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Some Notes on Ziglar v. Abbasi

[ 27 ] June 20, 2017 |

Yesterday, the Supreme Court ruled that multiple Bush administration could not be sued for constitutional violations committed during the arbitrary, indefinite detentions after 9/11. A few points:

  • The Beltway rule about the Bush administration’s many illegalities remains that nobody can ever be held accountable for anything.
  • It’s worth noting that these immunity rules are purely judge-made. Kennedy, in a familiar argument, couches this judicial policy-making in the language of deference, suggesting that it’s up to Congress to determine whether executive branch officials can be held accountable for legal violations. But this is silly. The presumption should be that they’re liable for legal violations unless Congress says otherwise.
  • This is the latest iteration of a classic conservative bait-and-switch. It’s particularly dark comedy with respect to the Fourth Amendment. On the one hand, the exclusionary rule should be limited or eliminated because WHY SHOULD THE CRIMINAL GO FREE BECAUSE THE CONSTABLE HAS BLUNDERED and civil suits are a better remedy. On the other, conservative judges invent rules that immunize more and state officials from accountability for anything. 
  • Kennedy leans hard on national security justifications. But as Breyer observes, inter arma enim silent legēs has a pretty ugly track record. From the Adams to Wilson to FDR to Bush, national security has provided a pretext to deny rights to political opponents, dissenters, and unpopular racial minorities. The level of judicial deference Kennedy advocates has proven to be inappropriate again and again.



Name that Bothsiderist

[ 190 ] June 20, 2017 |

Who said it?

“There are differences between Clinton and Trump, no doubt, but they’re not different enough to save your life, to save your job, to save the planet,” [____________] told Politico. “We deserve more than two lethal choices.”

Bonus question: Name this laughing clown. (Hint – It isn’t the same person.)

“In some ways, Trump is one of the best things to happen to this country because look at how many people are getting off their posteriors,” said [____________]. “So part of me is giggling.”


Read more…

Erik Visits an American Grave, Part 90

[ 18 ] June 20, 2017 |

This is the grave of Charles McNary.

Born on a farm north of Salem, Oregon in 1874, Charles McNary grew up relatively poor after his father died when he was 9, but he moved up quickly in Oregon society due to an older brother who had gained some prosperity, plus getting to know Herbert Hoover, the only president to have spent significant time in Oregon. McNary took some courses as Willamette University and then went to Stanford in 1896, making him a relatively old student for the time. He only stayed there for a year before returning home and deciding to make a career in the law. He passed the bar in 1898 and along with his brothers, became part of the leading law firm in the state’s capital. He taught law at Willamette and then became dean.

McNary entered Oregon politics in the 1890s, becoming Marion County’s deputy recorder from 1892-96. He rose after returning to Oregon, becoming a relative Progressive who stayed within the Republican Party. He supported most of Oregon’s Progressive Era reforms around political campaigns and issues, including the initiative, referendum, recall, and direct election of senators. For this and being a loyal Republican in a time of reform, he was appointed to the Oregon Supreme Court in 1913, at the age of 38. But this was an elected office and he lost his campaign in 1914. He became chairman of the state Republican Party. After the death of Harry Lane, McNary was selected to fill his term in the Senate in 1917. He remained there until his death in 1944.

In the Senate, McNary quickly proved his mettle and became a protege of Henry Cabot Lodge. This gained him favorable committee assignments and soon he became arguably the most powerful politician in Oregon history (a low bar at this time, to be sure). Warren Harding asked him to take over as Secretary of the Interior after the Albert Fall scandal at Teapot Dome, but not being an idiot, McNary refused. He was selected as Minority Leader in 1933, where he actually supported a good bit of the New Deal and especially Roosevelt’s preparations for World War II. He also became a major proponent of government investment in hydroelectric dams, which would eventually help develop eastern Oregon by damming the Columbia River. McNary Dam on the Columbia is named for him. His name was on the Clarke-McNary Act, one of the most important bills in the history of forestry, which provided federal aid for fire protection, among many other things. He also pushed through the McNary-Haugen Farm Relief Bill, which while vetoed by the vile Calvin Coolidge, was also an important precedent for the Agricultural Adjustment Act by wanting to set price floors for farm products.

McNary became the Republican candidate for Vice-President in 1940, despite having little in common with presidential nominee Wendell Willkie. Of course, FDR wiped the floor with them. He remained in the Senate but was diagnosed with brain cancer in 1943 and died the next year. With Willkie dying shortly after, this is the only time in U.S. history that both members of a party ticket died during the period in which they would have served.

Charles McNary is buried in Belcrest Memorial Park, Salem, Oregon.

Sober Second Thoughts From the World’s Greatest Deliberative Body

[ 119 ] June 20, 2017 |

If you thought the problem with the AHCA was that the cuts to Medicaid weren’t savage enough, you’ll be pleasantly surprised:

A leading option in the Senate’s ObamaCare repeal-and-replace debate is to make even deeper cuts to Medicaid spending than the bill passed by the House, according to lobbyists and aides.

The proposal would start out the growth rate for a new cap on Medicaid spending at the same levels as the House bill, but then drop to a lower growth rate that would cut spending more, known as CPI-U, starting in 2025, the sources said.

That proposal has been sent to the Congressional Budget Office (CBO) for analysis, a Senate GOP aide said.

In addition to being a greedy attack on the poor, this is also a greedy attack on the disabled:

Most people think of Medicaid as a program for able-bodied, non-elderly adults and their children ― a form of “welfare” that some Americans tolerate and others resent because they think, rightly or wrongly, that it’s subsidizing people too lazy to work. But one-third of the program’s spending is on people with disabilities. Although they account for a much smaller fraction of Medicaid enrollees, there are roughly 9 million people in this category, and almost all have unusually severe health care needs. On average, Medicaid spends more than four times on somebody with disabilities than it does on an able-bodied adult.

As always, the lesson is that Hillary Clinton used a private email server.

The Marlow & Maher Civility Hour

[ 79 ] June 19, 2017 |

Bill Maher and Breitbart’s Alex Marlow had a chummy chinwag about free speech and where it should “pause”.

“If Obama was Julius Caesar and he got stabbed, I think liberals would be angry about that,” Maher remarked.

Had Maher asked an assistant to do a little research on this topic he would have known: He was and they didn’t.

“I don’t think they should have Trump playing Julius Caesar and getting stabbed, and I hate Trump. So we’re agreeing that there are some places where free speech does pause.”

I think sycophant to white supremacists suits Maher. It’s very him.

“It’s bad strategy certainly to put that out there because they all look like hysterical lunatics,” Marlow added.

Ah good, I was wondering when he was going to get to the projection. Dare I hope for some whining about frozen peaches?

Maher and Marlow also agreed that corporations under threat of organized boycotts should not have so much influence on free speech. Marlow pointed to his own publication in Breitbart and various anonymous campaigns of “misinformation” against the conservative publication that has led to many companies pulling ads from the site.

“What’s happened is that corporations are now deciding what’s free and fair speech, who can make a living, what opinions can make a living saying,” Marlow, 31, said. “Now you’re seeing the right fight fire with fire and want boycotts of when the left takes it too far in their Trump hatred.”

This is dumber than If you don’t speak at my kekifascist speech festival, you don’t support free speech.

“It’s a very dangerous path we’re on,” he added. “People on the left and the right who are free speech advocates need to come together and say that corporations are not going to define the First Amendment and free speech in this country.”

It would have been interesting if an intelligent person with a nose for bullshit and a backbone made of something stiffer than marshmallows had been present. That person might have asked something like Are you saying both sides should agree not to hold boycotts?

Unfortunately, there was only a smirking rubber hose that was afraid to disturb his guest with difficult questions.

“Do you think Breitbart with the politicization it is involved in, has any responsibility for the kind of violence that we see in our society, including what happened this week?” Maher asked.

“Absolutely not. As you know, the guy was a big Sanders supporter. I actually happen not to blame Bernie Sanders for it,” Marlow replied.

It would have been interesting if a non-comatose person who had done the teeniest bit of research on Breitbart had laughed in Marlow’s face. Or mentioned something like Pizzagate. But such a person would not have referred to what Blightshart gets up to as politicization.

2020 and the Democratic Message

[ 440 ] June 19, 2017 |

Sarah Jones argues that Sanders has a valuable role to play in the party going forward but probably isn’t the ideal candidate in 2020:

Still, there is a strong case for Sanders abstaining from making another presidential run. The first obstacle is obvious: He will be 79 next Inauguration Day. Basketball notwithstanding, advanced age is a vulnerability for any politician. This is particularly true of a politician who inhabits the Oval Office—and this critique applies to Joe Biden and other potential contenders of a certain age.

Second, while Sanders’s campaign ignited public interest in democratic socialism, he was hardly the perfect candidate. He could have been stronger on gun control, particularly at the beginning of the primary campaign. And he too often ceded ground on foreign policy to Clinton—an unnecessary failing, considering her deeply troubling record on the issue. These are questions that Sanders will have to answer all over again if he chooses to run in 2020, and they’re a reminder that there may be a better progressive candidate out there.

And there is the matter of his fame. Name recognition is key to victory, but it can also strangle movements. Sanders the individual now gobbles up so much airtime and column inches that he threatens to eclipse the American left, to its long-term detriment. This is hardly his fault, but Sanders must now consider the broader interests of the left.

Reasonable people can disagree about whether Sanders is the best messenger for 2020, and the issue will essentially take care of itself through the primaries. (Like Paul, I agree that Bernie’s age is a real issue, although not necessarily a dispositive one. Obviously Biden 2020 is a terrible idea.)  To echo what I said about health care earlier, the key takeaway here is that if only Bernie can carry his economic message, it can’t succeed legislatively anyway.  The better test of his effectiveness will be whether every viable aspirant for the Democratic nomination runs on a platform comparable to Sanders’s. Gillibrand’s close alliance with Bernie after the election suggests that this is highly likely.

Throw Sand in the Gears

[ 98 ] June 19, 2017 |

Chuck Schumer is finally slowing the Senate to a halt in response to the TrumpCare bill.

“If Republicans won’t relent and debate their healthcare bill in the open for the American people to see, then they shouldn’t expect business as usual in the Senate,” said Senate Minority Leader Charles Schumer (D-N.Y.).

Schumer said Republicans are “drafting this bill in secret because they’re ashamed of it, plain and simple.”

A senior Senate Democratic aide said that starting on Monday evening, Democrats will object to “all unanimous consent requests in the Senate,” though there could be a narrow exception for honorary resolutions.”

If Democrats stick to the tactics, they will be able to block any committees from meeting after the Senate has been in session for more than two hours.

Will be very interesting to see what happens here. Will it continue if the bill is forced through? How far will Democrats go? At what point will they start fretting about the norms of the Senate, as if they exist anymore?

Still, a good and necessary move.

Why, Yes, It IS Terrorism

[ 23 ] June 19, 2017 |


Just after midnight, London time, yet another attacker drove a van into a crowd of people, killing one and seriously injuring nine more. All of the victims were Muslims leaving their evening prayers in Finsbury Park.

This tragedy, on one hand, is disturbingly unsurprising, given the rise in terror attacks, virulent anti-Muslim sentiments, and hate crimes. What is surprising, on the other hand, is just how quickly and publicly this has been claimed as an act of terrorism.

There have been too many good and important pieces written on the heavy bias in reporting violence for me to begin offering links here. But we’ve all heard and/or voiced our own concerns about the way that violence by people with a particular set of physical characteristics is immediately denounced as terror, while white male mass killers are always something else (troubled, isolated, mentally ill…).

Coverage of the Portland train stabbings invoked “hate crimes,” but not terror (except, ironically, when the perpetrator himself denied being a terrorist). Even days after the attack, FBI was claiming that it was simply “too soon” to determine whether this was an act of domestic terrorism.

This morning’s killing of a Virginia teenager is, we are told, not even being considered as a hate crime (to be fair, details on this crime are still sketchy, but the victimization of a young veil-wearing Muslim woman certainly raises red flags). At the moment of writing, the Washington Post’s main page is carrying this headline just below their story on PM May’s insistence that the Finsbury Park attack was indeed an act of terror.

Now, it’s odd to find myself wanting to cheer any Theresa May statements, but props to her and everyone down to the local police who identified the attack as terrorism within eight minutes. The attacker, who was protected from angry bystanders by the local imam, is officially being held for terror offenses. May herself was quick to declare the violence “every bit as sickening” as other recent attacks.

It is awful and heart-wrenching for any community to reckon with this level of senseless and hate-filled violence. But calling terrorism by its actual name turns out to be easy enough.

Another Media Win

[ 73 ] June 19, 2017 |

NBC investing ungodly sums to hire Megyn Kelly so she can interview and legitimize lunatics is really working out well for the network.

According to early Nielsen data, the first 30 minutes NBC’s “Sunday Night with Megyn Kelly” was easily beaten by Fox’s U.S. Open Golf Championship coverage and CBS’s “60 Minutes,” which is in summer repeats.

The second half-hour of Kelly’s news magazine, after the Jones interview aired, fared even worse, finishing fourth in total viewers while tying ABC’s “America’s Funniest Home Videos” for third in the key 18-49 demographic networks covet most.

7:00 p.m.
ABC – “America’s Funniest Home Videos” (R): 2.2 rating/ 5 share (#4)
CBS – “60 Minutes” (R): 4.0 rating/ 9 share (#2)
NBC – “Megyn Kelly on Sunday”: 2.7/ 6 share (#3)
Fox – 2017 U.S. Open Golf Championship: 5.2/12 share (#1)

7:30 p.m.
ABC – “America’s Funniest Home Videos” (R): 2.5 rating/ 5 share (#3)
CBS – “60 Minutes” (R): 4.4 rating/ 9 share (#2)
NBC – “Megyn Kelly on Sunday”: 2.4 rating/ 5 share (#4)
Fox – 2017 U.S. Open Golf Championship: 5.2 rating/12 share (#1)

Kelly’s program averaged 3.5 million viewers and had a 0.5 rating among adults 18-49. The program produced the same numbers last week, which were down 42 percent since her debut three weeks ago featuring an interview with Russian President Vladimir Putin.

That’s most impressive bad performance since Joe Lieberman’s brag about his 3-way tie for 3rd in New Hampshire.

The AHCA and the Future of Universal Health Care

[ 134 ] June 19, 2017 |

There’s been a lot of discussion, including here, about Ezra Klein’s essay on how the AHCA has altered the political landscape. I mostly agree with it. While I don’t think he intended a hieghten-the-contradictions argument, though, I wish he hadn’t framed his argument as “if the AHCA passes, the Democratic Party will be committed to universal health care.” This will happen anyway, because even trying to pass the AHCA has revealed the Republican agenda to even the most stubborn apologists:

In fact, universal public insurance will be the consensus Democratic goal whether the AHCA passes or not.

The idea that the structure of ObamaCare would insulate it from political pushback was always based on a lie: that national Republicans would support good universal coverage as long as the market was involved. This has never been true. The Heritage Plan that is sometimes erroneously cited as the basic model for the Affordable Care Act was in fact a plan to replace Medicaid, Medicare, and employer-provided insurance with private insurance that would cover very little. Not only was it nothing like the ACA, in other words, it was an even more radically right-wing plan than TrumpCare. And while the legislation signed by Mitt Romney in Massachusetts was actually similar to the ACA, laws passed by supermajorities of New England Democrats tell us absolutely nothing about what national Republicans support.

Whatever Republicans pretend to believe when it looks like Democrats might be able to pass something, the actual Republican response to the uninsured has always been “tough luck.” The AHCA should stop the denial on this point, and make it clear that the Democrats should forget trying to pass legislation that Republicans can live with and just pass the best legislation they can, which means expanding public insurance as much as possible.

I’ve been howling into the void about this for a long time, but the idea that the ACA was based on “Republican ideas” is not just a lie, it’s an incredibly pernicious lie that has been very useful to the Republican Party. “We want what Democrats want, just with more market and a pony” has been the Republican line since the ACA was proposed. It’s finally been revealed as the bullshit it always was, but why so many liberals were happy to assist their con has always baffled me.

Stopping the AHCA is important, because progress will be a lot easier from the ACA’s Medicaid and tax baseline. Another thing to keep in mind is that while a lot of people act as if having a presidential nominee who favors universal health care is most of the battle, it’s more like 5% of the battle. Getting the consensus necessary to expand public insurance with an eye to universal health care means, inter alia, not preemptively rejecting converts:

First, supporters of universal health care need to be willing to take “yes” for an answer. Two potential Democratic nominees in 2020, Bernie Sanders and Kirsten Gillibrand, favored Medicare For All even before Obama was elected. This is definitely a point in their favor. But what is even more important is creating a norm in which every viable Democratic nominee is committed to universal public insurance. After all, a situation in which the president supports single-payer and 30 Democratic senators don’t like it will not produce single-payer. The left of the party has always favored universal health care, but it’s not enough. Major legislation requires a consensus.

If Congress is ever going to pass universal health care, or even take major steps in that direction, converts are going to be necessary. They should be accepted — and then held to their promises. Klein’s reporting suggests that more and more moderates are realizing that market-based compromises were a sucker’s bet, and this trend needs to continue.

The best outcome for universal health care would be Republicans trying and failing to gut the ACA. I’m increasingly pessimistic, but everything that can be done to stop it should be.


Su-22 Down

[ 118 ] June 19, 2017 |

So we got this going on:

A U.S. Navy F/A-18E Super Hornet from Carrier Air Wing 8 on board the USS George Bush shot down a Syrian Air Force Su-22 ground attack aircraft near Raqqa, Syria after the aircraft struck ground troops in Ja-Din, south of Tabqah, near Raqqa.

According to most sources it is the first time a U.S. combat aircraft has shot down a manned enemy aircraft in aerial combat in nine years.

The pro-Assad regime Syrian Su-22 that was downed had attacked Syrian Democratic Forces aligned with the U.S. led coalition and inflicted casualties on the friendly forces as they were driving south of Tabqah before it was intercepted.

Hopes that Trump would be anti-interventionist… may not be wholly rewarded. This is the latest of a series of quiet escalatory steps that the Trump administration has either undertaken or allowed to be undertaken in Syria; with the leeway that Trump has granted local commanders, the reasoning for these steps is unclear.

Russia is displeased.

Ever since the US started bombing ISIS targets in Syria, the Assad government and the US military have been involved in an uneasy, low-key, but generally productive collaboration, at least insofar as the remnant Syrian air defense network would avoid targeting US aircraft, and vice versa. There isn’t much left of that network now, but in any case we can expect altogether less cooperation moving forward.

And now: The dumbest thing anyone has ever said about freedom of expression.

[ 77 ] June 19, 2017 |

And if you don’t want to appear with a Nazi. You’re … NOT a Nazi. So there!

But the day is young. And I haven’t delved into the the event page yet.

Implying that the people who cancelled are attempting to disrupt the event is worth at least five finger kisses. Or 10 middle fingers.

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