Tuesday, December 06, 2011

President Obama's Osawatomie Speech Defines The Democratic Vision Of America

Finally, we will be having the debate that has been glossed over for the last thirty years. What kind of America do we want. The President framed the debate perfectly and left no doubt where he stands. Here are a few excerpts.
Ever since, there has been a raging debate over the best way to restore growth and prosperity; balance and fairness. Throughout the country, it has sparked protests and political movements - from the Tea Party to the people who have been occupying the streets of New York and other cities. It’s left Washington in a near-constant state of gridlock. And it’s been the topic of heated and sometimes colorful discussion among the men and women who are running for president.

But this isn’t just another political debate. This is the defining issue of our time. This is a make or break moment for the middle class, and all those who are fighting to get into the middle class. At stake is whether this will be a country where working people can earn enough to raise a family, build a modest savings, own a home, and secure their retirement.

Repeatedly he explains how we are a better when we act together and those who fail to recognize that ignore our history.

Now, in the midst of this debate, there are some who seem to be suffering from a kind of collective amnesia. After all that’s happened, after the worst economic crisis since the Great Depression, they want to return to the same practices that got us into this mess. In fact, they want to go back to the same policies that have stacked the deck against middle-class Americans for too many years. Their philosophy is simple: we are better off when everyone is left to fend for themselves and play by their own rules.

And here he pulls no punches as he lays out his firm beliefs.

Well, I’m here to say they are wrong. I’m here to reaffirm my deep conviction that we are greater together than we are on our own. I believe that this country succeeds when everyone gets a fair shot, when everyone does their fair share, and when everyone plays by the same rules. Those aren’t Democratic or Republican values; 1% values or 99% values. They’re American values, and we have to reclaim them.

The speech was on the 100th anniversary of Teddy Roosevelt's famous speech calling for a New Nationalism and the Square Deal. After describing Teddy's background and the benefits of the markets President Obama said,

But Roosevelt also knew that the free market has never been a free license to take whatever you want from whoever you can. It only works when there are rules of the road to ensure that competition is fair, open, and honest. And so he busted up monopolies, forcing those companies to compete for customers with better services and better prices. And today, they still must. He fought to make sure businesses couldn’t profit by exploiting children, or selling food or medicine that wasn’t safe. And today, they still can’t.

In 1910, Teddy Roosevelt came here, to Osawatomie, and laid out his vision for what he called a New Nationalism. “Our country,” he said, “…means nothing unless it means the triumph of a real democracy…of an economic system under which each man shall be guaranteed the opportunity to show the best that there is in him.”

Then, in a great jibe at his critics the President said
For this, Roosevelt was called a radical, a socialist, even a communist. But today, we are a richer nation and a stronger democracy because of what he fought for in his last campaign: an eight hour work day and a minimum wage for women; insurance for the unemployed, the elderly, and those with disabilities; political reform and a progressive income tax.

One of the best parts, which puts the lie to the Republican narratives we hear today, is this.

Now, just as there was in Teddy Roosevelt’s time, there’s been a certain crowd in Washington for the last few decades who respond to this economic challenge with the same old tune. “The market will take care of everything,” they tell us. If only we cut more regulations and cut more taxes - especially for the wealthy - our economy will grow stronger. Sure, there will be winners and losers. But if the winners do really well, jobs and prosperity will eventually trickle down to everyone else. And even if prosperity doesn’t trickle down, they argue, that’s the price of liberty.

It’s a simple theory - one that speaks to our rugged individualism and healthy skepticism of too much government. It fits well on a bumper sticker. Here’s the problem: It doesn’t work. It’s never worked. It didn’t work when it was tried in the decade before the Great Depression. It’s not what led to the incredible post-war boom of the 50s and 60s. And it didn’t work when we tried it during the last decade.

It was a wonderful, inspiring and hard hitting speech that lays down the gauntlet. I hope it is picked up by all Democrats running for office.

Tuesday, November 08, 2011

The Affordable Care Act Upheld Yet Again

The District of Columbia Circuit, considered by many as the most prestigious Court of Appeals in the country, is the latest Circuit Court to uphold the Affordable Care Act. The case is Seven-Sky v Holder and it is important for several reasons. Two of the judges are Republicans, including a conservative icon, Judge Silberman. There was a dissenting opinion but only because that judge would have thrown the case out on jurisdictional grounds.

This is a very strong, well reasoned opinion. The case boiled down to whether the court would accept the plaintiffs argument that Congress could not regulate "inactivity." As discussed in this article that activity-inactivity argument is basically Constitutional misdirection and the DC circuit was having none of it.

As framed by the Court,

The contested issue here is whether the Government can require an immensely broad group of people–all Americans, including uninsured persons with no involvement in the health insurance and health care markets–to buy health insurance now, based on the mere likelihood that most will, at some point, need health care, thus virtually inevitably enter that market, and consequently substantially affect the health insurance market. Appellants say that Congress cannot regulate based on such sweeping generalizations. Only individuals who are voluntarily engaging in an “activity” related to interstate commerce–not the uninsured, who are “inactive”–are within the scope of the Commerce Clause.

The court's response goes on for many pages, but is best summarized in this paragraph,

The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.

That last sentence is the key. There is no Supreme Court president supporting the argument that the individual mandate is unconstitutional. None.

The Court also pointed out the the absurdities that would result from the plaintiffs' argument.

Indeed, were “activities” of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such “activity.” For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future. And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance. (citations omitted)

The Supreme Court has repeatedly rejected these kinds of distinctions in the past–disavowing, for instance, distinctions between “indirect” and “direct” effects on interstate commerce–because they were similarly unworkable.

The opinion discusses may Supreme Court precedents but relies most heavily on the great New Deal case Wickard v. Filburn. In Wickard,

[A] farmer ran afoul of his allowed wheat acreage under the Agricultural Adjustment Act of 1938 by growing additional wheat, not for sale, but to feed his family and his livestock. Filburn argued that the Act was unconstitutional as applied to him because he was not using the excess wheat for any activity in the interstate market. The Supreme Court unanimously rejected this claim. It held that even growing wheat for personal consumption, not for sale in any market, could affect the national price, and therefore was within the Commerce Clause.

This conclusion was not only because his wheat might be diverted into the national market, as was recognized in Gonzales v. Raich, 545 U.S. 1, 18-19 (2005). Justice Jackson said even “if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” Justice Jackson thus recognized that the Act “force[d] some farmers into the market to buy what they could provide for themselves.” Although a regulation limited the size of the farms covered, the logic of the opinion would apply to force any farmer, no matter how small, into buying wheat in the open market. Wickard, therefore, comes very close to authorizing a mandate similar to ours, at least indirectly, and the farmer’s “activity” could be as incidental to the regulation as simply owning a farm.

The citation of Wickard and more importantly Gonzalez v Raich is really critical. Gonzalez is a 2005 decision, in which Scalia wrote a concurring opinion. As discussed earlier this year,

in 2005, the Court decided Gonzalez v Raich, which should have much more of a bearing on the issue. Raich involved the question of whether the Federal Controlled Substances Act was Constitutional in so far as it regulated (criminalized) the private, noncommercial, growth and consumption of marijuana. The law was found to be within Congress’ Commerce Clause powers and was roundly criticized by many progressives. Whether one agrees with the result in that case or not, it does illustrates how broadly the Court, and Justice Scalia in particular, has been willing to read the powers of Congress under both the Commerce Clause and the Necessary and Proper Clause. In his concurring opinion Scalia stated,

The application of these principles to the case before us is straightforward. In the CSA [Controlled Substances Act], Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce “extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it.” To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances–both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce. (citations omitted)

To summarize, a non-economic, non-commercial, activity that occurs solely within a state can be regulated by Congress as long as it is an appropriate means for achieving a broader objective that involves regulating interstate commerce.

Anything can happen with the Supreme Court and there is reason to be skeptical about its most results oriented members. But for Scalia and the rest of the radicals on the Court to strike down the ACA they will have to find heir way around some very old and very new decisions, including a concurrence that Scalia authored.

Monday, August 29, 2011

Breaking: Supreme Court Rules Social Security Is Constitutional

Ok, as everyone who was paying attention in High School knows, this news actually broke in 1936. But Rick Perry was not paying attention so this is for him. You might enjoy it also.

Rick Perry, world renowned Constitutional scholar and bloviator of inanities par excellence, has issued his legal opinion that Social Security is unconstitutional. Perry originally issued this opinion in his book, and he restated his opinion in a political event.

And beyond expressing the results of his extensive legal research Perry has said Social Security is a lie and a ponzi scheme.

This is, of course, utter horse pucky as explained in a really great article from the hard working civil servants at the Social Security Administration designed for third grade readers that even Perry might comprehend.

The case that decided the Constitutionality of Social Security was Helvering v Davis. It was decided simultaneously with cases challenging the unemployment insurance provisions of the Social Security Act.

Now before getting to Mr Perry's position there is an important point to remember. Rick is entitled to the view that the Social Security is bad policy and he may disagree with the Helvering decision, but he is not entitled to the view that the law is Unconstitutional. As a guy who allegedly graduated from high school and went to Texas A&M he should know that since the decision in Marbury v Madison in 1803, it is settled law that the Supreme Court is the final arbiter on the question of whether a law is Constitutional. He can agree with or disagree with Supreme Court decision, but if the Court decides that a law is Constitutional that is the final word until such time as the Court reverses itself, which happens but rarely. (A&M is a school with a proud tradition and all A&M alumni should petition the school to investigate whether he truly did graduate.)

Moving on, the principle issue in the case was whether Social Security violated the Tenth Amendment. That is the provision which most Constitutional scholars say is a restatement of a truism,

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.

Or, stated another way, "the Federal Government, which did not exist before this document was ratified, and which exists only by reason of the provisions of this document, only has the powers granted to it by this document. Therefore, accordingly and obviously, all the other rights and powers that existed in the world before this document that were not given to the Federal government by this document continue to reside wherever they reside."

The Court explained that since there were provisions in the Constitution that gave the Federal Government the powers it was exercising through Social Security, there was no Tenth Amendment problem. First, the Court said,

Congress may spend money in aid of the "general welfare." . . . There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. . . . The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground, or certainly a penumbra, in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law.

Now it would seem that is something that Perry and would warm right up to. The Court is saying that Congress has broad discretion and the Court shouldn't second guess their judgement.

But the Court didn't stop there. It went on to talk about how the needs of the Nation can change and that Congress can respond to those changes.

Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the wellbeing of the Nation. What is critical or urgent changes with the times.

The purge of nationwide calamity that began in 1929 has taught us many lessons. Not the least is the solidarity of interests that may once have seemed to be divided. Unemployment spreads from State to State, the hinterland now settled that, in pioneer days gave an avenue of escape. . . . Spreading from State to State, unemployment is an ill not particular, but general, which may be checked, if Congress so determines, by the resources of the Nation. If this can have been doubtful until now, our ruling today in the case of the Steward Machine Co., supra, has set the doubt at rest. But the ill is all one, or at least not greatly different, whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house, as well as from the haunting fear that such a lot awaits them when journey's end is near.

Wow, that's some heady stuff. It's reasonable for Congress to recognize the calamities befalling the Nation and its people and try to address them.

But then the Court suggested that Congress should just not have a free hand to act willy nilly, unless it had some facts to back its actions. The Court looked at the record and found that Congress had indeed done its homework. This paragraph is a jem for the ages.

Congress did not improvise a judgment when it found that the award of old age benefits would be conducive to the general welfare. The President's Committee on Economic Security made an investigation and report, aided by a research staff of Government officers and employees, and by an Advisory Council and seven other advisory groups. Extensive hearings followed before the House Committee on Ways and Means, and the Senate Committee on Finance. A great mass of evidence was brought together supporting the policy which finds expression in the act. Among the relevant facts are these: the number of persons in the United States 65 years of age or over is increasing proportionately as well as absolutely. What is even more important, the number of such persons unable to take care of themselves is growing at a threatening pace. More and more, our population is becoming urban and industrial, instead of rural and agricultural. The evidence is impressive that, among industrial workers, the younger men and women are preferred over the older. In times of retrenchment, the older are commonly the first to go, and even if retained, their wages are likely to be lowered. The plight of men and women at so low an age as 40 is hard, almost hopeless, when they are driven to seek for reemployment. Statistics are in the brief. A few illustrations will be chosen from many there collected. In 1930, out of 224 American factories investigated, 71, or almost one third, had fixed maximum hiring age limits; in 4 plants, the limit was under 40; in 41, it was under 46. In the other 153 plants, there were no fixed limits, but in practice few were hired if they were over 50 years of age. [n6] With the loss of savings inevitable in periods of idleness, [p*643] the fate of workers over 65, when thrown out of work, is little less than desperate. A recent study of the Social Security Board informs us that one-fifth of the aged in the United States were receiving old-age assistance, emergency relief, institutional care, employment under the works program, or some other form of aid from public or private funds; two-fifths to one-half were dependent on friends and relatives, one-eighth had some income from earnings, and possibly one-sixth had some savings or property. Approximately three out of four persons 65 or over were probably dependent wholly or partially on others for support. [n7]
Bolding Added.

This was written in 1936. 1936. It could have been written today.

And here is where the Court puts the stake in the heart of the tenthers and their fellow travelers. This is a national problem that cannot be dealt with by the States separately.

The problem is plainly national in area and dimensions. Moreover, laws of the separate states cannot deal with it effectively. Congress, at least, had a basis for that belief. States and local governments are often lacking in the resources that are necessary to finance an adequate program of security for the aged. This is brought out with a wealth of illustration in recent studies of the problem. [n9] Apart from the failure of resources, states and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors. We have seen this in our study of the problem of unemployment compensation. Steward Machine Co. v. Davis, supra. A system of old age pensions has special dangers of its own if put in force in one state and rejected in another. The existence of such a system is a bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose. Only a power that is national can serve the interests of all.

This last paragraph is a verbal back of the hand to all the bozos that existed then and their offspring who are with us today who argued that Social Security would breed dependancy.

Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield.

Look Rick, the law is Constitutional. You may not like it. Fine. But that doesn't affect its legality. And on a political note. you should tread lightly. Americans know where they've been, know where they are, and know where you want to take them. The hole you are falling in to is really deep.

Sunday, August 21, 2011

Important Teacher Free Speech Decision With Ironic Twist

The Ninth Circuit issued a decision on August 19, 2011 which is an important victory for teachers and academic freedom in school. In Farnan v Capistrano Unified School District the court ruled that a high school teacher could not be sued for violating the Constitutional rights of a student who alleged that the teacher had made disparaging comments about religion, and Christianity in particular.

This case is important because it reinforces the academic freedom we expect to be granted our teachers, even those in high school. But it also demonstrates something that lawyers are familiar with but which can be frustrating for others. One of the precedents relied on in this case was a very recent Supreme Court decision that immunized Attorney General John Ashcroft from suit, a ruling that most civil libertarians disagree with. But first, the Farnan case.

The facts in the Farnan case are straightforward. Farnan was a fifteen year old student in an advanced placement course on European history. The course materials made clear that the role of religion would be discussed at length. During the discussions, the teacher, James Corbett, made some very pointed remarks about how serfs were duped by their religious beliefs and how the churches manipulated them. He compared the situation of the serfs to Republican voters in red states who are influenced by religion. He also equated belief in religion to belief in the Spaghetti Monster behind the moon. Here's an example,

I mean, all I’m saying is that, you know, the people who want to make the argument that God did it, there is as much evidence that God did it as there is that there is a giant spaghetti monster living behind the moon who did it. . . .

Farnan the student, took offense, but instead of talking to his teacher, he quit the class and sued. He argued that his first Amendment right to free exercise of religion and against the establishment of religion were violated and that he was entitled to relief under 42 USC 1983. That is the 1871 civil rights statute which is used to sue government officials for Constitutional violations.

The Court noted at the outset that the potential for liability existed because the Establishment Clause applies “not only to official condonement of a particular religion or religious belief, but also to official disapproval or hostility toward religion." Though having reached that threshold, the Circuit dismissed the lawsuit because it found the teacher Corbett was entitled to qualified immunity from suit. It reached this result by applying the two part test for qualified immunity,

(1) whether, taking the facts in the light most favorable to the nonmoving party, the government official’s conduct violated a constitutional right, and (2) whether the right was clearly established at the time of the alleged misconduct.

The court noted that you need only meet one part of the test to find immunity and in this case the court held that the second test was not satisfied.

We have little trouble concluding that the law was not clearly established at the time of the events in question — there has never been any reported case holding that a teacher violated the Establishment Clause by making statements in the classroom that were allegedly hostile to religion.

While that was the basis for the decision and could have been the end of the discussion the court went on to describe why it thought Corbett's statements were not Constitutionally inappropriate.

The Supreme Court has long recognized the importance of protecting the “robust exchange of ideas” in education, “which discovers truth ‘out of a multitude of tongues.’ . . . This academic freedom will sometimes lead to the examination of controversial issues. Both parties agree that AP Euro could not be taught without discussing religion. We have no doubt that the freedom to have a frank discussion about the role of religion in history is an integral part of any advanced history course. Indeed, a collective of organizations including the American Association of School Administrators, American Federation of Teachers, National Education Association and National School Boards Association, has long acknowledged that “[b]ecause religion plays a significant role in history and society, study about religion is essential to understanding both the nation and the world.”

. . .

In broaching controversial issues like religion, teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority. . . . But teachers must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.

It is a good well reasoned decision, but will it stand if it is appealed to the Supreme Court? Well, that's the rub. Because in reaching this decision the Ninth Circuit relied on a two month old Supreme Court decision of al-Kidd v Ashcroft in which The Supreme Court reversed the Ninth's ruling with very harsh language. In that case, Al-Kidd was arrested and detained under the material witness statute. He sued Ashcroft arguing that the statute was used as a pretext to detain him. The Supreme Court said that Ashcroft was eligible for qualified immunity because at the time of al-Kidd's arrest, "not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional."

We hold that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Because Ashcroft did not violate clearly established law, we need not address the more difficult question whether he enjoys absolute immunity.

In writing its decision in Al-Kidd, Scalia castigate the Ninth Circuit for its contrary ruling, saying

We have repeatedly told courts—and the Ninth Circuit in particular, . . . not to define clearly established law at a high level of generality. . . . The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.

Whether one agrees with the Al-Kidd ruling or not, the standard is clear. And that standard was applied in the Farnan case. A reversal by the Supreme Court would require some legal contortions by Scalia and the rest of the conservatives, the like of which might be difficult even for them.

One final note. This case is in marked contrast to the recent 7th Circuit decision in Vance v Rumsfeld where the court held that Rumsfeld could be sued for violating the Constitutional rights of Americans in a war zone. The court held that Rumsfeld was not entitled to qualified immunity because,

The law was clearly established in 2006 that the treatment plaintiffs have alleged was unconstitutional. No reasonable public official could have believed otherwise.

Here we have the opposite. A case where there is no hint from statutes or prior decisions that the actions are unconstitutional and, beyond that, where the court has serious doubts that they are unconstitutional.

Tuesday, August 09, 2011

First Time. Court Of Appeals Says Rumsfeld Can Be Sued For Constitutional Rights Violations

The Seventh Circuit issued a decision in Vance v Rumsfeld that is a first for a court of appeals. The decision holds the Donald Rumsfeld can be sued in his personal capacity for violating the Constitutional rights of American Citizens. This comes on the heels of the District Court decision last week in Doe v Rumsfeld that also allowed a suit by a citizen against Rumsfeld to proceed.

The court did not rule that the plaintiff's rights had in fact been violated. That is yet to be decided. But it did hold that the case could proceed and Rumsfeld could be personally liable if the allegations are proved.

The Court noted that the government supported its opposition to the case going forward solely on the bases of cases involving suits by non citizens. In rejecting those arguments the Court stated,

Whether or not one agrees with those decisions, the difficult issues posed by aliens’ claims should not lead courts to extend the reasoning in those cases to deny all civil remedies to civilian U.S. citizens who have been tortured by their own government, in violation of the most fundamental guarantees in the constitutional pact between citizens and our government.


The facts in the case tell a lengthy and chilling story. Here are some highlights from the opinion,

Vance and Ertel, two young American civilians, . . .worked for a privately-owned Iraqi security services company, Shield Group Security. . . . Over time, Vance became suspicious that the company was involved with corruption and other illegal activity.

. . . .

While Vance was home in Chicago for his father’s funeral, he contacted U.S. government officials to report his suspicions. He met with an FBI agent, who arranged for Vance to continue reporting suspicious activity back to Chicago. The FBI agent also requested that Vance meet U.S. government officials in Iraq to report his observations.

. . .

Vance told his friend and colleague Ertel that he had become an informant, and Ertel contributed information as well. The plaintiffs were frequently in touch with their government contacts, sometimes multiple times a day.

. . . .

Shield Group Security officials became suspicious about the plaintiffs’ loyalty to the firm. . . . Plaintiffs called their U.S. government contacts in Iraq for help. They were told that they should interpret Shield Group Security’s actions as taking them hostage, and should barricade themselves with weapons in a room of the compound. . . .

They were awakened and arrested, handcuffed, blindfolded, and driven to Camp Prosperity, a U.S. military compound in Baghdad. . . they were placed in a cage, strip-searched, fingerprinted, and issued jumpsuits . . . and held incommunicado in their cells . . . They each had a thin mat on concrete on which to sleep, but the lights were kept on 24 hours a day.

After two days, Vance and Ertel were shackled, blindfolded, and transported to Camp Cropper, a U.S. military facility near Baghdad International Airport. [They were held] incommunicado, in solitary confinement, and subjected to physical and psychological torture for the duration of their imprisonment — Vance for three months and Ertel for six weeks. . . [T]hey were strip-searched while still blindfolded, . . . held in solitary confinement, in small, cold, dirty cells and subjected to torturous techniques forbidden by the Army Field Manual and the Detainee Treatment Act. . . . The lights were kept on at all times in their cells, so that the plaintiffs experienced “no darkness day after day” for the entire duration of their time at Camp Cropper. . . . Their cells were kept intolerably cold, except when the generators failed. . . . There were bugs and feces on the walls of the cells, in which they spent most of their time in complete isolation.

. . .

Vance and Ertel were never charged with any crime or other wrongdoing, nor were they designated as security threats. Instead, both were eventually released and dropped off at the airport in Baghdad to find their way home.

This is a very lengthy decision, much of which is devoted to procedural questions. But its main conclusion is that a suit against a government official for Constitutional violations, a so-called Bivens suit, can be tried even for actions in a war zone. It should also be noted that there was a dissenting judge who thought extension of Bivens remedies into war zones was a step too far.

In order to hear a Bivens case courts do a two part analysis. First, the court must determine if there is an alternative remedy. In this case the Court found none. Second, the Court examines whether there are special circumstances in the case that caution against allowing the case to proceed. In this case the government argued that since the alleged violations occurred in a war zone, that is a special factor which should preclude the case moving forward.

The Court summarized the Government's position thusly,

The unprecedented breadth of defendants’ argument should not be overlooked. The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone. The defendants’ theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom.

In rejecting this argument the court stated,

Our courts have a long history — more than 200 years — of providing damages remedies for those whose rights are violated by our government, including our military.

. . .

If we were to accept the defendants’ invitation to recognize the broad and unprecedented immunity they seek, then the judicial branch — which is charged with enforcing constitutional rights — would be leaving our citizens defenseless to serious abuse or worse by another branch of their own government. We recognize that wrongdoers in the military would still be subject to criminal pros-ecution within the military itself. Relying solely on the military to police its own treatment of civilians, however, would amount to an extraordinary abdication of our government’s checks and balances that preserve Americans’ liberty.

If this case goes to trial and if it comes back to this Court on appeal, here is a little taste of the Court's view of the heinous nature of the allegations.

Examining the plaintiffs’ claims against the backdrop of the Supreme Court’s decisions on prison conditions of confinement and prison treatment cases, we remember that abuse in American prisons was once authorized and even thought of as part of the punishment of prisoners. . . chaining inmates to one another and to hitching posts in the hot sun . . . the lashing of inmates with a “wooden-handled leather strap five feet long and four inches wide” as part of authorized corporal punishment program . . . the use of a “Tucker telephone,” a hand-cranked instrument “used to administer electrical shocks to various sensitive parts of an inmate’s body" . . . . . .

Today, the idea that a prisoner in a U.S. prison might be abused in such a manner and not have judicial recourse is unthinkable. While the Constitution “does not mandate comfortable prisons, . . . neither does it permit inhumane ones.” Farmer, 511 U.S. at 832 (citations omitted) (noting that the Eighth Amendment requires that prison officials “ensure that inmates receive adequate food, clothing, shelter, and medical care, and . . . ‘take reasonable measures to guarantee the safety of the inmates’”). If a prisoner in a U.S. prison had his head covered and was repeatedly “walled,” or slammed into walls on the way to interrogation sessions, we would have no trouble acknowledging that his well-pled allegations, if true, would describe a violation of his constitutional rights.

. . .

If a prisoner was kept awake as much as possible, kept in insufferably cold conditions, and not given sufficient bedding or clothing, we would likewise believe that there could well have been a violation of his constitutional rights.

. . . .

The plaintiffs in this case, detained without charges, have pled in detail allegations of such severe conditions and treatment, the likes of which courts have held unconstitutional when applied to convicted criminals in U.S. prisons. The allegations of abuse state claims for violations of the constitutional right not to be deprived of liberty without substantive due process of law.

One last thought. The wheels of justice grind slow but they grind fine.

Also published at September 17, 1787.

Tuesday, July 26, 2011

Looking Forward, Obama Faces Two Choices This Weekend

It is increasingly clear that the debt limit will not be raised before we default, which means we will run out of sufficient funds to pay our bills. Before that happens the President will have to choose between two options. He can announce that he has the authority to ignore the debt limit and order the Treasury to continue issuing debt. Or, he can announce that the Treasury will begin to delay or stop payment on bills as they come due. Each choice is fraught with risks.

Here are the basic facts. Starting week after next, if we cannot borrow, the Treasury will receive tax receipts that will only allow it to pay about 56% of its expected bills for the month. Projections for the entire month show $210B of revenue to pay $375B of bills. That means for very $100 in bills only $56 will go out. Those bills are for everything: salaries, contractors, Social Security, and thousands of other categories totaling 70 million checks per month.

The President's first option is to issue an Executive Order announcing he has directed the Secretary of Treasury to continue issing debt, nothwithstanding the debt ceiling. He will cite as authority some emergency power of the President and support it with determinations that the debt limit conflicts with one or more provisions of the Constitution and/or other Federal Statutes. It is not the purpose of this article to discuss the merits of those legal argument. The 14th Amendment argument is discussed here. Some lawyers think the arguments are strong, others think they are weak. Whatever side one comes down on it is sufficient to say there are colorable legal arguments that can be made by the President if he so choses and decides to leave it for later to fight the issue out in the courts.

The President has a second option. He can declare that once borrowing stops he will have to curtail or delay the payment of bills. He has three choices for distributing limited funds. He can decide to pay some bills and not others, essentially choosing winners and losers. He can decide that all bills will be paid on a pro rata basis. Or he can simply decide that bills will paid in the order they are due. No matter what course he choses it is probable that interest payments on debt held by the public will always be paid on time. The same is probably true for Congressional salaries given the 27th Amendment, but he may want to litigate that also.

My guess is that he will choose the last course. Choosing winners and losers introduces a whole host of other problems and has questionable legal authority. Pro-rata payment would be fine, but the complexity of administering that over time would be immense. Paying bills on a first in first out option is the easiest politically and operationally.

If he choses that option it will mean, for instance, that August Social Security checks will be late. Those paid early in the month may only be a week late, but as the month progresses, the delays will increase. And the delay will be compounded in September. The same will be true for Medicare payments to Doctors, hospitals and for medicines, payments to states for Medicaid and unemployment, checks to members of the military and all other government workers, and payments to all Federal contractors, etc.

If I had to bet, I would say the President is not going to announce he can issue debt above the debt limit because that would be a truly profound assertion of Presidential power. Let's be clear. We are talking about the President having the power to unilaterally decide whether he will comply with laws that are duly enacted by Congress and signed by the President. To the best of my knowledge no President has done that, in this way, since Lincoln suspended the Habeas Corpus provisions of the Judiciary Act of 1789. The action was challenged by a prisoner but Lincoln ignored a court decision which ruled the action Unconstitutional. Eventually, however, Congress essentially ratified his action.

This is not the same as the President's decision to not defend the Constitutionality of DOMA, the Defense of Marriage Act. In the case of DOMA, the Constitutionality of the law had been challenged in court. The President decided that the law was no longer Constitutionally defensible and argued that position in court. However, he also announced that he would continue to enforce DOMA until the courts struck it down.

This is not like the President's decision regarding Libya and the War Powers Act. While all Presidents have questioned the Constitutionality of the War Powers Act, all have generally complied with it. In the case of Libya, the President is arguing that he has consulted with Congress and in any event the Act doesn't apply because we aren't involved in hostilities. Whether one agrees or disagrees with the President's position he is clearly not taking the position that he even though the Act applies he is violating it based on his determination of its Constitutionality.

In the case of the debt limit the President would be directing the Treasury to ignore a law that clearly applied to its actions. He would be doing so even though the law has not been challenged let alone held to be Unconstitutional by a court.

Virtually all legal scholars believe that the President has a duty to enforce the law regardless of what he thinks about it because all laws that are duly enacted are presumptively Constitutional. This is a basic tenet of our legal system that was recently referred to in the 6th Circuit Decision upholding the Affordable Care Act

The minimum coverage provision, like all congressional enactments, is entitled to a “presumption of constitutionality,” and will be invalidated only upon a “plain showing that Congress has exceeded its constitutional bounds.” . . . The presumption that the minimum coverage provision is valid is “not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power . . .(citations omitted).

No Court has held that the President has the power to issue a binding ruling that any law, such as the debt limit, is Unconstitutional. Rather the courts have held that such power resides in the Supreme Court. Since the 1803 case of Marbury v Madison it has been accepted that only the Court can declare a law Unconstitutional. Unless that happens or until it is repealed, the debt limit is the law of the land.

Most Presidents have respected position and the circumstances where laws have been ignored are rare. President Obama may decide that this situation presents an emergency with such consequences that he needs to assert the authority to ignore the law. But I suspect he won't. He takes the long view and opening this pandora's box would be fraught with greater risks for our country than dealing with the problems associated with having insufficient funds to pay our bills on time.

Whichever course he choses he will need to announce it before the debt ceiling is hit. If he choses not to assert the authority to override the debt limit then the sooner he announces that, the better. Yes, he is concerned about spooking the market. But such an announcement may finally light a fire under the Tea Party voters when they understand that they will be impacted financially. We can only hope. One thing is for certain. The time for appeals for bi-partisanship and compromise is over. It is time for a lesson in stark reality.

Sunday, July 24, 2011

Time To Give Republican Voters A Dose Of Reality

The only thing that will cause the Republicans in the House to pull back from the cliff is for their voters to start screaming at them. That will only happen when those voters understand how default will affect them personally, in the pocketbook. The President has talked in vague terms about those affects. But he has been trying to avoid panic in the markets as well as in the public. At this point, panic is the only weapon he has left.

People need to be told what payments will be delayed or not made. We are talking about checks for Social Security and veterans, to government contractors, to states for Medicaid and other things, just to name a few. They also need to know what federal services will be halted because of a lack of funding.

Starting week after next, if we cannot borrow, the Treasury will receive tax receipts that will only allow it to pay to about 56% of its expected bills for the month. Projections for the entire month show $210B of revenue to pay $375B of bills. That means for very $100 in bills only $56 will go out.

Most people don't understand or care about "the markets," interest on bonds and all that other stuff. They do care about their own checkbooks. Well, starting in the first week of August those checkbooks will all take a hit. There is hardly a person who will not be directly or indirectly affected when those checks are delayed or stop coming entirely.

There may be a few item, such as interest, that have a statutory preference for payment. For everything else the President has essentially three choices in distributing limited funds. He can decide on winners and losers by paying some and not others. He can pay them all on a pro rata basis. Or he can simply have them paid in the order they are due. My guess is that he will choose the last course.

Nothing will get the Tea Party voters calling their Members of Congress faster than to be told in explicit terms, with amounts and dates, that their August Social Security check will be three weeks late, their September check will be seven weeks late, and that Medicare payments for their Doctors, hospitals and medicines will not be paid on time and could be delayed months.

It is time to tell these people the truth. And if that causes panic, so much the better. Because it will take their panicked calls to the legislators to bring about a change.

One other thing. There are some who think that since moneys have been appropriated they have to be spent and that sets up a conflict between the appropriations laws and the debt limit law. No such conflict exists.

Appropriations acts tell the president to spend. The debt ceiling does not tell him not to spend, it merely prohibits him from borrowing. This is a critical distinction because each appropriations act begins like this,

"The following sums are appropriated, out of any money in the Treasury not otherwise appropriated."

The key words are "out of any money in the Treasury." The appropriations acts only direct the President to spend money that is in the Treasury. They do not direct that money be put in the Treasury. The laws that do that are the laws that impose taxes which are deposited in the Treasury and the laws that authorize borrowing, the proceeds of which are put in the Treasury. The debt ceiling operates as a limit on that borrowing power. Bottom line, if there is no money in the Treasury the appropriations act doesn't appropriate anything.

When you hit the debt limit the only money "in the Treasury" is money from tax receipts. And that money is all the money the Treasury can spend. This is not a situation involving impoundment of funds, whether by rescission or deferral. They are governed by The Budget and Impoundment Control Act of 1974 They involve situations where there is ample money in the Treasury, acquired by taxes or through borrowing, and the President decides to not spend some of it. In this instance there is insufficient money in the Treasury to pay the bills because tax receipts are too low and there is no authority to borrow more.

Sunday, July 10, 2011

Treasury General Counsel Nixes Constitutional Challenge To Debt Limit

The General Counsel of the Treasury Department took the 14th Amendment off the table when he sent a letter to the NYT saying that the debt limit law is binding. Here is the text:
The New York Times
620 Eighth Avenue
New York, NY 10018

To the Editor:

Contrary to Professor Laurence Tribe’s assertion (Op-Ed, July 8), Secretary Geithner has never argued that the 14th Amendment to the U.S. Constitution allows the President to disregard the statutory debt limit. As Professor Tribe notes, the Constitution explicitly places the borrowing authority with Congress, not the President.

The Secretary has cited the 14th Amendment’s command that “[t]he validity of the public debt of the United States… shall not be questioned” in support of his strong conviction that Congress has an obligation to ensure we are able to honor the obligations of the United States. Like every previous Secretary of the Treasury who has confronted the question, Secretary Geithner has always viewed the debt limit as a binding legal constraint that can only be raised by Congress.


George W. Madison
General Counsel

Posted in: Debt Limit

He doesn't clarify why it is a binding restraint. It could be that he doesn't think the debt limit is inconsistent with the 14th Amendment. Or, as was suggested in this article, it could be his opinion that the President cannot violate a law based on a non-court sanctioned determination that the law is Unconstitutional.

I happen to think that the second argument is the more likely, but certainly don't know. I reached that opinion because since 1803 the Supreme Court has made clear that the Courts alone have the power to declare laws Unconstitutional. While the President could order Treasury to issue new debt in violation of the debt limit and fight it out later in Court, I don't think he wants to risk the firestorm that would arise. He would get attacked by Democrats as well as Republicans for such an act and I suspect he feels that he has enough other issues on his plate.

Friday, July 01, 2011

Can The President Ignore The Debt Limit If He Thinks It is Unconstitutional

The real question in the debate on the Constitutionality of the debt limit is not whether it is Constitutional but whether the President can ignore the law based on his unilateral determination regarding its Constitutionality. If he took such an action it would be a truly profound assertion of Presidential power. As much as this could be viewed as a righteous assertion of Presidential authority in the face of an irresponsible Republican cabal in Congress, once asserted, this power will continue to be available. It will be used again.

Before getting to that issue, here's a brief discussion of the debate regarding the debt limit.

There is a law that limits the amount of money the United States can borrow, the total amount it can owe at any one time. It reads

31 USC 3101(b) The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaranteed by the United States Government (except guaranteed obligations held by the Secretary of the Treasury) may not be more than $14,294,000,000,000, outstanding at one time, . . . .

The Treasury reached that $14B limit in May. Here is a comprehensive Congressional Research Service Report report explaining the history and operations of the debt limit. Since May, Treasury has used some "extraordinary" powers, such as canceling Civil Service Retirement Fund obligations, to keep paying the bills.

But on August 2, 2011, Treasury will reach the limits of its authority. Beginning then and each month thereafter we will have two dollars of income for every three dollars of bills that must be paid. Choices will then be made between honoring obligations to bondholders, honoring contracts to vendors and suppliers, honoring statutory obligations to social security recipients, soldiers and other Federal employees, complying with statutory Medicare obligations to doctors and hospitals, and other obligations to states and municipalities, just to name a few.

Since the Republicans are quickly converting the possibility of defaulting on these financial, contractual and statutory obligations from an academic question into a real potential nightmare people have wondered whether that debt limit law is even Constitutional. After all,

Section four of the 14th Amendment reads,
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The debate on the 14th Amendment is examined in an article by Jack Balkin in which he concludes,

What do we learn from this history? If Wade's speech offers the central rationale for Section Four, the goal was to remove threats of default on federal debts from partisan struggle. Reconstruction Republicans feared that Democrats, once admitted to Congress would use their majorities to default on obligations they did disliked politically. More generally, as Wade explained, "every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress."

It is not he purpose of this article to debate whether the debt limit violates the 14th Amendment. It is sufficient to say that reasonable legal arguments can be made to support that position. The language is broad, covering not just debt instrument but other obligations , including statutory obligations to pensioners. The language goes to all debts, not just civil war debts. And the purpose was to keep subsequent Congresses from reneging on the obligations incurred by prior Congresses. The broad reach of the language is discussed in the Supreme Court decision, Perry v United States. In any event, there is a sound basis for the President to assert that the debt limit is Unconstitutional.

In fact some in Congress have suggested he may do just that. Today Senator Schumer suggested that the President could ignore the debt limit law, but cautioned that it was premature to take such action and that it was not without risks.

Risks? You bet. And any such action would be a truly profound assertion of Presidential power. Let's be clear. We are talking about the President having the power to unilaterally decide whether he will comply with laws that are duly enacted by Congress and signed by the President.

This is not the same as the President's decision to not defend the Constitutionality of DOMA, the Defense of Marriage Act. In the case of DOMA, the Constitutionality of the law had been challenged in court. The President decided that the law was no longer Constitutionally defensible and argued that position in court. However, he also announced that he would continue to enforce DOMA until the courts struck it down.

This is not like the President's decision regarding Libya and the War Powers Act. While all Presidents have questioned the Constitutionality of the War Powers Act, all have generally complied with it. In the case of Libya, the President is arguing that he has consulted with Congress and in any event the Act doesn't apply because we aren't involved in hostilities. Whether one agrees or disagrees with the President's position he is clearly not taking the position that he even though the Act applies he is violating it based on his determination of its Constitutionality.

In the case of the debt limit the President would be ignoring and violating a law that clearly applied to his actions. He would be doing so even though the law has not been challenged let alone held to be Unconstitutional by a court.

Most legal scholars believe that the President has a duty to enforce the law regardless of what he thinks about it. This obligation arises from the Article II obligation of the president to faithfully execute the laws. The obligation to faithfully execute those laws is also in the Presidential oath,

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

By that oath he President swore to faithfully execute the Office of President. Foremost among the duties of the office are to "take care that the laws be faithfully executed." The debt limit law, 31 UC 3101 is one of those laws.

All laws that are duly enacted a presumptively Constitutional. This is a basic tenet of our legal system that was recently referred to in the 6th Circuit Decision upholding the Affordable Care Act

The minimum coverage provision, like all congressional enactments, is entitled to a “presumption of constitutionality,” and will be invalidated only upon a “plain showing that Congress has exceeded its constitutional bounds.” . . . The presumption that the minimum coverage provision is valid is “not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power . . .(citations omitted).

No Court has held that the President has the power to issue a binding ruling that any law, such as the debt limit, is Unconstitutional. Rather the courts have held that such power resides in the Supreme Court. Since the 1803 case of Marbury v Madison it has been accepted that only the Court can declare a law Unconstitutional. Unless that happens or until it is repealed, the debt limit is the law of the land. If a President is presented with a law that he thinks is Unconstitutional he should not sign it. The same applies to every Member of Congress who votes on a law. But once passed and signed, it is the law.

There are some legal scholars who disagree, arguing that the President has no more obligation to enforce laws he thinks are Unconstitutional than to enforce the laws of another country. The scholars who hold that view embrace the concept of an imperial Presidency. Thankfully, that is a minority view.

The issue is simple and straightforward: "who decides if a law is Constitutional." If the President does, then there are only two branches of government and the Presidency can override the legislature at its will. If both the Court and the President decide, you have uncertainty and chaos because there is no ability to reconcile conflicting positions. It the decision rests with the Court, you have certainty, order, and a true separation of powers. Thankfully, most Presidents have respected this third view and the circumstances where laws have been ignored are rare. And I think President Obama will also respect this position. He takes the long view and opening this pandora's box would be fraught with risk for our country. He won't go there.

Sunday, June 26, 2011

There Is A Little Justice

Tea Party candidate for Senate Joe Miller has been ordered by an Alaska Court to cough up part of the State's expenses in rejecting Miller's spurious challenge to last year's election results.

Remember Miller? He was the Sarah Palin and Tea Party (AKA Right Wing Of The Republican Party) darling who beat Lisa Murkowski in the Republican primary for Senate. She turned around and ran an improbable write in campaign that trounced Miller by 4.5 percentage points. Rather than accept the clear rejection by the voters, which was historic for a write in candidate, Miller sued to overturn the results. First he got a Federal Court to temporarily block certification of the election results, and then the case was kicked to the State courts. His argument that elections officials had improperly counted write-in ballots was rejected by a Superior Court judge and that ruling that was upheld at the Alasaka Supreme Court. Miller tried once again to get the Federal court to intervene but the judge told him to go fish.

All of this litigation cost the State of Alaska a ton of money and that gave rise to this suit. Alaska sued Miller to have him reimburse the state for part of its costs in defending against Millers legal challenges to the election. The State Court agreed with Alaska and ordered Miller to pay $17,500.

But here is the really rich part. The whole question in this suit was whether Miller had challenged the election results for his own personal benefit or whether he was trying to vindicate some public interest.The court held that clearly he was only acting for his personal benefit. As reported by Reuters the Court held
that Miller did not qualify as a public interest litigant because his lawsuit sought to secure something of value for himself: A Senate seat with a $174,000-a-year salary and other personal benefits.

"The main thrust of this action was not, in this court's view, to altruistically promote and preserve constitutional protections, but to win an election, with the political and pecuniary benefits that would accrue thereby, . . ."

Talk about stating the obvious.

But, of course, that's not how Miller sees it. For him, it wasn't about trying to get a Senate seat, or the salary or none of that. No. He was on a glorious Mission on behalf of the Baggers to save the country. Or, in Miller's words,
"The Tea Party revolution is not about salary, position, or prestige: it's about bringing America back to its constitutional foundations, where the rule of the law rather than the ruling class prevails," Miller said in the statement.

It's hard to know whether to laugh or cry when reading this self serving drivel.

Can't wait to see if Miller decides to continue his holy crusade by appealing this decision.

Wednesday, May 25, 2011

When Quoting the Constitution, Quote The Constitution

There are a host of Republican candidates and officials speaking about the Constitution. Most of them demonstrate absolutely no understanding of its text or how it has been interpreted by the courts. But once in a while, one of them raises the ignorance quotient to a new level

Such was the Case with Herman Cain who admonished his audience recently
We don’t need to rewrite the Constitution of the United States of America, we need to reread the Constitution and enforce the Constitution

Understanding that his audience was not comprised of Constitutional scholars of his calibre, he went on to quote what he thought was the critical part of the Constitution,
And I know that there are some people that are not going to do that, so for the benefit of those that are not going to read it because they don’t want us to go by the Constitution, there’s a little section in there that talks about life, liberty and the pursuit of happiness.”

And the Mr. Cain quoted the Constitutional coup de grace

"Because that’s when it says when any form of government becomes destructive of those ideals, it is the right of the people to alter or abolish it

Unfortunately, those words are not in the Constitution. They are in the Declaration of Independence. So apparently Mr. Cain's Constitutional studies stopped at the year 1776, when we were declaring our right to separate from Britain.

He hasn't yet learned that in 1781 we set up a country under the Articles of Confederation, a Government where the Federal government was very weak and most powers resided in the states. It was the kind of weak government that he, the baggers and the rest of the Republicans love.

He also doesn't appear to know that within a few short years there was a widespread view that Governmental structure of the Articles was unworkable. That concern led to a Constitutional Convention, and in 1787 a new Constitution was adopted, the one we have today. And this Constitution established powers in the Federal Government that were sufficient strong that it would be able to "establish Justice, insure Domestic Tranquility, provide for the Common Defense, promote the General Welfare, and secure the Blessings of Liberty to ourselves and our posterity."

I really should not pick on Cain. He is not alone among the Republican candidates and many Republican office holders. They live in a fact free cartoon world of people who dress up in 18th Century costumes. Their statements do not demonstrate a level of knowledge about our government or our history that would be sufficient to pass an Eighth Grade civics or history class. And all the while they lecture each other and us on the fine points of our Constitution.

"Netanyahu has no plan; he is leading us to a conflict with the world"

One thing you won't read in the US press very often and you definitely will not hear from members of Congress is the type of discussion of Benjamin Netanyahu and Israeli policies that you hear every day in Israel. So while Congress was treating Netanyahu like a rock star cross between George Washington, Abe Lincoln and Elvis Presley, this is what members of the Israeli Knesset were saying about his speech, as reported by the Jerusalem Post.

From the Kadima Party, that opposes Netanyahu's Likud, MK Shaul Mofaz said
Netanyahu didn't say anything new. . . He has no plan; he is leading us to a conflict with the world in September and if the people of Israel have a choice between conflict and elections, I'm confident that they will choose elections.

Another Kadima Member of the Knesset explained the raw political context of the speech,
"Netanyahu's speech to Congress was an election commercial ... an attempt by Netanyahu to present a false impression that he is willing to enter negotiations," Hasson said. "The people of Israel should not be enticed and should understand that Netanyahu's policies will lead not only to international isolation, but also to a binational state."

And on the much discussed 1967 borders,
MK Zehava Gal-On of Meretz did not mince words in her reaction. Calling the Prime Minister "dangerous" and "extremist," she said, "They cheer in Congress while in the Middle East the catastophe goes on."

Gal-On condemned Netanyahu's stance that Israel would never return to 1967 borders. "Even Netanyahu knows that there is no such thing as peace that is not based on '67 borders and dividing Jerusalem. [His views] reject peace and will lead Israel to international isolation."

Of course, Netanyahu did have his supporters among his own party such as Gidon Sa'ar, who said
There's no statesmen in Israel or the world who could present the case for Israel as strongly as Netanyahu could . . . [Netanyahu] expressed willingness for concessions with a real Palestinian partner but the Palestinian response to his speech indicates that there isn't one."

Then, there was the extreme right wing of Israeli politics represented by National Union MK Aryeh Eldad who said
Netanyahu received the greatest applause when he said that Israel is the land of our forefathers and that Jerusalem will not be divided. So there was no need for him to declare that he is willing to give up large portions of our homeland to the Arabs. Saying that he is willing to abandon settlements will only encourage the Arabs to ask for more and we are liable to pay for this in blood.

These are but examples of the differences of opinion and sometimes scathing denunciations of Israeli policies that come from Israeli politicians but are somehow off limits in the US Congress.

And on the dispute between Obama and Netanyahu the newspaper Haaretz didn't pull any punches when it said that Obama was on the side of Israel and Netanyahu was not,

Obama stressed that only a peace agreement with the Palestinians based on the 1967 lines can ensure that Israel will continue to be a Jewish and democratic state and prevent unilateral recognition of a Palestinian state by the UN General Assembly. Yesterday, the European Union's foreign policy chief, Catherine Ashton, backed Obama, as did the other members of the Quartet.

The refusal by Netanyahu and his political allies to recognize the 1967 borders as a starting point leads permanent-status negotiations into a dead end. From there, the road is short to violent confrontation with the Palestinians, diplomatic isolation and perhaps even economic sanctions.

Imagine that.

Sunday, May 22, 2011

Nine Of The Ten Highest Paying Jobs Are Doctors

Nine of the ten highest compensated jobs in America are in the healthcare field. Yes, nine out of ten. And those compensation levels are far above the levels paid in other countries.

The Bureau of Labor Statistics just issued the 2010 OCCUPATIONAL EMPLOYMENT AND WAGES Report which lists all the jobs in America, how many people work in them and their median and mean annual and hourly wages. Here are the top ten
Surgeons - $225,390
Anesthesiologists - $220,100
Oral Surgeons - $214,120
OB-GYN - $210,340
Orthodontists - $200,292
Internists - $189,480
Other Physicians - $180,870
General Practitioners - $173,850
Chief Executive Officers - $173,350
Psychiatrists - $167,610

Now these are national median wages. Some will be lower and some much higher. But they clearly demonstrate how high the compensation of doctors is when compared with the rest of the jobs in the country. By way of comparison, the median wage for lawyers was $129,440, for airline pilots was $115,300, Engineering Professors was $$96,480 and for all occupations in 2010 was $44,410.

So how do U.S. doctors compare to their counterparts in the rest of the world. The New York Times published an article providing those comparisons and doing it in a most useful way. Rather than just doing dollar comparisons, they adjusted wages for their relative purchasing power in each country,which appears in this graph. For General Practitioners, the US figure was $161,000, the highest other country was Great Britain with $118,000 and the median wage was $80,000. For Specialists, the U.S. was not first at $230,000. The honors went to the Netherlands at $$253,000 and Australia at $247,000. But the US was far above the median of $83,000.

Remember, these are not straight dollar comparisons. They are adjusted for purchasing-power parity — that is, adjusting the numbers so that $1,000 of salary buys the same amount of goods and services in every country. This provides a general sense of a physician’s standard of living in each nation.

No one would suggest that doctor salaries are the only contributor to the high cost of health care in this country compared with other countries. But it certainly is one of the factors. And I certainly hope than any doctor inclined to whine about how much he earns should take a moment to consider how well of he is compared with the average worker, including other professional workers, in the US and to his counterparts in other countries.

Monday, May 09, 2011

April 18, 1943 - May 1, 2011

An elaborate plan is hatched. Using the most sophisticated technical resources available the United States pinpoints the location of one of its most hated enemies. Employing the most sophisticated military resources available that person is targeted and killed. At the time of his death he was unarmed and not aware of the attack until it was too late. His death caused great rejoicing in the United States and was a severe psychological blow to the enemy.

While this may sound an awful lot like the May 1, 2011 killing of Osama bin Laden, it is also a description of the April 18, 1943 death of Admiral Isoroku Yamamoto. No analogies are perfect. There are always differences. But in all significant respects, the killing of Admiral Yamamoto is mirrored by the killing of Osama bin Laden.

Before discussing those similarities and differences, this is a brief rundown of Adm. Yamamoto and the operation titled “Vengeance,” that resulted in his death.

Admiral Isoroku Yamamoto was the commander of the Japanese Navy. He was responsible for planning and executing the attack on Pearl Harbor, which brought the United States to war against Japan. He also planned and executed the all of the Japanese naval engagements between United States and Japan until his death. He was highly respected as a military tactician but he was a truly hated man in United States for both bringing about the war and for the death and destruction caused as a result of the war.

In April, 1943 United States Naval intelligence intercepted messages that gave detailed accounts of his upcoming travel plans in the South Pacific.

Yamamoto, the itinerary revealed, would be flying from Rabaul to Ballale Airfield, on an island near Bougainville in the Solomon Islands, on April 18. He and his staff would be flying in two medium bombers (Mitsubishi G4M Betties of the 205th Kokutai Naval Air Unit), escorted by six navy fighters (Mitsubishi A6M Zero fighters of the 204th Kokutai NAU), to depart Rabaul at 06:00 and arrive at Ballale at 08:00, Tokyo time.

With that information in hand, President Roosevelt was approached about a plan to kill Yamamoto. President Franklin D. Roosevelt ordered Secretary of the Navy Frank Knox to "get Yamamoto."

With the go-ahead of President Roosevelt, a plan was developed that was highly secret and totally audacious. While there was no certainty that they would actually be able to target Yamamoto's plane but they had a high degree of confidence in their chances.

To avoid detection by radar and Japanese personnel stationed in the Solomon Islands along a straight-line distance of about 400 miles (640 km) between US forces and Bougainville, the mission entailed an over-water flight south and west of the Solomons. This roundabout approach flight was plotted and measured to be about 600 miles (970 km). The fighters would therefore travel 600 miles out to the target and 400 miles back. The 1,000-mile flight plan, with extra fuel allotted for combat, was beyond the range of the F4F Wildcat and F4U Corsair fighters then available to Navy and Marine squadrons based on Guadalcanal. The mission was instead given to the US Army's 339th Fighter Squadron of the 347th Fighter Group, Thirteenth Air Force, whose P-38G aircraft, equipped with drop tanks, would have the range to intercept and engage.

As with the attack on Bin Laden sixty-eight years later, the mission was not flawless.

Two of the P-38 Lightnings assigned to the killer flight dropped out of the mission at the start, one with a tire flattened during takeoff and the second when its drop tanks would not feed fuel to the engines.

Yamamoto was flying in one of two medium bombers, known as Betties. They were escorted by six fighters. The Americans did not know which Betty Yamamoto would be flying in and also didn't know that the other was carrying Chief of Staff Vice Admiral Matome Ugaki and part of Yamamoto's staff. On May 18 both of the Betty bombers were shot down and crashed on the island of Bougainville. Yamamoto was dead. His body was recovered by the Japanese and eventually shipped back to Japan. But the fact of his death was so devastating that the Japanese government did not disclose the information for over a month.

So how does the killing of Yamamoto compare with the killing of Osama Bin laden. Both involve the death of military leader of an enemy against whom we were at war. Japan declared war on us on December 7, 1941, and we reciprocated on December 8th. In 1996 Osama Bin Laden's Al Qaeda declared war on the United States in a Fatwa entitled "Declaration of War against the Americans Occupying the Land of the Two Holy Places."

When it first issued there was concern about the Al Qaeda declaration but no one knew with certainty what it meant. We found out on August 7, 1998, with the bombings of the US embassies in Dar Es Salaam, Tanzania and Nairobi, Kenya. Those attacks were followed with the October 12, 2000 attack on the USS Cole in Aden, Yemen. Then, eleven months later, New York, Washington DC, and Shanksville PA were attacked on 9/11. That caused the US to issue the Authorization for Use of Military Force Against Terrorists on September 18, 2001, which granted the President the authority to use all "necessary and appropriate force" against those whom he determined "planned, authorized, committed or aided" the September 11th attacks, or who harbored said persons or groups. There are reasons why the AUMF was used rather than a "Declaration of War" but in all respects relevant to engaging the enemy, it gave the President the same authority as a war declaration.

While Adm. Yamamoto and his forces wore uniforms and identified themselves as our enemy, Bin Laden and his forces did not. Rather they use secret, disguise, and stealth, to confuse us as to their identities and their intentions.

In the case of Yamamoto we attacked him over foreign soil. Bougainville had been placed under the jurisdiction of Australia after WWI and Australia was our ally in WWII. In the case of Osama Bin Laden, he was attacked while illegally residing in a country which was our nominal ally.

In the case of Yamamoto no advance warning was given of the attack just as with the attack on Osama Bin Laden. At the time of both attacks neither man was armed. At the time of both attacks, neither man was given the opportunity to surrender. Certainly the United States could have attempted to force the plane carrying Yamamoto to land but it did not. If it had landed somewhere and he was taken prisoner that would've been fine but that was not the primary goal. The same was true with Osama bin Laden.

In both cases these actions are governed by the Laws of Armed Conflict, also known as the Rules of War, which have three basic elements, military necessity, distinction and proportionality. In both cases, "military necessity" is clear. Both men were military leaders of the enemy. " Distinction" speaks to the need to minimize affects on non-combatants. No non-combatants were killed in 1943. We can't be sure about 2011 because at this point we don't have details on what roles, if any, the three other persons who were killed had played in instigating or facilitating attacks on us. "Proportionality" relates to only using a level of force necessary to achieve the objective. In the case of Yamamoto there was significant but reasonable collateral damage to planes that were shot down together with all of their occupants. In the case of Osama Bin Laden, the choice of bombing it from the air was specifically not chosen, in part because of the other damage it could cause.

It is possible that some Americans in 1943 were outraged over the killing of Yamamoto. A few may have thought he should have been captured and not killed. Or maybe they thought the attack should not have occurred under any circumstances. Yes, there may have been a few. Similarly there are a few who may have the same sentiments about the killing of Bin Laden today. Thankfully, most do not. There is no legal or logical reason the leader of an enemy who declared war on you cannot be killed wherever and whenever you find him. The country he is hiding in may be embarrassed and complain about its sovereignty being violated, but those are separate issues. They are not comfort to the enemies who have declared war on us.

Today, as in 1943, we don't need to revel in the event. But we can still be very happy about the prospect that it will hasten the end to this war and bring our troops safely home.

Friday, May 06, 2011

Yorktown, Appomattox, Armistice Day, VE Day, VJ Day, Abbatobad

Yorktown, Appomattox, Armistice Day, VE Day, VJ Day, are all days that my forefathers, and mothers, celebrated. They signaled the end of wars or significant events leading to the end of wars. The death of Osama Bin Laden in Abbatobad is also such a day. It marks the closest thing we will experience to the defeat of Bin Laden's Al Qaeda. I celebrate that day with full voice.

Al Qaeda's military and political leader, Osama Bin declared war on the United States in a 1996 Fatwa entitled "Declaration of War against the Americans Occupying the Land of the Two Holy Places." From that day until May 1, 2011 he lead his organization on a fifteen year war that killed thousands of Americans, caused billions of dollars of losses and terrorized may Americans. His war was also against other peoples, in fact anyone who disagreed with him, and he caused immense death, destruction and suffering worldwide.

When the 1996 fatwa was first issued there was concern but no one knew with certainty what it meant. We found out on August 7, 1998 with the bombings of the US embassies in Dar Es Salaam, Tanzania and Nairobi, Kenya. Those attacks were followed with the October 12, 2000 attack on the USS Cole in Aden, Yemen. Then, eleven months later, New York, Washington DC, and Shanksville PA were attacked on 9/11.

Before the 9/11 attacks it was difficult to attack Bin Laden because he was being sheltered by the Taliban government in Afghanistan and the Pakistanis would not allow us to launch attacks from their soil. Our retaliatory options were limited and we were only able to attack Bin Laden's Al Qaeda from a distance, as with the cruise missile attack in 1998. Things changed after 9/11 because of the horrific nature of the attacks and their effect on most of the world community. We were finally able to attack Bin Laden's organization directly because the countries surrounding Afghanistan realized they could no longer assist the Taliban rulers of Afghanistan in giving him safe haven.

With the overthrow of the Taliban Bin Laden and his organization were on the run. They were wounded but still active. They were able to mount subsequent attacks in Madrid and London but were substantially weakened. However as long as Bin Laden, their military and political leader, their principle spokesman, their chief fundraiser, and their inspirational figure, was alive Al Qaeda would continue its war against the US. We could destroy as many safe houses as we could locate. We could kill as many of his soldiers as we could find. But as long as he was leading Al Qaeda it would always be there.

When this war started many people asked, "How will we know its over? There will be no final large scale battle. There will be no peace treaty." That is all true. The closest thing to an end point for this war, the closest thing to a moment of victory, was always going to be the death of Bin Laden.

Certainly there may well be some minor terrorist incidences that occur in the future. A few diehard Al Qaeda enthusiasts may try to reprise their old glory. But there is no infrastructure and above all there is no leadership for this pathetic group. The United States and the entire World are more secure than they were before May 1, 2011.

Like my father and mother who celebrated VJ Day, my father as a Marine in the Pacific and my mother as a Marine in Washington DC, I celebrated May 1, 2011, Abbatobod Day, the end of the leader of Al Qaeda. In doing so I was but echoing celebrations by long past relatives who fought in the Revolution, Civil War and World War I, who celebrated the end of those conflicts. We don't like war but we celebrate its end.

I should add that unlike the war against Bin Laden's Al Qaeda there was nothing about the Iraq war that was worthy of celebration. It was not only a fabricated war and illegal war, it was a dumb war that cause death and destruction to no good end. Such wars bring shame, and are never cause for celebration.

Monday, May 02, 2011

I Am Cheering For Two Reasons.

I am cheering, for two reasons.

Osama bin Laden was an evil man. A man who sought political objectives only through violence and death. The killing of such a man it is always reason for celebration. It is for the Lord to judge his fate in the hereafter, but I cheer his departure from our presence. He can do no more harm here on Earth.

But there is a second, more important reason to cheer. Contrary to what some say, Bin Laden's death marks the end of Al Qaeda. Bin Laden was Al Qaeda. He founded it, funded it, inspired it, and was its voice. The two were one. Al Qaeda was a snake that began to whither after it lost its sanctuary under a Taliban ruled Afghanistan. But until May 1, 2011, it was still alive. But it is no more. The head of the snake has been cut off. It may slither and squirm for a little longer but will soon disappear. I cheer that with full voice.

The tragedy of 9/11 was horrific with death, injury and destruction and lives altered forever. Bin Laden showed that he could harm us, causing death and damage, and heartache and tears for the memories of those who were its victims. But as horrific as 9/11 was Bin Laden's main objective was sowing fear, and on that score he was even more effective. He caused us to change the way we live, foregoing freedoms in the mistaken sense we were gaining security.

However, the main enemy of bin Laden was never the United States, it was always what he viewed as corrupt regimes throughout the Muslim world. The United States became a target for him after the Gulf War, following which we stationed troops in Saudi Arabia. And it was convenient for him to launch war against the United States because it helped generate support among those Arabs and other Muslims who were generally mistrusting of the West.

After 9/11 however, his power waned. But the fact that the United States could not kill or capture him always added an air of mystique to his cause. His physical base of support in Afghanistan was taken from him and his monetary resources were squeezed. Yet al Qaeda could limp on after that, albeit with decreasing efficiency, as long as Bin Laden was still alive.

His marginalization accelerated with the dawn of the Arab Spring. People throughout North Africa are rebelling against oppressive regimes and doing so without any involvement from Al Qaeda. The actions in Tunisia, Egypt, Libya, and Syria have demonstrated to the people of those countries that there is a future for them. They can overturn the dictatorial regimes that have been oppressing them and they can do this on their own, guided by principles of democracy and freedom of expression. Democracy and individual rights were anathema to Al Qaeda and its dead leader, Bin Laden, and those rebellions reflected a rejection of Bin Laden’s vision of radical Muslim theocracy. Now, the death of bin Laden has put in place the keystone, the final event, in the rejection of his and Al Qaeda's goals.

Certainly there may well be some minor terrorist incidences that occur in the future. A few diehard Al Qaeda enthusiasts may try to reprise their old glory. But there is no infrastructure and above all there is no leadership for this pathetic group. The United States and the entire World are more secure than they were before May 1, 2011. And I cheer that. I cheer that with full voice.

Sunday, April 17, 2011

Republicans Are Betting That Granny Hates Her Grandchildren

House Republicans adopted, almost unanimously, the Ryan plan to end Medicare. Of course they know that Medicare is popular and among seniors is far more popular than private insurance is for other people. So they wouldn't dare take it away from those currently receiving Medicare.

Their solution is to only take it away from people not currently eligible, those below fifty-five years old. From a political standpoint they think they will keep seniors on their side, assuring all those seniors who vote that their Medicare is safe. This cynical plan could work but only if those seniors hate their children and grandchildren. If not hate, Republican hope that seniors at least dislike their offspring enough that they want them to be denied the same medical security they enjoy, an assurance from the government that their medical future is safe.

It is possible that some of the parents and grandparents of these Republican Representatives feel that way about their issue, but I don't think that most grandparents feel that way. Having experienced first hand the effects of aging and the anxiety of paying for their medical care before becoming eligible for Medicare, it is reasonable to assume that most of these seniors will not wish upon their children and grandchildren a fate that is worse than what they experienced

First, the plan. The Republican plan ends the guaranteed Medicare benefit, substituting a plan to give seniors a voucher/coupon to pay part of the cost of buying private insurance, assuming a plan is available. In addition, the plan tells people that whenMedicare ends, they can't get these vouchers when they are sixty-five, but have to wait till they are sixty-seven.

The voucher plan is unacceptable for four main reasons. First, in all likelihood it will be unworkable. Finding insurance companies to guarantee the elderly will be difficult if not impossible. Second, if any insurers participate the premiums they will charge will be far higher than the value of the vouchers. Third, the plan enriches insurance companies at the expense of seniors. Lastly and most importantly, as each year passes the burden of paying for care is increasingly shifted onto seniors.

The Ryan plan doesn't save dollars, it doesn't reduce the cost of medical care, it merely shifts those from the government to seniors. This shift is dramatic. In a study by Center For Economic And Policy Research, using Congressional Budget Office Data, under the Ryan plan seniors will pay 35% of their income for medical care in 2022 and that percentage will increase to 68% by 2050.

This happens because the value of the vouchers only increase with the inflation rate. Health care costs have been rising far above that rate and there is nothing in Ryan's plan to control costs. This is where Ryan saves the government billions, by transferring to seniors the ever increasing difference between the value of the voucher and the ballooning insurance premiums.

And these are just median figures, They ignore the reality of the millions of seniors who will fall above those median levels. Many of those people who will have been left to the mercy of the private insurance market will be financially ruined. And when they have no money, they will be forced onto Medicaid. But Ryan proposes to gut that program too, by shifting costs to already cash strapped states.

All of that is bad enough. But the Republicans weren't satisfied. Ryan decided to save even more money to fund Billionaire tax cuts by telling people who are currently fifty-five that they are not only ineligible for Medicare, they can't even get vouchers when they reach sixty-five. No. They have to wait longer and if they were born in 1966 they'll have to wait a full two years longer.

Ryan may have thought that delaying access to his faux Medicare vouchers till sixty-seven would sail through issue since the Social Security retirement age also increases to sixty-seven for younger Americans. But that is the problem with simplistic thinking. He doesn't appear to understand that while it may be hard to find a job and sometimes even to work after sixty-five, it is near impossible to find health insurance at that age and totally impossible to find affordable insurance. That is, of course, unless you are part of the that upper 3% of the income scale.

Even Reagan understood that point and the Medicare eligibility rate was not raised as part of the 1983 Social Security deal. Also, while the 1983 Social Security law gradually raised the retirement age to sixty-seven, it still allows people to draw reduced benefits earlier, even at sixty-two. Such is not the case with the Ryan/Republican plan. Under their plan a person between the ages of sixty-five and sixty-seven gets nothing. No reduced Medicare, no reduced voucher, nothing.

But money is only part of the issue. The other is the anxiety, the lost peace of mind that comes with Medicare today. Medicare was enacted in 1965 because seniors were suffering, not just medically and financially, but also emotionally. They were needing medical care as they aged much more than when they were young and they could not find people to treat them unless they were well off. Insurance was not available. Medicare was a Godsend. For the first time they were guaranteed coverage, access to medical services and it was reasonably affordable. For some of very limited means, even paying the current premiums and co-pays in Medicare is hard, but it's nothing like the crushing burden faced before 1965.

Ryan wants to end all this. No longer will seniors know they have coverage, can get treatment and, that their costs are limited. They will be thrown back to the bad old days. Sure, there may be a policy out there. They can't know if it will be there and can't know what it will cover. But even if it is there, they know today that the policy will be expensive and as time passes they will have to pay more and more out of their pocket to pay for it.

Seniors on Medicare today know these things. They may feel a little better that the Republican plan, as it stands today, will not affect them. Some may wonder whether, once passed, it could easily be changed to start taking back benefits they currently have. But even if not, they will know it will affect their children and grandchildren. The very loved ones who they struggled all their lives for, showering them with love and affection. The very ones they now see struggling to pay their bills, find jobs, and keep their homes. The grandchildren who they love dearly, never passing up an opportunity to brag about and spoil.

Knowing what she knows, is Granny really going to throw her sweet children and grandchildren to wolves? The Republicans are counting on it. I think they will be surprised.