Friday, July 30, 2010

Malfeasance as Justification for Preemption

“Against the backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns, the Arizona legislature enacted a set of statutes and statutory amendments in the form of Senate Bill 1070, the ‘Support of our Law Enforcement and Safe Neighborhoods Act.’” So begins Judge Susan Bolton’s order issuing a Preliminary Injunction against the enforcement of significant portions of SB 1070. In her order, Judge Bolton sustained four of the six challenges to the enforcement of SB 1070.

In setting forth her legal standards for her ruling, the Judge wrote, “The Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers.” She also rightly cited the Supremacy Clause which makes those laws for which the Constitution grants the federal government priority “the supreme law of the land.” Few could disagree with her basis for federal preemption on this subject. Indeed, it is unnecessary to rely on the ambiguous and arbitrary “implied constitutional powers” regarding this power since the historical evidence is so clear that the main purpose of the union was to provide for a central government to regulate our dealings with those outside of our borders. The Federalist Papers cite this interest as one of the most significant benefits of the union.

But more must be said. Indeed, the Congress has the Power “To establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. One may rightly ask to what purpose or goal does Congress have this Power. To answer that question, it is necessary to return to the Preamble. The purpose or goal of Congress’ Power is to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” In light of this purpose or goal, Judge Bolton’s introduction to her order speaks volumes. The federal government is failing miserably in the execution of its Power.

Judge Bolton rightly sets for the traditional analysis for federal implied preemption based on the Supremacy Clause. (Federal Courts must infer Congresses intention to preempt state law when it does not expressly describe the areas of preemption.) In this regard there are two types of implied preemption: field preemption and conflict preemption. Field preemption occurs when the congressional scheme occupies the whole legislative field on the matter. Conflict preemption occurs when both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

One could quibble with Judge Bolton's analysis. For example, Section 3 makes a person who violates federal law by willfully failing to complete or carry an alien registration document guilty of a misdemeanor under Arizona law. The Judge observed that Section 3 attempts to supplement or complement the uniform, national registration scheme. In her analysis she wrote, “While the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens, the Supreme Court has also evaluated the impact of the comprehensive federal alien registration scheme and determined that the complete scheme of registration precludes states from conflicting with or complementing the federal law.” [Citations omitted] She then concludes that, “Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration.” Well, which is it? Is this field preemption or conflict preemption? And how does the supplement or complement of the Arizona law create an “obstacle” to the federal registration scheme?

The most telling part of the order is her treatment of Section 2(B). The first sentence of the section provides that “any person who is arrested shall have the person’s immigration status determined before the person is released.” The second sentence requires the detaining officer to make a reasonable attempt to determine the immigration status of the person. The federal government’s challenge to both sentences was similar. They made two arguments. First, since such inquiries will ultimately come to federal officials, the requirements impermissibly burden and redirect federal resources away from federally-established priorities.
Mr. Palmatier states in his Declaration that LESC resources are currently dedicated in part to national security objectives such as requests for immigration status determination from the United States Secret Service, the FBI, and employment-related requests at “national security related locations that could be vulnerable to sabotage, attack, or exploitation.” (Palmatier Decl. ¶ 4.) Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities.

Second, the mandatory detainment would impermissibly burden the liberties of lawfully-present aliens. Based on these two arguments, the Court found that Section 2 created an obstacle to the enforcement of federal law.

I have no criticism of Judge Bolton on her holding in this case. Judge Bolton is bound to follow precedent of superior courts. She clearly attempted to follow the precedents set down. But I do have a critique of the analytical structure. Perhaps it is that the nation has lost sight of the purpose of our U.S. Constitution. Perhaps it has to do with the narcissism of the federal government, but the scope of the analysis distorts what should be considered.

Regarding the federal government's first argument, Judge Bolton clearly established in the open statements of her order that the federal government is responsible for defending the borders of these united states. She also clearly established that it is woefully failing in that responsibility. In essence, the federal government’s first argument is an argument on misfeasance bordering on malfeasance. Its argument is that it is incapable of fulfilling its obligation to enforce immigration laws due to its commitment to “other priorities.” While Mr. Palmatier detailed his commitment to these other priorities, I submit that the Court’s analysis was not broad enough. Clearly, defending the borders is at the core of the federal government’s responsibilities. If so, that responsibility is of its highest priorities. To divert resources to any priority other than defending the borders is a misallocation of resources, i.e. malfeasance. If the Court were to expand the scope of her analysis to the scope of the federal government’s activities, what would she find? She would find the federal government buying favor of certain segments of the population by means of welfare, food stamps, unemployment benefits, socialized healthcare, buying auto manufacturers, and deals to obtain votes on Obamacare from the Senators from the states of Louisiana, Arkansas and Nebraska. None of these activities fall anywhere near the core of the responsibility of the federal government. Malfeasance based on a perverted sense of federal priorities is now justification for federal preemption.

Regarding the federal government’s second argument, again, malfeasance has become an argument justifying federal preemption. It is the failure of the king to do his duty that brings burdens on the liberty of the country’s citizens and not the proper execution of those duties. Again, expanding the scope of the analysis helps in the analysis. The Power of the federal government extends to securing the borders and providing for proper naturalization. If the federal government fulfilled that purpose as described in the Preamble of the Constitution by on the first occasion keeping illegals out of the country, there would be no need to detain any legally present individuals. When the king fails in his proper duty we all suffer. The government failed to secure the borders on September 11. As a result, all citizens are now subjected to delays and searches when traveling by air. The government is failing to secure the borders today. As a result, the citizens of Arizona are subjected to increased crime and drugs as Judge Bolton has stated.

Misfeasance should never be a justification for federal preemption. The federal government has not only committed misfeasance. Our federal government has abdicated its responsibility to do those things which it has been directed to do by the U.S. Constitution and usurped authority it was never intended to have. And such conduct is used to justify their failure. And the people suffer.

Wednesday, July 28, 2010

Classical Economics and Our Health Care Blindspot

I have previously written that socialism, i.e. the usurpation of the individual’s initiative to be charitable by the government by means of legislation converts charity, mercy, compassion and love to obligation, duty and litigation. See “Healthcare: America’s Blind Spot.” In following a path of socialism in the form of socialized health care, the American government will, due to moral physics woven into the fabric of creation, inculcate in the following generation a failure to see these moral values. When government inhabits the field of charity by law and obligation, good deeds cease to be good and become obligation, subject only to claims of right through litigation. And as good ceases to be seen as good, the culture loses a vision of moral excellence. In the end, the compassion necessary for the proper administration of healthcare will become a blind spot for the American culture.

I expressed the moral physics propounded in Deuteronomy that a nation will be blessed to the extent that its people voluntarily give through church and other individual voluntary initiatives to the poor and needy. To the extent the resources to be morally good to the poor and needy are taken away through taxes, the less the people will be blessed. There is another way to view this blind spot, and that is through the lens of classical economics. Perhaps it is more accurate to claim that the theories of classical economics support the claim of moral physics which I have already described.

Guido Hulsmann in his lecture at the Ludwig von Mises Institute (at on “The Division of Labor and Social Order” describes how the division of labor permits human society to become more productive. In the presentation of some very simple case studies he portrays how two men capable of doing two separate tasks with differing degrees of effectiveness can increase production by allowing each to specialize in the task in which he excels. Even in the case where one is more effective in both tasks, both are benefited by permitting the superior performer to increase his specialization in the area where he is comparatively more superior. The only case in which there is no mutual benefit is when the two are equal in all respects. In all cases but this latter, the two are mutually benefitted by their cooperation. The division of labor encourages peace because even if the two were to have animosity toward each other, they understand the mutual benefit of their cooperation.

How then does this apply to the socialism of Obamacare? Socialism as government policy is a legally enforced equalization of the outcomes of all efforts. Socialism, contrary to popular belief, is not an economic theory. It is tyranny pure and simple, for it is based on the taking from the production of some for the purpose of distributing the fruits of that production to others. Socialism is legislated theft. The outcome of such legislated theft is the elimination of the benefits derived from a beneficial division of labor. The two in every respect are made equal in outcome. The benefits of cooperation which support a moral and well ordered society are eliminated. In the words of Hulsmann, only by an extraordinary measure of love can the cooperation be maintained.

Keep in mind that the equalization of status does not produce love; it only lessens the natural forces maintaining the cooperation of relationships. Love must come from inside an individual; it cannot be created by outside forces. Since, as I have already shown, the replacement of law for compassion will necessarily create a blind spot in our culture to what is morally laudable, the culture will lose its perspective of the beauty of love and compassion. Therefore, there will be less reason to love that which is beautiful in compassion and will in turn provide less support to the culture socialism will create.

Let us turn back this destruction which the federal government is forcing on the states. Let us enact the Healthcare Freedom Act.

Monday, July 26, 2010

C. S. Lewis on Barack Obama

‎"Emergency regulations," said Feverstone. "You'll never get the powers we want at Edgestow until Government declares that a state of emergency exists there." C.S. Lewis, That Hideous Strength.

Wednesday, July 14, 2010

An American Parable

There once were thirteen nations of men. These nations were small in comparison to those around them. They feared for their freedom since they had a vision unlike most nations. They had a vision of maintaining their individual freedoms under God. These thirteen nations were of one mind and heritage and one vision. Therefore, they band together and formed a treaty, a solemn league and covenant to support one another in their governance and future support.

This covenant was founded on the principles of life, liberty and the pursuit of public righteousness, for they knew that only through public righteousness could there be true happiness, and only through public righteousness could the true right of property be maintained. Their covenant espoused principles of justice and common defense. Their covenant promoted the general welfare in order to secure the blessings of liberty to their children.

In order to protect their blessings of liberty, they gave some limited powers to a group of people they called their covenant representatives. These covenant representatives were chosen from among them in order to bind them together in a common culture of liberty under God. But what happens if we have disputes among ourselves was their concern. “What shall prevent us from destroying ourselves with disputes?” Their answer was that their covenant representatives would mediate their disputes for the benefit of all. After all, since the covenant representatives came from amongst the nations with a common vision, they would maintain the same values and seek the same goals. This answer seemed good to the wise men of the covenant to which they agreed.

After a time, a question arose concerning who should interpret the great solemn league and covenant. Again, the wise men of the covenant determined that the covenant representatives should do so. Again, the covenant representatives were of a common vision among the thirteen. And so the covenant representatives took on this new task of interpreting this great covenant.

For many years their common vision of liberty under God brought them unparalleled blessings of liberty. Many came to join in the common vision of liberty under God. So vast did this covenant of men become that it grew to fifty great nations.
So great did this covenant of men become that the covenant representatives moved to a new nation. While the covenant representatives came out of the fifty nations, they soon became lazy and corrupt. Their interpretation of the great covenant gave to themselves more and more power, until their decisions began to take liberty from the people, their liberty under God. They spoke with the enemies of the fifty and sought to become like them. When they talked among themselves, they schemed and plotted to increase the power of their own nation. When they talked to the fifty they schemed and promised that they could provide things that the people could not provide for themselves.

Unfortunately, the fifty nations became complacent. With their ever increasing wealth they forgot their liberty under God. The listened to the promises of the representatives and capitulated. They lost the wisdom in the words, “Power corrupts and absolute power corrupts absolutely.” They lost the vision of the words of one of their great men of the covenant, “If ye love wealth better than liberty, the tranquility of servitude than the animating contest of freedom, — go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that ye were our countrymen!” They lost sight of their founding principle, spoken by the same men of the covenant, “We have this day restored the Sovereign to whom all men ought to be obedient. He reigns in heaven and from the rising to the setting of the sun, let His kingdom come.”

Then one day, the representatives said, “Let us take control of the health of the fifty. We know better than they and we have the power to do it.” And so they took the health of the people. What now should the men of the covenant do? Should they keep their health? Should they keep their liberty? Or should they say, “No, we will never give up our liberty under God. Give us freedom under God.” More importantly, should they allow such men to retain the interpretation of such a great covenant? Or should they take the care of that document back unto themselves?

Tuesday, July 13, 2010

Healthcare: Our National Blind Spot

Human culture is a complex thing. What is it that a culture believes? How do those beliefs affect how a culture acts? What does a community consider morally laudable? All of these questions are hard to answer, but they are important. They are hard to answer because the underlying principles are assumed and the underlying principles are presumed to be unassailable. They are important to answer if we are to make accurate judgments about ourselves as a nation and a culture. C. S. Lewis once wrote in regard to reading old books,

Every age has its own outlook. It is specially good at seeing certain truths and specially liable to make certain mistakes. We all, therefore, need the books that will correct the characteristic mistakes of our own period. And that means the old books. All contemporary writers share to some extent the contemporary outlook—even those, like myself, who seem most opposed to it. . . . . None of us can fully escape this blindness, but we shall certainly increase it, and weaken our guard against it, if we read only modern books. Where they are true they will give us truths which we half knew already. Where they are false they will aggravate the error with which we are already dangerously ill. The only palliative is to keep the clean sea breeze of the centuries blowing through our minds, and this can be done only by reading old books. . . . . Two heads are better than one, not because either is infallible, but because they are unlikely to go wrong in the same direction. To be sure, the books of the future would be just as good a corrective as the books of the past, but unfortunately we cannot get at them.

Introduction to On the Incarnation, by St. Athanasius.

In the twenty-first century we are especially susceptible to a characteristic blindness since we are bound to a popular media culture. We are trained in the government school system. We are trained to think by that system and reinforced in our thinking by television and other media. What old books?

I was recently at a conference exploring the implementation of what is called the “Smart Grid.” The Smart Grid, for those who do not know, is a vision of the future operation of the electric utility system which permits two way power flow and communication between customers and their electric company. The idea is based on providing a customer with enough information on how his home is using power so that he can at any point in time adjust his own electric usage and/or his power storage facilities, such as an electric car, in response to a time-of-use price. One of the participants suggested that what we must do as a culture is teach our children in the government school system of the value of the smart grid. He observed that all of us have been greatly affected by our instruction in the government school on smoking, the environment and many other issues. The speaker captured a valuable observation. How many of the foundational principles we now hold as true and unassailable came from our formative years in school? And how easy is it to challenge those foundational principles today?

This principle is a truth about creation: culture is a characteristic of the succession from one generation to the next. The principle is inescapable because it is in the very fabric of creation. Consider the Ten Commandments, particularly the fourth and fifth.

8 Remember the Sabbath day, to keep it holy. 9 Six days you shall labor, and do all your work, 10 but the seventh day is a Sabbath to the LORD your God. On it you shall not do any work, you, or your son, or your daughter, your male servant, or your female servant, or your livestock, or the sojourner who is within your gates. 11 For in six days the LORD made heaven and earth, the sea, and all that is in them, and rested on the seventh day. Therefore the LORD blessed the Sabbath day and made it holy. 12

Honor your father and your mother, that your days may be long in the land that the LORD your God is giving you.

It is amazing to read these two commandments together to see the way they work together. Several things are worthy of note for these two commandments. First, they are the only two of the ten that are positive in nature and not prohibitions. Second, they are reciprocal in nature. The older commandment is to “remember” for the sake of the younger generation, and the younger is to obey the older generation as they remember. Third, these things are to be done because this is the way that God created the world. Fourth, blessings follow to the next generation based on how faithfully the commands are obeyed. It could almost be said that these two are more than commands; they are primary laws of moral physics. The younger generation will be affected by the conduct and policies established by the older generation. The older generation by its conduct will create the blind spots that Lewis wrote about for the younger generation.

Lewis observed that it is impossible to read future books, and his observation is true. However, I would like to engage in a thought experiment regarding the culture we are creating for our children in the area of health care. What will health care mean to our children with the passage of socialized medicine by the federal government?

To begin this thought experiment, we must first recognize that there are three institutions on earth which exercise binding authority over the individual: the civil magistrate, the family and the church. The first acts by the exercise of law, i.e. obligation. The latter two act by the exercise of love.

With the formation of this country, charity, the help for the poor and needy, was left to the church and family. Therefore, charity was left to the compassion of individuals within the family and the church. We can argue about how well charity was done by each. I would argue that it was generally done well. But my point is that regardless of how it was done, it was left to the voluntary love commitment of those two communities.

In this situation charity and compassion are morally laudable. We all react positively to a story in which someone gives selflessly to someone who is in need. A specific example is the Pujols Family Foundation. Go to and see if you are not moved by what Albert Pujols is doing in our world. Again, the Bible says a lot. The book of Deuteronomy says that you will be blessed to the extent you give to the poor and needy. Here, again, Deuteronomy is expressing a principle of moral physics. There will be consequences for the next generation depending on how this generation acts. Compassion is praised and exalted as laudable.

What we are doing by imposing government on the healthcare system is radically changing care, compassion and charity in this nation. Allow me to return to an observation regarding how government acts. The government acts by law. It can do no other. Statutes, rules and regulations are the means of communication of government, and such communications bind the government in how it acts. The government exists in order to execute justice, to punish evil doers and reward doers of good. The only remaining question for the government is whether it does this function properly and well.

Once a government enters an arena of society with law, conduct in conformance with the law ceases to become morally laudable and becomes obligation. Is it morally laudable to recycle or give to the food stamp program or the social security system? No, it is simply required. With these obligations, there are also concomitant rights. Certain individuals have the right to food stamps and social security. Compassion and charity are replaced with litigation and regulation. Is this what we want to teach our children, to be devoid of a sense of moral judgment regarding how we take care of the poor and needy and, instead, to teach them that everything is defined by right, obligation and litigation?

But there is more. Government only provides what it takes from some to give to others. Government cannot by law create wealth. It only acts by law. Therefore, the government must take through taxes everything it needs to provide healthcare. I recently took a trip to New Orleans to help in the cleanup after hurricane Katrina. As I was working to rehab a house, I thought to myself, how could government do this any better? I was paying my own way, providing my own meals and lodging and contributing my labor and some of the materials. If government were to do this, it would have to tax me in order to pay for government administration of the program. The government could only act after the right paper work was filled out. And by taxing me, the government would have destroyed my ability to aid the people of New Orleans. It would have prevented me from being a blessing to them as Deuteronomy encourages.

I do not want America to become a place where morally laudable acts are made legal obligations. I do not want my children to have a blind spot in which they do not recognize the laudable nature of a kind heart. Yes, our present system has problems, but those problems proceed from the blind spots we already have due to the present intrusion of law into the healthcare industry. In order to see this, we must try to remedy those blind spots and return true compassion to our healthcare industry rather than expanding the blind spot with more government obligation. One way we can do this now is vote for the Missouri Healthcare Freedom Act. One way we can continue to do it in the future is to reduce government involvement in areas of charity and compassion.