Wednesday, July 18, 2012

You Didn't Build It So They Won't Come

If you’ve got a business -- you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet so that all the companies could make money off the Internet.
--President Barack Obama

He didn't build that, apparently.

Just a little over seven years ago a small local company came to me and asked me to write them a program. I knew the owners and so they knew that part of my college education had included software development, and since I was in my last year of college with no practical experience and they didn't have a lot of money to spend, it was a good arrangement. We discussed their requirements and then I spent several days banging out my first real software gig. I got paid, they got the software, and everyone was happy.

When I finished my degree, I came out into a job market that wasn't terribly interested in my skill set anymore, at least not unless I chose to move to California, which was not something I was prepared to do. While I was figuring out what I was going to do with my life, the company came back to me to update the software I had written. It was a massive upgrade and took me a number of months compared to the first few days.  I had to spend innumerable hours researching how to do things they didn't teach me in college on the Internet.  I even had to outsource some things to people when I knew it was totally beyond my abilities in the time frame.

The new piece of software ended up a big hit with the company, and more importantly, their customers and their competitors. They began to get requests as to where it could be obtained so the original company suggested I take the software to an industry trade show in Las Vegas to sell. They would even give me a loan to go because they were grateful for the work I’d done and thought I would succeed.

I took the offer. I flew to Las Vegas for the first time in my life with some of my family to help me out in the booth (and so they could have a vacation), and I stood for three days at a convention booth demonstrating my software to people I had never met.

Next thing I knew, I was cashing in some of my bonds to start a small business to do this for a living.

So it's true, the planes I flew on, the roads I drove on, the hotels I stayed in, the debt I incurred from people who wanted to help me out to get me started, the Internet I used to find software examples and coders for hire, and the college I began my education at are all things that contributed to the existence of my business.

But they didn't build my business. My education doesn't spend hours staring at a computer screen, desperately trying to locate a bug that is ruining a customer's day. The Internet doesn't have to make the tough decisions on what tasks get what priority and what features are the best to add. The planes and roads and hotels don't have to figure out what to say or what to showcase to make my product appealing. The investment I got doesn't pick my flights or choose which convention to attend. The bonds don't decide who I should hire or where I should put my office. The government's credit rating isn't affected if the whole thing goes south and I can't pay my bills.

Instead, these things are merely the tools I used to build my business. And I paid for those tools. Every month a bill comes for my education, another for my Internet connection, another for the credit cards that take care of the advertising and the gas and the hotel rooms. Every year the IRS and the State and the Town come to me and say “pay up” so that I can use the roads and the firefighters and the police. In fact, in almost every transaction I make they’re asking me to pay up because it’s tangentially related to a service they ostensibly offer me.

The government didn’t just get together and create the Internet in anticipation I would need it. They didn’t benevolently declare “Cranky T. Rex will need this for his business, let us create it and bestow it upon him.” And the government didn’t magic it into existence with “government research.” Private businesses just like mine were paid by tax dollars from other hardworking people just like me to create the technologies necessary, and then other private businesses built upon those technologies to create what we have today.

I, through my effort, through my sacrifice of my time and money, through my stubborn refusal to take the easy path no matter how difficult things get, built my business. I am the one that works the extra hours when something isn't finished. I am the one who has his financial future on the line. I am the one who makes the difficult decisions as to what work gets focused on and which bill I can afford to pay or who I have to fire because Obamacare drove up the health insurance costs. I am the one who endures the ever present stress of having that business on my mind wherever I go and no matter what I am doing.

Because that is how you make a business happen, and the government doesn’t do any of that for me. I made my business happen with my hard earned money, with my time, with my drive, with my ambition, with my talents, with my sweat, blood, and tears.

So yeah, maybe my business might not exist without the tools I had and the country I grew up in or the government that runs it, but there is only one thing that it definitely would not exist without: me.

Sunday, July 1, 2012

No, Virginia, It Wasn't The Commerce Clause

So in a move that surprised almost everyone, the Supreme Court of the United States upheld Obamacare, not because of the swing Justice Kennedy voting to uphold the power of the Commerce Clause, but because Chief Justice Roberts decided Congress actually meant the individual mandate was a tax, and that the Congress has the power to levy such a tax, that is to say a tax on inactivity.

Were that not mind boggling enough, in a stunning display of Fridge Logic, conservatives took to their various media outlets to theorize that this incredible defeat was actually a secret win, created by the genius of a Chief Justice looking beyond the immediacy of the current political climate.

What is this theory?  Well, to put it simply, they believe Chief Justice Roberts has managed to simultaneously gut the Commerce Clause powers, hand Mitt Romney an election booster shot, and insulate his Court against the backlash that its decisions are merely partisan in nature.  The Chief Justice, looking ahead to the future, thus escapes the partisan fight over Obamacare and forces that back upon the people, who are expected to turn out in droves to get rid of it come November.  Meanwhile, he gets to take an axe to the idea that the Commerce Clause allows Congress to do whatever it wants.

Seems like a reasonable, well thought out analysis.  It certainly would provide considerable comfort to those shell shocked by the decision.  Unfortunately, it's entirely bunk.  It is a delusional fantasy written by people desperately seeking to explain and deny the horror they have just witnessed, in the same way that conspiracies form to rationalize the magnitude of events such as 9/11 and Presidential assassinations.

Had Chief Justice Roberts ruled with the dissenting Justices, the Commerce Clause would've gone down anyway, so that point is entirely moot.  The only way in which his opinion (which may or may not even be considered in the future) suceeds in that vein is if upholding the Commerce Clause had won the day and the Chief Justice sought to mitigate the damage.  But that was not the case.

More importantly, even if he had a victory on the Commerce Clause, the Chief Justice wiped it out by handing the Congress an entirely new set of powers.  As of his ruling, the Congress can now tax inactivity and not even call it a tax, thereby eliminating the stigma of having to pass a giant new tax in order to use the power, which is precisely what happened with Obamacare in the first place.  The Democrats insisted over and over again this was not a tax. They specifically crafted it to work like a mandate and a penalty, not a tax, to avoid that very stigma as well as the appearance that they were instituting "government run" health care. 

Further, this actually gives Congress a whole new way to tax actual activity, as they can simply tax the thing you didn't choose to do.  Say Congress jumps on board with Bloomberg's war on soda. Why bother risking the ire of the public by passing a bill that taxes soda when you can quietly pass one that penalizes not drinking water? Now they'll ask you, "Did you choose the 16 oz soda or the 16 oz water?  You chose soda? Well, I'm sorry, but if you don't choose the 16 oz water you have to pay the"

Thus we are left with the short term political gain for Mitt Romney/The GOP, and the Court's current reputation, neither of which involve long-term thinking or three dimensional chess.  Whether or not Mitt Romney is elected and Obamacare is repealed, the Congress will still have the new tax power, and like all other Congresses before it, it will be tempted to use it.  It's only a matter of time (maybe even under Romney himself) before they do.

Further, the Court's reputation not only does not matter in the scheme of things, but if the Chief Justice thinks that ruling in a way that pleases liberals will insulate his Court against cries of partisanship in the future, he's dreaming.  Just look at the words like "betrayer" and "coward" being tossed at him by conservatives who, up until this ruling, were in his...court (sorry, pun intended.)  Does he think the next time he rules in favor of limiting Congressional power and against liberals they're going to just say "well that's ok, he's not a partisan"?

And who cares if the Court is perceived as "partisan" or involving itself in a "partisan" fight?  It will always be perceived that way, and it's not its job to care what stupid political games are being played.  Its job is to answer the fundamental questions put before it.  Is this legislation Constitutional?  Is the power it asserts within the scope of the body asserting it?

In this case, the fundamental question before the Court was "Can the Federal Government force me, as a private citizen, on pain of a financial penalty, to enter into a contract with a private company, to pay for a service I may not want or need, because of my continued existence as a citizen of the United States?"  The Chief Justice's ruling is "Yes, they can."  And he has to go the full Whoopi Goldberg to justify it, since he had to decide the mandate is a tax, but not a tax-tax.  If it were a tax-tax, he'd have had to punt the decision under the Anti-Injunction Act that requires someone actually be taxed before they complain.

There is no silver lining to that. That is phenomenal cosmic power in our itty bitty living space. Does it require the kind of "Liberty died! The Republic is over!" hyperbole going around? No, but the only way you can begin to call it a conservative victory is if you are only concerned about the next election, and are drinking the Kool-Aid that flipping the lever of power from D to R will fundamentally re-transform the Republic into something more like a Republic and less like a "Congress does whatever the hell it wants"-ic.

Meanwhile, unlike the conservatives who desperately wrap themselves in "Fire don't melt steel!" level delusions to protect their fragile psyches, liberals are thrilled because their side "won."  Except what they won was Congress having the authority to do something they'll really hate, like say, tax anyone who does not own a cell phone and subscribe to a GPS tracking service for said phone that reports their position and all their personal information to the authorities 24 hours a day.   Or perhaps as Ed Morrisey suggest at HotAir, taxing anyone who doesn't own a gun.  After all, it would be in the interests of national security to do so.

I'm sure there are tons of lawyers and legal scholars out there who will spend the ensuing weeks defending the decision against people like myself, claiming we just don't understand the intracasies of the bill's specific language, but frankly it doesn't take a Constitutional law professor to understand that once you start using linguistic pretzels to justify a massive increase in the power of Congress, your decision is almost certainly a bad one.

Whether due to cowardice in the face of accuastions of partisanship or a genuine belief that he should not overturn Congress at all costs, John Roberts just gave us a giant shove towards the Event Horizon and flipped us all the bird while doing it.