Obsidian Wings

I Don't Like the Result, So Let's Make the Whole System Worse!

--by Sebastian

Over at the legal blog, Balkinization, Magliocca seems concerned about the possibility of the Supreme Court striking down the individual mandate of the Health Care bill, so he proposes a counter measure which on about a moment's thought seems highly dangerous if legitimized:

In the absence of a line-item veto, legislatures can coerce the executive to sign a controversial provision into law by putting it into an omnibus bill that contains lots of popular things.  In effect, a dare is made that a President or a Governor would rather swallow one bad part rather than block many good parts.  This dare does not always work, of course, and legislation structured in this way cannot always pass, but omnibus bills do tilt the balance of power in favor of popular assemblies.

Why can't the same be done with respect to courts?  Suppose Congress knows that a certain provision (say about campaign finance) will be constitutionally suspect.  They could bundle it with lots of unrelated matters and insert a non-severability clause providing that: "If any portion of this legislation is found unconstitutional by the Supreme Court, then every other portion becomes inoperative." In that case, the SG would solemnly tell the Justices that striking down the contested provision would deprive orphans of milk, stop the construction of a dam in Utah, and so on.  This doesn't preclude the Court from acting.  It just makes it harder.

As far as I can see, there is nothing unconstitutional about this tactic at the federal level.  (At the state constitutional level there may be impediments to omnibus legislation.)  There are political checks on the abuse of this sweeping authority by Congress.  Many members will not want to risk their pet projects by tying them to an uncertain constitutional fight.  Moreover, you need the President (and perhaps 60 senators) to go along.  If you jump those hurdles, though, then the Court would face an all-or-nothing choice in constitutional litigation.  (An as-applied challenge might not come within a given non-severability clause, but that would depend on how the legislation was drafted.)

In the context of health care, this framing of the issue might have made a big difference.  There may be five votes to strike down the individual mandate. It's less likely that there are five votes to strike down the entire 2,000-plus-page statute.  If the Court's only choice was between this and upholding the individual mandate, the result might be different from what we will see in a few weeks.

This is a horrible idea.  It took me about ten seconds to come up with a plausible hypothetical: RomneyCare Health and Indefinite Secret Detention of Terrorists Act.  This near future act would solidify the funding of the Affordable Health Care law by creating funding sources to make up for the hypothetically struck down individual mandate, while also offering the President indefinite secret detention of citizens deemed by the administration to be terrorists and small print authorizing torture, but only in extreme but unreviewable instances.  Non-severability clause duly inserted.  The biggest problem would be getting enough Republicans to sign on to the health care side, finding enough Democrats to support the 'national security' side would be trivial.  So now to get the court to review the most basic civil right--not to be indefinitely detained without court oversight, the Supreme Court will have to strike down the whole health care act. 

What could possibly go wrong if we designed court challenges like that? 

File this under: don't give sweeping new powers to a branch of government that you wouldn't ever want to see in the hands of your political opponents. Magliocca correctly notes that it is much more likely that the Supreme Court will just invalidate the indivdual mandate rather than the whole act.  Turning irritation at the loss of a political skirmish (while leaving the Affordable Health Care Act largely intact) into a suggestion that could easily and literally endanger civil rights across the board is horribly short-sighted.  The 'tough on crime' streak in the US makes all sorts of civil rights curtailments much too easy.  This would make fighting them in court later almost impossible. 

 

till the landslide brings it down

by fiddler

Following up on previous posts (here, here, here, here, and here):

HBGary Federal, Team Themis, Hunton & Williams and the US Chamber of Commerce:

• Aaron Barr, HBGary Federal CEO, who spearheaded the company's attempts to discover the identity of members of Anonymous and whose emails were exposed by Anonymous in return, resigned on Feb. 28. Barr said he wanted to spend more time with his family and recover his reputation. The article linked also points out poor security practices within the company, including a general disregard of the importance of using distinct and complex passwords -- perhaps something else Barr could work on in his spare time, now.

Newton's Third Law #4, the continuing story, with update

by fiddler

(Previous Newton's Third Law posts are here, here and here.)

Benjamin Spock de Vries says he is not Commander X, one of the 'leaders' of Anonymous whom Aaron Barr of HBGary supposedly found online. Apparently, Barr wrote several memos in which he connected Commander X's identity to de Vries, all of which are included among the memos leaked by Anonymous. This mistaken identification led to an oddly amusing exchange, when Barr contacted him during the attack on HBGary by Anonymous:

Scott Walker Reports To The Boss, David Koch

by Gary Farber

Don't believe how it works?  Then listen for yourself.

Let's go with Adam Weinstein's take:

Is that really Scott Walker? [Update: Yep.] A New York-based alt-news editor says he got through to the embattled Wisconsin governor on the phone Tuesday by posing as right-wing financier David Koch...then had a far-ranging 20-minute conversation about the collective bargaining protests. According to the audio, Walker told him:

• That statehouse GOPers were plotting to hold Democratic senators' pay until they returned to vote on the controversial union-busting bill.

• That Walker was looking to nail Dems on ethics violations if they took meals or lodging from union supporters.

• That he'd take "Koch" up on this offer: "[O]nce you crush these bastards I'll fly you out to Cali and really show you a good time."

Now check it out yourself:

 

The rest:

Walk Like An Egyptian

by Gary Farber

Blender:

Robert Fisk:

Exhausted, scared and trapped, protesters put forward plan for future.   [...] Sitting on filthy pavements, amid the garbage and broken stones of a week of street fighting, they have drawn up a list of 25 political personalities to negotiate for a new political leadership and a new constitution to replace Mubarak's crumbling regime.

They include Amr Moussa, the secretary general of the Arab League – himself a trusted Egyptian; the Nobel prize-winner Ahmed Zuwail, an Egyptian-American who has advised President Barack Obama; Mohamed Selim Al-Awa, a professor and author of Islamic studies who is close to the Muslim Brotherhood; and the president of the Wafd party, Said al-Badawi.

Sights:

 

Fisk again:

We Control The Horizontal

by Gary Farber

Appearances matter.  To control information is to control.  "Don't judge a book by its cover" is a popular saying that will cause anyone who sells books or works in publishing to ROFl ("roll on the floor laughing"), because it's exactly what people do, though no one wants to admit to doing it.  It's always someone else.

In Egypt, we're seeing this play out. Mubarak intensifies press attacks with assaults, detentions:

Egyptian President Hosni Mubarak unleashed an unprecedented and systematic attack on international media today as his supporters assaulted reporters in the streets while security forces began obstructing and detaining journalists covering the unrest that threatens to topple his government.

Democracy Now!

 

[...]

In the past 24 hours alone, CPJ has recorded 30 detentions, 26 assaults, and eight instances of equipment having been seized. In addition, plainclothes and uniformed agents reportedly entered at least two hotels used by international journalists to confiscate press equipment. On Wednesday, CPJ documented numerous earlier assaults, detentions, and confiscations. Mubarak forces have attacked the very breadth of global journalism: Their targets have included Egyptians and other Arab journalists, Russian and U.S. reporters, Europeans and South Americans.

Keep Them Doggies Movin'

by Gary Farber

My apologies for having posted so little since becoming an official ObWier; I'm now leaving for Oakland, CA, in less than two weeks, and am working on moving, and minimizing my usual irrational panic. 

Perversely, I have done some link dump posts at my home blog, Amygdala, in recent weeks, so feel free to check those out before they're too aged, if you desperately need more reading.

I've certainly been frustrated to not join in on the income inequality discussions when there is such wrongness being perpetrated on the internet, and even ObWi, but I'm sure it will still be there when I get back, and meanwhile the rest of you do such a great job in comments, as do the other front page bloggers, it's not as if I'm necessary, anyway.  (But it's a topic I'm passionate on, nonetheless, so later on that, dudettes and dudes.)

Meanwhile, to briefly follow up on a past post of Dr. Science's, SF³ has withdrawn the invitation to Elizabeth Moon to attend WisCon 35 as guest of honor.  That followed SF³, the parent body of WisCon, having passed these two resolutions on October 3rd.  This is a precedent for sf conventions, for better or worse.

In another very quick hit, Why Does Abu Dhabi Own All of Chicago's Parking Meters? Yes, let's discuss privatization, virtues and faults, uses and limitations.  Let's start by reading some of Matt Taibbi's Griftopia: Bubble Machines, Vampire Squids, and the Long Con That is Breaking America, as excerpted at the link.

Which Came First: The Regulation Or The Egg?

by Gary Farber

"One big 20-year experiment" has been conducted on what happens when you leave egg safety to lax federal regulation, spotty state regulation, and the market, and the results aren't pretty.

On a July night in 1987, scores of elderly and chronically ill patients at Bird S. Coler Memorial Hospital in New York City began to fall violently sick with food poisoning from eggs tainted with salmonella.

“It was like a war zone,” said Dr. Philippe Tassy, the doctor on call as the sickness started to rage through the hospital. By the time the outbreak ended more than two weeks later, nine people had died and about 500 people had become sick. It remains the deadliest outbreak in this country attributed to eggs infected with the bacteria known as Salmonella enteritidis.

If someone murdered nine people, and wounded five hundred, with a gun, we Americans would have paid as much attention to this as we did the Columbine high school massacre, or Nidal Malik Hassan, or Charles Whitman.

Waste Not, Want Not

by guest poster Gary Farber.

How much is $50 billion? 

That's how much the president proposes we spend:

[...] It calls for a quick infusion of $50 billion in government spending that White House officials said could spur job growth as early as next year — if Congress approves. [...]  Central to the plan is the president’s call for an “infrastructure bank,” which would be run by the government but would pool tax dollars with private investment, the White House says. [...] Specifically, the president wants to rebuild 150,000 miles of road, lay and maintain 4,000 miles of rail track, restore 150 miles of runways and advance a next-generation air-traffic control system.

[...]

The White House did not offer a price tag for the full measure or say how many jobs it would create. If Congress simply reauthorized the expired transportation bill and accounted for inflation, the new measure would cost about $350 billion over the next six years. But Mr. Obama wants to “frontload” the new bill with an additional $50 billion in initial investment to generate jobs, and vowed it would be “fully paid for.” The White House is proposing to offset the $50 billion by eliminating tax breaks and subsidies for the oil and gas industry.

After months of campaigning on the theme that the president’s $787 billion stimulus package was wasteful, Republicans sought Monday to tag the new plan with the stimulus label. The Republican National Committee called it “stimulus déjà vu,” and Representative Eric Cantor of Virginia, the House Republican whip, characterized it as “yet another government stimulus effort.”

Which sounds good to me, if not to you, but we can all agree that we don't want to "waste" money.

Even before the announcement Monday, Republicans were expressing caution.

“It’s important to keep in mind that increased spending — no matter the method of delivery — is not free,” said Representative Pat Tiberi, an Ohio Republican who is on a Ways and Means subcommittee that held hearings on the bank this year. He warned that “federally guaranteed borrowing and lending could place taxpayers on the hook should the proposed bank fail.”

Such concern might have come earlier: 

• The Department of Defense is unable to account for the use of $8.7 billion of the $9.1 billion it spent on reconstruction in Iraq.
• Source: Special Inspector General for Iraq Reconstruction (PDF).

Our Hard Working Senators

-by Sebastian

The Three-Day Work Week

Matthew Yglesias focuses on one of the real reasons why the Senate can't possibly be bothered to spend a fews days or a week to even attempt to break a real filibuster--if they even bothered to make the minority party mount one:

All this activity is crammed into a three-day week, for it’s an unwritten rule of the modern Senate that votes are almost never scheduled for Mondays or Fridays, which allows senators to spend four days away from the capital. Senators now, unlike those of several decades ago, often keep their families in their home states, where they return most weekends, even if it’s to Alaska or Idaho—a concession to endless fund-raising, and to the populist anti-Washington mood of recent years. (When Newt Gingrich became Speaker of the House, in 1995, he told new Republican members not to move their families to the capital.) Tom Daschle, the former Democratic leader, said, “When we scheduled votes, the only day where we could be absolutely certain we had all one hundred senators there was Wednesday afternoon.”

This combines with 10-14 weeks a year in recess, to make it impossible to have a long period of deliberating/considering/mounting a serious effort on anything.  

I know it must be horribly taxing to have to personally attend fund raisers, which are absolutely mandatory when incumbency carries such a ridiculously high built-in advantage (generally over 90% reelection rates); but maybe, if you really want to get something done, you could pick an important topic, and make  some small attempt to break the routine threat of filibusters instead of having a 3 day work week every single week during the merely 3/4 of the year that you aren't in weeks-long recess.  

And if after a month or two of actually working 5 whole days in a row you still couldn't do it, then I might entertain the idea that the part of the system which is broken isn't the part that lets you be too lazy to make an effort to do your job.