A Filibusted Senate?

The legislative debacle by which ObamaCare was passed showed what happens when there is not a functioning filibuster. The 2008 elections gave the legislative and executive branches of government to the same party with sufficient margins in the House and Senate that the minority party – the Republicans – could have taken the next two years off and gone fishing. 

The Senate Democrats had the votes to overcome any Republican filibuster until the death of Ted Kennedy. His Republican replacement, Scott Brown, forced Senate Majority Leader Harry Reid to resort to procedural, if not illegal, chicanery to complete the conferencing required to reconcile the House and Senate versions and pass it into law.

As I’ve noted in previous blogs, ObamaCare was illegally birthed in the Senate in violation of the Origination Clause of the US Constitution. By disemboweling an unrelated House bill for military housing and stuffing the carcass with 2,700 pages of bureaucratic gibberish, the Democrats hijacked the private sector of the US healthcare system. No meaningful Senate debate was allowed among Senate members. No time was allowed for Republicans to inform the American public about the pending law. Reid limited the amendment process in order to rush the bill, which most Senators hadn’t read, to a vote failing to garner a single Republican.

This is what life without a filibuster looks like.

The Senate and the House operate very differently to produce legislation. The House “rocket docket” passes bills very quickly with a simple majority vote. Most House bills that pass have majority party defections. No matter. The majority needs half of the 435 House votes plus one. Therefore, little debate or consensus-building for legislation occurs. If the Speaker allows Representatives to speak prior to a vote, he may limit appeals to influence the pending vote to 30 seconds or a minute.

Unlike the House, things move slowly in the Senate. The minority party may stall a vote by a filibuster, which requires 60 votes to cut off. This compels issues and different points of view to be debated, compromises must be struck, amendments are often incorporated which reshape the original bill, and this continues until 60 votes can be rounded up to overrule the holdouts. Deliberation requires majority leaders to prevent losses among their caucus while minority party votes are wooed and accommodated – except in the 111th Congress. From the 2009 swearing in of new Senators until the February 2010 swearing in of Scott Brown, 60 Senators conducted the business of the Senate. Forty were sidelined. ObamaCare and Dodd-Frank were among the leading examples of the abominable legislation that resulted. This is what happens without the right to filibuster. Whether the left or the right of the political spectrum is the minority the filibuster puts the brakes on extremism.

This past week we heard threats from Reid about resorting to the “nuclear option.” This ominously-sounding parliamentary procedure would have changed Senate rules by simple majority in violation of existing rules. Had this happened as Reid wished, it would have allowed presidential nominees for executive branch positions to have been approved by a simple majority. The rules for approving judicial nominees and legislation would have continued to be subject to filibuster and could only be cut off by the supermajority rule of 60 votes.

A few years back, however, Minority Leader Reid sounded quite different about the filibuster rules change. George Bush was then in the White House and the Republicans controlled the House and Senate, albeit not by filibuster-proof margins in the Senate. The Democrats frequently used the filibuster. Majority Leader Bill Frist grew as tired of the deadlock as Reid is today and threatened the “nuclear option” – a term coined by former Republican Majority Leader Trent Lott – to change the Senate’s rules by simple majority vote in which the Republicans would have prevailed. Democrats became apoplectic.

The filibuster is the last check we have against the abuse of power in Washington. Republicans are in power today, Democrats tomorrow. A simple majority ... should not be able to come in here and change willy-nilly a rule of the Senate.

Well, that was Reid vintage 2005. Harry Reid vintage 2013 should take his own advice. Bullying an agenda through the Senate does not produce good legislation, does not properly vet candidates for executive positions, and does not deliberate the suitability of a judge for a lifetime position.

Several years ago, Common Cause joined four House Representatives and three illegal aliens in Common Cause v. Biden, a lawsuit in federal court challenging the constitutionality of the filibuster. Common Cause claimed the filibuster was “inconsistent with the principle of majority rule.” The four House members claimed the Senate filibuster rule nullified their votes on bills. The illegals claimed they were denied a path to citizenship under the DREAM Act because the Senate couldn’t cut off the filibuster. The judge called the suit frivolous and threw it out. None of the plaintiffs had standing in the case, and Judge Sullivan rightly concluded that …

… to intrude into this area would offend the separation of powers on which the Constitution rests. Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation. Article I reserves to each House the power to determine the rules of its proceedings…the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court.

By what logic would the Founders have created a bicameral legislature having two nearly identical houses? In its zeal to advance a political agenda, Common Cause and the individual plaintiffs failed to comprehend that the Founders never intended for the Senate to be a majoritarian body like the House. It is a very different institution. There are two Senators from each state regardless of state size or population, unlike the House which is apportioned by population. Originally, Senators were elected by state legislators (and I think still should be) whereas House members are popularly elected. In each new Congress, the Senate is a continuing body – two-thirds of it remains intact with every election and its rules carry forward. The entire House is replaced every two years and its rules are adopted for each new Congress even though some may carry forward by choice. The Senate rules protect minority party rights to participate in shaping legislation and other matters. House rules do not.

As Judge Sullivan aptly lectured the plaintiffs above, Article I, Section 5 of the Constitution states that “each house may determine the rules of its proceedings.” This means the Senate makes rules governing debate and the House does likewise.

In the first Congress of 1789, each chamber therefore created its own rules of order. It happened that both employed a parliamentary rule that harked back to the English parliament known as “the previous question motion.” This was equivalent to saying, “shall we move to a vote?” or “shall the question by now put?” Nay votes postponed a vote; yea called for a vote. This was so in both House and Senate. It was not a simple majority cloture vote. A nay vote on “the previous question motion” postponed a vote and the legislative body moved on to other business. A yea vote continued debate. In 1811 House rules were changed so that a yea vote immediately ended debate and brought the question to a vote. This is how the House adopted simple majority cloture.

The early Senate sessions continued the previous question motion to end debate and move on without voting until March 1805 when it was dropped from Senate rules. Erroneous folklore has been concocted by those seeking to overturn the Senate filibuster, saying that it was created accidentally by Aaron Burr, Jefferson’s departing Vice President. No it wasn’t. The word "filibuster" wasn't even used until the 1850s – a decade and a half after Burr died. Burr recommended dropping “the previous question motion” because it duplicated the motion for indefinite postponement and because “the previous question motion” had only been used once in the Senate’s history.

The “filibuster by accident” fairy tale originates from the diary of John Quincy Adams, which includes the following account of Burr’s speech to the Senate after his lethal duel with Alexander Hamilton ended his political career:

He [Burr] mentioned one or two of the rules which appeared to him to need a revisal, and recommended the abolition of that respecting the previous question, which he said had in the four years been only once taken, and that upon an amendment.  That was proof that it could not be necessary, and all its purposes were certainly much better answered by the question of indefinite postponement.  (Memoirs of John Quincy Adams, edited by Charles Francis Adams, vol. I, p. 365)

Dropping the “previous question motion” eliminated a way to end debate. That was not problematic in those days because the gentlemanly thing to do was to allow a Senator to speak before a vote, even if winning the support of fellow Senators was futile, at least his position would be recorded in the Senate log. Such was the dignity of early debate and deliberation.

It would be 1837, the year after Burr’s death before a minority block of Whig Senators engaged in an extended debate to prevent a resolution of censure against Andrew Jackson from being deleted by his supporters. It’s unlikely that the Whig minority thought of themselves as engaging in a filibuster.

Seven years would pass before a similar debate tactic was used in 1841 to block the charter of the Second Bank of the United States whose sponsor was Kentucky Senator Henry Clay. When Clay tried to “move the previous question” and end debate by simple majority vote, Alabama Senator William King accused Clay (the two had threatened to duel each other several times) of trying to gag free debate and told Clay he "may make his arrangements at his boarding house for the winter.” John C. Calhoun of South Carolina rose in high dungeon to accuse Clay of a “palpable attempt to infringe the right of speech” and promised to defend the minority’s “undoubted right to question, discuss, and examine those measures which they believe in their hearts are inimical to the best interests of the country.” Missouri Senator Thomas Hart Benton reprimanded Clay for attempting to stifle the Senate's right to unlimited debate. Thoroughly scolded by his colleagues, Clay backed down.

The term filibuster derives through Spanish to a Dutch word which meant “privateer” or “pirate.” It entered the legislative lexicon when Representative Albert G. Brown in 1853, referred to a speech by Representative Abraham Venable against "filibustering" intervention in Cuba – i.e. the practice of overthrowing Central American governments by private US citizens. As political-speak filibuster was used in 1889 as a pejorative for an obstructionist of the political process. It probably was understood to characterize the overthrow of legislative routine and pirate control.

As more states entered the Union and the volume of Senate business grew, so did the practice of filibustering. Senator Robert Byrd, the longest serving member of the Senate and an authority on its history, noted the following in his book The Senate, 1789–1989:

An effort to reinstitute the “previous question” on March 19, 1873 failed by a vote of 25 to 30. Between 1884 and 1890, fifteen different resolutions were offered to amend the rules regarding limitations of debate, all of which failed of adoption.

The point I’m attempting to demonstrate is that the early history of the Senate makes clear that the filibuster was not an accident of history, as its opponents try to characterize it. The filibuster was a creation of early Senate rules. Later Senators had many opportunities to rein in or eliminate the filibuster and resisted it.

In 1917 Woodrow Wilson prevailed upon the Senate to establish a cloture rule to end debate. Senate Rule XXII was enacted which stated that debate may be terminated by the votes of two-thirds of the Senators present and voting. A Senate quorum is 51 Senators, so as few as 34 could cut off a filibuster. On important legislation, however, it is likely that more will be present and voting on the floor, meaning more will be needed to close debate. Two years after Senate Rule XXII was established, it was used to cut off debate filibustering against the Treaty of Versailles. In 1975 the Senate modified the cloture requirement, lowering the number of senators needed to end debate to 3/5ths of those “duly chosen and sworn,” which would be 60 Senators normally.

Most of us have seen the 1939 Frank Capra film starring Jimmy Stewart as Senator Jefferson Smith in Mr. Smith Goes to Washington. Stewart’s character is framed in a land scam and engages in a 24-hour filibuster to defend his innocence. In the 1930s Senator Huey P. Long used filibusters to advance his liberal agenda against bills he believed favored the rich over the poor. Reading Shakespeare and cooking recipes he once held the floor for 15 hours. Senator Strom Thurmond holds the record for the longest filibuster – 24 hours and 18 minutes – to prevent the Civil Rights Act of 1957 from passage.

Few of these kinds of filibusters happen today, however. Just the threat of filibuster produces the same result. In order to prevent filibusters or their threat from bringing the business of the Senate to a halt, Democrat Majority Leader Mike Mansfield in the 1970s implemented a multi-track system for legislation so that bills threatened with a filibuster could be sidetracked while other bills made their way through the Senate.

Taking into account that the filibuster empowers the minority in the Senate, it is remarkable to hear Republican Speaker of the House, John Boehner (R-OH), whine that the Republicans hold only one-half of one-third of the the Congress and White House legislative process. He obvious doesn’t understand the power of the filibuster in the Senate.

Notwithstanding the arguments of its opponents, the Senate should retain the filibuster. In next week's blog I'll give the reasons why I believe that.

Remembering Janet Napolitano

Department of Homeland Security Secretary Napolitano announced last week that she will be leaving the Obama Administration in September. She will become president of the California University System – a position which pays $750,000 annually, almost triple her current federal salary. The move has yet to be approved by the California Board of Regents, but approval is not in doubt. Napolitano was nominated by a secretive search committee made up of several regents.

Napolitano’s nomination culminated a process of unknown duration that considered over 300 candidates. Napolitano, who has no advanced degree other than a law degree and has no experience in academic administration, was selected, according to the committee chair Sherry Lansing, for her “passion for education and for being “a remarkably gifted candidate.” Are we talking about the same Janet Napolitano? Having spent 20 years in university academia I know how universities function. There are more big ego PhDs per square yard of university real estate than any other place on earth. Universities are as unlike government organizations as black and white or night and day or similes and metaphors.

Ms. Lansing continued,

While some may consider her to be an unconventional choice, Secretary Napolitano is without a doubt the right person at the right time to lead this incredible university. She will bring fresh eyes and a new sensibility – not only to UC, but to all of California. She will stand as a vigorous advocate for faculty, students and staff at a time when great changes in our state, and across the globe, are presenting as many opportunities as challenges.

Wow! What’s this California regent been smoking? Not only is Napolitano unfit to lead the California University System, she was unfit to lead the Department of Homeland Security. Her preparatory experience for the latter was one and a half undistinguished terms as Arizona’s governor unless stacking the state’s courts with radical judges counts as an achievement. Before that she was her state’s Attorney General for a term in which her only notable achievement was to ban Christmas decorations on public property. When Clinton became president, he selected her to be the US Attorney for the District of Arizona. And prior to that, she was a partner in the second largest Arizona law firm during which she represented Anita Hill in the Clarence Thomas hatchet job. David Brock’s book, The Real Anita Hill, reports that Napolitano interrupted the testimony of her own corroborating witness during the Thomas Senate hearings when the witness began disputing Hill’s version of the facts. After they conferred “off the record” for a few minutes, Napolitano's witness had a sudden attack of amnesia.

Napolitano is an anti-conservative zealot who early in her DHS tenure issued a report entitled Rightwing (sic) Extremism: Current Economic And Political Climate Fueling Resurgence In Radicalization And Recruitment, which admitting no proof, nevertheless opined “… that right wing extremists may be gaining new recruits by playing on their fears about several emergent issues. The economic downturn and the election of the first African American president present unique drivers for right wing radicalization and recruitment." It is unexpurgated garbage.

Napolitano's rationale for singling out conservatives was they prefer local to federal government, Christians  believe in the “end time,” and single-issue groups oppose abortion, illegal immigration, and embrace Second Amendment rights. She alleged they had “the potential to turn violent,” citing former veterans like Timothy McVeigh. They’re all from the same mold in Napolitano’s brain.

Is this the “remarkably gifted candidate” Ms. Lansing had in mind?

The Department of Homeland Security was created in the aftermath of 9/11 by aggregating the Immigration and Customs Enforcement, Customs and Border Protection, Transportation Security Administration, Coast Guard, Secret Service, and Federal Emergency Management Agency under a single agency oversight – allegedly to improve cooperation and information-sharing that helped allow 9/11 to happen. Notice that I said “aggregate” not “integrate.” The 45 agencies have been trying to integrate since 9/11 and a dozen years later have yet to accomplish it. Napolitano did little to provide the leadership it needs.

Instead she created a hyper-partisan agency that has done little to improve homeland security. Napolitano became Obama’s lap dog by expunging the word “terrorism” from the official lexicon as part of the Obama agenda to “understand” and “reflect” the grievances of local Muslim communities. Engagement became more important than counterterror policing. Experts who showed the connection of acts of terror and jihad were silenced or purged. An advisory board established by Napolitano looks like a “Who’s Who” of Muslim Brotherhood moles in this country.

While Tamerlan Tsarnaev was abroad getting his Boston bomb instruction – unknown to DHS – Napolitano was busy having her agency buy up hundreds of millions of rounds of ammunition to keep them away from those bad old Second Amendment Right Wingers who fought and defeated Obama’s gun control agenda in Congress. Claiming they were only bought for target shooting training (that’s a lot of training), an unamused reporter noted these were lethal hollow points, not the type needed for practice. Facts are such pesky things.

Among her several duties, Napolitano is responsible for securing the borders – a constitutional obligation. She met that duty with the same indifference she met most of her duties. She lied a lot. Claiming that the border was more secure than it had ever been, a member of the Senate pointed out to her that arrests of illegal border crossers (aka undocumented Democrats) increased on her watch. When ranch thefts and several border area murders moved Arizona Governor Brewer to pass enforcement laws for her state, Napolitano and Holder formed a tag team to defeat its enforcement, claiming border security was federal turfdom – which DHS and DOJ continued to ignore.

When Napolitano was the governor of Arizona she vetoed seven bills intended to fight illegal immigration. As DHS Secretary, she fought the border fence. “Show me a 50-foot fence,” she was known to say, “and I’ll show you a 51-foot ladder.” The CBO reported that millions of undocumented Democrats will enter the country over the next decade if something isn’t done. The immigration bill being haggled over in Congress at the present would give the Secretary of Homeland Security sweeping discretion in how to implement it – including waiving sections of the law. The Gang of Eight wasn’t anxious to put that power in Napolitano’s hands. They are glad to see her gone.

Einstein once said that the main difference between intelligence and stupidity was that intelligence had limits. When Farouk Abdulmutallab’s underwear exploded on a Christmas Day flight in 2009, Napolitano pushed the limits of sheer stupidity in her public statement. “The system worked,” she claimed when reporters asked our principal protector of homeland security how this kid boarded a US-bound plane armed for an act of pubic terror. Abdulmutallab was on a terrorist watch list, being a known protégée of Anwar al-Awlaki. His father had warned US officials in Nigeria of his son’s radicalization. The kid bought a one-way ticket with cash and carried no luggage. The system worked?

The greatest invasion of personal privacy occurred on Napolitano’s watch. The intimate pat-downs, genital touching, creepy examinations of screaming children, women forced to drink their breast milk to prove it harmless, brainless examinations of breast cancer reconstructions, passengers forced to get out of their wheelchairs to show they weren’t faking, treating grey-haired grannies as potential terrorists, naked x-ray screening – all of this was Napolitano’s meat axe mentality in administering airline security.  She succeeded more in reducing airline travel.

Lawsuits dogged Napolitano’s incompetence. Her cronyism in placing personal friends in key agency positions was commonplace. One suit alleged discrimination against male employees who were passed over to promote less qualified female staff. Another suit involved Suzanne Barr, a woman who worked for Napolitano as her gubernatorial aide. Napolitano brought her to Washington and Barr managed to get her boss sued for sexual harassment. Affidavits stated that Barr, the chief of staff, cultivated a “frat house” working environment and on one occasion told a male staffer “you are a sexy (expletive)” before asking about the dimensions of his genitals. Lewd messages were sent on agency Blackberries and heavy drinking while on official business took on the nature of a Roman bacchanal. When a complaint was filed with the EEOC, Napolitano initiated investigations against the whistleblower. Barr got away with misconduct for three years before she was forced to resign.

Not surprisingly, Napolitano’s Secret Service agents were involved in well-publicized scandal last August when they “entertained” prostitutes in the rooms in a Cartagena, Columbia hotel prior to Obama's arrival for the Summit of the Americas. Prostitution is not illegal in Columbia and consorting with them is not specifically prohibited in Secret Service regulations. The incident was discovered before Obama’s arrival and the 12 agents involved were ordered back to Washington and put on unpaid leave. The investigation of a special inspector general was restricted by Napolitano who refused to let him travel to Cartagena for interviews. Moreover, at least one White House employee involved in the romp, the son of a powerful lobbyist, was protected. An investigating agent revealed this in his report and refused to redact it when ordered. Napolitano put him on administrative leave and refused to respond to inquiries about it from Senator Ron Johnson (R-WI) – another indication of the agency culture Napolitano permitted.

Ah, and then there are the sequestration cuts which Obama seems to have ordered his cabinet secretaries to make as painful as possible. Obama painted the bleakest of consequences, you’ll recall, including the early release of illegal detainees. Before the cuts even went into effect, however, Napolitano began releasing detainees from immigration jails. She and the Immigration and Customs Enforcement said only a few hundred had been freed. In fact an Associated Press report exposed an internal document stating that about 2,000 had been released for “budget reasons.” Napolitano disputed the AP report, calling it “not really accurate.” Unfortunately for her, a House oversight committee called ICE Director John Morton into a hearing and under oath he revealed that 2,228 people had been released.

Senator Jeff Sessions (R-AL) hit the nail on the head when he recently said, "Secretary Napolitano's tenure at the Department of Homeland Security was defined by a consistent disrespect for the rule of law."

Janet Napolitano is a partisan hack who is unqualified by experience, intellect, ethics, and judgment to serve as the leader of the university system of the largest state in the country. That the university system would even consider her calls the judgment of the Board of Regents into question. Perhaps the regents and Napolitano deserve each other. I predict their relationship will not last long. California may be the Left Coast, but academics are a weird lot and they don’t suffer fools gladly. Even qualified university leaders have ripped their pants on a faculty. Ask Larry Summers.

I for one am glad to get her off the Homeland Security payroll. She can and has done real damage there. Her record on terrorism has been abysmal – the Boston bombings killed three and injured 264. Abdulmutallab almost succeeded in doing more damage than turning himself into a eunuch. The Times Square car bomber made it all the way to a departing airplane seat before he was captured. Napolitano called that incident a “one-off” which showed how clueless she is in performing security work. All terror attacks are “one-offs.”

The timing of her resignation is odd, however. Cabinet level members of an administration leave after the president’s first term, even if they don’t have an immediate job to move into. The fact that she waited six months into a new term can’t be explained by a sudden opportunity coming up. Napolitano and the California search committee would have been discussing this opening for months. And even if that were not the case, she would not have been a less viable a candidate for the position if unemployed.

No, my guess is that something is about to hit the DHS fan that will be the largest scandal to date. One involving her directly.

Stay tuned.

Obama’s New Data Hub

And we thought things couldn’t get worse after the cover on the IRS abuses was blown and the scope of NSA snooping on Americans was revealed. As details about the ObamaCare data hub leak out, our constitutional Fourth Amendment protection is fading faster than a post-election promise.

This is what happens when 2,700-page bills are passed that none of the elected officials have the time or interest to read before voting on it. Since no Republican in either house voted for ObamaCare, I’m talking about Democrats, of course, whose air-headed leader in the House of Representatives famously said, “… we have to pass the [healthcare] bill so that you can find out what’s in it....”

Well, we’re finding what’s in it.

The fulcrum of ObamaCare is its 50 insurance exchanges – one in each state. Among other functions, the exchanges collect data and information required to administer ObamaCare. The agency that enforces compliance is the IRS, renowned for its citizen abuse skills. The Chief Knee-cracker for ObamaCare enforcement is Sarah Hall Ingram, who was in charge of the IRS office at the center of the Tea Party targeting scandal and gave her the experience for this assignment. If Sarah Hall Ingram were Thelma, Louise would be Kathleen Sebelius, the Secretary of Health and Human Services, who was given absolute control in the law to implement the aim of ObamaCare by whatever means she chose.

The means she chose include the ObamaCare data hub – the Mother of All Databases – a technology achievement never before attempted on this scale.

The data hub will connect (hold on to your britches) the HHS (entitlement qualification and medical records) with the Social Security Administration (your unique identifier number), the IRS (your income, and employment status), the Department of Homeland Security, (your citizenship and international travel information), Department of Justice (your criminal history), the Veterans Administration (military service information), Office of Personnel Management (information on government employees), the Department of Defense (unit and deployment history), and the Peace Corps (domestic and foreign service assignments.) Plus the hub will tap into state databases to confirm residency and Medicaid criteria. Everyone will be required by law or regulation to report changes in marital status, changes in income, hours worked, changes in employer, moves to a new state, a change in insurance plans, and changes in your criminal history. You can see a schematic here of Obama’s tentacular intrusiveness which his data hub represents.

Think of the hub as a busy four-way intersection through which all traffic must flow to get anywhere and a record is kept of everyone and everything that passes through it.

In a column in USA Today, University of Minnesota professor and Manhattan Institute scholar Stephen T. Parente said “The federal government is planning to quietly enact what could be the largest consolidation of personal data in the history of the republic … when the constantly updated information is combined in a central data hub, the potential for abuse is staggering.”

Edward Snowden showed us how much confidence we should have in the federal government’s ability to keep confidential information confidential. Last year a hacker accessed 3.6 million data base records in South Carolina with Social Security numbers and bank account data. 

A recent Government Accountability Office audit said weaknesses in IRS security systems "continue to jeopardize the confidentiality, integrity, and availability of the financial and sensitive taxpayer information." Another audit discovered that the IRS unintentionally exposed confidential information on thousands of taxpayers in 2009 and 2010. The next year the Social Security Administration did the same thing on a larger scale.

But what do you expect from a government that can’t competently run a postal service or Amtrak profitably? The consolidation of all this data will make it the most attractive hacker target in the world. If the feds can’t prevent inadvertent data releases from independent agency servers, does anyone really believe they can safeguard this data base?

Willie Sutton said the reason he robbed banks was because that was where the money was kept. A hub/database like the one Obama and Sebelius are creating is like Willie Sutton’s banks. Why would thieves look anywhere other than the ObamaCare data hub to steal identities, commit credit fraud, or know if you have assets worth stealing. With only one place to look and a “winner take all” payoff, thieves may team up and work together. Computer hacking technology should become a growth industry.

After failing to master the expertise to run the postal service and a railroad, the government is now going to reform healthcare, bring down costs, and collect a ton of information in the process. Assuming the data could be kept safe from thieves – which I wouldn’t assume for a heartbeat – what’s to keep it from being abused by the government?

Us??? Not us? (wink, wink.) “Mr. Throckmorton, I see from our computer records that you’ve voted Republican in the last seven elections. Our experts have denied your life-saving operation at this time. Please check back with us after the next election.” (Of course, it cuts both ways. The Republicans will regain the White House at some point and may also have control of both houses of Congress.)

Memo to those who believe abuse won’t happen: Did you read about Sebelius soliciting “contributions” from the industry she regulates … money which would be turned over to ObamaCare supporters to drum up support for the unpopular law and encourage people to participate in the exchanges? Do you remember the Obama and Sebelius goons inviting citizens to report their fellow citizens who hated ObamaCare? “If you get an email or see something on the Web about health insurance reform that seems fishy, send it to flag@whitehouse.gov,” they urged. Only ideologues who deny First Amendment protection would call for citizens to do such a thing.

In combination with data collected by NSA spying what would not be known about American lives?

Not to worry, says the Obama administration. “The hub will not store consumer information, but will securely transmit data between state and federal systems to verify consumer application information,” or so it claims in an online fact sheet. The Center for Consumer Information & Insurance Oversight at the Centers for Medicare & Medicaid Services says hey, no sweat. The information we collect will not be stored, and privacy is the “highest priority.”

But a regulatory notice that Obama’s boys and girls filed early this year tells a different story.

That filing describes a new "system of records" that will store names, birth dates, Social Security numbers, taxpayer status, gender, ethnicity, email addresses, telephone numbers on the millions of people expected to apply for coverage at the ObamaCare exchanges, as well as "tax return information from the IRS, income information from the Social Security Administration, and financial information from other third-party sources." Data from businesses that buy insurance on an exchange, including a "list of qualified employees and their tax ID numbers," will be kept on file for 10 years. That’s a lot of information not to collect and not store.

Check out the online filing certificate and you’ll see the federal government can disclose any information it collects "without the consent of the individual" to almost anyone – "agency contractors, consultants, or grantees" who "need to have access to the records" to help run ObamaCare, as well as law enforcement officials to "investigate potential fraud." Who did they leave out?

Republican lawmakers have asked Kathleen Sebelius how HHS and other sources of data will protect sensitive information but she hasn’t gotten back to them with an answer. She’s really busy, you know.

I’ve often said the worst idea that government ever conceived was the central sewage system. When property owners had to get rid of their waste relying on a septic tank the size of an automobile, waste disposal was a manageable problem. When some bright guy said, “Hey, let’s consolidate all of this into a central sewage system,” you now had a big disposal mess – preprocessing, sedimentation ponds, effluent disposal, and on, and on – all caused by consolidation.

One thing leads to another in most things. In order for ObamaCare to function it requires an invasion of privacy on a grand scale that would not be needed if there were no ObamaCare. The data hub became necessary to enable agency computers to “talk” to each other – something that’s never been attempted. Collecting the data puts it at risk for exposure, if not theft. Storing the data makes it attractive to every hacker in the galaxy.  None of this would have been necessary without ObamaCare. All of this is headed toward a disaster. Even the author of ObamaCare, Max Baucus (D-MT) says it’s a train wreck waiting to happen. And when it happens, it will be like the walls on a sewage retention pond collapsing and data will run everywhere.

Representative Diane Black (R-TN), a member of the House Oversight Committee complained that ObamaCare isn’t close to being at a point that allows it to be implemented. She is the author of H.R. 2022, Stopping Government Abuse of Taxpayer Information Act, which halts the implementation of ObamaCare until all government agencies with access to the Federal Data Services Hub certify under penalty of perjury that taxpayer information will not be used to target individuals based on their beliefs.

Black’s bill might get out of committee. It might even be brought to the floor of the House for a full vote. But it has no chance in the Senate. If it did, Obama wouldn’t sign it. Her effort is symbolic and isn’t likely to draw a lot of attention.

Max Baucus paid for his perfidy by leaving the Senate. He’s in a tough race in Montana and his authorship of ObamaCare has cost him with voters.

Last week, Obama announced the delay of the ObamaCare mandate until 2015. In one sense, this was an admission that the vast apparatus needed wasn’t in place – which was helped when 30 Republican governors refused to set up exchanges This has set the stage for legal challenges regarding what Obama can do to create the exchanges and disburse subsidies.

In a larger sense, Obama made a shrewd political move. With the 2014 mid-year elections heating up, the last thing the Democrats want is for voters to experience what was in store for them had ObamaCare been allowed to proceed during an election year. They hope there is an outside chance Democrats could win back the House, giving Obama free rein to run amok the last two years of his administration. It’s more likely that the Republicans will retain the House and an outside chance of taking the Senate. Even gaining seats would slow down Harry Reid’s Senate agenda.

The execution is delayed, not pardoned. Those full time employees whose hours would have been cut to avoid ObamaCare – about 3.2 million – get a reprieve. Good news for fast food and theater employees. Small companies that would have been forced into layoffs to escape the 50-employee cutoff for ObamaCare compliance can delay for a year. ObamaCare would have hurt the economic recovery. Now that’s it’s delayed, the economy may improve and Obama can beat his breast and crow that his policies are working.

So far, it seems like Obama wins by delaying implementation. But unless Republicans are catatonic, which I often think they are, they might want to insist that the law move forward – unless, of course, they want to cede both the executive and legislative functions to the White House and go home. The law, which John Roberts so cleverly kept resuscitating, states that the employer mandate penalties under IRC Section 4980H “shall apply to months beginning after December 31, 2013.” Unless that’s repealed, it must be enforced.

Last time I checked, the President can’t repeal laws, and he can’t enforce the ones he likes and delay others if that serves his needs.

The Last Full Measure: 150 Years Later

One hundred and fifty years ago this past week a battle was fought in the Pennsylvania market town of Gettysburg that would become a seminal event within the seminal event of the 19th century – the American Civil War.

The battle was fought on July 1, 2, and 3 when elements of the Confederate and Union armies collided near the village as they were actively looking for each other. Lee had taken his army north for the second time because he couldn’t supply an army confined in a static defensive mode in Northern Virginia. Although his first foray into the north had led to a disastrous battle near Antietam Creek that cost Lee a quarter of his army, he hoped to smash the Union Army on this try. Lincoln, pressed hard by a growing number who were growing tired of the war’s toll, would have to sue for peace if Lee succeeded.

I’ve blogged about the Gettysburg battle in a previous post, most particularly the fighting on July 3, 1863 whose highlight was the infamous “Pickett’s Charge.” The details of the three-day battle are in that blog for all who care to read it.

For all its violence, something about this battle, among all others fought during the war, is mesmerizing. I have been everywhere on the Gettysburg battlefield many times – first as a child with my parents and several times afterward during my college years. As an infant I was scheduled to ride with my great-great-grandfather at Gettysburg in the last reunion of Civil War vets, although he had fought exclusively with General Forrest in Tennessee, Mississippi, and Alabama and was never under Lee’s command. But “Grandpa” Doggett fell ill, missed the reunion, and died the following year.

Twenty-five years have now passed since my last visit when my wife and I spent a full day on the battlefield during the week before the 125th anniversary of the battle. We practically had the park to ourselves as if it had been reserved for a private showing. I “rented” one of the battlefield historians to join us in our car for a tour of the park because I wanted someone with me who knew more than I about what had happened there during those three awful days in July 125 years previously.

The contemporaries of the battle did not intend its story to be lost to the ages. A third of all photographs taken during the war were taken at Gettysburg. Fourteen hundred monuments dot the battlefield landscape to mark where Victorian era men struggled with a bravery that was characteristic of their time to accomplish a purpose that none really understood. History has been kind to some and harsh to others who fought there. Joshua Lawrence Chamberlain, a Professor of Rhetoric and Languages and classmate of Harriett Beecher Stowe, is among those favorably treated by history. With no military training, he commanded the 20th Maine Regiment at Gettysburg and is credited with holding his position on Little Round Top against the fearsome Oates Alabama Regiment. For this feat he was awarded one of the 62 Medals of Honor – a recognition initially created for Gettysburg heroes. Chamberlain would rise from Lt. Colonel to General by war’s end and later become governor of Maine, helped in no small measure by his considerable self-promotion.

One treated harshly by history is Confederate General James Longstreet, who must be counted among the few truly intuitive commanders on either side of the war. Longstreet’s instinct for a battlefield equaled if not exceeded Lee’s, and he and Stonewall Jackson were considered Lee’s ablest lieutenants. Longstreet, however, made the “mistake” of telling Lee that the Union fortress at Gettysburg was unassailable and counseled his commander to move the Confederate Army eastward to get between Washington City and the Meade’s forces. That would compel Meade to abandon the hill fortifications and give Lee the defensive battle he originally sought. Instead, Lee’s answer was Pickett’s disastrous assault against the middle of the Union line, costing Pickett 7,500 men – half of his assault force.

Longstreet was born on a cotton plantation near modern-day Gainesville, Georgia, 40 miles north of Atlanta, although it was then part of South Carolina. He was not, therefore, part of the Virginia aristocracy that peppered the command ranks of the Confederate Army. Joining the Republican Party and serving in the Grant administration after the war contributed to his fall from grace among history’s “Lost Cause” revisionists (mostly Virginians) who charged him with culpable disobedience at Gettysburg and a main factor in the South’s loss of the war.

The Battle of Gettysburg has been labeled the turning point of the war. It was not. Vicksburg fell the day after the battle at Gettysburg ended, giving a rising reputation to its Union victor, General U.S. Grant. Grant would ultimately be called east to face Lee, replacing Meade and solving once and for all Lincoln’s search for a general who would fight.

General William Tecumseh Sherman, who at one time had been Grant’s superior and became his chief lieutenant in the Vicksburg campaign, would take over the Union command in Tennessee where he faced General Braxton Bragg, one of the most incompetent Confederate commanders in the war. In the aftermath of the Confederate victory at Chickamauga, General Nathan Bedford Forrest became so infuriated with Bragg – his boss – and the failure to follow up the enemy escaping toward Chattanooga that he threatened Bragg with death if he ever crossed Forrest’s path again. Jefferson Davis wisely sent Forrest as far away from Chattanooga as possible, where Forrest gave the Union Army as much grief as possible in Mississippi until the end of the war.

The Vicksburg victory released Grant to fight Lee and released Sherman against Bragg, which ultimately led to the fall of Chattanooga, Atlanta, and the March to the Sea – the “war is hell” scorched earth campaign that collapsed resistance in the Deep South. So we see Vicksburg as pivotal as Gettysburg in determining the South’s fate in the war.

It’s true that Lee’s loss of a third of his fighting force in Gettysburg forced him back to Virginia where a shortage of men and supplies would never again allow more aggressive campaigning than defense. But Lee gave as good as he got for the next 22 months in the battles of the Wilderness, Spotsylvania, and Cold Harbor until he was finally cornered near Appomattox, Virginia in April 1865.

One thing leads to another in life and war, filling both with “what ifs” and “if onlys.” Gettysburg was “a” turning point but not “the” turning point of the war. If the Greeks had lost the battles of Marathon or Salamis to the Persians five centuries before the birth of Christ, the west would be speaking Farsi today instead of their native western languages. If the US Navy had lost the Battle of Midway in June 1942, Americans would likely be speaking Japanese today. It’s unlikely that the US Navy and Marines could have won the decisive Guadalcanal Campaign and their first offensive battle, which started the march toward the Japanese home islands and victory.

The combined Gettysburg losses in killed, wounded, and missing for both sides were about 50,000. Civilians were left to care for the wounded and dying and clean up the carnage left behind. Some wrote a record of what they saw:

… And then, these scenes themselves, who can adequately describe them? Houses demolished, fences destroyed, tall forest trees mowed down like so many stalks of hemp; artillery wagons crushed, broken muskets scattered in every direction, unused cartridges in immense numbers, balls of all kinds, ramrods and bayonets, bits of clothing, belts, gloves, knapsacks, letters in great quantities all lying promiscuously on the field; dead horses in great numbers, some torn almost asunder by cannon balls, some pierced in the side by grape shot, and others with their legs completely shot away; some noble chargers apparently kneeling in death, their necks, crested with flowing manes, gracefully arched, as if still proud of the riders on their backs.

And then many of the human dead, whose mutilated bodies, still unburied, were lying around in all positions. Some with their hands gently folded over on their breasts, others reclining gracefully on their elbows, and others still leaning against trees, stumps or stones, as if wrapped in the arms of sleep, and given over to sweet dreams.

Although given temporary burial after the battle, a permanent cemetery was conceived and constructed as the final resting place for those who died at Gettysburg. Lincoln was invited to make “appropriate remarks” to dedicate the cemetery, not the battlefield as commonly understood. Lincoln was not the keynote speaker for the dedication service, however. Edward Everett, a noted orator of the day, had been chosen for that task. And orate he did – for two hours, for almost 14,000 words.

When he had finished his speech, the ceremony passed to Lincoln, who in less than three minutes and 280 words delivered what has come to be known as the Gettysburg Address:

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But in a larger sense, we cannot dedicate – we cannot consecrate – we cannot hallow – this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember, what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us – that from these honored dead we may take increased devotion to that cause for which they gave the last full measure of devotion – that we here highly resolve that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.

To understand what Lincoln really meant that November day in 1863, his words must be studied. They can’t simply be read. I will not parse its phrases. Indeed, Garry Wills has done a wonderful job of that in his 1992 book Lincoln at Gettysburg: The Words that Remade America.

From the very first paragraph, however, Lincoln performs what Wills calls “one of the most daring acts of open-air sleight of hand ever witnessed by the unsuspecting. Everyone in that vast throng of thousands was having his or her intellectual pocket picked.” The concept of the Union of which Lincoln spoke and the one held by the audience was as different as night and day.

If you count back 87 years from 1863, you come to 1776 – the year of the Declaration of Independence. Our fathers did not bring forth a new nation in 1776. They declared independent colonies to be free of British rule – and no more. There was no nation. There were no states. While Rhode Island was the last colony to ratify the Constitution in 1790 and the Bill of Rights was ratified the next year, did a new nation exist at that point? Of course not. As I’ve said many times, the Founders were deeply suspicious of a central government and for a long time refused to support it financially. A representative to the Constitutional Convention or the colonial ratification conventions thought of himself as a Virginia man or a New Hampshire man. No one thought of themselves as an American. Their new Constitution “united” the states in name only.

That the American Civil War was fought to abolish slavery is part of the mythology fobbed today as historical fact. At its core, the war was a clash of two economic systems, one a people-intensive agrarian society and the other a capital-intensive industrial society. There were slaveholders on both sides of this conflict. Four Northern states that didn’t secede from the Union were slave states. Many in the Union officer corps owned slaves or were sympathetic to its institution.

Lincoln’s views on slavery were themselves ambiguous. In 1858 he said, "I confess myself as belonging to that class in the country who contemplate slavery as a moral, social, and political evil ... and look hopefully to the time when as a wrong it may come to an end." Yet the next year he told a Cincinnati audience, “I now assure you, that I neither ... had, nor have, nor ever had, any purpose in any way of interfering with the institution...[of slavery]." Once the war was underway, he told newspaper publisher Horace Greeley, "My paramount object in this struggle is to save the Union, and is not either to save or destroy slavery." His Emancipation Proclamation was not universal. It was directed only to the slaves in the states in rebellion

And there you have it. The subtext of Lincoln’s Gettysburg address was his concept of what union meant. Slavery was not mentioned or inferred. Lincoln believed the United States was an indivisible union that could not be broken by secession. In contrast few, if any, of people in the North or South held that view in 1860. Their views had changed little from those of the Founders regarding the power of central government and the meaning of union.

At the beginning of the war the federal government was small and marginally significant. Lincoln saw a more powerful role for the federal government. Where Lincoln saw absolute indivisibility, the people saw a loose confederation of states. When Lee was offered command of the Union Army, he refused it. Lee saw himself as a Virginia man. His state came first; the Union second. Longstreet was later impugned by the Virginia revisionists because he was not a Virginia man. State loyalties ran strong in the near-century before the war.

There was no small concern in the debates leading up to the final eruption at Ft. Sumter that the sovereignty of southern states could be threatened by an overreaching central government. If Congress exceeded the powers enumerated to it on the slavery issue, what would prevent Congress or the President from consolidating even more power from the states?

And in fact, with the fall of Ft. Sumter, Lincoln blockaded Southern ports – an act of war taken without congressional consent. Lincoln raised an army for a three-year enlistment when the Constitution says only Congress can raise an army. Lincoln suspended habeas corpus, declared martial law, arrested civilians for trial by illegal military tribunals, locked up 13 of Maryland’s legislators without trial to prevent their state’s secession, and essentially used the war as an excuse to consolidate presidential power and expand the influence of the federal government.

When Chief Justice Taney protested that Lincoln was going beyond the Constitution in the exercise of federal power, Lincoln ignored him. The Court has no way to enforce itself, relying on the Executive branch to enforce the Court or abide by its rulings. Nixon almost created a constitutional crisis by ignoring a court order to turn over the White House tapes in the Watergate scandal. He waited six days before he compiled. What if he hadn’t?

We’ve recently seen Proposition 8 – the will of the citizens of California to modify their Constitution through a lawful vote – overturned because their Governor and Attorney General refused to defend it against challenges that ultimately were appealed to the Supreme Court. Both the Governor and Attorney General had sworn to uphold the state’s Constitution of which Proposition 8 was a part. What happens when the political leaders of a state refuse to fulfill their responsibilities?

By ignoring Judge Taney, Lincoln was jeopardizing the balance of powers and the federal systems of checks and balances. That was a dangerous precedent.

The Civil War ended with more power invested in the federal government than ever before in the history of the Republic. Lincoln had said he would relinquish it when the war was ended. He didn’t live long enough at war’s end to prove true to his word, but his successor, Andrew Johnson, disassembled the wartime power structure. The Presidents who followed have reconsolidated it.

Today the American people are as divided as they were on the eve of the Civil War. But instead of a president who was fundamentally a uniter in 1860, we have one in 2008 who is fundamentally a divider. His respect for the Constitution is cavalier and his willful attempts to by-pass Congress in governing is standard operating procedure. The vast regulatory machinery he has created is replacing elective government. A bill no longer must run the political gauntlet to become law. It’s simply created by an unelected bureaucrat in the form of a regulation that becomes as binding as any law.

What has been happening in presidential power over the last 75 years should concern us all. In a letter to Bishop Mandell Creighton in 1887, Lord Acton expressed a warning about the tendency of power to consolidate – ultimately in the hands of one person. It happened in the Roman republic. It is happening in the American republic.

Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.