Our American Discourse, Ep. 20: When Politicians Get Rich and Voters Pay the Price

Voters have long suspected that politicians are corrupt, so much so that they’ve demanded a long list of ethics rules and anti-bribery regulations over the years. But it turns out there are still plenty of tricks left up their sleeves. The question is, do they use those tricks? Do they really have the power to enrich themselves at our expense? Today, we have a wealth of new evidence that finally answers those questions…

In this episode, Jordan Carr Peterson unveils the concerning conclusions of a series of research papers that pull back the veil on the financial interests of our policymakers—and the power they wield in their own favor.

Continue reading “Our American Discourse, Ep. 20: When Politicians Get Rich and Voters Pay the Price”

Does Obamacare Infringe on Our Liberty? Or Does It Give Us Even More Freedom?

What right does the government have to make you buy health insurance?

That’s the question that riles Obamacare critics the most. It’s not the premiums or the website or the dropped coverage. It’s the infringement on their liberty.

Does Government Threaten Our Freedom?You hear it all the time: “This is a free country!” That’s what everybody says. But what do they really mean? Do they know what freedom is?

It seems obvious at first. Freedom is lack of coercion. Therefore, anything the government makes you do infringes on your freedom.

But there are different types of coercion, and the government isn’t the only one doing the coercing.

Let’s say that you want your daughter to attend the best school in America. But you can’t afford the tuition. Do you really have freedom of choice? If you choose the school you want, they won’t let you through the front door. If you force your way in, they’ll arrest you.

So you “choose” a more affordable school. You wanted a better school, but they forced you to settle for a different one. Sounds like coercion to me.

Let’s consider another example. You want to retire at the age of 65. You’ve worked hard throughout your entire adult life. Unfortunately, wages haven’t risen, and the bills kept piling up. You saved as much as you could, but it’s only enough to live off for a couple years. Oh, and one more thing: Social Security and Medicare don’t exist.

If you “choose” to retire, you’ll go broke. You’ll go without preventive health care. Your chances of dying early will increase significantly.

So you have a choice: Keep working or die young.

In this case, you actually have less freedom because the government is less involved. Without Social Security and Medicare, you do not have the freedom to choose a long, healthy retirement.

Freedom requires more than the absence of laws and taxes. True freedom of choice requires the capability to make that choice — and the free market doesn’t always give us that capability.

Jobs are scarce. Most of us don’t have the freedom to work anywhere we want. We take what we can get. For many of us, that means working at a company that doesn’t pay for our health insurance. So we “choose” to buy insurance on the individual market.

Before Obamacare, the individual market charged really low rates to healthy people and really high rates to sick people. So the people who needed insurance the most couldn’t afford it. They didn’t have the capability — and therefore the freedom — to buy it.

Obamacare outlaws that kind of discrimination. It requires insurers to charge the same rates to healthy and sick people alike, and that means that healthy people will have to pay higher rates. Some of them won’t want to, so they’ll stop buying insurance. When they drop out, they leave behind the sicker people who are most costly to insure, forcing insurers to raise rates even more. It’s a vicious cycle, a “death spiral,” that results in almost everyone being priced out of the market.

Virtually no one will have the freedom to buy health insurance on the individual market.

And that’s why we have an individual mandate. If the healthy people don’t drop out, there’s no death spiral, and the insurance remains affordable for the people who need it the most.

The government gives them a freedom that the free market cannot. It gives them the capability to purchase health insurance.

If we choose not to buy insurance, we pay a penalty. As Supreme Court Chief Justice John Roberts has written, “it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” Those taxes pay for our roads and Army and Navy and Social Security and Medicare — and those things give us the freedom to live a life that we often take for granted. Without those taxes, without those government-funded investments, we could not call ourselves a free country.

In the same way, without Obamacare, without the government making us buy health insurance, we would be condemning millions of Americans to lives without health care. We would be restricting their freedom. And what right do we have to do that?

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This op-ed was published in today’s South Florida Sun-Sentinel and Huffington Post.

Why the National Defense Authorization Act of 2012 Is Unconstitutional

Earlier this week, Judge Katherine B. Forrest (U.S. District Court for the Southern District of New York) ruled that the indefinite detention provision of the National Defense Authorization Act of 2012 (NDAA) is unconstitutional. Forrest issued an injunction prohibiting the government from enforcing the provision.

In celebration of this decision, we will publish an excerpt of Forrest’s opinion — but first, a bit of background…

The provision in question dates back to an earlier version in the Authorization for Use of Military Force Against Terrorists (AUMF) resolution passed by Congress on September 14, 2001. The AUMF states:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In interpreting this law, the government took a controversial position:

The President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.

This interpretation was widely considered to be an illegal expansion of powers granted under the AUMF, and therefore Congress expanded the language in this year’s NDAA. Notice the new powers granted under Section 1021(a):

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

This section gives the military to detain prisoners indefinitely without a trial. Next, Section 1021(b) defines who those prisoners may be:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

Okay, nothing new yet. That’s the same language we saw in the AUMF. But wait, there’s more:

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

If you’re wondering what some of these terms mean, join the club. The NDAA doesn’t define them. And that’s what caused the lawsuit:

Plaintiffs are a group of writers, journalists, and activists whose work regularly requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).

…which brings us to a lightly edited excerpt from Judge Forrest’s opinion:

As the Second Circuit recently stated in Commack Self-Service Kosher Meats v. Hooker, “When a statute is capable of reaching expression sheltered by the First Amendment,” a greater degree of specificity is required so that parties may know what actions may fall within the parameters of a statute. Section 1021(b)(2) is devoid of the required specificity.

At the March hearing, plaintiffs testified credibly to their specific past activities and concerns. At that hearing, the Court repeatedly asked the Government whether those particular past activities could subject plaintiffs to indefinite military detention; the Government refused to answer.

Several weeks later, the Government changed its position entirely — from its prior assertion that it would not state whether plaintiffs’ activities could subject them to detention under § 1021 to a qualified one: “the conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021.”

The Government did not put forth a witness to explain the difference between its first, March position and its second. Nor did it provide the Court with a reason that this second position is the binding one, or why the new position does not leave plaintiffs at the mercy of “noblesse oblige.” There is no guarantee that the position will not — or cannot — change again.

In addition, at the March hearing the Government was unable to offer definitions for the phrases “substantially support” or “directly support.”

The Government could have offered that no one has in fact been detained for any activities protected by the First Amendment. The Government also could have presented evidence regarding the decision-making process for § 1021(b)(2) enforcement determinations — namely, the type of checks and balances that may exist to ensure consistent and non-arbitrary enforcement. [It did not.]

The Government quite carefully avoids arguing that § 1021(b)(2) does not encompass activities protected by the First Amendment. Not once in any of its submissions in this action or at either the March or August hearings has the Government said, “First Amendment activities are not covered and could never be encompassed by § 1021(b)(2).”

In United States v. Stevens, Justice Roberts wrote, “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment reflects a judgment by the American  people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

The Court finds that § 1021(b)(2) is facially unconstitutional: it impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.

The Government argues that even if plaintiffs have standing, this Court should essentially “stay out of it” — that is, exercise deference to the executive and legislative branches and decline to rule on the statute’s constitutionality. [But] the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this Court’s responsibility to safeguard the rights it has sworn to uphold.

In Hamdi v. Rumsfeld, the Supreme Court stated:  “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

In rejecting the Government’s view of its sweeping detention authority, the Supreme Court stated in Hamdi: “[A]s critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of a threat.” Citing O’Connor v. Donaldson, the Court continued: “[W]e live in a society in which ‘[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.‘”

In Ex parte Merryman, the Supreme Court made clear that the President does not have the power to arrest; that the liberty of the citizen is not conferred on the President to do with what he will; and that no argument will be entertained that it must be otherwise for the good of the government.

In the Brig Amy Warwick, the Government had similarly argued that the judiciary should not — or perhaps could not — rule on certain issues. There, the Supreme Court stated, “The principle of self-defense is asserted; and all power is claimed for the President. This is to assert that the Constitution contemplated and tacitly provided that the President should be dictator, and all Constitutional Government be at an end, whenever he should think that the ‘life of the nation’ is in danger… It comes to a plea of necessity. The Constitution knows no such word.”

In United States v. Curtiss-Wright Export Corp., while acknowledging the President’s pre-eminent role in foreign affairs, the Supreme Court also acknowledged that that power does not extend to all domestic affairs. He cannot, for instance, determine whom to arrest domestically; the scope of the arrest authority is determined by criminal statutes.

There are laws that provide for arrest of individuals engaged in “material support” of terrorist organizations. As a criminal statute, those prosecuted pursuant to it are entitled to full due process under the Constitution.

Moreover, there are a variety of criminal statutes that capture speech or associational activities which are involved in criminal activities.  There is no reason for § 1021(b)(2) to encroach on protected First Amendment rights.

Why #SCOTUS Upheld #ObamaCare

In celebration of the Supreme Court’s historic decision to uphold the individual mandate of the Affordable Care Act, we reproduce an excerpt from Chief Justice John Roberts’s opinion on behalf of the majority:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The “[s]hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “taxpayer[s]” when they file their tax returns. It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.” This process yields the essential feature of any tax: it produces at least some revenue for the Government.

We have similarly held that exactions not labeled taxes nonetheless were authorized by Congress’s power to tax. In the License Tax Cases, for example, we held that federal licenses to sell liquor and lottery tickets—for which the licensee had to pay a fee—could be sustained as exercises of the taxing power. And in New York v. United States we upheld as a tax a “surcharge” on out-of-state nuclear waste shipments, a portion of which was paid to the Federal Treasury. We thus ask whether the shared responsibility payment falls within Congress’s taxing power, “[d]isregarding the designation of the exaction, and viewing its substance and application.” (United States v. Constantine). [Other examples include:] Quill Corp. v. North Dakota (“[M]agic words or labels” should not “disable an otherwise constitutional levy”); Nelson v. Sears, Roebuck & Co. (“In passing on the constitutionality of a tax law, we are concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it”); United States v. Sotelo (“That the funds due are referred to as a ‘penalty’…does not alter their essential character as taxes”).

Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry. Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking. And we have upheld such obviously regulatory measures as taxes on selling marijuana and sawed-off shotguns. Indeed, “[e]very tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed.” That [the law] seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power.

While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.

The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

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This excerpt has been lightly edited to make it more readable to a lay audience.