Guv’mint Work

“… meticulous attention should be paid to the special relationships and obligations of public servants to the public itself and to the Government.

All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service …

“Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees. Upon employees in the Federal service rests the obligation to serve the whole people, whose interests and welfare require orderliness and continuity in the conduct of Government activities. This obligation is paramount. Since their own services have to do with the functioning of the Government, a strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable.”

It may surprise you to learn that these words were written by President Franklin D. Roosevelt in a letter dated August 16, 1937. As he states the case, FDR saw crucial differences between collective bargaining in public organizations, which he eschewed, and private organizations, which he encouraged. He was so “pro-union” in the private sector that his New Deal laid the legal and regulatory foundation which unionized 35% of the nation’s private workforce at its mid-1950s peak.

But Roosevelt’s opposition to unions in government services was the Democrat orthodoxy of the time. Unlike private sector ventures whose workers generate the profits, in Roosevelt’s view, the workers in public sector ventures do not produce profits. In fact, they work in government monopolies whose services can’t be “shopped” by their consumers to get the best value for police and fire protection or public education.

When unions engage in collective bargaining on behalf of employees of a private organization, the party across the table is management who represents shareholders and creditors. On their behalf, management has a vested interest in containing payroll expense and maintaining the firm’s competitiveness. The discipline of the market constrains the demands union negotiators can make in private sector ventures.

None of these incentives are at work in public unions. The titular head of a government agency is not the employer; taxpayers are. Nor does the government manager feel the impact of the expense to operate the agency; taxpayers do. Yet taxpayers are conspicuously absent from the public union collective bargaining table. Their interest in keeping expenses low and getting good value for their money isn’t represented at all. Unlike private sector unions, public unions have no market to discipline their appetites. No matter how outrageous their demands, the expense is passed along to the taxpayer because the government manager has no stake in the taxpayer’s interests.

The presidents, state governors, mayors, commissioners, and other public agency heads who create budgets and spend tax revenues are essentially employees themselves, not much different than the fire fighters, police, teachers, and agency bureaucrats they supervise. But they differ from their private sector counterparts in one important way: private sector employees don’t elect their bosses. Public sector employees do. Government workers, or more specifically the unions that represent them, can funnel millions of dollars into election campaigns. They maintain election phone banks, knock on doors, get out the vote. They are part of the candidate’s election staff and they don’t cost the campaign one penny. But they can un-elect candidates that don’t give them what they want.

As budget crises like those in New Jersey, Wisconsin, Ohio, and Indiana sweep the country, FDR has been proved right. The perverse incentives in public sector leadership and public unions is the cause for the mess we are now in – bloated inefficient state and national governments that cost more every year to operate. These problems were unheard of before the late 1950s when the barriers to public unions began to fall.

New York City Mayor Robert Wagner was the first to issue an order in 1958 that allowed public employee unions and collective bargaining. Then Wisconsin became the first state to enact a public sector collective-bargaining law the following year. In 1962, President John F. Kennedy signed Executive Order 10988, which granted bargaining rights to federal employees.

The genie was out of the bottle. Around the country, state and municipal government began enacting public sector collective bargaining laws, virtually inviting union leaders to rob taxpayers, elect their co-conspirators, and expand government. The growth of public unions put an unelected power in charge of the people’s business next to the people’s elected officials. With that came the loss of control over government budgets, and hence over tax rates.

Need proof? Virginia banned collective bargaining in state and local government in 1993. State debt as a percentage of tax receipts is 2% and unfunded pension liability is 17% of state GDP. Wisconsin, where public union members have been protesting their governor’s attempt to restore sanity to the state budget for 10 days, has debt of 5% of tax receipts and unfunded pension liability of 32% of state GDP. Unfunded state pension liabilities are a ticking time bomb nationwide. They are currently under-funded by over $3 trillion and growing by the day.

Since pubic unions gained respectability, federal, state, and local government employment has grown from 8.2 million in 1959 to 22.5 million in 2009, excluding the military. Contrary to conventional wisdom, the leading attraction to government work is the pay, benefits, and job security relative to private sector work.

According to BLS data for 2010, state and local government employees nationally were paid an average wage of $26.25 per hour, which was 33% higher than the average private sector wage. But an even greater mismatch occurs in benefits, such as health and life insurance, paid vacations, sick leave, and contributions to retirement income. State and local governments provided their workers with benefits valued, on average, at $13.85 per hour, a whopping 69% premium over the average benefits package in the private sector.

State and local government benefits are not only more expensive, but are also given to more workers. Life insurance, for example, is a benefit for 80% of government employees but only 59% of private sector workers. Traditional defined benefit pension plans were available to 84% of government workers – but to only 21% of private employees. The cost of the average state and local government defined benefit retirement plan is $2.94 per hour worked, significantly higher than 44 cents for private industry employers.

With salary and benefit compensation as generous as this, would it surprise you to learn that government employees are only one-third as likely to leave their jobs as workers in the private sector?

Yet state and local governments are cheapskates compared with the pay and benefits available from the federal government. Uncle Sam employs about two million of the 23 million government employees in this country and paid them – are you sitting down? – an average annual salary of $79,197, according to the Commerce Department's Bureau of Economic Analysis. The average private employee earned just $49,935 from which is paid the taxes that pay these extraterrestrial government salaries.

The difference between the federal and private salaries has more than doubled since 2000. Reducing federal pay to the same level as the private sector would save taxpayers approximately $47 billion a year!

Benefits make the difference even more striking. Total federal civilian compensation – pay and benefits combined – average $119,982, which is more than twice the $59,908 compensation package earned by the average private sector employee.

Tax-paying private sector employees may fall on hard times, but the good life just keeps on truckin’ for public employees. Since the "Great Recession" started a couple of years ago, the number of federal workers with salaries of $100,000 and up increased 46%. But hold on to your hat. At the Defense Department, the number of civilian employees making $150,000 or more quintupled from 1,868 to 10,100 in the last two years, and at the Justice Department, the number receiving these princely incomes increased nearly sevenfold.

Between January 2008 and June 2010, as the “Great Recession” slogged on, the private sector lost roughly 8 million jobs. But government – the fastest growing enterprise in America – added 590,000 employees to its workforce.

What could explain the difference between private sector and public sector compensation and employment security? Unions. The so-called labor movement in this country has been declining in the private sector but growing in the public sector. From its zenith in the mid-1950s the labor union participation rate has declined from 35% to less than 7% of the private sector workforce. But in the 50 years that unions have been allowed in the public sector, the participation rate has grown from essentially zero to over 39% of the state and local government workforce and 36% when the federal government workforce is added.

The trend to unionize government and hold taxpayers hostage is not likely to abate.

Public unions are the biggest players in national politics. The largest public sector unions are the National Education Association, the American Federation of Teachers, the American Federation of State, County, and Municipal Employees, and the Service Employees International Union. These unions have more than seven million members combined, and they are very well financed. The NEA and AFT teacher unions, for example, collect about $2 billion a year in member dues and fees. While they spend generously to elect their candidates, 95% of their money goes to Democrats because they are more likely to raise taxes and boost spending than Republicans.

The Service Union International Union (SEIU) spent $67 million to elect Obama and other Democrats in 2008. In the first nine months following Obama's inauguration, union president Andrew Stern visited the White House 22 times – more than any other visitor. His successor, Richard Trumka, recently boasted that he talks to the White House about three times a day. Money buys access.

Public unions and elected officials make a powerful tag team when wresting more money out of taxpayers. In 2010, for example, Oregon public unions teamed up with the Democrat governor to raise individual and business taxes by $727 million annually rather than cut public services – and the jobs to provide them. The Oregon Education Association pitched in $2 million and the SEIU added $1.8 million to the $7 million spent to promote ballot measures increasing the taxes. Altogether, public unions contributed 75% of the $7 million. Not a bad ROI: spend $7 million to shake $727 million out of the tree that unions apparently believe grows money.

New Jersey's teachers union fought Gov. Chris Christie's efforts to cut education spending as part of his plan to deal with the state’s $11 billion deficit. The union gets dues of about $100 million annually from its 203,000 members. That’s a big war chest for an organization whose primary purpose is lobbying. The union spent $300,000 every week on radio ads urging tax increases on the “rich” instead of budget cuts. Christie and New Jersey taxpayers won. This time.

When it comes to state workers and teachers salaries and benefits no state tops Wisconsin. The average teacher in the Milwaukee public schools, according to the MacIver Institute, earns $100,000 a year – $56,000 in pay, $44,000 in benefits – and enjoys bullet-proof job security. Yet Wisconsin teachers and various imported goons have been camped out at the state capitol protesting Gov. Scott Walker’s request that teachers begin paying 5.8% of their salaries toward their pensions (they pay almost nothing now) and that they pay 12.6% of their healthcare premiums. (Their share would go up from $79 to $200 per month. The average private sector chump pays $330 per month.) Even when Scott explained that these measures would prevent layoffs, furloughs, and other draconian cuts, the Wisconsin teacher’s union prefers unemployment to benefit reductions.

Walker's bill, which passed the state assembly Thursday evening, would also limit collective bargaining for government employees. Collective bargaining protects bad employees whose seniority forces better employees to be laid off when necessary.

The bill also terminates the government’s role in collecting union dues from member paychecks and paying them over to the union. If approved, workers would have to pay their own dues, which might give them pause to consider what they are getting in return. Dropping out of the union would be the equivalent of a $1,000 annual increase in pay for many. Predictably, the unions hate the idea and are fighting it tooth and claw. However, the direct payment of union dues by the government to the union is the root of all political corruption in America.

The results of the incestuous relationship between unions and government are easy to see. Out of control pay and benefits are obscenely more generous than they are in the private sector. Taxes are higher and so are deficits and debt, especially unfunded debt.

Between now and 2013, the states are facing a total budget shortfall of $175 billion. The checks and balances aren’t there to keep unions out of the taxpayer’s pockets. They never have been. The cycle of expropriating higher and higher taxes from taxpayers so union members can be paid more and pay higher dues that go into political campaigns for pro-union politicians is self-reinforcing. But it has a limit and that limit is being reached in most states and the federal government now.

The way we do government in this country has to change, and it has to change in ways that put the interests of those in the private sector – who pay the lion’s share of taxes – ahead of those who are the beneficiaries of those taxes. Citizens must stop looking to government to solve every problem. The size of government must be reduced and its effectiveness must increase so it can do more with less. The days of defined benefit retirements are vanishing in the private sector and must do likewise in the public sector.

A crucial first step in restoring fiscal sanity to government is the elimination of collective bargaining. It is a practice designed to prevent voters from having the final say in public policy. It boggles the mind that anyone should expect elected representatives in a democracy to negotiate spending and policy decisions with an unelected union leader.

It’s hard to make the case that public sector unions have done this country any good. The cost of government is growing faster than the economy, public education lags that of other industrial countries, the economic clout of unions allows them to buy their way into control of the political process, and states languish under the burden of $3 trillion in unfunded liabilities.

We can do better.

An Unserious Budget

It is hard to imagine any issue that threatens the future of the Republic more than the current and projected fiscal condition of the US economy. In his first two years in office, Obama has added $3 trillion to the national debt. His 2012 budget delivered on Monday – ironically Valentine’s Day – shows yet a third year of trillion dollar-plus deficits in his administration, and it projects trillion-plus spending deficits for another decade.

The federal government will have borrowed as much during Obama’s four-year term in office as it borrowed during the previous two-century-plus history since the Republic was founded in 1789. Best you reread that last sentence.

We are spending ourselves into an unmanageable crisis!

The budget deficit for Obama's third year in office is $1.645 trillion according to his own budget documents. This is the largest deficit in world history, let alone U.S. history. Federal spending will be 25¢ of every GDP dollar! Historically it’s been 20¢ or less. How much larger must the government share of GDP become before the US economy can be called socialism?

Yet Obama’s Valentine’s gift to Congress was a $3.7 trillion 2012 budget cleverly gimmicked to show a saving of $1.1 trillion over 10 years. The decade’s saving, however, is less than the projected deficit for fiscal 2011. And the “saving’ is only a slight reduction in spending on the programs that Obama spent the first two years of his administration fattening up. One morning talk show host likened it to increasing your child’s weekly allowance from $1 to $4 and then cutting it back to $3 while calling the 25% reduction “painful.” The kid still has two more bucks than he had at the start.

Federal spending is now 37% higher than four years ago, which represents a trillion dollar allowance increase from Uncle Sam – or should I say from you and me, since Uncle Sam doesn’t have any money. With a sleight-of-hand that would make David Copperfield envious, Obama claimed he will lower discretionary spending to the lowest percentage of GDP since the Eisenhower administration. But Obamanomics will push federal spending in 2020 to double that of 2007. Oh, and Obama’s Valentine XOXO? His 2012 spending will drive national debt to more than 102% of GDP, last seen in this country during World War II.

Speaking at the CPAC gathering in Washington last week, Indiana Governor Mitch Daniels (R) warned of a “new red menace” that threatened the nation – although this time it was red ink rather than communism. But somewhat surprisingly, voices that are ideologically aligned with Obama – normally – came out with criticism of the new budget. Obamaphile blogger Andrew Sullivan lamented that others must lead the fight to restrain spending because …

“… this president is too weak, too cautious, too beholden to politics over policy to lead. In this budget, in his refusal to do anything concrete to tackle the looming entitlement debt, in his failure to address the generational injustice, in his blithe indifference to the increasing danger of default, he has betrayed those of us who took him to be a serious president prepared to put the good of the country before his short term political interests.”

Sullivan concluded his Valentine’s Day blog, The Daily Dish, with these words:

“To all those under 30 who worked so hard to get this man elected, know this: he just screwed you over. He thinks you're fools. Either the US will go into default because of Obama's cowardice, or you will be paying far, far more for far, far less because this president has no courage when it counts. He let you down. On the critical issue of America's fiscal crisis, he represents no hope and no change. Just the same old Washington politics he once promised to end.”

Wow! And that’s from a friend and supporter!

Likewise, the Obama-friendly Washington Post characterized him as Punter-in-Chief.

“Having been given the chance, the cover, and the push by the fiscal commission he created to take bold steps to raise revenue and curb entitlement spending, President Obama, in his fiscal 2012 budget proposal, chose instead to duck. To duck, and to mask some of the ducking with the sort of budgetary gimmicks he once derided.”

The same Washington Post editorial included a graph of publicly-held debt as a percentage of GDP. It looked like a hockey stick. The editorial ended …

“If Oklahoma Republican Sen. Tom Coburn could sign on to a deficit-reduction plan that included raising tax revenue, is it too much to ask for such bravery from Mr. Obama? And if Illinois Democratic Sen. Richard Durbin could sign on to a plan that included raising the Social Security retirement age, is it too much to ask for more from Mr. Obama than an airy set of "principles for reform"? Sadly, the answer appears to be yes.”

A new Rasmussen Reports piled on with a national telephone survey this week that found 55% of “Likely US Voters” said the president’s budget proposal doesn’t cut government spending enough. Rasmussen further found that 70% of “Likely US Voters” think they are more willing to make the hard choices needed to reduce federal spending than elected politicians are.

So there you have it. The mood of the country is moving to the fiscal right while Obama’s budget is right out of the land where the unicorns live. After seeing an outline of it, I thought if this budget represented Obama’s roadmap to “Winning the Future,” the theme of his State of the Union address, our country’s best years are behind it.

I had planned to write this week’s blog on how out of touch this president is with fiscal reality, but Obama’s media cheerleaders beat me to it. "I don't need to tell you what I think of the budget: It's disastrous," wrote Atlantic Magazine economics writer and Obama voter, Megan McArdle. "I'm starting to think it's time to panic."

When the budget arrived at the Capitol, Sen. McConnell (R-KY) called it “an unserious budget” and Rep. Paul Ryan (R-WI) called it a “political document which is ‘dead on arrival’ – or should I say,” Ryan added, “‘debt on arrival.’”

Congressional Democrats were delighted that Obama offered no plan for dealing with entitlements. That saved them from fighting another hard reelection campaign in 2012. However, the Tea Party Republicans remembered that they were elected – at least they believe so – on the promise that they would bring down spending. Spending cuts cannot avoid entitlements because entitlement spending, in combination with interest on the national debt, represent two-thirds of all federal spending.

And since the cowardly 111th Congress refused to pass a 2011 budget before the voters kicked them out, the Republicans of the 112th Congress have to create that budget on the fly and fulfill their campaign promise to cut $100 billion in spending. Thankfully the Tea Party House members haven’t been in Washington long enough yet to become jaded, so when their cautious leaders in the Republican caucus came up with $37 billion in spending reductions and thought it was close enough, the Tea Party freshman forced their elders to find more cuts or else forfeit the Tea Party votes. So far they are close to $100 billion.

Later this year, Republicans will turn their attention to a 2012 budget that reduces spending and deficits well beyond Obama’s budget. Since they are opposed to confronting out-of-control spending with large tax increases, which Obama did in his budget, entitlement spending will have to be reduced by Republicans, knowing they will be demagogued for doing so by Democrats in the 2012 election.

Entitlement spending – largely Social Security, Medicare, and Medicaid – are on autopilot, running up the national debt (and therefore its interest payment) every year. Because there aren’t enough taxpayers or available taxable income, the US must therefore borrow 40¢ of every dollar it spends. Even the most reckless spendthrift knows you can’t do that for long.

“They are suckers,” said one senior Democratic congressional aide of the House GOP plans to release detailed proposals to reduce entitlement spending. “They have painted themselves into a corner.” Obama’s reticence to address entitlements is a political trap, Democrats believe, for a Republican Party divided between Tea Party conservatives pushing for major changes to Medicare, Medicaid, and Social Security and a GOP leadership wary of the political peril of tinkering with Americans’ retirement security.

As polls show, the country is deeply frustrated with the $1.6 trillion deficit this year, and voters want spending cut back. But that's not the same as wanting spending cut back in the areas that are important to their interests.

Unless politicians are convinced that voters support cuts in the Medicare benefits that Granny receives, or in the Social Security benefits they pay into and expect to receive, there is little incentive to commit political hara-kiri, as Obama obviously concluded. Washington is many things, but an arena for political courage, it ain’t.

When the Pew Research Center recently surveyed Americans about government spending, they found only 12% wanted to see cuts in Medicare or Social Security spending, and only 6% wanted veterans benefit spending reduced. Those stats are reflected in Obama’s budget, which cuts discretionary spending but not mandatory spending. And since the big bucks are spent in the latter, not the former, his proposed cuts are anemic by default.

“None of the options polls well,” lamented one Republican insider this week.

Still, Republicans predict Obama’s dodging the real cause of budget deficits will come back to haunt him. Since becoming President, he has positioned himself as Washington’s only grown-up – a man who is willing to tackle tough problems and propose unpopular solutions. “Every Republican candidate in 2012 is going to bring this up,” one Republican aide believes, especially since the Republicans must show their hand first and bear the risk of doing so.

Spending reductions are difficult because there is probably no program funded by federal spending which is universally hated by members of Congress. Every program has an advocacy that must be reckoned with when spending is budgeted.

For example, Rep. Jim Clyburn (D-SC), the third ranking leader in the Democrat caucus and the leader of the Congressional black caucus, gave an emotional news conference this week, decrying education cuts proposed by Republicans in their quest to find $100 billion in spending cuts. Districts like the one he represents in Congress have a large number of poor and seven black colleges targeted by the GOP. Clyburn said of the cuts:

“You explain to me how that will provide us the wherewithal to compete. They’ve just gone in with a meat ax chopping stuff out in order to get to some magic number without regard to what this means to the people that we are trying to prepare for the future and what it means to this country if we are going to compete.”

The seven black colleges Clyburn is trying to protect were scheduled to get grants from the Department of Education. Since it was created by Jimmy Carter in 1979, the Department cannot show that it has had any positive impact on the nation’s schools, which are under the supervision of local and state officials. Yet in the 2012 Obama budget, the Education Department received the highest year-over-year percentage increase in budget, 21%, and is set to receive over $77 billion in spending. Republicans have been trying to shut down the department for 30 years.

Then there are Obama’s pet projects in his 2012 budget. He wants to rebuild the nation's roads and spend $53 billion on a high speed rail network in Florida and other states. The newly elected Republican governor of Florida, Rick Scott, says he will reject funds for the project. Scott is the third newly elected Republican governor to turn down money for Obama’s national rail system, joining John Kasich of Ohio and Scott Walker of Wisconsin. Each of the three replaced governors who had lobbied for the funds.

Obama also wants to spend $556 billion on highway and mass transit projects, $46 million to increase EPA spending "to reduce greenhouse gas pollution," and $584 million on research and innovation in “new and emerging environmental sciences.” Of course, Obama refers to this spending euphemistically as “investments,” but neither he nor Congress has ever bothered with a cost/benefit analysis to prove these projects aren’t just more government boondoggles.

However, Obama did issue this threat through a spokesman to Republic deficit hawks this week:

“If the president is presented with a bill that undermines critical priorities or national security through funding levels or restrictions, contains earmarks or curtails the drivers of long-term economic growth and job creation while continuing to burden future generations with deficits, the president will veto the bill.”

Translated: he will force Republicans to shut down the government and hopefully suffer the same consequences when they last did that in 1995, virtually assuring Clinton’s reelection for a second term.

There is something peculiarly reprehensible about a president or member of Congress who puts his or her political future ahead of the good of the country, regardless of party affiliation. The future of the Republic is poorly protected when our elected representatives lack the courage to confront their constituents with the facts that this country is headed for a fiscal train wreck and sacrifices akin to a wartime footing are called for if we are to avoid calamity. Obama’s quiescence in fiscal leadership contradicts the image he beholds in the mirror – a tough-minded chief executive who confronts challenges others avoid. Instead he has taken a political path, persuaded that he is more clever, more persuasive in out-maneuvering his opponents in the political chess game.

“I’m confident we can get Social Security done in the same way that Ronald Reagan and [late Speaker] Tip O’Neill were able to get it done, by parties coming together, making some modest adjustments. I think we can avoid slashing benefits, and I think we can make it stable and stronger for not only this generation but for the next generation.”

Those are the words of a community organizer, not a political leader.

Egypt in the Mirror of Two Revolutions

The American Revolution was the culmination of a number of missteps by Parliament’s colonial government which, taken together, treated the citizens of the American colonies as if they were inferior Englishmen, less deserving of the rights and liberties enjoyed by their fellow citizens in England. The revolution precipitated a war whose purpose was to gain independence from the mother country and its government.

Many leaders arose to help America gain independence, among them Thomas Jefferson, who provided the intellectual argument to the world for dissolution of the “political bands” that connected colonies and king, and George Washington, who provided the military leadership, and after achieving victory, remarkably surrendered his sword and retired.

John Locke, Francis Bacon, and Adam Smith were sources for the ideology that influenced the leaders of the American Revolution. And arguments for and against the government that was proposed in the US Constitution were debated in the Federalist and the Anti-Federalist Papers as well as argued in pamphlets published by contemporary political philosophers.

The American colonists were also the heirs of the “Glorious Revolution” of 1688 in England which bloodlessly overthrew the absolute monarchy of James II and replaced it with a constitutional monarchy establishing the respective powers of Parliament and the Crown in England with a Bill of Rights. These accepted rights enabled the American colonists to engage in limited self-rule during the colonial period which gave them the experience to successfully legislate and govern themselves after the independence had been won in 1781 and formally recognized in 1783 by the Treaty of Paris.

Inspired by the success of the American Revolution, the citizens of France in the 1780s also yearned to be free from the oppressions of their monarchy. Taxation, crop failure, and a rigid class structure stoked the fires of civil unrest. But unlike the American Revolution, which began with a declaration, the French Revolution began with the storming of the Bastille. Unlike the American Revolution, which sought independence from the British government, the French Revolution sought to overthrow its government and to execute the king and many of the privileged class.

Unlike the positive leadership which emerged to guide the American Revolution to its successful outcome, the French Revolution was plagued by anti-leaders, the worst of whom was Maximilien Robespierre. He would become a dictator who unleashed the Reign of Terror that claimed 40,000 lives, most by guillotine, and in the end, Robespierre himself was consumed by the guillotine. Rather than "liberté, égalité, fraternité" – a government of the people and by the people – France exchanged the corrupt absolute monarchy of Louis XVI for the absolute dictatorship of Emperor Napoleon Bonaparte and a generation of brutal and dissipating wars.

These two late 18th century revolutions moved along very different paths that produced quite different outcomes, one of which was unintended. Why? Because unlike the Americans, the French had no experience with democracy or citizen government. There was no French equivalent to the English legacy of 18th century constitutional power sharing. While the American economy was restricted by British regulations, it yet remained a private enterprise system. The French in contrast were the product of feudal economy. Literacy was comparatively widespread in America versus France, and statesmanship within and among American colonies was so commonplace that holding public office was considered an obligation, not an aspiration. Privilege and class, in contrast, were substantial barriers preventing pre-revolutionary social responsibility in France.

When the revolutions since the 18th century are viewed in terms of their method and outcome, most have turned out like France. The reason is that the starting point for the American colonies was a constitution-based monarchy. It is difficult for an autocratic regime like France’s to transition from the unlimited power of the governor or government to the limited power of a democratic regime, but it is impossible for a totalitarian regime, which controls every aspect of private and public life, to become a democracy.

Moreover, the motive of the American Revolution was independence. That of France and most other revolutions was to depose a hated tyrant. Swept up in the passion to oust a current incumbent, revolutionaries find out only too late how hard it is to find a better replacement.

At the tipping point of revolution, an autocracy can more easily devolve into totalitarianism than democracy. Cases in point:

The overthrow of the autocracy of Tsar Nicholas II in 1917 briefly produced the liberal government of Alexander Kerensky to govern a nation of serfs. But the liberals of the February Revolution were no match for the bloody and destructive Bolsheviks. Ten months after Kerensky, Russia was plunged into a horrific civil war that brought about genocidal inhumanity on a scale not seen even in the French Revolution, thanks to Lenin and Stalin, and Russia slid into totalitarianism.

The autocratic Chinese Nationalist government of Chiang Kai-shek held sway from 1928 to 1949. Despite its corruption and incompetence, it was an American ally in the Far East during World War II. But China, like France and Russia, had no legacy of democratic institutions or self-governing experience. With the defeat of Japan, the excesses of Chiang’s government led to a civil war which brought Mao Tse-tung to power. Chairman Mao, as he was known, was the architect of the totalitarian People's Republic of China. During his 30-year rule, the revolutionary communists killed between 40 and 70 million people, caused severe famine, and damaged Chinese culture, society, and economy in a combination of brutality, incompetence, and fanaticism.

Likewise, the overthrow of the Shah of Iran, whose aftermath was incompetently managed by Jimmy Carter, led to an Iranian theocracy, a mindless war with Iraq, and a regime worse than the Shah could have inflicted on the Iranian people. Iran has not completely shed its vestiges of autocracy and embraced totalitarianism, but its mullahs are moving the country in that direction.

.
Despite Obama’s embarrassment in admitting to American Exceptionalism, history proves the American experiment was unique. The current revolution in Egypt, therefore, is more likely to be a variation of a French revolution than an American one. Those in the Obama administration who have said that the crowds in Tahrir Square are the voice of democracy would do well to remember that the French Revolution did not produce a democracy. Neither did it produce a stable government following the overthrow of Louis XVI. In the 200-plus years after the American Revolution, France had a revolution, two empires, five republics and a quasi-fascist dictatorship. Egypt, during the same period, lived under two regimes – the monarchy created in 1805 and the 1952 Free Officers Movement that put Gamal Abdel Nasser in power. Since then Egypt has been effectively governed by military emergency law, which has not prepared the Egyptian people for self government or produced political parties, freedom of speech and assembly, a free press, the rule of law, and an impartial judiciary – all necessary elements of a democratic society.

In 1789 Americans watched the progress of a revolution against their closest ally, Louis XVI, whose decision to back the colonists with money, ships, and troops forced Britain to recognize American independence. As he tottered on his throne, there was little that America could do to repay his help.

Likewise, for the past three weeks, Americans have again watched the progress of a revolution against a close ally in the Middle East. Yes, Mubarak was venal, corrupt, and repressive. His net worth, estimated at $70 billion, was mostly stolen from American taxpayers who have provided Egypt aid over the past 30 years. But for all of his faults, Mubarak kept the peace in the Middle East, he suppressed the Muslim Brotherhood, kept the Suez Canal open, supplied Israel with natural gas through a protected pipeline, and has respected the Egypt-Israeli Peace Treaty. Throughout regional crises – the civil war in Lebanon, the Iran-Iraq war, two wars against Saddam Hussein, and the war on terror – Egypt remained an ally, even sending troops to fight for the liberation of Kuwait 20 years ago.

On Friday, the news was flashed to the world that Mubarak had resigned – as a practical matter, forced out by a peaceful military coup. In the absence of a civilian successor, the country will be temporarily ruled by a military junta consisting of generals headed by the Defense Minister. Reportedly, the junta has committed "to shepherding the legitimate demands of the people and endeavoring to their implementation within a defined timetable until a peaceful transition to a democratic society aspired to by the people."

What will that “democratic society” look like? If a Pew poll taken last April is any guide, only 59% of Egyptians polled believed “democracy was preferable to any other kind of government” – second only to Pakistan (42%) with the lowest popular support for democracy of any country surveyed. Another data point should give pause to those expecting widespread support for democracy in Egypt: only 27% of those polled sided with “modernizers” while 59% espoused fundamentalism.

Other attitudes hardly reflected a country ready to embrace democracy: 82% of Egyptian Muslims favor stoning people who commit adultery, 77% favor whipping and cutting off hands for theft and robbery, and 84% favor the death penalty for people who leave the Muslim religion.

Whatever else Egypt will be post-Mubarak, it will be overwhelmingly Islamic according to what the Pew poll says. This would explain why the Muslim Brotherhood has the unofficial support of at least a quarter of the Egyptian population despite having been officially banned for 30 years. Under Mubarak, the army suppressed the Muslim Brotherhood. If it continues to do so, how long will it take to shepherd “the legitimate demands of the people” toward “a democratic society aspired to by the people"?

Moreover, during the last three weeks when journalists recorded what the Obama administration confidently called “the voices of democracy” in Tahrir Square, some of those voices said they want freedom because freedom means making war on Israel.

The army may remain in control for a long time.

Whatever the outcome of the Egyptian Revolution, it does not seem headed for a 1688 or a 1776. It is not likely that the people who fill the offices of government in years to come will represent as pliable a partner as the Mubarak regime was. They will not accord the United States the friendship or regional influence it has had for the past 30 years. It will be an Egypt much less pro-American and much less pro-Israel.

Egypt will progress from dictatorship to democracy fitfully, if at all. It is the nature of revolutions to be unpredictable, and they often require decades or more before their outcome can be known with certainty.

Asked about the historical effect of the 1789 French Revolution, Chinese Premier Chou En-lai famously replied: "Too soon to tell." That will no doubt be as true for Egypt.

Judge Vinson’s History Lesson

This past Sunday, Sen. Charles Schumer (D-NY) was waxing eloquent in a CNN interview about the need to increase the debt ceiling in the face of Republican demands for offsetting spending reductions – or else they would vote against it – when he launched into a long soliloquy, concluding with this remarkable statement:

“… so I would urge my Republican colleagues, no matter how strongly they feel … you know we have three branches of government, we have a House, we have and Senate, and we have a President, and all three of us are going to have to come together and give some, but it is playing with fire to risk the shutting down of the government, just as it is playing with fire to risk not paying the deficit.”

What is “remarkable” here is Schumer’s constitutional understanding of the tri-partite structure of American government. Assuming he was listening to his own words, neither he nor CNN host, Candy Crowley, made an effort to correct his excision of the Judiciary.

Last year, after the healthcare law had been rammed through the House, a reporter had the audacity to ask Her Imperial Highness, Speaker Pelosi, if she thought the law was constitutional. “Are you serious? Are you serious?” she said twice, incredulous that anyone would question her on the point. Since she never answered the question, it’s uncertain whether she was incredulous that the law’s constitutionality would be questioned or incredulous that laws had to pass constitutional muster.

Then there was the outburst from Rep. James Clyburn (D-SC) last year when he declared to a fellow House member on the Republican side that "there's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." Clyburn’s attitude fits nicely with Rep. Pete Stark (D-CA) who responded to a constituent’s skepticism that an individual mandate was constitutional by confidently saying, "The federal government can do most anything in this country."

My all time favorite display of constitutional illiteracy was the House member who said on national TV that the healthcare hijacking was in compliance with the “good and necessary” clause of the Constitution, blissfully ignorant that there is no such clause.

I recalled these unhappy examples of Congressional constitutional vacuity as I read the 78-page ruling that US. District Court Judge Roger Vinson handed down this week, finding the ObamaCare individual mandate unconstitutional – which made the entire law void. Judge Vinson’s arguments are a joy to read, harking back to citations of Madison and Hamilton from the Federalist Papers and quotations from Jefferson. He obviously knows more about the Constitution and the zeitgeist of the late 18th century than the boneheads who legislated this monstrosity. They would be well instructed to read his ruling before they try again – or pass any other law for that matter.

Vinson is a judge steeped in the history and tradition of the Constitution, learned in the framing and purpose of the Constitution. I can think of no better way to present the scholarship of his decision than with excerpts from his arguments rather than paraphrasing them. My blog posting of January 8, 2011, Our Amazingly Elastic Commerce Clause, will provide a background for the central issue of his ruling, so I’ll not repeat the Framer’s intention in writing Article I, Section 8 of the Constitution.

Judge Vinson begins:

"This case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our healthcare system. In fact, it is not really about.......our healthcare system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government."

"The Framers believed that limiting federal power, and allowing the ‘residual’ power to remain in the hands of the states (and of the people), would help ‘ensure protection of our fundamental liberties’ and ‘reduce the risk of tyranny and abuse.’

"As Chief Justice Marshall aptly predicted nearly 200 years ago, while everyone may agree that the federal government is one of enumerated powers, 'the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, so long as our system shall exist.' This case presents such a question."

"There is a simple and rather obvious reason why the Supreme Court has never distinguished between activity and inactivity before: it has not been called upon to consider the issue because, until now, Congress had never attempted to exercise its Commerce Clause power in such a way before."

"It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself 'commercial and economic in nature, and substantially affects interstate commerce', it is not hyperbolizing to suggest that Congress could do almost anything it wanted.

"It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

"If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” and we would have a Constitution in name only.

"Surely this is not what the Founding Fathers could have intended, (quoting Hamilton at the New York Convention that there would be just cause to reject the Constitution if it would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals”).

"Preliminarily, based solely on a plain reading of the Act itself (and a common sense interpretation of the word ‘activity’ and its absence), I must agree with the plaintiffs’ contention that the individual mandate regulates inactivity."

"If Congress asserts power that exceeds its enumerated powers, then it is unconstitutional, regardless of the purported uniqueness of the context in which it is being asserted."

"The Commerce Clause originally applied to the trade and exchange of goods as it sought to eliminate trade barriers by and between the states. Over the years, the Clause’s reach has been expanded from covering actual interstate commerce … to intrastate activities that substantially affect interstate commerce.

"It has even been applied to activities that involve the mere consumption of a product (even if there is no legal commercial interstate market for that product). To now hold that Congress may regulate the so-called ‘economic decision’ to not purchase a product or service in anticipation of future consumption is a ‘bridge too far.’ It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent.

"Because I find both the 'uniqueness' and 'economic decision' arguments unpersuasive, I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law."

"The defendants have asserted again and again that the individual mandate is absolutely 'necessary' and 'essential' for the Act to operate as it was intended by Congress. I accept that it is. Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be 'proper.'"

"In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed.

"There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions --- which, as noted, were the chief engines that drove the entire legislative effort --- for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone.

"Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress’ main purpose and primary objective in passing the Act.

"The statute is, after all, called “The Patient Protection and Affordable Care Act,” not “The Abstinence Education and Bone Marrow Density Testing Act.” The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.

"If Congress intends to implement healthcare reform --- and there would appear to be widespread agreement across the political spectrum that reform is needed --- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts.

"In sum ... the individual mandate was an essential and indispensable part of the health reform efforts, and … Congress did not believe other parts of the Act could (or it would want them to) survive independently.

"I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. The individual mandate cannot be severed. This conclusion is reached with full appreciation for the “normal rule” that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated."

"CONCLUSION

The existing problems in our national health care system are recognized by everyone in this case. There is widespread sentiment for positive improvements that will reduce costs, improve the quality of care, and expand availability in a way that the nation can afford. This is obviously a very difficult task. Regardless of how laudable its attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution.

"Again, this case is not about whether the Act is wise or unwise legislation. It is about the Constitutional role of the federal government.

"For the reasons stated, I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here.

"Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.

"This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled ‘The Patient Protection and Affordable Care Act.’ As Judge Luttig wrote for an en banc Fourth Circuit, on this point, it should be emphasized that while the individual mandate was clearly ‘necessary and essential’ to the Act as drafted, it is not ‘necessary and essential’ to health care reform in general. It is undisputed that there are various other (Constitutional) ways to accomplish what Congress wanted to do.

"Indeed, I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that ‘if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.’”

Judge Vinson concludes by stating “there is a long-standing presumption that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction,” quoting Supreme Court Justice Scalia on that point. Vinson therefore continues, “There is no reason to conclude that this [Scalia’s] presumption should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.” However, the Obama White House has made it clear it has no intention to recognize Vinson’s declaratory judgment as the equivalent of an injunction, and is proceeding with the implementation of ObamaCare.

The Appeals and Supreme Courts are not bound by the Vinson decision, but they are influenced by it. Higher court judges pay attention to lower court arguments, particularly well-reasoned arguments like this one. The Left, which confidently persuaded itself it would win all of the four cases involving suits against ObamaCare, has now lost two and is particularly concerned about the thoughtfulness in this ruling. They would be foolish to think higher courts reach decisions by disregarding those of lower courts and starting from zero. Most of the higher court judges were once lower court judges who took their craft seriously.

Still, it is difficult to predict the outcome of the inevitable Supreme Court ruling. Judge Kagan has refused to recuse herself, although she clearly participated in this case in her former life as Solicitor General. And with the Court evenly divided on the left and right, Justice Kennedy is once again the swing vote.

In a way it is sad that a case which will decide if Congress can forever more do whatever it wants will be decided by one person.