The End Of Range Anxiety-The Future Of The Electric Car Is Here

For over a hundred years people have been trying to design practical cars that did not rely on petroleum - cars that run on electricity. But they always hit a road block. Electric cars have had one major drawback. They afflicted their owners with a gut wrenching condition referred to as range anxiety. It didn't matter whether the car had the 70 mile range of a Leaf or the 250 mile range of a Tesla, range anxiety was always there. Few people want as their only vehicle a car that that they can only drive ten, fifty, two hundred miles, if they then have to wait hours to recharge. Even on short trips, the moment you get in such a car you start thinking about whether you have enough juice to get back. Every attempt at building a truly practical electric car that average drivers could use as their only car failed. Yes, as battery technology improved you could increase the distance that could be driven on a charge and even reduce somewhat charging times but range anxiety was always there.

Genesis

Enter GM executives Bob Lutz and Jon Lauckner. Working together they conceived of an electric car that would solve the problem of range anxiety and use a revolutionary lithium-ion battery with a long life thermal management system. They designed a car that eighty percent of people would be able to drive in their daily commute using only electricity but, and here's the key, it would also have a gasoline powered generator that would give it the same range as any other gasoline powered car. In the process they also decided to make it sporty, practical and fun to drive.

The result is a marriage made in heaven. It's a car that you can charge up at home or work or wherever, and that you will usually drive without ever using a drop of gasoline. But this car is so much more. Unlike any other electric car you can drive it 100 miles, a thousand miles, across the country, or around the world (with a little help over the oceans) without having to wait hours to recharge the battery. You can do this because this electric car has its own on-board generator powered by a gasoline engine. When you deplete the battery, the generator starts up. And when the change happens, you don't hear or feel anything. You just see an icon change on the dashboard telling you that the "extended range" motor is now running, but that's about it. Like so many other aspects of the Volt, "seamless" is the best word to describe it.

The Volt is smooth, seamless and quiet but also very quick because of its electric motor with 273 lb.-ft. of torque that is immediately available the moment you step on the "gas." And make no mistake, it is always an electric car, even when the gas engine is running, because that engine is producing electricity that is powering the electric motor. It is a car that will accelerate with the best of them, with a top speed of 100 mph, but do it without a sound and with no herky jerky transmission shifts. Basically, it is more fun to drive than almost any car on the road.

The Car

So what does it all mean? The EPA says that you can expect to average 38 miles on a fully charged battery and that you will get 98 MPGe when running on that charge. MPGe is miles per gallon equivalent, which represents the number of electric miles that can driven on the amount of energy contained in a gallon of gasoline. EPA also says that when you run solely on the gasoline "extended range" motor your average should be 37 mpg. To make these numbers more meaningful the EPA then calculates the actual cost of driving by factoring in an average gasoline price of $3.70/gallon and an average electricity cost of 12 cents/KWH. According to the EPA, if you drive 12,000 miles per year you can expect to spend $601 when running solely on electricity and $1,302 when running solely on gasoline.

So what are the real life experiences of Volt drivers? Voltstats is a site that logs real time data on thousands of Volts. The fleet total mpg, which is miles driven divided by gasoline burned is 126.7 mpg. Since that does not count the cost of electricity they also computed the MPGe of the fleet, which is 64.3 MPGe. The fuel economy of the gasoline engine alone is 36.5 mpg. Volts are running on battery power for 71% of the miles driven and on gasoline the remaining 29% of the miles driven.

My experience is somewhat better. I drive about 90 percent of my miles on electricity and my off-peak electric rate is 4.6 cents/KWH, far lower that the 12 cent national average. I am currently driving about 47 electric miles on a full charge and my cost is about 1 cent per mile. In my first 1,000 miles I drove 950 miles on electricity and averaged 4.34 miles/KW. The total cost of the electricity consumed was $10.07. I also drove 50 miles on gasoline, using 1.4 gallons of gas. At a cost of $3.79 per gallon I spent $5.30 on gas. So it cost me $15.37 to drive 1,000 miles which works out to 1.5 cents per mile.

The car I traded got 20 mpg. Driving it 1,000 miles would have consumed 50 gallons at a cost of $189.50. My savings driving the Volt for that 1,000 miles was $174.13. Amazing.

Maybe more importantly we love driving the Volt. Except when we have to drive both cars or when hauling large loads, the Volt is the car of choice for both my wife and I. It is so smooth, so quiet, so well put together and so cool. Of all the 25 cars I've owned it is my favorite. Our other car is an Acura MDX. It is a really good car, but when I drive it now it feels positively clunky compared to the Volt.

Environment and the Nation

People ask whether electric cars are really better for the environment and the nation. The answer is clearly "yes." Based on EPA data the average internal combustion engine car produces 500 g/mile of greenhouse gasses. On average a Volt running on battery power will produce 260 g/mile, or roughly half that of a gasoline powered car. These are averages of course and the numbers vary widely depending on the fuel used to produce the electricity. Here is a really good article explaining the differences between fuels. In summary,

the average Coal burning power plant emits 2.17 pounds of CO2 for every kilowatt-hour it produces. (EIA) Now, coal makes up only 48% of our electrical generation. Natural Gas produces 20% and it also emits CO2 (1.4 pounds per kWh). But, 30% comes from nuclear and renewable sources. So, taken together, our national electrical supply generates, on the high side, 1.51 pounds of CO2 per kWh.

Similarly emissions of gasoline engines vary widely depending upon the efficiency of the engine. The best are 28% efficient while the worst are only 15% efficient. Consequently, the emission of CO2 of gasoline engines ranges between 1.9 lbs/kWh and 3.59 lbs/kWh. Thus the most efficient engines produce slightly less CO2 than coal plants but substantially more than gas, nuclear or renewable electricity. And the least efficient engines are far behind all sources of electricity.

But it's not all about CO2. It's also about reducing our dependance on oil and staying out of conflicts whose primary motivations seem to revolve around oil. In May GM noted that Volt drivers had travelled 40 million miles, saving 2.1 million gallons of gasoline and saving themselves $8 million in the process. That 2.1 million gallons would have filled an entire super-tanker. That is impressive. And this was achieved with fewer than 17,000 thousand Volts on the road. Imagine the impact if 10, 20, or 30 percent of us were driving extended range electric cars like the Volt.

A Chevy?

There's one more thing. Before the Volt I had only bought one other American car and it was a special purpose vehicle. Walking into a Chevrolet showroom and buying a Chevy was not part of my life experience. Guess what? This car is great. The engineering is second to none. The design and execution of the car is fantastic. Everything feels right, works right and looks right. The quality is as good and in some respects better than that of any comparable car.

My eyes have been opened. Chevy hit a home run and my whole attitude towards American cars and GM in particular has changed. On car forums people often ask how Volts drive and what are they comparable to. The frequent answer is that it feels like a BMW three series - every bit as tight, not quite as grippy, and a whole lot smoother and quieter. Remembering that, it was fascinating to read that BMW has hired away many Volt engineers and that the upcoming BMW i8 will be largely based on the Volt architecture. Chevrolet has over 200 patents on the Volt that they will work around but the signs are clear. The extended range electric vehicle pioneered by GM is here to stay and truly is a marriage made in heaven.

The Real Financial Cost

The Volt sells for between $39,000 and $44,000 depending on how well optioned it is. Even though the base Volt is pretty well loaded its price is more than the price of average new car which is now just shy of $31,000. But the Federal Government has a $7,500 tax credit that reduces the $39,000 cost to $31,500. And many states have additional incentives, such as Colorado, which has an additional $6,000 tax credit. When I also considered that the VOLT would save me $2,400 per year in energy costs the deal was too good to pass up.

All Things Considered

The Volt reduces our dependance on oil, saves money in operating costs, is an absolute blast to drive, is made in America, reduces greenhouse emissions, and is the smoothest, quietest, and quickest ride you can imagine. Also, it is way cool and has a UAW sticker on the door jam.

Anyone who is in the market for a mid-size sedan is doing themselves and our country a real disservice if they don't consider the Volt.



There is much detail about the Volt that is omitted for this post in order to keep it at a manageable length. For example, it has two electric motors, not one, but both are there to maximize efficiency. Under very rare circumstances the gas engine can drive the wheels directly, if it improves efficiency. Also, the battery is unique for several reasons. To maximize longevity it has a sophisticated heating and cooling system that keeps it at the optimal temperature. And to maximize longevity, it is never fully charged or discharged, generally using only about 65% of its total capacity.

The Obama Administration Made The Exact Tax Argument That the Court Accepted

There is much confusion regarding the ACA tax issue. Contrary to what some think, this is the same argument the President made. He said the penalty was not a tax for purposes of the Anti-injunction Act. The Majority agreed. He said it was a tax for purpose of Congress' Article I taxing authority, thus giving Congress power to enact the ACA. The majority agreed with that.

Do you remember how much criticism the Solicitor General received from some after oral argument. Many said that not only was he stumbling and ineffective but his seemingly contradictory arguments on the tax issues were lame. Well, it appears that ineffective and lame won the day.

Here is the relevant language from the Roberts opinion. First, the Court sets up the issue,

Government’s tax power argument asks us to view the statute differently than we did in considering its com- merce power theory. In making its Commerce Clause argument, the Government defended the mandate as a regulation requiring individuals to purchase health insurance. The Government does not claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.

Then he explains that the Court must find any reasonable reading that allows a law to be sustained,

The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads “no vehicles in the park” might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.” Parsons v. Bedford, 3 Pet. 433, 448–449 (1830). Justice Holmes made the same point a century later: “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion). The most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals “shall” maintain health insurance. 26 U. S. C. §5000A(a). Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.

Then he analyses the law to discern its essence as a tax,

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax. . . . . . The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many re- spects. The “[s]hared responsibility payment,” as the statute entitles it, is paid into the Treasury by “tax- payer[s]” when they file their tax returns. 26 U. S. C. §5000A(b). It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code. §5000A(e)(2). For taxpayers who do owe the pay- ment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status. §§5000A(b)(3), (c)(2), (c)(4). The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.” Supra, at 13–14. This process yields the essential feature of any tax: it produces at least some revenue for the Government. United States v. Kahriger, 345 U. S. 22, 28, n. 4 (1953). Indeed, the payment is expected to raise about $4 billion per year by 2017. Congressional Budget Office, Payments of Penalties for Being Uninsured Under the Patient Pro- tection and Affordable Care Act (Apr. 30, 2010), in Selected CBO Publications Related to Health Care Legislation, 2009–2010, p. 71 (rev. 2010).

Finally, he explains that the fact it is labeled as a "penalty" does not mean it isn't a tax for this purpose

It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Con- gress’s choice of label on that question. That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.

Although many thought the Solicitor General's argument was bizarre and convoluted, it won the day.

Anti-Injunction Act - A Simple Explanation Of The Issues Being Argued Today

There are many long and detailed articles about the Anti-Injunction Act issues being discussed in the Supreme Court today such as this one. However, since most of them may be a little dense for many people, here is a simpler and shorter explanation of the issues.

For over one hundred and fifty years there has been a law that says a person cannot challenge a tax law until the tax has actually been assessed and they pay the tax or challenge an IRS collection action. That law is the Anti-Injunction Act. If the law applies to a suit then, almost uniformly, courts have ruled that they cannot even hear the case. It must be thrown out because the court lacks jurisdiction.

Today the Court is hearing arguments on whether the Anti-Injunction Act applies to the suits challenging the Affordable Care Act.

The two main issues are whether the ACA provision that requires people to pay a penalty if they don't have insurance constitutes a tax, and whether a suit challenging the mandate is really a suit challenging that tax.

(There are some minor issues which are excluded here but explained in the linked article.)

One case challenging the ACA was dismissed on this ground but it is not before the court today. In another suit that is before the Court today, there is a dissenting opinion by a Judge Kavanagh in which he says that the case should be dismissed because of the Anti-Injunction Act.

The hearing today on the Anti-Injunction Act is a fairly rare event. The government is not arguing for it and of course the plaintiffs don't think it applies. However the Supreme Court itself decided that it wanted to hear arguments on the issue. To get the issue presented the Court appointed an outside lawyer to argue the Anti-Injunction Act issue before the court.

What is the significance of this issue? If the court finds that the penalty is a tax, and that the challenge to the mandate is really a challenge to that tax, then the Court will dismiss these ACA challenges on the Anti-Injunction Act grounds.

Some people think that such a ruling would merely be punting the issue down the road. I don't share that view for the following reasons. Substantively, if the penalty is a tax then it will almost certainly be upheld in any later suit. Keep in mind that if it is a tax it can only be challenged based on Congress' taxing authority, not the Commerce Clause or the other things being used to challenge the law now. Congress' taxing authority is very broad and I don't think there has been a case since the thirties that has overturned a tax.

Secondly, if it is a tax, no suits can be filed until 2015. It would be until 2017 before they make it to the Supreme Court. By then the entire landscape will have changed. Obama will not be President. Since the idea of a mandate was invented by Republicans one doesn't have to be cynical to conclude that the challenges to the ACA are merely challenges to Obama. Once the law is implemented it will be clear to all that the hysteria about "socialized medicine" is nonsense.

Additionally, the ACA has budgetary savings provisions that even the Republicans like. Those savings and the additional revenues will be built into future budgets. All the hue and cry will be tamped down in light of that reality.

Lastly, the state exchanges will be facts on the ground, The insurance companies will have adjusted and will be participants. People will see all the benefits in their own lives. There will be little appetite to go back to 2009.

Do not be surprised if this case is dismissed on AIA grounds. For Justices like Scalia who have written very expansive opinions on the Commerce clause it would be a really convenient way to avoid eating his past words if he ruled against the ACA or disappointing his base if he ruled in favor of the ACA.

What Does The Florida "Stand Your Ground" Law Really Say

The Florida Justifiable Use Of Force Statute, often referred to as the "Stand Your Ground" law, is an overreaching and violence inducing law for many reasons. But in the case of the killing of Trayvon Martin the problem may be less about the law than about the way it was interpreted and applied by the police and prosecutors.

One central problem with this case is how little concrete information we have about that night. The reason is that after George Zimmerman killed Trayvon he was taken to police headquarters, apparently interviewed for a short period of time, and released. His weapon was not seized, forensics weren't taken and there was apparently very little investigating done at the scene.

Why would that be? The police say that they could not hold him, let alone arrest him, because he had asserted self defense and was therefore protected by the Florida self-defense statute. That is horsepuckey and here is why.

The Florida law covers justifiable force by police and civilians. There are three categories of justifiable force by non-police officers: self-defense, home protection and defense of others. The only one applicable here is the first. That section says that you can use deadly force if you reasonably think it is necessary to prevent death or great bodily harm. You can't use deadly force if you are only trying to prevent the use of unlawful force against you. The distinction between fear of "death or great bodily harm" versus protecting your self from "unlawful force" can be critical. Here is the language of the statute:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to (the section dealing with Home Protection)

As discussed below there is an exception to the "no duty to retreat" language for anyone who instigates an altercation. But before looking at this more closely it is important to understand the section of the law that the police asserted as the reason why they were prohibited from detaining or arresting Zimmerman and keeping his gun.

There is a section of the law that says the police can use "standard procedures" for investigating the use of force but any person whose actions are protected by this law is immune from detention, arrest or prosecution. These restrictions on detention and so on don't apply if the police have "probable cause" to think the self-defense claim is invalid. Taken together, this means Zimmermann had to be released, but not if the police had probable cause to believe his claim of self defense was not covered by the statute. Here is the actual text of the relevant portion of this section,

776.032  Immunity from criminal prosecution and civil action for justifiable use of force.—

(1) A person who uses force as permitted in (self-defense, home protection or defense of others) is justified in using such force and is immune from criminal prosecution and civil action for the use of such force . . . . As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

. . . . . .

So the police could not detain or arrest Zimmermann unless they had probable cause to believe that his actions were not covered by the law. If they had probable cause they could proceed with their investigation as if the law didn't exist.

The facts clearly suggest probable cause to question Zimmermann's self-defense claim. His assertion that he feared fears death or imminent bodily harm requires an analysis of the relative size, age, weight and strength of Zimmermann and Trayvon. This was not a case of a 120 pound eighty year old being assaulted by a 220 pound weight lifter. Based on pictures and other information Zimmermann's physical presence appears to be at least equal to Trayvon's. Next, one looks to see if the individuals have weapons. The reasonableness of any fear on Zimmermann's part is seriously undercut by the fact that he had a 9 mm handgun and Trayvon had no weapon of any sort. Additionally, when analyzing the validity of Zimmermann's claims it would also be noteworthy that he had a history of making bogus 911 calls about imaginary wrong doing. Finally, and as discussed below probably most importantly, Zimmermann told the 911 dispatcher he was following Trayvon Martin and was told to cease his pursuit. These facts clearly suggest there was probable cause to believe that Zimmermann's self-defense claim was invalid.

As mentioned above, there is a section of the law that really blows a hole in Zimmermann's self-defense claim and put the lie to the police assertion that he could not be detained or arrested. The law specifically provides that the self-defense protection does not apply for anyone who "provokes the use of force" against himself. The fact that Zimmermann pursued Trayvon Martin clearly suggests that he provoked whatever subsequently transpired. And this section goes on to say that if you provoke the confrontation then you cannot use force unless you have retreated and the person is still attacking you with overwhelming force. Here is the relevant portion of that section,

776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

The evidence indicates that Zimmermann initiated and provoked this incident. There is no indication he retreated. There is no indication that he was faced with force that was likely to result in his death or great bodily harm.

Taken together Zimmermann's action do not appear to be covered by the self-defense law and, at the very least, the police had grounds to detain him and arrest him and conduct a thorough investigation to determine whether his actions were covered. Unfortunately, the failure to conduct a proper investigation at the time may make it hard to secure enough evidence to obtain a conviction now. Hopefully that will not be the case.

Beyond Believable. FOX Says Serial Philanderers, Like Newt, Make The Best Presidents

Fox's resident psych says that Newt's philandering, cheating and abuse of his prior wives will make him the perfect President.

No, this is not from the Onion, and yes, he is serious. According to "Dr." Keith Ablow the best evidence of Newt's qualifications are,

1) Three women have met Mr. Gingrich and been so moved by his emotional energy and intellect that they decided they wanted to spend the rest of their lives with him.

2) Two of these women felt this way even though Mr. Gingrich was already married.

3 ) One of them felt this way even though Mr. Gingrich was already married for the second time, was not exactly her equal in the looks department and had a wife (Marianne) who wanted to make his life without her as painful as possible.

Yes, you read that right. He goes on to say that

When three women want to sign on for life with a man who is now running for president, I worry more about whether we’ll be clamoring for a third Gingrich term, not whether we’ll want to let him go after one.

Now, if it's bad enough that this so called Doctor says that cheating on your wives numerous times and marrying three women who you conned into believing you loved them and wanted to spend the rest of their lives with you makes you an ideal President. But it gets worse. He also said that the manner in which he dumped his first two wives for new and improved younger versions is clear evidence of his strength. Our good Doctor has these precious insights to share,

Two women—Mr. Gingrich’s first two wives—have sat down with him while he delivered to them incredibly painful truths: that he no longer loved them as he did before, that he had fallen in love with other women and that he needed to follow his heart, despite the great price he would pay financially and the risk he would be taking with his reputation.

Conclusion: I can only hope Mr. Gingrich will be as direct and unsparing with the Congress, the American people and our allies. If this nation must now move with conviction in the direction of its heart, Newt Gingrich is obviously no stranger to that journey.

That's right. Cheating on your wives and then dumping them, one of whom was in the hospital with cancer, is a template for dealing with Congress.

And then our good Doctor concludes with his not very well concealed infatuation with Newt,

So, as far as I can tell, judging from the psychological data, we have only one real risk to America from his marital history if Newt Gingrich were to become president: We would need to worry that another nation, perhaps a little younger than ours, would be so taken by Mr. Gingrich that it would seduce him into marrying it and becoming its president.

Woah. If there's a Mrs. Ablow out there she has reason to be worried. And, whoever licensed this quack needs to review his status.

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.

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.

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.

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.

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.

Ouch.

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.

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.

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.

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.

Sincerely,

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.

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.