Relevant and even prescient commentary on news, politics and the economy.

Oil Prices

The last few weeks oil prices have been moving higher and few analysts seem to understand the full story.

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If there is any commodity that trades at a one world price it is oil.  So the recent weakness in West Texas Intermediate ( WTI)  is very unusual and stems from temporary bottlenecks.  Over the last few years a new major source of oil has emerged from fracking in North Dakota and other interior locations. The problem was that over the years pipelines and other supply chains for oil had been built to move crude from  coastal ports to interior locations  and refiners like Cushing, Oklahoma, not from the interior to ports. A s a consequence, when mid-western oil supplies expanded it created local surpluses and price weakness.  But now these bottlenecks are being eliminated.  In particular, two pipelines from Cushing to the Gulf Coast have been reversed and large quantities of oil are now flowing from Cushing to the Gulf ports and refiners.  As a consequence the spread between  WTI and Brent crude is  collapsing.

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Since the June low, Brent crude has risen some 6.5% while WTI has jumped some 15.7%.  This has caused the spread to collapse back to near its old pre-2011 values.  Butt in evaluating the impact of the Egyptian unrest on world oil prices the number to watch is the 6.5% increase in Brent crude, not the 15.7% increase in WTI.  But the impact on domestic gas prices is more complex.  On  the coast gas prices are experiencing small price increase in line with the move in Brent while in the interior gas prices are moving up some 10% to 20% in line with the jump in WTI.

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NRA Logic: Open/Concealed Carry, Self-Defense, Stop and Frisk, New Black Panther Party

Stepping back from the specifics/justice questions of the Zimmerman-Martin case for a minute can we take a look at the logical takeaways?

One consistent story of the last few years is the push by the NRA and allies to allow Open Carry everywhere. Whether that be bars, college campuses, National Forests, a D.C. that previously had banned almost all handgun possession the consistent position of Gun Rights advocates is that the 2nd Amendment is essentially absolute, that is not only is bearing arms a ‘could’ right almost everywhere but indeed in many places (like elementary schools) a ‘should’ right and responsibility and in at least one town in Georgia an attempted ‘must’ duty (every household with few exceptions required to have a gun). On an equal track with Open Carry is a drive to extend the right to Concealed Carry almost everywhere as well, for example the 2nd Amendment folk are this week cheering the fact that Illinois became the last State in the U.S. to allow it.

A second story, and one dramatically illustrated with the Zimmerman-Martin case, is the drive to extend the right of Self Defense quite beyond the long standing Castle Doctrine, the right to defend your home and family with deadly force against intruders, to a general Fear of Your Life Doctrine. Now almost any cop will tell you (and I have been in seminars where cops DID tell us) that in cases where the presumed victim of a crime exercises deadly force against the attacker that the 2nd best response to the arriving cops is “I was in fear for my life” (the 1st best response being of course “I want to talk to my attorney”). But it would appear that under at least Florida law the circumstances leading up to that ‘Fear’ moment hardly matter at all. Instead if for any reason you feel at legitimate fear for your life at THAT moment, no matter what events led up to it, you can defend yourself with deadly force.

Well okay, there is a logic to all that. Not one I share not least because it depends on an oft expressed but in the real world fallacy that “An armed society is a polite society”. Well no, a lot of people who carry guns not only have anger issues but are willing to take them out on just about anyone. But leaving that aside, lets just give the NRA those first arguments.

What then is the logic of supporting Stop and Frisk? I mean if you legitimately believe in striking down all laws against Open or Concealed Carry and are willing to use Congress and the Courts to enforce that on jurisdictions like DC that don’t agree, then surely you agree that New York’s Sullivan Act and all subsequent legislation controlling the possession and carrying of hand guns and presumedly other hand weapons are unconstitutional then you should be opposed to any public safety measure that involves random searches for those weapons. Which is the openly claimed justification for Stop and Frisk, nobody openly claims that the Cops have a right to search everyone’s pockets for a random doobie, even if they can arrest you if they find one during the Stop and Frisk, instead the clear justification is public safety and focuses clearly on concealed weapons. But if the NRA is up at arms about this it somehow got past me, somehow this crackdown on the Second Amendment in certain areas of NYC is not objectionable at all.

Which leads me to the New Black Panther Party. Some years back some chuckleheads decided to put on their NBPP black uniforms and station themselves outside a voting precinct in Philadelphia, one ‘armed’ with a night stick. Now despite the fact that this was a predominantly black precinct and nobody actually resident there seemed to pay it any mind, this was immediately picked up by Right leaning media as a clear attempt at nation wide voter intimidation aimed at White people and one that needed immediate investigation by the Justice Department. Against a guy carrying a stick and wearing a wannabee revolutionary uniform. Yet these same people nod approvingly when other people wearing even more military style uniforms (generally camo) insist on THEIR right to carry semi-automatic rifles openly everywhere they want without restriction.

Now there must be some logic underneath the belief that all laws against Open and Concealed Carry are prima facie likely Constitutional violations and the simultaneous belief that a guy with a stick in Philadelphia is an existential threat against American voting rights. I can’t quite grasp that logic myself but I am sure that to holders of its conclusion the rationale is as clear as black and white.

Any help here?

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Sequester Impact: 1 In 7 Seniors Struggle With Hunger

Crooks and Liars Diane Sweet writes about the impact the Sequester is having on something I used to do when working part time at an assisted care and nuring home in Bensonville, Illinois while pursuing my first BA. “Meals on Wheels” would bring a meal a day to the elderly. Since some were apartment-bound with no way to get to a store; potentially, this was their only meal for the day. Often times, I was also the only face they might see that day. In My Datsun 510 (college transportation), I would make a dozen or so stops when I did this. I can vouch for the gratitude I received from making the deliveries.

While Social Security has kept many afloat in today’s economy, 15% of the elderly still live in poverty as determined by the supplemental measurement.

65 and older poverty

As Diane Sweet points out, the Sequester has only made it worst for seniors who depend on this and other programs to make ends meet and to bring them the simplest of things . . . a meal and a face at the door.

Sequester Impact: 1 In 7 Seniors Struggle With Hunger

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Sequester cuts will total $1.2 trillion through fiscal year 2021. This year there is a 5.3 percent cut, totaling $85 billion. The cuts are indiscriminate and will impact nearly every federal program. Here are some of the ways this year’s cut is affecting food and hunger programs:

Meals for needy seniors lost in programs like Meals on Wheels (MOW): 4 million

Savings from cut of 4 million meals: $10 million

Rise in Medicaid costs due to cut of 4 million meals: $489 million

Net cost to U.S. federal budget due to cut of 4 million meals: $479 million

Loss of senior meals, California: 750,000

Loss of senior breakfasts, Palm Beach County, Fla.: 240 daily

Loss of senior meals in group dining facilities, Detroit suburbs and several counties: 86,000

Loss of home-delivered and group dining senior meals, La Crosse County, Wis.: 6,000

Ellie Hollander, president and CEO of the Meals on Wheels Association of America: “The real impact of sequester is that our programs don’t have the ability to expand to meet the growing need. We should be investing in these programs to ensure our seniors have the nutritious meals they need to remain healthy and independent.”

Patricia Hoeft, director of senior center nutrition, the Mid-East Area Agency on Aging (Missouri): “How do I decide which 300 seniors aren’t going to eat that day?”

Meals on Wheels recipient, home delivery program, La Crosse County, Wis.: “These meals are sometimes the only meal that I have a day. I don’t drive, so I have to rely on others to get around to doctors’ appointments. I only get $16 a month for food.”

References:

“Sequester Impact: 1 In 7 Seniors Struggle With Hunger” Diane Sweet Crooks and Liars
“Hunger and the Sequester, By the Numbers” Bill Moyers “What Really Matters”
“A State-by-State Snapshot of Poverty Among Seniors: Findings From Analysis of the Supplemental Poverty Measure” The Henry J Kaiser Family Foundation

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Medicaid Expansion in Michigan

States refusing to expand Medicaid to 133% of FPL has repercussions for those making less than 100% FPL. The PPACA was intended to setup State Exchanges where people could buy healthcare insurance and if they had an income beyond 133% FPL (Federal Poverty Level). Subsidies in the form of a tax credit would be given to each participant (sent to insurance carrier) based on their income. Remember, I said the PPACA was designed for those with incomes >133% FPL? While those with incomes >100% FPL can get subsidized healthcare insurance in the Exchanges, those with incomes <100% FPL can not get subsidized healthcare insurance in the exchanges and they would be covered by Medicaid. The states threatening to not expand Medicaid will leave a hole in healthcare insurance coverage. If the states do not expand Medicaid for single and childless married adults and expand it for married adults with children with incomes <100% FPL, they will not be able to get subsidized coverage on the exchanges either. Many state legislatures are not mentioning this to the constituency in the hope they can blame it on the PPACA, President Obama, and the Democrats. Here is how it is playing out in the State of Michigan . . . “the expanded program would cover as many as 450,000 Michiganders, according to projections. Michiagn State Senator Hune said there is evidence that about half of those in the expanded income category already have coverage of some kind” Press and Argus local newspaper. Michigan State Senator John Hune (my district) is worried about adding 450,000 more uninsured people to Medicaid if they expand it under the PPACA . I could understand the concern if:

• It was not funded. The Medicaid expansion is fully funded up to 100% for the first 3 years and gradually drops to 90% in 2020. The 90% still exceeds the unenhanced Federal Government Medicaid funding of 66% presently given to Michigan for Medicaid. Federal Medical Assistance Percentage (FMAP) for Medicaid and Multiplier, State Health Facts, The Henry J. Kaiser Foundation.

• The State of Michigan already covered adults with and without children up to 100% of FPL. Michigan does not cover up to 100% of FPL for any adult. Jobless Adults with children are covered under Medicaid if they are <37% of FPL. Working adults with children are granted Medicaid coverage at <64% of FPL. Single adults were once covered at <35% FPL if jobless and <45% FPL if working. The program is closed for single adults and married childless adults. Adult Income Eligibility Limits at Application as a Percent of the Federal Poverty Level (FPL), January 2013 The Henry J. Kaiser Foundation.

Recently, the Republican dominated Michigan State Senate went on vacation rather than voting, leaving the PPACA Medicaid Expansion issue to be decided upon when they return in Fall. State of Michigan Senator Hune’s reasoning was the lack of time (two days) to decipher the Medicaid Expansion. Now this happened in an automotive state where people who work in the automotive industry usually end up losing vacation and holiday time when a production line shuts down or a shipment needs to go out. Myself, I have faced such issues when managing a $200 million/year warehouse for a major Tier One. We hung around until the issue was resolved. This is also happening 2 years after the PPACA has passed, been decided as constitutional by SCOTUS, and rolled out piece meal. So why can’t they give up a couple of days and give it a yes or no vote?

The Republican dominated Michigan State Senate and “other opponents” to the PPACA are not acknowledging the resulting hole in coverage which the PPACA will not cover. Those people who do not have an income of at least 100% FPL will not be eligible for PPACA subsidies in the State Insurance Exchanges. For example, a working women with one child making $10,000 per year is at 64% of FPL and is ineligible for a subsidy to assist in paying the ~$4,900 insurance premium levied from the State Insurance Exchange. Pre-SCOTUS PPACA June 2012 decision, the Federal Government could force states to expand the Medicaid coverage by withholding funding already allocated to states for Medicaid. Since the 5-4 majority SCOTUS ruling, SCOTUS determined the Federal Government and Congress can not force states to expand Medicaid. Using the Kaiser Interactive Subsidy Chart, one can see in the chart below, the working Michiganders caught between 36% of FPL and 100% of FPL would not be eligible for PPACA Subsidies in the eventual Michigan Healthcare Insurance Exchange.

Subsidy1

So why is Michigan State Senator John Hune so concerned about the addition of these Michiganders to Medicaid when there is no other comprehensive coverage for those with income < 100% FPL; secondly, the funding is at 100%, drops to 90% in 2020, thirdly it is a net gain for Michigan; and finally Medicaid improves upon what they may now have (telemarketed mini-meds) and would result in healthier workers? Perhaps, Senator Hune is attempting to appease a Tea Party constituency as his reasoning otherwise lacks common sense. Missing out on the funding for additional Medicaid coverage is only one aspect of the issue as there other gains to be realized from expanding. Michigan’s Economy Will Benefit from Expanding Medicaid, Families USA and Michigan Consumers for Healthcare points to a host of other benefits Michigan will forgo if it does not expand Medicaid.

• In 2016, the new federal dollars would support approximately 18,000 new jobs across all sectors of Michigan’s economy, a 0.32 percent increase over the number of current jobs in the state. This is not limited to health care jobs. Because of the multiplier effect (described above), jobs would be created in a wide range of business sectors throughout the state.

• The increased federal funding and jobs created are projected to increase economic activity in Michigan by nearly $2.1 billion starting in 2016.

• From 2013 through 2022, the Medicaid Expansion could save Michigan ~$350 million in uncompensated cost, as more people would be insured. This would offset the decreased percentage in 3 years.

• Hospitals also absorb uninsured healthcare costs. It is estimated another $317 million could be saved with the Medicaid expansion.

• In 2008, the costs of uncompensated care increased family health insurance premiums by an estimated $1,017.

• Increased state revenue from more people working.

• In this conservative get a job or get out of the state of Michigan, insured constituents would be healthier and more productive in jobs.

Solely because of politics, the Republican held Senate in Michigan is stonewalling the Medicaid Expansion at the expense of thousands (6,000 in Livingston County alone) of their constituents. Again as taken by Henry J. Kaiser Foundation, there are 1.9 million people in Michigan who have incomes <100% FPL who would not be eligible for subsidies on the PPACA State Insurance Exchange. Only adults with children are eligible today for Medicaid and only if their income is a much lower percentage than 100% FPL.

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The PPACA Sky is Falling . . .

Chicken Little

Quelle Surprise, The White House Administration has decided to give “some” companies with >50 employees a one year extension in order to prepare and comply with the PPACA mandate. Given the amount of resistance the PPACA has received from the states in preparing for it and the House of Representatives, this delay should come as no surprise at all. While everyone has rushed into the fray claiming it is proof the PPACA is failing, the delay impacts a fraction of the employers with >50 employees. 94 – 96% of the ~200,000 employers who fall into this qualification already offer comprehensive healthcare insurance. The delay was to allow the 4 to 6% of the employers (8,000 to 12,000 employers) time to decide what they will offer. Former health policy administrator Ezekiel Emanual had this to say as reported by Bloomberg Health-Law Employer Mandate Delayed by U.S. Until 2015:

“Former White House health policy adviser Ezekiel Emanuel, now vice provost at the University of Pennsylvania, said today on MSNBC’s Morning Joe that the delay of implementation of the employer mandate will impact a limited number of companies. ‘I actually don’t think this is that big a deal,’ he said.

‘The provision only applies to employers who have 50 or more employees’, Emanuel said. He estimated that there are 200,000 total employers in the U.S. impacted and that “94 percent already offer health insurance” to employees.

‘We need to look for 2020 rather than moment to moment for changes in the system,’ Emanuel said.

Obama has confronted opposition from Republicans at every turn of the law, which passed Congress with only Democratic votes and was later challenged before the U.S. Supreme Court.

Only 16 states have agreed to set up the new exchanges, or marketplaces to sell insurance to people who don’t get it at work. Twenty-four states have refused to expand Medicaid, as called for under the law, according to Kathleen Sebelius, Obama’s secretary of health and human services.

Congressional Republicans, who have vowed to try to repeal the law, have refused Obama’s requests for about $1 billion more to help enact the statute and ensure it runs smoothly. Instead, they’ve started multiple investigations into the implementation.

Nor is this the first time Obama has been forced to scale back the law’s features. In March, the administration said small businesses wouldn’t be able to give their workers a choice of health plans in exchanges set up just for them. In January, a plan to create new nonprofit insurers in states was curtailed after Congress capped funding for the companies.”

Reports of companies limiting workers to 30 hours per week to avoid offering them healthcare insurance has been in the news with food chains and WalMart leading the way. It does not quite work that way as reported by Maggie Mahar at Health Beat Blog; The Employer Mandate is Postponed: What Does This Mean For Obamacare? Is Ezra Klein Right–Should the Employer Mandate Be Repealed?. Maggie goes on to say:

As I explained in a recent post, what the critics don’t seem to understand is that the ACA requires that employers offer health benefits if they have “30-time full-time employees or full-time equivalents.” Two workers who put in 15 hours a week equal one full-time equivalent. In other words, the government doesn’t count heads, it counts hours. To figure out how many “full-time employees and full-time equivalents” a business owner has, the government will add up the hours that all of his employees work, and then divide by 30.

The employer who cuts 12 of his 40 full-time employees to part time, and hires another 12 part-time employees to fill in the holes in his work schedule will wind up with 28 full-time workers and twelve “full-time equivalents.”

He will not have to insure the part-time workers, but he will be required to offer benefits to the 28 who actually work 30 hours a week.

As far as WalMart, people are already complaining about the lack of stocked shelving and service. This plays into the hands of WalMart competitors such as Target and Costco who appear to have their employees well being in mind. Should the Employer Mandate be removed. Some interesting commentary from Maggie Mahar. In 2009, Ezra Klein argued against the employer mandate and recently the same argument surfaced again.

“Again he quotes CBPP: ‘The employer mandate and penalties ‘would likely influence employer decisions about which of their employees to let go when they trim their workforces to cut costs, such as during a recession’ Workers from low-income families would cost the firm significantly more.’

Yesterday Klein repeated the argument, writing that ‘Eliminating” the employer mandate, or at least utterly overhauling it is probably the right thing to do.’

Maggie: I disagree. I admire both Klein’s Wonkblog and the CBPP, and applaud most of what each have written about health care reform. But in this case the argument is based on the false assumption that employers will choose to pay a penalty of $2,000 to $3,000 per employee rather than provide insurance. What both Klein and CBPP overlook is what Klein himself has explained in the past:

‘People simply misunderstand why employers offer health-care benefits. They’re not doing it as a favor to employees. . . Employers offer health insurance because employees demand it. If you’re an employer who doesn’t offer insurance and your competitors do, you’ll lose out on the most talented workers. An employer who stopped offering health benefits would see his best employees immediately start looking for other jobs.’

Research also shows the health benefits improve productivity and reduce absenteeism. As I pointed out: not long ago:: “This explains why 95% of employers with more than 30 workers offer insurance.”

The sky has a long way to fall before it hits your head. Do not be fooled by the commentary lacking substance. The habitual naysayers and pols are having a field day with this revision in implementation when the problem is only a small portion of the total. Most employers are ready to go forward.

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About That “Poking Into Every Nook and Cranny of Daily Life” Thing, Chief Justice Roberts …

If there is no mystery about the nature of the chief justice’s views, I remain baffled by their origin. Clearly, he doesn’t trust Congress; in describing conservative judges, that’s like observing that the sun rises in the east. But oddly for someone who earned his early stripes in the Justice Department and White House Counsel’s Office, he doesn’t like the executive branch any better.

He made this clear in an opinion dissenting from a 6-to-3 decision this term in an administrative law case, City of Arlington v. Federal Communications Commission. The question was whether, when the underlying statute is ambiguous, courts should defer to an administrative agency’s interpretation of its own jurisdiction. The answer was clearly yes, according to Justice Scalia’s majority opinion that built on decades of precedent on judicial deference to agencies. The chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.”

Congress can’t be trusted. The executive branch is out of control. What’s left?

The Supreme Court. There’s a comforting thought as we await Year 9 of the Roberts court.

— Linda Greenhouse, The Real John Roberts Emerges, New York Times, today

Yes, the chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.”  That is, I guess, as opposed to, say, state laws (and in the case of DOMA, a federal statute) that poke into what should be very private nooks and crannies of daily life, in which case their poking into nooks and crannies of daily life are fine with Roberts.

But more important, but, as I said earlier today and also last week, almost completely ignored by the mainstream media in its coverage of the Supreme Court—and therefore completely unknown to almost everyone—is the current Supreme Court’s bizarre claim that state courts are entitled to unbridled sovereign dignity to poke into every nook and cranny of daily lives.  Or to delegate breathtaking effectively-judicial powers to private persons to control every nook and cranny of the daily lives of, say, those unlucky enough to suddenly be subject to, say, family-law court, or probate court, or criminal courts.  State courts that routinely ignore even their own state’s legislative dictates intended to ensure compliance with procedural and substantive federal constitutional mandates whose unequivocal purpose is to place individual dignity above what these fair-weather “federalism” jurists claim is the constitutional right to sovereign dignity that state courts have and that grants them the constitutional right to violate individual dignity in even the most profound and basic respects.

As I said in a post here last week, maybe one day Justice Kennedy—who, unlike Roberts, does recognize federal constitutional limits to state legislative– and executive-branch powers even concerning matters that aren’t Republican rallying cries—will deign to explain why he and his cohorts believe that the Constitution, which since the late 1860s has included the Fourteenth and Fifteenth amendments and which still includes both the habeas corpus clause and Supremacy clause, renders state courts sovereigns and therefore untouchable by “collateral” declaratory federal-court order.

And maybe that distinguishes Kennedy from Roberts.  Maybe Kennedy one day will give some thought to it.  Roberts by contrast will merrily continue his personal legislative agenda, for which no thought is necessary or evident.

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The End of the Untouchables Era: The Coming End of Institutionalized Federal and State Judicial Abuse of Office [UPDATED]

Last Thursday (Jun. 27) I posted a piece here titled “Poetic Justice for Justice Alito.  Maybe.”, that discussed the concerted and deeply successful effort begun in the mid-1980s by the Reagan-era appointees to the federal appellate bench and continuing unremittingly since then, to invite virulent abuse of litigants and lawyers by judges—the more overt and ugly, the more the peer applause and emulation.  The occasion for my post was an article about Samuel Alito, by Mark Joseph Stern on Slate, which I linked to.

My post said Alito’s conduct was part and parcel of a defining characteristic and goal of the rightwing conservative legal movement of the last four decades—goal so thoroughly successful that it became, and remains, the norm among federal judges, irrespective of political affiliation.  Clinton appointees (including one who, twice, came precious-close to nomination to the Supreme Court by Obama) enthusiastically jumped on that bandwagon.

But there are two key facts that I decided not to mention in that post, and to instead leave for a later post: One is that state-court judges have, en masse, followed the lead of these federal judges.  The other is that that lead consists not only of now-routine denigration and defamation of litigants and counsel but also of jaw-droppingly in-your-face disregard of clear federal and state substantive and procedural law (including unequivocal statutory law).  A triumph of this juggernaut is that, regarding no-name litigants and no-name counsel, the more flagrant the deviation from unequivocal law, the cuter the judge feels. Abuse of office among judges—federal and (these days even more so) state judges—is deeply institutionalized now.

I’m posting this now (although I’m not much in the mood today) because of run75441’s post below from yesterday and because of a comment that reader Denis Drew posted to my Jun. 27 Alito piece. He wrote:

Get judges down to earth:
Just stand outside the courthouse — every courthouse — informing people: “If you don’t have to salute the flag, you should not have to rise when the judge walks in. Nobody will rise once they think of it. Game over.

I refused to remove my hat in an Illinois courtroom (the judge was not yet present — was a bully). I gave the court officer my little spiel and offered to explain to the judge when he came in (he didn’t ask).

I should have added: “If you think this is church, tell the ladies to put hats on (can they tell the ladies to take hats off?).

Gives me another pesky idea. Have “Freedom Hat Day”: hand out hats outside courthouses for the men to assert their First Amendment rights.

I call this “broken windows theory for cops and judges”: full application of First Amendment discipline — remind them they are no bigger than anybody else. Make them repair their small First Amendment misbehavior and you repair the lawless atmosphere that encourages more serious offenses.

I responded today in the Comments thread:

Exactly, Denis.  In writing this post, I considered saying also that state-court judges have, en masse, followed the lead of these federal judges, but I decided to leave that for a later post. The specifics are stunning and appalling.  The very essence of the American judicial system has changed dramatically in the last three decades.

This crowd of federal judges had for nearly three decades been regarded as untouchable.  But their unfettered, unquestioned, and under-the-public’s-radar-screen, at-will legal, ethical and moral freelancing may soon come with an actual price.  It was, and remains, great fun.  But times, I have reason to expect, are changing.  The judicial honorarium may soon cease to serve as license for the routine, joyful abuse of that little-scrutinized but profoundly powerful public office.  These folks may have to take up gardening or fishing instead as a hobby.

—-

UPDATE: In the Comments thread to this post, regular AB commenter and occassional AB contributor Dale Coberly posted a link to this breathtaking article on Alternet.  In response to Dale’s comment, I wrote:

Yes, this is a classic instance of something I’ve written about on AB several times now, including in one of my posts here last week: The Supreme Court’s bizarre several-decade juggernaut by which, in the name of states’ sovereignty, they foreclose access to federal court to enforce federal constitutional rights, however brazenly—and I do mean brazenly—denied by state-court judges in criminal and civil cases (e.g., family-law; adult-guardianship/conservatorship; various types of contract cases, including ones that harm small businesses such as franchisees and business-loan customers).

This 18-year-old should be able to file what’s known as a declaratory-judgment lawsuit in federal court asking for, and receiving, a declaratory judgment—a declaration of law pertinent to the facts—holding that this young man’s statements are protected under the First Amendment. Even though he’s not a corporation.  In the case of a criminal defendant, as this 18-year-old is, the issue is complicated by an outrageous federal “jurisdictional” statute enacted in 1996 and signed by Clinton just before his reelection bid to fend off soft-on-crime accusations, that in a juggernaut led by Anthony Kennedy (states’ sovereign dignity! By which he means state-COURTS’ sovereign dignity) is interpreted in ways that are clearly violative of the Fourteenth Amendment and the original Constitution’s writ of habeas-corpus clause. To the extent that the statute actually DOES bar a “collateral” declaratory judgment claim in federal court, it does violate those provisions of the Constitution.

That 1996 statute is, I think, finally— finally—very ripe politically for re-examination by a congressional coalition of progressives and Republican libertarians such as Rand Paul. I’d love to see this case get widespread attention; I certainly was unaware of it until now.  Maybe Justice Kennedy, if he learns of it, will give a moment’s thought to the dignity of this individual and whether under the ACTUAL Constitution, state court’s sovereign dignity really trumps individual dignity.

The Alternet article doesn’t say that his arrest was by local police and that he was charged in state, rather than federal, court, but that appears to be the case, and I’m assuming that it is.

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SCOTUS Rules Again . . .

As found on our Open Thread of June 28, 2013, jurisdebtor decided to leave a gem behind. Juris debtor can be found on his Blog J.URIS D.EBTOR, My Own Meanderings Through Economics, Law, and Policy Having been in the courts for the last decade, I find this to be a good interpretation of what one might expect from the courts. It is never what you believe it to be coming from the gods dressed in black sitting behind their pulpit looking down at you (there is distinct reason for this). The days of Gideon are forever past (happy fiftiest Gideon in 2013). Try writing SCOTUS yourself today.

Don’t Let DOMA Fool You — the Supreme Court is Restricting Your Rights By David Cole, Washington Post, 6/28/2013. As taken from the Open Thread, jurisdebtor posts David Cole’s appraisal of SCOTUS decisions as rendered by the Kennedy Court (my interpretation).

The Supreme Court’s 5 to 4 decision to strike down a key part of the Defense of Marriage Act was undeniably historic, a victory not just for gay rights advocates but for anyone committed to advancing equal rights in America.

It was also an anomaly.

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Poetic Justice for Justice Alito. Maybe.

U.C.-Berkeley law professor Goodwin Liu’s nomination to the Ninth Circuit Court of appeals was killed a couple years ago by Senate Republicans upon the pretext that Lui had trashed Alito to the Senate Judiciary Committee in testimony during Alito’s confirmation hearing.  Lui predicted that Alito as a justice would be exactly what Alito as a justice is.  Now that Lui’s prediction has proven spot-on*, Obama should nominate him, not for the Ninth Circuit but for Supreme Court upon Ginsburg’s retirement in a year or two.

It would be at least some small poetic justice for this justice.

But Alito’s demeaning, denigrating treatment of litigants and counsel is emblematic of a veritable hallmark of the Federalist Society-affiliated appellate judges.  Certainly not all of them do that, but also certainly, several high-profile Reagan/H.W. Bush-era appellate appointees have made that type of conduct a mark of peer prestige, and others, who don’t naturally have that personality—including some appointed by Clinton—emulate it.  Something about being in with the in-crowd.  It is, or at least for a long time was, the cool thing for them to do.

*The link is to a terrific article in Slate today by Mark Joseph Stern.  But credit also must be given to the Washington Post’s Dana Milbank, who in a column published earlier this week was, I believe, the first of the now-several commentators to report on this. 

—-

UPDATE: I posted a similar comment to Stern’s article in the article’s Comments thread on Slate.  In response, a commenter called Bigmouth wrote:

While I’d love to see Liu on the Supreme Court, I’d like to see the President pick fights he can actually win lol.

To which I responded:

This is one he would win if he chose to pick that fight. The high profile of the matter, coupled with the under-recognized importance of the generational change among voters–particularly the growing importance of the Millennials–and the overdue, very public highlighting of Alito’s votes and his conduct on and off the bench, would win it for Obama.

Not that I expect that lackluster, gutless wonder to actually pick this fight. But if he does, he’ll win it.

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