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Archive for June 2nd, 2011

Meanwhile, in the original war that never ends

Posted in Main Blog (All Posts) on June 2nd, 2011 4:46 am by HL

Meanwhile, in the original war that never ends
The War on Drugs will apparently never end…makes sense it would be just like Afghanistan I guess.

A group of retired political leaders — strangely not under the influence of lobbying money (or drugs) — has recommended the world, especially the United States, reconsider the War on Drugs.

Their report argues that anti-drug policy has failed by fuelling organised crime, costing taxpayers millions of dollars and causing thousands of deaths.

But it gives us awesome crime movies and television shows!

It calls for drug policies based on methods empirically proven to reduce crime and promote economic and social development.

The commission is especially critical of the US, saying it must abandon anti-crime approaches to drug policy and adopt strategies rooted in healthcare and human rights.

Healthcare and human rights, you know where this is going.

“Drug addiction is a disease that can be successfully prevented and treated,” said a spokesman for the Office of National Drug Control Policy.

“Making drugs more available – as this report suggests – will make it harder to keep our communities healthy and safe.”

“Spokesman”?, just admit it’s an old “macro” on a word processor you’ve had around since WordPerfect 2.0.

Time to devote what little discretionary spending remains on more prisons — please engage the “USA, USA, USA” macro.


Late Late Night FDL: Jailhouse Rock
The Blues BrothersJailhouse Rock, live at Winterland, New Year’s Eve, 1978.

The Blues BrothersJailhouse Rock, live at Winterland, New Year’s Eve, 1978.

What’s on your mind?


Israelis and Palestinians Expect Third Intifada

Posted in Main Blog (All Posts) on June 2nd, 2011 4:45 am by HL

Israelis and Palestinians Expect Third Intifada
Two separate polls found that the majority of Israeli Jews, Israeli Arabs and Palestinians in the West Bank and Gaza see another intifada on the horizon if negotiations don’t yield progress soon. Seventy percent of Jews surveyed by the Peace Index said they thought a popular uprising would follow Palestine’s anticipated request for U.N. membership, while just over 70 percent of Palestinians said they expected the same without advances in the peace process. Palestinian Authority leader Mahmoud Abbas has announced that he’ll ask the General Assembly to recognize Palestine in September, and the majority of the U.N. is expected to support him. As The Guardian points out, however, recognition by the U.N. does not equal statehood. Meanwhile, Israel is holding the line against Abbas’ Fatah/Hamas coalition and the U.S. remains unwilling to split from Israel on fundamental issues related to the conflict. Is another round of violence really the only possible outcome?  —KDG The Guardian: There is increasing talk of what happens after that, and whether – if nothing much changes on the ground – Palestinians will follow their Arab brothers and sisters and try to force change by their own actions. Even before September, there may be a rise in activity. Following the Nakba Day protests by Palestinian refugees on the border with Lebanon and the fence between the Israeli-occupied Golan Heights and Syria, a similar demonstration has been called for this Sunday, June 5, to mark the anniversary of the Six Day War. There is also another international flotilla of aid ships setting sail towards Gaza later in June. The Israeli military are preparing for these events by reviewing their response to non-violent actions and how they can contain demonstrations without courting international criticism for heavy-handed suppression. Fourteen people were shot dead on Nakba Day; nine were killed on board the Mavi Mamara exactly a year ago. Read more

Two separate polls found that the majority of Israeli Jews, Israeli Arabs and Palestinians in the West Bank and Gaza see another intifada on the horizon if negotiations don’t yield progress soon. Seventy percent of Jews surveyed by the Peace Index said they thought a popular uprising would follow Palestine’s anticipated request for U.N. membership, while just over 70 percent of Palestinians said they expected the same without advances in the peace process. Palestinian Authority leader Mahmoud Abbas has announced that he’ll ask the General Assembly to recognize Palestine in September, and the majority of the U.N. is expected to support him. As The Guardian points out, however, recognition by the U.N. does not equal statehood. Meanwhile, Israel is holding the line against Abbas’ Fatah/Hamas coalition and the U.S. remains unwilling to split from Israel on fundamental issues related to the conflict. Is another round of violence really the only possible outcome?? —KDG

The Guardian:

There is increasing talk of what happens after that, and whether – if nothing much changes on the ground – Palestinians will follow their Arab brothers and sisters and try to force change by their own actions.

Even before September, there may be a rise in activity. Following the Nakba Day protests by Palestinian refugees on the border with Lebanon and the fence between the Israeli-occupied Golan Heights and Syria, a similar demonstration has been called for this Sunday, June 5, to mark the anniversary of the Six Day War.

There is also another international flotilla of aid ships setting sail towards Gaza later in June.

The Israeli military are preparing for these events by reviewing their response to non-violent actions and how they can contain demonstrations without courting international criticism for heavy-handed suppression. Fourteen people were shot dead on Nakba Day; nine were killed on board the Mavi Mamara exactly a year ago.

Read more

Related Entries


Why Our Broken System Sends the Wrong People to Prison
On this week’s episode of Truthdig Radio in collaboration with KPFK, we investigate why so many innocent people end up in prison; find out how much various college majors really pay; look into the future of depression-chic food; and learn why Apple’s high profits threaten teachers. Plus, another special report from the cutting edge by Mr. Fish.

On this week’s episode of Truthdig Radio in collaboration with KPFK, we investigate why so many innocent people end up in prison; find out how much various college majors really pay; look into the future of depression-chic food; and learn why Apple’s high profits threaten teachers. Plus, another special report from the cutting edge by Mr. Fish.


Related Entries



Lobbying: There’s An App For That

Posted in Main Blog (All Posts) on June 2nd, 2011 4:44 am by HL

Lobbying: There’s An App For That
The rock-musician-turned-activist Bono wants you to know: You, too, can be a lobbyist, and all you need is an iPhone….

GOP Senator Lifts Hold On Obama Nominee After Deepwater Drilling Fight
NEW ORLEANS (AP/The Huffington Post) — U.S. Sen. David Vitter says he will release his hold on Dan Ashe, the president’s nominee to head the…

WATCH: Jon Stewart Blasts Trump Over Palin Pizza Date
As you probably already know, the most important meeting of modern political minds happened this week in New York City when fake presidential candidate Donald…

Report: Drug War Has Failed, Governments Should Explore Legalizing Marijuana
NEW YORK — The global war on drugs has failed and governments should explore legalizing marijuana and other controlled substances, according to a commission that…

Obama Sets Sky-High Fundraising Goal For June
WASHINGTON — President Barack Obama’s key fundraisers are being asked to raise $60 million for the president’s re-election campaign and the Democratic Party by the…


Hyping Boehner’s “150 Economists,” Media Ignore That Many Have History Of Dubious And Extreme Claims

Posted in Main Blog (All Posts) on June 2nd, 2011 4:44 am by HL

Hyping Boehner’s “150 Economists,” Media Ignore That Many Have History Of Dubious And Extreme Claims

Several media outlets have reported on a letter sent by House Speaker John Boehner to President Obama signed by “150 economists” who support Boehner’s spending cut proposal. But these media outlets have ignored that many of the economists who signed the letter have made baseless predictions in the past, some have endorsed dubious theories, and others have used extreme rhetoric to attack Obama and other Democrats.

Media Report On “150 Economists” Backing Boehner’s Spending Cuts Proposal 

Reuters: “150 Economists Back Republicans In Debt Fight.” A June 1 Reuters article headlined, “150 economists back Republicans in debt fight” reported that “[m]ore than 150 economists back House of Representatives Speaker John Boehner’s call to match any increase in the debt limit with spending cuts of equal size, according to a letter released by the Republican leader’s office on Wednesday.” [Reuters, 6/1/11]

Wash. Post: “More Than 150 Economists Have Signed A Statement Supporting” Boehner. A June 1 Washington Post blog post stated: “More than 150 economists have signed a statement supporting House Speaker John Boehner’s (R-Ohio) call for spending cuts at least equal to the amount by which Congress raises the country’s debt ceiling this year, a figure that could total trillions of dollars.” [Washington Post, 6/1/11]

Politico: “Speaker Boehner Releases Statement Signed By 150+ Economists, Backing His Call In NYC For Spending Cuts.” Politico reported on June 1: “AS HOUSE GOP heads to White House for closed-press East Room meeting with POTUS, Speaker Boehner releases statement signed by 150+ economists, backing his call in NYC for spending cuts that exceed any increase in the debt limit.” [Politico, 6/1/11, emphasis in original]

NY Times: Boehner “Issued A Statement Signed By 150 Economists Backing House Republicans.” In a June 1 blog post, The New York Times reported: “In advance of a White House meeting with President Obama, Speaker John A. Boehner on Wednesday issued a statement signed by 150 economists backing House Republicans in rejecting an increase in the federal debt limit without corresponding spending cuts.” [The New York Times, 6/1/11]

But Many Of The “150 Economists” Have Made Baseless Predictions, Endorsed Dubious Theories

At Least 46 Economists From Boehner’s List Signed Letter Calling 2003 Bush Tax Cuts “Fiscally Responsible.” The following economists signed both Boehner’s letter and a 2003 letter to George W. Bush calling the Bush tax cuts “fiscally responsible:

Stacie Beck

Bruce Bender

Michael Boskin

Donald R. Booth

Phillip Bryson

Todd G. Buchholz

Samantha Carrington

John Cogan

John P. Cochran

Coldwell Daniel

Ronnie H. Davis

Stephen J. Dempsey

John B. Egger

Frank Falero

June O’Neill

Dave Garthoff

Earl L. Grinols

Stephen Happel

Kevin Hassett

Joel Hay

Larry Lindsey

Robert Tamura

David Malpass

Michael L. Marlow

Allan Meltzer

James C. Miller III

John E. Murray

George R. Neumann

Seth W. Norton

Lee Ohanian

Richard W. Rahn

Christine P. Ries

Raul H. Rubin

Gary J. Santoni

Thomas R. Saving

Robert Haney Scott

William Shughart II

James F. Smith

Clifford F. Thies

Leo Troy

Richard Vedder

Michael E. Williams

Michael Wohlgenant

Gary Wolfram

Gene C. Wunder

Benjamin Zycher

As Media Matters has noted, contrary to the claim that the Bush tax cuts were “fiscally responsible,” economists have stated that the Bush administration’s tax policies failed to make the economy grow faster and contributed to a decline in median household income. [Speaker Boehner letter, 6/1/11; The White House, 2/12/03; Media Matters, 8/9/10]

William F. Shughart II: Making Abortions More Costly Is A Way To Reduce Them Because “Women Can Also Choose Whether Or Not To Risk Becoming Pregnant.” An article in the Cato Journal co-written by William Shughart II stated:

But few abortions are in fact performed to save the life of the mother; even fewer are performed to terminate pregnancies resulting from rape or incest. In modern society, the procedure of abortion is simply used to terminate unwanted pregnancies for many women. Bitter opposition to any proposal that would restrict in any way a woman’s ”right to choose” suggests that this is so. And if many abortion- minded women are in fact searching for an inexpensive way of disposing of an unwanted child-using abortion as a kind of foolproof birth control device-laws that make abortions less [sic] costly should reduce the number of abortions and, perhaps, the number of unwanted pregnancies as well. (Although the abortion debate focuses exclusively on a woman’s decision to terminate an unwanted pregnancy, women can also choose whether or not to risk becoming pregnant in the first place.)

[…] 

Our analysis suggests that abortion rates have fallen because fewer women are choosing to become pregnant and, among those who do, fewer are choosing to have abortions. Hence, if, in President Clinton’s words, one wants abortions to be ”safe, legal, and rare,” laws making them more costly are a way of promoting that goal. [Cato Journal, Vol. 18, No. 1, Spring/Summer 1998; Political Correction, 5/20/11]

John Cogan: “It’s Wrong To Allow Surpluses.” The New York Times reported in 2003 of one of the signatories who signed the letter in support of Boehner: “John F. Cogan, a Hoover fellow, was a top official in the Office of Management and Budget in the Reagan and first Bush administrations and probably could have been the current president’s budget director if he had wanted the job. He put the case this way: ‘It is wrong to allow surpluses because these surpluses invariably lead to higher spending. Governments simply cannot hang onto money.'” [New York Times, 2/9/03; Political Correction, 5/20/11]

Kevin Hassett: Author Of Book Predicting Dow Jones Industrial To Climb To 36,000. In 2008, The Wall Street Journal reported of another economist who signed Boehner’s letter:

Kevin Hassett, co-author of the 1999 book “Dow 36,000: The New Strategy for Profiting From the Coming Rise in the Stock Market,” says criticism of his book isn’t something he’s lost a lot of sleep over. He is now an economics adviser to Republican presidential candidate John McCain. The Dow Jones Industrial Average closed yesterday at 11230.73.

“I think that it’s important for public discourse for people to be willing to take clear positions,” he says. “You can be negative and be wrong year after year and somehow it doesn’t create angry critics, but if you’re optimistic and incorrect the response is much more vocal.” [Wall Street Journal, 9/10/08; Political Correction, 5/20/11]

Allan H. Meltzer: “Investment Banks Don’t Need The [Federal Reserve] To Regulate Them.” In a July 2008 op-ed in The Wall Street Journal, Meltzer wrote: “Investment banks don’t need the Fed to regulate them. Some clear rules on capitalization would suffice.” [Wall Street Journal, 7/16/08, via American Enterprise Institute; Political Correction, 5/20/11]

Judy Shelton: “Now Is The Time To Challenge The Exclusive Monopoly Of Federal Reserve Notes As Currency.” In 2009, Shelton wrote in the Wall Street Journal: “Now is the time to challenge the exclusive monopoly of Federal Reserve notes as currency. Buyers and sellers, by mutual consent, should have access to an alternate means for settling accounts; they should be able to do business using a monetary unit of account defined in terms of gold. The existence of parallel currencies operating side-by-side on an equal legal footing would make it clear whether people had more confidence in fiat money or money redeemable in gold. If the gold-based system is preferred, it means that people fully understand that the purpose of money is to facilitate commerce, not to camouflage fiscal mismanagement.” [Wall Street Journal, 2/11/09; Political Correction, 5/20/11]

Charles W. Baird: Unionizing Will Send Public University Into “Academic Mediocrity Or Worse.” In a 2008 article posted on the Foundation for Economic Education blog The Freeman, Baird wrote: “The faculty at Montana State University in Bozeman will soon vote on whether to unionize. If a majority vote yes, the school will gradually descend into academic mediocrity or worse.” [Foundation for Economic Education, 6/1/08; Political Correction, 5/20/11]

James C. Miller III: Homelessness Not The Problem Of The Federal Government. From a 1986 The New York Times article:

The director of the Office of Management and Budget said today that the homeless of America were a problem for state and local governments, not for the Federal government.

In testimony before the House Budget Committee, James C. Miller 3d, the budget director, added that ”there are a number of grants we have” to help local governments with programs for the homeless. But when he named one, the Community Services Block Grant, he was told by a Democratic member of the committee that the Reagan Administration had proposed eliminating this grant in its budget for the fiscal year 1987, which was prepared under Mr. Miller’s supervision.

Before now, statements by President Reagan and his aides, have fueled criticism of the Administration attitude toward the homeless. The Department of Housing and Urban Development estimated in May 1984 that 250,000 to 350,000 people were homeless in America, a figure critics said was low. [New York Times, 2/19/86, via Lexis; Political Correction, 5/20/11]

Paul H. Rubin: Nothing Wrong With Drug Companies Giving Gifts To Doctors (But “I Consult For The Drug Industry”). In Forbes, Rubin wrote:

What’s the matter with Americans? They think there is something incestuous about the connection between drug companies and doctors.

Politicians tell them that the drugmakers wine and dine physicians while pushing the latest antibiotic or statin. Utterly corrupted, doctors impose those medications on patients, whether or not the drugs are better than cheaper alternatives.

A pending U.S. Senate bill would require drug companies to report gifts to doctors of more than $25; the House is investigating marketing practices. New York State’s legislature plans to hold hearings this year on the relationship between doctors and drug companies. One congressional critic has even compared the drug industry with the tobacco industry, and Senator John McCain has called drugmakers the “bad guys.”

What drugs are these legislators taking? Drug company reps offer overworked doctors useful, lifesaving information in an efficient manner. The drug companies are of course motivated by profit, but economists have known since Adam Smith that the profit motive is the best way to induce someone to do something useful. (Disclosure: I consult for the drug industry from time to time, most recently for Pfizer.) [Forbes, 2/25/08; Political Correction, 5/20/11]

 

King Banaian Is A Republican Member Of Minnesota Legislature Who Believes Stem Cell Research Is “Human Cloning.” As the Washington Independent reported:

A ban on somatic cell nuclear transfer (SCNT), a technique used in some forms of stem cell research, passed the House and Senate floors on Tuesday evening in a pair of higher education budget bills. The bills would prohibit state or federal funding from going toward SCNT stem cell research. The two bills are headed to conference committee, where the two bodies will hash out the parts of the bills that differ. Gov. Mark Dayton indicated in a letter to legislators that he would veto a bill that contained the stem cell bans, citing them as policy issues that don’t belong in budget bills.

In the House, Rep, King Banaian (R-St. Cloud) moved to amend the higher education bill with language banning SCNT, calling it “human cloning.” “This is simply concerned with the funding of research into this. It is not an outright ban,” he said on the floor. “It does not ban a state institution doing it if it was able to find private funding to do so.” [Washington Independent, 3/30/11; Political Correction, 5/20/11]

Several Of Boehner’s “150 Economists” Have Used Extreme Rhetoric To Attack Obama, Other Democrats

Benjamin Zycher: Michelle Obama Is The Product Of “Affirmative-Action Coddling.” In an August 2009 post on National Review Online‘s blog The Corner, Zycher wrote: “Now, let me be blunt: Michelle Obama, the product of lifelong affirmative-action coddling, is an intellectual lightweight who fancies herself a serious thinker. Just read her Princeton senior thesis, an intermittently coherent stream-of-consciousness pile of leftist jargon, campus pseudo-seriousness, and racial-identity babble. Can there be any doubt that the Princeton administrators accepted it only because of her skin color?” [National Review, 8/17/09; Political Correction, 5/20/11]

Thomas C. Rustici: “In November We Will Kick Your Asses Out And Save This Republic From Your Socialistic Tyranny.” Speaking at an April 2010 Tea Party rally, Rustici said: “I swear on my life, with God as my witness, we are going to hold them to account for this disaster. If you’re a politician and disrespect the Constitution, individual liberty, and the American people; heed my words: this, I swear before God almighty right here right now, we’re coming after you. In November we will kick your asses out and save this Republic from your socialist tyranny.” [TomRustici.Angelfire.com, 4/10/10; Political Correction, 5/20/11]

Yuri N. Maltsev: Calls For “Unity” And “Fairness” Look Like “Germany of 1932” And “Mugabe’s Zimbabwe.” On libertarian website LewRockwell.com, Maltsev wrote: “The thought scene in the US today resembles that of Russia in 1917, Cuba in 1959 or China in 1948. Incessant calls for ‘unity’ and ‘fairness,’ attacks on ‘divisive,’ ‘toxic’ and ‘hateful’ language are nothing new – they resemble Germany of 1932 and Venezuela of 1996, today’s Putin’s Russia and Mugabe’s Zimbabwe. Listening to the NPR tirades against freedom of speech, famous George Washington’s dictum comes to mind: ‘It will be found unjust and unwise jealousy to deprive a man of his natural liberty upon the supposition he may abuse it.’ We witness another kind of spirit in the city named after him – of praise and adoration of the new beloved leader.” [LewRockwell.com, 11/17/08; Political Correction, 5/20/11]

David G. Tuerck: Obama Embraces Marxism “In His Heart Of Hearts.” In a blog post on his personal website, The Asylum, David G. Tuerck wrote:

Those words will come from the public Obama of last year’s election, the cool, pragmatist Obama.  But the person uttering those words will be the person who has always identified with, and felt most comfortable around, the likes of Jeremiah Wright, William Ayres [sic] and Van Jones.  What the Van Jones appointment, in particular, has shown is that people with the power to shape our country’s most fundamental values and institutions can never escape the pull of their personal ideology and can be expected to push toward the implementation of that ideology once given the chance.  Obama wants to socialize medical care and will do all he can to get what he wants as soon as he gets the power he needs to move us in that direction.  

When a reporter asked candidate Joe Biden if he thought Obama was a Marxist, Biden dismissed the reporter’s question as ridiculous.  It appears now that what was ridiculous is that the reporter thought it necessary to ask the question in the first place.  As hard as it is to find anyone nowadays who openly embraces Marxism as a philosophy, Barack Obama managed to give a high-level appointment to someone who does.  What more evidence do we need to know what philosophy Obama embraces in his own heart of hearts? [The Asylum, 9/7/09; Political Correction, 5/20/11]

Dave Garthoff: Obama Punishes Our Friends And Kisses Up To Our Enemies. In a letter to the editor printed in the West Side Leader, Garthoff wrote: “I almost feel sorry for my Left-Liberal friends who whole-heartedly support the now obviously failing Obama administration. It must be painful to them to watch as their program for ‘change’ staggers down the slippery slope toward collapse as initiative after initiative backfires. To name a few: […] The punishment of our friends and the kissing up to our enemies in international affairs.” [West Side Leader, 10/15/09; Political Correction, 5/20/11]

Michael Boskin: Obama Is “Returning To Jimmy Carter’s Higher Taxes And Mr. Clinton’s Draconian Defense Drawdown.” In an op-ed in The Wall Street Journal, Boskin wrote: “The illusion that Barack Obama will lead from the economic center has quickly come to an end. Instead of combining the best policies of past Democratic presidents — John Kennedy on taxes, Bill Clinton on welfare reform and a balanced budget, for instance — President Obama is returning to Jimmy Carter’s higher taxes and Mr. Clinton’s draconian defense drawdown.” [Wall Street Journal, 3/6/09; Political Correction, 5/20/11]

At Least One Of Boehner’s “150 Economists” Are Not Economists

Thomas P. Miller: Lawyer, Not An Economist. Miller’s profile at the American Enterprise Institute indicates his education is limited to a J.D. from Duke University Law School and a B.A. in political science from New York University. [American Enterprise Institute, accessed 5/18/11; Political Correction, 5/20/11]


Rolling Stone: Roger Ailes’ Bomb Proof Office Protects Him From ‘Those Gays’

Posted in Main Blog (All Posts) on June 2nd, 2011 4:42 am by HL

Rolling Stone: Roger Ailes’ Bomb Proof Office Protects Him From ‘Those Gays’
Fox News Chairman Roger Ailes is big on security. And as he sees it, according a report in Rolling Stone, the two biggest threats to his personal well-being are al-Qaeda terrorists and “those gays.”

Presented By:

Anthony Weiner: Lewd Twitter Photo ‘Could Be’ A Private Picture (VIDEO)
Rep. Anthony Weiner (D-NY) said Wednesday night that a lewd photo that was published on his Twitter account “could have” been of him but said it “doesn’t look familiar.”


Paul Ryan’s Sociopath to Prosperity

Posted in Main Blog (All Posts) on June 2nd, 2011 4:39 am by HL

Paul Ryan’s Sociopath to Prosperity


Who Benefits from the Chaos in the GOP Field?

Posted in Main Blog (All Posts) on June 2nd, 2011 4:38 am by HL

Who Benefits from the Chaos in the GOP Field?
Mark Halperin: “Mitt Romney and Barack Obama. All the delays and distractions make it harder for Romney’s would-be rivals to catch him in the GOP race. Obama is helped too, because anything that adds to the GOP carnival elevates the President. In some of the most basic areas of politics — opposition research, staff selection, field operations, surrogates — the Obama-Biden re-election campaign has already built up a huge lead. The longer it takes the Republicans to find a nominee, the wider that gap will grow.”


The Desperate Selling Off of America

Posted in Main Blog (All Posts) on June 2nd, 2011 4:37 am by HL

The Desperate Selling Off of America
Rather than upset the moneyed interests who bought their seats in office, politicians prefer to cut pensions, close schools, and most importantly, privatize, privatize, privatize!

The Wild War to Protect Bluefin Tuna In Libyan Waters, and Obama’s Troubling Role
The waters off Libya are a NATO no-fly zone, which is good news to poachers: No inspectors. No surveillance.


Gates

Posted in Main Blog (All Posts) on June 2nd, 2011 4:36 am by HL

Gates


Presented By:

Palin Factor
Sarah Palin has reinserted herself into the Republican Presidential race and it is causing a great deal of handwringing among the party elite. Politico’s Mike Allen notes an email he got from “a top Bush strategist”. “You heard it here…


Sixth Circuit Health Care Argument: Do Republican District Judges Stand Alone?

Posted in Main Blog (All Posts) on June 2nd, 2011 4:35 am by HL

Sixth Circuit Health Care Argument: Do Republican District Judges Stand Alone?
To date, no court of appeals has opined on whether the Affordable Care Act is constitutional, and the trial judges — “district judges” as they are known in the federal system — who have weighed in on the issue have all split along party lines. That pattern seemed almost certain to continue after today’s oral […]

Sixth Circuit Judge Jeffrey Sutton

To date, no court of appeals has opined on whether the Affordable Care Act is constitutional, and the trial judges — “district judges” as they are known in the federal system — who have weighed in on the issue have all split along party lines. That pattern seemed almost certain to continue after today’s oral argument in the U.S. Court of Appeals for the Sixth Circuit. Because of excessive caseloads, district judges are occasionally asked to sit on appeals panels, and the district judge asked to hear today’s case — Reagan-appointed Judge James Graham — was the only member of the three judge panel who seemed eager to strike down health reform.

Graham’s leaning is not surprising. He previously held on states rights grounds that state employers are immune to the Family Medical Leave Act, only to have the Supreme Court reject this view in an opinion by conservative Chief Justice William Rehnquist. What was surprising, however, is that Graham may be alone among the three judges in his apparently belief that the ACA is unconstitutional.

The panel’s senior member is Judge Boyce Martin, a Carter appointee who is more likely to ride a unicorn out of the courtroom than to accept the utterly meritless arguments against the ACA. The third panelist, however, is Judge Jeffrey Sutton.

Sutton is one of the judiciary’s most conservative members and a former activist for state’s rights issues. He devoted much of his career to preventing people with disabilities, religious minorities and even children who are illegally deprived of Medicaid coverage from holding states accountable in federal court, and he served as an officer in the conservative Federalist Society’s Federalism and Separation of Powers practice group. More recently, Judge Sutton was unanimously reversed by the Supreme Court for ignoring a binding precedent he argued and won before the justices in order to hand a potentially election-changing victory to the Ohio Republican Party.

And yet Sutton seemed deeply torn between his own personal sympathy with the plaintiffs’ anti-health care arguments and the fact that there just isn’t any way to strike down this law under the Constitution or the Supreme Court’s precedents.

The plaintiffs’ sole claim is that the ACA’s provision requiring most Americans to either carry health insurance or pay slighty more income taxes violates the Constitution because that amounts to compelling people to buy a product, and compelling a purchase somehow is not allowed.  Sutton called this argument “ingenious” and praised it as a rule that the “average American understands,” but he also doubted that such a rule — if it exists — should apply to health insurance. As Sutton pointed out, nearly everyone will need to buy health care at some point because they are sick or injured, and the costs can be catastrophic. So the ACA doesn’t require people to buy anything they won’t already purchase, it just nudges them to finance that purpose through health insurance rather than paying out of pocket.

On three separate occasions, Sutton floated a potential way to “split the baby” in this case. The Supreme Court allows two kinds of challenges to a law: “facial” challenges, that claim the law must be effectively striken from the books, and “as applied” challenges, which claim that the law cannot be applied to a particular person or entity. In order to bring a facial challenge, however, a party must show that “no set of circumstances exists under which the Act would be valid.

Because the case essentially comes down to whether a person who is not currently participating in the health care market can be made to enter it, Sutton repeatedly suggested that this kind of case cannot be resolved by a facial challenge. Many people currently are insured, or are currently receiving treatment, or are very likely to receive treatment in the imminent future. All of those people are in the health care market, and should be subject to regulation even under the plaintiffs’ legal theory. By contrast, a healthy, independently wealthy individual with no insurance might not presently be participating in the health care market, and so they might be able to bring an as-applied challenge claiming that the law cannot apply to them — and only them. Thus, the ACA would be constitutional for virtually everyone, and people in exceptionally rare circumstances would be immune.

Now let’s be clear. Sutton is a deeply conservative judge. He has a history of manipulating the law to benefit the GOP, and he had plenty of skeptical questions for the solicitor general today. The smart money is still against Sutton voting to uphold the law. Moreover, the panel strongly hinted prior to today that it might dismiss the case on procedural grounds and skip the merits altogether.

Nevertheless, the fact remains that one of the judiciary’s leading conservatives — and a judge with a long history of states’ rights activism to boot — seemed worried that the case against the ACA is riddled with holes. He may vote to strike the ACA down, but he’ll have to stretch the law beyond recognition to do so.

Fixing the Comments
If you’ve left a comment here in the last two days only to see it disappear later, could you email me at AlyssaObserves [at] gmail [dot] com with the following info: 1) Which post it was. 2) Whether it was a reply to another comment or a stand-alone comment? I’m incredibly sorry about this. And […]

If you’ve left a comment here in the last two days only to see it disappear later, could you email me at AlyssaObserves [at] gmail [dot] com with the following info:

1) Which post it was.

2) Whether it was a reply to another comment or a stand-alone comment?

I’m incredibly sorry about this. And please know we’re working as hard as we can, internally and with Facebook, to get this fixed.