Michigan Liberal: - law

On Holding Down The Conversational Fort, Or, Jobs, Republicans, And Hooey

fake consultant — Mon, 02 Jan 2012 15:13:16 GMT

As the next Congressional fight over payroll tax extensions and unemployment benefits and pipelines gets set up in the next few weeks for either its final chapter or to be kicked down the road a bit farther, one or the other, you're going to hear a lot from our Republican friends about how much they value work and workers; most especially, they'll tell you, they value American jobs for American workers.

After all, they'll say, creating American jobs is the most important thing of all.

But if we were to look back over just the last few months, some would tell us, we could quickly find examples of how Republicans promote ideas that don't seem to value work or workers at all, much less American jobs.

Well as it turns out, "some" seem to be right; to illustrate one of those examples we'll look back a month or two or three to a time some Republicans might wish was long, long, ago, in a galaxy far, far away.

A successful comedian usually becomes more megalomaniacal as the success barometer rises. Initial success might be achieved from stand-up but then the comedian envisions a sitcom, then Broadway, albums, extended tours, Europe, and then his or her own production company. These things are all fine. Don't do dinner theater. Don't open stuff, like shopping centers or bowling alleys. Don't do fairs, especially if you follow the pig contest.
--From the book "How To Be A Stand-Up Comic", by Richard Belzer

So...the House Republicans went and promoted and passed out their payroll tax cut plan, and within that plan was a demand that the Junkie XL Pipeline - sorry, that should be Keystone XL Pipeline - get special "expedited" approvals, despite the objections of those who are worried about their water supply, and we have to do this, right now, those same House Republicans tell us, in order to put more or less 6500 folks to work getting the thing built.

And as we mentioned above, this is because the House Republicans care about American jobs and American workers.

So...it may strike you as a bit odd that the exact same House Republicans sent to the Senate in September the "Protecting Jobs From Government Interference Act" (HR 2587), which has only one purpose: it tells the National Labor Relations Board (the "NLRB") that if workers at a company decide to form a union, or the company even thinks a union might be coming, and the company, in retaliation, decides to move work from that plant - or, for that matter, decides to move the entire plant - then neither the NLRB nor the United States Courts shall have the authority to do anything about it.

All of this stems from an effort by Boeing to move work from Washington State to South Carolina in retaliation for union activity by the Puget Sound workforce; the NLRB has ruled that Boeing cannot move the work, and the Company and its friends in Congress have joined forces with other anti-Union Members of Congress to move this legislation.

Need a third-party expert opinion to help make sense of the NLRB's involvement and remedies? Consider this comment from University of Pennsylvania Law Professor Ellen Dannin, via Dennis Kucinich:

The NLRB has decades of experience with cases of this sort, and the National Labor Relations Act is clear that employer actions like Boeing's violate the law. If this were a murder case, it would be a case in which the police found a person saying : "I did it," while standing over a fresh corpse with smoking gun in hand.

Decades of experience, did she say? Yes she did - and she was right. In 1964, the Supreme Court ruled that the NLRB had the power to order remedies that include making companies "bring work back", the relevant case being Fibreboard Paper Products Corp. v. Labor Board, 379 U.S. 203.

The 250 law professors who wrote a letter explaining why HR 2587 is such a bad idea point out that it's not just about Boeing: companies will no longer have any reason to even bargain with unionized workers (or those who wish they were) before closing plants and moving work overseas, as they have to do now under the law; again, that's because no one will have the power of enforcement in these cases anymore.

As you might imagine, that's going to accelerate the departure of jobs overseas, and it won't take very long to get to 6500, which makes all that Republican fussin' and fightin' and sanctimoneoussin' about Keystone look a bit hollow, eh?

Let's jump to the side track, as it were, and take a moment to talk about why the question of which Party controls Congress matters: HR 2587 was introduced into the House, and if the Democrats controlled the Chamber it would have died in Committee, and that would have been that...but they don't, and it didn't, so the bill made it to the House floor, where it passed with no Democratic "aye" votes and six Republicans voting "nay".

Then it went to the Senate.

Senate Majority Leader Harry Reid (D-Sometimes Frustrating) has a bit more power than a Speaker of the House to kill any bill before his Chamber, if he's so inclined; in this case the bill sits on the Senate Legislative Calendar, and unless he says otherwise, that's where it'll stay. Of course if Mitch McConnell (R-Hates Obama With The Fire Of A Thousand Suns) were Majority Leader, he would have that bill on the Senate Floor in a heartbeat - and it would pass with a Republican majority, unless Democrats were willing to stand firm and filibuster the thing or the President was willing to use the veto pen, neither of which seems particularly certain.

A companion bill, S 1523, was introduced by Lindsey Graham; it was referred to Committee, possibly to never be seen again - which is also thanks to Harry Reid, with an assist from Tom Harkin, who is the relevant Chair.

At this point I was going to move on to the "what have we learned today" part of the deal, but before I do, I want to take a moment to show you just what kind of legislation our GOP friends will bring to the table, given the chance:

S 1720, the "Put All Your Crazy Eggs In One Basket Act" (not the real bill title, but close enough), was introduced by John McCain just before Halloween (it's now on the Legislative Calendar, not doing much), and it's a classic.

This one single bill calls for a Balanced Budget Amendment vote, a semi-flat income tax, repeals "ObamaCare", repeals Dodd-Frank (Wall Street reform), says you basically can't sue for medical malpractice anymore, says that if Congress fails to approve any Federal Agency regulation in 90 days, it's invalid, and then says no Agency can pass any regulation, of any kind, until unemployment hits 7.7%...and there's a lot more besides, including, I kid you not, forbidding the EPA from regulating the discharge of pesticides into water.

So now let's get to "what have we learned?"

How about this:

We are going to hear a lot over the next 60 days about how the GOP loves you, the American worker, but at the exact same time they are looking to...well...put all the crazy eggs in one basket, if they can get away with it, and at the same time they're looking to make it easier and easier to send more jobs to more countries than ever before, even to the point of trying to tell courts and regulators that they can no longer enforce laws Republicans can't get repealed.

As our GOP friends stand before you, these next couple months, professing their undying love, remind them of this conversation today, and HR 2587, and S 1720, McCain's "Crazy Egg Basket" bill, and then ask them if they think the GOP really cares about American jobs, or if they're just getting hustled by slightly-slicker versions of used-car dealership credit managers?

Then you lean in close, look 'em in the eye, smile just a bit, and you say to 'em: "And hey, while you're here...what do I gotta do to get you into a slightly used 1993 Buick Roadmaster Estate Wagon...today?"

Then you can both have a little laugh - while you take their money and run.

On Protecting The Innocent, Or, Is There A Death Penalty Compromise?

fake consultant — Sat, 24 Sep 2011 12:51:10 GMT

I don't feel very good about this country this morning, and as so many of us are I'm thinking of how Troy Davis was hustled off this mortal coil by the State of Georgia without a lot of thought of what it means to execute the innocent.

And given the choice, I'd rather see us abandon the death penalty altogether, for reasons that must, at this moment, seem self-evident; that said, it's my suspicion that a lot of states are not going to be in any hurry to abandon their death penalties anytime soon now that they know the Supreme Court will allow the innocent to be murdered.

So what if there was a way to create a compromise that balanced the absolute need to protect the innocent with the feeling among many Americans that, for some crimes, we absolutely have to impose the death penalty?

Considering the circumstances, it's not going to be an easy subject, but let's give it a try, and see what we can do.

Let's Fix An Error Dept.: Apologies are in order, because in our last story we identified The Riverside Church in Manhattan as the place where George Carlin learned to be Catholic - and that could not have been more incorrect. Bad research was the culprit here, and it's something that we'll obviously be working to improve. So, once again: sorry, and my bad.

Now if all the states want to limit the imposition of the death penalty to just the guilty (and after what we just saw in Georgia, that's no longer 100% certain), one way you could do it would be to make it a lot harder to prove guilt - and that's what we have in mind for today's proposal.

As you may recall, we convict today with a "burden of proof" that is described as "guilt beyond a reasonable doubt"; as we now know, it is possible to prove guilt, beyond a reasonable doubt, even when there's a whole lot of reasonable doubt to be found.

In Davis' case, he was given a chance on appeal to prove his innocence, and despite this conclusion from the Judge hearing the case...

"Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors..."

...Davis was still executed.

So the way I would get at this problem would be to change the burden of proof in these cases: if you want to execute someone who is facing an aggravated murder or other capital charge, instead of "guilt beyond a reasonable doubt", I would require "guilt beyond all doubt".

If you can't get to guilt beyond all doubt, but you can prove guilt beyond a reasonable doubt, then you could impose no sentence harsher than life without parole.

If this proposal had been in effect in Davis' case, there could have been no execution after he argued that he was denied the effective assistance of counsel, because that would have erased "all doubt"; after that he would have had the rest of his life to demonstrate that he was wrongly convicted.

There are going to be a few reasons people might not like this proposal, and I'll try to address some of them briefly:

Right off the bat, many will complain that because of the new burden of proof it will be virtually impossible to have executions at all; I would tell those folks that if that were to occur...then the system is working. The entire purpose of this plan is to make executions an extraordinarily rare occurrence and to move just about everyone on Death Rows nationwide to a "life without parole" future.

Beyond that, many will say that capital punishment is morally unacceptable under any circumstances, and to those folks I would respond that y'all make a pretty good point...but at the moment there are a lot of Americans who do not hold that moral position - and they have strong feelings too - and unless we can move them to a different point of view, then the best chance we have to prevent the innocent from being executed is to find some sort of compromise like this one.

(Don't believe me about that "strong feelings" thing? How many of the readers here would be OK with the death penalty for Osama Bin Laden, if he were proved "beyond all doubt" to have been the person behind 9/11?)

A similar line of thought is expressed in the idea that we are seeing more and more voters who do oppose capital punishment, and with a bit of patience, this problem will go away.

After what happened to Troy Davis, I think there's more urgency now than there was in times past, and that's because we now see that at least one State will quickly kill a prisoner in order to "clear the case", suggesting to me that patience is not as good an option as it was before.

Finally, I suspect many will feel that the effort to pass a proposal like this one would distract from the effort to end the death penalty, which is, again, a pretty good argument.

To those folks I would respond that we may get some states to end the death penalty today, but there are a lot of other states that are not going to want to give up the death penalty for some time to come (remember the people who cheered Rick Perry's execution record?), and if we aren't going to be able to end the death penalty completely, then I think we have to offer some sort of compromise; a compromise based on the concepts of "killing the innocent isn't The American Way" or "you could still execute Osama" could appeal to voters who simply won't give up on the death penalty altogether.

So that's what we have for you today: even though I personally would prefer that we end the death penalty and just go to life without parole for all these crimes, I don't think we're going to achieve that in a lot of states; with that in mind I'm proposing a compromise that would protect the innocent by ending virtually all executions, even as it allows an extraordinarily difficult to reach exception that could satisfy those who absolutely do not want to see the application of the death penalty come to an end.

It's an imperfect compromise, I'll admit - but in a big ol' swath of America that runs from roughly Florida to Idaho, it may be the best compromise we can make right now, and right now, in those places, that might have to be good enough.

Entirely Off The Subject Dept.: We are still trying to get signatures for the petition to change the name of Manhattan's W 121st St (one block from Seminary Row) to George Carlin Street, and we need your help; you can sign right here. The goal is to reach 10,000 signatures by Monday, so...get to it.

On Happy-ing Their Gilmores, Or, Will Body Bags Be The New Gold Watch?

fake consultant — Mon, 25 Apr 2011 22:52:17 GMT

We are continuing a recent theme here today in which two of my favorite topics are going to converge: Social Security and in-your-face political activism.

I have been encouraging folks to take advantage of the recent Congressional recess to have a few words with your CongressCritter about the proposed Death Of Medicare and all the proposed cuts to Social Security...and you have, as we'll discuss...and now we have an opportunity to do something on a national scale, just as we did a few weeks ago in support of Social Security.

This time, we're going to concentrate on fighting the idea that retirement ages should go up before we become eligible for Social Security and Medicare (and elements of Medicaid, as well), and that Americans should just keep right on working until the age of 67 or so-which isn't going to be any big problem...really...trust us.

Now that just makes no sense, and to help make the point we have a really cool video that you can pass around to all your friends-and your enemies, for that matter, since they'll also have to worry about what happens to them if they should ever make it to old age.

"...Art can create a climate of sensitivity in which it is possible for change to occur..."
--Shabana Azmi, on Riz Khan's Al Jazeera program "One on One"

Members of Congress are at home this week, and they love to go out and meet the voters-but it hasn't been as much fun all of a sudden for some of them, and there are several videos out on the Web right now where it looks like Members wish they hadn't been hanging out where the public could see them so easily.

Now some of these videos are loud and boisterous-but the one that should really scare Republicans was Charlie Bass' appearance in Hillsboro, NH on the 4/20 holiday.

If you look at the crowd, they're older, for the most part-and for the most part they came to the meeting with their own information, meaning that they weren't so much looking for the Congressman to tell them what was up as they were looking to tell Mr. Bass (who represents the State's 2nd District) that they weren't too happy with him about this "entitlements reform" deal.

Now they weren't there with pitchforks and torches by any means, and a lot of them were supportive of many of the Congressman's other positions-but they were extremely unhappy about the idea that Medicare would become a voucher system (just so you know, Bass would insist that it's a "premium support system" whenever the word "voucher" came up), and they did not find the argument that "this won't affect you" very convincing, either.

In addition to the obvious question (basically, "why would the plan be better if it only sticks it to our kids and grandkids?"), a woman from the crowd asked a question I don't think Karl Rove ever thought would come up: you might not be sticking it to senior citizens today...but she wondered what's to prevent conservatives from coming back in a few years and asking those under 65 why they should be supporting those old people and their "Cadillac plans"-at which point it will be "stick it to the old folks" season, and Medicare will officially die, along with a lot more old and disabled people, sooner than they should have.

And he wasn't the only one to have a bit of a tough week at what used to be really friendly Town Halls: Pat Meehan (PA-07) got himself into a shouting match with his putative employers, so did Lou Barletta, he of Pennsylvania's 11th...and so did Catfood 2.0's architect, Paul Ryan, who had to face what he politely described as an "enthusiastic" crowd in Milton, Wisconsin.

"Happy learned how to putt! Uh-oh!"
--Adam Sandler, from the movie "Happy Gilmore"

To put it bluntly, the Members are hating it, big-time, as it appears that their 2009 "Town Hall Goose" has suddenly become just a little too good for the gander.

And if we're already making life hot for these folks...why not just keep on pushing?

That's the idea behind "Don't Make Us Work 'Til We Die", which is an effort of the fine folks at Strengthen Social Security to highlight the fact that a lot of people right now are proposing to raise the retirement age; either to 67, or to something north of that...for the good of America, of course.

After all, if you're a firefighter, or a nurse, or maybe you work in the trades, or a restaurant kitchen, or you drive a gasoline truck...or maybe you're a smokejumper for the Forest Service...why would working until 67 be a problem for you?

Here's a video that makes the point very nicely:

(By the way, they would love for you to spread this video far and wide; grab the embed code and just go nuts-or, if you prefer, email the link-and in the interests of Full Disclosure: I'm associated with the Campaign for America's Future and they're one of the members of the Strengthen Social Security coalition.)
.
On Wednesday and Thursday all of this goes outside and hits the streets all across the country, and to make it easy, the same website can help you find an event near you-or, if you live in Wyoming or something, you can attend the "virtual event"-either way, just visit the handy website and go from there.

So there you go: we have Republicans feeling mighty uncomfortable all of a sudden, we have a chance this week to get out in public and make the point in a bigger way-and now you even have the perfect video to send to that one relative who always forwards you Michael Savage's latest missives.

Now get out and keep the momentum going forward-and don't forget, it's really easy to look at the person next to you in line at the grocery store and say: "Can you believe how they're trying to screw us out of Social Security?"

That's about all it takes to get a pretty good conversation going...and if you repeat that process, about a million times...well, that's how politics gets done.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger's Network Project.

On Living Up To Your Words, Or, Tornado? That's Not In The Constitution.

fake consultant — Wed, 20 Apr 2011 12:46:26 GMT

There are lots of big tough words coming out of our friends in the Tea Party these days, especially when it comes to the permissible functions of the Federal Government.

"If it's not specifically enumerated in the Constitution," they say, "It must be a function of the States-and the 10th Amendment says so!"

None are tougher in their language than those living in the States located below the old Mason-Dixon line-and by an amazing coincidence, just this weekend pretty much all of those States got a bit of a "gut check" in the form of dozens of tornados that slammed into the area.

So we're going to put the Tea Party philosophy to the test today, and see just what exactly the Federal Government should-and should not-be doing to fulfill the Tea Party vision and to help those folks who were hit by this particular natural disaster.

"...For that was not true; his attitude was not to be explained by greed, or at any rate by greed alone, but rather by the touchiness which his great labors and their complete unsuccess had bred in him."
--From the story "The Village School Master [The Giant Mole]", by Franz Kafka

Stories often begin by setting the terms of the discussion; that will be true today, and the framework for where we'll start is Article 1, Section 8 of the US Constitution, which is the "unless it's enumerated..." part of the Tea Party argument:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

OK...so, let's talk about "who's who" in this little drama (for the record, this won't be a complete list of events or people; it's just a sample for the purposes of discussion):

Arkansas had tornados Friday night; seven people died (five of those from winds not attributable to a tornado), and according to "The Post and Courier" of Charleston, SC, there had been three days of warnings from the National Weather Service before this particular weather event.

The paper also reports that Oklahoma, Louisiana, Tennessee, and Mississippi were hit.

North Carolina was hit with as many as 62 tornados over the weekend, with at least 22 dead.

In Virginia, Saturday, a 12-mile swath of Gloucester County was severely damaged, with a total of 5 dead in the Commonwealth.

North Carolina, Alabama and Mississippi have declared a State of Emergency, so has Virginia. Oklahoma has been under one State of Emergency due to wildfires since March, a second Emergency was declared over the weekend, and Federal assistance was again requested by Governor Mary Fallin to help make things better.

To keep this to a reasonable length, we're going to drill in on three States, and three Governors; those States are Virginia, Alabama, and Oklahoma.

Alabama's new Governor, Robert Benchley, is one of those "enumerated powers" kind of guys, in fact, he signed The 10th Amendment Pledge; the parts which concern us here read as follows:

The phrase, "General Welfare," in Article I, Section 8 does not authorize Congress to enact any laws it claims are in the "General Welfare" of the United States. The phrase sets forth the requirement that all laws passed by Congress in Pursuance of the enumerated powers of the Constitution shall also be in the General Welfare of the United States...
... I do, and will continue to, oppose any and all efforts by the federal government to act beyond its Constitutional authority.

Let's move on: the Tenth Amendment Center is proud of Oklahoma's Mary Fallin for turning down the Federal grant to set up the State's "Obamacare" insurance exchange (officially part of the Patient Protection and Affordable Care Act [PPACA]) on 10th Amendment grounds-and she would also want you to know that:

"...I believe, as I know many of our legislators and the majority of our citizens do, that the PPACA is unconstitutional, fatally flawed and ultimately harmful to our economy and the health of our citizens..."

And then there's Virginia:

Gov. Bob McDonnell on Friday drew cheers from the tea party crowd as he announced support for a "Repeal Amendment" to the Constitution.
"There has been a bi-partisan trampling of that federal compact of the 10th Amendment," said McDonnell as he spoke at the Virginia Tea Party Patriots Convention in Richmond.
A "Repeal Amendment" was proposed last month by House Speaker Del. Bill Howell, R- Fredericksburg. The amendment to the U.S. Constitution would allow a federal act to be over-turned if two-thirds of state legislatures voted against it. Such an act would sway power to state legislatures, and is a popular concept in tea party circles.
When the panel moderator asked McDonnell is he would support such an amendment, he replied "yes."

And now it's disaster time, and these Governors are looking for disaster help...but they have a very particular view of how the Federal Government and the States ought to relate to each other...so... at this moment of urgency, just what precisely are the specifically enumerated powers that the Federal Government has at our disposal for disaster relief?

Well, according to my quick re-reading of Article 1, Section 8, that would be exactly...no power at all, except to act in case of insurrection, to try any Federal criminal offenses that might occur, and to repair any Federal docks or other needful Buildings.

(You'll note I did not say "try and punish" any Federal criminal offenses. That's because there's nothing I can see in Article 1, Section 8 about Federal prisons.)

I don't see anything in there about the National Weather Service, either, so from now on, if a State wants to know if a tornado's coming, I guess they better pony up the cash and start themselves a State Weather Service, or buy the forecasting and warning services from a private contractor.

(This could be good for the economy, by the way: forecasting the weather requires satellites, and if every State that believes in self-reliance each launches their own satellite constellations...that's some jobs, right there.)

FEMA? In the view of those who truly understand, it's unconstitutional on its face, and, therefore, the Governors shouldn't be looking to them for help.

The loans that businesses and citizens rely on to get back on their feet? Show me the "enumerated" language that permits those activities, because I can't find it.

Grants to States to cover their extraordinary expenses? I don't see anything authorizing such activities, and with that in mind...I don't think so.

According to the "purist" view, the 10th Amendment requires all of this to be handled by the States, not the Federal Government; that's why, for the life of me, I can't figure out why these Governors weren't thinking about disaster planning from the start of their terms.

Why weren't these supposedly self-reliant States ready when this happened?

I mean, each of these States already has an emergency management department, and I'm sure they can manage much better locally than the Feds (or at least they claim they can), so why are they even asking for Federal help in the first place?

How is it possible that these Governors never considered that protecting the citizens of their States would be "Job 1", to steal a phrase, and, to make a moral point, why should the rest of us be bailing them out now?

I mean, hey: you told us these were State problems, and now you have problems, and you still have States, so you know what?

Live up to your words: get all "10th Amendment-y", and suck it up, and deal with it yourselves.

That's what you told us you wanted, when you were Full Of Big Campaign Talk, so now do it, Governors, and stop all that crying and whimpering to us for outside help, and go make that 10th Amendment work for you.

Show us how much better local control is than when the Giant Hand Of The Federal Government Tells You What To Do.

Be the self-reliant Brawny Men that you were in your campaign ads.

And I'd pose the same challenge to anyone who voted for these Governors:

Remember how you all cheered when your candidates told you Government wasn't the solution; that it was, instead, the problem?

If you really believed that, then what in the world are you doing asking for the Federal Government's help now?

After all, you said you wanted Government "off your back", and "the Government that governs best governs least", right, so why would you want Government in your faces at a time when you're trying your hardest just to get back on your feet?

Why aren't you (and I'm thinking specifically of you, Tri-Corner Hat Patriot Guys) demanding that the Federal Government stay out of this and leave the States alone?

And it's only fair: there was no tornado in California this weekend, so why should Californians pay taxes for your disaster?

And remember how adamant you were, just a couple of weeks ago, that the budget cuts associated with those Continuing Budget Resolutions weren't deep enough?

Well, how are we supposed to make the kind of budget cuts y'all wanted on the Federal side when you're coming around here demanding more money?

We have a deficit, remember, and we can't be spending money we don't have-and even if we had the money, we couldn't spend it on helping you, because, as you all recall, there's nothing specifically in the Constitution to allow it.

This is your problem, Constitutional purists, and, according to your own logic, it's not ours...so if you want your roads and schools fixed, ask your citizens to volunteer to do the work or something.

Since we can no longer help you, maybe the Red Cross or some other private charity could fund the rebuilding of your communities.

Since so many conservatives believe corporate and religious philanthropy will fill in the gaps in the shrinking "social safety net", you could try asking churches and private industry to do the work for you as a community service; I'm sure they'll jump right in and pick up all the slack.

Hey: you were the ones full of tough talk last November, my Tea Party friends, and now it's 10th Amendment "gut check" time, and I want to see you live up to your own words, if you have the "man pants" to do it...or I want you to see you acknowledge that this was all a giant load of hooey.

That maybe there's a place for a United States of America, that maybe there is such a thing as "general Welfare"...or maybe even that being a 10th Amendment purist might be great down at the ol' Heritage Foundation when you're hustling for campaign money, but that once the big winds start blowing, ideology ain't worth spit compared to a system of weather radars and satellites and a FEMA that will come and bail your butt out if it all goes wrong.

And if you voted for one of these clowns...either you need to get smart, right now...or maybe we need to cut the cord.

Maybe you need to see what your own vision of "10th Amendment reality" is really all about.

Maybe, just as so many of you have demanded, we should mind our own Federal business and let local government govern best.

And if it doesn't work out, then, maybe, you'll wake up and realize that Ronald Reagan was wrong: sometimes Government is the only game in town, and when it's not around, providing helpful solutions...that's when you got real problems.

DADT Update: The Service Chiefs Report, The Republicans Fret

fake consultant — Mon, 11 Apr 2011 15:09:01 GMT

There's been a great deal of concern around here about the effort to prepare the US military for the full repeal of "Don't Ask, Don't Tell" (DADT), and I've had a few words of my own regarding how long the process might take.

There was a hearing before the House Armed Services Committee last Thursday that had all four Services represented; with one exception these were the same Service Chiefs that were testifying last December when the bill to set the repeal process in motion was still a piece of prospective legislation.

At that time there was concern that the "combat arms" of the Marines and the Army were going to be impacted in a negative way by the transition to "open service"; the Commandant of the Marine Corps and the Army's Chief of Staff were the most outspoken in confirming that such concerns exist within the Pentagon as well.

We now have more information to report-including the increasing desperation of some of our Republican friends-and if you ask me, I think things might be better than we thought.

The Governments of the States Parties to this Constitution on behalf of their peoples declare:
That since wars begin in the minds of men, it is in the minds of men that the defenses of peace must be constructed;
That ignorance of each other's ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war...
--From the Constitution of the United Nations Educational,
Scientific, And Cultural Organization (UNESCO)

So let me start with the good news; I'll do that by telling you what I though would happen, compared to what the Service Chiefs are now saying is going to happen:

My guess was that, due to all the process involved, we could be looking at a full year for implementation, and if the Services felt that they had to rotate all the overseas deployed forces back to the USA before they could complete training, you could easily be looking at 18 months.

That, as it turns out, was wildly inaccurate.

The Vice Chief of Staff of the Army, Peter W. Chiarelli, reported Thursday that his Service might be able to report they're ready to certify by May 15th of this year; to make that happen they are going to train the troops overseas and at home, both at the same time, and they wanted us to know that they've already completed much of the "train the trainer" work already. They also expect to certify after about 50% of the training is complete instead of waiting for 100%, and that's because the leadership believes they'll know of any implementation problems that are likely to crop up by then.

The most outspoken opponent of the change in December, Marine Commandant General James Amos, says that he's seeing far fewer problems than he expected, and he believes the move to open service won't have any serious impact on his force.

Here's how the Defense Department reported Amos' testimony:

A department [of Defense] survey last year showed that about 60 percent of Marines in combat units had concerns about the repeal, Amos noted, but those concerns seem to be waning. The general visited with Marines in Afghanistan over Christmas and spoke with their commander this morning on the issue, he said.
"I'm looking specifically for issues that might arise out of Tier 1 and Tier 2 and, frankly, we just haven't seen it," Amos said. "There hasn't been the recalcitrant push back, the anxiety about it" from forces in the field.
Amos said the Marines' commander told him, "'Quite honestly, they're focused on the enemy.'"

The Navy says they expect to complete their Tier 3 training (the final phase of training) as soon as the end of June; Chief of Naval Operations Admiral Gary Roughead told the Committee that he foresees no problem achieving a successful transition to open service.

(A quick note to the reader: I have been known to write satirical stories with crazy made-up character names, but the actual name of the actual Admiral who is tasked with leading the Navy into the era of open service is actually...Roughead. Some may consider this to be evidence of Intelligent Design; I continue to disbelieve.)

Air Force Chief of Staff Norton Schwartz, who also seemed to suggest, back in December, that trouble might be waiting on the road ahead, seemed far more confident this week; it looks like the Air Force might have Tier 3 training wrapped up by the July 4th holiday.

The Service Chiefs also announced that those who have been discharged under DADT will be eligible to petition to return to the military.

There is today a mechanism in place within the Defense Department to consider the petitions of those who voluntarily leave the military and wish to reapply; that system looks at what jobs are available, and, if it meets the needs of the Services, a job offer is extended to the applicant. (The individual might not return at the same grade or rank they held when leaving, however, and that would also depend on the military's interpretation of what best fits military "force structure" requirements.)

At the hearing the Committee members were told that those who were discharged under DADT could reapply under the same rules that exist today for those who leave voluntarily; the same system that's in place today will "work" those applications.

There was some not unexpected bad news: Republican Members of the House are just so over the top on objecting to this one that it's ridiculous and funny and maddening and just awful, all at once.

There was begging ("if there was just some way the Service Chiefs could convince the Chairman of the Joint Chiefs not to certify, then we could all be saved" was the gist of that one), and fake expertise ("when I served we were all afraid of 'em, and I can't believe today's troops still aren't" is the rough outline of how that argument went and California's Duncan Hunter was an example of one Congressman who fit into that "genre"); there was even an offer to do another survey so we can "do what the troops really want" (I can save y'all the time and trouble: what they really want...is to get the hell out of Afghanistan).

If the Grim Weeper had been in the room, I'm sure he would have had a big ol' blubbery cry over the tragedy that's befallen the Nation on this somber occasion-and it's a good thing he wasn't, because I have no doubt such a display would have once again caused Tonstant Weader to fwow up, just like that time back at Pooh Corner.

Among the Republicans there was a lot of preoccupation with the potential for men, in combat, in those close, confined, spaces...men who are depending on each other, night and day...to be subject to the advances of other strong, powerful, muscular, men in a variety of manly uniforms-I mean, as far as I can tell, there are Republicans who see this as some kind of eventual "Livin' La Vida Loca" kind of situation, only, you know, a bit more butch, and I would love to know what in the world they think life aboard a Ballistic Missile Submarine or on a Forward Operating Base in Southeastern Afghanistan is really like?

Oddly enough, the predominantly male Committee didn't seem as concerned about the possibility of female same-sex relationships impacting military readiness and unit cohesion in a negative way; if anyone has a guess as to why that might be the case I'm sure I'd love to hear it.

The military, to their credit, did a lot of pushing back against the Republicans. For example, at one point there were questions as to whether this would cause an unacceptable number of troops to leave the all-volunteer military. The response: right now the real problem is that as we withdraw from Iraq and troopers come home to a bad economy, too few want to leave.

They also spent a lot of time pointing out that "standards of conduct" already exist to manage sexual contacts and harassing behaviors between opposite-gendered persons, and that those very same rules will be used to manage issues of conduct in a same-sex context.

Risk mitigation is suddenly very important for some Republicans, and they do not want to repeal if there is any risk at all that the move could impact combat readiness or pose a hazard to the force.

That line of logic led to one of the most stupid questions I have ever heard asked in a hearing, ever, in decades of actually paying attention, and it came from Republican Vicky Hartzler (MO-04).

What she was trying to do was to show that the Generals would not want to recommend policies that add to the risk facing the troops. What she had been told was that the future risks of open service were as yet unknown (hard to know today with 100% certainty what the future holds), but that, based on progress made so far, the risks seemed to be low and that mitigations seemed to be in place for currently identified potential problems.

But what she asked the commanding officers of four military services was...wait for it...whether they had ever recommended sending their troops into heightened risk environments?

They actually all kind of seemed a bit stunned by the question-but they kept their poker faces-and then they reminded her that sending troops into combat is actually a bit of a high-risk activity.

The deer then jumped out of the way of the headlights, and the hearing resumed.

Look, folks, I am not passing along any news when I tell you that DADT still scares the loose buttons off a bunch of suits in Washington and that they still want to have this out anyplace they can-but it is news to find out that they are ahead of where they could have been over at the Pentagon, and that all the Service Chiefs do really seem to be on board, at least publicly, and that they are all reporting fewer problems than they expected as this process moves forward.

In a tough week it's nice to report good news, and I think this qualifies-and if things continue at this pace, we could see certification and full open service before Labor Day.

Now I know we don't usually give Labor Day presents, and to make it worse, we're hard to shop for...but if there's one thing everyone loves to get, it's a More Perfect Union-and I bet once we try it on, there's no way it's going back.

Social Security: Are You Ready For A Congressional "Video Staycation"?

fake consultant — Mon, 04 Apr 2011 01:29:07 GMT

Diligent reporter that I am, I got up Thursday morning to do a bit of fishing for a story, and as so often happens, I've caught something a bit unexpected.

Now what I have for you today starts out as a bit of insider information that came to me on background-but it turns into a chance for those of us who support Social Security to very much get in the faces of our members of Congress, for two whole weeks.

And to make it even better, I'm going to throw out a few direct action ideas "for your consideration" (as they say in Hollywood during Awards Season) that would absolutely make good street actions and YouTube videos, both at the same time...and even more importantly, we'll absolutely make some great Spring Break fun.

"I mean, just from the very notion that it said that 50 percent of beneficiaries under the Social Security program use those moneys as their sole source of income. So we've got to protect today's seniors. But for the rest of us? For - you know, listen. We're going to have to come to grips with the fact that these programs cannot exist if we want America to be what we want America to be...
...We're going to have to accept some changes as far as the rest of us. And what we're saying is for those 55 and older do not have to worry about changes in benefits. But for the rest of us we will. We will have to do that."
--House Majority Leader Eric Cantor, speaking at the Hoover Institution, March 21, 2011

OK, so like I said, I have bit of "inside baseball" that sets this whole thing up.

I got a piece of information "on background" yesterday from An Actual Well-Informed Source who seems to be about two or three "degrees of separation" away from actually being in the room while this news is occurring; because of that I'm willing to ascribe to it a reasonably good chance of proving to be entirely accurate.

What I was told was that Paul Ryan, who is the "manager" of the House Republicans' budget-cutting effort, has decided not to push to include cuts in Social Security as part of the current fight over a Continuing Resolution...because Spring Break is coming up.

Check this out: according to the House Schedule, April 18-29 is Spring Recess, and I was told there's a lot of concern on the Republican side about what would happen if anyone made any crazy Social Security proposals right now...when they have to go home and face you and me and the rest of the Angry Nation in just about two weeks.

(There's some evidence to back this up: it is now possible that Cantor "misspoke" in that quote a couple of paragraphs up the page; as of this moment I can't confirm if a "full backpedal" is officially underway or not.)

We can discern two things from that little nugget: for starters, we are having an impact on this fight-but beyond that, we also now know that we have two weeks to publicly torment those Members of Congress who are looking to cut Social Security...and we have two weeks to get ready.

Since hunger strikes are already underway, here are a few other ideas you're welcome to steal to make your statement:

Is your Member going to be appearing at a community center or a friendly church?

Well how about arriving a few hours early and setting up a cardboard "Social Security Tahrir Square"?

You could have a box that's the local "Catfood Grocery", you could paint one of the boxes to look like "Grandma's Gingerbread Box", and you could even have a "Long-Term Care Facility" and hand out fliers of your own-and make sure you catch the reaction of the Congressional Staff on video to set up the bigger video of you interacting with the crowd...or y'all being ejected by the suddenly fearful Representative...or y'all "making happy" with a supportive Member.

Now you're going to love this one, and there are two ways you can make it work.

What we'll be playing on are the proposals to increase the retirement age and how we'll be asking old people to do jobs that, obviously, they just can't; what I basically want you to do is either go to an event...or outside one of the Members' District Offices...and create a "job training center" for senior citizens.

Get a wheelbarrow and load it with a nice load of bricks, maybe fill some oval trays with a mess of plates and beverageware (safety first on this one; beware of glass and ceramic-and don't forget the jackstands), and then rustle up a transfer belt and a heavy volunteer and simulate what nurses and their aides do all day long, and all night, too: lifting and transferring those who can't do it for themselves.

Take it all to the venue, and you can either "train" your own 70+ year-old students...who might not be old enough to retire, under the new proposals...on how to do these types of jobs while the crowd watches-or you can invite older members of the crowd to try their hand at moving the bricks, or lifting the tray. Bring a medical worker and you can show them what lifting looks like, too-although I would be unlikely to invite the crowd to do that one without some kind of training.

(Do I have to warn you that this could get someone hurt, and you'll have to use a reasonable amount of caution when you do this? I didn't think so.)

Again, get it all on video-and then get that video right up on the Web.

Our final idea for today might be my favorite-but that might be because I used to be a caterer, and this really fits my sense of humor.

You know those "Top Chef" and "Iron Chef" shows?

And you know how we refer to that Deficit Commission as the Catfood Commission?

Well...why not sponsor a "Catfood Contest" at your Congresscritter's event?

Again, you could go two ways: invite "contestants" in chef's whites to create delightful dishes with the Commission's Catfood, or you could judge competing sculptures; they do both at the Spam Jam in Waikiki, and if it was me I'd steal the ambiance of this kind of an event from Hawai'i, especially since it's Spring Break season anyway.

An alternative way to do this: performance art of an elderly couple having a Catfood Commission BBQ, cooking Catfood patties on portable grills to make a point.

So there you go:

We have two weeks to get ready to have two great weeks of fun just really tightening the screws on those Members of Congress who are looking to jack America out of Social Security, and we have ideas on the table that you are entirely welcome to borrow, or adapt, or outright steal-and with any luck, other readers will toss in some ideas of their own-so get your art on, gather your props, and bring extra video batteries and a blank tape to give the police...just in case.

And here's one last thing to remember: this isn't just about turning back a disastrous plan to break the backs of Americans for decades to come-it's also about having a good time.

Well-executed comedy makes people agree with you, and to like your message, and that's a powerful thing; the more fun you're having, the better the whole thing is going to work.

Now go forth, make some mischief, and watch the magic happen.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger's Network Project.

Social Security: Get On The Phone Tuesday And Wednesday And Help Fight Cuts

fake consultant — Sun, 27 Mar 2011 23:12:03 GMT

So it's been about three weeks since we last had this conversation, but once again we have to take action to try to keep Social Security from being the victim of "deficit fever".

I know that doesn't make a lot of sense, considering the disconnect between Social Security and the deficit-but once again it's "Continuing Resolution" time on Capitol Hill, where some use the threat of an impending shutdown of the Federal Government to extract concessions from the other side...and some on the other side try to make points with the voters by out-conceding their opponents.

So Tuesday and Wednesday of next week, there's a national push on to get voters to call their Senators and remind them to vote for an Amendment that is a big ol' "I'm not willing to cut Social Security just because other people philosophically want to cut Government any way they can" kind of reassurance to the voters, and I'm here to encourage you, once again, to make a couple phone calls and do some pushing of your own.

I've also been storing up a couple somewhat facetious random thoughts which will be the "garnish" for today's dish; you'll see them pop up as we go along.

First, the I'm A Bit Confused Dept.: There's an ad currently running on TV for a drug called Intuniv. The drug is for children who are suffering from ADHD, and the visual image features a mother coming out the doors of the school with her "now-perfectly-behaved" 11- or 12-year-old child.
What comes next is the warning that the drug might-well, I'll just quote the Intuniv website...
"Patients should not drive or operate heavy equipment until understanding how INTUNIV affects them"
...and every time I see the ad I think that if my 11-year-old could drive and operate heavy machinery I might suggest giving the other kids ADHD so they, too, could grow up and have a valuable skill of their own one day.

As we discussed "above the fold", the Strengthen Social Security folks are doing a nationwide Senate call-in Tuesday and Wednesday to drum up support for passage of S.AMDT.207, the Sanders-Reid Social Security Protection Amendment, and they've created a process to painlessly put you directly in touch with both of your Senators, even if you have no idea who they might be.

I tried it out myself, just to see what would happen, and here's how it works:

You call the phone number (1-866-251-4044) and the friendly automated phone voice automatically determines your location and then informs you that you "are represented by Senators [insert names here]"-and all of this without your having to navigate a menu or push a button.

The friendly phone voice then tells you to choose a Senator ("...push one or two..."), and you're then directly connected to that office. Before you go, you're encouraged to call back and leave a message with your other Senator as well...and you're also offered "the commercial": a fairly precise (roughly) 10-second script for a message that you might choose to leave, suggesting that your Senator vote for that Sanders-Reid Amendment.

I have a plan to make nuclear reactors in this country safer, and to do it fast: every Member of the Nuclear Regulatory Commission, everyone who votes on granting or renewing plant licenses, every nuclear power plant inspector, and the top executives of any nuclear licensee...should all be required to move into on-site housing at the nuclear power plants they're in charge of within one year.
(This idea might also be adapted to improve the lives of nursing home residents, and it's the same kind of "enforced safety" thinking that led to the old rule that Army paratroopers had to pack their own parachutes.)

We've made other calls like this recently, and just like before, the goal here is to keep the pressure on, and to remind all 100 Senators that they all have voters who absolutely do not want cuts in Social Security, and that this is not the time to be trying to sneak something in under cover of "Continuing Resolution" darkness.

So there you go: on Tuesday and Wednesday call the handy number (1-866-251-4044), let the automated voice guide you to your Senators, tell them you want them to vote for the Sanders-Reid Amendment...and while you have them on the phone, don't be afraid to suggest that nuclear power plant on-site housing idea either.

Fighting for want you want is a process, not something that happens all in one day, and you should expect more messages like this one as we go along, asking you to make your voice heard-but you should also keep in mind that we've been doing pretty well so far, and when we speak, we're being heard.

So make those calls, apply that pressure...and let's win this thing.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger's Network Project.

On Monday Morning Philosophy, Or, Founders Tell America: "You Figure It Out"

fake consultant — Mon, 21 Mar 2011 21:18:25 GMT

In our efforts to form a more perfect Union we look to the Constitution for guidance for how we might shape the form and function of Government; many who seek to interpret that document try to do so by following what they believe is The Original Intent Of The Founders.

Some among us have managed to turn their certainty into something that approaches a reverential calling, and you need look no further than the Supreme Court to find such notables as Cardinals Samuel Alito and Antonin Scalia providing "liturgical foundation" to the adherents of the point of view that the Constitution is like The Bible: that it's somehow immutable, set in stone, and, if we would only listen to the right experts, easily interpreted.

But what if that absolutist point of view is absolutely wrong?

What if the Original Intent Of The Founders, that summer in Philadelphia...was simply to get something passed out of the Constitutional Convention, and the only way that could happen was to leave a lot of the really tough decisions to the future?

What if The Real Original Intent...was that we work it out for ourselves as we go along?

"...you see, all the majesty of worship that once adorned these fatal halls / was just a target for the angry as they blew up the Taj Mahal..."
--From the song "Gasoline", by Sheryl Crow

The reason this is coming up today is because I've been writing a lot about Social Security lately, and I keep getting comments from folks who see no Constitutional foundation for such a program.

To sum up what I often hear, if there is nothing in the Constitution that specifically provides for Social Security, then, if it's to be done at all, it's something that should be left to the States. (The 10th Amendment is used to reinforce this point.)

A lot of these folks, from what I can see, hearken for a simpler time, a time when America had no "foreign entanglements" or National Banks...a time when men of the soil worked their farms with no fear of Debt or The Taxman....a time when government worked best by using local wisdom to deal with local problems.

In other words, we're basically having the same arguments over the shape of this Government that Thomas Jefferson and Alexander Hamilton were having in 1787-and for those who don't recall, Hamilton won, which reflects the reality that we don't all live on farms and hunt turkeys and Indians, and that State Governments are just as capable of ignorance and foolishness and greed and blind hate as any Federal Government.

To reinforce their arguments "fundamentalists" fall back on some version of the Original Intent theory, which basically assumes the Constitution was written by men who miraculously created a perfect document, and that all the answers to today's problems would be found by simply allowing the Original Intent to shine through.

I'm here to tell you that couldn't be more wrong-and to prove my point you need only consider the Civil War.

Despite what you might have heard in Virginia, the Civil War really was about slavery, and the reason we had that fight in the 1860s was because there was no way the question could be settled at the Constitutional Convention.

Those Founders who supported ending that "peculiar institution" were never going to convince slaveowning Founders to give up their property, and as a result of the desire to get a Constitution drafted that could be ratified by "the various States" there were compromises made, including the 3/5ths Compromise and Article Four's requirement to deliver fugitive slaves to their owners upon demand, which resulted in the Fugitive Slave Acts of 1793 and 1850.

The Intent Of The Founders, on the question of slavery, was to let time work it out.

The same kind of "let time work it out" thinking led us to Article 1, Section 8, and the "general welfare" clause.

Congress is empowered to enact legislation that provides for the "common defense and general welfare of the United States"...but there is no specific interpretation of what the phrase means (in fact, there is no glossary at all for the Constitution, which means there are plenty of other examples of, shall we say, "unclear phrasing").

Since there is no specific reference as to how Article 1, Section 8 and the 10th Amendment are supposed to interact or what the Founders' Intent might be, we are again forced to apply our own interpretations, over time, to figure out how to resolve the inevitable conflicts.

We had to do that because, even as there were proponents of a Federal system, there were plenty of Delegates at the Convention who wanted nothing to do with a strong central government. They wanted to keep a system in place that resembled what we had under the Articles of Confederation, where the Federal Government had no ability to compel the payment of taxes and States had the choice of whether to "accept" Federal laws...or not.

Over time, of course, we've come to realize that having one air traffic control system, and not 50, was a good idea, and that funding things like disaster response on a national level makes sense, even if Texas wants to go it alone or something, and we probably all agree today that if States are willing to allow 12-year-old factory workers to work 16-hour days, then Federal child labor laws are a reasonable thing to make that stop-and all of this progression of history is happening because the Original Intent was to let the future figure out where the 10th and Article 1, Section 8 would "find their center".

The Original Intent Of The Founders, apparently, was that white men who did not own property, women, and those not pale and fair and of European descent had no reason to be involving themselves in the affairs of government, as that was the list of who was not allowed to vote at the time we began our experiment in democracy; over time we've seen fit to change that-and at every step along the way there have been Cardinals of Interpretation ready to tell us that with each change we were doing violence to the letter and the spirit of the Constitution as they knew the Founders would have intended it to be.

Am I entitled to create or possess any form of pornography because the First Amendment prevents Congress from abridging free speech, or is the general welfare furthered by allowing society to protect itself from the exploitative effects of pornography by limiting or banning completely the production or possession of certain materials that are considered unacceptable?

The Founders seem to have offered no obvious intent when they created this conflict, which makes sense, because the possession of child pornography didn't really exist as an issue in 1789.

I'm guessing that today we are not anxious to have each of the 50 States adopt their own rules (after all, who knows what some crazy State might do?)-but they did put that "general welfare" clause in Article 1, Section 8, and over time, our view of Constitutional law has come to accept the compromise that the Founders could not have foreseen.

The fact that the Supreme Court resolves these kinds of conflicts at all was not laid out in the Constitution, nor was the fact that the Federal Government's powers are superior to those of the States; it took the 1803 Marbury v Madison and 1819 McCulloch v Maryland rulings to figure out, when there are multiple claims of liberty, which were to be put ahead of the others.

Can you guess why?

That's right, folks: it was because they had Delegates at the Constitutional Convention (and States who had to ratify the finished product) who did not want to give the Court or a Federal Government that kind of power, and the only way to get something passed was to sort of "leave things open" and let time work it out.

Here's an example of how one of the Founders tried to tried to kill the "Original Intent" argument before it even got off the ground: James Madison, who kept the only known complete set of notes during the Constitutional Convention never released those notes during his lifetime (he's also credited with being the principal author of the document, possibly because his were the best notes).

Why did he do that? It appears to be because that Founder's Intent was to make the Constitution's words stand on their own, without his notes to frame the debate-and in fact the document had been in force for almost 50 years before those notes saw the light of day.

The Cardinals of the Supreme Court, some of whom claim they can divine Original Intent for any and all situations, are hoping that you'll forget that they really serve to resolve disputes where the intent of the Founders seems to collide with the intent of the Founders-and all of that brings us right back to Social Security.

It is true that the Constitution, as it was written in 1789, does not contain the words "you may establish Social Security"-but it is also true that there were no words that would allow anyone who is not a white male to vote, or to prohibit the ownership of slaves.

Congress, acting with the authority to provide for the general welfare, took Roosevelt's proposal and enacted it into law. The Supreme Court, in 1937, took up the question of whether the 10th Amendment prevented Congress from enacting Social Security with a series of three rulings, and here's part of what they had to say:

Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield. Constitution, Art. VI, Par. 2.

So there you go: the next time someone tells you that a program like Social Security is unconstitutional because of Original Intent, be very, very, suspicious, and keep in mind that the Constitution was written, intentionally, with the idea that a lot of problems were simply going to be kicked down the road to future generations of Americans.

Constitutional Delegates, after all, were politicians, and if there is one thing that politicians love to do it's to kick a problem down the road so that something can get done today.

The history of the last 225 or so years has been a long journey down a long road that took us past slavery and Reconstruction and suffrage and Jim Crow, and to assert, as the Cardinals of the Court do, that all those questions were answered that summer in Independence Hall is to be either amazingly blind or deliberately untruthful-and the fact that they get to dress in robes and sit behind something that looks quite a bit like an altar doesn't change that even one little bit.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger's Network Project.

On Petals And Metal, Or, Today And Tomorrow, Street Actions Are Afoot

fake consultant — Tue, 15 Mar 2011 12:49:07 GMT

For the past couple months I have been talking a lot about "taking it back", and I have two great chances for you to do just that over the next two days.

One of them involves actions that are taking place all over the USA-but the other is a very special and particular event which will be taking place in Vancouver, British Columbia on Wednesday.

This'll be a short story...but by the time we're done, you'll have stuff to do this week.

A young lady visitor on the set of "Never Give a Sucker an Even Break" asked W.C.Fields if he liked flowers. Fields replied he was very fond of Four Roses.
--Ronald J. Fields, from the book "W.C.Fields By Himself"

So here's what's up:

Tomorrow, MoveOn.org and a ton of others are planning "Defend the American Dream" rallies around the country...in fact, as of the time this was written there are 277 events planned, all on the same day.

A few weeks ago Social Security workers held "informational picketing" events at Social Security offices around the country to make Americans aware that proposed Republican budget cuts would create huge "bumps in the road" for those who want their Social Security checks to go out on time, or who might like to speak to an employee on the same day they call the office.

That's part of tomorrow's program as well, with Washington DC's office a sort of starting point from which our anger with what's been going on can spread.

So if you're in DC tomorrow, right after office hours, the event will take place at 5:30 PM at the Social Security office at 2100 M Street NW, and there is a handy "meetup page" to give you more information if you need it.

But maybe you're not going to be in DC.

We still got you covered: this page right here will let you enter a zip code and find an event near you.

For example, there's a Rally at the San Diego County Administration Center-which, as y'all know, is maybe eight blocks from the end of the runway at Lindbergh Field-and Jim Brown and Virginia Huschke, who are putting on the event, report that they had 1000 people show up last week at the same place for the same thing...so you gotta be there.

Maybe you're in Michigan...and if you can get to the Veterans' Memorial in Niles after work tomorrow, United Steel Workers Local 13729 and MoveOn Michiana want you. The Memorial, for those unaware, is located at Waterfront Park, right by the Main Street Bridge and across the street from Massimo's Pizza-which means afterwards you can pick up a meatball sub or somethin' and not even have to cook dinner. (Maybe it's just me, but I am not down for the ranch pizza.)

If you're in Mobile, Alabama, swing by the cannon at Mobile Memorial Park (on Government Street), where hundreds of protesters intend to use the cannon to take the city hostag-no, wait, I made that part up.

They are intending to have a lovely demonstration, however...and if you think Alabama is an unlikely place for this kind of rally, think again: folks who might have been big on the Tea Party a few months ago are starting to think again, and this is a great chance to help those with seeds of doubt do a bit of "germinating", as it were.

So that's tomorrow's set of events...but what about that Vancouver thing we were talking about?

Well this is good.

"The Yes Men" are well-known pranksters, and some of their past efforts to "correct corporate identities" have been downright diabolical, including the time they pretended they were the Dow Chemical Corporation, and they held a press conference to announce that Dow was assuming all liability related to the industrial accident at Bhopal, India, which killed at least 3400 people...which, naturally, forced Dow to go on TV and immediately announce that the people of Bhopal could basically go suck an egg, because Dow wasn't actually planning on forkin' over a dime on their behalf.

Now on Wednesday, at noon, in beautiful downtown Vancouver BC, a prank is going down...and The Yes Men want you to help make it work...and they want you in costume.

Can you make yourself look like a reporter? They're particularly looking for you to bring a camera-and if it's on a tripod, that's even better.

If you resemble a "businessperson at lunch", they want you too.

Even random "crowd folks" are wanted in a "come as you are" kind of a look.

Now the only hitch we have on this is the meetup information, which they were supposed to send on Monday. For the moment, with no better information available, why not plan to hang out at the Downtown Vancouver Library around 11AM, and I will either update this story to add new information, or I'll keep sending them messages to arrange for someone to come by the Library and find the group of "reporters" and "businesspeople at lunch" and "random crowd members".

I told you this would be a short one, so that's the deal: after work today, there are "Defend the American Dream" rallies all over the country for you to attend, which can be found right here, and on Wednesday, The Yes Men will be putting on one of their very special pranks in Downtown Vancouver-and they want you to come on down and join in the fun.

"Taking It Back" is important, but there's no reason we can't have a good time while we're doing it, and that's what these events are all about...so go have a good day at work-but on the way home, take some time to stand up for your country.

And if you can work it out, bring the kids.
After all, a really good education starts at home...and this, this thing we're doing right here...this is education.

On Being A Titan, Part One, Or, See It, Say It, Sue It

fake consultant — Wed, 09 Mar 2011 06:54:29 GMT

Got a simple little story for you today of a multinational corporation that wants to build a great big cement plant in North Carolina really, really, bad, and the local opposition to what appears to be a corrupt and distorted decision process.

Two local activists in particular have drawn the ire of Titan Cement, the Grecian corporation who seeks to build the plant-and because the Company doesn't like what the activists have been saying about what the impact of that plant will likely be or how the deal's going down...they're suing Kayne Darrell and Dr. David Hill, residents of North Carolina's New Hanover County, and the two folks who are doing the complaining the Company dislikes the most.

The Company further claims that they were slandered and defamed by the damaging statements that were uttered by the two at a county commissioners' meeting and that they have lost goodwill and the chance to do business with certain parties as a result of these statements.

But what if everything the Defendants said was not only true...but provably so-and the Company was, maybe...just looking to shut people up by sending teams of lawyers after them?

As I said, it's a simple story today-but it's a good one.

We have tomorrow
Bright before us
Like a flame.
Yesterday, a night-gone thing
A sun-down name.
And dawn today
Broad arch above the road we came.
We march!
--From "The New Negro", by Alain Locke

So here's the deal, as it sits today: for a number of years now Titan Cement has been looking to build this great big cement plant near the environmentally sensitive North Carolina coast (part of the site includes 600 acres of "pristine wetlands"), and part of running a cement plant is running cement kilns.

Ya gotta cook limestone, sand, and clay, along with some other ingredients, at very high temperatures (above 2700 degrees F), which sort of fuses everything together; that makes "clinker", which eventually becomes cement, and that's why you need giant kilns and, often, pre-heater towers.

You need fuel for those really hot kilns and towers, and our friends at the Army Corps of Engineers advise that, in the kiln fuel game, you can actually kill two birds with one limestone by burning hazardous waste as a substitute for anywhere from 20% to 50% of your original "fuel of choice" (which is often coal).

According to the Corps, you can burn 12 tons of fuel an hour in one kiln, and that means up to six tons of...

byproducts of pharmaceutical, cosmetic, and electronics manufacturers;
solvents and inks used to print newspaper and other publications;
solvents used to recycle paper;
dry-cleaning solvents;
paint thinners and paint residues;
sludge from the petroleum industry;
used motor oil;
agricultural wastes;
and scrap tires.

...might be going into the mix every hour-and as it turns out, that stuff might contain:

...arsenic, cadmium, chromium, lead, nickel, thallium, and zinc.

Now if you're burning that stuff, it's either going up the smokestack or out the door as a component of the clinker you just made, and if you live anywhere near this plant, you're going to be at least a little concerned...and if you have the impression that the people who are trying to get the permits are running a big ol' hustle to get those permits, you're going to be even more concerned...and it looks like that's what's been going on...and if you put all this together, and you lived in the neighborhood, you might show up at a local County Commissioners' meeting and say something like this...

"From lawsuits for price fixing and court-ordered mine closures of Titan's Florida plant, to allegations of corruption coming from Raleigh, to emails raising suspicion whether Titan was ever even considering any other location, which would make incentives completely unnecessary, the clouds of corruption grow dark as new controversies emerge almost daily."

...or this...

"The bottom line is we know from numerous studies that if we build this thing, more children will get sick, a handful of them will die. We also know from the adult studies that more adults will get sick and quite a few more of them are going to die as well. Which ones? Can't tell you. That makes it difficult, but there will be some."

...which are the two utterances which are today at legal issue. (Ms Darrell is being sued for the first statement, Dr. Hill, the second.)

The reason we are all gathered here today is to figure out whether either of those statements are truthful or not...because if the statements are truthful, they cannot be either slanderous or defamatory.

So let's break it all down, one clause at a time:

Ms. Darrell talked about lawsuits for price fixing, and sure enough, CemWeek ("Global Cement Industry. Knowledge") ran a story in October of '09 entitled "Nine US cement companies accused of price fixing", describing a lawsuit filed for price fixing in which Titan was one of the Defendants.

Court-ordered mine closures? Coffey Burlington, attorneys at law, recount their success with a certain case on their website (Sierra Club v. Army Corps of Engineers, Rinker Group, Tarmac America, Florida Rock Industries, APAC-Florida and Miami-Dade Limestone Products Association), which did in fact result in a court-ordered mine closure of Florida facilities operated by Tarmac America, which is a Titan subsidiary.

Allegations of corruption? How about this, reported in January of 2010 by the Wilmington, NC, StarNews:

A corporation that shares an address and president with a Titan America subsidiary bought a Wilmington office building for more than twice its tax value from Democratic fund-raisers under scrutiny by state and federal prosecutors.

To add to this element of the story, the current Governor, Bev Perdue, has asked the State Bureau of Investigation (SBI) to look into Titan's permitting process, which is something that usually follows allegations, if I recall correctly.

Let's move on: the folks in the Wilmington, NC, area have a private economic development committee that has negotiated secretly with Titan for some time; the result of that effort was the decision to provide $4.2 million in local government incentives to Titan.

But here's the thing: if Titan never meant to build anywhere but on that one site, and they still hustled the community for the incentives by using the threat of building somewhere else...well, that's why Ms. Darrell was talking about:

"...emails raising suspicion whether Titan was ever even considering any other location, which would make incentives completely unnecessary..."

In 2008, Keith Barber, he of Wrightsville Beach Magazine, documented Titan's multi-decade interest in this particular location:

Titan has made very little effort to conceal the fact it plans to move forward with construction of a cement plant and limestone mining operation on the banks of the Northeast Cape Fear River. In a 2005 interview with Titan CEO Aris Papadopoulos in Cement Americas magazine, Papadopoulos confirmed the Greece-based company had been considering building a plant in Castle Hayne for nearly two decades...
... In addition, even though the permitting process is 18 months to 2 years out, the North Carolina Department of Transportation (NCDOT) Web site reveals that CSX Railroad is already constructing a new spur track at the site of the proposed Carolinas Cement Company.

The Charlotte News & Observer documents the existence of those pesky emails in a January 2010 editorial:

...[Titan lobbyist John] Merritt said he would talk to then-Commerce Secretary Jim Fain. Earlier, he had advised a company spokeswoman on how to respond to questions without raising suspicions that Titan might not qualify for a state grant.
"It is very important that the company not do anything that suggests that this is the only site you are looking at," Merritt e-mailed. And sure enough, in its application for incentives Titan asserted that it was considering sites elsewhere.

Let's jump in for just a second and take a look at where we are:

Ms. Darrell made this statement...

"From lawsuits for price fixing and court-ordered mine closures of Titan's Florida plant, to allegations of corruption coming from Raleigh, to emails raising suspicion whether Titan was ever even considering any other location, which would make incentives completely unnecessary, the clouds of corruption grow dark as new controversies emerge almost daily."

...and based on what we've seen so far, every single word of that statement turns out to be absolutely, provably true:

--There was a price-fixing lawsuit.
--There was a court-ordered mine closure of Titan's Florida plant.
--It's alleged that something funny was going on with that office building, and North Carolina's SBI is investigating.
--We did in fact discover that emails exist raising suspicions as to whether Titan was considering any other location.
--And here we are, talking about one of the new controversies that emerge almost daily.

Today's tale of legal bullying is running pretty long already, and we still have half of the story to go...so let's take a break for today, and we'll pick this up by looking at the statement made by Dr. Hill when we get together next time.

In the meantime, if you're keeping score...I'm thinking that after Round One, it's Defendants, 1, Titan, 0.

Social Security: If You Can't Kill The Program, Screw The People

fake consultant — Sat, 05 Mar 2011 16:22:38 GMT

There's a lot of ways to be petty and cheap and stupid, and a lot of ways to stick it to a program you don't like, and by extension, the clients of that program...and this week the House Republicans have embarked on an effort to combine the two into one petty, cheap, and stupid way to stick it to the clients of Social Security and the workers who administer the program.

They're going to sell it to you, if they can, as a way to "lower the deficit", or words similar...but what this is really about is making the actual Social Security program work less well-because, after all, if a program is popular today, the best way to make it less so is to apply a bit of "treat 'em like their cars were impounded" to every interaction customers have with the system.

And what better way to make sure that happens...then to aggressively demoralize everyone who works down at the ol' Social Security office?

The foot less prompt to seek the morning dew,
The heart less bounding at emotion new,
And hope, once crushed, less quick to spring again.
--From "Thyrsis", by Matthew Arnold

So here's the deal, short and sweet: Social Security is amazingly efficient at running an annuity and income support program, both at the same time; in fact, in 2009 the Social Security Administration Old-Age and Survivors' Benefit Program took in not quite $700 billion and disbursed $564 billion, writing checks to and serving millions of customers at the same time...and they did this with administrative expenses of about $3.4 billion-and that's just about .6% of the distributions, all of this according to the Report of the Social Security Trustees for 2009.

In the private sector, companies who provide annuities have administrative costs that range from 50% to 500% higher. (Of course, Social Security doesn't have to pay sales commissions.)

The Social Security folks are similarly frugal with the Disability Insurance Program (expenses run 2.3% of distributions), and if you combine the two the total is .9%.

Nonetheless, the plan from the House Republicans, who want to return to balanced budgets right now, if they are to be believed, is to cut $1.7 billion of those administrative costs from a budget of just under $12 billion in the remaining 7 months of the fiscal year, and, according to the involved union, that means in those next 7 months workers will have to take three weeks worth of furlough days to make that work.

If my quick math is correct it means they hope to close the office about 10% of the time while expecting the same amount of work to be done, which is probably not going to happen.

The likely end result will be callers who can't get through without more of a struggle, checks that may or may not get out on time, an angry workforce, and a general result that equals more and more people saying "Social Security sucks"-and if you ask me, that's the real goal of this effort: to make Social Security unpopular, thus setting the stage for more cuts to come later.

And just to put all this in perspective, we today give subsidies totaling about $4 billion a year to oil companies, apparently because gold-plated caviar is really, really, expensive, and the same budget-conscious House Republicans...every single one of 'em...voted to protect that subsidy just a couple of days ago.

Social Security workers were out yesterday handing out leaflets to describe what's going on, although as far as I know the leaflets didn't say that this is just one more part of a giant plan that's already raising its ugly head in places like Wisconsin and Indiana and Ohio and New Jersey: start a war against one group of American workers by claiming they're not "real" workers or that they're "special, extra-privileged" workers...and try to drag down all workers in the process.

A cut like this is a shot at these workers, and, by extension, all workers who might, you know, like a raise some day-and it's also a shot at you, or your parents, or your grandparents, who will eventually have to deal with the results of all the cutting.

But in the end, it's important to look at the bright side: the gold-plated caviar market will still be protected, thanks to that $4 billion a year in cash we're donating to oil companies-and if I had to guess, BP's senior management will not be looking at longer wait times the next time they call Louie Gohmert or Joe Barton or any one of a few dozen other Members who evidently represent Big Oil first...and Americans last.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger's Network Project.

On A Pair Of Victories, Part One, Or, "I DOMA Think Congress Can Define Spouse Anymore"

fake consultant — Sat, 10 Jul 2010 05:08:09 GMT

I have to work fast over the next two days to get you this story, but it is a good one.

We are all aware of the Federal Defense of Marriage Act (DOMA), championed by former Congressman Bob "I'm A Libertarian If It Doesn't Involve Your Penis Or Vagina" Barr; we now have two rulings, released on the same day by the same Federal judge, that will render the Act moot, if they're either upheld throughout the appeals process...or if the Obama Administration decides to end that appeals process right now.

There's a lot of ground to cover, and time is short.

Let's get to work.
This will be too much analysis for one story; we'll be, instead, discussing the ruling in Commonwealth of Massachusetts v. Department of Health and Human Services (HHS) today; the second opinion, which decides Gill v OPM (OPM is the US Government's Office of Personnel Management) will be the topic of tomorrow's discussion.

The goal of the Mass v HHS lawsuit (this is a bit informal: we'll frequently refer to Massachusetts as Mass today) is to overturn section 3 of DOMA, which defines marriage as a union between one man and one woman:

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Mass has recognized same-sex marriage since the Supreme Judicial Court Of Mass ruled on the issue in 2004; the State alleges, in this suit, that DOMA violates the US Constitution's 10th Amendment...

"...by intruding on areas of exclusive state authority, as well as the
Spending Clause, by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs."

For those unaware, here's the text of the 10th Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Federal Government says it can regulate on this issue because of the Spending Clause, located in the US Constitution's Article 1, Section 8:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States"

We have a problem because State definition of marriage causes conflicts when the State partners with the Federal Government in various programs, for example:

--The Veterans' Cemetery Program: the State allows same-sex couple spouses to be buried in certain military cemeteries operated in partnership with the Federal Department of Veterans' Affairs (DVA).

The DVA objects to this arrangement, offers DOMA's definition of "spouse" as the reason why, and says they will recover all the money they have ever transferred to the State under this program if the State agrees to bury these spouses in these cemeteries.

An actual couple has applied under the program and will be affected by all of this.

--There are a variety of implications for the Medicare program as it exists in Mass: for one, income eligibility is calculated differently for same-sex and opposite-sex couples; for another, Mass makes extra Federal tax payments related to the fact that they provide health care benefits to same-sex state worker spouses that are taxed differently than when the same benefits are provided to opposite-sex couples.

The Federal Government tried to dismiss the case altogether by claiming that none of the Plaintiffs had any "standing" before the Court.

Long story short, you have to prove "actual harm" to bring a lawsuit, and the Federal Government position is that all harms alleged by the Plaintiff are hypothetical.

Federal District Judge Joseph Tauro, of Boston, completely dismisses this argument, pointing to actual harms that have already been suffered, including denial of burial benefits and the threat of cash costs to state if Medicare funding is cut off.

"...Standing is not contingent, as the government suggests, on Thomas Hopkins-or another similarly-situated individual-being lowered into his grave at Winchendon...
...Moreover, in light of the undisputed record evidence, the argument that the Commonwealth lacks standing to challenge restrictions on the provision of federal Medicaid matching funds to MassHealth cannot withstand scrutiny..."

Let's move right along to the Constitutional analysis:

If there is an "enumerated power" in the US Constitution's Article 1, Section 8, or "express[ed] jurisdictional elements" in a Statute passed by Congress, then the Federal Government can regulate family law; if not, you have to go to an Article 1, Section 8 "Spending Clause" analysis.

In this case, the Federal Government claims they are entitled to regulate the Federal definition of marriage because of the power under Article 1, Section 8 to provide for the "general welfare" of the Nation.

Judge Tauro, however, notes that not all the harms alleged by Plaintiffs are spending-related: for example, provisions related to the way copyright protection and the Family Medical Leave Act work depend on the marital status of the involved parties.

"In South Dakota v. Dole, the Supreme Court held that "Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the 'general welfare,' (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be 'unrelated to the federal interest in particular national projects or programs' funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion."

The State claims that DOMA fails on several of these 5 elements.

---For example, getting the Federal money that is part of the partnerships we've been talking about requires the State to violate Section 1 of the 14th amendment, which reads as follows:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Emphasis added by me)

The State alleges they are compelled to deny equal treatment to same-sex couples in order to get Medicare and veterans' cemetery money (the Medicare money alone is about $5.5 billion a year).

The Court agrees with the State's position on the Medicare issue; as a result there is no need to rule on the legally identical cemetery issue.

--Now we need to address the 10th Amendment analysis:

Assuming the appeals continue, this case will go to fairly conservative First Circuit, then to the Supremes. This Court, in the next section of the opinion, anticipates some of the thinking that appeals courts up the line might apply to this ruling:

"In United States v. Bongiorno, the First Circuit held that "a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state's ability to structure integral operations in areas of traditional governmental functions."

The Court agrees that tests (1) and (2) have been met. This, regarding test (2):

"State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution...
...That same-sex marriage is a contentious social issue, as the government argues, does not alter this court's conclusion. It is clear from the record evidence that rules and regulations regarding marital status determinations have been the subject of controversy throughout American history. Interracial marriage, for example, was at least as contentious a subject. But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states. That says something. And this court is convinced that the federal government's long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government."

The Federal Government argues that just because they didn't pass DOMA before 1996 doesn't mean they weren't allowed to do so; the Court finds that since the Feds failed the Article 1, Section 8 analysis already, they still fail when they try to use the same argument now.

The Feds also tried to argue that certain immigration cases give them power to regulate definition of marriage; the Court again finds their arguments unpersuasive.

The Feds argue that Massachusetts is an employer, so they have no standing to raise a sovereignty challenge; but the Court again disagrees, and says the State, as a sovereign, is entitled to regulate its employee relations.

Now we move on to (3), the proposition that for a law to violate the 10th Amendment "...it must be of such a nature that compliance with it would impair a state's ability to structure integral operations in areas of traditional governmental functions."

The question of what is a "traditional government function" is highly contentious in the Federal Appeals Courts; some question whether such an analysis can even be performed.

Based on First Circuit precedent, this Court will address the question of:

"...whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government's ability to fulfill its role in the Union and endanger its separate and independent existence."

Judge Tauro finds that DOMA fails this test; points to the same issues we've been discussing (the Medicare and Cemetery partnerships), and says the DOMA definition of "spouse" unacceptably restricts the State from governing itself:

"That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on the "core of sovereignty retained by the States," because "the Constitution ...divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day." This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid."

That's a fair amount of law, all in one bite, and we have another ruling like this one tomorrow, with lots more "Strict Scrutiny" analysis...but for now, let's stop right where we are, and we'll all meet up here tomorrow.

U.S. S. Ct. Overrules 6th Circuit in Voter Registration Case

Bluesman Johnson — Fri, 17 Oct 2008 21:23:56 GMT

The U.S. Supreme Court reversed the Sixth Circuit Court of Appeals today, in a a suit brought by the Ohio GOP. The suit basically claimed that the Democratic Secretary of State was required, under the Help America ~~screw uo the~~ Vote Act, to use those oh-so-accurate DMV records, to cross reference against all voter registrations, and scratch any mis-matches.

As I recall the procedure, the Secretary won at the District (i.e., trial) court. The largely conservative Sixth Circuit reversed, and entered an order requiring her, in essence, to provide a list of every voter (or new registrant) whose voter registration information was not identical to their DMV data. As I understand it, among other things, this list would reveal people that registered to vote without a middle initial, but used one on their drivers license. It would also reveal people that lawfully moved before the election without re-registering, or people that were properly registered, but unlawfully failed to change (or lawfully decided not to renew) their driver's license. (Incidentally, losing your right to vote is not one of the penalties available for failing to change your drivers license within 30 or 60 days of a move). That list would be circulated to Republican poll challengers, to challenge the identity of 600,000 some-odd voters on election day. I believe local officials also sought to use it to pre-emptively scrub voters from the rolls.

The Sixth Circuit ruling was widely condemned by legal scholars and professionals. The Supreme Court, ironically, vacated the order (that required the Secretary to publish this list), by using a tried-and-true method that's usually reserved for kicking the little guy out of court: the theory that a statutory scheme (here, HAVA) doesn't allow private parties (i.e., you, me and the GOP) to sue. Thus, no 600,000 member long list for Republican poll challengers to work off of.

After seeing right wing nutjob bloggers offer God's blessing on the Sixth Circuit for this now-reversed ruling, it is great to see their beloved Roberts and Alito-infested Supreme Court actually get one right. The NPR snippet on the story appears below the fold.

"Supreme Court Decision Favors Ohio Democrats

The U.S. Supreme Court on Friday sided with Ohio's top elections official in a dispute with the state Republican Party over voter registrations.

The justices overruled a federal appeals court that had ordered Secretary of State Jennifer Brunner, a Democrat, to do more to help counties verify voter eligibility.

Brunner faced a deadline of Friday to set up a system to provide local officials with the names of newly registered voters whose driver's license numbers or Social Security numbers on voter registration forms didn't match records in other government databases.

Ohio Republicans contended the information for counties would help prevent fraud. Brunner said the GOP is trying to disenfranchise voters.

In a brief unsigned opinion, the justices said they were granting Brunner's request because it appears that the law does not allow private entities, such as the Ohio GOP, to file suit to enforce the provision of the law at issue.

About 200,000 of 666,000 voters who have registered in Ohio since Jan. 1 have records that don't match. Brunner has said the discrepancies most likely stem from innocent clerical errors and not fraud.""

http://www.npr.org/newsinbrief/index.html

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Northwest-Delta merger is good for the industry and good for Michigan

CateMcClure — Wed, 25 Jun 2008 18:48:31 GMT

Last month Delta and Northwest Airlines agreed to a $17.7 billion merger that some are saying will transform the airline industry. The merged airline, named Delta and based in Atlanta, would become the world's largest carrier with more than 800 planes, 6400 daily flights, and nearly $32 billion in annual revenue. The airline would have major hubs in Atlanta, Minneapolis, New York, Amsterdam and Tokyo, not to mention Detroit, which would become a key part of the carrier's global network. Critics are voicing concerns about the deal's potential to spark a wave of similar mergers, resulting in three or four global mega-carriers, with the resultant negative effects on competition, fare pricing and service to smaller cities and rural areas. A close look at this merger suggests, however, that its benefits would outweigh potential antitrust concerns. Given the weak state of the industry, mergers appear to be one of few viable ways of making the efficiency gains necessary to keep the airlines afloat. And despite possible limited fare increases, service reductions, and job losses resulting from the merger, a stronger, larger incarnation of Northwest Airlines will be good for Detroit, which is positioned to be a centerpiece hub for the new airline.
The agreement to merge the two airlines has to survive significant hurdles before it is a done deal though. Shareholders must approve the agreement, unions must sign off on necessary economic concessions, and most significantly the U.S. Justice Department must endorse it under antitrust regulations. While shareholder approval seems assured given the potential synergies and economies which should produce a stronger company, union approval is not such a slam dunk. Northwest, with 80 percent of its employees unionized compared with only 17 percent of Delta employees, must convince its unions that their generally older employees will be protected when integrating with the younger Delta workforce. Specifically, the unions want assurances that pension, welfare, and seniority programs will be safeguarded and the unions themselves will be around once the new entity emerges. While the unions cannot block the deal, Northwest must obtain economic concessions from its pilots, machinists, and flight attendants unions in order to realize the potential cost savings from the merger. In the meantime, politicians and consumer groups opposed to the merger because of the possibility of reduced competition, higher airfares, and decreased service and jobs are lobbying public officials to disapprove it based on antitrust concerns. The Justice Department's horizontal merger guidelines suggest the deal will satisfy the Bush Administration's business-friendly regulators, however. The guidelines require regulators to analyze whether the merger would significantly increase concentration in the relevant markets. For the airline industry, this involves a study of overlap in the carriers' routes between cities. Delta and Northwest are widely viewed as having complementary service, with Delta strong in the east, south and across the Atlantic and Northwest strong in the Midwest and across the Pacific. Because they share only 12 overlapping nonstop routes, most experts believe the deal will not result in significant regional market concentration. Justice will also assess whether the merger is likely to deter competition by new airlines in any particular market. Because budget airline competition is already present at most of the affected hubs, and because there is little overlap in routes, competition is also unlikely to be changed by the merger. On the other hand, experts suggest that while Justice is not required to consider the merger's likely effect on future consolidation in the industry, they arguably should. And if the merger does spark a wave of similar consolidations, most agree that low-cost domestic carriers would be unable to compete effectively with the mega-carriers. However, regulators must lastly evaluate whether, but for the merger, either of the airlines would likely fail. Both Delta and Northwest emerged from bankruptcy last spring in fairly good shape. Unfortunately, conditions in the market have radically changed since then as a result of sky-rocketing oil prices, a weak economy, and declining demand for travel as consumer confidence plummets. Four smaller airlines have declared bankruptcy since the year-end and both Delta and Northwest have announced they are cutting domestic capacity and raising fares. Consolidation is happening with or without merger activity. Many analysts in fact say these mergers are necessary if airlines are to survive. Given that reality and the fact that fare increases and service cuts will happen as a result of industry conditions regardless of the merger, even antitrust concerns associated with future consolidations appear less important. Regulators will likely, therefore, approve the deal. Similarly, despite the possibility of some limited fare increases and job loss, the merger would be a good thing for us here in Michigan. Detroit Metropolitan Airport, with its new McNamara Terminal and soon-to-open North Terminal, has gone from being rated worst in the nation in 2000, to second best in last year's consumer satisfaction survey by J.D. Power and Associates. Positioned as it will therefore be as one of the newest and best hubs for the world's largest airline, the economies of metro Detroit and Michigan will gain a great deal from this merger in the future.

In this fiscal crisis, Michigan must not abandon its foster children

CateMcClure — Mon, 23 Jun 2008 20:08:18 GMT

At the end of May, settlement talks broke down for the second time in a federal class action lawsuit against the Michigan Department of Human Services. Children's Rights, a nonprofit child advocacy group, initiated the suit in 2006 alleging that Michigan violates the constitutional, statutory and federal common law rights of almost 19,000 children currently in its foster care system by failing on every level to deliver basic services to keep them safe. The group relies on several studies that show funding cuts over the last 20 years have resulted in a mismanaged, overburdened, and ineffective safety net for Michigan's foster children.

State officials acknowledge the problems but claim the state does not have resources to implement the changes needed to make the system viable. In fact, despite funding increases for foster care programs instituted by Gov. Jennifer Granholm last year, experts estimate that an additional $130 to $150 million is needed in the upcoming fiscal year to initiate the changes demanded in settlement talks. With analysts now projecting a $472 million budget deficit for next year, such spending increases are practically impossible.

Although the state's dire financial condition imposes significant limitations, the studies of Michigan's foster care shortcomings suggest that some essential administrative and managerial reforms can be instituted without additional funds, and may result in increased federal funding for the state program. Bills introduced in the state legislature in May would facilitate such reforms by creating a state foster care advisory board to propose improvements. The bills would also provide a vehicle for encouraging private sector financial support for the system, which will be essential in the coming years.
Michigan operates the 7th largest child welfare system in the United States, but ranks near the bottom in the percentage of state and local dollars allocated to these programs. The system has become strained to the point of breaking over the last two decades due to increasing demand for foster care at a time when state budget deficits have required cuts in staff, placement options and other resources. Last October Wayne County reported caseloads of 48 children per caseworker, far exceeding federal standards of between 12 and 15 cases per worker.

Michigan's foster care system attracted national attention in 2005 and 2006 with several highly publicized cases of child abuse, resulting in the deaths of three children in Michigan foster homes. Three different studies of the system, including an independent court-ordered study, were initiated in connection with the resulting class action lawsuit filed against the state in 2006. All three studies confirm an across-the-board failure to meet minimum standards of practice in administering foster care.

The studies detail an "unstable, disjointed and inefficient organizational structure" resulting in a lack of leadership, vision, accountability, and communication among management, as well as county welfare offices across the state out of compliance with basic safety and licensing regulations. They describe inadequate staffing and training, insufficient supervision of placements including investigations into allegations of abuse, and a severe shortage of licensed foster family homes. They allege a failure to provide some aspect of basic medical, dental, educational and mental health services consistent with state law in more than 85 percent of cases, as well as a failure to license relative foster caregivers as required by law, resulting in the loss of millions of federal dollars in aid to the state.

The Michigan Department of Human Services has instituted changes over the last year to improve the system and, until two weeks ago, was attempting to settle the pending lawsuit by promising more. In 2007 they added staff, licensed more foster parent relatives thereby increasing federal funding dollars, and raised the rates paid to private agencies that help to provide care.

More needs to be done, however, and without state funding private sector support is imperative. House bills introduced at the beginning of May would provide a vehicle for this support. The bills would create a state foster care advisory board to propose administrative changes for a more effective child welfare management structure, and create methods for measuring and assessing the effectiveness of foster care services. The board would also develop community outreach programs to educate the public and private organizations and agencies that deal with foster care, and encourage private and community assistance programs and individual involvement in foster care parenting and adoption.

But most importantly the bills would establish a foster care trust fund, to be funded through federal and other grant money, gifts, bequests and donations from individuals, private organizations and foundations, all solicited by the advisory board, which funding would then be available to eligible local and state foster care programs.

The need for immediate action to protect children at risk in our foster care system is clear. Given the continuing state budget crisis, we have little choice but to solicit private sector help in turning Michigan's foster care system around. Because these bills would provide a means to do just that, our state legislators should act quickly to turn them into law.

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Catherine McClure is an Ann Arbor-based legal affairs writer who practiced law with major firms in Los Angeles, Chicago, and Ann Arbor. She has also served as an adjunct professor of law in the business schools of Michigan State University and the University of Michigan. McClure received a B.A. and M.A. from the University of Michigan, and her law degree from the University of California, at Berkeley. She can be reached at mcclur@umich.edu or visit her blog at http://legalnewswatch.blogspot...

WTF? Cheaters can get life in jail?

chanupi — Thu, 18 Jan 2007 12:13:19 GMT

OK...so cheating on your spouse is bad.

Do we really need it codified in our criminal code?

From Brian Dickinson at the Freep:

In a ruling sure to make philandering spouses squirm, Michigan's second-highest court says that anyone involved in an extramarital fling can be prosecuted for first-degree criminal sexual conduct, a felony punishable by up to life in prison.
"We cannot help but question whether the Legislature actually intended the result we reach here today," Judge William Murphy wrote in November for a unanimous Court of Appeals panel, "but we are curtailed by the language of the statute from reaching any other conclusion."
Click here for this month's movie
"Technically," he added, "any time a person engages in sexual penetration in an adulterous relationship, he or she is guilty of CSC I," the most serious sexual assault charge in Michigan's criminal code.

This is silly, like the rumor I heard that peeing in public can get you on the sex offender list.

But, even better is the comments...
Jozzmenia (who later goes on to describe how she is a "democratic conservative") talks about how much a deterrent jail is. That seems to work for the drug dealers, the petty theif, the drunk drivers. I can't remember the last time I saw a murder here in Mt. P.

Lingam,
I intend to apply more in depth to your post when I have more time later in the evening. 2 things caught my eye that i will comment on now:
(1) u said, "However this law does not nor will it stop anyone from commiting adultery"
I firmly believe that if they started enforcing the law strictly and taking it seriously, many people would stop. Breaking the law and fear of jail is still a deterrent for some.
(2) u said, "It is not wrong to the one that commited the adultrey and the one they commited it with."
do u really think that people who commit adultery do it because they think it is right? I am an attorney and work in family law. i have seen many spouses admit that it was wrong. just because u do something doesnt mean u dont realize its wrong...
Sorry, but I am preoccupied and will address in more detail soon...

OK, using their format:

1) Shorter your idea: Let's make an example out of somebody.

That always means that whoever gets punished, because he's being made an example of, is being punished unfairly. Always. You know you can't just put every adulter in jail to keep it fair, we already have a budget crisis.

2) Jail is not a deterrent, just as divorce is not a deterrent. The perp doesn't think he/she'll be caught. That's why they believe it's OK to do it. It's OK if nobody know's is the belief.

In regards to the comments below...we need to be open in society and discuss the morals you are talking about, cigarettes and marijuana should both be legal, not both illegal. In an open society, we need to be able to discuss these issues, the more we ignore them, the more the deviant supresses himself so we get things like Mark Pryor in congress and catholic priests molesting alter boys, or oxycotin problems in the great white north, xtc problems in the suburbs, crack in the hood.

Jozzmenia thinks that this would be a good time to talk about how "gays are being shoved down" her throat.

jozzmenia
Lingham,
as I have said before on these message boards, if I had to take a political stance, I would call myself a "Democratic conservative" because I am a Christian and so I have conservative views about things, like I oppose gay marriage, not a supporter of abortion, etc. But I also really support programs for the disadvantaged. I just wanted to give that disclaimer.
I think that the lack of enforcement regarding morals is a major contribution to the decline in our society. As i was mentioning when we were discussing the Cheli's murders and the 11 year old killer story in other threads, I think a lot of these crimes are a result of social problems. Poverty, single-parent or no-parent homes, etc. and i think a big problem there is the lack of public morals. Anything moral is shunned now as if IT is evil. There are those that try to make it a negative if u have a Christmas tree out in a public place, or pray, yet its a positive to show more and more gays, violence, nudity, and vulgar language in public. And people wonder why society continues to decline.
Personally, I think that all of the moral laws are fine. I dont think u should pick and choose. Why is adultery "better" than prostitution? Why are cigarettes "better" than marijuana? Yes if i had my way cigarettes would be illegal too but thats another story. My point is, I don't see a problem with legislating morality because as i said, there are those who are actually deterred by the fact that something is illegal or that there are potential punishments.
To address your specific examples:
I think it's fine that sodomy is illegal. It's not actively enforced. I think a lack of evidence is a major thing, but I think that it could and should effectively be used against rapists since it's on the books. I feel the same about oral sex/gross indecency. Another charge that could be used against rapists. I wouldn't lose a bit of sleep if they got stiff sentences, especially since small time drug dealers are getting sentences in the double digits.
I think everyone really needs to take a look at where are society is going. We have taken prayer out of schools and replaced it with guns. Children have rappers and athletes for role models instead of parents and ministers, every show has gay characters shoved down our throats wow unprotected sex is glamorized and the STD rates skyrocket, divorce rates are at an alarming high, people are in poverty and depression because of it, I could go on and on. So maybe instead of questioning why morality should be forced on us, we should be asking why all of this sin, violence, and vulgarity should be forced on us instead.