From the HC: Mystery email tries to divide Houston's blacks, gays

Patricia Kilday Hart reports on an effort to divide the Democratic Party in Harris Count. We've noted similar efforts elsewhere around the country.

A political whodunit, in the most unlikely of races, is creating chaos and divisiveness in the Harris County Democratic Party. Or perhaps I should say it is creating more than the usual chaos and divisiveness that exists like a constant low-grade fever (on a good day) throughout Democratic Party operations every­where in Texas these days.

Monday afternoon, a mysterious electronic message blew up in Houston political circles, purportedly sent by a Rev. Willie Howard on behalf of attorney Keryl Douglas' campaign for chairperson of the Harris County Democratic Party.

Douglas, who is African-American, is challenging interim chairman Lane Lewis, who is openly gay - a fact that the probably fictitious Rev. Howard finds disturbing.

The purported pastor claims to be organizing African-American ministers to support Douglas because "her opponent is openly Gay and has already told supporters behind closed doors that the Democratic Party will endorse a Gay Marriage agenda in November … If the gays take over we are poised to lose everything we have worked for during President Obama's historic win. The Republicans will rally their troops behind a united front of making sure this push for same sex marriage is defeated."

Travis County District Judge Ruling Could Cost Texas Billions

From State Impact:

A new ruling this week from Travis County District Judge John Dietz this week could cost the state of Texas billions in tax revenue. Ruling in favor of the drilling company Southwest Royalties, the court found that oil and gas equipment used for exploring and completing wells should not be subject to sales tax because it qualifies for an manufacturing exemption.

The ruling was first reported by the Texas Energy Report, but Dale Craymer of the Texas Taxpayers and Research Association says we’ll have to wait and see.

“The judge has indicated he’s going to rule with the plaintiffs, but we know the state is going to appeal,” he says. “We’ve had instances where plaintiffs have won big judgments in trial court, only to see it be reversed on appeal and vice-versa. This is still very early in what will be a long legal process.”

Craymer says it also depends on how the final ruling is written. It could be broad enough to include billions in tax funds or narrow enough to only affect a smaller amount. Southwest Royalties is owned by Clayton Williams, a Midland oilman known for his failed campaign against Ann Richards for Texas Governor in 1990.

The Wartime Bonus

In 2302 we discussed how crisis management - especially in a time of war - is good for a president's reputation. Historians tend to give high marks to presidents who held office during war, or led America into battle.

Here's a study that provides empirical proof of that allegation, and here's commentary:

American war casualties, as a fraction of the population, positively correlate with how historians rate U.S. presidents. More death = better presidents. . . . Greatness rankings by historians may prompt presidents to start more wars. The historians may have more blood on their hands than we care to admit.
And more commentary:

Henderson and Gouchenour investigated "the connection between presidents' greatness rankings and the intensity of the wars that those presidents carried on. Using multiple regression analysis, we compare the effect of war intensity with other explanations offered by previous researchers," such as intellectual prowess, GDP growth and involvement in major scandal. They found "a strong positive correlation between the number of Americans killed during a president's time in office and the president's rating."

Presidents have long recognized the "wartime bonus" doled out by historians. Henderson and Gouchenour quote Teddy Roosevelt: "if Lincoln had lived in times of peace, no one would know his name now." (TR would later come to envy Woodrow Wilson because Wilson got to fight the European war TR himself had pushed for.)
Along with the following wish:

Let's hope that the lure of "presidential greatness" doesn't tempt Barack Obama into rash action with Iran.

Some of the above commentators wonder if Congress makes it too easy to go to war. Rachel Maddow's recent book on this theme has stirred things up. 

Also worth a look: War Making and State Making as Organized Crime.

Independent voters are not necessarily swing voters.

Ruy Teixeira argues that it is more appropriate to think of swing voters as those who are persuadable, not necessarily just independent:

For an individual voter to qualify as a swing voter, the relevant criterion that needs to be fulfilled is persuadability. And that’s not a quality that’s exclusive only to those who are completely undecided, or who are only weakly committed to a candidate. Even those who are moderately committed can be persuaded to deepen their commitment. And the deepening of an existing affiliation with a candidate can be just as significant, both statistically and electorally speaking, as attracting mild commitment from someone who had previously been mildly committed to another candidate.

The important factor is not where voters’ inclinations started out, but the fact that their inclinations were changed at all. The act of persuading a swing voter has traditionally been thought of as moving a given voter from more likely to vote against a given candidate to more likely to vote for him—say from 55 percent likely to vote against to 55 percent likely to vote for. But it could also mean moving that voter from somewhat likely to vote for a candidate to very likely to support that candidate (say from 55 percent likelihood to 65 percent)—or, for that matter, from very likely to almost certain (65 percent to 75 percent). All three of these examples are mathematically equivalent—and it makes sense to think of them all as swing voters.
He recommends the following book if you want more info.

Final Exam Schedule

In case you need it.

A new rule by the FDA

From the NYT:

Farmers and ranchers will for the first time need a prescription from a veterinarian before using antibiotics in farm animals, in hopes that more judicious use of the drugs will reduce the tens of thousands of human deaths that result each year from the drugs’ overuse.

The Food and Drug Administration announced the new rule Wednesday after trying for more than 35 years to stop farmers and ranchers from feeding antibiotics to cattle, pigs, chickens and other animals simply to help the animals grow larger. Using small amounts of antibiotics over long periods of time leads to the growth of bacteria that are resistant to the drugs’ effects, endangering humans who become infected but cannot be treated with routine antibiotic therapy.

At least two million people are sickened and an estimated 99,000 die every year from hospital-acquired infections, the majority of which result from such resistant strains. It is unknown how many of these illnesses and deaths result from agricultural uses of antibiotics, but about 80 percent of antibiotics sold in the United States are used in animals.

The Muzzle Awards

Every year the Thomas Jefferson Center highlights egregious examples of stifling free speech by giving them their own award: The Muzzle.

- Here's a story on the latest winners.

From the August 1966 Atlantic: Houston's Shackled Press

A great article from way back about how the Houston Chronicle - back when newspapers really mattered - was controlled by the city's elite. They could define what was and was not talked about. Very difficult to do in today's digital environment.

It also details the tension brewing in the city between the conservatives that controlled the city and the increasingly liberal Johnson Administration.

Strongly recommended for 2301s especially.

Is art covered by the First Amendment?

As 2301s look at freedom of speech and what it does and does not cover, what is it about art that makes it covered? A law article and a briefer discussion here touch on this question.

Just in case you don't have enough to read already.

Are online publishers guilty of violating anti trust laws?

The Justice Department is set to find out. It is suing publishers (in the United States District Court for the Southern District in New York) for price fixing.

Anti trust laws - which have been a staple of national power since passed of the Sherman and Clayton anti-trust acts - allow the national government to break apart real or budding monopolies, or any activity which leads to uncompetitive practices.

The Justice Department is investigating whether this has happened in the e-book market. Did Apple secretly force- or persuade - other publishers to not under price its books? But this effort might allow Amazon, which controls 60% of the market, to expand its influence over it by reducing its prices far below what other publishers can command.

From the NYT: Does Romney Still Need to Court Conservatives?

Now that Romney seems to have the nomination in hand, commentary has focused on his expected pivot to the middle and whether he can do this without losing his base. This is what 2301s wrote about last week, so you are all ahead of the game.

Here are a variety of opinions about whether Romney still needs to bend far for conservative support.

Zimmerman arrested and charged - What roles will each participant in the case play?

A good story for 2302 as we continue looking at the judiciary, and the criminal justice process in general. 2301s shoudl consider this case also as it opens a handful of issues related to the rights of criminal defendants, as well as those related to stand your ground laws.

The NYT details the decision to charge George Zimmerman with Trayvon Martin's shooting, and attempts to outline the events leading to the shooting (the facts of the case as best they can be discerned).

The Atlantic discusses what will be required of the prosecutor, the defendant, and the judge in the case. Given the amount of publicity the case has had - how likely will he get a fair trial?

From the NYT: N.T.S.B. Suggests Safety Steps After Deadly Crash at Reno Air Show

This is a follow up to previous post and it explains where regulatory rules come from:

Air race pilots should take their modified aircraft on dry runs before participating in certain types of competitions, and should possibly wear flight suits to help them withstand high gravitational forces, according to the National Transportation Safety Board. The recommendations were among seven the board offered Tuesday during a news conference in Reno in the wake of a Sept. 16 crash at the Reno National Championship Air Races that killed 11 people and seriously injured more than 70 spectators.

“We are not here to put a stop to air racing,” said Deborah Hersman, the N.T.S.B. chairman. “We are here to make it safer.

The Two Economies and the Two Parties

David Brooks points to an article written by Tyler Cowen which predicts that the export sectors will drive the American economy forward, but do so by creating two fundamentally different economies.

Brooks argues that these two economies have partisan characteristics - which might be worth pondering as we consider the differences between the two parties:

His work leaves the impression that there are two interrelated American economies. On the one hand, there is the globalized tradable sector — companies that have to compete with everybody everywhere. These companies, with the sword of foreign competition hanging over them, have become relentlessly dynamic and very (sometimes brutally) efficient.

On the other hand, there is a large sector of the economy that does not face this global competition — health care, education and government. Leaders in this economy try to improve productivity and use new technologies, but they are not compelled by do-or-die pressure, and their pace of change is slower.

A rift is opening up. The first, globalized sector is producing a lot of the productivity gains, but it is not producing a lot of the jobs. The second more protected sector is producing more jobs, but not as many productivity gains. The hypercompetitive globalized economy generates enormous profits, while the second, less tradable economy is where more Americans actually live.

In politics, we are beginning to see conflicts between those who live in Economy I and those who live in Economy II. Republicans often live in and love the efficient globalized sector and believe it should be a model for the entire society. They want to use private health care markets and choice-oriented education reforms to make society as dynamic, creative and efficient as Economy I.

Democrats are more likely to live in and respect the values of the second sector. They emphasize the destructive side of Economy I streamlining — the huge profits at the top and the stagnant wages at the middle. They want to tamp down some of the streamlining in the global economy sector and protect health care, education and government from its remorseless logic.

Republicans believe the globalized sector is racing far out in front of government, adapting in ways inevitable and proper. If given enough freedom, Economy I entrepreneurs will create the future jobs we need. Government should prepare people to enter that sector but get out of its way as much as possible.

Democrats are more optimistic that government can enhance the productivity of the global sectors of the economy while redirecting their benefits. They want to use Economy I to subsidize Economy II.

I don’t know which coalition will gain the upper hand. But I do think today’s arguments are rooted in growing structural rifts. There’s an urgent need to understand the interplay between the two different sectors. I’d also add that it’s not always easy to be in one of those pockets — including the media and higher education — that are making the bumpy transition from Economy II to Economy I.

Obama struggles with the base and the center

I asked 2301 students to speculate on how well Romney might pivot to the center once he - or now that he - has the nomination wrapped up, and how he can do so without losing his party's base. Obama has the same problem.

This story describes how he has to make the environmentalist portion of the party's base happy while also satisfying the center's desire for more fossil fuels. He is also trying to rally the base by pushing the Buffett Rule, but how do you do that without alienating those in the center who might be nervous about tax increases - even if it doesn't directly affect them.

The Politics of Tax Reform

Bruce Bartlett explains - among other things - why its tough getting rid of tax exemptions:

Both 2301 and 2302s should consider this in light of the problems public opinion presents for bringing budgets into balance. We liek low taxes and high spending:

Politicians hide behind grandiose plans for wiping the slate clean because they know that support for every specific tax expenditure is very high. In practice, saying that one would eliminate all tax expenditures is meaningless, nothing more than a gesture that avoids confrontation with the constituencies supporting tax expenditures.

Perhaps the worst offender, in this regard, is Paul D. Ryan, Republican of Wisconsin and chairman of the House Budget Committee, who promises a sharp reduction in tax rates while still balancing the budget. He says that his tax cuts, which would reduce revenues by $10 trillion over the next decade over current law, according to the Tax Policy Center, would be paid for with base-broadening and loophole-closing.

But Mr. Ryan steadfastly refuses to name a single loophole that he would eliminate; he ordered the Congressional Budget Office to assume that federal revenues would rise to 19 percent of gross domestic product from 15.5 percent by 2030 under his plan.

Mr. Ryan’s political calculation is simple. He knows that taking away the tax exclusion for employer-provided health insurance would greatly increase its cost and probably cause most businesses to drop coverage; repealing the mortgage-interest deduction would raise the cost of housing for homeowners and would very likely cause a further drop in home prices; abolishing the charitable-contributions deduction would decimate churches, universities, museums and every other tax-exempt organization; and rescinding the deduction for state and local taxes would vastly raise the tax burden in most states.

Mr. Ryan knows perfectly well that the most popular tax expenditures will never be repealed but pretends that they all will in order to make his phony-baloney numbers add up. The fact is that the vast bulk of tax expenditures, in dollar terms, are immensely popular and deeply imbedded in the economy and society.

From the HC: 1.2 million Texas children still without insurance

While the Supreme Court deals with the constitutionality of the individual mandate - which is an abstract consideration of course - the real problem of the uninsured persists, especially in Texas.

From the HC:

More than 1 million Texas children remain without health insurance, and those kids are not getting the care they need.

The startling condition of the state's children came into vivid focus last week with the release of the annual Kids Count survey. The analysis of official state and federal data by the non-partisan Center for Public Policy Priorities found that 1.2 million Texas children have neither private nor public health insurance.

Almost 40 percent of Texas mothers received little or no prenatal care and one in seven babies were born premature, statistics show. The difference between being insured and uninsured is stark: 90 percent of insured kids are healthy, while only 58 percent of kids without insurance are considered healthy.
Perhaps this fits into our ongoing question about whether government is broken. Real problems persist while these constitutional questions are debated. What does this mean about our willingness to confront a problem like this, or are there sufficient numbers who do not think this presents a problem that government needs to address?

From the Washington Post: The Supreme Court vs. the Commerce Clause

As we discuss at various points in both 2301 and 2302, some conservatives have been trying to roll back the scale of the national government to what existed prior to the New Deal, and the argument presented in heath care reform cases might allow them the opportunity to do so, the question is whether they really want to go that far and create the disruptions such a decision would inevitably lead to.

Here's a suggestion that the activity / inactivity distinction might allow the court to make a statement regarding the outside limits of governmental actions without undermining the policies (Social Security, Medicare etc. . . ) that have been built up over the past few decades.

Budgetary politics today

Some useful analysis of the current state of budgetary politics by Ezra Klein:

Both sides face the same problem: Nothing they produce has any chance of passing. But to House Republicans, that's been a reason to go big on the annual budget resolution. Unshackled from the need to write legislation the Senate can pass and the president will sign, House Republicans have used their budgets to detail a dramatic, sweeping vision for how they would remake the federal government. For Senate Democrats, it's been just the opposite: Since nothing they produce will make it through the House, they've mostly ignored the annual budget resolution and saved their political capital for the inevitable end-of-year dealmaking.

Both approaches have had their weaknesses. House Republicans ended up going too far, signing onto unpopular Medicare reforms that they tried to walk back in this year's budget and proposing deep cuts that have given the president an easy target. But Senate Democrats have developed a reputation for cowardice on fiscal issues, and Republicans have delighted in noting that we have gone more than 1,000 days without the Senate passing a budget.
Remember that there is no need - constitutionally - for the national government to have a budget, so it invites gamesmanship.

Too many registered voters?

A conservative watchdog group notes there are more registered voters in some counties than should live in these counties according to the census.

The HC has the story, along with some explanations why this might be the case. One reason - there are no resources in place to purge dead folks off the rolls when they die - this costs money.

A proposal for term limiting Supreme Court Justices

From the NYT:

In 2009 a politically diverse group of law professors, including me, proposed a system that would work around the need to amend the Constitution — an extremely unlikely possibility — yet still capture the benefits of term limits.

Here’s how our plan would work. Every two years the president would appoint a new justice to the court, but only the nine most junior justices, by years of service, would sit and decide every case.

The rest would then act as a sort of “bench” team, sitting on cases as needed because of the disability or disqualification of one of the junior justices. These senior justices might also help decide which of the thousands of petitions the court receives each year should be fully considered, vote on procedural rulemaking, and perhaps sit on occasional cases presented to lower circuit courts.

In short, our proposal would revise the job of a justice to a more human scale and perhaps make the court less likely to impose erratic political preferences on the citizens it governs. Because it would assure regular turnover, the court would experience fewer long-term ideological swings, enabling it to better do its original job of anchoring the legislative process to the Constitution.
This fits with our recent dicsussions in 2302, but 2301s - since we just discussed elections - should consider how this proposal might moderate the impact that the general population has on the Supreme Court.

Racial polarization

This is hardly a new story. It;s simply updated to reflect the difference in attitudes between whites and blacks on the Trayvon Martin shooting, and now the shooting in Tulsa. African Americans and Anglos perceive the world in different ways and perceive facts about it - or make inferences - to support those viewpoints.

From the Daily Beast:

Majorities of both whites (72%) and blacks (89%) believe the country is divided by race, the poll finds. But twice as many blacks (40%) as whites (20%) say it is very divided. And just 19 percent of whites say that racism is a big problem in America, vs. 60 percent of blacks.

Meanwhile, the killing of 17-year old Trayvon Martin has further polarized America along racial lines, the Newsweek/Daily Beast Poll finds. In the survey, whites are divided over whether they think Martin’s death was racially motivated. Thirty-five percent of whites say Martin’s death was racially motivated, while 30 percent say Zimmerman acted in self-defense and 35 percent are not sure. African-Americans, however, are convinced it was racially motivated (80% vs. 2%).

Whites also are divided on the question of whether Martin was targeted because he was a young black man–41 percent say yes, while 34 percent say no and 21 percent are not sure. Blacks are convinced he was targeted because he was a young black man (85% vs. 4%).

The FDA, tobacco companies and free speech

NPR reports on a case to be argued in the DC appellate court today about whether Food and Drug Administration's requirement that graphic warnings be placed on cigarette packets violates the free speech rights of the companies.

A side thought. Opponents to Texas' abortion sonogram bill made the same - ultimately unsuccessful - point. What's the difference between the two, if any?

Is the right to petition threatened?

The author of "Reclaiming the Petition Clause: Seditious Libel, ‘Offensive’ Protest, and the Right to Petition the Government for a Redress of Grievances" (info in Amazon) thinks so:

EVERY four years, we witness the spectacle of the presidential nominating conventions. And every four years, host cities, party leaders and police officials devise ever more creative ways of distancing protesters from the politicians, delegates and journalists attending these stage-managed affairs.

The goal is to trivialize and isolate dissenting speech without actually banning protest outright. One result is something of a Potemkin village: government proclaims its full commitment to respecting the First Amendment without actually permitting any observable dissent to take place near the convention.

Tampa, Fla., which will host the Republicans from Aug. 27 to 30, and Charlotte, N.C., which will host the Democrats from Sept. 3 to 7, are already following the trend. Charlotte has adopted an ordinance that expands the power of the local police to detain, search and arrest persons in its downtown core. (The Charlotte ordinance also bans camping on city-owned property, a clear response to the Occupy movement.) Tampa is also considering new municipal laws to limit, and in some instances flatly prohibit, downtown protest activity.

Citizens generally have a right to use public streets, sidewalks and parks for expressive activity — unless the government has a substantial reason for requiring expressive activity to take place somewhere else or at another time. Because the rights of speech, assembly and association do not include a right to communicate a particular message to a particular audience, the government’s willingness to let would-be protesters speak somewhere else, some other time, has usually been seen by courts as satisfying the First Amendment.

. . . Unfortunately, the Supreme Court has not accorded the Petition Clause much legal significance. When litigants have pressed Petition Clause claims, the justices have noted that all First Amendment rights are “cut from the same cloth” and thus “are inseparable.” However, in Borough of Duryea v. Guarnieri, a Petition Clause case decided last year, Justice Anthony M. Kennedy wrote that there could be cases “where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis” and where the rights of petition and free speech “might differ in emphasis and formulation.”

This suggests that the court could be sympathetic to carefully devised arguments focused on the right to petition. Officials in Charlotte and Tampa should not reflexively equate dissent with criminality (or domestic terrorism), nor should they have to be sued to do the right thing.

I strongly advise 2301 students to read this op-ed. It's worth a class discussion. The right to petition for grievances has a long and important history which led to the establishment of the U.S. as we know it. It may well be the right that all other rights rest on. If this right is threatened, what else is threatened?

Partisan opinions on energy differ

From the Gallup Poll:

Americans as a whole favor a wide-ranging set of proposals for dealing with the nation's energy and environment situations, but support varies markedly across party lines. Republicans are more likely than Democrats to favor opening up federal lands for drilling, and expanding the use of nuclear energy. Democrats are more likely to favor each of six different proposals, including emissions-control measures, spending government money on alternative sources of energy, and increasing enforcement of environmental regulations.


Click here for the story and the accompanying graphics.

12 - Written Assignment GOVT 2301 Spring Semester

Now that the date for the Texas primary has been set, each political party has decided how they will (1) allocate delegates to presidential candidates and (2) figure how they will select those delegates. I want you to do some detective work and figure out how the state Republican and Democratic Parties will handle each task. I'll add posts now and then to help you out, but use each state party's website as a primary resource.

12 - Written Assignment GOVT 2302 Spring Semester

On April 2, I posted this entry about a recent decision by the Texas Supreme Court about the Texas Open Beaches Act. The act makes it illegal to own a beach in the state of Texas and authorizes the state to seize property that, due to erosion, has become a beach. The court ruled that this violated individual property rights, but the decision was not unanimous.

I want you to click on the post and follow the links it contains to the majority decision as well as the dissents. As best you can explain the different positions taken by the judges. Altogether, try to determine how the judiciary of the state of Texas draws the line between the rights of the individual and the public interest, and the conflict associated with it.

A related issue - which you are welcome to speculate about - is whether the decisions made by the judges are influenced by the fact that judges are elected in the state. Property rights groups are increasingly active in state elections - notable judicial elections. Might this decision be a consequence? Sitting judges who wish to win elections might be tempted to make decisions favorable to these groups in order to win re-election. If not, these groups may be able to recruit and fund judges whom they share a judicial philosophy.

From the New Republic: What William F. Buckley Would Think of Today’s GOP

Some commentary regarding how the current Republican Party has changed over the past 50 years.

What's the difference betwen Twitter and a magazine?

Plenty. In this TNR piece, the author shows how a Tweet from legal analysts Jeffery Toobin - that the individual mandate was doomed based on his analysis of the oral argument - conditioned the reactions of most other news outlets. A more measured response to the arguments just published in the New Yorker is getting less traction. This tells us something. Short superficial messages drown out longer thoughtful ones.

In 2301 we will be discussing the press soon. Technology matters. 

Will Citizens United destroy parties as we know them?

In Citizens United v FEC, the Supreme Court removed significant limits on money in politics by allowing corporations and labor unions to spend as much as they want on campaigns -through SuperPACs, as long as it is not coordinated with a candidate or party.

This allows them to bypass parties however and become sole benefactors of specific candidates. Since parties traditionally perform this role, there are suspicions that the case may end up leading to the breakup of parties, since the may be irrelevant. Timothy Noah thinks this might be especially true of the Republican Party:

Super PACs have made it so easy for millionaires and billionaires to spend unlimited sums on behalf of a particular candidate that these groups are now routinely outspending Republican presidential primary campaigns. Indeed, to a remarkable extent, these oligarch-controlled super PACs are the primary campaign. And, while both parties can create super PACs, so far GOP super PACs are burying their Democratic counterparts. Of the top ten individuals funding super PACs, only one—Jeffrey Katzenberg—is a Democrat. 

Update on Texas school lawsuit

The Texas Tribune updates us on the ongoing lawsuit against school budget cuts and explains why some 500 schools have opted out of the suit - by and large they cannot afford to join up. The Austin American Statesman claims that four of the lawsuits will be consolidated into one.

Does the Supreme Court see the war on terror and Obamacare as essentially the same?

A Washington Post writer thinks so, and suggests that this explains the need for clear limiting principles:

. . . from the Supreme Court’s perspective, they pose practically the same question: How much more authority over individuals can the federal government assume, consistent with the Founders’ notion of limited and enumerated powers?

During the 20th century, the court stretched that concept to accommodate the rise of both a large domestic regulatory and welfare apparatus and of a permanent military and intelligence establishment. That seemed necessary and proper in view of the social problems of a modern urban society and the external threats of Nazism and communism.

In fact, the welfare state and the national security state grew up together. The New Deal’s twin was World War II; the Great Society accompanied the Cold War. The federal government’s expansion has protected us from old age, poverty and external threats — while burdening us with taxes, bureaucracy and a certain amount of official snooping.

The Bush administration took Sept. 11, 2001, as an opportunity to win additional national security powers for the federal government. The Obama administration saw the Great Recession as an opportunity for a New Deal-like expansion of health care and other domestic programs.

Consequently, the court has had to decide whether to allow further growth of the national security state and the welfare state — or to push back, lest these twin leviathans smother individual freedom.

I like the point he is making here, and it fits my approach to looking at the gradual expanse of executive power over American history. As the size of the government increases - meaning the actual physical size of the institutions implementing policies increases - simple votes by the people are insufficient to limit what government's do, and the courts have to step in.

So perhaps the more aggressive approach taken by the court is a necessary response to the increased size of the executive and the real and potential expanse of its powers.

Supreme Court approves strip searches for any arrest

From the NYT:

Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

“Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Kennedy wrote, adding that about 13 million people are admitted each year to the nation’s jails.

. . . Justice Stephen G. Breyer, writing for the four dissenters, said the strip-searches the majority allowed were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.

The story notes that this is one of a string over ideologically polarized decisions by the court where Kennedy has been the deciding vote, switching from the liberal side to the conservatives side depending on the issue.

The case is Florence v. Burlington. Commentary here.

Where the White House and the FDA Disagree

The NYT has a great story highlighting a recent disagreement between the Food and Drug Administration and the Obama Administration over whether movie theater would have to post how many calories a box of popcorn has. The FDA though of it as a policy health issues - as it is supposed to - while the administration thought about the political fallout.

They provide a list of other areas where they disagree.

This is a great was to get a handle on the limits of presidential power over the bureaucracy, especially when the policy goals of the latter conflict with the political needs of the former.

Texas Supreme Court limits the Texas Open Beaches Act

The Texas Open Beaches Act was passed in 1959 and guarantees free public access to beaches along the Gulf of Mexico. It limits the ability of the people to own a beach, which grants the general public access to beaches. But this allows the state to confiscate land when the vegetation line rolls over private property, which sometimes happens after storms and hurricanes.

For the second time, the court has ruled that this law violates private property rights. The case is Severance v. Patterson. The majority decision is here, which was joined by 5 justices, the  other three each wrote a separate dissent here, and here, and here.

At issue is what continued access the public can have to Texas beaches and what power the state and local governments have to not only enforce that access but to engage in cleanup and repairs following storms.

- Supreme Court affirms ruling on Open Beaches Act.
- Court: Public beach easement does not roll.
- High court kills Texas Open Beach Act ‘dead,’ land commissioner says

- http://openbeaches.com/wp/

The case is set to be appealed to the 5th Circuit Court of Appeals, so the story is not final.

The Gender Gap 2012

USA Today reports that the gender gap - the difference between what partisan support for parties and candidates based on gender - is widening and women are increasingly likely to support Obama over Romney.

In the fifth Swing States survey taken since last fall, Obama leads Republican front-runner Mitt Romney 51%-42% among registered voters just a month after the president had trailed him by two percentage points.

The biggest change came among women under 50. In mid-February, just under half of those voters supported Obama. Now more than six in 10 do while Romney's support among them has dropped by 14 points, to 30%. The president leads him 2-1 in this group.

. . . In the poll, Romney leads among all men by a single point, but the president leads among women by 18. That reflects a greater disparity between the views of men and women than the 12-point gender gap in the 2008 election.

Obama campaign manager Jim Messina says Romney's promise to "end Planned Parenthood" — the former Massachusetts governor says he wants to eliminate federal funding for the group — and his endorsement of an amendment that would allow employers to refuse to cover contraception in health care plans have created "severe problems" for him in the general election.

"Romney's run to the right may be winning him Tea Party votes," Messina said in an interview, but he says it's demonstrated that "American women can't trust Romney to stand up for them."

Clive Crook on the Obamacare and the Constitution

Clive Crook argues that a common sense look at existing policy shows that we have far more coercive statues on the book than what is proposed in the Affordable Care Act:

For all practical purposes, the economic power of the federal government is no longer constitutionally constrained. By using its tax power, the federal government already forces you to save for retirement (Social Security), insure against disability (ditto), provide for health care in retirement (Medicare), and pay for all manner of stuff you may neither need nor want. The government could perfectly well use its tax power to pay for universal health insurance. Obamacare is a milder dispensation in terms of personal liberty than tax-and-spend schemes that are already in place or any number of tax-and-spend alternatives to Obamacare that would immediately pass constitutional muster.

The irony is that sing the private sector to provide health care - he argues - is less coercive than programs currently in place.

He concludes by pointing out that the Constitution - whether we admit it or not - is constantly changing:

The world has changed, and what we expect of the government has changed. The Constitution had to change as well, and that could be done either by amending it explicitly or having the Court draw on all its reserves of ingenuity and rewrite it judgement by judgement. In America, the Constitution is a quasi-religious document. Its constancy is an inviolable national myth. Changing it therefore falls to the Court and must be done by stealth, with a certain suspension of disbelief on the part of the citizenry. The big disadvantage of amendment by jurisprudence is that it takes an unavoidably political task out of politics and gives it to unelected judges. Obviously, that's also its big advantage.

Whether we like the way the Constitution has been rewritten is beside the point. The thing is, it has been. The Court has all but erased the limits on the economic power of the federal government. So let's not pretend that striking down the mandate would be a victory of principle rather than just a huge embarrassment for the White House, or that upholding it would mark a big new advance of government power. Politically, it matters. Constitutionally, it's a tremendous fuss about not very much.

This is, he argues, a political - not a constitutional - dispute

This week in class

Expect posts focused on the following this week

2301 - 16 week: Political Parties
2302 - 16 week: The Judiciary Constitutional Design
2301 - 8 week: Federalism and Civil Liberties
2302 - 8 week: The Executive Branch: History and Constitutional Design

The many faces of conservatism

Time Magazine's recent story on the conservative identity crisis points out five types of conservatives - and could easily describe five - somewhat competing strands of thought within the Republican Party:

Libertarians: Leave us alone gold-bug isolationists with growing youth appeal but no clear place in the GOP
Neo-cons: American first interventionists who led the charge into Iraq and now warn of an Iranian threat.
Chamber conservatives: Low-regulation, pro-business free marketeers who support orderly amnesty for illegal immigrants but not tax hikes for the rich.
Tea Partyers: no-deficit tri-corn revolutionaries with slash and burn budget designs.
Values Voters: Washington-wary worshipers crusading against gay marriage, abortion and moral decay.

A good a list as any.

How to hold police departments accountable?

Atlantic Cities has a disturbing piece on keeping police departments accountable. It stats that had Trayvon Martin been shot by police officers under the same conditions we would not be having this discussion about whether his shooting was warranted. We would just have assumed that it was.

Holding police departments accountable, especially when it comes to activities affecting minority communities, is difficult to do. Community review boards are largely ineffective: 

. . . there is no such justice for police abusers in Philly. According to a recent Daily News report, the city's Police Advisory Commission “is often described as a toothless, civilian-run police oversight board without the authority to do anything.” The Commission has no power to punish offending police officers and can only make recommendations to the police department. It has done so just 21 times since 1994. In January, the Commission published its first recommendation since 2007. The barely funded agency currently has a backlog of 129 cases dating back to 2008. A proposal to strengthen the commission has so far been stymied by the city's powerful Fraternal Order of Police.

In New York, advocates likewise have little faith in the Civilian Complaint Review Board ( CCRB).

“The CCRB has unfortunately proven itself to be highly ineffective at reigning in police abuse,” says Donna Lieberman, Executive Director of the New York Civil Liberties Union. “While the CCRB receives increasing numbers of complaints every year, many people don't go there because they fail to substantiate all but a small percentage of complaints. And the police department fails to discipline officers in cases that are substantiated.”

From Nate Silver: Supreme Court May Be Most Conservative in Modern History

Silver comments on research from a two law professors who have developed a way to measure judicial ideology.

From Texas Tribune: A Guide to the Texas School Finance Lawsuits

Catching up with an evolving issue in the state: following last year's budget cuts to schools, some districts sued the state. Texas Tribune provides background of the lawsuits here.

11 - Written Assignment GOVT 2301 Spring Semester

So last week we discussed elections and the difference between political primaries and the general election. One of the arguments commonly made about the difference between each is that the primaries pull candidates to ideological extremes, because that's where the primary voters are. These voters are also called the party's base. The bulk of the general electorate is not extreme however, so what happens in primary campaigns can make candidates uncompetitive in the general election.

Republicans worry and Democrats hope this makes Obama more competitive than Romney in the general elections because the president has not had to play to his party's extreme. He has been able to play to the general electorate, while Romney has been forced to campaign to the Republican base.

So I want you to critically analyze the claim that Romney might be less competitive than the President because he has been forced into extreme positions due to his need to win the primaries prior to positioning himself for the general election.

Outline which positions he has taken that might give him the biggest trouble and how he might deal with them.

11 - Written Assignment GOVT 2302 Spring Semester

I want to continue with questions focused on the Supreme Court health care reform arguments from last week. These provide a terrific way to understand various aspects of the judiciary. Soon enough we will be looking at how cases come to the Supreme Court, so to get an idea about how this is done ahead of time, I want you to trace how the case which brought the question of the constitutionality of the individual mandate (the minimum coverage provision) before the court.

The case is called Florida v. Department of Health and Human Services. You can find relevant information here and here, but feel free to look up your own sources.

Again, I want you to detail how this case evolved and what steps it took on its way to the Supreme Court.

These links should help as well

- How Obamacare got to the Supreme Court.
- ACA Litigation Blog.

Two Senators introduce legislation to overturn Supreme Court case

File this under checks and balances as well as civil rights.

The NYT points out that Senators Harkin and Grassley have introduced the Protecting Older Workers Against Discrimination Act which internded to overrule Gross v. FBL Financial Services, Inc. This was a 2008 Supreme Court case which ruled against a man's claim under the Age Discrimination in Employment Act (ADEA) that he had been demoted due to his age. The Supreme Court ruled that those claiming age discrimination must prove by a "preponderance of the evidence" that age was the principle factor leading to the demotion.

The Senators intend to overrule that standard. They state the following about the bill: 

• The Act reverses the Gross decision and restores the law to what it was for decades before the Court rewrote the rule. The Act makes clear that when a victim shows discrimination was a “motivating factor” behind a decision, the burden is properly on the employer to show it complied with the law.

• The Act is modeled on the Civil Rights Act of 1991, which passed the Senate on a bipartisan basis 93-5. Among other things, the Civil Rights Act of 1991 codified the “motivating factor” framework for race, sex, national origin and religion discrimination claims under Title VII of the Civil Rights Act of 1964.• The Act makes clear that this “motivating factor” framework applies to all anti-discrimination and anti-retaliation laws involving race, sex, national origin, religion, age and disability – treating all workers, and all forms of discrimination, equally.

While we've spent time looking at last week's attempt to use the Supreme Court to overturn a law passed by Congress, its worth noting that the reverse can happen as well. Congress can modify legislation to negate the consequences of a Supreme Court decision.

Are Democrats and Republicans wired differently?

It seems so, or so argues the author of The Righteous Mind. In this review of the book we find that the author repeats a point stated elsewhere. When we reason, if what we do in our brains can be called reason, we don't build conclusions after reviewing fresh evidence, we build up support for pre-existing beliefs. And we do so largely for social status:

To the question many people ask about politics — Why doesn’t the other side listen to reason? — Haidt replies: We were never designed to listen to reason. When you ask people moral questions, time their responses and scan their brains, their answers and brain activation patterns indicate that they reach conclusions quickly and produce reasons later only to justify what they’ve decided. The funniest and most painful illustrations are Haidt’s transcripts of interviews about bizarre scenarios. Is it wrong to have sex with a dead chicken? How about with your sister? Is it O.K. to defecate in a urinal? If your dog dies, why not eat it? Under interrogation, most subjects in psychology experiments agree these things are wrong. But none can explain why.

The problem isn’t that people don’t reason. They do reason. But their arguments aim to support their conclusions, not yours. Reason doesn’t work like a judge or teacher, impartially weighing evidence or guiding us to wisdom. It works more like a lawyer or press secretary, justifying our acts and judgments to others. Haidt shows, for example, how subjects relentlessly marshal arguments for the incest taboo, no matter how thoroughly an interrogator demolishes these arguments.

To explain this persistence, Haidt invokes an evolutionary hypothesis: We compete for social status, and the key advantage in this struggle is the ability to influence others. Reason, in this view, evolved to help us spin, not to help us learn. So if you want to change people’s minds, Haidt concludes, don’t appeal to their reason. Appeal to reason’s boss: the underlying moral intuitions whose conclusions reason defends.
In 2301's section on public opinion, we discuss political psychology. This topic fits it nicely.

From This American Life: Take the Money and Run for Office

Stop what you are doing and listed to this radio show.

Now.

In 2301 we only touched the outer edges of the issues associated with money in politics, this show raises some provocative issues and shows how intertwined our governing system - and especially our legislature - is with moneyed interests.

2302s would benefit from the description of how much time members of Congress have to spend raising money. At least 2 hours a day, and there are daily goals as well.

Can anyone explain "congruent and proportional" to me?

A good question from a 2301 student wrestling with this week's question on Coleman v. Maryland. The plurality decision in the case refers to this rule in its decision that Coleman's suit against Maryland - in federal courts - could not go forward. I'll try to provide a reasonable answer below. I also advise that you read the following article in the NYT for background.

First, "congruent" means the same as, and "proportional" means corresponding to. Here's a specific definition of the test from Wikipedia: "all legislation enacted under section 5 of the Fourteenth Amendment must be "congruent and proportional" to the unconstitutional harm it seeks to remedy." Congress can't create a right and use its enforcement powers to impose it on the states. Remember that the 14th Amendment provides the national government the ability to negate state actions that deny equal protection to "persons within its jurisdiction." Section 5 states the following: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." For more info here read: Congressional Power of Enforcement.

As I understand it, the congruent and proportional test is a way to determine what enforecement mechanisms are and are not appropriate. Recently, it has been used often to determine whether civil remedies (lawsuits against the states in federal courts) are appropriate given the violation claimed by a litigant. Was someone denied a constitutional right - if so the suit goes forward - if not the suit is denied. So this test is tightly connected to the question of state sovereign immunity.

The lawsuit under review in US v. Morrison failed the test and was denied, but those reviewed in Tennessee v. Lane and Nevada v. Hibbs passed it, so they were upheld.


Second, this is an example of test that the Supreme Court establishes from time to time to not only justify a specific decision, but to it in a way that provides a (possible) guideline for future courts to rule on similiar cases. Other examples include the separate but equal doctrine, and the Lemon Test. If you feel ambitious you may want to read through this argument that the court is increasingly reluctant to establish such tests, and a comment here.

Third, the congruent and proportional test was established in the case of City of Boerne v. Flores. As it turns out - fortuitously - Boerne was a reaction to the passage of the Religious Freedom Restoration Act, which itself was passed in reaction to the Smith case we discussed earlier regarding peyote. This was the subject of a previous written assignment as you well know (or should know). RFRA attempted to revive a still different test - the Sherbert Test - which among other things stated that a compelling state interest must be furthered whenever a sincere religious belief is violated by the government.

The decision in Smith changed this rule and made religious liberty subject to generally applicable laws. In RFRA, Congress attempted to revive the more stringent standard, but the Boerne case allowed the court to strike that down - and in doing so they reminded Congress that the power to interpret the Constitution belongs to the court.


Finally, this test is controversial. Not everyone on the Supreme Court abides by it, or has the same attitude towards what rights may or may not exist beyond those that are clearly listed in the Constitution. In this case the question has to do with the extent of gender discrimination. This is a topic I hope 2301s are very familiar with by now.

I hope this review helps. Don't get too bogged down in this nuance as you complete the assignment.

Feeling ambitious? Read this: Congruence and Proportionality for Congressional Enforcement Powers: Cosmetic Change or Velvet Revolution?

A student argues that we need anti-harrassment laws

Obscene Incitement and Clear and Present Danger:

The Need For Anti-Street Harassment Laws

Should there be a law protecting women from street harassment? Many women believe so.

Street harassment falls under the limitations set by the Supreme Court on first ammendment freedom of speech including obscenities, incitement, and clear and present danger. These limits are spelled out by the Supreme Court as "lewd and obscene, the profane, the libelous, and the insulting or 'fighting words.'" (Supreme Court). As defined by the Supreme Court fighting words are, "by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Supreme Court). These limitations were set in cases such as Chaplinsky v. New Hampshire and Miller v. California to name a few.

Unfortunately, although shown to increase violence against women, street harassment is not taken seriously by law enforcement as noted in an article entitled, “Legal Analysis” written by an unnamed representative of the Hollaback! network. The article states, “...Laws already on the books that prohibit intimidation and harassment are rarely interpreted to address the harms of street harassment experienced by women.” (Hollaback!).

For this reason laws needs to be set in place to specifically address the issue of street harassment towards women. As with any law, predefined limiting principles would need to be set in order to prevent abuse. Street harassment should be defined as sexually explicit, demeaning, dehumanizing, and/or aggressive language directed at individuals including minors and adults who, in turn, feel threatened or intimidated and may be in danger of resulting violence physically and/or sexually.

http://www.ihollaback.org/resources/legal/legal-analysis/

http://www.freedomforum.org/packages/first/curricula/educationforfreedom/supportpages/l04-limitsfreedomspeech.htm

http://www.freedomforum.org/packages/first/fightingwords/casesummaries.htm#chaplinsky

Texas Supreme Court Chief Justice Wallace Jefferson call for an appointed judiciary in Texas

Story in the Texas Tribune.

Among other things, elections don't guarantee qualified judges. Key quote:

A brief search of judicial candidates’ TV and web campaign videos brings up plenty of examples, like a spot by former state Rep. Rick Green during his 2010 bid for the Texas Supreme Court.

"Hey, friends. I have some earth-shattering news for you,” he says in the ad. “First of all, this campaign is now Chuck Norris approved. And secondly, we've got our money bomb today."

Green has a law degree but little legal experience. But thanks in part to Norris and some key endorsements from the then-budding Tea Party movement, Green made it to a GOP primary runoff against a candidate with judicial experience.

Does this kind of political wrangling lower the overall quality of the judicial system? Frank Cross, a professor at the University of Texas law and business schools, said it absolutely does.

"Because we have an elected judiciary, our judges are of lower quality,” Cross said. “But it doesn't seem to terribly bother anyone that much."

Will Republicans continue to lose the Latino vote?

Again from Politico, this time Republican lawmakers are concerned that strident language against illegal immigrants has weakened the party's affinity with the Latino population, but those position are popular with the Republican base. So how does it keep the base happy while reaching out to the fastest growing segment of the electorate? 


While Republicans say they aren’t about to embrace “amnesty” for undocumented immigrants, the ideas being considered on Capitol Hill amount to a recognition that the party needs to appear more friendly to the country’s powerful voting bloc.

“You can’t win without doing well among Hispanic voters, and I don’t think it’s any secret that the primary has not been particularly helpful from the standpoint of the tone,” said Texas Sen. John Cornyn, who is leading GOP efforts to take back the Senate. “I think there is a sense on our side that we need to come forward with a responsible approach that if we don’t define ourselves what that approach is, other people are more than happy to take advantage of the void to try to define us.”

The short-term upside is obvious for Republicans: The Hispanic vote in 2012 looms large in swing states like Florida, New Mexico and Nevada, and the party has miserable approval ratings with Hispanics. The longer-term outlook is just as critical — Hispanics are a rapidly growing demographic group in the country and one of the youngest, and the GOP needs to sell the next generation of American voters on its policies.

But it also amounts to a risk: pushing measures to appeal to Latinos could split the party’s base that is steadfast on border security and enforcement.

Are Republicans shifting their position on gay marriage? If so, why?

Politico reports that House Republicans are downplaying gay marriage as a social issue in favor of others like religious liberty and defunding Planned Parenthood. They suggest that general shifts in attitudes about same sex relationships, increased awareness of gays and lesbians among them, and electoral opportunity are driving the change. In 2301 we've been discussing elections and the impact they have on changes in policy. We will be doing the same soon enough for public opinion. This story fits both topics:

It’s not like the GOP has become a bastion of progressiveness on gay rights, but there has been an evolution in the political approach — and an acknowledgment of a cultural shift in the country. Same-sex relationships are more prominent and accepted. There are more gay public figures — including politicians — and it’s likely that many Washington Republicans have gay friends and coworkers. Just as important — there’s also a libertarian streak of acceptance on people’s sexuality coursing through the House Republican Conference.

“In one decade, what’s shocking on TV is accepted as commonplace in the other,” said Rep. Jack Kingston (R-Ga.), a veteran of the culture wars of the 1990s. “It’s the same with sexual mores all over that if you look at campuses and universities, they have a lot of gay pride clubs and so there has been a deliberate and effective outreach to the younger generation about being more accepting of same-sex relationships.”

But there’s also a political strategy at work: The economy has displaced moral issues in today’s politics. Ask most House Republicans today if they have deep convictions about gay relationships, and it hardly registers.

From The Washington Post: Super PACs, donors turn sights on judicial branch

A major topic in both 2301 and 2302 is whether judicial elections compromise judicial independence by making judges subject to the preferences of donors. This story points out the problems unlimited donations in judicial campaigns has posed for the ability of the Florida court to be independent.

I want 2302s, especially, to read through this since we will discuss the problems posed by elections soon enough, but 2301s should look through this as well since it touches both on elections and interest groups. It's also worth considering what these large donations can do to the separated powers, especially on the state level. Large scale donors can use elections to influence who dominates each of the three supposedly separate branches. If successful, the branches can work in tandem and there may be no way for opponents to inhibit what they do.

But maybe I'm paranoid.

Here's a chunk of the story, which calls state judges sitting ducks:


Judicial elections have long drawn the interest of wealthy benefactors, business and labor groups, and trial lawyers, but watchdog groups say they are particularly troubled by a new trend: The universe of big donors has grown smaller and more concentrated.

In a 2010 study that examined 29 judicial races, the watchdog group Justice at Stake found that the top five spenders averaged $473,000 apiece, while all other donors averaged $850. In addition, loopholes in disclosure laws gave those big donors ways to spend money “in substantial secrecy,” the report found.

“Outside forces are becoming a bigger deal,” said Roy Schotland, a Georgetown University law professor and expert on judicial elections. “We’re seeing more takeover of the races from the outside.”

Schotland said state judicial races are increasingly becoming “floating auctions,” in which special-interest groups focus money and manpower in states where they can upend judges they don’t like. “The justices are like sitting ducks,” he said.

How quickly will the Supreme Court decide the health care reform case?

Possibly by this time tomorrow - though we will not know until June.

A great inside look at the decision making process within the Supreme Court.

2302s take note.

Can atheists organize? Does their increased presence make it easier for the religious to organize?

An increasing number of Americans profess no religious belief, but there may be something intrinsic about atheism that makes organizing into effective groups problematic. Here is an argument that this limits their political effectiveness:

Evangelical Christians make up about one-quarter of the adult population, but they are the core of the Republican Party, and as Republican politicians know well, evangelicalism is strengthened by the continual re-creation of a strong group identity threatened by outside forces. And if the threatening others outside the group seem to be not just a disparate collection of people who are "not like us" but a coherent tribe themselves, able to act with purpose and malice, that threat becomes all the more powerful a motivator. So the more visible secularists become, the greater the opportunity to bind evangelical voters more closely to the GOP.

But it won't be easy for secular Americans to become better organized as a political force, even as they increase in number. The major impediment to that kind of organization is the fact that it is very difficult for secularists to conceive of themselves in tribal terms. Most tribes, whether of nations or ethnicities or sports fandom, can easily demarcate their membership—it's the people who look like us, or talk like us, or dress like us. Tribes organized around religious belief have rituals, sacred texts, and physical spaces that all serve to bind the participants together. Atheism has none of these things—most of the time it's an individual choice, made and kept alone.

The Young v The Old

And as usual, the old are winning. Since we are discussing voter turnout this week in 2301- and I like to emphasize the consequences of disparate voter turnout between the old and the young - these stories highlighting the plight of the young are worth considering:

The War Against Youth:

Twenty-five years ago young Americans had a chance.

In 1984, American breadwinners who were sixty-five and over made ten times as much as those under thirty-five. The year Obama took office, older Americans made almost forty-seven times as much as the younger generation.

This bleeding up of the national wealth is no accounting glitch, no anomalous negative bounce from the recent unemployment and mortgage crises, but rather the predictable outcome of thirty years of economic and social policy that has been rigged to serve the comfort and largesse of the old at the expense of the young.

Nothing for You, Sonny:

I suspect the American political system is too slow to really change its priorities and redirect its focus on my generation, but there is always time to refocus on the next one. We now know that the first two years of life are the most consequential for child's development. I would consider reduced Medicare spending now coupled with an increase in efforts to ensure adequate early childhood nutrition to be a successful policy trade-off.

Or we can just make the Ryan Budget law and protect the baby boomers with a firewall to preserves their benefits.

The question will be: how long can an arrangement like that last before the side which knows it is getting the raw deal protests it?

Conservatives v Business

Apparently business interests do not always line up with conservative goals.

From the NYT, a report that some government programs favored by business groups may be terminated or delayed by conservatives in the House:

Business groups that worked hard to install a Republican majority in the House equated Republican control with a business-friendly environment. But the majority is first and foremost a conservative political force, and on key issues, its ideology is not always aligned with commercial interests that helped finance election victories.

“Free market is not always the same as pro-business,” said Barney Keller, spokesman for the conservative political action committee Club for Growth.

There could be real-world consequences to the conservative rebellion. The 90-day extension of the highway trust fund that House Republican leaders say they will pass this week in lieu of a broad highway bill would keep existing projects moving for now. But business groups say few new government-funded infrastructure projects can get under way without longer-range certainty about federal backing.

Spinning Trayvon

Media outlets seem to be competing with each other to offer portrayals of Trayvon Williams, almost certainly to influence attitudes towards him. Was he an innocent kid or a thug? 2302 8am students discussed the various pictures used to provide some indication of what types of person he was - which might help people infer whether he was the victim or aggressor in the events leading to his death a month ago.

This is worth following so expect random posts on the subject. 2301s will soon start looking at public opinion and the factors which lead people to form the opinions they do - and how these are subject to manipulation, or confirmation, based on what news sources they choose to listen to.

Meanwhile of course, truth seems to take a back seat.

Here's the latest: Where are the injuries from the fight?

The House considers a variety of budget proposals

And most have been voted down.

Ezra Klein discusses attempts to resurrect the Simpson - Bowles debt reduction plan and why it was doomed to fail:

On Wednesday, Reps. Jim Cooper and Steve LaTourette managed to put Simpson-Bowles to a vote before the House of Representatives. It didn't just fail. It got crushed. The final tally was 382-38. Twenty-two of the supporters were Democrats, while 16 were Republicans. But overall, the rejection was overwhelming, and overwhelmingly bipartisan.

This was, of course, what the White House always complained would happen if they had listened to the pundits and brought Simpson-Bowles to a vote. Republicans would reject it because it included $2 trillion in new taxes and $800 billion in defense cuts. Democrats would reject it because they weren't going to vote for a doomed proposal that included deep Medicare and Social Security cuts in addition to a large tax increase just to show how much they cared about deficits. Perhaps, with presidential leadership, the vote would have been less lopsided.

But Wednesday's vote — which considered a version of SImpson-Bowles with somewhat less in tax increases -- is at least suggestive evidence that the White House was right and the proposal would never have passed because, in the end, the problem with Simpson-Bowles wasn't that the president didn't say enough nice things about it, but that members of Congress didn't want to vote for it. 
The Hill reports that the House will likely pass - on a party line vote - Paul Ryan's budget proposal a day after unanimously voting down a version based on the president's proposal.

Reactions to the Day Three Health Care Arguments

Again, as compiled by Andrew Sullivan.

Good take on limiting principles from Akhil Reed Amar - Yale Constitutional Law prof:

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.


Commentators have noted that the tone in the Supreme Court is increasingly hostile towards Congress, suggesting that they are prepared to take an activist and aggressive stance towards their view of legislative power and not defer to the political branches.

Reactions to the Day Two Health Care Arguments

As complied by Andrew Sullivan.

I want to highlight the following comment since it touches on the principle issue brought forward in the argument: what is the limiting principle that guarantees that mandates do not go further than the individual mandate?

“Limiting principle” is a phrase that came up a lot in the Supreme Court Tuesday morning - 15 times, according to the transcript. It’s a legal concept you’ll probably hear a lot about in this afternoon’s analysis.

When courts review a new application of Congress’s constitutional authority, they historically wanted to see the government articulate a clear limit to those powers - they look for, in legal jargon, a “limiting principle.”

“If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive,” writes SCOTUSBlog’s Lyle Denniston. “ But if he does not, the mandate is gone.”

About those other rights

Apparently other people have been thinking about the question I asked 2301s earlier this semester:

Jefferson says that we are endowed with “certain” rights, and that life, liberty, and the pursuit of happiness are “among these.” He does not claim to offer an exhaustive list. Indeed he draws attention to the possibility that other “unalienable” rights might be added to it. And he gives us that potent phrase “the pursuit of happiness.” We are to seek our well-being as we define our well-being and determine for ourselves the means by which it might be achieved.

A potential gender discrimination issue?

Should, or can, street harassment of women be addressed by law? Is cat calling an act of free speech?

Driving a wedge between gays and blacks

Andrew Sullivan points to a report highlighting a strategy opponents to gay marriage initiatives are developing. These can have ramifications beyond this one issue. The two groups tend to be part of the Democratic coalition. Animosity between the two could cause one to bolt the party. While they may not necessary vote Republican, weakened allegiance to the Democrats would advantage Republicans.

The report also points out ways to drive a wedge between Latinos and the Democratic Party. Other posts will focus on Republican efforts to appeal to this group - and the various difficulties it has in doing so.

Have renegades taken over the Republican Party?

Thomas Edsall - writing in the NYT - thinks so. Historically, Republican Party voters have been - in his words - compliant to the needs of the electorate, but no longer seems to be the case. The recent election in South Carolina, which generally votes for the eventual nominee, went with Newt Gingrich this time. He analyzes changes within the party, as well as the electoral system, that has led to this change.

The typical Republican primary voter is more white and evangelical than it has been in the past.

The rise of evangelicals might be the most significant change:

In an analysis of the contests so far, the Faith and Freedom Coalition found that evangelicals are now a majority, 50.53 percent, of all Republican presidential primary voters. The ascendance of the religious right has produced “the highest percentage recorded in a presidential nominating process, 4.29 million votes out of 8.49 million cast,” according to the coalition.

Attention 2301s

Since 2301 - 16 week students are starting to look at elections and political parties (two topics that overlap considerably) I'll start posting a variety of stories about the recent primary elections and the nature of the electorate in each party. Plenty of issues regarding campaigning - notable the SuperPacs - are worth discussing also. These have taken a back seat to other issues, but that will change through the end of the semester.

Which is coming up pretty soon.

Round Two: Health Care Reform Case

ScotusBlog - no surprise - says the decision about whether the individual mandate is constitutional is up to Anthony Kennedy, the designated swing voter on the court.

From Tom Goldstein:

Towards the end of the argument the most important question was Justice Kennedy’s. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.

Story in NYT here.

Health care argument links from Scotusblog

Here you can find a full list of documents - from Scotusblog - related to the health care hearings.

From Wonkbook: Absolutely everything you need to know about health reform’s Supreme Court debut

This is a day late, but this contains a succinct outline of the arguments being made each day before the court and the players in the controversy.

Some random items from Congress

For 2302 - 8 week, as you continue looking at the legislature, some tidbits to apply to your readings.

- Insider trading bill passes Congress and goes to President Obama for a signature. The NYT argues that passage was driven by Congress' low approval ratings - and possible spurred by the upcoming election:

The bill prohibits members of Congress from trading stocks and other securities on the basis of confidential information they receive as lawmakers. It makes clear that the insider trading ban in federal law applies to members of Congress and their aides and to officials in the executive and judicial branches of the federal government.

In addition, the bill requires lawmakers to disclose the purchase or sale of stocks, bonds, commodities futures and other securities within 45 days of transactions, rather than once a year as they now do. The information will be posted on the Web.

Thousands of federal agency officials, including many at the White House, will be subject to similar reporting requirements.

- The Hill reports on the relationship between House Speaker John Boehner and the Republican members of the Appropriations Committee. Some things to think about as you apply this story to this week's notes: How is the Speaker managing his conference - how effective a party leader is he? What leverage do members of the Appropriations committee have over others in Congress? The story points out that there strength has diminished since rules against the use of earmarks have been put in place. They have fewer goodies to give out.

- Republican leaders are reluctant to support a rank and file effort to vote for a resolution calling for the removal of Eric Holder. Party leaders see potential for a backlash. The rank and file - especially the Tea Party Caucus - does not care. Leaders are not sure if the measure would really pass, but if they do not call it up for a vote, their credibility as party leaders could be questioned.  

- Pink slime has taken over the latest news cycle. House Democrats want the USDA to prohibit the use of the product in America's schools.

- The House will soon vote on Paul Ryan's budget plan, which will be a test of how cohesive the Republic Conference is at the moment. Some Republican say it does not go far enough in cutting spending; Speaker Boehner has predicted it will pass the House.

- The highway bill still lags in the House, House Democrats plan to introduce the Senate highway bill in the chamber soon.

Round One: Health Care Reform Case

Commentators tell us that the Justices seem inclined to dismiss arguments that an 1867 law against ruling on cases involving taxes applies to the health care law.

From the NYT:

. . . the justices considered the Anti-Injunction Act, which says that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” In other words, people who object to taxes must pay first and litigate later.

That is so, said Justice Stephen G. Breyer, because “taxes are, for better or worse, the life’s blood of the government.”

The first penalties for violating the health care law’s individual mandate do not kick in until 2014, and they must be paid on federal tax returns in April 2015. That means, as the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled last year, that courts are for now powerless to decide the law’s constitutionality.

The Obama administration pressed this argument in trial courts but abandoned it on appeal. The challengers to the law have always said the 1867 law poses no obstacle to immediate review.

A History of ALEC

I stumbled across this and thought I'd share since ALEC (the American Legislative Exchange Council) has been in the news due to its role in passing Stand Your Ground laws across the nation. This was a small example of the many laws the group has helped develop and promote. Read this in order to understand where many of the ideas that lead to legislation - if not the actual legislation itself - originates.

About this week 3/26 - 3/30

Here's what's up for each class:

GOVT 2301 16 week: Elections
GOVT 2302 16 week: The Judiciary - Definition and Historical Development
GOVT 2301 8 week mini: Federalist #10 and the Republic; Federalist #51 and the Separation of Powers
GOVT 2302 8 week mini: The Evolution of the Legislature and Contemporary Issues (Budgeting)

Expect posts to highlight current events which illustrate material on these subjects.

10 - Written Assignment GOVT 2301 Spring Semester

Since I didn't ask a specific question last week about civil rights - and since the Supreme Court ruled on what may turn out to be a major gender discrimination case - I want you to address a question regarding Coleman v. Maryland Court of Appeals.

I posted on this case below and we discussed it briefly in class since the court used the doctrine of state sovereign immunity to toss out a laws suit against a state (a concept we also covered in federalism). The law in question, the Family and Medical Leave Act was justified, when it was passed, as a way to deal with gender discrimination in family medical leave, but this case - if I understand it correctly - applied that logic to personal leave. The majority on the court did not accept the idea that gender discrimination existed in the administration of sick leave.

I want you to read through the three opinions issued in the case - the majority, concurrence, and dissent - and outline the disagreements between them. Once you do, comment on the nature of gender discrimination as a consequence of the decision.

10 - Written Assignment GOVT 2302 Spring Semester

Obviously since health care reform is set to be argued before the Supreme Court tomorrow and the next two days, it's fitting that this week's written question focus on that fact. I want to frame this question in a way that focuses attention on the justices who will be hearing and deciding the case and gets you to think about how each of them approaches their job.

The question is: Based on what we know about the justices on the Supreme Court, how are they likely to rule on the major question the court will face, whether the individual mandate is constitutional?

The purpose of this question is to get you familiar with the different ways that members of the court (1)approach interpreting the Constitution and (2) view their responsibility to check the power of Congress. Very simply put - do they read the text narrowly or broadly, and do they see themselves as actively bound to apply that meaning or do they give Congress the general population leeway to make decisions without their mingling?

Instead of looking at each member - which would take some time - you may wish to focus on a couple. It would be wise to try to get a general feel for the nature of the opinions that exist on the current court. As we will see as we proceed in our coverage of the courts, who is on the courts matters greatly.