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Arbitrary Executive Power Hack Watch

[ 6 ] February 21, 2008 |

Julian Sanchez is probably right that in order to refute Andy McCarthy’s claim that the Sixth Circuit rejecting the ACLU’s standing to sue over the the Bush administration’s wireless wiretapping (and then the Supreme Court rejecting the appeal) demonstrates that the program is constitutional on the merits one needs merely to restate it. But just in case Tim Lee gives the long version. I’ll add that if anything the fact that the two Republican judges rested on standing if anything suggests that the program isn’t constitutional; if they believed the program to be constitutional they could have granted standing — as the dissenting judge plausibly did — and simply upheld the program on the merits. Although it’s possible in theory that the two conservative judges felt the program was constitutional but decided to rest on an illogical standing argument instead, it seems rather unlikely.

I’d have to say this may be my favorite example of McCarthy’s hackery since he suddenly reversed course and discovered in 2005 with no textual or logical support that filibusters of judicial nominees are unconstitutional. If all goes well, I think we can expect him to revert back to the correct position in roughly January of 2009.



[ 27 ] February 21, 2008 |

From what I can gather, at least from the standpoint of someone who has never thought John McCain had any particularly high level of integrity and could care less even if unsubstantiated implications that he might have had sex with someone not his wife are true, this is about as much a “blockbuster” as The Hottie and the Nottie. I just don’t see anything remotely surprising or, with the exception of the well-known Keating scandal, terribly important (although perhaps this portends something else or its political impact will be greater.) And although one might take solace from the fact that the Times is actually taking on the Straight Talkitude Express, the fact that they let his campaign kill an apparently more substantive version dilutes this.

Publius has more. In a rational world, I would agree that it’s “hard to imagine the NYT (after institutional deliberation) going forward with such an explosive article with such a thin foundation,” but when we’re talking about the former employer of Jeff Gerth and Judy Miller this isn’t necessarily true.

Today In Media Sexism

[ 7 ] February 21, 2008 |

The bad news is that Neil Cavuto discussed Hillary Clinton’s “kind of bitchy image.” The good news is that it was on Faux Business, so nobody was watching.

Exclusionary Rule Back On the Chopping Block

[ 12 ] February 20, 2008 |

I cringe whenever I see that the Roberts Court is taking a case like this:

In theory, a criminal-law doctrine known as the exclusionary rule forbids prosecutors from using evidence obtained by the police as the result of an improper search. In practice, the rule has significant exceptions, like for evidence obtained in good faith through reliance on an invalid search warrant or as the result of erroneous information from a court official.

Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.

The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.

As Greenhouse points out, the disdain expressed for the exclusionary rule in the Hudson decision last year, which in yet another manifestation of the War On (Some Classes of People Who Use Some) Drugs being where civil liberties go to die refused to apply the exclusionary rule to illegal “no-knock” searches, makes clear that this decision is unlikely to be favorable to the protection of civil liberties. The Rehnquist Court has already held that — for no remotely convincing reason — the exclusionary rule shouldn’t be applied when the illegality was the result of a bad warrant rather than directly illegal police behavior. It seems pretty obvious that an even more reactionary court that illegal behavior by one branch of the police won’t require evidence obtained by other police officers as the result of the illegality to be suppressed. The fake-minimalist Roberts Court won’t overturn the exclusionary rule, just continue to gut it.

I explained last year why I think reducing the exclusionary rule to an empty shell is a bad thing. To repeat, “[w]hen Congress passes the “Ice Cream Castles In The Air. And A Pony!” act creating an effective, viable civil remedy for this particular violation of the 4th Amendment I might happily join” opponents of the exclusionary rule, but until then it’s the best remedy available. And it’s misleading to claim that the rule can’t benefit innocent victims; this is true in individual cases, but the larger effect of the exclusionary rule is to encourage professionalism and legality by the state by removing incentives to violate rights. The trend of the Rehnquist and Roberts Courts making it clear that the police can usually find a way to get illegally obtained evidence admitted creates the opposite incentives.


[ 28 ] February 20, 2008 |

Obama with a convincing win. But it doesn’t count because it’s a caucus there are too many black people there aren’t enough black people the state is too small. Now, if he wins a state with one candidate on the ballot and no campaign, then he might have something. Also, I have been informed that unlike most politicians he — and I don’t mean to shock you — does not personally write all of his own material. It’s only a matter of time before this crucial issue catches up to him.

The Summers Principle, In Graphic Form

[ 0 ] February 19, 2008 |



Clinton Rules

[ 24 ] February 19, 2008 |

Dr. Black:

I wonder when Politico will give us the “scoop” that Clinton is planning to hire the hit man who killed Vince Foster to take out all of Obama’s delegates.

As has been established at interminable length, I”m more than willing to point out actual examples of dirty tactics or incompetence from the Clinton campaign, but progressives really should be careful before accepting the truth of anonymously sourced articles in Drudgico.

The Federalism Dodge In Historical Perspective

[ 9 ] February 19, 2008 |

Dave’s post on Confederate nostalgia premised on an imaginary commitment to “States’ Rights” reminds me that one reason why John Marshall Harlan’s dissent in the Civil Rights Cases is one of my very favorite in the U.S. Reports is that he not only anticipated the bogus “special rights” argument but in contrasting the Court upholding the Fugitive Slave Acts and striking down the Civil Rights Act was also an incisive critic of the federalism dodge:

With all respect for the opinion of others, I insist that the national legislature may, without transcending the limits of the Constitution, do for human liberty and the fundamental rights of American citizenship what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and recover his fugitive slave, were legitimate exercises of an implied power to protect and enforce a right recognized by the Constitution, why shall the hands of Congress be tied so that — under an express power, by appropriate legislation, to enforce a constitutional provision granting citizenship — it may not, by means of direct legislation, bring the whole power of this nation to bear upon States and their officers and upon such individuals and corporations exercising public functions as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land?

Amazingly, the same faction that seceded in 1861 strongly favored the Fugitive Slave Act in 1850, although the wording of the Fugitive Slave clause and its placement in Article IV rather than Article I suggests that the rendition of fugitive slaves was a state rather than federal responsibility. (An argument can be made for the constitutionality of the law, but it certainly wouldn’t be made by someone with a serious commitment to narrow federal power.) And this was part of a completely consistent pattern. Mark Graber’s recent book is good on this, but until demographics shifted in favor of the free states most Southerners were advocates of strong federal power — John Calhoun started as a nationalist, Jefferson may have been tortured by the Louisiana Purchase but most of his supporters weren’t (and even he went ahead with it), and so on. The relevant principle the slaveholding states adhered to is straightforward: the protection of human bondage. When the federal government advanced the interests of slaveholders, they advocated strong federal powers; when the federal government didn’t advance those interests, all of a sudden the rights of the states were paramount.

And, of course, has been consistent from Reconstruction onward as well. Pro-apartheid Southerners who claimed that Brown v. Board was an outrageous arrogation of federal power generally didn’t object to the Tennessee Valley Authority, constitutionally dubious federal persecution of communists, federal spending programs as long as most of the benefits went to white people, etc. Almost everybody who purports to want abortion “sent back to the states” favors every federal abortion regulation to come down the pike. And so on. “Federalism” has never been an especially important independent factor in American politics; much more commonly, it’s a way of advancing substantive claims you’d rather not defend on the merits.

Hillary Clinton, Machiavellian Super-Genius

[ 50 ] February 18, 2008 |

I recently said that one shouldn’t be too harsh on the Clinton campaign, but this may have been premature:

Good lord, let’s see if I have this right. The Clinton campaign decides to cede every post-Super Tuesday state to Obama under the theory that Texas and Ohio will be strong firewalls. After – after – implementing this Rudy-esque strategy, they “discovered” that the archaic Texas rules will almost certainly result in a split delegate count (at best).

While they were busy “discovering” the rules, however, the Obama campaign had people on the ground in Texas explaining the system, organizing precincts, and making Powerpoints. I know because I went to one of these meetings a week ago. I should have invited Mark Penn I suppose. (ed. Maybe foresight is an obsolete macrotrend.)

I dunno, if I were paying someone upwards of $2 million for consulting I might expect them to, say, know the basic delegate allocation rules of states that might determine the nomination. Maybe they think that the “states that Mark Penn considers insignificant don’t count” rule will be applied ex post facto right after they count the delegates from the Michigan and Florida straw polls.

These errors are particularly problematic given the extent to which cases for Clinton depend on her allegedly greater political savvy, something that is more often asserted than demonstrated (which is pretty much inevitable when Mark Penn, Union Buster (TM) is running your campaign.) It’s true that the campaign can be seem as “tough,” but not in ways that are effective; leaving delegates on the table while you focus on futile strategies like trying to steal votes in Michigan or expect superdelegates to reverse a clear victory really wasn’t a good idea. But this is one good thing about a competitive primary: the proof of the pudding is in the eating.
If assertions about Clinton’s allegedly brilliant strategic skillz continue to prove false, she won’t be the nominee.

Straightforward Answers To Bizarre Questions

[ 25 ] February 17, 2008 |

I wish I was making this up, but:

The inference is that by winning the small red states with caucuses, but not the big blue states like California and New York, Obama is likely to repeat McGovern’s blowout in the general election.


Any thoughts on the validity of this scenario?

It is wholly invalid.

Really, the fallacy here is transparent; indeed, I can’t believe that someone as smart as Merritt believes this is serious. By the same logic, Clinton will go down to a crushing defeat because she can only get a small fraction of the African-American vote. The fact that Obama has lost a couple states that Democrats reliably win by 15 or 20 points in a Democratic primary means absolutely nothing in the general, just as Hillary Clinton would obviously not struggle to win Illinois or Connecticut or Maryland. (Inferences about Obama’s ability to win solid-red states would be similarly invalid, but I think there’s a hack gap here; I don’t recall seeing a prominent Obama supporter talking about how he’s going to carry Alabama and South Carolina — after all, Jimmy Carter won them in 1976! Correct me if I’m wrong.) And to repeat what I’ve said before, to the extent it means anything (which probably isn’t much) Obama’s greater strength in states that aren’t Democratic electoral college locks is clearly a point in his favor in the general election, although one can reasonably argued that this is balanced by Clinton’s apparently greater appeal in a swing state such as Florida. At any rate, one cannot infer from Obama losing California to Clinton that he would do less well against a Republican, and even it was true who cares if the Democrats win the state by 18 or 14 points anyway?

Really, people need to keep some perspective here. Either Clinton or Obama would almost certainly be better candidates than John Kerry, and Kerry won 251 electoral college votes against a wartime incumbent in a decent economy. We can argue about which one is marginally better, but the Dems are in good shape either way, and bringing George McGovern into the discussion is simply absurd.

Spurious Invocation of Sexism of the Day

[ 158 ] February 16, 2008 |

I would like to think that this is too obvious to need pointing out, but as Hilzoy and Cole note, the idea that there’s some nefarious sexism lurking in Obama’s boilerplate statement that “I understand that Senator Clinton, periodically when she’s feeling down, launches attacks as a way of trying to boost her appeal” is a)farcical, particularly when one views the whole context of the remarks, and b)undermines attempts to point out the extensive and genuine sexist attacks that Clinton has actually received. And since I’m sure some conservative will pick up on this and start tutting about those feminists and their p.c. or some such, I’ll also add that as far as I can tell the group of people making this argument are best described not as “feminists” (although some may be as well) but “people who have extensively demonstrated that they’re completely in the tank for the Clinton campaign.”

…although I would like to have the context of the remark, I would agree that this is much more plausibly described as offensive, and I would hope that Obama wouldn’t use the phrase again.

…UPDATE: I should also note that, as you can see in comments, several very smart bloggers who (unlike Armando) have much more extensive records of calling out sexism than carrying water for Clinton also find Obama’s comments objectionable. So the last line of the original post no longer applies, and their arguments should be seriously considered. On the other hand, many good feminists don’t find the comments objectionable, and I’m still unpersuaded.

Economics Writers: Should Understand Collective Action Problems

[ 1 ] February 16, 2008 |

Megan McArdle cites a story finding that a fund permitting Virginians to send more money to the government voluntarily raises little revenue. What lesson does she derive from this?

This is what economists call “revealed preference”. What most of us are really in favor of is higher taxes on other people. If we wanted higher taxes on ourselves, we’d give the money to charity.

If I may be permitted to state the obvious, it reveals no such thing (unless it’s supposed to reveal the trivial point that nobody would want to pay taxes if necessary public services could be funded with money grown by magic ponies.) For some reason, a lot of conservatives think “if you think taxes should be higher, why don’t you send more money to the government?” is some incredibly clever rejoinder, but it’s deeply silly. Rather, most people intuitively understand the concept of free riding: unless you’re Bill Gates, no money you send to the government is going to pay for the provision of an important public good, and moreover it would also be very unfair for you to pay for a public good while your similarly situated neighbor with the ability to pay takes advantage of the public good without contributing. Hence, those mean Upper West Side Liberals (TM) who drove Adam Bellow to edit unreadable books for a living don’t send unsolicited money to the government but are perfectly willing to support politicians who raise their taxes and oppose politicians who cut them. This behavior is, of course, perfectly rational.

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