,

Not One of Us?

At some point, we will have to decide the question. Here is Bill Whittle’s decision.

I’m pretty much in agreement. How do you see it?

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