Megan McCardle is almost always insightful and interesting, but I have to strongly disagree with her about the efficacy of changing the bankruptcy laws to allow the modification ("cram-down") of mortgages on residences.
A Chapter 13 debtor confirms a plan of reorganization under which she makes payments for up to five years, but not everyone ends up making all the payments for the whole term of the plan. (She believes that proportion of failed plans is 2/3, I think after we change the law, it will get better as a different class of debtor starts filing Chapter 13s). McCardle thinks these debtors will be worse off because their bankruptcies will be dismissed, tossing out of the frying pan of bankruptcy protection, and back in to the fire of foreclosure and state law remedies.
But McCardle's prediction makes two mistakes: one about bankruptcy law, and the other about how people respond to bankruptcy law. Legally, once a debtor fails to make payments under a Chapter 13 plan, the case is not automatically dismissed. Instead, the debtor has the chance to convert her case from a 13 to a 7. This has been made more difficult by the 2005 bankruptcy changes (Sec. 707(b)(3), 'presumption of abuse', and the special cicrumstances test - for those of you playing along in the home game). But not only is it a real possibility to overcome these tests, I'm finding significant 'word on the street' that the U.S. Trustee (the Gov't officials charged with overseeing these sorts of things) aren't challenging the conversions as often as vigorously as they might for fear of having the statute overturned or limited on appeal.
I also think McCardle fails to appreciate the impact outside of bankruptcy that the 13 Cram-down change would engender. Right now, or whole system for making and administering home loans assumes that the mortgage is an all-or-nothing proposition. Until recently, this kept mortgage service costs low and made them easy to securitize. What we see now is that there is some real number of people who ought to be able to refinance mortgages (especially if they were steered in to bad products before), but who won't be allowed to by 'the system.' This is a real economic deadweight loss to not only the borrower, but also the lender, not to mention the neighborhood. Let me rephrase. We are making things worse for no good reason in a lot of these cases.
I've advocated for 13 cram downs before, but under a slightly different rubric than the one Congress proposes. But the current proposal before Congress seems fine. Unfortunately, we've already missed the chance to help a lot of people and avoid some excess harm. But on the positive side, making these changes now will help even-out the rough spots ahead of the next economic decline.
Friday, January 30, 2009
Wednesday, January 28, 2009
Oh, Canada
Stephen Marche at TNR has an interesting piece about the looming political crisis in Canada. The multi-party system in our northern neighbor is leading to serious instability:
The country keeps refusing to pick an out-and-out winner. We have had minority governments since 2004, revealing our lack of shared purpose. The Conservatives have been unable to build the strategic alliances between regions that they have traditionally used to form governments, the Liberals are coming off their worst electoral showing ever, and the Greens have split the left without ever holding a seat in the Commons. In place of strong national parties capable of creating consensus, the country is realigning along single issues and regional interests, centrifugally spinning apart.
The path to dissolution has already been built. Quebec holds a referendum on independence every 15 years or so. The last one was 1995, so we have about two years left. If the rest of Canada is still incoherent, there will be less of an argument to keep the country together, and Quebec may well go. No one has any idea what a patchwork of national units divided by linguistic identity across the northern part of the Continent would look like. The East Coast would be split from the main body of English Canada--how would that work?
Marche notes that the US should be paying a lot more attention to it than it currently is (case in point- on Monday at lunch, my colleagues and I were trying to remember if Brian Mulroney was still the PM). Canada is America's largest trading partner, with $1.5b in goods and 300,000 people crossing the border every day. It's also our largest energy trading partner, and we share ownership over the Great Lakes, which provide drinking water for 35m in the region. At the very least probably worth knowing who the PM is.
The country keeps refusing to pick an out-and-out winner. We have had minority governments since 2004, revealing our lack of shared purpose. The Conservatives have been unable to build the strategic alliances between regions that they have traditionally used to form governments, the Liberals are coming off their worst electoral showing ever, and the Greens have split the left without ever holding a seat in the Commons. In place of strong national parties capable of creating consensus, the country is realigning along single issues and regional interests, centrifugally spinning apart.
The path to dissolution has already been built. Quebec holds a referendum on independence every 15 years or so. The last one was 1995, so we have about two years left. If the rest of Canada is still incoherent, there will be less of an argument to keep the country together, and Quebec may well go. No one has any idea what a patchwork of national units divided by linguistic identity across the northern part of the Continent would look like. The East Coast would be split from the main body of English Canada--how would that work?
Marche notes that the US should be paying a lot more attention to it than it currently is (case in point- on Monday at lunch, my colleagues and I were trying to remember if Brian Mulroney was still the PM). Canada is America's largest trading partner, with $1.5b in goods and 300,000 people crossing the border every day. It's also our largest energy trading partner, and we share ownership over the Great Lakes, which provide drinking water for 35m in the region. At the very least probably worth knowing who the PM is.
Monday, January 26, 2009
One reason to nationalize Citi
It's brand new $50m private jet:
As an example of the difference between nationalizing a bank as part of a rescue package and simply getting its toxic assets “off the balance sheet,” in a nationalization scheme the taxpayers whose money is paying for the jet would also own the jet and be in a position to sell it off. Under a Classic TARP plan you pay for the jet, but Citigroup’s shareholders own the jet, and Citigroup’s managers get to use the jet.
As an example of the difference between nationalizing a bank as part of a rescue package and simply getting its toxic assets “off the balance sheet,” in a nationalization scheme the taxpayers whose money is paying for the jet would also own the jet and be in a position to sell it off. Under a Classic TARP plan you pay for the jet, but Citigroup’s shareholders own the jet, and Citigroup’s managers get to use the jet.
This Place called Upstate (cntd.)
My colleague Adam writes below about Kirsten Gillibrand, and perhaps paints Upstate New York with too broad a brush. I'll note, among other things, that Gillibrand is from Columbia County, NY, and was a partner at a major law firm which, although located in Westchester, is still a "New York City firm."
I think Adam is right, however, in that there has been a push lately to find the next Heath Shuler- a kind of mythical Dirty Harry democrat who likes guns (or at least the NRA) and can rough up the GOP come election time. The problem with a lot of these folks is that when it comes to crunch time, they're often not very helpful to have in the caucus.
Case in point- Gillibrand's vote against the bailout in October. She made a lot of noise about how upstate residents shouldn't have to bail out NYC bankers. I understand the resentment of her constituents, as upstate NY has been one of the few areas nationwide which was widely passed over by the housing boom, so upstaters couldn't even cash in on 2nd mortgages and buy big new houses. On the other hand, we can all pretty easily imagine what would happen to government services and tax levels upstate if the driving force of New York's economy goes under. The bailout vote was one of those situations where we remember that we're a republic and not a democracy, and it's important for elected officials who are "in the know" and sophisticated about issues like this to buck the short term requests of their constituents.
On guns, some of her NRA supported positions are pretty extreme, and I can only hope that now that she's representing the Bronx as well as Glens Falls that she'll moderate her views. Pressure from the left on this point- from bloggers, editorial boards, Mayor Bloomberg, and the 2010 primary threat from Long Island rep. Carolyn McNally should help.
I think Adam is right, however, in that there has been a push lately to find the next Heath Shuler- a kind of mythical Dirty Harry democrat who likes guns (or at least the NRA) and can rough up the GOP come election time. The problem with a lot of these folks is that when it comes to crunch time, they're often not very helpful to have in the caucus.
Case in point- Gillibrand's vote against the bailout in October. She made a lot of noise about how upstate residents shouldn't have to bail out NYC bankers. I understand the resentment of her constituents, as upstate NY has been one of the few areas nationwide which was widely passed over by the housing boom, so upstaters couldn't even cash in on 2nd mortgages and buy big new houses. On the other hand, we can all pretty easily imagine what would happen to government services and tax levels upstate if the driving force of New York's economy goes under. The bailout vote was one of those situations where we remember that we're a republic and not a democracy, and it's important for elected officials who are "in the know" and sophisticated about issues like this to buck the short term requests of their constituents.
On guns, some of her NRA supported positions are pretty extreme, and I can only hope that now that she's representing the Bronx as well as Glens Falls that she'll moderate her views. Pressure from the left on this point- from bloggers, editorial boards, Mayor Bloomberg, and the 2010 primary threat from Long Island rep. Carolyn McNally should help.
Parallels
Andrew Sullivan compares the 9/11 hijackers and the Hudson landing pilots:
Over seven years ago, a group of religious extremists seized control of an aircraft in that same airspace, men who had very little flying experience and a philosophy of maximizing the deaths of innocent civilians on the ground. They did all they could to murder as many as they could in order to secure the maximum reward for themselves in heaven and in worldly renown.
Seven years later, two pilots who have since remained remarkably distant from media attention, were in a similar cockpit in the same crowded area and their over-riding concern was to prevent any civilian casualties at all. That's why they even avoided small airports which might have led to a crash into inhabited neighborhoods. With enormous expertise, gained by rigorous training in a civilized society, they managed to land safely on the river and save everyone both on board and on the ground.
It seems to me that dignity and training and expertise and humaneness are the values of our society at its best. All of them are self-evidently superior to the values of vainglory, amateurism, impulsiveness and cruelty that bedevil our enemies. If these are the grounds on which we fight this war - and they are ours to choose - then we will win. And we will deserve to.
Over seven years ago, a group of religious extremists seized control of an aircraft in that same airspace, men who had very little flying experience and a philosophy of maximizing the deaths of innocent civilians on the ground. They did all they could to murder as many as they could in order to secure the maximum reward for themselves in heaven and in worldly renown.
Seven years later, two pilots who have since remained remarkably distant from media attention, were in a similar cockpit in the same crowded area and their over-riding concern was to prevent any civilian casualties at all. That's why they even avoided small airports which might have led to a crash into inhabited neighborhoods. With enormous expertise, gained by rigorous training in a civilized society, they managed to land safely on the river and save everyone both on board and on the ground.
It seems to me that dignity and training and expertise and humaneness are the values of our society at its best. All of them are self-evidently superior to the values of vainglory, amateurism, impulsiveness and cruelty that bedevil our enemies. If these are the grounds on which we fight this war - and they are ours to choose - then we will win. And we will deserve to.
This "Upstate New York" Place
What a lot of great publicity for Upstate New York from the appointment of the Hon. Ms. Gillibrand (pronounced with a "J")! Who knew that there was such a wonderful place where people shoot Christmas Turkeys, don't care about what happens to the illegal immigrants among them, and think that whole Wall Street bailout mess was just tomfoolishness. So "real America," yet so close to the real New York! I bet the electable white Democrats are "socially moderate," but well-known for their "fiery brand of economic populism." I wonder if they also have antiquiquing?
Kirsten Gillibrand might do a great job, and she might have been the best pick, and yada yada yada, but I've got to tell you, I don't see it.
I've heard her described as a tough campaigner because she doesn't mind running negative ads against her opponents. That's not tough campaigning. If the ads deserve to be run, then its reasonable campaigning. If they don't deserve to be run, then it's craven and possibly dishonest campaigning. Tough campaigning is sticking to your guns (as opposed to 'clinging to your guns'?) when you have a position that might be unpopular. Tough campaigning is not using an issue or line of attack that you know only clouds the real issues even though you could use it to an advantage.
This situation is the sum of a lot of failures of political culture in our country, and it doesn't have to end badly for New York or the Democratic party, but I think I'm starting to make out a political high tide line.
Kirsten Gillibrand might do a great job, and she might have been the best pick, and yada yada yada, but I've got to tell you, I don't see it.
I've heard her described as a tough campaigner because she doesn't mind running negative ads against her opponents. That's not tough campaigning. If the ads deserve to be run, then its reasonable campaigning. If they don't deserve to be run, then it's craven and possibly dishonest campaigning. Tough campaigning is sticking to your guns (as opposed to 'clinging to your guns'?) when you have a position that might be unpopular. Tough campaigning is not using an issue or line of attack that you know only clouds the real issues even though you could use it to an advantage.
This situation is the sum of a lot of failures of political culture in our country, and it doesn't have to end badly for New York or the Democratic party, but I think I'm starting to make out a political high tide line.
Saturday, January 24, 2009
Obama Inauguration
This is one of the coolest picture computer things I've ever seen: Gigapan of the Obama Inauguration.
Friday, January 23, 2009
And the winner is... (cntd)
HRC corrects their previous statements about Gillibrand, from which I drew my earlier post:
There has been some discussion about the record of Kirsten Gillibrand, New York Governor David Paterson's pick to replace Hillary Clinton, regarding her stance on Don't Ask Don't Tell and additional LGBT issues. In particular, we'd like to clarify references to the Human Rights Campaign Scorecard for the 110th Congress. Although Kirsten Gillibrand did not co-sponsor legislation to repeal DADT, non-cosponsorship does not mean support for the policy or opposition to repeal. In fact, in conversations with her office the Human Rights Campaign has confirmed Gillibrand is in favor of repealing Don't Ask Don't Tell and supports full marriage equality for gay and lesbian couples.
This makes me somewhat happier, as does finding out that she was at a couple of top-notch law firms and was an assistant counsel at HUD before running for Congress. Some of her gun record, however, still exceeds what's necessary for courting the sportsman/hunter vote Upstate.
There has been some discussion about the record of Kirsten Gillibrand, New York Governor David Paterson's pick to replace Hillary Clinton, regarding her stance on Don't Ask Don't Tell and additional LGBT issues. In particular, we'd like to clarify references to the Human Rights Campaign Scorecard for the 110th Congress. Although Kirsten Gillibrand did not co-sponsor legislation to repeal DADT, non-cosponsorship does not mean support for the policy or opposition to repeal. In fact, in conversations with her office the Human Rights Campaign has confirmed Gillibrand is in favor of repealing Don't Ask Don't Tell and supports full marriage equality for gay and lesbian couples.
This makes me somewhat happier, as does finding out that she was at a couple of top-notch law firms and was an assistant counsel at HUD before running for Congress. Some of her gun record, however, still exceeds what's necessary for courting the sportsman/hunter vote Upstate.
Amazing
Check out the video below of a new prosthetic arm from i-Limb, which is dextrous enough to allow the wearer to throw a ball and hold and manipulate objects (via Engadget):
And the winner is....
Fresh on the heels of Caroline Kennedy's suspicious withdrawal from consideration, Governor Paterson has selected Kristen Gillibrand, a congresswoman from the Albany area, as the new Senator from New York.
From a political perspective, Paterson's pick makes sense. He shores up support among women and Clinton supporters, and also gains some chits Upstate, which may be difficult terrain for the governor in his quest for a term in his own right in 2010.
Gillibrand has been branded a "centrist," which applied to her is a somewhat meaningless term. She has been endorsed by the NRA, which is to some degree necessary to win election in Upstate New York where hunting and gun ownership are a significant part of the culture. The Upstate hunting vote doesn't necessarily explain Gillibrand's vote to repeal the DC semi-automatic ban, however. Her NRA cred has riled up Democratic Long Island Rep. Carolyn McCarthy, whose husband was shot and killed on the LIRR, and who has vowed to run in a primary against Gillibrand.
More troublingly, Gillibrand's record on gay rights is pretty appalling:
According to the Human Rights Campaign, she voted against the repealing of Don't Ask Don't Tell, opposed legislation that would grant equal tax treatment for employer-provided health coverage for domestic partners, opposed legislation to grant same-sex partners of U.S. citizens and permanent residents the same immigration benefits of married couples and opposed legislation to permit state Medicaid programs to cover low-income, HIV-positive Americans before they develop AIDS.
Apparently she also interned for Alphonse D'Amato when she was in college.... I'm starting to like this pick less and less the more I learn.
From a political perspective, Paterson's pick makes sense. He shores up support among women and Clinton supporters, and also gains some chits Upstate, which may be difficult terrain for the governor in his quest for a term in his own right in 2010.
Gillibrand has been branded a "centrist," which applied to her is a somewhat meaningless term. She has been endorsed by the NRA, which is to some degree necessary to win election in Upstate New York where hunting and gun ownership are a significant part of the culture. The Upstate hunting vote doesn't necessarily explain Gillibrand's vote to repeal the DC semi-automatic ban, however. Her NRA cred has riled up Democratic Long Island Rep. Carolyn McCarthy, whose husband was shot and killed on the LIRR, and who has vowed to run in a primary against Gillibrand.
More troublingly, Gillibrand's record on gay rights is pretty appalling:
According to the Human Rights Campaign, she voted against the repealing of Don't Ask Don't Tell, opposed legislation that would grant equal tax treatment for employer-provided health coverage for domestic partners, opposed legislation to grant same-sex partners of U.S. citizens and permanent residents the same immigration benefits of married couples and opposed legislation to permit state Medicaid programs to cover low-income, HIV-positive Americans before they develop AIDS.
Apparently she also interned for Alphonse D'Amato when she was in college.... I'm starting to like this pick less and less the more I learn.
New Contributor
As you may have noticed from the previous post (exposing the pre-recorded nature of the Yo Yo Ma ensemble at the inauguration), cnyexpat has a new contributor. Adam is a campaign buddy from my Gore campaign days in Florida, and is currently a lawyer living in Texas. I'm looking forward to the opportunity to having some more dialogue on the blog, as well as having the benefit of his insights into politics.
Wow, my first blog post on Cnyexpat and I'm already questioning the artistic integrity of Yitzchak Pearlman and Yo-Yo Ma! As the Tiempos del Nuevo York explained, that first 'live' performance of the administration was actually pre-recorded for our listening pleasure.
The reason why they did it makes plenty of sense; very cold and windy conditions make it difficult to make music. See performance of Aretha Franklin, ibid, (lacking usual awesomeness).
That explains the problem, but not the solution. I don't doubt that those four musicians could lay down an equally awesome performance right now should they so choose, but that's not what they did by getting up there in front of us. In effect, they said, "We're doing this right now." Why break faith with the audience like that? Why not either find some other way to perform (like inside a translucent screen), or just show us a video?
The reason why they did it makes plenty of sense; very cold and windy conditions make it difficult to make music. See performance of Aretha Franklin, ibid, (lacking usual awesomeness).
That explains the problem, but not the solution. I don't doubt that those four musicians could lay down an equally awesome performance right now should they so choose, but that's not what they did by getting up there in front of us. In effect, they said, "We're doing this right now." Why break faith with the audience like that? Why not either find some other way to perform (like inside a translucent screen), or just show us a video?
Wednesday, January 21, 2009
First Move
From Reuters:
GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - Hours after taking office on Tuesday, President Barack Obama ordered military prosecutors in the Guantanamo war crimes tribunals to ask for a 120-day halt in all pending cases.
Military judges were expected to rule on the request Wednesday at the U.S. naval base in Guantanamo Bay, Cuba, an official involved in the trials said on condition of anonymity.
The request would halt proceedings in 21 pending cases, including the death penalty case against five Guantanamo prisoners accused of plotting the Sept. 11 hijacked plane attacks in 2001.
Prosecutors said in their written request the halt was "in the interests of justice."
GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - Hours after taking office on Tuesday, President Barack Obama ordered military prosecutors in the Guantanamo war crimes tribunals to ask for a 120-day halt in all pending cases.
Military judges were expected to rule on the request Wednesday at the U.S. naval base in Guantanamo Bay, Cuba, an official involved in the trials said on condition of anonymity.
The request would halt proceedings in 21 pending cases, including the death penalty case against five Guantanamo prisoners accused of plotting the Sept. 11 hijacked plane attacks in 2001.
Prosecutors said in their written request the halt was "in the interests of justice."
Citizens
Linda Hirshmann has a very interesting take on Obama's speech, starting with his address to "My fellow citizens":
There are two kinds of participants in the American Republic: citizens and Americans. They parallel precisely Isaiah Berlin's powerful, defining essay, "Two Concepts of Liberty." Citizens achieve positive liberty, freedom to. Americans enjoy negative liberty, freedom from. Almost nothing Barack Obama says is accidental. He chose "citizens," not "Americans."
...
Now Barack Obama, no dummy, is offering not just political change, but metaphysical change. Like few others in the liberal revival, he has learned the lesson that if you're going to change the politics, you must change people's understandings of what it means to be human, to make them let go of the possessive individualism that has led to such disaster. We caught a glimpse of this in his debate with Joe the Plumber, in which he gently tried to lead Joe to see himself as related to someone, even if it was only Joe's younger, poorer self. In invoking the concept of citizenship, he has at his side a strand of American history often overlooked in the last, conservative years: that, as the prize-winning American historian Gordon Wood the American Republic was founded in classical virtue, most particularly the virtue and the service ethic of the Father, George Washington.
There are two kinds of participants in the American Republic: citizens and Americans. They parallel precisely Isaiah Berlin's powerful, defining essay, "Two Concepts of Liberty." Citizens achieve positive liberty, freedom to. Americans enjoy negative liberty, freedom from. Almost nothing Barack Obama says is accidental. He chose "citizens," not "Americans."
...
Now Barack Obama, no dummy, is offering not just political change, but metaphysical change. Like few others in the liberal revival, he has learned the lesson that if you're going to change the politics, you must change people's understandings of what it means to be human, to make them let go of the possessive individualism that has led to such disaster. We caught a glimpse of this in his debate with Joe the Plumber, in which he gently tried to lead Joe to see himself as related to someone, even if it was only Joe's younger, poorer self. In invoking the concept of citizenship, he has at his side a strand of American history often overlooked in the last, conservative years: that, as the prize-winning American historian Gordon Wood the American Republic was founded in classical virtue, most particularly the virtue and the service ethic of the Father, George Washington.
Tuesday, January 20, 2009
Inaugural Balls
I've been watching MSNBC's coverage of the inaugural balls, and I find it really interesting that at each ball, the President and First Lady dance alone on a stage (apparently always to Etta James "At Last"). This is very new to me, as I didn't spend much time watching much the Bush inaugural balls, and the Clinton inaugural balls were past my bedtime. I always imagined the President/First Lady dances looking much more like the dance at the state dinner in The American President (which you can watch here, but for some reason I can't embed).
Inaugural speech inevitable quibble with accuracy
I imagine somebody caught this in pre-speech vetting, but decided it would be too confusing to use the correct number:
Forty-four Americans have now taken the presidential oath. The words have been spoken during rising tides of prosperity and the still waters of peace. Yet, every so often the oath is taken amidst gathering clouds and raging storms.
For the record, it's only 43- Grover Cleveland was sworn in twice, non-sequentially. Despite being nicknamed "Uncle Jumbo," Cleveland only counts as one American.
Forty-four Americans have now taken the presidential oath. The words have been spoken during rising tides of prosperity and the still waters of peace. Yet, every so often the oath is taken amidst gathering clouds and raging storms.
For the record, it's only 43- Grover Cleveland was sworn in twice, non-sequentially. Despite being nicknamed "Uncle Jumbo," Cleveland only counts as one American.
Speech take 1
One of the things that I found most striking in Obama's speech was the "small-c" conservatism at its core:
Our challenges may be new. The instruments with which we meet them may be new. But those values upon which our success depends - hard work and honesty, courage and fair play, tolerance and curiosity, loyalty and patriotism - these things are old. These things are true. They have been the quiet force of progress throughout our history. What is demanded then is a return to these truths. What is required of us now is a new era of responsibility - a recognition, on the part of every American, that we have duties to ourselves, our nation, and the world, duties that we do not grudgingly accept but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character, than giving our all to a difficult task.
Note the recognition of immutable values ("old" and "true"), and the credit given to those values as cornerstones of American society. For all the right's complaints about Obama as some kind of mushy-headed cultural relativist out of the ivy tower, the man sticks by the values that motivated Lincoln, TR, FDR and Reagan.
Our challenges may be new. The instruments with which we meet them may be new. But those values upon which our success depends - hard work and honesty, courage and fair play, tolerance and curiosity, loyalty and patriotism - these things are old. These things are true. They have been the quiet force of progress throughout our history. What is demanded then is a return to these truths. What is required of us now is a new era of responsibility - a recognition, on the part of every American, that we have duties to ourselves, our nation, and the world, duties that we do not grudgingly accept but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character, than giving our all to a difficult task.
Note the recognition of immutable values ("old" and "true"), and the credit given to those values as cornerstones of American society. For all the right's complaints about Obama as some kind of mushy-headed cultural relativist out of the ivy tower, the man sticks by the values that motivated Lincoln, TR, FDR and Reagan.
Friday, January 16, 2009
An alternative to prosecution
I've been thinking and talking about alternatives to prosecuting senior members of the Bush administration for torture.
I thinkt that prosecuting Cheney, Addington, Yoo, etc. in a realstic world would risk becoming a circus, and that it would drag in the new administration and poison the atmosphere of bipartisanship that would allow anything to get done in Washington. In a time of peace and prosperity we managed to get through the Clinton impeachment, but you'll note that not much substantive governing got done during that time. I also think that prosecuting an outgoing administration sets a problematic precedent, as almost every administration does things that are technically illegal-- Lincoln suspending habeas corpus, FDR with Japanese internment, Kennedy and LBJ with their CIA plots against Castro, Reagan with Iran Contra. The fear that actions taken during an adminstration could result in imprisonment could lead to a.) much more dithering by a president, and more perniciously, b.) presidents thinking long and hard before giving up power.
In the Roman Republic, persons elected to the Consulship (or its follow-up position, pro-consul governing a province) had largely unchecked power for their year term, as their body was inviolate (they couldn't be attacked or seized). The primary leash on a Consul, other than threat to reputation, was the threat of prosecution/suit when they stepped down. The Romans didn't have public prosecutors as we do- prosecutions brought on the behalf of those wronged much in the way that civil suits are undertaken nowadays. The idea being that if, while you were consul you unjustly seized somebody's villa, or exiled someone, you could be brought to justice by that party.
In the late Republic, this sort of system was (and I'm broadly generalizing) often ignored in favor of proscription lists, where the incoming winners would create a list of the various people supporting the last administration, and those on the list could be killed and their property taken. This lead to Caesar demanding, after his consulship, an unprecedented five-year proconsulship in Gaul with his own army- to avoid proscription or other serious penalty for his actions as consul. And we all know how that "Caesar gets his own army in Gaul" thing turned out. Now think about an unpardoned Nixon, "about-to-face-prosecution-Dick-Cheney," or similar characters down the road, and ask yourself how many times we want to stand at the Rubicon rolling the dice and hoping that they're all better people than Caesar.
The upshot is that I think that a solution closer to the Republic's "private prosecution" than to the Caesar option is called for in this situation. Fortunately, in the US, we already have something along these lines. The breadth of this administration's torture program has left us with a number of sympathetic plaintiffs, and they have available to them lawsuits called "Bivens Actions," named after Bivens v. Six Unknown Named Agents. In a Bivens Action,
federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)
The plaintiffs could bring suit for money damages directly against Cheney, Yoo, etc, and would certainly be helped along by sophisticated attorneys from the ACLU and other such entities. The process could be greatly aided if the Obama administration directed the Solicitor General to file an Amicus brief countering the argument sure to be made by the Bush administration officials that various documents couldn't be turned over because of national security concerns. Obama could essentially say that, since we're closing Gitmo and no longer practicing extraordinary rendition, the documents relating to those practices need no longer be secret. I think there might still be some issues with executive privilege, but the fact that the administration is no longer in power should do much to quell those.
Lawyers (and Classics Majors!)... what am I missing here? Does this work?
UPDATE: A Classics expert friend tells me that Caesar's actions in crossing the Rubicon were largely motivated by the fear of what Pompey would do to him if he returned to Rome (as the Senate demanded) as a private citizen, as opposed to as an inviolate proconsul with an army. The point still stands that it's very problematic to set up a system where Presidents potentially face routine prosecution by their successors... that sets up a serious disincentive to step down. And as my friend writes, "it's a very thin thread we hang on when we talk about the rule of law."
I thinkt that prosecuting Cheney, Addington, Yoo, etc. in a realstic world would risk becoming a circus, and that it would drag in the new administration and poison the atmosphere of bipartisanship that would allow anything to get done in Washington. In a time of peace and prosperity we managed to get through the Clinton impeachment, but you'll note that not much substantive governing got done during that time. I also think that prosecuting an outgoing administration sets a problematic precedent, as almost every administration does things that are technically illegal-- Lincoln suspending habeas corpus, FDR with Japanese internment, Kennedy and LBJ with their CIA plots against Castro, Reagan with Iran Contra. The fear that actions taken during an adminstration could result in imprisonment could lead to a.) much more dithering by a president, and more perniciously, b.) presidents thinking long and hard before giving up power.
In the Roman Republic, persons elected to the Consulship (or its follow-up position, pro-consul governing a province) had largely unchecked power for their year term, as their body was inviolate (they couldn't be attacked or seized). The primary leash on a Consul, other than threat to reputation, was the threat of prosecution/suit when they stepped down. The Romans didn't have public prosecutors as we do- prosecutions brought on the behalf of those wronged much in the way that civil suits are undertaken nowadays. The idea being that if, while you were consul you unjustly seized somebody's villa, or exiled someone, you could be brought to justice by that party.
In the late Republic, this sort of system was (and I'm broadly generalizing) often ignored in favor of proscription lists, where the incoming winners would create a list of the various people supporting the last administration, and those on the list could be killed and their property taken. This lead to Caesar demanding, after his consulship, an unprecedented five-year proconsulship in Gaul with his own army- to avoid proscription or other serious penalty for his actions as consul. And we all know how that "Caesar gets his own army in Gaul" thing turned out. Now think about an unpardoned Nixon, "about-to-face-prosecution-Dick-Cheney," or similar characters down the road, and ask yourself how many times we want to stand at the Rubicon rolling the dice and hoping that they're all better people than Caesar.
The upshot is that I think that a solution closer to the Republic's "private prosecution" than to the Caesar option is called for in this situation. Fortunately, in the US, we already have something along these lines. The breadth of this administration's torture program has left us with a number of sympathetic plaintiffs, and they have available to them lawsuits called "Bivens Actions," named after Bivens v. Six Unknown Named Agents. In a Bivens Action,
federal employees may become personally liable for constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which constitutional practices occur or gross negligence in managing subordinates who cause violations. (Gallegos v. Haggerty, Northern District of New York, 689 F.Supp. 93)
The plaintiffs could bring suit for money damages directly against Cheney, Yoo, etc, and would certainly be helped along by sophisticated attorneys from the ACLU and other such entities. The process could be greatly aided if the Obama administration directed the Solicitor General to file an Amicus brief countering the argument sure to be made by the Bush administration officials that various documents couldn't be turned over because of national security concerns. Obama could essentially say that, since we're closing Gitmo and no longer practicing extraordinary rendition, the documents relating to those practices need no longer be secret. I think there might still be some issues with executive privilege, but the fact that the administration is no longer in power should do much to quell those.
Lawyers (and Classics Majors!)... what am I missing here? Does this work?
UPDATE: A Classics expert friend tells me that Caesar's actions in crossing the Rubicon were largely motivated by the fear of what Pompey would do to him if he returned to Rome (as the Senate demanded) as a private citizen, as opposed to as an inviolate proconsul with an army. The point still stands that it's very problematic to set up a system where Presidents potentially face routine prosecution by their successors... that sets up a serious disincentive to step down. And as my friend writes, "it's a very thin thread we hang on when we talk about the rule of law."
Thursday, January 15, 2009
CAT and Torture
Earlier this week, Susan Crawford, the former Inspector General of the DoD and Court of Appeals for the US Armed Forces, and convening authority for the military tribunals trying terror suspects, stated flatly that Mohammed al-Qahtani , the "20th hijacker" on September 11th, couldn't be tried because he had been tortured. Dahlia Lithwick and Philippe Sands write that the admission by a top government/military official that the United States has committed torture changes the game:
Under the 1984 Torture Convention, its 146 state parties (including the United States) are under an obligation to "ensure that all acts of torture are offences under its criminal law." These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Sen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.
I'm not sure how the obligation to prosecute would square with the very strong American legal tradition of prosecutorial discretion. Typically, decisions by the government not to prosecute aren't reviewable in court, so I don't know what mechanism could force the Justice Department to prosecute if the President and AG decide not to.
This does, however, bring significantly more pressure onto the incoming Obama administration to do something about looking into the Bush Administration's torture policy. What that something should be I don't quite know.
Under the 1984 Torture Convention, its 146 state parties (including the United States) are under an obligation to "ensure that all acts of torture are offences under its criminal law." These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Sen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.
I'm not sure how the obligation to prosecute would square with the very strong American legal tradition of prosecutorial discretion. Typically, decisions by the government not to prosecute aren't reviewable in court, so I don't know what mechanism could force the Justice Department to prosecute if the President and AG decide not to.
This does, however, bring significantly more pressure onto the incoming Obama administration to do something about looking into the Bush Administration's torture policy. What that something should be I don't quite know.
Tuesday, January 13, 2009
How to push back on the Bush Administration's "midnight regs"
A friend of mine emails me a post on Obsidian Wings from shortly after the election which is a must-read for anyone concerned about the last-minute regulations that are being pushed through government agencies by the Bush administration:
Among the regulations being monitored are a proposal to end a ban on carrying loaded guns in national parks, a plan that could make it harder for women to get federally funded reproductive health care, and a Labor Department proposal to change the way regulators assess risk for jobs, especially those that expose workers to chemicals.
These regulations can be made without the consent of Congress as part of the powers delegated to the various government agencies controlled by the executive branch. Once in place, it can be very laborious to remove them- involving extended periods of public "notice and comment" where industry lobbyists have the opportunity to drag out the proceedings.
Publius on Obsidian Wings brings up a law that I hadn't previously heard of called the Congressional Review Act of 1996 (CRA), that would allow Congress and Obama to nip these regulations in the bud, without being subject to filibuster in the Senate:
Long story short – the CRA potentially helps Obama repeal last-minute regulations in two ways: (1) it extends the “effective date” of Bush’s “major” regulations; and (2) it gives Congress a limited window to veto any newly-enacted regulation, regardless of whether it’s already become effective.
To back up, the CRA requires that agencies submit copies of new regulations to Congress before they can go into effect. With respect to #1 above, the CRA requires that “major” rules cannot go into effect until 60 days after this submission. As Professor Shane notes, if “Congress adjourns for a new session within 60 days,” then the review period restarts on the 15th day of the next session. In short, it’s as if the rules had been submitted to Congress for the first time around Day 1 of the Obama presidency. That means any last-minute “major” rules won’t be “effective” when Obama takes office. Thus, he can postpone (and presumably kill) them immediately.
However, #2 is arguably more important because it covers rules that have already gone into effect. For any new rule (major or not), Congress has a limited 60-day window to repeal it via joint resolution (which must be signed by the president). Here too, if Congress adjourns within 60 days of receiving the rule submission, the whole thing starts again on Day 15 of the next congressional session.
In short, Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours. I presume the legal eagles working for Obama know all this – but it can’t hurt to remind them.Long story short – the CRA potentially helps Obama repeal last-minute regulations in two ways: (1) it extends the “effective date” of Bush’s “major” regulations; and (2) it gives Congress a limited window to veto any newly-enacted regulation, regardless of whether it’s already become effective. I’ll expand on both below.
To back up, the CRA requires that agencies submit copies of new regulations to Congress before they can go into effect. With respect to #1 above, the CRA requires that “major” rules cannot go into effect until 60 days after this submission. As Professor Shane notes, if “Congress adjourns for a new session within 60 days,” then the review period restarts on the 15th day of the next session. In short, it’s as if the rules had been submitted to Congress for the first time around Day 1 of the Obama presidency. That means any last-minute “major” rules won’t be “effective” when Obama takes office. Thus, he can postpone (and presumably kill) them immediately.
However, #2 is arguably more important because it covers rules that have already gone into effect. For any new rule (major or not), Congress has a limited 60-day window to repeal it via joint resolution (which must be signed by the president). Here too, if Congress adjourns within 60 days of receiving the rule submission, the whole thing starts again on Day 15 of the next congressional session.
In short, Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours.
Among the regulations being monitored are a proposal to end a ban on carrying loaded guns in national parks, a plan that could make it harder for women to get federally funded reproductive health care, and a Labor Department proposal to change the way regulators assess risk for jobs, especially those that expose workers to chemicals.
These regulations can be made without the consent of Congress as part of the powers delegated to the various government agencies controlled by the executive branch. Once in place, it can be very laborious to remove them- involving extended periods of public "notice and comment" where industry lobbyists have the opportunity to drag out the proceedings.
Publius on Obsidian Wings brings up a law that I hadn't previously heard of called the Congressional Review Act of 1996 (CRA), that would allow Congress and Obama to nip these regulations in the bud, without being subject to filibuster in the Senate:
Long story short – the CRA potentially helps Obama repeal last-minute regulations in two ways: (1) it extends the “effective date” of Bush’s “major” regulations; and (2) it gives Congress a limited window to veto any newly-enacted regulation, regardless of whether it’s already become effective.
To back up, the CRA requires that agencies submit copies of new regulations to Congress before they can go into effect. With respect to #1 above, the CRA requires that “major” rules cannot go into effect until 60 days after this submission. As Professor Shane notes, if “Congress adjourns for a new session within 60 days,” then the review period restarts on the 15th day of the next session. In short, it’s as if the rules had been submitted to Congress for the first time around Day 1 of the Obama presidency. That means any last-minute “major” rules won’t be “effective” when Obama takes office. Thus, he can postpone (and presumably kill) them immediately.
However, #2 is arguably more important because it covers rules that have already gone into effect. For any new rule (major or not), Congress has a limited 60-day window to repeal it via joint resolution (which must be signed by the president). Here too, if Congress adjourns within 60 days of receiving the rule submission, the whole thing starts again on Day 15 of the next congressional session.
In short, Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours. I presume the legal eagles working for Obama know all this – but it can’t hurt to remind them.Long story short – the CRA potentially helps Obama repeal last-minute regulations in two ways: (1) it extends the “effective date” of Bush’s “major” regulations; and (2) it gives Congress a limited window to veto any newly-enacted regulation, regardless of whether it’s already become effective. I’ll expand on both below.
To back up, the CRA requires that agencies submit copies of new regulations to Congress before they can go into effect. With respect to #1 above, the CRA requires that “major” rules cannot go into effect until 60 days after this submission. As Professor Shane notes, if “Congress adjourns for a new session within 60 days,” then the review period restarts on the 15th day of the next session. In short, it’s as if the rules had been submitted to Congress for the first time around Day 1 of the Obama presidency. That means any last-minute “major” rules won’t be “effective” when Obama takes office. Thus, he can postpone (and presumably kill) them immediately.
However, #2 is arguably more important because it covers rules that have already gone into effect. For any new rule (major or not), Congress has a limited 60-day window to repeal it via joint resolution (which must be signed by the president). Here too, if Congress adjourns within 60 days of receiving the rule submission, the whole thing starts again on Day 15 of the next congressional session.
In short, Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours.
How high?
I'm generally a supporter of our close strategic relationship with Israel, but it's definitely not helpful to a.) our general international prestige and b.) any concept in the Arab world that the U.S. can be an "honest broker" in the region to have Olmert bragging about his ability to have the U.S. president pulled off a podium like a kid dragged out of class to go talk to the principal:
In an unusually public rebuke, Prime Minister Ehud Olmert of Israel said Monday that Secretary of State Condoleezza Rice had been forced to abstain from a United Nations resolution on Gaza that she helped draft, after Mr. Olmert placed a phone call to President Bush.
“I said, ‘Get me President Bush on the phone,’ ” Mr. Olmert said in a speech in the southern Israeli city of Ashkelon, according to The Associated Press. “They said he was in the middle of giving a speech in Philadelphia. I said I didn’t care: ‘I need to talk to him now,’ ” Mr. Olmert continued. “He got off the podium and spoke to me.”
Israel opposed the resolution, which called for a halt to the fighting in Gaza, because the government said it did not provide for Israel’s security. It passed 14 to 0, with the United States abstaining.
Mr. Olmert claimed that once he made his case to Mr. Bush, the president called Ms. Rice and told her to abstain. “She was left pretty embarrassed,” Mr. Olmert said, according to The A.P.
(via Andrew Sullivan)
In an unusually public rebuke, Prime Minister Ehud Olmert of Israel said Monday that Secretary of State Condoleezza Rice had been forced to abstain from a United Nations resolution on Gaza that she helped draft, after Mr. Olmert placed a phone call to President Bush.
“I said, ‘Get me President Bush on the phone,’ ” Mr. Olmert said in a speech in the southern Israeli city of Ashkelon, according to The Associated Press. “They said he was in the middle of giving a speech in Philadelphia. I said I didn’t care: ‘I need to talk to him now,’ ” Mr. Olmert continued. “He got off the podium and spoke to me.”
Israel opposed the resolution, which called for a halt to the fighting in Gaza, because the government said it did not provide for Israel’s security. It passed 14 to 0, with the United States abstaining.
Mr. Olmert claimed that once he made his case to Mr. Bush, the president called Ms. Rice and told her to abstain. “She was left pretty embarrassed,” Mr. Olmert said, according to The A.P.
(via Andrew Sullivan)
Friday, January 09, 2009
High Speed Stimulus
John Judis Makes an interesting argument in TNR that Obama needs to consider two significant additions to his stimulus/recovery plan. The first, which I wholeheartedly agree with, is that the stimulus should include massive investment in transit, particularly in inter-city high-speed rail, particularly in the Northeast Bos-Wash corridor and on the West Coast between San Diego and San Francisco. The Accela train, which I've taken from NY to DC, is the fastest rail in the U.S., and only runs at about 100 mph, or half of what bullet trains in Asia and Europe can achieve.
Cutting the travel times between these cities by half or more would make rail the best option for travelers, and would ultimately save money that would have to be spent on less eco-friendly infrastructure like expanded highways and airports. The California High Speed Rail Authority estimates that HSR in California could save $80-150 billion in road and airport expansions.
Right now, the Obama plan only includes $5 billion for inter-city rail, where estimates run about $100b for East and West coast projects (and also think about the potential for an HSR network in the midwest between Indianapolis, Detroit, Chicago, Milwaukee and Cleveland, which with already-available HSR technology could be about an hour's train ride apart).
The second part of Judis's article, about re-establishing the Bretton Woods system, is above my level of economics, but worth reading for those who know more about international finance than I.
Cutting the travel times between these cities by half or more would make rail the best option for travelers, and would ultimately save money that would have to be spent on less eco-friendly infrastructure like expanded highways and airports. The California High Speed Rail Authority estimates that HSR in California could save $80-150 billion in road and airport expansions.
Right now, the Obama plan only includes $5 billion for inter-city rail, where estimates run about $100b for East and West coast projects (and also think about the potential for an HSR network in the midwest between Indianapolis, Detroit, Chicago, Milwaukee and Cleveland, which with already-available HSR technology could be about an hour's train ride apart).
The second part of Judis's article, about re-establishing the Bretton Woods system, is above my level of economics, but worth reading for those who know more about international finance than I.
MASH: Gaza
Jeffrey Goldberg has a great idea for ameliorating Palestinian anger at the Israeli incursion into Gaza- set up a giant field hospital so that Israeli doctors can treat wounded Palestinian civilians.
Enough with the fundraising
Marc Ambinder gives voice to something I've been feeling, namely that I'm pretty sick of being hit up by the Obama folks for funds to pay for the inauguration. I realize that they have to pay for the parades, the bunting and all of that, but I'd have to imagine that by now that's taken care of and I'm being asked to pay for inaugural balls and dinners that I'm not attending.
I appreciate that Obama isn't taking lobbyist money to fund the inauguration, and that the capital mall will be open for folks to attend without tickets, making this a more populist event than it's been in the past. Still, lots of people stretched their budgets to contribute during the campaign, and it's been a bit much to have every email from David Plouffe contain a request for another $250.
I think it would have been a better idea to send out fewer fundraising emails for the inauguration and save the requests for when they're really needed, like to run ads in critical congressional districts to pass universal health care. I realize that the inauguration needs to be paid for, but Plouffe and co. are drawing down their pool of good will a bit early.
I appreciate that Obama isn't taking lobbyist money to fund the inauguration, and that the capital mall will be open for folks to attend without tickets, making this a more populist event than it's been in the past. Still, lots of people stretched their budgets to contribute during the campaign, and it's been a bit much to have every email from David Plouffe contain a request for another $250.
I think it would have been a better idea to send out fewer fundraising emails for the inauguration and save the requests for when they're really needed, like to run ads in critical congressional districts to pass universal health care. I realize that the inauguration needs to be paid for, but Plouffe and co. are drawing down their pool of good will a bit early.
Thursday, January 08, 2009
Joe the War Correspondent
Right-leaning blogging outfit Pajamas Media, in a move sure to heighten its credibility among readers, has hired 2008 campaign has-been Sam "Joe the Plumber" Wurzelbacher to handle war correspondent duties in Israel and Gaza.
This should give him the resume to be the GOP's VP in 2012.
This should give him the resume to be the GOP's VP in 2012.
Wednesday, January 07, 2009
Sanjay Gupta, maybe less of a joke than I previously thought.
Jokes aside, I don't really see the problem with Sanjay Gupta as Surgeon General. He's a neurosurgeon with an MD from U Michigan, and was an assistant professor of neurosurgery at Emory. I've never watched much of him on CNN, but he seems to be pretty effective at conveying public health information to laypeople, which is basically the job description of the Surgeon General.
Apparently a number of folks are up in arms about Gupta's appointment because he criticized Michael Moore for "fudging facts" in Sicko. After that criticism, Gupta debated Moore on Larry King Live, and later corrected a misstatement he made during that debate. I haven't seen Sicko or the debate, but Moore has been widely criticized for sloppy fact-checking, so I hardly think that this is a disqualification.
Others have criticized Gupta as a celebrity and for not being "at the top of his field," but the Surgeon General isn't a prize for being the nation's best doctor- in fact, I'd rather that the very best doctors stay in hospitals and their practices. The job of the Surgeon General is largely a symbolic one- to convince people to take measures that will increase their health and the public health. This is basically what Gupta's been doing on CNN, arguably more effectively than the last couple Surgeons General (I'll buy you a beer if you can tell me who the current one is without looking it up). If Gupta's celebrity gets people to pay more attention to the government's exhortations to eat better, exercise more, not lick lead paint, etc., then this seems like a good choice.
Apparently a number of folks are up in arms about Gupta's appointment because he criticized Michael Moore for "fudging facts" in Sicko. After that criticism, Gupta debated Moore on Larry King Live, and later corrected a misstatement he made during that debate. I haven't seen Sicko or the debate, but Moore has been widely criticized for sloppy fact-checking, so I hardly think that this is a disqualification.
Others have criticized Gupta as a celebrity and for not being "at the top of his field," but the Surgeon General isn't a prize for being the nation's best doctor- in fact, I'd rather that the very best doctors stay in hospitals and their practices. The job of the Surgeon General is largely a symbolic one- to convince people to take measures that will increase their health and the public health. This is basically what Gupta's been doing on CNN, arguably more effectively than the last couple Surgeons General (I'll buy you a beer if you can tell me who the current one is without looking it up). If Gupta's celebrity gets people to pay more attention to the government's exhortations to eat better, exercise more, not lick lead paint, etc., then this seems like a good choice.
Seat Burris
Erwin Chemerinsky, Dean of the UC Irvine Law School, noted constitutional scholar, and renowned among recent bar examinees as the guy who memorized three hours worth of con law outline, lays out a pretty good case why Burris should be seated by the Senate:
The relevant provision of the Constitution is found in Article I, Section 5. It says: "Each house shall be the judge of the elections, returns and qualifications of its own members." But the Supreme Court has been clear that these words do not bestow on the House or the Senate unfettered discretion in deciding whom to seat.
Chemerisnky notes that in Powell v. McCormack, Chief Justice Warren, writing for a 7-1 majority, held that "The Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets the requirements for membership expressly provided in the Constitution." Applied to the Senate, those requirements are Burris be at least 30, be a U.S. citizen for 9 years, and be a resident of Illinois, all three of which he unquestionably meets.
Those who wish to block Blagojevich's appointment are also mustering a second constitutional argument, citing Congress' stated power to decide "elections" and "returns" of its members. The claim is that Burris was not properly selected and thus the Senate can exclude him. The problem here is that Burris unquestionably was lawfully selected. According to the 17th Amendment, "When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies." Illinois law gives this power to the state governor, and that is Blagojevich until he is impeached and found guilty.
The Supreme Court's conclusion could not be clearer or more on point: "In short, both the intention of the framers, to the extent that it can be determined, and an examination of basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote."
The relevant provision of the Constitution is found in Article I, Section 5. It says: "Each house shall be the judge of the elections, returns and qualifications of its own members." But the Supreme Court has been clear that these words do not bestow on the House or the Senate unfettered discretion in deciding whom to seat.
Chemerisnky notes that in Powell v. McCormack, Chief Justice Warren, writing for a 7-1 majority, held that "The Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets the requirements for membership expressly provided in the Constitution." Applied to the Senate, those requirements are Burris be at least 30, be a U.S. citizen for 9 years, and be a resident of Illinois, all three of which he unquestionably meets.
Those who wish to block Blagojevich's appointment are also mustering a second constitutional argument, citing Congress' stated power to decide "elections" and "returns" of its members. The claim is that Burris was not properly selected and thus the Senate can exclude him. The problem here is that Burris unquestionably was lawfully selected. According to the 17th Amendment, "When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies." Illinois law gives this power to the state governor, and that is Blagojevich until he is impeached and found guilty.
The Supreme Court's conclusion could not be clearer or more on point: "In short, both the intention of the framers, to the extent that it can be determined, and an examination of basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote."
An Intelligence Professional in Charge
Dianne Feinstein, pushing back against Obama's choice for CIA Director, Leon Panetta, says that "the agency is best served by having an intelligence professional in charge."
Remember that, for the past five or six years, most of the "intelligence professionals" operating at the CIA have been involved in one way or another with Bush's rendition and torture policy (including 11 year agent and former Bush CIA head Porter Goss). Also note that current Defense Secretary Robert Gates is the only career CIA man ever to helm the Agency- most of the directors (Tenet, George H.W. Bush, William Webster) had tangential intelligence experience before taking the helm, but were never line agents.
Panetta, as a four term congressman and Clinton's chief of staff for three years, has an enormous amount of national security experience. The president's CoS knows everything that's going on in the government, including the intelligence and national security apparatus. Add to this that Panetta is an exceptionally strong administrator, has a good relationship with Obama, and has unequivocally denounced the use of torture, and this looks like a good pick to me.
Remember that, for the past five or six years, most of the "intelligence professionals" operating at the CIA have been involved in one way or another with Bush's rendition and torture policy (including 11 year agent and former Bush CIA head Porter Goss). Also note that current Defense Secretary Robert Gates is the only career CIA man ever to helm the Agency- most of the directors (Tenet, George H.W. Bush, William Webster) had tangential intelligence experience before taking the helm, but were never line agents.
Panetta, as a four term congressman and Clinton's chief of staff for three years, has an enormous amount of national security experience. The president's CoS knows everything that's going on in the government, including the intelligence and national security apparatus. Add to this that Panetta is an exceptionally strong administrator, has a good relationship with Obama, and has unequivocally denounced the use of torture, and this looks like a good pick to me.
Department of Questionable Choices
From my Texan buddy: Clearly, if Sanjay Gupta is going to be Surgeon General, then the best choice for Commerce Secretary must be the guy from "Sham-Wow!"
Tuesday, January 06, 2009
Another view of Gaza
While I don't think that Israel's invasion of Gaza is going to solve anything, Jeffrey Goldberg (who has served in the Israeli army) makes an interesting point about Hamas and the omnipresent photos of young Palestinian victims of the war:
Hamas terrorists unblinkingly and ostentatiously use their own civilians as human shields. I've seen this up-close, and it's repulsive. One story the media isn't telling, because it's impossible to get this story in these circumstances (especially because Israel stupidly won't allow foreign reporters into Gaza) is how much resentment the Hamas policy of using Palestinians as human shields causes among Gaza civilians. Early reports indicate that Hamas mortar teams were firing from the UN School. This shouldn't surprise anyone.
One more thing, speaking of pornography -- we've all seen endless pictures of dead Palestinian children now. It's a terrible, ghastly, horrible thing, the deaths of children, and for the parents it doesn't matter if they were killed by accident or by mistake. But ask yourselves this: Why are these pictures so omnipresent? I'll tell you why, again from firsthand, and repeated, experience: Hamas (and the Aksa Brigades, and Islamic Jihad, the whole bunch) prevents the burial, or even preparation of the bodies for burial, until the bodies are used as props in the Palestinian Passion Play. Once, in Khan Younis, I actually saw gunmen unwrap a shrouded body, carry it a hundred yards and position it atop a pile of rubble -- and then wait a half-hour until photographers showed. It was one of the more horrible things I've seen in my life. And it's typical of Hamas. If reporters would probe deeper, they'd learn the awful truth of Hamas. But Palestinian moral failings are not of great interest to many people.
Hamas terrorists unblinkingly and ostentatiously use their own civilians as human shields. I've seen this up-close, and it's repulsive. One story the media isn't telling, because it's impossible to get this story in these circumstances (especially because Israel stupidly won't allow foreign reporters into Gaza) is how much resentment the Hamas policy of using Palestinians as human shields causes among Gaza civilians. Early reports indicate that Hamas mortar teams were firing from the UN School. This shouldn't surprise anyone.
One more thing, speaking of pornography -- we've all seen endless pictures of dead Palestinian children now. It's a terrible, ghastly, horrible thing, the deaths of children, and for the parents it doesn't matter if they were killed by accident or by mistake. But ask yourselves this: Why are these pictures so omnipresent? I'll tell you why, again from firsthand, and repeated, experience: Hamas (and the Aksa Brigades, and Islamic Jihad, the whole bunch) prevents the burial, or even preparation of the bodies for burial, until the bodies are used as props in the Palestinian Passion Play. Once, in Khan Younis, I actually saw gunmen unwrap a shrouded body, carry it a hundred yards and position it atop a pile of rubble -- and then wait a half-hour until photographers showed. It was one of the more horrible things I've seen in my life. And it's typical of Hamas. If reporters would probe deeper, they'd learn the awful truth of Hamas. But Palestinian moral failings are not of great interest to many people.
Spitzer on the Stimulus Plan
Eliot Spitzer, in an apparent bid for a political comeback, has taken to writing op-ed pieces for Slate. A couple of these in the past have been pretty good, but today's piece, Robots, not Roads, was a mountain of bad advice.
Spitzer criticized Obama's stimulus plan, which is largely a combination of tax cuts and infrastructure spending, as being too backward looking:
Paving roads, repairing bridges that need refurbishing, and accelerating existing projects are all good and necessary, but not transformative. These projects by and large are building or patching the same economy with the same flaws that got us where we are. Our concern should be that as we look for the next great infrastructure project to transform our economy, we might rebuild the Erie Canal and find ourselves a century behind technologically.
Spitzer instead suggests smart power meters, which would adjust the cost of power consumption based on usage and other factors, alternative fuel infrastructure (hydrogen pumps, recharging stations, etc.) and giving every school a robotics club. (Spitzer does suggest using some of the stimulus for subsidizing the switch to online medical records, which I totally support).
There are three main problems with Spitzer's high-tech stimulus plan. The first is that for the bulk of this spending (other than the robotics clubs, since giving every one of America's 120,000 schools 10 grand for a robotics club would only cost a bit over a billion), there isn't a readily agreed upon standard that can be quickly implemented. Electricity transmission, medical records and auto fuel all are governed by network effects, whereby the adoption of a standard makes each unit much more effective. A stimulus package that gives Georgia money to implement one kind of medical record program isn't very helpful if New York is implementing a different one- which is what would happen without clear standards. Same thing with alt fuel- even Spitzer isn't clear whether electric vehicle recharging or hydrogen is the way to go. Spending the stimulus that way would be like paying for a mix of canals, highways and railroads that aren't interoperable.
The second problem (related to the first) is that none of this stuff is quite ready to go yet. The benefit of spending on roads, buildings, etc. is that most states and municipalities have plans and projects that could start hiring immediately once the federal checks show up (or even once they're promised). Many of these projects, like NYC's 2nd avenue subway line, or construction on I-81 through PA, were already in progress before state funds dried up with the recession. High-tech stimulus would require an enormous amount of time figuring out which projects are worthwhile, how they should be implemented, understanding the environmental impacts, etc. before anyone could break ground. With the economy in need of an immediate jumpstart, this kind of delay is a no-go.
The third problem is that high-tech stimulus would do less to ease unemployment. Many of the recently unemployed are low-skilled workers or workers in the construction trades, who can readily find work in standard infrastructure projects. They then spend their wages on local goods and services. Standard infrastructure projects also use a lot of bulky, inexpensive stuff like concrete, wood, steel, etc., much of which is produced in the U.S. because it's not feasible to ship from far away (steel largely excepted). The cement or lumber companies then pay their employees who spend that money locally. This creates what's called a Keynsian multiplier, which increases the value of every dollar of infrastructure spending. High-tech stimulus, however, would probably require importing (at least initially) many of the components of the smart meters, computers for medical records or technology for recharge or hydrogen stations- and that money would go straight out to the exporting countries. Additionally, although there have been layoffs in the tech world, the U.S. still has a shortage of engineers and high-tech workers, and would probably have to either open up immigration or repurpose engineers who were previously working on other projects in order to implement a massive, multi-hundred billion dollar high-tech stimulus plan. Either way, it wouldn't help much with unemployment.
Finally, one of the best reasons to undertake a standard infrastructure stimulus program is that, because there's little demand for construction labor and materials, those "inputs" would cost less than they would in better times, so the government could buy a lot of infrastructure for each stimulus dollar spent. With American infrastructure slipping into third-world territory, now is a great time to buy.
Spitzer criticized Obama's stimulus plan, which is largely a combination of tax cuts and infrastructure spending, as being too backward looking:
Paving roads, repairing bridges that need refurbishing, and accelerating existing projects are all good and necessary, but not transformative. These projects by and large are building or patching the same economy with the same flaws that got us where we are. Our concern should be that as we look for the next great infrastructure project to transform our economy, we might rebuild the Erie Canal and find ourselves a century behind technologically.
Spitzer instead suggests smart power meters, which would adjust the cost of power consumption based on usage and other factors, alternative fuel infrastructure (hydrogen pumps, recharging stations, etc.) and giving every school a robotics club. (Spitzer does suggest using some of the stimulus for subsidizing the switch to online medical records, which I totally support).
There are three main problems with Spitzer's high-tech stimulus plan. The first is that for the bulk of this spending (other than the robotics clubs, since giving every one of America's 120,000 schools 10 grand for a robotics club would only cost a bit over a billion), there isn't a readily agreed upon standard that can be quickly implemented. Electricity transmission, medical records and auto fuel all are governed by network effects, whereby the adoption of a standard makes each unit much more effective. A stimulus package that gives Georgia money to implement one kind of medical record program isn't very helpful if New York is implementing a different one- which is what would happen without clear standards. Same thing with alt fuel- even Spitzer isn't clear whether electric vehicle recharging or hydrogen is the way to go. Spending the stimulus that way would be like paying for a mix of canals, highways and railroads that aren't interoperable.
The second problem (related to the first) is that none of this stuff is quite ready to go yet. The benefit of spending on roads, buildings, etc. is that most states and municipalities have plans and projects that could start hiring immediately once the federal checks show up (or even once they're promised). Many of these projects, like NYC's 2nd avenue subway line, or construction on I-81 through PA, were already in progress before state funds dried up with the recession. High-tech stimulus would require an enormous amount of time figuring out which projects are worthwhile, how they should be implemented, understanding the environmental impacts, etc. before anyone could break ground. With the economy in need of an immediate jumpstart, this kind of delay is a no-go.
The third problem is that high-tech stimulus would do less to ease unemployment. Many of the recently unemployed are low-skilled workers or workers in the construction trades, who can readily find work in standard infrastructure projects. They then spend their wages on local goods and services. Standard infrastructure projects also use a lot of bulky, inexpensive stuff like concrete, wood, steel, etc., much of which is produced in the U.S. because it's not feasible to ship from far away (steel largely excepted). The cement or lumber companies then pay their employees who spend that money locally. This creates what's called a Keynsian multiplier, which increases the value of every dollar of infrastructure spending. High-tech stimulus, however, would probably require importing (at least initially) many of the components of the smart meters, computers for medical records or technology for recharge or hydrogen stations- and that money would go straight out to the exporting countries. Additionally, although there have been layoffs in the tech world, the U.S. still has a shortage of engineers and high-tech workers, and would probably have to either open up immigration or repurpose engineers who were previously working on other projects in order to implement a massive, multi-hundred billion dollar high-tech stimulus plan. Either way, it wouldn't help much with unemployment.
Finally, one of the best reasons to undertake a standard infrastructure stimulus program is that, because there's little demand for construction labor and materials, those "inputs" would cost less than they would in better times, so the government could buy a lot of infrastructure for each stimulus dollar spent. With American infrastructure slipping into third-world territory, now is a great time to buy.
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