[Music clip: From Haydn's Derbyshire Marches]
01 — Intro. And Radio Derb is on the air! This is your imperturbably genial host John Derbyshire, broadcasting to you from our island hideaway in the Aegean.
There have been some big constitutional issues in the news this week: the judiciary versus the legislature; the federal government versus the states. Let me see if I can untangle things for you.
02 — SCOTUS rules on Obamacare. The big ruling was on Obamacare. On a 5-to-4 decision — is there any other kind? — the court upheld the main provisions of the law passed by Congress in 2010.
This wasn't the usual 5-to-4 split, though, with Justice Kennedy coming down on one side or the other. Kennedy actually voted with the dissenters here: conservative justices Scalia, Thomas, and Alito. The swing vote was Chief Justice Roberts.
You can argue that Roberts had wandered off the conservative reservation by upholding what is undoubtedly an expansion of federal power over citizens' lives. On the other hand, Roberts was deferring to Congress, who after all passed the darn law.
You can also argue, as many have done, that Congress can now indeed, to use the classic example, force you to buy broccoli, and fine you if you don't. If that fine can fairly be presented as a tax on non-purchasers of broccoli, though — if, for instance, the fine is collected by the IRS — there's a strong case that Congress has always had this power, and has been restrained from using it only because voters wouldn't stand for it. Healthcare is not broccoli: in the case of healthcare, apparently voters will stand for it. Or if they won't, let them demonstrate the fact in November.
"There is now no limit to the taxing power!" wails one conservative blogger. For goodness' sake: when was there ever any limit? Today's top marginal income tax rate is 35 percent. When I first landed on these shores in 1973 it was 70 percent. Twenty years before that it was ninety-two percent. Congress can tax us at any rate they like. They just have to pass the necessary legislation. They are restrained from doing so by the knowledge we'd vote 'em out if they tried it.
On the other side, the judicial side, we've all gotten used to the idea that judges rule according to their beliefs and personal feelings, with liberal justices taking the liberal side of every argument, conservatives taking the conservative side, and the odd waverer like Kennedy — a Reagan appointee, let's remember — tipping the balance.
It's good to have Chief Justice Roberts remind us that this is a simply terrible way of doing things. Judicial rulings ideally should have nothing to do with a judge's emotions or convictions, everything to do with the law, its meaning and precedents. That's a tough ideal to meet, I'll agree; but all the more reason to applaud any step back towards it.
And our laws are made by our elected legislators. If we decide we don't like a law, we should elect new legislators sworn to change it. Nobody elected the Supreme Court, and they should have no legislative power. When there is fair doubt, as in the case of whether the Obamacare mandate is or is not a tax, they should defer to Congress, which set the thing up to look like a tax, walk like a tax, quack like a tax, and be collected by the IRS like a tax.
That's what Chief Justice Roberts did, and I congratulate him on giving us a rare example of judicial restraint.
I yield to no-one in my reservations about the competence and integrity of the United States Congress. A high proportion of our Representatives and Senators are crooks, idiots, time-servers, egomaniacs, and manipulators. For all that, though, they are ours, in a sense that isn't true of the appointed judiciary.
In the great and endless debate over legislators versus judges, count me on the side of the legislators — yes, even the John Boehners and Nancy Pelosis, as vain and dimwitted as they are. Their faults are our faults. If they bring down the Republic with their folly and corruption, we have no-one but ourselves to blame.
As Calvin Coolidge used to say: "The remedy is in the ballot box." You may say that the ballot box business isn't working too well, and you may be right: but that is, at one slight remove, a lament about the quality of the electorate, concerning which, if you are right — which I hope is not the case — there is no known remedy.
03 — Healthcare: arguing about the price. Just a word on healthcare in general.
My overall feeling is that I don't have a dog in the healthcare fight. We all know that joke whose punchline is: "We've already established what kind of girl you are. Now we're just arguing about the price."
A lot of the healthcare debate is like that, it seems to me. My conservative friends like to rail against "socialized medicine." Look: If hospitals can't turn away the indigent sick, you already have socialized healthcare. Who's going to pay the costs of that patient who can't pay for himself? You are; I am; she is; the insured person is, by government fiat on the insurance company; the taxpayer is. The costs have been socialized. Now we're just arguing about how, precisely, the money will flow.
If poor people and old people get their healthcare paid for out of current public funds, you have socialized healthcare. Medicaid and Medicare are socialized healthcare. What else are they? The bigger part of our healthcare system is socialized. We're just arguing about the price.
By failing to face up to this, public discussion of the healthcare issue is conducted in a fog of unreality.
Mitt Romney, for example, in his response to the Supreme Court decision, emitted a lot of hot air about, quote, "Consumers making their choices about what kind of healthcare they want," and how, quote, "Obamacare puts the federal government between you and your doctor," and how, quote, "We've gotta make sure that those people who have pre-existing conditions know that they will be able to be insured," and that, quote, "Obamacare is a job-killer."
With a healthcare system that is already three-quarters socialized, the federal government is already sitting there in the consulting room with you and your doctor. Consumers are already restricted in their healthcare choices by, in the cases of Medicare and Medicaid, government rules, or by insurance company rules otherwise, rules mostly dictated by legislators and judges. If "people who have pre-existing conditions know that they will be able to be insured," in what sense is that insurance? If I can go and buy an auto insurance policy right after I've had an accident, how is that insurance? Maybe it's right and moral that I should be able to do so, but it's not insurance. It's something else.
As for Obamacare being a job-killer: Well, any system of healthcare that enlists employers as part of the structure is killing jobs to some degree by imposing cost and administrative burdens on employers. It's a mere historical accident that American employers are yoked in to their employees' healthcare. There is no logical or moral requirement for them to be.
If a firm hires me to turn its lathes, sell its products, program its computers, or keep its books, what business is it of theirs whether, or how, I make provision for my own and my family's healthcare? It ought to be no business of theirs at all. To the degree that government forces it to be their business, government healthcare policy is killing jobs to some degree. Again, we're just arguing about the price.
Will a President Romney take a radical approach to any of this? Will he leave health insurance companies alone to do what they know how to do: offer people insurance based on rational calculations of risk? No: he just told us he will make the insurance companies continue to be what they have become — conduits for government money and political patronage.
Will he unhook American employers from all concerns about their employees' healthcare? No: he'll keep them in the loop, imposing costs and administrative burdens on private companies that properly belong elsewhere.
Citizens of modern states will accept no other kind of health care but the socialized or mostly-socialized kind. This being the case, however regrettably, the most efficient option is to make the socialization as rational as possible. The problem with U.S. healthcare provision isn't that it's part-socialized: the problem is that the socialization is a disorganized, unholy mess.
Get insurance companies and employers out of the business, except when they voluntarily, without any political boondoggles, choose to be in it. Cover the population with a single-payer basic healthcare scheme funded from general revenues. If any citizen wants more, let them contract for it privately with insurers. If any private company wants to incentivize employees by offering them more, let them likewise do so as an entirely private arrangement with insurers.
There would be less socialism, and more private choice, in a system like that, than in what we now have, let alone what we are likely to have in any conceivable Obamacare or Romneycare future.
And that is in fact how things work over most of the advanced world. Yay for American exceptionalism: but this is one sphere in which American exceptionalism has gotten us into a bureaucratic mess, is encouraging ever-expanding government power, is pushing private choice and private enterprise out to the periphery when not actually killing them off, and is heading us into a world of public costs we can no way afford.
Sorry, conservative fans, friends, and colleagues. We're already socialized; and until the U.S. electorate is willing to let the indigent sick die for want of care — which is to say, until the Earth crashes into the Sun — we shall remain so. We're just arguing about the price — the price in public money, in efficiency, and in liberty.
Let's corral the beast as best we can, and leave as much space for private choice as we can outside the corral.
04 — SCOTUS rules on Arizona's SB 1070. The other big Supreme Court decision of the week concerned Arizona's state law permitting state law enforcement and courts to assist the U.S. authorities in curbing illegal immigration.
There were a lot of mixed feelings about this ruling among conservatives. The consensus was that it was a defeat for our side — for the side, I mean, that wants a rational immigration policy, with strict controls over who gets to settle in our country.
You can see their point. The Supreme Court declared unconstitutional the section of the Arizona law that made it a state crime to be in the country without proper documentation. They also struck down the section making it against state law for illegals to work or apply for work, and a third section allowing police to arrest those they suspect of being deportable under federal law.
The Supremes did let stand the section that gives local law enforcement the right to check up on the immigration status of suspects. Since they can't actually arrest them for being in the country illegally, this is of limited use. Police can arrest a person for whatever brought him to police attention, and then, if they find he's illegally present in the U.S., report him to ICE.
That might have been worth something; but the Obama administration promptly declared they would not act on such reports, so there isn't much point making them. The administration in fact went further, suspending all federal co-operation with Arizona law enforcement on immigration issues. To further emphasize the sneer, the feds announced a new hotline that Arizona residents, including of course illegal ones, can call if they feel they are being "racially profiled."
Not much noticed was the fact that the Supremes had only been asked to rule on part of the Arizona law, and that significant sections were not ruled on, and so still stand. For example, while the section making it against state law to work was struck down, the section imposing sanctions on employers still stands: the Supremes were not asked to rule on that.
So it's not all bad. And by clarifying some of what Arizona may and may not do, the Supremes have given useful guidelines to other states contemplating legislation to stem the tide of illegals and encourage those resident to self-deport.
It is still a very shocking thing, though, that states struggling with the costs of illegal immigration — costs in education and healthcare, in law enforcement and incarceration — have as their main opponent the federal government, which is supposed to ensure the integrity of our nation's borders.
As Justice Scalia asked rhetorically in a blistering dissent, quote: "Are the sovereign states at the mercy of the federal executive's refusal to enforce the nation's immigration laws?"
Or as Larry Auster observed on his View from the Right blog: We formerly had only sanctuary cities refusing to co-operate with the federal government on enforcing immigration laws. Now we have a sanctuary federal government.
Where is the political opposition to these derelictions? What did Mitt Romney have to say about the Arizona decision?
Reporters went looking for him to find out. Romney was eventually tracked down to a spider hole in the Rocky Mountains. Even after being winched out of there, however, he refused to comment on the Arizona decision; and when the reporters' attention was momentarily distracted, Romney made a run for his campaign plane and took off to no-one know where.
Romney's campaign managers did issue a mealy-mouthed statement couched in the most general terms about how, yes, states have the right to secure their borders, but without saying whether or not Romney supported the particular case of Arizonans trying to secure theirs. The most that reporters could squeeze out of Romney's press secretary, in a 22-minute session of questioning, was that, quote, "The governor supports the states' rights to do this." Pressed for specifics on Romney's attitude to the Arizona law and the Supreme Court ruling, the press secretary hurled himself into the path of an oncoming locomotive.
05 — Israel's Operation Wetback. If it's patriotic leadership on the subject of illegal immigration you want, you're in the wrong country. You need to be in Israel.
Last week Israel flew a planeload of South Sudanese illegal immigrants back to their home country. I just this week got some news footage from Al Jazeera on the story. I think the footage is meant to tug my heart-strings; but after a few years' exposure to the fecklessness of our own government in the matter of illegal immigration, it's hard to do anything but cheer when I see some other government efficiently and humanely enforcing its laws.
The Al Jazeera footage opens with shots of some well-fed and well-dressed-looking people, mostly women and kids, getting on airport buses. [Clip: "At 4 a.m. on Sunday …"]
There are still a few liberals in Israel, though. [Clip: "Some Israelis tried to help them …"] I must say, the people in the clip getting on those buses don't look very humiliated. I mean, nobody's jeering or throwing rotten fruit at them. They look a bit aggrieved and resentful, that's all — which I suppose is understandable.
The operation is selling well with the Israeli public, though, as Al Jazeera concedes. [Clip: "But this isn't the feeling across the country …"]
"Illegal infiltrators"! None of that shilly-shallying about "undocumented workers" from Bibi! "Illegal infiltrators"! Don't Israelis find words like that shocking? Not at all. [Clip: "The Israeli government sees this initiative as a great success. It's very popular …"]
Americans of course would never be so hard-hearted as to fly illegal immigrants back to their home country, with a ride to the airport in an air-conditioned bus. Or would we? Perhaps some bold politicians should try it. [Laughter.]
06 — QE2 Meets IRA. As a patriotic Englishman in the U.S.A. back in the 1980s and 1990s, I used to get into a lot of arguments with Irish-Americans who supported the IRA, that's the so-called Irish Republican Army. As I used to tell them — they usually didn't know — the Irish Republic has a perfectly good army of its own, the Óglaigh na hÉireann; the outfit calling itself the Irish Republican Army is just a terrorist outfit and crime syndicate, hated by most actual Irish people.
Irish Americans were having none of it. The IRA was the true soul of Ireland, they'd tell me, fighting for freedom of the six northern counties from British rule. It wasn't any use to tell them that the IRA was just the losing side in the Irish Civil War of the early 1920s, key members of whom had fled to the U.S.A. to avoid being shot by Éamon de Valera's firing squads, then spreading their influence here. Nor was it any use to tell them that blowing the arms and legs off old ladies at bus stops was no way for decent people to make a political point.
Suddenly, miraculously, Irish Americans got the point. It happened in just one day. I can remember the date: September 11, 2001. Very suddenly, very abruptly, terrorism was out of fashion in the U.S.A. Congressman Peter King, formerly the IRA's best friend on this side of the Atlantic, overnight became a keen anti-terrorist crusader. It was amazing to see.
This week we saw a remarkable thing: Britain's Queen Elizabeth shaking hands in Belfast, Northern Ireland, with Martin McGuinness, who had been a terrorist leader back in the 1970s and 1980s, and who probably had a hand in blowing up Earl Mountbatten, the Queen's uncle, in 1979. McGuinness now holds political office in Northern Ireland, with a chauffered limousine and a nice expense account. That's how things have changed over there.
It's hard to mind. "Jaw-jaw is better than war-war," said Winston Churchill. As galling as it is to see cold-blooded psychopaths like McGuinness and Gerry Adams relaxing into lush official positions, and their former shills like Peter King pretending that they were fast asleep through the 70s, 80s, and 90s, the people of Ireland prefer the present settlement to the horrors that went before — horrors which, if you want to read about them, and have a strong stomach, I recommend Kevin Myers' book Watching the Door.
The old quip was, that as soon as the British thought they'd found an answer to the Irish Question, the Irish changed the question. We may have come to the end of that long road at last. Now Ireland has the same problems as the rest of us: Insolvent banks, a burst housing bubble, collapsing demographics, fiscal nightmares, marriage and family breakdown, uncontrolled Third World immigration. Bad enough: but not as bad as the Troubles.
07 — Miscellany. And now, our closing miscellany of brief items.
Imprimis: I've been promoting Uruguay for some years as our hemisphere's best-kept secret: Small and mostly-homogenous population, cheap food and housing, 98 percent literacy, unspoiled back-country, excellent schools, low crime, life expectancy 76½ years (ours is 78½) … a nice little country, doing well. Well, now they're legalizing marijuana. Total legalization, though with a state monopoly on sales. So if you're looking for a bolthole and can't afford Monaco, there it is, under the Southern Cross: Uruguay. You heard it here first.
Item: Here's a story that'll get your goat. Quote from a State Department handout, quote: "Eating goat meat hasn't really caught on with most Americans, but raising goats for meat has certainly caught on with U.S. farmers. That's because U.S. farmers are recognizing that there is a growing market among an ever-increasing population of immigrants from Muslim countries, where goat meat is popular." End quote. So, if you want to be up to date with multicultural trends, get to work on your goat recipes: roast goat, goat pot pie, goat wellington, goat fricasee …
Item: On the technology front, a couple of great advances here. One, a self-chilling can of beer. On sale in Britain later this year, the so-called ChillCan has a button at the base of the can that you press, releasing frozen CO2 that chills the contents by 15 degrees. On the other end of the temperature scale, a battery-powered butter knife that heats up to 41.8 degrees Celsius, enough to make even the coldest butter spreadable. This is a personal bugbear of mine: I hate being served ice-cold butter I can't spread. Whoever is responsible for these two inventions, I call them benefactors of humanity.
Item: The House of Representatives on Thursday voted to cite Attorney General Eric Holder in contempt of Congress for his non-co-operation in the Fast & Furious gun-walking inquiry. This is the first time in American history that an incumbent cabinet member has been found in contempt of Congress. The vote was 255 to 67, with 17 Democrats among the 255 and two Republicans voting no. The Attorney General claimed it was all a matter of racial persecution. The Congressional Black Caucus supported him by leading a general walk-out of Democrats from the House chamber. Ah, the healing presidency of Barack Obama!
08 — Signoff. That's it, ladies and gents. Before signing off, it would be remiss of me not to note that today, June 29th, is the birthday of President Gurbanguly Berdymukhamedov of Turkmenistan. The great man is 55 years old today. I of course offer my own congratulations to the esteemed leader; and my research assistant Mandy has recorded a brief tribute of her own. Take it away, Mandy.
[Music clip: "Happy birthday, Mr. President …"]