Hobby Lobby

We don't have much to add to the hyperbolic cacophony of punditry that was released by the SCOTUS's Holly Lobby decision yesterday, but simply want to point out the following to keep our left-wing friends grounded to reality: 1) This decision leaves completely untouched the long-settled rule, first set forth in Griswold v. Connecticut, that the state cannot interfere with an adult's right to use birth control. Whatever the Chicken Littles at Mother Jones, the Nation, or the NYT try to say, nobody took away anyone's access to birth control. Rather, this decision deals with the very narrow issue of the State not being able to force a third party to pay for birth control against that party's sincerely held religious beliefs. (And although the grounds for the holding were statutory, we thought we heard something somewhere about religious liberty having some sort of constitutional protection in our jurisprudence? Oh yeah, it was here.); 2) This decision returns us not the Dark Ages or even to the 1960s, but the the status quo of 2012; 3) The average cost of most forms of birth control is between $15 and $50 per month, meaning that the issue here really is religious conviction, not cost or even access. Moreover, most employers will continue to cover this anyway, because a) most employees want it and b) it is far cheaper than pregnancy. This mandate was only ever really about forcing conformity, not about a legitimate public health need (and if there is a legitimate public health need, there are other ways for government to meet that need); and 4) This should be the ultimate fusionist issue, uniting libertairans and conservatives in common cause, unlike Griswold from a generation ago, which put libertarians in the liberal's camp.

Jeanne Shaheen, Shameless Rent Seeker?

We're not yet sure just what to make of the kerfuffle re a client of Senior New Hampshire US Senator Jeanne Shaheen's husband receiving $78,000 in federal stimulus money in 2009. As these things go, the sum involved seems trivial and it appears that no formal Senate rules were violated (although this sounds rather ominous for Shaheen: "The Shaheens declined multiple requests for interviews and would not answer most detailed questions about their investments and connection to the firm.") Either way, this story bears watching. However, whether Shaheen violated any particular Senate Ethics Rule, we think this much is clear: The appropriations process--particularly with the Stimulus Bill, but really, the whole federal appropriations process--sucks. The fact that these stimulus dollars, or some of them anyway, might have ended up in the pockets what the Boston Globe calls "a partner in one of the most politically connected law firms in New Hampshire" (see article, above) should make anyone serious about good governance sick. But in the end, whether Bill Shaheen specifically profited from this or not is beside the point, because people like him--lawyers, lobbyists, and the politicall well-connected--undoubtedly did and that is the real scandal here. We oppose Sen. Shaheen's reelection not because of her alleged shirking of Senate ethical norms (although, if proven, that should be the end of her candidacy) but because she voted for the Stimulus Bill in the first place and a million other federal boondoggles like it. Whether she herself (or her husband) participated in the rent seeking extravaganza is secondary to the main point: NH fusionists (conservatives and libertarians) have had enough of lawmakers trying to "fix" the economy by handing out taxpayer dollars to their friends. So please, let's send Sen. Shaheen to an early retirement. Not because she allegedly steered money to her husband's firm, but because she is a supporter of a system whereby steering federal monies to your friends is simply business as usual.

Marilinda Garcia for Congress

Fusionism is making it's first official endorsement of 2014: Marilinda Garcia for Congress in NH's Second Congressional District. Marilinda is bright, personable, well-spoken and committed to smaller, responsible government, a realistic and less interventionist foreign policy based on clear US interests, and a responsible, measured backing away from some of the more insidious aspects of the ACA. Her votes against the proposed casinos in NH seem to have less to do with Nanny-State regulatory instincts than with thwarting Concord Democrats' search for an all purpose ATM to grow government in the libertarian-minded Granite State. Although our impression is that she considers herself more of a conservative than a libertarian, it is also our judgment that she is the type of conservative that can and would do a lot to strengthen the conservative-libertarian alliance. An advocate of school choice (she was herself home-schooled), she seems like the type of politician that wants to see more hot-button cultural questions returned to the civil society where they belong, rather than having government "lead" the way on them, which is the basis of the fusionism conservative-libertarian detante (see here: And while Fusionism does not endorse identity politics of any kind, it cannot be denied that as a young, pro-life, Hispanic woman, Garcia's presence in Congress would go a long way to shatter many stereotypes about those on the right. Good luck Marilinda. We can't get Ann Kuster--the self-dubbed biggest Obama supporter in Congress--out of Washington fast enough.

IRS Email Scandal - Where's the Outrage?

Generally, I think conservatives are a little thin-skinned when it comes to media-bias. Yes, most of the major media outlets are all in the tank for the lefties, but the game of saying "imagine if our guy did that?" is a little tired, and often overblown. BUT, with that disclaimer out of the way: Imagine if our guys had done this! Imagine if in 2005-06 it came to light that the IRS had been targeting liberal groups in the '04 election for "heightened" scrutiny. Then imagine that a political appointee of Bush's at the IRS had "accidentally" "lost" all these emails. Maybe I'm wrong, and maybe it's my right-wing bias shining through, but I have a very hard time believing that we'd be talking about anything else. Which would be appropriate, after all. This is a horrible scandal, whoever is behind it. It's actually one of those things that is terrible on it's own, even if there was no mal-intent by elected officials because it shakes the very foundation of our First Amendment Freedoms. Do I feel like I am free to espouse my beliefs without fear of governemnt reprisal? Not really. I do this blogging on a semi-anonymous basis for a reason, you know (I can't even MAKE it fully anonymous, thanks NSA!). I run a business, and I don't think it's fair to my partners if our business is punished by elected officials because I publicly espouse "wrong" views. I'd like to run for office someday, but I've resolved not to do it until I either retire or sell my business. You might say I'm being paranoid, and maybe I am. But then a scandal like this comes along and seems to validate my fears. Big Brother really is watching and dolling out punishments for non-conforming views. But what REALLY makes it scary is not that it happened--I expect that, humans being fallible and all, this type of abuse is power is inevitable--but that all the Democrats simply yawn and say "so what"!! The chilling effect that this sort of abuse of power and the fourth estate's acceptance of it has on the polity is a story that has received almost no attention, even on the right. Make no mistake, the Bush Administration had it's fair share of power abuses too--I'm no great Bush apologist as you may have guessed--but at least when he overstepped his bounds there were howls about it from the major media outlets. It's the silence from the media about the IRS scandal that's the most upsetting. Even the coverage it DOES get--from the right-wing echo chambers--seems focused on political point scoring. I have not seen one story that focuses on the fallout that this sort of thing (along with the NSA spying scandal) has on people like me: civic-minded Americans who would like to serve their community in some capacity, but fear that by harboring political views out of step with theose currently in charge they will be singled out for harassment by government agencies. Even those who DO care about the scandal don't seem much to care about that.

Fusionism

Interesting piece at Reason.com today by A. Barton Hinkle. The article is about how the Catholic Church, while it infuriates the Right and Left at different turns, marches to the beat of its own first principles and is not particularly motivated by partisan concerns. But what jumped out at me was this one specific passage, which I think gets to the heart of why the conservative--libertarian alliance stubbornly persists, much to the chagrin of lefties who can't fathom what freak-flag-flying libertarians are doing still hanging around with fundamentalist bible thumpers. After comparing the Left and Right's political reactions to 1) the Church's frustration with the HHS contraceptive mandate (delighted Right, horrified Left); and 2) the "Nuns on the bus" shaming of Romney for his alleged lack of empathy for poor people (delighted Left, horrified Right), Hinkle makes the following observation:

This is all the more odd when you look at what each group of Catholics was trying to achieve. Catholic institutions that did not want to underwrite contraception for their employees were not forbidding those employees to use birth control. They clearly were not constricting the activity of non-employees. They were not trying to overturn the mandate for anyone else—and they certainly were not trying to outlaw the sale of contraception at the corner pharmacy. By contrast, the Nuns on the Bus and the bishops who objected to Ryan's budget proposals want the federal government's coercive taxing power to achieve their social-justice ends. They want the government to make other people underwrite programs that reflect their particular interpretation of the Gospel. That seems a far greater imposition of religious values on non-believers than a request simply to be left alone.

This, to me, gets to the heart of why liberals continue to miss the reason for the vibrancy of the de facto libertarian-conservative coalition. It's easy for libertarians to make common cause with--and empathize with--conservatives who want government to leave them alone. It's not so easy for them to to empathize with liberals who want to use the power of the state to coerce behavior. I'll admit that social conservatives often (wrongly in my view) try to use the power of the state to achieve ends that would be better pursued by civil society. However, when you go issue by issue, it's almost always the liberals that want leviathan to take up more and more of the oxygen that used to sustain our free society.

Obamacare Ruling

Of course I am disappointed by the decision, but I'm not surprised. I was predicting a 6-3 ruling upholding the mandate with Kennedy and Roberts in the majority. I had believed, like many, that if the conservative wing could not get Kennedy that Roberts would side with the liberal wing to "control" the opinion of the court, but never did I imagine that Kennedy would dissent while Roberts joined the liberals. That part makes it sting a little more, but honestly, I'm not shocked by the result. That said, there are a lot of silver linings, and here are some things I think that conservative-libertarians should keep in mind as we move forward: 1) There was a VERY fine distinction between the dissent and the majority opinion on the issue of the mandate. From the dissent: "The issue was not whether Congress had the power to frame the minimum coverage provision as a tax, but whether it did so." The fate of this decision rested on whether the mandate was a penalty or a tax, but how many of the dissenters would have joined the majority if it had been clear this was a tax? (we don't know for sure, because the dissenters do not address the issue of whether they would have upheld a non-insurance tax under Congress's taxing power, but it seems likely that at least one would have, given the breadth of that power in the court's jurisprudence). Given that, I think all the harrumph-ing about this case as establishing a broad new federal power is a little over-blown. I for one, don't much care whether Congress called the thing a penalty or a tax, because functionally, it amounts to the same thing. How, then, could we have seen it as a victory for freedom or limited government if the decision had said "sorry, it's a penalty, and hence you can't have it," when Congress could have done the same thing anyway simply by calling it a tax? Such a decision would have won the day, but would have left a clear road map for Congress reaching the exact same result via different means. Such a ruling would not have been a grand constitutional victory, but a narrow ruling striking this hideous bill, and leaving us just as exposed to Congress's massive tax power (as we have been for a century). 2) We did win on the Commerce Clause issue, which, while that probably feels like cold comfort now, is nevertheless important. I did NOT expect that result, and so see it as a silver lining. Don't forget that prior to US v. Lopez in the 1990s, most constitutional scholars had thought all commerce clause limitations were dead. Thanks to Lopez, Morrison, and now NFIB, there are at least some limits on Congress's authority to regulate commerce. But who cares, you ask, if Congress can squeeze in the back door with it's taxing authority? It matters because politically it is harder for Congress to pass a tax than to "regulate commerce." Indeed, one of the things that makes the decision today so galling is that it allowed the Democrats to garner the political benefits of "pretending" this wasn't a tax (which of course it was, which is one of the reasons I'm not as upset with Roberts as I suspect some of my peers are right now) to secure passage by the narrowest of margins while getting the benefit (in terms of constitutionality) of it being a tax. That's maddening, but understandable. The Court has a duty--which CJ Roberts clearly appreciates--to uphold statutes if they are constitutional under any fair reading. I happen to agree with the dissent that construing this "penalty" as a tax was a bit tortured, but, the silver lining is: going forward, Congress can't play that game again b/c of the clear precedent here. NEXT TIME, they will have to assert the proper basis for their jurisdiction. So the decision, while allowing the mandate, also shrinks the very hole which such legislation can be shoved through. And the other upshot of winning on the Commerce Clause issue.... 3) It's now clear, and judicially decreed, that this bill is a massive tax increase! (duh!). This is a political weapon for the GOP. I don't pretend to know how the politics will sugar out, and of course the Administration will spin this as a big win, BUT: the law is still unpopular, and now the GOP can say, with perfect justification, the SCOTUS peeled away the BS and laid bare for all what this law really is. A highly regressive TAX on Americans with no health insurance. Ouch. I think there is mileage to get out of this with voters. And finally, 4) Let's all remember that the ballot box is and always has been more important than the Courts in getting good policy. As CJ Roberts noted: "It is not our job to protect the people from the consequences of their political choices." Amen. It always amazes me that conservatives seem to fall into the trap of thinking the Court should strike down bad laws. Nonsense. We have a right to enact stupid laws. This one surely was one. There was a good argument that it was unconstitutional, but we lost that fight. Now let's push forward politically, rather than legally, on the far more salient point: constitutional or not, it's an economic basket case and we need a President and a Congress willing to gut it and start fresh.

The Mandate is Falling, the Mandate is Falling!

In yesterday's New York Times, an MIT Economist named Jonathan Gruber, who the Times has apparently nicknamed "Mr. Mandate," lamented the direction of the oral arguments re the Mandate provision in the Affordable Care Act. "'As soon as I started reading the dispatches my stomach started churning,' Mr. Gruber said of the arguments on Tuesday, while taking a break from quizzing his son for a biology test. 'Losing the mandate means continuing with our unfair individual insurance markets in a world where employer-based insurance is rapidly disappearing.'"

Really, Mr. Gruber? Let's assume for a moment that you're right, and that without an individual mandate, we are fated to a future where increasing numbers of Americans are left without access to employer-based insurance. Fine. But even if this is true, why is the sky falling if the individual mandate is beyond the power of the federal government to require? As Mitt Romney is no doubt tired of being reminded, Massachusetts has had an individual mandate in place for several years. Thus if Mr. Mandate is right and mandates are the only way out of this mess, then those pesky constitutional limits on congressional action need not mean our goose is cooked. Moreover, if the sky really does start to fall for lack of a mandate, while the sky is meanwhile staying put in the Bay State, then perhaps might other rational state legislatures adopt a mandate of their own? Hmm?

The subtext running through all this, of course, is that the states are too stupid or backwards or incompetent to accomplish this type of thing on their own. This is a horrifying development in our political life. The state governments are, by definition and design, closer to their constituents than is the federal behemoth. They can be quicker to act and in most cases will be more responsive.

If the SC knocks out the Mandate on the basis of its having exceeded Congress's Commerce Clause authority, that will effect Romneycare's mandate not one iota. Nor should it. The real question here is not, "can government do this" as it is framed almost everywhere, but "can the Federal government do this?" This distinction is critical, if for no other reason than it knocks the wind out of those that would focus on policy arguments rather than constitutional requirements (I'm looking at you Justices Kagan, Breyer, Ginsberg, and Sotomayor). Saying "you may not do this" has much more finality than does "you are not the proper party to do this."

What we are left with when we assume that states are helpless/hopeless without the feds doing all the public policy heavy lifting for them is world where the argument "but modern society requires this sort of regulation" gets more traction at the Supreme Court than the theoretically more appropriate "but the Constitution expressly forbids and/or does not permit Congress to do this" argument. This is not a good result for friends of Freedom and self-government. But it is, sadly, increasingly the world in which we live.

Of course, we do not believe the Mandate is the only way to fix healthcare, and indeed, think it ill-conceived both in practice and in principle. The point is only that this debate has highlighted the sad slide of our constitutional jurisprudence from robust constitutional analysis to super-legislature-policy-making. What the modern Court does--at least what the four liberal justices appear prepared to do--is not determine statutes' constitutionality, but rather their wisdom from a policy perspective. Good thing, then, that they have a wise latina among them.