Harrumph of the Will
On Thursday, columnist George Will took note of the Fair Share Health Care bill becoming Maryland law last week, and as his article's title -- Shoplifting as Governance --suggests, he didn't like it, not one little bit. After one of his standard opening gambits -- beguiling the gullible with a far-fetched historical analogy from the 18th century -- Will sniffs:

Maryland's grasping for Wal-Mart's revenue opens a new chapter in the degeneracy of state governments that are eager to spend more money than they have the nerve to collect straightforwardly in taxes. Fortunately, as labor unions and allied rent-seekers in 30 or so other states contemplate mimicking Maryland, Wal-Mart can contemplate an advantage of federalism.

Continuing, Will warns darkly:

States engage in "entrepreneurial federalism," competing to be especially attractive to businesses. A Wal-Mart distribution center, creating at least 800 jobs, that has been planned for Maryland could be located instead in more hospitable Delaware.

That's right -- you don't want to get into a rent-seeking contest with those guys!

Well.

Were it the case that the Wal-Mart workers showing up on Medicaid client lists were seeking, say, cosmetic surgery or crystal therapy, Will might have a bit of a point. Even though by strict free marketeer standards, even such frivolities cannot be gainsaid those who desire them, Wal-Mart might rightly protest that they shouldn't have to foot the bill.

If, on the other hand, those workers or their family members were seeking medical care that will enable them to work productively again, then Wal-Mart has been getting quite a good deal compared to the rest of the working world. While again, by strict "greed is good" standards, we cannot begrudge the worthy folk of Bentonville a good cry as their free ride comes to an end, neither can we quite hold it to be "shoplifting" by the Maryland legislature when they essentially require some co-payment for services rendered. Think of the 10,000 employees requirement as a "means test," and think of throwing a "welfare queen" off the dole, and perhaps we've reformulated things more to Mr. Will's liking.

Speaking of rent-seeking -- the "bending of public power for private advantage," by Will's definition a week earlier -- here's a great example noticed by Arkansas Times Blogs. As it happens, it's right in Wal-Mart's back yard of Bentonville, Arkansas:

Morning News reports that Bentonville is forging ahead with creation of a giant (2.8-square-mile) Tax Increment Finance District so that school taxes can be siphoned off to provide infrastructure to serve such areas as the Wal-Mart world headquarters, a world-class art museum being built with Walton money and land Wal-Mart has acquired for future development. Blight fighters at work, subsidized by taxpayers all over Arkansas.

The Morning News article explains, "A tax increment financing district temporarily freezes the amount of tax revenue that goes to schools, counties and other entities that are taxing undeveloped or blighted property within the district." Via Facing South, where Chris Kromm adds:

Nationwide, local governments have shoveled Wal-Mart over $1 billion in public money, according to a 2004 report from Good Jobs First.

If poor, blighted Bentonville knows what it must do to stay in its master's good graces, we must not second-guess that decision. But proud Maryland is not yet so far gone, nor may she ever be. And, as Will points out, there may be be more states like her in in the months ahead -- lawmakers in 30 states are reportedly preparing legislation similar to Maryland's. "Shoplifting as Governance"? Hardly. Rather, the days of "Freeloading as Business Model" may be drawing to a close. posted by Thomas Nephew at 12:38:00 AM -- |  

 
Joseph Onek on the NSA scandal and executive power
I went to a Drinking Liberally ("promoting democracy one pint at a time") gathering near Dupont Circle on Wednesday evening to listen to Joseph Onek, senior counsel to the Constitution Project. His topic was the issue of metastasizing executive branch power -- illegal warrantless NSA wiretaps, "fingers crossed" presidential signing statements and the rest of it.

Onek -- a former law clerk to Justice William Brennan, Senate staffer, and legal counsel to the Carter and Clinton administrations -- was impressive, delivering a half hour or so ad lib summary of the legal issues involved, primarily focusing on the NSA revelations. I learned that the Supreme Court once held (1928) that wiretaps didn't require a warrant under the 4th Amendment -- it wasn't a physical search. Only in 1967 did they decide (in Katz)* that the 4th Amendment protects people, not places, and shortly thereafter they held (Keith) that national security did not necessarily trump 4th amendment protections for American citizens.

Following Watergate, revelations of domestic spying led to the Church hearings, which culminated in the Foreign Intelligence Surveillance Act, or FISA. As is well known at this point, FISA set up a special court that could secretly issue warrants for wiretaps and electronic surveillance.

One thing I hadn't understood is that some provisions of FISA closed privacy loopholes, so to speak, in the 4th amendment itself. If I followed Onek, the Supreme Court has ruled that "pen register" surveillance without a warrant -- who is calling whom at what time, without actually listening in -- is constitutional under the 4th amendment. FISA does require a warrant, but the government must only show that "reasonable suspicion" exists, a less demanding legal standard than the 4th amendment's "probable cause" requirement.

Onek acknowledged that without knowing what the NSA program does in detail, opponents are at a disadvantage. While it may be "just" massive "traffic analysis" -- who in region A called who in region B more often than expected, which call seemed to trigger other calls -- that was probably not all that was going on, given that (a) you can get warrants for that kind of thing, too, under FISA, and (b) that Gonzales mentioned at his press conference that he was told legislative approval would not be forthcoming for this NSA program.

The Youngstown Sheet and Tube v. Sawyer case came up, too, of course; in this case, the Supreme Court held that Harry Truman couldn't seize some steel mills facing a strike -- despite needing steel for the Korean War -- because there were specific laws about how to settle strikes that Truman's action ignored. The most often cited formulation was that of Justice Robert H. Jackson. Wikipedia:

Jackson's opinion took a similarly flexible approach to the issue, eschewing any fixed boundaries between Congress' and the President's power. Jackson divided Presidential authority vis a vis Congress into three categories, ranked in descending order of legitimacy: (1) those cases in which the President was acting with express or implied authority from Congress, (2) cases in which Congress had thus far been silent, and (3) cases in which the President was defying local governmental or congressional orders. He classified this case as falling within the third category.

Bush and the NSA's actions would also seem to fall in the third category. Onek allows, as do most sensible folk, that there are conceivably Congressional resolutions and statutes that could and should be ignored by the president. In his thought example, a Congressional resolution demanding that the main invasion of Europe in World War II proceed via Sicily rather than Normandy could have been safely ignored by the president, because such a resolution would be too specific and direct an interference with the president's military role as commander in chief. The FISA law, by contrast, is an instance of Congress weighing national security, 4th amendment, and privacy policy concerns and crafting a definitive balance.

As I understood him, Onek leans to the view that the Bush administration was really trying to simultaneously eavesdrop everyone within 6 degrees of pen-register separation, so to speak, of the original phone number or numbers famously found in records in Afghanistan. The mere fact of a phone contact with a phone contact with a phone contact etc. would or at least should not constitute "probable cause" allowing eavesdropping or even "reasonable suspicion" -- hence, Onek believes, the Bush administration's failure to seek judicial or legislative approval.

Before ending his remarks, Mr. Onek suggested what he'd like to see happen in Congress. Rather than just let Arlen Specter's Judiciary Committee conduct a simple hearing that would turn into a Bush administration platform, he advocated demanding multiple hearings and a staff investigation of the NSA revelations. I agree; if you do, too, write your senators and representative about it.

Thanks to Mr. Onek for delivering his remarks, and to "Drinking Liberally" for arranging the talk.

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* Any misinterpretations of the meanings of these cases are my own, based on my hurried notes. I invite corrections from knowledgeable sources, and comments from everyone.

UPDATE, 1/23: Mr. Onek also wrote about this issue just before Christmas at the American Constitution Society's ACSBlog. posted by Thomas Nephew at 4:00:00 PM -- |  

 
Well, I think it's funny
Put your Security Helmet on -- message and photo from navysecurity.navy.mil:

SECNAVINST 5510.30A, CH 4, Para 4 - Once a year, all personnel who have access to classified information will receive a refresher briefing designed to enhance security awareness.

More imaginative security messages here.

Dumb blonde joke -- usually, the joke is about as dumb as the blonde's supposed to be, but this one's really pretty good. If you speak German, there's another good one here.

Kickback Mountain -- Greed is a force of habit.

Lanny Davis: Looks Liberal, Tastes like Chicken -- awesome headline from James Wolcott. Good post, too.

Instructions on how to clean your toilet -- 4. The cat will self agitate and make ample suds. Never mind the noises that come from the toilet, the cat is actually enjoying this.

From now on, I don't reply -- An unremarkable reaction to criticism -- unless of course it's by the ombudsman for the Washington Post. Remind me, what's an ombudsman's job again? Maybe Deborah Howell needs one.

Spot the Persecution (links added) -- Many Christians are complaining about being persecuted for their religious beliefs. Are you? Take this handy quiz to find out. [...]

3. In order to worship freely, [we] have been forced to
a) leave our homeland
b) fight long, bloody wars
c) spend centuries crusading for our rights
d) find a parking spot

W*A*N*K --

Through the fog of war I see
what I want, not reality
no suffering or casualties
I know that as I touch the keys…

[REFRAIN]:

that wankitude is shameless
and regime change is painless
and I best serve the war effort at home.

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NOTES: Security helmet via ArmsControlWonk, Kickback Mountain via Josh Marshall, toilet cleaning tips via Making Light's Particles section, Spot the Persecution via twisted chick; I also thank Ms. chick for mentioning my recent brush with the law. posted by Thomas Nephew at 12:30:00 PM -- |  

 
Gore takes on the unilateral executive
Al Gore's speech yesterday at Constitution Hall was exactly what I've been waiting to hear a major political figure say. I hope he enters the race for president in 2008. I'd work for Gore -- not Hillary, not Biden, not Warner -- in a New York second. Transcripts of his speech, "On the Limits of Executive Power," are available here (Yuba.net) and here, via the Washington Post and CQ Quarterly. Excerpts:

Congressman Barr and I have disagreed many times over the years, but we have joined together today with thousands of our fellow citizens - Democrats and Republicans alike - to express our shared concern that America's Constitution is in grave danger.

On Bush's lies:

During the period when this eavesdropping was still secret, the President went out of his way to reassure the American people on more than one occasion that, of course, judicial permission is required for any government spying on American citizens and that, of course, these constitutional safeguards were still in place.

But surprisingly, the President's soothing statements turned out to be false. Moreover, as soon as this massive domestic spying program was uncovered by the press, the President not only confirmed that the story was true, but also declared that he has no intention of bringing these wholesale invasions of privacy to an end.

At present, we still have much to learn about the NSA's domestic surveillance. What we do know about this pervasive wiretapping virtually compels the conclusion that the President of the United States has been breaking the law repeatedly and persistently.

A president who breaks the law is a threat to the very structure of our government.

On the threat of terror attacks:

The President and I agree on one thing. The threat from terrorism is all too real. There is simply no question that we continue to face new challenges in the wake of the attack on September 11th and that we must be ever-vigilant in protecting our citizens from harm.

Where we disagree is that we have to break the law or sacrifice our system of government to protect Americans from terrorism. In fact, doing so makes us weaker and more vulnerable.

On Bush's disrespect for the law, the Constitution, and common decency:

...the President has also declared that he has a heretofore unrecognized inherent power to seize and imprison any American citizen that he alone determines to be a threat to our nation, and that, notwithstanding his American citizenship, the person imprisoned has no right to talk with a lawyer-even to argue that the President or his appointees have made a mistake and imprisoned the wrong person.

The President claims that he can imprison American citizens indefinitely for the rest of their lives without an arrest warrant, without notifying them about what charges have been filed against them, and without informing their families that they have been imprisoned.

At the same time, the Executive Branch has claimed a previously unrecognized authority to mistreat prisoners in its custody in ways that plainly constitute torture in a pattern that has now been documented in U.S. facilities located in several countries around the world.

Over 100 of these captives have reportedly died while being tortured by Executive Branch interrogators and many more have been broken and humiliated. In the notorious Abu Ghraib prison, investigators who documented the pattern of torture estimated that more than 90 percent of the victims were innocent of any charges. [...]

The Dean of Yale Law School, Harold Koh, said after analyzing the Executive Branch's claims of these previously unrecognized powers: "If the President has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution."

Gore continued:

As a result of its unprecedented claim of new unilateral power, the Executive Branch has now put our constitutional design at grave risk. The stakes for America's representative democracy are far higher than has been generally recognized.

After reviewing past constitutional crises, Gore warned that the accumulation of presidential power, a permanent war footing, and the sheer power of massive surveillance and data mining might prevent the pendulum from swinging back to civil liberties as it has in the past. Gore added:

There is a final reason to worry that we may be experiencing something more than just another cycle of overreach and regret. This Administration has come to power in the thrall of a legal theory that aims to convince us that this excessive concentration of presidential authority is exactly what our Constitution intended.

This legal theory, which its proponents call the theory of the unitary executive but which is more accurately described as the unilateral executive, threatens to expand the president's powers until the contours of the constitution that the Framers actually gave us become obliterated beyond all recognition. Under this theory, the President's authority when acting as Commander-in-Chief or when making foreign policy cannot be reviewed by the judiciary or checked by Congress. President Bush has pushed the implications of this idea to its maximum by continually stressing his role as Commander-in-Chief, invoking it has frequently as he can, conflating it with his other roles, domestic and foreign. When added to the idea that we have entered a perpetual state of war, the implications of this theory stretch quite literally as far into the future as we can imagine.

This effort to rework America's carefully balanced constitutional design into a lopsided structure dominated by an all powerful Executive Branch with a subservient Congress and judiciary is-ironically-accompanied by an effort by the same administration to rework America's foreign policy from one that is based primarily on U.S. moral authority into one that is based on a misguided and self-defeating effort to establish dominance in the world.

The common denominator seems to be based on an instinct to intimidate and control.

On the courts:

The same instinct to expand its power and to establish dominance characterizes the relationship between this Administration and the courts and the Congress. [...]

The President's decision to ignore FISA was a direct assault on the power of the judges who sit on that court. Congress established the FISA court precisely to be a check on executive power to wiretap. Yet, to ensure that the court could not function as a check on executive power, the President simply did not take matters to it and did not let the court know that it was being bypassed. [...]

The President's judicial appointments are clearly designed to ensure that the courts will not serve as an effective check on executive power. As we have all learned, Judge Alito is a longtime supporter of a powerful executive - a supporter of the so-called unitary executive, which is more properly called the unilateral executive. Whether you support his confirmation or not - and I do not - we must all agree that he will not vote as an effective check on the expansion of executive power. Likewise, Chief Justice Roberts has made plain his deference to the expansion of executive power through his support of judicial deference to executive agency rulemaking.

On Congress:

It is the pitiful state of our legislative branch which primarily explains the failure of our vaunted checks and balances to prevent the dangerous overreach by our Executive Branch which now threatens a radical transformation of the American system.

I call upon Democratic and Republican members of Congress today to uphold your oath of office and defend the Constitution. Stop going along to get along. Start acting like the independent and co-equal branch of government you're supposed to be.

Gore didn't deny that terrorism poses a real threat, but asked:

Is our Congress today in more danger than were their predecessors when the British army was marching on the Capitol? Is the world more dangerous than when we faced an ideological enemy with tens of thousands of missiles poised to be launched against us and annihilate our country at a moment's notice? Is America in more danger now than when we faced worldwide fascism on the march-when our fathers fought and won two World Wars simultaneously?

It is simply an insult to those who came before us and sacrificed so much on our behalf to imply that we have more to be fearful of than they. Yet they faithfully protected our freedoms and now it is up to us to do the same.

Gore called for a special counsel to investigate the NSA lawbreaking, establishing new whistleblower protections for Executive Branch members reporting wrongdoing, comprehensive hearings in the House and Senate, denial of extension of the Patriot Act, and an end to telecom company cooperation with the illegal NSA program. He concluded:

As I stand here today, I am filled with optimism that America is on the eve of a golden age in which the vitality of our democracy will be re-established and will flourish more vibrantly than ever. Indeed I can feel it in this hall.

As Dr. King once said, "Perhaps a new spirit is rising among us. If it is, let us trace its movements and pray that our own inner being may be sensitive to its guidance, for we are deeply in need of a new way beyond the darkness that seems so close around us."

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UPDATE, 1/17: Huzzahs from Stygius, Digby, Sean Paul, The Carpetbagger, Kevin Drum, Avedon Carol, Glenn Greenwald, ReddHedd, Aziz Poonawallah (who's taking the debate to online Bush supporters). Glenn Reynolds, on the other hand, takes the lazy man's tu quoque approach. After citing others noting alleged Clinton/Gore administration improprieties, Reynolds sniffs, "Sigh. I remember when I used to be impressed with Al Gore. " I know the feeling: I remember with a blush that I used to be impressed with Glenn Reynolds.

MORE HUZZAHS: Will Bunch, Suburban Guerilla ("Draft Al Gore"), Atrios, Josh Marshall, Steve Clemons, Lambert. posted by Thomas Nephew at 12:56:00 AM -- |  

 
Department of followups: Maryland/DC edition
Ehrlich family values: cash over kids, July 1, 2005 -- Hard on the heels of the Fair Share Health Care veto override, another setback for Governor Ehrlich's (R-MD) pinched agenda. WJLA TV reports: [A] Montgomery County judge has ordered Maryland officials to restore health care assistance to 13 children who are legal immigrants but were removed from the state's Medicaid rolls last year. Circuit Court Judge Durke Thompson ruled that the state improperly denied the children coverage because of budget cuts and improperly singled them out because of their immigrant status. The ruling could be good news for the 4,000 other children affected by Governor Scrooge Ehrlich's decision.

Nutcracker on ice: dancers locked out, December 17, 2005 -- A January 9 PlayBillArts item reports that the Washington Ballet continues to play hardball with the dancers, refusing mediation by the Kennedy Center president Michael Kaiser. Ballet executive director Jason Palmquist also reportedly said the company would "'close down rather than accept the dancers' proposals' for setting the size of the company and limiting artistic director Septime Webre's right to fire dancers." This is reprehensible conduct by Palmquist, Webre, and their allies. As far as I'm concerned, even if they win, they lose with me: I won't ever attend another performance of theirs, and I'll support demonstrators against them. A January 7 article by the Washington Post's Sarah Kaufman reports that the dancers' unemployment claims have been denied, meaning that the dancers' view that they were locked out was not accepted by the DC unemployment office.

Bob Ehrlich: petty governor, petty threat, petty vision, July 28, 2005 -- The post referred briefly to Ehrlich's fatwa against two Baltimore Sun journalists, David Nitkin and Mike Olesker -- Ehrlich issued the edict that no government employee was to speak with either man following an article Nitkin published about selling state forest lands, and another in which Olesker criticized Ehrlich's use of state tourism ads for self-promotion, "but" added that an Ehrlich staffer "struggled to keep a straight face" when Olesker could not know whether that was literally true.

In early January, Olesker resigned in the wake of plagiarism allegations. The Sun had reacted quickly to an article ("Sincere Flattery?") by Baltimore City Paper's Gadi Dechter, who found a number of cases that seem to amount to Olesker grafting boilerplate prose from another article into his own. While Olesker acknowledges sloppiness, and this was the 2d instance of allegations being made, Dechter's findings seem to me less than meet the eye. I personally know that it's hard, for instance, to find ever new and unique ways to describe the Fair Share Health Care bill -- if Olesker hadn't used a Times reporter's phrase, he might have used a variant a Post reporter came up with later on. I'm not saying Olesker's resignation showed the "long arm" of the Ehrlich administration -- just that Olesker may have already been on shaky ground in part because of Ehrlich's unwarranted belly-aching, so that relatively minor mistakes may have had a relatively greater impact than they should have.

(Via Fired Up! Maryland, where my first take was more on the "glass half empty" side of this story.)


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UPDATE, 1/30: Great Dance Weblog provides a resource list, dated 1/6/2006, of news and blog articles about the Washington Ballet labor situation. posted by Thomas Nephew at 11:10:00 PM -- |