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The Fundamental Principle That States Are People, My Friend

OH. WOW.  I actually called this exactly right in my post yesterdaythis being, well, this.  [Inadvertently-omitted link to court opinion inserted.  H/T Dan Crawford.]  Specifically: Roberts’ 5-4 opinion today in Shelby County, Ala. v. Holder, the Voting Rights Act case that I discussed, and predicted the outcome of, in that post yesterday.

Regular AB readers might recall a recent post of mine excoriating an article on Slate by University of Chicago law professor Eric Posner concerning a Fourth Amendment search issue.  But Posner, who along with his father, prominent federal appellate judge Richard Posner and two others, is blogging on Slate this week in its annual final-week-of-the-Supreme-Court-term discussion, and he’s posted this spot-on analysis and bald criticism of the Roberts opinion in Shelby County:

Chief Justice Roberts’ opinion in Shelby County v. Holder, the Voting Rights Act case, is a pretty lame piece of work. There is a longstanding constitutional norm of judges deferring to Congress. Courts strike down laws when they violate rights or exceed Congress’ power. But Section 5 of the Voting Rights Act, which requires nine states in the South (and other scattered places) to get approval from the Justice Department before changing their election laws, doesn’t violate anyone’s rights. It’s the type of legislation specifically authorized by the 15th Amendment of the Constitution, which says the right to vote “shall not be abridged” because of race or color. Roberts says that the singling out of Old South states, for what’s called “preclearance” by DoJ, makes little sense now that blacks are as likely to register to vote as whites in those states, or nearly so. But Congress passes hundreds of statutes that are based on weak evidence, and courts routinely uphold them. Roberts doesn’t even try to argue that the costs imposed on states by the preclearance part of the Voting Rights Act exceed the benefits for people who would otherwise be deprived of the vote, which is what would be minimally necessary to show that the law does not advance the public good.

Roberts focuses on the offense to the sovereignty of states and a newly invented idea he calls the “fundamental principle of equal sovereignty.” State sovereignty means that the federal government should not intrude on political decision-making of states, including, Roberts says, their election laws; equal sovereignty means that when it does, it should intrude equally—on all of the states to the same degree.

But neither of these principles can explain where Roberts ends up. The idea of state sovereignty is riddled with exceptions and is largely a joke these days. The federal government calls the shots, and the states obey, in the area of elections as much as in any other. Roberts accepts the constitutionality of Section 2 of the Voting Rights Act, which forbids states to discriminate against minority voters and in this way also intrudes on state control over their elections. (Section 2 wasn’t at issue in the case the court decided Tuesday, so it’s alive and well. But it relies on lawsuits, not preapproval by the Justice Department, to ensure the rights of minority voters.) If Section 2 does not violate the Constitution, then what is special about Section 5—which also forbids discrimination? From the standpoint of state autonomy, Roberts’ argument does not wash.

That leaves the “fundamental principle of equal sovereignty,” the idea that Congress may not single out certain states for special burdens. Yet Roberts is able to cite only the weakest support for this principle—a handful of very old cases that address entirely different matters. None of the usual impressive array of founding authorities show up in his analysis, even though the founding generation took state sovereignty much more seriously than we do today.

Posner follows that with this priceless deconstruction:

Still, it is worth looking at this principle. What exactly is wrong with the singling out of states by the federal government? Is the idea that when Alabama is on the playground with the other states, they’re going to make fun of it because it had to ask its mama for permission before going out to play? In fact, the federal government doesn’t treat states equally and couldn’t possibly. Nearly all laws affect different states differently. Disaster-relief laws benefit disaster-prone states at the expense of disaster-free states. Pollution-control laws burden industrial states. Progressive taxes burden states where the rich are concentrated. Thanks to Congress, the Environmental Protection Agency can single out states with serious pollution problems, the Justice Department can keep an eye on states with serious corruption problems, and immigration authorities can single out border states for surveillance. Indeed, Section 2 of the Voting Rights Act will continue to burden states with substantial minority populations relative to other states, just because you can’t discriminate against a minority population that doesn’t exist. Many more Section 2 claims will be brought in Alabama than in Montana, and so even under Section 2, Alabama has vastly less control over its election law than Montana has over its election law. Yes, Section 5 places an incremental burden on Alabama—but on top of an already unequal burden that Roberts cheerfully tolerates. So whatever explains the court’s decision today, the putative principle of equal sovereignty can’t be it.

Posner raises a point that occurred to me after the oral argument in Shelby County, concerning what appeared (as I said yesterday), accurately, to be the intention of the Fab Five to create a new constitutional doctrine by which states, just like people, are entitled to the equal protection of the law.  It occurred to me that under this new states-are-people-and-therefore-entitled-to-equal-protection doctrine, states (most of them Democratic-leaning) that pay more to the federal government than the state and its residences receive in federal funds could challenge the constitutionality of the laws that provide states (most of them Republican-leaning) and their residents with more federal funds than the state’s residents pay in federal taxes.

But Roberts gets around this—or tries to—by effectively saying that the Tenth Amendment, which he says grants states the right to do whatever they want unless one of the Constitution’s “enumerated powers” (the powers that the Constitution expressly grants to the federal government, and which were central in last year’s Obamacare litigation) provides otherwise.  Thus, he says, the Tenth Amendment trumps the Fifteenth Amendment, notwithstanding that the Fifteenth Amendment was added to the Constitution after the Tenth Amendment was.

Roberts, no numerologist, does nonetheless superficially finesse this by claiming that, well, yah, sure, maybe the Fifteenth Amendment’s Section 5 could be considered an enumerated power— although he doesn’t actually call it an enumerated power, because rightwing mantra dictates that only the powers enumerated in the Constitution’s Article I (which creates the Congress) qualify as authentic enumerated powers.  But, y’know, the real purpose of the section of the Fifteenth Amendment, which authorizes exactly the type of legislation that section 4 of the VRA is, is prospective—that is, to make this a better country going forward.  And, well, how can you make the country a better place when you’ve based your law authorized by the Fifteenth Amendment on outdated evidence, for heaven’s sake?!

The fundamental principal of equal sovereignty is nowhere, even arguably, in the Constitution.  But now, well, states are people, my friend.

Of course, as Posner suggests, and as I point out, if states are entitled to equal protection of federal law, then hopefully New York, Massachusetts, Washington state, Illinois, Connecticut and Vermont will join together to challenge the constitutionality of the federal laws that serve as a financial funnel to Louisiana, Texas, Mississippi, Florida, and Alabama—including Shelby County.  Roberts’ opinion notwithstanding, it is itself a violation of equal protection to limit this new equal-protection-of-person-states (state personhood) to state “sovereignty” prerogatives. Even though that’s what serves the interest of the Republican Party.

This is an outrageous new doctrine and it is part and parcel of the Reagan-era legal cabal’s really wacky, really aggressive states-are-people jurisprudence juggernaut, which conveniently trumps both federal and individuals’ (actual humans’) rights to the extent, but only to the extent, that it matches these folks’ political or ideological preference.  The Tenth Amendment, not incidentally, reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

A hallmark of their brand of states’-rights jurisprudence, filled with downright bizarre Court-created doctrines, as it is, is that the post-Civil War era Reconstruction amendments—the Thirteenth, Fourteenth and Fifteenth amendments—are part of the Constitution and its delegation of federal authority only when state or local legislatures or administrative agencies or government bodies infringe upon, say, the right of an upper-middle-class high school senior to be admitted to her state college of choice on the basis of her grades and SAT score.  Or upon the rights of a real estate property owner to do whatever with, or on, his property.  Or upon gun-ownership rights.

You get the idea.  We all do.


UPDATE: I’m grateful to a Slate front-page editor for his or her decision to feature Eric Posner’s post at the top of Slate’s opening page—and to caption the post to highlight Posner’s point that the opinion is based on a flawed and outright made-up legal concept, a newly fabricated, wacky legal doctrine that has no conceivable actual basis in the Constitution.  None whatsoever.

The opinion is as blatant a political artifice as was Bush v. Gore.


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Soooo … Eric Posner’s Angling to Ghostwrite David Brooks’s Columns. Or At Least to Fully Shed That John-Yoo-and-I Stigma. Fine, But Don’t Stigmatize ME In the Process. [FORMAT-CORRECTED AGAIN]

When Dzhokhar Tsarnaev was arrested Friday night, the celebration was instantly overtaken by an ideologically charged debate. Liberals argued that the government must respect Tsarnaev’s constitutional rights, by which they meant that he should be treated the same as any ordinary criminal suspect—informed of his Miranda rights, supplied with a lawyer, presented to court as soon as possible. The subtext was that the treatment of Tsarnaev would refute yet again the hated Bush administration’s claim that it needed expansive war powers to fight terrorists. Conservatives by contrast, notably Republican Sens. John McCain and Lindsey Graham, argued that the government should classify Tsarnaev as an enemy combatant, and thus deprive him of the rights of ordinary criminal suspects. For the left, the Tsarnaevs are examples of “vulnerable Muslims” driven to extremes by President Obama’s immoral drone war; for the right, they are foot soldiers in a civilizational war. …

Neither the knee-jerk liberal nor the knee-jerk conservative response appreciates all of these underlying dilemmas. For liberals, the constitution is a fetish to be stroked at times of peril; it will protect us, whatever the stakes. They forget that criminal procedural rights were cobbled together over decades by fallible judges, who were responding to the needs of the time. What might have been appropriate during the civil rights era, when police used criminal law to suppress protesters and torment African-Americans, may not be appropriate for an age of terror. …

The isolation of terrorist suspects is hardly a new idea; it was used effectively in the 1970s by Germany, Italy, and other European democracies to defeat terrorist groups like the Red Army Faction and the Red Brigade. Here and now in the U.S., there are several advantages to this approach. It treats in the same manner anyone who engages in terrorism or mass killing and does not single out Muslims, who are burdened by the legacy of the declaration of war against al-Qaida. It gives the police broad powers to deal with cases of extraordinary violence without granting them similar powers for ordinary criminal investigations. It avoids any reference to war or martial law, skirting the massive legal and political complexities associated with war powers. And because Congress would make the rules, and judges would oversee the system, the courts would likely hold it constitutional.

The New Law We Need in Order to Deal With Dzhokhar Tsarnaev: Congress should authorize the isolation and detention of suspected terrorists., Eric Posner*, Slate, yesterday

After reading that article this afternoon, I posted the following comment to it:

For the left, the Tsarnaevs are examples of “vulnerable Muslims” driven to extremes by President Obama’s immoral drone war; for the right, they are foot soldiers in a civilizational war? Really? For the entire left, Prof. Posner?

I’m a regular writer on a blog called Angry Bear, a left-of-center economics/politics/legal-issues blog, and yesterday, at the request of the guy who runs the blog, I posted a lengthy piece on these issues, at [this link; link corrected 4/25]. I began writing for that blog three years ago at the request of the guy who runs it, and a few of my pieces have been linked to or tweeted by some heavy-hitters. Including Paul Krugman (once), Brad DeLong, several times, and Naked Capitalism, also several times. (And occasionally by non-ideological blogs and tweeters as well, although that doesn’t matter here.) Suffice it to say that I’m of the left. Have been all my life. Almost literally; by the age of about six, I knew about McCarthyism, courtesy of my parents!

So I’m a good test case, and I invite Prof. Posner to read my blog post (if he can bear the thought and expend the time to read something written by a no-name) and point out where exactly I said or implied that I view the Tsarnaev brothers as examples of vulnerable Muslims driven to extremes by President Obama’s immoral drone war. And, since he won’t, I invite all you readers here to do that. I wish you luck.

Posner spent the early and mid 2000s angling (I think) to join his father as a judge on the Seventh Circuit Court of Appeals, an effort that included co-authoring with that well-known civil libertarian John Yoo (google him, folks, if you don’t know who he is and therefore don’t get the reference and characterization). Posner has spent the time since his dalliance with Yoo trying to salvage his own reputation, fairly successfully, and this article is, I think, another piece in his ongoing attempt to rid himself of the Yoo-association taint; you never know when a Republican might win the White House next, and anyway, well, y’know.

But the next presidential inauguration is nearly four years away, and so to bide his time he’s apparently now auditioning as David Brooks’ ghostwriter. Brooks really, really does need one, and Posner has that sweeping-generalizations-and-categorizations thing down pat, which is a good start. All he needs now is to practice up on the faint-correlation-equals-definitive-causation thing. Or at least the a-series-of-statements-of-fact-invites-a-non-sequitur-conclusion technique, a David Brooks special. And no one will be the wiser that the columns are ghostwritten.

As a liberal, I can also attest, by the way, that it is not a characteristic of ours to forget that criminal procedural rights were cobbled together over decades by judges. Nor to forget, or not to, um, notice, that judges are fallible. We notice that; trust me. Some of us even think that some judges are deliberately fallible. In fact, some of us are pretty sure of this.

As for what’s appropriate for an age of terror, one thing that I’m pretty sure is not is that any statute passes constitutional muster because Congress would make the rules, and judges would oversee the system. Congress sort-of-normally makes the rules in detailed statutes, and judges sort-of-normally oversee the system that statutes establish, at least since Marbury v. Madison. So I don’t know why the courts would likely hold it constitutional because Congress would make the rules, and judges would oversee the system. At least until Professor Posner becomes a member of one of those courts.

And just to be clear, I do not consider the Tsarnaev brothers examples of vulnerable Muslims driven to extremes by President Obama’s immoral drone war. This even though that may well have been why the older brother was able to gain the younger brother’s assistance. And even though I, too, believe that the drone war is immoral. And that there is no legitimate reason for this country to be involved in Afghanistan militarily, and that there has been no reason for a decade or so. It already looks likely that the younger brother was vulnerable to his older brother’s manipulations, probably mainly concerning the drone wars, but that the older brother had an agenda apart from the drone wars.***


*Eric Posner is a longtime professor at the University of Chicago Law School and a son of Seventh Circuit Court of Appeals judge Richard Posner.


**I had to fully edit the format of this piece once and then still make another formatting correction, because I’m still having trouble getting used to our new platform.  After the second edit, the title disappeared, so I had to edit this a third time. Aaargh.

Steve Roth, Dan Crawford, and reader RJS have helped a lot via emails–thanks, guys!–but I’m still semi-clueless about it all.  Apologies, readers.  I think I finally got this one right. 4/23 at 3:04 p.m.


***In light of my exchange with Woolley in the comments below, I just amended this paragraph in  my Slate Comment and here. 4/23/13 at 4:19 p.m.


Wellll, as I learned the hard way from perplexed emails to me about this post, our format here in WordPress does not distinguish blockquotes clearly enough.  JazzBumpa, for example, said he wondered who had poisoned me–until he finally realized that that stuff was a blockquote.  [Poisoned me?  More like kidnapped me, and then waited for Stockholm Syndrome to kick in before he allowed me to post anything.]  The solution, for the moment anyway? Italics.










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#RoryCooperLogic: Rory Cooper (whoever HE is) announced on Twitter that he and his wife have decided to pay off their mortgage and pay their own or their kids’ entire college debt, NOW!*

I have no idea who Rory Cooper is.  But in light of Matthew Yglesias’s quoting of three Twitter comments by Cooper today, I can sort of guess:

Rory Cooper @rorycooper

You don’t want to reduce the debt just for the sake of reducing the debt. #WhiteHouseLogic

Rory Cooper @rorycooper

You don’t want to balance your checkbook just for the sake of balancing your checkbook.

Rory Cooper @rorycooper

WH advisor @pfieffer this morning: “You don’t want to balance the budget for the purposes of simply balancing the budget.”  Um…

No, what you do want is to take the word “balance” and pretend that as long as you use that word twice in sentences purporting to draw an analogy, you can fool at least some of the people all the time, however patent the idiocy of the claim.  If you’re a Republican, that is.

An imperfect, but at least more factually accurate, analogy to balancing the federal budget is balancing your (or your family’s) overall finances.  Balancing your checkbook?  What does balancing your checkbook even have to DO with ANYTHING other than making sure you have enough money into your CHECKING ACCOUNT to cover the purchases and bills you’re CURRENTLY using that checking account to pay?

So I have a suggestion for the White House, and specifically for @pfeiffer: Why not ask @rorycooper whether he thinks paying his entire mortgage, any car loans he has, and any college-loan debt he and his wife have, NOW?  Or maybe, whether his kids should refrain from taking out college loans and forgo college unless their mom and dad can pay their college expenses, NOW?  Or unless their job at McDonalds takes care of it.

Pay up NOW, kids! Or parents! And pay off that mortgage now, Mr. and Mrs. Cooper!  
And, yes, you do want to balance your checkbook, but not just for the sake of balancing your checkbook. More like, for the sake of not having to pay a late payment on your mortgage or car loan, and not having your utilities cut off. What this has to do with balancing the federal budget, I wouldn’t know.  

But next time the congressional Republicans refuse to agree to a debt ceiling hike, which in fact is like overdrafting on your checking account, Rory Cooper will surely tweet about the analogy. 

Check in then at @rorycooper. The hashtag will be #RoryCooperLogic.

*Post and title edited for typos and clarity , 4/4.

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The Republican Senate Campaign Committee’s Surefire Way to Defeat Ed Markey

The National Republican Senate Committee put out a blast email today mocking Ed Markey as the next Al Gore—aka a politician whose opponents will lie about him in order to try to block him from claiming deserved credit for his legislative initiatives:*
In case you missed it, Out of Touch Ed Markey — who has been sitting in Washington since 1976 — has channeled his inner Al Gore during a couple of his recent campaign appearances.
Earlier this month, Congressman Ed Markey claimed that he invented the satellite dish, low-cost mobile phone calls, and the ability for cable companies to provide long distance service.
Now, Markey tells us that he’s actually the hero we have to think for Google, Hulu, YouTube, Facebook and Twitter. Who knew?!
Perhaps Markey can use the technology he invented to call, tweet, or message his friend Al Gore, inventor of the internet.
Ed Markey Passed Some Good Laws In The 1990s, Matthew Yglesias, Slate, Mar. 28
Yglesias goes on to say that–surprise!–Markey said nothing of the kind, and that the Republican Senate Campaign Committee was referencing comments by Markey in which he was discussing legislation that he had championed in the 1990s–the 1996 Telecommunications Act and the 1992 Cable Act–that restructured laws regulating telecommunications and cable companies.  Markey says that these laws were instrumental in advancing development and competition in the telecom industry. Yglesias explains:
What is true is that, as Markey said, he was a leader in pushing the provision of the 1992 Cable Act that made it possible for commercially viable direct-broadcast satellite companies (Direct TV, etc.) to compete with cable companies. The specific issue is that cable companies had vertically integrated with cable stations. The same firm might own a cable infrastructure company and also own HBO. Then the integrated cable firms would agree to license their channel to other cable companies in other geographical areas, but not to competitors. So the technology existed to do satellite TV, but the content wasn’t there. Markey’s provision forced cable companies to license content to satellite companies on non-prejudicial terms, thus injecting some much-needed competition into the market.
At the second link, Markey is saying that he took a leading role in the 1996 Telecommunications Act and is arguing, plausibly, that the act led to a surge of business investment in digital technology.
Yglesias updated his post to report:
I’ve had some email exchange on this subject with RSCC spokesman Brad Dayspring who doesn’t dispute that the 1996 Telecommunications Act was a good law or that the 1992 Cable Act was a good law or that Al Gore never claimed to have invented the Internet, but explains that the point of attacking Markey in this dishonest way was to underscore the idea that Markey sometimes exaggerates the extent of his accomplishments. What the point of attacking Gore was, I couldn’t quite say.
Soooo … a good way to underscore a false point that Markey sometimes exaggerates the extent of his accomplishments is to falsely claim that Markey said things that it’s, y’know, extremely easy to prove he didn’t say.  It’s also a terrific way to demonstrate that Republicans apparently deny the connection between federal legislation and the advancement of technological invention and progress.
Not even to mention how good a way it is to illustrate that Repubs can’t distinguish between comments about engineering and computer science–or science, at all–and legislation about, and investment in, engineering, computer science, science, or much of anything else.
These tactics worked well for Mitt Romney, so I can understand why the RSCC thinks they are the ticket to victory for their Senate candidates next year.
Go for it, Republican Senate Campaign Committee!

*Indentation format corrected after initial posting.

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Paul Ryan Is the Joe McCarthy of Our Era. Maybe the Mainstream Media Finally Will Recognize That. Then Again, Maybe It Won’t.

Paul Ryan is, in effect, the Joe McCarthy of our era.  He consistently spews outlandishly false statements of fact, never offers actual evidence in support of them and never refutes factual challenges using actual and full facts, and tries as a matter of routine to obfuscate his specific and broader objectives and therefore to trick the public.  

He is a serious nutcase.  And yet he has garnered mainstream media attention as though what he puts out is credible.  We have a mainstream media that treats this nutjob as though he were a legitimate policy wonk. And that acts as though facts are legitimately in the eye of the beholder.  

If only Obama were more like Ike. And if only there were an Edward R. Murrow around now, although a Walter Cronkite would do, too. If only.  

Broadcast news, of course, no longer has nearly the power and audience it once had, but we now have the veritable reverse of what this country once had in its highest-profile journalists. and we have a president who cowers in the face of whatever media juggernaut is currently saying “boo.”  

True, Ike was buoyed, not hindered, by the mainstream press when he helped end the McCarthy stranglehold. And McCarthy and Eisenhower were, technically anyway, members of the same political party, so there was no insistence that Eisenhower humor McCarthy in the name of bipartisanship. But there’s also no law that requires the president, this one or any other, to mindlessly do the mainstream media’s bidding if that bidding is in the name of bipartisanship. At least not when bipartisanship means delegating fiscal policy to a rightwing faction of a minority party that a majority of voters recently pretty-darned-clearly rejected.

This is getting really, really scary.  

The links are to two Matthew Yglesias posts in Slate this morning.

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THREAT-LEVEL-GATE©: Bob Woodward’s Awful Hope-Y’All-Won’t-Notice-Ryan-Lizza’s-Report Ploy

Bob Woodward, the legendary Watergate reporter turned reliable chronicler of insider accounts of political events, has made a series of bizarre assertions over the past week.
— Matthew Yglesias, Bob Woodward Trolls the World, Slate, today

Yglesias then summarizes last weekend’s exciting Woodward-related events, and then updates us:

Things moved into the absurd Wednesday night when it was revealed that National Economic Council director Gene Sperling had concluded an email disagreement with Woodward with the observation that in Sperling’s view Woodward would come to regret clinging so tenaciously to an untenable position.
As if determined to prove Sperling right, Woodward chose to start talking around town about how Sperling had threatened him—a ridiculous interpretation that the ridiculous conservative media has been running with—rather than sticking with the obvious interpretation that Woodward’s reputation among journalists is going to suffer from flagrant wrongness. It would be interesting to see Woodward try to hash this out with, say, fellow Post-ie Ezra Klein, but instead he’s going the full wingnut and will be appearing on Sean Hannity’s show Thursday night to advance the agitprop agenda. In retrospect, this whole affair was foreshadowed by the release of Woodward’s latest book last fall. It made much less of a splash than many other Woodward books. Most well-informed observers agreed with Noam Scheiber that it was marred by anti-Obama bias, but under the circumstances of the time, it didn’t get the right geared up either. By essentially doubling down on the worst qualities of that book, Woodward has managed to make himself the center of attention again.

Surprisingly, though, Yglesias doesn’t mention that earlier this week, New Yorker writer Ryan Lizza published a journalistic scoop that undermined the thing about Woodward being a reliable chronicler of insider accounts of political events.  Lizza quoted none other than Eric Cantor, who conceded that Boehner, at Cantor’s urging, reneged on the 2011 grand bargain deal at the last minute, for political reasons.  


So, do you think Woodward might have decided to ratchet up the off-the-rails stuff a-few-fold yesterday because yesterday (or maybe the day before) was the day when Ryan Lizza’s New Yorker story broke?  Yeah?  You think?

Yes, that’s right.  Bob Woodward, the legendary Watergate reporter had turned a reliable chronicler of insider accounts of political events, and has now been exposed as a reliable and gullible tool of Republican insiders.  But he hopes no one will notice that.

What I find interesting about this is that apparently the Washington Post has pulled the plug on Woodward’s unfettered use of it as a forum in which to spread false statements of fact. Thus he was relegated to seeking out Politico as his venue for the “breaking news” this time.


I can’t help wondering, though, whether Sperling was right that Woodward might come to regret his flagrantly false reporting on what the sequester agreement is.  He hasn’t yet, though. He’s still cowering with fear from that threat, but determined to press on nonetheless.

By the way, you really, really need to see Alexandra Petri’s threat-level piece on this. Seriously.  (Just be sure you’re not eating anything you might choke on when you do.)

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OK, Maybe Not Uwe Reinhardt for Labor Secretary, But Maybe Alan Krueger?

In the Comments thread yesterday to my Uwe-Reinhardt-For-Labor-Secretary post, an old fellow “Frayster” (definition: Someone who posted regularly to Slate’s wonderful, late, great “Fray” comments board), Woolley, wrote:

I don’t know anything about Uwe and after reading your piece, I still don’t know anything about [him]. Can you tell us why [he] is such a good candidate and what exactly you think the DoL should be doing?

Here’s what I wrote in response:

Hi again, Woolley. Reinhardt’s Wikipedia page is [here].  His Princeton page is [here].

This post of mine hasn’t exactly gone off the charts for hits, maybe because most everyone who did read it probably rolled their eyes.  I guess they recognize that the chance that Reinhardt would accept an offer to become Labor secretary is about as likely as that he’d be offered the position.  Which is to say, not … um … great.

Reinhardt, as I said in my post, is prominent these days mainly for his expertise in the economics of healthcare funding and insurance.  But, in looking just now for an example of his writings on labor issues, I found a good example, from two years ago, [here].  He is, or at least was, one of the regular contributors to the NYT’s Economix blog.  

The blog is subtitled “Explaining the Science of Everyday Life,” and that post of Reinhardt’s is called “How Convincing Is the Case for Free Trade?”  In it, he makes clear the distinction between free trade and offshoring.  He does that partly by discussing a 2007 article in the Washington Post by his Princeton Econ. Dept. colleague Alan Blinder called “Free Trade’s Great, but Offshoring Rattles Me.”  That issue and, I believe, the issue of whether modern technology–robots in manufacturing; computers of all sorts–really is different than earlier huge advances in technology, such as the automobile putting horse-buggy makers out of business, in its effect on employment, worldwide, but especially in advanced economies like ours.  

Blinder is, best as I can tell, the most prominent liberal Princeton economist other than Paul Krugman.  He would be a wonderful choice as Labor secretary, but my impression is that he would be too risky a pick, politically, just as Krugman would be.  Same, I suppose, for Brad Delong. Which is why I suggested Reinhardt instead.  

The point I was trying to make in my post has less to do with Reinhardt himself than with my hope for the appointment as Labor secretary of an economist well-versed in the academics of these issues and also who has the ability to explain these things clearly, and publicly, to lay people.  And to help Obama do that.

Another excellent choice–one I didn’t think of until this morning–would be Alan Krueger, another liberal Princeton-associated economist, and one who actually could, theoretically, be nominated.  That’s because since November 2011, he has been the chairman of the White House Counsel of Economic Advisors. He has done extensive research and writing on issues of growing inequality, and the role of government-supported education in the economy.  His Wikipedia page is [here].

Hope that takes care of it.

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What Dana Milbank’s Stunningly Awful Column Today Reveals About the Washington Press Corps – [UPDATED]

Okay.  There’s no way to do justice to Washington Post centerist columnist Dana Milbank’s column today about Obama’s “presser” yesterday by just summarizing it or quoting a sentence or short paragraph from it.  And justice for that column, titled “President Congeniality talks tough,” is what I want. So here are the first six (blessedly short) paragraphs of it:

“I’m a pretty friendly guy,” President Obama said near the end of his White House news conference Monday afternoon.

The claim might have been a touch more plausible if he hadn’t spent the bulk of the previous hour demonstrating just how adversarial he could be. Indeed, there was no precipitating event that led him to schedule the last-minute session in the East Room — lending credibility to the theory that he summoned reporters so he could bait Republicans.

“If congressional Republicans refuse to pay America’s bills on time, Social Security checks and veterans benefits will be delayed,” the friendly president said, explaining his refusal to negotiate over increasing the debt limit.

Calling the opposition’s stance “absurd,” Obama advised Republicans that they “have two choices here: They can act responsibly and pay America’s bills, or they can act irresponsibly and put America through another economic crisis. But they will not collect a ransom in exchange for not crashing the American economy. . . . And they better choose quickly, because time is running short.”

And that was just the opening statement. The hectoring continued through the Q&A. Exactly one month after the massacre at an elementary school in Newtown, Conn., Obama said of debt-reduction talks: “What I will not do is to have that negotiation with a gun at the head of the American people.”

The Republicans’ view, President Congeniality added, “was rejected by the American people when it was debated during the presidential campaign. . . . But if the House Republicans disagree with that and they want to shut down the government to see if they can get their way on it, that’s their prerogative.”

I agree completely.  The president should never summon White House reporters to the White House press room in order to hold a press conference.  Or at least not to bait Republicans.

And, I guess, not even to respond to Republican daily baiting of him by falsely telling the public that a quirk in the law, requiring Congress to authorize the Treasury to pay the government’s already-incurred bills and bond interest, and pay such things as salaries to military personnel, air traffic controllers, Agriculture Department food inspectors, and Homeland Security airport marshals–not to mention not-yet-but-about-to-be owed Social Security payments, Medicaid payments to nursing homes, and Medicare payments to physicians and hospitals–is instead a request by the president and the Democrats in Congress to increase spending appropriations.  

No, sir.  Much better to allow the Republicans to prey on the public’s misunderstanding of the phrase “raise the debt ceiling.”   

Pass the ransom note, Republicans. Just do it through the mainstream media, as you have been doing.  They’ll happily repeat your message, complete with disinformation, without adding their own: a brief explanation of what the debt ceiling actually is.  Apparently, congressional reporters, unlike the White House press corp, don’t mind being summoned as bait.  Nor do the Sunday talk-show folk.  

Worms, all.

Milbank does allow that:

Arguably, Obama’s no-more-Mr.-Nice-Guy approach is good politics. His first-term experience made clear that he gained nothing from Republicans when he took a passive approach. When it comes to getting things done in Washington, there’s no substitute for forceful presidential leadership. Teddy Roosevelt, whose oil-on-canvas likeness gazed at Obama from an East Room wall, probably would have approved.

Actually, not even just arguably, Milbank conflates statements of fact–in this instance, fact about what the debt ceiling is–with politics.  Certainly, correcting the opposition’s campaign of disinformation, and educating the public about a critical but technical statute that almost no one other than Washington pols, fiscal-policy wonks, and journalists who cover these people and subjects are familiar with, is damn good politics.  It is, in fact, absolutely necessary politics.  It’s dereliction-of-duty-for-failure-to-do-so politics.  

But statements of fact, and statements of policy based on the statements of fact, are not themselves mere politics.  They’re statements of fact and statements of policy based on those facts.

What’s most disturbing about this column is not that one high-profile political columnist confuses these things, but that he says that the entire White House press corp in attendance at the press conference yesterday does.  

So I suggest that they get out more.  Milbank, for example, might consider stepping out of Washington and into, maybe, Baltimore.  Not a long drive, really.  There, he could stop in at a coffee shop or mall and maybe ask people whether they had heard or read of Obama’s comments yesterday and, if so, whether they understood more now about the what debt ceiling statute is than they did a day before.

Then he can report his findings to the rest of the White House press corp.  And offer a different theory about the reason Obama summoned them to the press room yesterday.

Or he could just start reading Angry Bear.  

Seriously, I hope Paul Krugman and other “names” will expose Milbank’s argument for what it is. Obama has that tendency to cower whenever a media meme takes hold on fiscal-policy issues. Milbank and the White House press corp don’t read Angry Bear, but they might read Krugman’s blog. 

  Nah; probably not.  It’s not like Krugman’s a centerist, or anything. Still, it’s worth a shot, especially since what matters most is that Obama or someone close to him might.
This Bear is really ANGRY today.



UPDATED:  Well, I woke up this morning to a few congratulatory emails, including from some Bears, telling me that Paul Krugman linked to my post yesterday in a blog post of his.  Awesome!  (Thanks, Prof. Krugman. And thanks to everyone for the congrats.)  

But I also want to republish here as an update an exchange between Bear JazzB. and me in the comments to the post:

JazzBumpa:   I always thought Milbank was more or less OK.

But this is really stupid.

Me:  Milbank was terrific back when he was the Post’s WH correspondent during the first G.W. Bush term, JazzB. But he rarely writes anything in his column that I think is really insightful or informative, and sometimes he writes a column that’s just baffling. Like yesterday’s.

What really dismays me is that he and some of the other “name” pundits flat-out missed the purpose of Obama’s Monday press conference. Obama was explaining what the debt ceiling law actually is–and what it is not. An explanation that was (and is) necessity because it’s a law that sounds like it means something that it does not, and that means something that it does not sound like it means–a fact that the Repubs have abused nearly every time one of them says anything publicly about it.

Dave Weigel wrote a [Politics article]* on Slate on Monday after the press conference that started out sounding like he missed the point–and then, wham!  He hit the nail on the head, pointing out that back in Sept. Obama said he planned to speak much more, directly, to the public and explain policy issues.  Weigel said that the Repubs mocked that then, but learned on Monday what he meant.  

And it does seem that the Repubs did learn a lot on Monday, because since then, several have publicly acknowledged that the debt ceiling game is over.  Yet Milbank and a few other pundits didn’t catch on.

And as long as I’m updating here, I’ll indulge myself and republish another exchange I had in the Comments to the post–this one with FastCommerce:

FastCommerce:  Worms. You an idiot.

Me:  Oh, dear. FastCommerce, it looks like you took the BAIT.

So sorry, folks.  But I couldn’t resist.

*In my original comment, I said Weigel wrote a blog post.  Actually, what he wrote was a full-length article, not a comment or short piece on his Slate blog.  (Those of us who are longtime Slate addicts know there’s a difference.)

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Do ‘Right to Work’ Laws Violate the Constitution’s Article I Contracts Clause? [Updated]*

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

— Article I, Section 10, Constitution of the United States

No, I didn’t post this to highlight the prohibition against states’ granting any title of nobility.  I posted it to highlight the prohibition against states’ enacting a law impairing the obligation of contracts—which the Supreme Court has interpreted as a guarantee of the right to freely enter into contracts.  
That guarantee does have exceptions, of course, none of which includes the type of contract that state so-called ‘right to work’ laws bar.  Including the ones passed today by the Michigan legislature, after springing out of nowhere last week.  (Although maybe the proponents of these laws think these statutes come within this exception created by the current Supreme Court’s majority: any law that helps corporations is constitutional.  It’s a corollary to the majority’s maxim that any federal statute, such as ones concerning compelled contractual arbitration, or labor unions, or federal-court jurisdiction, be distorted beyond plausible recognition of the statute’s actual language, if necessary, to favor corporations.  This is known by them as “originalism” and “textualism.”  And known by others, not all of whom are justices, as cute, pick-and-choose gimmickry.)

But as Slate’s Matthew Yglesias points out today, what these bills do is use the force of law—state law—to interfere with the right of contract between two private parties: labor unions and private employers.  In Michigan, the legislature actually passed two separate laws today: one pertaining to labor contracts between labor unions and private employers, the other pertaining to contracts between labor unions and public employers (i.e., state and local governments).  But as a constitutional matter, this doesn’t matter.

Yglesias points out what does matter, although he argues it only as a matter of hypocrisy, not as a possible violation of constitutional law.  After saying that the concrete economic impact of these statutes is murky—something that Paul Krugman and most Angry Bears would dispute (and have disputed)—he hits the nail on the head about the actual nature of these laws:

[What is] not murky is the absurd hypocrisy that has to go into making the case for right-to-work legislation.

The way this works is that if there’s a labor union at a given business establishment that’s bargaining for some higher pay or benefits or better work-rules or whatever it’s rapidly going to find that there’s a free rider problem. Everyone in the relevant class of workers gets the benefits whether or not they join the union. So something the union is often going to want to bargain for is some kind of rule stating that everyone hired in the relevant class has to join the union, or has to pay dues to the union, or something else along those lines.

Now naturally an employer’s not going to want to agree to that. But he’s not going to want to agree to higher pay or more vacation days either. That’s why it’s a negotiation. A right-to-work law is a law banning employers from making that concession.

The impact, obviously, is to make it hard to form strong unions in a given jurisdiction and thus make it a more business-friendly jurisdiction. But note that this same trick works across the board. You could just ban pay raises in general. Any one firm, after all, faces a dilemma. On the one hand it would be more profitable to pay people less. On the other hand, it’s also unprofitable to have everyone quit to go work for some other higher-paying company. So a law against pay raises would make everyone more profitable, spurring crazy business investment and job creation. Except nobody does that because it would be (a) insane and (b) obviously unfair. And yet the proponents of right-to-work laws are generally exactly the people most inclined to stand up for freedom of contract under other circumstances.

And yet the proponents of right-to-work laws are generally exactly the people most inclined to stand up for freedom of contract under other circumstances, indeed.  They do this standing up in legislatures, think tanks, and lobbying firms.  And in court, including the Supreme one.  Some of them doing this standing from the black-robes-wearing, comfortable-leather-chair-sitting side of the courtroom bench.

Now that the gauntlet has been thrown, labor should pick it up and take it to court.  There is, I think, little doubt that these laws impair the obligation of current labor contracts and also impinge upon the right to freely enter into contracts.  The proponents of these laws will defend them on the ground that state laws impairing the obligation of this particular type of contract isn’t what the framers had in mind.  And undoubtedly they’re right; it’s a historical fact that the Washington, Madison, and the others considered union organizing right up there with sodomy and murder as unprotected by the Fourteenth Amendment, which they foresaw would be added to the Constitution a few decades later, or by the clause in Article 1, Section 10, prohibiting states from impairing the obligation of contracts. 

But labor unions still should challenge the constitutionality of these laws, even if they have to try to convince the courts, and eventually the Court, that the laws are Letters of Marque and Reprisal. 

Which, at least regarding the Reprisal part, sounds about right. 


UPDATE: Excellent, thorough article by Rick Ungar in Forbes today, titled “Right-to-Work’ Laws Explained, Debunked & Demystified.” Don’t miss it.

*I just posted a lengthy follow-up post, here.

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A Victory for the Reality-Based Community! Oh, Know! Er, Oh, No!

Every four years, the race for the White House ends in accusations of deceit. Each side says the other spent millions of dollars to lie and skew the outcome. This year’s post-election accounts of backstage calculations and fateful turning points continue that tradition. But if you read these accounts carefully, you’ll find a happy surprise beneath the spin and recriminations: Lies failed. Truth prevailed.

Saletan goes on to discuss the several critical points during the campaign that pundits say are what ultimately led to Romney’s defeat, including the impact of Hurricane Sandy and of Romney’s appalling Jeep-jobs-to-China ad in Ohio last week.  You know, the one that said, “Obama took GM and Chrysler into bankruptcy and sold Chrysler to Italians who are going to build Jeeps in China.”

Saletan points to a delicious comment by a Romney fundraiser to Washington Post reporterPhillip Rucker—“A lot of people feel like Christie hurt, that we definitely lost four or five points between the storm and Chris Christie giving Obama a chance to be bigger than life,” a Romney fundraiser tells Rucker”—and nicely refutes its premise, voiced also by numerous pundits during the last week.  He points out that Obama wasn’t acting, or looking, presidential.  He was instead being presidential; he was performing his job.

Saletan’s article in mostly terrific.  But it—like most of the other pundit assessments—fails to mention the actual key factor for why Hurricane Sandy made it impossible for Romney to win: That the public learned of Romney’s primary-campaign statement that he wanted to remove disaster relief and all sorts of other federal programs as a federal responsibilities and place the responsibility for them on the states.  The very premise of this surely struck a large percentage of the population as nutty.  This ideology was at the very heart of Romney’s campaign, yet most people didn’t know that until a week before the election. 

The Sandy effect, in other words, had less to do with Obama’s “looking presidential” than Obama’s being presidential, as Saletan notes, but that’s because the public learned then pretty much what the difference was between Obama’s idea of what the federal government, rather than the states, should do.

Another important factor was, as this article and many others point out, Romney’s appalling ad last week in Ohio about Chrysler and Jeep, but I think the ad’s importance went even beyond the obvious problem that it intended to perpetuate a clearly erroneous fact.  Everyone in any way connected to the auto industry knows that Chrysler could not have survived at all without its purchase by Fiat.  Everyone who is currently employed because of Chrysler’s continued existence—including employees of Chrysler’s parts suppliers—knows that there would be no Chrysler, and therefore no Jeep jobs to be sent to China, or not—were it not for the sale of Chrysler to Fiat. 

So the ad, in addition to being flatly false in suggesting that the Jeep factory in Toledo was being shuttered, made no sense.  And it made no sense in a way that everyone recognized made no sense.  The ad, although it ran only in Ohio, got lots of publicity nationwide because the auto executives’ stunned and angry refutation, and Obama’s comments in Toledo about the ad, were big political news around the country.

The only conceivable reason that the Romney campaign gambled by putting out an ad that so obviously could backfire exactly as it did is that they already knew they were losing in Ohio and were willing to try, literally, anything.

These two factors, the hurricane and the Toledo Jeep factory, both of them coming in the closing ten days of the campaign, actually summed up the Romney campaign: mendacity as its prime modus operandi,and Tea Party ideology, both of which depend upon a concerted removal from the fact-based world.  

I suspect that it will be a long time before another Republican presidential nominee tries either of these.  At least until he or she is inaugurated. 

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