Sunday, October 31, 2010

How to Do Almost Everything Wrong

I stumbled across a brilliant example of how to do statutory analysis almost entirely wrong. National Review alleges that the Justice Department is being politically manipulated to produce outcomes more favorable to the GOP establishment in Alaska by Democrats in Washington. Specifically, they're up in arms that the DOJ didn't step in to prevent the Alaska Elections Division from putting up a big list of names of write-in candidates in polling places. The incumbent senator, Lisa Murkowski, is running as a write-in after she was primaried by Republican candidate Joe Miller.

I personally think that if the Justice Department were to step in here, it would be an unbelievable overreach by the federal government into an area that is explicitly delegated to state control in Article I § 4 of the Constitution.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators.
Besides the 17th Amendment, which required that Senators be elected by popular vote, there have been no other changes to the constitution regarding federal elections. The states have the final power to control all manner of election-related regulations. In fact, the outcome that the National Review is decrying was decided by the Alaskan Supreme Court, the body with final say over Alaskan elections.

Saturday, October 30, 2010

Multilateral Cooperation Foils Terror Plot

That should probably be the headline re: the discovery of two packages with explosives wired to explode yesterday. However, I'm going to pick on the British Home Secretary, who said this:
She added, "We do not believe that the perpetrators of the attack would have known the location of the device when it was planned to explode."
The bombs were shipped via UPS, which provides a tracking number that tells a client where their package is and if it has been delivered. The combination of this type of intelligence and a remotely triggered bomb (authorities have confirmed that at least one bomb was attached to a cell-phone detonator) provides for the capability to launch cheap, relatively precise global attacks. Maybe she means that they have asked UPS, who said that they didn't give out a tracking number for this package, but I think giving tracking numbers is SOP for UPS.

Friday, October 29, 2010

Today On "Not My Job"

Come November 3rd, there's going to be a lot of declarations about what expected Republican gains in the House and Senate "mean." What is this election "about?"--it's a pretty stupid question, but not one that I am above engaging in. Of course elections are about many things to many people, and within the pundit class, asking it is simply a way of defining prestige. It is essentially a game of who will be the first to voice what becomes the consensus position.

On a more serious note, the election will certainly have concrete consequences for the American political agenda. But what matters most? Control of the House or the number of Republican seats picked up in the Senate? Does the party of the speaker or the number of seats that the majority controls matter more? To start answering these questions, I did the simplest possible test- is the number of major legislative accomplishments correlated with the President's party controlling more seats in the House and Senate. If we believe that "elections matter," we would expect to see a fairly strong correlation. Note: I am not a political scientist, hence the title of this post, but I do own a copy of Microsoft Excel and have statistical training.

The data represented in these graphs is the number of "Major Legislative Accomplishments" listed on Wikipedia for each of the 86th-111th Congresses, i.e. the ones in which we have 100 senators. Over the course of this period, the size of the House has held constant at 435 members with floor votes, with the exception of the 86th Congress, which included an extra two voting members to accomodate Hawaii and Alaska joining the Union. Wikipedia's number of legislative accomplishments is a useful tool here, as it suggests agreement among an informed public about what constitutes a major legislative moment. A more ideal model might involve asking a number of political scientists to quantify exactly how successful each Congress has been, but I can't think of a good reason that those numbers would substantially differ from the raw count of Wikipedia-listed accomplishments.

The number seats belonging to the President's party is directly correlated with legislative accomplishments in both chambers. This matches our intuition that elections have consequences even without reference to the fulfillment of liberal or conservative policy goals. In essence, if a voter wants more things to get accomplished, the rational thing to do is to vote for members the President's party.

The little "r =" numbers tell us how well correlated the numbers of legislative accomplishments is to the number of seats in each house. The Pearson's r for the Senate (.181) tells us that there may be a weak correlation, but the truth is that the relationship isn't statistically significant. Partisan possession of the Senate just doesn't have that big of an effect on how much Congress gets done. The better predictor is partisan make-up of the House. Pearson's r is .505 for the House, which is quite strong in social science terms. The probability of seeing this relationship purely by chance is about 1-in-120, so we can be pretty sure that the relationship is real.

The next question that presents itself is "is the relationship meaningful?" House partisan make-up may not determine the number of legislative accomplishments; they might be results of the same phenomenon, such as Presidential popularity or the economic situation. I would simply be delighted if someone would point me to (or perform) some research on the Presidential popularity possibility. However, the actual make-up of the Congress probably has better a priori explanatory power for what Congress accomplishes than an external consideration like Presidential popularity. As to an economic explanation, we expect high anti-incumbency voting during economic downturns, but the political need for Congressional action increases during these periods. The logic cuts the other way.

My regression model tells us that if Democrats lose about 53 seats in the House (which Nate Silver predicts is the median election night outcome), we could expect a still-above median 14.6 major legislative accomplishments in the 112th Congress. The median number of major legislative accomplishments for a Congress since 1958 is 12.

Is that a meaningful prediction? Probably not, and it certainly doesn't tell us anything about Congressional popularity, President Obama's popularity, the state of the economy, or any number of important questions for the 2012 elections. But it will tell us whether Congress is under or over performing its expected workload in the next two years--relative to a pretty crude expectation. Telling you how crude this projection is? That's somebody else's job.

Update: With only 10 districts not called on the NYTimes electoral map, we can make a final prediction: assuming 243 Republicans in the House (i.e. 192 Democrats) and a 53-47 Senate in the Dems' favor, expect about 14 major pieces of legislation in the next two years.

Thursday, October 28, 2010

Health Care Legislative Tactics Doomed 2010 Democrats

The New York Times is out with a poll today from which they draw the conclusion that the demographic coalition that elected President Obama is splintering at the margins, turning Obama voters into Republican or non-voters. Certainly the data tell that story, but I think the more important story is the reason that voters give for abandoning the Democratic party after one of its most successful legislative sessions it has ever had.

The NYT article includes the anecdote gleaned from a post-survey interview of one voter:
Judy Berg, an independent from Morton Grove, Ill., said she voted for Mr. Obama in 2008 because she was “looking for a change,” adding, “the change that ensued was not the change I was looking for but something totally out of left field.”
What was the largest gap between the Obama's campaign sloganeering and the reality of the legislation passed into law? The stimulus package was a campaign promise. TARP was well-publicized and generally acknowledged as a policy that Obama would continue. Financial regulation was a centerpiece of speeches after the collapse of Lehman Brothers in early October 2008. The Lilly Ledbetter Fair Pay Act was a campaign promise, though honestly, nobody is talking about it. Similarly while President Obama has not made good on his pledge to end DADT or close the dubiously legal prison at Guantanamo Bay, most voters aren't driven primarily by these issues (not to mention the electoral alternative is demonstrably worse to anybody who is unhappy about the lack of progress).

Wednesday, October 27, 2010

Vote Suppression Tactic #1: Thwarted

A Federal appeals court announced yesterday that states could not require proof of voters' citizenship when they register. Congress had acted in 1993 to require voters to swear that they were a citizen, meet age requirements, and prove identity. A three-judge panel that included former Supreme Court Justice Sandra Day O'Connor announced yesterday that this federal regulation is a ceiling to regulation and not a floor; states cannot build additional requirements to register vote on top of it. The ruling expunged a section of a 2004 Arizona voting law which had resulted in tens of thousands of registered voters being purged from the voter rolls.
[Plaintiff's attorney] Perales said state officials have used the law to disqualify 30,000 people who filled out federal registration forms attesting to their citizenship. She said a disproportionate number were Latinos, including naturalized citizens who were wrongly disqualified because their driver's license numbers did not reflect their citizenship.
The ruling only has effect in the 9th circuit, but the principle should guide states everywhere: the federal government has occupied the field of determining proof of identity and citizenship in order to register to vote. State laws which require more than the federal requirements will be struck down.

It should be noted that because the law had been enforced via voting roll purge that many voters registered to vote, received their voter registration cards, then showed up at a polling place on election day and were not allowed to vote. Voting roll purges occur with little oversight. The constitutional action in this case takes place under the Elections clause which was designed to frustrate States' attempts to undermine federal elections. Preventing lawful voters from registering to vote for trivial reasons like them not having a passport or copy of their birth certificate about them when they register seems to me like interference. I need to write a paper so here's the opinion. Go read it.

Tuesday, October 26, 2010

What Can a President Do?

As ever, the economy looms large ahead of next week's elections. Forecasters are expecting incumbents to get tossed from their seats across the country, and voters say that the weak economy is the reason (A Newsweek poll actually puts the share of voters for whom the economy is the top issue about 20 points higher, but it's a pdf.)

The New York Times' David Leonhardt reminds us that when voters judge incumbents, policy positions take a backseat to perceptions of effectiveness. The early Spring Democratic strategy of complaining that Republicans were the "Party of No" highlighted the Democrats' inability to advance a centrist agenda over the objections of the minority party. Of course, the fact is that the Democrats achieved a large number of legislative goals in the 111th Congress. Compared to an average of 12 "major accomplishments" as picked by Wikipedia for a Congress since 1958, the 111th Congress has so far passed 22 major bills. That puts it as the second most productive Congress in the last 62 years, and the most productive under a Democratic president. However, the media narrative, driven by the "Party of No" strategy on the Democratic side never fixed on that data. The Republican contention that the Obama agenda has represented an unparalleled expansion of federal government power and spending implies efficacy of the Democratic majorities of Congress, but for some reason has not created a consensus that the 111th Congress has achieved much of anything. Only a third of Democrats think that this Congress has been more productive than recent ones, and that number goes down to one fifth of all American adults.

Monday, October 25, 2010

CWU Mass Poisoning Due to 4Loco?

Well, that just happened. Local authorities who investigated the CWU student off-campus party in Ellensberg, WA where 9 students were hospitalized have concluded that the obscene levels of intoxication observed by police were the product of the 4Loco malt liquor/energy drink, and not the result of illicit drug dosing. Well, the investigators seem to have decided that the intoxication was the result of people mixing vodka and 4Loco. This potent mixture would be comparable to the vodka-Redbulls which have become $8 staples at even the cheapest bars, except that 4Loco already packs a 12% alcohol by volume punch. This mixture may habe been what the party hosts were serving, or guests may have made the mistake by themselves, assuming that 4Loco was a simple energy drink.

Either way, it's pretty funny watching people run around saying that we should regulate 4Loco. After all, it is already regulated as an alcoholic beverage. I don't see what additional regulations could produce. It is already illegal to sell it to minors, though anyone who has ever been 18 knows that that is no bar to alcohol purchases. So what would a rational society do to prevent these types of alcohol-related mistakes by inexperienced drinkers? They provide alcohol education which went far beyond the normal college introductory "alcohol is bad; be safe" hour-long lecture. You would never see a normal 40 year old mixing 4Loco and vodka. But that's exactly what you expect to see when a 19 year old is learning to drink from her idiot friends. Kids who can safely have a few drinks with their parents every now and then are less likely to develop dangerous drinking habits. America has serious cultural problems with the way that it views drugs, and hospitalizations of minors is a symptom of those problems.

More All Power to the States

Steve Bennen over at the Washington Monthly takes Senate Republican Leader Mitch McConnell's plan to continue obstruction in the next Congress for a stroll. The minority leader has dedicated his caucus to refusing to compromise in the least part with Democrats in congress. So far, Republicans have voted no on Republican ideas so they could reap the benefits of a depressed economy, high joblessness, and a housing crisis by blaming the majority. McConnell in a National Journal interview has doubled down on the strategy of the last two years, promising to do the same for the next two.
"[W]e need to treat this election as the first step in retaking the government. We need to say to everyone on Election Day, 'Those of you who helped make this a good day, you need to go out and help us finish the job.' [...]

The single most important thing we want to achieve is for President Obama to be a one-term president.... Our single biggest political goal is to give our nominee for president the maximum opportunity to be successful."
Apparently "successful" means to have as few policy overlaps as possible with President Obama. That means that the Republican leadership will be attempting to hold together solid "No" blocks on every single major policy put forth in the next two years at the federal level. If McConnell gets his way, and he might, there will be very little that gets done in the 112th Congress. Some Republicans have already started foreshadowing a 1994 redux government shutdown While Benen implicitly is making the 'that's why you elect Democrats--or at least less partisan Republicans' argument, I think McConnell may be playing a deeper game here.

Sunday, October 24, 2010

This Week in Election Speech

The Supreme Court has declined to issue an injunction against the enforcement of a Maine campaign finance law. Unanimously rejecting the petition for relief against disclosure requirements, and 7-2 dismissing the same petition for an injunction to Maine's matching funds program. SCOTUSblog has the basics.

Justices Alito and Scalia were the dissenters, presumably because they would have supported an injunction on the 10-year old Maine Clean Election Act. The opt-in program places a maximum on private fundraising income (e.g. $200,000 for gubernatorial candidates) which must come from individuals not contributing more than $100 each. This is then the weird part of the law: the campaign must then collect checks from individuals of at least $5 per made out to the Maine Clean Elections Fund. Once a candidate turns in enough qualifying contributions (e.g. 3,250 for a gubernatorial race), the candidate receives matching funds to offset spending by either opponents or independent expenditure groups.

Thursday, October 21, 2010

Ballot Initiative ?= Public Will

I just filled out my ballot (Washington votes by mail), and something about the ballot measures struck me. They were completely unintelligible. In particular, Washington state initiative 1053, which would make it impossible for the legislature to raise taxes or fees without consent of two thirds of the legislature. As everyone who knows math or the Washington State legislature has realized, this means that 17 people can obstruct any tax or fee increase for any reason, trumping the will of the majority. To be fair, the measure does allow for a majority of the voters in a general election to overturn the veto of the 17 united holdouts.

I certainly think that it's a bad idea- just look at the budgetary and procedural woes of California. But my readers know that I don't usually comment on simple policy issues. I prefer the constitutional and democratic theory concerns. My biggest peeve with this ballot initiative is how it is framed on the ballot. If the ballot measure passes (i.e. if a simple majority of the voters vote 'yes' on it), 7 pages of text is inserted into the state code which would raise the two-thirds requirement from the dead. On the ballot, however, the text simply reads
Initiative Measure No. 1053 concerns tax and fee increases imposed by state government.

This measure would restate existing statutory requirements that legislative actions raising taxes must be approved by two-thirds legislative majorities or receive voter approval, and that new or increased fees require majority legislature approval. Should this measure be enacted into law?

Wednesday, October 20, 2010

Seizing Speech

Alaska Senate candidate Joe Miller's privately security detail apparently handcuffed a journalist for attempting to interview Mr. Miller. This happened over the weekend, and I was writing a post about the incident bemoaning the lack of respect for agents of the people who are attempting to pull back the curtain and familiarize the people with political elites. This would have been a pretty boring rant, so I shelved it. Following the golden rule that any story left unwritten gets better, it turns out that the private guards were actually active duty military personnel moonlighting as security guards.

I had originally shelved the post because there was no legal issue. Private citizens basically assaulted someone, but there was no constitutional question, as the first amendment only binds the federal government and (through 14th amendment incorporation) the states. Now that officers of the federal government are involved, there is a larger problem here.

Glenn Greenwald notes that military personnel are banned from partisan political activity by DoD directive. Every governmental agency that I know prohibits its agents from engaging in partisan politics on its time. Military personnel, like police officers, are cloaked more encompassingly cloaked with the authority of the state than desk clerks. If the state trains a person to use force as its agent, it has separated it from the general populace. The investment of legitimate force on an individual abrogates that individual's political rights.

Tuesday, October 19, 2010

Russian Parliament Undergoes "Second Amendment Remedy" Attack

The Chechnyan Parliament is under attack. Gunmen burst into the chamber, and opened fire. NYTimes reports that they are taking hostages. I would like to comment that this is why it's important to have a multicultural society which doesn't define itself as at war with a religion. It's also good to have fora for serious redress of grievances through free speech and political mechanisms. Substantive due process also helps prevent things like this. But once we get all those platitudes out of the way, has anybody gotten Sharron Angle's take on the day's news?

P.S. Does this vindicate terror alerts in Europe? Thoughts?

Sunday, October 17, 2010

Cannabis Taxes

The most eye-poppingly ridiculous claim by Proposition 19 supporters is that the ballot measure legalizing cannabis would create tax revenues for the state and municipalities if they set up such regulatory schemes. There's a variety of reasons why this probably won't happen while 'marijuana' is still a Schedule I drug under the federal Controlled Substances Act. The reason that it California won't tax cannabis is, however, certainly not the one provided by the U.S. Senator Dianne Feinstein and LA County Sheriff Lee Baca in the Mercury News.

In the article, they claim that taxing marijuana sales is unconstitutional because the Supreme Court said so in Leary v. United States 395 U.S. 6 (1969). This is emphatically not what the Supreme Court said.

Saturday, October 16, 2010

Second Amendment Ruh-Roh

Recently the trend among law scholars is to "start taking the Second Amendment Seriously." This Wisconsin decision touching of a right to concealed carry might be a case in which a state judge took the right to bear arms a little too seriously.

The case involves a man carrying a concealed knife, and that should be about where the analysis ends. Depending on whom you ask, the Second Amendment was a protection of the citizens' rights to self defense, as a bulwark against federal tyranny, or the basis of self-sufficiency on the frontier. None of these objectives is achieved with a knife. The crucial difference between a knife and firearm is that a knife cannot be deployed as a weapon which might preempt, thus defend against, an encroachment. It is not a revolutionary tool in the nightmare scenario in which a colony must rebel against its sovereign. And it does not provide a means to hunt. A knife is not likely to end a physical altercation, but to wound both participants more deeply than if it did not appear. There is no traditional interpretation of the Second Amendment which would defend the covert carrying of a knife in public and to public establishments.

Friday, October 15, 2010

Reagan Judge a Either a Carroll or Burger Fan

The Judge Roger Vinson, who is presiding over FL v. DHHS is a fan of Alice in Wonderland. In his decision rejecting the government's motion to dismiss, he criticized the government's "Alice in Wonderland" argument that though Democrats in passing the bill describe the individual mandate tax provision as a penalty and not a tax, it is no different from a tax. The government would for the court to hold that it is a tax because that would sidestep the entire Commerce Clause debate. It looks like the Reagan appointee will not allow that argument.

What caught my eye, however, was the reference to Alice in Wonderland. In the majority opinion in Tennessee Valley Authority v. Hill 437 U.S. 153 (1978), Chief Justice Burger cited Humpty Dumpty in footnote 18 in dismissing a dissenter's argument.
When I use a word,' Humpty Dumpty said, in a rather scornful tone, 'it means just what I choose it to mean--neither more nor less." Through the Looking Glass, in The Complete Works of Lewis Carroll 196 (1939)

Corporate Ads

I'd like to find a copy of this ad attacking Ron Kind(WI-03) ran in the Madison Market on CBS affiliate during 11:00PM CST show, in the first or second adbreak

I just saw this ad, the main complaint of which is that Ron Kind (WI-03) allowed the government to spend money wastefully. Specifically, they list some boilerplate about how the stimulus money was a waste because it didn't turn around the unemployment momentum, then a pure pork project: replacing broken windows on a building owned by the federal government.

In my neighborhood, when there's a building on your block with gaping holes in the windows, we call it a nuisance. Dilapidated buildings depreciate property values in the entire neighborhood. If that building were on my block, I would ask the owner to fix it up. If not to inhabit it, then at least to dress it up well enough to ensure that it will sell quickly. The incumbent's position is "fix buildings". He probably voted for a bill which included a line item like "Federal building maintenance- Replace Windows;" now he's being attacked for it. That's silly, because the logical outcome of this ad is that the challenger in the race would prefer to "not fix buildings." Who would put up such an obviously bankrupt ad?

Well, turned out it's one of those old post-Citizens United corporate speech money holes. I'm not really sure I got its exact name correctly because I can't find it on the web, and the voice said it really quickly. I think it was, "National Foundation of Independent Businesses." I found a National Federation Independent Businesses but I don't think it was it.

Thursday, October 14, 2010

Democratic Theory and Prop 19

I'm decidedly undecided on whether I would vote for Prop 19 if I had the chance, which is just as well because I'm not a resident of California. I've seen a lot of the debate over its passage, as California is a fairly technology-oriented state, and much of the conversation spills over onto blogs.

There are certainly some spurious arguments, such as the typical prohibitionist canards that legalizing marijuana would increase the number of users or create more intoxicated drivers or lower economic productivity in the state. The oddest argument against Proposition 19 that I have seen recently is ridiculed pretty well in this blog comment:
So, Rick, in your opinion, is Prop 19 terminally flawed? Do the opportunities that the loopholes create for government to tighten controls make this initiative something that should be voted down?

You’re right, there are many examples where the INTENT of a new law/ regulation is about 180 degrees from the RESULT.

Wednesday, October 13, 2010

Prop 19 Link Dump

California Attorney General candidates might not enforce Proposition 19 if it passes.

Don't let anybody tell you that capitalism isn't a prime motivator behind passage of Prop 19.

Rand's drug policy research arm says that marijuana profits only supply 15-26% of Mexican cartel profits.

Deeper in the paragraph, the article makes the argument that legalizing the cultivation of marijuana under California law would breed violence. As California's export market grows and drops in cost (due to a lower risk of interdiction), the argument assumes that cultivators would be under assault. First of all, California already does produce a lot of the cannabis consumed in America, with local suppliers often beating out the California competition. Secondly, the enacted inability of state officers from seizing marijuana would encourage any cultivators to go to the police and through the court system to settle grievances like in any other dispute.

Cities in California cannot rely on federal law in prohibiting medical marijuana dispensaries, but at least one lawyer is concerned that Prop 19 might inadvertently change that by granting local government more control over retail zoning.

Tuesday, October 12, 2010

The Federal-State Conflict: Expecting Prop 19

As I hinted at in my last post on Prop 19, drug policy is not a simple federal-state issue. It has its own gray areas. One source of this confusion is &sec 903 of the Controlled Substances Act itself, which states
"No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together."
If the federal government decides to challenge the new legal cannabis regime in California, and I believe they will, they must show a positive conflict between the state law, which is prospectively entitled, "The Regulate, Tax, and Control Cannabis Act of 2010," and the Controlled Substances Act.

What is a positive conflict? Law professor Alex Kreit is paraphrased as saying is a condition in which an action of an individual necessarily would be inconsistent with one of the laws at issue. An individual would be caught between two law systems. Following one law would force her to violate the other. This is the preferred reading of the state-based pro-legalization legal community, as it would pretty much require that California require citizens to ingest marijuana for the state law to create a "positive conflict" with federal law.

Monday, October 11, 2010

Prop 19 Week at the Silly Season

This week is Prop 19 week. Polls anticipate a victory at the polls for California's Proposition 19, the ballot initiative which would legalize marijuana for recreational use across the State. Legalizing a drug that is prohibited under the Federal Controlled Substances Act is certainly a novel problem in federal-state power dynamic. In Gonzales v. Raich the Supreme Court announced that the fact that medical marijuana was recognized by California law did not affect Congress's power to regulate the plant under the Commerce Clause or the DEA's power to prosecute Cannabis growers by grant of authority from Congress. Left unanswered in Raich is the question of whether the States have an active duty to enforce federal law.

To answer this question, I turned to some law journal comments from the end of Prohibition. In support of the 18th Amendment's constitutional ban on "intoxicating liquors", the U.S. Congress drew up the Volstead Act, which criminalized the transportation and sale of alcohol. The Volstead Act established criminal penalties and provided for an enforcement agency. States enacted their own mini-Volstead acts to allow their own law enforcement officers to pursue the goal of temperance with local resources. The laws creating state crimes for alcohol allowed perpetrators to be brought to court in state courts. Whereas state judges may take cognizance of federal remedy laws in civil disputes, they cannot impose federal sentences on perpetrators of purely federal crimes. State courts lack the jurisdiction to hear federal criminal cases. This was the case in 1932 before the repeal of prohibition, and it is the case now under U.S. Code Title 18 Part 2 Chapter 211 § 3231.

California Gov. Arnold Schwarzenegger signed a bill into law last week downgrading possession of marijuana from a misdemeanor to an infraction. Despite the light sentence that California law currently holds for marijuana possession ($100 fine for possession of up to 1 ounce), many misdemeanor defendants demanded a jury trial. The costs of these jury trials far outweighed whatever benefits the state found in continuing to charge cannabis possessors with misdemeanors. This bill has already removed the vast majority of state prosecutions of recreational marijuana users from the state courts.

Saturday, October 9, 2010

CWU Blames Date Rape Victims

This is an absolutely disgusting response from the school administration. CNN reports that persons unknown seem to have attempted to incapacitate female students by adding a depressant drug to alcohol. Twelve people who attended the party in Roslyn, WA were hospitalized though they reported ingesting only one or two drinks. Police found the party after they discovered a female victim who had escaped the party passed out in a vehicle in a grocery store parking lot. Her friends were able to point the police to the party where someone had drugged a bottle of vodka.

All attendees at the party were students at CWU, and the school adminsitration released this statement to CNN:
"CWU strictly enforces state law and university policy on underage drinking and illegal drug use," it said, adding that freshmen are educated on drug and alcohol abuse and sexual assault.

"Despite our best efforts, however, students sometimes make bad choices," the university said.
Guess what, CWU administration? Having one or two drinks at a party is not behaving recklessly. Even though some of these students were under 21, it does not excuse the callous disregard for their safety and the easy condemnation of them which is emanating from the school's statement. The school will that all students whom they identify as being "involved with the party" will go through a "conduct hearing." It seems unlikely from the tone they are taking that there will be any action taken against the people who intentionally drugged the women in an attempt to rape them.

The students of CWU deserve better than this. They deserve an alcohol policy that distinguishes between people who drink responsibly and those who attempt to take advantage of others. They deserve an administration which pursues justice and does not blame the victim. The upcoming 'conduct hearing' will tell us whether the Administration lives up to this very low bar.

It should be noted that the police seem to be taking this crime very seriously. Their arrival at the scene likely prevented sexual assaults, and they acted quickly, effectively, and professionally in defense of its citizens. I just wish the same could be said of the University.

Huffington Post confirms that the college's response will focus on "underage drinking" law violations and will likely result in sanctions. The university could be using this energy to investigate the poisoning and attempted rape of its students, but who's interested in that?
Officials said they would review the conduct of individual students, and those in violation of conduct code may face sanctions, ranging from mandated intensive drug and alcohol education course to suspension or expulsion in the most serious cases.
This is appalling behavior. Not from the students, but from the university. They are punishing the people who had a nightmarish time. I doubt that there is anything a drug education class will be able provide for these victims. On a side note, the police might have wondered why nobody called 911 after people started to vomit and pass out. It probably had something to do with the expectations of the police force that when they arrived at the house that drunk people would flee it like a sinking ship. The expectations of the police evince knowledge that the way that we deal with underage drinking as a society is counterproductive, but there is no awareness of this reflected in their policy or response. At the same time, they're doing a lot better right now than the school is--at least they're not trying to send these victims to court.

On Health Insurance and Fire Departments

This last week, the blogs were alive with the sound of a house burning down. The fire department allowed the fire to reduce the Cranick family home in Obion County to embers because the owners had failed to pay the $75 fire service subscription fee to the nearby town of South Fulton. Firefighters did not respond to the scene when the fire was first reported because the family had not paid for the fire prevention service. When a neighbor who had paid his firefighting fee called, the firefighters loaded up their trucks and drove out to the site to prevent the fire from spreading to the neighbor's property.

I would assume that the family also did not have fire insurance on their house. And even if they had, it would likely be void. Failing to take the needful steps to protect your house from fire is certainly negligent. The refusal to pay a fire subscription fee is tantamount to failing to and I suspect that homeowners' insurance would not cover such willful negligence.

Fire insurance pays to replace possessions and real estate that was damaged by fire. However, health insurance does not compensate the patient for the damage that a disease causes her. Health insurance is used to pay for the procedures which prevent the disease from wreaking havoc on the body. It is in a way a medical tool which determines the outcome of a health problem. Similarly, paying for fire service subscription determines the outcome of a fire threatening your house.

An NPR reporter collected opinions from residents of South Fulton, two of whom replied that it would be wrong to let a house burn to the ground, regardless of whether the owner has paid for fire prevention service.

So how do you solve the moral conundrum of having to decide whether to put out the fire or sacrifice the meaning of the fire subscription fee? Well, you could mandate fire coverage, like every city does. Fire is a dangerous phenomenon, and its effects are not limited to those who choose to accept its risk. Cities desperately need to prevent fires from spreading building-to-building, so they do not allow a fire to get out of hand. City dwellers are mandated to pay for fire service. Municipalities tax their residents to ensure the public safety.

When a disease becomes an epidemic, the common saying is that it is "spreading like wildfire". Public health has the same goals as fire prevention: to provide security to citizens. To further this goal, it is sometimes necessary to restrict the set of decisions that a person can make. A person with a highly infectious disease cannot be allowed to promenade through a city. She must be treated. There are times when living in a society requires significant sacrifices of "individual liberty". Health is one of these areas, as is fire.

Thursday, October 7, 2010

PPACA: No Way Around Commerce Clause Precedent

Late today, a federal judge in Michigan's Eastern District ruled that the individual mandate is constitutional, and is authorized by the commerce clause. In Thomas Moore Law Center et al. v. Obama (pdf), the plaintiffs seek a preliminary injunction against the enactment of the individual mandate. This is a slightly different issue from the States' claims in FL v. DHHS, but the commerce clause logic should work the same. As a spokesperson for the Department of Justice points out, this is the first time in which the merits of challenges to the Patient Protection and Affordable Care Act have been grounds for a decision.

Plaintiffs, two individuals and a public interest group, have standing. The issue is ripe for judicial decision. The remedy is allowed for under the Anti-Injunction Act. Let's play ball!

Plaintiffs argued that Congress has never had the power to regulate commercial inactivity, whereas the individual mandate seeks to penalize individuals who do not purchase health insurance. The district court finds that the authority of Congress to mandate individual coverage is found in the doctrine stated in US v. Lopez, 514 U.S. 549 558-559 (1995): "Those activities that substantially affect interstate commerce." The court dutifully follows instructions from Gonzales v. Raich 545, U.S. 1, 22 (2005) that it merely should look to whether there is a reasonable basis for the belief that such a relationship between the activity and interstate commerce exists.

Rapid Response No-Nos

One of the biggest questions that arises in a political campaign is whether or not and how to respond to accusations. John Kerry was famously "Switft Boated" because he did not respond to allegations stemming from the three purple hearts he was awarded in Vietnam. Then-senator Obama's Philadelphia speech addressing race in America was considered a brilliant response to the Jeremiah Wright-themed attacks that Team Clinton had been throwing around.

Generally, it seems that as an attack is more squirrelly and weird, and doesn't quite click with the general public, it's probably best to ignore it. My case in point?: WitchDonnell.

The 1999 video of Christine O'Donnell isn't terribly damaging. It's weird and kind of off-putting, but not so bad by itself. Her ad in response to the allegation that, I gather from her response, ran 'she's a witch', in which she flatly denies the witch thing elevates the 'controversy' to a new level. Not only does it grant credence to the idea that maybe she really is a witch and is playing some quick defense, but there's nothing quite as un-senatorial as putting up an ad on TV that starts out with "I'm a Witch". Beyond that, in the youtube era, she looks a lot stupider than she really needs to because there are people with computers and an hour of time on their hands who just enjoy making people look stupid.

Of course, no one really cares about these little things except for political junkies. That is, until you put up an ad on tv that just begs people to search youtube for "O'Donnell Witch", which won't end well for her.

Pocket Veto In the House (Well, the White House)

President Obama today announced that he would not sign HR 3808, the bill which passed Congres last week touching on mortgage and foreclosure issues. The current text of the bill removes a company's liability in certain situations when they mishandle mortgage papers. It would excuse bank slip-ups in the notarization processes. The recent revelations that large banks systematically made these mistakes which summarily led to foreclosure proceedings made the White House rethink the bill, which otherwise has many important consumer protections.

This brings me back to one of the more frustrating days I ever had in high school, to a U.S. history class in which my teacher tried again and again to explain "the pocket veto." As I'm sure he wish he had done that day, let's start with the text of Article I Section 7, which describes how a bill becomes a law:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.
Pretty standard stuff so far. Majorities of both houses of congress pass a bill, which goes to the president, who can either sign it into law or veto it. We'll skip over the veto override process text (which requires two thirds of both houses) and skip to the relevant clause:
If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
A President does not have to sign a bill for it to become law. He may hold on to it for ten days, and if the Congress is in session, the bill becomes law. Presidents may do this to avoid putting their signature on a bill that they disapprove of, but are afraid that they will get overridden.

The live constitutional debate about the pocket veto is the meaning of 'Adjournment', with executives claiming recently that the pocket veto may be an option while Congress is technically in session, but is away on vacation. The temptation to use a pocket veto when a normal one would do is that the Constitution does not specifically lay out how such a mid-session adjournment pocket veto could be overridden. But that's a discussion for another time, as this pocket veto occurred well within all meanings of Adjournment: the 111th Congress will not meet again.

9th Circuit Accepts Foreign Friends

The Ninth Circuit Court of Appeals on Monday announced that it would consider amici briefs filed by foreign governments related to Arizona's SB-1070. Politico reports that Arizona Governor Jan Brewer attacks the court for forfeiting American sovereignty.
“As do many citizens, I find it incredibly offensive that these foreign governments are using our court system to meddle in a domestic legal dispute and to oppose the rule of law,” the Republican governor said in a statement shortly after the state’s motion was filed Tuesday evening.

“What’s even more offensive is that this effort has been supported by the U.S. Department of Justice. American sovereignty begins in the U.S. Constitution and at the border,” she added. “I am confident the 9th Circuit will do the right thing and recognize foreign interference in U.S. legal proceedings and allow the State of Arizona to respond to their brief.”

Let's get this straight- the Ninth Circuit is deciding this case under the laws of the United States. The dispute is between the federal government and a state government. It affects foreign governments, as their citizens as legal residents of these nations, are being subjected to a discriminatory law. Mexico's brief cites potential problems in enforcing drug trafficking laws that would arise form SB 1070. Tell me exactly how considering the effects of a court decision on trade partners and neighboring countries violates U.S. sovereignty. Is that materially different from a court looking to the effects of a decision on prospective petitioners?

This is exactly why the Ninth Circuit accepts these briefs. the enactment of SB 1070 would likely bring foreign governments into the courts as plaintiffs in defense of their citizens. Does Jan Brewer think that when a foreign government submits to the judgment of an American court that it damages American sovereignty? It does precisely the opposite.

Politico whiffs on this issue pretty hard:
Brewer’s motion should resonate among conservative legal scholars worried about giving foreign legal systems a voice in American jurisprudence. These concerns are a reaction to a school of legal thought arguing that American judges should look to foreign laws and courts for assistance in interpreting the U.S. Constitution, particularly in regard to basic human rights issues. Supreme Court Justice Anthony M. Kennedy is arguably the leading spokesperson for this approach, as noted in a 2005 New Yorker profile.
Really, this has nothing to do with whether American judges can reasonably incorporate principles from foreign courts in deciding cases under American law. That is a valid debate about the nature of the common law system in a globalized era. The issue here is whether we think foreign governments are likely to be affected by our courts and whether we would prefer that they enter the process as amici curiae or as plaintiffs. Eleventh Amendment constitutional immunity precludes the possibility that a foreign government can sue a state, but that does not prevent it from fully supporting the litigation of one of its citizens injured by Arizona's laws.

The Supreme Court automatically accepts amicus briefs from sovereigns under its rule 37.4, but when the rule was drafted, there had been very few amicus briefs filed by foreign governments. They were not included in the rule. However, the Court does selectively accept amicus curiae arguments from foreign governments. One researcher says that SCOTUS almost always does.

Wednesday, October 6, 2010

First Amendment Rights of Alien Corporations

Speaker Pelosi is giving some credence to the report that the Chamber of Commerce is funding independent expenditures with foreign corporate money. The Chamber of Commerce, a purely lobbying and political operation, has set up a network of foreign offices which while controlled by foreign boards, direct money directly into the pot of money which is used to purchase electioneering ads. In the wake of the Citizens United v. FEC 130 S. Ct. 876 (2010), we must acknowledge that there is nothing currently illegal about this arrangement.

There are genuine questions of great importance when we then ask ourselves whether foreign money should be able to be used to further a political agenda. Are our national interests vulnerable to outside influence through corporate laundering of foreign donations? The prohibition of foreign funds being used to further political goals would require some sort of separation between funds. Is a firewall between funds provided by foreigners and those provided by residents onerous enough for Justice Kennedy to decide that it creates a practical prior restraint on speech?

It should be answered to the first question that much of the CIA's covert operations budget have gone towards influencing national, regional, and even local elections in foreign countries. Electioneering is a potent tool for a foreign power to exercise in order to achieve policy goals. The possibility that foreign agents might be funding political speech to further their interests via the elected American Government is chilling. Citizens United declared that corporations, which are merely associations of people, cannot be banned from political speech. Is the same true for foreign corporations?

Tuesday, October 5, 2010

Flag Thrown On Feingold Ad- Play is Under Review

Russ Feingold (D-WI) is facing a tough reelection bid this year. He released an ad containing footage of Randy Moss mock-mooning the Lambeau Field, linking the level of respect that corporate interests and Ron Jonson have to the people of Wisconsin with Randy Moss's mock-bare ass. And though it doesn't sound particularly compelling verbally, it might be doing better than the text suggests. Today, the NFL is asking them to take down the ad, shooting Feingold's argument over to the sports section of at least the CBS news site.

The Feingold has attracted some earned media in a market that they don't normally reach. They're putting a decent argument in the Sports section on the page facing the standings. The quote in the CBS story reads pretty well:
The ad shows a number of clips of football players dancing in the end zone. Feingold says the celebrations are similar to how his challenger has prematurely declared himself the victor in the senate race.
The NFL threw a flag, and now if the campaign is smart, they'll figure out how to milk some extra time out of this affair. In the NFL, this is done by challenging the call. A referee reviews the play from on a monitor. Meanwhile, whatever network who is covering the game has to talk about the play for two minutes while the video is shown over and over. It's nice to see that Feingold is not only a fan of the game, but a master of how it's played today.

This Doesn't Happen Often

A Federal judge was arrested last Friday in Atlanta according to the local paper. It's a fairly shocking story, as he was arrested in possession of a gun while buying cocaine for a prostitute with whom he had a long-term relationship. Putting aside the stereotype that we don't often imagine 67 year old men crushing and insufflating prescription drugs and buying cocaine on the street, judicial misconduct is fairly rare.

Federal judges are in a pretty lofty position, and committing a violent felony like bringing a gun to a drug deal is a pretty good way to lose it. I doubt that the judge will stick around to get impeached, but it's certainly a possibility. This probably breaches the standard for impeachment. This is a good reminder that judges are people too.

Sex, drug, and violence scandals ar not terribly uncommon among legislators, but judges are generally less likely to be enmeshed in a scandal such as this. This may be because legislators are more public figures so people recognize them when they break the law. Legislators may break the laws more because they have less training in the law. The stereotype of politicians is the egomaniacal person who believes they are invincible, and this may have some basis in the types of scandals that they are involved in. Or judges may manipulate the judicial system to avoid prosecution. This last possibility doesn't seem right, but it is a possibility.

A judge actually was impeached earlier this year on corruption charges. That is the type of crime one expects from a judge.

Monday, October 4, 2010

The Tenth Amendment

There is quite a bit of confusion about the Tenth Amendment going around. There is one the one hand the development of the 'Tenther' tenant of the tea party movement, which claims essentially that the federal government cannot exercise power over anything not explicitly enumerated in the Constitution. On the other hand is the more general view that it is a state sovereignty clause whose purpose is to enforce the boundary between federal and state powers.

These are similar claims in the end. If the more recently dominant federalist reading of the Tenth Amendment were taken very literally, it might assuage the anger of the Tea Party organizers. On the other hand, if the states merely assumed the powers which their defenders claim belong rightly to them and not to the federal government and enacted similar policies and used a similar tax scheme, I suspect that the situation would be no more amenable to Americans that are deeply worried about our global standing, national economy, and foreign debt.

I think that both these readings- that Congress has severe limitations on its powers and that the states are the natural home of any usurped powers- severely miss the mark about what the Tenth Amendment means.

Saturday, October 2, 2010

Neocons on the March

The Atlantic reports that three leading Neoconservative think tanks are launching a campaign to insulate defense spending against possible cuts. Cutting military spending has been a stated goal of the Obama administration and its Secretary of Defense and Bush administration holdover, Robert Gates.  One of the less popular liberal policies in the Democratic caucus is achieving the same goal.  And if you listen to the rhetoric of some of the more libertarian and deficit-hawk Conservatives, you might believe that they're heading the same way too.  Well, the Neocons are in the middle of a campaign to push back and protect every cent of the Pentagon's budget.
Though the warning not to give into the spending demands of the "Military-Industrial Complex" was authored by a Republican, the Washington establishment GOP has since become the primary defender of the Department of Defense budget.  Reagan's trumpeting of military spending including the hilariously flawed "Star Wars" program was the central thrust of his foreign policy agenda.  But the more libertarian coalition which is ascendant the grass-roots of the Republican Party, is beginning to demand cuts in spending to the DoD. Ron Paul, whose quixotic 2008 presidential run began energizing many of the libertarians, released a statement earlier this summer arguing for cuts in military spending. Republican candidates are courting tea party voters with similar statements. Even GOP establishment heart-throb Dino Rossi is going out of his way to insult the largest employer in Washington State as wasteful, the defense giant Boeing. Ken Buck says he expects to cut defense spending.

Ok, we get it- an internecine Republican feud on defense spending might give SecDef Gates the rhetorical leverage (but probably not the votes in the House) to cut spending on missile programs and weapons systems that the military doesn't want. It's a well reported story.

What caught my eye were the claims coming out of the Neocon side of this. Specifically, the numbers.