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Single Payer and Mouths Already Stuffed With Gold

[ 6 ] December 22, 2014 |

This point from Sarah Kliff’s valuable account of why single-payer failed in Vermont is crucial:

In a way, the fact that America hasn’t taken serious steps to control health spending makes it particularly hard for the country to move to a single-payer system in the future. Our health-care system costs $2.8 trillion annually, about 17.7 percent of the entire economy. This is way more than any single-payer system anywhere in the world costs. Take Canada, where 11.2 percent of all spending goes towards medical care.

That’s the irony of America’s health-care system: its incredible failure to control costs makes change that much harder, because so many powerful players profit so handsomely from the status quo, and because rearranging the financing creates so many losers.

“If Vermont was spending 10 percent of its economy on health care, this would be hugely cheaper,” Schoen at the Commonwealth Fund said. “But that’s not the health care system they’re raising funds for.”

Another strike against single-payer systems, compared to other American health-care arrangements: they’re financed in an unusually transparent way. And arranging that financing, from scratch, often proves impossible.

As I’ve said before, the AMA is a much bigger barrier to European-style health care reform than the insurance companies. The status quo works very, very well for American doctors. In really favorable circumstances you might be able to buy off insurance interests, but buying off practitioners would require politically impossible levels of taxation (as well as undermining the cost controls that are a crucial reason for why single-payer is superior to the American system in the first place.) Aneurin Bevan’s “stuff their mouths with gold” strategy isn’t going to be viable given the American baseline.

Nothing that Barack Obama giving a few speeches couldn’t overcome, of course…

Ambition Will Facilitate Ambition By Passing the Buck

[ 7 ] December 22, 2014 |

Amanda Hollis-Brusky on the 70th anniversary of Korematsu:

In the events leading up to and including the Supreme Court’s decision in Korematsu, these safeguards built into the Madisonian machine broke down, giving way to both forms of T/tyranny. Congress not only acquiesced to President Roosevelt’s executive order, it responded with alacrity to support it. After just one hour of floor debate and virtually no dissent, Congress passed Public Law 503, which promulgated the order and assigned criminal penalties for violating it. And the branch furthest removed from the whims and passions of the majority, the Supreme Court, declined to second-guess the wisdom of the elected branches. As Justice Hugo Black wrote for the majority in Korematsu, “we cannot reject as unfounded the judgment of the military authorities and of Congress…” If Congress had been more skeptical, perhaps the Supreme Court might have been, too. But the Supreme Court has a long track record of deference to the executive when Congress gives express consent for his actions – especially in times of war. Unfortunately, under the Madisonian design, this is exactly when the Supreme Court ought to be the most skeptical of executive power.

To be sure, these checks and balances built into the Madisonian system were only meant to function as “auxiliary precautions.” The most important safeguard against T/tyranny would be the people themselves. Through a campaign of misinformation and fear-mongering, however, this protection was also rendered ineffective. Public opinion data was used selectively to convey the impression to both legislators and west coast citizens that the majority of Americans supported the internment program. The passions of the public were further manipulated by the media and west coast newspaper headlines such as “Japanese Here Sent Vital Data to Tokyo,” “Lincoln Would Intern Japs,” and “Danger in Delaying Jap Removal Cited.” Any dissent or would-be countervailing “factions,” to use Madison’s phrase, were effectively silenced.

The civics textbook version of the courts hold that they are a “countermajoritarian” check on the powers of the legislative and executive powers, an assumption that comes in positive (“courts can stand up for minority rights when nobody else will!”) or negative (“dictators in black robes usurping democratic prerogatives”) versions. But, in general, courts are unlikely to stray very far beyond the acceptable boundaries of elite opinion; they exercise meaningful power by picking sides on contested questions but will rarely interfere with an elite consensus. When the judiciary protects minority rights, it’s generally because there’s at least significant support for this minority right among political elites. When the support isn’t there, the courts will almost never act. Frankfurter’s “it’s not our fault that we’re ignoring the 5th Amendment” concurrence inadvertently explains the dynamic:

And, being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.

Evidently, the refusal to hold others accountable in a separation-of-powers system isn’t just for the courts, either.

You Can’t State the Obvious

[ 72 ] December 22, 2014 |


And now we can’t even acknowledge this plain truth? Astonishingly, it appears we can’t agree on it. Right around the time de Blasio spoke, Marist was in the field with a poll asking people whether they think police treat whites and blacks differently. Here are some answers. In each case, the “yes, differently” number comes first.

Overall: 47-44
Whites: 39-51
Blacks: 82-14
Latinos: 53-38
Democrats: 64-29
Independents: 44-48
Republicans: 26-64

So two decades’ worth of statistics tell us that black men are killed by police at 21 times the rate white men are, and yet half the public has persuaded itself that police treat blacks and whites no differently. And it’s controversial for a mayor with a black 16-year-old son to say something so obvious—indeed, what every parent of a black son has to say.

Authoritarian Gives Authoritarian, Erroneous Interpretation of Murders

[ 95 ] December 21, 2014 |

Rudy 9/11, ladies and gentlemen:


“We’ve had four months of propaganda starting with the president that everybody should hate the police,” Giuliani said during an appearance on Fox News on Sunday. “The protests are being embraced, the protests are being encouraged. The protests, even the ones that don’t lead to violence, a lot of them lead to violence, all of them lead to a conclusion. The police are bad, the police are racist. That is completely wrong.”

There’s a reason that Giuliani’s support in the the 2008 Republican primaries was inversely correlated with the amount of time he spent in a given state.

…nice to see paragon of integritude Bernie Kerik weighing in!

To State What Should be Obvious

[ 70 ] December 21, 2014 |
  • The idea that people who have protested acts of police brutality or unjustified force are responsible for these killings is absurd.
  • The reaction of people like the Sergent’s Benevolent Association and George Pataki is disgraceful and irresponsible.

How to Throw a Case

[ 56 ] December 20, 2014 |

Bob McCulloch is the master.

Presenting Guest Op-Ed Writer Samuel Beckett

[ 37 ] December 20, 2014 |

Shorter Fred Hiatt: “China and Vietnam prove that normalization of relations does not necessarily guarantee freedom. Therefore, we should maintain the embargo of Cuba, which has a superb 50-year track record of promoting freedom, with plenty of unnecessary impoverishment as a side benefit.”

A Critical Presidency

[ 133 ] December 20, 2014 |

Ygelsias is correct here:

On November 26, the Obama administration put forward new anti-smog regulations that should prevent thousands of premature deaths and heart attacks every year. About two weeks later, Obama’s appointees at the Federal Reserve implemented new rules curbing reckless borrowing by giant banks that will reduce profits and shareholder earnings but increase the safety of the financial system. Yet both of these were minor stories compared to normalizing relations with Cuba after decades and his sweeping plan to protect millions of unauthorized immigrants from deportation. Somewhere in the meantime, Democrats broke the congressional logjam and got a whole boatload of nominees confirmed.

It has been, in short, a very busy and extremely consequential lame-duck session. One whose significance is made all the more striking by the fact that it follows an electoral catastrophe for Obama’s party. And that is the Obama era in a microcosm. Democrats’ overwhelming electoral win in 2008 did not prove to be a “realigning” election that handed the party enduring political dominance. Quite the opposite. But it did touch off a wave of domestic policymaking whose scale makes Obama a major historical figure in the way his two predecessors won’t be.


In an excellent November 26 article, Coral Davenport observed that Obama will likely “leave office with the most aggressive, far-reaching environmental legacy of any occupant of the White House” even though “it is very possible that not a single major environmental law will have passed during his two terms in Washington.” The Clean Air Act of 1970 simply turns out to be a very powerful tool crafted by very ambitious legislators, who wanted to make sure future administrations would be able to address not-yet-foreseen environmental problems. He’s used that law to issue a “series of landmark regulations on air pollution, from soot to smog, to mercury and planet-warming carbon dioxide.”

In his second term, Obama has also managed to get a record number of judges confirmed thanks to Democrats’ use of the nuclear option to reduce filibustering. When Obama took office, 10 of the 13 appeals courts had Republican majorities — today only four do

As I’ve said before, the only two presidents who can even arguably been said to have presided over a more substantial body of progressive policy-making in the last century are FDR and LBJ, and both did so in significantly more favorable contexts.

Worst. Letter. To. Penthouse Forum. Ever.

[ 70 ] December 19, 2014 |

Yikes, Paul Berman writes terrible porn:

I think that anyone who sits down to read the Wieseltier decades of critical reviews in The New Republic will notice that at some mysterious philosophical level a great many of those hundreds of essays seem to cohere. It is not because they display a particular ideological bent or follow a political line. Something deeper is at work, which I do not know how to describe. (It is a task for a philosopher-historian.) I note a nearly uniform predisposition against the doctrines of determinism, whether they be scientific or economic or identity-political. There has always been, in any case, an intellectual ardor, as if the entire “back of the book” were asmolder with passion—a passion for the creative labors of certain species of writers and artists and thinkers. For the uncorruptible ones, for the ones-of-a-kind, for the people who are allergic to fads and factions and the stratagems of self-advancement. Perhaps the entire section has been animated by the belief, keen and insistent and unstated, that humanity’s fate lies in the hands of those people. This is not the sort of belief that researchers will declare one day to be scientifically confirmed. But it has the advantage of generating a hot-blooded criticism—occasionally cruel or trigger-happy, but always intense, which means thrilling.

Look, I think the New Republic circa 2014 was a very fine magazine, and I’ve also said many times that Wieseltier’s back-of-the-book was generally good and useful even when the political content of the magazine was dubious-to-actively-pernicious. But this kind of purple-prosed overselling of its virtues tempts me to join with the critics happy to celebrate at the funeral. It was a well-edited book review section that good work out of a lot of good writers and critics, as well as its share of misfires (it was TNR that briefly loosed Lee Siegel on to the wider world, let us remember.) That’s far from a negligible virtue, but let’s calm down with the “asmolder with passion” and “intellectual ardor” and “ones-of-a-kind,” shall we?

Or perhaps I should have started with “humanity’s fate lies in the hands of those people” instead, because it reminds us how and why Berman permanently destroyed his reputation by falling for one of the most transparent and destructive cons in known human history. For public intellectuals like Berman and Hitchens and Ignatieff support for the Iraq catastrophe was above all a form of self-aggrandizement; as FDR and Churchill Bush and Blair were saving us from the new Nazis overruling Europe, the hacks that supported them believed themselves to be the new Orwells. As it turns out, a strong belief that the fate of the world rests in your hands tends to be highly inconsistent with clear thinking, with ghastly results.

And then there’s this:

There is also the fact that, if you were to print out a roster of critics who contributed notable essays over the years to The New Republic’s back of the book, the roster would differ significantly from what you may have been led to expect by the accusations of racial or male exclusivity that have just now been tossed at the magazine. But discoveries and diversities do not sum up the achievement.

The first thing you’ll note is that this rebuttal to serious charges about a lack of diversity remains at the level of a bare assertion; he can’t even be bothered to rustle up some random examples. (In terms of brilliant stuff TNR’s culture section has published by women, I can give him a head start: try Adelle Waldman on Revolutionary Road, Ruth Franklin on Freedom, Martha Nussbaum on Harvey Mansfield, Deborah Friedell on Neal Stephenson.) But this is an empirical question, and as it happens in 2013 4 out of 59 bylines in the book review were female, in 2012 it was 9 out of 88, and in 2011 it was 11 out 82. This stands out even among the dismal standards of the industry — the gender diversity of the TNR back-of-the-book was terrible and actually getting worse, although Franklin has been one of the writers most responsible for bringing attention to the problem. And if the book review has a better record than the front-of-the-book in terms of racial diversity, that would be because it would be nearly impossible to be worse. Berman’s casual hand-waving away of the problem illustrates why it persists.

Hack Republican Judge of the Day

[ 16 ] December 19, 2014 |

Arthur Schwab.

The War on (Some Classes of People Who Use Some) Drugs Is Also A War on the Fourth Amendment

[ 25 ] December 18, 2014 |

I am working on a longer piece about how Sotomayor has emerged as the leading civil libertarian voice on the Court.  But in the meantime, read Lithwick on the case that came down Monday,  in which the Court held that a search of a motorist who was not in fact doing anything illegal was nonetheless “reasonable” under the Fourth Amendment.  Sotomayor, alas, was the only dissenter.  Her opinion merits quotation on several points:

Departing from this tradition means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down. Traffic stops like those at issue here can be “annoying, frightening, and perhaps humiliating.” We have nevertheless held that an officer’s subjective motivations do not render a traffic stop unlawful. But we assumed in Whren that when an officer acts on pretext, at least that pretext would be the violation of an actual law. Giving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated significantly expands this authority. (“There is scarcely any law which does not admit of some ingenious doubt”). One wonders how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.


Of course, if the law enforcement system could not function without permitting mistakes of law to justify seizures, one could at least argue that permitting as much is a necessary evil. But I have not seen any persuasive argument that law enforcement will be unduly hampered by a rule that precludes consideration of mistakes of law in the reasonableness inquiry. After all, there is no indication that excluding an officer’s mistake of law from the reasonableness inquiry has created a problem for law enforcement in the overwhelming number of Circuits which have adopted that approach.


While I appreciate that the Court has endeavored to set some bounds on the types of mistakes of law that it thinks will qualify as reasonable, and while I think that the set of reasonable mistakes of law ought to be narrowly circumscribed if they are to be countenanced at all, I am not at all convinced that the Court has done so in a clear way. It seems to me that the difference between qualified immunity’s reasonableness standard—which the Court insists without elaboration does not apply here—and the Court’s conception of reasonableness in this context—which remains undefined—will prove murky in application. See ante, at 11. I fear the Court’s unwillingness to sketch a fuller view of what makes a mistake of law reasonable only presages the likely difficulty that courts will have applying the Court’s decision in this case.

*  *  *

To my mind, the more administrable approach—and the one more consistent with our precedents and principles—would be to hold that an officer’s mistake of law, no matter how reasonable, cannot support the individualized suspicion necessary to justify a seizure under the Fourth Amendment. I respectfully dissent.

The second-to-last paragraph seems to be directed at the Kagan/Ginsburg concurrence, which urges that the holding be applied narrowly. I am not at all optimistic that this is how lower courts will in fact apply the holding in this way. It seems more likely that the case will be used to give more and more leeway to the police despite the paucity of evidence that legitimate law-enforcement objectives are being served. I also note that Scalia’s stated preference for clear, applicable rules has once again been trumped by the pot-smoking hippie exception to his various alleged principles.

But He Totally Bully Pulpited the Overton Window!

[ 55 ] December 17, 2014 |

Thank you Ted Cruz:

Over the weekend Sen. Ted Cruz (R-TX) went to battle with Democrats, but his gambit backfired and ironically gave Senate Majority Leader Harry Reid (D-NV) and President Barack Obama an unexpected Christmas gift.

It began on Friday evening, when Reid and Senate Minority Leader Mitch McConnell (R-KY) were close to securing an agreement to quickly vote on the $1.1 trillion “CRomnibus” spending bill to avert a government shutdown. Cruz, along with Sen. Mike Lee (R-UT), blindsided Republican leaders by objecting and dragging out the process as they demanded a vote to defund Obama’s executive actions on immigration.

What Cruz didn’t count on was Reid instead seizing on the occasion — which forced the Senate to stay in session for procedural votes — to move forward with starting the confirmation vote clock on a whopping 24 Obama nominations that otherwise might have been jettisoned. The Texan’s tactic angered numerous Republican colleagues.

“I think most Republicans think that Christmas came early for Democrats,” Sen. Lindsey Graham (R-SC) said, according to Roll Call, blaming Cruz. “I haven’t seen Harry smile this much in years, and I didn’t particularly like it.”

I’ve said before that I wished more movement conservatives shared the bizarre fetish for third parties that some people on the left have, which would produce a much better political world. But at least Cruz and Lee seem to be bringing some of this strategic illogic to legislative tactics.

Of course, there’s a bigger related story — namely, the effects of the postmature decision to end the filibuster for judicial nominees:

If there’s one thing from 2014 that will define President Barack Obama’s legacy after he’s left the White House, it’s the number of lifetime judges he put on the federal bench.

In its final act of the year, the Senate blew through a dozen U.S. district court nominees on Tuesday night. That puts Obama at a whopping 89 district court and circuit court confirmations for the year, and means he’ll wrap up his sixth year in office with a grand total of 305 district court and circuit court confirmations — a tally that puts him well beyond where his predecessors were by this point in their presidencies.

President George W. Bush confirmed just 32 district court and circuit court judges during his sixth year in office, according to data provided by Alliance for Justice, a progressive advocacy group focused on the federal judiciary. President Bill Clinton confirmed 65 judges in his sixth year. In total, Bush confirmed 256 district and circuit court nominees after six years in office, Clinton confirmed 302, and President Ronald Reagan confirmed 295. Those numbers include a handful of Court of International Trade confirmations.

Senate filibuster reform played a major role in Obama’s spike in judicial confirmations this year. Democrats changed the rules last year to require a simple majority, or 51 votes, instead of 60 votes to advance most judicial nominees. They made the change in response to Republicans abusing the filibuster rule to block several of Obama’s nominees — even noncontroversial picks.

And tying the two together, as Bernstein points out this was made possible by a much broader group of Republicans engaging in Cruz-style tactics that managed the enormously difficult task of convincing even Pat Leahy that the filibuster for most judicial and executive branch nominees had to go. It’s not quite the same thing — thinking that Senate Democrats had no breaking point at all was an understandable mistake — but Republican overreaching consistently played into Reid’s hands for the last two years.

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