Saturday, December 25, 2010

Merry Christmas!

This is a photo from a few years ago of our pup Shadow wishing our foal Sugar a Merry Christmas.

Not wishing to exclude our Islamic friends, here is a video of the beautiful song, Jihad Bells.

Sunday, December 12, 2010

Further Decision Released on ObamaCare

Another good step toward the demise of ObamaCare

In a decision released on December 13th, Judge Hudson of the United States District Court for the Eastern District of Virginia held that the requirement of ObamaCare that a minimum level of medical insurance coverage be purchased by individuals and imposing penalties for not making such purchases exceed federal authority under the Commerce, General Welfare and taxing provisions of the Constitution.

He had previously refused on February 2nd to dismiss a challenge by the Commonwealth of Virginia to the mandatory medical insurance provisions of ObamaCare, observing that [START BLOCKQUOTE]
While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen’s decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce. Given the presence of some authority arguably supporting the theory underlying each side’s position, this Court cannot conclude at that stage that the Complaint fails to state a cause of action. [END BLOCKQUOTE]
He then questioned Federal arguments that even if ObamaCare exceeds the limitations of the Commerce Clause, it could be salvaged by reliance on the federal government's taxing powers.

His decision released on December 13th found no material facts in issue and also found that ObamaCare is unprecedented. He cited the paragraph from his earlier decision quoted above and stated that the question presented was whether an act of Congress can require that anyone purchase health insurance; such a requirement touches everyone who is required to file a Federal income tax return.

Based on legal arguments presented following (and pretty much before as well) his February 2nd decision, he found that the Commonwealth of Virginia had made the required showing of unconstitutionality, entitling her to judgment as a matter of law. As he noted in the current decision, to come within the permissible limits of the Commerce Clause, economic "activity" must, indeed, include some activity -- an action, transaction or deed placed in motion by an individual or legal entity; not a difficult concept to grasp. By requiring the purchase of a good or service, the Congress does not itself create an economic activity. A decision not to make such a purchase is therefore beyond the reach of the Commerce Clause.

Since the individual mandate itself is outside the scope of the Commerce Clause, it is also outside the General Welfare and Taxation clauses, despite the extreme breath of the latter. The legislative history shows that the "tax" is in fact a penalty; indeed, the Congress did not use the word "tax" in connection with the mandatory purchase provision in the final legislation, even though earlier versions had used the more "politically toxic" word tax rather than penalty. In seeking popular approval before and after passage, ObamaCare proponents refrained from using the word "tax." "Tax" and "penalty" are not interchangeable.

Having found the mandatory health insurance provision and the companion penalty unconstitutional, Judge Hudson determined that some sections could stand as severable from those. In view of the extreme haste with which ObamaCare had been "rushed to the floor for a Christmas Eve vote," he found it impossible to determine whether the various other provisions would have been passed without the mandatory health insurance provision and associated penalty. He therefore severed those other provisions and allowed them to stand.

Since it was obvious that the case would proceed to appellate review, he declined to stay the effectiveness of any of the ObamaCare provisions but expressed a hope that the Executive Branch would abide by his ruling as to constitutionality, noting that a "declaratory ruling is the functional equivalent of an injunction" and sufficient to stay the Executive's hand during the pendency of an appeal.

Accordingly, Judge Hudson granted the Commonwealth's motion for summary judgment, held the various other provisions severable from the health purchase mandate and penalty, and denied the request for an injunction pending appeal.

The reactions of the usual suspects were, of course, predictable. Those who like ObamaCare claimed that Judge Hudson is a radically unwholesome "activist judge" whose decision is wrong and will be overturned on appeal. Those who dislike ObamaCare praised his constitutional scholarship and claimed that his decision will be affirmed. I think implementation of ObamaCare would be a disaster produced by a very lengthy statute generally unread prior to its very hasty passage and likely harmful not only to medical care in the United States but also bad for the economy. I hope the decision is upheld on appeal, but much can happen between now and a Supreme Court decision. The statute may be modified by the new Congress, the Supreme Court may in the interim decide another case construing the Commerce Clause differently, and/or one or more Supreme Court justices may retire to be replaced by Zeus knows whom. It's just too far away to guess. After the briefs have been submitted and oral arguments have been held it should be possible to make an informed prediction; not now.

The case will almost certainly now proceed on appeal to the Fourth Circuit Court of Appeals in Richmond Virginia or, conceivably as requested by incoming House majority leader Eric Cantor (R., Va.), directly to the Supreme Court where it will ultimately go in any event. He stated,
“To ensure an expedited process moving forward, I call on President Obama and Attorney General Holder to join Attorney General Cuccinelli in requesting that this case be sent directly to the U.S. Supreme Court. In this challenging environment, we must not burden our states, employers, and families with the costs and uncertainty created by this unconstitutional law, and we must take all steps to resolve this issue immediately.
Well, maybe.

Sunday, November 28, 2010

The Past is Prologue.

So it is with China, Russia and Korea.

The events leading up to the North Korean invasion of South Korea sixty years ago are, of course, now ancient history, dull and little considered in evaluating current events. Stalin, Mao and Kim il-Sung are dead. Unfortunately, their spirits survive and continue to haunt us.

Many documents became available during the "global warming" of relations among the United States, the Soviet Union and China. Many if not most have been translated and studied by scholars, and they show that North Korea's Kim il-Sung had wanted to reunify the Korean Peninsula through force since 1948 but that Stalin had resisted until he became convinced that it would work. He then provided substantial military assistance. China's Mao was not generally consulted during the period leading up to the invasion of the South in June of 1950. He eventually was and agreed to an invasion despite his greater interest in invading Taiwan, which Stalin had pragmatically discouraged. In the end, China bore the brunt of the Korean Conflict, principally during and following her massive invasion across the Yalu River and into occupied North Korea.

Part I -- Way Back Then

During the two years leading up to the North Korean invasion of the South, Kim il-Sung spent much time in the Soviet Union attempting to persuade Stalin of the benefits of invading the South. It has been claimed that in 1949 Stalin began to have substantial concerns about an attack on North Korea from the South. Still,
while Stalin tried to prevent a war in Korea in 1949, the North Korean leadership increasingly put pressure on the Kremlin, demanding permission to liberate the South. On 7 March 1949, while talking to Stalin in Moscow, Kim il-Sung said: "We believe that the situation makes it necessary and possible to liberate the whole country through military means." The Soviet leader disagreed, citing the military weakness of the North, the USSR-USA agreement on the 38th parallel and the possibility of American intervention.
Stalin added that only if the adversary attacked Pyongyang, North Korea could they try military unification by launching a counter attack." Then the Kremlin chief explained, "your move will be understood and supported by everyone.(emphasis in original)
Circumstances changed and it was soon agreed that a claimed invasion by the South would serve as a useful pretext for invasion by the North.

In January of 1950, Stalin caved in to Kim's pleas for permission to attack but insisted on thorough preparation. Contemporaneously, there were exchanges of cables between Moscow and Beijing. They did not mention that Stalin had given his approval to the invasion. Stalin viewed the largely urban Communist situation in the USSR as different from and superior to the more rural Communist situation in China and had no particular desire for China to butt in. Although Kim visited Beijing about a month before the June 25 invasion, it was more to inform Mao of what was about to happen than to solicit assistance. Mao had Taiwan to worry about and war in Korea was already inevitable. Mao gave his blessing, for what it might be worth.

Other factors were also in play:
Stalin . . . wanted to work out the plans for the Korean war himself without Chinese interference and objections and then present Beijing with a fait accompli when Mao would have no choice but to agree with the invasion and assist it. While in Moscow Mao insisted on the liberation of Taiwan. Stalin was negative to the idea. It would be hard for Stalin to convince Mao in Moscow to help the Koreans before the Chinese had completed the reunification of their own country.
It also seems that Stalin considered any improvement in U.S. - China relations as very dangerous for Russia, potentially ruining his strategic calculations. A take over of the South by the North would further establish a distance between the East and the West as well as perpetuate China's dependence on the USSR. It would also be of use to the Soviet Union in the event of World War III. Nevertheless, Stalin remained to be persuaded that the North could win a quick victory and that there would be no U.S. involvement. When Kim il-Sung secretly visited Moscow between March 30 and April 25, he assured Stalin that his attack would succeed in three days: there would be an uprising by some two hundred thousand party members and he was convinced that the United States would not intervene. Secretary of State Dean Acheson's January 12, 1950 speech was persuasive evidence. There, Secretary Acheson had omitted South Korea from a list of nations which the United States would defend if attacked. Stalin gave the go-ahead.

Mao's role then was not very significant. Stalin's was.
Stalin's decisive backing for Kim was shown in two ways. First, as soon as Kim returned from Moscow, Soviet weapons "in huge numbers" began arriving at the North Korean port of Chongyin, barely a day's sailing from Vladivostok. Second, and at about the same time a new team of Soviet military advisors, including at least three major-generals with combat experience, arrived in Pyongyang to oversee the preparations for war. Pyongyang's military manpower problems had already been solved for, early in 1950, Mao had arranged for the transfer to North Korea of some fifteen thousand ethnic, battle-hardened Koreans who had fought in the Chinese People's Liberation Army. These troops followed two earlier divisions of Koreans sent from China in 1949.
The draft operational plan was written by the Soviet advisors and termed a "counterattack plan" using the tension along the 38th Parallel as a pretext for war. The nomenclature of a counterattack plan, according to one former senior North Korean general, was "a fake, disinformation to cover ourselves." The Soviet advisors evidently accepted Kim's belief in a southern uprising, for formal military operations were only expected to last three or four days with the capture of Seoul. Total victory was then expected in less than a month. Kim personally set the timing for the invasion at 0400 hours on Sunday, June 25, 1950 but his Soviet advisors were closely involved in this aspect of the planning as well.

The decision to attack had come between March and April of 1950 and the attack came on June 25. Seoul fell within three days as Kim il-Sung had anticipated; however, the popular uprisings did not occur and the United States intervened.
Mao, who had been marginalized in the final decision-making, quickly realized the implications of [the unanticipated] American intervention. As early as July 7, two days after the first clash between American and North Korean forces at Osan, Premier Zhou Enlai called a special meeting of the Chinese Central Military Commission to assess Chinese options in the conflict. So began the process through which China, not the Soviet Union, paid the major price for Kim and Stalin's decision to launch the war.
When the invasion came on June 25, the United States had little difficulty in persuading the U.N. Security Council to condemn it and to urge that the U.S. be assisted by at least minimal numbers of international forces, which happened. Russia could easily have vetoed this but did not; it was too busy boycotting the Security Council on account of its refusal to seat mainland China in place of Taiwan (that did not happen until October of 1971). Might this have been a ploy to make sure that China would be kept busy with Korea and in line with Stalin's world game plan? I have not seen this suggested, but it does not seem excessively far-fetched. Stalin was a clever rascal; he could have given lessons to Machiavelli.

In August of 1951, a year and two months after the invasion and about one year after the Chinese push into North Korea from the Yalu had begun,
General Ridgway's headquarters in Tokyo put out a statement designed to show a cleavage between Moscow and Peking. Russia, said the statement, had inveigled the Chinese into the Korean war in order "to slash the strength of China . . . because a strong China on Russia's southern frontier is the Kremlin's nightmare . . . China fought and bled while Russia looked on. To Mao Tse-tung this could hardly look like bosom comradeship ... It may mean China eventually goes the way of Yugoslavia . . . The Reds have been so busy looking for cracks in the structure of the democracies they have not noticed the perch they are sitting on is swaying and slowly crumbling . . . They cannot survive."
General Ridgway had replaced General MacArthur in April of 1951. This may have been little more than wishful thinking. On the other hand, it is apparent that Stalin was pleased to let Mao be "The Vice President in Charge of Asia," provided that he didn't attempt to start his own business – something Stalin did not think Mao was currently able to do because China and Mao were too dependent upon Russia.

The massive Chinese intervention did not come until November 1, 1950, following General MacArthur's enormously successful September 15 invasion of Inchon and the rapid march of South Korean and United States forces into North Korea and up to the border with China.

As the victorious UN forces pursued the fleeing NKPA, President Truman authorized General MacArthur to go north of 38th Parallel but cautioned alertness for indications of the entry of China or Russia into the war. Korea was seen as part of the fight against world Communism and as possibly the first skirmish in a World War III. MacArthur's troops promptly moved north. The Eighth Army headed up the west coast to the Yalu River while the X Corps made amphibious landings at Wonson and Iwon and proceeded up the east coast to the border with China. The war seemed to be nearly over. It was not.

There had been signals from China that she would send troops should any forces other than South Korean cross the 38th Parallel. However, China was being isolated politically and a warning relayed through Indian diplomatic channels was ignored. General MacArthur disregarded the risks and plunged ahead.
The best time for intervention was past, they said, and even if the Chinese decided to intervene, allied air power and firepower would cripple their ability to move or resupply their forces. The opinion of many military observers, some of whom had helped train the Chinese to fight against the Japanese in World War II, was that the huge infantry forces that could be put in the field would be poorly equipped, poorly led, and abysmally supplied. These "experts" failed to give full due to the revolutionary zeal and military experience of many of the Chinese soldiers that had been redeployed to the Korean border area. Many of the soldiers were confident veterans of the successful civil war against the Nationalist Chinese forces. Although these forces were indeed poorly supplied, they were highly motivated, battle hardened, and led by officers who were veterans, in some cases, of twenty years of nearly constant war.
they came out of the hills near Unsan, North Korea, blowing bugles in the dying light of day on 1 November 1950, throwing grenades and firing their "burp" guns at the surprised American soldiers of the 8th Cavalry Regiment, 1st Cavalry Division. Those who survived the initial assaults reported how shaken the spectacle of massed Chinese infantry had left them. Thousands of Chinese had attacked from the north, northwest, and west against scattered U.S. and South Korean (Republic of Korea or ROK) units moving deep into North Korea. The Chinese seemed to come out of nowhere as they swarmed around the flanks and over the defensive positions of the surprised United Nations (UN) troops. Within hours the ROK 15th Regiment on the 8th Cavalry's right flank collapsed, while the 1st and 2d Battalions of the 8th Cavalry fell back in disarray into the city of Unsan. By morning, with their positions being overrun and their guns falling silent, the men of the 8th Cavalry tried to withdraw, but a Chinese roadblock to their rear forced them to abandon their artillery, and the men took to the hills in small groups. Only a few scattered survivors made it back to tell their story. The remaining battalion of the 8th Cavalry, the 3d, was hit early in the morning of 2 November with the same "human wave" assaults of bugle-blowing Chinese. In the confusion, one company-size Chinese element was mistaken for South Koreans and allowed to pass a critical bridge near the battalion command post (CP). Once over the bridge, the enemy commander blew his bugle, and the Chinese, throwing satchel charges and grenades, overran the CP.
Neither the United States nor the USSR, China nor North Korea had crystal balls and all had ideologies to consider. The fog of war limited the vision of all, something quite common. The problems went beyond that.

Although General MacArthur was indisputably a military genius, as most recently demonstrated by his very chancy but highly successful Inchon invasion which had generally been opposed by the military establishment in Washington. However, he had an unfortunate tendency to rely heavily on staff officers (the "Bataan Gang") who told him what he wanted to hear and reinforced his sometimes faulty views. General Charles Andrew Willoughby, General MacArthur's G2 (head of intelligence) was among them. He tended to tell General MacArthur things and, when General MacArthur accepted them, to provide no contradictory information. While often comforting, "yes men" are less valuable than officers who provide new information inconsistent with what they had previously provided. The same is true with presidents.

There was apparently also a focus on expecting the USSR, China and North Korea to behave "rationally" and a tendency to neglect aspects of their ideology and culture. What seems reasonable to the leader of a free people is often very different from what seems reasonable to a dictator far more interested in preserving and enhancing his own position. These factors must be kept constantly in mind in an incipient Korean Conflict.

Part II -- Now

North Korea is not our friend, and neither are China and Russia. They tend to look out exclusively for their own peculiar interests as they perceive them and will do whatever it takes to advance them. If the Obama Administration fails to recognize these things, and to act on the basis of them, we, South Korea, and many others as well are in for very substantial problems. Indeed, they are upon us with the recent provocative attacks by North Korea on the South.

In many respects, things are even more complicated and less fully understood now than during the lead up to the 1950 Korean Conflict. Then, we had few insights into what might be happening in the "Hermit Kingdom" of North Korea; that remains the case. Then, many seemed to recognize clearly that North Korea, China and Russia were our enemies; fewer now seem to have that clear a perception as to Russia and China. Additionally, China has developed quite dramatically as a world economic power, transcending Russia; she is a, if not the, principal banker to the United States. She also supplies much of the "cheap stuff" desired by American consumers and many others. In consequence, the United States has become far more subservient to her than ever before.

As other things have changed, North Korea has become an increasing threat internationally with her trade in offensive military material with Iran and others.

Part III -- Now and the Future

The naval exercise off Korea's western coast ran from November 28 through November 30 and nothing untoward happened.
A [U.S.] supercarrier sent jets into overcast skies Tuesday in U.S.-South Korean military drills that North Korea warned could spark war, but signs of diplomacy emerged alongside the tensions over last week's deadly North Korean attack.
. . . .
Cmdr. Pete Walczak said the ship's combat direction center was closely monitoring any signs of ships, aircraft of any other activity and that nothing unusual was detected from North Korea.
"Absolutely nothing," Walczak said. "A lot of saber-rattling, fist-shaking, but once our presence is here, reality says that it's really nothing."
It could be that North Korea, like any school yard bully, weak in ability but strong in shouting, simply backed off in the face of obviously greater power. Or, it may have decided to wait until after November 30 when the exercises ended and the USS George Washington departed. No big rush and doing something really stupid would not help to play the China card. Will North Korea attack again? My guess is You Betcha.

In what she may perceive as statesman like efforts to avoid a hot war, China has called for six party talks on the Korean situation. A United States State Department spokesman has stated,
The six-party talks cannot substitute for action by North Korea to comply with its obligations . . . . We have called on China to urge the DPRK [North Korea] to restrain its provocations and responsibly act in the interests of peace and stability.
Japan and Korea have also declined to participate. Japanese Foreign Minister Seiji Maehara stated,
It's unacceptable for us to hold six-party talks only because North Korea has gone amok . . . . We must first see some kind of sincere effort from North Korea on its uranium enrichment program and the latest incident.
Mr. Maehara's remarks suggest the difficulty the international community may face in trying to resolve the conflict on the Korean Peninsula through coordinated effort.
The proposal from China, Pyongyang's close ally, came as major naval drills by the U.S. and South Korea appeared to fuel tensions. South Korean President Lee Myung-bak, however, told Beijing now was not the "right time" for the six-party talks.
Perhaps irrelevant, the U.S. and Japanese positions on six-party talks followed the South Korean rejection. South Korean and Japanese foreign ministers are traveling to Washington on December 6 to meet with Secretary Clinton to discuss Korea and other matters. Former President Carter stopped by the White House and discussed "the international work of the Carter Center and several foreign policy issues." On November 30, he had expressed a hope for good faith negotiations with North Korea.

Some WikiLeak documents suggest that relations between China and North Korea have soured.
One senior Chinese diplomat is said to have told an American ambassador that younger generation Communist party leaders no longer regarded North Korea as a useful or reliable ally.

Furthermore, Beijing anticipates the regime will collapse after the death of current leader Kim Jong-Il.

"This is Chinese officials talking to American diplomats, describing North Korea - a close ally that the Chinese have been supporting for decades and supported in a war with the UN - as a 'spoilt child'.

"They also refer to North Korea's nuclear capability as potentially destabilising to world peace.

"This effectively puts the Chinese very much in the American camp in terms of their analysis, at least.

"It is an enormous shift from China's public position, which has supported North Korea, to their private position in talks with American officials."

It has also been noted that
Chun [South Korea's then-vice foreign minister] predicts the government in Pyongyang would last no more than three years following the death of ailing leader Kim Jong Il, who is seeking to transfer power to his youngest son Kim Jong Un, a political ingenue in his 20s.
Chun also dismisses the possibility of Chinese military intervention if North Korea descended into chaos.
Despite that, China is preparing to handle any outbreaks of unrest along the border that could follow a collapse of the regime. Chinese officials say they could deal with up to 300,000 refugees, but might have to seal the border to maintain order, the memos say, citing an unidentified representative of an international aid group.
At least some of the WikiLeaks concerning the relationship between China and North Korea have been confirmed by Chinese diplomats based in Europe. For example,
The officials admitted to a sense of frustration in Beijing over North Korea's recent actions, including its nuclear and missile tests – which China opposed – and last week's lethal artillery bombardment of a South Korean island.
A general discussion was continuing about the direction of North Korea policy, another official said. North Korea produced strong feelings among the Chinese leadership and public, and China had to be careful. Beijing wanted to maintain its friendship with Pyongyang. But it did not want to be led by the nose.
. . . .
The officials said the Chinese government was talking to the North on a regular basis; there were many channels that could be used. But the North was a proud nation and China could not ultimately control it, they said. Beijing told the North's leaders what it thought – but sometimes they behaved irrationally.
. . . .
"We do not have an effective way to influence them. Sometimes when we try it only makes things worse," a senior Chinese diplomat said.
Are Chun's predictions worth considering? Is the other information from the WikiLeaks true or false? Somewhere in between? A disinformation campaign? We may never know for sure. What would an abandoned North Korea do? Try to go out in glory? What would China do about it? Take over the country? Nothing? Something else?

Implosion of the North Korean regime, with insufficient spoils to be shared among Kim Jong-il, his sister and her husband, much less among the other ruling elites, would indeed be interesting to watch. "[T]here is always the chance that other powerful blocs, particularly within the military, [will] try to make a power grab." This could be followed by chaos and later reunification more or less on the South's terms.

Leaving aside the Kims, the estimated cost to South Korea would be about one trillion dollars.
South Korean President Lee Myung-bak has proposed a new tax to help fund the eventual bill for reunification, but the suggestion met a lukewarm response, especially from younger South Koreans, many of whom would resent having to make sacrifices for the sake of their impoverished northern neighbors . . . .
Meanwhile, South Korea has canceled or postponed military drills on the island the November 23 attack on which precipitated the current crisis.
Officials at the Joint Chiefs of Staff told The Associated Press on Monday that the latest drills were postponed after the marine unit on the island mistakenly announced them without getting final approval from higher military authorities. The cancellation had nothing to do with North Korea, and the drills will take place later, one official said. The officials spoke on condition of anonymity, citing agency rules.
. . . .
Military trucks carrying what appeared to be multiple rocket launchers were seen heading to a marine base on the island Monday.
It is unclear whether the rocket launcher movements preceded or followed the announcement that the exercise had been postponed. It does seem clear, however, that the "cancellation" had much, rather than nothing, to do with North Korea. Right now, most everything that happens in South Korea, including even bowel movements, is in reaction to North Korea.

South Korea is giving serious consideration to establishing military bases on Baengynyeong Island and others nearby, very close to North Korea, useful for retaliation should North Korea again attack but also easily subject to North Korean attack.

This editorial in the South Korean JoongAng Daily on December 1 may well express public sentiment:
We have grown accustomed to sporadic provocations from North Korea over the last six decades, but never has the possibility of another war felt so real. We feel betrayed and insecure to discover that our frontline forces cannot even respond to artillery fire despite dutiful public spending. We tried to understand that the sinking of the Cheonan warship might have been unavoidable despite our state-of-the-art equipment because of the murkiness and the fast currents of the Yellow Sea.
But how are we supposed to acknowledge that our military’s capacity only amounts to a few dozen artillery shells fired in response to the hundreds of shells that rained down on populated land in broad daylight? The disbelief from the sudden loss of a son, husband or father and the awe of watching the country in a fluster over a security disaster unleash a gush of uncontrollable outrage.
The people cannot understand how a country with one of the world’s most fortified borders and largest armies with hundreds of military experts, hundreds of generals, and thousands of retired generals has been protecting its frontline archipelago with just a dozen howitzers. After all the skirmishes and provocations, the country should have had a contingency plan - a rudimentary strategy of supplementing military power with naval and air forces - to defend the Northern Limit Line, the disputed sea border.
All the war games proved ineffective in real-life conflict. Any military conflict gives priority to protecting populated areas, and an armed forces that cannot deter an unruly enemy firing ruthlessly against innocent people amounts to no more than a paper tiger. The Navy and Air Force that circle around the battlefield doing nothing are no more than a showcase. What was instead revealed on Yeonpyeong Island was defective artillery, a lax war scenario and soldiers ducking away from real combat.
Much depends, unfortunately, on China and our increasing subservience to her. If North Korea initiates a real war -- perhaps by directing missile attacks against Seoul and her millions of residents -- the likely response of China is unknown and perhaps even unpredictable, beyond that she will do whatever she sees as in her own best interests, defined as the interests of her rulers. Her response cannot be assumed to be what we would consider rational because China's response will be a function of (a) how she perceives the precipitating events and of even greater importance (b) what the Chinese leaders consider their own best interests. I have very attenuated confidence that the folks at the State Department and elsewhere who are supposed to be watching the situation have many useful clues as to that sort of thing.

Looking back a century, Britain and France had substantial ties with Germany and insights into her intentions during the years leading up to World War I. Barbara Tuchman's Guns of August delves neatly into this. Yet neither fully accepted the probability of a German attack violating Belgian neutrality.

Our ties with North Korea are essentially non-existent. Kim the Younger, now North Korea's fading dictator, seems hardly capable of putting substantial pressure on China as his more illustrious father did with Russia sixty years before. Might he have an obsession with living up to his father's example? We don't know what might happen if he does.

Our ties with and insights into China's intentions are far less than were those of Britain and France with Germany. If China perceived events and interests as we do, it would be far easier to make rational predictions about her responses. As I see rational behavior, China probably would like to weaken the United States further to make her even more subservient, but without substantially eroding her highly lucrative market for Chinese manufactures. Would China apply unprecedented economic pressures on the United States to keep her out of the war? Failing that, would she herself enter such a war on behalf of North Korea? Or might she just leap in ways we would think irrational?

To help pass the time as we await further developments, here is a very frightening scenario; fiction to be sure but frightening none the less. Were a world war to occur, from which Russia would likely refrain, there would be only one winner -- Russia. And like it or not, Russia has not shown herself to be our friend.

This on the other hand, unfortunately is not fiction.

Wednesday, November 24, 2010

The Korean Situation is Highly Complex and Difficult

It's not your grandfather's world.

In 1910 Korea, long under Japanese military occupation, was formally annexed by Japan. North and South Korea have been divided more or less along the 38th parallel since 1948. This flowed from the 1945 surrender of Japan and the decision that the United States would have trusteeship of Korea to the south of the parallel and Russia to the north. It was also decided that the United States would accept the surrender of Japanese armaments south of the 38th parallel, Russia of those to the north. Russia was North Korea's principal supporter, a role later to shift in great measure to Mainland China. The United States was and remains South Korea's.

The Korean Conflict began on June 25, 1950 with an attack on the Onjin peninsula, part of South Korea but accessible by land only through North Korea. At first assumed to be merely a provocative feint as had happened before, it wasn't. The conflict was not anticipated by the United States; it should have been. Dean Acheson, the Secretary of State, had only months previously delivered a speech listing the countries which the United States would defend if attacked; South Korea was not on his list. The United States had only a minuscule contingent of military advisers stationed in Korea and her forces in Japan were principally non-combat garrison forces, ill trained and ill equipped to go to war.

Troops from the North invaded in great numbers, crossing the parallel at numerous points with troops, tanks and aircraft. The equipment was principally of Soviet origin. They quickly took Seoul and points far to the south; there was little defensive capability, in part because the United States had declined to arm the South Korean military with adequate weaponry lest the South attack the North. The United States military was also in poor shape. Following World War II, the United States had cut her own defense spending "to the bone and through the bone." Military preparedness was low.

The few United States forces in Korea, augmented slightly by garrison troops stationed in Japan, retreated to form a southern defensive perimeter at the southern port city of Pusan. Massive efforts to reinforce the United States' troops there were made, including the calling up of reserves to fill billets vacant due to the staffing of military units in the United States at below even normal peacetime levels. Nevertheless, only three months after the North Korean invasion, General MacArthur's highly chancy but incredibly successful September 15, 1950 Inchon naval invasion was made.

The Inchon invasion was followed by United States attacks involving the land movement of troops from the Pusan perimeter, naval landings on the east coast and incursions well into North Korea from both the east and west. North Korean forces were routed. These attacks were swift and quite successful until China entered the fray en masse. She did this when United States and South Korean forces approached and then reached the border with China. The Chinese troops had massed north of the border with unmatched secrecy, traveling south only at night and hiding during the day. It has been said that Chinese troops who moved during the day were shot by their officers. United States military intelligence officers considered an invasion from China hardly worth considering, saw no signs of it approaching, and didn't think much about it until after it had come. Contrary to optimistic predictions, the United States forces were not "home by Christmas."

It is worth remembering today that China did not enter the conflict in force until her own border was approached. Her own interests were paramount and remain so. The deadly winter retreat of the United States and South Korean forces over and through harsh mountain terrain from the Yalu River back to the 38th parallel followed. The history of the Korean Conflict is well known and in the end an armistice was reached. North and South Korea remain in a technical state of war and a new conflict has been brewing intermittently ever since.

For about two and one half years during two tours of duty between 1967 and 1970, I was stationed in Seoul as an Army JAG officer. There were then approximately fifty thousand members of the U.S. military in South Korea. Now, there are almost twenty-nine thousand. The Pueblo crisis of 1968 occurred while I was there and a Korean airlines flight was hijacked in 1969. I recall being on a Korean Airlines flight from Seoul south to Taegu a few days after the hijacking when, shortly after takeoff, the aircraft made a sharp turn back to the north. There were lots of very relieved passengers when the pilot announced that we were returning to Seoul's Kimpo airport due to an engine problem. During this same period, North Korean aircraft frequently made passes at the border, sometimes briefly penetrating South Korean airspace but more often turning back before doing so. The obvious purpose was to desensitize South Korean and United States defenses to an eventual air attack. Seoul, the capital city of South Korea, is approximately twenty-five miles south of the border. Pyongyang, the North Korean capital city, is approximately 85 miles north of the border. It takes little time for a fast aircraft to fly twenty-five miles from the border down to Seoul and less for missiles. Then as now, there would be insufficient time for effective defensive counter measures to be taken against a surprise attack. These things are relevant to the present confrontations because they suggest that the current mess will probably continue and that there is little we can do about it; there is even less that we will likely do, in part because we increasingly rely financially on North Korea's principal supporter, China; China still acts based on her own perceived interests and beyond that is not likely to do much to help anyone.

Over the past forty years since I was there, and indeed since 1950, some things have changed -- Kim Il-sung died in 1994 and was replaced by his son, Kim Jong-il, who is ill and is being displaced by his son, Kim Jong-un, the twenty-seven year old "young (four star) general." The brilliant young general is not among the very brightest. Still, the charade goes on. China remains a big but somewhat worried supporter and the North Korean masses remain impoverished. Due to the Japanese occupation from before 1910 until the end of World War II, the division of Korea following the war and then the Korean Conflict, there are very few if any still living in North Korea with even memories of better times. They remain subjugated and few have more than scant hopes -- or possibly even wishes -- for better. The hereditary ruling civilian and military classes live in luxury. South Korea, in stark contrast, has become a thriving and relatively democratic country.

There have been various recent North Korean acts of aggression.
In March of this year, a North Korean submarine sunk a South Korean navy ship. North Korea denied any involvement in the incident, yet a UN commission of inquiry ruled that Pyongyang was indeed responsible, prompting the US to impose further sanctions. In response, North Korea announced that nobody could guarantee this would not have grave implications for peace and stability in the region. . . .
. . . .
At the same time, North Korea constantly continues, with active Chinese diplomatic assistance, to invite the US to resume the talks on Pyongyang's nuclear and missile program, in exchange for economic benefits and lifting of the sanctions. It's easy to see what the North Korean leadership aims to achieve via this belligerent brinkmanship. The main target is to create a situation whereby the sanctions are lifted and Pyongyang receives an immediate and significant supply of food and fuel, before Pyongyang ever commits to curbing its military nuclear program, and before International Atomic Energy Agency inspectors are ever allowed to return to North Korea.
Although Secretary Clinton announced that the sinking of the South Korean ship would have consequences, they seem not to have had much effect. The South Korean island shelled by North Korean forces on November 23, 2010 had more than five hundred residents.
The island is located just south of the 38th parallel. A statement carried by North Korean state media said Pyongyang “will wage second and even third rounds of attacks without any hesitation, if warmongers in South Korea make reckless military provocations again.” North Korea has become "the UN's problem from Hell." It has also become the "problem from Hell" for the residents of the island. The elderly women interviewed in the video below said that she was very angry. "North and South Korea are the same country!" Why, she asked, would they attack?
A surprise missile attack on Seoul, with approximately ten million residents, would be far more dramatic and devastating; it could certainly occur. North Korea has lots of missiles and certainly knows how to use them. Some are thought to have chemical warheads.

The United States dispatched the aircraft carrier George Washington and its accompanying flotilla, scheduled to arrive on November 28.
The participation of the aircraft carrier strike group, which includes 75 aircraft and 6,000 sailors, was agreed upon by U.S. and South Korean leaders, according to the presidential offices in both countries.
They are to participate in drills until December 1 off the western shore of North Korea – "the scene of the North’s barrage on a South Korean island. But this is also an area that Beijing vigorously claims as its own watery turf."
By sending in the USS George Washington carrier to conduct joint exercises with South Korea, Mr. Obama is risking an eyeball-to-eyeball confrontation with China. In recent months, top Chinese military officials have warned the United States not to send ships or planes into the Yellow Sea. They have even promised financial retribution.
China “won’t stand” for such US naval provocation, wrote Maj. Gen. Luo Yuan of the People’s Liberation Army in an August editorial. “Imagine what the consequences will be if China’s biggest debtor nation [the US] challenges its creditor nation,” he stated.
. . . .
China feels even stronger now as the US economy remains dormant with American consumers less dominant as buyers of other nations’ exports. The Chinese economy recently surpassed Japan’s and is second in size to America’s. And it watches with anticipation as Obama tries to cut the US military budget.
Will those cuts occur as scheduled? China has become the bank increasingly relied upon by the United States, but it is not a friendly local bank; it's officers are not members of the local Lions Club. Foreclose on the mortgage? Demand cuts in military spending? That would not be nice. Still, President Obama wants China to do something.
The message is that if you want something done in the region, talk to China. Washington’s utility has been reduced to a spokesman of the delegation to China. But the real gears turn in the Middle Kingdom. Therefore, it would not be surprising if one day the allies simply recognized that the US Secretary of State was an unnecessary and superfluous intermediary between themselves and the real audience. Logically the next step is to deal directly with the Chinese leadership in Beijing. The US has been dealing itself out its global commitments. Whether that is good depends on your point of view. One thing that is undeniable, however, is that an American retreat will have consequences, ones that will not be easily reversed.
According to Jasper Tsang, president of the Hong Kong Legislative Council, China wants to do something:
"China wants to see peace, cooperation and dialogue on the Korean Peninsula." Mr. Tsang also thinks that China may someday and to some extent emulate Hong Kong's form of democracy."Let me put it this way. We are still in a stage of transition. We are still debating on what the eventual, ultimate system should look like. Therefore, the coming 10 years or so will be a challenging period for us," he said.
At the invitation of South Korean Foreign Minister Kim Sung-hwan, Tsang will begin a five-day visit to South Korea later on Thursday [November 25]. While in South Korea, Tsang will visit the National Assembly and meet with Park Hee-tae, speaker of South Korea's National Assembly.
Hong Kong is moving towards a democratic government system. I believe there is much we can learn from South Korea in that aspect," he said.
Despite the successes in Hong Kong, I rather doubt that China has much present desire to move the mainland very far toward any form of democracy, but most anything is possible.

Despite whatever may be China's desires, it has been suggested that
recently, the [North Korean] military appears to be increasingly asserting itself on policy matters. In the past two years, military organs such as the Supreme Command of the KPA [the "People's Army"] and the National Defense Commission have been issuing policy statements directed toward the outside world -- something that was mostly done by the foreign ministry in the past.

More frightening is that there are reasons to believe that the military has become so emboldened and powerful that Kim Jong-il may no longer be the absolute leader who calls the shots in Pyongyang. For one, the Dear Leader’s physical and mental capacity has been declining—he reportedly suffered a stroke in 2008 and has grown frail since then. His third son and heir apparent, Kim Jong-un, lacks military credentials (although he recently and arbitrarily was elevated to the rank of general), and has to prove to the military that he has what it takes to be the next dictator-in-chief. That may explain why the Kims recently toured the base from which the shelling took place, to rubber-stamp the attack.

According to this report, the Kims toured the base just hours before the attack. The Young General may have issued the formal order.

In any event, the Obama Administration has thus far seemed to limit whatever options it may have. Its
policy of “strategic patience” with North Korea is having little impact on the regime, which is focused on the transition of power from Kim Jong-il to his son, Kim Jong-un.
Pyongyang’s provocative moves are clearly designed to force the U.S. back to the negotiating table, where North Korea hopes to obtain food aid for its starving population as well as security commitments, experts say.
The masses are indeed starving, but that is likely irrelevant as far as the North Korean oligarchic regime is concerned except as it can conveniently point to them and demand humanitarian aid.

During an address to the West Point graduating class in May, President
Obama outlined for the cadets his vision of a new international order organized around bodies such as the United Nations. In Obama’s future, American military force will give way to American diplomacy joined together with new multilateral partnerships, while “stronger international standards and institutions” will replace unilateral assertion of national interests — including our own. Obama told West Point’s Class of 2010 that he sees them not battling our enemies but “combating a changing climate and sustaining global growth, [and] helping countries feed themselves” even as their citizens achieve their “universal rights.”
These may be worthy objectives for a Peace Corps; to focus on them for the military ignores its basic historic function -- to kill people and to break things. Yet that is what President Obama does, and a weak president with an excessively rosy world view is an invitation to those who don't share his views to do monstrous things. They can probably get away with it, so why not? Rules of engagement? Ours are quite different from those of many others.

Former President Carter, renowned (by whom I don't know) for his diplomatic sagacity and strategic competence, has argued that problems involving nuclear enrichment and North Korean attacks can be resolved with direct U.S. - North Korea negotiations. He wrote,
Pyongyang has sent a consistent message that during direct talks with the United States, it is ready to conclude an agreement to end its nuclear programs, put them all under IAEA inspection and conclude a permanent peace treaty to replace the "temporary" cease-fire of 1953. We should consider responding to this offer. The unfortunate alternative is for North Koreans to take whatever actions they consider necessary to defend themselves from what they claim to fear most: a military attack supported by the United States, along with efforts to change the political regime.
Various aid proposals have been made. Any of them would work as well as others did in the past; not at all. North Korea is a heavily militarized state with the fifth largest population under arms. They seem fit and able to fight; the huddled masses don't much matter beyond providing for the military and for the leaders.

Can they fight as well as they have been trained to march? I hope South Korea, and we, don't find out but that may happen.

We have not got it right for a very long time and have succeeded consistently in little more than self delusion, inadequate intelligence and unfounded hopes that things will change for the better.
There is plenty of blame to go around for the current sorry state of affairs regarding North Korea’s nuclear program. But moving forward necessitates that the Obama administration once and for all abandon the longstanding myth that the Kim regime can be persuaded to relinquish North Korea’s nuclear weapons in exchange for the appropriate package of incentives. This will not come easily to an administration predisposed to “negotiations.” Moreover, such truthfulness will require the accompanying political will on the part of the United States to undertake the risks associated with refusing to acquiesce to Pyongyang’s provocations. This is a decision that no U.S. political administration has been thus far willing to undertake to thwart North Korea’s nuclear program.
Thus far, North Korea has been quite successful in pushing us around. It was suggested here that the United States need a radical shift in strategy and should
pull American troops out of South Korea. American military power is no longer needed in South Korea, at least not in the purely balance of power sense. In fact, the American military presence along the DMZ with North Korea only serves to constrain our initiative. Instead of doing what’s best for U.S. national security, acting to dismantle the North Korean nuclear weapons program, we are hobbled by our alliance with the South into not doing anything that might provoke the North.
Maybe, but I don't think it's a great idea right now. True, our troops seem to serve little useful purpose other than as hostages to North Korean whims. There is not much they could do to prevent a sudden attack, and Seoul with some ten million people could easily be reduced to rubble by air attack or even missiles -- without nuclear weapons. North Korea would likely be destroyed in retaliation. That sort of war is probably not in the cards.

The South Korean troops are far better trained and equipped than in 1950; they are pretty tough and were quite effective in Vietnam.
Most of the operations never exceeded battalion-size, but they also conducted divisional size operations. Before conducting missions, the South Korean marines laid out their plans much more carefully than their allies, with greater fire discipline, effective use of fire support, and better coordination of sub-units. They also had to their favor the distinguished combat leadership of the company and platoon commanders. During village searches, ROK soldiers would subject the settlement to a series of detailed sweeps while interrogating subjects on the spot. By comparison, American units tended to favor a single sweep followed by a removal of all civilians for screening. Such a painstaking approach certainly paid dividends in terms of weapons seizures and reduced VC activity in ROK areas. Koreans quickly learned pidgin Vietnamese language; for fear that most Vietnamese translators were spies for Vietcong and NVA. Koreans also had better field intelligence than their American counterparts. Koreans conducted counterinsurgency operations so well that American commanders felt that the Korean TAOR (Tactical Area of Responsibility) was the safest. This was further supported when Vietcong documents captured after the Tet Offensive warned their compatriots to never engage Koreans until full victory was certain. In fact, it was often [said] that the NVA and Vietcong were ambushed by Koreans and not vice versa.
On November 25 South Korea announced substantial augmentations of forces in the currently apparent danger areas.
At an emergency meeting in Seoul on Thursday, Mr. Lee [the president] ordered reinforcements for about 4,000 troops on tense Yellow Sea islands, top-level weaponry and upgraded rules of engagement that would create a new category of response when civilian areas are targeted.
Still, our troops in Korea probably provide some useful reassurances to South Korea and other allies (if we still have some) and that's important. Right now is probably not the best time to withdraw.

It is a mistake to focus primarily on the nuclear threat North Korea poses to the South; she could do horrific damage there without them and would have little reason to waste them; they are more useful to barter with other hostile countries, such as Iran. It does not seem credible that the United States would respond with nuclear weapons to a non-nuclear attack.

The far more important danger lies in Iran, which is arming other hostile countries including even Venezuela. China and Russia are both establishing and strengthening military ties with Venezuela.
[T]he combination of crazy leadership, nuclear weapons and missile capability inevitably makes people nervous. Which raises, once again, the question why the Obama administration apparently views the acquisition of nuclear weapons by Iran with equanimity.

. . . . The acquisition of nuclear weapons by Iran is much more ominous than North Korea's development of a nuclear arsenal. As I've argued for years, North Korea is essentially a status quo power, albeit a somewhat erratic one. The regime isn't out to change the world; it just wants to survive and enrich itself.

Iran, by contrast, is a revolutionary power that seeks to transform its region and to eradicate at least one of the states in the area. That state happens to be a traditionally close ally of the U.S.

It now seems highly likely that North Korea has been selling missiles to Iran "potentially giving the Islamic nation the capability of attacking Moscow and cities in Western Europe." It also appears that China has been complicit in the North Korea - Iran trade. Who woulda guessed?

It's up to the United States to plot a course to navigate in her own interest among the shoals of China, North Korea, Iran and their friends rather than seek to rely on China to do it. China's interests are very different from those of the United States and the Obama Administration really does need to recognize those differences and their extent. In large measure, "it's the economy, stupid," in international relations as well as domestically.

It is unrealistic to expect China to continue indefinitely to bail out the United States. China profits, far more than financially, from our subservience. We will continue to be in a muddle no less perplexing for the foreseeable future until we recognize these facts and proceed in accordance with our own best interests -- something we seem only rarely to do.

Monday, November 15, 2010

UN Seeks Global Taxes; Obama Administration Says Bend Over.

It seems as though the United States needs more problems.

There has been a demand for a global tax to fund the heroic battle against the horrors of global warming climate change species endangerment.
The demand comes from the Secretary-General's High-level Advisory Group on Climate Change Financing, which was organized following last year's UN Climate Change Conference in Copenhagen. Among the panelists recommending global taxes are George Soros, the financier of socialist change, and Larry Summers, President Obama9;s [sic] economic advisor.
The suggested amount of the global tax would only be 100 billion dollars when implemented (the amount "pledged at last year's Copenhagen Summit to help poor countries cope with the effects of climate change"), small change perhaps to some, but it would increase substantially thereafter mainly through carbon and transactions taxes. Obviously, according to this splendid article in Salon, we must put Al Gore science back into the political process, lest we be barbaric. Prime Minister Zapatero of Spain has asked that we all help to create green jobs in Spain and elsewhere "as a way out of the current economic crisis;" apparently the theory is that since the market won't create enough of them, they are the way to economic prosperity.
As Madrid economics professor Dr. Gabriel Calzada exposed, the “green” industry in Spain saw their only hope in the U.S. (Uncle Sucker?) coming to the rescue, keeping the bubble filled with transferred billions. Calzada was decried as “unpatriotic” by Spain’s renewables industry and communist-affiliated trade union — not for being wrong, but for letting the cat out of the bag.
Implementation of this "science friendly" idea would create all sorts of opportunities for the slippery slope effect to click in for more of the same as well as for other purposes. At the G20 summit in Korea, a global "Robin Hood" tax was proposed so that "rich" nations could help "poor" nations, doubtless "scientifically." The World Health Organization recently urged a similar objective. Not to be outdone in efforts to spend other folk's money,
French, German and British leaders have each endorsed one or more ideas for international taxation, including a global financial transaction tax or "Tobin Tax" as it is more commonly known. The G-8 and the International Monetary Fund, not wanting to be left out of the global tax game, are writing proposals of their own. With Summers, we can now add to that list a high ranking Obama administration official.
International taxation is "no longer merely an option," says French Foreign Minister Bernard Kouchner. He argues it's only a matter of time before the UN implements a tax system.
Unless the U.S. Constitution has recently been tossed or substantially rewritten, there is no way for the U.N. or other international bodies to impose that sort of thing on the United States directly. This does not mean that we are immune. Unfortunately, there are some ways for it to be done indirectly. Some would require the complicity of the President and the Congress and only a few would not. As noted here, there is presently very little chance of any significant global tax scheme being accepted by the United States due to constitutional restrictions, the economic situation and political realities.

While it may be a flight of fancy now, global taxation has been strongly and consistently advocated by the UN, the WHO, several European countries and others. President Obama has supported the concept and in 2008 sponsored the Global Poverty Act (S 2433) to require U.S. compliance with the Millennium Development Goals. Vice President Biden, then chairman of the Senate Foreign Relations Committee, tried to get it passed but failed. More recently, in December of 2009, soon-to-be-no-longer Speaker of the House Nancy Pelosi endorsed the idea of a global tax on stock trades to provide funding for additional stimulus packages.

It seemed almost a matter of pride for some in the Are you Serious Congress to ignore the Constitution when dealing with legislation, under the assumption that the federal government can do whatever it pleases. We saw that, for example, when ObamaCare was before the Congress; yet it passed. The mandatory health insurance provisions are now being litigated and I would be quite surprised were they not eventually to fall -- but not before creating substantial business uncertainty and consequent economic difficulties.

Over time, resistance to a global tax scheme may diminish to the point that just a small and economically benign tax gets by. Precedent having been established, it would become increasingly difficult to prevent the process from reproducing itself for increasingly harmful taxes. Legislative expansions of the Commerce Clause, not terribly significant in themselves at first, have over the past seventy-five years distended it rather grossly.

Articles I, Section 7 of the Constitution provides,
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Article I, Section 8 provides,
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
Article I, Section 9 provides,"No Tax or Duty shall be laid on Articles exported from any State." Its purpose has been said to be
To prohibit discrimination against any states or regions, Congress cannot tax goods exported from a state to foreign countries or those that move between states. (emphasis added)
Further, under the same Article and Section,
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
The Sixteenth amendment authorized an income tax:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
And that's about it.

Hence, no United States taxes can be imposed on goods exported to any foreign country, no non-uniform taxes can be imposed on any state other than via income taxes and all legislation to raise such revenues must originate in the House of Representatives, soon to be under the control of a reasonably conservative or at least Republican majority. New excise taxes on fuel, electricity, etc? Not with the new Congress, unless some individual states impose them on their own residents which seems equally unlikely. It seems likely that future appropriations for funding by the United States of the U.N. may already be in trouble, and to increase them would be very difficult. Ditto funds appropriated to federal agencies and departments, and ways exist narrowly to restrict such appropriations. True, under Article II, Section 2, the President has the power,
by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. . . .
Were the President to present to the Senate which convenes in January a treaty authorizing the collection of such revenues it probably would not receive the consent of the requisite numbers of senators; even if it did, it is very questionable whether it would be compliant with Article I and the Sixteenth Amendment quoted above. Senate Resolution 461, introduced by recently re-elected Senator David Vitter, R. La., on March 10, 2010, would put the Senate on record against any global tax scheme. It was referred to committee and has not yet progressed; maybe that sort of resolution should be looked into by the new Senate come January.

However, there are still ways the global tax envisioned by Secretary-General Ban Ki-moon's United Nations and others might be implemented. The U.N. Advisory Group offers some options
for governments to get the required $100 billion. "Governments may prefer to increase budget contributions," its authors helpfully suggest, until such time as new domestic or international taxes can be imposed and collected. It goes on to recommend a "carbon export optimization tax," and levies on international aviation and shipping including taxes on jet fuel and passenger tickets for international flights.
Other possibilities include royalties from fossil fuel extraction, and taxes on the use of electricity. Finally, there is the need, according to the UN, for a "global financial transaction tax," that would require "international coordination" and "international implementation." This is UN-speak for a global tax collecting agency.
Beyond these nifty ideas, which could easily discriminate against some states, foreign governments could increase their own taxes imposed on imported goods, many of which still come from the United States; this would have to be done very carefully if trade wars were to be avoided. The added funds so collected could be diverted to the U.N. They could also impose additional taxes on U.S. entities doing business in foreign countries, although if high enough that could cause some United States companies to rethink outsourcing and other ways of operating outside the United States; that might well be a good thing for the U.S. economy.

The United States has done more than her "fair share" of aiding less fortunate countries, and far from thereby winning the minds and hearts of their populations has increasingly been disparaged. She has maintained forces abroad, making it easier for some countries to have massive social programs based on the funding they would otherwise have had to spend on self defense. In some ways, she has done them ill by promoting an entitlements culture which, once started is almost impossible to stop. See Greece, France (and increasingly California and other states where that culture has gone berserk).

Rather than chase the fading ghosts of global warming and other phantoms, the new Congress should say "whoa" and reconsider the funding on which the country already splurges; to do otherwise would be pernicious. It would be no less so to let even a minimal global tax sneak under the radar. I facetiously suggested here that the United Nations be relocated to Luputa, Haiti or Somalia but that probably wouldn't work, despite the benefits thereby provided to the poor. In any event, the new Congress should give careful and detailed consideration to whether even the present (high) level of United Nations and foreign aid funding provided by the United States should continue. To do otherwise would be, the extent such a thing is possible, even more inconsistent with United States interests than is the present Obama Administration itself.

Wednesday, November 10, 2010

Liberalism May be Dead but Librulism is Not

Classical liberalism needs resuscitation.

Following the recent elections, Roger L. Simon recently opined that Liberalism is Dead. He referred, of course, to modern liberalism rather than to classical liberalism. He is more confident than I am about the demise; the death of modern liberalism may be approaching and I hope it will come. However senile and ineffective it may appear or we may wish it to be, it and its proponents remain forces about which to be concerned. Unfortunately, modern liberalism a.k.a. Librulism may even now be more alive than classical liberalism.

Words have transitory meanings. The word "gentleman" once meant a man privy to the person of the king. It eventually came to mean a person of sufficient inherited wealth to live well without "hard earned" money; mere tradespeople were not "gentlemen," no matter how sophisticated and polite they might have been. The word "gentlemen" now adorns the entrance to the restroom (another interesting word, that; I have never seen one with furniture really appropriate for a rest) used by males. Over time, "liberal" has morphed in similar fashion.
Thomas Jefferson considered himself a liberal but would, most likely, find little in common with those who appropriate the term today. Lock Mr. Jefferson (of Virginia) in a room with any one of the many so called liberals of today, and they would possibly come to blows, the event being at least forestalled because Mr. Jefferson was a “gentleman” in the eighteenth century sense of the word. Query, how many people who nowadays call themselves liberals believe that their views on life, the universe and everything reflect those of Mr. Jefferson. After all, he was a “liberal,” and so are they.
. . . .
I elect to use the word “liberal” to connote an open but not empty mind, a tendency to encourage the expression of opposing views, to listen attentively to them, and to desire to become familiar with them regardless of whether they are agreeable. It suggests a rational rather than a dogmatic approach to reality. A “liberal” in this sense can also be conservative; a conservative can, by the same token, be a "liberal;" there is no contradiction in terms.
Librul is the antithesis of liberal yet we persistently confuse the two. John Morton Blum, a very popular teacher of American history, was a liberal and a Democrat (he campaigned for George McGovern in 1972) but not a Librul. He is among those who made the difference live. His class was one of the largest and therefore had to be held in the law school auditorium. He spoke and wrote with enthusiasm about FDR and also about The Republican Roosevelt, Theodore. Mr. Blum was very happy to reminiscence extemporaneously the day after Eleanor Roosevelt died in November of 1962 about his conversations with her at Hyde Park concerning FDR; he had spent much time there going over President Roosevelt's papers and talking with her as he wrote a book (The Morgenthau Diaries) about the FDR years; we were captivated. Mr. Blum was no less pleased to introduce Senator Barry Goldwater, considered a leader of the conservative Republicans, to the class during the lead up to the presidential nominating campaign preceding the 1964 presidential elections; the senator got lots of applause and no boos as he and Mr. Blum entered the auditorium.

Mr. Blum made no attempt to indoctrinate, he merely told us about history factually, knowledgeably and as impartially but interestingly as anyone could have. I understand that the Librul disease has now infected many institutions of higher learning and find that extremely unfortunate; thus is the disease spread. I do not think that was generally the case nearly half a century ago.

Libruls do and say strange things which liberals generally do not. Libruls are fond of the word "racist" and conflate it with opposition to Librul positions. In Librulspeak, it is "racist" not to consider race in hiring and promoting employees and for other purposes; some but not all consideration of race is called "affirmative action" and "affirmative" presumably connotes something good. Republicans, unlike Democrats, are racist. So are those fool conservative T.E.A. groups which supported LTC Allen West who, due to a clear victory in a heavily White district, will in January become the first Black Republican congressman from Florida since Reconstruction; they just gotta be racist. So must Republican Hispanics Marco Rubio and David Rivera in Florida as well as Susana Martinez in New Mexico and Brian Sandoval in Nevada; ditto their supporters. There is no depth of depravity to which those Uncle Tom racists and their enablers will not descend.

Through some odd mutation, "race" has come to encompass both sex and ethnicity, although neither has any necessary connection to race. "Hispanic" has come to suggest a race, even though it legitimately refers to ethnic ancestry or surname. Mr. Gonzalez is Hispanic, even though he may be a Caucasian. I seem to recall reading many years ago that a Mr. Jones had secured a judicial name change to Mr. Gonzalez so that he could qualify for governmental Hispanic preferences. The federal Office of Personnel Management is holding its Third Annual Federal Hispanic Career Advancement Summit on November 29 and 30 of this year. I suppose that Sally Ortega, née Jones, would be among those whose careers are to be advanced.

Much of Europe is in the midst of a Librul crisis; Greece, France, anyone? To a lesser but still growing and festering extent so is the United States; yet President Obama apparently wants to emulate them; we must become more Librul and thwart the Party of No.

I suggest that the crisis has been propelled in no small way by the politically correct misuse of language. Political correctness is a symbiotic encrustation on Librulism; I don't know which is a cause and which is an effect, but neither could probably exist without the other. Global Warming Climate Change Species Endangerment? It's getting worse by the minute and it's all our fault. Praise Gaia, it is a crisis an opportunity not to be wasted; deniers are wicked. Charity? What's that; we have entitlements. Poverty? Even some folks living in the United States who own a couple of cars, a house, a couple of television sets and spend lots of their time getting fat at McDonald's live in poverty; they learn that they need and therefore demand our help because they are entitled to it; it ain't charity which would make them lose any vestiges of self respect. Besides, slaves the poor can be made continuously dependent on the system -- for many generations; that is good, rich is bad. Government spending? That's cool; it's just ObamaMoney government money. Inflation? That's just what happens to tires and balloons. Illegal Aliens Undocumented immigrants? What's illegal about not having some idiotic scrap of paper? Racism? That's something white folks do; just ask the Reverend Messrs Jackson and Sharpton, and don't forget the Honorable Mr. Rangel. Sexism? That's something people who don't disparage politically active females principally because they are attractive do. Helen Thomas, the recent runner up in a Ms. Congeniality contest (meh), would probably be a great president. Hate crimes? Don't yap about what the term means. Voter disenfranchisement? The Department of Justice is doing a bang up job. The Constitution? Don't worry about it; it's just a silly old document reciting irrelevant and out of date notions held long ago by some dead white males. Dead is good.

It is politically incorrect to refer to an "Afro American" – presumably even one living in Africa who has never been to any part of the American continent – as Colored (the NAACP still uses that quaint adjective), as a Negro or probably even as Black (the Congressional Black Caucus does and only admits Afro Americans, but that's not racist; a Congressional Caucasian Caucus would obvious be). Should I refer to a Caucasian citizen of South Africa as a "Dutch, English (or whatever) African?" Islamic terrorist? That shows an abysmal ignorance of the Religion of Peace. Conservative Christians? Stupid people who don't know any better than to cling to their guns and bibles. Jews in Israel – they should properly be referred to as Hebrew Palestinians. Unions = good; corporations = bad. Community organizers? They become miraculously good Presidents and receive anticipatory Nobel Peace Prizes. Attractive female governors? Don't be silly; elections are not beauty contests and we need experienced people.

Once upon a time, joyful people were referred to as "gay." Somehow, the meaning of "gay" has changed and no longer has much to do with a state of current happiness. A conservative liberal (I do at least try), I am not gay about the way the United States had been heading at least until recently. Negroes, poor people, women, foreigners living in the United States legally, the involuntarily unemployed and underemployed and others have been getting the shaft to a far greater extent under the rule of Libruls than they would with liberals. On November 2nd the country made some progress away from Librulism toward liberalism. Such progress is good, but it needs to continue and not be wiped away by apathy now that the elections have been held. One thing to do would be to refrain from political correctism. Saying No to it would be a good start to restoring a bit of pride in our country.

Friday, October 15, 2010

The October 14 Federal Court Decision in Florida is a Big Setback for ObamaCare

Alice in Wonderland notwithstanding, Congress must say what it means and mean what it says.

In an order released on October 14 in State of Florida, et al v. Dept. of Health and Human Services, et al , Judge Vinson of the U.S. District Court for the Northern District of Florida, Pensacola Division, permitted an action by twenty states challenging the mandatory health insurance provisions of ObamaCare to go forward. As noted here,
In his ruling, Vinson criticized Democrats for seeking to have it both ways when it comes to defending the mandate to buy insurance. During the legislative debate, Republicans chastised the proposal as a new tax on the middle class. Obama defended the payment as a penalty and not a tax, but the Justice Department has argued that legally, it’s a tax.
Beyond Judge Vinson's apt characterization of the government's approach as an "'Alice in Wonderland' tack" (see below) the most interesting part of the decision deals with the difference between between a tax and a penalty and why it matters. The Congress knows how to impose a tax when that is what it intends. Judge Vinson observed that since the mandatory insurance provisions were not referred to in the legislation as a "tax" but as a "penalty," as well as for additional reasons (including, for one example, the tanning facility tax, clearly intended as a tax and labeled as such), it is "manifestly clear" that the Congress intended to impose a penalty rather than a tax.

This distinction is crucial, because rather than purport to rely on its rather broad taxing power under the Constitution, the Congress relied exclusively upon its somewhat less broad Constitutional power to regulate interstate commerce among the several states in enacting the mandatory health insurance provisions of ObamaCare.
Perhaps most significantly, the Act does not mention any revenue generating purpose that is to be served by the individual mandate penalty, even though such a purpose is required. . . . Nowhere in the statute is the penalty provision identified or even mentioned as raising revenue and offsetting the Act's costs.
* * * * *
Reviewing courts cannot cannot look beyond a statute and inquire whether meant something different than what it said. . . . .
I have no choice but to find that the penalty is not a tax.
Judge Vinson continued, noting that by declaring the provision a penalty rather than a tax the Congress reaped a political advantage
Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an "Alice in Wonderland" tack and argue in court that the Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad powers in check.

Judge Vinson then disposed of questions of ripeness and standing in favor of the Plaintiffs but rejected the plaintiffs' contentions that requiring employers, including state governments, to provide health insurance for their employees and requiring states either to provide health insurance exchanges or have the Federal Government "develop and implement" such exchanges for them unduly infringed upon state sovereignty. However, he found that the states had presented plausible arguments as to compulsion under certain funding provisions for Medicaid (which he characterized as a close question).

Judge Vinson then proceeded with a preliminary analysis of the legitimacy of the mandatory health provision under the Commerce clause, the essential part of the decision. Noting that the Federal Government had never before sought to regulate economic inactivity by requiring people residing in the United States to buy something, he observed:
[T]he Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before. The power that the individual mandate seeks to harness is simply without prior precedent. The Congressional Research Service (a non-partisan legal "think tank" that works exclusively for Congress and provides analysis on the constitutionality of pending legislation) advised Congress on July 24, 2009, long before the Act was passed into law, that "it is unclear whether the [Commerce Clause] would provide a solid Constitutional foundation for legislation containing a requirement to have health insurance." The analysis goes on to state that the individual mandate presents "the most challenging question . . . as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service." [In Supreme Court cases involving accommodating Blacks in motels and growing wheat] [a]ll Congress was doing was saying that if you choose to engage in the activity of operating a motel or growing wheat, you are engaged in interstate commerce and subject to federal authority.
But in this case we are dealing with something very different. The individual mandate applies across the board. People have no choice and there is no way to avoid it. People who fall under the individual mandate either comply with it, or they are penalized. It is not based on any activity that they make the choice to undertake. Rather, it is solely based on citizenship and being alive. . . .
Of course, to say that something is "novel" or "unusual" does not mean that it is "unconstitutional" or "improper." There may be a first time for anything. But, at this stage of the case, the plaintiffs have most definitely stated a plausible claim with respect to this cause of action. (emphasis in original)
Judge Vinson thus permitted the case to go forward for trial on December 16th and quite possibly motions for summary judgment.

Judge Vinson's remarks in his Conclusion quote these words from the Supreme Court:
Some truths are so basic, like the air around us, they are easily overlooked. Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear "formalistic" in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitutions protects us from our own best intentions; it divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.
Despite the displeasure noted by the White House, the case will thus proceed, and it rather clearly suggests that the outcome may be very different from that recently where U.S. District Judge George Steeh in Thomas Moore Law Center v. Obama on October 7th rejected claims that the individual mandate exceeds Constitutional authority under the Commerce clause. Judge Vinson's decision appears to be the better reasoned of the two and it seems likely that in Judge Vinson's court the government will have a tough roe to hoe in convincing him that the individual mandate meets Constitutional standards.

I also find very encouraging the judicial reaffirmation that when the Congress expressly states its Constitutional authority in enacting legislation, it should be bound by it and not wander off into other possible (but rather improbable) realms to justify the legislation before the courts. ObamaCare was passed, not as justified by the taxing authority but as authorized under the Commerce clause. If it is is not permitted under the Commerce Clause, as it probably is not, it must fall.

Also published at Opinion Forum.