Friday, March 25, 2016


In Marco Rubio’s last debate, he got into an exchange with Donald Trump about Obama Care. Both men were critical of the Affordable Health Care Act, and both asserted that it should be summarily repealed and replaced.

But what exactly Mr. Trump would replace it with, became a point of difference. What he did say was that people should be able to purchase health care across State lines.

Being a businessman, Trump, I am sure, believes that competition among insurance carriers will bring down the premiums. That rather simple statement prompted the old judge to do some homework.

To begin with, I must confess that I am not one of the eight or nine people in the United States who have actually read the 2,700 words of the Affordable Care Act or the 11,588,500 words of administrative regulation that have been adopted to explain, enforce and expand Obamacare.

And I don’t intend to start now. Still, I think there is merit in going back to basics. So let’s start with the United States Constitution. Article IV, Section 1 says this:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of  every other State:

So let’s start by asking the simple question, Can an insurance company chartered under the laws of one state and subject to the jurisdiction of that state’s insurance commission, sell insurance to the residents of another state?

We know that some things a State does carry across state lines. Citizens of Michigan and Ohio used to go to Kentucky to get married because Kentucky law allowed girls to marry at age 16. Many years ago, Nevada developed a brisk business in divorce and marriage by its liberal legislation. In both of those instances, the marriages were recognized in the home states of the parties because of Article IV, Section 1.

My Michigan driver’s license will satisfy the Georgia State Trooper who pulls me over on I75.

Still, there have always been other areas in which a different rule applies. A person admitted to the Bar in Illinois cannot practice in the courts of Indiana. A physician licensed in Utah cannot open an office in Colorado. A company licensed to construct homes in Florida can’t build houses in Georgia without getting a Georgia builder’s license.

On the other hand, a corporation formed in one state must be recognized in every other state. Delaware, for example, has long been a preferred state of incorporation. The Diamond State makes it quick and easy to form a corporation, and many companies incorporated there actually do no business in Delaware, and maintain their offices elsewhere.

Electronic communication tends to obscure state lines. My Michigan Blue Cross Blue Shield insurance pays for medical services in Minnesota and Florida. I doubt, however, that Michigan Blue Cross could underwrite a group policy to cover the employees of a Florida corporation.

On the other hand, I have no doubt that the employees at the Florida campus of Cooley Law School are covered by Michigan Blue Cross, because they work for a Michigan corporation.

Something like 44 states have passed the Interstate Insurance Product Regulation Compact Act which makes them part of a voluntary interstate commission that adopts standards for the regulation of insurance companies by their respective state governments.

This cooperative effort suggests that there are ways for the states to work together and yet retain their Tenth Amendment sovereignty over domestic affairs. Just because the national government has the authority to regulate interstate commerce doesn’t mean that Uncle Sam has to make all the rules.

In 2012, we heard a lot about “Romney Care.” It was the system of State mandated health care adopted in Massachusetts when Mitt Romney was its Governor.

I have never heard any hew and cry for the repeal of that law. It may or may not be a good system. What is important is the fact that the people of Massachusetts adopted it and they can change it. 

Not every facet of our lives has to be controlled by Washington D.C.

Sunday, March 20, 2016


Something is happening in America.

The ascendency of Donald Trump and Bernie Sanders tells us that Americans are no longer Republicans and Democrats, if indeed, they ever were.

Let’s face it, there is very little democracy in the United States, and there never was very much. Democracy is government by the people. Directly. Like in the town hall. Like Referendum and Initiative. The people don’t vote to make laws in this country, and they never have.

Our laws are made by our representatives. We elect people to make our laws. That’s called a Republic. So the plain truth is, whether we like it or not, we are all republicans. Our constitution guarantees that every state shall have a republican form of government.

The founders of our nation, who were familiar with history, knew that a true democracy only works with a small community. Madison and Hamilton would have been appalled at the notion of creating a democracy consisting of 300 million people.

The truth is that we Americans are governed by two Republics. We are both a national republic and fifty state republics. The real issue in American politics in 2016 is how the business of governance is divided between those two authorities.

The plan agreed upon by our constitutional founders was a federal system. We were to be governed by two sovereigns: the state and the nation. The powers of the nation were specific, limited and spelled out in the constitution. The powers of the state were unlimited, except as forbidden by the constitution.

The people of the United States are divided politically in 2016 on the same issue that divided Patrick Henry and James Madison in 1789: Which of our two Sovereigns is in charge?

I submit that, whatever the rhetoric of the candidates, the issue that divides us is whether we want to be governed from Washington D. C. or from the capital city of our State.

The TV pundits are fond of talking about “the establishment.” By that term, they mean the people who run the national government. Big business. Big money. Big academia. Big politics. Career politicians and the community of  lobbyists, media, bureaucrats and hangers-on who infest the real estate inside the Beltway.

The establishment is neither Republican or Democrat, conservative or liberal. Its members have but one thing in common: they are Nationalists. They assume that all government power is lodged in the national government. They assume that the United States is a unitary economic community, and that the national government is in charge of, and responsible for, the success of that economy and the prosperity and happiness of all 310 million Americans.  

In this year of 2016, we are witnessing the maturing of a phenomenon that spawned the Tea Party and the Occupy movement. It began as a revolt against the establishment. Today it has become a Federalist revolution.

A crescent majority of Americans want to keep the gavel and the gun closer to home. Of course, there are still many, many people, imbued with the notion that Uncle Sam is a bottomless cornucopia of goodies, and who like being coddled by an omnipotent master.

But how many? Who is in the majority? That’s the issue we may well decide in November. In the meantime there are lots of questions to be answered.

The Democratic Party is the party of Nationalism. Whether it’s the crony capitalism of Hillary Clinton or the candid socialism of Bernie Sanders, they generally agree that the lives of all Americans should be governed by a national bureaucracy.

The Republican Party is poised to become the party of renewed Federalism. A cadre of effective Republican Governors across the country led by John Kasich of Ohio are asserting State jurisdiction, while Donald Trump, the quintessential outsider, and Ted Cruz, the feisty constitutionalist, are mounting a frontal assault on all things tainted by the smoke filled rooms in the District of Columbia.
Fasten your seat belts, folks. 2016 is going to be a bumpy ride.

Monday, March 14, 2016


The dictionary tells us that a trump is “a playing card of the suit chosen to rank above the others, which can win a trick where a card of a different suit has been led.”

As a verb, ‘trump’ means to make a play or take some action which overcomes opposition and determines the result of a dispute or contest.

It is surely a coincidence that the leading candidate for the Republican Presidential nomination bears the name of Trump.

Donald Trump was not my first choice for the GOP nomination. I must confess, however, that I didn’t know very much about him. I thought his idea of building a wall between the United States and Mexico rather far fetched, symbolically unfortunate, and frankly unnecessary if the immigration laws were being enforced.

I have opined that Donald Trump is the quintessential “ugly American:”  Boastful, pushy, tactless and conceited. I have questioned the genuineness of his claim to a self funded campaign.

When this election cycle was an embryo, I was drawn toward Marco Rubio. He is bright, ambitious, articulate and offers a message reminiscent of John F. Kennedy. I voted for him in the Michigan Primary.

But I fully expect that Rubio will be out of the contest after today. I have lost a lot of elections and I know it hurts, but Marco is young and has a great future, good instincts and solid principles. He’ll be fine.

Donald Trump will win the Florida Primary and likely the Ohio Primary as well. It has come late to the fore, but we are beginning to learn that there is more to Mr. Trump than braggadocio. In just the last few days, I have seen a letter written by a high school classmate of the Donald. It is impressive.

Peter David Ticktin is a successful attorney who was a classmate of Trump’s at the New York Military Academy, a prep school for boys. He relates that Trump was an ‘A’ student, a top athlete, and a respected leader of his class. 

Ticktin points out that NYMA has a firm Honor Code, and he makes a point that resonates well with me, asserting that graduates of the Academy  were inculcated with values that became “irreversibly intertwined in the fabric of our personalities, of who we are”

That’s a point I can relate to. The camaraderie developed among teen age boys attending Detroit Catholic Central more than half a century ago, while not military, certainly provided an esprit de corps  that has lasted a lifetime, and I would concede great credibility to the characterization of classmates who shared such an experience.

Then there was the black preacher who introduced Trump to a crowed in Cleveland. His heartfelt endorsement included the rather surprising assertion that Donald Trump is actually a humble man.

Hard to swallow, I suppose, but then how well can any of us know a man from what we see on the television?

Clearly, Donald Trump has made the connection between politics and entertainment. His stream of consciousness diatribes about Washington D.C. mirror the attitudes of average men and women all over America.

Joe Average isn’t running for President. His every statement is not broadcast or run through an approval meter. He says what he thinks and lets the devil take the hindmost. Trump's ramblings often sound like a Saturday Night Live parody of Joe the Plumber spouting off to a bartender.

That’s show business, and for better or worse, it is the most popular form of political discourse in the United States of America in 2016.

The fact that Donald Trump is a multi-faceted person is hardly a disqualification from the Presidency. Richard Nixon had an entirely different vocabulary when he was not on camera. John Kennedy enjoyed a secret life that hardly comported with his public image.

I m not thrilled with the notion that Donald Trump is an aggressive, if not ruthless businessman, nor do I admire his serial marriages. But in my 86 years, I have had occasion to be publicly maligned and I know the value of thick skin.

If the man is to be the President of the United States, he will have to get used to being hated. What really matters is whether he has enough conscience, self confidence and ego to do what is right and necessary even if nobody approves. The White House is a lonely place to live.     

Friday, March 4, 2016


I watched with profound sadness as Mitt Romney delivered a speech which will be in every history book in the twenty second century. It was a great speech; sincere, thoughtful, courageous. Clearly Romney felt he had to say what he said. And he meant every word of it.

What he did, of course, without realizing it, was to persuade millions of Americans that Donald Trump is the true anti-establishment candidate.

What he did was to confirm Trump’s theme that he is the only candidate who is not a part of the same-old--same-old Washington D.C. oligarchy of career politicians that so many Americans are sick and tired of.

One of the news channels went out on the street and started asking people what they knew about Donald Trump. Many said that he is a businessman. Some said ‘investor.’ Quite a few just said he is rich. The truth is that Donald Trump is a gambler. Maybe that’s the same thing as a businessman.

In the free enterprise system, a businessman invests his time, his money, his reputation, his hopes and his future on a plan – a scheme – if you will, to make a profit.

Plenty do it on Wall Street, leaving the day to day decisions to the managers of the enterprise. Others make big bets on big decisions. An NFL owner who pays a multi million dollar bonus to a 24 year old college quarterback, for example.

Insurance companies make huge gambles every day. And, of course, all the fat cats, the big money boys who hire lobbyists and donate big bucks to politicians, are gamblers, too. Maybe their candidate won’t win. Maybe he or she will turn out to be ungrateful.

Fiorello LaGuardia, the famous Mayor of New York, once said that his only qualification for public office was his monumental ingratitude. We all want public officials who are not beholden to moneyed interests.

Which is why thousands cheer when Donald Trump announces – as he so repeatedly does – that he is funding his own campaign. He insists that he is not beholden to the big money people. He is, as he says, “his own man.”

That’s a powerful argument among voters who are sick and tired of the special interest culture of Washington D. C. Trump admits that he has been part of that culture. He has donated to politicians of both Parties. He says that as a businessman, “you gotta do what you gotta do.”

But wait. Is Donald Trump truly funding his own campaign? Is he paying for the transportation, the hotels, the staff, the advertising, the red baseball caps? That word “funding” is a good clue. When I buy a house, I get the funding from the bank. Funding basically means “Who puts up the money?” It doesn’t mean “Who spends the money?”

Look at the records of the Federal Election Commission, and you will see that Donald Trump is loaning money to his campaign. Does anyone doubt that, if he wins the nomination, the Republican Party will pay off his Primary Election debts?

Of course they will. And Trump has made it perfectly clear that, once he is nominated, he will stop ‘self funding.’ So the campaign contribution flood gates will be open.

Here is a question I am waiting for the press or one of the other candidates to pose to Donald Trump: You have loaned millions of dollars to your campaign fund. You are a good businessman. You would not make a loan without insisting on some evidence of indebtedness. Where is the promissory note? What does it say?

And most importantly, what rate of interest is the borrower obliged to pay? Three percent? Five percent? In the world of free enterprise, interest rates typically reflect the risk of repayment. A long time veteran Congressman seeking reelection for the umpteenth time, may be able to borrow campaign funds at a low interest rate. But an untested outsider?

No sir, I have to believe that Mr. Trump has made a big gamble, and he expects to make a lot of money as the GOP candidate. Even if he loses the election in November.

Wednesday, March 2, 2016


Not many people know it, but the Bill of Rights were not, as so often said, the first ten amendments proposed after ratification of the Constitution.

True, they were the first ten amendments adopted by our country. But there were in fact two other amendments proposed by the first Congress. The Bill of Rights were actually the third through the twelfth. Numbers one and two were not ratified.

Those two proposals are interesting. The second one prohibited members of Congress from giving themselves salary increases with immediate effect. Salary increases for Congress would have to wait until after the next election to become effective, giving the voters a chance to veto undeserved increases.

             That proposal sat in the bowels of the Library of Congress from 1789 to 1982 when it was discovered by a Texas college student named Gregory Watson. He re-ignited it and in 1992, it became the 27th Amendment.

The final inchoate 1789 amendment was known as Article the First. It had to do with proportional representation in the House of Representatives. Here is what it said:

            After the first enumeration, required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor MORE than one Representative for every fifty thousand persons.

The word “more” was not capitalized. As written, it obviously creates a problem. When the population would reach 8 million, the minimum size of the House would be two hundred, but the maximum size of the House would be 160. Quite impossible.

             Obviously, Article the First was fatally flawed, explaining why it was never adopted. Still, the Founders described a pattern of increasing the minimum size of the House of Representatives in increments of one hundred, and increasing the ratio of constituents to representatives in increments of ten thousand.

             The scheme was very simple. The size of the house was to be based on the population as determined by the decennial census. Whenever, using the current ratio, the size of the House grew by more than 99, the ratio of constituents to Representatives is increased by ten thousand.

             If that formula were to be written into our constitution, each member of Congress, today, would represent 230,000 people, and the House would have 1,338 members.

             It makes sense to have a constitutional formula for representation in the House. If the definition of representative government is left to the political process, the result will be precisely what has happened to our country: those in power will make rules that embed and extend their power.

             Which is why the U.S. House of Representatives has been frozen at 435 members for more than 100 years. Each member now represents over  700,000 people. That makes campaigns expensive and requires continuous fund raising.

             Left to their own devices, members of Congress naturally enshrine the status quo. To them the idea of a representative body two or three times the size of the current House is simply unthinkable, unimaginable.

             But should it be? Surely there is no logical or scientific rationale that supports a 435 seat House. There is nothing more preposterous than the idea that the amount of representation to which the people of the the United States are entitled must be limited by the size of the room or the number of seats and desks it contains.

             This is the twenty first century, for heaven’s sake. We have computers, telephones, television, iPads, iPhones, Facebooks, Youtubes and Twitter. A twenty first century legislature should have the benefit of the latest technology. Science should serve democracy. And the beauty of it all is that by enlisting the most modern forms of communication, we can reestablish the two hundred year old dream of a republican government that really represents the people.