Government by Executive Decree

According to press reports, by Executive Order President Trump is preparing to suspend the payroll tax through the end of the year retroactive to July 1. He also intends to extend supplemental jobless benefits, although at what level and for how long remains unclear. Add to that his intent to impose a partial moratorium on evictions and assistance with student loans and you have a perfectly tuned re-election program aimed squarely at the economic illiteracy pandemic now afflicting the voting public. 

The program would be a blatant violation of the U.S. Constitution, both in its particulars (Article 1, Section 8, clause 1) and in its violation of the separation of powers.  The precedent for this Constitutional vandalism was firmly established by former President (and University of Chicago Constitutional law lecturer) Barack Obama. Notwithstanding the fact that the U.S. Constitution locates the taxing power in the Congress, President Obama ordered the IRS not to enforce the penalty for non-compliance with the coverage mandate required by the Affordable Care Act, otherwise known as Obamacare.  

While on the hustings, the Obama Administration argued that the mandate did not constitute a tax. However, in front of the Supreme Court the Administration argued that the mandate was in fact a tax. The Supreme Court agreed with them and declared the mandate to be a tax. It was a tax that the Administration pointedly refused to enforce. 

It is worth noting that the mandate was a necessary element of the bill for two reasons. First, the CBO used the mandate to overestimate how many young people would comply with the bill, thus reducing the cost estimate.  Second, the CBO cost estimate served to bolster the Obama Administration’s risible claim that the bill would reduce unit costs and therefore consumer insurance rates. 

In the event, Republicans asked a prescient question: What would happen if a Republican President announced he would not enforce a different section of the tax code, for instance the capital gains tax? Progressives gave their stock answer: “That will never happen”, they said.  That by the way is answer they usually give when pressed about the potential consequences of promoting lawless activity. 

Well, here we are. The president, a Republican, has said that unless certain conditions are met, he will indeed refuse to enforce the tax code in a way that is liable to help him electorally.  And let’s not kid ourselves. This type of lawless governmental behavior has become the rule, not the exception. 

Governors, for instance, often rely on declaring tax holidays, sometimes targeted to dates, sometimes targeted toward geographies. Except that generally sales taxes are not transaction taxes—they are use taxes, and so cannot be legally declared exempt for certain situations within the meaning of the law. And not to put too fine a point on it, there has not exactly been a rush to enforce laws protecting people and property from rioters in large American cities. Nor has much mention been made of the obvious fact that the rioters are on the whole, whiter than the police departments they are accusing of systemic racism. 

 So here we have a situation where a Republican president is threatening to refuse to enforce the law because he expects it to redound to his electoral benefit. It is a stunt that progressive politicians have been pulling for years (See DACA). The depth of the cynicism is notable though. Since there is no “pay for” mechanism and since it extends through election day, it is aimed at a short term goal, namely Trump’s re-election campaign. 

It also creates creates several other political advantages for Trump and the Republicans. He will have the space to claim that he unilaterally delivered on several Democratic-populist goals, namely student loan assistance, and an eviction moratorium. But it does something else that could prove excruciatingly painful for progressives. By suspending payroll tax collections, it would bring the day of insolvency for Social Security that much closer. 

The Social security system is already being battered by the economic downturn with its mass unemployment. A six-month month suspension of payroll tax receipts would constitute a direct and massive hit at the solvency of what we laughingly call the Social Security Trust Fund, thus bringing the day of reckoning closer. 

It should also be noted that something like 75% of taxpayers fork over more in payroll taxes than they do in income taxes. Progressive hysteria aside, the income tax system falls overwhelmingly on people in the upper brackets.  A suspension of the payroll tax would therefore have two important impacts, one direct, the other indirect. On the political side, if the Democrats were to resist, they would effectively be denying a substantial tax cut for a huge proportion of the voting population, particularly the blue collar workers they are trying to win back for the 2020 Presidential contest. 

There is an important indirect consideration as well. A suspension of the payroll tax, and even more so with somewhat reduced supplemental unemployment insurance, changes the back-to-work calculation. It would raise net after-tax compensation for workers who go back on the job, thereby increasing the incentive to work and reducing the incentive to stay home. That would likely increase the pace of economic recovery. 

But there is no such thing as a free lunch. The price to be paid for all this is in the disaster known as public finance. Federal, state and local governments are piling up horrendous deficits and off balance sheet obligations at an unsustainable pace. The time to address those obligations could be, and probably is, just around the corner. The problem is that a pervasive free-lunch mentality has contributed to the creation of a dependent and subservient portion of the population. 

The other price we pay is continued lawlessness by government. By continuing to operate by decree justified by bumper sticker sloganeering, government becomes progressively more authoritarian. It fails to perform its primary function of securing natural rights and protecting ordered liberty. The evidence of failure is all around us, whether it is the near universal failure of urban public schools, public distrust of basic institutions, or the collapse of traditional institutions like the family, spurred on by public policies designed for centralized command-and-control of citizens’ everyday lives. 

JFB

And About Those Norms…

We hear a lot about norms these days, and in particular, about how President Donald Trump’s typically juvenile behavior violates long standing norms and therefore harms democracy. There is something to this. Trump is, after all, boorish, a habitual liar and an all around disgrace. And that’s on a good day. For instance, Trump has recently taken to insinuating that Joe Scarborough may have been involved in the death of one of his staffers when he was a Congressman. The actual cause of death was an undiagnosed heart ailment; the woman died in Florida while Scarborough was in Washington.

That aside, no reasonable person should doubt that norms, manners and temperament are crucial elements for the institutions of civil society, the rule of law and  for freedom generally.  And here, Donald Trump’s behavior is destructive, and becoming more so.

So we are left to ponder a question: Why is it that there is so little interest from the defenders of norms in what is emerging as perhaps one of, if not the biggest political scandals in the history of the Republic? A scandal in which important norms were eviscerated and may well have involved Nixon style (or worse) criminal behavior by high level federal officials.

It is becoming increasingly clear that the Obama Administration used federal law enforcement agencies to surreptitiously surveil members of the Trump campaign and the incoming administration. Obama officials submitted deliberately falsified documents to the FISA Court in a successful effort to obtain warrants to surveil Trump campaign and administration officials. Obama officials went on television to claim they had evidence of Trump’s collusion with Russia even though under oath and in secret they admitted that they had no such evidence. 

In the matter of the Russia Collusion allegation, and then the Michael Flynn matter, it turns out that much, if not the entirety of the subsequent investigation was simply based on a pretext largely invented by Christopher Steele who was bought and paid for by Hillary Clinton’s campaign using the law firm Perkins Coie as a cutout. In the process not only did numerous Obama Administration political officials make requests to have Michael Flynn’s identity unmasked, his identity was quickly (and illegally) leaked to the press, most famously to David Ignatious of the Washington Post.  

The honor roll of Obama Administration officials who were suddenly interested in having Flynn’s name unmasked included: Susan Rice, Samantha Powers, James Comey, James Clapper, James Brennan, Treasury Secretary James Lew, then Chief-of-Staff Denis McDough and of course Joe Biden. For his part, Biden claimed he “knew nothing about these moves to investigate Flynn.” And then, ahem, his name showed up requesting that Flynn be unmasked on January 12, 2017. 

Not only did former Director of National Security (and admitted liar) James Clapper submit an unmasking request in the Flynn matter, so did two of his deputies, Micheal Dempsey and Stephanie L. Sullivan.  According to both Sally Yates and James Comey, James Clapper personally briefed President Obama on the Flynn-Kislyak calls as part of the Presidential Daily Briefing (PDB). But well before the unmasking requests were released to the public, Clapper testified behind closed doors under oath in the matter. He was asked (under oath) by Congressman Tom Rooney of Florida: “Did you ever brief President Obama on the Flynn-Kislyak phone calls?” Clapper had a one word answer: “No.” We know that was untrue.

The records also show that Samantha Powers made 260 unmasking requests during her tenure as U.N. Ambassador. She has testified that while most of these requests were made in her name, she herself did not make the them. According this version of events, someone else used her name in a national security matter, but she has no idea who it was. 

In all there were 39 Obama Administration officials who made 53 separate requests to unmask Flynn between election day (November 8, 2016) and inauguration day (January 17, 2017). Most of the requests took place between December 14 and 16, 2016, which was 2 weeks before Flynn’s December 29, 2016 call with  Russian Ambassador Kislyak, the predicate offered as justification for the Flynn investigation. 

In this sordid tale we should not omit the handiwork of John Brennan, Director of the CIA. Brennan claimed that “he [Trump] is wholly in the pocket of Putin”. On Meet the Press he told Chuck Todd “I called [Trump’s] behavior treasonous, which is to betray one’s trust and aid and abet the enemy, and I stand very much by that claim.” 

He is not standing by it now, at least from his perch at MSNBC. After special counsel Mueller “did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government” Brennan backtracked. He said “I don’t know if I received bad information, but I think I suspected there was more than there actually was”. 

I could go on with example after example, but the point is clear. Political operatives, law enforcement and intelligence officers in the Obama Administration conducted surreptitious surveillance on opposing Party’s presidential campaign and candidate. On national TV, they went so far as to fan flames about a non-existent Trump-Russia conspiracy, using “evidence” that they knew to be phony and manufactured by the Clinton campaign. We know this because Obama Administration officials have admitted to as much.

Evelyn Farkas, an Obama Administration Defense Department appointee, claimed on MSNBC that she was afraid that Trump administration officials might destroy evidence of the alleged collusion “if they found out how we knew what we knew about Trump’s staff dealing with Russians”. 

But when questioned under oath behind closed doors by Rep. Gowdy of South Carolina, Farkas sang a different tune. 

So, would someone please remind me again on how these norms are supposed to work. 

Now What?

Campaign Finance

Recent events have proved to be clarifying if unedifying. Michael Bloomberg did us the enormous favor of spending over $500 million in an effort to win the Democratic Presidential nomination. For his efforts he won a total of 13 delegates; 4 in American Samoa plus another 9 scattered around the country. That’s about $38 million per delegate. Two days later former Mayor Bloomberg dropped out of the race and pledged to work for the election of Joe Biden. 

Bloomberg Drops Out

All of this would seem to provide rather conclusive evidence discrediting the idea that money is determinative in elections. Despite the evidence though, we can expect Progressives to continue their attempt eviscerate First Amendment speech rights under the guise of campaign finance reform and fighting “hate speech” because the goal is control, not clean elections or civility. 

And, by the way, if the best Michael Bloomberg could do was grab 13 delegates with $500 million, why would anybody continue to believe that Russian propaganda on Facebook was sufficient to tip the 2016 Presidential election to Donald Trump. 

About Those Norms

The Trump Administration—actually POTUS himself—has been criticized, frequently and correctly, for violating long held political norms. Trump, for example, launched a typically idiotic Tweet calling for Justices Sotomeyer and Ginsburg to recuse themselves from cases involving him and his administration.  And candidate Trump famously attacked a federal judge complaining that the judge, who was born in Indiana, was Mexican and therefore could not be counted on to give Trump a fair hearing. 

Well, Chuck Schumer has done Trump one better. On March 4, speaking at a demonstration at the Supreme Court, Schumer said the following referring to an abortion case before the Court.

“I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price…You won’t know what hit you if you go forward with these awful decisions.”

Abortion Rights Protest at the Supreme Court

Which is to say that Chuck Schumer (Harvard Law, 1974) issued a direct threat by name to sitting justices on the Court, contingent on their votes. Surprisingly enough, Schumer’s fellow progressives who were once so concerned about democratic norms, have fallen strangely silent. 

Feel the Phony Bern

Bernie Sanders (I. Rolling Stone) has spent the better part of the last 40 years or so attacking “the establishment” and singing the praises of folks like Fidel Castro. In 2012 he threatened to “primary” (now a verb) then President Obama who wasn’t quite left wing enough for comrade Sanders taste. But on Super Tuesday he got trounced by former Vice President Biden, who among other things grabbed a commanding share of the African American vote. 

And all of a sudden Bernie-the-Authentic has decided that he has been a fan of Obama after all. So his campaign has released an ad showing what pals he and Obama were and are. Needless to say, former Obama officials have denounced the ad as deceptive, misleading etc etc. Which, of course, it is. Just like the rest of his campaign. 

The ad is below. Have a look and think about what it says about the raw political ambition of the selfless Socialist from Vermont. 

New Sanders Ad

JFB