Some Good Samaritans wanted to clean up some trash in a neighborhood near me in Northern Virginia, and they ran into a brick wall of bureaucracy. I happened to notice this write-up on a neighborhood blog.

If you aren’t convinced yet that there is too much government bureaucracy in America, then this article is well worth reading. Here are some highlights:

Kay Cooper and Nancy Vorona, residents of Lake Barcroft, would like to see the Seven Corners area cleaned up.

…Government officials agree the area needs to be cleaned up. Yet nothing is being done. Cooper is beyond frustrated at the lack of action. “We spent hours on this and got nowhere,” she said. “It’s been like pulling teeth to get any information from anybody. It’s like they don’t really want to help us.”

Nearly a year ago Cooper and Vorona, in a spirit of neighborhood activism, started organizing a community-wide cleanup to occur on June 23, focusing on Leesburg Pike… They knew they needed approval from [the Virginia Department of Transportation] VDOT, but didn’t think that would be an insurmountable problem. Boy, were they wrong.

A member of Mason Supervisor Penny Gross’s staff helped Cooper and Vorona file the paperwork, Mason District Police officers agreed to lend their support, and they began rounding up volunteers. But then William Dunlap of VDOT told them in May that the road use authorization form they had submitted was the wrong form. According to Dunlap, they had to submit four separate land use permit forms, including an application, work zone certification, note of permittee liability, and erosion and sediment control contractor certification.

They were also told they needed to purchase $1 million worth of liability insurance, hire a private contractor to provide security support, and set up “changeable message signs” two weeks in advance to warn the public about the clean-up event. Dunlap also told them VDOT preferred having the event scheduled on a weekday, even though that would make it more difficult to recruit volunteers.

Dunlap also told Cooper that local police, and not VDOT, are responsible for removing illegal signs, even if the signs are in the VDOT right of way. Meanwhile the Fairfax County Police Department said they’re not authorized to remove signs in the VDOT right of way.

The whole article is here.

Today, in an important decision with far-reaching implications, the D.C. Circuit Court of Appeals ruled unconstitutional President Obama’s appointment of three members to the National Labor Relations Board.

Slightly over a year ago, on January 4, 2012, President Obama appointed four people to high-level offices without the constitutionally required “advice and consent” of the Senate. Three of those appointees were placed on the NLRB, and the other was Richard Cordray, chosen to direct the Consumer Finance Protection Bureau, the “consumer watchdog” agency created by Dodd-Frank.

The appointments were one of the most significant power grabs by a president in recent memory. The Constitution requires that certain “officers of the United States,” a category which indisputably includes NLRB board members and the director of the CFPB, be appointed by the president with the “advice and consent of the Senate.” Like many constitutional provisions, this is a “checks and balances” requirement that helps ensure the president does not unilaterally control the executive branch for his own purposes.

As a precaution against crucial offices staying vacant while the Senate is not in session, the Framers included a clause that allows the president to temporarily circumvent the “advice and consent” requirement in order “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” At the time of the framing, as well as for many decades afterward, senators would usually spend six to nine months out of Washington. In those absences, it was left to the president to keep the government going, and the Recess Appointment Clause gives the president the power to make temporary appointments during those long periods when the Senate was simply unavailable.

Unfortunately, like so many constitutional provisions, the last 80 years have seen a gradual, bipartisan effort to whittle away the Recess Appointment Clause’s function and to concentrate more power in the president. Initially, presidents began redefining what a “recess” is by asserting the power to appoint officers during “intrasession recesses”—that is, breaks within a formal session (e.g., holiday breaks)—rather than just during intersession recesses. After this precedent had been established by President Warren Harding, successive presidents began appointing officials during shorter and shorter intrasession recesses. President Clinton made a controversial appointment during a 10-day intrasession recess, and President George W. Bush followed suit.

In 2007, after Bush’s controversial appointments, the Senate, led by Harry Reid, began holding “pro forma” sessions in order to block future appointments. Usually held every three days during intrasession recesses, pro forma sessions are often less than a minute long and held in a largely empty Senate chamber. Yet the sessions satisfy the constitutional definition of being “in session” and are often used by the Senate and House to satisfy the constitutional requirement that either chamber cannot adjourn for more than three days without the consent of the other.

Whereas previous presidents only had the gall to assert the power to determine what a recess was, President Obama’s innovation in executive power grabs was to assert the power to determine whether or not a pro forma session is actually a session for the purposes of the Recess Appointment Clause. According to the Office of Legal Council, the president has the “discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess Appointments.”

The OLC’s argument “will not do,” wrote Chief Judge David Sentelle in a stirring and chiding opinion rooted in constitutional originalism. He continued:

An interpretation of “the Recess” that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.

As for whether or not the Senate’s intentions for holding pro forma sessions permit the president to determine whether the Senate is actually in session, Judge Sentelle writes:

The Senate’s desires do not determine the Constitution’s meaning. The Constitution’s separation of powers features, of which the Appointments Clause is one, do not simply protect one branch from another. These structural provisions serve to protect the people, for it is ultimately the people’s rights that suffer when one branch encroaches on another. As Madison explained in Federalist No. 51, the division of power between the branches forms part of the “security [that] arises to the rights of the people.”

After appointing Cordray and the NLRB board members, President Obama said he “refused to take no for an answer,” and that he would “not stand by while a minority in the Senate puts party ideology ahead of the people they were elected to serve.” The President’s attorneys made a similar argument, claiming that the Senate was standing in the way of his duties as president. Sentelle’s response:

It bears emphasis that “[c]onvenience and efficiency are not the primary objectives—or the hallmarks—of democratic government.” … The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.

The decision is an important step to reining in a long line of presidential abuses. If the court had upheld the appointments, Obama unquestionably would not have been the last to use this power. Moreover, the reasoning of the decision should directly apply to Richard Cordray of the constitutionally problematic CFPB. His days are numbered if the Supreme Court either upholds the decision or does not take the case.

The nonsensical sentiment expressed in this post’s title seems to be the guiding belief among people in the United States and United Kingdom currently concerned that eating imported quinoa is harmful to the Bolivian farmers who grow it.

For the uninitiated, quinoa is a grain-like plant that grows only in the Andes Mountains and is possibly the most nutritious food on the planet. In recent years, health food enthusiasts in the United States and Europe have developed an affinity for the exotic import. The result has been a sharp rise in the food’s global price and a concurrent increase in production in Bolivia and Peru.

If you’re like me, you probably think this is a terrific outcome for the Bolivians, who can now sell their crop for three times what they could just five years ago. Major media outlets disagree. The New York Times ran a piece titled “Quinoa’s Global Success Creates Quandary at Home” that warns, “The surge has helped raise farmers’ incomes here in one of the hemisphere’s poorest countries. But there has been a notable trade-off: Fewer Bolivians can now afford it, hastening their embrace of cheaper, processed foods and raising fears of malnutrition in a country that has long struggled with it.”

The UK Guardian ran an article last week airing similar concerns and also published a commentary titled, “Can Vegans Stomach the Unpalatable Truth about Quinoa?” The commentary’s author laments that “the quinoa trade is yet another troubling example of a damaging north-south exchange, with well-intentioned health and ethics-led consumers here unwittingly driving poverty there.”

This is all par for the course in the interminable fair-trade, ethical-consumption conundrum in which the desire among affluent American consumers for things is pitted against their concern that production, commerce, and consumption breed injustice. While part of me finds this hand-wringing amusing, I can’t help but worry about the bigotry implied in the notion that poor foreigners will starve if they are allowed to sell food for money. 

I came across a blog post recently by Stefan Jeremiah and Michael Wilcox, two photographers currently in Bolivia making a documentary. They do a really great job of putting the quinoa controversy in its place. After National Public Radio ran a story in November worrying about overpriced food for poor Bolivians and considering the possibility of growing quinoa in the United States, Jeremiah and Wilcox wrote this in response:

The overwhelming evidence suggests that as demand for quinoa increases, Bolivians growing quinoa is providing a viable way of working themselves out of poverty. Perpetuating these myths and half truths only serves to damage a growing economy and undermine hard working farmers’ efforts to lift themselves out of poverty in an honest and sincere endeavor.

What are your motives behind this article (and the others you reference)? It appears that you’d rather Americans didn’t buy from Bolivians and are making a concerted effort to turn Americans away from eating Bolivian quinoa. Convincing Americans that somehow boycotting Bolivian quinoa and taking away the bulk of international demand will do the farmers more good is unacceptable.

Is the American Dream restricted only for Americans of the United States? Is it that ambition, hard work, enterprise, blood, sweat and toil is only reserved for the people of your choosing? Is it because seeing farmers in the Developing World actually succeeding doesn’t fit with your own expectation of misery and starvation? Would you prefer the humble Bolivian quinoa farmer to stay poor and remain in his place?

[We] charge you that all these things are the rights of all the peoples of the Americas across both continents, North and South…if not the World.

HT: Courtney Patridge

Some of the U.S. Supreme Court’s most significant decisions are those declining to hear a case. Two weeks ago, the Court made such a momentous non-ruling in refusing to hear a lawsuit, Hall v. Sebelius, challenging government policies that deny otherwise eligible retirees their Social Security benefits if they choose not to enroll in Medicare. (I previously wrote about the case, and Cato filed a brief supporting the retirees’ petition for Supreme Court review.)

Despite having paid thousands of dollars each in Social Security and Medicare taxes during their working lives—for which they never sought reimbursement—the five plaintiffs were told by officials at the Social Security Administration and Department of Health and Human Services that they had to forfeit all of their Social Security benefits if they wished to withdraw from (or not enroll in) Medicare. This determination resulted from internal policies that were put in place during the Clinton administration and strengthened by the Bush administration. The plaintiffs sought a judicial ruling that would prohibit SSA and HHS from enforcing these policies, which they believed conflicted with the Social Security and Medicare statutes. A sharply divided U.S Court of Appeals for the D.C. Circuit eventually upheld them. By its decision not to hear the case, the Supreme Court let that controversial ruling stand.

At this point, one might ask why someone would want to give up Medicare. The answer is that some people would prefer to keep their existing (private) health insurance, but that for various regulatory and economic reasons insurance companies are wary of insuring people already covered by Medicare. Talk about the prototypical case of government programs crowding out the private sector!

In any event, the troubling reality of the Supreme Court’s non-ruling is twofold: First, the government now has full authority to force citizens to participate in a financially troubled program (Medicare) that was originally intended to be—and operated for almost three decades as—a wholly voluntary program. If they refuse, SSA and HHS can deny them their Social Security benefits. If they seek to withdraw from Medicare, SSA and HHS can not only deny them future benefits, but force them to repay all benefits received from both programs. Second, the Supreme Court’s unwillingness to address the issue raised here allows federal agencies to bypass Congress with impunity when drafting and implementing their own rules.

The plaintiffs’ lawyer, Kent Masterson Brown, had this to say in a press release following the Supreme Court’s order:

Not only have the Courts allowed these agencies to grant themselves permission to seize a retiree’s Social Security benefits should they opt out of Medicare, but they have allowed those agencies to turn voluntary programs into compulsory ones, giving Seniors no choice whatsoever but to accept the ever more limited health care offered by Medicare. The plaintiffs cannot pay for their own health care—and save the Government and taxpayers money—without forfeiting all of their Social Security benefits. There is nothing in the Social Security statutes that says a retired individual who chooses not to apply for Medicare coverage will be stripped of his or her Social Security benefits.

Martha de Forest, executive director of a group that supported the lawsuit, the Fund for Personal Liberty, also had a response:

Why would the government tie two programs together when they have different payment mechanisms and different start dates? It is about control, nothing more. That is why the government forces retirees to participate in Medicare as a condition of receiving Social Security Retirement benefits.

At base, it’s axiomatic that administrative agencies have no powers not granted to them by Congress and that regulations must be anchored in their operative statute. The rules challenged here failed this standard. Combined with the fiscal irresponsibility of forcing citizens to accept costly benefits during hard economic times, the SSA and HHS rules are an arbitrary power grab. Agency overreach imperils the separation of powers and therefore liberty.

Now that the Supreme Court has failed to counter this unauthorized expansion of federal power, it’s time for Congress to do so by legislation—as Quin Hillyer suggests in his commentary on the case. Richard Epstein has further thoughts on how Hall v. Sebelius illustrates the untrammeled growth of the administrative state.

The welfare state creates some amazing individuals:

• We’ve had the spectacle of “Diaper Man” and “Footless Hans.”
• We have the “Florida Pedophiles” and the “Gimme Babymaker.”
• And we have the “Connecticut Kid” and the “English Loafer.”

But I’ve never found a match for Olga, a Greek woman who thinks it is government’s job to take care of her from cradle to grave.

At least not until now. I’m excited to announce that Olga has a soulmate named Natalija. She’s from Lithuania, but she now lives in England, and she doubtlessly will inspire Olga on how to live off the state.

Here’s some of what The Sun reports on Natalija:

Natalija Belova, 33, told The Sun how she spurns full-time work — yet can afford foreign holidays and buys designer clothes. The Lithuanian said: “British benefits give me and my daughter a good life.” She has milked soft-touch Britain for £50,000 in benefits and yesterday said: “I simply take what is given to me.”

And what is given to her? Quite a lot.

The graduate, who became a single mum after she arrived here, rakes in more than £1,000 a month in handouts — £14,508 a year — to fund her love of designer clothes, jaunts to the Spanish sun and nightclubbing. She bragged: “I have a lovely, fully-furnished flat and money to live properly on. …Her handouts total £279 a week — with housing benefit contributing £183, child tax credit adding £56, child benefit £20 and her council tax being paid to the tune of £20.

You might expect Natalija to be grateful, but you’d be wrong.

But she does have one criticism. Natalija moaned: “I think they should help pay for private nannies, rather than just free nursery.” …Natalija vowed: “I am not going to work like a dog on minimum wage.” She added: “I don’t care what anyone thinks. I’m not doing anything wrong. “I know people won’t like to read this, but what would they do? “Would they not take the money that was being handed to them to stay with their child all day?”

I’ve written about the benefits of tax competition between nations. This story shows the perverse impact of welfare competition between countries.

Speaking at her two-bedroom pad that came fully furnished in Watford, Herts, courtesy of the taxpayer, grateful Natalija said: “In Lithuania the benefits system does not pay enough. “I have a friend over there who is a single mother. “She only gets £20 a month in child benefit, plus some discounted help with gas and electricity — and some housing help. “It’s not enough to keep a normal level of life, like here. “If I was on benefits there, I couldn’t afford nice clothes or the holidays abroad.” She went on: “I am sure people will say I should return to Lithuania. But that won’t be happening. Being in Britain offers me far better benefits.”

We also have a remarkable example of labor supply economics. This is the real-world example of these charts showing how the British welfare state destroys incentives.

She is careful to work fewer than 16 hours a week so that the benefits keep rolling in. But her wages boost her income to more than £400 a week. On top of that she gets free childcare, fruit and milk vouchers — and even a clothes allowance for “job interviews”. Natalija said: “It is a strange system in this country. Basically, the fewer hours I work, the more I can earn on benefits. But that’s the way it is and it is not my fault.” …She insisted she would be prepared to get a full-time job — but only if the salary tops £25,000. …”Some people may think I am picky. But I am a realist. I need a full-time job that pays at least £25,000 — that is just enough to cover all my living costs that benefits currently pay for. “Otherwise working full time is not worth my while. “If I worked full time, I’d have to pay for childcare costs as well as rent and all my bills. “The benefits system in this country means that I do not have to do this.”

By the way, here’s a chart showing the same destructive policies in the United States.

Let’s look at one last excerpt about Natalija:

In September she escaped the dreary British summer by jetting off with her daughter for a sun-kissed week in Spain. Last month she enjoyed a second holiday — back in her Lithuanian homeland. Natalija, who has three credit cards and loves to go on sprees at designer clothes stores, crowed: “After our holiday to Malaga, we went to Lithuania over Christmas and spent £1,000.” She continued: “I love to buy clothes on my credit cards and often have a blow-out at stores like Roberto Cavalli and the Armani Exchange. …”I also enjoy going to nightclubs and parties with my friends. It’s important to go out and get dressed up. It’s good for my self-esteem.”

Her self esteem has been boosted? Oh, joy! And I can just imagine how much self esteem her daughter will have…

John Hinderaker of Powerline was first on this horrific story and his analysis is very much worth reading. But since imitation is the sincerest form of flattery, I figured I would share the story and add some of my thoughts.

By the way, if you want more than just horrifying anecdotes, click here for a video that looks at the dismal impact of the American welfare state and click here to see how Obama has exacerbated the negative effects of such policies in America.

Charles Krauthammer zeroes in on the stark worldview expressed in President Obama’s inaugural address:

Obama is the apostle of the ever-expanding state. His speech was an ode to the collectivity. But by that he means only government, not the myriad of voluntary associations — religious, cultural, charitable, artistic, advocacy, ad infinitum — that are the glory of the American system.

For Obama, nothing lies between citizen and state. It is a desert, within which the isolated citizen finds protection only in the shadow of Leviathan. Put another way, this speech is the perfect homily for the marriage of Julia — the Obama campaign’s atomized citizen, coddled from cradle to grave — and the state.

“Nothing lies between citizen and state.” Exactly. That’s why Obama can say things like

No single person can train all the math and science teachers we’ll need to equip our children for the future. Or build the roads and networks and research labs that will bring new jobs and businesses to our shores.

Well, of course not. No one thinks a single person could. It takes many people, working together. But even Krauthammer misses the point that it takes businesses, coordinated by prices and markets. Krauthammer correctly chides Obama for thinking that collective action means only the state and not voluntary associations. But most of our needs are met, most of our progress is generated, by neither the state nor charities.

We are fed, clothed, sheltered, informed, and entertained by individuals, working together with other individuals, mostly in corporations, with their activities coordinated by the market process. As I’ve said before, libertarians “consider cooperation so essential to human flourishing that we don’t just want to talk about it; we want to create social institutions that make it possible. That is what property rights, limited government, and the rule of law are all about.”

What kind of a bleak worldview is it that can look at the bounty provided by business enterprises and charitable associations and see a barren wasteland enlightened only by the activities of the federal government? President Obama’s worldview, apparently. And Hillary Clinton’s.

My further thoughts on Obama’s collectivist speech in this 10-minute audio podcast.

From the January 7 edition of Health Plan Week:

Ahead of 2014 and to get ready for open enrollment this fall, insurers are gauging their interest in participating in certain markets based partly on how [the U.S. Department of Health and Human Services] writes regulations governing the exchanges set to open on Jan. 1, 2014.

Roy Ramthun, president of Maryland-based HSA Consulting Services, tells HPW that the biggest challenge health insurers face in 2013 is the uncertainty inherent in regulations governing exchanges. “The uncertainty comes on two fronts: (1) state insurance exchanges and (2) rules for qualified coverage and selling insurance [e.g., essential benefits, actuarial value, rating rules, etc.],” he says. “On the exchange front, you have only about 15 states moving forward on developing their own exchanges. For every other state, we are waiting to learn what the federal exchanges will look like. And this all has to be in place for enrollment beginning Oct. 1, 2013. I am not sure what carriers can do to overcome this other than lend their expertise to the development of exchanges while perhaps pushing or hoping for delay of the Jan. 1, 2014, ‘go live’ date.”

For example, Ramthun says, “It is hard to develop insurance products for sale when you don’t have all the details about what can be offered…”

Dan Mendelson, president of consulting firm Avalere Health, LLC in Washington, D.C., tells HPW that the biggest challenge insurers face in 2013 is deploying new, profitable products for use in exchanges. “This is a massive jump ball, and complicated by the fact that plans don’t have a clear actuarial history for the population that will be buying insurance in this way. Two other important challenges will be responding to Medicaid expansions, and increasingly integrating quality into systems to enable pay for performance,” he says.

Peter Hayes, principal at consulting firm Healthcare Solutions in Scarborough, Maine, says diversification is the largest issue for health insurers to tackle in the near term, stressing that new market rules are going to make it tough for traditional lines of business to create acceptable profit margins. “Aetna has already declared that they do not believe their future is selling health insurance coverage in an environment where margins and profits are regulated by an 85% medical loss ratio [MLR]. They believe their revenues and earnings growth will be from the sale of their intellectual and system assets to the ACOs [accountable care organizations] and exchanges and from offshore opportunities. Cigna has expressed similar strategies,” he tells HPW.

This rethinking process may leave some plans on the sidelines for exchanges, Hayes adds.