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To: JohnM who wrote (186209)3/28/2012 8:40:52 PM
From: JohnM
of 374879
Excellent point.
TPM Editor’s Blog
A Nation Of Laws … Or Of Men?
David Kurtz
March 28, 2012, 5:10 PM

TPM Reader ML delves deeper into what for many of us remains utterly surreal: the Supreme Court giving the Commerce Clause attack on the health care law serious and sustained attention:

Adding to what Blumenthal, et al. are saying: I think they understate the case a bit, or at least it could be stated more forcefully and clearly, that SCOTUS would do itself and the country serious damage if it overturned the mandate. The thing is, as of the time the law was passed, *everyone* across the political spectrum thought this thing was constitutional. The Heritage Foundation started it, the D’s finished it, and the whole way down no one thought it ran afoul of the Constitution (save for people considered fringe at the time). What this says is that Congress and the entire country were relying on the precedents SCOTUS set to pass the law—and they spent almost two years and untold legislative resources doing it. That’s the whole point of stare decisis, allowing for predictability with respect to what the law allows. Stare decisis is what makes sure the courts don’t act arbitrarily by constraining them to fit within precedent.

Acting in ignorance or with disregard for precedent (and precedent’s practical attendants, like reasonable beliefs in the public about what the law is) undermines rule of law, makes it impossible to pass laws confident of their legality, etc. It is, in a word, arbitrary. It’s the kind of thing they do in developing countries.

If SCOTUS ditches stare decisis here, sure their credibility will take a hit, but more importantly: we, as a polity and individuals, would have no reason to think we could pass any major regulatory legislation (unless, of course, we took the political commitments of the justices as our guide). SCOTUS would be potentially freezing the statutory law in place. What is Congress supposed to do with its time if everything it thought it knew about the law gets chucked out the window? How does it pass legislation? How does it change *existing* legislation? Are only Republican Congresses allowed to pass laws?

Stare decisis and all the reasons we follow precedent command that the mandate passes. I’ve already gotten overly maudlin, but if the mandate is overturned, we’re ruled by men, not laws.

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To: JohnM who wrote (186210)3/28/2012 8:55:22 PM
From: JohnM
of 374879
Conservative Justices Flirt With Radical ‘Obamacare’ Rulings
Brian Beutler
March 28, 2012, 5:56 PM

Wednesday’s Supreme Court arguments over the fate of the president’s health care law were defined by the same themes that marked the first two days: Liberal justices directed their toughest questions on the challengers, while conservative justices relished the opportunity to tie the administration’s lawyers in logical knots.

That may seem unsurprising — why wouldn’t the same ideological divisions that have dogged the law for two years carry over into the high court, all the way through six hours of oral arguments?

But Wednesday’s arguments weren’t about the controversy at the center of the legal challenge — can the government compel people to buy health insurance? They were about the court’s discretion to interfere with the rest of the law, and a decades-long understanding of the relationship between the federal government and the states. Most legal observers assumed the issues at stake on Wednesday were no-brainers. So the fact that the conservative justices once again aligned — at least rhetorically — in sympathy with the challengers suggests just how tempted they are to swing for the ideological fences.

Many legal experts we spoke with in advance of the arguments were surprised that the court agreed to hear the challenge to the health care law’s Medicaid expansion in the first place. Every lower court rejected it. If the Medicaid expansion falls, the implications for federal power — and programs from Medicaid to transportation to civil rights — would be jeopardized.

And yet, for nearly an hour Wednesday afternoon, conservative justices — led by Antonin Scalia, the law’s greatest antagonist on the bench — betrayed no discomfort with such radical implications.

The law’s challengers claim that the health care law’s Medicaid expansion is coercive because states that refuse to adhere to it will lose all of their Medicaid funding. Their reluctance persists even though the federal government will cover nearly the entire cost. The program is so entrenched, that at this point states are captive to it, and can’t turn down any new federal restrictions on the program, let alone significant ones such as a major eligibility expansion.

The conservative justices pressed Solicitor General Donald Verrilli Jr. — relentlessly — to accept the premise that the states can be commandeered by Medicaid and similar programs. Verrilli stumbled.

“I don’t think that this is a case that presents that question,” he argued.

“No, no, I know,” said Chief Justice John Roberts. “I know this. I don’t know if I will grant it to you or not. But let’s assume it’s not this case.”

“I wouldn’t think that is a surprise question, you know?” said Scalia.

The notion that the court could balk at the health care law’s Medicaid expansion terrifies both reform advocates and supporters of myriad federal programs. If the court determines that the new conditions imposed by the health care law are coercive to the states and therefore violate the 10th Amendment, it will at the very least call into question future congressional attempts to modify or enhance other programs the states run with the help of federal funds.

But the conservative justices were more blasé about the day’s other key issue: If the individual mandate falls, how much of the rest of the law should the court uphold? The one appellate court that ruled the mandate unconstitutional also held that the entire rest of the law should be allowed to stand. At least two of the Supreme Court’s conservatives appeared inclined to scrap the whole law.

Justice Anthony Kennedy argued that this would be an exercise of judicial restraint.

“We would be exercising the judicial power if one act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended,” he said. “By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike — than striking the whole.”

Scalia was more blunt.

“My approach would say if you take the heart out of the statute, the statute’s gone.”

The justices’ oral arguments are not necessarily determinative of their votes. But they do suggest some sympathies with positions many legal scholars believed were beyond the pale, even in today’s court.

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To: JohnM who wrote (186211)3/28/2012 9:04:29 PM
From: JohnM
of 374879
E. J. Dionne is usually a very cautious writer. This one definitely is not cautious. He's angry and it shows. Stunning column from him. I've bolded one section.
Judicial activists in the Supreme Court

By E.J. Dionne Jr.,
Updated: Wednesday, March 28, 3:58 PM

Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.

Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?

It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.

Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.

The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others — often taxpayers — have to pay for.

Liberals should learn from this display that there is no point in catering to today’s hard-line conservatives. The individual mandate was a conservative idea that President Obama adopted to preserve the private market in health insurance rather than move toward a government-financed, single-payer system. What he got back from conservatives was not gratitude but charges of socialism — for adopting their own proposal.

The irony is that if the court’s conservatives overthrow the mandate, they will hasten the arrival of a more government-heavy system. Justice Anthony Kennedy even hinted that it might be more “honest” if government simply used “the tax power to raise revenue and to just have a national health service, single-payer.” Remember those words.

One of the most astonishing arguments came from Roberts, who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited “pediatric services” and “maternity services.”

Well, yes, men pay to cover maternity services while women pay for treating prostate problems. It’s called health insurance. Would it be better to segregate the insurance market along gender lines?

The court’s right-wing justices seemed to forget that the best argument for the individual mandate was made in 1989 by a respected conservative, the Heritage Foundation’s Stuart Butler.

“If a man is struck down by a heart attack in the street,” Butler said, “Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services — even if that means more prudent citizens end up paying the tab. A mandate on individuals recognizes this implicit contract.”

Justice Antonin Scalia seemed to reject the sense of solidarity that Butler embraced. When Solicitor General Donald Verrilli explained that “we’ve obligated ourselves so that people get health care,” Scalia replied coolly: “Well, don’t obligate yourself to that.” Does this mean letting Butler’s uninsured guy die?

Slate’s Dahlia Lithwick called attention to this exchange and was eloquent in describing its meaning. “This case isn’t so much about freedom from government-mandated broccoli or gyms,” Lithwick wrote. “It’s about freedom from our obligations to one another .?.?. the freedom to ignore the injured” and to “walk away from those in peril.”

This is what conservative justices will do if they strike down or cripple the health-care law. And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.

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To: JohnM who wrote (186207)3/28/2012 9:05:07 PM
From: Steve Lokness
of 374879
<<<< You're not reading my reply,>>>>

You're right John, now my turn to apologize. I didn't read thoroughly.

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To: Steve Lokness who wrote (186213)3/28/2012 9:08:23 PM
From: JohnM
of 374879
Thanks, Steve. All this apologizing gets kind of scary. The next step is that we actually have serious, respectful, courteous conversations across ideological divides. Nah, not gonna happen.

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To: JohnM who wrote (186155)3/28/2012 9:17:28 PM
From: Sam
of 374879
Scalia has such a brilliant mind that he doesn't have to read the text of the law to know what it means and whether it is constitutional or not. Indeed, he is meticulous to details that he said today that the SC could strike a provision from the law without invalidating the whole law--which is all the more reasonable since the provision in question was (fortunately) already struck out by Congress.

Scalia mocks health care law ‘Cornhusker Kickback’ provision—that no longer exists
By Olivier Knox

Conservative Justice Antonin Scalia suggested on Wednesday that the Supreme Court could strike the "Cornhusker Kickback" from President Barack Obama's landmark health care overhaul without having to invalidate the whole law. He was right, in a way: The notorious provision isn't in the law.

The "Cornhusker Kickback" was the derogatory nickname of one of several sweetheart deals designed to ensure that the law had enough votes to pass. Amid a public uproar, lawmakers ultimately stripped the measure from the law.

But no one—not Scalia's eight colleagues on the highest court in the land, not Deputy Solicitor General Edwin Kneedler, there to represent Obama, and not the superstar lawyer challenging the law on behalf of 26 states, Paul Clement—challenged his claim.

Scalia's quip came on the third and final day of oral arguments before the court on what has come to be known as "Obamacare," and specifically on whether the justices could rule that the requirement that individuals buy insurance or pay a penalty was unconstitutional but not strike down the rest of the law.

Clement was arguing that the entire law had to go, and Scalia was gently challenging him.

"The consequence of your proposition, 'would Congress have enacted it without this provision,' OK, that's the consequence. That would mean that if we struck down nothing in this legislation but the—what's it called, the 'Cornhusker Kickback'—OK, we find that to violate the constitutional proscription of venality, OK?" Scalia said, to guffaws from the audience.

Scalia went on: "When we strike that down, it's clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker Kickback is bad. That can't be right."

It isn't right.

Senate leaders had initially included about $100 million in federal Medicaid assistance for Nebraska as part of what aides said at the time was a plan to secure the support of one of the state's senators, Democrat Ben Nelson. But the ensuing controversy over the sweetheart deal—which saw Republican Senate Minority Leader Mitch McConnell's office coin the term "Cornhusker Kickback"—led even Nelson himself to argue that it be removed. Lawmakers stripped the arrangement from the law, replacing it with a far broader measure helping all states to expand Medicaid.

Scalia's comments came after two years of charges from the Tea Party that few, if any, people are fully familiar with what the law actually says. "Read the bill!" was a frequent chant at rallies against the measure before it passed. And Republicans have often mocked then-Speaker Nancy Pelosi's contention that "we have to pass the bill so that you can find out what is in it, away from the fog of controversy."

Scalia is a fierce defender of a doctrine of legal thought called "textualism," which aims to interpret laws according to the plain meaning of the language they use. Scalia once wrote that "a text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."

The "kickback" quip wasn't Scalia's only joke about the text of the law. At one point, the blunt-speaking justice scoffed at Kneedler's suggestion that the justices could go through the measure to decide which provisions to spare in the event that they ruled the individual mandate unconstitutional.

Scalia expressed shock: "You really want us to go through these 2,700 pages? And do you really expect the court to do that? Or do you expect us to give this function to our law clerks? Is this not totally unrealistic? That we're going to go through this enormous bill, item by item, and decide each one?"

That led Justice Elena Kagan, an Obama appointee, to jab at her colleague a little later in the argument.

Kagan said the justices should "look at the text that's actually given us."

"For some people, we look only at the text. It should be easy for Justice Scalia's clerks," she added, to laughter from the audience.

Scalia had the last word: "I don't care whether it's easy for my clerks. I care whether it's easy for me."

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To: Sam who wrote (186215)3/28/2012 9:27:02 PM
From: Sam
of 374879
ABCNews: Trayvon Martin Video Shows No Blood or Bruises on George Zimmerman
By MATT GUTMAN ( @mattgutmanABC)
March 28, 2012

[EDIT: Video at the link.]

A police surveillance video taken the night that Trayvon Martin was shot dead shows no blood or bruises on George Zimmerman, the neighborhood watch captain who says he shot Martin after he was punched in the nose, knocked down and had his head slammed into the ground.

The surveillance video, which was obtained exclusively by ABC News, shows Zimmerman arriving in a police cruiser. As he exits the car, his hands are cuffed behind his back. Zimmerman is frisked and then led down a series of hallways, still cuffed.

Zimmerman, 28, is wearing a red and black fleece and his face and head are cleanly shaven. He appears well built, hardly the portly young man depicted in a 2005 mug shot that until a two days ago was the single image the media had of Zimmerman.

Police Video Surveillance of George Zimmerman

The initial police report noted that Zimmerman was bleeding from the back of the head and nose, and after medical attention it was decided that he was in good enough condition to travel in a police cruiser to the Sanford, Fla., police station for questioning.

His lawyer later insisted that Zimmerman's nose had been broken in his scuffle with 17-year-old Martin.

In the video an officer is seen pausing to look at the back of Zimmerman's head, but no abrasions or blood can be seen in the video and he did not check into the emergency room following the police questioning.

Zimmerman was not arrested although ABC News has learned that the lead homicide investigator filed an affidavit urging Zimmerman be charged with manslaughter. The prosecutor, however, told the officer to not file the charge because there was not enough evidence for conviction. Zimmerman said he was heading back to his car when Martin attacked him. His lawyer, Craig Sonner, said his client felt "one of them was going to die that night," when he pulled the trigger.

Martin's girlfriend, who was on the phone with him in his final moments, told ABC News in an exclusive interview that she has not been interviewed by police, despite Martin telling her he was being followed.

The 16-year-old girl, who is only being identified as DeeDee, recounted the final moments of her conversation with Martin before the line went dead.

"When he saw the man behind him again he said this man is going to do something to him. And then he said this man is still behind him and I said run," she said.

Phone records obtained by ABC News show that the girl called Martin at 7:12 p.m., five minutes before police arrived, and remained on the phone with Martin until moments before he was shot.

DeeDee said Martin turned around and asked Zimmerman why he was following him.

"The man said what are you doing around here?" DeeDee recalled Zimmerman saying.

She said she heard someone pushed into the grass before the call was dropped.

Zimmerman, who had called 911, was asked by the dispatcher if he was following the teen. When Zimmerman replied that he was, the dispatcher said, "We don't need you to do that."

Martin's death has sparked protests across the country and prompted President Obama to say that if he had a son, he would look like Martin.

Over the past few days, leaks have emerged suggesting Martin was dogged by discipline problems.

Martin had been slapped with a 10 day school suspension after a bag with suspected marijuana was found in his backpack, Benjamin Crump, the family's attorney, said.

Last year the teen was suspended for spraying graffiti on school grounds. The Miami Herald reported that the school guard who stopped him searched his backpack and found 12 items of women's jewelry and a flathead screw driver that the guard believed to be a "burglary implement." But Martin was never charged or specifically disciplined for the incident.

Crump alleged that the Sanford police had leaked damaging information about Martin in order to muddy the case, calling it a "conspiracy." Crump called the school disciplinary problems "irrelevant" to the case that "an unarmed 17 year kid was killed."

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To: Steve Lokness who wrote (186205)3/28/2012 9:49:32 PM
From: Wharf Rat
of 374879
"But I grew up with MAD,"

So did I

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To: JohnM who wrote (186209)3/28/2012 10:33:15 PM
From: epicure
of 374879
We are hoping that when the economy turns some of the damage can be repaired.

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From: Wharf Rat3/28/2012 10:34:55 PM
of 374879
Disentangling the channels of the 2007-2009 recession
by Prof. James Hamilton

Harvard Professor James Stock and Princeton Professor Mark Watson presented a very interesting paper last week at the Spring 2012 Conference for the Brookings Papers on Economic Activity. Their paper studied similarities and differences between the 2007-2009 recession and other U.S. business cycles.

Stock and Watson characterized the comovements over 1959:Q1-2007:Q3 of 198 different U.S. macroeconomic variables in terms of 6 primary factors. These factors could be calculated from the first 6 principal components of a non-redundant subset of their observed variables. This method amounts to finding 6 different summary indexes (or 6 different sets of weights to associate with each of 132 of these series) that could collectively account for as much of the variation as possible of all the data.

Their first question was whether the observed U.S. macroeconomic data continued to track those factors in the same way during the most recent recession and recovery as they had historically. Stock and Watson's answer was, for the most part, yes. For example, the solid line in the graph below plots year-over-year real GDP growth rates (relative to trend), while the dashed line gives the values you would have expected if you'd known only what the 6 historical factors were doing and if you assumed that the relation of GDP to those factors was the same since 2007 as it had been before. GDP seems to have a similar relation to other macro variables during the most recent recession and recovery as it had historically. Statistical tests fail to reject the hypothesis of a stable relation for most of the 198 series they studied. Some of the series that did seem to exhibit some new dynamics include commodity prices, unemployment durations, and some monetary indicators.

Deviation of 4-quarter percent change in real GDP from trend. Solid line: actual. Dashed line: predicted on the basis of
1959:Q1-2007:Q3 correlations. Source: Stock and Watson (2012).

From these tests the authors conclude:

We believe that the most natural interpretation of these three findings is that the 2007Q4
recession was the result of one or more large shocks, that these shocks were simply larger
versions of ones that had been seen before, and that the response of macro variables to these shocks was almost entirely in line with historical experience. The few series for which behavior departed from historical patterns have natural explanations, in particular the DFM [dynamic factor model] predicts negative interest rates because it does not impose a zero lower bound and the DFM does not predict the Fed's quantitative easing.

Stock and Watson then went on to try to understand the nature of the recent large shocks. The individual factors as calculated by traditional principal component analysis do not have any economic meaning or interpretation, in part because if the model were rewritten in terms of any linear rearrangement of the original six factors, it would have identical implications for the correlations and forecasts of any observed variables. Stock and Watson therefore proposed to consider six observable shocks that economists believe may be responsible for economic fluctuations, these being oil prices, monetary policy, productivity, credit spreads, uncertainty, and fiscal policy. They looked at the relation between measures that other authors had proposed for each of these structural shocks and their own estimated 6 factors, to find linear combinations of their factors most consistent with how other researchers had been summarizing the data. For example, for the oil shock, they considered using the measure proposed in my 1996 paper in the Journal of Monetary Economics, a separate measure favored by Kilian (2008) or the change in oil price itself. They construed the "oil shock factor" to be the linear combination of their six factors that has the highest correlation with one or all of these three separate measures and smallest correlation with other observed structural shocks.

The authors concluded:

the structural analysis is consistent with the recession being caused by initial large oil price shocks followed by multiple financial and uncertainty shocks....

The picture of the recession that emerges... is one of increases in oil prices through the first part of the recession, followed in the fall of 2008 by financial sector volatility, a construction crash, heightened uncertainty, and a sharp unexpected drop in wealth. Notably, there no large surprise movements of the real variables given the factors through the previous quarter.

But if the Great Recession can be interpreted as normal responses to abnormally large shocks, what about the anemic recovery? Stock and Watson attribute this to a slowdown in trend growth rates, which they infer statistically from a procedure similar to taking a 12-year average of the growth rate. Again quoting from Stock and Watson's paper:

The explanation for this declining trend growth rate which we find the most compelling rests on changes in underlying demographic factors, primarily the plateau over the past decade in the female labor force participation rate (after rising sharply during the 1970s through 1990s) and the aging of the U.S. workforce. Because the net change in mean productivity growth over this period is small, this slower trend growth in employment corresponds directly to slowdown in trend GDP growth. These demographic changes imply continued low or even declining trend growth rates in employment, which in turn imply that future recessions will be deeper, and will have slower recoveries, than historically has been the case. In other words, jobless recoveries will be the norm.

James D. Hamilton is Professor of Economics at the University of California, San Diego. He blogs at Econbrowser

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