One of the more irritating rituals in our fine Republic is the SCOTUS Senate hearing process. I realize I might be in the minority here, but it strikes me as a rather absurd exercise in theater, in which Senators posture and grandstand over their pet issues while the nominee sits for hours patiently listening to the Senator blather, then answering or avoiding questions usually designed to trap the nominee into saying something damaging. The theory is these hearings provide the public an opportunity to hear directly from the nominee about his judicial philosophy, but in reality, nothing terribly useful comes from these hearings, other than a reminder that we’re governed by a pack of buffoons and lunatics.
Speaking of buffoons, did you see Al Franken’s performance during the Gorsuch hearings? It’s a perfect example of this Theater of the Absurd. Franken spent the better part of six minutes rambling on and on about various Democrat grievances, including Merrick Garland, before Gorsuch was allowed to respond. But Franken started his diatribe with a discussion of Gorsuch's dissent in the infamous “Trucker” case, TransAm Trucking, Inc. v. Administrative Review Board. Here’s what happened in that case: A truck driver working for TransAm was stranded on the side of the road in winter when the brakes on his trailer froze. He called TransAm for help and was instructed to wait there for help to arrive. He spent a few hours waiting but his heater malfunctioned and he became very cold. At that point, having called dispatch again and told to keep waiting, he decided to unhitch his cab from the trailer and drive to the nearest gas station. TransAm later fired him for disobeying orders and abandoning his goods. The sole question in the case before the 10th Circuit was whether the trucker “refused to operate” a vehicle out of safety concerns. If so, under the Surface Transportation Assistance Act, he was wrongfully discharged. The Labor Department, which is the agency in charge of administering the STAA, decided that the trucker “refused to operate” the truck out of safety concerns, despite the fact that TransAm instructed him NOT to operate the truck and he, in fact, DID operate the truck against TransAm’s instructions. I’ve written about the Chevron doctrine before here, but the basic gist is this: If the statute at issue, here the STAA, is ambiguous on its face, the court is supposed to defer to an agency’s reasonable interpretation of the statute. The majority of the court decided that the phrase “refused to operate” was ambiguous and deferred to the Labor Department’s interpretation. Judge Gorsuch wrote a dissent, in which he pointed out, quite reasonably, that under the plain meaning of the phrase “refused to operate,” the trucker did not refuse to operate the truck out of safety concerns but, instead, refused to NOT operate the truck, and did so against his employer’s explicit instructions. Now, this case is a picture perfect example of one of the problems with the Chevron doctrine. Courts will often bend over backwards to find statutory language ambiguous and then defer to the agency’s interpretation. This effectively delegates the court’s authority to interpret statutes to the agency. The theory behind Chevron is that the agency supposedly has the expertise to deal with the particular area it administers. But this ignores the fact that the court has the expertise to interpret statutes. It’s that activity—statutory interpretation—that is delegated to the agency under Chevron. In any event, Al Franken and all sorts of other characters on the Left are up in arms about the result under Gorsuch’s dissent that the trucker could be fired for not wanting to freeze “to death!” waiting for help. So, Franken went off during the Gorsuch hearing in a rather pathetic attempt to out-legal the esteemed judge. Franken didn’t even try to justify the majority’s view that “refused to operate” encompasses a refusal to not operate. Instead, he tried absurdity, which is to be fair one of his specialties, but here not in the way he thinks. Because, in the Left’s view, results of lawsuits are all that matter, Franken tried to argue that the plain language of a statute can be disregarded when it produces an absurd result, such as a trucker getting fired for refusing to freeze to death. In Franken’s shining, Perry Mason moment, he declared: “I had a career in identifying absurdity and I know it when I see it.” The problem is, as Gorsuch explained, under the law a court can only apply this “absurdity doctrine” to disregard the plain meaning of a statute in cases where there is a typo or “scrivener’s error,” and not when the court simply disagrees with a policy. To which the Senator from Minnesota responded, “When there’s a scribner there?” “No,” Gorsuch replied, “a scrivener’s error.” At this point, anyone with half a brain would be shaking his head at Franken’s absurdity. But in the Left’s Theater of the Absurd, Franken is a hero for acting as if the law is merely a plaything one manipulates to achieve the desired result, and that courts are allowed to disregard the law when the result would be undesirable. For the rest of us, I think we know absurdity when we see it, Senator Franken.
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House Republicans have introduced an Obamacare replacement, and no one seems happy. Defenders of Obamacare are upset that it rolls back some of the scope of Obamacare and some of the funding, while opponents of Obamacare are upset that it doesn’t roll back more than it does. It is not entirely certain that the bill will pass the House, and it seems really unlikely to get through the Senate, where a number of Republican Senators (Rand Paul, Mike Lee, Ben Sasse, among others) have already expressed their intention of voting against it.
There are a lot of criticisms of the bill, which is one of the most amazingly unpopular pieces of proposed major legislation that I ever remember, but I am going to focus on one in particular that I find really irritating. We’re upset, it seems, because the new bill is going to ask old people to pay more for their own health care. It is, in the words of the David Cetner of the AARP (America’s Most Loathsome Lobbyist Organization) “an age tax.” The combination of decreased tax credits for the elderly and higher premiums for older people is a “double whammy” that is just super, super unfair to all of those poor seniors who are barely surviving on their meager fixed incomes. Keep in mind that no one is asking them to actually pay for their own care…this is just a suggestion that they shoulder a larger (but still incomplete) portion of their obviously higher health care costs. Now that Mr. Cetner has made his opinions known on behalf of the Insurance Company that he works for (what, you thought the AARP was a non-profit advocate for seniors? That’s so silly of you!), I would like to offer a rebuttal to his decrepit constituents. Fuck off. Yea, that’s right; I’ve had more than I can take about the poor, disadvantaged seniors struggling to get by and desperately in need of more subsidies, benefits and tax breaks paid for by those of us in the workforce. Are there poor seniors? Absolutely. But there are a lot of poor young people, too. In fact, there are a lot more poor young people than there are poor seniors. And those seniors have built an economy and a society that will make it harder for those poor young people to get ahead than it ever was for today’s seniors. Let’s start with a really awkward fact: old people are the richest segment of the population. They don’t earn as much as younger people (most of them don’t actually earn anything) but they have more. A lot more. The median net worth of Americans over age 65 is five times that of Americans between ages 35-44. It is more than double that of people between 45 and 54, people who should be growing that net worth rapidly to solidify their own retirement as to not be in a position to have to leech off of their children and grandchildren. It is close to 40x more than the median net worth of Americans under 35, a number that is skewed by the fact that the median net worth for Americans between 18 and 35 is barely above zero. In it a coincidence that our tax code punishes the earning of income more than it punishes the ownership of assets..? I don’t mean to imply that every penny-pinching grandma in America is secretly living on Easy Street, and the truth is that the median net worth of seniors (~200k) is not all that impressive. I am just trying to remind everyone that a benefit given by government seniors is necessarily paid for by people who are, on the whole, poorer than the seniors receiving the benefit. {While we’re on the subject, whose fault is it that an entire generation of people have remarkably little savings despite spending their entire adult lives in a period of expanding economies, under-taxation and exploding asset prices? If a person merely paid their mortgage every month and didn’t save another nickel, he’d likely end up with more money than the median senior has. But sure, tell me how irresponsible Millennials are.} Not only do seniors have more, but they also pay less for an awful lot of things. A website called seniordiscount.com claims to have identified 250,000 different discounts available to seniors. They get a higher standard income tax deduction, AND they get an additional senior tax credit just for being old. At the local level, they may very well get a property tax easement despite almost certainly already paying a lot less to live in their community than their neighbors. Young people pay more for car insurance, because they present demonstrably higher risks and higher expected payments by the insurer. The expected health care costs of old people are larger than those of young people by a massive factor more than the opposite is true of car insurance expectations. Doesn’t it stand to reason that we would ask the richest Americans to pay more for a service they will use more than everyone else? Seniors pay lower fares on public transportation and lower admissions to all kinds of events and public institutions (museums, theaters, etc.). Grocery stores give them discounts for shopping at certain times, pharmacies give them discounts, clothing stores offer discounts, and restaurants typically charge them less than they charge normal people. But next time you are in Applebee’s, ask your gainfully-employed but likely poorer-than-them server if seniors are in the habit of calculating their 12% tips during the early bird on the 15% senior discounted price or the actual retail price. (OK, that is totally unfair, but I couldn’t resist an early bird/cheap tipper joke). Hold on, because it gets worse. Not only do seniors have more money than young people, and not only do they pay less for a huge range of things, but they lived their entire lives in a much easier economic environment than they have left for their kids. Today’s seniors had the opportunity to go to college without running up a debt equal to three or four times their first year’s salary. In a less-competitive global environment, it was a lot easier for the least capable, least skilled of them to earn a decent living. They also (at least until the 1980’s) didn’t have to pay 7% of their income to support entitlement payments to the old people of their day – and invisibly cost their employer just as much on top of that. They bought houses before the value of those homes was inflated by government-incentives and mortgage guarantees. Then they sold those homes (realizing enormous non-taxable capital gains) to young people who took on large mortgages to buy out the equity of those old people. Old people didn’t inherit a national debt equal to GDP, or unfunded liabilities a multiple larger than that. In fact, they ran up most of that tab. This is actually a really important point as we get ready for the inevitable cries of the “sacred promises” that we have made to seniors, or their own claims that they have “paid their fair share into the system and only want what they are entitled to.” There has never been a group of people at any time in human history who consumed more than they paid for on a scale even close to today’s American seniors. Why do we have a $20 T national debt? Because two generations of Americans consciously decided to never, ever pay for the government that they consumed, and repeatedly voted for candidates who promised to stick the bill with their kids. Since 1957, the United States has been a net borrower ever single year. Every. Single. Year. Today’s 75 year old, in other words, has never once paid for the entirety of the government that he or she consumed in any single year. They argue during every election about who is or isn’t paying their fair share, ignoring the obvious answer to that question: nobody. This doesn’t even take into account the unfunded Social Security and Medicare liabilities; it is just the straight cash in and out every year. They never ONCE paid for everything they consumed. They voted themselves tax cuts and new entitlements, started wars all over the world and grew every single tentacle of the Federal Government, but now they have the audacity to tell me and my peers that we’re the lazy entitled ones. That we have a moral obligation to make good on promises that they made to themselves. This would be like the juniors on student council at a University passing a rule that said next year, all Seniors’ tuition is to be paid by Freshman, and then telling those new Freshman when they show up that they now have a moral obligation to make good on the promise. Excuse me while I sit over here not giving a shit about their obnoxious, bratty whining. I’m sure this reads as a heartless dismissal of the real issues of poverty among seniors, which isn’t (wholly) my intention. In fact, if it were up to me, I’d suggest that we increase Social Security payments on the low end, funded by ending all benefits to the wealthiest seniors (explain to me why the “safety net” requires sending something like $2,500 a month to over 4 million recipients with a net worth of over $2 million). But please, in the interest of having an intellectually honest debate, spare me the crying about all of the “poor victims of this insipid new age tax.” If there are victims of the great inter-generational wealth wars, it is certainly not today’s senior citizens. {Authors note: this totally doesn't apply to your Grandmother, who loves you very much and would never do anything to hurt you. We still love her.}
In comments at a speech in Louisville Monday, President Donald Trump once again attacked beleaguered ex-49ers quarterback Colin Kaepernick. This was, and will likely remain, an easy pitching wedge for Trump: the pro-Trump Kentucky crowd was more than happy that their man in the White House was taking credit for Kaepernick’s inability to sign with a new team, and a pro-Trump crowd anywhere in the country would likely have been all too ready to cheer on the demise of an infamous National Anthem sitter. But there’s a deeper issue here: just how much actual bullying of private citizens are we willing to tolerate from the “bully pulpit”?
Teddy Roosevelt didn’t mean bullying in the way we think of it, of course. But it is undeniable that in the modern age of 24/7 news and social media a president can and will use his position to publicly attempt to sway opinion using examples of either individual citizens and businesses. Typically in the case of individual citizens, these examples are positive in nature (think State of the Union guests who are pointed out mid-speech regarding some policy or another). You may disagree with the policy, but the president is at least using the example in a positive way. The question becomes when is this appropriate and legitimate, and when does it cross the line into something which we, as a citizenry comprised of free individuals, should be loathe to accept from our leaders? The Trump-Kaepernick example is illustrative mainly because there is nothing subtle about the players. Trump is bombastic and more than willing to crow about using his position to frighten NFL general managers off of possibly signing the quarterback. Kaepernick, for his part, comes off as a wholly unsympathetic character: he seems like a coddled asshole who a lot of football fans wouldn’t have wanted playing for their favorite team even before the anthem controversy. Add in the racial and patriotic components and you have the perfect American storm. It’s relatively easy, if you’re a right-of-center, red state dwelling individual (even one who didn’t vote for Trump) to not feel particularly upset at the situation. But anyone who considers themselves to be in favor of limiting the power of the federal government should be uncomfortable with Trump’s antics now that he’s president. Using Kaepernick as a foil as a presidential candidate was one thing. At the time Trump had no more power to influence the business of the NFL than any other very famous person, and in any event was not technically speaking as a government official. But once elected he immediately assumed the responsibility of the power of the entire executive branch of the federal government, a power capable of much destruction. It is very easy to imagine NFL general managers and owners not wanting to risk another season of Donald Trump bashing the NFL as the actual president of the United States. There is some flavor of turnabout being fair play on the Right in the attitudes towards the Trump vs. Kaepernick issue. It’s understandable, given eight years of President If You’ve Got a Business, You Didn’t Build That. But to accept a president targeting a specific business (as opposed to a general industry like, say, Obama and coal), or worse, a specific individual, is to condone a misuse of power and a violation of the seriousness of the office which should be at the least distasteful to conservatives.It should truthfully be unacceptable to anyone who professes a desire for a smaller, more decentralized government. A zebra can’t change his stripes, and President Trump isn’t going to change. It would be nice to believe that a few Congressmen who purportedly desire a reining in of executive authority will at some point call out the President for this type of thing. It would be even nicer if a few of those Congressmen took legislative steps to actually rein in executive power. Neither is likely, and no breaths will be held. But, in all likelihood, President Trump will at some point publicly attack a private business or citizen who isn’t quite as unpopular with his supporters as Colin Kaepernick, and the reality of out of control executive power, and how it might be wielded by an unscrupulous bully, will dawn on them finally. And some of us will just point and laugh. |
MisfitsJust a gaggle of people from all over who have similar interests and loud opinions mixed with a dose of humor. We met on Twitter. Archives
January 2024
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