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A Ham Sandwich, But Not a Police Officer

[ 100 ] November 25, 2014 |

Jon Cohn’s assessment of the grand jury’s refusal to indict Darren Wilson is very useful. It’s hard to imagine a prosecutor essentially tanking his case for the grand jury in another type of killing, and this also explains why McCulloch sounded more like a defense attorney than a prosecutor at a press conference.

This would be a good time to read Radley Balko on Ferguson if you haven’t already.

…Toobin:

But the goal of criminal law is to be fair—to treat similarly situated people similarly—as well as to reach just results. McCulloch gave Wilson’s case special treatment. He turned it over to the grand jury, a rarity itself, and then used the investigation as a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else. Buried underneath every scrap of evidence McCulloch could find, the grand jury threw up its hands and said that a crime could not be proved. This is the opposite of the customary ham-sandwich approach, in which the jurors are explicitly steered to the prosecutor’s preferred conclusion. Some might suggest that all cases should be treated the way McCulloch handled Wilson before the grand jury, with a full-fledged mini-trial of all the incriminating and exculpatory evidence presented at this preliminary stage. Of course, the cost of such an approach, in both time and money, would be prohibitive, and there is no guarantee that the ultimate resolutions of most cases would be any more just. In any event, reserving this kind of special treatment for white police officers charged with killing black suspects cannot be an appropriate resolution.

“You have to hand it to the old bastard, he’s highly original.”

[ 48 ] November 25, 2014 |

The Republican Party has an exciting new health care plan out. Against all odds, it involves throwing millions of people off their health insurance so the affluent get more tax breaks. And most people with pre-existing conditions are out of luck. Oh, and tort reform and plenty of it! It is the Party of Ideas (TM), you know.

Why, I’m beginning to think that the Affordable Care Act isn’t really a “Republican” policy initiative…

You Forgot Bolton!

[ 114 ] November 24, 2014 |

Security policy HOT TAKES from Max Boot:

The immediate question is whether Obama will be able to stomach a stronger personality in the secretary of defense job–someone like Bob Gates or Leon Panetta. If so, Michele Flournoy or Ash Carter, both of whom served at the Pentagon earlier in the Obama administration, could fill the job description. But if Obama were truly intent on a radical break with some of his failed policies he would opt for a true outsider like Joe Lieberman or David Petraeus or John Lehman.

I dunno, I think I preferred the Boot who was a poor man’s Mark Levin to the one who’s a poor man’s Charles Krauthammer…

“Barry didn’t bring corruption to D.C. He changed who benefited from it.”

[ 12 ] November 24, 2014 |

A very good summary of the career of the late Marion Barry by Adam Serwer. One of many telling details:

Johnson resisted that impulse and appointed Walter Washington, who was easily defeated by Marion Barry in the city’s second elections in 1978. Rep. John McMillan, the Dixiecrat who chaired the House Committee on the District of Columbia until 1973, sent Washington a truckload of watermelons to “celebrate” his receipt of Washington’s first city budget. McMillan “treated the city as if it were his plantation and turned the District Building into a fiefdom for his own patronage jobs,” applying “applied taxes to construction projects at the behest of the white business community,” Jaffe and Sherwood wrote.

That Term “Due Process,” I Do Not Think…

[ 173 ] November 24, 2014 |

A Bill Cosby HOT TAKE:

But just because we don’t live in that utopia, we don’t then get the right to trash our venerable tradition of due process and simply eliminate the protections against false accusations or faulty memories.

Exposing anyone to a lifetime of liability because we feel sorry for a woman who says she was ashamed to tell that sordid tale of date rape, or a man who only found the courage to admit he’d been sexually violated in the sacristy 30 years after the fact, is as fundamentally un-American as you can get.

This is just 100% pure nonsense. Nobody is arguing that Bil Cosby is not entitled to due process rights. There is no “statute of limitations” on when people can discuss the bad behavior of others. Obviously, accusations of bad behavior may or may not be credible, but given the number of accuser in this case (some of whom made the complaints formally and contemporaneously), the point is essentially moot here. The chances that all of these women are lying are infinitesimal.

Flowers attempts to address this:

I’ve studied the claims of the women who say they were drugged by Cosby and then raped, and they all seem to follow a pattern: the women were either interns or mentored by the actor, went to his room to discuss some project, had a drink (or several) and then woke up after he’d allegedly attacked them.

They sound so similar that I’m reminded of the McMartin preschool case where children were coached to tell the sordid tales of being raped by their teachers. That story, which never gets the attention it deserves, turned out to be false. Lives were destroyed by opportunistic psychologists, parents who were naive enough to believe them, and a flock of media vultures who fed on the carcass of manipulation and lies.

Other than the notable lack of coaching, criminal prosecution, and children, the Cosby case and the McMartin case are exactly the same! The comparison is not merely specious but offensive and insulting. What evidence is there that these women are being “coached?” By who? The fact that their independent stories are similar is being used to impeach their credibility is, however, very special.

Rebecca Rose deals with similar arguments being made by Richard Stellar so I don’t have to.

Immigration Concern Trolling 2: Paul Ryan’s Empty Threats Edition

[ 30 ] November 22, 2014 |

Shorter Paul Ryan: The unprecedented tyranny of Emperor Obama issuing an unquestionably legal order as a term-limited elected official will prevent Congress passing upper-class tax cuts!

In addition to the obvious, Ryan’s response also highlights the silliness of #Grubergate, where the charge of “deception” revolves largely around CBO scoring. Ryan wants the CBO to use supply-side “dynamic scoring” to show tax cuts having magical stimulative effects they do not, in fact, have. Why, I’m almost beginning to think that a party that funded two rounds of upper-class tax cuts, two major wars, and a extremely inefficient Medicare expansion entirely through debt does not really care about the integrity of the CBO process!

BENGHAZI!!!!!!!!!!

[ 42 ] November 21, 2014 |

Looks like the revelation of the truth that Saul Alinsky was covering up for Hillary Clinton will have to wait for the next Gruber video.

Concern Trolling on Immigration I

[ 86 ] November 21, 2014 |

Via Edroso, we have warnings of TYRANNY coming from Damon Linker:

The rule of law is far more about how things are done than about what is done. If Obama does what he appears poised to do, I won’t be the least bit troubled about the government breaking up fewer families and deporting fewer immigrants. But I will be deeply troubled about how the president went about achieving this goal — by violating the letter and the spirit of federal law.

To grasp precisely what’s so galling about Obama’s proposed actions, it’s necessary to reflect on the nature of executive power and its permanent potential to become despotic.

The main problem with this argument is that Obama is not, in fact, violating the letter of the law. He just isn’t. The Ross Douthat posts that Linker links to have a lot about alleged violations of norms and slippery slopes, but as far as I can tell no argument that Obama is violating the text of the statue, because he isn’t. Nor are his actions even unprecedented. The arguments that his actions are unconstitutional are so weak that one-note anti-immigration crank Mickey Kaus concedes that for the Court to so rule would be analogous to Bush v. Gore.

All of this is standard issue. But what’s unique is that Linker goes on to defend George W. Bush’s actual violations of the U.S. Code and specific provisions of the U.S. Constitution by comparing them to Lincoln’s actions during an actual ongoing military insurrection. That’s how you concern troll, ladies and gentlemen.

Obama’s Immigration Order: Good Policy, Legal, And Doesn’t Establish A New Precedent

[ 35 ] November 21, 2014 |

I have a piece up on Obama’s immigration order. It’s formally legal, it’s good policy for the reasons Erik explains below, and while it’s not the ideal means of establishing the policy it’s the only game in town. In particular, I reject the idea that this establishes some kind of dangerous new precedent:

If the Republican party was at all interested in actual governance, a mediocre immigration reform proposal passed by Congress would be preferable to an executive order, which can be undone with the stroke of a pen after the next election (which will not have Barack Obama on the ballot). But that also undermines claims that Obama’s executive order represents “tyranny”.

Does using executive privilege to achieve immigration reform set a dangerous precedent? Well, long before Obama even ran for elected office – as Erwin Chemerinsky and Samuel Kleiner observed at the New Republic – Ronald Reagan “took executive action to limit deportations for 200,000 Nicaraguan exiles” and the first President Bush did the same for some Chinese and Kuwaiti citizens. At most, Obama’s actions differ only in degree, not kind.

In a more general sense, presidents have been pushing the limits of their constitutional authority since the beginning of the republic. If you had asked Thomas Jefferson in 1799 if the Louisiana Purchase was constitutional, he would almost certainly have said no – but we aren’t giving the land back. (Admittedly, sometimes I’m tempted to say that the US should look for the receipt and return some of those now-red states to France in exchange for a few dozen cases of Châteauneuf-du-Pape.)

It’s understandable for liberals to worry that just because Obama used his executive authority in this way, some future Republican president – like Rand Paul the Terrible, or Emperor Marco Rubio, or His Highness Ted Cruz – might push the limits of the law over the edge. But it’s pretty unhelpful, too.

Both the second Bush administration and the actions of Republicans in Congress make it abundantly clear that the next Republican in the Oval Office is going to push toward – and probably beyond – the limits of his legal authority, no matter what Obama does. (For instance, George W Bush’s warrantless wiretapping program, established by executive order, contradicted a statute outright, which Obama’s order does not.) If hypothetical president Rand Paul wants to refuse to enforce the Civil Rights Act, he’s not going to be dissuaded because Obama refused to act on immigration.

But read the whole etc. and discuss.

The Republican Health Care Pathology

[ 125 ] November 20, 2014 |

Reihan Salam has a long Slate article explaining why Republicans generally want to repeal the ACA, conceding that have no actual alternative to the ACA with any possibility of generating consensus with the party, and…not really dealing with the implications of the latter. The article does serve one useful purpose in explaining why there’s nothing “conservative” about the ACA. The section on Paul Ryan wanting to end Medicare is particularly useful in illustrating why assertions that the ACA is “neoliberal” are so nonsensical. If the status quo ante had been single-payer, it might make sense, but in the actual context calling the ACA “neoliberal” makes about as much sense as calling the Clean Air Act or Civil Rights Act “neoliberal.”

The key to Republicans on health care lies in Salam’s assertion that “[c]onservatives tend not to be enthusiastic about redistribution.” Brian Butler has a good response, and DeLong really gets to the heart of the issue:

As I see it, there are three possibilities:

1. Poor people don’t get to go to the doctor–and die in ditches.
2. Poor people get to go to the doctor, but the doctors who don’t treat them don’t get paid and have to scramble to charge somebody else via various forms of cost-shifting.
3. The government subsidizes insurance coverage for people of modest means by raising taxes on people of less modest means.

In my view, Slate’s editors seriously fell down on the job in not requiring that Salam say whether he thinks it is better to go for (2)–imposes in-kind taxes on doctors–or (1) rather than (3). The view on the left and in the center is that (1) is a non-starter. As Margaret Thatcher said back in 1993 when she visited Washington, DC: “Of course we want to have universal health care! We aren’t barbarians!” The view on the left and in the center and on the not-insane right is that (2) is profoundly dysfunctional and would prove extraordinarily inefficient. If Salam prefers (1), he should explain why Margaret Thatcher was a squishy leftist. If Salam prefers (2), he should explain why he disagrees with every single technocrat who knows about the health-care financing system.

Exactly right. If you don’t believe that non-affluent people should simply be left to die needlessly from illnesses and injuries, you have have to believe in redistribution. The only question is whether it will be relatively efficient and equitable or grossly inefficient and inequitable. (Given that Salam implicitly favors the latter, his assertion that conservatives are “particularly skeptical about redistribution that isn’t transparent” can only be seen as black comedy.)

The other striking thing about Salam’s article is how blind all the hand-waving about “markets” is to both theoretical and empirical objections. The cliches about how markets will control health care costs seem to be unaware that Ken Arrow ever existed. And more importantly, you would think from Salam’s article that health care policy was uncharted territory, that the problems presented by the American health care system in 2009 had never been addressed anywhere. In fact, every other liberal democracy has addressed them in ways that provide universal coverage for less and often much less money per capita than the American system. The burden of proof evidently lies squarely on those who would “solve” the problems of American health care by taking us further away from systems that produce better outcomes for less money. For obvious reasons, Salam just omits the discussion entirely.

Texas v. Justice

[ 44 ] November 20, 2014 |

Is Texas still going to execute a man who acted as his own counsel “dressed as a cowboy in a purple suit and a hat [and] attempt[ed] to call more than 200 witnesses, including John F. Kennedy, the pope, Anne Bancroft, and Jesus Christ?” Sadly, you probably know the answer to this question.

Here’s another telling detail:

Sonja Alvarado, his estranged second wife, tries to have him committed after Panetti comes after her with a knife. She takes his guns to the local police, but they return them, saying they have no legal right to prevent Panetti from having them.

For the record, at this point he had been hospitalized 14 times for mental health issues, and had buried his furniture in the backyard because it was possessed. Hard to see what harm would come from allowing him to possess firearms!

Why Affirmative Action Should Not Be Categorically Eliminated

[ 74 ] November 19, 2014 |

I have a piece up about the latest effort to get the Supreme Court to rule affirmative action unconstitutional in all cases.

To expand on one of the points I make there, the litigants have adopted the “grand bargain” justification for ending affirmative action — i.e. that schools who can’t consider race at all will attempt to achieve diversity through such means as eliminating legacy admissions and increasing scholarships to poorer students. The problem, as with most “grand bargains,” is that eliminating affirmative action will not in fact compel most universities to eliminate legacy admissions or increase need-based aid (and, indeed, most will not have the resources to do so.)

And even if I thought the policy arguments were more credible, I just don’t believe that either the Fourteenth Amendment or the Civil Rights Act makes affirmative action the equivalent of racial classifications intended to uphold a caste system.

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