Hello:

So much of our discussion here seems to be one group talking past another group. For instance, one group passes a law to fix a problem that the OTHER group says never existed... And, so it goes...

So, I posit another problem, and I wonder if the other group will offer a solution, deny that it's happening, or admit that it IS, but it's NOT a problem.

The issue: During a period of mass economic misery, there's incredible success for a tiny financial elite!

excon

It is a problem, but not just financially. As Rahmbo said, “You don’t ever want a crisis to go to waste... "

Solution? Quite farting around with implementing your nanny state agenda with money we don't have and policies we don't want and get the government boot off our necks.

[Justice Janice Rogers Brown.. United States Court of Appeals for the District of Columbia Circuit. 'Hettinga v. United States ' ].

Hein Hettinga is a Dutch-born immigrant who, by bottling milk from his own cows, was able to work outside the antiquated, industry-backed system of milk regulation. This “loophole” allowed him to charge 20 cents less per gallon than his competition. Unfortunately for him, his competition was “big dairy,” and they didn't appreciate being undercut in price. According to an economist for the Dairy Farmers of America, Hettinga's cheaper milk was “damaging to the marketplace,” even though the existing regulatory system raises costs to American consumers by nearly $1.5 billion per year.

Big dairy eliminated their competitor by lobbying Washington, D.C. lawmakers to close the “loophole” that was being “exploited” by Mr. Hettinga. Senators John Kyl (R-Ariz.) and Harry Reid (D-Nev.) compromised on a deal that would exempt milk producers in Nevada from the regulatory framework and make Mr. Hettinga pay dues into the price-controlled pool, effectively subsidizing his competitors.

Mr. Hettinga brought suit to challenge the new law as both an unconstitutional bill of attainder — that is, a piece of legislation that punishes a single person or a small group of people — and as a violation of his economic liberties guaranteed by the Due Process Clause of the 14th Amendment. The D.C. Circuit was obliged to apply the law as the Supreme Court has articulated it and thus they dismissed the suit.

In a separate concurrence, however, Judge Brown, joined by Judge Sentelle, wrote to criticize the Supreme Court's long history of providing inadequate protection to economic liberties.
For many businesses, particularly large, established businesses, it is now easier to have Congress regulate a competitor out of business than it is to out-compete them on a level playing field.

Hello again,

So, you guys thought I was being a straight man for more of your right wing pablum.. I guess I shouldn't have expected anything else.

excon

And you expected us to regurgitate left wing talking points. There are others here that will fill the pages of this thred with them

A) Do we have the money?

B) How we going to get it since this government would just as soon pi$$ on job creators who didn't build it themselves?

Hello again, Steve:

Glad you asked.. Let me see. You want a BUSINESSMAN running things, don't you? Ok, here's what THIS businessman thinks we should do.. The one year Libor rate is 1.06%. That's the interest rate the government pays to banks when it borrows. Today's inflation rate is 1.66%.

That means the banks will PAY the government to borrow its money.. Consequently, it's financial mismanagement of the highest order NOT to borrow..

Since the money is not only FREE, but we're PAID to take it, don't you think we should and fix a bridge or two?

excon

Except the government doesn't borrow money from banks, it issues debt.

Nice try.

Here is the text :
BROWN, Circuit Judge, with whom Chief Judge SENTELLE joins, concurring: I agree fully with the court's opinion. Given the long-standing precedents in this area no other result is possible. Our precedents forced the Hettingas to make a difficult legal argument. No doubt they would have preferred a simpler one—that the operation and production of their enterprises had been impermissibly collectivized—but a long line of constitutional adjudication precluded that claim. The Hettingas' sense of ill-usage is understandable. So is their consternation at being confronted with the gap between the rhetoric of free markets and the reality of ubiquitous regulation. The Hettingas' collision with the MREA—the latest iteration of the venerable AMAA—reveals an ugly truth: America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s. First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to "adopt whatever economic policy may reasonably be deemed to promote public welfare." Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co. 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the "democratic process." Vance v. Bradley, 440 U.S. 93, 97 (1979). "The Constitution," the Court said, "presumes that, absent some reason to infer antipathy, even 2
improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted." Id.
As the dissent predicted in Nebbia, the judiciary's refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are "within legislative power"—would lead to only one result: "[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction." 291 U.S. at 523. In short order that baleful prophecy received the court's imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4.
Thus the Supreme Court decided economic liberty was not a fundamental constitutional right, and decreed economic legislation must be upheld against an equal protection challenge "if there is any reasonably conceivable state of facts that could provide a rational basis" for it. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993). See also Pac. States Box & Basket Co. v. White, 296 U.S. 176, 185–86 (1935); Steffan v. Perry, 41 F.3d 677, 684–85 (D.C. Cir. 1994) (en banc).
This standard is particularly troubling in light of the pessimistic view of human nature that animated the Framing of the Constitution—a worldview that the American polity and its political handmaidens have, unfortunately, shown to be largely justified. See James Madison, Notes of Debates in the Federal Convention of 1787, at 39, 42 (W. W. Norton & 3
Co. 1987). Moreover, what the Framers theorized about the destructive potential of factions (now known as special or group interests), experience has also shown to be true. The Federalist No. 10, at 78, 81 (James Madison) (Clinton Rossiter ed., 1961). The judiciary has worried incessantly about the "countermajoritarian difficulty" when interpreting the Constitution. But the better view may be that the Constitution created the countermajoritarian difficulty in order to thwart more potent threats to the Republic: the political temptation to exploit the public appetite for other people's money—either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests. The Hettingas believe they are the victims of just such shenanigans. Compl. ¶¶ 40–45. And press accounts during the height of the controversy support the claim. See Dan Morgan, Sarah Cohen, & Gilbert M. Gaul, "Dairy Industry Crushed Innovator Who Bested Price-Control System," Wash. Post, Dec. 10, 2006, available at Dairy Industry Crushed Innovator Who Bested Price-Control System. The Washington Post described Hein Hettinga as an American success story. He emigrated to the U.S. after World War II and started as a hired hand. By 1990, Hettinga owned half a dozen dairies and decided to build his own bottling business. A Costco vice president showed reporters copies of an e-mail he sent to Senator Reid during the legislative debate, explaining that Southern California purchasers of milk were the victims of "a brazen case of price gouging and profiteering by the strongest, largest market suppliers," who turned a deaf ear to the company's call for lower prices. Hein Hettinga changed all that. His arrangement with Costco "lowered the average price of milk by 20 cents a gallon 4
overnight" until two senators, one from each party, pushed through the milk legislation at issue in this case.
Very little seems to have changed since the Supreme Court's initial confrontation with the regulation of milk pricing in Nebbia. The state of New York, responding to falling prices caused by the Great Depression, created a Milk Control Board, which proposed to remedy weak demand by establishing a minimum price for milk, and making sale of milk at any lower price a crime. 291 U.S. at 515, 519. Leo Nebbia sold two quarts of milk and a five-cent loaf of bread for eighteen cents, and was convicted of violating the board's order. Id. At 515.
Even Justice McReynolds saw the irony. The law, he said, "impose[d] direct and arbitrary burdens upon those already seriously impoverished" to give special benefits to others. Id. at 557. "To him with less than 9 cents it says: You cannot procure a quart of milk from the grocer although he is anxious to accept what you can pay and the demands of your household are urgent! A superabundance; but no child can purchase from a willing storekeeper below the figure appointed by three men at headquarters!" Id. at 557–58.
To be sure, the economic climate in which the New York legislature enacted the law at issue in Nebbia was truly dire, but 78 years later, the same tired trope about "disorderly market conduct" is still extant. The Hettingas built their business on an exemption—one that was profitable for them and beneficial for consumers. The government acknowledged that the decision to eliminate the exemption was based on evidence that large producer-handlers were obtaining a "decisive competitive advantage" over fully-regulated handlers, Appellees' Br. at 7, and were causing a measurable and "significant[]" decrease in the blend prices being paid to 5
regulated handlers. See 70 Fed. Reg. 74,166, 74,186 (Dec. 14, 2005). As another court has noted, federal regulation of milk pricing "is premised on dissatisfaction with the results of competition." Alto Dairy v. Veneman, 336 F.3d 560, 562 (7th Cir. 2003). "[M]ilk price discrimination is intended to redistribute wealth from consumers to producers of milk." Id. Once again, the government has thwarted the free market, and ultimately hurt consumers, to protect the economic interests of a powerful faction. Neither the legislators nor the lobbyists broke any positive laws to accomplish this result. It just seems like a crime.
The judiciary justifies its reluctance to intervene by claiming incompetence—apparently, judges lack the acumen to recognize corruption, self-interest, or arbitrariness in the economic realm—or deferring to the majoritarian imperative. But see The Federalist No. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961). The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).
The hope of correction at the ballot box is purely illusory. See generally Ilya Somin, Political Ignorance and the Counter-Majoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004). In an earlier century, H. L. Mencken offered a blunt assessment of that option: "[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods." On Politics: A Carnival of Buncombe 331 (1996). And, as the Hettingas can attest, it's no good hoping 6
The process will heal itself. Civil society, "once it grows addicted to redistribution, changes its character and comes to require the state to 'feed its habit.'" Anthony De Jasay, The State 226 (1998). The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. See id. At 248. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.
http://www.cadc.uscourts.gov/internet/opinions.nsf/70A27D44D7C03503852579DF004EF65F/$file/11-5065-1368692.pdf#page=14Delete ReplyReply ForwardMovePrint Actions NextPrevious

I think what we really want is to get the bureaucracy of our necks; not government.

"Many individuals in identifying government as their enemy have focused almost exclusively on the bureaucracy of government. Their belief is that the bureaucracy has taken over. This is perfectly justifiable fear containing large elements of truth. But attacking the problem at that level- government (is the error). Government is bureaucracy and bureaucracy is the enemy, therefore government is the enemy- is to miss the point and to invite far worse."

In the above quote John Saul in pointing out that blaming government rather than blaming the bureaucracy is a classical example of the fallacy of failing to distribute the middle.

I have argued that the major problem when it comes to rent-seekers is the rent seeker mentality. We find this mentality everywhere it is all persuasive. It is especially popular in bureaucracies. Large corporations suffer from the same type of bureaucratic malaise as government bureaucracies. The reason being is that both operate at the same bureaucratic level of decision making.

By wanting smaller government you will still be stuck with the same type of mentality. The enemy is the mentality regardless of who has it.

Tut

Firstly, is this an assumption that we actually have economic liberty?

Secondly, if this assumption is correct then can we use this as a basis for rejecting all or any types of government regulations?


Tut

Wouldn't smaller government equate to smaller bureaucracies ?

Hi Tom,


That's a very good question. By the same token I guess we could argue that smaller corporations would equate to smaller bureaucracies.

I'll think about that and get back to you.

Tut

Hello again, tom:

Wouldn't smaller bureaucracy's result in children being forced to work, lead in your walls, asbestos on your pipes, undrinkable water, vouchers for health insurance, another financial collapse, and the rich all running off to Switzerland?

excon

No I think smaller bureaucracies would mean more of the money allocated to this issue actually going towards the issue instead of some deck jocky's salary and pension.

Certainly would . I've seen a lot of top heavy companies at work. I prefer lean and mean.

When a business man or corporation or bank says they want certainty, it because they sucked all the money from the system and are holed up in the hills to see if the posse is close on their trail. I don't blame them after finding out the banks have been investigated and looking to pay huge fines for their ILLEGAL extractions schemes, and fraud.

They are also uncertain whether the scheme to add to the BUSH tax cuts will work or not. Its uncertain if republicans, with right wing loony help, can pull that scam on the American people or not! If not, it won't be for lack of trying.

Do we have money to build bridges and roads sure we do but the loony right says getting paid to borrow money is crazy, and can't believe the rest of the world,including the Chinese think it's a great deal.

Hypocrisy is saying you ain't got no money, but give people that do have the money even more of your own money. That's LOONY!! I know, more left wing straw arguments.

Here's another one, Churches, corporations, and banks ain't the government so shouldn't write the laws for the people. Thats no way to get certainty, or effective government.

Then surely you aren't too fond of the crony capitalism of the Obama White House.

Crony capitalism is wrong for all parties. No one denies that. It should stop for everyone. But it won't because that's how your government works now - whoever contributes the most gets the votes and the gov money. And there is no way a citizen can ever contribute more than a corporation so guess who wins all the time?

No I ain't in favor of the money influencing politics, but the reality is if your side does it mine better too!