Magic Wand Government and the Abdication of Agency

With the financial crisis looming, coupled with projected crises in Social Security and Healthcare, many Americans are looking to the federal government to provide solutions. They see the government as holding a magic wand that can fix things without cost. However, there are two key problems with this idea. First it promotes the idea that there are quick and costless solutions to political problems. Second, and more importantly, it presupposes that there are even solutions that are worth attaining.

We have already borne the consequences of the government’s ‘solution’ of the financial crisis. Bailing out the corporations and banks responsible for creating the artificial credit crisis, with taxpayer money; the only safeguard being the promise that it would be returned once the economy rebounds. What was the result: higher stock sell-offs and record lows on Wall Street. The costs for bad investment are being absorbed by the tax payer, especially those that made smart investment decisions and are weathering the crisis. There is no tax credit for those that are keeping the economy afloat by smart investment, but instead they are being asked to bailout both those who invested poorly and those who facilitated them. One can imagine the costs associated with government solutions for Social Security and Healthcare.

What is a solution? Does politics offer solutions? Should it? Politics is not math. One cannot apply a logical theorem to settle a dispute between liberty and equality. The very notion of a solution presupposes a right answer. Are our politicians privy to the word of God, or the Platonic form of Good such that they can know the correct solution to adjusting tax brackets? Is there a correct way to maintain economic liberty while maintain economic equality? Is there a way that a government can solve all, if any, of the problems that they propose to solve? More dangerously however, is the very idea of a solution. The French philosopher Bertrand de Jouvenel stresses “the dangerous consequences of regarding political problems as implying solutions which should compel our assent with ‘the irresistible force of self-evidence.’” One can recall Hitler’s “Final Solution” to solve the decline of the German state. One can recall the solution of racial tensions during the civil rights movement. One can recall the inherent failure of every political solution. Why is that? Because there is no solution to political problems, only compromise.

What then is the arena of politics? It is a contestation, a struggle, but there is no absolute victor. In the end, the only way to address political problems, without the resort to force, is through settlements and compromise. But is there something else? Can any change be achieved?

A third effect of magic wand government is that it is disempowering. It is a way for people to throw away their own responsibilities. Human beings become disciplined and docile with every new government program to solve an inconvenience. Social Security takes care of our need to save for retirement, universal healthcare takes away our need to take care of our bodies, and the list goes on. We are abdicating all of our power as individuals, as subjects, as agents. Instead of donating money and volunteering to help the poor, we want the government to do it for us. Instead of managing our money wisely, we want the government to do it for us. We have created a sense of powerlessness in politics. We cannot achieve anything as individuals and communities, but the government has infinite power. In doing so, we lose our own faith in ourselves and become completely dependent on institutions that have empirically failed.

In this election, we must be wary not to fall into the snares offered by political solutions. We must not ignore the costs and risks associated with them. The solution lies within our own agency, in our own ability to change the world.

The Politically Correct Guide to Politics

http://video.google.com/videoplay?docid=6373296440526673285

A bipartisan view of the way politics "promises solutions" and how history shows that government promises cause more problems than the status quo.

Bailout Woes

Isn't it ironic that immediately after the bailout passes against the
better judgment of the American people, that the Dow falls for
potentially one of the biggest sell offs in history?

Bob Barr, sharing many of the views of Ron paul,
saw this coming: "There is much more to be done to clean up the
economic mess flowing from the housing market crash, but the
ill-considered federal bailout is likely to slow the process."

He continues: "Far from bringing change to Washington, the election of either Sen.
Obama or McCain would mean more of the same: More political
interference in the economy; more special interests running government
economic policy; more taxpayer bailouts; more politics as usual."

Read the entire article here: http://www.huffingtonpos​t.com/bob-barr/economic-​chaos-increases_b_132195​.html

I ask you to consider a vote for Barr as a way to escape the failings of the two party system. We have seen the results of business as usual politics, and it is time to break free of this painful binary

Why I'm Voting Not Obama in 08- Energy

This will be the first post in an oft and on series justifying why I will not vote for the change candidate. I am no Bush lackie, I don't think McCain is a great candidate, but I have serious political problems with Obama.

The Energy Issue
In a recent issue of Fortune Magazine, Obama told the interviewer that his plan to solve the energy crisis is to tax fossil fuel production, such as gasoline, in order to create an economic incentive to develop alternative fuels. Anyone who has taken an economics class will recognize this for what it is- an excise tax. And anyone who has paid attention in said economics class will recognize that excise taxes don't decrease profits for a firm, as the firm raises prices in order to maintain profits, passing along the tax to the consumer. Considering that gasoline is already taxed at a high rate, and it has not forced the creation of effective fossil fuels, it is highly unlikely that such a policy would work.

Furthermore, there currently isn't an effective alternative fuel that can substitute for the demand for crude oil and gasoline. We are years away from a purely electric car, despite the fact the technology for alternative electricity development such as wind and solar power is effective in the status quo. Even though we can generate alternative electricity effectively it won't help until fully electric cars are developed and made efficient, and even then it will take time to convert the fleet. Ethanol is another oft-cited alternative fuel, but corn ethanol has been proven not only to be inefficient but also has driven up food prices because of the massive amounts of corn required to make ethanol fuel. With the massive amount of flooding in the midwest, as well as already high food prices, it doesn't make sense to divert food resources to the fuel industry. Cellulose ethanol, a biofuel made from non edible plants such as grass, has been studied and won't be cost effective until 2012. Sugar Ethanol, which has proven to be more cost effective than corn based ethanol, and is currently being produced in abundance in Brazil, holds some promise. However, tariff restrictions prevent such ethanol to be imported to the United States. Obama's vehement anti free trade stance means that such restrictions would continue under his presidency.

My argument is not that alternative fuels shouldn't be advocated, quite the contrary, I believe that alternative fuels are the only way to create a sustainable energy market in the economy. My argument instead is that there will be a transition period from now for several years, as new technologies emerge and began to replace fossil fuel based technology on the market. Obama's solution may hurry up such plans, but at the cost of placing heavier burdens on the consumer in the short run. Raising taxes on gasoline would trickle down to the consumer, increasing prices at the pump. Such action would create massive price shocks which would have far reaching effects on the short term economy.

For a candidate that believes in subsidizing other goods and services for the American people, such as health care, housing, education, and retirement benefits, it is surprising that his solution isn't to subsidize alternative energies, or repeal taxes on fossil fuels in order to temporarily alleviate the market, but to raise taxes on the one good that affects every American consumer, either directly, at the pump, or indirectly, as energy costs raise costs for every other good, as the goods must be transported.

One may argue that temporarily lowering the price on gasoline by reducing gasoline taxes will destroy the main incentive for fossil fuels. I believe that this argument severely underestimates the strength of a market economy. People aren't stupid. Even if the prices go down in the short term, they will understand that in order to create a long term sustainable energy market, alternative energy must be pursued with more vigor. My argument is merely that Obama's energy plan will have disastrous economic effects in the short term.

Social Networking and the Election

I currently read the interview "Party Crashing: How the Facebook generation does Politics." and it made me wonder about how social networking and the internet will play a role in the upcoming election. While the article concludes that weariness of partisan politics is causing young people to look more and more at individuals rather than parties, and this in turn means that peer to peer relationships between candidates and voters remains important, it is the role of social networking that I think can have a profound effect on this election.

Take a look at Barack Obama's facebook fan page, it has over 1 million fans. Granted this may be misleading as many of these fans may be under the voting age, it still shows how the internet can create enthusiasm and momentum for political movements. Ron Paul similarly gained strength early in the primary process through the internet. However this shows the inherent frailty in this method of politics- Voter Turnout. Young people are inherently the least likely to vote in major elections.

Will the advent of social networking create a change in this?

It is hard to tell. In any case, the promise of social networking to help organize and motivate a movement holds promise for grassroots campaigns around the country, and may be helpful in curing the nation's political apathy

Boumediene V. Bush- What are the Boundaries of the Court’s Jurisdiction

The recent Supreme Court decision concerning Enemy Combatants held at the now infamous Guantanamo Bay military prison in Cuba has garnered immense media attention, as traditional partisan politics divide the reaction. Applauded by advocates of civil liberties, and demonized by conservatives arguing for national security, this case marks a sharp shift in court precedent which has previously upheld the authority for such detentions by the executive branch (see the Hamdi, Padilla, and Hamdan cases). The irony of this particular case is how hard it was to read the actual opinions of the court. None of the media resources reporting this case even mentioned the name of the petitioners or the case itself, which for your information is Boumediene v. Bush. I finally found the name of the case through a Wikipedia article on Guantanamo Bay. Back to the heart of the matter, the case functionally makes the Military Commissions Act unconstitutional, insofar as it denies detainees at Guantanamo Bay the writ of habeas corpus, and places the detainees under the jurisdiction of the U.S. District Courts, allowing them to pursue legal recourse in the District Course without going through the standard procedures of the court of appeals. Here I will raise two questions about the decision, one from a Constitutional theory point of view and the other from a logistical point of view. I would like to initially note that I am not arguing in favor of infinite detentions of enemy combatants nor for torture, as I believe that both are counterproductive to American interests. Instead I will attempt to reconcile the protection of Civil Liberties with national security, and Constitutional and logistical concerns with what I view as a vague ruling.

Constitutional Concerns- a Question of Jurisdiction

It is important to note that both the Court of Appeals and District Court dismissed the case of Boumediene v. Bush on jurisdictional grounds, thus the Supreme Court ruling effectively answers a jurisdictional question of whether or not enemy aliens held outside the United States have access to the domestic court system. Judge Kennedy argues that they do, stating “In light of our conclusion that there is no jurisdictional bar to the District Court’s entertaining petitioners’ claims.” In order to do so Kennedy must answer two important jurisdictional questions: first, what right do enemy aliens have in domestic courts, and second, what right do those held in military prisons outside of the US have in domestic civilian courts.

In answer to the first question, Kennedy spends much time speaking about the history of the writ, arguing that historically, even before the writing of the constitution, habeas corpus was used to protect foreign nationals as well as citizens. However, much of the case history that Kennedy brings up is based on foreign nationals detained inside the domestic United States on criminal charges, not those held by the military facing war crimes. It is the unique intersection of these two qualities which presents the problem. Kennedy himself admits that research into whether previous case law answers this jurisdictional question is vague stating “Diligent search by all parties reveals no certain conclusions. In none of the cases cited do we find that a common-law court would or would not have granted, or refused to hear for lack of jurisdiction, a petition for a writ of habeas corpus brought by a prisoner deemed an enemy combatant.” While it makes sense that the writ should apply to foreign nationals who are detained on criminal charges within the United States, the question of whether it applies to foreign nationals in combat areas who are held as enemy combatants is much more ambiguous. Kennedy also admits that British common-law courts have often dismissed such cases on jurisdictional grounds, as “In Schiever and the Spanish Sailors’ case, the courts denied relief to the petitioners…In Du Castro’s Case, the court granted relief, but that case is not analogous to petitioners’ because the prisoner there appears to have been detained in England.” The crucial question now appears to be the question of geographic location and whether or not those held by the military outside of the country on US military bases are granted the writ.

In regards to the geographic question, the case record becomes even more ambiguous with both sides arguing that the lack of judicial precedent proves their point. The question in order to reconcile this with legal precedent deals with sovereignty over the base at Guantanamo Bay. The government holds that because Cuba holds absolute sovereignty, American domestic courts have no jurisdiction. Kennedy does not dispute this fact but instead argues that the military’s control over the base at Guantanamo creates a sense of sovereignty granting detainees access to American courts, using case law examples from petitioners living on base housing out of the country who were able to petition for trial by jury instead of military trials. The flaw in this logic is that these cases dealt with American citizens living overseas, not with the converse of foreign nationals held by the US military. Kennedy then attempts to differentiate the current case from the case of Johnson v. Eisentrager, in which prisoners held in a German prison by Americans during the post war occupation were denied the writ. Kennedy admits that many of the same circumstances appear, both petitioners are non citizens, captured by the military outside the United States, and being held as enemy combatants. Instead of using the precedent of the Eisentrager case, as the government suggests, Kennedy argues that because the current petitioners argued that they aren’t enemy combatants that they are entitled to the writ’s protection. Functionally, Kennedy is arguing that because they pled not guilty in military commissions they are entitled to American domestic courts despite not being held by US domestic security forces.

More importantly I believe, Kennedy sharply shifts from the rhetoric of the Eisentrager case which in the majority opinion argues, “If this [Fifth] Amendment invests enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers. … We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.” Kennedy’s response to this is that the current petitioners are not members of a nation currently at war with the United States. There are several flaws in this line of argument. First, Germany at the time of the detentions in the Eisentrager case was not at war with the United States. Second, there hasn’t been a formal declaration of war since WWII. Would Kennedy grant the rights of Vietnamese or Korean detainees being held in military bases in Vietnam or Korea the right to challenge such detentions in domestic courts?

These ambiguities in reference to existing case law and statutes on the subject of detainees make the Kennedy opinion appear to be a prime example of judicial activism, as the Court breaks with existing precedent on case law essentially making its ruling by fiat. Though the circumstances in this case vary from the Eisentrager case, they are not as stark, I believe, to warrant such a shift in current precedent.

Practical Concerns- Court Clog

As the Court dramatically expands its jurisdiction to include any “enemy combatants” held on military bases in foreign countries, this arises several practical concerns that the Court fails to address. Kennedy argues that this decision grants the executive flexibility and ample room to create the necessary intelligence infrastructure and interdiction capabilities to defend against potential terrorist attacks. While this case does not hamper the ability for the armed forces to apprehend and detain individuals in foreign battlefields, for as Kennedy explicitly notes, this case doesn’t deal with the legal authority of such detentions only the jurisdiction of the courts for habeas corpus hearings, the case does raise questions on the domestic level. The Kennedy opinion fails to set up a practical framework for the habeas corpus hearings for the detainees. Will each individual be tried individually, thus creating potentially 270, according to recent reports of the number held there, new cases directly on the District Courts’ docket? Where will the detainees be held while they await their hearings, in Guantanamo or in the U.S.? Does this case apply to all “enemy combatants” or only for the peculiar case of Guantanamo Bay?

The Kennedy decision fails to answer any of these practical considerations, placing focus on the protection of Civil Liberties, disregarding any need to set up a juridical framework. One can easily remember the vague decision in Brown v. Board of Education as well as the Brown 2 decision, whose implementation instructions consisted of “integrate with all deliberate haste.” What followed was the resistance of several southern states, as they refused to enforce the Court’s mandates, as well as the use of the National Guard to forcibly integrate schools in the famed “Little Rock nine” incident. While I am not arguing that the Brown decisions should not have happened, on the contrary, I believe that racial integration and colorblindness are the only ways to solve racism, it is the ambiguities in that decision which led to its failed implementation as years after its decision it failed to achieve its goal of integration.

Furthermore, the Kennedy opinion remains completely vague on the issue of whether military commissions can be used as a substitute to traditional habeas corpus hearings. Kennedy admits “We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute.” However, as the opinion implicitly implies that adequate substitutes for the writ can be constitutional, as Kennedy writes, “the question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus,” it becomes clear that the Court must provide a framework for what an acceptable substitute for habeas corpus should be. The opinion fails to point to any case law or statute, and instead only rules that the MCA is an unconstitutional suspension of habeas corpus. In addition to the potentially infinite number of detainees suing for habeas corpus hearings in District Courts, the Courts will also potentially have to hear cases in regard to the constitutional nature of any congressional advocated substitute for the writ, ruling on a case by case basis, rather than using the Boumediene case to establish a precedent on requirements for habeas corpus hearings.

Conclusions and Possible Solutions

While the Court attempted to create a balancing test for national security and civil liberties with the Boumediene decision, various ambiguities and fiat rulings litter the Kennedy opinion. While I believe that the Court is well within Constitutional grounds to require some form of habeas corpus preceding for those detained in the war on terror, I believe that the vast expansion of judicial jurisdiction as created in this case does not follow the existing case law on the subject, and presents numerous practical problems that the Court fails to address. I believe that the Court could have ruled requiring a more practical substitute for federal habeas corpus hearings, while still holding the MCA hearings unconstitutional. The Court could have ruled that military commissions for enemy combatants must adhere to a certain standard, and mandate that the military provide resources to the detainees to meet such standards. Similarly the Court could have ruled against the use of the designation of “enemy combatants” and mandated that all those held be held as Prisoners of War under the Geneva Convention, entitled to all of the rights therein. Or the Court could have modified the Eisentrager decision to provide for better habeas corpus remedies for those held outside of the U.S.

In conclusion, I wish to echo the concerns of Scalia in his dissent. “The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires.” That is, there is no statute or case law justifying the Court’s ruling in the Boumeiene case. Futhermore, Scalia writes “Eisentrager thus held—held beyond any doubt—that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.” Thus Kennedy’s analysis on de facto sovereignty as the indication of whether detainees have access to federal courts, fundamentally violates existing precedent. This focus on de facto sovereignty functionally infinitely expands the Court’s jurisdiction to any holding facility where the US has some sort of control.

I hope that my arguments are read not as a neo-conservative tirade against granting rights to War on Terror detainees but rather an objective review of the Kennedy opinion. I hope that this review was insightful and would appreciate any comments or feedback.