A Funny Thing Happened on My Way Through Title 42

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Title 42.jpgThis week, on President Trump's precise hundredth day in office, the federal government is (yet again) set to go broke unless an appropriations bill can be approved. The main conflicts preventing a funding compromise are the White House's insistence that federal subsidizing of sanctuary cities come to an end, the Democrats' refusal to block bailouts to the insurance industry written into the text of the Affordable Care Act, and the attempts to reconcile the President's $30 billion defense spending request with the mounting national debt. However, while the debate over these controversies continues in Congress, a much larger question is also implicated - how much should the United States of America actually cost?


The issue shouldn't actually be that complex. We don't need to analyze Gross National Product and skyrocketing income disparity and our current trade balance: one look at the United States Code should be enough to convince anyone that some serious spring cleaning is in order.


The U.S.C., which contains almost all federal Congressional enactments, is currently 5,759 Constitutions, 74,870 pages and fifty-two titles long. The first of these is deceptively straightforward, at twenty-seven pages which mostly define words used throughout the Code. This one is the place to go if you've ever wondered what the phrase "products of American fisheries" or the word "person" means (respectively. Seafood comes at §6, and humans will just have to wait until §8). The shortest of these is Title 9, which covers Arbitration in eleven pages and is probably one of the briefest documents pertaining to arbitration ever published (say what you will about mandatory ADR, but you've got to love any statute more straightforward and concise than the subject with which it deals). The longest, by far, is #42, which comes in at 13,385 pages and contains some things worthwhile, like the Civil Rights Act of 1964. And some things of more questionable merit, to say the least, like §12705c., "Grants for Regulatory Barrier Removal Strategies and Implementation." You read that right - they've apparently taken to spending money on plans to regulate overregulation1. Making matters worse, this behemoth comes with no index, just a four-page list of its one hundred and fifty-nine chapters.


Personally, I don't trust anything with a table of contents that long2. Even the overview is a little staggering - it does tell you where to find the things you might expect, like Social Security and the Clean Air Act, but it also contains chapters with intriguingly irrelevant laws defining the mathematical term "average" (42 U.S.C. §2992c) and providing for space exploration (somehow, Congress thought this item fit better here than in Title 51, which is devoted exclusively to outer space). When there are this many individual ideas and policies thrown pell-mell into one document, it's inevitable that some will be forgotten about and enforcement will be a complete nightmare.


Don't believe me? Well, let's hunt up something everyone knows about, that should be fairly easily accessible. You might suppose that Obamacare, for example, would be a frequently referenced and therefore clearly marked section. Half of it is indeed filed under the identifiable if somewhat specious heading "Quality, Affordable Health Care for All Americans" - that is, the second half. The notorious Act actually begins at 42 U.S.C. §300gg 3, which I assure you is an actual component of Title 42 and not just a random letter-number combination generated by a hyperactive squirrel scampering across my keyboard. 42 U.S.C. §300 is eight hundred and thirteen pages long, and deals mostly with health services and partly with drinking water4. However, just when it starts resembling a cohesive, orderly piece of legislation, it disappears like a subterranean river under mountains of vitally important documents such as those defining the word "governor" or dedicated to "Soil Information Assistance for Community Planning and Resource Development," then magically reappears at §18011, where it finally gets a proper label. If you do manage to get Congress' copy - which, despite its manifold faults, can at least be perused in one piece - the entire title really can to seem like a jigsaw puzzle someone put together wrong.


Also complicating matters is the sheer number of laws dealing with precisely the same problems under slightly different headings, and funded out of completely different sections of this country's coffers. There are chapters 25 and 50, "Federal Flood Insurance" and "National Flood Insurance," respectively (admittedly, the former has been all but repealed - all but the part that costs money, which is still going strong and still has up to five hundred million dollars at its disposal). There are chapters 98 and 99, "Ocean Energy Thermal Conversion Research and Development" and its successor "Ocean Energy Thermal Conversion," both of which deal with precisely the same subject, except one of them covers its territory in nine fairly straightforward sections while the other verbosely provides desperately needed clarification on the subject through such enlightening enactments as yet another definition of "governor" (over the course of the Title, we are educated as to the meaning of this word a grand total of eleven times). And then, of course, there are "Intergovernmental Personnel Program," the closely related "Advisory Commission on Intergovernmental Relations," and "Intergovernmental Cooperation" - these are much more difficult to ascertain the merits of, however. On the one hand, the most cursory examination of the Code reveals the redundancy of a significant number of statutes, and it seems impossible to believe that this many federally funded programs could possibly be simultaneously necessary. On the other, though, the most cursory examination of the Code reveals that Congress barely keeps tabs on the laws it passes itself, and probably needs all the intergovernmental cooperation it can get.


I'll admit, this confusion can partially be attributed to the fact that half the contents of Title 42 have nothing to do with its stated purpose. There are things such as "School Lunch Programs" and some scholarship opportunities that should probably be located in Title 20, "Education;" there are "Criminal Justice Identification, Information and Communication" guidelines, "Community Safety Recidivism Protection," and legislation pertaining to just about every crime in the calendar5, which might be more appropriately moved to Title 18, the federal criminal code - and all this gives one the strange sense that this title would be more appropriately captioned "Congress' Grand Article I, Section 8 Grab Bag" than "Public Health and Welfare," like it is now. But the problems with the United States Code are too significant to be solved by mere rearranging or streamlining. Every line in our law that is not absolutely essential to the fulfillment of federal Constitutional obligations could be costing taxpayers, and diverting scarce funds that could otherwise be allocated to necessary and productive programs.


1 Before long, we'll hear of the establishment of the Overregulation Elimination Agency, vested with the power to enforce their conclusions through appropriate rule-making, and when we do it will doubtless be located in Title 42. You heard it here first.


2 Neither does Adobe Reader, apparently, which took a brave stand against governmental overreach by "Not Responding" every time I tried to locate any particular thing inside this Brobdingnagian document. So I tried to see what methods the government itself had come up with to speed the research process along a little, but apparently they've got problems of their own:


USCtimeout.jpg


3 Don't believe everything you hear on the news: this right here is the real reason why Congress didn't repeal the "Affordable" Care Act when it got the chance. Once you've managed to find a place for the darned thing and fit it snugly into what has to be the most complicated single law ever promulgated, who would have the heart to take it out again and re-number everything that comes after it?


4 Even though it deals with some of the same subject matter, it is definitely not to be confused with "Water Resources Planning," "Water Resources Research," "Secure Water," or Title 33, which deals mainly with "Navigable Waterways." I wasn't actually even looking for our nation's policy on H2O, but suddenly I'm drowning in a veritable sea of surplusage - I suppose next time I need something from the Code, I'll just wait until the clouds roll back and the waters part.


5 This expression is truly quite baffling, if you think about it too hard. I mean, we've all seen planners adorned with pictures of tropical beaches or flower-themed date books, but have you ever encountered a fifty-two week Gregorian crime calendar? I didn't think so.


Balanced Budget Amendment Introduced

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Ickes bandwagon.jpgOn April 8th of this year, H.J. Res. 48 was introduced by Congressman John Ratcliffe and referred to the House Judiciary Committee, officially introducing a proposed twenty-eighth amendment to the Constitution which would limit allocable federal funding to actual government revenue. This measure would effectively prohibit Congress from adding to our existing spending deficit of nearly $20 trillion dollars, curtailing the extravagant and extraneous expenditures currently rampant throughout federal agencies and departments. The amendment reads in full:

"1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless two-thirds of the whole number of each House of Congress shall provide by law for a specific excess of outlays over receipts by a rollcall vote.
2. Total outlays for any fiscal year shall not exceed 18 percent of economic output of the United States, unless two-thirds of each House of Congress shall provide for a specific increase of outlays above this amount.
3. The limit on the debt of the United States held by the public shall not be increased unless three-fourths of the whole number of each House shall provide by law for such an increase by a rollcall vote.
4. Prior to each fiscal year, by not later than such date as Congress may by law require, the President shall transmit to Congress a proposed budget for the United States Government for that fiscal year in which total outlays do not exceed total receipts. If the President fails to transmit to Congress a proposed budget which meets the requirements of the previous sentence by the date required by Congress, the President may not receive any compensation for his services for any month which follows that date until the President transmits to Congress a proposed budget which meets such requirements.
5. For each fiscal year, by not later than such date as Congress may by law require, Congress shall consider and approve a budget for the United States Government which meets the requirements of section 4 of this article. If Congress fails to approve a budget which meets such requirements by the date required by Congress, Members of Congress may not receive any compensation for their services for any month which follows that date until Congress approves a budget which meets such requirements.
6. A bill to increase revenue shall not become law unless two-thirds of the whole number of each House shall provide by law for such an increase by a rollcall vote.
7. The Congress may waive the provisions of this article for any fiscal year in which a declaration of war is in effect. The provisions of this article may be waived for any fiscal year in which the United States is engaged in military conflict which causes an imminent and serious military threat to national security and is so declared by a joint resolution, adopted by a majority of the whole number of each House, which becomes law. Any such waiver must identify and be limited to the specific excess or increase for that fiscal year made necessary by the identified military conflict.
8. The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts.
9. A court may not enter an order in any action, including for purposes of enforcing this article, that results in an increase in the collection of revenue.
10. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except for those for repayment of debt principal.
11. This article shall take effect beginning with the seventh fiscal year beginning after its ratification."


Harrison debt.jpgOver the past decades and centuries, those concerned with Washington's culture of wastefulness have repeatedly endeavored to enact similar legislation. When confronted with the massive deficits created by the Revolutionary War and subsequent inflation, Thomas Jefferson hoped that contemporary lawmakers would "render the immortal service of introducing this practice not that it is expected that Congress should formally declare such a principle. They wisely enough avoid deciding on abstract questions but they may be induced to keep themselves within its limits." In 1982, the Senate achieved the required two-thirds majority but the amendment was voted down in the House, and in 1995, it passed the House but failed to garner a single vote in the Senate. However, as our nation finds itself approximately $19,900,000,000,000 in debt and American citizens grow increasingly frustrated with the corruption and inefficiency of their government, any concerns about the effects of widespread budget cuts must give way to the imperative of ending our insouciant spending patterns. Perhaps the recognition that the present situation simply cannot continue will provide the impetus necessary to navigate the amendment through the Committee to the House and Senate floors and then the states, finally writing fiscal responsibility into our Constitution.

82 Days In, and the Swamp's as Deep as Ever

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Swamp.pngWhen Donald Trump was elected to the presidency last November, voters were willing to take a chance on a political outsider in the hopes that he might take a stand against endemic corruption and inefficiency of the federal government. However, after eighty-two days, very few of his campaign pledges have actually been honored:

1. The Repeal of Obamacare
After the American Health Care Act debacle, the White House has apparently reached a detente with the rampant oligopoly established by Obamacare. While this inaction may effectively prove a political point - that the current bureaucracy cannot be sustained and will inevitably collapse if left in place - it does nothing to remedy the current situation faced by millions of Americans whose premiums have skyrocketed and who are forced either to pay exorbitant rates to monopolistic insurance providers or go on public assistance. By deciding to do nothing while citizens continue to suffer the consequences, Trump has reneged on one of the most vital planks of his platform.

2. Withholding Funds from Sanctuary Cities
Every year, billions of taxpayer dollars go to fund the municipal governments of so-called "sanctuary cities," which purposefully ignore federal immigration rules in order to harbor illegal immigrants. These localities routinely refuse to punish any crimes committed by illegal entrants into the country, often releasing the perpetrators back into society without requiring any expiation for deeds ranging from drug possession to domestic violence. Trump consistently denounced sanctuary cities throughout the 2016 campaign, but has failed to stem the flow of U.S. dollars to support their defiance of U.S. laws.

3. Condemning China's Currency Manipulation
China's intentional devaluation of the yuan has resulted in sharp trade imbalances which are highly deleterious to U.S. manufacturers and workers, by making Chinese imports cost less in the United States than American exports cost in China. Just today, though, the President has announced that he will not be honoring his promise to officially designate China as a currency manipulator and exert international influence to curb their practices. This will effectively eliminate any chance that domestic industries could begin to compete with cheap foreign labor on the world stage.

4. Build that Wall
This was one of Donald Trump's most iconic commitments: to construct a wall along the Mexican border to deter illegal immigrants. However, the anticipated cost of this project has steadily risen since he took office, and it is becoming increasingly unlikely that it will actually be completed using American labor and at a price that remains lower than the benefits for U.S. citizens. Furthermore, the federal agencies tasked with working out the details of this undertaking have merely proposed a fence of the type already existing - without results - along much of our southern border.

5. Bring Jobs Back
Almost immediately after taking office, the President did officially reject the proposed Trans-Pacific Partnership, thereby eliminating an additional threat to the American workforce. But since then, Trump has done nearly nothing to repeal existing free trade agreements or counteract the influx of goods from China - even facilitating the latter practice with his decision not to take action against currency manipulation. The attempt to renegotiate NAFTA has also been repeatedly stalled, leaving American citizens wondering when or if their Chief Executive will decisively protect their livelihoods from rampant outsourcing.

The Redundancy of Obamacare

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Senate bosses 2.jpgToday in Washington, the battle over the impending repeal and replacement of Obamacare will culminate when the House votes on the proposed American Health Care Act - but everywhere else, skyrocketing costs and lack of competition in the health care industry continue to impact us all, and the GOP's latest plan to supplant the Affordable Care Act (ACA) fails to adequately address these deleterious effects. However, closer scrutiny of the relevant statutes reveals that the ACA is not only inefficient but entirely unnecessary.

The individual mandate that formed an integral part of the law was promoted on the basis that it enabled consumers with pre-existing medical conditions to obtain coverage which had long been denied them. Indeed, it is hard to believe that citizens of a free nation could be compelled by their government to pay private entities in the absence of the ethical imperative to eliminate this type of discrimination. Yet, per 42 U.S.C. §12102(2), part of the well-known Americans with Disabilities Act, discrimination against anyone with impaired "operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions" was already prohibited as of 1990. Even though this statute was not always followed by health insurance companies, the protections enshrined in this provision do apply to the industry; see Chrysler Outboard Corp. v. Dept. of Independent Labor and Human Rel,  Sterling Transit v. Fair Employment Practice Comm'n. Furthermore, in Doe v. United Services Life Insurance Co., the Civil Rights Act of 1964 was held applicable to the life insurance market despite the defendant's insistence that underwriting policies for certain classes of consumers came with an elevated risk that justified higher premiums (see also Benitez v. North Coast Women's Health). This statute is clearly analogous to the ADA, and it is highly unlikely that the insurance industry's discriminatory practices prior to the implementation of Obamacare would have survived review under §12102(2)'s unambiguous terms.

Furthermore, the strangling regulations and geographically narrow markets established by the ACA artificially raise prices and render free competition between insurance companies all but impossible, canceling out any cost-distributing effect the individual mandate may have had. Under current conditions, only a limited number of insurance providers can directly compete within the constraints of the official exchanges, and one in five Americans has no choice between companies whatsoever. This problem can be mitigated in two ways, neither of which require the creation of even more supererogatory legislation. Firstly, removing the bureaucratic barriers that hinder competition in interstate commerce will automatically dismantle the local monopolies that have flourished under Obamacare. Secondly, replacing the government's haphazard and inconsistent antitrust enforcement policy with clear and rigorous standards would ensure that the free market stays free - a goal the proposed American Health Care Act does virtually nothing to work towards.

Clearly, the trust-busting Sherman Act and the ADA establish the necessary climate of competition and nondiscrimination to ensure equity and equality in a free market. The Affordable Care Act and its cousin the American Health Care Act are redundant and deeply flawed statutes which do little to remedy the situation and much to obfuscate the actual issues with technical and superfluous regulations. Perhaps a more effective legislative solution to consumers' current quagmire would read, in total:

" Voluntary, Free Market Insurance Coverage for All Americans
42 U.S.C. §300gg and 42 U.S.C. Chap. 157, styled "Affordable Health Care for All Americans" and comprising §18001-§18121, are hereby repealed. See 15 U.S.C. Chap. 1, styled "Monopolies and Combinations in Restraint of Trade," and comprising §1-§38, also 42 U.S.C. Chap. 126, styled "Equal Opportunity for Individuals with Disabilities," and comprising §12101-12213."


That's really all we need.
Yesterday afternoon, the Ninth Circuit Court of Appeals heard oral arguments in Washington v. Trump, (17-35105), considering whether to stay a temporary injunction halting the President's controversial executive order curtailing immigration from seven countries known to harbor substantial terrorist threats to our nation.

Plaintiffs, the states of Washington and Minnesota, contended that the order is unlawful and "unconstitutional" because it leaves their university students in limbo, separates families within their borders, and is allegedly in violation of the Establishment Clause; the federal government countered that the states do not have standing to sue on behalf of either their citizens or foreign nationals, and also that no irreparable harm will result from the issuance of a stay. However, in light of the importance of our immigration policy to ensuring our national security, the aspects of the case the DOJ declined to mention may turn out to be the most vital.


No Mention of Reynolds Endangers National Security


Throughout the hearing, the panel repeatedly questioned Justice Department lawyer August Flentje about potential limitations of judicial review of the imperiled order. At one point, when he briefly invoked the reservation of power to the President and the difficulty of assessing the validity of a critical security decision, presiding judge Michelle Friedland asked outright: "Are you arguing, then, that the President's decision in that regard is unreviewable?" (12:51-12:56). Flentje agreed after a long pause, but immediately reverted to the question of standing and entirely ignored the sensitive nature of our ongoing fight against international terror. This choice could cost the government heavily in subsequent phases of this case, as Flentje effectively waived any privilege the U.S. could otherwise claim during discovery.


Under United States v. Reynolds, 345 U.S. 1 (1953), the federal government retains the privilege - and the obligation - to protect the public's safety by withholding documents containing classified or confidential material, such as military intelligence relating to the activities of extremist groups within the affected nations. The primacy of the privilege is exemplified in the text of Reynolds itself - "Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake" - and specific invocations of its protections have always been treated deferentially by the courts. As the Supreme Court wrote per Justice Field in the wake of the Civil War, "It may be stated as a general principle that public policy forbids the maintenance of any suit in a court of justice the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential and respecting which it will not allow the confidence to be violated." Totten v. United States, 92 U.S. 105, 107 (1875). One hundred and twenty-six years later, the D.C. Circuit recognized the validity of this "privilege and prerogative of the Executive," writing further that courts cannot "compel a breach in the security which that branch is charged to protect." National Council of Resistance of Iran v. Dep't of State, 21 F.3d. 192 (2001), see Global Relief Foundation v. O'Neill, 315 F.3d 748 (7th Cir. 2002) and People's Mojahedin Organization of Iran v. Dep't of State, 327 F.3d 1238 (D.C. Cir. 2003). In Jabara v. Kelly, it was similarly concluded that "[i]n the case of claims of military or state secrets' privilege, however, the superiority of well-informed advocacy becomes less justifiable in view of the substantial risk of unauthorized disclosure of privileged information." 75 F.R.D. 475 (E.D.Mich. 1977). As the Fourth Circuit recognized in 1972, "The courts, of course, are ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area." United States v. Marchetti, 466 F.2d 1309, 1318, cert. denied at 409 U.S. 1063 (1972), see also Black v. United States, 62 F.3d 1115 (8th Cir. 1995), Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236 (4th Cir. 1985). The court in Heine v. Raus espoused an expansive view of the privilege, holding that "if the two interests cannot be reconciled, the interest of the individual litigant must give way to the government's privilege against disclosure of its secrets of state." 399 F.2d 785, 791 (4th Cir., 1968). See Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975), Cresmer v. United States, 9 F.R.D. 203 (1949) and Zuckerbraun v. General Dynamics Corp., 935 F.2d 544 (2nd Cir. 1991). Lastly, in Halkin v. Helms, the D.C. Circuit acknowledged the heightened importance of the privilege in the modern era:


"It requires little reflection to understand that the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate." 598 F.2d 1, at 8 (1978).


In this case, however, the DOJ opted not to assert the rights contained in Reynolds, and therefore may be compelled to disclose any relevant intelligence during discovery or risk the automatic loss of this lawsuit. Either alternative could place the government at a disadvantage when promulgating new immigration regulations and severely jeopardize our collective security in the interim.


The Dormant Naturalization Clause


Additionally, even though Flentje emphasized Washington's lack of standing in the instant suit, he did not challenge its attempt to interfere with U.S. foreign policy. The Constitution explicitly reserves the power "To establish an uniform Rule of Naturalization" to the federal government in Article I, Section 8, an assignment of authority which plainly indicates that only the United States can control its rules pertaining to immigration. This is made clear in Edwards v. California, 314 U.S. 160 (1941), in which the respondent unconstitutionally attempted to curb migration from the Midwest by penalizing those aiding indigent travelers, and in State v. Steamship "Constitution," 42 Cal. 578 (1872), in which a California statute that sought to deny admission to international immigrants was struck down as infringing on the sole right of the U.S. government to regulate entry to this nation.


It is a long-standing principle that certain rights enumerated as belonging to the federal government in the Constitution cannot be usurped by the several states. Our national jurisprudence concerning the Dormant Commerce Clause best illustrates this. In Quill Corp. v. North Dakota, the Supreme Court declared: "The [Commerce] Clause, in Justice Stone's own phrasing, 'by its own force' prohibits certain state actions that interfere with interstate commerce. South Carolina State Highway Dept. v. Barnwell Brothers, Inc., 303 U.S. 177, 185 (1938)." 504 U.S. 298 (1992), see also Tyler Pipe Industries v. Washington State Dept. of Revenue, 438 U.S. 232 (1987), Nat'l Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U.S. 753 (1967), Toomer v. Witsell, 334 U. S. 385 (1948). In this case, Washington contends that it sues on its own behalf and to protect its own interests; however, it is still unlawfully arrogating the functions of the United States government under Brimmer v. Rebman, where it was held that "a burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to all the people of the States, including the people of the State enacting such statute." 138 U. S. 78 (1891). So long as a state possesses the intent to appropriate the plenary powers of the federal authorities, "that legislative effort is clearly impermissible under the Commerce Clause of the Constitution." Philadelphia v. New Jersey, 437 U. S. 618 (1978); Leloup v. Port of Mobile, 127 U. S. 640, 648 (1888); Kassel v. Consolidated Freightways Corp. of Del., 450 U. S. 662 (1981); Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 10 (1928). Finally, as the Court once asserted per Chief Justice Marshall:


"It has been observed that the powers remaining with the states may be so exercised as to come in conflict with those vested in Congress. When this happens, that which is not supreme must yield to that which is supreme. This great and universal truth is inseparable from the nature of things, and the Constitution has applied it to the often interfering powers of the general and state governments, as a vital principle of perpetual operation. It results necessarily from this principle that the... power of the states must have some limits. It cannot reach and restrain the action of the national government within its proper sphere." Brown v. Maryland, 12 Wheat. 419 (1827).


Conclusion


A decision in this case is expected by the end of the week, and the lawsuit will proceed regardless of whether the emergency stay is granted or denied. However, the hearing yesterday provided us with a revealing glimpse of both the Justice Department's contentions and the important concepts left unmentioned - which could effectively shape the future of this litigation over the next weeks.

A New Tariff in Town? Not a Bad Idea

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Recently, opponents of President Trump's plan to construct a wall along the Mexican border and finance its construction with a protective tariff on Mexican imports have voiced a concern that this tariff will lead to increases in the prices of automobiles, groceries, and many other necessary goods. However, in their haste to criticize these proposals, they have overlooked several facts that make both the wall and the import tax a national imperative.

First, the argument that tariffs will raise the cost of living in America is based on the specious assumption that our manufacturing and agricultural requirements will continue to be outsourced at the same rate after these plans go into effect. This exhibits a fundamental misunderstanding of the purpose and practical impact of protectionist measures. Clearly, the border tax is designed not to penalize U.S. consumers but to reverse the rapid attrition of the national labor market. Furthermore, the slowing of international trade may actually reduce the cost of many food items, since domestic farmers will easily be able to meet our consumers' needs and American purchasers will no longer have to compete with Chinese and Mexican wholesalers willing to buy up U.S.-grown grain at exorbitant rates. The return of well-paying manufacturing jobs will also increase the availability of basic necessities by restoring employment to pre-NAFTA levels and creating real career paths for Americans currently stuck in the service sector due to the paucity of domestic jobs. For all of these reasons, the imposition of protective tariffs will boost the national economy.

Additionally, those criticizing these plans on the grounds that they are allegedly inimical to our democratic ideals are ignoring one of our most important national values: self-reliance and the willingness to prioritize our common interests over the convenience of luxury imports. Leading up to the American Revolution, our ancestors were prepared to sacrifice their own comfort as consumers in order to further the cause of our independence by boycotting British-made goods and products subject to arbitrary taxation. Nearly two and a half centuries later, it is hard to believe that our citizens have not inherited their devotion along with their achievements; that during the short period of economic transition that will follow the implementation of these proposals, we will not gladly invest in our collective prosperity and accept any temporary inconveniences caused by the preservation of American jobs.
The change has happened slowly, but its effects are visible everywhere. The economic rebound our country is supposedly experiencing no longer carries with it the promise of prosperity for anyone willing to work; prices of everyday items are rising as salaries remain stagnant; upward mobility is severely limited by the scarcity of jobs; and the very existence of the middle class is threatened. Last night's 20/20 broadcast "My Reality: A Hidden America" examined the growing problem of income disparity by following the lives of several working-class individuals and families, and posited that a $12 or $15 minimum wage would help solve these problems. However, though this may temporarily ameliorate the desperate conditions faced by many workers, it does nothing to address the underlying flaws in our national policy that allowed this climate to develop.

Two interlinked forces have shaped the modern economy to the greatest degree. Untrammeled consolidation and collusion between corporations has artificially raised the cost of living and reduced the number of available positions; while injurious trade deals such as NAFTA have outsourced the remaining opportunities to foreign factories and rendered the traditional image of middle-class careers - manufacturing jobs paying enough for employees to purchase a home and support a family - obsolescent.

The reduction in the number of open jobs affects employees in two ways. Firstly, it lowers salaries outright by increasing the number of willing candidates for even the least desirable positions, and denying applicants the opportunity to work for a rival company that was either transferred overseas, acquired entirely, or driven out of business by these national trends of monopolization and outright exodus. Secondly, in the absence of free competition, the emerging conglomerate has almost complete control over the prices of its products, decreasing the purchasing power of already meager wages.

While these conditions exist, statutory increases in the minimum wage will fail to materially better our current predicament. First, drastic inflation will quickly ensue as noncompetitive industries remain the same, but the prices consumers will pay for their products rise; second, small enterprises with modest profits bear most of the burden but only receive a disproportionately small amount of the additional commerce produced by workers' augmented earnings; third, as long as tariffs on imports from Asia remain relatively low and trade with Mexico remains free, far more jobs will be created south of the border for $3.88 a day than here at home for $15 an hour. If our antitrust laws are enforced and protective tariffs are established, natural competition will raise wages and lower prices until our past prosperity begins to reemerge; but artificial salary hikes create as many problems as they solve.

Bayer Beware - Monsanto Merger Moves Ahead

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Just yesterday, stockholders in the Monsanto Company approved a proposed merger with German chemical and medical behemoth Bayer, which has agreed to pay $66 billion dollars for the notorious agricultural empire.

The shareholders were correct: this buyout is definitely in the best interests of Monsanto. For years, the usurious limited-use license known as the MT/SA, which all growers of its seeds must sign, prohibits farmers from saving and replanting seed on their own property, a condition justified by a vague avouchment that "Monsanto Technologies are protected by U.S patent law." Even though the use of this provision has continued unchecked, it entirely ignores the luculent language of 35 U.S.C. §163. This statute provides that patents on asexually reproduced plants - a classification which clearly encompasses the synthetic breeds produced by Monsanto, such as a cross between corn and bacteria that could never sexually occur - secure "the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced," but do not in any way curtail the traditional practice of saving seed. However, even though the deceptive implications contained in Monsanto's unconscionable contract have been the very foundation of the company's continued prosperity, it is nearly inevitable that this routine, positive fraud will be extinguished at some point.

Bayer, therefore, may have gotten more than it bargained for. Its complete acquisition of Monsanto cements its assumption of the rights and the duties contained in the MT/SA, as well as the responsibility for the Agreement's inherent defects. As the Restatement (Second) of Contracts states in §336(2):

"The right of an assignee is subject to any defense or claim of the obligor which accrues before the obligor receives notification of the assignment."


By taking on Monsanto's contracts with thousands of American farmers, it may have hoped to reap the revenues of its purchase's unlawful conduct; but will be liable for the vague and specious claims contained in these documents, and is independently answerable for all similar assertions made in contracts after the deal closes.

However, neither of these corporations will face the real consequences of Monsanto's actions or this buyout. It is U.S. farmers and consumers who will be most heavily impacted. This new, consolidated company would possess unprecedented control over both genetically engineered seed and the pesticides and weedkillers these plants have been fabricated to withstand. This heightened oligopoly will precipitate an artificial rise in the price of these agricultural commodities, costs that many small growers simply cannot afford when added to the prices of seed that must be repurchased every year. Either these farmers will be forced to sell their land, hastening the decline of the free agricultural market even further, or these new expenses will necessarily be passed on through the supply chain to the American consumer. Products we all use every day - from breakfast cereal to blue jeans - will rise in price as a result of this monopolistic merger.

The U.S. Department of Justice, the Federal Trade Commission, and the several states still possess the authority to challenge this merger as an unreasonable and impermissible restraint of trade. It is imperative that they do so, to protect truly free competition and preserve the possibility of small farming.

Scott Pruitt's EPA: Don't Forget Our Rights

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On Wednesday, Trump transition team officials announced that E. Scott Pruitt, Oklahoma Attorney General and longtime ringleader of corporate and state resistance to the Clean Power Plan, will be named Administrator of the Environmental Protection Agency. As an affected citizen troubled by this appointment, I decided to directly ask the nominee some of my lingering questions about his policies.


Dear Mr. Pruitt,


This letter is probably not going to have any impact on the policy of the Environmental Protection Agency for the next four years. It's not going to save any lives that thousands of pages of scientific studies and legal arguments couldn't protect. I know it's not going to change your mind. But it's all I can do.


I was a supporter of President-elect Trump during the campaign, and the events of the past weeks largely validated my faith in his promises, but the laissez-faire environmental policy you have long espoused has me concerned, quite frankly. Your past positions in the ongoing lawsuits over the Clean Power Plan show great solicitude for the pecuniary cost of the EPA's regulation of the energy sector; but the plenary constitutional powers of the United States government and the human cost of inaction, though harder to quantify, must not be forgotten in the quest to revitalize the economy.


What is the paramount vision the agency under your direction will promote? For decades now, we have compared ourselves to the Chinese, envied their GDP and their rapid rise while watching from our slow, nearly imperceptible decline. But is the image of prosperity really the photograph of throngs waiting for a streetlight to change, just their eyes visible, their countenances concealed by surgical masks? Is the symbol of economic rejuvenation truly the footage of a cargo ship puffing blindly ahead in the space between the ocean of tainted green below and the sea of miasmic gray above, struggling to find the vague red glow of a safety beacon? Will these images be of our sidewalks, our ports, our lives? That choice is entirely in your hands, now. How much do you estimate the gold disc of sun to be worth, and what benefit compensates the citizens of Beijing who can no longer see it in the sky overhead? How many cents is each act of respiration valued at, and how much would a man suddenly unable to breathe give to have the privilege restored for just an instant? How many dollars does each individual's stake in our common atmosphere - the right to suspire freely and to enjoy a clear sky, a prerogative Justice Brandeis once called "an easement of light and air" - represent? These are your decisions to make. This is the arithmetic of the air, just as much as any costs of implementation can be.


Those regulatory effectuation expenses incurred can be assailed as unreasonably burdensome, or they can more simply be acknowledged as the cost of living. The government of a free nation is bound to respect the rights of natural and juristic persons within its borders against adscititious, unjustifiable regulation. But it does not have to do so at the price of the health, safety and lives of its citizens. It does not have to do so by relinquishing its sovereign authority to regulate interstate commerce and the airspace over which it retains sole control.


The exclusive authority of Congress over commerce between the several states is unambiguously set forth in Article 1, Section 8. The issue of environmental protection may be a comparatively new incarnation of the same conflict among the levels of our government that the Constitution was written and ratified to resolve, but it cannot be exempted from the univocal wording meant to cover all interstate commerce. The establishment of federal control over navigable waterways resulted from the recognition of a river's inconstancy, the impossibility of imposing political borders on the formless flow of fluid. See Gibbons v. Ogden, 22 U.S. 1, Transportation Co. v. Chicago, 99 U.S. 635, Pennsylvania v. Wheeling Bridge Co., 18 How. 421, Yesler v. Washington Harbor Line Commissioners, 146 U.S. 646, and Gibson v. United States, 166 U.S. 269 ("Although the title to the shore and submerged soil is in the various states and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the federal government by the Constitution"). As was said further in Gilman v. Philadelphia, 3 Wall. 713:


"The power to regulate commerce comprehends the control... of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose, they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstructions to their navigation, interposed by the states or otherwise; to remove such obstructions when they exist, and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders."


The federal government is vested with the same control over United States airspace for much the same reasons. The notion that each state can set and enforce its own emissions standards - without materially affecting the air quality of another state and the health and safety of its residents - is clearly as chimerical as any supposition that the states' riparian policies are not inevitably interlinked. As the Supreme Court noted per Justice Ginsburg in EPA v. EME Homer City Generation, 134 S.Ct. 1584 (2013):


"Some pollutants stay within upwind States' borders, the wind carries others to downwind States, and some subset of that group drifts to States without air quality problems. 'The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.' The Holy Bible, John 3:8 (King James Version). In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind." See also Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004), 49 U.S.C. §40103.


The constitutional assignment to Congress of the regulation of interstate commerce thus ineluctably vests the United States government with undivided control over air and water. We cannot allow this fundamental framework to be subverted due to policy disagreements or concerns of economic expediency. The principal objections to the Clean Power Plan are the fiscal impact of its implementation, and the heightened impact felt by states with an economy centered on the production of oil and natural gas; but this cost of our constitutional system cannot be permitted to take precedence over the Constitution itself. As President Andrew Jackson famously proclaimed during the Nullification Crisis in South Carolina in 1832:


"If the unequal operation of a law makes it unconstitutional and if all laws of that description may be abrogated by any State for that cause, then, indeed, is the federal Constitution unworthy of the slightest effort for its preservation. We have hitherto relied on it as the perpetual bond of our Union. We have received it as the work of the assembled wisdom of the nation... We have looked to it with sacred awe as the palladium of our liberties, and with all the solemnities of religion have pledged to each other our lives and fortunes here, and our hopes of happiness hereafter, in its defense and support... Were we mistaken, my countrymen, in attaching this importance to the Constitution of our country?"


The contentious nature of the Clean Power Plan litigation has been replaced now by your delicate responsibility of ensuring our citizens' safety - the land and our lives are in the balance of every cost-benefit analysis the Agency will conduct under your leadership. I ask you Jackson's enduring question now in the hope that the overriding authority over our natural resources granted to the federal government by the Constitution will not be misused or eroded during your tenure.

Respectfully yours,
Kate Brisack

"Federal Fumbles" 2016: The Report Has Arrived

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It's officially a new political tradition. Yesterday, Senator James Lankford (R-OK) released an entirely new edition of his incisive, accessible report "Federal Fumbles," which spotlights instances of government waste at taxpayer's expense. The inaugural volume brought to light a profligate program in which Syrian rebels were trained at a cost of $4 million per rebel; a grant provided by the National Endowment for the Arts which subsidized silent performances of Shakespeare plays; a study on Russian tobacco use by the National Institutes of Health; several drug purchases in which different federal agencies were charged wildly disparate rates for the same medications; and 96 other examples of our nation's feckless and injurious financial practices. This year's report is equally informative and engaging, exposing $247 billion dollars' worth of unnecessary spending:

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If we educate ourselves on the way our taxpayer dollars are being used and the ways in which further waste can be prevented, we can make a difference; and Senator Lankford, by highlighting even a few of the countless poor choices resulting in our $19 trillion-dollar debt, is taking an important step in the right direction.


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