Obsidian Wings

Two Readings of Scalia

by publius

The Supreme Court did a rare thing yesterday -- it ruled favorably on an original writ of habeas corpus (one that is initially filed at the Supreme Court).  Specifically, it ordered a district court in Georgia to review the defendant's "actual innocence" claim.  Original writs have been summarily rejected for decades.  This is a rare, strange bird we're seeing.

Scalia dissented.  And a commenter asked:

I would be very much interested in any thoughts you have regarding Scalia's recent dissent in a Georgia death penalty case in which he argues that "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

Is this as insane as it sounds?

The answer is . . . maybe.  I'll explain below the fold (wonky).  And I appreciate the advice I've received on these matters from Lee Kovarsky, an Acting Assistant Professor at NYU School of Law (all errors remain my own though).

Nomination: Worst Post of 2009

by publius

As you may know, Professor Dawn Johnsen (Obama's still-pending nominee to lead OLC) has been subjected to extremely unfair criticisms, largely because she was a vocal opponent of Bush's lawless OLC. 

But this post from Powerline is just repulsive.  It relates to the course Johnsen is teaching while waiting for our bold Senate to act.  Take it away Paul:

The course Johnsen will teach is called "Sexuality, Reproduction and the Law." In her course description, Johnsen says: "We will focus on regulation aimed at sexual activity, reproduction and sexual orientation. . . ." Last I heard, except for folks who are into rape, sex with animals or offspring, or paying for sex, there isn't very much remaining regulation aimed at sexual activity, reproduction, or sexual orientation.

Maybe that's why the course only runs until mid-October.

The bolded part is arguably one of the most uninformed things I've ever read (particularly from a lawyer). Even putting aside the snide sexist ridicule, the post is simply wrong.  Off the top of head, I thought of issues like "don't ask, don't tell," and employment discrimination.  In fact, there was a Supreme Court case this very term on pregnancy discrimination in pension calculations.

But then I thought -- hey, maybe Google can help.  And so I spent approximately six seconds typing on Google and found an actual draft syllabus (pdf) from this very class in a prior semester.  Do you want to see the shocking radical subjects covered in the class? 

Hide the kids, here they are:

• Foundations of the Right to Sexual Privacy: Contraception and Abortion

• State Regulation of Sex Outside Marriage, Marital Rape and Natural Law

• Sexual Orientation Discriminations and Transgender Issues

• Adolescent Sexuality and Sexuality Education

• Same-Sex Marriage & Domestic Partner Benefits

• Sexual Orientation Discrimination in Military and Adoption

• Theories of Sexuality, Gender and the Law; Sex, Gender and the Workplace

This is shameful stuff, even by the lofty standards of Time Magazine's Blog of the Year.  He should apologize.

Why Grassley's Comments Matter

by publius

I wanted to return to Grassley's comments last week in which he essentially embraced Palin's "death panels" falsehoods.  To me, these comments have very significant implications on various fronts.

First, I think Grassley's comments show the real significance of the town hall protests.  The media coverage has focused primarily on how the protests have affected national support for reform.  The real importance of the protests, though, is their effect upon Republicans.  In short, the protests -- and the hostility in the base more generally -- have scared them "straight."  Even if they wanted to do reform in the past, they won't join the effort now. 

Take Grassley for instance.  I suspect he at least started this process intending to reach some kind of deal.  Now, however, he knows that he'll face the wrath from the teabaggers if he supports reform.  The protests have caused him to regress -- and it's not like he had staked out a particularly progressive position in the first place.

Second, Grassley's comments should confirm that the Finance Committee negotiations are pointless.  I mean, a lot of us have been saying that for a while, but the validation of death panels should make it painfully clear to all.

If Grassley is too scared of the protesters to oppose denounce arguments that rely on fraudulent, non-existent parts of the bill, what exactly will he have courage to embrace?  The fact that he won't even draw a line here, at this most absurd of extremes, shows that there will be no lines drawn anywhere.  He'll never agree to anything.

Maybe 'twas always thus, maybe it wasn't.  But that's the reality now.  The Republicans not only aren't going to join reform, they may be structurally incapable of joining given the levels of anger within the base.

[UPDATE:  Ezra Klein has more Grassley thoughts here.  My take on all this is that he was always bad, but that the teabaggers have scared the bejesus out of him, and made him worse.  The only potential threat to him is from the right, so what possible incentives does he have to stand up to the town hall protesters, Palins, etc.]

This Is Better

by publius

Marc Ambinder:

An administration official said tonight that Health and Human Services Secretary Kathleen Sebelius "misspoke"[.]  . . .  A second official, Linda Douglass . . . said that President Obama believed that a public option was the best way to reduce costs and promote competition among insurance companies, that he had not backed away from that belief, and that he still wanted to see a public option in the final bill.

In terms of broader perspective, Jacob Hacker has one of the best defenses of the public option that I've seen.  One important point he raises is that it's actually a way to prevent overreliance on excessive regulations and bureaucracy.

The argument is fairly simple.  Any type of reform is going to require a lot of regulatory oversight.  That means detailed regulations, lots of regulators, etc.  If, however, the country had a public option, the insurers would suddenly have a market incentive to comply with these requirements without so much regulatory coercion and administrative costs.

In this respect, the public option actually reduces the need for government -- and reduces the threat of agency capture and other public choice-ish problems (especially at the state level).

Dropping The Public Option

by publius

Obviously, I disagree as a matter of both policy and negotiating strategy.  But, the public option isn't the main part of the bill, and it's not the hill that health coverage reform should die on.

But... if it's going to be dropped, then the White House and Dem leadership need to get something in return.  Not necessarily from Republicans -- but from Democrats.

As I'll explain later tonight, Republicans just aren't going to vote for this bill.  It's time to ignore them.  Maybe Snowe and Collins will ultimately support it, but that's it.  The Finance Committee negotiations should be scrapped entirely.  It's pointless to assume that dropping the public option will get you anything from Republicans -- nor will it dampen the "socialism" cries.

For that reason, it's only worth dropping the public option if it's going to help with Democrats.  It's time to go to the Nelsons and Conrads and Blue Dogs of the world and say, "if we do this, are you going to get on board?"  (Or at least support cloture).  The public option is the only even remotely plausible justification for saying the reform bills are "government takeovers" (and even then, it's still a bad faith argument).

But if these legislators are not going to support the bill anyway, there's no point in dropping the public option.  At that point, they're probably never going to support it anyway.  And so the Dems will have to use reconciliation (which would require 50 instead of 60 votes).  That's going to be controversial in any circumstances, so it's important to get the best policy possible.

The worst of all worlds, though, is to drop the public option and have the Nelsons of the world continue to be unhelpful.  Heck, if we're really going to drop it, the Dems should at least coordinate, so that these holdout Dems can have a PR rollout and take credit for killing the provision in their states and with the insurance companies whose interests they care so deeply about.

Shameful, yes.  But perhaps necessary.  Plus, as I see it, the public option can be added through reconciliation down the road.

The Horrors of Free Health Care

by publius

It's heartening to see Britain rallying around its health care system in the face of egregiously dishonest attacks and accusations.  Of course, as this NYT essay explains, the British system has its problems.  But the general British complaints about their health care system are being misinterpreted on this side of the pond.

It's basically a question of baseline assumptions.  Think about our free education system.  We complain about it a lot.  It has its problems for sure.  But discussions of those problems take place within a widely (almost universally) shared consensus that free primary education is a good thing.  To criticize education policy isn't to call for its abolition -- just like criticizing your family doesn't mean you want your family to be disbanded.

That's why the American attacks have been dishonest.  They've been citing complaints from people who fundamentally believe in the system to justify attacking the very premise of the system.  It's like citing complaints about teacher pay to justify abolishing public education.

The new British enthusiasm to defend its system stems from the recognition that the American attacks are aimed at the foundation of the system, and that Americans are trying to exploit everyday criticisms in a fundamentally dishonest way.

And just on an aside, is free health care really so terrible?  I mean, American seniors don't seem to mind their free, socialized, single payer system that much.

The Finance Committee's Continuing Good Work

by publius

I'm too busy at the moment with school starting to say what needs to be said about this:

The Senate Finance Committee will drop a controversial provision on consultations for end-of-life care from its proposed healthcare bill, its top Republican member said Thursday.

There really aren't words to describe not only how ridiculous this is, but how threatening it is to policymaking.  I've mentioned before that that the health coverage reform debate is a test of our institutions -- both political and media. 

In this instance, it's a complete failure.  A demonstrable falsehood was repeated and repeated, and it led the Committee to drop a very valuable provision that would help inform individuals -- particularly those with less resources -- about critical medical and legal issues.  The falsity and fearmongering drove the policy here.

Anyway, I'll have much more to say about all this later.  Feel free to vent in the comments.  I'll join you soon.

Well, What Did You Expect?

by Eric Martin

When faced with a staggering, worldwide economic meltdown spurred on by the greed and excess of our financial sector, the Obama administration (picking up where its predecessor left off) chose to...trust that same financial sector to sort out the problems, with the sorting out to be facilitated by an enormous chunk of taxpayer money.  This money came with no strings attached - there was no receivership, no recapitalization requirements, no real compensation caps, no external controls, nada. 

Shockingly, the greedy capitalists that put short term profits and bonus payouts ahead of the long term health of the economy are, now that they received hundreds of billions in taxpayer money, acting like greedy capitalists who would put short term profits and bonus payouts ahead of the long term health of the economy.  Steve Clemons:

But what we have seen is an Obama White House caught off guard by firms that took vast sums of American taxpayer dollars and paid them off many on their times with hefty bonuses. The most striking statistic is that financial firms that received bailout money have since last September's crisis issued more than 5,000 people bonuses of a million dollars or more.

Unfortunately, Timothy Geithner and Summers have continued the Hank Paulson strategy of begging banks and financial institutions to participate in the bailout programs that the government packaged together to recapitalize the American banking system. But the banks resisted, negotiated, and were able to get terms in the US-private sector relationship that undermined taxpayer interests while maximizing the firms'.

This wasn't the economic version of trust but verify, but rather "trust but nag."  Yves Smith:

The 1980s supermodel Linda Evangelista once said. "We don't wake up for less than $10,000 a day." That seems to be the motto of American bankers, (save Citigroup's Andrew Hall, who needs 40 times that much per business day). Not only do they not care about things banks used to deem as important, like playing a role in their community, now they can't even be bribed to go along with pretending that they care.

The latest object lesson is the complete lack of interest in banks in a new SBA lending program. The banks say the loans are too small and too much trouble to be worth the bother, even with a Federal subsidy. I gather it doesn't occur to them if banks don't lend to small businesses, which have been the only engine of job growth, we won't have much improvement in unemployment, and if unemployment doesn't fall, we won't have a much in the way of recovery, and if we don't have much of a recovery, they won't have much of a business. The banks want to be a free riders on someone else doing whatever it takes to get the economy back in gear.

On the upside, there is likely another wave of really bad news on the way when the other shoe drops with a precipitous decline in the commercial real estate sector.  At that point, there will likely be plenty of tut-tutting from the Obama team, a rhetorical bone or two thrown in the direction of the outraged taxpayer, followed by a massive transfusion of taxpayer cash to the private sector to sort things out.  No strings attached. 

And really, why wouldn't you trust them?

Bleg: So I'm Aboot to Go to Toronto...

by Eric Martin

I'll only be in Toronto for one night (am travelling to a nearby destination for a wedding), and I have two blegs:

1.  What is the best hotel (with money not being an enormous object)?

2.  What/Where is the most fun to be had (and what restaurants are good/unique to Toronto)?

Thank you in advance Obwingers.

A User's Guide to Bad Faith Health Care Arguments

by publius

One challenge in countering the attacks on the health care bills is that they come in many varieties.  Steve Benen had a good post a while back describing the diversity among the critics (the "Greedy," the "Wonks," etc.).  The attacks themselves, though, are also fairly diverse -- and some of them are more egregiously bad faith than others.

So today, I'm providing a User's Guide to some of the most common critiques that I've seen in conservative circles that I consider "bad faith."  There are, of course, many legitimate criticisms from both the right and the left.  But the ones below all qualify (to me) as bad faith.  Let's start with the absolute worst one:

Death Panels/Euthanize Grandma

This one is the worst.  Anyone who makes this claim -- or some derivative of it -- is acting in 100% bad faith.  There's not a single fact that makes these claims remotely plausible.

Remember that the uproar comes from a provision to allow Medicare to cover end-of-life counseling.  The AARP has pushed for this provision.  Republican Senators have pushed for it too.  

It is, by far, the most absurd allegation.  It's not surprising, then, to see Erick Erickson post stuff like this.

Government Takeover/"Socialized" Medicine

All of the reform bills are constructed around private providers and market competition.  Private coverage is the structural centerpiece of reform (for good or bad).  Accordingly, most people will simply keep what they have (though it will be more stable). 

A much smaller subset of people (e.g., uninsured) will have access to an exchange where they can shop around among private providers -- and, maybe, a public option.  The exchanges are far more important structurally than the public option, and they are premised on private market competition. 

The whole "socialized" medicine business is therefore not remotely true.  The bills go out of their way to protect private providers, or at least to rely on competition among them.

Unlike "death panels," though, this argument has some shred of an intellectual foundation -- though a very flimsy one.  The argument is that the public option will be a "Trojan Horse" that will inevitably overtake private providers.  That's the only plausible justification for saying that the reform bills are government "takeovers."  It's an extremely weak foundation for such sweeping allegations.

In fact, this argument is so flimsy that I consider it bad faith.  First, it's not clear the public option will even be in the bills.  Second, even if it is, it's limited to people on the exchanges.  New legislation would be required to expand it.  And third, it's far from clear it will even succeed even if more people eventually get access to it.  As Paul Starr and others have written, it could wind up as a dumping ground for super-high cost individuals.

In short, the public option is not being structured in a way that promises future success.  To get from here to "government takeover" requires a Rube Goldberg-esque chain of a million different events to happen that just aren't going to.  For that reason, these arguments are being made in bad faith.

"Cutting $500 Billion of Medicare"

There are many variations of this critique.  Some yell that "elderly care" will be cut by $500 billion.  Others simply bemoan the Medicare cuts more generally.  The really creative types combine this attack with other ones listed above to make up an imaginary world where the unfit are allowed to die to save costs. 

For background, the House bill pays for health coverage reform in part by saving $500 billion from Medicare over the next 10 years.  To get some perspective, that's about 7% of projected spending (pdf) (total is roughly $6.7 trillion over 10 years).

Now, if you think that every single dollar of that $6.7 trillion is being spent in the most efficient way possible, then yes, the House is proposing real cuts to Medicare.  But even then, it doesn't follow that the cuts will come from "elderly care" or from the terminally ill, etc.  Indeed, the House has specifically identified (pdf) some of this waste -- one large chunk being the absurd overpayments to private providers under Medicare Advantage. 

In the real world, though, it's silly to think that Medicare doesn't have some waste that can be removed.  The idea that the savings will come from denying critical care is demagoguery.  And it's a particularly hypocritical claim coming from those who simultaneously complain about the high costs.

Anyway, these are three "families" of bad faith critiques that I've seen the most often.