Why Obama Is Not, Actually, Destroying the Constitution: Thoughts on Federalist #31

“Not every intrusive law is an unconstitutionally intrusive law.”

—Bush appointee Jeffrey Sutton, writing for the the United States Court of Appeals, Sixth Circuit, in its June 29, 2011 decision to uphold the Individual Mandate clause of the Patient Protection and Affordable Care Act. 

The last few years have been a good time for whoever does press clippings for the US Constitution. Polling data suggests that the percentage of people who have heard things about the Constitution is greater today than it has ever been. People know, for example, that the Constitution was designed to prevent the Federal Government (which had become out of control under the Articles of Confederation) from encroaching on the rights of the states. They know that it was never intended to give the National Legislature the power to collect taxes. And, most important of all, they known that (last summer's misguided appellate decision aside) the Patient Protection and Affordable Care Act is patently and completely unconstitutional. Read the blogs and the letters to the editor; America is chock full of people who have heard things—often a whole bunch of things—about the Constitution.

The problem with relying on what you have heard, of course, is that whoever you heard it from probably has an interest in not telling you the whole truth. Constitutional law is actually somewhat complex; it’s a bit more involved than reading a sentence or two out of context and imagining that you know how it fits within a 200 year old legal tradition. But our political system is not friendly to complexity. We don’t want to be lectured by professors, we want to be entertained by clowns; and all clowns know that they have to keep things simple. But the process of simplifying complicated arguments often results in the loss of crucial distinctions. Tolstoy’s War and Peace contains over 500 distinct characters. The Wikipedia entry for the novel gets by with a few more than 20.   

One very important distinction that is being lost in the current political climate is the distinction between a “bad idea” and an “unconstitutional action.” The term “unconstitutional” has been thrown around on both the right and the left (but, let’s be honest, in this historical moment it is coming more from the right) like a casual greeting. Bestselling books now proudly trumpet the President’s secret “blueprint” for subverting the Constitution one cherished principle at a time. And the charge that Obama is bent on “destroying the Constitution” (here, here, here, here, and here) is made so frequently in the conservative media that it has become an article of faith for millions.

When we hear exactly what the President is doing to destroy our beloved document, however, the answers are, quite frankly, a little bit silly. Obama, we hear

·      Is appointing powerful policy advisors called “czars” without the advice and consent of the Senate (when Supreme Court Justice Antonin Scalia—nobody’s liberal activist—was asked about this at a Congressional round table, he responded, to the chagrin of the Tea Party activists present, simply that  “the President is  entitled to hire advisors”).

·      Is bent on appointing only liberal activist judges to the Supreme Court (as if the Constitution did not actually give presidents the power to appoint whomever they want to the Supreme Court, subject to Senate approval).

·      Has rammed an unpopular health care law down our throats in direct violation of the constitutional prohibitions on an overarching federal government (despite the fact that the health care law is currently working its way through the court system—like thousands of other laws have in American history—and will ultimately either be declared Constitutional and enacted, or declared Unconstitutional and rejected according to policy that the Constitution sets up for resolving precisely these kinds of issues). 

The assertion that these policies are wrong because they are unconstitutional is, BY THE TERMS OF THE CONSTITUTION ITSELF, the wrong argument. Call in radio hosts and bi-weekly columnists are simply not given the power to issue binding statements about the Constitution. Even television hosts are not given this power. In the system that Messers Beck, Levin, Blackwell, and Klukowski supposedly like, the power to determine the constitutionality and unconstitutionality of a presidential or legislative action resides in the court system—which is where all of these issues, especially health care reform—will ultimately be decided.
 

In the mean time, the people who don’t like these ideas owe it to the rest of us to give real reasons for their opposition. "X is unconstitutional" is quickly becoming, not so much an argument itself, but a way to avoid an argument--a way, that is, to avoid doing all of the things that arguers are supposed to do, like presenting evidence, establishing criteria, appealing to shared values, and persuading people to a coherent point of view. Arguing persuasively that something is a bad idea can be difficult. Reflexively calling what you don't like unconstitutional, and saying that your opponent hates America, is much easier on the mind.

Nobody understood the difference between a bad idea and an unconstitutional one better than Alexander Hamilton, who was especially eloquent on this topic in his series of Federalist Papers on taxation (30-36). Though it does not come through clearly in the recent Glenn Beck “translation” (or, more accurately, simplification) of the Federalist Papers, Hamilton felt that the Federal government should have almost unlimited power of taxation. He makes this case primarily in #30 and #31 (both of which somehow ended up on Beck’s cutting room floor). In one particularly important passage, Hamilton addresses the issue of “double taxation,” in which the federal government taxes something that the state taxes as well. Look carefully at what he says:

As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it INEXPEDIENT that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances.

Had this passage made it into the Beck translation, it might (I hope) have come out sounding something like: “It is entirely possible that the federal government may want to tax something that the state government is taxing too. And this could (or could not) be a really bad idea; but it would not be an unconstitutional one.”

However, when Mr. Beck actually does speak of “double taxation” in his book, this is what he says:

While the Founders argued in favor of the federal and state governments’ each having the power to tax, they were convinced that neither would tax the same thing at the same time. But now? Plenty of items, from gasoline to alcohol to tobacco, have federal excise taxes along with state sales taxes. In addition, of course, there’s income tax, which is often charged at the federal, state, and sometimes even local level. These concurrent taxes were never part of the Founders’ plan. (360)

This is wrong in the “that’s-clearly-not-what-he-said” sort of way. The Founders had a clearer vision, and a better plan, than Glenn Beck gives them credit for. Hamilton clearly foresaw the possibility of double taxation —and he was not at all “convinced that neither would tax the same thing at the same time.” Quite the reverse, he thought that they probably would. And his answer to the problem still applies to many, if not most of our informal Constitutional debates today: “this is a political issue, not a Constitutional one, so take your fight outside where it belongs.”

This, ultimately, gets to my biggest problem with the Beck-Levin-Coulter-Limbaugh-etc.-etc.-etc. assertion that President Obama (or anyone else) is “destroying the Constitution.” It presents the Constitution as a remarkably fragile document and the Founding Fathers as bumbling idiots who couldn’t figure out that some forms of government would sometimes try to overstep their bounds. It turns out, though, that they had it covered all along.  And actually respecting the Founding Fathers means having faith that the system that they designed will work—as it generally has worked in the past—according to its design specs.

One of the most ingenuous aspects of the Constitution is that it sets up a process for adjudicating disputes about its own meaning. That system—we call it the judiciary—is fully capable of resolving all of the current disputes about what is, and what is not, Constitutional. We should register our opinions, of course, but we also owe it to the Founders to allow their system to do its work. And while it does, the rest of us should get busy arguing about what is, and what is not, a good idea. 

The War on Knowing What the Hell You’re Talking About

I recently got my first hate e-mail—something that I was not actively looking forward to but was nonetheless expecting after I expanded some of my blog critiques into this negative Amazon review of Glenn Beck’s The Original Argument. It wasn’t much of a hate-e-mail, to be honest, but I do take some pride in the fact that (since e-mail addresses are not linked to Amazon accounts) the author had to spend a few extra seconds on Google figuring out where to find me. Here is a screen shot of the original text:

Initially, I suppressed my desire to respond and have just tried to let various reactions play out in my mind. My first four thoughts went something like this: 1) “while I would certainly rather have fan mail than un-fan mail, I do realize that being criticized is part of the game (which consists, basically, of criticizing someone else)”; 2) “but couldn’t Mr. Vaughn have taken the time to think of a good insult, rather than just repeat a meaningless cliché?”; 3) “wait a minute, isn’t the whole point of Mr. Beck’s book to “teach” people something about the Founding Fathers”?”; and 4) “at least he thinks I am a teacher and has not guessed that I am really just a useless administrator who used to teach.”

But it is the fifth thought that stuck with me and bounced around in my head for the rest of the day. Here it is: “I can only claim to be an expert in one thing, and this guy is trying to dismiss that expertise on the authority of a 200 year old cliché.” 

Let me explain: I am an academic. I am actually quite willing to admit that the 13 years that I spent in college left me ridiculously unprepared to face the real world. I can’t change a tire, I have never actually balanced a checkbook, and I have to use Wikipedia to understand the sports metaphors that the other vice presidents use in our cabinet meetings.

The depth of my uselessness is unusually profound, given that all three of my degrees are in English. I spent 2/3 of my college career studying 18^th century political rhetoric—a stunningly unimportant pastime that I have continued in the dozen articles and two books that I have written since completing my doctorate in 1997. Other than the language and rhetorical style of 18^th century political discourse, there is not a single thing that I could plausibly be considered an expert about.

Fully aware that my area of expertise is both narrow and shallow, I confined my review of Beck’s Federalist “translation” to two representative passages that, I felt, demonstrated a lack of understanding of 18^th century English. Both examples were clear paraphrasing errors that either reversed or seriously altered the intended meaning of the original text. It is perhaps the only thing I have ever written for a non-professional audience that actually has anything to do with the expertise that I have spent more than 20 years developing. And the response? “Those who can – do; Those who can’t – teach.”

Mr. Vaughn’s not-exactly-inspiring e-mail is just a very minor front of what I have started to call “The War against Knowing what the Hell You’re Talking About.” The soldiers in this war come from all over the political spectrum—but mainly from the extremes—and share only the propensity to turn expertise into a sin that disqualifies its possessors from political discourse. As an example, consider the following propositions:

·      All claims of global warming are “junk science.” Temperatures increase and decrease all the time, and human beings have nothing to do with it.

·      There is no such thing as being “born gay.” Homosexuality is simply a lifestyle choice.

·      Our Founding Fathers were committed Christians who believed that America was called by God to be the greatest nation on the earth.

These should not be unfamiliar claims to anybody who reads the papers; each one of them has been made in the past month by at least one serious presidential contender. Each of these three statements also shares at least two important rhetorical properties:

·      Each statement requires a certain level of expertise in a scholarly field—respectively, climate science, human psychology, and history. Each statement, that is to say, makes claims that can be supported or refuted by analysis that can reasonably be described as “scholarly.”

·      Each statement is the subject of debate among actual experts. While there are very few legitimate researchers who would accept the extreme versions of these propositions that I have quoted above, there are also very few who would accept their diametric opposites (that climate change is entirely the result of human activity; that homosexuality is entirely genetic, with no environmental component; and that all of the Founding Fathers were atheists). In each case the truth—in as far as scholarly activity is able to get at the truth—lies somewhere in between the two extremes.

But there is a third thing that these statements have in common: they are all non-negotiable parts of certain powerful ideologies that can only accept the most absolute versions of each claim. If human activity responsible, in any way, for climate change, for example, then certain extreme political positions become untenable—and those who have aligned their political fortunes with these positions must either moderate their ideology (unlikely) or dismiss the entire class of people we call “climate scientists” (or historians, or psychologists, or even experts in 18^th century political rhetoric) as part of an evil, ideologically driven conspiracy to suppress the truth.

The War on Knowing What the Hell You're Talking About is, like all wars, waged out of a perceived ideological necessity. With genuine expertise comes a mistrust of absolute statements, simplistic arguments, and uncompromising positions—which is precisely why those who want to build their political careers on absolute, simplistic, and uncompromising ideologies must first wage war on expertise.

Gridlock is a Good Thing; It's Agreement we Have to Watch Out For

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party. . . . Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.  –James Madison, Federalist #10

         As hard as I have been on Glenn Beck from time to time (here and here), I do realize, in my more reflective moments, that he (and Rush Limbaugh, and Bill O’Reilly, and <ugh, do I really have to say it?> Ann Coulter) do play an important role in the system that our Founders established. It is not the role they think they play, of course; they are not the guardians of Constitutional purity or the chosen heirs of the Founding Fathers or anything like that. But they (and, I must admit, many of their counterparts on the left) do qualify as examples of what James Madison, in Federalist #10, calls “the mischief of faction.”

         Since I first read the Federalist Papers as an undergraduate, I have considered Madison’s Federalist #10 to be the high-water mark of the volume—an opinion shared by many who study the original documents. Though it was the tenth paper published under the pseudonym “Publius,” #10 was the first contribution by James Madison; as such, it provides a good introduction to his overall arguments in the series. It has also become a standard anthology piece in rhetoric textbooks (I have actually anthologized it myself) because of the intricate parallelism that Madison uses to frame his arguments about factions, which he defines quite clearly as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

         And what are his arguments about factions? Well, they mainly go like this:

1) Factions cause problems because they tend to produce decisions that are  “not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”

What the framers feared most was not an overreaching federal government, but the development of a permanent faction capable of rendering democracy useless by harnessing the power of a majority to oppress a minority. Remember that, in 1776, "democracy" was a dirty word in most of the world. People saw it as, potentially, the most oppressive form of government around. A slim majority, they reasoned, could vote themselves into power and do just about anything they wanted to the other 49% of the people. Experience since that time has confirmed that this is precisely what happens when permanent majorities are allowed to form--think of the Hutus and the Tutsis in Rwanda, or, to a lesser extent, the Sunnis and the Shiites in Iraq. Majoritarian tyrrany, the dark side of democracy, can be as horrible as any dictatorial regime.

2) There is no way to remove the causes of faction without destroying liberty.

Factions exist because people have different ideas about stuff. Even people who have the same ideas about stuff one day have different ideas about stuff the next. Nowhere is this borne out more than in the lives of the two principal authors of the Federalist Papers. Hamilton and Madison collaborated closely to pass the Constitution, but, once it passed, they found themselves on different sides of the most important political issue of the day, which was (much as it is today) the proper role of the Federal government.

Since “The latent causes of faction are thus sown in the nature of man,” there is no way to control factionalism without changing human nature. And—as we have learned over and over again—the only material change that a government can make to human nature is to change “alive” to “dead.” Otherwise, we are stuck with our primitive tribalism and territorialism. Its just the way that we are. “Liberty is to faction,” Madison argues, “what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency

3) It is impossible to prevent the effects of factions in a democracy, but it is imperative to prevent any one faction from obtaining, and perpetuating, a permanent majority.

Madison believed that controlling the undemocratic instincts of different factions and interest groups “forms the principal task of modern legislation.”  But since there is no way to do away with either the causes or the results of factions, the principal function of good government is to prevent any one faction from being in the majority for too long. This is not done by shrinking factions (which is impossible anyway) but by multiplying them—by structuring the government in such a way that it encourages too many factions to ever coalesce into a permanent majority.

This means, first of all, that the primary guarantor of rights must be a large federal government rather than a smaller regional one. In a large country like the United States, it is much less likely for any one faction to gain permanent control of the legislature than it would be in a smaller, relatively homogenous state (think of the way that African Americans became a permanent oppressed minority in many Southern states from the Civil War to the Civil Rights Movement). It also means that the constitutional apparatus of a society should do what our First Amendment indeed does: guarantee the freedom to have, to speak, and to distribute as wide a variety of ideas as possible. The more factions we have in the country—be they religious, political, cultural, or any other –al—the less likely any of us will ever be on the minority end of a permanent majority.

        What all of this ultimately means is that most of the things that people hate about our government were put their on purpose. They are not what’s broken; they are what’s working. The way to keep freedom secure, Madison knew, is to make sure that the political process has large doses of gridlock, stalemate, demogaugury, acrimony, and mutual recrimination. A functional democratic system must encourage interest groups to form, coalitions to arise and win majorities. As soon as they have won a majority, though, a coalition must be structurally encouraged, to overreach—to push for greater and greater ideological purity until the majority breaks apart and the pieces reassemble themselves into new coalitions and new majorities.  

It also means that Glenn Beck et. al are doing exactly what they should be doing: forming coalitions, demonizing their opponents, attracting followers, ticking people off, and doing their best to advance the interest of their faction.

And it means that people like me feel compelled to try--quixotically to be sure--to “break and control the violence of [this particular] faction” by staying up nights and blogging to the wind.

Founderstein: How to Turn Eight Dead White Guys into One Political Monster

Anybody who spends enough time digging around in the graveyards of American political theory knows about “Founderstein”—an ideological monstrosity that, like Frankenstein’s monster, borrows bits and pieces from those safely dead—from, that is, the the speeches, published essays, letters, and journals of any number of different Founding Fathers slapped together with absolutely no concern for context, rhetorical intent, or the tremendous differences between the individual Founders.

The most common Modern version of Founderstein looks something like this:

·      Thomas Paine’s belief in small government

·      Patrick Henry’s religious devotion

·      Benjamin Franklin’s scientific mind

·      Thomas Jefferson’s classical learning

·      Alexander Hamilton’s support of business interests

·      George Washington’s leadership vision

·      John Adams’ incorruptible integrity

·      James Madison’s love of the Constitution

          One could certainly be forgiven a bit of idolatry in the face of such a political saint! That such a fellow never existed might dampen our enthusiasm a little bit, but this is pretty much the central-casting version of all of the “Founding Fathers” in books like Tim Lahay’s Faith of Our Founding Fathers, Larry Schweikart’s What Would the Founders Say? And just about anything by Glenn Beck, Mark Levin, or Sean Hannity.

            However, if we take these same eight men and combine another set of characteristics, we end up with a very different Founderstein—one just as monstrous as the first but designed for a different kind of political argument:

·      Thomas Paine’s strident atheism

·      Patrick Henry’s implacable opposition to the Constitution

·      Benjamin Franklin’s sexual adventurism

·      Thomas Jefferson’s deism

·      Alexander Hamilton’s desire for large, centralized governments

·      George Washington’s lifelong ownership of slaves

·      John Adams’ naïveté

·      James Madison’s shifting political allegiances

            But this creature never existed either.  “The Founding Fathers” were not all well-educated, devout Christians who sought to limit the power of government any more than they were slave-owning atheists who wanted to expand the power of government. They were actual human beings with insights and moral lapses, virtues and vices, and, perhapsm most importantly, little ability to agree with each other about much of anything. That is how human beings operate in this world.

The Founderstein phenomenon, however, does not come from this world. It comes from the world of myth, where virtues are amplified and disagreements are suppressed. And it is only by invoking the world of myth that anybody can say “the Founding Fathers believed. . . .” and end up with anything like a coherent argument. Other than a vague feeling that the American colonies were better off ruling themselves than being ruled by the British, there is not a single belief that can be attributed to everybody who can be reasonably termed a “Founding Father.”

The fallacy in the Founderstein phenomenon lies in the fact that it relies entirely on three false assumptions:

1.     That the term “Founders” represents a specific group of men (women need not apply) who have been universally recognized as the framers of the Constitution and the designers of the government that has endured for more than 230 years.

2.     That these men agreed with each other on all, or even some, of the major political issues of their day, thereby making a quote by any one of them adequate proof of “what the Founders believed.”

3.     That these men—some of whom lived into their 90s—held consistent opinions about important issues during their entire public lives.

These assumptions are not just false; they are all profoundly wrong. Together, they create an ahistorical, one-dimensional version of the Founding Fathers that is good only for creating proof-text arguments—strings of quotations that pay no attention to the ideological differences of the Founders or the rhetorical contexts of their words. Want to prove that the Founding Fathers were orthodox Christians? Easy. Quote a line from one of Hamilton’s youthful love sonnets, a phrase from one of George Washington’s ghostwritten speeches, and something that ended up in the Kentucky Constitution that may have been put there by Madison. Want to prove that they were all non-Christian deists? Grab Franklin’s autobiography, Jefferson’s letters to Joseph Priestley, and quote liberally from Paine’s The Age of Reason.  It's easy, it's fun, and no matter which way you decide to go, somebody else has already looked up the quotes. All you you have to do is Google.

And reading is hard work.

Everyone Is to Blame, but Everyone Is not Equally to Blame

          The Standard and Poor’s report came out today, and, as expected, America’s bond rating was lowered from AAA to AA+—moving us from the “good neighborhood” inhabited by Canada, the United Kingdom, and France and placing us in the company of Bermuda, Abu Dhabi, and Slovenia. The likely result of this move is that the United States will pay higher interest rates for future bond debt, making it all the more difficult to dig out of the hole we are now in.

        The eight-page report from Standard & Poor’s assigns plenty of responsibility to all of the parties involved in last month’s debt dispute. Interested readers can find reasons to be angry with Congress, the Obama Administration, Republicans, Democrats, and Tea Partiers. Honest readers will find plenty of reasons to blame themselves, their consumption patterns, and their political assumptions for, not only the downgrade, but for the thirty-year history of overspending that brought us to this position in the first place.

        However, while the report faults the actions of all of the players in the recent crisis, it does not fault them equally. The report makes very clear that the behavior of one faction bears more responsibility for today’s decision than that of the others. I do not offer this as an opinion, but as a straightforward reading of a report that makes no effort to pull its punches.

        The first thing that the report makes clear is that the size of the debt alone is NOT responsible for the downgrade. America’s current debt-to-equity ratio of 74% is lower than that of other nations with a AAA rating, such as the U.K. (80%) and will remain so through 2015. At that point, however, the ratings agency feels that the debts of other AAA countries will begin to decline. They do not believe that this will happen in America. Understanding why is key to understanding today’s action. We need not look too far for the answer, however, as it is in the first-paragraph of the report:

We lowered our long-term rating on the U.S. because we believe that the prolonged controversy over raising the statutory debt ceiling and the related fiscal policy debate indicate that further near-term progress containing the growth in public spending, especially on entitlements, or on reaching an agreement on raising revenues is less likely than we previously assumed and will remain a contentious and fitful process.

Standard & Poor’s, in other words, downgraded America’s credit rating because they do not trust our political process to reach the compromises necessary to reduce the debt—compromises that will require both “containing the growth in public spending” AND “reaching an agreement on raising revenues.”

        Taxes come up again in the report explaining that the projections behind today's decision was influenced by the perception that the Bush tax cuts would continue indefinitely:

Compared with previous projections, our revised base case scenario now assumes that the 2001 and 2003 tax cuts, due to expire by the end of 2012, remain in place. We have changed our assumption on this because the majority of Republicans in Congress continue to resist any measure that would raise revenues, a position we believe Congress reinforced by passing the act.

       Finally, the report makes absolutely clear that its decision was influenced by the actions of those in Congress who openly threatened to allow a default if their demands for spending cuts, with no tax increases, were not met:

The political brinksmanship of recent months highlights what we see as America's governance and policymaking becoming less stable, less effective, and less predictable than what we previously believed. The statutory debt ceiling and the threat of default have become political bargaining chips in the debate over fiscal policy.

     

      This is as direct a statement as S & P could have made against the arrogant, irresponsible way that the once-uncontroversial debt ceiling issue was turned into a hostage situation by a group of legislators determined to press one way of addressing the debt (entitlement cuts) while steadfastly refusing to consider the other (tax increases).

        Democrats are certainly not blameless in this mess. The entitlement programs that they love are breaking the country, and, if they can’t find ways to get those programs under control, there is probably no way that we will ever make a significant dent in our bonded indebtedness.

        That said, however, the Standard & Poor’s report makes it very clear that the size of the debt is only one of the reasons for the downgrade, and not, at the current historical moment, even the most important one. It is the state of our political process, more than the size of our debt, that produced today’s action. With that in mind, consider that

•         Only one of the parties in the recent dispute turned “the statutory debt ceiling and the threat of default” into “political bargaining chips in the debate over fiscal policy.”

•         Only one of the parties “continue[s] to resist any measure that would raise revenues.”

•         Only one of the parties signaled an absolute unwillingness to compromise its position and bragged to the media that it “got 98% of what we wanted.”

        So let the blames begin—there is certainly plenty to go around. But let us not fall for the comforting fiction that, because everybody is at fault, everybody is equally at fault. That is simply not the case, and no serious reading of the actual text of the Standard & Poor’s report could argue that it is.