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Wednesday, December 30, 2015

The Three Tea Parties And The 2016 Republican Race

The Obama-admiring and allegedly George Soros-financed Occupy Wall Street movement seemed to be efficient, effective and highly centralized when it publicly emerged in 2011.

Occupy quickly accomplished the same effect on the Democratic Party as its perhaps-polar-opposite on the Right, the "Tea Party," is credited (or disparaged) for doing to Republicans: causing its target to lurch sharply from the center towards the political fringe.

The Tea Party movement is different. The movement is largely characterized by its adherents in elected office who advance the causes of fiscal restraint and, to a lesser degree, constitutional and lega restraint. As such it is less a reform movement than a restraint movement. Yet the Occupy comparison is apt. The Tea Party's true target is not its ideological antithesis nor its obvious political opponents, but rather the GOP establishment.

This classic view is somewhat at odds with the activist view, which supports the theory that the movement consists of three competing camps which do not often move in tandem or even in a coherent direction.

The first camp is an establishment co-option of the movement. This camp does not consist of elected officials like Senators Ted Cruz and Mike Lee, who are outsiders on Capitol Hill. It consists of the Washington political, business and media establishment insofar as they see how using the movement to both make money and divert resources (e.g., activist contributions) away from the second or third camps.

The second camp consists of the populists. These are the people who "feel" their positions. This camp is described as more psychological than ideological. They have energy but rarely a coherent strategy that they can execute. Also lacking in tactics and often the barest of campaign materials, this camp can get primary challengers and even the occasional general election challenger like Delaware's Christine O'Donnell, but they cannot win and have not yet won a race of major significance.

The third and smallest camp consists of those intellectuals and professionals who understand both the ideological basis for policy reform and the mechanics of a successful campaign. They are not necessarily activists altogether they work just as hard; they may be described as working smart to make up for the lack of sheer numbers. They are most often found in or around businesses and campaigns and do not need to use the tea party label. They do, however, act as opinion leaders and, crucially, they don't just talk and scream and wave signs. These are the dependable voters who are self-motivated.

They also write checks.

So which camp is dominant? The clues lie not in what is said, but what is done. That is, it's all in the behavior.

Monday, December 21, 2015

What Is A Right?

There are some self-styled free-market advocates who believe that free markets and liberty require absolute open borders. This is an issue because of the recent Senate bill introduced by Senators Ted Cruz and Jeff Sessions -- to which I link, and which I strongly suggest readers carefully read, and which I further discuss here:

to restrict H1B visas to those workers making at least what comparable American workers made, or $110,000, whichever is greater. The goal is to prevent American companies from firing American workers and replacing them with cheaper foreigners.

Funny how the discussion divides along lines of citizenship more than ideology. There are some "Objectivists" (the Ayn Rand disciples) -- not surprisingly, they consist largely of foreigners who really, really want to come here -- who argue that foreigners have pretty much an absolute right to an H1B visa.

The "right" to come to America is is not a "right." This is a privilege. As for the H1B visa and any other visa granting the right to entry, any such visa is, legally, the equivalent of a conditional license, granted at the discretion of the grantor (here, the United States). That discretion and power is inherent in property rights and the concept of one's dominion (which dates back in human history to the Old Testament). It is inherent in the concept of the property right, the right to sovereignty, of the owner and possessor of the property; here, that means the people who are citizens of the United States. To oppose that concept is to oppose the very notion of the sovereignty of the United States, and at that point, we have a rhetorical invasion of a country that is functionally equivalent to the stated desire for a literal political revolution to overthrow and dissolve the target country.

In this sense, advocating a "right" to open borders, which requires that the host country surrender ITS right to that dominion and control -- i.e., its sovereignty -- imposes a duty, obligation and penalty on others. As such, it fails the definitional test of a true right, which is one that burdens nor affects anyone else.

The Founding Fathers enumerated three basic rights from which all others derive: the rights to life, liberty and the pursuit of happiness. These true rights burden no one else nor require the action, or approval, of anyone else. They are "natural" rights. In that light, under that definition, is the "right" to an H1B visa the same thing?

Sunday, December 20, 2015

Examining The H1B Visa Reform Bill And Its Opposition

Noted Objectivist and Ayn Rand scholar Yaron Brook has taken Republican presidential candidate senator Ted Cruz of Texas to task for his Senate bill that would amend the current H1B visa program to require employers pay visa holders the greater of what American workers (citizen or permanent resident) made two years prior to the petition, or $110,000 annually (adjusted for inflation).

The bill targets American employers seeking to exploit the nonenforcement or lax administration of the visa applicant examination process by bringing in cheap labor, using visa holders to replace higher paid Americans.

(QUICK! - WANT THE FACTS? Senator Cruz's immigration proposals are outlined on this official presidential campaign website, which you can access here. And then, you can donate to Cruz's presidential campaign using this link!)

In so doing, Dr. Brook advances a position with which many self-described conservatives -- and even a good number of liberals and "Reagan Democrats" -- would disagree. The labels actually are irrelevant, but it is those labels and the misguided fealty to them and the principles which some associate with them, which are the true barrier to a real world solution acceptable to Americans. Instead of trying to make our positions and opinions fit a preconceived (and subjective and possibly incorrect) notion of how a certain philosophy is defined, perhaps we should concentrate on looking at an issue and asking whether we agree and what we would change (that is, let's look for a solution) rather than concentrating on whether our position is something that Ronald Reagan would have done, or Ayn Rand would have written, or whatever. But I digress.

It is helpful to explain for starters the program at issue here. An H1B visa is a speciality visa available only to employees engaged in a special occupation whose employer cannot find a citizen or legal resident who can fulfill the requirements of the position. The visa is temporary, and may be obtained only by the petition of the employer, not the employee. Only after the employer is granted the petition can the employee then apply.

Here is the problem. Americans are increasingly unemployed, underemployed and overeducated. The number of Americans not in the labor force is one of only two numerical figures to routinely increase in each new monthly jobs report issued by the Department of Labor (the other being the noncustodial civilian population, that is, people of working age not in jail).

Now, what does the H1B visa program have to do with this? On the surface, at least, it appears to have an admirable and worthwhile goal of helping American business find and keep truly unique talent not available domestically.

Except the reality is different.

Over the years, the program has become abused. The program was intended to help American companies find and keep truly unique and valuable talent which they could not find domestically (e.g., world class athletes, models, computer engineers doing something cutting-edge like blockchain technology, or certain key employees in basically the managerial or ownership classes (think the law firm partner from Hong Kong who comes to New York to build the global practice). 

The Cruz bill (co-sponsored by Sen. Jeff Sessions) sets a floor of $110,000 as an annual salary, which is appropriate for such key talent and essentially says that anyone making less is really not crucial to the enterprise, a supremely uniquely talented worker, or whatever. 

This salary floor is a great prong for the bill. Because those of us in the service economy, who hear a great deal of scuttlebutt, have been hearing about serious abuses.

The result is that junior level white collar professionals, whether they be lawyers, accountants or IT engineers, as well as department store clerks (and the author knows examples of each), are increasingly consisting of H1B visa holders all too willing to undercut Americans of equal or superior talent for a shot at American salaries, generous American government benefits, landing a citizen spouse and maybe de facto permanent American residence if the march towards full nullification of the immigration laws continues at the current ramming speed.

To be fair, the foreigners are not really to blame here. They want to come here. It is the American employers who are willing to undercut Americans' wages and are exploiting the lax or non-existent enforcement of a program that gives lip service to stated regulations. Imagine that: the opposite of the typical government impulse towards overreaching, overregulation and even overcriminalization! (Warning: Violations of regulations, which go unenforced today, can be enforced criminally tomorrow. This is a trap for the unwary.)

American citizens on the ground know the sad truth about the H1B visa operation. They were born and raised here, played by the rules, studied and worked hard, and now find themselves competing at a distinct disadvantage in an economy where skills are commoditized, fraud (including the puffery or outright forgery of credentials) is on the upswing with violators willing to play good odds of Catch Me If You Can, and employers increasingly make hiring decisions on cost instead of quality.

Employers, to whom the program is geared, have long tried -- and largely, very successfully -- to game the system to misrepresent get in supposedly exceptional and unique employees without whom the business would soon perish.

The immigration authorities are supposed to examine the veracity of these applications. These responsibilities are most often honored -- in the breach. If you think Immigration and Customs Enforcement is overburdened (or worse, told to stand down) in its mission to secure the southwest border, think the same with these work visa applications.

The H1B visa program was not meant to recruit foreigners when a suitable American citizen was "not available" at a certain price point (e.g., salary) or willing to travel most of the time domestically because they were single or otherwise without responsibilities or restrictions on their mobility. But that is what it's become: a cost-savings measure.

And the opposition to the Cruz-Sessions bill is curious and misguided. Americans have every right -- indeed, a duty and responsibility to their fellow citizens, their families and especially their children -- to ensure a level playing field economically. Allowing a de facto open borders policy for cheap foreign labor, particularly when it comes from foreign countries which almost universally do not allow Americans to come into their economies, tilts the playing field against Americans. It is inherently unfair, because foreigners who come here, and screw up, or commit crimes, or whatever, have the option to go home. Americans cannot flee abroad -- without serious consequences as well as practical and logistical barriers -- with the same readiness.

An "open borders, open markets" argument does not work, because for Americans, there are no open borders for them nor open markets for them. (This is a perspective not shared by foreigners, who, like it or not, came here from other countries exploiting American mediocrity and who may feel slightly sheepish at displacing the natives.)

A true free market involves reciprocity, a trade between equals. What we have today is a rigged system in which Americans are disfavored in their own country.

The opposition to the Cruz-Sessions bill may be grounded on a misguided and perhaps even inadvertent philosophical foundation. 

First, it tells people that Americans have a duty, except that they don't, to allow and encourage their direct competitors to come in. It is as if Americans must "prove themselves." 

But why? Are Americans uniquely required to prove their merit, in their own country? If so, this is not a reward to Americans. The imposition of a higher standard is not a compliment. It is a penalty.

In addition, no one should be required to prove their worthiness by giving their detractors or potential replacements the tools at which they may meet their own demise. This is the entire point behind the outrage by Disney workers being told to train their replacements. 

And to whom is this standard to be proven? To foreigners? To employers who, to be fair, are entitled to maximize their profit? Again, this reduces to Americans suffering a penalty...for being Americans. This strikes me not as exalting Americans, or America, but rather as exploiting, demeaning and attacking Americans. 

This may be exactly how it feels to the American losers losing their jobs to cheaper foreigners under the current H1B visa system, whether it's articulated properly or not.

Furthermore, as explained above, the playing field is not level. Foreigners who come here, exploit our system, and still lose, are rewarded for their "bite the hand that feeds them" ingratitude: They have the option to go back home.  They risk little or nothing. Their reward-risk ratio is favorable...for them. 

Not so for Americans who "fail" or "lose" on a domestic playing field tilted against them. The fundamental inequality is a preference towards foreigners, and is de facto discrimination against Americans. Their reward-risk ratio is the inverse. But the Cruz-Sessions bill detractors may not care about that -- perhaps because the current system concentrates the rewards among foreign "winners" and socializes the risk and the losses among the domestic American "losers."

To advance this argument, to suggest it is philosophically sound, either argues that Americans are inherently inferior because they are Americans or that Americans must suffer the "luck of the draw" because they are situated here and, well, life is not fair.

Such arguments and motives are the domain of the Gramsci Marxists, the Angry-Left, Hate-America crowd which seek to undermine everything representing American hegemony and indeed Western civilization and capitalism. It should not be part and parcel of the argument or philosophy of those who seek to defend those institutions.

Ted Cruz's Immigration Poison Pill?

Senator Ted Cruz of Texas, a current Republican presidential nomination frontrunner, has a comprehensive immigration reform plan which opposes amnesty and also calls for an end to birthright citizenship.

Ending birthright citizenship poses some interesting, far-reaching and perhaps unforeseen problems, as I pointed out way back in 2010.

Could these problems be part of a Cruz silent-missile (get it? Cruz missile? heh heh) to attack more Washington DC federal bureaucracy? Could the "solution" be a "poison pill" type maneuver, designed really to dissuade the stated object and instead to effect other reforms as part of a negotiating tactic? What do you think?

Thursday, December 17, 2015

Neocons on ISIS, and America's Age of Atonement

Much of advocacy is knowing what values and emotional triggers underlie what is being said. This is sometimes called the unsaid message.

The same is true in what passes for politics -- or theater -- these days. (See this author on presidential puppetry; highly recommended.) 

But what happens when someone you might think (incorrectly?) is an ally, actually lobs a strong moral judgment against you?

Paul Mulshine's column appropriately hits on the flaws in "neocon" ideology as most recently and tragically expressed by John Podhoretz. Now, in many quarters, Podhoretz is considered a conservative, a Republican, whatever. But Podhoretz attacks those who raise questions about American intervention in the Mideast, including questions about the method if not the ultimate target.  

And in so doing, Podhoretz actually raises very troubling implications about America's basic role in the universe, and Americans' basic duty, which are indistinguishable from the Marxist world view of "blame Americans first." 

As you'll see in Mulshine's article which links to Podhoretz's New York Post piece, Podhoretz calls the non-interventionists (e.g., Ted Cruz, Rand Paul, even Donald Trump) "repugnant" for simply failing to endorse full-blown war on the ground against a somewhat amorphous enemy in ISIS (also known as ISIL).

This is not merely an error in judgment. It is to use a dog whistle to chide "conservatives" while signaling to the "far left" that there is a shared disdain and moral disapproval of America in its essence, and really of its common people.

You see, Podhoretz has hidden messages. These are the messages which one might not understand, or be able to verbalize. Yet they are the messages that are felt. Physically. This is where and how psychologists and therapists make their money.

The core, unsaid message: Americans have a duty -- an obligation -- to rescue the rest of the world. That is often referred to as American exceptionalism, a term which actually has Marxist origins and is idiotically used by Republicans trying to compliment America. 

But saying Americans must sacrifice their safety, their children's lives, in a war to protect, well, exactly on whose behalf are we fighting now? -- that is not a compliment.

It is a mandate. And it has the same effect as a punishment. That is, Americans must be punished for being in a great country, for having a reasonably free economy, for having a Constitution, for the essence of what they get the picture.

This is an emotional trigger that is no different from an attack, a racial epithet, indeed, directed at a target solely because of the immutable characteristics of his being (e.g., race, height, disability, etc.). Ergo, you are inherently bad because you are an American.  

Or irredeemable. Beyond redemption. What the Orthodox Jews call amalek.

When you decode the message, you see the essence of this name-calling is an absolute disdain for the basic humanity of fellow American citizens. 

It is no different from the core Marxist disdain for achievement and self-esteem, hidden of course under the cloak of human rights and rhetoric exalting the common people too uneducated -- or exhausted -- to know better.

When the neocons call for American intervention, they are calling for average Americans to sacrifice their lives. Because to them, the average American is nothing more than cannon fodder.

Might that explain the Republican Establishment refusal to engage the growing Marxist philosophies infecting and now dominating the Democratic Party, Washington DC and many opinion leaders in big business, the news media and the entertainment and legal industries? 

Because, in fact, on an emotional and hence a visceral basis, the Republican and Marxist establishments share the same core view of Americans -- the "99%"?

This is why the "neocon" message can be decoded and explained very simply to average Americans -- your average jury, that is. And this is where there is political opportunity and also the opportunity for tragedy.

Wednesday, December 16, 2015

Bridgegate Revisited: Federal Judge Slams Gibson Dunn For Not Taking Notes

The official law firm for the Office of the Governor of New Jersey was sharply criticized by a New Jersey federal judge today for not taking notes during its many interviews of witnesses in the "Bridgegate" scandal which has led to one guilty plea and two indictments thus far. 

Press coverage tonight is here from the Star-Ledger and the Record of Hackensack.  

Compare the judge's points with my own critique of the report is given in this April 2014 article

It seems the "hide the ball" strategy is consistent with some federal prosecutors' practice of refusing to tape record witness or target interviews -- because that tape would be evidence, and would prevent agents from using their subjective notes as the only evidence of what an interviewee said (allegedly) at any meeting with government agents. I addressed this danger in this May 2014 article. While the FBI is making progress in moving towards a policy of routinely recording interviews where such recording is beneficial to the interviewee, the agency's inclination to hide exculpatory evidence remains.

As such, the threats to the liberty of innocent Americans remain. 

Wednesday, December 2, 2015

Litigation Financing: A Discussion

Some interesting insights into the world, practice and potential ethical pitfalls of litigation financing from this Above The Law post from fellow Yale Law alum David Lat. 

Tuesday, December 1, 2015

How Mark Zuckerberg's 99% Giveaway Is 100% Wrong

The announcement by Mark Zuckerberg -- the founder of the social medium Facebook -- that he and his wife will give away 99% of their company shares to a charity -- has inadvertently sent several unintended and very negative messages. I can think of five.

And none of them are good.

First, he has signified to his and his wife's newborn daughter that she comes second, that at a certain point she has "enough" and that a whole bunch of strangers come ahead of her. Their daughter does not display one ounce of selfishness or materialism if later she questions this decision. Worse, should she encounter unexpected privation, she will be fully entitled to blame her parents' adulation-seeking. The bottom line is that she, and any future siblings, are her parents' primary responsibility. Not some smug strangers.

Second, and worse, he told this to the world, when it's really none of our business, but by doing so he robbed his daughter of her privacy. This point is emphasized by its brevity. This is purely, simply shocking to the conscience. 

Third, he is also signaling to Facebook shareholders that he doesn't believe very strongly in Facebook's current share price. It's hard to spin giving 99% --- or even a far less amount -- of something away as signifying your confidence in the stock. 

Fourth, Zuckerberg is showing that he cares more about chasing and receiving the moral approval of others, more than fulfilling his real duties which are to his family, and secondly to his shareholders. This giveaway is not a virtue. The giveaway is a quick play for applause, from a segment of the opinion leaders who insist on being the gatekeepers to public acclaim, and disdain any achievement which circumvents their traditional role. As for Zuckerberg, his act is selfishness. Worse, it is public. This is narcissism. Call me old-fashioned, call me an iconoclast, call me far worse, but I believe the purest motives are the ones kept hidden. Doing good and looking good are two far different objectives. 

Finally, the fifth unintended message: He is signaling, especially to his envious detractors, that he either is not confident that he has "earned" his wealth, his achievement, or that he can be bullied by his inferiors -- his lessers in every regard -- into paying the protection money racket and giving it away in exchange for avoiding vicious (if entirely unearned) criticism.

His giveaway is totally wrong.