Coyote Blog

As most libertarians feared, all those Republican concerns about Executive power under President Obama seem to have magically disappeared now that the President has an "R" after his name.  President Trump is set to put on his magic Thanos glove and snap his fingers and impose 5% Tariffs on Mexico.  The ostensible reason is to force Mexico to reduce immigration to the US, though I think it is becomming pretty clear that Trump actually thinks tariffs benefit Americans and he wants any excuse to impose them on our major trading partners (how about a 5% tariff on Canada if the Raptors win the NBA Finals?).  And all those Republicans in Congress who just 2 years ago nominally 1) were pro free trade; 2) were against raising taxes on Americans; and 3) were against expansions of executive power -- they are just going along meekly.

Scott R. Anderson and Kathleen Claussen attempt to explain what possible legal authority he might have to do so, and it turns out the decision rests on Trump's earlier declaration of a national emergency at the border.

By the way, I know a lot of readers really piled on me every time I tried to compare the border wall to the Berlin Wall.  Didn't I understand that it is totally different to keep people out than to keep them in.  I never thought that made much sense -- the wall blocks free movement of people and I am not sure its morality turns 100% on which side of the border built it.  Perhaps my point is now clearer.  What if Trump convinces Mexico to build the border wall, or at least use more aggresive policing to keep people in Mexico.  Isn't THAT now just the same as the Berlin Wall?

I have not really written on Brexit here, for a couple of reasons.  First, I am not at all informed about the issues, so it is hard to pontificate intelligently.  Second, I am torn because, were I British, I likely would have supported Brexit but for completely different reasons than many others.

My understanding is that many folks (in a parallel with Trump voters in the US) voted for Brexit out of fear of global free trade and immigration, both of which I support.  I, on the other hand, would have voted for Brexit to shed the absurd, overreaching EU regulatory state.  So I likely would have supported it, but don't want to be counted among modern anti-global nationalists.

But if you want to see the type of BS that would have driven me into the arms of the Brexit camp, this is it.

he European Parliament’s approval of the Copyright Directive today is the end of the internet as we know it. This new regulation creates substantial new controls on what we can share online which threaten freedom of expression, undermine creativity, and cement the dominance of technology giants.

The Copyright Directive will create two internets. The first, a heavily censored version for European users, including filters to prevent you from uploading content. The second, a free internet where creativity is encouraged, for everyone else.

The directive represents everything that’s wrong with the EU’s policymaking process. It was written at a substantial distance from Europeans, heavily influenced by lobbyists and national compromises. There is a serious lack of accountability.

By the way, I would have had completely the opposite instincts than President Obama during Brexit.  The day Brexit passed, as President I would have immediately announced to Britain that if they were leaving the EU's common market, they were welcome to join one with the US and would have sent a trade envoy over that day.  Instead, President Obama did nothing but threaten and scold Britain for trying to get out from under the EU's regulatory umbrella.

I discussed the shutdown and its effects on the parks my company operates here (spoiler:  all are still open).  Shawn Regan of PERC has a good article in the National Review on the same subject:

....under new shutdown guidelines established by the Trump administration, our parks have been rightfully spared from serving as pawns in Washington’s partisan budget battles as they did in the past.

Under a contingency plan created by the administration, park officials are allowed to keep sites accessible to visitors during the shutdown with skeletal staffs, rather than being forced to close them as was the case during the 2013 government shutdown presided over by President Obama. That means many important visitor activities and park operations — from snow-coach rides in Yellowstone run by private concessionaires to guided battlefield tours of Gettysburg — can continue yielding economic benefits for the surrounding communities. This week, the National Park Service also announced it will begin tapping unspent visitor-fee revenues to bolster operations at some parks.

These new plans are attracting criticism in the familiar anything-Trump-does-must-be-bad vein. Theresa Pierno of the National Parks Conservation Association slammed the administration’s decision to keep parks open, calling it “unrealistic and dangerous,” even though the NPCA repeatedly called for parks to be reopened during the 2013 shutdown. Representative Raúl Grijalva, the new Democratic chairman of the House Natural Resources Committee, pledged to hold hearingson the administration’s decision to support park operations with fee revenues....

The Trump administration’s approach is sensible. Why unnecessarily ruin visitors’ plans or jeopardize the millions of dollars in revenue that local communities receive from park visitation? If visitation begins to pose significant health or safety concerns, the contingency plan gives park superintendents the option to close areas or shut down parks entirely, as some parks have already done.

He goes on to make the very logical point that the vast majority of BLM lands and US Forest Service lands -- whose acreage dwarfs that under management by the National Park Service -- mostly all remain open in every shutdown.  The large amounts of government staffing on NPS lands are needed to handle large visitor concentrations in small areas, something that really is not an issue in most parks in January.

Folks who have been hunting for pictures of overflowing trash cans to paint the current opening of parks as a bad idea could find just as many in the summertime on government lands when the government is not shut down.  Remember, for all the love folks want to throw at the National Park Service at these times, it is an agency that has allowed many of its parks to fall apart, with perhaps $20 billion in deferred maintenance and very little new investment in the modern infrastructure visitors are demanding.  And it has a labor model that is well suited to counting wolves but poorly suited to efficiently cleaning bathrooms and emptying trash cans even when the government is open.  This shutdown is the least of the problems faced by public recreation lands.

I think people get confused about the purpose of the government shutdown.  It is not a punishment, or a timeout, meted out by the law when Congress can't agree on a budget.  It is a mechanical (and logical) requirement that spending on certain activities stop when that spending is no longer legally authorized.  The media acts like it is supposed to be painful, and that Trump is somehow breaking the rules by making it less so.  I often criticize this President, but this is one area Trump should be applauded.  I think the wall funding issue is a dumb reason to go into budget gridlock, particularly when he had 2 years of Republican Congresses to get this done, but given the fact of the shutdown he should be applauded for attempting to reduce its impact on ordinary Americans.  President Obama, for all his reputation of caring and hope, was to my mind overly callous in explicitly trying to make the shutdown more painful for average people.

In 1973, when Ford was rolling out such losers as the Pinto and the Mustang II, would the cars have been any better if the Ford designers had, say, a budget twice as large?  Or would the same people have continued to roll out the same bad cars, just more expensively, until competition from Japan and Europe forced American car makers to get their act together?

If you have not been to a Sears store lately, and you have lots of company.  If you do not shop at Sears, think about why.  Now, imagine that Sears were to double the number of employees in their local store.  Would that change your mind and suddenly send you into the store to shop?  No?

There are times when everything about an organization is broken -- its management, its culture, its strategy.  These organizations may have perfectly good people in them -- I have no doubt that the folks at Ford in the 1970's were capable people, as are the employees at my local Sears store.   I call all these factors "organizational DNA".  This is from years ago about a corporate example, but the same is true of any organization:

All these management factors, from the managers themselves to process to history to culture could better be called the corporate DNA.  And DNA is very hard to change.  Walmart may be freaking brilliant at what they do, but demand that they change tomorrow to an upscale retailer marketing fashion products to teenage girls, and I don't think they would ever get there.  ...

Corporate DNA acts as a value multiplier.  The best corporate DNA has a multiplier greater than one, meaning that it increases the value of the people and physical assets in the corporation.  When I was at a company called Emerson Electric (an industrial conglomerate, not the consumer electronics guys) they were famous in the business world for having a corporate DNA that added value to certain types of industrial companies through cost reduction and intelligent investment.  Emerson's management, though, was always aware of the limits of their DNA, and paid careful attention to where their DNA would have a multiplier effect and where it would not.  Every company that has ever grown rapidly has had a DNA that provided a multiplier greater than one... for a while.

But things change.  Sometimes that change is slow, like a creeping climate change, or sometimes it is rapid, like the dinosaur-killing comet.  DNA that was robust no longer matches what the market needs, or some other entity with better DNA comes along and out-competes you.  When this happens, when a corporation becomes senescent, when its DNA is out of date, then its multiplier slips below one.  The corporation is killing the value of its assets.  Smart people are made stupid by a bad organization and systems and culture.  In the case of GM, hordes of brilliant engineers teamed with highly-skilled production workers and modern robotic manufacturing plants are turning out cars no one wants, at prices no one wants to pay.

I would argue that public schools in many parts of the country are in this situation.  Any organization can become senescent with value-killing DNA, but this process happens much more rapidly when there is no competition, as has been the case for public schools which have enjoyed a virtual monopoly enforced by the government (you can go to a competing school but you still have to pay for the government school you are not using).

If I am right, then the last thing you would expect to help is simply pouring more money into the same management, the same culture, the same organizational DNA.  But that is exactly what we have done.  That has been our lead strategy for 35 years, and still remains the preferred strategy of the Left.  Via Mark Perry:

Despite this history, President Obama's strategy was to throw even more money at the schools, and again it did not work:

One of the Obama administration’s signature efforts in education, which pumped billions of federal dollars into overhauling the nation’s worst schools, failed to produce meaningful results, according to a federal analysis.

Test scores, graduation rates and college enrollment were no different in schools that received money through the School Improvement Grants program — the largest federal investment ever targeted to failing schools — than in schools that did not.

The Education Department published the findings on the website of its research division on Wednesday, hours before President Obama’s political appointees walked out the door.

“We’re talking about millions of kids who are assigned to these failing schools, and we just spent several billion dollars promising them things were going to get better,” said Andy Smarick, a resident fellow at the American Enterprise Institute who has long been skeptical that the Obama administration’s strategy would work. “Think of what all that money could have been spent on instead.”

One will hear that criticism of public schools in unfair because they have all these great teachers in them.  Examples will be cited.   I say:  "Exactly!"  That is why change is needed.  Public schools are hiring good people and putting them in an organization and system where they deliver poor results.  Let's liberate this talent.

By the way, one of the misconceptions about school choice is that it necessarily means the end of public schools.  I find this an unlikely outcome, at least in most areas.  Competition from Japan meant that Ford lost some of its customers to Toyota, but it also meant that Ford became a lot better.

The term "hate speech" has become a useful tool for speech suppression, mostly from the Left side of the political aisle.  The reason it is such a dangerous term for free speech is that there is no useful definition of hate speech, meaning that in practice it often comes to mean, "confrontational speech that I disagree with."   I think most of us would agree that saying, "all black men should be lynched" is unambiguously hateful.  But what about saying something like "African Americans need to come to terms with the high rate of black on black violence."  Or even, "President Obama plays too much golf."   I would call both the latter statements opinions that, even if wrong, reasonably fit within the acceptable bounds of public discourse, but both have been called hate speech and racist.

The Left's new tool for speech suppression appears to be the term "fake news."  Certainly a news story that says, "American actually has 57 states" would be considered by most to be fake.  We understand (or most of us outside places like the New York Times, which still seems to get fooled) that sites like the Onion are fake.   But, as I suspected the very first time I heard the term, "fake news" also seems to be defined as "political sites with which I disagree."  Via Reason:

But Zimdars' list is awful. It includes not just fake or parody sites; it includes sites with heavily ideological slants like Breitbart, LewRockwell.com, Liberty Unyielding, and Red State. These are not "fake news" sites. They are blogs that—much like Reason—have a mix of opinion and news content designed to advance a particular point of view. Red State has linked to pieces from Reason on multiple occasions, and years ago I wrote a guest commentary for Breitbart attempting to make a conservative case to support gay marriage recognition....

Reporting on the alleged impact of fake news on the election is itself full of problems. BuzzFeed investigated how well the top "fake" election news stories performed on Facebook compared to the top "real" election news stories. The fake stories had more "engagement" on Facebook than stories from mainstream media outlets. There's basic problems with this comparison—engagement doesn't mean that people read the stories or even believed them (I know anecdotally that when a fake news story shows up in my feed, the "engagement" is often people pointing out that the story is fake).

There's also a problem when you look at the top stories from mainstream media outlets—they tend toward ideologically supported opinion pieces as well. Tim Carney over at The Washington Examinernoted that two of the top three stories are essentially opinion pieces:

Here's the top "Real News" stories: "Trump's history of corruption is mind-boggling. So why is Clinton supposedly the corrupt one?" As the headline suggests, this is a liberal opinion piece, complaining that the media doesn't report enough on Trump's scandals.

No. 2 is "Stop Pretending You Don't Know Why People Hate Hillary Clinton." This is a rambling screed claiming that people only dislike Clinton because she is a woman.

So in an environment where "fake news" is policed by third parties that rely on expert analysis, we could see ideologically driven posts from outlets censored entirely because they're lesser known or smaller, while larger news sites get a pass on spreading heavily ideological opinion pieces. So a decision by Facebook to censor "fake news" would heavily weigh in favor of the more mainstream and "powerful" traditional media outlets.

The lack of having a voice in the media is what caused smaller online ideology-based sites to crop up in the first place. Feldman noted that he's already removed some sites that he believes have been included "unfairly" in Zimdars' list. His extension also doesn't block access to any sites in any event. It just produces a pop-up warning.

Tellingly, in a quick scan of the sites, I don't see any major sites of the Left, while I see many from the Right (though Zero Hedge is on the list and writes from both the Left and the Right).   Daily Kos anyone?  There are conspiracy sites on the list but none that I see peddle conspiracies (e.g. 9/11 trutherism) of the Left.

This is yet another effort to impose ideological censorship but make it feel like it is following some sort of neutral criteria.

Way back in 2014 I wrote:

I often wonder if Democrats really believe they will hold the White House forever.  I suppose they must, because they seem utterly unconcerned, even gleeful in fact, about new authoritarian Presidential powers they would freak out over if a Republican exercised.

Coyote's first rule of government authority:  Never support any government power you would not want your ideological enemy wielding.

As Damon Root writes:

In December 2007 presidential candidate Barack Obama told The Boston Globe that if he won the 2008 election, he would enter the White House committed to rolling back the sort of overreaching executive power that had characterized the presidency of George W. Bush. "The President is not above the law," Obama insisted.

Once elected, however, President Obama began to sing a different sort of tune. "We're not just going to be waiting for legislation," Obama announced. "I've got a pen and I've got a phone...and I can use that pen to sign executive orders and take executive actions and administrative actions."...

To make matters worse, many of Obama's fervent liberal supporters pretended to see nothing wrong with such obvious abuses of executive power. For example, consider the behavior of the prestigious editorial board of The New York Times. Back in 2006, when George W. Bush had the reins, the Times published an unsigned editorial lambasting Bush for his "grandiose vision of executive power" and his foul scheme to sidestep the Senate and unilaterally install his nominees in high office. "Seizing the opportunity presented by the Congressional holiday break," the Times complained, "Mr. Bush announced 17 recess appointments—a constitutional gimmick."

But guess what the Times had to say a few years later when President Obama had the reins and he utilized the exact same gimmick? "Mr. Obama was entirely justified in using his executive power to keep federal agencies operating," the Times declared in defense of Obama's three illegal appointments to the National Labor Relations Board. (Those three NLRB appointments, incidentally, were ruled unconstitutional by a 9-0 Supreme Court.)

I remember a conversation with my mother-in-law, who is a fairly accurate gauge of New England Left-liberal thought.  She was absolutely adamant that the Republican Congress, from the very beginning, had dug in and refused to work with Obama and that the resulting gridlock gave Obama the absolute right to work around Congress and govern by fiat.   I remember asking her, are you comfortable giving President Lindsey Graham that power too? (Trump was not even a glimmer in the eye of the body politic at that point so Graham was the best Republican bogeyman I could think up on short notice).  I don't remember an answer to this, which reinforced the sense I had at the time that Democrats honestly did not think they would lose the White House in their lifetimes -- I suppose they thought that 8 years of Obama would be followed by 8 years of Clinton.

Well, the freak out is officially here and I will happily embrace all Democrats who want to make common cause in limiting Presidential power.

Coyote's first rule of government authority: Never support any government power you would not want your ideological enemy wielding @reason

— Coyoteblog (@Coyoteblog) November 14, 2016

Update:  Glenn Greenwald makes many of the same points

Sen. Barack Obama certainly saw it that way when he first ran for president in 2008. Limiting executive-power abuses and protecting civil liberties were central themes of his campaign. The former law professor repeatedly railed against the Bush-Cheney template of vesting the president with unchecked authorities in the name of fighting terrorism or achieving other policy objectives. “This administration also puts forward a false choice between the liberties we cherish and the security we provide,” he said in 2007. Listing an array of controversial Bush-Cheney policies, from warrantless domestic surveillance to due-process-free investigations and imprisonment, he vowed: “We will again set an example for the world that the law is not subject to the whims of stubborn rulers.”

Yet, beginning in his first month in office and continuing through today, Obama not only continued many of the most extreme executive-power policies he once condemned, but in many cases strengthened and extended them. His administration detained terrorism suspects without due process, proposed new frameworks to keep them locked up without trial, targeted thousands of individuals (including a U.S. citizen) for execution by drone, invoked secrecy doctrines to shield torture and eavesdropping programs from judicial review, and covertly expanded the nation’s mass electronic surveillance.

Blinded by the belief that Obama was too benevolent and benign to abuse his office, and drowning in partisan loyalties at the expense of political principles, Democrats consecrated this framework with their acquiescence and, often, their explicit approval. This is the unrestrained set of powers Trump will inherit. The president-elect frightens them, so they are now alarmed. But if they want to know whom to blame, they should look in the mirror.

Last night, Van Jones (among likely many others on the Progressive Left) lamented, "How am I going to explain the election [Trump's victory] to my kids?"

Well, as someone who has always respected the Constitution, I would tell my kids that the folks who wrote the Constitution spent a lot of time thinking about how to make the system robust against tyrants.  Their solution was a system of checks and balances that prevented a single person in the Presidency acting against the general wishes of the country.  The President is bound both by Congress and the judiciary, but also by law (particularly restrictions in the Bill of Rights).

The last couple of Presidents, with the aid of a sometimes supine Congress and judiciary, have pushed the boundaries of these limitations, expanding Presidential power, and in certain spheres attempted to rule by decree.  Folks like Van Jones were way up in the forefront of folks cheering on this power grab, at least under President Obama, as long as it was their guy grabbing for power.  What should Jones tell his kids?  Perhaps he could say that for well-intentioned reasons, he helped increase the power of the President, but in doing so forgot that folks he disagrees with would likely someday inherit that power.

As I wrote years and years ago:

• Technocratic idealists ALWAYS lose control of the game.  It may feel good at first when the trains start running on time, but the technocrats are soon swept away by the thugs, and the patina of idealism is swept away, and only fascism is left.  Interestingly, the technocrats always cry "our only mistake was letting those other guys take control".  No, the mistake was accepting the right to use force on another man.  Everything after that was inevitable.

Sarah Baker has some nice thoughts along these lines at the Liberty Papers, but I will leave you with her first one:

This is how libertarians feel after every election. We learn to live with it. So will you.

There has been a lot written about "chaos" in UK government and financial markets since the Brexit vote, so much so there are supposedly folks who voted for Brexit who want a do-over.

A few thoughts:

• Short term changes in financial asset prices, like bank stock prices or currency futures, are largely irrelevant in the long-term.  The recent supposed "big drop" in US equities markets, for example, took the market all the way back to where it was in... March, barely 3 months ago.  You will see buying in these assets in the coming days and the drop of the last few days will be largely forgotten soon.   Financial markets don't react well to being surprised, but they will get over it.
• I don't see how the UK and the pound are necessarily weaker post-Brexit.  The US is fine.  The Swiss are fine.  Heck, the Swiss have to constantly fight to keep their currency lower.
• Unlike other EU nations, the majority of UK trade is with non-UK nations.  While trade with the EU will likely be on worse terms in the future (though the Swiss and Norwegians have pretty good deals), UK will be unshackled from the EU bureaucracy in negotiating new deals with the rest of the world.  If the US President had any vision whatsoever, he would already have offered the UK a free trade deal, rather than being petty and saying the UK goes to the back of the line for exiting a transnational body the US would never join itself.
• Much of the "chaos" in British government can be traced 100% to the anti-Brexit folks.  The Anti-Brexit folks very explicitly refused to craft any Brexit contingency plans, using threats of post-Brexit chaos to try to up the pressure against the Brexit vote.  President Obama did the exact same thing with Obamacare, refusing to create contingency plans if the SCOTUS overturned key parts of the ACA, hoping to ratchet up pressure against that outcome.  Had their been at least the outlines of a plan, they would be checking down it right now.  Things I would do as PM on the trade front:  1.  Demand the Swiss deal from the EU for Britain.  2.  Approach major trading partners with offers of free trade deals.  A British commonwealth free trade zone is a great idea.

Everyone on the Left is absolutely convinced that the Brexit vote was all about racism.  In part, this is because this is the only way the Progressives know how to argue, the only approach to logic they are taught in college for political argumentation.

Yes, as an immigration supporter, I am not thrilled with the immigration skepticism that dominates a lot of western politics.  I struggle to cry "racism" though, as I confess that even I would be given pause at immigration of millions of folks from Muslim countries who hold a lot of extremely anti-liberal beliefs.

Anyway, I would likely have voted for Brexit had I been in Britain.  I think the EU is a bad idea for Britain on numerous fronts completely unrelated to immigration.  The EU creates a near-dictatorship of unelected bureaucrats who seem to want to push the envelope on petty regulation.  And even if this regulation were just "harmonizing" between countries, Britain would still lose out because it tends to be freer and more open to markets and commerce than many other European countries.

By supporting Brexit, I suppose I would have been called a racist, but it would really have been about this:

The EU is poised to ban high-powered appliances such as kettles, toasters, hair-dryers within months of Britain’s referendum vote, despite senior officials admitting the plan has brought them “ridicule”.

The European Commission plans to unveil long-delayed ‘ecodesign’ restrictions on small household appliances in the autumn. They are expected to ban the most energy-inefficient devices from sale in order to cut carbon emissions.

The plans have been ready for many months, but were shelved for fear of undermining the referendum campaign if they were perceived as an assault on the British staples of tea and toast.

A sales ban on high-powered vacuum cleaners and inefficient electric ovens in 2014 sparked a public outcry in Britain.

EU officials have been instructed to immediately warn their senior managers of any issues in their portfolios that relate to the UK and could boost the Leave campaign were they to become public....

Internet routers, hand-dryers, mobile phones and patio jet-washers are also being examined by commission experts as candidates for new ecodesign rules.

As a free trade supporter, the downside would be the loss of a free trade zone with the rest of Europe, but I am not sure it can be called a "free trade zone" if they are banning toasters.  Britain will negotiate new tariff rates with the EU, just as Switzerland and Norway (much smaller and less important trading partners) have done.

The real crime from a US perspective is the actions of our President.  Mr. Obama has told the British that by voting for Brexit, they go to "the back of the line" for trade negotiations with the US.  This is, amongst a lot of stupid things politicians say, one of the stupidest I have ever heard.  My response as president would have been to move Britain to the front of the line, offering them a free trade treaty with the US the day after the Brexit vote.  Like most politicians, unfortunately, President Obama does not view trade as a vehicle for the enrichment of individuals but as a cudgel to enforce his whims in the foreign policy arena.  Why on Earth has President Obama threatened to undermine America's strong interest in trading with the UK merely to punish the UK for not staying in the EU, a transnational body this country would certainly never join?

I had this argument the other day with my mother-in-law -- you can't allow a President more power just because he is "your guy" and you trust him.  No matter how well you think that person will use the power (and I trust no one), you are setting a precedent for the next guy whom you may very well not like.   I wrote this way back in 2005:

Technocratic idealists ALWAYS lose control of the game.  It may feel good at first when the trains start running on time, but the technocrats are soon swept away by the thugs, and the patina of idealism is swept away, and only fascism is left.  Interestingly, the technocrats always cry "our only mistake was letting those other guys take control".  No, the mistake was accepting the right to use force on another man.  Everything after that was inevitable.

For years I have asked liberals -- who have cheered President Obama's power grabs as righteous on the basis that "Congress won't don anything, so Obama has to" -- how comfortable they will we with a President Lindsey Graham using the same powers.

I was frequently dismissed, but not any more -- as folks on the Left begin to wake up and imagine President Trump using the same powers wielded by Obama.  To this end, the New York Times has a good article on Obama's drone war and the precedent set for the next President:

President Bush started the drone wars, but Mr. Obama vastly expanded them. Almost entirely on his watch, United States strikes have killed as many as 5,000 people, possibly 1,000 of them civilians. The president approved strikes in places far from combat zones. He authorized the C.I.A. to carry out “signature strikes” aimed at people whose identities the agency did not know but whose activities supposedly suggested militancy. He approved the deliberate killing of an American, Anwar al-Awlaki.

The president also oversaw an aggressive effort to control the public narrative about drone strikes. Even as senior officials selectively disclosed information to the news media, his administration resisted Freedom of Information Act lawsuits, arguing that national security would be harmed if the government confirmed drone strikes were taking place.

The administration also argued in court that federal judges lacked the authority to say whether drone strikes were lawful. It refused to release the evidence that it claimed made Mr. Awlaki a lawful target. In lieu of information, the administration offered assurances that the president and his aides were deeply moral people who agonized over authorizing lethal force.

That last line is perhaps the most dangerous single argument in all of democracy, that it is somehow OK to give an individual enormous extra-Constitutional powers because you trust that individual.  Only now, at the end, do they understand:

But as this election season has underscored, powers this far-reaching should not rest solely on the character of the president and his advisers. In a democracy, the ability to use lethal force must be subject to clear and narrow limits, and the public must be able to evaluate whether those limits are being respected.

When discussing Trump, I see a lot of writers referring to 20th century precedents of populist autocrats.  But if you want to be worried about American democracy, a better example is perhaps the Roman Republic.  The Republic was not killed by one man, even Julius Caesar.    The Republic fell through the slow accretion of autocratic precedents over nearly a hundred years, many of which were set by folks like Gracchus (who seems to have been a well-intentioned reformer) and Sula (who was a hero in Rome).

Several months ago, a lot of folks where shocked to find that the Clinton Foundation only spent $9 million in direct aid out of a total budget of $150 million, with the rest going to salaries and bonuses and luxury travel for family and friends and other members of the Clinton posse.

None of this surprised me.  From my time at Ivy League schools, I know any number of kids from rich families that work for some sort of trust or non-profit that has nominally charitable goals, but most of whose budget seems to go to lavish parties, first-class travel, and sinecures for various wealthy family scions.

But this week comes a story from the climate world that demonstrates that making a fortune from your non-profit is not just for the old money any more -- it appears to be a great way for activists to build new fortunes.

The story starts with the abhorrent letter by 20 university professors urging President Obama to use the RICO statute (usually thought of as a tool to fight organized crime) to jail people who disagree with them in a scientific debate.  The letter was authored by Jagadish Shukla of George Mason University, and seems to take the position that all climate skeptics are part of an organized coordinated gang that are actively promoting ideas they know to be wrong solely for financial enrichment. (I will give the near-universal skeptic reply to this:  "So where is my Exxon check?!"

Anyway, a couple of folks, including Roger Pielke, Jr. and Steve McIntyre, both folks who get accused of being oil industry funded but who in fact get little or no funding from any such source, wondered where  Shukla's funding comes from.   Shukla gets what looks like a very generous salary from George Mason University of $314,000 a year.  Power to him on that score.  However, the more interesting part is where he makes the rest of his money, because it turns out his university salary is well under half his total income.  The "non-profits" he controls pays him, his family, and his friends over $800,000 a year in compensation, all paid out of government grants that supposedly are to support science.

A number of years ago Shukla created a couple of non-profits called the Institute for Global Environment and Security (IGES) and the Center for Ocean Land Atmosphere Interactions (COLA).  Both were founded by Shukla and are essentially controlled by him, though both now have some sort of institutional relationship with George Mason University as well.  Steve McIntyre has the whole story in its various details.

COLA and IGES both seem to have gotten most of their revenues from NSF, NASA, and NOAA grants.    Over the years, the IGES appears to have collected over $75 million in grants.  As an aside, this single set of grants to one tiny, you-never-even-heard-of-it climate non-profit is very likely way higher than the cumulative sum total of all money ever paid to skeptics.   I have always thought that warmists freaking out over the trivial sums of money going to skeptics is a bit like a football coach who is winning 97-0 freaking out in anger over the other team finally picking up a first down.

Apparently a LOT of this non-profit grant money ends up in the Shukla family bank accounts.

In 2001, the earliest year thus far publicly available, in 2001, in addition to his university salary (not yet available, but presumably about $125,000), Shukla and his wife received a further $214,496  in compensation from IGES (Shukla -$128,796; Anne Shukla – $85,700).  Their combined compensation from IGES doubled over the next two years to approximately $400,000 (additional to Shukla’s university salary of say $130,000), for combined compensation of about $530,000 by 2004.

Shukla’s university salary increased dramatically over the decade reaching $250,866 by 2013 and $314,000 by 2014.  (In this latter year, Shukla was paid much more than Ed Wegman, a George Mason professor of similar seniority). Meanwhile, despite the apparent transition of IGES to George Mason, the income of the Shuklas from IGES continued to increase, reaching $547,000 by 2013.

Grant records are a real mess but it looks like from George Mason University press releases that IGES and its successor recently got a $10 million five-year grant, or $2 million a year from the government.  Of that money:

• approximately $550,000 a year goes to Shukla and his wife as salaries
• some amount, perhaps $90,000 a year, goes to Shukla's daughter as salary
• $171,000 a year goes as salary to James Kinter, an associate of Shukla at George Mason
• An unknown amount goes for Shukla's expenses, for example travel.  When was the last time you ever heard of a climate conference, or any NGO conference, being held at, say, the Dallas-Ft Worth Airport Marriott?  No, because these conferences are really meant as paid vacation opportunities as taxpayer expense for non-profit executives.

I don't think it would be too much of a stretch, if one includes travel and personal expenses paid, that half the government grants to this non-profit are going to support the lifestyle of Shukla and his friends and family.  Note this is not money for Shukla's research or lab, this is money paid to him personally.

Progressives always like to point out examples of corruption in for-profit companies, and certainly those exist.  But there are numerous market and legal checks that bring accountability for such corruption.  But nothing of the sort exists in the non-profit world.  Not only are there few accountability mechanisms, but most of these non-profits are very good at using their stated good intentions as a shield from scrutiny -- "How can you accuse us of corruption, we are doing such important work!"

Postscript:  Oddly, another form of this non-profit scam exists in my industry.  As a reminder, my company privately operates public recreation areas.  Several folks have tried to set up what I call for-profit non-profits.  An individual will create a non-profit, and then pay themselves some salary that is equal to or even greater than the profits they would get as an owner.  They are not avoiding taxes -- they still have to pay taxes on that salary just like I have to pay taxes (at the same individual tax rates) on my pass-through profits.

What they are seeking are two advantages:

• They are hoping to avoid some expensive labor law.  In most cases, these folks over-estimate how much a non-profit shell shelters them from labor law, but there are certain regulations (like the new regulations by the Obama Administration that force junior managers to be paid by the hour rather than be salaried) that do apply differently or not at all to a non-profit.
• They are seeking to take advantage of a bias among many government employees, specifically that these government employees are skeptical of, or even despise, for-profit private enterprise.  As a result, when seeking to outsource certain operations on public lands, some individual decision-makers in government will have a preference for giving the contract to a nominal non-profit.   In California, there is even legislation that gives this bias a force of law, opening certain government contracting opportunities only to non-profits and not for-profits.

The latter can have hilarious results.  There is one non-profit I know of that is a total dodge, but the "owner" is really good at piously talking about his organization being "cleaner" because it is a non-profit, while all the while paying himself a salary higher than my last year's profits.

Our Overwrought language award this week comes from Kevin Drum of Mother Jones, writing about Paul Ryan's budget plan.  Drum calls Ryan's budget a "Vision of a Dickensian Hellhole".  He quotes Jonathon Chait as saying, "Its enactment would amount to the most dramatic rollback of government since the New Deal."

All this for a budget that proposes to reduce government spending to about 19% of GDP, a level that we have not seen since the Dickensian Hellhole of ... the Bill Clinton Presidency.  During the New Deal, spending hovered around 10% of GDP.

This is the ratchet effect that big government lovers are so adept at employing.  Under President Obama (with a lot of help from George Bush and a Democratic Congress) spending has skyrocketed to an unprecedented-except-in-WWII level of over 25% of GDP.  But suddenly Drum and Chait and company want to define that level as the new baseline, below which any drop is now "Dickensian."  Which is another reason that we should never, ever create a new government spending program because once established they are impossible to eliminate, no matter how stupid and wasteful.

After 7+ years of responding to any criticism by labeling it as "racist", President Obama is now tasting his own medicine as Elizabeth Warren's camp accuses Obama as being "sexist" for criticizing her.

I must admit this gives me a healthy does of Schadenfreude, but really, where does this end?  What prominent person is finally going to stand up and say that playing the race, gender, class, sexual preference, or whatever else card does not constitute discourse?  This is not discourse, it is anti-discourse.  It is the negation and preemption of argument and discussion by attempting to avoid dealing head-on and substantively the the actual issues raised.

President Obama is preparing to unleash a Colorado-River-sized torrent of stupid.  He wants to spend tens of billions of dollars on goofy green energy projects that will have an indiscernible affect on world temperatures but will have a very robust effect on some crony bottom lines.   Here is one example:

As part of President Obama’s plans to combat climate change, the White House announced a program on Friday for the U.S. Department of Energy to train 75,000 people to work in the solar power industry by 2020, many of whom will be part of a military veterans jobs initiative called Solar Ready Vets.

Seriously, is the training costs of workers really a substantial portion of a solar installation?

Andrea Luecke, president and executive director of the Solar Foundation, which publishes the annual National Solar Jobs Census, said that Obama’s announcement will not likely increase the size of the solar industry’s workforce but will instead ensure that the industry will be able to find highly skilled workers to fill jobs.

“We’re experiencing difficulty finding more skilled and qualified workers to install and do design work required,” she said, adding that the industry’s workforce has a “skills gap” as well-trained electricians and other workers go back to other construction jobs as the economy gains momentum.

I will translate that trade-group speak for you:  We like to pay our workers less than similarly-skilled construction workers so we lose a lot of skilled workers to higher paying construction companies. This program will not add any net employment to the economy but will help us keep wages lower by increasing the supply of qualified workers.

I can't help but think of Henry Ford, who famously raised the wages of his employees substantially.  The fake story is that he did this so all his workers could buy his product.   The real reason he did this was that he had horrendous labor turnover problems.  Like the solar industry, he was training folks who then left for higher paying jobs.  So he had to raise his wages to retain trained people.  How history would have changed if Ford had instead been able to call Obama and ask him to have the taxpayer pay to feed him with new, trained workers so he wouldn't have to raise his wage rates!

Seriously, did a bunch of technocrats get together and study the whole solar industry and come to the conclusion that solar installation skills were the keystone problem that was holding back the whole industry?  Of course not.  The solar industry will sink or swim based on panel costs and efficiencies.   What happened is someone said, "well the public always seems to like job training programs.  Those poll well."  And then they called the solar crony association or whatever it is called and they said, "sure, we would love to have taxpayers pay some of our training costs.  Thanks, we will be very supportive." And then someone said, "well, won't the Republicans pitch a fit over this?" And then someone had the brilliant idea of making it a veterans program -- "Republicans love soldiers, that will help defuze their opposition."  And an expensive crony giveaway was born.

About 5 years ago I said I would be willing to accept a carbon tax whose proceeds were used to reduce various labor tax rates (e.g. social security).  Substituting an energy consumption tax for a labor consumption tax was probably at least neutral and maybe even a net positive.

Now, I want to come back to that idea.  I don't believe any more than I did then that CO2-driven global warming will be catastrophic.  In fact, I am more confident than ever that while CO2-induced warming is a reality, the sensitivity of temperatures to CO2 levels is relatively low.  But please, I am willing to fully support a carbon tax that offsets some other existing tax if only we will stop all this stupid crony useless green energy stuff.  At least with a carbon tax, the markets will reduce fossil fuel use in the most efficient ways possible.  As opposed to programs like this one that will reduce fossil fuel use not at all but will cost a lot of money.

I was skeptical in the extreme when President Obama and other PPACA supporters  claimed so much savings would come from electronic medical records.  While in theory good, portable records might prevent some accidents and streamline care in certain emergency situations where there might not be time to take a full history, my actual experience with these systems did not give me much confidence.  And it just sounded like yet another politician's silver bullet  (HMO's were another such bullet 20 years ago).

This was a pretty powerful article about medical records and patient care.

There is no point in trying to automate the diagnostic process with an expert system AND retain the 12-year-trained doctor in the room.  It strikes me as one or the other.  Perhaps these systems are close to working fine and doctors can see themselves getting automated out of a job and this type of job is their last-ditch attempt to stop them.  Or perhaps the systems really suck and add a lot of extra time and cost.  It will be interesting when this has a chance to be fully studied.

A while back I (for a short time) chaired an effort to get a ballot initiative in Arizona to change to Constitution to allow gay marriage.  In the process, gay rights advocates approached me for support of another law to add LGBT persons to the list of protected classes that are covered by workplace discrimination laws.

I refused to help, and these folks immediately labeled me a hypocrite.  To be fair to them, they honestly thought that workplace discrimination laws did exactly what they intended to do - ban workplace discrimination of an overt sort (e.g., "what, you're gay?  Well, you can't work around here any more").  But anti-discrimination law has a lot of other unintended consequences that are all bad for even the most fair-minded business owner.

Because most of the actual stories I have been through are (and should be) confidential, I will illustrate the problem from a story out of the national news.

Debbie Wasserman Schultz is Chair of the Democratic Party.  Several years ago various party members became dissatisfied with her leadership, a pretty normal occurrence for such a position, particularly after Congressional losses in several elections.  I compare the job to that of an NFL coach, who has job security only as long as he is winning (see: Jim Harbaugh in San Francisco).

Wasserman Schultz’s position as the head of the DNC has long been a source of contention among Democrats, and Politico has previously documented the issue. In September 2014, Wasserman Schultz’s gaffes caught up to her when a string of Democrats voiced their distaste for the way the Florida congresswoman had led the party.

That report found tension between Wasserman Schultz and Obama dating back to 2011 .... At the time, Wasserman Schultz had allegedly complained to Obama about not being able to hire a donor’s daughter to work for her at the DNC.

“Obama summed up his reaction to staff afterward: ‘Really?’ ” according to a source that was present.

So maybe Obama didn’t like Wasserman Schultz’s brashness or her propensity to spout gaffe after gaffe.

So, faced with threats of losing her position based on poor job performance, her response was this:

Democratic National Committee Chairwoman Debbie Wasserman Schultz was prepared to go full force against President Obama if he tried to replace her in 2013.

Wasserman Schultz, according to Politico, was going to accuse Obama of being anti-woman and anti-Semitic — apparently to cover all the bases — if he dared consider replacing her as chairwoman.

There is absolutely no rational reason to believe President Obama wanted to fire her because she was a woman.  Seriously, Valerie Jarrett practically runs the country but Obama doesn't like Shultz because she is a woman?  I would bet that in fact she was hired for the position in large part because she was a woman.  But she was perfectly willing to use the fact that she happened to be in some protected employment classes to try to head off a merit-based firing.

For businesses, this means two things

1. It typically takes much longer to terminate someone in a protected class, because businesses want to make sure they have an absolutely iron-clad case if the termination is later challenged.  For a service business like ours, this sometimes means tolerating dangerous behavior or really bad customer service longer (with all the risks that entails) from someone in a protected group rather than from, say, a white male.
2. A large number of employees in protected groups will file grievances to the state, or even sue, over even the most well-documented and justified termination.  Even when employers win such cases, each one take tens of thousands of dollars in legal fees to win.  As interpreted by courts and state civil rights agencies, anti-discrimination law seems to create burden of proof on the part of employers to prove they did nothing wrong, rather than the other way around.

President Obama wants to spend something like a half trillion incremental dollars on "infrastructure".  I have found that these initiatives to sell infrastructure tend to be great bait and switch programs.  Infrastructure is generally the one type of government spending that polls well across all parties and demographics.  So it is used by government officials to pass big spending increases, but in fact what really happens is that the government takes a wish-list of stuff that most of the public would not be OK with increasing spending on, then they put a few infrastructure projects on top like a cherry to sell the thing.  They call it an "infrastructure" program when in fact it is no such thing.

Obama would never do that, right?  Hope and change?  In fact, he already has.  The first time around he sold the stimulus bill as mainly an infrastructure spending bill -- remember all that talk of shovel-ready projects?   Only a trivial percentage of that bill was infrastructure.  At most 6% was infrastructure, and in practice a lot less since Obama admitted later there were no shovel-ready projects.   (also here).  The rest of it was mainly stuff like salary support for state government officials.  Do you think he would have as easily sold the "wage support for state government officials" bill in the depth of a recession?  No way, so he called it, falsely, an infrastructure bill.

The other bait and switch that occurs is within the infrastructure category.  We have seen this at the state level in AZ several times.  Politicians love light rail, for some reason I do not understand, perhaps because it increases their personal power in a way that individual driving does not.  Anyway, they always want money for light rail projects, but bills to fund light rail almost always fail.  So they tack on a few highway projects, that people really want, call it a highway bill and pass it that way.  But it turns out most of the money is for non-highway stuff.  That is the other bait and switch that occurs.

Expect to see both of these with the new infrastructure proposal.

By the way, Randal O'Toole has a nice summary of the drawbacks of light rail and trolley spending

For the past two decades or so, however, much of our transportation spending has focused on infrastructure that is slower, more expensive, less convenient, and often more dangerous than before. Too many cities have given up on trying to relieve congestion. Instead, they have allowed it to grow while they spend transportation dollars (nearly all paid by auto users) on other forms of travel such as rail transit. Such transportation is:

• Slower: Where highway speeds even in congested cities average 35 miles per hour or more, the rail transit lines built with federal dollars mostly average 15 to 20 mph.
• More expensive: In 2013, Americans auto users spent less than 45 cents per vehicle mile (which means, at average occupanies of 1.67 people per car, about 26 cents per passenger mile), and subsidies to roads average under a penny per passenger mile. By comparison, transit fares are also about 26 cents per passenger mile, but subsidies are 75 cents per passenger mile.
• Less convenient: Autos can go door to door, while transit requires people to walk or use other forms of travel, often at both ends of the transit trip.
• Less safe: For every billion passenger miles carried, urban auto accidents kill about 5 people, while light rail kills about 12 people and commuter trains kill 9. Only subways and elevateds are marginally safer than auto travel, at 4.5, but we haven’t built many of those lately.

I certainly am no Castro apologist, but it strikes me that 50+ years of embargoes and pointless travel restrictions have not brought his regime to heal.  So it is past time to recognize this and perhaps try something else.  So kudos to President Obama for doing something that apparently only a lame duck President who no longer has to worry about winning the Florida electoral votes can do, he is going to normalize relations with Cuba.

This should be good news for anyone who opposes the Cuban regime and its oppression. Time and again over the last 50 years, we have seen cultural and economic interchange fell more authoritarian governments than any amount of military action.  When we cut off free exchange with authoritarian regimes, we are doing their leaders a favor.

This is a follow-up from a post this morning here.  Kevin Drum is a Keynesian who thinks that the government is committing economic suicide if it does not increase its spending substantially during and after a recession.  Kevin Drum is also a fierce partisan who wants to defend President Obama against his detractors.  Unfortunately, trying to do the two simultaneously has led to what I think may be an embarrassing result for him.

In the chart below, I combine two graphs of his.  The one on the left is a chart from last year in a Mother Jones cover story blasting "austerity" and lamenting how dumb it was to decrease spending in the years after a recession.  The chart on the right is from the other day, when Drum is agreeing with Paul Krugman that the recession recovery under Obama has been much stronger than the one under Bush II.  The result is a juxtaposition that seems to undermine his Keynesian assumptions - specifically, the recession where we had the "austerity" was the one with the better recovery.  The only thing I have done to his charts is removed lines in the left chart for other past recessions and changed the line colors on the two charts to match.   You can click to enlarge:

The blue line is the Bush II recession, the red line is the Obama recession.  I believe the start dates are consistent in both charts.  All the numbers and choice of start dates and measurement scales are Drum's.  Don't yell at me for something in the chart construction being unfair -- they are his choices.

The conclusion?  Higher government spending seems to inhibit recovery.  Thanks Kevin!

In campaigning for the Presidency, Obama made it clear that he thought that much of the violence and hatred directed at Americans was self-inflicted -- ie our often ham-fisted, aggressive interventionism in the affairs of other countries, frequently backed by military force, was aggravating the world against us.  If we stopped, the violence against us would stop.

I rate this as partially correct and partially naive.  As the richest state in the world, one whose culture pours into other countries to the dismay of many of the local elites, we will always earn the ire of many.  But we certainly have made it worse with our actions.

But this just makes it all the more frustrating to me to see Obama's continued support, even acceleration, of the drone war.  I am not sure there is any other practice that emphasizes our arrogant authoritarian militarism than the drone war.  Americans are not used to a feeling of helplessness, so it is perhaps hard to fully empathize.  But imagine the sense of helplessness to watch American drones circling above your city, drones you can't get rid of or shoot down, drones that lazily circle and then bring death from above almost at random.   I can't think of any similar experience in recent western experience, except perhaps the V2 rocket attacks on London in WWII.

The Obama Administration claims that these are clean, surgical tools without any collateral damage.  They do this by a rhetorical slight of hand, essentially defining anyone who is killed in the attacks ex post facto as being guilty.

As is often the case with government activities, it is worse than we thought:

Via the British group Reprieve comes a report asserting that U.S. drones in Yemen and Pakistan kill 28 "unknowns" for every intended target. What's more, "41 names of men who seemed to have achieved the impossible: to have ‘died,’ in public reporting, not just once, not just twice, but again and again. Reports indicate that each assassination target ‘died’ on average more than three times before their actual death."

So much for the precision of drone strikes, which promise a future of war in which civilians and other forms of collateral damage are spared ruin and destruction. As President Obama said in 2013, by "narrowly targeting our action against those who want to kill us, and not the people they hide among, we are choosing the course of action least likely to result in the loss of innocent life.”

Well, sort of. From the Reprieve report:

As many as 1,147 people may have been killed during attempts to kill 41 men, accounting for a quarter of all possible drone strike casualties in Pakistan and Yemen. In Yemen, strikes against just 17 targets accounted for almost half of all confirmed civilian casualties. Yet evidence suggests that at least four of these 17 men are still alive. Similarly, in Pakistan, 221 people, including 103 children, have been killed in attempt sto kill four men, three of whom are still alive and a fourth of whom died from natural causes. One individual, Fahd al Quso, was reported killed in both Yemen and Pakistan. In four attempts to kill al Quso, 48 people potentially lost their lives.

As of next year, my company is required to offer health care plans to our full-time employees or else pay a penalty.    Unfortunately, after an extensive market search, no one will sell me such a policy -- not even the government health care exchange for small businesses.

Let's take a step back.  Business owners have had the rules pounded into us over the last few years, but many of you may not be familiar with the details.  The detail rules are here, as "simplified" as much as possible by the NFIB, but don't read them unless you have to or your head will explode.  The simple way to think of it is that there are two penalties out there:

• The "A" penalty is for companies that do not offer any sort of health plan, no matter how crappy, to their full-time employees.  The A penalty in this case is $2,000 per full-time employee, with the first 30** free (so with 60 FT employees and no health plan, the penalty is (60-30) x $2,000 = $60,000 a year.
• The "B" penalty is for companies that avoid the "A" penalty.  If a health plan is offered, but is not affordable (ie the employee monthly share of premiums is higher than a government-set floor) then the company gets penalized $3,000 for every full-time employee who both goes into an exchange and gets a plan with a government-subsidized premium.   There is a cap on the "B" penalty that it can be no higher than if the "A" penalty was applied to the whole company.

We have always pretty much assumed we were going to get the B penalty.  For minimum wage workers, the floor contribution is something like $9o a month, so the company share over a year for a typical employee of ours would be way over $3000.  Also, since over half of our full-time employees are on Medicare and another portion of them are on some sort of retirement plan from a corporation, we don't expect that many to go into the exchange anyway.  So we plan to just pay the penalty.

But we had expected to avoid the A penalty by offering some sort of policy to our employees.  When experts present this stuff, they act like only the dumbest of the dumb companies would ever be saddled with the A penalty.  After all, the company does not even have to pay anything for the policy, they just have to offer something.

But it turns out that all the things that protect us from the B penalty make us almost un-insurable.  First and foremost, insurers have a minimum participation rate they demand.  They are not going to go through all the overhead costs of setting you up on their plan if no one is going to sign up.  In the Government Small Business Health Care Exchange (SHOP), that minimum participation rate is around 70%.  No WAY we can meet that, since over half or our employees are on Medicare and would thus not sign up for anything.  The fact that the average age of our workforce is in the 60's, maybe even the 70's, just makes things worse.  Obamacare gives insurers only limited ability to price for higher risk, so they lose money on older people.  That means they are going to avoid like the plague signing up any group like ours that is all older people.

So, as a result, I am required by law, under harsh financial penalties, to purchase a product that is not available to me.  Had President Obama required that I buy 2 pounds of rocks from Mars, the result would not have been any more unfair.

By the way, I have for a couple of years now been discussing my efforts to convert all our full-time employees to part-time.  I have gotten a lot of grief for that in the comments.  But do you see why now?  The Administration is levying a penalty on me that I cannot avoid.  That penalty is calculated as a multiple of the number of full-time workers I employ.  The only way I can reduce the penalty is to reduce the number of full-time employees.

It is a sorry state of affairs to have to see my greatest business achievement of the last year was to get my number of full-time employees in a workforce of over 350 people down to just 42.  This year, we will work to get it under 30.  If we can do that, we will avoid all penalties entirely without having to mess with the health insurance marketplace.

** As a transition measure, the first 80 are free in 2015, which means my company will avoid penalties in 2015 no matter what but not in 2016 unless we can get our full-time employee count down further.

Postscript:  One of the oddball and confusing parts of the law is that the word "full-time" has multiple meanings.  This year, companies with more than 100 full time equivalents (FTE) are subject to the mandate.    Because of this, at cocktail parties, I have people walk up to me all the time saying the law does/doesn't apply to me based on a factoid they heard about minimum workforce sizes.  I have 350 total employees of whom 42 are full time.  Some say that puts me over 100 (the 350) and some say that puts me under the 100 (the 42).  It turns out that neither are relevant in determining if I am under or over 100, it is a third calculation that matters.  We do have more than 100 FTE, but we have less than 80 full-time employees that triggers the penalties in 2015.  Go figure.

While I share this individual's frustration with the Obama Administration's lack of transparency, I am not sure this phrasing quite works

“There is no precedent for President Obama’s Nixonian assertion of executive privilege over these ordinary government agency records,” said Judicial Watch President Tom Fitton in a written statement.

If the assertion is "Nixonian", doesn't that imply that there is indeed a precedent?  Otherwise how would the practice be named after someone else?

PS- since we were on the subject of grammar and editing yesterday, I will say that yes, I know the comma after "Nixonian" above is supposed to be inside the quotes.  But as an engineer and former programmer, this rule is entirely illogical.   It's like writing 3+(x+y*)7 instead of 3+(x+y)*7.   I do it the way that makes logical sense.

Apparently there is yet another executive order with far reaching consequences for government contractors, Executive Order 13673  (does it bother anyone else that we are up in the 13 thousands on these?  Did they start numbering at 1?)  Hans Bader has the details:

A July 31 executive order by President Obama will make it very costly for employers to challenge dubious allegations of wrongdoing against them, if they are government contractors (which employ a quarter of the American workforce). Executive Order 13,673 will allow trial lawyers to extort larger settlements from companies, and enable bureaucratic agencies to extract costly settlements over conduct that may have been perfectly legal. That’s the conclusion of The Wall Street Journal and prominent labor lawyer Eugene Scalia.

This “Fair Pay and Safe Workplaces” order allows government officials to cut off the contracts of contractors and subcontractors that do not “consistently adhere” to a wide array of complex labor, antidiscrimination, harassment, workplace-safety and disabilities-rights laws. Never mind that every large national business, no matter how conscientious, has at least one successful lawsuit against it under federal labor and employment laws, which is inevitable when a company has thousands of employees who can sue it in hundreds of different courts that often have differing interpretations of the law. The order also bans using perfectly legal arbitration agreements, overstepping the President’s legal authority.

I can say as someone who absolutely bends over backwards to be in compliance, it just is not possible to be totally clean.  We have won most all of the lawsuits and actions against us over the years vis a vis labor laws and related charges.  A lot of these are pro forma discrimination charges that some employees in protected groups file automatically when terminated, usually without any evidence of specific discrimination.  We have, to date, won all of these "was he a Hispanic that was terminated rather than he was terminated because he was Hispanic" suits.  We have only lost one case.  To give you an idea of how hard it can be to be 100% in compliance, let me describe it:

We had a government contract governed by the Service Contract Act, which sets out minimum wages to be paid for different types of jobs.  These wages typically are in two parts - a base wage and, if the company does not have benefits, a fringe payment in lieu of such benefits.  For example, it might say that a day laborer must be paid (I will use round numbers for simplicity) $12 an hour base wages plus $4 an hour for fringes.  So we paid the worker $16 and hour and felt ourselves in compliance.  

Then we had a Department of Labor audit.  The investigator insisted that the law required that we break these two payments into two lines on the paycheck.  So instead of having  a paycheck that said 40 hours times $16, it needed to say 40 hours times $12 and 40 hours times $4.  Thus we were found to be in violation and issued a huge fine.  I protested that the law said no such thing -- the law said I had to have a clear paper trail of what I paid people.  It did not say the labor and fringes had to be shown separately on the paycheck, nor did any DOL published regulation require this  (and of course I also pointed out that the intent of the law that someone get paid a minimum amount had been fulfilled).  

Apparently, the DOL had an internal handbook that suggested this as a correct practice, but this had never been tested in court nor embodied in a published regulation.  To impose the fine, my attorney said they had to take me to court.  I said go for it.  The DOL chose not to press the case, and we adjusted our paycheck practices to avoid the issue in the future.  I was happy to comply with this, as stupid as it was, but it was impossible to know it was an actual requirement until I got busted for violating this double-secret practice.  But there it is on my record - VIOLATION!

I will leave it to Bader's article to explore some of the implications of this order, but I want to add some unintended(?) consequences of my own:

• Government contractors would be insane to operate in California (and perhaps other regulatory hell-holes, but I am familiar with California).  California has a myriad of arcane labor laws (like break laws and heat stress laws) that are difficult to comply with, combined with a legislature that shifts the laws every year to make it hard to keep up, combined with a regulatory and judicial culture that assumes businesses are guilty until proven innocent.  If state labor violations or suits lead to loss of business at the national level, why the hell would a contractor ever want to have employees in California?
• I have a couple of smaller competitors who have sent employees into the parks we operate who then filed extensive, manufactured complaints to the government about our service, timed to make it difficult on us when we bid against them for the contract renewal.  How tempting will it be for companies to place employees in their rival who then file serial labor complaints to undermine that rival in future contract awards?
• Companies that do government contracting as a sideline are going to be driven out of the business, reducing the choice and competition among contractors.   Earlier I discussed how 41 CFR 60-2.1  and 41 CFR 60-4.1, also the result of an Obama executive order, drove our company out of our last incidental contracting business (though we deal with the government all the time, it is generally through concession contracts where we get paid by the public, not by the government, so a lot of government contracting law does not apply to these contracts).

Ken White at Popehat offers some useful insight to non-lawyers among us about compelled testimony (in the context of the Louis Lerner/IRS saga)

Some people have argued that Lois Lerner should be compelled to testify, either by court order or by grant of immunity. Lerner and her lawyers would love that, as it would make prosecuting her for any suspected wrongdoing incredibly difficult.

Compelled testimony is radioactive. If a witness is compelled to testify, in any subsequent proceeding against them the government has a heavy burden to prove that no part of the prosecution is derived from the compelled testimony, which is treated as immunized. This is called theKastigar doctrine:

"Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence." 378 U.S. at 378 U. S. 79 n. 18. This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.

If I read this right, if the House were to compel her to testify, they might as well grant her immunity and be done with it.

Further on in the post, Ken points out an issue that I have been wondering about myself -- Those who want Lerner to testify are concerned with government arbitrary abuse of power for political purposes.  Given that, how can these same folks have any doubt as to why Lerner might plead the Fifth in front of a hostile and partisan House committee

I've been seeing a lot of comments to the effect of "why should Lois Lerner take the Fifth if she has nothing to hide?" Ironically these comments often come from people who profess to oppose expansive government power, and from people who accept the proposition that Lerner was part of wrongdoing in the first place — in other words, that there was a government conspiracy to target people with the machinery of the IRS for holding unpopular political views. Such people do not seem to grasp how their predicate assumptions answer their own question.

You take the Fifth because the government can't be trusted. You take the Fifth because what the truth is, and what the government thinks the truth is, are two very different things. You take the Fifth because even if you didn't do anything wrong your statements can be used as building blocks indishonest, or malicious, or politically motivated prosecutions against you. You take the Fifth because if you answer questions truthfully the government may still decide you are lying and prosecute you for lying.

Pardon me: if you accept the proposition that the government targets organizations for IRS scrutiny because of their political views, and you still say things like "why take the Fifth if you have nothing to hide", then you're either an idiot or a dishonest partisan hack.

If you want to get bent out of shape about something, you are welcome to wonder why Lerner is being investigated, apparently, by the hyper-partisan civil rights division of Justice rather than the public integrity section.  That, combined with President Obama's pre-judging of the DOJ's conclusions, is more of a red flag than Lerner's taking the Fifth.

Remember, Martha Stewart did not go to jail for securities fraud of any sort.  She went to jail for statements she made during the government investigation.

The PJ O'Rourke / Cato Supreme Court amicus brief that is making the rounds is well worth your time.  A lot of it is funny, like this footnote:

While President Obama isn’t from Kenya, he is a Keynesian—so you can see where the confusion arises.

But my favorite is footnote 15 where they make fun of the Supreme Court

Driehaus voted for Obamacare, which the Susan B. Anthony List said was the equivalent of voting for taxpayer- funded abortion. Amici are unsure how true the allegation is given that the healthcare law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.