Diary

Obama UAW TARP payoff via Chrysler cleared as States control gun rights, for now [updated]

TARP has worked, Indiana pension funds are bound by the Bankruptcy Court’s order authorizing the Chrysler-Fiat sale and the Second Amendment does not now apply to the states.

[Updates indicated by brackets below. Latest in bold and bracketed]

Let’s take our conservative cold shower is ascending stages of frigidness as measured by DeVine Gamecock Law’s (pictured) thermostat:

Indiana Secured Pension Funds Creditors vs. Barack Obama is how DeVine law accurately styles the controversy also known as In Re Chrysler LLL, et al in which we initially perceived a breakdown in the, cherished and indispensable to Liberty and prosperity, Rule of Law.

Certainly, a regular Chapter 11reorganization bankruptcy filing by Chrysler in 2008 would have been a proper and preferable course, especially given the billions of American taxpayer dollars already lost in loans meant to keep the company alive until President Obama was inaugurated.

But with respect to the treatment of the Indiana pensions, the rule of law appears to have been maintained and their ultimate financial fate essentially unchanged in the aftermath of the rulings of New York Federal Judge Arthur J. Gonzales’ rulings last week.

My main reasons for concluding that justice is being served are: the provisions of the Federal Bankruptcy Reform Act of 1978; the Second Circuit court precedent on the court’s discretion enunciated in the 1983 Lionel case; the reduced vale of the collateral “securing” first lien holders including the Indiana pension funds; and the actions of the Collateral Trustee authorized by the first lien holders to act as their agent under the 2007 First Lien Credit Agreement as amended and the Security Agreement.

I did not start out wishing to conclude that Judge Gonzales was correct given my aversion to government directed economic dislocations anathema to the free market capitalism that has been instrumental in making this nation the most free, prosperous and generous in the history of Earth. But I report what I find, and what I find is that the Rule of Law grants very broad discretion to Bankruptcy courts in general, and especially in this case given the agreements Indiana pensions entered into with respect to collateral rights. The court did not abuse its discretion.

The only possible glimmer of hope for Indiana pensions could be that the Supreme Court itself has never ruled on the issues of discretion decided in the Lionel case. But as we are aware of no conflicting precedents from other circuits, and given the additional agreements signed by Indiana pensions and the grant of discretion contained therein, and further given the facts found by the court with respect to the value of the collateral that would be sold even if Indiana pensions were granted their relief, I see no hope for their appeal.

Quite frankly, all hope for creditors was lost years ago due to government over regulation of the auto industry and irresponsible union leadership and management of Chrysler that drove down the value of their collateral, if you please. The Second Circuit’s affirmation of Judge Gonzales’ order will not be reversed.

The only party that ever had “Hope”, and even then only a portion of those members that remain, is the United Auto Workers. Their Hope is named Barack Hussein Obama who is, as we speak, constructing the largest welfare/jobs program in history that will be known as the GM bankruptcy, in which the broad court discretion will be used to pay billions to the UAW to make cars only the government will by and to have taxpayers subsidize the whole pension, health care and welfare operation in perpetuity…or until conservatives convince Americans that our only real hope is with them.

[Justice Ruth Ginsburg astoundingly has extended the temporary stay prohibiting the sale to Fiat. DeVine Law suspects she is acting out of caution to study the matter further given that Fiat has given a deadline of June 15. Excellent summary of the arguments by Attorney Clyde Middleton here.]

TARP has worked [Financial system stabilized with rule of law the casualty]

[The Democtic Party controlled Congress allowed their Democratic Party President Barack Obama to complete the adulteration of the Rule of Law via the bankruptcy court proceeding of Chrysler, with a payoff to one of the biggest Democratic Party contributors, the United Auto Workers. And now, the Supreme Court has refused to hear an appeal from creditors objecting to the sale. Essentially, the Obama Administration is creating huge jobs/welfare programs thru taxpayer dollar payoffs in the billions in the Chrysler and GM bankruptcies. This matter is the kind in which Congress should be the jealous defenders of the taxpayers’ money and their own institutional power, but so far, they seem unable to do anything against the President except have crocodile tear hearings abour closed dealerships. More later on this story under a new column heading later this week.]

Before the cold water is thrown back in the econ major rooster’s face, please notice the crowing on what “worked” means.

It does not mean that your local bank has now agreed to grant unsecured $50,000 loans to John Doe LLC to start a window washing business. There is more to such formerly normal loans to being flowing than that the banks have now been stabilized. As I said last year in my series of columns last fall during the credit crisis, that narrowly came out against TARP, and in columns since, we were always headed for a hard and long recession due to the Fannie/Freddie distortions of the market and the lack of savings of Americans after a 25-year boom.

I also said that given that investors had been on strike since the Democrats re-took Congress due to their policies of no tax cuts and even worse, tax hikes and increased regulation of business and given the proposed policies of Obama, that we would probably face longer hard times even if TARP worked to stabilize the banks.

Then came the real bad news with President Obama’s war against capital and job producers that now ensure a deep, long Great Recession for years to come despite the historic printing of money by the Federal Reserve which even now is starting to cause inflation and long-term interest rate increases.

But it does appear that the fears of bank nationalization have abated. The influx of private investment funds into Bank of America and the other TARP recipients after the stress tests Bernanke proposed, prove that Obama has been persuaded to back off his initial suspected motives with the banks.

I still believe that TARP was handled badly, especially with the broad discretion that allowed Paulson-Geithner to act as economy czars, even to the extent of using those funds to bail out auto companies, but I digress. TARP was bad.

The fact is though, that the banking industry is stabilized.

We can’t yet pass judgment on Bernanke’s other moves to essentially compensate for the lack of a real stimulus. But the fact is that what is preventing recovery is not TARP. No, the main culprits are the Obama budget policies; Obama and the Democrats’ known hostility to free market capitalism; and their policies since 2007 through today including the government growthulus aka stimulus bill, in that order.

The U.S. Supreme Court has never “incorporated” the Second Amendment via the Fourteenth Amendment so as to apply it to the states

Now, you may dress in sackcloth and ashes and let the gnashing of teeth and rending of clothes begin as we address supposed non sequiturs on the right to bear arms as recently chronicled by renowned conservative jurists in Chicago.

Last week, in the Seventh Circuit federal court case of NRA v City of Chicago, et al, Cheif Judge Frank Easterbrook, also joined by prolific conservative author and associate Judge Richard Posner, ruled that it could not entertain objections to restrictions on the right to posses firearms imposed by two cities in Illinois given that the Second Amendment, under present law, only appies to the federal government.

I saw this coming several years ago when cases began to be filed on this issue but had hesitated to jump into the fray given the convoluted nature of the whole “incorporation” doctrine and my then general apathy with respect to gun rights.

Then, after the brilliant D.C. Court of Appeals opinion by conservative icon Judge Silberman identified an individual right to bear arms that preceded the Declaration of Independence, much less the Constitution of the United States, I warned at the time of the appeal that the case would not settle the issue nearest the hearts of gun rights proponents (and I am one as well) once and for all.

Then, true to Cockstradamus form, Justice Scalia’s 2008 majority opinion in D.C. v. Heller explicitly stated that he was making no ruling nor intimation as to the applicability of the Second Amendment to the states given that the case before them only involved the constitutionality of a federal government’s restriction on the possession of a handgun in one’s home.

Their are good reasons to believe that this individual right to possess firearms for self defense on one’s property will be applied to the states, but first let me defend the Seventh Circuit court’s analysis, especially since it echos past rooster crowings on the issue:

  • The states formed the national government via the U.S. Constitution
  • The states all already had constitutions that secured their Liberty and rights
  • The Bill of Rights was insisted upon by anti-federalists to make certain that the federal government could not abridge the rights they already enjoyed under state law, including the right to bear arms
  • Mostly liberal activist judges have mostly misused the Equal Protection and Due Process clauses of the Fourteenth Amendment to “incorporate” most, but not all, of the Bill of Rights and apply them to the states, often in ways wholly unrelated to the purpose of the post-Civil War amendments to make all races equal
  • The 14th Amendment was written in an intentionally vague way so as to comport with the original Constitution Framer’s intent to treat people as individuals and not as members of groups
  • The only cases concerning the applicability of the Second Amendment to the states were all decided before the Justices invented the incorporation doctrine and all ruled, correctly, that the Second Amendment only applied to the federal government
  • The rationale for those cases is now defunct, but the Supreme Court has also ruled that lower courts are not to assume that the Supreme Court will reverse despite the obsolescence of rationales. The Supreme Court demands that only it can reverse its own precedents

Hence, the court has ruled correctly. Its succinct (short) and quite impressive analysis may be reviewed here.

For me, this issue of incorpration, much like the one of the regulation of interstate commerce cases and federalism generally, presents a real dilema for conservatives. The issues are what the law is; what we wish it to be; and how it gets to be the law.

Parenthetically though, let me state not all incorporations of the Bill of Rights have been without justification; that the inexplicable unused Privileges and Immunities [see update below] clause could well justify the application of all of the Bill of Rights and even more rights to the states; and that as an American, I do think that much of our basic rights ought to be afforded in all states.

I have simply preferred that we apply said rights via the amendment process or via state laws, rather than via a made of law of men. For, a Daniel Webster conservative, I revere the Constitution as the main instrument that stands between the Liberty we enjoy under the Rule of Law vs. the tyranny that inevitably results from the rule of men, whether they be a King or Five or more Judicial Oligarchs.

But as a non-rose colored glasses legal scholar and desirer of justice, I see an incorporation doctrine used to apply nearly all but the Second and would consider it quite un-just that the Second not be applied to the states.

I suspect that the Supreme Court as presently constituted will affirm a federally protected individual right to bear arms to the states when the Chicago case is appealed, but it will be a right that the states and the federal government can “reasonably” regulate, much as speech and abortion are. So, we impart upon a long journey where judges write a gun code over the next 40 years and lawyers make a lot of money, while we all perpetually wonder exactly what the law is.

[Privileges and Immunities argument for conservative originalist incorporation.]

Now, dry yourselves off and put on some clean clothes. I know must.

Mike DeVine’s Charlotte Observer, Examiner.com and Minority Report columns

“One man with courage makes a majority.” – Andrew Jackson

Originally published @ The Minority Report, where all verification links may be accessed.