Pondering Judge Henry Hudson Dec. 13, 2010 Decision

Does the Constitution confer on the Congress the power to penalize individuals for not purchasing a particular good or service in the marketplace?

According to Kathleen Sebelius, Secretary of Health and Human Services and the defendant in the suit, the Congress is justified in requiring all Americans to purchase a minimum amount of health insurance coverage for two primary reasons. First, she asserts that health care is a commodity that everyone consumes at some point in their lives, and since there is a chance that they will not be able to pay for this care in full when the time inevitably comes, they should be made to contribute to the system. Secondly, Sebelius explains that the financial solvency of the ambitious and comprehensive legislation in question hinges upon universal participation. Secretary Sebelius also includes as part of her "general welfare" argument an assertion that the consequences of violating the mandate is not a penalty but a "tax" levied and collected by the IRS.

Judge Nelson gives full weight and consideration to each of these arguments in light of both constitutional language and judicial precedent, and concludes that the action at issue (compelling Americans to buy health insurance and penalizing them if they don't) is not authorized by the Constitution. He observes that words matter – that they have objective, propositional meaning – and he refuses to accept the government's manipulative conflation of the words "tax" and "penalty" as a means of bolstering its legal position in the case (the government has much more latitude imposing taxes than it does penalties).

Most importantly, Judge Nelson takes pains to emphasize that the federal government is a government of limited and delegated authority. As such, when the scope of the proposed mandate is compared against the authority of the government to act in such a manner, there is no other conclusion to draw but that the government is guilty of overreach:

"The unchecked expansion of federal power to the limits suggested by the Minimum Essential Coverage position would invite unbridled exercise of federal police powers. At its core, this dispute is not about regulating the business of insurance – or crafting a scheme of universal insurance coverage – it's about an individual's right to choose to participate. . . . On careful review, this Court must conclude that section 1501 of the Patient Protection and Affordable Care Act – specifically the minimum essential coverage provision – exceeds the constitutional boundaries of congressional power." (See p. 37- 28 of the opinion, which can be found here.)

Thankfully, the Founding Fathers instituted a separation of powers between three co-equal branches of government. Judge Nelson's decision represents a great victory for constitutional governance. 

I received this summary from columnist Ken Connor, in his December 19, 2010 article. He goes on to opine that all Americans should be glad to live in a country where the government is restrained from overreaching into the lives of its citizens. Undoubtedly, this is not the last we will hear of the individual mandate controversy, as the issue is all but certain to wind up under consideration by the Supreme Court. When that day comes, if the highest judges in the land reach a conclusion different than Hudson has, there will be virtually no limit to what the government could require "in the best interest of its citizens."

Pondering Israel's Monitoring of Palestinian Promotion of Peace

An article by Joel Mowbray (December 13, 2010) explores the importance of an new initiative by the government of Prime Minister Benjamin Netanyahu that monitors the extent to which Palestinian leadership promotes peace rather than violence. Admitedly, Palestinian Media Watch does the same thing, but apparently, in order to gain the attention of America and the west, it thinks that if the Israeli government issues reports, the West will listen.

The new Incitement and Culture of Peace Index will help Netanyahu pressure his peers in the United States and Europe to start judging Palestinian Authority (PA) President Mahmoud Abbas not by what he says at intergovernmental meetings at the White House or at bureaucratic junkets, but rather by what the PA is doing at home. Its purpose, according to Israeli officials, is not just to catalog examples of demagoguery and demonization, but also to gauge what steps the PA is taking to prepare its people for peace with Israel.

This report does not deal with Hamas, yet it is filled with examples of the supposedly moderate PA government actively undermining prospects for peace, literally at the same time PA figures tell the West how deeply they desire peace.

One of the most powerful examples of this dichotomy highlighted in the report happened recently. Speaking at the White House on Sept. 1, Abbas stated emphatically that he did "not want at all that any blood be shed" because he wanted Israelis and Palestinians "to live as neighbors and partners forever."

Speaking in Arabic to a Palestinian newspaper two months earlier, though, Abbas gave a different reason for not wanting war: "Palestinians will not fight alone because they don't have the ability to do it." He added that he had told the Arab League, "If you want war, and if all of you will fight Israel, we are in favor." Of course, this should not come as a surprise because Fatah's constitution maintains to this day that "the struggle will not end until the elimination of the Zionist entity and the liberation of Palestine."

Fatah routinely names streets, buildings and schools after terrorists, and sometimes it hands out awards to terrorists or their relatives.

After Fatah gave an award to the grandmother of imprisoned terrorist Khaled Abd Al-Rahman, Fatah's PA-TV provided her a platform, and she spoke to her grandson and apparently other Palestinians when she said, "Shoot your rifle and cause the Jews to go away."

The PA's glorification of terrorists is systemic. Fatah held a Web forum this fall commemorating the 10th anniversary of the so-called intifada. As documented in the Israeli report, nothing is more telling than the visuals of fires, machine guns and even masked children. One of the images is of the famous golden-domed al-Aqsa Mosque with two machine guns over it in an upside-down "v" formation.

Among the other examples in the report, prepared by a committee headed by Ya'acov Amidror and including PMW's founder, Itamar Marcus, are the PA's religious affairs official praising Palestinians who carry out "ribat," or religious war, and the coordinator of the National Committee on Summer Camps telling local media that Palestinian summer camps instill in kids the Palestinian culture, "which unites the culture of resistance, the culture of stones and guns ... and the culture of Shahada (martyrdom)."

All of this happened around the same time that Abbas said in June at the White House, "We have nothing to do with incitement against Israel, and we're not doing that."

While President Obama has focused most of his attention on Israeli housing policies, this new report indicates that the PA has gotten worse in its incitement since the start of the latest round of talks. It could be that Palestinian leaders think Obama's unusually strong attention on Israel has given them a free pass.

Perhaps the White House will heed the report and pressure Palestinians to stop incitement against the Jewish state. Perhaps Obama will tell Abbas that he must also actively work to build a culture of peace at home.

If that doesn't happen, however, it is a safe bet that the incoming Republican-controlled House will take the lead — and it controls the federal purse strings. Fiscal conservatives looking to target waste could condition aid to the Palestinians on changing the status quo. The PA, in other words, shouldn't be expecting a blank check from Washington next year.

Changing Palestinian culture cannot be done overnight, but it is crucial. Peace is impossible as long as Palestinian children grow up hating Israel and loving violence.

At least now it is part of the discussion.

Pondering the December 2010 "tax cut for the rich" debate

Thomas Sowell (December 7, 2010) entered the debate concerning what some call "tax cuts for the rich," a debate for the "lame duck" session of congress. For him, what those who are arguing against "tax cuts for the rich" are promoting is raising the tax rates on families making $250,000 a year and up. A husband and wife making $125,000 a year each are not rich. If they have a kid going to one of the many colleges charging $30,000 a year (in after-tax money) for tuition alone, they are not likely to feel anywhere close to being rich. Many people earning an annual income of $125,000 a year do so only after years of earning a lot less than that before eventually working their way up to that level. For politicians to step in at that point and confiscate what they have invested years of working to achieve is a little much.

he then points out that much of th rhetoric concerns taxing "millionaires and billionaires" when most of the people whose taxes the liberals want to raise are neither. He then asks, Why is so much deception necessary, if your case is good? Those who own their own small businesses have usually reached their peak earnings many years after having started their business, and often operating with very low income, or even operating at a loss, when their businesses first got started. He thinks it highly inappropriate for the politicians to step in at this point. 

One thing to remember - Often, millionaires and billionaires will be in favor of raising taxes, largely because their wealth is not taxed. They are at a high enough wealth level that tax rates will not affect their style of life, and will not increase their taxes, generally because real millionaires and billionaires have their wealth safely stowed in tax shelters

Pondering the science behind global warming

            Roy W. Spencer (Climate Confusion, 2008) is a climatologist. He is skeptical of the theory that most of global warming is caused by humanity, or that we understand the climate system and our future technological state well enough to make predictions of global warming, or that we need to reduce fossil fuel use now. Yes, he says, global warming is happening. How much of it is due to natural processes verses human activity? How bad will global warming be in the future? What can we do about it? One of his points is that any theory regarding global warming must remain a theory. Yes, he says, warming has occurred in the last thirty years. Yes, greenhouse gas concentrations in the atmosphere have increased. Yet, this does not suggest cause and effect. He has an interesting chapter on how weather works. For many of us non-scientists, this is a helpful refresher course. The sun heats the earth, of course. Infrared light cools the earth as it moves through the atmosphere and escapes the earth. Global warming theory involves how infrared energy is redistributed within, and lost by, the surface and atmosphere. Water vapor accounts for 70-90% of the natural greenhouse effect. The other components are carbon dioxide and methane. Clouds have a large greenhouse effect, but clouds are ice crystals, and thus, not a gas. One of his main points is that weather cools the surface of the earth well below what it would be if sunlight and the greenhouse effect had their full way. The flow of heat is what we call weather. The second law of thermodynamics states that energy tends to flow from where there is more to where there is less. Evaporation is the primary means for cooling the earth. Evaporation removes heat from the surface, but it helps to heat the earth when the vapor becomes part of the atmosphere. He describes the weather system as a circulation system, constantly heating and cooling, managing the flow of heat.

            In Chapter 4, he deals with how global warming allegedly works. He focuses on carbon dioxide. For every 100,000 molecules of air, 38 of them are carbon dioxide. This small amount is why it is one of the “trace gases.” There is not much of it. Humanity is adding one molecule of carbon dioxide to every 100,000 molecules of air every five years or so. Where the increase of carbon dioxide can be measured, whether near a large city or on an isolated island, the increases are quite constant, suggesting to him that human activity has a small influence. He makes his basic proposition quite clear: “I believe it makes more sense to assume that the Second Law of Thermodynamics is the ultimate guiding principle in climate sensitivity, and that the climate system changes in ways that act to rid the system of excess heat.” In essence, the earth has a thermostat called precipitation. Again, yes, human beings are producing carbon dioxide as a result of their use of fuels. Yes, carbon dioxide content of the global atmosphere has been slowly increasing. Of the 38 molecules of carbon dioxide for each 100,000 molecules of air, humanity is adding about one molecule of carbon dioxide every five years. However, that one molecule should be twice as much. It is “missing,” due to the fact that for plants, it is “food,” resulting in increasing vegetation growth rates around the world. Yes, carbon dioxide is a greenhouse gas, albeit a trace gas, for it keeps some infrared radiation from escaping from the earth. Yet, there are also cooling effects due to weather patterns. In the past century, the earth may be about one degree warmer, with 40% of the increase occurring before 1940. 

Pondering Climate Change Models

Willie Soon, in his December 2, 2010 article, offers this reminder concerning the computer models presently used for global warming. 

The impotence of current climate models is not surprising. Climate models have not yet gotten even the most basic aspects of annual, decadal or multi-decadal monsoon events correctly.

* A 2009 paper demonstrates that not one of the 24 climate models used by the UN’s Intergovernmental Panel on Climate Change generated accurate predictions for annual cycles of land surface temperatures or the arrival of seasons outside the tropics for 1954-2000. Accurate predictions of decadal cycles are out of the question.

* A 2008 study found that almost all current climate models overestimated the amount of solar radiation absorbed at Earth’s surface – leading them to forecast more severe regional dryness than will likely be the case. Even more appalling, this computer model error has been documented since 1996, and yet there are still no improvements.

* Drs. Scott Armstrong and Kesten Green found that IPCC forecasting procedures violated 81% of the 89 forecasting and scientific principles they were able to evaluate. These serious errors prove that IPCC climate projections and scenarios are useless for public policy decisions.

As climate scientists, we know computer climate models are very useful for analyzing how Earth’s complex climate system works. However, models available today are simply not ready for prime time, when it comes to predicting future climate, monsoons or droughts. Persistent attempts to use computer climate models to generate “what-if” scenarios are unrealistic, counterproductive and even anti-scientific.

Pondering Life Expectancy 2010

In some reading for sermons, I came across what I thought were some interesting statistics.

The average life expectancy of most people in biblical times was most likely in the 20s due to disease, malnutrition, traumatic childbirth for women and almost constant warfare for men. According to the estate-planning firm E.F. Moody, life-expectancy figures remained virtually unchanged for most of human history. In ancient Greece, for example, life expectancy was 20. When the Declaration of Independence was signed, life expectancy was still just 23; the median age was 16. Even as recently as 1900, most Americans died by age 47. In 1870, only 2.5 percent of all Americans made it to age 65. It’s no wonder that, until relatively recently, retirement was a word mostly associated with going to bed — and hoping one would wake up. (For more information, see the sidebar on page 27.)

Data for 1997 says that life expectancy has climbed to 76.5 years, up from 59.2 in 1930. This number continues to climb. Many of the first baby boomers (those born in 1946) who are beginning their retirement this year may have as much as 20 years or more of living still ahead. If, as some spry retirees claim, 65 is the new 55, then the old paradigm of retirement meaning a move to Florida and eating dinner at 4 p.m. is being blown up by an emerging generation of super seniors who would seem to prefer starting a second career to playing shuffleboard. Retiring boomers will embrace the philosophy about which boomer icon Neil Young once sang — “it’s better to burn out than it is to rust out.”