Judge Pauley: Metadata Collection Is Constitutional

On Dec. 27, 2013, U. S. District Court Judge William H. Pauley III issued his opinion in ACLU v. Clapper, in which he upheld the constitutionality of the NSA's collection of metadata of "virtually every telephone call to, from or within the United States."

His opinion runs directly contrary to Judge Richard Leon's opinion, which I discussed in Sunday's op-ed.

Judge Pauley first finds that the NSA's collection of breathtaking amounts of metadata does not amount to a search because a search occurs only when the government looks into an area where the individual has a "reasonable expectation of privacy."

"In Smith v. Maryland, the Supreme Court held individuals have no 'legitimate expectation of privacy' regarding the telephone numbers they dial because they knowingly give that information to telephone companies when they dial a number. Smith's bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties."

Judge Pauley then sets out what he considered the fatal flaws in the ACLU's arguments.

"The ACLU's pleading reveals a fundamental misapprehension about ownership of telephony metadata. ...

"First, the business records created by Verizon are not 'plaintiffs' call records.' Those records are created and maintained by the telecommunications provider, not the ACLU.

"Second, the Government's subsequent querying of the ... metadata does not implicate the Fourth Amendment -- any more than a law enforcement officer's query of the FBI's fingerprint or DNA databases to identify someone.

"The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search."

Judge Pauley then proceeded to discuss the presidents' "executive" power, when the president acts in national security matters pursuant to congressional authorization.

"The Constitution vests the President with Executive Power ... That power reaches its zenith when wielded to protect national security."

Then citing Justice Robert Jackson's highly regarded concurring opinion in Youngstown Sheet &Tube Co., Judge Pauley wrote, "When the President acts pursuant to an express or implied authorization from Congress," his actions are "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion ... rests heavily upon any who might attack it. ... And courts must pay proper deference to the Executive in assessing the threats that face the nation."

Judge Pauley then explained why such deference is accorded. "Most federal judges do not begin the day with briefings that may describe new and serious threats to our Nation and its people. Any injunction dismantling the section 215 telephony metadata collection program would cause an increased risk to national security and the safety of the American public."

Then, Judge Pauley found that "The effectiveness of bulk ... metadata collection cannot be seriously disputed." By way of contrast, Judge Leon had found that "the Government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature."

Judge Pauley explains that failure away: "Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America's enemies."

Starting from his finding that the NSA metadata collection program did not amount to a "search," allowed Judge Pauley to focus instead on "national security concerns."

"No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific. Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the Government's counter-punch: connecting fragmented and fleeting communications to reconstruct and eliminate al-Qaeda's terror network."

But in his conclusion, Judge Pauley hedges his bets. Having written earlier that the NSA's collection of metadata was not a search, he concludes by saying that if it was a search, that it was a "reasonable exception" to the 4th Amendment's warrant requirement.

"The right to be free from searches and seizures is fundamental, but not absolute. ... The Bill of Rights is not a suicide-pact. ... Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness. The ultimate touchstone of the Fourth Amendment is 'reasonableness.'"

The program, although sweeping, is "reasonable" in his view because it does what it is designed to do.

"No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice."

He buttresses his finding that the program is "reasonable," writing, "There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks."

And the program is "reasonable" because "The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who serve on the Foreign Intelligence Surveillance Court."

Posted Online: Jan. 13, 2014, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Judge Leon: Madison Would Be Aghast at Spying

In my last op-ed, I described what two federal judges have said about the extent of the NSA's Bulk Metadata Program.

U.S. District Court Judge Richard J. Leon has held that the program is unconstitutional. This op-ed discusses his opinion. Judge William Pauley has held that the program is constitutional. My next op-ed will discuss his opinion.

On Dec. 16, Judge Leon issued his opinion in Klayman v. Obama. In that case, the plaintiffs challenged the constitutionality of the NSA's wholesale collection of phone record metadata of all U.S. citizens. Judge Leon held that what the NSA was doing was an unconstitutional violation of the plaintiffs' Fourth Amendment rights against illegal search and seizure.

The Fourth Amendment provides: "The right of the people to be secure in their ... effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath ... and particularly describing the place to be searched, and the persons or things to be seized."

Judge Leon began his opinion by alluding to the background of the case. "On June 5, 2013, the British newspaper The Guardian reported the first of several leaks of classified material from Edward Snowden, which have revealed -- and continue to reveal -- multiple U.S. government intelligence collection and surveillance programs. That Guardian report disclosed a Foreign Intelligence Surveillance Court (FISC) order, dated April 25, 2013, compelled Verizon ... to produce to the NSA on 'an ongoing daily basis ... all ... metadata created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.'"

Judge Leon noted The Guardian further stated that this order "showed that under the Obama administration, the communication records of millions of U.S. citizens are being collected indiscriminately and in bulk -- regardless of whether they are suspected of any wrongdoing."

Metadata includes information as to "what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted."

Judge Leon first found that that metadata collection was a search. "Having found that a search occurred in this case, I next must examine the totality of the circumstances to determine whether the search is reasonable within the meaning of the Fourth Amendment."

Judge Leon then noted "as a general matter, warrantless searches are per se unreasonable under the Fourth Amendment."

For that reason, he next looked to see if the NSA search might fall within a recognized exception.

"The Supreme Court has recognized only a few specifically established and well-delineated exceptions to that general rule ... Even where the government claims 'special needs,' as it does in this case, a warrantless search is generally unreasonable unless based on some quantum of individualized suspicion."

The judge then summarized the essence of the government's position:

"To my knowledge, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction such a dragnet."

The government's position shocked Judge Leon.

"I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment. ... James Madison ... would be aghast."

The judge then distinguished his holding from a U.S. Supreme Court precedent, Smith v. Maryland (1979), relied upon by the government.

"The question in this case can more properly be styled as follows: When do present-day circumstances -- the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies -- become so thoroughly unlike those (circumstances) considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer ... is now.

"The almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person's phone records for calls made (for a period of two weeks from his home) after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction."

Judge Leon's prime concern in refusing to carve out a Fourth Amendment exception appears to be that the same metadata that today can be used to ferret out terrorists, tomorrow can be misused by a dictator to ferret out all opposition.


Posted Online:   Jan. 11, 2014, 9:40 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Is What the NSA Is Doing Constitutional?

James Clapper is President Obama's director of national intelligence.
During a March 12, 2013, U.S. Senate Select Committee on Intelligence hearing, Sen. Ron Wyden, D-Ore., asked Director Clapper, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"

Mr. Clapper responded, "No, sir."

Sen. Wyden then asked, "It does not?" and Clapper said, "Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly."

Now, two contrary opinions by two U. S. District Court Judges, Richard J. Leon and William H. Paulley III, make it very clear that Director Clapper flat-out lied.

What must be understood, is this: Both Judge Leon (a Bush appointee) and Judge Paulley, (a Clinton appointee) accepted the government's version of the facts. They made their finding based on the government's own description of the NSA's Bulk Metadata Program (BMP).

Under the BMP, which was developed under Section 1861 of the Patriot Act, the NSA collects metadata. That includes information about what phone numbers were used to make and receive calls, when the calls took place, and how long they lasted.

According to the government, the BMP is used to detect:

-- Domestic U.S. phone numbers calling outside of the U.S. to foreign phone numbers associated with terrorist groups;

-- Foreign phone numbers associated with terrorist groups calling into the U.S. to U.S. phone numbers; and

-- "Possible terrorist-related communications" between U.S. phone numbers inside the U.S.

But that is only the beginning. Assume a phone call from Pakistan, from number (555) 555-5555, comes into the United States to phone number (123) 456-7890.

If one of 22 designated officials at the NSA determines that either of those numbers is "associated with a terrorist group," then a NSA intelligence analyst -- without seeking a search warrant from a judge -- can authorize a "query" if he decides that facts exist which give rise to "a reasonable articulable suspicion" that either of the phone numbers in question is associated with one or more foreign terrorist organizations ("the seed"). The "query" involves a "three-hop" analysis.

In plain English, this means that if a search starts with telephone number (123) 456-7890 as the "seed," the "first hop" will include all the phone numbers that (123) 456-7890 has called or received calls from in the last five years (say, 100 numbers).

The "second hop" will include all the phone numbers that each of those 100 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 100 "first hop" numbers, or 10,000 total).

Finally, the "third hop" will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 10,000 "second hop" numbers, or 1,000,000 total).

What must also be understood, is that once a query is conducted and it returns a "universe" of responsive records (i.e., a "universe" limited to records of communications within "three hops" from the seed), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without further "reasonable articulable suspicion."

So, is all this constitutional?

The government claims it is. It argues that the BMP has been approved by an order of the Foreign Intelligence Surveillance Court (FISC).

The government assured the judges that metadata "does not include any information about the content of those calls, or the names, addresses, or financial information of any party to the calls." Finally, the government has stated the orders of the FISC governing the program specifically provide that the metadata "records may be accessed only for counterterrorism purposes."

What must be understood, is that what the NSA is doing raises grave Fourth Amendment questions. The Fourth Amendment provides "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Is the FISC order authorizing the BMP consistent with the Fourth Amendment? Sen. Rand Paul, R- Ky., doesn't think so, and has begun a class action law suit, which asks whether is it constitutional to "have a single warrant apply to millions of people."

I have written this piece, not to takes sides, but to set out what the NSA is doing according to two federal judges. Two companion pieces will follow discussing the contrary rulings of those two judges.

So did Director Clapper lie? Is this "inadvertent collection?"

You decide.

Posted Online:  Jan. 09, 2014, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Illinois' Welfare State - for Really Big Corporations

Illinois corporations are leaving and threatening to leave Illinois.

To stop this exodus, the Democrat-controlled Illinois Legislature is offering tax breaks to a number of really big corporations. Those breaks will be paid for by you, me and small businesses. A cynic might call this "welfare for large corporations."

In case you missed it, in January of 2011, the Legislature raised Illinois' corporate income tax to 9.5 percent. No Republicans voted for the increase, either in the House or the Senate.

At the time, Gregory Baise, head of the Illinois Manufacturers' Association, according to the Dec. 13, 2011 Huff Post Chicago, predicted that "the only businesses that will benefit (will be) the moving companies. They will be helping many of my members (corporations) move out of (Illinois)." Illinois has a "state bird." Maybe Mr. Baise should be named "state prophet!"

Last month Office Depot Inc. and OfficeMax completed a $1.2 billion merger. the new company will be called Office Depot. Prior to the merger, OfficeMax was based in Naperville, Office Depot was headquartered in Boca Raton, Fla.

The new Office Depot has picked Boca Raton, for its global headquarters, over the Illinois home of OfficeMax, its merger partner. Both companies, of course, asked for tax breaks from Florida and Illinois.

Office Depot Inc. had sought a $53 million EDGE tax credit from Illinois over 15 years. When the incentive failed to pass the Illinois House, Office Depot opted to locate its new headquarters in Boca Raton.

Office Depot CEO Roland Smith said that, after assessing its options, the company determined Boca Raton provided a way for it to drive better profitability and reach planned savings. Businesses prefer to be profitable! According to Mr. Smith, Office Depot looked at a number of factors, including the cost to run each location, lease obligations and sublease considerations, government incentives and tax implications.

Prior to merger, OfficeMax had about 1,600 employees at Naperville. Office Depot Inc. had about 1,700 in Boca Raton. We are told that it is too early to estimate how many OfficeMax employees might move to Boca Raton. It does not appear that any of the 1,700 employees of the old Office Depot Inc will be moving to Illinois.

At the same time Archer Daniels Midland Co. (ADM) has been discussing relocating its corporate headquarters with representatives from St. Louis, Minneapolis, Dallas, Atlanta, etc. Presently ADM has its corporate headquarters in Decatur.

To induce ADM to retain jobs in Decatur and relocate its headquarters to Chicago, Democrat State Sen. Andy Manar, of Bunker Hill, wants the legislature to give ADM a $24 million Edge tax incentive -- $1.2 million over 20 years.

Directly upon learning that Office Depot was heading to Florida, State Sen. Bill Brady, R-Bloomington, called on Gov. Pat Quinn to bring the House back to Springfield to pass an incentive package to keep ADM in Illinois. (capitolfax.com/2013/12/10/officemax-react/).

So, why are corporations leaving and threatening to leave the state? The Tax Foundation has the numbers.

Look at what Illinois, with its 9.5 percent corporate income tax, is competing against: Colorado, 4.63 percent. Florida, 5.5 percent. Georgia, 6 percent and Alabama, 6.5 percent.

Look at the combined city and average local sales tax rates: Illinois, 8.13 percent. Florida, 6.62 percent. Colorado, 7.39 percent. Georgia, 6.69 percent. Alabama, 8.48 percent.

Or look at the Unemployment Insurance rates and taxable wage base. Illinois' highest rate is 8.4 percent on a taxable wage base of $12,740. Florida's is 5.4 percent on $7,000. Georgia's is 5.4 percent on $8,500. Colorado's is 5.4 percent on $10,000. Alabama's is 6.7 percent on $8,000
So, when it is cheaper -- more profitable -- to do business in other states, why would any company choose to remain in Illinois? The answer is simple.

Illinois bribes them to stay here with corporate welfare. If you're big enough, the Legislature will give you breaks that are not available to little businesses.

In Dec. of 2011, Gov. Quinn signed legislation that granted tax breaks and incentives aimed at keeping two large employers in Illinois: Sears Holdings Corp. and CME Group Inc. (operator of the Chicago Mercantile Exchange).

According to the Chicago Tribune, the deal gave Sears tax credits worth $15 million a year for 10 years, which it can use against withheld employee income taxes. The deal also would extend a special taxing district, reducing the company's local property tax bill for another 15 years. CME expected to pay about $158 million for 2011, less than Illinois's 9.5 percent corporate income tax. The legislation is expected to cut that tax bill by nearly half.

The governor justifies the raid on the Illinois treasury as follows: "You have to defend yourself. If Ohio is offering $400 million to Sears, a company that has thousands of employees in Illinois, we will defend ourselves with a reasonable, adequate approach."

I'm sorry. This stinks. President Obama says it's fair to tax the rich to benefit the poor. Gov. Quinn, House Speaker Michael Madigan, Senate President John Cullerton and their cronies in the Legislature have it the other way around: tax the small guy to benefit the rich.

The solution isn't to incentivize big corporations by bribing them to stay in Illinois. The real solution is to lower the corporate tax rate for all corporations. Do that and the incentive for all corporations to relocate out of Illinois will disappear. Of course, that might require some fiscal discipline, and that is unknown in Springfield.


Posted Online: Dec.  20, 2013, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea


John Donald O'Shea, of Moline, is a retired circuit court judge.

'Means' and 'Ends': Whither Goest America?

Why is compromise in Washington no longer possible? Consider this: There are at play in America two diametrically opposed systems of morality.

The Catholic Church traditionally has taught that the morality of human acts depends on the "goodness" of (a) the object chosen, (b) the intention and (c) the circumstances. It holds that neither the "goodness" of the object nor the intention (for example, helping one's neighbor) justifies using means that are evil, such as lying, demonizing your neighbor or stealing. The church teaches that "the end does not justify the means," and that "one may not do evil so that good may result from it."

The opposing system, which is perhaps best described by Saul Alinsky, teaches that if the "end" is good, the morality of the "means" chosen to achieve that end is not a matter worthy of consideration. All that matters is that the means chosen will work.

In his book, Rules for Radicals, Alinsky devotes his second chapter to a discussion of means and ends. He writes:

"The second rule of the ethics of 'means and ends' is that the judgment of the ethics of 'means' is dependent upon the political position of those sitting in judgment. If you actively opposed the Nazi occupation and joined the underground Resistance, then you adopted the means of assassination, terror, property destruction, the bombing of tunnels and trains, kidnapping, and the willingness to sacrifice innocent hostages to the end of defeating the Nazis.Those who opposed the Nazi conquerors regarded the Resistance as a secret army of selfless, patriotic idealists, courageous beyond expectation and willing to sacrifice their lives to their moral convictions. To the occupation authorities, however, these people were lawless terrorists, murderers, saboteurs, assassins, who believed that the end justified the means, and were utterly unethical according to the mystical rules of war. Any foreign occupation would so ethically judge its opposition. However, in such conflict, neither protagonist is concerned with any value except victory. It is life or death."

Alinsky would no doubt see universal health care as a matter of "life and death." As such, he would place the "have nots" in the shoes of the Resistance, fighting the Nazi occupation, and those who oppose universal health care, in the shoes of the Nazi occupiers. For that reason, an Alinsky-ite would ask only what means he would work? Fair and truthful political argument? Lying? Demonizing your opponents? Destroying his reputation? Calling him a racist? Bribing reluctant supporters? Punishing political opponents?

Alinsky has written, "Life and how you live it is the story of means and ends. The 'end' is what you want, and the 'means' is how you get it. Whenever we think about social change, the question of means and ends arises. The man of action views the issue of means and ends in pragmatic and strategic terms. He has no other problem; he thinks only of his actual resources and the possibilities of various choices of action. He asks of ends only whether they are achievable and worth the cost; of means, only whether they will work. To say that corrupt means corrupt the ends is to believe in the immaculate conception of ends and principles. The real arena is corrupt and bloody. ... he who fears corruption fears life."

Once the Alinsky-ite decides that the end is achievable, and worth the cost, his only other question is whether the means chosen will work. Therefore if lies will work, lying is a permissible means. If destroying your opponents reputation will work, that is permissible. And, at the extreme, if assassinating your opponent works, do it! And if by controlling the press you can stifle all outcry, that too is an acceptable means.

For the Alinsky-ite, the individual cannot stand the way of the good of the masses: "The practical revolutionary will understand Goethe's 'conscience is the virtue of observers and not of agents of action;' in action, one does not always enjoy the luxury of a decision that is consistent both with one's individual conscience and the good of mankind. The choice must always be for the latter. Action is for mass salvation and not for the individual's personal salvation. He who sacrifices the mass good for his personal conscience has a peculiar conception of 'personal salvation'; he doesn't care enough for people to be 'corrupted' for them."

The church teaches otherwise: "Social justice can be obtained only in respecting the transcendent dignity of man. The person represents the ultimate end of society, which is ordered to him. Respect for the human person entails respect for the rights that flow from his dignity as a creature.These rights are prior to society and must be recognized by it. They are the basis of the moral legitimacy of every authority: by flouting them, or refusing to recognize them in its positive legislation, a society undermines its own moral legitimacy. If it does not respect them, authority can rely only on force or violence to obtain obedience from its subjects."

The great problem, of course, with Alinsky's view of ends and means is that if you and your friends can assassinate me (politically or actually) to achieve political or economic mass good, then why can't I and my friends employ like means against you to achieve our notions of mass good? What sort of society do you have when everybody and every political faction lies, bribes and blackmails in support of what they believe to be "social justice?"

Alinsky's equating the struggle between the "have-nots" and the "haves" to war and Nazi occupation turns civilian life into war. But war is the absence of morality and the rule of law. "War is Hell." Is that what we want for ourselves and our children?

So, why is compromise becoming impossible in Washington? How do you compromise when the other side lies about you and the issues? Who vilifies and demonizes you? Who calls you a racist?

Alinsky's notion that the individual and his conscience must be sacrificed for the mass good scares the hell out of me. His paradise looks too much like a new and unimproved version of Stalin's USSR, or Hitler's Germany. If the government -- on behalf of the masses -- determines that the ends are achievable and worth the cost, what prevents the despoilment, destruction or enslavement of the minority "haves?"


John Donald O'Shea of Moline is a retired circuit court judge.


Posted Online: Dec. 05, 2013, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

Should the Federal Government Vacuum Leaves?

"Subsidiarity," according to Wikipedia, is an organizing principle of decentralization, which holds that a matter ought to be handled by the smallest, lowest, or least centralized authority capable of addressing that matter effectively.

The principle of subsidiarity is built into the U.S. Constitution. As designed, the federal government was to have only such specific powers as the experiment under the Articles of Confederation made clear were necessary and proper to an efficient national government, consistent the with notion that ours was to be a federal system. The last two amendments to the Bill of Rights were specifically designed to prevent mission creep -- to limit the federal government to the exercise of its "specifically enumerated powers." They are:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." -- Ninth Amendment (1791)

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 10th Amendment (1791)

To understand the practical implications of the principle of subsidiarity, consider Moline's annual leaf vacuuming program. And consider whether every American has a right to have his leaves vacuumed up.

Every year at this time, Moline goes into the business of collecting leaves that have fallen from Moline's innumerable trees. This is a great program. The men and women who conceived, implemented and have continued this leaf collection deserve the gratitude of everybody who breathes Moline air.

In 2012, Moline collected 1,624 tons of leaves (3,248,000 lbs) Oct.15-Nov. 30. This job took 5,592 man hours. In addition to vacuuming leaves, the city also collected 167 tons of leaves using a tractor and hay baler. Once collected, most leaves were spread and then worked into the soil on two farms owned by the city; the remainder were utilized by local farmers. The city incurred no land-fill fees.

The cost of the 2012 program was $285,187, or $6.59 per resident. This was a bargain for every resident of Moline, and an even greater bargain for those residents with asthma or other respiratory diseases who avoided just one night in the hospital.

Nowadays, as the federal education department and Obamacare clearly demonstrate, whenever Congress decides that a problem is "national," the principle of "subsidiarity" gets obliterated.

This federal government mission-creep is not new. It dates back to Dec. 5, 1791, when Alexander Hamilton made his Report on Manufacturers to the House of Representatives. In it he wrote:

"It is, therefore, of necessity, left to the discretion of the National Legislature (Congress) to pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper.

"And there seems to be no room for a doubt, that whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce, are within the sphere of the national councils, as far as regards an application of money.

The only qualification of the generality of the phrase in question, which seems to be admissible, is this: That the object, to which an appropriation of money is to be made, be general, and not local; its operation extending, in fact, or by possibility, throughout the Union, and not being confined to a particular spot.

No objection ought to arise to this construction, from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the general welfare."

The federal courts, which were originally controlled by federalist judges, accepted Hamilton's construction of the Constitution. When 140 years later, Congress passed Social Security, federal judges sustained it using Hamilton's reasoning.

But if the only qualification is that "the object, to which an appropriation of money is to be made, (must) be general, and not local, what would stop the federal government from deciding that the leaves that fall throughout the nation each autumn, are a matter of "general" and not just "local" concern? What would stop Congress from deciding that the federal government can do a better job of collecting and disposing of leaves than Moline (and all the other cities throughout the nation)?

How many people would have to be hired at salaries in the range of $100,000 per year to run the new Federal Department of Leaf Collection and Disposal? Would they get pensions? Health care?

What would become of the Moline employees who up until now have collected leaves? Would they become federal employees? Or would they be replaced, and new federal employees hired? Perhaps politically connected ACORN "workers?" Would the appropriations for the new department increase at 3 percent, 5 percent, or 10 percent per year? And would the new federal employees get the leaves collected as efficiently as our local workers? And what new "regulations" would be imposed on Moline home owners?

And when the Feds got involved would the cost remain at $6.59 per Moline resident, or would it decrease? Increase? If you have any doubts, just look to the U.S. Department of Education. It began with two employees. Its 2013 budget was $105 billion. Were the services provided by Washington worth $105 billion to the nation's 81 million school children?

Did each child get $1,300 worth of services from Washington?



John Donald O'Shea of Moline is a retired circuit court judge.


Posted Online: Nov. 21, 2013, 11:48 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea

What's Left to Give when Everyone Is Broke?

"There is no misunderstanding this, except by men interested to misunderstand it." — Abraham Lincoln, The Galesburg Debate (1858)

I have never been jealous of rich people. Here's why.

Imagine you have no assets, and that your income is $2 per day. How much can you give (Christian charity) to help the poor? How much can the government tax (social justice) you to assist the poor?

Social justice is premised on the notion that those with excess wealth can be taxed to provide for the basic needs of the poor in genuine need. Social justice presupposes an upper class and a middle class, each having some degree of excess wealth, that can be redistributed to meet the genuine needs of the poor. But what happens if you have no upper or middle classes; when every citizen is poor? Penniless?

Without wealthy capitalists -- and even without the wealthy socialists -- who is there to tax? If nobody is wealthy (which I define as "having surplus wealth"), who can make meaningful charitable or social contributions?

If perfect equality is achieved, and if everybody is abjectly poor, who can you meaningfully tax?

I am not ideologically opposed to social justice. But it is predicated on taxing the people with excess wealth to assist the genuinely needy. If everybody is genuinely and equally needy, social justice income redistribution becomes impossible.

To illustrate, consider a country with a population of 10.1 million, where more than half the men, women and children live on less than $1 a day. Where about 80 percent of the people live on less than $2 per day. A country where 80 percent of the people live below the poverty line. Where 54 percent live in abject poverty.

Imagine a country where 80 percent of its college grads choose to live abroad. Where the money they send home represents 53 percent of the country's GDP. Imagine a city within a city in that country where 500,000 people literally eek out a living on a garbage dump in a place described by the U.N. as the most dangerous on Earth. A country where 225,000 children work for their existence as unpaid household servants.

Imagine Haiti.

What charitable contributions are those who are trying to survive able to make? When somebody is starving on $2 per day, how much of his income can be redistributed? How many of these 8 million Haitians, living on $2 or less per day, are able to provide jobs for fellow Haitians, so as to provide them with a living wage? Would anybody be able to start or run a business and pay salaries on $2 per day? Pay health benefits?

The poor of Haiti have very little to share -- even if they want to. In Haiti, only 20 percent of the people live above the poverty line.

The World Bank tells us that the Haitian 2012 Gross National Income was $760 per person per year. (As such the Total National Income would be $7,676,000,000: that is, 10.1 million Haitians x $760 per person.) Therefore, if the nation's entire GNI was equally redistributed, each Haitian would have $760 annually to live on. The 50 percent living on less than a dollar a day ($365 per year or less) would, after redistribution, see their incomes "jump" all the way up to a still miserable $2.08 per day. Those living on $2 per day as well as the wealthy, after redistribution, also would have incomes of $2.08 per day.

Again, I am not against social justice. But to have meaningful social justice you need prosperous and numerous upper and middle classes. If you have 99 "wealthy" people and only one in "genuine need," social justice is easy to achieve. But when you have 99 who are living in abject poverty, and 1 who is "rich," social justice is an impossibility.

In a thriving capitalist system, you can tax excess wealth, and redistribute taxes to the less fortunate -- to a point. But there comes a point when taxes are raised on the wealthy, that it no longer is worthwhile to run a business and/or take the risks to create "excess wealth." When that point is reached, businesses either shut down, or downsize.

Indeed, the main ways any business downsizes is by laying off employees, and/or by reducing their hours. While those with excess wealth can be asked to pay more, there are therefore practical limits.

The early Christians sold all they had and laid their wealth at the feet of the apostles. That system worked only briefly. But if it was the best system, why did the early Christians abandon it? Why didn't it work for the Pilgrims? And what happened during the 1920s in Germany when the middle class was destroyed?

If you want social justice and redistribution of wealth, you'd had better make sure that you have vibrant upper and middle classes with "excess wealth." The more they have, the better for income redistribution.

Posted Online: Nov. 13, 2013, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea