Saturday, April 30, 2011

Baby Joseph breathes on his own, goes home for Easter!

 A quick update on the baby Joseph story, (you know, the one where a Canadian hospital with the government's blessing under their "free" socialist medicine system tried to force the removal of this baby's breathing tube and murder little Joseph who in their opinion was "futile" to provide further care to).  What's that you say?  Death panels and rationing coming to America under Obamacare? Where do you right-wingers get such ridiculous ideas?!? ;)  While you can read more about this story and our opinion about all this here, since this is supposed to be a "quick" update and not on par with our usual in-depth analysis of such issues and the broader one of potential health rationing coming soon to a country near you under Obamacare-- excuse me, the Patient "Protection" and Affordable Care Act-- you can see here our arguments which no liberal has yet to address, (not to mention disprove!).  Nor do we think they can.

  Indeed, whatever the merits of "economies of scale" that "universal care" would provide-- though as pointed out in our So what's really the problem with Obamacare? post we don't think this will make up for the increased costs of all the additional people receiving care and the inflationary pressures on care costs caused by the lack of sufficient health practitioners this will cause-- they pale in comparison to the very real threat that the old adage "he who pays the piper calls the tune" presages here. (To wit, if the government provides that care, their inability to "govern" themselves along with any incentive to "get it right" and insure proper care is given will be completely out the window far worse than is the case with even the "greediest" insurance companies now, only with no effective ability to appeal denials of care to a government who will then be in the "health biz" and be under more, not less, pressure to "cut costs" in order to justify the continued existence of the huge government program that is Obamacare).

  But the long and short of it is baby Joseph was flown home with his parents to their Ontario home after Doctors at the Cardinal Glennon Children's hospital announced the operation the Canadian system wouldn't afford him a smashing success; so smashing in fact that little Joseph is able to breath completely unaided by the ventilator which just a few short weeks ago a Canadian judge had ordered the parents to remove, (so much for the right to make one's own medical decisions in a government-mandated health care system!)

 Needless to say, and re: baby Joseph's triumph, we rejoice in this wonderful end to a tragic story that if it weren't for the "new media" of the internet and the work of Priests for Life likely never would have seen the light of day, (just like the Canadian authorities and hospital wanted for little Joseph!).

 But one final thought worth repeating before I go.  We ALL are going to die in a matter of time, (some more quickly than others, but die nonetheless).  Shouldn't the government rather be in the business of erring on the side of preserving life rather than extinguishing it just to save money?  Such a crazy idea! jp

Note:  For links of better and more comprehensive coverage of this see herehere or here.

Tuesday, April 26, 2011

On Justice Kennedy and "Fast Track" Obamacare Review

 The Supreme Court yesterday declined a request from Virginia Attorney General Ken Cuccinelli to expedite review of the Obama Administration's sprawling and controversial "Patient Protection and Affordable Care Act" which mandates purchase of health insurance by every citizen on penalty of law (also known as "Obamacare").  

 The decision, which just as easily could have went the other way, says nothing about the merits of the law or its constitutionality-- on which almost all acknowledge the High Court will eventually have to rule on, see here-- but has raised lots of speculation on how the Supreme Court will eventually come down on the controversial law pushed through on an almost straight party line vote in the U.S. Congress, (e.g., in the Senate on a 60-39 vote Christmas Eve 2009-- Merry Christmas America!-- and in the U.S. House March 21, 2010 by a vote of 219-212 with only 34 Democrats breaking ranks and opposing the bill along with 178 of their Republican colleagues.  Of course, politically speaking, and mirroring the deep ambivalence towards this legislation of the American electorate-- who promptly expressed their disapproval in the 2010 Mid-term elections-- this contrasts starkly to the much stronger bi-partisan support of other prior momentous legislation in American political history, e.g., the Civil Rights Acts of the 1960's which had broad bi-partisan support, or Social Security in the 1930's under President Roosevelt's "New Deal").

 This interim decision of the highest court in the nation's judicial system, while seen as unwise by some, was seen as a victory for the Obama Administration, who had urged the high court not to expedite review of Obamacare, see here.  And while it is impossible to know for sure the reasons for the Supreme Court's unwillingness to bypass the usual course of cases like this through the Federal Courts of Appeal, it may signal a stronger present hand by the conservative's on the issue as well as more pragmatic liberals who would like to buy more time-- and hopefully better reasons-- with which to persuade Justice Kennedy over to their position before the whole court must officially render a decision on the law.  (Make no mistake, although the Supreme Court was envisioned by the Founders as beyond the "political" forces which blow regularly through Congress, in modern times it has become, unfortunately, more and more "politicized" and accordingly is not immune to the vagaries and influence of interest groups and public opinion alike). 

  Of course, the usual and "accepted" answer to the high court's decline to immediately review such a case is that, by waiting until the various Courts of Appeal have made their decision in the challenges to the law now winding their way through the Federal judiciary, (particularly in the Fourth, Eleventh, and Ninth circuits), the Supreme Court will then have the benefit of the "diversity" in opinion that will no doubt be expressed in the various decisions in the appellate courts-- and the varying legal justifications therefore-- that ostensibly could give them a better understanding of the issues and the pros and cons of ruling in either direction.  We however dismiss with the naive notion that other courts can "school" the U.S. Supreme court in its own precedents, or that the High Court will allow them to do so; rather we think it likely the Supreme Court will come to their own independent determination rather than merely parrot the rulings of the Court's of Appeal, (as it did in the only other case decided of such high caliber in recent memory, Bush v. Gore).  

  Most importantly however, at least from the ostensible perspective of the Obama Administration, the denial by the Supreme Court of so called 'Rule 11' direct review-- taken from the Supreme Court Rule which authorizes it in cases of extraordinary import to the nation-- the decline of jurisdiction to review the Patient Protection and Affordable Health Care Act now buys critical time in which a possible illness or retirement of any of the more conservative justices on the court might allow for their replacement by President Obama prior to the high court's hearing the case and result in a guarantee of the law being upheld.  The contrary outcome, a ruling by the High Court striking down the law right before the 2012 elections, would be the Obama Administration's nightmare.

  Although there is considerable difference of opinion on the constitutionality of the law-- particularly between the Obama Administration and the majority of states which have sued to block its enforcement-- the unanimous decision of all legal scholars and court watchers this author is aware of is that the case will inevitably come down to a 4-4 decision with the tie-breaking vote most likely coming from Reagan-appointee and regular swing vote Justice Anthony Kennedy, see here (assuming Chief Justice Roberts' votes with the "conservative" block and Justice Scalia returns to his anti-expansive-Commerce-Clause roots, see here).  This also assumes the failure of liberal Obama appointee and Supreme Court Ass. Justice Elena Kagan to recuse herself due to her likely legal advice to Obama as then-solicitor General of the United States, see here.

 But Kennedy's vote is by no means assured to either side, often voting with the left bloc of the Court on issues of morality or in cases involving what he sees as invasion by governments into areas of "personal liberty" (or what has been somewhat vaguely referred to as "autonomy" issues).  

  Accordingly, in recent years-- and lacking a substantive basis for many such issues in American jurisprudence-- he has shown a propensity to cite foreign law in authoring United States Supreme Court decisions in such areas, (see here).  Such rulings have included the decision striking down state laws against sodomy in Lawrence vs. Texas because in his view they "demean" homosexuals, (a social issue he has veered remarkably leftward on since his confirmation hearings in the Senate), and Romer vs. Evans, another decision of the Supreme Court authored by Kennedy that struck down "Amendment Two," a state of Colorado Constitutional provision approved by 53% of that state's voters which barred special "protections" from being given to homosexuals at the local level.  

  Justice Kennedy has also shown his at-times-left-leaning-tendencies in criminal law by authoring Roper vs. Simmons, the Supreme Court decision which struck down the ability of states to execute minors for First Degree Murder, (another case in which he referred to the law of foreign jurisdictions to justify the ruling, see here).

  Kennedy has also authored a less known high court decision striking down application of the death penalty against a man who so brutally raped his 8 year old stepdaughter that he "tore the victim's perineum from her vaginal opening [ ] to her anal opening....[and] tore her vagina on the interior such that it separated partially from her cervix and allowed her rectum to protrude into her vagina" and required extensive, emergency surgery to save her life, (see Kennedy vs. Louisiana).  

  In commerce case decisions, the sort that will be directly at issue in any appeal of Obamacare before the Supreme Court, Justice Kennedy's record is more mixed, but generally leans towards the Conservative bloc of the Court, a matter we will look at in more detail in Part Two of this discussion.

 Needless to say however, in our estimation-- and all things considered-- we give the Supreme Court's chances at striking down Obamacare at no better than 4 in 10 when it does come before the High Court.

 For the ACLP and those like us who oppose this unprecedented expansion of Federal power over all our lives with all that it entails to medical "autonomy" and our economy, see So what's really the problem with Obamacare? post on this blog, that means we may have to look to the "political" branches for repeal of Obamacare in the post-2012 period.

 Of course, that's all the more reason to get involved in the political process and exercise our rights as citizens to insure Obama's defeat and election of a pro-repeal Senate.  jp            

Saturday, April 23, 2011

Obama's Libyan War and the War Powers Act- Part Three. Unlawful application of the U.N. and NATO charters?

  As the now Nato-led "coalition" remains divided over what next steps should be taken in Libya, (see herehere and here), and the Libyan military excursion under United Nations Security Council Resolution 1973 drags on with no end in sight, (so much for being a matter of "days or weeks" as President Obama promised, see here and here), it's finally time to get back to our examination of the basis in law-- or not-- of the legality of President Obama's decision to attack Libya to protect the Libyan rebels and civilians on the ground from pro Ghadaffi forces.  We've already established, in line with our four primary questions we set out to answer, see here, that the President in this case belatedly acted at the behest of the United Nations Security Council with no clear end game or understanding of what American interests would be served absent specific authorization for regime change in Libya, (which the U.N. resolution does not address).  

  And we've seen how President Obama has thumbed his nose at the War Powers Resolution Act of 1973 and cursorily examined some of the claims made in his speech to the nation on the subject and briefly alluded to what an inherently and inexplicably hard-to-define and inconsistent justification for war application of the "Obama Doctrine" really is, (and for those who missed the previous parts of this discussion I refer you to the prior posts here and here, also here and here on this blog for Obama's dithering and its effects on both the Libyan and American people). 
  But as the debate continues over the constitutionality of this "military action," (see also here and here), one which seems more and more destined for quagmire in what some on the left have already "affectionately" begun calling "Obama's war of choice," see here and even claimed justify impeachment, see here-- indeed, it would be hard for Obama to blame this one on George W. Bush or to avoid such calls in light of the left's previous and vociferous criticism of the Iraqi wars--  what remains is to address in more detail the American interests at stake in Libya and answer the last two questions most salient to our discussion of legality vis a vis the way in which this action was begun.

  Namely, under what basis in international law under the relevant U.N. and Nato treaties could the Libyan action taken by the President be legally justified?  (We leave aside for now the complete reversal of then Senator Obama who stated in no uncertain terms in December of 1997 when asked if President Bush had the authority to bomb Iran without seeking explicit authorization from Congress that, "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation," see here and here). 

  First, however, as alluded to above, we begin where we left off with a recap of this new development of interventionist doctrine proffered by the Obama Administration before addressing the more weighty issues pertaining to the substantive questions remaining in our inquiry below.

         In a nutshell, and all things considered, the so-called Obama doctrine, (which really isn't "Obama's," see below), seems to consist in the idea that American military intervention, and by implication, international intervention as well, is justified whenever genocide or extreme human suffering of a people may be engendered at the hands of (or inaction of?) one's own government.

  Initially, we should point out that it is not as though this is an entirely "new" doctrine.  Indeed as pointed out by one of our readers recently, (see comments to prior post here), other President's have relied on similar reasoning in ordering intervention or involvement of American military force in various foreign conflagrations in recent history, (although both Bush's Iraq wars were initiated after seeking and receiving Congressional authorization pursuant to the War Powers Resolution.  Moreover, as the article linked above in U.S. News and World Report-- and as used to be heard on the schoolyard-- "two wrongs" don't make a "right.")  And it is not as if we are the only ones who have noticed President Obama's inconsistencies and contradictory statements on the Libyan war, see here and here.

 Further, even President Clinton, who used a modified-- if slightly less forthright-- version of this doctrine to justify American and Nato intervention in the war in Kosovo and former Yugoslavia at least communicated with (and was subsequently subject to) various votes in Congress which saw the legislative branch refuse to stop American involvement in the Yugoslavian civil war, (for full details and history of Presidential compliance see here).  Thus it is not at all clear you can fairly compare the two in practice, (at least Clinton "consulted" with Congress within 48 hours pursuant to the W.P.R.A.'s reporting requirements and "both chambers of Congress supported action but not by legislation authorizing the use of force," even if "the House and Senate could not come to consensus on any single measure," (see here and scroll down to Yugoslavia/Kosovo).     

  And it remains to be seen if Obama, pushing up against the "60 day reporting period" designated in the War Powers Resolution Act will in fact comply with its more substantive terms by approaching Congress with the statutorily-required "report" on the Libyan intervention and seeking the Legislature's approval or disapproval, (even if he didn't do so within 48 hours as required by the War Powers Act, that is, if he even had the authority under the Statute to use military force absent American forces or interests being in danger of imminent attack, as former Senator Obama himself pointed out, see above).    

    But philosophically speaking, it would appear that, constitutional or not, see here, justification for war is now no longer just limited to the "old school" reasons for protection of American troops or citizens in immediate danger-- such as in Reagan's lightning fast "war" in Grenada--  or to situations in which clearly defined and critical "national interests" are at stake, (e.g. the wars in Iraq, even if available intelligence at the time from both U.S. and other allies was ultimately proven flawed. Indeed, in light of Libya only producing less than 2 percent of the world's oil you don't even have our nation's energy needs in event of war as a justification).    

  In short, such bothersome considerations of strategic national interests of America or its allies seems to have gone the way of the dinosoar along with such practical considerations as having a clear-cut mission, overwhelming force and logistical support, command and control to allow full support and protection for our troops and capabilities, and an understanding of the criteria for establishing when we've "won" sufficient to cease hostilities or an "exit strategy" when our objectives are not possible to meet.   

 Moreover, and key to the exercise of the Obama Doctrine, it seems armed force is justified-- even if not always prudent-- against other nation-states, 1) At the behest and approval of international bodies like the U.N. Security Council and/or 2) when murder and "great" human suffering of a repressed populace is about to take place.

  The trouble of course, as above mentioned, is that such a rationale fails the first and most important "old school" test for war, namely, that of our "national interests" in Libya, (although we acknowledge such an inquiry cuts both ways).

 For example, one could argue that by delaying the decision to intervene President Obama seriously undermined our ability to quickly prevail with minimal risk and thus nullified one of the legs in a comprehensive and initial determination, at the same time as he heightened our national interests in this troubled African country in other ways.  Indeed, one could cogently argue that now that we are involved in Libya, however tangentially, our national interest vis a vis preventing the rise of a newly emboldened Mid-East hotbed of Anti-American terrorist activity requires our finishing the job.  

  For now however, a more comprehensive analysis of such questions will have to wait even as we acknowledge an even more thorny one, namely this:  If the requirement for clear and vital national interests to justify military invention is no longer required for the use of American military force, might not one rightly ask, "What about all the other places in the world where people are being butchered or oppressed at the hands of their government such as in Sudan, Syria, or N. Korea? Are we going to attack there too?"  Undoubtedly, such questions raise difficult problems to any rational implementation of the Clinton/Obama doctrine. 

  Nevertheless, having shown that the Obama Administration's exercise of this doctrine is philosophically, if not in practice, an arguably poor justification for war and/or unlawful under the U.S. Constitution and relevant laws-- in particular the War Powers Resolution Act of 1973, (aka the 'War Powers Act') and Article 1, Section 8 of the U.S. Constitution-- we leave for now a more searching examination of what, if any, specific and vital American "national interests" in Libya could have justified our intervention and proceed to consider matters more in line with our purposes here at the ACLP.  Namely, whether this expanded doctrine as apparently practiced by the Obama Administration-- and by logical extension the Libyan military action specifically-- could be considered legal under any applicable theory of "international law," (e.g. the U.N. Charter and/or any other relevant international treaties or agreements of which the United States is a signatory, e.g.,  the North Atlantic Treaty Organization, or NATO).  I will begin with the latter and move on to the United Nations as time allows (before a final determination of whether a 'Part Four' in this series will be required).

  NATO, (short for the North Atlantic Treaty Organization), is the international treaty and military defense organization founded on April 4th, 1949 as an expanded successor to the 1948 Treaty of Brussels signed between Belgium, the Netherlands, Luxembourg, France and Great Britain, see wikipedia

  The signatories to the 14 article Nato treaty-- which is explicitly defensive in nature under article One of the Treaty and often refers to the supremacy and envisioned involvement of the United Nation's Security Council for its goals and contemplated actions, see here-- recognized the need for the industrial and militarily powerful United States to be a signatory to balance and effectively protect Western Europe in the post-WWII period from the threat of a militarily superior and expansionist Soviet Union (and threats of another cataclysmic world war generally).  

  Begun with just the original Treaty of Brussels' signatories in addition to seven more countries, the United States, Canada, Portugal, Italy, Norway, Denmark and Iceland-- along with the strategically critical addition of Western Germany in May of 1955-- Nato has grown over the years to include 10 "East Bloc" nations formerly under the dominion of the USSR and now constitutes a total of 28 countries.

  The defensive nature of NATO-- technically a treaty dedicated to the security and freedom of nations in the "North Atlantic" region and encompassing Greater Europe and the Baltics-- is explicitly made clear in Article One of its charter, which states:  

"The parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security, and justice, are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations."  Ch. 1, Art. 1, NATO Charter. 

 Moreover, the Alliance's explicit deference to the U.N. charter and resolutions of the United Nation's Security Council, if not clear from Article One of Nato's charter, is made explicitly clear in Article 7 of the Treaty, which states: 

This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.  Art. 7, Nato Charter.

 Article Four states, "The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened," and Article Five explicitly makes clear the military purpose of the Treaty to bind all member states (i.e. signatories) to come to the aid of any individual member state of the alliance in the event of attack or aggression against it by any nation outside the alliance., to wit: 
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area." Art. 5, Nato Charter

 As such, it is clearly designed as a "defensive" mutual assistance treaty. Furthermore, and critical to our purposes here, Article Five of the Treaty goes on to state, "Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security." 

  Thus we come to a critical issue in our discussion regarding the lawfulness of President Obama's actions, i.e., "Was the attack against Libya legally justified from a perspective of International law?"  (Of course, even if it was, that doesn't establish that the President's disregard of American law and Constitution is legal, as we've already fairly conclusively shown; we are, after all, not "world citizens" but Americans, governed by American law as set out in our Constitution for good reason, in case you missed our touching on this subject here or the debate between Supreme Court Justices Breyer and Scalia see herehere or here for video). 

  But in light of our purposes in the present discussion-- indeed, the President declared his explicit reliance on the U.N. Security council's Libyan resolution to justify his intervention in Libya-- and the fact that we've now seen the Nato Charter specifically reference the United Nation's Charter and the Security Council's supremacy over Nato, we would be remiss not to engage in a quick review of the provisions of the U.N. Charter (i.e. treaty) as well. 

  The United Nations treaty and Charter was signed June 26, 1945 in the aftermath of world wide war in order to "save succeeding generations from the scourge of war," (Preamble to U.N. Charter), and now encompasses a total of 192 nations, the largest treaty organization of its kind in history.  

 Though the wisdom, fairness or efficacy of the U.N.'s programs, goals, and innumerable "resolutions" are not at issue in today's discussion, we only address its terms because, in lieu of any Congressional vote of approval under the War Powers Resolution Act, the President has previously and expressly cited the U.N. Security Council resolution as authority for his Libyan incursion, see here.  Chapter 1, Art. 1, par. 1, states the overall purposes and philosophy of the treaty as the following:    

"To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; Art. 1, Ch. 1, par. 1, United Nations Charter.  

 Moreover, at first blush, the treaties provisions regarding the justified use of force against a member state, (or even in general), seem pretty clear to our unlearned minds:

1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. Ch VI, Art 33 (1.) U.N. Charter

  Additionally, while Article 51 specifically references the right of "self defense if an attack occurs against a member of the United Nations," the whole passage reads as follows:

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."  Art 51, Ch. 7, U.N. Charter. 

  Finally, we quote the "first principles" of the U.N., which we find laid out in Article Two of the Charter as follows:  

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and. justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.  Chapter 1, Article 2, United Nations Charter. 

 So there you have it, all laid out in black (and green?).  

 In light of the relevant text in the documents themselves, and regardless of what you think of Obama personally, your politics, or your compassion for the Libyan people-- who sadly are the ones paying for the incompetence of Western leaders in dealing with this crisis as well as their own bloodthirsty, corrupt government-- it is not open to serious doubt that the Libyan military "intervention," initially led by the U.S. but more recently "punted" to Nato, has arguably been entirely illegal from the getgo, (at least if you're going on source documents and the President's own words).   As we've said all along, there really is no substitute for the wisdom of the American people through their elected leaders, (which is why the Executive branch was denied by the Founders of the right to declare war without the Legislative branch's signing off first).  Of course, what to do about this whole mess is another matter entirely.  Do we arm the rebels? Or redouble our efforts with a clear mission, put boots on the ground, and oust Ghadaffi once and for all? (Though certainly more painful in the short term it sure beats staying "half-in half-out" for two years while the price of oil skyrockets, and certainly beats appointing "commissions" to investigate what to any thinking person is the obvious reason for the jump in gas prices of late).  

  Of course, ultimately such policy preferences are up to the American people, through their elected leaders in Congress to decide, the President to execute, and ultimately, the American people to ratify (or not) in 2012. 
  And it's true that Obama may in fact yet attempt to successfully find his way back on this issue-- as he did in the recent budget compromise-- by setting in place a more firm grasp of our goals, (i.e., regime change), approaching the U.S. Congress for it's wisdom and guidance pursuant to the War Powers Resolution and once again taking the reigns of leadership to use overwhelming force and oust Ghadaffi before any (more) damage can be incurred to the Libyan people or our own long-term strategic interests in the region, (though we aren't quite sure how one could wrest back control from Nato at this point without quite a bit of damage to our credibility amongst allies and enemies alike, even if we are already sustaining such damage based on the indecisive way in which this whole matter has been pursued).  

  But in light of the serious harm the President has already done (and continues to do) to our image and system of laws upon which we are based and the ambivalence of the American people over this poorly articulated and thought-out mission prior to placing the men and women of our armed forces in harms way, we really see no other choice if there is to be a better ending and an upholding of our legal principles.
  We urge the President to do so with all haste and hope it's not too late. jp

Thursday, April 21, 2011

On the merits of ending ethanol and other pet Government subsidies- Part III

 We started our journey into this highly timely and relevant discussion re: public ethanol subsidies by the federal government in a broader and controversial discussion here on whether federal subsidies in other areas ought generally to be allowed to go against the basic values or interests of the majority of the American people, and continued with a slight detour to deal with some philosophical matters that touched upon the current debate over Obamacare and health care autonomy here.  We now, in part three of this complex subject finally come to the crux of the present matter:  Namely whether, as a matter of public policy, subsidies and/or laws mandating the use of newer and "environmentally friendly" personal fuels such as ethanol-- and by extension agricultural subsidies in general-- should continue to be provided to encourage the phase out of "older" fuel technology (i.e. "fossil fuels") which we assume for the purposes of our discussion would be advantageous to the nation for not only environmental purposes but many other reasons as well, (including helping wean our nation off its addiction to foreign oil from often unfriendly and tumultuous parts of the world).  

  It is important to note our question here is not whether public policy makers have the authority to make such determinations, (as we believe they indeed do), but whether such public policy is a wise and scientifically/economically justified use of public resources.  In other words, whether the public taxpayer should be on the hook for the development of such new and perhaps even necessary products and technologies that provide broad and beneficial uses to society as a whole instead of, say, leaving the development of such products and technologies to the private sector.  That is the question we are (finally!) set to tackle (or at least begin) with today's post. 

  Initially, we are not unmindful of the critical impact upon farmers and the farming industry that a reversal of current policy would entail, (at least as pertains to agricultural subsidies for things like ethanol production).  Our nation's system of agricultural laws-- read subsidies-- are profound and far reaching; in everything from meat to milk, wheat to soybeans, and of course, our most salient crop here discussed, corn, farmers today are paid (or not) for almost every decision they make in a complex and delicate balancing act by the federal government to stave off shortages by insuring both a stable supply of basic foodstuffs at a reasonable price as well as a sustainable standard of living for farmers, (policies which sometimes seem at odds).  

 Indeed, farming is no longer a simple vocation run by "salt-of-the-earth" men (and women) living off the land and producing extra for their neighbors and society if that year's mixture of toil, sun and rain happens to yield a bumper crop; In many places, the "family farm" is becoming a thing of the past, replaced by bottom-line businessmen and executives at the head of vast agri-business farming conglomerates-- many 
times publicly traded corporations-- utilizing such high-tech solutions as genetically modified hybrid seed, Global Positioning Satellite and weather forecasting systems to determine exactly where and when to plant to achieve maximum production, (and creating, in many cases, local concern and opposition over excessive noise and odors, as well as pollution from waste and pesticide runoff created by such operations, see here).   

  Accordingly, our first (and obvious) observation must be that the decisions today's farming operations make are profoundly in tune with-- and effected by-- public policy vis a vis subsidies for ethanol (or other crop specific subsidies) to the point of effecting/altering their production.  (Indeed, to assume such business-saavy operations of this scope wouldn't be mindful of public policy regarding taxpayer funded federal subsidies would be indeed naive).

  The second observation we would like to make is that, on the whole, there is no doubt that any changes in the current and complex patchwork of rules and regulations that is federal agricultural policy would create winners and losers, (just as it currently does, only with different winners and losers).  For example, the current policy fad of increasing ethanol production undoubtedly promotes the fortunes of corn farmers at the expense of some other types of farming, such that any change in current ethanol policy-- our matter chiefly under consideration here-- would result in the loss of thousands of dollars, (and perhaps jobs as well), to farming operations concerned chiefly with its production.  However, this alone, in our view, is insufficient reason to continue ethanol subsidies.  

  Although on philosophical grounds we continue to believe it is not the government's job to pick winners and losers, but to provide a level playing field, the current "field" is anything but level.  Therefore, without true comprehensive reform of the agriculture subsidy system, we find compelling the argument that every agricultural rule of the government is going to, in some manner, create winners and losers and at this stage of the game cannot be helped.  (Indeed such is the result of our modern federal bureaucracy generally.) Thus, while this argument may be availing in the context of a broader discussion on complete elimination of all federal agricultural subsidies, such a debate will have to await another day and be much more extensive than the matter of which we are chiefly concerned with here re: ethanol.  However, it is also the reason we find other more compelling reasons to be concerned with the current corn ethanol subsidies.   

 As has been previously pointed out, government, as a whole, is a particularly poor and inefficient utilizer of resources due to its excessive overhead and bureaucracy (see here).  Beyond five hundred dollar toilet seats and fifty dollar screws, (if we even make screws anymore, see here), this is particularly so when it comes to new trends and technologies coming down the pike which could make the government, (and by extension the lives of Americans), simpler and more cost-efficient.   

 Moreover, and perhaps more saliently, government has proven itself again and again a particularly poor seer of the next and best technological "trend" even when such trends are in favor of the purposes which it ostensibly seeks to advance.   Indeed, even when a change of course is clearly needed, government is rather like the Titanic than a 15 foot sailboat, unable to quickly and efficiently change even when the needs and safety of all aboard this ship of State called America requires a change in course to avoid certain disaster.  (Contrary to the practice of business, say, with a publicly-traded company which has no choice other than to promptly switch gears if what it is doing isn't working, at least if it is to keep its shareholders happy and stay in business at all!)  

   A good example of this problem of having the government at the helm would be the current debate over which exact biofuel or process for its development should the government be encouraging with our tax dollars (and related "official" policy).   Indeed, there is good evidence that the current corn-food based ethanol production process is a rather poor one among other available choices, (see herehere and here).

   Not only does corn yield a rather low energy "bang for the buck" compared to the cost of creating ethanol from other sources such as beets or sugar cane, (the latter of which is five to six times more energy efficient), but it ignores other promising alternatives such as biodiesel and newer technologies which utilize cellulosic ethanol from non food-stuffs such as sawgrass or bagasse in ethanol production.  Indeed, as the following quote makes clear, it is simply not the most efficient means of making ethanol in any case.  

    "In the current alcohol-from-corn production model in the United States, considering the  total energy consumed by farm equipment, cultivation, planting, fertilizers, pesticides, 
herbicides, and fungicide made from petroleum, irrigation systems, harvesting, transport of feedstock to processing plants,fermentation, distillation, drying, transport to fuel 
terminals and retail pumps, and lower ethanol fuel energy content, the net energy content value added and delivered to customers is very small."
Wikipedia, for full source page in context click here).   

  In contrast, using newer technologies which tap "cellulosic" sources such as sawgrass and other non-food plant matter (including even algae!) and which utilize special enzymes to "chemically" aid in their conversion to ethanol can eliminate altogether the need for heating in the production process of this staple gasoline additive, see here-- which has all but replaced gasoline in cars in places like Brazil, see here--  suggesting ethanol production methods that could be up to seven times more efficient than current processes.  (Indeed, studies show that cellulosic-based ethanol has an FER, or "Fossil Energy Ratio" of 10.3 compared to just 1.36 for corn ethanol, see source in Wikipedia by clicking here and scrolling down to 'bioalcohols' section as well as see other biofuel options generally at same page).   As compelling a case as this is for the ending of government subsidies for corn based ethanol subsidies however, it is NOT the final (or most compelling) word on the matter, (or on agricultural subsidies in general).   

  The biggest argument for eliminating federal ethanol subsidies as currently exist is a more humane one that perhaps you may have guessed by the above reference to non-food-based cellulosic ethanol.  Namely, that in a time when so many people around the world are suffering from the recent spike in food prices-- and indeed literally starving to death in many places--  it makes utterly no sense, and indeed, is a moral and human outrage, that our government would rather support politically correct "environmental" policies that don't even further the public policy goals professed at the cost of starving people to death!  

  Only in Washington could such an unnecessary waste of public resources (and human lives!) for no purpose at all be considered remotely rational, (even if initially begun with the best of "intentions").  Which brings us to the final reason we feel corn ethanol subsidies should be promptly eliminated by the government, (if its inefficiency compared to the private sector, inability to adapt to the promise of newer technologies, and the abject suffering such policies are causing around the globe isn't enough!).  

  The increased amount of acreage dedicated to corn production to make ethanol that otherwise would not be taking place but for the governmental policy favoring corn ethanol production has resulted in an according and inordinate increase in the amount of fertilizer, pesticides, and other potentially dangerous chemicals which many environmental groups claim is polluting waterways when "runoff" occurs, (see here).  And while we would point out that none of this would even be occurring if those same environmental groups hadn't pushed from the getgo for higher ethanol production to reduce pollution from greenhouse-gas polluting gas powered vehicles-- ahh the completely equitability and unavoidable effects of the law of unintended consequences!-- that does not make such claims invalid.  Rather, such claims, if true, provide just one more reason to finally eliminate corn ethanol subsidies.   

  To that end, we are heartened that Senators Ben Cardin (D-MD), and Tom Coburn (R-OK), joined forces last month to introduce a bill that would eliminate the .45 cent a gallon incentive to ethanol producers, see here and here.
  While it is still uncertain if the bill can garner enough broad-based-based and bi-partisan support to overcome what is expected to be stiff opposition from farming interests, (who in the years from 2000-2005 received a total of 115 Billion in federal subsidies, see here, and have reason to fear a potential onslaught if subsidy-cutting fever catches on more broadly), it is encouraging that a broad coalition of citizen and activist groups have voiced strong support for the measure, see here).  The ACLP is all too glad to add its voice to the demand for this wasteful, unnecessary and counter-productive subsidy to be ended.   

  Unfortunately, the only reason we are not hearing MORE of a chorus of support amongst Washington players themselves for elimination of these subsidies is the powerful agricultural interests at stake in "keeping the status quo" and the sums of money the farm lobby continues to shovel at our elected leaders.  Indeed, we will find it no coincidence coming up to the 2012 elections-- which start in of all places, you guessed it, Iowa, the heart of corn country itself!-- if newly elected Congressmen, especially those from farming states in the corn-belt, might be a bit squeamish to support such bills or not be the first to suggest major changes in our patchwork system of non-sensical and often contradictory agricultural subsidies when they are keenly mindful of the 65 million dollars agri-business and its allies contributed to the political parties and candiates' elections in 2008 (62% of which went to Republicans).   

  Nevertheless, and even in the face of considerable pressure from big agriculture, some Republicans have for some time, and to varying degrees-- at considerable risk of cutting their own throats from a campaign contribution perspective I may add-- been sounding the call for broadly based agricultural subsidy reform or at least a review of federal subsidy practices, including the likes of newly elected Tea Party aligned Sen. Rand Paul (R-KY).  We applaud their courage and urge them to stay in what will undoubtedly be a bruising political fight.  

  And it's not as if we haven't been here before.  Last December, before the reauthorization of the ethanol subsidy was voted on as part of the package extending the Bush Tax cuts in the "lame duck" Senate session following historic mid-term electoral gains by Republicans, a bi-partisan group of 17 Senators led by Dianne Feinstein (D-CA) and John Kyle (R-AZ)-- at considerable risk of raising big agriculture's ire against them-- mounted a last minute effort to repeal the ethanol subsidy only to be lopsidedly defeated 81-19. Perhaps Senators Coburn and Cardin know something more that we don't this time around; indeed, we can only hope this display of bi-partisanship will last long enough to end this pernicious practice of the agri-welfare nanny-state. 

  But will this display of bi-partisanship be enough to pass ethanol-subsidy reform through the whole Congress and gain President Obama's support?  That remains the 64,000 dollar question. 

  After considering the kind of public lambasting which the President gave Republican leaders bold (or stupid?) enough to openly suggest fiscal plans to get our spending and debt under control last week, see here-- the same leaders who he had just praised for their hard work on the previous week's budget compromise avoiding a shutdown mind you, see here or for video here-- we have our doubts. 

   Frankly we can't blame any of our elected leaders, particular Republican visionaries like Budget Chairman Rep. Paul Ryan in the House of Representatives, (R-WI.), if they don't want to become walking bullseyes  for Obama's re-election campaign to target the support of confused environmentalists and voters generally with scare tactics that the Republicans not only want to give taxbreaks to the "billionaires," force poor kids to eat dogfood and Grandma to go without medicine but want to destroy the environment as well.   

  In fairness, we would be remiss not to mention President Obama's recent moves towards capping or "means testing" larger and wealthier farms' level of subsidies, see here, (even if such reforms are relatively modest and insufficient in light of the systemic nature of the problem and the cynic in us wonders if, in light of ag-business giving more money to Republicans last election cycle, if there isn't a political motivation behind the President's actions).  Hopefully such fears are mere paranoia on our part, and all the talk about bi-partisanship-- however tenuous it may appear at times-- will result in a giving way to cooler heads now that divided government insures deadlock if our leaders can't start acting like adults and work together for a change.    

  In any case we welcome all comers to the debate; indeed, we will need a much stronger and bi-partisan effort by many more public leaders if we are to defeat the farm lobby and repeal the federal subsidies for corn ethanol-- as well as agriculture subsidies and other programs of the cradle-to-grave nanny state generally-- that make no environmental, economic, or even human sense.   

 Accordingly we call on the Congress as well as President Obama to take the lead in reviewing (and repealing!) this expensive and senseless federal policy which can only benefit a few at the expense of the many and in the long run can only get in the way of sensible American agricultural policies that encourage innovation and competition to the benefit of the American people as well as sound environmental practices.  jp