08 September 2009

Health Care Tax Unconstitutional

Senator Max Baucus unveiled his "compromise" health care plan today. One of the signature elements is mandatory purchase of health insurance by all Americans:
Just as auto coverage is now mandatory in most states, Baucus would a require that all Americans get health insurance once the system is overhauled. Penalties for failing to get insurance would start at $750 a year for individuals and $1,500 for families. Households making more than three times the federal poverty level - about $66,000 for a family of four - would face the maximum fines. For families, it would be $3,800, and for individuals, $950.
Baucus needs to be flogged, flayed, drawn, and quartered for this insanity.

First, let us demolish the straw man comparison to automobile insurance.  The mandatory coverage for drivers is liability coverage.  Drivers must have insurance coverage to pay for damages they cause in an accident.  Nowhere in the 50 states is there a law mandating drivers or car owners have insurance to cover repairs to their own vehicles.  The only time such coverage is imposed on a vehicle owner is when a lien holder demands.  Auto liability coverage is hardly a parallel for health care insurance.

Requiring all people to purchase health insurance or pay a fine, moreover, is an unconstitutional health care capitation tax.  It is a tax because it is a levy imposed by the United States.  Worse, it is a direct tax imposed only on a subset of American citizens (those without health insurance), and thus is explicitly proscribed by the Constitution.

The power to tax is found in the first clause of Article 1 Section 8 of the Constitution:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Article I Section 9 of the Constitution limits the power of taxation through the following restriction:
No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
The Sixteenth Amendment clarifies this language to explicitly allow taxes upon income:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
The penalty tax, being imposed arbitrarily on a discrete class of taxpayers--those persons not subscribed to a health insurance plan--is absolutely not uniformly imposed tax, nor is it imposed in proportion to a census or enumeration (indeed, the conditional nature of the tax precludes the possibilities of uniformity or proportionality).  It is not assessed with regard to income, and thus does not qualify as an income tax, and so is not excluded from the proportionality requirement via the Sixteenth Amendment.

The Supreme Court Case POLLOCK v. FARMERS' LOAN & TRUST CO (157 U.S. 429) states the matter quite explicitly:
Nothing can be clearer than that what the constitution intended to guard against was the exercise by the general government of the power of directly taxing persons and property within any state through a majority made up from the other states.
The health care penalty tax is unconscionable and unconstitutional, and needs to be eliminated from public debate on health care immediately.

06 September 2009

Afghanistan: Never America's War

There is but one reason for the United States to have military forces in Afghanistan:  to confront and eliminate the capacity of terrorist groups such as Al Qaeda to find safe haven from which to attack the United States itself.  That was the thrust and practical consequence of the five-point ultimatum President George W. Bush delivered to the Taliban in his 20 September 2001 address to a joint session of Congress:
By aiding and abetting murder, the Taliban regime is committing murder. And tonight the United States of America makes the following demands on the Taliban:
-- Deliver to United States authorities all of the leaders of Al Qaeda who hide in your land.
-- Release all foreign nationals, including American citizens you have unjustly imprisoned.
-- Protect foreign journalists, diplomats and aid workers in your country.
-- Close immediately and permanently every terrorist training camp in Afghanistan. And hand over every terrorist and every person and their support structure to appropriate authorities.
-- Give the United States full access to terrorist training camps, so we can make sure they are no longer operating.
These demands are not open to negotiation or discussion.
Indeed, the United States was never significantly troubled by the presence of the Taliban per se; it never granted formal recognition to the Islamic Emirate of Afghanistan declared by the Taliban after taking Kabul in 1996, but had little cause to eject them from Kabul.  But for Al Qaeda, the United States would have no quarrel with the Taliban.

This is not idle supposition.  Al Qaeda moved itself to the forefront of American counter-terrorist thinking with the embassy bombings in Nairobi and Dar-es-Salaam in 1998, and again with the attack on the USS Cole in 2000.  Even before the 9/11 attacks, the United States was preparing to confront Al Qaeda militarily, in Afghanistan and elsewhere, with a National Security Presidential Directive having been prepared and awaiting President George W. Bush's signature just days before 9/11:
The document, a formal National Security Presidential Directive, amounted to a “game plan to remove al-Qaida from the face of the earth,” one of the sources told NBC News’ Jim Miklaszewski.
The plan dealt with all aspects of a war against al-Qaida, ranging from diplomatic initiatives to military operations in Afghanistan, the sources said on condition of anonymity.
America's strategic adversary is without any doubt Al Qaeda and not the Taliban.  Even if the Taliban were to take aggressive action now to eject Al Qaeda leaders from Afghani territory, Al Qaeda would still have places in which to gather resources, train, and plot future actions.  Somalia, the world's other unequivocally failed state, has become increasingly receptive to an Al Qaeda presence within its borders:
Osama bin Laden has been urging Al-Qaeda followers to open up shop in Somalia for years, but there was always doubt about whether that call would resonate in a largely secular nation with a historic wariness of Arab interference. No longer. After January's attacks by Ethiopia--which were backed by U.S. air power and aimed to reduce the threat of terrorism--an increasingly international Islamist presence has flourished in the country, drawn by the chaos of postinvasion Somalia and the chance to strike back at the U.S. and its ally Ethiopia. In Mogadishu, Somali Prime Minister Ali Mohammed Gedi told TIME that an alliance has formed among Somali nationalist rebels, remnants of the overthrown Islamic government, and rebels from the Ethiopian border region. U.S. officials accuse Eritrea, which has fought several wars against Ethiopia, of lending troops to the insurgency. Other observers say hundreds of foreign jihadists are arriving in Somalia. Transitional federal government President Yusuf Abdullah has accused Iran and Pakistan of funding the rebels, while others in Mogadishu point to Libya, Egypt and disgruntled elements within the Somali diaspora.
It is vital to remember that, before the Taliban conquered Kabul in 1996, Al Qaeda's headquarters was in Sudan, and that Osama bin Laden made common cause with the Taliban only after being expelled from Sudan in 1996:
A decade later, when Sudan kicked Bin Laden out of the country and he had nowhere to go, he turned to Tora Bora for sanctuary. He flew a chartered jet to Jalalabad in May 1996 and lived for a time in the nearby caves. Later that year, he moved his headquarters to Kandahar, the Taliban regime's spiritual capital in southern Afghanistan, but maintained a family and a house in Jalalabad.
It is also vital to note that some within the Sudanese government appear in recent years to be rather in favor of bin Laden returning to Sudan, having practically invited his Al Qaeda operatives to resume their prior activities in that country:
The document requests all government agencies to allow “foreign Jihadis who came to Sudan with Osama Bin Laden in 1994 to resume their political activities in Sudan given the circumstances surrounding foreign intervention in Darfur to support armed forces and the people of Sudan to fight Zionist enemies”.
The decision outlines certain steps to be taken to allow Al-Qaeda to operate in Sudan such as unfreezing their bank accounts and returning all properties confiscated in 1996.
In all fairness, it must be noted that the official Sudanese posture has been one of cooperation with the United States against global terrorism, as that same article highlights the assistance Sudan has given the United States against Al Qaeda:
The Los Angeles Times revealed last month that Sudan has secretly worked with the CIA to spy on the insurgency in Iraq, an example of how the U.S. has continued to cooperate with the Sudanese regime even while condemning its suspected role in the killing of tens of thousands of civilians in Darfur.
The U.S.-Sudan relationship goes beyond Iraq. Sudan has helped the United States track the turmoil in Somalia. Sudanese intelligence service has helped the US to attack the Islamic Courts positions in Somalia and to locate Al Qaeda suspects hiding there.
Sudan might be a future haven for Al Qaeda, but hardly a safe haven.

Yet the presence of Al Qaeda supporters within Somalia and Sudan are sufficient to demonstrate that defeating the Taliban militarily in Afghanistan will not defeat Al Qaeda at all.  Al Qaeda has other places of refuge besides the hills of Tora Bora, other desolate lands in which to organize and train terrorists.

The Taliban before Al Qaeda was not America's concern.  The Taliban after Al Qaeda should not be America's concern--and therefore the Taliban should not now be America's concern.  The Taliban is one of many competing insurgent forces seeking dominion over Afghanistan, and is more ethnic than religious in nature.  The Taliban leadership are entirely Pashtuns, and the motivation to reestablish Pashtun dominance in the region cannot be overlooked in their continuing influence within Afghanistan; indeed, their expansion into Pakistan arguably has less to do with religious fanaticism and more to do with a long-standing ethnic conflict between Pakistani Pashtuns and the Punjabi-dominated Pakistani Army:
The Pakistani army is composed mostly of Punjabis. The Taliban is entirely Pashtun. For centuries, Pashtuns living in the mountainous borderlands of Pakistan and Afghanistan have fought to keep out invading Punjabi plainsmen. So sending Punjabi soldiers into Pashtun territory to fight jihadists pushes the country ever closer to an ethnically defined civil war, strengthening Pashtun sentiment for an independent "Pashtunistan" that would embrace 41 million people in big chunks of Pakistan and Afghanistan.
 Thus it becomes clear that America's war against the Taliban is very much an accidental war--a war of coincidence only.  Perversely, America's war against the Taliban is the very essence of what President Obama described as a "dumb war":
That’s what I’m opposed to. A dumb war. A rash war. A war based not on reason but on passion, not on principle but on politics.
The words then Illinois State Senator Obama used to describe Iraq apply even more forcefully to Afghanistan.  Afghanistan is not merely a dumb war, it is a dumb war that was never America's war in the first place.  Afghanistan is the accidental battlefield between the United States and Al Qaeda, and no more than that.  This realization, and the realization that the true adversary in Afghanistan remain Al Qaeda, points the way to a plausible strategy in Afghanistan:  separate Al Qaeda from their Taliban patrons, strive to qwell the ethnic tensions between Afghani Pashtuns and Pakistani Punjabis, give voice and credence to the very real ethnic (and non-Islamic) tensions in that part of the world. 

Afghanistan was never America's war.  The Taliban was never America's adversary.  America's adversary is and remains Al Qaeda, and the transnational terrorism movements it foments and supports.  Drive Al Qaeda from Afghanistan and let the ethnic peoples of that region resolve their ethnic differences--by words and peaceful parley, preferably, but by force of arms if that is their will.  Target Al Qaeda, and leave Afghanistan alone.