Friday, March 30, 2012

A Rebuttal to Fred Barnes of the Weekly Standard . . .

I read the Weekly Standard very regularly. I enjoy and, usually, agree with its well-thought out long form articles. They go deeper than your average news piece and provoke thought.

Last Thursday, writer Fred Barnes published a piece entitled "Car Wars," which mainly featured responses from General Motors against the "Conservative media community." All the while, it insisted that General Motors was run by good conservatives, that the government never interfered, and that the Volt was the most awesome piece of engineering since the Space Shuttle.


In March, I wrote a story for in which I described some of the safety concerns with the Volt, not just the battery fires, but also the design itself. Fire fighters need specialized training to deactivate the battery before cutting into the vehicle. Although the gist of the story made it to The Blaze, the Washington Free Beacon, and elsewhere, it was not cited directly by Barnes.

However, I am part of the conservative media community that the piece disparaged, and I feel compelled to respond. I am sure that Fred Barnes, who I do admire as a writer and a thinker, does not read the Potomac Highlands Conservative, though.

Maybe someone would like to pass this along.

Barnes makes mistakes because he transmits the General Motors line on a number of subjects. First of all, he states that GM faced three choices: immediate bailout, crippling bankruptcy, or complete collapse. Private capital was simply not available to rescue the ailing company as a whole.

I buy that, if these are the only alternatives, then this is true. But this limited set of choices represents a failure of imagination. Ask a loyal GM customer where his or her loyalty lies. They will usually answer "Chevrolet," "Cadillac," "Pontiac," etc. Almost never GM. Customers on an intellectual level know that they are purchasing a GM, but they love their Chevy truck.

In the book Crisis of the Corporation and many other works, experts have demonstrated how General Motors in the 1970s and 80s undermined the identity of its brands and damaged its own marketshare. It saw itself as the king producer of cars and saw little reason to respond to consumer demand shifts.

Even worse, it turned to producing essentially the same set of several cars, Chevrolet vehicles getting the cheapest features, Cadillac the most expensive. I could even see that as a child when they did it in the 1980s. I told my parents that they should buy a Chevrolet and stick a Cadillac emblem on the front hood and no one would know the difference.

General Motors' very size has made it a stumbling elephant. A free market solution rarely mentioned would have been division. The most popular brands could hive off. Chevrolet and Pontiac could form one company, Buick and Cadillac another, maybe GMC Trucks a third. Sorry Oldsmobile. You wouldn't even get to survive in a what if, scenario. No loan could have saved GM, but a smaller private sector package could have helped a streamlined, stand alone Chevrolet.

Imagine the competitive dynamism that would have pushed the market worldwide. Imagine freeing Chevy and Pontiac from the shackles of GM to produce innovative and cutting edge cars.

General Motors has been too big for a long time. And it still is, thanks to the government.

That brings us to the Volt.

Maybe Fred Barnes is right. Maybe the federal government did not interfere a bit in the operation of General Motors. He also suggests that the federal safety inspectors ran the tests wrong on the Volt and that started the fire.

Even if all that is true, it leaves us with the bald faced fact that the government owned a large part of a car company. It has no incentive to enforce safety standards on a vehicle that it wants people to purchase. Government should be the referee in the private sector, an impartial enforcer of the rules. What if the opposing coach ended up being the referee? The perception of misconduct and unfairness is enough. And the government did enforce the same rules differently between General Motors and Toyota.

But the perception alone is enough to not allow government ownership of private enterprise. It is the most basic of conflicts of interest.

General Motors also complained because the "conservative media community" criticized and condemned their association with the government.

Sorry GM. It is a new day. Conservatives are increasingly skeptical of combining government and private power. And the media must do its due diligence no matter who the target is. As far as I am concerned, I don't care if my story killed the Chevy Volt. It hopefully reached the eyes of some fireman who had not yet heard about the dangerous design of that vehicle.

Conservative media outlets did right by their readers here. They did not merely accept that whatever was good for this business was good for everybody. They did their jobs. And if that upsets GM, then too bad.

Thursday, March 29, 2012

Obamacare, Romneycare, Commerce Clause, Takings Clause

According to analysts and sources, it looks as if Obamacare's individual mandate will certainly fall. Tough questions from Justice Kennedy and even Sotomayor makes it clear that moderates and liberals have severe concerns with the government's case argued mainly by Donald Virrilli.

Virrilli claimed, in essence, that those without health insurance should be covered under the Commerce Clause that allows Congress to set regulations. Their non-action depresses the market and makes them part of it.

Astounded justices savaged that claim, rightfully fearing that it could apply to many different situations.

The main debate seems to be whether or not the loss of the mandate means that the Court should invalidate the entire act. Conservative justices posed the thought that Congress would never have passed the rest of the act without the mandate. It is not the Court's job to read the mind of the legislative. Much as it pains me to say this, from a strict Constitutional standpoint, they probably should not invalidate the whole act. That would infringe upon the legislative prerogative.

I won't cry too many tears if they do, but I fear judicial creeping into the legislative arena as much as I fear overuse of the Commerce Clause.

The Court should spend some time looking at the Commerce Clause. Since the Civil Rights Acts of the 1960s, it has been very liberally interpreted. According to Vanderbilt University law professor James W. Ely in The Guardian of Every Other Right, the commerce clause was meant to help Congress maintain free trade among the states, not restrict it. While some cases, such as National League of Cities v. Usery (1976) have nibbled away at it, no Court has taken the opportunity to establish a perimeter fence around the clause.

Currently, the clause is used to justify a wide scope of federal action. Should the Court decide to restrict it to its interpretation prior to the 1960s, meaning that Congress cannot regulate everything that moves, this could bring huge changes to American law.

It will impact the Environmental Protection Agency's legal basis for action in many cases. The EPA relies heavily on legislation that uses the Commerce Clause as part of its foundation. Restricting its legal scope of action can head off many of the anti-industry interpretations that it has lately made.

The war on drugs would change. While intoxicants that require production might continue to fall under federal jurisdiction, those that simply spring from the ground would no longer be a federal matter unless they crossed state lines. States that wish to legalize medical marijuana, for instance, could do so without federal harassment as long as the product was wholly contained and sold within the state. California already interprets the law in this fashion, but sellers still are regularly harassed by the feds.

In fact, a state could completely legalize marijuana and the federal government would be powerless within state jurisdiction.

No one should fear repeal of the Civil Rights Acts. That being said, it would be wise to revisit the issue and update them, using a foundation that does not require the Commerce Clause as support.

Now what about the future of Romney's plan in Massachusetts? If the justices limit themselves to the Commerce Clause, it is safe because it is a state action. But it is very possible that they could also apply the Fifth Amendment's takings clause as well. No life, liberty, or property can be forfeited or taken for public use without just compensation. While one can argue that the insurance one gets is the "just compensation," the justices could find that this is a deprivation of liberty.

And that kills Romneycare.


That leads me to a point of speculation. Donald Virrilli, by all accounts, is a pretty smart guy. This Supreme Court case was not his first go-round.

So why the mind-numbingly bad argument? Why did Justice Kagan actually have to step in to help him to answer some of the tougher questions?

I'll just flat out speculate that Virrilli did not come up with the argument himself. It was a bad case that he did not present well at some points. An argument that runs so counter to American tradition, yet also looks so bumbling, probably came from Barack Obama himself.

If it did, and I was Virrilli, I would resign and let the public know.


Commerce Clause May Get Severely Restricted

Don Surber's blog about the commerce clause and possible Obamacare ruling speculates that we may not just see the chucking of the mandate, or even the entire legal package. The expanded interpretation of the commerce clause, allowed solely for the Civil Rights Act, will be limited by the majority opinion.

A byproduct? You can bet that advocacy groups will paint this as the first step in the return of Jim Crow, as if that was even possible.

Some speculate that the striking down of Obamacare will help the president's re-election because it will diminish zeal among his opponents. As if rising debt and gas prices are not stimulation enough.

Wednesday, March 28, 2012

"Innocent Until Proven Guilty" Instead of Judge Lynch

I won't say whether or not George Zimmermann did right or wrong when he shot Trayvon Martin. I cannot speculate because I was not there. The justice system has to act.

I can judge guilty the media and the politicians who swarmed this story and presented it in such a way as to convict Mr. Zimmermann before the grand jury could even hear evidence. Not only did they convict him individually, they demonstrated serious racism by mistakenly identifying him as white.

Every step of the way, the media thought that they had a racism home run. A guy with a German last name chases down and shoots a black kid.

Oops, he's Hispanic. Nevermind. We'll just use the never before heard "white Hispanic."

They also tend to smooth over the various issues that Martin has had over the years.

The fact is that none of this really matters too much. Prosecutors must make cases and juries must decide guilty or not guilty. They are required to follow a constitutional model of responsibility that dates back to the Middle Ages.

Sometimes they get it right, other times they make mistakes. At the very least, they have time to soberly review the evidence and the case over time. That makes our trial by jury system much more palatable and accurate than Judge Lynch.

Because, you see, Judge Lynch is always thirsty for blood. He used to roam the backwoods and run with vigilantes. Now he inhabits the newsrooms and minds of those not disposed to follow the law.

Judge Lynch and Spike Lee, for example, wanted to Tweet out Zimmermann's address so that his blood could be spilt before he walked into a courtroom.

Judge Lynch hears his cases based strictly on emotion and public perception, not facts and evidence. It is merely enough for the mob to shout "hang 'em high" and, if allowed, he will vent their fury for them.

If a prosecutor can prove Zimmermann guilty, then he will pay a debt to society. If not, then he will walk a free man, though not unpunished. Because whether in prison or free, he will have to walk in fear the rest of his life. Emotions have been stirred too much for the situation to be otherwise.

So will be the sentence of Judge Lynch.

Obamacare May Be Gutted

The above link is one of many that I could have provided. Obamacare is before the United States Supreme Court and time may indicate that it was dead before it even arrived.

The government's case actually relies upon a vast extension of the Commerce Clause. It states that those who do not have health insurance depress the market for health insurance, so that the government must protect the market by forcing purchases.

This would be like the government telling us that we had to buy a new General Motors vehicle because the company was in financial trouble. It is ludicrously socialist, and also places the arguments for it well beyond the scope of what Romney did in Massachusetts.

Most worried about Justice Kennedy's vote, but most of his questions thus far seem to reflect a growing concern about the federal government's power over Americans. A few of his questions sound more like Mark Steyn or Mark Levine than Justice Kennedy. Chief Justice Roberts' queries made his stance difficult to discern, but he usually remains in the conservative camp.

In other words, it is likely that the individual mandate will go down. How much of the law will remain intact is a different story. Hopefully, Congress can get together and create a much more coherent and freedom based law in the aftermath of this possible stinging defeat for Obama.