Quotulatiousness

September 27, 2019

England’s constitution before the shiny new Supreme Court was created

Filed under: Britain, History, Law, USA — Tags: , , , , , — Nicholas @ 05:00

Peter Hitchins provides a thumbnail sketch of the state of play before the Supreme Court was added to British constitutional arrangements:

Why did we never even have such a body until ten years ago? As we shall see, it would have been, and still is, a contradiction in terms. But in interesting times such as these, elephants fly, fishes walk, figs grow on thorns, and oxymorons inherit the earth.

The most powerful law court in the land was, by a curious paradox, not in the land at all, but based in tiny Luxembourg, across the Narrow Seas which have kept invaders from our door but are useless against bureaucratic takeovers by the European Union. There sits the European Court of Justice, which as long ago as 1990 established that it could tell British courts to overrule British Acts of Parliament when they conflict with E.U. law. It can carry on doing this until we eventually do leave the E.U., if we ever do.

These various messes came about because we are so old, and rely so much on convention and manners, that it is all too easy for unconventional and ill-mannered busybodies to come storming in with new ideas. England’s constitution was not planned and built, like America’s. Instead, it grew during a thousand years of freedom from invasion. Both are beautiful in their way. America’s fundamental law has the cold, orderly beauty of a classical temple. England’s has the warmer, more chaotic loveliness of an ancient forest. It seems to be wholly natural but, when examined closely, it shows many signs of careful cultivation and pruning. Our powers are not as separated as America’s, but slightly tangled. Still, it has worked well enough for us over time.

Any thinking person must admire both the American and the English constitutions as serious efforts in a world of chaos, despotism, and stupidity to apply human intelligence to the task of giving people ordered, peaceful, and free lives. They have a common origin in the miraculous Magna Carta, which Americans often revere more than modern Englishmen do. We in England have grown complacent about our liberty, and have become inclined to forget our great founding documents.

But the two constitutions are not the same, and in my view they are not compatible. For my whole life, until a few years ago, the very idea that England should have a Supreme Court was an absurdity. The Highest Court in England is the Crown in Parliament which, as I was once taught, had the power to do everything except turn a man into a woman. In these more gender-fluid times, that expression is not much used. But it contains the truth. Parliament can make any law and overturn any law, made by itself or by the courts.

That is why England (often to my regret) lacks a First Amendment and cannot have one unless we undergo a revolution. No law in England could possibly open with the words “Parliament shall make no law.” Our 1689 Bill of Rights, the model for the U.S. Bill of Rights a century later, tells the king what he cannot do and the courts what they cannot do. It grants me (as a Protestant) the right to have weapons for my defense. But while it draws its sword against arbitrary power, it puts a protective arm round Parliament.

September 15, 2019

Explaining Brexit to liberal Americans

Filed under: Britain, Europe, History, Law, Politics — Tags: , , , , , — Nicholas @ 05:00

Andrew Sullivan tries to put the Brexit debate into terms that coastal, urban Americans can understand:

One of the frustrating aspects of reading the U.S. media’s coverage of Brexit is that you’d never get any idea why it happened in the first place. Brexit is treated, automatically, as some kind of pathology, a populist act of wanton self-harm, an absurd idea, etc etc. And from the perspective of an upstanding member of the left-liberal media establishment, that’s all true. If your idea of Britain is formed by jetting in and out of London, a multicultural, global metropolis that is as lively and European as any city on the Continent, you’d think that E.U. membership is a no-brainer. Now that the full hellish economic consequences of exit are in full view, what could possibly be the impulse to stick with it?

I get this. I would have voted Remain. I find London to be far more fun now than it was when I left the place. But allow me to suggest a parallel version of Britain’s situation — but with the U.S. The U.S. negotiated with Canada and Mexico to create a free trade zone called NAFTA, just as the U.K. negotiated entry to what was then a free trade zone called the “European Economic Community” in 1973. Now imagine further that NAFTA required complete freedom of movement for people across all three countries. Any Mexican or Canadian citizen would have the automatic right to live and work in the U.S., including access to public assistance, and every American could live and work in Mexico and Canada on the same grounds. This three-country grouping then establishes its own Supreme Court, which has a veto over the U.S. Supreme Court. And then there’s a new currency to replace the dollar, governed by a new central bank, located in Ottawa.

How many Americans would support this? How many votes would a candidate for president get if he or she proposed it? The questions answer themselves. It would be unimaginable for the U.S. to allow itself to be governed by an entity more authoritative than its own government. It would signify the end of the American experiment, because it would effectively be the end of the American nation-state. But this is precisely the position the U.K. has been in for most of my lifetime. The U.K. has no control over immigration from 27 other countries in Europe, and its less regulated economy has attracted hundreds of thousands of foreigners to work in the country, transforming its culture and stressing its hospitals, schools and transportation system. Its courts ultimately have to answer to the European Court. Most aspects of its economy are governed by rules set in Brussels. It cannot independently negotiate any aspect of its own trade agreements. I think the cost-benefit analysis still favors being a member of the E.U. But it is not crazy to come to the opposite conclusion.

More to the point, the European Economic Community has evolved over the years into something far more ambitious. Through various treaties — Maastricht and Lisbon, for example — what is now called the European Union (note the shift in language) has embarked on a process of ever-greater integration: a common currency, a common foreign policy and now, if Macron has his way, a common central bank. It is requiring the surrender and pooling of more and more national sovereignty from its members. And in this series of surrenders, Britain is unique in its history and identity. In the last century, every other European country has experienced the most severe loss of sovereignty a nation can experience: the occupation of a foreign army on its soil. Britain hasn’t. Its government has retained control of its own island territory now for a thousand years. More salient: this very resistance has come to define the character of the country, idealized by Churchill in the country’s darkest hour. Britain was always going to have more trouble pooling sovereignty than others. And the more ambitious the E.U. became, the more trouble the U.K. had.

August 20, 2019

Jonathan Kay listened to the whole SNC-Lavalin report so you don’t have to…

Filed under: Business, Cancon, Government, Politics — Tags: , , , , , — Nicholas @ 03:00

Update: Apparently the Thread Reader App only picked up the first couple of entries (it worked fine when I queued it up for publication yesterday). Here’s the text version:

I just listened to the entire ethics commissioner’s report on the SNC-Lavalin scandal while driving back from Maine. I loaded up the text in my VoiceAloud app, hit play, and the audio kept me going for 3 hours, all the way into central New York State, along the I-90….

As with any narrative, you begin to identify with certain characters. In my case, it was @Puglaas. I found it especially maddening the way everyone around her kept babbling about finding a “solution,” which was their settled euphemism for bullying her into helping SNC…

The level of condescension exhibited by everyone in and around the PMO toward @Puglaas was breathtaking. These Liberal dudes always kept pretending that they just wanted to make sure she had enough “information,” as if she were a law student, not the AG of a G7 nation …

At the same time, it was breathtaking the way SNC Lavalin was essentially able to turn the entire PMO, and major ministries, into its personal lobbying operation. Texts, emails, calls, in-person visits… it was like SNC-Lavalin had Trudeau’s PMO on retainer, like a law firm ….

I hadn’t realized SNC was able to mobilize, or attempted to mobilize, not one, not two, but THREE former SC of Canada justices on its behalf. This is the sort of blurring between corporate & govt operations that u expect in banana republics (or in the Irvings’ New Brunswick)…

The fact trudeau & those around him still pretend this is about “jobs” is…I don’t even know the word for it. The ethics comm essentially called it a lie. This was about partisan politics. How can JT say he “accepts” the report without coming to terms with this core finding?

When this scandal & election is done, we need an inquiry that gets to the bottom of the larger issue here: how a single quebec corp, one heavily impugned by its own action, was able to essential create legislation to help itself, got trudeau to ram it thru on a budget omnibus…

And then spent weeks pulling every lever in ottawa to try to override our constitutional system of govt so they could get off the hook for alleged crimes, culminating in the actual reconstitution of cabinet. SNC turned our govt into a joke. And trudeau still sez it’s about “jobs”

If yr attitude is that u dont want to educate yourself about this scandal, bcuz the only thing that matters is hating @AndrewScheer (an attitude some ppl have candidly expressed) pls reconsider. Even if u vote Liberal, the scandal exposed problems in our system that need fixing

Conservative governments have no doubt been equally solicitous to big well-connected firms. Leftists *especially*, the same ones dismissing this scandal bcuz it interferes with their elxn narrative, should be horrified that corporations are treating @Bill_Morneau & PMO as puppets

The fact that all of these Libs can bleat “jobz jobz jobz” with a straight face isnt just a symptom of the amoral cynicism of politics (tho it is that). It reflect the fact that we canadians expect that big corps will get coddled like this. We need to end it

If youre @AndrewScheer or @theJagmeetSingh, it’s fine to rake the Libs over the coals for lying to us. But all politicians lie. Tell us how you’d fix the system structurally to ensure that the PMO isn’t acting as a pro bono hanger-on to a major corporation

And if you’re a progressive activist of a certain age, go back & look at all the things @NaomiAKlein @Sheila_Copps Judie Rebick etc warned us about during the free trade battles…corporations dictating terms to elected govts. Well, guess what ? That’s what’s on display here…

In fact, one of the most tragicomic subplots here is the Libs running around in full panic bcuz SNC was about to have a board meeting the next day… Yes, that’s right: Trudeau’s PMO prioritized important legal decisions on the basis of some company’s board meeting.
Because Jobz.

What’s more, the full-court press on @Puglaas in the shadow of these meetings was itself based on another lie: Libs knew SNC HQ couldnt abandon quebec (till 2024) bcuz of representations made to Caisse in regard to purchase of a UK sub. Bullshit layered on bullshit
#BecauseJobz

I keep coming back to @Puglaas, & how she must have felt. How many cdns have been in a job where yr boss & his minions tried to pressure u to find an unethical “solution,” to help the boss keep his own job? then when u did what was right, u get turfed 4 not being a “team player”

This isnt just about Trudeau. One galling episode described is a meeting in which @Bill_Morneau pontificates to @Puglaas about how she doesnt have enuf “information” about econ effects of possible SNC crim conviction. @Puglaas asks Morneau if he’s done a study on it. Answer: no.

We talk a lot about toxic workplaces for women. hard not to see how the dudes who Trudeau assigned to push @Puglaas around on this file aren’t guilty of this. Their strategy was to make her feel ignorant bcuz she did the right thing. The PMO gaslit their own justice minister

There are several female Liberal MPs whom I have come to know and respect, such as @juliedabrusin @cafreeland @JulieDzerowicz. It is mortifying to watch them being forced to line up in defence of this.

As for SNC itself, I don’t really blame it for doing what it did. If u were running a company and knew you could dictate terms to a govt, why not? The lesson to other CEOs would be that if youre accused of a crime, just threaten to lay ppl off and move your HQ. Problem solved.

final note…u can see y the Libs are going hard with demagoguery about @AndrewScheer being white supremacist-adjacent. A traditional leftist claim was that Tories would sell out to corporate interests. That’s a hard claim for Libs to make now. bcuz the Libs have already done it

It’s been a day since I wrote this thread, & some commenters are saying the SNC scandal shows Trudeau & the Libs are unscrupulous people. But I dont think that’s it. I have met some of these protagonists, and have found them to be *more* public-minded than the average citizen…

As noted in a response to @staceylnewman, the problem is that politics changes ppl. There’s a chilling quote in the report, from a meeting, where a Lib says to @Puglaas (paraphrasing here) “It doesn’t matter how great our policies are. We need to get re-elected to implement them”

To me, that sums everything up: The means justifies the ends, bcuz the ends (the “good” side wins power, & the “bad” side loses) are taken to have existential importance. That’s the myth that leads all politicians astray. If JT just admitted this, I bet many would forgive him

May 23, 2019

The Supreme Court of Canada goes on a roadtrip

Filed under: Cancon, Law, Politics — Tags: , , — Nicholas @ 03:00

John Carpay explains why the Supreme Court’s junket in September isn’t a good idea:

While hearing two cases in Winnipeg rather than Ottawa is a friendly gesture, the Court’s choice of which groups to meet with – and not meet with – in Winnipeg is necessarily a political choice. If you thought the Court would meet with Ukrainians and Germans (Manitoba’s two largest non-English ethnic communities), prisoners, seniors, taxpayer groups and English language rights activists opposed to official bilingualism, you would be wrong.

In fact, the Court has announced that it will meet with “indigenous communities, the francophone community, the legal community, and students.” What message does this send to the Canadian public, which wants an impartial court deciding on aboriginal claims? What does meeting with the francophone community in Winnipeg say in relation to the Court hearing a case about minority language educational rights? And what if university tuition payments were at the heart of a case that came before the SCC, with its Justices having met only with students, but not with taxpayers?

As Canadians, the Supreme Court judges already interact with the public in their private lives, in Ottawa and elsewhere. One could reasonably assume that the nine lawyers appointed to this Court each meet individually with various people regularly, on the basis of friendship, shared interests, or family obligations. The people with whom any one judge meets over the course of a year would likely not form a perfect microcosm of Canadian society, in terms of race, religion, political views, income, and level of education. This is to be expected, and there is nothing wrong with it, because the personal connections formed by any one judge are not publicly endorsed by the Court. Not so for these meetings of “the Court” as a whole in Winnipeg, which is what makes the Court’s exclusion of many groups worrisome.

Chief Justice Wagner would no doubt respond to the above by saying that he and his colleagues will do their very best to decide all cases impartially, regardless of which groups they chose to meet with (and not meet with) in Winnipeg. And he would be right.

But that doesn’t solve the problem. The Court has made a political decision to meet with francophones, not English language rights activists; lawyers not prisoners; students not seniors; aboriginals not Germans or Ukrainians. In view of the ancient and centrally important legal maxim, “Not only must justice be done; justice must be seen to be done,” the Court should not be making these political decisions in the first place, in order to avoid even the appearance of possible bias.

It’s bad enough that the Prime Minister is seen to be putting a thumb on the scales of justice, but much worse if the highest court in the land is perceived to be doing the same thing.

April 7, 2019

Justin’s SNC-Lavalin swamp … how deep does it go?

Filed under: Business, Cancon, Government, Law, Politics — Tags: , , , , , — Nicholas @ 03:00

For a penny-ante scandal where there’s no hint of sexual impropriety or unmarked bundles of bills being passed along in brown paper bags, Justin’s SNC-Lavalin scandal looks more and more interesting the more we look at it:

A game-changing bombshell lies buried in the supplementary evidence provided to the House of Commons Judiciary Committee by former Attorney General Jody Wilson-Raybould.

It has gone virtually unreported since she submitted the material almost a week ago. As far as we can find, only one journalist — Andrew Coyne, columnist for the National Post — has even mentioned it and even then he badly missed what it meant, burying it in paragraph 10 of a 14 paragraph story.

The gist of the greatest political scandal in modern Canadian history is well-known by now. It’s bigger than Adscam, the revelation 15 years ago that prominent members of the Liberal Party of Canada and the party itself funneled tens of millions of dollars in kickbacks into their own pockets from federal spending in Quebec sponsoring ads promoting Canadian unity. That was just venal politicians and a crooked political party helping themselves to public money.

The Trudeau-SNC-Lavalin scandal is so much more, involving the corruption of the supposedly non-partisan civil service, and even the judiciary, for the political benefit of a disgraced political party, and a cover-up endorsed, encouraged and actively engaged in by the sitting Members of Parliament of that political party.

[…]

Which brings us to the ticking-timebomb-evidence the committee and the public didn’t get to hear.

In between the appearances by Butts and Warnick, Wilson-Raybould testified to getting a report from her chief of staff who had had a meeting with Butts and Trudeau’s chief of staff Katie Telford. They aggressively pushed the attorney general to get an “outside” opinion from someone like the retired Chief Justice of the Supreme Court, Beverley McLachlin, on dropping the criminal charges against SNC-Lavalin in favour of a non-criminal plea deal.

Wilson-Raybould took contemporary notes of what her staff member told her.

    “My COS (chief of staff…ed) asked what if the opinion comes saying “She can review it, but she shouldn’t” or simply “She can’t review it” end of story? Mr. Butts stated “It wouldn’t say that.”

BOOM!!!!!!

Read what Butts said again. And again. And again.

“IT WOULDN’T SAY THAT”

H/T to Halls of Macademia and Small Dead Animals for the link.

March 27, 2019

“This was the week it became necessary to destroy the village of good government in order to save it”

Filed under: Cancon, Government, Media, Politics — Tags: , , , — Nicholas @ 03:00

It may be hard to believe, but in his latest at Maclean’s, Paul Wells appears to be getting a little bit cynical about recent shenanigans in Ottawa:

We have learned so much. Within minutes Monday afternoon, two good reporters had stories (here and here) about the Chief Justice of Manitoba, who was a candidate to be Chief Justice of the Supreme Court of Canada and who, later, wasn’t. Both reporters unfurled similar yarns about a lone Prime Minister standing athwart the tide of conservatism by blocking — shudder — a Harper appointee from sitting on the top court. Jody Wilson-Raybould plays the role of villain in the piece.

Both reporters decorously neglect to mention that Trudeau’s choice for Chief Justice, Richard Wagner, was a Harper appointee.

There are many things we can say about this story, working outward in concentric rings from the thing itself. First, Glenn Joyal’s views, as expressed in speeches that were said to alarm the prime minister, are almost comically orthodox. I first became aware of the notion that Charter litigation systematically airlifts important matters from the parliamentary arena and into the realm of jurisprudence in a Chantal Hébert column in the late 1990s. If I had paid more attention to literally any of my Canadian public administration profs a decade earlier I would have caught the argument then, because it is canvassed in every Canadian political science class. This is not wild-eyed Hayekism.

Second, perhaps the many thousands of Canadians who have applied for federal government appointments under what they thought was a confidential process, introduced by this prime minister, will want to contemplate a class-action suit against him. Because it is now radiantly clear to each of them that their CV is being held hostage by a claque of embattled sorcerers’ apprentices who will cheerfully wheel it over the transom to any waiting scribe if anything about them — their opinions, a fallen political star’s unfortunate decision to argue for their advancement — becomes politically inconvenient. This is the very stuff of the police state.

It was immediately fashionable to wonder on social media how everyone would react if Stephen Harper had done such a thing. It’s germane to note that Stephen Harper never did. Because he had more class. Welcome to the Tet offensive of Charter rights: This was the week it became necessary to destroy the village of good government in order to save it.

Third, Justice Joyal’s wife was in poor health. Apparently we are to believe that 9,000 jobs depended on your knowing that.

If the Trudeau government is not the source of the leak, I assume we will see spectacular efforts deployed in the next 36 hours to find the leaker. Mark Norman-scale efforts. But I’m pretty sure that we needn’t hold our breath, because the government is the source of the leak; that the amiable chap who currently sits in the office once occupied by the Attorney General of Canada will not bestir himself to question Monday’s sickening attack on due process; and that the leak will actually be roundly applauded by the ambient cloud of Liberal and Liberal-adjacent opinion, which became self-aware this weekend and decided Jody Wilson-Raybould and Jane Philpott are a virus endangering the party’s re-election chances and must therefore be stopped.

March 20, 2019

A Supreme Court case that created huge sales tax problems for online firms

Filed under: Business, Government, Law, USA — Tags: , , — Nicholas @ 03:00

Eric Boehm explains why an obscure US Supreme Court ruling is making life extremely complicated for thousands and thousands of online businesses:

… Until last year, that meant Heitman was responsible for collecting and paying sales taxes to exactly one place: the Wisconsin Department of Revenue. But thanks to an under-the-radar ruling from the U.S. Supreme Court in June, he’s now receiving letters, phone calls, and emails from revenue officials across the country, each wanting a piece of his business.

The source of Heitman’s frustrations is Wayfair v. South Dakota, which allowed states to collect sales taxes from online businesses located beyond their borders. Many states view the Wayfair ruling as a potential tax revenue windfall in which the taxes are paid by non-residents who can’t vote against them. That’s why businesses like Heitman’s are now facing the chilling prospect of owing taxes in dozens, and possibly hundreds, of different jurisdictions — while being hounded by out-of-state tax collectors.

Since the Supreme Court issued its ruling in June, Heitman has been scrambling to become compliant with tax commissions and revenue departments from coast to coast. He’s spent thousands of dollars on new software to help navigate the complexities of state sales tax law, but that’s only been so much help. “It almost seems like I have another full time job dumped on me with this sales tax thing,” he says. “It’s burning me out.”

As the 2019 tax season begins, states are ramping up efforts to squeeze extra revenue out of remote retailers like Heitman, putting an expensive new burden on businesses that have found broad customer bases online. The burden is particularly large in the five U.S. states that charge no sales tax, where entrepreneurs could now be charged with paying a tax they have never had to pay before, to a government over which they have no voice. And while Congress could clean up the Supreme Court’s mess, it’s far from certain that it will.

Warren Meyer points out that it’s not just the individual states who are taking advantage of this windfall opportunity to collect taxes from non-residents:

Like most writers, Mr. Boehm actually understates the problem. Because the potential exists not to have 50 new taxing authorities for every sales, but thousands. I have to deal with this every day. I wrote a while back:

    Take Arizona, which seems from my experience to be roughly average. The sales tax rate table is 18 pages long in a small font. There are 29 separate rate categories which each have different rates in each of Arizona’s 15 counties. My business is in 6 counties and we have 3 rate categories that apply, or 4 if you consider items with no tax as another rate category. This is 24 different state/county sales tax rates we charge. But that is the easy part. Because then there are, in addition to county taxes, 92 different towns and cities that have their own rate tables with up to 29 different rate categories that add to the base state/county rate. Other states such as Washington (rule of thumb — if the state has no income tax then it has a LABYRINTHIAN sales and business tax systems) have additional overlay taxes such as for transit and stadium districts.

    When my company opens a new location, we have to spend hours on the Internet and with maps trying to figure out what sales taxes to collect, and even with good due diligence we sometimes get it wrong and find in an audit we are actually just inside or outside some line where the rate changes (we once had a location 30 miles outside of Seattle on a long dirt road where we found we had to collect the Seattle Rapid Transit tax). Thatcher, AZ is a town of like 4000 people but has its own special sales tax rates — do you know where the town line is? Well neither do they, because last time I checked they did not have any sort of online lookup system to tell one automatically if the address is inside or outside the town and its sales tax district…

    But even after registering in all 50 states, you are STILL not done, because many states don’t have a fully unified sales tax collection system. In Arizona, for example, the larger cities require their own registration and monthly reporting.

Meyer is operating a company that has physical assets and employees in each of the states and lesser jurisdictions to which taxes are due. Internet businesses generally only have physical assets in a single state, yet an expansive reading of the Wayfair ruling (the type of reading most jurisdictions will prefer) makes them liable for taxes almost everywhere.

February 21, 2019

“Excessive fines can be used … to retaliate against or chill the speech of political enemies”

Filed under: Government, Law, Liberty, USA — Tags: , , , , , , — Nicholas @ 05:00

The US Supreme Court delivered a unanimous body blow to excessive use of asset forfeiture by state and local police:

Timbs challenged that seizure, arguing that taking his vehicle amounted to an additional fine on top of the sentence he had already received. The Indiana Supreme Court rejected that argument, solely because the U.S. Supreme Court had never explicitly stated that the Eighth Amendment applied to the states.

On Wednesday, the high court did exactly that.

“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history,” wrote Justice Ruth Bader Ginsburg in the opinion. “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies,” she wrote, or can become sources of revenue disconnected from the criminal justice system.

Indeed, some local governments do use fines and fees as a means to raise revenue, and that has created a perverse incentive to target residents. After the 2014 shooting of Michael Brown in Ferguson, Missouri, a federal investigation into the city government found that 20 percent of its general fund came from criminal fines. And Ferguson is not alone in relying heavily on revenue from fines. Making clear that the Eighth Amendment applies to the states will make it far easier to challenge unreasonable fines and fees — including not just asset forfeiture cases, but also situations where local governments hit homeowners with massive civil penalties for offenses such as unapproved paint jobs or Halloween decorations.

Some of those cases are already getting teed up. As C.J. Ciaramella wrote in this month’s issue of Reason, a federal class action civil rights lawsuit challenging the aggressive asset forfeiture program in Wayne County, Michigan, that was filed in December argues that the county’s seizure of a 2015 Kia Soul after the owner was caught with $10 of marijuana should be deemed an excessive fine.

November 4, 2018

That pesky Supreme court ruling on the Churchill Falls deal

Filed under: Cancon, Economics, Law — Tags: , , , — Nicholas @ 03:00

I use the term “pesky” in the headline to avoid being slagged by one or possibly even both of my Newfoundland and Labrador readers … to curry favour with them, I’d need to escalate from somewhere between “ethically doubtful” and “outrageous”, and even that might not capture the essence of anger and resentment at Quebec’s amazingly great deal long-term on cheap hydro-electric power from the Churchill Falls facility. It is, as Wikipedia says, “the second largest hydroelectric plant in North America, with an installed capacity of 5,428 MW”, and thanks to Quebec financing and astute negotiations, most of that output is sold to Quebec at a very small proportion of today’s open market price. Colby Cosh arches an eyebrow over a Supreme Court justice’s lone vote of dissent on the case:

Churchill Falls generating station, Labrador.
Photo via Wikimedia Commons.

It is my solemn duty to perform one of the important functions of a newspaper columnist: raising one questioning eyebrow. On Friday the Supreme Court issued a judgment in the long battle between Churchill Falls (Labrador) Corp., a subsidiary of Newfoundland and Labrador Hydro, and Hydro-Québec. CFLco is the legal owner of the notorious Churchill Falls Generating Station in the deep interior of Labrador, close to the border with Quebec.

The station was built between 1966 and 1971. Hydro-Québec provided backing when the financing proved difficult for the original owner, an energy exploration consortium called Brinco. This led to the signing of Canada’s most famous lopsided contract: a 1969 deal for Hydro-Québec to receive most of the plant’s output for the next 40 years at a quarter of a cent per kilowatt-hour, followed by 25 more years at one-fifth of a cent. The bargain ends in 2041, at which time CFLco will get full use and disposal of the station’s electricity back.

This has been a heck of a deal for Quebec. It took on the risk of financing and building the station in exchange for receiving the electricity at a low fixed price — one that both sides in the court case agree was reasonable at the time. But it meant that Newfoundland saw no benefit from decades of oil price shocks, from the end of nuke-plant construction in the U.S., or from the increasing market advantage hydroelectricity enjoys while dirtier forms of power generation attract eco-taxation.

It has been maddening for Newfoundland to remain poor while Hydro-Québec grows fat on the profits from a Newfoundland river. Quebec, for its part, has never been completely convinced of the legitimacy of its border with Labrador, and it sees its good fortune as a sort of angelic reward for having to be part of Confederation. The Churchill Falls deal is (quite reasonably) regarded as proof that Quebec’s homegrown industrialists were able to beat resource-exploiting Anglo financiers at their own game. There are thus reasons beyond the bottom line that Quebec has never wanted to renegotiate the Churchill Falls contract. But the bottom line is enough.

October 11, 2018

QotD: The radical, right wing US Supreme Court

Filed under: Law, Politics, Quotations, USA — Tags: , , , , — Nicholas @ 01:00

We don’t have a “radical right-wing Supreme Court,” despite lots of mewing on the left to the contrary. Here are some things that would be at the top of the list for a radical right-wing Court: (1) ban abortion nationwide as a violation of the right to life protected by the due process clause; (2) rule that publicly-provided (but not funded) education is unconstitutional because it inherently involves viewpoint discrimination by the government, or at least require vouchers for those who object to the public school curriculum; (3) overrule an 1898 precedent and completely abolish birthright citizenship; (4) Use the First Amendment as a sword to require “fairness” in the left-dominated media. Not only is the Supreme Court not about to do any of things, I don’t think any of these things would even get one vote on the current Court. Moreover, merely bringing the scope of Congress’s constitutional back to where it was, say, in 1935, which was already much broader than the original meaning of the Commerce power, probably wouldn’t get more than one or two votes. What you are looking at right now is a conservative Court that will only affect society on the margins, not a “radical right-wing” Court.

David Bernstein, “WE DON’T HAVE A ‘RADICAL RIGHT-WING SUPREME COURT'”, Instapundit, 2018-10-09.

September 30, 2018

Contempt for the voters (even their own voters)

Filed under: Media, Politics, USA — Tags: , , , , — Nicholas @ 05:00

Steve Kates has been watching the confirmation hearings and associated circus acts in the US senate:

Let me start by explaining the basic framework. This is all politics. No one among the Democrat senators believes a word of Ford’s testimony. Not one of them would say a word were Kavanaugh a Democrat nominee. It is all show for the morons who vote for them. The disdain the Democrats have for their own voters is gigantic. They see them in the same way as I do: as low information, dumb beyond belief fools without a shred of common sense. They can see perfectly well that all of this has no other purpose but to make it harder for a government from the other party to govern. They want to pack the court with judges who will vote to do those things that cannot be done via a democratic legislative process. They understand perfectly well that they are trivialising accusations of rape. They comprehend without a shred of doubt that they are making the United States less governable. They can see without any hesitation that Ford is a stooge that has been put forward because the saps in their electorates across America eat all this up and hunger for more. They therefore do it because they enjoy the power this provides to them. They do it because they believe it will attract more voters than it will repel. They are making it as plain as day that they think their own constituency is ignorant and repulsive. But this is their line of work and if they are to keep their jobs, this is what they must do.

The Republicans think exactly the same – that Democrat voters are fools. And they know just as well as the Democrats that there is a proportion of the voting population that will make their vote depend on this and this alone. They understand rape is a terrible event in anyone’s life and would not nominate anyone if there were any genuine evidence that any of the accusations made against Kavanaugh are true. Aside from those members of their Senate caucus who prevented a majority vote from succeeding, they would have nevertheless taken the risk of the bad press that will follow when and if they confirm Kavanaugh’s nomination. They have a razor-thin majority in the Senate that can only survive a near-unanimous vote from their side of the aisle. They are counting on there being enough common sense and sound judgment left with the voting public to be able to succeed and retain the House and Senate majorities in November. They see the Democrat tactics for what they are.

As for the notion of sexual assault, to really believe that is the issue makes you so stupid that it is painful to see what nitwits politicians have to deal with routinely.

September 13, 2018

The lasting impact of Haida Nation vs. British Columbia

Filed under: Cancon, Government, History, Law — Tags: , — Nicholas @ 03:00

I was not aware that a single case had such a major influence on relations between the federal and provincial governments on the one hand and First Nations groups on the other. Barbara Kay explains just how we got to the point of overturning decades of settled legal practice in the wake of the Haida Nation decision:

In his newly published book, There is no Difference: An Argument for the Abolition of the Indian Reserve System, lawyer Peter Best devotes a chapter to unpacking the consequences of Haida Nation. It makes for fascinating reading.

Before this decision, Best says, it was understood “that aboriginal claims and rights over the land were more than ‘reconciled.’ In fact, Canadians, Indians and non-Indians alike, thought they were, especially in treaty areas, extinguished, plain and simple,” apart from the right to hunt, fish and trap on unoccupied wilderness Crown land, and even then with Crown sovereignty. Haida Nation – and cases decided since then – reversed the meaning of the treaties.

The SCC read in an intent “merely to ‘reconcile’ Indians’ prior sovereign occupancy of the land with the new sovereignty of the Crown.” That is, they were “instruments of power and land-sharing, not instruments of rights extinguishment.”

So it seems we are now in a never-ending power-sharing arrangement, “requiring the constant, expensive, uncertain fine-tuning and adjustment from time to never-ending time of the granted Crown rights with the retained sovereign Indian rights.” This new jurisprudence, Best says, decrees a devolution of Crown sovereignty to Indians – a handing back of previously surrendered power, effectively turning Indian bands into a third order of government.

The key words, “to consult and where appropriate, accommodate the Aboriginal interests…” give Indian bands across the country power over all kinds of economic development – mines, forestry, wind power installations, roads, and of course pipelines.

Following Haida Nation, any band that asserts a proposed off-reserve project affects an Indian interest, actual or projected, the “consultation and accommodation if necessary” process is automatically launched. No evidence has to be produced, no threshold of importance to be met. (“Sacred ground” is always effective – and what ground is not sacred to aboriginals who live on it?).

In most negotiations with conflicting interests, each party has a motive to see the deal done. But “consultation” is not negotiation, and aboriginals often have no particular reason to settle. Best notes that during consultations, there’s a great deal of travel, expense account living, important meetings and pleasant busywork, with most politicians lacking the courage to utter the words “not appropriate” with regard to further “consultation.”

There is also no incentive for aboriginals to settle for anything less than exactly what they want. The Lax Kw’alaams of B.C. turned down a billion dollars in exchange for their support of an industrial project. There was no downside for them. They had the power and knew it. No matter how long they held out, their transfer payments flowed in as usual, and they took no economic risks if the project failed. If one side has nothing to lose and the other side has everything to lose, Best says, “you don’t have negotiations – you have a shakedown.”

September 2, 2018

Amtrak service and the “takings” clause

Filed under: Business, Economics, Law, Railways, USA — Tags: , , , — Nicholas @ 03:00

Back in August, Fred Frailey reluctantly came to the conclusion that at some point American freight railways are going to have to challenge in court Amtrak’s legislated ability to pre-empt freight traffic on their networks:

Amtrak’s
Eastbound Empire Builder crossing Two Medicine Trestle at East Glacier MT on 20 July 2011.
Photo by Steve Wilson via Wikimedia Commons.

We all know about “taking the Fifth.” It’s our right under the Fifth Amendment to the U.S. Constitution not to be compelled to testify against ourselves. In other words, a court cannot force us to admit to driving 60 mph in a 45-mph zone (or something worse). That amendment has another, less-well-known clause, which says government cannot take away our property without just compensation. Lawyers know this as the “Takings Clause.” The Fifth came to mind the other day as I rode Amtrak’s Empire Builder from Seattle to Chicago. I’ll get to my point, but first the experience.

[…]

All of this did terrible things to our schedule-keeping. By the third morning, as the train approached Devils Lake, N.D., we were more than eight hours late (the next day’s eastbound Builder was even later). But imagine what the Empire Builder does to BNSF’s freights every day. The Amtrak Improvement Act of 1973 reads: “Except in an emergency, intercity passenger trains operated by or on behalf of [Amtrak] shall be accorded preference over freight trains in the use of any given line of track, junction, or crossing.”

BNSF appears totally committed to obedience of this law but doing so devours the capacity of this route. It’s not just that freights give way; whizzing along at a 79 mph versus 55 or 60 for the freights, the Empire Builder eats capacity as if it were two or three freights, Six high-priority Z trains prowl the northern Transcon every day, and I don’t think a single one of them that I observed was moving as we went by. One Z train was sandwiched between two stopped manifest trains, all making way for our Builder.

Obviously, Amtrak pays BNSF for the right to run trains over the freight railroad. But whatever it pays is but a fraction of the cost in delays to its own trains incurred by BNSF. Were the northern Transcon double-tracked all the way, these delays would obviously be minimized. But at $3 million or more a mile, double tracking consumes capital like a dry sponge, and it’s not Amtrak’s capital, either.

So now to my point: Isn’t it fair to say that Amtrak, which the U.S. Supreme Court in 2015 decreed to be an arm of government, is confiscating the property (track capacity) of host railroads? And if it is, shouldn’t the freight railroads be fairly compensated for the delays to their freights caused by the loss of this capacity? Try as I might to say otherwise, I am forced to answer “yes” to both questions.

July 9, 2018

Nominating Amy Barrett “would be a tactical masterpiece on the level of Napoleon’s conduct of the Battle of Austerlitz, or Hannibal at Cannae”

Filed under: Law, Media, Politics, Religion, USA — Tags: , , , , — Nicholas @ 05:00

I have no idea who President Trump will announce later today as his nominee for the vacancy on the US Supreme Court, but Conrad Black is plumping for one particular candidate:

The desperation of the Democrats to stop the apparently inexorable rise of a president they so completely discounted and despised, and assumed they could remove or emasculate just by turning up the volume and activity of their media organ monkeys, may drive them to accidental suicide over the latest Supreme Court vacancy. I have no standing at all to intuit whom the president may nominate. But if, as I suspect, it is Judge Amy Barrett, it would be a tactical masterpiece on the level of Napoleon’s conduct of the Battle of Austerlitz, or Hannibal at Cannae.

The U.S. Senate confirmed Barrett to the Seventh U.S. Circuit Court of Appeals on October 31, by a 55-43 vote. Three Democrats voted for her and two did not vote. It would not be easy to justify changing their votes now, as she has served unexceptionably. At her confirmation hearings, Senator Dianne Feinstein, the Judiciary Committee’s aged ranking Democrat, asked Barrett about her religious views, and the nominee responded that no judge should allow personal views, whether based on faith or anything else, to influence the imposition of the law. “The dogma lives loudly within you, and that is a concern,” Feinstein said infamously. This was an outrageous comment; Feinstein doesn’t know anything about the dogma of the Roman Catholic Church, and she has no idea what privately motivates Judge Barrett.

The fury and haste of the Democrats once the starting gun went off with the announcement of the retirement of Justice Anthony Kennedy from the Supreme Court, expressed their blind panic that their entire protracted regime of encroachments and embellishments on the Constitution — buttressing their centralized and authoritarian notion of administrative juridical governance with pretense to defending the rights of women, affirmative action, and the legislative role of the judiciary generally — was now under mortal assault.

[…]

I believe the president will nominate Barrett, that the Democrats will take definitive leave of their depleted senses, apostrophize the judge as a Trojan Horse of female submission, that she will clear her hearings with flying colors while the president’s formidable battery of social media and talk show supporters roast the Democrats for attacking an exemplary female achiever and a fine jurist whose only offense is to be a member of the Roman Catholic Church, by far the largest in the country with more than 70 million adherents. Remember, too, the Supreme Court in the final days of its term ruled that crisis pregnancy centers need not advertise the virtues of abortion with Planned Parenthood, and in 2016 said the Little Sisters of the Poor could not be compelled to pay for birth control and sterilization.

As at Cannae and at Austerlitz, the center of the defending force (Democrats), will crumble and President Trump will sweep the field. The Democratic playbook of endless ear-splitting allegations of serial outrages by the president, will not, finally, bring him down. On this issue, of mobilizing unfounded sexist paranoia against a flawless nominee, thereby insulting tens of millions of American women and U.S. Roman Catholics, before raising the objections of fair-minded non-Catholic men, at least another 20 percent of the population, the Democrats will immolate themselves in an unprecedentedly spectacular launch of their midterm election campaign.

Of course, no matter who is put forward, that person will immediately become the target of a supersized version of the “two-minute hate” that will literally last for months, or until the nominee is driven to decline the nomination, at which point the hate will be directed at the next nominee. Pedantically, however, Black’s use of Cannae and Austerlitz is only metaphorical: at Austerlitz, the allied centre did crumble, but at Cannae, it was the Roman cavalry on the flanks that crumbled, allowing the Carthaginians to envelop the rear of the main Roman army. Two very different battles.

July 5, 2018

The soon-to-be-announced target of the two-minute unceasing hate

Filed under: Law, Politics, USA — Tags: , , , , — Nicholas @ 05:00

At Reason, Jacob Sullum says Trump did well with his first Supreme Court pick, and the unwillingness of Trump’s opponents to acknowledge that shows how much blind partisanship has gripped the left:

Anthony M. Kennedy, Associate Justice of the Supreme Court of the United States, swears in Supreme Court Justice Neil M. Gorsuch on Monday, April 10, 2017, in the Rose Garden of the White House in Washington, D.C. Also shown, Gorsuch’s wife Louise stands on stage holding a family Bible. Justice Gorsuch is the Supreme Court’s 113th justice.
White House photo via Wikimedia Commons.

“We have to STOP the next Trump nominee!” says a pop-up solicitation on People for the American Way’s website. Before you rush to “donate now,” you might want to consider the organization’s assessment of Trump’s last Supreme Court nominee.

“Far from being a fair-minded constitutionalist,” PFAW says, Neil Gorsuch “has proven to be a narrow-minded elitist who consistently votes in favor of corporations and the powerful.” The gap between that description and Gorsuch’s actual performance on the Court speaks volumes about the blind partisanship of Trump critics who care more about scoring political points than defending civil liberties.

PFAW is echoing the criticism of Democratic senators who worried, before Gorsuch was confirmed in April 2017, that he was not inclined to stand up for “the little guy.” Gorsuch’s record during a decade on the U.S. Court of Appeals for the 10th Circuit belied that claim, and his 15 months on the Supreme Court provide further evidence that he is not shy about defending the principles that protect politically disfavored individuals from the whims of the powerful.

In sharp contrast with the man who nominated him, Gorsuch worries about abuses of the government’s power to take people’s property “for public use.” In June 2017, when the Court declined to hear a case that raised the question of whether a state can impose limits on the “just compensation” it owes for takings under the Fifth Amendment, Gorsuch, joined by Clarence Thomas, urged his colleagues to address that issue at the “next opportunity.”

That pairing was notable because Gorsuch is on record as admiring Thomas’s passionate dissent from the widely condemned 2005 decision in which the Court approved the use of eminent domain to transfer property from one private owner to another in the name of economic development. Big businesses routinely use such arrangements to override the wishes of little people who get in the way of their plans.

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