Constitutional Rights

Con·sti·tu·tio·nal Rights: Rights and freedoms derived from the people themselves and protected primarily by the enumerated amendments to the US Constitution, the Bill of Rights.. Posts in this category pertain to legal, political, and philosophical matters regarding Constitutional rights.

2010Thu18Mar

The Slaughter Rule: Unprecedented

Permalink | Shortlink | Comments (2) | TrackbackFiled in PoliticsTags: Constitutional Rights, Democrats, Legislature, Media Bias, ObamaCare, Republicans

Congressional democrats promoting the use of the so-called "Slaughter rule" - a self-executing or "deem and pass" rule that would allow the House of Representatives to "deem" as passed the Senate health care bill without bringing the bill to the floor of the House for consideration are attempting to rationalize their actions by claiming that Republicans have used self-executing rules in the past, and that, therefore, their opposition to the Slaughter rule is hypocritical.

On the surface, their claim sounds rather damning for Republicans, such as Mike Pence, who oppose the Slaughter rule. However, upon closer inspection, the democrats' claim proves specious.

Mike Pence: Hypocrite?

Democrats claim that Pence has voted for a self-executing rule three times. Let us examine those votes.

HR1003 (109th Congress, 2006)

HR1003 reads as follows:

Resolved, That upon adoption of this resolution, House Resolution 1000, amended by the amendment in the nature of a substitute recommended by the Committee on Rules now printed in the resolution, is hereby adopted.

Thus, HR1003 used a self-executing rule to deem as passed HR1000, which modifies the order of proceedings for the House of Representatives.. However, this use of a self-executing rule differs from the Slaughter rule in two critical aspects:

HR1000 was a resolution that amended the order of proceedings for the House of Representatives. It was not a legislative act.
HR1000 was originally brought to the floor of the House, and was referred to and amended by the Rules Committee. The use of the self-executing rule in HR1003 merely allowed House members to deem as passed the resolution as amended by the Rules Committee, rather than bringing the resolution to the floor again. Thus, the use of the self-executing rule was intended to circumvent normal House procedure, not to avoid voting on HR1000.

Verdict: the use of a self-executing rule in HR1003 in order to deem HR1000 as passed does not invalidate opposition to use of the Slaughter rule to deem the Senate health care bill as passed.

H.Res.653 (109th Congress, 2006)

H.Res.653 reads as follows:

Resolved, That the House hereby concurs in the Senate amendment to the House amendment to the bill (S. 1932) to provide for reconciliation pursuant to section 202(a) of the concurrent resolution on the budget for fiscal year 2006 (H. Con. Res. 95).

H.Res.653 represents the passage of a conference report for the Deficit Reduction Act of 2005, and is a classic example of how bills typically become law in the U.S. Congress:

The House or Senate (always the latter, if the bill involves levying taxes) passes a bill
The other chamber considers and passes the same bill.
If the second chamber amends the bill as passed by the first chamber, either the first chamber must pass the bill as amended by the second chamber, or else (as is typically the case), the two chambers seat a Conference Committee to iron out the differences between the two versions of the bill. The outcome of this process is known as a Conference Report.
Both the House and the Senate then each pass the Conference Report, and the bill is then presented to the president.

In fact, the 109th Congress followed this process exactly in enacting the Deficit Reduction Act of 2005:

The Senate passed S.1932 on November 03, 2005.
The House passed H.R.4241 on November 18, 2005.
The two bills were reconciled via Conference Report.
The House passed the Conference Report on February 01, 2006, via H.Res.653.
The Senate passed the Conference Report on February 08, 2006, via S.Con.Res.80.

Thus, H.Res.653 used a self-executing rule to deem as passed the Conference Report for S.1932, which the House originally passed as H.R.4241. However, it also differs from the Slaughter rule in two critical aspects:

H.Res.653 deemed as passed a bill on which the House of Representatives had already voted: H.R.4241.
H.Res.653 did not further modify the Conference Report for S.1932/H.R.4241. The Slaughter rule attempts to deem as "passed" the Senate health care bill, while at the same time amending that same bill. (The Slaughter rule "deems as passed" the Senate bill only upon House passage of a Reconciliation bill that amends the Senate bill.) Thus, the House will be engrossing a bill that it has at the same time amended.

Verdict: the use of a self-executing rule in H.Res.653 in order to deem the S.1932/H.R.4241 Conference Report as passed does not invalidate opposition to use of the Slaughter rule to deem the Senate health care bill as passed.

H.Res.572 (109th Congress, 2005)

The germane section of H.Res.572 reads as follows:

SEC. 2. Upon adoption of this resolution, House Concurrent Resolution 308 is hereby adopted.

Thus, the self-executing rule of H.Res.572 deems as passed a "technical correction", per H.Res.308, in the enrollment of H.R.3058 (an appropriations bill). However, it also differs from the Slaughter rule in two critical aspects:

H.Res.572 merely deemed as passed a "technical correction" to a bill on which the House of Representatives had already voted: H.R.3058.
H.Res.572 did not further modify the H.R.3058. The Slaughter rule attempts to deem as "passed" the Senate health care bill, while at the same time amending that same bill. (The Slaughter rule "deems as passed" the Senate bill only upon House passage of a Reconciliation bill that amends the Senate bill.) Thus, the House will be engrossing a bill that it has at the same time amended.

Verdict: the use of a self-executing rule in H.Res.572 in order to deem as passed a "technical correction" amendment to the already engrossed H.R.3058 does not invalidate opposition to use of the Slaughter rule to deem the Senate health care bill as passed.

Verdict: Mike Pence

Pence's opposition to the Slaughter rule cannot be considered to be hypocritical with respect to his previous support of self-executing rules in the House. None of his previous votes represents, supports, or justifies the intent of the Slaughter rule, since, in all cases in which Pence voted for a self-executing rule, he was doing so with respect to bills that had already been voted on and passed by the House.

Bonus: Et Tu, Steny?

Liberals in the media are bending over backward to paint the Republicans as hypocrites on the self-executing rule issue - but, ironically, in so doing, they merely display the hypocrisy of the Democrats. Consider Steny Hoyer, the House Majority Leader. Time, that bastion of liberal group-think, quotes a hyperventilating Hoyer in 2003. After complaining about the Republican majority limiting debate in the House (paging Nancy Pelosi... paging Nancy Pelosi...), Hoyer unloads this corker:

Not content with the denying the Minority to offer amendments and substitutes, the Majority has even refused to permit Democrats the chance to vote on the Majority's own bills. That is precisely what happened on June 12. This being the 23rd, that was 13 days ago. When the Republican leadership reported a self-executing rule providing for the adoption of the $82 billion plan over 10 years and an almost trillion-dollar plan over 20 years, accelerating the increased child tax credit for low-income people families, we didn't even get an opportunity to vote on the bill itself except by reference in a self-executing rule. What kind of lack of confidence does that display? What kind of process in pursuit of effectiveness does that mean that we are adopting? What kind of demeaning of democracy is the objective of efficiency resulting in? I would remiss to fail to note that barely 1 hour later, the House passed on a bipartisan vote -- you talk about bipartisan votes -- a nonbinding motion to instruct the conferees to accept the substantially more responsible Senate version of that bill, doing exactly the opposite of what a half an hour the House had voted on. Why? Because it had no full debate, and it was very ambivalent, and we knew the House was ambivalent, and you knew the House was ambivalent, and you were afraid, fearful that 12 or 15 Republicans, if allowed to vote on the substance as opposed to voting procedurally on a rule where party loyalty is so important, you were afraid to put the substance to the test of democracy, fearful that you would lose 12 to 15, and we would prevail in our position. House Democrats, of course, are trying to offer the same Senate bill as the substitute, but the Republican Majority blocked us from doing so.

Wow, sounds bad, huh? Sounds exactly like the Slaughter rule, doesn't it?

Except, it isn't.

Notice, if you will, Hoyer's mention of conferees. Why, those would be the sitting members of a Conference Committee, who return Conference Reports. That means that the House of Representatives had already voted on and passed the bill in question. The Conference Report regarded H.R.1308, which passed the house by a voice vote. The self-executing rule to deem the Conference Report as passed was in H.Res.270, which passed by roll-call vote. When Hoyer claims that the minority didn't get to vote on the bill, he is lying.

Dare I say it? Hoyer's ardent defense of the Slaughter rule is the epitome of hypocrisy. To wit, here is what Hoyer has to say about the Slaughter rule:

“We’re going to vote on a bill, on a rule, which would provide for the result that, if a majority are for it, that will adopt a bill, the Senate bill, which has had extensive debate, extensive exposure,” Hoyer said.

“Does anybody in this room doubt that you have to vote on that?” he said. “We will vote on it, in one form or another.”

I rest my case.

Other Self-Executing Rules in Republican-Controlled Houses

Clerical/Technical Corrections to Already Passed Bills

The following House Resolutions represent self-executing rules to deem as passed "clerical" or "technical" correction amendments to bills that have already been voted on and passed by the House:

H.Res.180, 104th Congress, 1995 (amending a Conference Report)
H.Res.393, 104th Congress, 1995 (amending a Conference Report)
H.Res.232, 105th Congress, 1997 (amending a Conference Report)
H.Res.71, 108th Congress, 2003 (amending a Conference Report)

All of the above uses of the self-executing rule apply only to amendments to bills already voted on and passed by the House of Representatives. As such, these House Resolutions do not justify the Slaughter rule to "deem as passed" the Senate health care bill, which the House has never brought to the floor for debate, much less voted and passed.

Consideration of Conference Reports

The following House Resolutions represent self-executing rules to deem as passed the Conference Report to already passed House bills:

H.Res.63, 1933
H.Res.510, 1948
H.Res.391, 104th Congress, 1996

All of the above uses of the self-executing rule apply only to deeming as passed Conference Reports for bills already voted on and passed by the House of Representatives. As such, these House Resolutions do not justify the Slaughter rule to "deem as passed" the Senate health care bill, which the House has never brought to the floor for debate, much less voted and passed.

Specifying House Procedures in Consideration of Other Bills

The following House Resolutions represent self-executing rules to specify the procedures and rules of debate in consideration of other House bills:

H.Res.336, 104th Congress, 1996
(specifying the rules of debate for another bill under consideration by the House)
H.Res.386, 106th Congress, 1999
(tabling a Conference Report)

The above use of the self-executing rule applies only to specifying the procedures and rules of debate for other bills under consideration by the House. These self-executing rules do not deem any bill to be passed. The first represents merely a procedural motion, and the second tables a Conference Report. As such, these House Resolutions do not justify the Slaughter rule to "deem as passed" the Senate health care bill, which the House has never brought to the floor for debate, much less voted and passed.

Summary

The 12 uses of self-executing rules referenced above break down as follows:

Consideration (passage or tabling) of Conference Reports: 5
Passage of clerical or technical correction amendments to Conference Reports: 5
Passage of rules of procedure for the House: 2

None of the referenced uses of a self-executing rule represent passage of a bill that has never been brought to the floor of, debated, and voted on by the House of Representatives. Thus, none of the above referenced uses of a self-executing rule justify, rationalize, or support the use of the Slaughter rule to "deem as passed" the Senate health care bill.

The use of the Slaughter rule to "deem as passed" the Senate health care bill, which has never been brought to the floor of, debated, or voted on by the House of Representatives is, therefore, unprecedented.

2010Thu11Mar

Judicial Malfeasance and Bills of Attainder

Permalink | Shortlink | Comments (1) | TrackbackFiled in PoliticsTags: ACORN, Constitutional Rights, Judiciary, SCOTUS, Separation of Powers

When the US Congress last year voted overwhelmingly to cut off federal funding of ACORN, one may have believed that Congress was exercising its constitutional authority to legislate the appropriation of government funds. According to activist liberal District Judge Nina Gershon, one would be wrong.

ACORN sued the US Government, claiming that the de-funding legislation constituted a bill of attainder, the issuance of which, per Article I Section 9 of the US Constitution, Congress is expressly prohibited. Unsurprisingly, Judge Gershon agreed, and in December issued a temporary injunction against the congressional ACORN funding ban. Yesterday, she made that injunction permanent.

Historical and Constitutional Context

First, some background on bills of attainder. Here is the general definition:

attainder n. The loss of all civil rights by a person sentenced for a serious crime. [< OFr. attaindre, to convict]

TechLawJournal goes into more detail:

"The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature." U.S. v. Brown, 381 U.S. 437, 440 (1965).

"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." William H. Rehnquist, The Supreme Court, page 166.

Bills of Attainder and The Supreme Court

The Supreme Court of the United States (SCOTUS) has construed several cases as representing bills of attainder.

In Ex Parte Garland (1866), SCOTUS held that a law that prohibited Civil War opponents from holding public office constituted a bill of attainder.
In Cummings v. Missouri (1866), SCOTUS held that the amendment of the Missouri Constitution to require an Oath of Loyalty constituted an ex post facto law that prohibited the plaintiff from practicing his profession, and constituted a bill of attainder as punishment without trial.
In US. v. Lovett (1946), SCOTUS held that the withholding of appropriation of salaries of government workers because of their involvement with the Communist party constituted a bill of attainder. Interestingly, the concurring opinion, which concludes that the section in question is not a bill of attainder, discusses the historical meaning and context of bills of attainder, and includes this statement:

"There was always a declaration of guilt either of the individual or the class to which he belonged."

And again:

"But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder. No offense is specified and no declaration of guilt is made."

And finally:

When the framers of the Constitution proscribed bills of attainder, they referred to a form of law which had been prevalent in monarchial England and was employed in the colonies. They were familiar with its nature; they had experienced its use; they knew what they wanted to prevent. It was not a law unfair in general, even unfair because affecting merely particular individuals, that they outlawed by the explicitness of their prohibition of bills of attainder.

(I quote extensively from Lovett, as it is largely upon this decision that Judge Garshon bases her opinion.)
In US v. Brown (1965), SCOTUS held that a law that prohibited members of the Communist party from holding office in labor unions constituted a bill of attainder. In issuing his decision, Chief Justice Warren included several other historical examples of bills of attainder, including capital punishment, confiscation of property, corruption of blood (confiscation of one's estate such that it cannot be passed on through inheritance), banishment, disenfranchisement, and exclusion from holding public office. Warren also expressed that the historical context of the Bill of Attainder clause was intended to enforce the separation of powers and to prevent tyranny by preventing trial by legislature and punishment without trial.
In Nixon v. Administrator of General Services (1977), SCOTUS held that a law requiring former president Richard Nixon to preserve certain presidential papers and effects did not constitute a bill of attainder, finding that:

While the Bill of Attainder Clause serves as an important bulwark against tyranny, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all.

Further that:

The Act's specificity in referring to appellant by name does not automatically offend the Bill of Attainder Clause.

(These providing useful limits on the constitutional scope of the Bill of Attainder clause.)
In Selective Service Administration v. Minnesota PIRG (1984), SCOTUS held that a law requiring proof of registration with Selective Service in order to be eligible for federal student aid did not constitute a bill of attainder. An important finding:

Section 12(f) does not inflict punishment within the meaning of the Bill of Attainder Clause. It imposes none of the burdens historically associated with punishment. It does not even deprive appellees of Title IV benefits permanently, since it leaves open perpetually the possibility of qualifying for aid.

Note that this finding includes limiting the scope of attainder to "the burdens historically associated with punishment".

Summary of SCOTUS Definition and Scope of the Bill of Attainder Clause

Thus, one can readily understand the five-pronged test applied to determine applicability of the Bill of Attainder clause:

A legislative act of Congress (or of a State)
Specifying a readily identifiable individual or group
Declaring the guilt of the person or group regarding a specific offense
Enacting an attainder - or punishment - against the person or group specified
For which that person or group has not been convicted in a judicial trial

To offend the Bill of Attainder clause, a law must declare the guilt of a person or group regarding a specific offense, and must then enact an attainder in response to that guilt. As is demonstrated in the above-referenced SCOTUS decisions, the concept of "attainder" consists of "the burdens historically associated with punishment" - those burdens being generally the deprivation of life, liberty, or property; corruption of blood; disenfranchisement; prohibition from holding public office; or prohibition from earning a living by practicing one's profession.

Further, SCOTUS holds that the mere act of calling out a specific person or group does not offend the Bill of Attainder clause.

These points are crucial to understanding the constitutionality (or lack thereof) of Judge Gershon's ruling.

The ACORN Ruling

Returning to the ACORN ruling, the crux of the plaintiffs' argument can be found on page 9:

Plaintiffs acknowledge that HUD, pursuant to the OLC memorandum, has paid, or has agreed to pay, for work already performed under existing contracts. They contend that congressional suspension of existing contracts and the denial of the opportunity to obtain future contracts amounts to punishment that violates the Bill of Attainder clause.

Gershon quotes from Nixon v. Administrator of General Services to define a bill of attainder as:

...a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.

She then explains the three-pronged test to determine if a statute "directed at a named or readily identifiable party" is punitive:

[F]irst, "whether the challenged statute falls within the historical meaning of legislative punishment"; second, "whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further non-punitive legislative purposes," an inquiry sometimes referred to as the "functional test"; and third, "whether the legislative record evinces a legislative intent to punish."

Of course, in quoting these criteria from Consolidated Edison Company of NY, Inc. v. Pataki, (Con. Ed.) she gives herself an out. Further quoting:

A statute "need not fit all three factors to be considered a bill of attainder, rather, those factors are the evidence that is weighed together in resolving a bill of attainder claim."

(Notice that Gershon quotes not from SCOTUS - from which ample clarification of the definition and scope of the Bill of Attainder clause have come - but rather from a Second Circuit Court of Appeals decision.)

Historical Meaning of Legislative Punishment

Having laid the groundwork, Gershon then proceeds to explain how the ACORN defunding constitutes a bill of attainder. To do so, she quotes liberally from Lovett, in an attempt to conflate the denial of duly earned salary of a government employee to the prohibition of issuing federal contracts to ACORN.

The first problem with this conflation is that, in Lovett, the plaintiffs were duly employed government workers, and the law in question effectively fired them against the wishes of their employing agencies. On the other hand, ACORN is simply a government contractor: an agency attempting to procure government grants and contracts. Thus, the government-employee plaintiffs in Lovett had a reasonable expectation not to remain employed - even a right not to be fired without cause, while ACORN has no reasonable expectation of being granted future government grants or contracts - much less a right to the same.

Gershon attempts to avoid this obvious distinction by invoking a future opportunity claim:

The government attempts to distinguish Lovett on the ground that the plaintiffs in that case had a "vested property interest" in their jobs, whereas here, as plaintiffs unequivocally acknowledge, the have no right to the award of a grant or contract from the federal government. but the Court in Lovett did not base its decision on property rights analysis. The Supreme Court found a deprivation amounting to punishment under the Bill of Attainder clause, not only because plaintiffs were derived of their earned income from existing government jobs, but also because they were deprived of any future opportunity to serve the government. As the Court stated, "[t]his permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type." Id That plaintiffs had no right to any particular job was of no moment.

Gershon's reasoning here is faulty. The government employees in Lovett were clearly "serving the government" in their employment. ACORN clearly was not. If anything, the government was providing a benefit to ACORN, through the awarding of grants and contracts. Further, the government work in which the Lovett plaintiffs were employed constitutes a chosen vocation, from which the statute in question effectively barred the plaintiffs. The ACORN defunding in no way can be construed to have, effectively or otherwise, barred ACORN from its chosen vocation - that vocation ostensibly being voter advocacy, and low-income housing and mortgage counseling.

Gershon then attempts to explain how Selective Service Administration v. Minnesota PIRG is not applicable:

Further, unlike the plaintiffs affected by the statute at issue in Selective Service, plaintiffs here cannot avoid the restrictions imposed upon them. Nothing in the challenged provisions affords plaintiffs an opportunity to overcome the ban.

Again, Gershon's reasoning is faulty. The federal funding ban imposed upon ACORN does not prevent ACORN from engaging in its chosen vocation. ACORN still retains the same rights of every other business in the country, to secure funding or to solicit funds through any other means in the private sector. The inherent implication in Gershon's argument here is that ACORN has a right to government funding. To wit, Gershon then quotes from Nixon and makes the following assertion:

"[I]t has been held permissible for Congress to deprive Communist deportees, as a group, of their social security benefits, but it would surely be a bill of attainder for Congress to deprive a single, named individual of the same benefit...The very specificity would mark it as a punishment, for there is rarely any valid reason for such narrow legislation[.]"

Accordingly, a close reading of the cases indicates that a deprivation of the opportunity to apply for funding in fact fits comfortably within the definition of "punishment" for bill of attainder purposes.

Quite to the contrary, the referenced cases are quite explicit regarding the scope of a "punishment" for bill of attainder purposes. That scope includes deprivation of life, property, or liberty (for example, to pursue a chosen vocation, to vote, to hold public office). Deprivation of the opportunity to apply for public funding in no way resembles the clear scope of a bill of attainder punishment as determined by SCOTUS.

If anything, deprivation of the opportunity to apply for public funding as a claim not against the Bill of Attainder clause, but rather the Due Process clause. However, the plaintiffs have not raised a Due Process claim. In fact, as quoted from Lovett (upon which Gershon relies heavily in her decision) above, the Bill of Attainder clause specifically excludes the sort of general, broad matters encompassed in the Due Process clause [emphasis added]:

When the framers of the Constitution proscribed bills of attainder, they referred to a form of law which had been prevalent in monarchial England and was employed in the colonies. They were familiar with its nature; they had experienced its use; they knew what they wanted to prevent. It was not a law unfair in general, even unfair because affecting merely particular individuals, that they outlawed by the explicitness of their prohibition of bills of attainder.

Thus, plaintiffs may argue that deprivation of the opportunity to apply for public funding is unfair, and a violation of Due Process and/or Equal Protection - but that deprivation is clearly and explicitly not a legislative punishment as evinced by the Bill of Attainder clause.

Functional Test and Legislative History

Next, Gershon moves on to explaining why the statute is punitive. I see no need to discuss either the functional test or the legislative history, as without a justifiable bill of attainder punishment, the question of the punitive nature of the statute is irrelevant. Without a legislative punishment, the statute by definition cannot be punitive.

Failing the Bill of Attainder Test

The ACORN defunding ban fails the Bill of Attainder test on two counts:

Declaring the guilt of the person or group regarding a specific offense
Enacting an attainder - or punishment - against the person or group specified

The matter of legislative punishment has been discussed already. However, Gershon's decision doesn't even address that the statute in question neither names an offense committed by ACORN nor declares ACORN' guilt with respect to such offense. The historical and constitutional context of the Bill of Attainder clause is quite clear that declaration of guilt of a specified offense is required for a statute to be considered to be a bill of attainder. Recall the statement from the concurring opinion in Lovett, upon which Gershon relies heavily in her opinion:

“There was always a declaration of guilt either of the individual or the class to which he belonged.”

This point is quite clear - and that the ACORN statute fails to meet this criterion is equally clear. Had the government, as a result of the ACORN statute, not fulfilled its current contractual obligations to ACORN, then plaintiffs would have had an ex post facto argument; however, as Gershon explains at the beginning of her decision, the government has agreed to fulfill all contractual obligations, and ACORN is not pursuing an ex post facto argument.

Over-Stepping Separation of Power

Having ruled in favor of ACORN, Gershon then issues her ruling, which essentially permanently enjoins all listed plaintiffs (HUD, OMB, Treasury, Commerce, DOD, and EPA) against enforcing (or instructing their subordinates to enforce) the ACORN statute. As a reminder, this statute reads:

None of the funds available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.

Essentially, as the order is written, if any of the listed government agencies denies any future grant or contract to ACORN, it can be accused of violating Judge Gershon's order. In other words, Gershon has just granted ACORN a constitutional right to public funds.

Unfortunately for Judge Gershon, the Constitution grants the right of appropriation of public funds to the Legislature, not to the Judiciary.

BigGovernment.com explains further:

It’s noteworthy that in discussing the Bill of Attainder Clause of the Constitution, the district court failed to discuss at all the Appropriations Clause. That provision states that, “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” In other words, only Congress can dole out federal dollars.

The court fails to consider whether it has the authority to order the executive branch (the Treasury Department) to continue giving federal dollars to ACORN after the legislative branch (Congress) with sole possession of the power of the purse has specifically passed a law barring any such appropriation. This opinion doesn’t even raise the separation-of-powers issue of a court dictating federal spending.

By enjoining every government agency with any contact with ACORN against denying ACORN any public funds, Gershon has compelled the Legislature to appropriate funds against the expressed prerogative of the Legislature. Further, this ruling sets the precedent for any other government contractor for whom a contract (or grant) is cancelled, or not renewed, to petition the courts on a Bill of Attainder claim.

This ruling is a clear case of liberal judicial activism and malfeasance, and represents a frontal assault on the Constitution. Surely SCOTUS will vacate this decision and put Judge Gershon in her place - although, after such a decision, her place is off the federal bench entirely.

2010Wed10Mar

A History Lesson for the President of Goshen College

Permalink | Shortlink | Comments (1) | TrackbackFiled in Religion, Social IssuesTags: Christianity, Conservatism, Constitutional Rights

A recent RedState post detailed the valiant efforts of conservative students at Goshen College (Goshen, IN) to reverse the school's decision to ban the National Anthem. Apparently, the President's Council at the school deemed the lyrics of the song ("the rocket's red glare, the bombs bursting in air") to be incompatible with the school's pacifist Mennonite beliefs.

Fortunately, the story has a happy ending, as the students, led by Sophomore Ryan Troyer, convinced the President's Council to reconsider its stance. The school will now allow an instrumental version of the song to be played before sporting events. However, I take issue with the views expressed by the school's president, Jim Brenneman. I believe Mr. Brenneman is in need of a history lesson.

The statement announcing the decision of the President's Council to permit instrumental versions of the National Anthem includes the following statement:

One concern that many Mennonites have had with the playing of the national anthem has been that it places love for country above love for God. But, Brenneman said, "we believe playing the anthem in no way displaces any higher allegiances, including to the expansive understanding of Jesus – the ultimate peacemaker – loving all people of the world."

As I will demonstrate, the concern that the playing of the national anthem "places love for country above love for God" belies an ignorance of both the historical context and the religious connotation in the content of the anthem.

Regarding the lyrics of The Star Spangled Banner, I remind Mr. Brenneman of the backstory of the poem that would become our National Anthem:

Meanwhile, Britain’s naval force, buoyed by its earlier successful attack on Alexandria, Virginia, was poised to strike Fort McHenry and enter Baltimore Harbor. At 6:30 AM on September 13, 1814, Admiral Cochrane’s ships began a 25-hour bombardment of the fort. Rockets whistled through the air and burst into flame wherever they struck. Mortars fired 10- and 13-inch bombshells that exploded overhead in showers of fiery shrapnel. Major Armistead, commander of Fort McHenry and its defending force of one thousand troops, ordered his men to return fire, but their guns couldn’t reach the enemy’s ships. When British ships advanced on the afternoon of the 13th, however, American gunners badly damaged them, forcing them to pull back out of range. All through the night, Armistead’s men continued to hold the fort, refusing to surrender. That night British attempts at a diversionary attack also failed, and by dawn they had given up hope of taking the city. At 7:30 on the morning of September 14, Admiral Cochrane called an end to the bombardment, and the British fleet withdrew. The successful defense of Baltimore marked a turning point in the War of 1812. Three months later, on December 24, 1814, the Treaty of Ghent formally ended the war.

The Star-Spangled Banner: the flag that flew over Ft. McHenry the morning after the Brittish bombardment during the War of 1812, inspiring Francis Scott Key to write the poem that would become our national Anthem

Because the British attack had coincided with a heavy rainstorm, Fort McHenry had flown its smaller storm flag throughout the battle. But at dawn, as the British began to retreat, Major Armistead ordered his men to lower the storm flag and replace it with the great garrison flag. As they raised the flag, the troops fired their guns and played “Yankee Doodle” in celebration of their victory. Waving proudly over the fort, the banner could be seen for miles around—as far away as a ship anchored eight miles down the river, where an American lawyer named Francis Scott Key had spent an anxious night watching and hoping for a sign that the city—and the nation—might be saved.

...

Friends of Dr. Beanes asked Georgetown lawyer Francis Scott Key to join John S. Skinner, the U.S. government’s agent for dealing with British forces in the Chesapeake, and help secure the release of the civilian prisoner. They were successful; however, the British feared that Key and Skinner would divulge their plans for attacking Baltimore, and so they detained the two men aboard a truce ship for the duration of the battle. Key thus became an eyewitness to the bombardment of Fort McHenry.

This flag - the Stars and Stripes, the Star-Spangled Banner - whose against-all-odds presence inspired Francis Scott key that fateful morning, represented the triumph of freedom over the forces of war. See the third verse:

And where is that band who so vauntingly swore
That the havoc of war and the battle's confusion,
A home and a country should leave us no more!
Their blood has washed out their foul footsteps' pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave:
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.

Thus, in its mention of "the rocket's red glare, the bombs bursting in air," the poem is not romanticizing the war, but rather celebrating the triumph of America - and the freedom our contry represents - against the onslaught of its attackers. Far from glorifying war, Key is praising God for defending "the land of the free and the home of the brave" with which He has blessed us. See the fourth verse:

O! thus be it ever, when freemen shall stand
Between their loved home and the war's desolation!
Blest with victory and peace, may the heav'n rescued land
Praise the Power that hath made and preserved us a nation.
Then conquer we must, when our cause it is just,
And this be our motto: 'In God is our trust.'
And the star-spangled banner in triumph shall wave
O'er the land of the free and the home of the brave!

In fact, it is from this poem in which are rooted not only our national anthem and the symbolism of Old Glory, but also our national motto: "In God We Trust." Far from placing love of country before love of God, the song glorifies God as "the Power that hath made and preserved" our nation, and who has blessed our nation with victory and peace.

If history has proven anything, it has proven that peace requires constant vigilance and struggle against those who would oppress. In the words of Thomas Jefferson, "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure." Even as peacemakers, war can be imposed upon us - and as reprehensible as we may find war to be, those who fight on our behalf do so with a just cause.

The Goshen statement further reads:

In addition, the national anthem is one way that is commonly understood to express an allegiance to the nation of one's citizenship. The college has shown that in the past in other ways: flying a flag on campus, praying for all men and women serving our country, welcoming military veterans as students and employees, annually celebrating the U.S. Constitution and encouraging voting.

It is counter-productive to pray for all men and women serving our country, while at the same time decrying any and all reference to the means they must emply to protect our country and our freedoms - including our freedom to worship God and to live as peacemakers.

Further, I have problem with this statement [emphasis added]:

Finally, the decision was made with the belief that "playing the anthem opens up new possibilities for members of the Goshen College community to publicly offer prophetic critique – if need be – as citizens in the loyal opposition on issues of deepest moral conviction, such as war, racism and human rights abuses," according to the statement by the President's Council announcing their decision.

While the intrinsic tie between the national anthem and war is understood, what, pray tell, does the national anthem have anything to do with racism and human rights abuses? What opportunity does the playing of the national anthem provide for prophetic critique in loyal opposition to racism and human rights abuses? This statement implies that the national anthem represents such matters - an implication that I find to be abhorrent.

The national anthem represents the best of America: a nation founded on the principle that our rights derive from our Creator, and that all men are created equal, and have equal right to life, liberty, and the pursuit of happiness. More American blood has been shed protecting and defending those rights - not only of Americans, but of all people the world over - than that of any other nation in history.

In closing, Mr. Brenneman, I applaud both your willingness to hold open dialogue on the matter of the playing of the national anthem, and your willingness to reconsider your stance. I urge you, however, to temper similar decisions in the future with the sober remembrance of the unique blessing of God that is our great nation, as well as the great sacrifices of our forefathers that have given us the freedoms we exercise - and often take for granted - today.

2010Tue09Mar

Life Expectancy And Quality of Health Care

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Often, proponents of nationalized health care will cite statistics indicating that the US lags with respect to life expectancy as compared with other industrialized nations that have some form of nationalized health care. Such comparisons are largely meaningless; life expectancy is not a meaningful metric of the quality of health care in a given country. As this white paper points out, in order to provide meaningful statistical analysis, a given metric must meet three criteria:

Any statistic that accurately measures health-care systems across nations must satisfy three criteria. First, the statistic must assume actual interaction with the health care system. Second, it must measure a phenomenon that the health care system can actually affect. Finally, the statistic must be collected consistently across nations.

To summarize, a meaningful statistic must:

Assume actual interaction with the health care system
Measure a phenomenon that the health care system can actually affect
Be collected consistently across nations

Life expectancy statistics do not satisfy this three-pronged requirement; in fact, it fails at least two out of three.

Assume Actual Interaction With the Health Care System

Life expectancy cannot be assumed to have actual interaction with the health care system.

Consider the 15 leading causes of death in the US (note: the order changes slightly from year-to-year, especially after the top 5 or so; however, the composition remains essentially the same):

Heart Disease
Cancer
Stroke
Chronic Lower Respiratory Disease
Accidents
Diabetes
Alzheimer's Disease
Influenza/Pneumonia
Kidney Disease
Septicemia
Suicide
Chronic Liver Disease/Cirrhosis
Hypertension
Parkinson's Disease
Homicide

Note that Accidents (including motor vehicle accidents), Suicide, and Homicide cannot be assumed to have actual interaction with the health care system (with suicide being a possible exception). In fact, when adjusting for such non-health-related fatal injuries, the US ranks #1 in the world in Life Expectancy - indicating that, for those causes of death that can be assumed to have actual interaction with the health care system, the US health care system is the best in the world.

Measure a Phenomenon that the Health Care System Can Actually Affect

Given the leading causes of death, life expectancy does not measure phenomena that the US health care system can actually affect.

Consider the three leading causes of death: Heart Disease (30%), Cancer (23%), and Stroke (7%) cause 60% of all deaths in the US. These diseases are almost entirely caused by behavioral/lifestyle choices (diet, exercise, smoking, etc.). Including Chronic Lower Respiratory Disease (4%), which is caused almost entirely by smoking, and Diabetes (3%), which is caused almost entirely by diet, and fully 2/3 of all deaths in the US are caused by lifestyle and behavior choices over which the US health care system has no control or impact. Also including accidents (5%), the US health care system has no control over or impact on more than 70% of all deaths in the US.

And what impact do these behavioral/lifestyle choices have on life expectancy? According to one study, the listed criteria have the following (negative) impact on life expectancy:

Smoking, Hypertension, High Cholesterol: 10 years
Smoking: 6.3 years
Employment Grade: 5.4 years
Diabetes: 3.6 years
Cholesterol: 1.9 years

Other studies have concluded that eradicating cancer deaths would increase life expectancy by 2.7 years, and eradicating risks from heart disease, stroke, and diabetes would increase life expectancy by 14 years.

Efficacy of US Health Care System: Cancer Survival

Further, to the extent that the US health care system may impact the leading causes of death, the US health care system proves its efficacy. Consider cancer: the US dominates Europe with respect to 5-year survival rates for overall cancer, as well as for specific cancers:
And apparently, the Europeans didn't include cancers discovered only upon death - which further skews the disparity. Clearly, to the extent that the health care system has an impact on diagnosis and treatment of cancer, the US health care system far surpasses the health care systems in Europe - and Canada, too, for that matter.

5-year Cancer Survival Rates, US vs. Europe

Recall, the argument in question here is whether or not life expectancy is a meaningful measurement of quality of health care. To preempt some arguments:

It is a matter of efficacy, not of efficiency; thus, health care spending per capita or as a percentage of GDP is irrelevant. The point is that the US health care system is more efficacious with respect to diagnosis and treatment of cancer - a result that provides one argument to refute the assertion that life expectancy is a valid metric of quality of health care.
Presumably, some of that increased spending in the US health care system goes to earlier and more frequent testing, which leads to commensurately earlier and more frequent diagnosis. Thus, the argument that the increased efficacy merely represents increased diagnosis rather than a quantifiable difference in quality of health care is tautological; as an argument, it is specious. With respect to cancer, timing of diagnosis is critical to successful treatment.

Meaningful Metrics of Life Expectancy

As has already been demonstrated, behavioral/lifestyle choices such as diet, exercise, and smoking are the primary contributors to the leading causes of death in the US. Other studies show a correlation between life expectancy and sanitation, clean water, income, and literacy rate. The CDC indicates that improvement in life expectancy in the 20th century can be partially attributed to vaccination, motor vehicle safety, safer workplaces, control of infectious diseases, decline in CHD deaths, safer/healthier foods, healthier mothers/pre-natal care, family planning, fluoridation of drinking water, reduction of tobacco. Yet other studies have identified marriage, religious involvement, optimism, and cleaner air as having positive impact on life expectancy.

Conclusion

Life expectancy is not a meaningful metric of quality of health care.

The health care system cannot be assumed to have an actual interaction with several of the leading causes of death in the US. More than 70% of the deaths in the US result from causes stemming from behavioral and lifestyle choices over which the health care system has no control or impact. For those causes of death upon which the health care system has some impact, the US health care system proves to be far more efficacious than the nationalized health care systems with which it is compared.

As my mother has always said: if it ain't broke, don't fix it - especially when the "fix" is government-controlled health care.

2010Mon08Mar

Dying to Find an Emergency Room

Permalink | Shortlink | Comments (3) | TrackbackFiled in Social IssuesTags: Constitutional Rights, ObamaCare

Reilly Anzovino

Recently, an 18-year-old Canadian girl died in an ambulance en-route to the hospital, due to injuries suffered in a car accident.

The ambulance ride apparently took approximately 30 minutes to reach the Welland hospital, during which time the ambulance was rumored to have run out of oxygen. Ms. Anzovino, desparately in need of a blood transfusion, died shortly before arrival, due to internal bleeding.

Distance of three hospitals from the site of Reilly Anzovino's fatal car accident (click for larger image)

Local authorities have opened an inquiry into the situation, because the girl died while en-route to the emergency room - an emergency room at a hospital two towns away, because the emergency rooms at the two nearest hospitals had been closed.

For reference, see the map to the right.

Local authorities are defending the decision to close the emergency departments at the two hospitals nearest the accident, even though they were warned in advance that just this type of occurrence would result from the decision. The Fort Erie hospital was closed in September 2009. A concerned, retired doctor ardently protested the decision, and months prior, in June 2009, gave the following warning [emphasis added]:

At this point it might be helpful to clarify the different categories of medical emergencies. Basically, an emergency is a threat to life or limb. There are ordinary everyday emergencies and then there are time-critical emergencies. Time-critical emergencies require rapid attention, else death is an imminent risk. Along with all other emergencies, the time-critical ones routinely came directly to the ER where they were promptly moved to the head of the line and dealt with, within minutes, without fanfare. Hence they were next to ‘invisible’ as a type. By downgrading and bypassing ERs, forcing these problems out onto the highway in an ambulance, the non-medical managers have ‘created’ a new and visible time-critical type of emergency. These new time-critical emergencies are really bureaucratic artifacts.

Specifically, people with gunshot wounds in vital areas, unconscious people with difficulty breathing, people in shock bleeding massively, people with drug overdoses, people in anaphylactic shock, people with head injuries, and many more (I cant list them all), are the ones that would ordinarily be those moved to the head of the ER line. If they cannot be put at the head of the line because they are on an ambulance that has bypassed the hospital and is out there somewhere on the highway on a trip to a place too far away, they may just die in that ambulance. And that is in spite of all the good intentions of fine paramedics, for there are still certain things that only a doctor at a hospital can do.

In a statement that perfectly epitomizes the potentially life-threatening bureaucracy of nationalized health care, in response to questioning regarding the impact of the emergency department closures on the death of Ms. Anzovino, the Minister of Health had this to say [emphasis added]:

We are building a health care system in Ontario where every person in Ontario has access to the very best possible care as close to home as possible. Having said that, the reality is that sometimes people will have to travel to another community to be able to access the highly specialized care that is part of today’s health care system. I think people understand that we cannot provide highly specialized care in every community hospital. When it comes to emergency care, it’s vitally important, absolutely essential, that people get to where that specialized care is available as quickly as possible.

And adding insult to inury, regarding the closing of the emergency departments at the two hospitals in question (one of which he promised in 2002 to keep open), the Minister also stated the following:

I am absolutely convinced that the people in Niagara have better quality health care now than they did before.

Tell that to the family of Reilly Anzovino.

Nevermind that the closures are causing a quantifiable delay in emergency care. According to this article, the ambulances, paramedics, and patients are delayed an average of eight hours daily, and hours of wait-time have increased from 130 to 240 hours per month at the Niagra Falls Hospital, due to the shortage of emergency departments in the months since the closures. And the closures were supposedly necessary due to budget shortages, despite a 42% spending increase on health care in the Niagra Region in the past six years.

Aside from the emergency department closures, the region has experienced increased emergency-room wait times, delay and cancellation of surgeries (including serious cancer surgeries), increased hospital-bed closures, and an above-average death rate.

And liberals in the U.S. still wonder why the vast majority of Americans oppose nationalized health care?

Special note: Anzovino's parents have established a memorial scholarship for paramedic students, in their daughter's name. Details here.

2009Tue22Sep

St. Louis Rally To Support Pro-Democracy Honduras

Permalink | Shortlink | Comments (0) | TrackbackFiled in PoliticsTags: Constitutional Rights, Missouri, Saint Louis

Tonight at Papagayos in Maplewood, MO, pro-democracy Hondurans and Americans rallied in support of the constitutional government and President Roberto Micheletti, and against would-be dictator Manuel Zelaya and the despicable actions of the Obama administration. I had the honor of being present, and standing with the St. Louis Honduran community in support of their desire for freedom and constitutional democracy.

[flickr album=72157622436108284 num=4 size=Medium]

I estimated approximately 50-60 in attendance. No counter-protesters showed up. The passing traffic seemed mostly supportive and/or apathetic. I only saw one car that shouted expletives at the rally crowd.

The rally featured several speakers, including Jim Hoft of Gateway Pundit.

HR3200: Tax On Individuals Without Acceptable Coverage

Permalink | Shortlink | Comments (0) | TrackbackFiled in Politics, Social IssuesTags: Constitutional Rights, Health/Nutrition, HR3200, ObamaCare

HR3200 – Reading The Bill: Tax On Individuals Without Acceptable Coverage

I’m really getting sick of supporters of ObamaCare admonishing those who oppose it to read the bill. So, I’m working on a series in which I do just that, framing my opposition to the bill by referencing the actual wording of the proposed legislation.

Up next: HR3200’s tax on individuals without acceptable healthcare coverage, and debunking President Obama's lie that ObamaCare does not impose such a tax.

As part of his Sunday ObamaCare Blitzkreig, Obama told George Stephanopoulos that ObamaCare does not tax individuals who fail to pay for ObamaCare-approved health coverage:

STEPHANOPOULOS: Under this mandate, the government is forcing people to spend money, fining you if you don’t. How is that not a tax?

OBAMA: Well, hold on a second, George. Here -- here's what's happening. You and I are both paying $900, on average -- our families -- in higher premiums because of uncompensated care. Now what I've said is that if you can't afford health insurance, you certainly shouldn't be punished for that. That's just piling on. If, on the other hand, we're giving tax credits, we've set up an exchange, you are now part of a big pool, we've driven down the costs, we've done everything we can and you actually can afford health insurance, but you've just decided, you know what, I want to take my chances. And then you get hit by a bus and you and I have to pay for the emergency room care, that's...

STEPHANOPOULOS: That may be, but it's still a tax increase.

OBAMA: No. That's not true, George. The -- for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I'm not covering all the costs.

STEPHANOPOULOS: But it may be fair, it may be good public policy...

OBAMA: No, but -- but, George, you -- you can't just make up that language and decide that that's called a tax increase.

...

OBAMA: My critics say everything is a tax increase. My critics say that I'm taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we're going to have an individual mandate or not, but...

STEPHANOPOULOS: But you reject that it’s a tax increase?

OBAMA: I absolutely reject that notion.

(H/T Canticle4Leibowitz. Full transcript can be found at ABC.)

Jim Hoft and Bob Leibowitz go on to discuss Stephanopoulos reading Obama the dictionary definition of a tax, and Obama claiming that he was "stretching" the meaning of a tax by quoting the dictionary.

Theirs is certainly valid criticism, but I want to look at the wording of the bill itself, which likewise proves Obama to be telling yet another bald-faced lie.

Refer to pp. 167-168, Title IV — Amendments to Internal Revenue Code of 1986, Subtitle A—Shared Responsibility, Part 1 — Individual Responsibility, Sec. 401. Tax On Individuals Without Acceptable Health Care Coverage [emphasis added]:

IN GENERAL. — Subchapter A of chapter 1 of the Internal Revenue Code of 1986 is amended by adding at the end the following new part:

‘‘PART VIII—HEALTH CARE RELATED TAXES

‘‘SUBPART A. TAX ON INDIVIDUALS WITHOUT ACCEPTABLE HEALTH CARE COVERAGE.

‘‘SEC. 59B. TAX ON INDIVIDUALS WITHOUT ACCEPTABLE HEALTH CARE COVERAGE.

‘‘TAX IMPOSED.—In the case of any individual who does not meet the requirements of subsection (d) at any time during the taxable year, there is hereby imposed a tax equal to 2.5 percent of the excess of—

‘‘the taxpayer’s modified adjusted gross income for the taxable year, over the amount of gross income specified in section 6012(a)(1) with respect to the taxpayer.

This section is fairly straight-forward, and its intent is clear: if you do not pay for ObamaCare-approved health coverage, the IRS will impose a tax on you. The bill amends the IRS tax code, to define a new tax: a tax for failure to maintain acceptable health coverage.

So: a given individual is not paying a certain tax now, but under ObamaCare, that same individual will be paying that tax. That outcome is, by definition, a tax increase.

Oh, and by the way, it's in the Baucus Senate bill, too.)

President Obama: You Lie!

For reference and context, below are the above-referenced excerpts from HR 3200:

167 • HR 3200 IH
TITLE IV—AMENDMENTS TO INTERNAL REVENUE CODE OF 1986
8 Subtitle A—Shared Responsibility
9 PART 1—INDIVIDUAL RESPONSIBILITY
10 SEC. 401. TAX ON INDIVIDUALS WITHOUT ACCEPTABLE
11 HEALTH CARE COVERAGE.
12 (a) IN GENERAL.—Subchapter A of chapter 1 of the
13 Internal Revenue Code of 1986 is amended by adding at
14 the end the following new part:
15 ‘‘PART VIII—HEALTH CARE RELATED TAXES
16 ‘‘Subpart A—Tax on Individuals Without Acceptable
17 Health Care Coverage
18 ‘‘SEC. 59B. TAX ON INDIVIDUALS WITHOUT ACCEPTABLE
19 HEALTH CARE COVERAGE.
20 ‘‘(a) TAX IMPOSED.—In the case of any individual
21 who does not meet the requirements of subsection (d) at
22 any time during the taxable year, there is hereby imposed
23 a tax equal to 2.5 percent of the excess of—

168 • HR 3200 IH
1 ‘‘(1) the taxpayer’s modified adjusted gross in
2 come for the taxable year, over
3 ‘‘(2) the amount of gross income specified in
4 section 6012(a)(1) with respect to the taxpayer.

Coverage elsewhere: FoxNews, The P/Oed Patriot, BluegrassBulletin, Revolution By Constitution, My Take On Life, Politico

2009Wed19Aug

HR3200: Hostility Toward SMBs That Self-Insure

Permalink | Shortlink | Comments (0) | TrackbackFiled in Politics, Social IssuesTags: Constitutional Rights, Health/Nutrition, HR3200, ObamaCare

HR3200 – Reading The Bill: Hostility Toward SMBs That Self-Insure

Up next: HR3200's hostility toward Small and Medium Businesses (SMBs) that self-insure.

We'll start with a look at SEC. 113, INSURANCE RATING RULES. Refer to page 21 line 23 through page 22 line 11, Sec. 113(b)(1)(C):

The Commissioner, in coordination with the Secretary of Health and Human Services and the Secretary of Labor, shall conduct a study of the large group insured and self-insured employer health care markets. Such study shall examine...[t]he financial solvency and capital reserve levels of employers that self-insure by employer size.

Now, I'm not a businessperson; I'm just an engineer. That said, I don't understand how one can "examine...[t]he financial solvency and capital reserve levels" of a company without looking at that company's books. I have seen the argument from the left that this information is available in normal IRS paperwork, but I don't think so. Such IRS documents involve a company's income, expenditures, and losses for a given fiscal year. "Financial solvency and capital reserve levels" cannot be gleaned solely from such data.

Perhaps this information can be gleaned from the publicly available annual financial reports; however, publicly traded companies (which are the ones required to publish annual financial reports) are, I would assume, less likely to self-insure. It is the SMBs that would be most likely to self-insure - and at the same time, less likely to be publicly traded and therefore less likely to publish annual financial reports.

So, from where will the Commissioner get these data, without auditing the books of companies that self-insure?

Further, the bill explicitly states that its intent is to eliminate tax incentives for SMBs to self-insure. Refer to page 22 line 23 to page 23 line 3, Sec. 113(b)(2):

Such report shall include any recommendations the Commissioner deems appropriate to ensure that the law does not provide incentives for small and mid-size employers to self-insure or create adverse selection in the risk pools of large group insurers and self-insured employers.

To make matters worse, under Title VIII, Section 1802, Comparative Effectiveness Research Trust Fund, subsection 1802(b)(1), the bill actually amends Chapter 34 of the Internal Revenue code, adding a new Subchapter B to impose a fine (tax) on companies that self-insure. Refer to page 830, lines 1-9, Sec. 1802(b)(1), quoting Internal Revenue code Chapter 34, Subchapter B, Section 4376, Self-Insured Health Plans:

SEC. 4376. SELF-INSURED HEALTH PLANS.

(a) IMPOSITION OF FEE.—In the case of any applicable self-insured health plan for each plan year, there is hereby imposed a fee equal to the fair share per capita amount determined under section 9511(c)(1) multiplied by the average number of lives covered under the plan.

(b) LIABILITY FOR FEE.—

(1) IN GENERAL.—The fee imposed by subsection (a) shall be paid by the plan sponsor.

So, what is the "fair share per capita" fee amount? It is defined as follows:

Subject to subparagraph (B), the fair share per capita amount under this paragraph for a fiscal year (beginning with fiscal year 2013) is an amount computed by the Secretary of Health and Human Services for such fiscal year that, when applied under this section and subchapter B of chapter 34 of the Internal Revenue Code of 1986, will result in revenues to the CERTF of $375,000,000 for the fiscal year.

In other words, take $375 million, divide by the total of all employees under an employer self-insurance plan, and you get the "fair share per capita amount".

According to this report, 73 million Americans were in self-insurance plans in 2007. Using this number, employers who self-insure will be taxed at least $5 per employee, just to help fund the Health Care Comparative Effectiveness Research Trust Fund (CERTF).

So, to summarize, HR3200 is hostile toward SMBs that self-insure:

SMBs that self-insure will be subjected to auditing in order to examine... financial solvency and capital reserve levels"
Recommendations will be made to ensure that tax laws "does not provide incentives for small and mid-size employers to self-insure"
SMBs that self-insure will be subjected to a "fair share per capita" tax to help fund the Health Care Comparative Effectiveness Research Trust Fund (CERTF)

For reference and context, below are the above-referenced excerpts from HR 3200:

Page 21•HR 3200
22 (b) STUDY AND REPORTS.—
23 (1) STUDY.—The Commissioner, in coordina
24 tion with the Secretary of Health and Human Serv
25 ices and the Secretary of Labor, shall conduct a
26 study of the large group insured and self-insured
Page 22•HR 3200
1 employer health care markets. Such study shall ex
2 amine the following:
3 (A) The types of employers by key charac
4 teristics, including size, that purchase insured
5 products versus those that self-insure.
6 (B) The similarities and differences be
7 tween typical insured and self-insured health
8 plans.
9 (C) The financial solvency and capital re
10 serve levels of employers that self-insure by em
11 ployer size.
12 (D) The risk of self-insured employers not
13 being able to pay obligations or otherwise be
14 coming financially insolvent.
15 (E) The extent to which rating rules are
16 likely to cause adverse selection in the large
17 group market or to encourage small and mid
18 size employers to self-insure
19 (2) REPORTS.—Not later than 18 months after
20 the date of the enactment of this Act, the Commis
21 sioner shall submit to Congress and the applicable
22 agencies a report on the study conducted under
23 paragraph (1). Such report shall include any rec
24 ommendations the Commissioner deems appropriate
25 to ensure that the law does not provide incentives
Page 23 •HR 3200
1 for small and mid-size employers to self-insure or
2 create adverse selection in the risk pools of large
3 group insurers and self-insured employers. Not later
4 than 18 months after the first day of Y1, the Com
5 missioner shall submit to Congress and the applica
6 ble agencies an updated report on such study, in
7 cluding updates on such recommendations.

Page 830 •HR 3200
1 ‘‘SEC. 4376. SELF-INSURED HEALTH PLANS.
2 ‘‘(a) IMPOSITION OF FEE.—In the case of any appli
3 cable self-insured health plan for each plan year, there is
4 hereby imposed a fee equal to the fair share per capita
5 amount determined under section 9511(c)(1) multiplied by
6 the average number of lives covered under the plan.
7 ‘‘(b) LIABILITY FOR FEE.—
8 ‘‘(1) IN GENERAL.—The fee imposed by sub
9 section (a) shall be paid by the plan sponsor.
10 ‘‘(2) PLAN SPONSOR.—For purposes of para
11 graph (1) the term ‘plan sponsor’ means—
12 ‘‘(A) the employer in the case of a plan es
13 tablished or maintained by a single employer,
14 ‘‘(B) the employee organization in the case
15 of a plan established or maintained by an em
16 ployee organization,
17 ‘‘(C) in the case of—
18 ‘‘(i) a plan established or maintained
19 by 2 or more employers or jointly by 1 or
20 more employers and 1 or more employee
21 organizations,
22 ‘‘(ii) a multiple employer welfare ar
23 rangement, or
24 ‘‘(iii) a voluntary employees’ bene
25 ficiary association described in section
26 501(c)(9),
Page 831 •HR 3200
1 the association, committee, joint board of trust
2 ees, or other similar group of representatives of
3 the parties who establish or maintain the plan,
4 or
5 ‘‘(D) the cooperative or association de
6 scribed in subsection (c)(2)(F) in the case of a
7 plan established or maintained by such a coop
8 erative or association.
9 ‘‘(c) APPLICABLE SELF-INSURED HEALTH PLAN.—
10 For purposes of this section, the term ‘applicable self-in
11 sured health plan’ means any plan for providing accident
12 or health coverage if—
13 ‘‘(1) any portion of such coverage is provided
14 other than through an insurance policy, and
15 ‘‘(2) such plan is established or maintained—
16 ‘‘(A) by one or more employers for the
17 benefit of their employees or former employees,
18 ‘‘(B) by one or more employee organiza
19 tions for the benefit of their members or former
20 members,
21 ‘‘(C) jointly by 1 or more employers and 1
22 or more employee organizations for the benefit
23 of employees or former employees,
24 ‘‘(D) by a voluntary employees’ beneficiary
25 association described in section 501(c)(9),
Page 832 •HR 3200
1 ‘‘(E) by any organization described in sec
2 tion 501(c)(6), or
3 ‘‘(F) in the case of a plan not described in
4 the preceding subparagraphs, by a multiple em
5 ployer welfare arrangement (as defined in sec
6 tion 3(40) of Employee Retirement Income Se
7 curity Act of 1974), a rural electric cooperative
8 (as defined in section 3(40)(B)(iv) of such Act),
9 or a rural telephone cooperative association (as
10 defined in section 3(40)(B)(v) of such Act).

Page 825 •HR 3200
5 ‘‘(c) FAIR SHARE PER CAPITA AMOUNT.—
6 ‘‘(1) COMPUTATION.—
7 ‘‘(A) IN GENERAL.—Subject to subpara
8 graph (B), the fair share per capita amount
9 under this paragraph for a fiscal year (begin
10 ning with fiscal year 2013) is an amount com
11 puted by the Secretary of Health and Human
12 Services for such fiscal year that, when applied
13 under this section and subchapter B of chapter
14 34 of the Internal Revenue Code of 1986, will
15 result in revenues to the CERTF of
16 $375,000,000 for the fiscal year.
17 ‘‘(B) ALTERNATIVE COMPUTATION.—
18 ‘‘(i) IN GENERAL.—If the Secretary is
19 unable to compute the fair share per capita
20 amount under subparagraph (A) for a fis21
cal year, the fair share per capita amount
22 under this paragraph for the fiscal year
23 shall be the default amount determined
24 under clause (ii) for the fiscal year.
Page 826 •HR 3200
1 ‘‘(ii) DEFAULT AMOUNT.—The default
2 amount under this clause for—
3 ‘‘(I) fiscal year 2013 is equal to
4 $2; or
5 ‘‘(II) a subsequent year is equal
6 to the default amount under this
7 clause for the preceding fiscal year in
8 creased by the annual percentage in
9 crease in the medical care component
10 of the consumer price index (United
11 States city average) for the 12-month
12 period ending with April of the pre
13 ceding fiscal year.
14 Any amount determined under subclause
15 (II) shall be rounded to the nearest penny.
16 ‘‘(2) LIMITATION ON MEDICARE FUNDING.—In
17 no case shall the amount transferred under sub
18 section (b)(4)(B) for any fiscal year exceed
19 $90,000,000.

2009Fri14Aug

HR3200: You Will Lose Your Current Insurance

Permalink | Shortlink | Comments (6) | TrackbackFiled in Politics, Social IssuesTags: Constitutional Rights, Health/Nutrition, HR3200, ObamaCare

HR3200 - Reading The Bill: You Will Lose Your Current Insurance

I'm really getting sick of supporters of ObamaCare admonishing those who oppose it to read the bill. So, I'm starting a series in which I do just that, framing my opposition to the bill by referencing the actual wording of the proposed legislation.

Up first: Obama's claim that "if you like your current plan, you can keep it."

This claim is a bald-faced lie, and one that I will demonstrate using the wording of the bill itself. Whatever your private insurance coverage is today, whether or not you are satisfied with it, you will be forced to move to another plan by 2018.

First, some background. Page 14 defines "Y1" through "Y5" as years 2013 and following. So, anything in the bill that takes place in Y1 takes place in 2013, and Y5 in 2017.

Now, let's get into the heart of the matter. Start with this statement from Page 19, lines 1-5:

IN GENERAL.—Individual health insurance coverage that is not grandfathered health insurance coverage under subsection (a) may only be offered on or after the first day of Y1 as an Exchange-participating health benefits plan.

We can establish thus far that, as of January 1, 2013, all health insurance plans must be either a) an "Exchange-participating" benefits plan, or b) a grandfathered plan.

An "Exchange-participating" benefits plan is, essentially, any plan that is "qualified" under HR 3200, according to qualification rules that will be determined and implemented by the government.

So, what is a "grandfathered" plan? From the rhetoric coming from Obama, one would assume that all currently existing plans would be "grandfathered". Not so.

According to Page 16, lines 3-26, Section 102, PROTECTING THE CHOICE TO KEEP CURRENT COVERAGE:

GRANDFATHERED HEALTH INSURANCE COVERAGE DEFINED.—Subject to the succeeding provisions of this section, for purposes of establishing acceptable coverage under this division, the term ‘‘grandfathered health insurance coverage’’ means individual health insurance coverage that is offered and in force and effect before the first day of Y1 if the following conditions are met:

(1) LIMITATION ON NEW ENROLLMENT.—

(A) IN GENERAL.—Except as provided in this paragraph, the individual health insurance issuer offering such coverage does not enroll any individual in such coverage if the first effective date of coverage is on or after the first day of Y1.

(B) DEPENDENT COVERAGE PERMITTED.—Subparagraph (A) shall not affect the subsequent enrollment of a dependent of an individual who is covered as of such first day.

(2) LIMITATION ON CHANGES IN TERMS OR CONDITIONS.—Subject to paragraph (3) and except as required by law, the issuer does not change any of its terms or conditions, including benefits and cost-sharing, from those in effect as of the day before the first day of Y1.

See that? Not all pre-existing plans will be considered as "grandfathered"; but rather only those that meet two very important conditions. To be considered "grandfathered", a plan must:

Exist prior to January 1, 2013,
Not enroll any new members on or after January 1, 2013 (except for adding dependents to existing plans, and
Not change any of its terms or conditions on or after January 1, 2013

Now, how tenable are those requirements? Not very.

Are you insured through your employer? Do you think that your company will hire any new employees on or after January 1, 2013? Do you think that your employer will want to add those new employees to the company insurance plan? Do you think that your company might want to negotiate new or better coverage, or changes to deductibles, or make any other routine changes to your plan?

Of course. And if so, your insurance plan will no longer be grandfathered. Once it is no longer grandfathered, it will be subject to government control and subject to the requirements and qualifications for "Exchange-participating" plans.

However, let's make the extreme assumption that such a plan will exist, and will remain viable. You're in the clear, right? You'll be able to keep that coverage for as long as your grandfathered plan doesn't change and doesn't enroll any new members, right?

Wrong.

According to page 17, lines 11-19, Sec. 102(b), GRACE PERIOD FOR CURRENT EMPLOYMENT
9 BASED HEALTH PLANS:

IN GENERAL.—The Commissioner shall establish a grace period whereby, for plan years beginning after the end of the 5-year period beginning with Y1, an employment-based health plan in operation as of the day before the first day of Y1 must meet the same requirements as apply to a qualified health benefits plan under section 101, including the essential benefit package requirement under section 121.

Now, what is "an employment-based health plan in operation as of the day before the first day of Y1"? You guessed it: an otherwise "grandfathered" plan.

This clause clearly indicates that "grandfathered" plans are only truly grandfathered for the first five years (2013-2017). After this "grace period", all pre-existing employment-based health plans will be subject to government control and subject to the requirements and qualifications for "Exchange-participating" plans.

Thus, we have indisputably established that, according to the wording of HR 3200, you will be forced into a different health coverage plan from the one you have today, by 2018.

For reference and context, below is TITLE I—PROTECTIONS AND STANDARDS FOR QUALIFIED HEALTH BENEFITS PLAN Subtitle A—General Standards, pages 14-19 of HR 3200:

Page 14 •HR 3200

14 TITLE I—PROTECTIONS AND
15 STANDARDS FOR QUALIFIED
16 HEALTH BENEFITS PLANS
17 Subtitle A—General Standards
18 SEC. 101. REQUIREMENTS REFORMING HEALTH INSUR
19 ANCE MARKETPLACE.
20 (a) PURPOSE.—The purpose of this title is to estab
21 lish standards to ensure that new health insurance cov
22 erage and employment-based health plans that are offered
23 meet standards guaranteeing access to affordable cov
24 erage, essential benefits, and other consumer protections.

Page 15 •HR 3200

1 (b) REQUIREMENTS FOR QUALIFIED HEALTH BENE
2 FITS PLANS.—On or after the first day of Y1, a health
3 benefits plan shall not be a qualified health benefits plan
4 under this division unless the plan meets the applicable
5 requirements of the following subtitles for the type of plan
6 and plan year involved:
7 (1) Subtitle B (relating to affordable coverage).
8 (2) Subtitle C (relating to essential benefits).
9 (3) Subtitle D (relating to consumer protec
10 tion).
11 (c) TERMINOLOGY.—In this division:
12 (1) ENROLLMENT IN EMPLOYMENT-BASED
13 HEALTH PLANS.—An individual shall be treated as
14 being ‘‘enrolled’’ in an employment-based health
15 plan if the individual is a participant or beneficiary
16 (as such terms are defined in section 3(7) and 3(8),
17 respectively, of the Employee Retirement Income Se
18 curity Act of 1974) in such plan.
19 (2) INDIVIDUAL AND GROUP HEALTH INSUR
20 ANCE COVERAGE.—The terms ‘‘individual health in
21 surance coverage’’ and ‘‘group health insurance cov
22 erage’’ mean health insurance coverage offered in
23 the individual market or large or small group mar
24 ket, respectively, as defined in section 2791 of the
25 Public Health Service Act.

Page 16 •HR 3200

1 SEC. 102. PROTECTING THE CHOICE TO KEEP CURRENT
2 COVERAGE.
3 (a) GRANDFATHERED HEALTH INSURANCE COV
4 ERAGE DEFINED.—Subject to the succeeding provisions of
5 this section, for purposes of establishing acceptable cov
6 erage under this division, the term ‘‘grandfathered health
7 insurance coverage’’ means individual health insurance
8 coverage that is offered and in force and effect before the
9 first day of Y1 if the following conditions are met:
10 (1) LIMITATION ON NEW ENROLLMENT.—
11 (A) IN GENERAL.—Except as provided in
12 this paragraph, the individual health insurance
13 issuer offering such coverage does not enroll
14 any individual in such coverage if the first ef
15 fective date of coverage is on or after the first
16 day of Y1.
17 (B) DEPENDENT COVERAGE PER
18 MITTED.—Subparagraph (A) shall not affect
19 the subsequent enrollment of a dependent of an
20 individual who is covered as of such first day.
21 (2) LIMITATION ON CHANGES IN TERMS OR
22 CONDITIONS.—Subject to paragraph (3) and except
23 as required by law, the issuer does not change any
24 of its terms or conditions, including benefits and
25 cost-sharing, from those in effect as of the day be
26 fore the first day of Y1.

Page 17 •HR 3200

1 (3) RESTRICTIONS ON PREMIUM INCREASES.—
2 The issuer cannot vary the percentage increase in
3 the premium for a risk group of enrollees in specific
4 grandfathered health insurance coverage without
5 changing the premium for all enrollees in the same
6 risk group at the same rate, as specified by the
7 Commissioner.
8 (b) GRACE PERIOD FOR CURRENT EMPLOYMENT
9 BASED HEALTH PLANS.—
10 (1) GRACE PERIOD.—
11 (A) IN GENERAL.—The Commissioner
12 shall establish a grace period whereby, for plan
13 years beginning after the end of the 5-year pe
14 riod beginning with Y1, an employment-based
15 health plan in operation as of the day before
16 the first day of Y1 must meet the same require
17 ments as apply to a qualified health benefits
18 plan under section 101, including the essential
19 benefit package requirement under section 121.
20 (B) EXCEPTION FOR LIMITED BENEFITS
21 PLANS.—Subparagraph (A) shall not apply to
22 an employment-based health plan in which the
23 coverage consists only of one or more of the fol
24 lowing:

Page 18 •HR 3200

1 (i) Any coverage described in section
2 3001(a)(1)(B)(ii)(IV) of division B of the
3 American Recovery and Reinvestment Act
4 of 2009 (Public Law 111–5).
5 (ii) Excepted benefits (as defined in
6 section 733(c) of the Employee Retirement
7 Income Security Act of 1974), including
8 coverage under a specified disease or ill
9 ness policy described in paragraph (3)(A)
10 of such section.
11 (iii) Such other limited benefits as the
12 Commissioner may specify.
13 In no case shall an employment-based health
14 plan in which the coverage consists only of one
15 or more of the coverage or benefits described in
16 clauses (i) through (iii) be treated as acceptable
17 coverage under this division
18 (2) TRANSITIONAL TREATMENT AS ACCEPT
19 ABLE COVERAGE.—During the grace period specified
20 in paragraph (1)(A), an employment-based health
21 plan that is described in such paragraph shall be
22 treated as acceptable coverage under this division.
23 (c) LIMITATION ON INDIVIDUAL HEALTH INSURANCE
24 COVERAGE.—

Page 19•HR 3200

1 (1) IN GENERAL.—Individual health insurance
2 coverage that is not grandfathered health insurance
3 coverage under subsection (a) may only be offered
4 on or after the first day of Y1 as an Exchange-par
5 ticipating health benefits plan.
6 (2) SEPARATE, EXCEPTED COVERAGE PER
7 MITTED.—Excepted benefits (as defined in section
8 2791(c) of the Public Health Service Act) are not
9 included within the definition of health insurance
10 coverage. Nothing in paragraph (1) shall prevent the
11 offering, other than through the Health Insurance
12 Exchange, of excepted benefits so long as it is of
13 fered and priced separately from health insurance
14 coverage.

2009Sat18Apr

A Critical Look at the DHS Report on Rightwing Extremism

Permalink | Shortlink | Comments (2) | TrackbackFiled in Politics, Social IssuesTags: Constitutional Rights, Democrats, Military, Republicans, War on Terror

I know I'm a few days late in responding to this story, but it has taken me a while to put my response together.

Mere weeks after the MIAC terrorism report came to light (and was subsequently rescinded due to public outrage), The Liberty Papers and Roger Hedgecock broke the story about an eerily similar report out of the U.S. Department of Homeland Security, titled Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment (PDF report from Michelle Malkin).

Generally speaking, the issues with the Rightwing Report, which the DHS has confirmed and stands behind, can be grouped as follows:

Overly broad definition of "rightwing extremism" (RWE) that conflates right-wing ideology/socio-political views with extremism/violence (i.e. MIAC II)
Failure to identify RWE groups or individuals, identify any evidence of risk of impending rightwing extremist violence, or specify/quantify assessments
Downplaying the differentiation between mainstream rightwing groups and lone wolf fringe extremists, and the relative risk of each
Conflation of militia movement with extremism/voilence (i.e. MIAC II)
Conflation of disagreement with liberal policy changes with racism
Conflation of racism (and anti-semitism) and "rightwing extremism"
Conflation of racist beliefs with anti-government beliefs
Conflation of economic downturn/poverty with rightwing radicalization
Failure to cite sources for assessments/assertions

Each of these points will be addressed at length, below.

Very quickly, the story exploded on the right, including Michelle Malkin, Red State (including Moe Lane, Warner Todd Huston, and Hogan), WorldNetDaily, The Anchoress, Legal Insurrection, HotAir, and PowerLine (to whose post I will return shortly).

The outrage hasn't been limited to the blogosphere. This Ain't Hell, Michelle Malkin, and Gateway Pundit reported on the American Legion's response to the report's implications toward returning military veterans. Likewise, Michelle Malkin and RedState (including Warner Todd Huston and E Pluribus Unum) report that seven U.S. Senators have sent a letter to Janet Napolitano demanding that she produce the evidence used as the basis for the report. Also, Designated Conservative reports that the Thomas More Law Center has filed a request with the DHS challenging the report.

Apparently, though, some don't seem to understand the problem. Charles Johnson of LGF has deemed outrage at the report to be the stuff of the "black helicopter" crowd. Informed Speculation (the erstwhile Decision '08) fails to understand the indignation. Strata-sphere calls the response "hemming and hawing", and "shrillness." Likewise, "moderates" are dismissing the outrage.

The primary argument of those who dismiss this outrage is that DHS has issued similar reports regarding leftwing extremism. The secondary argument appears to be that DHS should be concerned with potential acts of violence, whether they originate from the left or from the right. The final - and most particularly asinine - argument is that the report originated with the Bush Administration.

(Ed Morrissey and Michelle Malkin smack down the latter argument. Napolitano was in such a hurry to get the report out that she failed to address internal civil liberties concerns regarding wording of the report's definition of "rightwing extremism.")

Since the story first broke, the Leftwing Extremism report has surfaced: Leftwing Extremists Likely to Increase Use of Cyber Attacks over the Coming Decade (PDF report from FOX News). Unfortunately, the Leftwing Extremism report in no way resembles the Rightwing Extremism report, as I will address shortly. Also, a reading of the two reports provides the response to the latter argument. Real, hard evidence of past and continued leftwing extremist violence exists and provides the basis and support for the Leftwing Extremism report; however, baseless conjecture provides the basis and support for the Rightwing Extremism report, which even states that no evidence whatsoever exists that rightwing extremist violence represents a current threat.

(Note: The Rightwing Extremism report was prepared by the Extremism and Radicalization Branch, Homeland Environment Threat Analysis Division and coordinated with the FBI. The Leftwing Extremism report was prepared by the Strategic Analysis Group, Homeland Environment and Threat Analysis Division.)

Rather than the mere existence of a Leftwing Extremism report quelling the expressed concern regarding the Rightwing Extremism report, a reading of the Leftwing Extremism report actually confirms much of that concern:

First, the Leftwing Extremism report provides a very narrowly focused definition of leftwing extremism, including in the definition not just ideology but also that such extremists display a willingness to violate the law to acheive their objectives.

Second, the Leftwing Extremism report specifically names the extremist groups to which the report applies. The report differentiates between animal/environmental rights extremists and anarchist extremists. The report lists by name such animal/environmental groups as Animal Liberation Front, Earth Liberation Front, Stop Huntingdon Animal Cruelty, elements of Animal Defense League, and Earth First; and such anarchist groups as Crimethinc, the Ruckus Society, and Recreate 68.

Note: oddly, the report includes not merely "anti-government" but also the following ideologies under "anarchist": anticapitalist, antiglobalization, communist, and socialist, anti-Western-government, and anti-large-business. Regardless of the "anarchist" designation for these ideologies, the report - rightly so - includes them as leftwing (further putting the lie to the Rightwing Extremism report that attempts to lump some of these ideologies under rightwing extremism).

Rather than imagining some perceived risk or threat of violence where no supporting evidence exists, the report identifies concrete examples of recent leftwing extremist violence, and bases its assessments on those examples.

Third, rather than implying that all ideologically similar groups fall under the extremist definition, the report clearly states in its definition of Leftwing Extremists that these such groups tend to be composed of lone wolves, small cells, and splinter groups, rather than being hierarchally organized.

Fourth, the Leftwing Extremism report provides a source summary statement, explaining its methodology and sourcing of information from which the report's assessments are derived.

Each of these points is in direct, stark contrast with the Rightwing Extremism report, as I will explain. (Related: Jonah Goldberg posts quite a few reader comments making similar points comparing and contrasting the two reports.

The critical point that the nay-sayers appear to be missing is that such a report has consequences. Already, (via Liberty Papers) the report has led to tea party protesters in southern Maryland being labeled as a potential concern. And as the NRO Corner points out, the report is part of a pattern for Obama.

Now, on to the report itself. Here are my issues with the report, point by point.

#1 Overly broad definition of "rightwing extremism" (RWE) that conflates right-wing ideology/socio-political views with extremism/violence (i.e. MIAC II)

Unlike the Leftwing Extremism report, which differentiated between ideology and proclivity toward acts of violence, the Rightwing Extremism report makes no such differentiation.

A footnote on page 2 of 9 of the report provides the report's definition of "rightwing extremism":

Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.

This definition of "rightwing extremism" is the foundation for the report, and the assessments made thereafter reflect this foundation - including its inherent problems and incorrect conflations. Both this definition and the report itself incorrectly conflate racism (including anti-semitism) with rightwing extremism, racist beliefs with anti-government beliefs, the militia movement with extremism/violence, right-wing ideology/socio-political views with extremism/violence, and disagreement with liberal policy changes with racism. In so doing, both this definition and the report itself fail to identify RWE groups or individuals and fail to offer any specification or quantification of the assessments made.

Later, having implicated the "militia movement" and white supremacists as falling within its definition of "rightwing extremists", the report identifies the ideological issues of these entities. Under Revisiting the 1990s on page 4 of 9 of the report:

Paralleling the current national climate, rightwing extremists during the 1990s exploited a variety of social issues and political themes to increase group visibility and recruit new members. Prominent among these themes were the militia movement's opposition to gun control efforts, criticism of free trade agreements (particularly those with Mexico), and highlighting perceived government infringement on civil liberties as well as white supremacists' longstanding exploitation of social issues such as abortion, inter-racial crimes, and same-sex marriage.

The report's definition of RWE also includes the following:

Rightwing extremism in the United States ...may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.

Of course, the report takes a page from the MIAC report - and typical liberal obfuscation - by claiming rightwing opposition to "immigration", when in fact rightwing ideology is opposed not to immigration but rather to illegal immigration. Opposition to illegal immigration is generally a rightwing issue; however, xenophobia - which is far more likely to lead to anti-immigrant (illegal or otherwise) violence - is by no means a rightwing ideology.

Anti-abortionism is clearly a rightwing ideology, and abortion clinic bombing and other similar acts of violence are rightly considered to be rightwing extremism. Oddly, the report neither discusses the past trends in, nor assesses the future risk of, such anti-abortion extremism.

Thus, putting together all of the above, all of the following ideologies are included as potentially related to "rightwing extremism":

hatred of particular religious, racial or ethnic groups
antigovernment
- rejecting federal authority in favor of state or local authority
- rejecting government authority entirely
abortion
(illegal) immigration
opposition to gun control efforts
criticism of free trade agreements (particularly those with Mexico)
"perceived" government infringement on civil liberties
inter-racial crimes
and same-sex marriage.

This definition of "rightwing extremism" is so overly broad that it actually includes leftwing ideology. The report frequently references and discusses racism and white supremacists; however, white supremacists (National Socialists, Aryan Nation, etc.) generally adhere to socialist - i.e. leftwing - ideology. Likewise, most criticism of free trade agreements has come from not from the right but rather from the left.

Worse, having made an overly broad definition of "rightwing extremism", the report later asserts that "rightwing extremists" are, as a group, mutually exclusive from "law-abiding Americans". On page 6 of 9, under Judicial Drivers, the report states:

Open source reporting of wartime ammunition shortages has likely spurred rightwing extremists - as well as law-abiding Americans - to make bulk purchases of ammunition. These shortages have increased the cost of ammunition, further exacerbating rightwing extremist paranoia and leading to further stockpiling activity. Both rightwing extremists and law-abiding citizens share a belief that rising crime rates attributed to a slumping economy make the purchase of legitimate firearms a wise move at this time.

Not once, but twice in the same paragraph, the report indicates that "rightwing extremists" are not law-abiding Americans.

Whether intentional or unintentional, the implication being made by the report is unmistakable: rightwing extremism is defined by ideology devoid of proclivity toward violence, and rightwing extremists are by definition not law-abiding citizens.

#2 Failure to identify RWE groups or individuals, identify evidence of risk of impending rightwing extremism violence, or specify/quantify assessments

Unlike the Leftwing Extremism report, which explicitly names the leftwing groups to which the report applies, the Rightwing Extremism report fails to identify any rightwing groups explicitly. Further, unlike the Leftwing Extremism report, which identifies explicit acts of violence committed by leftwing extremists (as well as communications indicating intent to continue such acts) and bases its assessments on those acts, the Rightwing Extremism report indicates that no evidence exists that rightwing extremists are intending to commit any acts of violence - and then proceeds to assert baseless speculation of an increased risk of rightwing extremists committing acts of violence. The Rightwing Extremism report consistently references "extremist groups" and "militia members", but likewise consistently fails to identify any such groups or militias by name. The report identifies only two entities by name: Timothy McVeigh, and Christian Identity.

On page 2 of 9, under Key Findings, the report states:

The DHS/Office of Intelligence and Analysis (I&A) has no specific information that domestic rightwing terrorists are currently planning acts of violence, but rightwing extremists may be gaining new recruits by playing on their fears about several emergent issues.

The report asserts that "rightwing extremists" may be gaining new recruits, but fails to identify any such groups. Nor does the report offer any statistics on increase in numbers of recruits.

The first bullet point under this paragraph indicates:

Threats from white supremacist and violent antigovernment groups during 2009 have been largely rhetorical and have not indicated plans to carry out violent acts.

Again, the report apparently has some specific knowledge of some sort of rhetoric, yet fails to identify the groups for which this rhetoric is known.

The second bullet point makes a similar assertion:

Rightwing extremists have capitalized on the election of the first African American president, and are focusing their efforts to recruit new members, mobilize existing supporters, and broaden their scope and appeal through propaganda, but they have not yet turned to attack planning.

Once again, the report apparently has some specific knowledge of some groups capitalizing on the election of the first African American president, yet fails to identify any such groups.

On page 3 of 9, under Exploiting Economic Downturn, the report states:

Rightwing extremist chatter on the Internet continues to focus on the economy, the perceived loss of U.S. jobs in the manufacturing and construction sectors, and home foreclosures.

Again, the report apparently has some specific knowledge of extremist Internet "chatter", yet fails to identify the source of or the groups participating in such chatter.

On the same page, under Historic Presidential Election, the report states:

Rightwing extremists are harnessing this historical election as a recruitment tool. Many rightwing extremists are antagonistic toward the new presidential administration and its perceived stance on a range of issues, including immigration and citizenship, the expansion of social programs to minorities, and restrictions on firearms ownership and use. Rightwing extremists are increasingly galvanized by these concerns and leverage them as drivers for recruitment. From the 2008 election timeframe to the present, rightwing extremists have capitalized on related racial and political prejudices in expanded propaganda campaigns, thereby reaching out to a wider audience of potential sympathizers.

Again, the report apparently has some specific knowledge of RWEs harnessing the election as a recruitment tool, yet fails to identify any such groups. Nor does the report offer any statistics on increase in numbers of recruits.

The subsequent bullet point states:

Most statements by rightwing extremists have been rhetorical, expressing concerns about the election of the first African American president, but stopping short of calls for violent action.

Again, the report apparently has some specific knowledge of some sort of rhetoric, yet fails to identify the groups for which this rhetoric is known.

The bullet point continues:

In two instances in the run-up to the election, extremists appeared to be in the early planning stages of some threatening activity targeting the Democratic nominee, but law enforcement interceded.

And again, the report references specific incidents, yet fails to identify the involved parties (much less, any group to which they may have belonged).

On page 5 of 9, under Illegal Immigration, the report states:

Over the past five years, various rightwing extremists, including militias and white supremacists, have adopted the immigration issue as a call to action, rallying point, and recruiting tool.

Again, the report apparently has some specific knowledge of militias and white supremacists adopting the illegal immigration issue, yet fails to identify any such groups. Nor does the report offer any statistics on increase in numbers of recruits.

On page 5 of 9, under Legislation and Judicial Drivers, the report states:

Many rightwing extremist groups perceive recent gun control legislation as a threat to their right to bear arms and in response have increased weapons and ammunition stockpiling, as well as renewed participation in paramilitary training exercises.

Once again, the report apparently has some specific knowledge of groups increasing weapons and ammunition stockpiling and renewing participation in paramilitary training exercises, yet fails to identify any such groups. Nor does the report offer any statistics on increase weapons/ammunition stockpiling.

The report offers the same treatment of so-called disgruntled military veterans; however, this discussion is addressed previously and not repeated here.

On page 8 of 9, under Outlook, the report states:

Following the 1995 bombing of the Alfred P. Murrah federal building in Oklahoma City, the militia movement declined in total membership and in the number of organized groups because many members distanced themselves from the movement as a result of the intense scrutiny militias received after the bombing.

Militia membership continued to decline after the turn of the millennium as a result of law enforcement disruptions of multiple terrorist plots linked to violent rightwing extremists, new legislation banning paramilitary training, and militia frustration that the "revolution" never materialized.

Although the U.S. economy experienced a significant recovery and many perceived a concomitant rise in U.S. standing in the world, white supremacist groups continued to experience slight growth.

And once again, the report apparently has some specific knowledge of a decline in number of militia groups as well as a decrease in militia group membership rolls, yet fails to identify the groups or offer any statistics on that decline. Likewise, the report offers no statistics on the asserted slight growth in white supremacist groups and fails to identify those groups. Perhaps most interestingly, the report asserts both that militia membership has been in decline for more than a decade, and may now be increasing - yet offers no statistics whatsoever to support either assertion.

#3 Downplaying the differentiation between mainstream rightwing groups and lone wolf fringe extremists, and the relative risk of each

The report consistently references (and maligns) militias as "rightwing extremist" groups, and associates a risk of potential violence with such groups; however, the report downplays its conclusion that the greatest risk comes not from militia groups, but rather from "lone wolves" and "small terrorist cells". Even worse, the report actually concludes that the greatest risk comes not from militia members at all, but rather from white supremacists.

From a sidebar titled Lone Wolves and Small Terrorist Cells on page 7 of 9, the report states:

DHS/I&A assesses that lone wolves and small terrorist cells embracing violent rightwing extremist ideology are the most dangerous domestic terrorism threat in the United States. Information from law enforcement and nongovernmental organizations indicates lone wolves and small terrorist cells have shown intent - and, in some cases, the capability - to commit violent acts.

DHS/I&A has concluded that white supremacist lone wolves pose the most significant domestic terrorist threat because of their low profile and autonomy - separate from any formalized group - which hampers warning efforts.

Similarly, recent state and municipal law enforcement reporting has warned of the dangers of rightwing extremists embracing the tactics of "leaderless resistance" and of lone wolves carrying out acts of violence.

Arrests in the past several years of radical militia members in Alabama, Arkansas, and Pennsylvania on firearms, explosives, and other related violations indicates the emergence of small, well-armed extremist groups in some rural areas.

On the same page, under Disgruntled Military Veterans, the report conflates the risk of lone wolves and small terrorist cells with militias:

[Returning veterans' military training and combat] skills and knowledge have the potential to boost the capabilities of extremists - including lone wolves or small terrorist cells - to carry out violence. The willingness of a small percentage of military personnel to join extremist groups during the 1990s because they were disgruntled, disillusioned, or suffering from the psychological effects of war is being replicated today.

If the real threat comes from lone wolves and small terrorist cells, why does so much of the report focus on the militia movement and militia groups - groups that have repeatedly and consistently repudiated the extremist viewpoints and ideologies of those lone wolves and cell groups?

#4 Conflation of militia movement with extremism/voilence (i.e. MIAC II)

In a near carbon-copy of the MIAC report, the DHS report conflates militias and the militia movement with extremism and violence. Going even further, the report implies that militias are part of the "domestic rightwing terrorist and extremist groups" designation. To wit, on page 2 of 9, under Key Findings, the report indicates:

The current economic and political climate has some similarities to the 1990s when rightwing extremism experienced a resurgence fueled largely by an economic recession, criticism about the outsourcing of jobs, and the perceived threat to U.S. power and sovereignty by other foreign powers.

During the 1990s, these issues contributed to the growth in the number of domestic rightwing terrorist and extremist groups and an increase in violent acts targeting government facilities, law enforcement officers, banks, and infrastructure sectors.

Growth of these groups subsided in reaction to increased government scrutiny as a result of the 1995 Oklahoma City bombing and disrupted plots, improvements in the economy, and the continued U.S. standing as the preeminent world power.

This assessment under Key Findings does not specifically address or identify militias; however, the Key Findings section is a summary of findings that are further discussed and elaborated in the rest of the report. Compare that summary statement with the following assessment found on page 8 of 9 of the report, under Outlook:

A number of law enforcement actions and external factors were effective in limiting the militia movement during the 1990s and could be utilized in today's climate.

Following the 1995 bombing of the Alfred P. Murrah federal building in Oklahoma City, the militia movement declined in total membership and in the number of organized groups because many members distanced themselves from the movement as a result of the intense scrutiny militias received after the bombing.

Militia membership continued to decline after the turn of the millennium as a result of law enforcement disruptions of multiple terrorist plots linked to violent rightwing extremists, new legislation banning paramilitary training, and militia frustration that the "revolution" never materialized.

Comparing these two assessments clearly indicates that the report is implying that DHS considers the "militia movement" as (at least part of) the "domestic rightwing terroriswt and extremist groups" that saw a decline in membership as a result of increased government scrutiny following the bombing of the Oklahoma City Federal Building bombing.

Having established this implication, the report then uses the possible correlation of issues of concern in order to conflate even further militias and extremism/violence. Under Revisiting the 1990s on page 4 of 9 of the report:

Paralleling the current national climate, rightwing extremists during the 1990s exploited a variety of social issues and political themes to increase group visibility and recruit new members. Prominent among these themes were the militia movement's opposition to gun control efforts, criticism of free trade agreements (particularly those with Mexico), and highlighting perceived government infringement on civil liberties as well as white supremacists' longstanding exploitation of social issues such as abortion, inter-racial crimes, and same-sex marriage. During the 1990s, these issues contributed to the growth in the number of domestic rightwing terrorist and extremist groups and an increase in violent acts targeting government facilities, law enforcement officers, banks,and infrastructure sectors.

The report asserts that, somehow, the militia's issues of concern (gun control, free trade agreements, government infringement of civil liberties) relate to white supremacists' issues (abortion, inter-racial crimes, same-sex marriage - though why abortion and same-sex marriage would be issues for white supremacists I have no idea). Having made this assertion, the report then makes the blanket statement that "these issues contributed to the growth in number of domestic rightwing terrorist and extremist groups and an increase in violent acts targeting government facilities, law enforcement officers, banks, and infrastructure sectors."

Lest any pretense remain, the report then directly calls militias "rightwing extremists." Under Illegal Immigration on page 5 of 9 of the report:

Over the past five years, various rightwing extremists, including militias and white supremacists, have adopted the immigration issue as a call to action, rallying point, and recruiting tool.

And again, under Outlook on page 8 of 9:

DHS/I&A assesses that the combination of environmental factors that echo the 1990s, ...as well as several new trends, ...may be invigorating rightwing extremist activity, specifically the white supremacist and militia movements.

Having thus grouped militias (as a whole) under the "rightwing extremist" designation, the report then attempts to correlate militia membership with violence/extremism. Under the same Illegal Immigration section, the report lists three examples of violence directed toward illegal immigrants, two of which involve militia members:

In April 2007, six militia members were arrested for various weapons and explosives violations. Open source reporting alleged that those arrested had discussed and conducted surveillance for a machinegun attack on Hispanics.

A militia member in Wyoming was arrested in February 2007 after communicating his plans to travel to the Mexican border to kill immigrants crossing into the United States.

The problem, of course, is that (once again) the report fails to demonstrate an understanding of the principle that correlation does not prove causation. As with the MIAC report, the DHS report fails to address whether or not the militias of which these criminals were members sponsored or condoned their criminal actions. Further, the report fails to indicate that such occurrences are not the norm, but rather the extreme exception for militias and militia members. Oh, and JustOneMinute (h/t Transterrestrial Musings) uses some "open source reporting" of his own to debunk both points.

The report goes on to conflate further the actions of fringe extremists with militias. On page 6 of 9, under Perceived Threat from Rise of Other Countries, the report indicates:

Fear of Communist regimes and related conspiracy theories characterizing the U.S. Government's role as either complicit in a foreign invasion or acquiescing as part of a "One World Government" plan inspired extremist members of the militia movement to target government and military facilities in past years.

Law enforcement in 1996 arrested three rightwing militia members in Battle Creek, Michigan with pipe bombs, automatic weapons, and military ordnance that they planned to use in attacks on nearby military and federal facilities and infrastructure targets.

(Note that the first bullet point includes the report's only reference thus far to a potential differentiation between militias and extremists.)

Once more, in a sidebar titled "Lone Wolves and Small Terrorist Cells" on page 7 of 9 of the report:

Arrests in the past several years of radical militia members in Alabama, Arkansas, and Pennsylvania on firearms, explosives, and other related violations indicates the emergence of small, well-armed extremist groups in some rural areas.

Again, in all cases, the report still gives no indication of whether or not any militia sponsored or condoned such extremist activities.

However, perhaps the most insulting assertion in the report's conflation of militias with extremism and violence is the report's association with military veterans with extremism and violence. On page 7 of 9, under Disgruntled Military Veterans, the report states:

DHS/I&A assesses that rightwing extremists will attempt to recruit and radicalize returning veterans in order to exploit their skills and knowledge derived from military training and combat. These skills and knowledge have the potential to boost the capabilities of extremists - including lone wolves or small terrorist cells - to carry out violence. The willingness of a small percentage of military personnel to join extremist groups during the 1990s because they were disgruntled, disillusioned, or suffering from the psychological effects of war is being replicated today.

After Operation Desert Shield/Storm in 1990-1991, some returning military veterans - including Timothy McVeigh - joined or associated with rightwing extremist groups.

A prominent civil rights organization reported in 2006 that "large numbers of potentially violent neo-Nazis, skinheads, and other white supremacists are now learning the art of warfare in the [U.S.] armed forces."

The FBI noted in a 2008 report on the white supremacist movement that some returning military veterans from the wars in Iraq and Afghanistan have joined extremist groups.

Allow me to digress for a moment, on the matter of Timothy McVeigh. McVeigh - rightly so - is the poster child for extremist violence and domestic terrorism. He is not, however, an example of rightwing extremism. Timothy McVeigh associated primarily with neo-Nazis. The book that influenced his bombing, The Turner Diaries, was written by a neo-Nazi. Neo-Nazis - that is, National Socialists - are leftwing, not rightwing. Socialism is a leftwing ideology (an issue that I will address in a later post). McVeigh was not a member of any militia, nor did any militia support, endorse, or condone his actions. Even the ADL - no friend of militias - admits frankly that Timothy McVeigh was not connected to the militia movement:

No, [Timothy McVeigh] was not [connected with the militia movement]. He was not really connected to any particular movement. On the "hate" side, he obviously loved "The Turner Diaries" by William Pierce and read The Spotlight, the publication of the extremist and anti-Semitic Liberty Lobby. On the "anti-government" side, he attended a couple of militia meetings and half-heartedly attempted to start a militia group in Arizona, which came to nothing. He never really joined anything, either as a card-carrying member or even an explicit endorsement. This is also one reason why there was little support for McVeigh, simply because no one viewed him as one of "their own."

Also, as Gateway Pundit points out, McVeigh was military trained not as a bomb-maker, but as a gunner. He did not get his terrorist training in the U.S. military.

It is striking to note that, in a report released in 2009, the only (and, ostensibly, best) example of a military veteran/militia member/terrorist is someone who committed a terrorist attack almost fifteen years ago and one whose alleged militia association has been thoroughly disproven. As the American Legion points out, Timothy McVeigh is one of several million military veterans of contemporary warfare.

I could address these obvious insults to our military veterans, but the American Legion and others did a much better job already.

Also, the good folks at PowerLine (linked above) have already addressed and debunked the source information to which the report alludes, regarding extremists joining the military and returning veterans joining extremist groups.

On the report's assertion that "large numbers of potentially violent neo-Nazis, skinheads, and other white supremacists are now
learning the art of warfare in the [U.S.] armed forces" [emphasis mine, links in original]:

The "prominent civil rights organization" is the left-wing Southern Poverty Law Center. But what support is there for SPLC's assertion that there are "large numbers" of "white supremacists" serving in the armed forces--as opposed to, say, a "tiny handful"? The SPLC's full report is entirely anecdotal; the closest thing to data is this:

[Scott] Barfield, who is based at Fort Lewis, said he has identified and submitted evidence on 320 extremists there in the past year.

But even this alleged statistic appears to be false. Barfield was a gang investigator, and what he actually said was: "I have identified 320 soldiers as gang members from April 2002 to present." So we now have the Department of Homeland Security defaming our servicemen on the basis of a press release by a left-wing pressure group that misrepresented the principal empirical support for its claim. Nice.

On the report's assertion that "[the] FBI noted in a 2008 report on the white supremacist movement that some returning military veterans from the wars in Iraq and Afghanistan have joined extremist groups" [emphasis mine, link in original]:

So, how many are "some"? You can read the FBI report, titled "White Supremacist Recruitment of Military Personnel since 9/11," here. Notwithstanding the deliberate vagueness of the Homeland Security document, the FBI was actually very specific:

A review of FBI white supremacist extremist cases from October 2001 to May 2008 identified 203 individuals with confirmed or claimed military service active in the extremist movement at some time during the reporting period. This number is minuscule in comparison with the projected US veteran population of 23,816,000 as of 2 May 2008, or the 1,416,037 active duty military personnel as of 30 April 2008. ...

According to FBI information, an estimated 19 veterans (approximately 9 percent of the 203) have verified or unverified service in the ongoing wars in Iraq and Afghanistan.

There you have it: a whopping 19 actual or alleged veterans of Iraq or Afghanistan have joined the "extremist movement." (The FBI notes that some of these "may have inflated their resumes with fictional military experience to impress others within the movement.")

#5 Conflation of disagreement with liberal policy changes with racism

The report's definition of "rightwing extremism" includes "those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups)". The first paragraph under Key Findings (page 2 of 9) lists "the election of the first African American president" as a "unique [driver] for radicalization and recruitment." The first bullet point under this paragraph references "white supremacists" as one group of such RWE.

On pages 3 and 4 of 9, under Historical Presidential Election, the report states:

Rightwing extremists are harnessing this historical election as a recruitment tool. Many rightwing extremists are antagonistic toward the new presidential administration and its perceived stance on a range of issues, including immigration and citizenship, the expansion of social programs to minorities, and restrictions on firearms ownership and use. Rightwing extremists are increasingly galvanized by these concerns and leverage them a drivers for recruitment. From the 2008 election timeframe to the present, rightwing extremists have capitalized on related racial and political prejudices in expanded propaganda campaigns, thereby reaching out to a wider audience of potential sympathizers.

The bullet point that immediately follows (on page 4 of 9) states:

Most statements by rightwing extremists have been rhetorical, expressing concerns about the election of the first African American president, but stopping short of calls for violent action. In two instances in the run-up to the election, extremists appeard to be in the early planning stages of some threatening activity targeting the Democratic nominee, but law enforcement interceded.

The problem with conflating racism with RWE is that racism, bigotry, and other "hate-oriented" ideologies are not a right-or-left political matter. The right/left political spectrum involves the level of government involvement in and control over the life of the individual. The right favors individualism/federalism and the left favors socialism/statism. One can adhere to an ideology of bigotry while ascribing to a right or left political viewpoint.

Right-wing ideological groups do not inherently support or condone racism. With respect to racism against "African Americans", it was the right that led the abolitionist movement, fought for an end to slavery against the southern Democrats (figuratively in the legislature and literally in the Civil War), issued the Emancipation Proclamation, and introduced the Equal Rights Amendment. With anti-Hispanic racism and violence, the issue is mostly apolitical and manifests in inner-city/gang violence between "African Americans" and Hispanics.

Consider also that the report defines not only racists as "rightwing extremists", but applies the broad "hate-oriented (based on hatred of particular religious, racial, or ethnic groups)" description. Much of this type of bigoted ideology belongs to leftwing extremists.

On page 5 of 9, under Illegal Immigration, the report "notes that prominent civil rights organizations have observed an increase in anti-Hispanic crimes over the past five years."

The problem with this statement is that the "prominent civil rights organization" is (once again) the Southern Poverty Law Center, and the SPLC's "observation" is an intentional misrepresentation of FBI crime statistics. As this press release from FAIR (h/t 24Ahead) explains:

When examined responsibly, the FBI hate crime data show a dramatically different story than the one the SPLC portrays. First, in order to suggest an artificially large increase in the raw number of hate crimes, the SPLC selects 2003 as its base year, one of lowest years on record for hate crimes against Hispanics. If one compares the number of hate crimes between 1995 (the earliest report available on the FBI's website) and 2006 (the most recent statistical year available), one would see that the number of hate crimes has increased only 17 percent.

But even this is not the whole story. The SPLC conveniently forgets to index the raw hate crime data with the population, a step always taken by the FBI to more accurately depict an increase or decrease in crime. Thus, when one indexes a 17 percent increase in hate crimes against Hispanics with a 67 percent increase in the Hispanic population between 1995 and 2006, it becomes clear that the rate of hate crimes against Hispanics has in fact dropped dramatically -- by about 40 percent.

#6 Conflation of racism (and anti-semitism), anti-government beliefs, and "rightwing extremism" (RWE)

On page 3 of 9, under Current Economic and Political Climate, the report indicates that "the historical election of an African American president and the prospect of policy changes are proving to be a driving force for rightwing extremist recriutment and radicalization." As an example of this threat, the report references the recent Pittsburgh police shootings, and stating (among other things) "The alleged gunman's reaction reportedly was influenced by his racist ideology and belief in antigovernment conspiracy theories related to ...a Jewish-controlled 'one world government.'" On the same page, under Exploiting Economic Downturn, the report states, "Anti-Semitic extremists attribute [U.S. job] losses to a deliberate conspiracy conducted by a cabal of Jewish 'financial elites.'"

With respect to anti-semitism, this ideology is found predominantly on the left.

Returning to the report's definition of "rightwing extremism":

Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.

The report conflates hate-based groups, movements, and adherents with antigovernment groups, movements, and adherents, without offering any reasoning whatsoever for why these two ideologies should be grouped together. The only example offered of such reasoning is the previously mentioned Philadelphia police shooting incident. According to the report, "[t]he alleged gunman's reaction reportedly was influenced by his racist ideology and belief in antigovernment conspiracy theories related to gun confiscations, citizen detention camps, and a Jewish-controlled "one world government." The report conflates the ideologies but fails to observe the fundamental concept that correlation does not prove causation.

In reality, leftwing extremist groups (including white supremacist groups) tend to be racist, anti-Christian, and anti-government, and tend to favor violent opposition to and overthrow of government. The militia movement - from which rightwing extremism ostensibly comes (and with scant evidence to support the assertion, at that) - tends to be race-agnostic, Christian, and vigilant toward government, and tend to favor defensive readiness in case of government oppression.

Note also that for leftwing white supremacist groups extremism is the norm, while for rightwing militia groups extremism is the (incredibly rare) exception.

#7 Conflation of economic downturn/poverty with rightwing radicalization

The report asserts that economic downturn and poverty is a driver for rightwing radicalization. On page 3 of 9, under Current Political and Economic Climate, the report states:

DHS/I&A assesses that a number of economic and political factors are driving a resurgence in rightwing extremist recruitment and radicalization activity.

Further on the same page, under Exploiting Economic Downturn, the report states:

Rightwing extremist chatter on the Internet continues to focus on the economy, the perceived loss of U.S. jobs in the manufacturing and construction sectors, and home foreclosures. Anti-Semitic extremists attribute these losses to a deliberate conspiracy conducted by a cabal of Jewish "financial elites." These "accusatory" tactics are employed to draw new recruits into rightwing extremist groups and further radicalize those already subscribing to extremist beliefs. DHS/I&A assesses this trend is likely to accelerate if the economy is perceived to worsen.

(Strange, but I don't remember the G-20 protesters being particularly rightwing; quite to the contrary, such protesters have been traditionally leftwing.)

On page 4 of 9, under Economic Hardship and Extremism, the report states:

Historically, domestic rightwing extremists have feared, predicted, and anticipated a cataclysmic economic collapse in the United States. Prominent antigovernment conspiracy theorists have incorporated aspects of an impending economic collapse to intensify fear and paranoia among like-minded individuals and to attract recruits during times of economic uncertainty.

On the same page, in a sidebar titled Perceptions on Poverty and Radicalization, the report states:

Scholars and experts disagree over poverty's role in motivating violent radicalization or terrorist activity. High unemployment, however, has the potential to lead to alienation, thus increasing an individual's susceptibility to extremist ideas. According to a 2007 study from the German Institute for Economic Research, there appears to be a strong association between a parent's unemployment status and the formation of rightwing extremist beliefs in their children - specifically xenophobia and antidemocratic ideals.

Oddly, the unemployment lines and welfare rolls swell with people who generally adhere to leftwing ideologies. Further, 50 years of welfare state have led to a class of citizens who adhere to and who vote for candidates who adhere to leftwing ideologies. If poverty and unemployment were drivers for formation of rightwing extremist beliefs, then our major metropolitan areas and inner cities would not be the liberal bastions that they have become.

On page 5 of 9, under Illegal Immigration, the report states:

Rightwing extremists were concerned during the 1990s with the perception that illegal immigrants were taking away American jobs through their willingness to work at significantly lower wages. They also opposed free trade agreements, arguing that these arrangements resulted in Americans losing jobs to countries such as Mexico.

Later, under Perceived Threat from Rise of Other Countries, on page 6 of 9, the report states:

Rightwing extremist views bemoan the decline of U.S. stature and have recently focused on themes such as the loss of U.S. manufacturing capability to China and India, Russia's control of energy resources and use of these to pressure other countries, and China's investment in U.S. real estate and corporations as a part of subversion strategy.

The report obfuscates the issues of illegal immigration and domestic job losses to illegal immigrants with the issues of free trade agreements and domestic job losses due to outsourcing. The former are indeed rightwing issues, and have led to almost no extremist activity or violence; however, the latter are generally leftwing issues, and have led to several instances of extremist activity and violence. Further, given recent news, it is clearly no longer merely a perception that illegal immigrants are taking jobs away from American citizens.

#8 Failure to cite sources for assessments/assertions

The report repeatedly asserts potential outcomes (things that may happen, or are likely to happen, etc.), and fails to cite even one source.

The most significant of such assertions may be the first sentence of the report (page 2 of 9) [emphasis added]:

The DHS/Office of Intelligence and Analysis (I&A) has no specific information that domestic rightwing terrorists are currently planning acts of violence, but rightwing extremists may be gaining new recruits by playing on their fears about several emergent issues.

Summarizing other such assertions, page by page, starting with page 2 of 9 [emphasis added]:

Nevertheless, the consequences of a prolonged economic downturn - including real estate foreclosures, unemployment, and an inability to obtain credit - could create a fertile recruiting environment for rightwing extremists and even result in confrontations between such groups and government authorities similar to those in the past.

The possible passage of new restrictions on firearms and the return of military veterans facing significant challenges reintegrating into their communities could lead to the potential emergence of terrorist groups or lone wolf extremists capable of carrying out violent attacks.

Page 3 of 9 [emphasis added]:

Proposed imposition of firearms restrictions and weapons bans likely would attract new members into the ranks of rightwing extremist groups, as well as potentially spur some of them to begin planning and training for violence against the government.

DHS/I&A is concerned that rightwing extremists will attempt to recruit and radicalize returning veterans in order to boost their violent capabilities.

DHS/I&A assesses this trend is likely to accelerate if the economy is perceived to worsen.

Page 5 of 9 [emphasis added]:

DHS/I&A assesses that rightwing extremist groups' frustration over a perceived lack of government action on illegal immigration has the potential to incite individuals or small groups toward violence. If such violence were to occur, it likely would be isolated, small-scale, and directed at specific immigration-related targets.

Such activity, combined with a heightened level of extremist paranoia, has the potential to facilitate criminal activity and violence.

Page 6 of 9 [emphasis added]:

It is unclear if either bill will be passed into law; nonetheless, a correlation may exist between the potential passage of gun control legislation and increased hoarding of ammunition, weapons stockpiling, and paramilitary training activities among rightwing extremists.

Open source reporting of wartime ammunition shortages has likely spurred rightwing extremists - as well as law-abiding Americans - to make bulk purchases of ammunition.

Weapons rights and gun-control legislation are likely to be hotly contested subjects of political debate in light of the 2008 Supreme Court's decision in District of Columbia v. Heller in which the Court reaffirmed an individual's right to keep and bear arms under the Second Amendment to the U.S. Constitution, but left open to debate the precise contours of that right.

Because debates over constitutional rights are intense, and parties on all sides have deeply held, sincere, but vastly divergent beliefs, violent extremists may attempt to co-opt the debate and use the controversy as a adicalization tool.

Rightwing extremist paranoia of foreign regimes could escalate or be magnified in the event of an economic crisis or military confrontation, harkening back to the "New World Order" conspiracy theories of the 1990s.

Page 7 of 9 [emphasis added]:

DHS/I&A assesses that rightwing extremists will attempt to recruit and radicalize returning veterans in order to exploit their skills and knowledge derived from military training and combat.

These skills and knowledge have the potential to boost the capabilities of extremists - including lone wolves or small terrorist cells - to carry out violence.

Page 8 of 9 [emphasis added]:

DHS/I&A assesses that the combination of environmental factors that echo the 1990s, ...as well as several new trends, ...may be invigorating rightwing extremist activity, specifically the white supremacist and militia movements.

To the extent that these factors persist, rightwing extremism is likely to grow in strength.

Unlike the earlier period, the advent of the Internet and other informationage technologies since the 1990s has given domestic extremists greater access to information related to bomb-making, weapons training, and tactics, as well as targeting of individuals, organizations, and facilities, potentially making extremist individuals and groups more dangerous and the consequences of their violence more severe.

Of the few statistics to which the report alludes, sources are referenced but not cited properly or even named specifically. To wit:

On page 5 of 9, under Illegal Immigration, the report states [emphasis added]:

DHS/I&A notes that prominent civil rights organizations have observed an increase in anti-Hispanic crimes over the past five years.

On page 6 of 9, under Legislative and Judicial Drivers, the report states [emphasis added]:

Open source reporting of wartime ammunition shortages has likely spurred rightwing extremists - as well as law-abiding Americans - to make bulk purchases of ammunition.

On page 7 of 9, under Disgruntled Military Veterans, the report states [emphasis added]:

The willingness of a small percentage of military personnel to join extremist groups during the 1990s because they were disgruntled, disillusioned, or suffering from the psychological effects of war is being replicated today.

After Operation Desert Shield/Storm in 1990-1991, some returning military veterans - including Timothy McVeigh - joined or associated with rightwing extremist groups.

A prominent civil rights organization reported in 2006 that "large numbers of potentially violent neo-Nazis, skinheads, and other white supremacists are now learning the art of warfare in the [U.S.] armed forces."

The FBI noted in a 2008 report on the white supremacist movement that some returning military veterans from the wars in Iraq and Afghanistan have joined extremist groups.

And as was shown previously, failure to disclose sources for such statistics prevents the reader from discerning any potential bias in the source material. Considering that one of the "prominent civil rights groups" referenced in the report is the Southern Law Poverty Center, a well-known liberal activist group, conclusions drawn from such a source must be buffered against the inherent bias of the source. Likewise, failure to cite the specific FBI report facilitates the report's out-of-context use of the source to mis-construe its results.