Congress Declares Itself Non-Essential

Around the US, “essential” workers are going to work everyday and doing their jobs, COVID-19 pandemic or not. Factory workers are producing things. Truck and delivery drivers are transporting those things. Grocery store employees and food service workers are making sure food reaches our tables.

Congress, not so much.

When US Representative Thomas Massie (R-KY) tried to require his fellow politicians to actually show up at the Capitol to vote on the biggest one-off welfare handout in human history, and to  record their votes for posterity, all hell broke loose.

House Speaker Nancy Pelosi (D-CA) called Massie a “dangerous nuisance” for having the gall and temerity to suggest that the House get the constitutionally required quorum (216 members) together and put them on record instead of just pretending it had such a quorum and holding an undifferentiated voice vote.

US Representative Peter King (R-NY) said it was “disgraceful” and “irresponsible” of Massie to imply that King should show up for work instead of sitting at home in New York collecting his $174,000 salary, his lavish fringe benefits, and his comfortable retirement package.

President Donald Trump called Massie a “third-rate grandstander” and advocated his expulsion from the Republican Party. I mention this only to acknowledge Trump’s expertise in third-rate grandstanding, and to suggest that he’s not otherwise qualified to so much as carry Massie’s briefcase.

And so it went down on March 27:

Massie called for a recorded vote. The chair pretended to count those standing in favor of a roll call vote and announced there weren’t enough.

Upon Massie’s further objection that the House lacked a quorum, the chair spent four seconds pretending to count to 216 in a nearly empty chamber before asserting that yes, there was a quorum, and declaring the bill passed.

If any other body pulled that kind of stunt, its members would find themselves in court answering to charges of honest services fraud. But when Congress lies, even as openly and arrogantly as it did here, it usually gets away with doing so. Massie presumably lost this battle.

But there’s a larger war on over the credibility of American politicians and political institutions, and if we listen to what Congress is actually saying, it just shot itself in the foot in public.

Here’s the message Congress just sent America:

“We as individual members of Congress are far too important, and Congress itself is far too un-important, for us to be expected to do our jobs if doing our jobs entails any personal risk, or even inconvenience.”

Or, to put it a different way, “we’re far more important than Subway sandwich artists, and the House of Representatives isn’t nearly as important as a Subway  store. Our safety and comfort is paramount and the job we do isn’t important enough to do right.”

I’m not sure I agree with Capitol Hill’s (when they bother to be there) perfumed princes and princesses as to just how very special and important they are, but I think they’re onto something with the second part.

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OFCCP vs. Oracle

Three days before Barack Obama left office, his Department of Labor served a complaint against Oracle America, Inc., alleging gross systemic discrimination in both its hiring practices and its pay practices.

Specifically, it claims that Oracle discriminates against non-Asians in hiring for sixty-nine job titles, and discriminates against women, Asians, and African-Americans in pay for eighty job titles.

DID ORACLE DISCRIMINATE?

Is it strange that Oracle allegedly discriminates both in favor of and against Asians?

The OFCCP (the Office of Federal Contractor Compliance Programs) is the program at the center of this complaint; it is involved because Oracle is a government contractor. The only points supporting OFCCP’s claim are statistical analyses.

The complaint mentions exactly zero employee complaints, and it doesn’t even try to say that there is evidence that Oracle intended to discriminate.

It is difficult to determine and compare the myriad factors involved in assigning appropriate compensation, and the statistical analyses OFCCP conducted likely fall short. Economically speaking, any mutually agreeable level of compensation is appropriate, and in a free market, compensation will tend to be equitable.

SHOULD THE OFCCP HAVE THIS POWER?

However, when Oracle filed a countersuit on November 27, 2019, (yes, the case is still going on), its press release discussed none of those points. Instead, it focused on the unconstitutionality of the Department of Labor acting as “investigator, prosecutor, judge, jury, and appellate court.”

Of course, such arrangements are not limited to the Department of Labor; they have become unfortunately common throughout the Federal bureaucracies. This is despite the blatant violation of the Constitutional separation of powers, arguably the most basic fact of American civics. For most of us, as soon as we started learning about the US Government, we learned about the separation of powers, and how the Founding Fathers designed the system with the famous checks and balances that prevent tyranny.

How well has that tyranny prevention worked out so far?

Oracle argues that the situation is not only unconstitutional but also statutorily illegal. It remains to be seen how the suit and countersuit will turn out; typically, it takes extremely deep pockets to win such a fight against the feds. Oracle may yet come out on top, but so far, it appears that the checks and balances have failed to protect Oracle — a company that provides over 100,000 jobs and many billions of dollars of services to the economy each year.

COULD THE FREE MARKET HANDLE THIS?

The OFCCP has not made a compelling case for the existence of systemic discrimination within Oracle; its claims are prima facie incongruous and based exclusively on ambiguous data. Indeed, it appears that it has inserted itself into a situation in which no one has complained, no one has objected, no one has said that their compensation was not appropriate for their labor or that they objectively should have been hired when they were not.

But, what if there really were discrimination?

And, is there a better way to handle it than the intra-DoL system, or even the Constitutional system?

My interest is in how this situation would play out in a free market. Let’s consider it.

A free market, with total freedom of association, would probably have no claims of hiring discrimination, because no one would be compelled to hire or retain anyone against their will. Of course, a reputation for discrimination could easily lead to a loss of revenue, as a consumer base that opposes discrimination would likely choose to take their business elsewhere.

Furthermore, formal anti-discrimination regulations could be voluntary. Associations or organizations could prescribe standards for avoiding discrimination, as well as regular audits to ensure compliance, and consumers could choose to patronize only those companies that subscribe to sufficiently stringent standards and pass the audits.

HOW WOULD THE FREE MARKET HANDLE THIS?

What would happen with a discrimination claim in a free market?

Let’s say that Oracle is certified as discrimination-free by the standard-bearer anti-discrimination association. In this scenario, a prospective employee believes that Oracle has discriminated against him in the hiring process, or a current employee believes (despite mutual agreement) that Oracle has discriminated against him in his compensation.

He could discuss it directly with the appropriate people in Oracle, or he could take it to the anti-discrimination association that certifies Oracle as discrimination-free.

If his claim has merit, the association would need to ensure that Oracle settles the claim swiftly and fairly, or have its discrimination-free certification revoked. To do otherwise would risk the association’s reputation and tarnish the value of their certifications.

IS THERE ANOTHER WAY TO LOOK AT THE SITUATION?

Of course, this is just one way it could play out. The best part about the free market — wait, is there a single best part? —  is that one person can’t conceive of all the remarkable ways that collaboration and competition can make the world a better place.

On the other hand, you may have noticed some similarities between how a discrimination claim would work in a free market, and how it works with a state-run system. Part of that is because the free market is impossible to get away from completely, and part of it is because my imagination is likely affected by the status quo. The main benefits of the free market vis-a-vis the state-run system are the lack of coercion (in both funding and association) and the opportunities for innovation.

CONCLUSION

In summary, it appears that the Constitutional system isn’t working (since we have unconstitutional bureaucratic judicial pipelines all over the place), and those pipelines don’t work too well either (since they use sketchy math to find problems where no one involved sees a problem). So, do you think a free market system would work better? How do you think it would function? How would you design it?

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Pandemics Are the Health of the State

Local, state, and federal governments are using the COVID-2019 coronavirus crisis to assert more and more direct control over the lives of individuals.

The president has “banned” travel to Europe and travel from China, though control over individuals’ movements has never been within the scope of the president’s constitutional power.*

Governments have “declared lockdowns,” effectively forcing people to stay inside their homes (in some cases with criminal penalties), discussions of “shelter-in-place” and other domestic travel restrictions. These in turn will weaken and (given enough time) destroy large parts of the private sector, creating a void into which government programs and government-run industries

The government is planning to send $1000 to every American, in one swoop making all 330 million US citizens recipients of government welfare for the first time in history.

A quasi-private governmental banker council has arbitrarily set the cost of borrowing money (at the bank level) at near zero, creating hundreds of billions of new dollars out of thin air.

After all the lessons and corruption of 2008, the federal government is again pursuing bailouts for companies that are failing.

States are mobilizing their national guards. The federal government is preparing quarantine centers.

Hardly anyone is batting an eye. Some people are begging for more “strong action” from their governments.

There’s no doubt that COVID-2019 is a serious risk. But it’s kind of hard not to notice that the response in terms of vastly ramped-up government control of society (with more to come) has well outpaced even a moderate Democrat’s idea of the proper role of a state vis-a-vis civil society. And if history shows one thing, governments that gain power for an “emergency” hardly ever give it up when the emergency is over (if, indeed, they ever admit that the emergency over).

We now face an even dangerous risk than this pandemic: that the state grows in this crisis to replace large parts of civil society that will never be allowed to grow back.

Yes, the virus grows exponentially. Yes, social distancing is one of the ways we know to flatten the curve. But the development of the virus is still quite early, not all of the data is in, and yet still many people seem to be willing to surrender liberties which took centuries to gain and centuries to preserve.

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*Even if the constitution granted this power, it would still be unethical for anyone to try to enforce it.

Originally published at JamesWalpole.com.

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Don’t Need Rescue from Everything

I’m surprised at how seriously people are taking the coronavirus. I’m even more surprised at how many believe government can save them from it, or that it’s even government’s job to do so.

This is the same sort of thinking that has led to the recent plague of “red flag” legislation.

If you believe you need politicians to save you from a virus or from someone’s gun, then you’ll keep handing control of your life over to anyone who promises to rescue you. Whether they actually can or not.

It’s not only diseases and guns. It seems almost everyone wants to be saved from something. Maybe they fear immigrants who don’t comply with unconstitutional anti-immigration legislation. Or maybe they want to be rescued from “inequality,” whatever they imagine it to be.

Others may want to be saved from weather, poverty, different political ideologies or other religions they don’t follow, or from rich people. Some beg to be rescued from their student loan debt or their own bad choices.

Drugs, other drivers, people who might appear to be smoking but aren’t, messy yards, backyard chickens, loud parties, tall grass, and more are all things someone out there wants government to save them from.

If this seems like a long list, you are right. Yet it barely scratches the surface. There appears to be no end to the number of things you could list that some people, somewhere at some time, have begged government to save them from.

Government encourages this pandemic of cowardice.

H. L. Mencken, a favorite writer of mine from early in the 20th Century, noticed this and called it out. He wrote: “The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.”

He’s right, and it’s working.

Were your hobgoblins listed above or are yours something else entirely?

It’s not that these things don’t exist, but making them into hobgoblins you fear irrationally is a path to slavery. You become so desperate to be saved you’ll accept those fanning the flames of fear as your self-proclaimed saviors.

Fear is the reaction to feeling you won’t be able to cope; of suspecting you aren’t enough. It’s a lie. You are enough.

You don’t need to be rescued from every little thing. I know you can do it without depending on government or its legislation. To conquer fear, get busy doing what needs to be done.

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Glad Someone Finally Said “Enough”

As much as I appreciate sheriffs who refuse to enforce the latest blatant violation of the Constitution — so-called “red flag” legislation — I wonder where their courage to not do the wrong thing has been hiding until now.

Unconstitutional gun legislation — which includes every “law” concerning guns — has been enforced by those in these same offices since 1934. This newest violation isn’t worse than the others. This is an arbitrary, theatrical line-in-the-sand.

If they have ever arrested someone for carrying a concealed firearm without a license, or insisted a gun shop needs permission from the Bureau of Alcohol, Tobacco, Firearms, and Explosives before selling guns, then they’ve broken the law, which applies to their job by enforcing legislation that was illegal to impose or enforce.

If they would help arrest someone for mailing a gun, after selling it through an advertisement on the internet, to someone in another state who lacks the “proper license,” they have violated the Constitution in the exact same way they now say they won’t do.

If they would arrest someone for possessing or selling a fully automatic firearm without the government paperwork, they’re willing to violate the Constitution. As they are if they’d enforce the rules against shotguns with barrels declared “too short” or against safety equipment like suppressors (incorrectly called “silencers”).

How can anyone take these scofflaws at their word?

Even the Supreme Court ironically recognized the right to ignore unconstitutional “laws” — which they declared to not be laws at all — in the same ruling in which they unconstitutionally decided they have the final say on what the Constitution means: the Marbury v. Madison ruling in 1803.

Neither the Supreme Court nor anyone else associated with the federal government has the right to decide what the Constitution means.

The same is true of state officials deciding what the state constitution allows them to do to the people. This would make no sense. You can’t let someone decide how the rules that limit their job’s power will be applied or what they mean. It’s like letting the accused murderer dictate how his trial will be carried out and what evidence to allow.

Speaking of trials, the federal government won’t allow the Second Amendment to be used as an argument in favor of the accused when there is a “gun offense” in question — yet it is the only relevant factor.

I’m glad someone stood up and said “Enough!”

I’d be more impressed if they’d be consistent and stop breaking the law entirely.

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When Did We Become Socialists?

Nobody asked but …

What state has reached the highest level of socialism?  It happened when:

… and so it goes.

— Kilgore Forelle

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