According to President Obama, Google and Facebook owe their existence to the government.

“I believe in investing in basic research and science because I understand that all these extraordinary companies that are these enormous wealth-generators — many of them would have never been there;  Google, Facebook would not exist, had it not been for investments that we made as a country in basic science and research[…] I understand that makes us all better off.”

There are a few problems with this statement (which is aimed at attacking the Ryan budget plan).  First, the Advanced Research Projects Agency, predecessor to the Defense Advanced Research Projects Agency, initially seeded the internet.  One of the major criticisms of the left regarding Ryan’s plan is that the major area where he doesn’t cut enough (as opposed to too much everywhere else) is the defense budget.  Thus, if Obama’s logic is government = ARPA/DARPA and DARPA = internet and internet = Google/Facebook, then Obama has chosen, as his primary example of an area in which the government budget should not be cut, the one area in which his party says there aren’t enough cuts.  Second, his implicit assumption is that the internet would not have been created without ARPA.  Is that really credible?  With the advances in computing power and network communications it was almost inevitable the internet would be created, if not as quickly (see the French Minitel).  Third, by Obama’s logic credit for anything and everything is owed to the government.  He starts at research, but we can go back even farther.  For Google/Facebook to exist, you had to have ARPA, to have ARPA you had to have the Department of Defense, to have the DoD you had to have passed a law providing for its formation, to pass the law you had to have Congress, to have Congress you had to have founded the United States.  Ergo, all inventions and progress stem from government.  But why stop there?  To have the U.S. you had to have Britain, which had to have Romans, which had to have…

There is no doubt that the composition and character of the United States make possible the existence of a host of inventions and thoughts.  A stable democracy, with rule of law and a well functioning securities market are all undoubtedly, in part, responsible for the many wonderful things Americans produce.  Without such features, it would be much more difficult.  However, simply because the environment for individual innovation, which we provide, is a necessary precondition, that does not mean it is sufficient.  The idea that the federal government is responsible, in any direct and meaningful sense of the word, for companies like Google and Facebook is a fallacious notion.

According to the Washington Examiner, last year’s Senate was the laziest in 20 years:

On the passage of public laws, arguably its most important job, the Senate notched just 90, the second lowest in 20 years, and it passed a total of 402 measures, also the second lowest. And as the president has been complaining about, the chamber confirmed a 20-year low of 19,815 judicial and other nominations.

The Secretary of the Senate’s office didn’t comment on the statistics, but it did provide a comparison to action in 2009, the first term of the 111th Senate, when many of President Obama’s initiatives were considered by the Democratically-controlled House and Senate. By comparison the number of Senate bills offered last year was down 30 percent, the number of amendments offered sank 55 percent, and the number of roll call votes dropped 40 percent.

I would never dream of defending Harry Reid’s leadership, but let’s think about the metrics we want to use to measure the success or failure of the Senate.  Given all of the bad law that emerges from Congress, the fact that the upper chamber failed to produce as much legislation last year as in years past may be a very good thing.  The quality of legislation, if there is a causal relationship, is almost certainly inversely proportional to the quantity of legislation produced.

Ronald Dworkin has an article in the New York Review of Books Blog (a preview of a longer piece to be run in the NYR), which is entitled “Why the Health Care Challenge Is Wrong.”  Dworkin’s piece, like so many others of later, argues that there is nothing unconstitutional about the Affordable Care Act, and proceeds to outline his arguments.  The problem with Dworkin’s analysis is that he conflates personal opinion, political analysis and legal analysis to wind up with a pastiche of unsupported assertions and declarative sentences that have little or no basis in fact.

Dworkin gets started right away, alleging, like so many other liberals who like the political conception behind the ACA, alleging that it is clearly constitutional.

 The political and social stakes are enormous, but the legal issues, most analysts think, are not really controversial: the Constitution’s text, the Supreme Court’s own precedents, and basic constitutional principle seem obviously to require upholding the act. Many legal scholars predicted a 7-2 decision rejecting the challenge. But they apparently misjudged the dedication of the ultra conservative justices, whose questions in the oral argument have now convinced most commentators that on the contrary, in spite of text, precedent and principle, the Court will declare the Act unconstitutional in June, by a 5-4 vote.

Let’s leave aside that the “most analysts think” rhetoric is an unsupported statement.  Dworkin’s statements above are bereft of analysis and use adjectival language to make the case that, somehow, Dworkin’s position is sound, while those opposing it are extreme.  He sets up the argument as follows: (1) there is no controversy; (2) “many” legal scholars predicted a 7-2 decision (thus implying that it is a clear-cut case in his favor; (3) the only reason why the decision won’t be in Dworkin’s favor is because the justices who may rule against is are “ultra conservative”; and (4) if the justices rule against the ACA it is because “in spite of text, precedent and principle.”  These are the arguments of a policy partisan providing a political reason for why his policy may not be upheld, not the analysis of a legal scholar drilling into the issues.

Dworkin’s next argument is that because the ACA is politically desirable, the law should bend to accommodate it.

 The prospect of an overruling is frightening. American health care is an unjust and expensive shambles; only a comprehensive national program can even begin to repair it. If the Court does declare the Act unconstitutional, it will have ruled that Congress lacks the power to adopt what it thought the most effective, efficient, fair, and politically viable remedy—not because that national remedy would violate anybody’s rights, or limit anyone’s liberty in ways a state government could not, or would be otherwise unfair, but for the sole reason that in the Court’s opinion the strict and arbitrary language of an antique Constitution denies our national legislature the power to enact the only politically possible national program.

What’s truly frightening is not the prospect that the ACA might be overruled, but that Dworkin advocates trashing the Constitution because it’s getting in his way.  The great strength of our Constitution is that it divides authority and prohibits the various centers of power from overreaching or usurping the rights of others.  The system is not set up to be efficient (as Dworkin would like).  Quite the contrary, the system is set up to be inefficient, to pit power against power and default to a stalemate.  This has been a fantastic system, one that has prevented extremism in our government and any one ideology becoming too powerful.  For Dworkin, however, who wants his ideology to prevail and squash competing viewpoints, the separation of powers is, as he says, an “antique” notion that interferes with a more efficient government.  Since Dworkin is a liberal, I presume he is still in favor of keeping those provisions of the Constitution he likes, such as the right to free speech, protection from unreasonable searches and the right to counsel.  However, in a Dworkin world, all of those rights should disappear, as well, if they interfere with the “efficient” operations of government.  It is a truly frightening prospect, not least because dictatorships often argue that they can rise above the petty bickering and divisions inherent in a republic and “get things done.”

And what are we to make of this statement: “…not because that national remedy would violate anybody’s rights, or limit anyone’s liberty in ways a state government could not, or would be otherwise unfair, but for the sole reason that in the Court’s opinion…”?  Dworkin is a learned man, who taught at Yale Law School.  Is he really unable to grasp the concept of separation of powers and the idea that the states have police powers and the federal government does not?  Since we know his background, I can only assume he makes this argument because he believes that such a separation should not exist, which is a political thought but not a legal argument.  Contrast this with those who oppose the ACA on both political and constitutional grounds.  I know of no scholars arguing against the ACA’s individual mandate on the grounds of unconstitutionality that also argue it is impermissible for the states to set up a similar system.  These scholars acknowledge that the states have the police power to force individuals into insurance programs even if it is bad policy.

Dworkin’s next point is equally revealing.  He purposefully misreads the Constitution in order to make his political case:

Why is the difference between restricting and requiring activity so important? Not because the language or underlying principles of the Constitution demand that distinction. The Constitution’s architects were guided by a principle that makes the distinction irrelevant: that Congress should be assigned only those powers that could not effectively be reserved to the states. They believed that if the effects of a particular political decision would be felt only or mainly within a particular state, that decision should be made by that state because decisions by state officials would be more sensitive to local needs and local opinion. But if some matter could only sensibly be settled at the national level, like decisions about foreign trade or the terms of trade among citizens of different states, then the principle required that Congress have the power to decide it. That test can be applied without distinction to both negative and affirmative regulation.

In the above paragraph, Dworkin manages not only to misread history, but also the Constitution itself.   The purpose behind the Commerce Clause was to prevent states from interfering with the commerce of non-citizens.  Congress was worried that Georgia might require citizens from North Carolina doing business in the state to undergo a burden that citizens of Georgia would not bear.  It was not the intent of the Founders to simply grant the federal government unfettered power to make whatever regulations it felt like merely because it felt an issue could not be resolved at the state level.  Even the examples Dworkin gives reveals the weakness of his position: the ability to regulate both foreign trade and trade amongst the states are specifically mentioned as enumerated powers of the federal government in Article 1, Section 8, Clause 3, they are not residual powers.  As for the line in bold above, it is an open and shut case of Constitutional ignorance.   I am at a loss as to how Dworkin could possibly write that the Constitution gives powers to the federal government “that could not effectively be reserved to the states.”  We have two Constitutional Amendments (Nine and Ten) which clearly, and specifically, grant any powers not delegated to the federal government to the people and the states.  This is precisely the opposite of what Dworkin rights.  He is alleging that any residual powers not explicitly granted to the states should devolve to Congress.  The only way that logic works is if the system were the exact opposite of what the Founders intended and what they embodied in the Constitution.

Time and again in this article Dworkin displays a shocking disregard for the separation of powers and the checks and balance system that the Constitution provides for.  Here is another example:

 His second argument was even stronger. Every American already has health insurance; the mandate only requires that he pay for his insurance rather than free-loading on those who do pay. A federal statute and several state statutes require hospitals to provide emergency medical care to people who cannot pay for it, and America’s traditions of compassion mean that doctors will not let people die in pain when they can easily save or help them. In practice, this means that the uninsured will go to costly ER facilities when they need medical help. Congress found that health care for uninsured patients cost $43 billion in 2008; these costs were paid, through higher premiums, by those who do buy insurance.

Dworkin is referring to the Emergency Medical Treatment and Active Labor Act (EMTALA), which says that hospitals must treat critical patients regardless of their ability to pay.  However, Dworkin fails to mention that EMTALA, which is federal legislation, does not apply to all hospitals.  It only applies to hospitals that accept payment from the Department of Health and Human Services and the Centers for Medicare and Medicaid Services, which are federal programs.  In practice, nearly every hospital does accept payments from these sources, and thus are subject to federal regulations, but it is their choice to accept such payments (and thus engage in interstate commerce).  There are some hospitals who do not accept payments from these sources and thus are not subject to EMTALA.  Dworkin has either failed to read the law or is purposefully misleading in his argument.  This notion is further reinforced by the fact that Dworkin, yet again, lumps state and federal together, when the division between state and federal power is at the heart of this entire matter.  A hospital in New Jersey that does not accept federal payments does not need to follow EMTALA.  If New Jersey has an identical law to EMTALA, which applies to all hospitals in New Jersey, there is nothing that the hospital can do to exempt itself from providing emergency care.

The conflation of state and federal power in Dworkin’s piece appears again and again.  If this were the work of a first year law student, I would assume that he simply had not yet read the Constitution or the history behind it.  Coming from Dworkin, it looks like an attempt to break down the separation of powers and to argue that because they are inconvenient, they should be eliminated.  This supposition is further reinforced by the following argument from Dworkin:

So we may ask: is there a constitutional limiting principle that would allow Massachusetts to impose that mandate but prevent it from requiring its residents to join health clubs or buy broccoli? There are of course constitutional limits to any power of government. Neither the indirect mandate of taxation nor any more direct mandate may be discriminatory or irrational, neither may deny due process, and each must serve some proper purpose of government. But are there any special limiting principles that would prohibit a state requiring broccoli purchase in a rational and fair way?

No. We are protected from silly state mandates not because the Constitution rules them out but because politics does. No state legislature would dare to make broccoli purchase compulsory unless, for some hard-to-imagine reason, this was plainly the only way to avert some economic catastrophe. The role of democratic politics in protecting citizens against legislative corruption or stupidity does not depend on whether the legislature wants to require or forbid economic activity, however. Voters would be no less outraged by a state legislature’s decision to ban automobiles altogether than by its decision to make them buy electric cars.

If we do not need a limiting constitutional principle to stop a state from outrageous economic legislation, we do not need any such principle to stop the national Congress, within its proper sphere, either. The Court can allow Congress, as it allows Massachusetts, to mandate health insurance without finding a constitutional barrier to a national compulsory broccoli purchase. Politics supplies the appropriate check in both cases. So we must turn to the genuinely important question, the second question I distinguished. What is Congress’s proper sphere of control in health care matters?

What does the above argument amount to?  It is nothing less than a call for the abolition of the Constitution and its fundamental purpose of prohibiting overreaching state power.  Dworkin is arguing for eliminating those provisions of the Constitution that protect the minority from being discriminated against by the majority.  The entire purpose of separating power and spelling out enumerated powers for the federal government is to put limitations on the government, despite the will of a slim majority.  We can change the Constitution, but only when it is overwhelming agreed to by the public (2/3 both houses, ¾ sates) that such a change is warranted.

Dworkin seeks to replace that protection with the protection of politics.  “No state legislature,” he says,  “would dare to make broccoli purchase compulsory unless, for some hard-to-imagine reason, this was plainly the only way to avert some economic catastrophe.”  I am going to leave aside the fact that Dworkin references a “state legislature,” which most people (even those opposing the ACA) agree can force broccoli purchases and health insurance mandates and approach this from the federal level, since that is really the concern.  How does Dworkin know Congress won’t pass a broccoli mandate?  Congress passes lots of stupid pieces of legislation – it does it all of the time.  Simply because Dworkin can’t foresee Congress passing a ridiculous law, that does not mean that it won’t.

I am curious to know what Dworkin’s view is on the unfettered power of Congress to dictate non-economic issues in the same way.  If Congress were to pass a law banning gay marriage, or a law that says no warrant is needed to arrest a suspected terrorist or a law that prohibits insulting a politician would he defend those laws from attack based on Constitutional objections and instead simply assert that the people can vote a new Congress into office?  I highly doubt it.

Dworkin has put down a chalk mark with this article.  He is willing to eviscerate the separation of powers and the checks and balances system of our government because he feels it hampers moving the country in a “progressive” direction.  He conflates state and federal power over and over, failing to acknowledge that our system of government is a republic comprised of states with police power and a federal government with limited powers.  Because his Constitutional arguments are weak, Dworkin falls back on political arguments and dresses them up as legal ones.  His arguments regarding the Constitutionality of the ACA amount to nothing more than ‘it is a good idea, therefore it should be legal.”  The ACA may be good policy (I’m inclined to believe otherwise), but that cannot be a legal justification for its Constitutionality.  If the law is not within the authority of Congress to adopt, no matter how good an idea it may be, it is not valid.

Last week, President Obama was caught on an open microphone pandering to Dmitri Medvedev, telling him that after the U.S. Presidential election is over, he will have more flexibility to deal with missile defense issues, the message being that he would prefer to be more lenient and give more to Russia than the public would like.  After the election, when the issue can no longer be used to impeach his foreign policy credentials and affect the voting, presumably Obama intends to acquiesce to major portions of Russia’s position.

After the incident, Mitt Romney went on the offensive, calling Russia our “number one geopolitical foe.”  Vice President Biden then criticized Romney, stating “This is not 1956… [w]e have disagreements with Russia, but they’re united with us on Iran. One of only two ways we’re getting material into Afghanistan to our troops is through Russia … if there is an oil shutdown in any way in the Gulf, they’ll consider increasing oil supplies to Europe.”  Secretary of State Hilary Clinton stated “I think it’s somewhat dated to be looking backwards instead of being realistic about where we agree, where we don’t agree.”

Biden and Clinton are undoubtedly correct that our relationship with Russia is vastly different the it was with the Soviet Union, and we should approach it differently.  However, it is the Obama administration, not Romney, that is mired in a Cold War frame of mind with respect to Russia.  Actually, it might be fairer to say that the administration is schizophrenic.  When it comes to public platitudes, photo ops, trade and energy policy the Obama administration has taken the position that Russia is a relatively innocuous country with a leadership that can be actively engaged and reasoned with to find common ground.  However, when it comes to nuclear policy, the administration’s policy is calcified in the Cold War, as is clearly evidenced by its stance on nuclear and missile defense issues.

The nuclear issue could not be more clear.  President Obama, in his 2009 speech in Prague, stated: “To reduce our warheads and stockpiles, we will negotiate a new Strategic Arms Reduction Treaty with the Russians this year. (Applause.) President Medvedev and I began this process in London, and will seek a new agreement by the end of this year that is legally binding and sufficiently bold. And this will set the stage for further cuts, and we will seek to include all nuclear weapons states in this endeavor.”  Just last month, Obama in a speech said: “We can already say with confidence that we have more nuclear weapons than we need.”

Obama’s statements are irreconcilable with those of Clinton and Biden.  According to Obama, we had too many nuclear weapons in 2009, and we still do in 2012.  Yet, despite this allegation, the Obama administration did not unilaterally cut the U.S. nuclear stockpile.  If we are no longer in the Cold War, and Russia is not a strategic threat in the same vein as the Soviet Union, then logically there is no reason not to unilaterally cut unnecessary and costly nuclear weapons from our stockpile.  What did the Obama administration do instead?  It entered into the bilateral New START talks with Russia, an action that is both inconsistent and illogical if you believe Clinton & Biden.

The only reason to have entered into the New START talks, and to ratify the treaty was if you had a Cold War mentality that Russia and the Soviet Union were, for purposes of nuclear discussions, essentially the same.  Every other nuclear power was left out of the discussion, just as would have occurred during the Cold War.

Similarly, when dealing with missile defense, this administration has demonstrated a Cold War mentality.  Much of our missile defense debate is absorbed by what the Russians will think and do. We talk about negotiating with them, about sharing information with them and even, perhaps, sharing our system with them as a way of buying their acquiescence.  Time and time again Putin has objected to some aspect of U.S. missile defense and, time and time again, we go to negotiate with Russia, as if they should have some input into our missile defense posture.  The reason the administration has done this is clearly the result of a Cold War mentality, where we don’t want to push Russia/the Soviet Union too far.  If our foreign policy establishment and the administration did not have this attitude, then every time the Russians objected, we would simply tell them, nicely, to go pound sand.  We don’t.  Instead, we bargain with them, bilaterally, in the same manner as we would have with the Soviet Union.

All of that said, Romney is still right to view Russia as a threat and Clinton/Biden are wrong in their assessment of Russia’s friendliness.  There never was a “reset.”  Russia, under Putin’s leadership, is fundamentally opposed to the United States.  At every turn, Russia takes the opportunity to stand in the way of U.S. interests, whether it is Iraq, Iran, missile defense, Libya, human rights, etc.  The Russian administration is corrupt and fundamentally opposed to U.S. power and U.S. interests.  Despite the myriad instances of Russia working against the United States, the foreign policy arm of the Obama administration adheres to the fantasy that Russia can be a strategic ally of the United States.

To that end, it applies a see no evil/hear no evil approach, purposefully failing to acknowledge the ways in which Russia has opposed U.S. strategic interests.  Biden’s comment about Russia “consider[ing] increasing oil supplies to Europe” in the event of an Iranian problem is a perfect example of this willful blindness.  Just a few years ago, Russia was using the threat of withholding energy from our allies in Europe as a way to undermine U.S. influence in the region.  Now, the Vice President is claiming Russia will work with the United States to increase energy supplies should a shortage arise.  This is foolish speculation; history indicates that the opposite is likely to occur.  If Iran spirals downward and energy prices increase a result, this will only give Russia a greater ability to use energy as a weapon in Europe, and more of an incentive to do so.  If Biden and other members of the foreign policy establishment fail to understand that dynamic, they are fools.  If they do understand the dynamic, but have chosen not to mention it for diplomacy’s sake so that they can pretend Russia is a legitimate partner, then they are doing a disservice to the American people.

It is debatable that Russia is our greatest geopolitical foe – there are many contenders – but it is certainly near the top.  Calling out Russia’s corrupt leadership, its dirty policies and its record of undermining U.S. interests does not show Romney to be stuck in a Cold War mentality – he does not allege that Russia is special.  Rather, it shows that he understands Russia, like many other countries, such as China, Iran, North Korea and Sudan is a threat to U.S. interests.  Contrast that with the Obama administration which, through its actions, has treated Russia as a special case, agreeing to treaties and entering into negotiations as if it carries both the power and intent of the Soviet Union.

Over the last week, we have heard a chorus of voices on the left arguing that striking down the Affordable Care Act will constitute “judicial activism,” something which conservatives have railed against for years.  It is increasingly frustrating to listen to commentators on the left, who disingenuously argue against judicial activism, having preached its merits for years, mis-characterize, either purposefully or from a lack of comprehension, what judicial activism is. Today, President Obama chimed in.

I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step.

This statement summarizes the canard about judicial activism that has been making the rounds.  Judicial activism occurs when a court effectively acts as a legislative body, substituting its own judgment about what that law should be, rather than simply interpreting the law.  Thus, if a case came before a court regarding a state law that prohibited a liquor store from selling cold soft drinks and the court, merely because the judges found the law to be idiotic, invalidated the law, the judges would be guilty of judicial activism.  On the other hand, when a judge strikes down a law because it conflicts with a superior law (such as striking down a statute that forbids criticizing politicians on the basis that it violates the First Amendment) he is not substituting his judgment about what the law should be for what the law is, he is substituting the higher law for the lesser one.  Not only is this not judicial activism, it is his sworn duty.