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Where to Begin...

There are so many things to write about, so much that's so awful (look, I'm an optimist, but even my sense of joy has been sorely tested), and I've avoided writing for so long (hey, I was just commiserating with the other writers on strike... heh heh), I hardly know where to begin.

So let's start here: Al Capone.

Of all the strange tangents Trump goes on at his, well, bizarre and frankly kinda tired, rallies, one of the weirdest moments is when compares his situation to that of Chicago's number one gangster. It's usually to suggest that, like Capone, Trump is being nailed on trivial charges, like tax evasion.Of course, what he also like to imply, in so many words, is that, like Capone, he too is a slightly outlaw badass who cannot be contained by the tired rules of conventional laws.

Which, if you think about it, is a kinda weird stance for a former President of the United States.

Seven years on, with an intervening stay in the White House and a violent riot to cap off his term, It's frequently suggested that as a nation, we have become inured to Trump's outrageousness, his breaking of norms, the lack of basic decency. Still, there are moments - "poisoning the blood of our nation", anyone? - where we can still get caught off guard by the breaking of a new norm, a bridge yet again not too far. I'd argue the casual tossed off lines about Capone are themselves a new, and striking low.

Donald Trump faces 91 felony counts in 4 separate indictments, 2 Federal, one each in New York, and in Georgia. That's on top of several civil suits crawling along, and random legal issues like being disqualified from ballots in Colorado and Maine over (apparently serious) suggestions that his running violates Section 3 of the 14th Amendment - the one where if you, like, participated on the wrong side in the Civil War, you can never hold public office again. The kind of thing we never thought we'd need after, you know, the Civil War. In pretty much every case, Trump has followed the time-honored (dishonored?)  legal strategy taught to him by Roy Cohn - challenge everything. Bury them in paper. Work the refs. Proclaim your innocence and claim unprecedented mistreatment.

Trump has filed motions to dismiss in all 4 cases - at this point, all are in some stage of stasis or collapse - and the striking thing about them is their sameness: "i didn't do it, if I did do it it wasn't a crime, and if it was a crime, I'm either allowed to do it, or immune from being prosecuted for it." Some have noted that the arguments he makes in one case often suggest problems with another (like claiming to be an "Officer of the United States" in Georgia, except that "Officer of the United States" is why the 14th Amendment would apply to him). The immunity claim is so over the top, it may set new precedent in the Supreme Court, where immunity was roundly tossed in US v Nixon. 

But to really contemplate the absurdity of Trump and his Capone via Cohn approach to law (with detours into Watergate era madness), let's just point to one of the cases - the one where Trump took some of the nation's most top secret documents, left them in boxes literally all over Mar A Lago, and refused to return them, to see how his arguments are really hopeless:

• "i didn't do it" - for months, Trump asserted to investigators, the National Archives, and eventually the press, that he had not taken any documents. he insisted he was being treated differently from other former Presidents (leading to the amazing discovery that yes, apparently people can accidentally walk off with secret documents from the White House more than you'd think). Eventually, in another unprecedented moment, the FBI raided Mar A Lago (aka a presidential residence), and discovered the boxes and boxes of documents and other detritus Trump had hoarded and hid. 
• "It's not a crime, or I'm allowed to do it" - Trump subsequently insisted that he had "every right" to take the documents under an apparently creative reading of the Presidential Records Act - a Nixon(!)-era law meant to make clear how records should be collected and filed by the Library of Congress. And by creative, I mean the well known "they're mine and you can't have them" doctrine. Amazingly that's not even the issue that may be resolved at trial - the simpler problem is that Trump had highly classified documents, violating the Espionage Act. And that crime, one that's charged out fairly routinely, doesn't require motive or misunderstanding. Just having the documents when and where you shouldn't have is enough.
• Immunity - Astonishingly, even in this, Trump continues to insist that the President is immune from the Espionage Act in some combination of "Executive Privilege" - which Trump aqpparently takes to mean "if I want it, it's my privilege to have it" - and Presidential declassification - a defined process Trump didn't follow, but Trump asserts (often hilariously) "it's declassified if I say so." Just to underline the absurdity of that argument, one of the holdups in the documents trial is that the documents involved are so highly classified, Trump's lawyers have had to scramble to set up a site in Florida secure and limited enough to view them to prepare for trial, so secret they may not be able to be introduced in open court.

And just to be clear... these are not the arguments or defenses of an innocent man. In the trial over falsification of business records that may close The Trump Organization in New York, Trump's lawyers literally maintain that years of fraudulent valuations of Trump properties used in tax and loan filings are a "common practice" in real estate... or in  other words, they have literally admitted to the fraud. Case after case, trial after trial... Trump makes guilty man arguments, brazenly waiting for someone to agree that it doesn't matter if he wantonly breaks laws.

And sure that's a lot like Capone... but should it be? Federal crimes are often the simplest of process crimes - like sending false information by mail, or filing a false tax return - for an obvious reason: it's the kind of housekeeping, minor detail that criminals don't think of while committing major crimes. In 2016, when Trump refused to show his tax returns claiming he was "under audit" it's becoming clearer he was half right - his tax returns build so thoroughly on one lie after another that untangling them will indeed take years. Illegality is so familiar to him, innocence passed him by a long, long time ago.

Where to begin... at the very least we should be able to concoct a standard for the Presidency that avoids the commission of massive fraud, theft of documents and fomenting insurrection. Start there. Start somewhere. Trump so thoroughly violates First Principles, it's amazing, seven years on, that we still have him here to kick around. Or yes, to kick us around. Set aside the collapse of the Republicans, the sycophants defending him, the opportunists tied to him... just for a moment. Start here. Donald Trump should not be President ever again, because we have standards. Principles. Something. That's a real fine place to start.

Curiel and Curiouser

By the middle of last week, the polls were tied and nervous lefties were losing the will to live; by the end of last week, we were all reminded that Donald Trump's worst opponent may well be himself.

(And before we feel too good about that, let's remember that Hillary Clinton, too, may be her own worst enemy.)

Last week, though, Trump pretty much held all the cards: a solidified nomination process that was pretty much unstoppable, the evaporation of all but the barest wisps of resistance (largely because Republicans think dissent is vulgar, and thus for liberals), and even forcing the party's highest profile and brightest hope to bow down and kiss his ring. And how do you top that?

By going after the judge in your high profile federal fraud case. Naturally.

Going after Judge Gonzalo Curiel may well be the new definition of "fool's errand" but before we savor Mr. Trump's still smoking gun aimed at his own foot, let's consider that what Trump has done, as much as anything, is remind us of how we got to this terrible moment in Republican politics.

For years, conservatives have fought everything around diversity - indeed, it's been the hallmark of the transition of the South from Democrat to Republican - fighting Affirmative Action, efforts at integration, gay rights, the women's movement and so much more. Underlying all of this has been an argument that to try to diversify hurts "merit" - that the best educated, most qualified, experienced people will suffer. And by extension, they are probably white, and male.

Virtually nothing about this is borne out by evidence; if anything, years of efforts to make diversity happen have shown the opposite, over and over. Women take more seats in top classes and schools. Asian Americans test better than everyone else. Creativity thrives, ideas bloom, communities strengthen when diversity is embraced. The case for diversity is really rather obvious, and where diversity isn't, really, is where we continue to have problems.

Unless you look at this from the right.

I've watched - and felt - the befuddlement other lefties have when Trump trotted out his "Mexican heritage" argument against Curiel. It's a bizarre allegation, the idea that one's ethnic heritage or family's nations of origins, would drive one's worldview. It's led to both the defense of Curiel's citizenship (he was born in Indiana) and the expression of pride of those who share the identity - the latter being further proof that Trump's single mindedness in pushing Hispanics to oppose him as a matter of ethnic pride may both prove his point and be his undoing.

The thing is, conservatives do really see people as biased for "their people." They are simply waiting for that moment when they can say "aha!" when a black person identifies with the black experience, when gay people stand up for one another, when a woman supports another woman's point of view. It is, they suggest, embedded in our DNA - our tribe, our sense of belonging somewhere, to something.

And layered on top of this is the fallacy that impartiality and objectivity come with being white. 

At heart, this is the American dilemma, a nation of immigrants where every group is its own, but we are all American. It's inherent biases around race and class and assumptions about people and their motives that are really kind of sad and ugly and small. We are all prejudiced. We will all defend our own. This logic is also internally incoherent - if blacks, gays, women, hispanics revert to defending their own... then so do whites.  The Irish, the Italians, the Scots, the Swedes... are we not all from a clan? Do we not all, then, come home to our own?

The argument Trump is making against Curiel is one that's been used repeatedly in court appointments - against naming a "jewish seat" to the Supreme Court. Against Thurgood Marshall. Against Sonia Sotomayor. The fear of "prejudice to one's own" is a handy mask for the real prejudice here: the fear of difference, and the loss of white privilege.

In reality, conservatives can't have it both ways: you can't simultaneously argue that "properly impartial" judging is what you're after and, as Trump is doing here, complain that judges carry around biases based simply on their heritage and who they are. We can't, in fact, really have a society at all under those assumptions. What we have, at best, is trust. Trust that people will try their best to be impartial, to judge fairly, to see beyond themselves and their own range of life experience. Trump's case against "Mexican heritage" is the underlying truth behind years of conservative lip service to "faithful interpretation of the Constitution."  That's not what you're really concerned about if the only "faithful interpreters" are white. And most likely, male.

It's nice to see that Trump's appeal to these base prejudices is being seen mostly for what it is; I'd feel better if many lefty defenders moved past the "but he's from Indiana" defense of Curiel if only because we often pretend that papering over our histories and our different heritages and experiences makes us all the same. It doesn't. I rather like the sum of my Swedish and German ancestors, and my African American roots because that's pretty darn unique. And I celebrate the different perspectives that come from others as well. I am not afraid of people who don't have the same background as me - because that's mostly everyone else.

Of course Trump's vitriol and grab bag defensiveness has to be rejected - it's not who we are as Americans, and it's giving into the worst bullying impulses of a man who really fears going before a judge because almost any judge, no matter of what background, can see his guilt. But let's also admire the gift that Trump has given us and make a moment of it - a moment to reject, once and for all, the myth of superior white impartiality. That would make this trip down the rabbit hole something to actually feel better about, in the end.

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See That Chair? He Put It There.

President Obama is getting a little (and not enough, I'd say) flack for saying to a heckler at this week's Pride celebration in the White House, "you're in my house." The sentiment, while understandable, belies the fact that dissent is enshrined in our American culture, and it will come through the doors of even the President's house. Eartha Kitt, famously, angered Lady Bird Johnson by speaking forcefully about deaths in Vietnam at an otherwise non-political luncheon. Laura Bush had to cancel her planned program celebrating poets when those poets made clear they didn't support the invasion of Iraq.

But more pointedly, being President doesn't make the White House yours.

The President has walked this line throughout his term in office; there's a tension between the "great man" pose he rode into the office and the sense that he's more than a bit diffident about the glad-handing, everyman aspects of taking lofty ideas into practical application, never mind the tension of disagreement and dissent. He seems aloof, even cold. He comes off as high handed at times - he's managed, more than once, to annoy congressional leaders because he seems to have no sustained relationships that he can leverage to achieve his own policy goals. He lectures, rather than attempting to persuade.

I don't think all of this makes the President terrible, just human, and flawed. He's a smart man. He's able to see the big picture. He'e clear-eyed about what need to happens to make progress. I think he's less thrilled with people who don't see what he sees. And he's not exactly patient about waiting for others to catch up. I'm also not entirely sure it gives him a real feel for the struggles of people, say, in poverty. Or the emotional pain of a man whose lover has to be deported (the point of the Pride protestor). Feelings, emotionality... these things get in the way of clear eyed assessments. It's hard to fake the caring side (just as it's also hard to pretend to be smart).

Oddly, that's why I think the Supreme Court had little choice today but to uphold the Obamacare subsidies. And that, really is where the President may be more accurately firm in saying "not in my house."

The Affordable Care Act made provisions for each state to operate a health insurance exchange, as a way to give individuals, the self employed, unemployed, or small business workers the opportunity to buy insurance as a group. The "individual market" had been one of the worst features of the insurance market for healthcare, where premiums were expensive and policies were often terrible, providing little coverage with high deductibles. While the exchanges have issues, and policies still have some fairly high deductibles, the exchanges combined with tax subsidies for low wage workers have enabled any more people to obtain insurance.

It was the subsidies that brought the case to the Court; a small group of (questionable) plaintiffs claimed the required purchase on the exchange was onerous, and that the subsidies were illegal because they should only apply to state exchanges and not the federal exchange, based on one clause in the mammoth law. For months, since the case was taken up by the Supreme Court, there was speculation that an adverse ruling would "destroy Obamacare." Doomsday scenarios were predicted. Panic in the streets. Dogs and cats living together. You get the picture.

Calmer heads - me included - have quietly pointed out the obvious: the lawsuit made no sense. If a state fails to operate an exchange - as many Republican led states chose - then the federal exchange operates as the state's exchange, and the subsidy is for the same purpose. That, in essence, is what John Roberts said today. And it's basically the same thing the President said, in his calm, definitive way when asked about it a month ago. He also said the Supreme Court should never have taken the case. That's accurate too, though, as always, he appeared somewhat high handed in saying it.

Conservative hatred of the President has everything to do with his calm sense of certainty. "Arrogant" is their first descriptive term about him, and it has, of course, everything to do with race, though that too just makes them angrier. "It's not because he's black" they fume, and at best we can't know. But it sure seems that having this black man be so smart and so right so often really annoys them.

The President came out today for a "victory lap" speech in the Rose Garden that again made his point: I was right, this thing is working, and opponents should just get used to it. It's my house. See that chair? I put it there. It may not be the "kinder, gentler" way of expressing it, but that is not the President we have. If anything, this is the notion of a Presidency that conservatives have favored more than the left: tough, no nonsense, certain of his mind and his actions. Which may explain why so much of the loathing the President gets from the right seems so, well, childish - it's the tantrums of overfed kids who can't get more dessert. Because daddy said so, that's why. Conservatives have replaced their strongest suit - a clear eyed, almost cold, assessment of human nature and the facts - with the appeal of emotions and feel good slogans. And liberals, God love us, have gone in the other weird direction - a party of clear eyed realists using data to support the feel good policies of helping the less fortunate. Because we love them, and everybody.

More than most lefties, conservatives need the kick in the head of taking in the view of the world that doesn't agree with their every whim: they've been blind sided by Mitt Romney's loss, by the unpopularity of endless war, and now by yet another decision that says more health care available to more people is better. And liberals, while embracing the President's forcefulness in standing up for his policies, might want to look around that house and ask, did we really need a chair? and does it really need to be just, well, there? It's our house, really. And it's ok to redecorate. No matter what daddy says.

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The Serious Post About Marriage Equality And The Supreme Court

The week of dithering by the Supreme Court was, to me, way more fascinating than the ultimate decision to take the cases on marriage equality. For a minute there, it really looked as if they were going to avoid the whole thing, which in itself would have been a pretty resounding win for the forces for marriage equality.

I also used to say, years ago, that DOMA was doomed once gays had the right to marry, for one of two reasons, divorces or taxes. The public may not like gays or disapprove of our life choices... but taxes and divorce are legal matters that need clear standards. And here we are, where the Supreme Court is hearing a tax case that will likely eviscerate DOMA.

That case is about a couple who got married in Canada where the surviving partner faced a huge tax bill (er, "death tax"? anyone?) where spouses are normally exempt. That case, as I long suspected, is probably a slam dunk on the merits, but like the Prop 8 case, the complication here is that the Supreme Court may never have to decide the underlying issue, because the appeal is being brought by Republicans in Congress. The Obama Administration, if we'll recall, already announced that based on other decisions where DOMA was ruled unconstitutional, the Solicitor General does not defend DOMA anymore. That, in itself, is an interesting question without a lot of settled law - if the Executive Branch refuses to defend a law it doesn't like, does Congress have the ability to do that instead? And again, that decision, even one in favor of Congress, wouldn't necessarily help DOMA - it's easy to see a split verdict that says, oh 7-2 (Breyer, Sotomayor) or 6-3 (plus Ginsburg) that Congress can appeal a decision of a law they passed, but then says 5-4 (the liberals, plus Kennedy) or 6-3 (plus Roberts) that DOMA violates the 14th Amendment.

The Prop 8 case is even messier, since the State of California "lost" the original case. In fact California (under Jerry Brown) never wanted to defend Prop 8, but sent a team of the Proposition's supporters as their stand-ins, who promptly lost. The appeal of the case comes from those proponents of the originial proposition, and it is indeed unclear whether they have any right to appeal a decision that is actually aimed at the state. This is where the Supreme Court could rule that the appeal should never have happened... meaning the original ruling against Prop 8 would stand; or they could give the proponents standing, and overrule the 9th Circuit and the District Court.... or they could uphold all the decisions.

This, too, leads to intersting questions about standing... but I have a hunch that  the Court would be happy not to rule on Prop 8 and try to fight what does indeed seem to be a turning tide of supprt for gay people. What seems even clearer, as I joked before, is that the "one man, one woman" nonsense will most likely be relegated to some spirited dissenting opinion from Scalia or Alito. 

And though many Court watchers brought up less than salient examples of Brown vs. Board of Education and Roe vs. Wade, the real bellweather on this will be Loving vs. Virginia, the 1967 case that ended state bans on interracial marriages, and (my guess) Heart of Atlanta Motel vs. United States. Loving, of course, says that states can't just refuse couples the right to marry... but Heart of Atlanta is a big case on interstate commerce, that people can cross state lines and expect similar treatment. My guess is that the combination of the two is where gay marriage will, one day if not this day, wind up being upheld.

But of course, gay people could lose all of this. The right wing might prevail, and at least claim a narrow victory that would extend this fight for a few years more. As much as I think some people are deeply invested in winning, I don't know that a lot of gay people - certainly around my age or older - harbor a lot of illusions here. This could all go very badly, and if it does, we'll just have to start our work from wherever we end up. But the reason we can live with the bad outcome, as we have all along, is because marriage equality is simply common sense. And it may take the law a while to catch up to common sense... but I don't think it will be much longer.

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Weddings and Women and Washington... and some thing about the Supreme Court that starts with W...

I was hesitating to continue in this vein, but this week was so full of gay marriage news: the people registering to marry in Washington state (insert joke here about using now legal pot, too), and the Supreme Court dithering for days about whether to take any gay marriage cases, and then at the final minute taking the DOMA case and the Prop 8 case... well, I think we can keep joking about who is going to marry whose boyfriends or girlfriends, now, can't we?

Because it's funny... until Antonin Scalia says marriage is between a man and a woman. And then it's not... although I think if he does that in an opinion, it will basically be hilarious.

Anyway, here are the responses from women, straight and gay. Links to the originals below.

 

 

 

 

 

So... You Either Have Insurance Or Pay A Tax, But Congress Can't Make The States Offer Affordable Coverage To Poor People?

There will be lots of focus today on the 5-4 upholding of the indvidual mandate, and that's sort of fair: the requirement to have insurance or pay a relatively small fee was the linchpin of a much broader consitutional argument, and that argument, as I suggested earlier this week, remains a non-starter. While Congress may not have the right to "compel" commerce, it does have the power to tax you if you don't show proof of health insurance. It's worth pointing out that 4 Justices would have accepted the Commerce Clause argument, while 4 others would have rejected the tax claims as well. So... basically, only John Roberts thinks that Congress can tax you, but can't regulate commercial inactivity. Or something.

Lost in today's coverage - except, admirably, from Megyn Kelly on Fox - is the 7-2 decision that may yet prove the bigger problem: the Court sharply limited Congressional ability to force the states to expand Medicaid coverage or face the loss of all Medicaid funds. The practical implications of this are still being sorted, but from what I can tell, this could be not only a huge mess for Medcaid recipients, but also for the individual mandate.

Remember, the ACA does about 4 things to make sure that everyone has access to affordable health insurance: most people will get covered by their employers (including ending pre-existing condition limits, lifetime caps, and extended coverage for young people on parent plans to age 26), seniors remain covered by Medicare, people above 133% of poverty but unemployed (or self employed or such) can buy coverage on new "insurance exchanges"... and people at or below 133% of poverty figures were to be covered by Medicaid.

Unfortunately, Medicaid right now isn't budgeted to offer that kind of massive expansion of coverage. So Congress, trying to paper over the problems of adding a huge budget increase did what it usually does when poor people are involved: Congress played math games, pretending that a less than full increase of funding can somehow cover the first five years of the expansion, and then told the states that after the first five years, a large bulk of the expansion would become their budget problem instead. 

Let's be clear: Medicaid right now already fails to adequately cover the small number of people in dep poverty it needs to cover. Medicaid expansion doesn't just enormously increase the problems of insuring poor individuals (who, most likely, need healthcare they can't afford now, meaning costs for care will have a large initial spike... but Medicaid is also the insurer of last resort for poor elderly people in nursing homes. By widely exapnding the ability of people to qualify for Medicaid, it's likely that even more elderly people in extended care will need coverage. And for the sunbelt states - most of which were the main parties to this suit - that cost increase could be crippling.

What the Supreme Court said - apparently - is that these states could decide not to expand Medicaid and to refuse the funds tied to the expansion, but still receive their existing Federal Medicaid grants. And it may be, as some theorize, that even with that permission, a number of states will take the extra money and do some sort of expanded offering to their poor citizens. But it's also quite possible that Texas, say, will just refuse to do anything, not lose the limited Medicaid funds it already gets, and leave millions of poor people with no real way to get insurance coverage.

And guess what happens then... under the mandate's tax policy... they owe the tax.

In a sense, Roberts has shown himself to be a more traditional conservative, a more Reagan era appointee than many guessed at the time of his appointment. A product of the Reagan Justice Department, Roberts was part of the first wave of true believers, and his decision - and make no mistake, this ruling is all him; no other Justice or group of Justices agreed with the whole of his opinion - reflects those beliefs. While he makes more allowances for federal power than some far right types would like, he also shows the myopia to policies which make it hardest for people in poverty to change their circumstance, a classic Reagan-era conceit. This is "Welfare Queens" and Bootstrap Logic all over again, and in some ways worse. And the end result is some real mischief, which explains why my sympathies lie most with the angriest Justice: Ruth Bader Ginsburg, who correctly pointed out that health care reform is meaningless if it doesn't help the most vulnerable and in need. Upholding a tax on lack of insurance was never the worst thing this Court could do - the worst thing would be making it harder to make sure poor people never faced that tax.

And that's exactly what seems to have happened.

A Nation Of Laws. Occasionally, Also, Lousy Ones.

I've been on a break - and how - from writing, especially about politics, for a number of reasons. Much of it is related to my promotion at work, which has consumed a great deal of my time; other life interests are intervening as well. Still, I've also been so thoroughly disgusted with much of what passes for politics lately, that a general run of silence seemed the most practical response. 

Lately, I've been finding myself waiting - like others - for the Supreme Court's health care decision; since until they provide some clarity on something, it's hard to say where health care issues really are, politically. But yesterday brought a decision in the Arizona immigration case, and it reminded me of a couple of things that I think have been lost in a lot of recent political handwringing.

Let's start with the fact that striking down Arizona's immigration law was really the only sensible, plainly logical step to be taken. Giving state and local law enforcement broad powers to stop and check the immigration status of anyone was everything its opponents claimed: probably racist, an intrusion by the state into federal jurisdiction, and no solution to the ostensible problem it claimed to solve.

It shouldn't, really, be remarkable that the Supreme Court invalidated large chunks of the law. Yet the decision, clearly, surprised both overconfident conservatives who expected to celebrate the power of a newfound majority, and a shock to liberals sure that conservative politics would trump common sense and basic decency.

That's why I think the decision was a good reminder of a couple of less discussed points: that being a nation of laws actually matters, and that conservatives cannot win a battle based on a failed idea like "states rights."

The concept of States Rights - that the federal government has amassed too much power and control and some of that should return, naturally, to the various 50 states, has its roots in the Civil Rights era, though the concept is older, and reflects the basic tension of founding a country of states bound together by a Constitution and a central government (and a lesson in how not to do this, lately, is the European Union). Fundamentally, States Rights is an argument that variations in governing and laws between the states are okay, so long as certain "basic" functions of government are handled nationally. States Rights was a partciularly attractive argument to white southerners looking for a way to carve out protections first for slavery, then for Jim Crow and voting rights limitations (not to mention disparities in education between the races, and so on). 

The idea of states prevailing over the federal government is a dream of the right which has never really won out - in most cases, especially the high profile ones, the Supreme Court has pretty firmly restated the primacy of federal law and national government every time. Even the occasional nibbling at the edges - such as the surprise ruling in the "Guns 500 feet from schools" ruling that placed some limitations on the Commerce Clause (that is, that Congress' power to regulate interstate commerce will generally overcome objections to most laws) - have never really embraced the idea that the States can supersede federal power in siginificant ways.

In this sense, the decision in the Arizona case wasn;'t even close: it was a 5-3 decision, with Elena Kagan recused (remember when liberals fretted that Kagan's appointment would be a disaster for cases where she would recuse, like the Arizona immigration case?), and Kagan clearly would have sided with the majority, making it 6-3 (or 7-2 where Justice Alito agreed with the majority as well). Even with a spate of "conservative" appointments, some of the biggest conservative goals - like significantly lmiting the ability of federal law to trump states - remain almost entirely out of reach. And despite continued liberal handwringing, that still isn't likely to change.

This isn't to say that we're living in a moment where conservatism poses no threat, or to deny that some decisions by the Court clearly set up problems (though I'm not one to see Citizens United as the disaster many want to see it as).  But time and again, with each successive conservative appointment, we're told that this one means legal armageddon on the Court. While the reality is that in many ways - this week, most obviously on immigration and children facing life without parole - we conitnue to see that liberal ideas tend to continue to win out.

More pointedly, what we've seen this week is that fears about the Court being solely about the easy political divides of left and right miss the reality that the Justices are still deeply concerned most with the law and interpreting it properly. Our long history as a nation of laws has given us a Supreme Court that tends to favor established precedent, that tends to err on the side of our freedoms, and manages, surprisingly often, to adapt our legal system to the changing realities of the world (as they did this year, when a surprising majority ruled electronic surveillance of a car by GPS an illegal search because placing the GPS device requires a warrant). We would have better politics, and a healthier debate, I'm convinced, if we could stop casting the Supreme Court into a role it doesn't play in our political life. Rather than fear the worst, we could wait, calmly, for the Court to do its best. And realize that extreme, untenable views of the law will be marginalized in the Court even when they can't be entirely marginalized in leglislatures and even society.

A corollary to that thought is that liberals really ought to stop approaching these halthy debates of issues from an endless defensive crouch; we've always been right about rejecting States Rights arguments, and we continue to be right. As long as Republicans chase a dwindling, extreme minority of angry, mostly, white, mostly older, conservatives, they will continue to marginalize themselves into irrelevance. Immigration is a difficult, complicated issue that won't be easy to solve (and the reforms we need, I suspect, are ones that involve controls and restrictions some liberals will not like)... but conservatives will continue to lose, and lose big, favoring a closed nation with fences and guard dogs and random stops and arrests. That's not who we are. And as liberals, we should be confident to say that, and hold to it.

I don't know what the coming days hold in terms of the health insurance mandate and the Court's decisions; I have suspicions, ones that the Arizona case only reinforced, but I admit the possibility that liberals could lose, and lose big. And maybe there is a newfound, newly powerful conservative majority. But if there were, as with Arizona, I'd think we'd see more evidence of it than we've seen thus far. If this Court is serious about our nation of laws, as they seem to be, then the law will guide them to a sensible result. And bad laws can be fixed, too.

Articles We Never Finished Reading: Money Talks... Or Something

At its {Buckley v. Valeo, 1974] center is a distinction between expenditures and contributions. The Court said that, under the First Amendment, Congress could not restrict campaign expenditures. Spending money was like speech itself, because “every means of communicating ideas in today’s mass society requires the expenditure of money.” That included printing handbills, renting halls, and buying ads on television. It is a result of Buckley that wealthy candidates like Mayor Michael Bloomberg can spend as much as they want of their own money on their campaigns; it would be unconstitutional to limit their expenditures.

But, according to Buckley, limits on contributions were constitutionally permissible. The Court said that a campaign contribution served only as “a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.” In the Court’s view, limiting contributions did not significantly inhibit political expression by the person giving the money. This was why the Court concluded that it was permissible for the law to limit how much an individual could contribute to any particular campaign.

In the 1974 law, Congress had tried to set up a tightly controlled system for financing campaigns: the government would monitor and regulate both the inflows and the outflows of money. It is not clear that the proposal would have worked as intended, but at least it made holistic sense. Congress could essentially select a number for the over-all price of a congressional or Presidential campaign, and then force candidates to live within that number. Buckley ended that system before it even started, and imposed a different one, of the Justices’ own creation. The court declared that contributions could be limited but expenditures could not, and for two generations that distinction has been the central feature of the constitutional rules of campaign finance. The bottom line was that money is speech.

 - Jeffrey Toobin, "Money Unlimited," an analysis of the Citizens United case, in the May 21st issue of The New Yorker

The "bottom line", of course, is Toobin's; he himself has just written, in the prior two paragraphs that the "bottom line" is not nearly the bright (and in the paragraphs preceding it, he points out that Buckley v. Valeo is a contradictory, complicated, and extremely long decision that's hard to understand). But "bottom line'... Toobin's happy to shorthand it for you.

And shorthand that, and much else, Toobin does, for pages and pages in The New Yorker. Poorly written, sloppily fact checked - somewhere, the ghosts of the old New Yorker staff are spinning in mausolea - Toobin's exercise is mainly one of Supreme Court soap opera, full of (unverified, as far as I can tell) postulating on who does what to whom and how the Important Work of the Law gets injured in the process. Toobin's take is catnip for liberals, and blasphemy to conservatives, but both reactions give Toobin too much credit. Toobin's lazy assertions, like the breezy (and popular) sum-up of Buckley, tend to show that his investigation of campaign financing, never mind its "reform" are secondary to scoring political points and cheap shots (his disdain for Roberts, Alito, Scalia and especially Clarence Thomas are glaring). Though Toobin attempts - and he'd have to, because otherwise the article is little more than gossipy fluff - to ground his storytelling in a historical and theoretically detailed historical perspective, his retelling is slapdash, lazy, and lacking in useful specifics. For instance, he breezily sums up Watergate and the campaign reforms out of it - which led to the Buckley case - without really laying out why Congress approached the reforms as it did, or which aspects of Watergate were the real drivers for reform). This matters, I swear. He's equally lazy, and curiously vague, when describing the even earlier aspects of the Gilded Age-era practices that first led to some attempt to regulate campaigns; and he acts as if problematic campaigns, never mind questionable campaign spending, suddenly became an issue after 1870 (try looking up "Ma, Ma, who's my Paw?" for just one earlier example).

All of which makes soggy, slippery ground for Toobin to try and ground the discussion of Citizens United, though mostly Toobin can't be bothered to lay out the specifics of McCain Feingold, why they were seen as problematic from before the law even passed, and why the Supreme Court started looking askance at the law soon after it became law. And Toobin can't really avoid the fact that First Amendment issues were a concern for the Court well before the specifics of Citizens United were brought to it (a case called FEC vs. Wisconsin Right To Life in 2007 made clear that the Court was concerned about speech restrictions), but he insists that it's a "crusading" Court, led by John Roberts, that's trying to eviscerate Campaign Finance Reform. I'm at least pretty sure that's not how they would puit it; but you'll never know from Toobin, since he makes virtually no attempt to get perspectives from anyone who seemingly disagrees with his assessments.

I'm not trying to defend the Citizens United decision, or suggest that money equals speech is a great standard; if anything I don't need to, since Toobin's article, really, does most of that work itself. Though Toobin is incredulous about the path that set the Court towards overturning McCain Feingold, he does, in fact, backhandedly lay out why the decision's logic makes internal sense: trying to separate a biased, provocative, deliberately propagandistic film from other forms of political "advertising" is in many ways a distinction without a difference, and whie the Court is more willing to regulate advertising than other forms of speech, political advertising, because it is a form of speech so central to our Constitutional approach (elections, where people can freely debate ideas and assumptions), gets more than usual protectionunder the First Amendment. That's why "money=speech" is complicated, and difficult. The money Proctor and Gamble spends to sell Tide is not afforded special consititutional protections. But Mayor Bloomberg's ability to spend his own money to advocate for his own election is. And probably should be.

In any event, exploring this fascinating, difficult, and challenging subject would make for a great, thoughtful article one could chew over and debate with friends. The most frustrating thing is that Toobin hasn't written it. Which is reason enough not to bother reading it.

 

ACA, Meet The Supremes

I haven't written much about politics, and even less on healthcare in a long while, and I wouldn't necessarily see a reason to start now, even with the Supreme Court arguments this week... but I think there's a few points that bear repeating. 

Which is to say: I feel like much of this "health care debate" is old news and the point's been made, but let's try again, just for giggles.

First, I tend to think the Supreme Court case is premature, but at this point, it was unavoidable. Once three Appellate Divisions had ruled, 2-1 in favor of it, there was pretty much no way for the Supreme Court not to take up this case. That's why the Supreme Court exists, to resolve disputes among the different Circuits. Still, I think the Court will regret taking this up too soon and in an election year, when the decision can't help but be all politics, and little in the way of good law.

Second, even though I think the case should have been left aside, I think the arguments that came out this week were fascinating reminders of why we're having this dispute. As someone with a lot of understanding about the issues of healthcare and health insurance in America, I still tend to forget how few people can see the bigger picture, or have thought deeply about the system of insurance and payments that we have. That, I think, has been a big driver of the "mandate is unconstitutional" side, and a lot of their naivete was on display in the Court recordings. Paul Clement's attempts, for instance, to separate health insurance as a market from healthcare services was almost laughable (and for everyone so sure of the outcomes... it was also telling that the most skeptical voice on this separation was John Roberts). Why people buy health insurance, how people use health insurance, what healthcare costs for people who don't have it, what kind of care people without health insurance can get... these are basic questions for understanding the health care problems we have, and the displays of lack of comprehension of these topics within the Supreme Court debate was deeply revealing... and deeply depressing.

Third, I think it was pretty clear that the mandate is constitutional, if unpopular. Healthcare is, virtually by definition, interstate commerce. Even separated from health service, health insurance is interstate commerce (all that takes is one company that operates in more tha one state, buying health insurance for its workers). Devising a system where people show proof of insurance or pay a penalty is a "necessary and proper" function of the tax code. This isn't hard. There might be a narrow argument that the government can't "compel" economic activity... but compulsion seems like a vague, hard to define standard (if passports require a photo... why can the government compel you to get one?). 

Fourth, the mandate isn't nearly what its opponents try to make it out to be. No one is "forced" to do anything, or buy anything, under the regulation. It says, basically, either you have health insurance or you pay a fee. The fee is comparatively small (indeed, it may be small enough that it, too, creates a perverse incentive to not buy insurance until one is absolutely desperate). Most people already have health insurance - again, more than 85% of the population, most workers through their employers, and the elderly through Medicare, just for starters. Those percentages have probably shifted somewhat since the economic downturn, but the vast majority of Americans are, still, insured. That makes the fee a dead issue for almost everyone, and the point of the healthcare legislation is that, with the mandate and other incentives, business and insurers will work harder to make sure more workers are insured, and for others, there will be increased access to programs like Medicaid, or the new health insurance exchanges.

This is not a great, or an elegant, or a nearly perfect solution to our healthcare problems; the solutions do nothing about health care cost, and they codify our employment based system of insurance in ways that probably make things worse. But that brings us back to the yearlong debate about the ACA tyo begin with - yes, there are other solutions... but most of them require enormous leaps in our healthcare systems that we're just not prepared to make as a nation. Broadening the availability of insurance is a reasonable, workable workaround. And doing it probably buys some time to craft other solutions without leaving millions with few healthcare options.

Finally, to go back to the beginning, the real mistake here may be the first one the Court made: as they debated on the first day... this case probably should be punted until the penalty fee actually goes into effect (this is the argument over the "Anti-Injunction Act" which says that you can't sue the government over a tax the government hasn't yet collected). Until the government has to start collecting the fee, we won't know how many people have to pay it. And the better case against the fee is actually probably by people who have no way to get insurance... a prospect which is much more likely to be the case if the Federal government and the States can't work out differences over Medicaid, if the health exchanges don't come together successfully, or if eocnomic conditions get worse. Even Massachusetts had to reexamine the timing and structure of their mandate fee, and the avilability of low cost insurance, as it became clear that the fee made more sense for many uninsured people when affordable insurance was unavailable. That may well be a signpost for a similar outcome, on a much larger scale, when the penalty fee goes into effect.

I'm not trying to play Mary Sunshine here - of course the Sipreme Court's conservative majority could overturn the whole thing; proof that this is far more a political choice than anything about the laws involved, more a way to score points for conservatism generally. But conservatives have, really, still no answers for the various problems our healthcare systems create, only a "fend for yourselves" approach that's disastrous not just for some, but for most of us. The Affordable Care Act is unpopular... but more to the point, it is still not really understood. And that may be reason enough to do away with it. But it's not a good reason... just like this case, really, is not a good case.

Yet More Articles We Never Finished Reading: Supreme Obliviousness

As the Supreme Court lawyer Tom Goldstein puts it, “Paul has turned the health-care fight from kind of a conservative dream that’s untied to reality into a very serious threat to undo the president’s signature accomplishment.” This alone would be a landmark achievement—and, for most lawyers, would have required their complete attention. But health care is just one of seven cases that Clement will be arguing in front of the Supreme Court this term, a caseload previously unheard of for a private attorney. In fact, since leaving the position of solicitor general under Bush, he has become, in the Obama age, a sort of anti–solicitor general—the go-to lawyer for some of the Republican Party’s most significant, and polarizing, legal causes....

At the age of 45, Clement, who has thinning brown hair and the faintest trace of a midwestern accent left over from his Wisconsin childhood, is already in the upper echelon of the Supreme Court bar. It’s an elite group of lawyers who, much like the justices they routinely argue cases before, conceive of themselves as being Olympian in their detachment from politics. Almost all of them graduated from Harvard or Yale or Stanford law school; clerked for a Supreme Court justice; or worked in the solicitor general’s office. (In Clement’s case, he did all three.) Now, in their private practices, they pride themselves on handling only serious cases brought by serious people in a serious manner; even if their client doesn’t prevail—or, worse, turns out to be on the wrong side of history—that stigma doesn’t fall on the lawyer. John W. Davis, who argued the losing side in Brown v. Board of Education, is still held up as an exemplary Supreme Court advocate.

Nevertheless, despite these lawyers’ contention that they aren’t political animals, they are, of course—and their extrajudicial activities often reflect as much. Ted Olson, the man Clement has supplanted as the top conservative Supreme Court lawyer, was an outspoken critic of Bill Clinton, served on the board of directors of The American Spectator, and helped found the Federalist Society. His legal cases were always assumed to reflect his ideological convictions. (Even now that he is seeking to overturn Prop 8, Olson’s personal support for gay marriage is a major story line in the legal fight.) The unusual thing about Clement is that, while he’s undoubtedly a conservative and a Republican, he has managed to avoid this fate. His persona is rarely conflated with the case he’s arguing.

                Jason Zengerle, "The Paul Clement Court", also in New York's current issue.

Clement's political persona is "rarely conflated with the case he's arguing"... except, of course, that he's arguing the opposing side of Obamacare, the repeal of DOMA, arguing against race-based redistricting in Texas and defending South Carolina's attempt to impose voter ID. Clement is defending such a laundry list of right wing cases that Zengerle can barely keep a prose-bound straight face as he attempts to sell the notion that Clement represents a non-partisan ideal in Supreme Court advocacy. It's not the examination of Clement I object to, or the attempt to do a "let's see it from his side" presentation of Clement's views (that, at least, is moderately interesting). But seriously - the man is the former Solicitor General for George W Bush, currently serving as the go-to Supreme Court lawyer for Republican state Attorneys General. If that alone isn't a clear indication of the man's politics... then what, exactly, do political labels mean? It's not as if Clement can be mistaken as a Democrat, or that we can even find a liberal who'd take the depth and breadth of conservative causes on Clement's plate (and the example that proves that observation is Ted Olsen, the most noteworthy example in recent years of a lawyer crossing his usual political expectations to argue in favor of gay marriage rights). It would just be more honest, and more accurate to paint Clement as the kind of Republican that's all too hard to find these days: pleasant, respectful, willing to respect the rule of law, whatever the outcome, after making a well thought, full throated argument for his side. That's admirable enough, without pretending he's somehow nonpartisan.