Gerrymander.jpgYesterday, the Supreme Court affirmed the Middle District of North Carolina in Cooper v. Harris, 15-1262, deciding that the 1st Congressional District and controversial 12th District were impermissibly drawn for the purposes of political and racial gerrymandering. The 1st District encapsulates a comparatively contiguous expanse of territory in the northeast of the state, but also includes several highly irregular strips of land designed to contain predominantly Democratic and minority communities. The other zone before the Court in Cooper is the N.C. 12th, a chronically contorted district that is, according to the majority opinion, "making its fifth(!) appearance before this Court" (emphasis in original). The 12th is an extraordinarily narrow corridor one hundred and twenty miles in length, though no more than twenty miles wide at its broadest point in the vicinity of the city of Charlotte - its singular design has been varyingly described during its long career in the courts as "questionable" (Easley v. Cromartie, 532 U.S. 234 (2001)), "serpentine" (as it was in Shaw v. Hunt, 517 U.S. 899 (1996)),"snakelike" with "knobs" (the new and improved version before the Court today), "tortured," (appellees' brief in Cooper), and simply "bizarre" (Hunt v. Cromartie, 526 U.S. 541 (1999)).


In declaring the deliberate dilution of minority votes evinced in Districts 1 and 12 unconstitutional, the Court may be returning to its long history of protecting voters' right to cast a meaningful ballot. Prior to 1962, the judiciary was inclined to view such inequities as political and not legal problems, but as Justice Brennan expostulated in Baker v. Carr: "Of course the mere fact that the suit seeks protection of a political right does not mean it presents a political question." 369 U.S. 186. Two years later, the Court per Chief Justice Warren conclusively established that "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system." Reynolds v. Sims, 377 U.S. 533 (1964), see also Miller v. Johnson, 515 U.S. 900 (1995). The Court has also long maintained that the Constitution was designed to "withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles." West Virginia v. Barnette, 319 U.S. 624 (1943). In 2013, the Court notoriously departed from this tradition of protecting the integrity of Americans' voting rights in Shelby County v. Holder, in which it invalidated a key section of the Voting Rights Act. However, its holding yesterday may signal a restoration of its prior jurisprudence.


In a meticulously detailed, lively decision authored by Justice Elena Kagan, the Court unilaterally rejects the North Carolina redistricting system as unjustifiably discriminatory. The opinion begins with a clear standard by which the plan is to be judged: "The Constitution entrusts States with the job of designing congressional districts. But it also imposes an important constraint: A State may not use race as the predominant factor in drawing lines unless it has a compelling reason." It goes on to eliminate the State's contention that the plaintiffs, local voters David Harris and Christine Bowser, lack standing due to an earlier lawsuit in state court by the local NAACP. The merits of the case were then clearly dealt with. In striking down the new lines of District 1, Justice Kagan denounced North Carolina's unlawful scheme and unequivocally held that the Court will not "approve a racial gerrymander whose necessity is supported by no evidence and whose raison d'etre is a legal mistake." The final portion of the opinion clarifies the meaning of Easley v. Cromartie, which the State interpreted as requiring plaintiffs in redistricting cases not only to prove that a contested plan dilutes the votes of minority citizens, but also to propose an alternative plan achieving greater balance. Cooper concisely debunks that notion: "The reasoning of Cromartie II belies that reading. The Court's opinion nowhere attempts to explicate or justify the categorical rule that the State seems to find there... And given the strangeness of that rule - which would treat a mere form of evidence as the very substance of a constitutional claim... - we cannot think that the Court adopted it without any explanation. Still more, the entire thrust of Cromartie II runs counter to an inflexible counter-map requirement." By renewing the Court's commitment to ensuring the preservation of fundamental voting rights and clearly expounding the elements of a gerrymandering claim, Cooper appears to mark a return to the tradition of Reynolds and its progeny.

Octopus.jpgFour days ago, the Senate Judiciary committee held a confirmation hearing for Makan Delrahim, President Trump's nominee to head the DOJ Antitrust Division. The varying policies of each incoming administration can profoundly impact both the livelihoods of thousands of American workers and the prices of hundreds of commodities nationwide - and regardless of prevailing political ideology, it remains a vital responsibility of the Justice Department to ensure that the Sherman and Clayton Acts are stringently and equitably enforced.

Despite his earlier work as a Division prosecutor, Delrahim's complete record on the subject is deeply troubling, as he has helped to orchestrate and obtain regulatory approval for several major mergers. Though he has promised to recuse himself from participation in any action on the merger between Anthem and Cigna due to his earlier representation of Anthem, his involvement with many other conglomerates - Blue Cross and Blue Shield, Google, Merck, U.S. Airways, Johnson & Johnson, Pfizer, and Comcast, to name a few - presents a myriad of other conflicts of interest. Furthermore, his comparatively laissez-faire approach to preserving the free market makes him a questionable choice to be charged with that very task. In the past he has criticized European regulators' rigorous enforcement of their antitrust laws and successful prosecution of foreign-based trusts as "protectionist" abuses of power, comments which suggest that he may not be willing to protect the American free market from the threat posed by alien monopolies engaged in widespread commercial activity here. He has also expressed his belief in virtual immunity for the holders of patents, trademarks, and other intellectual property rights, even when such companies are clearly marketing their products in violation of the Sherman Act. In a climate where increasing oligopoly in the pharmaceutical industry restricts the availability of potentially life-saving medications and raises health insurance premiums even further, and where agribusiness mergers such as Bayer's ill-advised acquisition of Monsanto and ChemChina's notorious purchase of Syngenta could further monopolize the seed industry, it is crucial that regulators remain prepared to challenge these deleterious consolidations. Delrahim has shown no proof that he will adequately do so, and therefore Conscious Commitment cannot endorse his nomination.

Monsanto Executives Sell Off Company Stock

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moneyandrun.jpgSomething is evidently astir inside renowned manufacturer of chemical herbicides and purveyor of unconscionable seed contracts Monsanto, judging by the massive sales of company securities by several prominent executives.

Recently, Monsanto CEO Hugh Grant disclosed in an SEC filing that he has sold 149,230 shares of stock at an average price of $116.15 each, raking in a total of 17.3 million dollars from the transaction and lowering his stake in the corporation by roughly twenty-eight percent. Others at Monsanto have also attempted to divest somewhat: vice president Steven Mizell sold off twenty-one percent of his shares for approximately 1.6 million dollars last April, and sales of Monsanto stock by other company officials and employees, in the past three months alone, have exceeded ten million dollars.

Monsanto's financial prospects have been shaky over the course of the past year. Just this week, it was compelled to withdraw from a deal with John Deere providing for the sale of its Precision Planting assets after the Justice Department challenged the acquisition on antitrust grounds. Even before these latest stock sales, the prices of Monsanto securities had fallen considerably since Bayer AG agreed to pay $128 per share in September. There is currently a multi-district class action litigation pending, alleging that Monsanto knowingly falsified scientific data to conceal the cancer-causing properties of its popular herbicide Roundup. Since the filing of this lawsuit, initial steps have been taken by the State of California to label Roundup as a possible human carcinogen. In addition to all these recent developments, Monsanto has engaged for decades in a pattern and practice of deliberate deception as to the extent of its patents on genetically modified agricultural seeds, and the public is slowly becoming aware of this cozenage. It is unknown whether one or all of these factors influenced the extraordinary actions of Grant, Mizell, and other Monsanto employees with detailed knowledge of the corporation's internal affairs. However, their anxiousness to lessen the connection between their personal finances and the fortunes of the company largely speaks for itself.

Another Broken Promise: The Repeal of NAFTA

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Assembly line.jpgWhen I voiced my support for President Trump shortly before the election back in November, I did so because of his stance on one crucial issue: trade. During the campaign, he unconditionally pledged to repeal NAFTA and work to bring manufacturing jobs back to the United States. However, since then, he morphed this obligation into an effort to "renegotiate" the baneful deal to protect U.S. interests to a greater extent, and only scrap it entirely if that proved impossible; and just this week, he removed even that possibility, promising only to renegotiate NAFTA in a limited way that would be unlikely to materially improve this country's economy.

Trump's renegotiation program is no longer expected to address the wider problem of American corporations outsourcing jobs to foreign factories - rather, it will merely further the chimerical goal of "fair competition" between domestic factories subject to stringent environmental regulations, labor laws, and taxes, and foreign sweatshops in which workers currently earn as little as $3.94 per day. Also, it is unlikely that anything will be done to curb Mexico's deleterious pattern of re-exporting goods, such as clothing or furniture, that originated in the United States as raw materials, such as cotton or timber.

Any changes to the trade deal are likely to affect only a few industries, without any significant impact on the attrition of domestic manufacturing or the availability of American-made products. The renegotiation may lead to the abatement of unfair trade policies placing tariffs upon U.S. dairy products but allowing the untrammeled duty-free flow of Canadian soft lumber into this country; and, possibly, the percentage of North American content required in untaxed auto parts could be raised. However, as time passes and the commitments of the campaign transform into conciliation and compromise, actual reform or repeal of the North American Free Trade Agreement - and actual performance of the promise that got Donald Trump into the White House - seems increasingly improbable.

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.

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