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Friday, June 29, 2012

Into the Weeds!

Ok, it's the day after... time to get lost in those weeds.  Those of the legal variety for today...  lots of excellent commentary and analysis to sift through from around the web.  Here are some highlights:

Jack Balkin provides some great commentary on the mandate as tax issue as part of an ongoing discussion over at Slate, "That boring old tax argument was always a winner." 

The elusive Organon (who, it should be noted, spent much time drawing attention to the "mandate as tax" argument, before going Salinger on us) offered a rare communiqué yesterday in which he points us toward two particularly helpful blog posts:

Lawrence Solum (Legal Theory Blog), "The Decision to Uphold the Mandate as Tax Represents a Gestalt Shift in Constitutional Law."- provides helpful context in terms of our legal history.  (If you really want to get into the weeds, Solum raises another interesting point here, but definitely start with the other links)

Brad Joondeph (aca litigation blog), "A Marbury for our time."-  compares the ruling to another famous Supreme Court case from over 200 years ago, calling it "a stroke of judicial genius."

Jedediah Purdy, a professor at Duke Law School, also makes the Marbury comparison in his excellent post over at HuffPo, "How to Read the Health Care Opinion," although he sees much cause for concern in Roberts' reasoning.

For a stiffer dose of doom and gloom, Neal Katyal, a law professor at Georgetown, raises a number of serious concerns over the potential future ramifications of yesterday's decision in an Op-Ed for the NYT, "A Pyrrhic Victory."

And if you just need more, SCOTUSblog provide's plenty to chew on here, including another solid recap from Harvard Law professor Laurence Tribe.

The evidence mounts that the Supremes initially decided to throw out the law before Roberts changed his mind... we'll have to wait for the full story on that, but my question is:  don't these people proof-read their opinions!?  Do they know about "Ctrl-F"??  They've had months to work on this stuff... I don't get it.

Oh, and this was pretty great:

Not the best day for CNN, heheh. (or Fox)

Thursday, June 28, 2012

Don't Over-Think This... It's Good!

First off, I recommend Jonathan Chait's initial reaction to today's ruling, "John Roberts Saves Us All."

I would just add this:  There are a number of issues raised by today's ruling(s), with varying interpretations -- regarding the Commerce Clause (see here and here), or the Medicaid expansion ruling (see here and here), to name only two -- And then, of course, there are the political calculations of how it will "play."  But we shouldn't too quickly get lost in the weeds of this.

These issues are important, but let's not over-think it.  Today's news is a good thing.  For many reasons and on many levels.  It's good for our citizens' health.  It's good for our nation's finances.  It's good for our system of government.  It's good for our President.  It is, quite simply, good for our country.

Many battles lay ahead of us, and the next election is more important than ever, but today we should feel good.  Change is possible, and it's happening.  So, so much slower than we'd like.  But it's happening.

As Pelosi put it, "This is a great day. This is a fabulous day.”  It really is.

Sunday, June 10, 2012

listen all y'all it's a

A charged accusation for sure, but it's a discussion that needs to be had.  For this post I stitched together a couple of recent posts on the topic.

It's difficult to prove someone's intentions are other than what they claim, and people tend to gravitate towards actions that serve their own self-interest without always even recognizing their own motivations.  But it should be noted first and foremost that, regardless of intent, Republican policies have done great harm to our economy.

Michael Cohen (the Guardian):

As Paul Krugman wrote earlier this week, in the New York Times, while a Democrat rests his head each night in the White House, the United States is currently operating with a Republican economy.

In the spring of 2011, federal spending cuts forced by Republican legislators took much-needed money out of the economy: combined with the 2012 budget, it has largely counteracted the positive benefits provided by the 2009 stimulus. 

Subsequently, the GOP's refusal to countenance legislation that would help states with their own fiscal crises (largely, the result of declining tax revenue) has led to massive public sector layoffs at the state and local level. In fact, since Obama took office, state and local governments have shed 611,000 jobs; and by some measures, if not for these jobs, cuts the unemployment rate today would be closer to 7%, not its current 8.2%. In 2010 and 2011, 457,00 public sector jobs were excised; not coincidentally, at the same time, much of the federal stimulus aid from 2009 ran out. And Republicans took over control of Congress. 

These cuts have a larger societal impact. When teachers are laid off, for example (and nearly 200,000 have lost their jobs), it means larger class sizes, other teachers being overworked and after-school classes being cancelled. So, ironically, a policy that is intended to save "our children and grandchildren" from "crushing debt" is leaving them worse-prepared for the actual economic and social challenges they will face in the future. In addition, with states operating under tighter fiscal budgets – and getting no hope relief from Washington – it means less money for essential government services, like help for the elderly, the poor and the disabled. 

This is the most obvious example of how austerity policies are not only harming America's present, but also imperilling its future. And these spending cuts on the state and local level are matched by a complete lack of fiscal expansion on the federal level. In fact, fiscal policy is now a drag on the recovery, which is the exact opposite of how it should work, given a sluggish economy. 

This collection of more-harm-than-good policies must also include last summer's debt limit debacle, which House speaker John Boehner has threatened to renew this year. This was yet another GOP initiative that undermined the economic recovery. According to economists Betsey Stevenson and Justin Wolfers, "over the entire episode, confidence declined more than it did following the collapse of Lehman Brothers Holdings Inc in 2008." Only after the crisis did the consumer confidence stabilize, but employers "held back on hiring, sapping momentum from a recovery that remains far too fragile." In addition, the debt limit deal also forced more unhelpful spending cuts on the country. 

Since that national embarrassment, Republicans have refused to even allow votes on President Obama's jobs bill in the Senate; they dragged their feet on the aforementioned payroll tax and even now are holding up a transportation bill with poison-pill demands for the White House on environmental regulation. 

Yet, with all these tales of economic ineptitude emanating from the GOP, it is Obama who is bearing most of the blame for the country's continued poor economic performance. 

Jamelle Bouie (the American Prospect):

There’s no question that the Obama made mistakes with his handling of the economic crisis. His initial bid for stimulus should have been larger, he should have pushed harder to staff key positions in the Treasury, he should have used recess appointments to fill vacancies at the Federal Reserve, and he should have replaced Ben Bernanke with someone who actually cared to fulfill the Fed’s dual-mandate. 

But, for all of the administration’s mistakes, there’s no question that we would be in a better situation if Obama had an actual governing partner in the Republican Party. The initial stimulus may have been smaller with a GOP that adhered to Keynesian ideas—as it did at the beginning and end of George W. Bush’s term—but we almost certainly would have seen more of it as time progressed and the economy struggled. Nominees would have been confirmed, agencies would have been filled, and the federal government wouldn’t be at a standstill on the economy. 

But, instead (Cohen):

Republicans have opposed a lion's share of stimulus measures that once they supported, such as a payroll tax break, which they grudgingly embraced earlier this year. Even unemployment insurance, a relatively uncontroversial tool for helping those in an economic downturn, has been consistently held up by Republicans or used as a bargaining chip for more tax cuts. Ten years ago, prominent conservatives were loudly making the case for fiscal stimulus to get the economy going; today, they treat such ideas like they're the plague. 

Traditionally, during economic recessions, Republicans have been supportive of loose monetary policy. Not this time. Rather, Republicans have upbraided Ben Bernanke, head of the Federal Reserve, for even considering policies that focus on growing the economy and creating jobs. 
And then, there is the fact that since the original stimulus bill passed in February of 2009, Republicans have made practically no effort to draft comprehensive job creation legislation. Instead, they continue to pursue austerity policies, which reams of historical data suggest harms economic recovery and does little to create jobs. In fact, since taking control of the House of Representatives in 2011, Republicans have proposed hardly a single major jobs bill that didn't revolve, in some way, around their one-stop solution for all the nation's economic problems: more tax cuts. 

Still, one can certainly argue – and Republicans do – that these steps are all reflective of conservative ideology. If you view government as a fundamentally bad actor, then stopping government expansion is, on some level, consistent. 

Except (Bouie):

As Mitt Romney has shown with his promise to cut taxes and delay spending cuts for later years, you can have a Keynesianism that incorporates conservative values. What’s more, there’s nothing about staffing a government that violates conservative principles. 

Cohen again:  
Whether you believe the Republicans are engaging in purposely destructive fiscal behavior or are simply fiscally incompetent, it almost doesn't matter. It most certainly is bad economic policy and that should be part of any national debate not only on who is to blame for the current economic mess, but also what steps should be taken to get out from underneath it. 

But don't hold your breath on that happening. Presidents get blamed for a bad economy; and certainly, Republicans are unlikely to take responsibility for the country's economic woes.


The GOP plan has been to capitalize on this, and obstruct government to the point where voters will mindlessly bring them back to power. That’s what they announced at the beginning of Obama’s term, and it’s working—the presidential election is very close, and Republicans have a chance at winning unified control of government. To many of our pundits and reporters, this is business as usual. In reality, it's absolutely insane.