Shorter New York Times: “Filibustering Presidential Nominees on the Basis of Ideology Is Bad, Except When It Isn't”

From yesterday's New York Times editorial:

After years of growing Republican obstruction — legislation blocked, judicial candidates forced to withdraw, presidential nominations left to languish, government agencies rendered powerless by denying them leaders — Senate Democrats say they are finally ready to take action. Barring a last-minute deal, Harry Reid, the majority leader, said he would move to change the Senate rules on Tuesday to ban the filibuster for executive appointments.

This is a relatively modest step toward returning basic governance to the chamber. It does not change the 60-vote requirement that Republicans have made routine for virtually all legislation, perverting the majoritarian vision of the Constitution. It does not ban the filibuster for judicial nominees, though we wish it did because Republicans are still holding up too many federal court candidates.

Nonetheless, Mr. Reid’s move would be an extremely important reassertion of majority rule, finally allowing a president’s nominees to cabinet departments and other agencies to come to a confirmation vote. The president’s right to assemble an executive team without encountering ideological litmus tests from the Senate is fundamental, as history shows. From the Eisenhower to the Ford administrations, there were no filibusters of executive nominees. Over the next 32 years, there were 20.

From the New York Times, March 6, 2005:

The White House's insistence on choosing only far-right judicial nominees has already damaged the federal courts. Now it threatens to do grave harm to the Senate. If Republicans fulfill their threat to overturn the historic role of the filibuster in order to ram the Bush administration's nominees through, they will be inviting all-out warfare and perhaps an effective shutdown of Congress. The Republicans are claiming that 51 votes should be enough to win confirmation of the White House's judicial nominees. This flies in the face of Senate history. Republicans and Democrats should tone down their rhetoric, then sit down and negotiate.

President Bush likes to complain about the divisive atmosphere in Washington. But he has contributed to it mightily by choosing federal judges from the far right of the ideological spectrum. He started his second term with a particularly aggressive move: resubmitting seven nominees whom the Democrats blocked last year by filibuster.

And from the New York Times, April 17, 2003:

Senators opposing Priscilla Owen, a nominee to the United States Court of Appeals for the Fifth Circuit, are considering a filibuster to head off her confirmation vote. Filibusters are an extreme measure in which a minority of senators block an issue from being voted on. But the system for picking judges, which should be a relatively nonpartisan effort to seat jurists who reflect broad American values, has broken down. Filibustering Judge Owen's confirmation would send the Bush administration two important messages: the president must stop packing the courts with ideologues, and he must show more respect for the Senate's role.

Let the Witch Trials Commence

For those who voted for President Obama: Did you ever imagine that you would read a story like this one?

In an initiative aimed at rooting out future leakers and other security violators, President Barack Obama has ordered federal employees to report suspicious actions of their colleagues based on behavioral profiling techniques that are not scientifically proven to work, according to experts and government documents.

Oh, there is quite a lot more. Read the whole thing. I imagine that within short order, a host of federal employees will be reporting that they saw Goody Osburn with the Devil. Or something like that.

Just remember that if a federal employee who is flagged by a flawed profiling examination floats in the water, he/she is made of wood. And therefore, a witch a leaker.

Incentives and Disincentives Matter

I am shocked--shocked!--to find rational economic decisionmaking going on here:

The world’s largest retailer delivered an ultimatum to District lawmakers Tuesday, telling them less than 24 hours before a decisive vote that at least three planned Wal-Marts will not open in the city if a super-minimum-wage proposal becomes law.

A team of Wal-Mart officials and lobbyists, including a high-level executive from the mega-retailer’s Arkansas headquarters, walked the halls of the John A. Wilson Building on Tuesday afternoon, delivering the news to D.C. Council members.

The company’s hardball tactics come out of a well-worn playbook that involves successfully using Wal-Mart’s leverage in the form of jobs and low-priced goods to fend off legislation and regulation that could cut into its profits and set precedent in other potential markets. In the Wilson Building, elected officials have found their reliable liberal, pro-union political sentiments in conflict with their desire to bring amenities to underserved neighborhoods.

Mayor Vincent C. Gray (D) called Wal-Mart’s move “immensely discouraging,” indicating that he may consider vetoing the bill while pondering whether to seek reelection.

If you raise the price of a commodity--including labor--you are going to get less of that commodity. Who woulda thunk it?

From the Annals of Irresponsible Government

This is frankly scandalous:

If you've been reading all the Obamacare stories lately, you might get the impression that the administration has just realized it will not be able to implement the massive health reform as designed.

It has known for months.

As far back as March, a top IT official at the Department of Health and Human Services said the department's current ambition for the law's new online insurance marketplaces was that they not be "a Third-World experience." Several provisions had already been abandoned in an effort to simplify the administration's task and maximize the chances that the new systems would be ready to go live in October, when customers are supposed to start signing up for insurance.

In April, several consultants focusing on the new online marketplaces, known as exchanges, told National Journal that the idealized, seamless user experience initially envisioned under the Affordable Care Act was no longer possible, as the administration axed non-essential provisions that were too complex to implement in time. (Read the story for some examples and commentary.) That focus has intensified lately, as officials announced that they would not be requiring employers to cover their workers next year or states to verify all of their residents' incomes before signing them up for insurance.

So, we have a soon-to-be disaster on our hands. Note the part about not verifying residents' incomes. More on that here:

The White House seems to regard laws as mere suggestions, including the laws it helped to write. On the heels of last week's one-year suspension of the Affordable Care Act's employer mandate to offer insurance to workers, the Administration is now waiving a new batch of its own ObamaCare prescriptions.

These disclosures arrived inside a 606-page catch-all final rule that the Health and Human Services Department published on July 5—a classic Friday news dump, with extra credit for the holiday weekend. HHS now says it will no longer attempt to verify individual eligibility for insurance subsidies and instead will rely on self-reporting, with minimal efforts to verify if the information consumers provide is accurate.

Remember "liar loans," the low- or no-documentation mortgages that took borrowers at their word without checking pay stubs or W-2s? ObamaCare is now on the same honor system, with taxpayers in tow.

People are supposed to receive subsidies only if their employer does not provide federally approved health benefits. Since HHS now won't require business to report those benefits or enforce the standards until 2015, it says it can't ask ObamaCare's "exchange" bureaucracies to certify who qualifies either.

HHS calls this "a slight technical correction" though it is much more than that. The exchanges will not only start dispensing benefits "based on an applicant's attestation" about his employment insurance status. HHS is also handing the exchanges "temporarily expanded discretion to accept an attestation of projected annual household income without further verification."

In other words, anyone can receive subsidies tied to income without judging the income they declare against the income data the Internal Revenue Service collects. This change has nothing to do with the employer mandate, even tangentially. HHS is disowning eligibility quality control because pre-clearance is "not feasible" as a result of "operational barriers" and "a large amount of systems development on both the state and federal side, which cannot occur in time for October 1, 2013."

Since people will not have their incomes verified, they have every reason to lie in order to get subsidies, which may stretch federal expenditures to the limit, and which may prevent those who really need subsidies from getting them. Needless to say, this is a problem.

Meanwhile, former federal judge and current law professor Michael McConnell goes after President Obama for unilaterally suspending the employer mandate provisions of the new health care law:

Article II, Section 3, of the Constitution states that the president "shall take Care that the Laws be faithfully executed." This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.

This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II's use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that "the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal."

To make sure that American presidents could not resurrect a similar prerogative, the Framers of the Constitution made the faithful enforcement of the law a constitutional duty.

The Justice Department's Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to "refuse to enforce a statute he opposes for policy reasons."

Attorneys general under Presidents Carter, Reagan, both Bushes and Clinton all agreed on this point. With the exception of Richard Nixon, whose refusals to spend money appropriated by Congress were struck down by the courts, no prior president has claimed the power to negate a law that is concededly constitutional.

Read the whole thing. Obviously, many of those who made a big deal of George W. Bush's signing statements will have little to nothing to say about this. Heck, they have had little to nothing to say about Barack Obama's signing statements.

Quote of the Day

Mr. McGinn, who calls himself both a “ladies’ man” and “the most enlightened person in the world,” is not one to hide his belief that modesty is a form of dishonesty. “People sometimes perceive superiority as arrogance,” he says. “A superior person is not necessarily arrogant, but just superior.”

 --Seth Zweifler on Colin McGinn. (Behind a paywall, alas. Background here. Hilarious fake Twitter feed here.)

I Am Officially Smacked by Gob (Economic Development Administration Edition)

Your government at work:

The Economic Development Administration (EDA) is an agency in the Department of Commerce that promotes economic development in regions of the US suffering low growth, low employment, and other economic problems. In December 2011, the Department of Homeland Security notified both the EDA and the National Oceanic and Atmospheric Administration (NOAA) that there was a potential malware infection within the two agencies' systems.

The NOAA isolated and cleaned up the problem within a few weeks.

The EDA, however, responded by cutting its systems off from the rest of the world—disabling its enterprise e-mail system and leaving its regional offices no way of accessing centrally-held databases.

It then recruited in an outside security contractor to look for malware and provide assurances that not only were EDA's systems clean, but also that they were impregnable against malware. The contractor, after some initial false positives, declared the systems largely clean but was unable to provide this guarantee. Malware was found on six systems, but it was easily repaired by reimaging the affected machines.

EDA's CIO, fearing that the agency was under attack from a nation-state, insisted instead on a policy of physical destruction. The EDA destroyed not only (uninfected) desktop computers but also printers, cameras, keyboards, and even mice. The destruction only stopped—sparing $3 million of equipment—because the agency had run out of money to pay for destroying the hardware.

Oy. And also, vey.

Chief Writer

Guest-blogging over at The Volokh Conspiracy, Ross Guberman makes the case for Chief Justice Roberts as the best writer on the Supreme Court. Much of the case is made by comparing the chief to Justice Kennedy, which is kind of like making a case for the superiority of the Harlem Globetrotters by comparing them to the Washington Generals.

That having been written, the chief does have some lovely turns of phrase to his credit. Consider:

If such a shoe exists, the parties have not pointed to it, there is no evidence that Already has dreamt of it, and we cannot conceive of it. It sits, as far as we can tell, on a shelf between Dorothy’s ruby slippers and Perseus’s winged sandals.

[. . .]

High school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so . . . Surely students have not lost that ability by the time they get to law school.

[. . .]

[T]here is indeed a real difference between a suit against the State brought by a private party and one brought by a state agency. It is the difference between eating and cannibalism; between murder and patricide. While the ultimate results may be the same — a full stomach and a dead body — it is the means of getting there that attracts notice. I would think it more an affront to someone’s dignity to be sued by a brother than to be sued by a stranger. While neither may be welcomed, that does not mean they would be equally received.

And you thought that reading legal opinions might be boring.

Joke of the Day

Since the hardworking staff at this blog has taken an interest in intellectual jokes, here is a good one:

Two scientists walk into a bar

The first scientist says ‘I’ll have a glass of H2O.”

The second scientist says ‘I’ll have a glass of water too. Wh… why did you say H2O? Like, I know it’s the chemical formula for water and all, but it’s the end of the day and there’s really no need to intentionally over-complicate things like that in a situation outside of work”

The first scientist stares at his drink, angry that his assassination plan has failed.

My State Attorney General Wastes Taxpayer Resources on Frivolous Lawsuits

Perhaps yours does too:

Following a letter from 22 state attorneys general, Urban Outfitters has agreed to stop selling a humorous mug with a “Prescription: Coffee” design. The AGs argued that prescription drug abuse is a very serious matter and not something to be joked about. [H/T Eugene Volokh]

The humor-impaired AGs participating (is yours on this list?) included those from Arizona, Arkansas, California, Colorado, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Mississippi, Montana, New Mexico, Ohio, Oregon, Pennsylvania, Tennessee, Utah, and Wyoming, as well as Guam. According to Maggie Thurber at Ohio Watchdog, “the Partnership at Drugfree.org went further and categorized [the mugs and related coasters and other trinkets] as ‘prescription drug paraphernalia products.’”

The mind reels.

Quote of the Day

There is an old parable — not sure if it comes from someone famous I should be citing, or whether I read it in some obscure book years ago — about a lexicographer who was tasked with defining the word “taxi.” Thing is, she lived and worked in a country where every single taxi was yellow, and every single non-taxi car was blue. Makes for an extremely simple definition, she concluded: “Taxis are yellow cars.”

Hopefully the problem is obvious. While that definition suffices to demarcate the differences between taxis and non-taxis in that particular country, it doesn’t actually capture the essence of what makes something a taxi at all. The situation was exacerbated when loyal readers of her dictionary visited another country, in which taxis were green. “Outrageous,” they said. “Everyone knows taxis aren’t green. You people are completely wrong.”

The taxis represent Science.

(It’s usually wise not to explain your parables too explicitly; it cuts down on the possibilities of interpretation, which limits the size of your following. Jesus knew better. But as Bob Dylan said in a related context, “You’re not Him.”)

Defining the concept of “science” is a notoriously tricky business. In particular, there is long-running debate over the demarcation problem, which asks where we should draw the line between science and non-science. I won’t be providing final any final answers to this question here. But I do believe that we can parcel out the difficulties into certain distinct classes, based on a simple scheme for describing how science works. Essentially, science consists of the following three-part process:

  1. Think of every possible way the world could be. Label each way an “hypothesis.”
  2. Look at how the world actually is. Call what you see “data” (or “evidence”).
  3. Where possible, choose the hypothesis that provides the best fit to the data.
--Sean Carroll.

When Nobel Prize Winners Miss a Trick

A strange post by Paul Krugman. I know, I know; that's like saying "water is wet," but this is an especially fascinating case of Krugmanian shortsightedness.

Krugman is commenting on the habit of wealthy New Yorkers to purchase

. . . pied-a-terres in newly fashionable Lower Manhattan. You have to read a bit carefully to realize that these are, for the most part, people with apartments on the Upper East Side; their downtown bolt-holes are to avoid the need to trek uptown after a night out.

Krugman approves of this, because

. . . the truth is that of the various things the wealthy might spend on, this is one of the less offensive; it might even reduce externalities, if people walk back to their downtown hideaways instead of having a limo wait outside the restaurant for hours.

I get the reasoning here. I really do. Krugman believes that if people have second apartments, they will be able to rely less on limousines or other forms of motorized transportation, which means less carbon dioxide in the atmosphere, which might help solve the global warming problem. But not a thought spared for the poor limo driver who might lose his/her job as a consequence of all of this (even as real estate agents get richer)? And no conception of the possibility that a limo doesn't have to have the engine running while it waits for someone?

You know, it's best to think things through before writing a blog post. Too bad that Krugman often doesn't.

Internet Freedom--or the Lack Thereof--in China

Paul Rosenzweig reports on what one has to put up with:

  • The one time I thought to go to an Internet cafe for access, I was waved off by my guide.  Turns out I would have had to show my passport (which was back in the hotel in a safe) to get access.
  • We had a Gmail account (since deleted) for email contact.  Every time I tried to access it the processing got =very= slow.  By contrast, all the connections to Chinese websites were quite quick.  I strongly suspect that some serious filtering was slowing access.
  • The same was true for access to non-Chinese, Western web sites.  Efforts, for example, to navigate to cnn.com or google.com proved to be exercises in either patience or frustration.  In the end, I had better things to do with my time and mostly gave up.
  • The highlight (or lowlight) of the exercise was on my last attempt to get to the Gmail account.  I was using Internet Explorer 7 (old stuff) and as I went to the Gmail page, an explosion of pop-up web pages started propagating.   It got up to 58 different browsers opened before I could halt it with a 3-finger (CTL-ALT-DEL) hard stop.  I haven’t seen a virus (I assume it was a virus) like that on a US computer in several years.

I'd very much like to visit China, and I might be willing to put up with all of this hassle in order to do so. But it is a hassle. And it shouldn't be. Contra Rousseau, man may not have been born free, but in a host of places, he is in chains.

Why I Can't Stand Kanye West

All summarized in one interview. Some extra appalling bits:

You’ve won a lot of Grammys.

“[My Beautiful] Dark [Twisted] Fantasy” and “Watch the Throne”: neither was nominated for Album of the Year, and I made both of those in one year. I don’t know if this is statistically right, but I’m assuming I have the most Grammys of anyone my age, but I haven’t won one against a white person.

But the thing is, I don’t care about the Grammys; I just would like for the statistics to be more accurate.

You want the historical record to be right.

Yeah, I don’t want them to rewrite history right in front of us. At least, not on my clock. I really appreciate the moments that I was able to win rap album of the year or whatever. But after a while, it’s like: “Wait a second; this isn’t fair. This is a setup.” I remember when both Gnarls Barkley and Justin [Timberlake] lost for Album of the Year, and I looked at Justin, and I was like: “Do you want me to go onstage for you? You know, do you want me to fight” —

For you.

For what’s right. I am so credible and so influential and so relevant that I will change things. So when the next little girl that wants to be, you know, a musician and give up her anonymity and her voice to express her talent and bring something special to the world, and it’s time for us to roll out and say, “Did this person have the biggest thing of the year?” — that thing is more fair because I was there.

But has that instinct led you astray? Like the Taylor Swift interruption at the MTV Video Music Awards, things like that.

It’s only led me to complete awesomeness at all times. It’s only led me to awesome truth and awesomeness. Beauty, truth, awesomeness. That’s all it is.

So no regrets?

I don’t have one regret.

Do you believe in the concept of regret?

If anyone’s reading this waiting for some type of full-on, flat apology for anything, they should just stop reading right now.

But that is something that you apologized for.

Yeah, I think that I have like, faltered, you know, as a human. My message isn’t perfectly defined. I have, as a human being, fallen to peer pressure.

So that was a situation in which you gave in to peer pressure to apologize?

Yeah.

So if you had a choice between taking back the original action or taking back the apology, you’d take back the apology?

You know what? I can answer that, but I’m — I’m just — not afraid, but I know that would be such a distraction. It’s such a strong thing, and people have such a strong feeling about it. “Dark Fantasy” was my long, backhanded apology. You know how people give a backhanded compliment? It was a backhanded apology. It was like, all these raps, all these sonic acrobatics. I was like: “Let me show you guys what I can do, and please accept me back. You want to have me on your shelves.”

So, Kanye West doesn't believe in regret, even though he did apologize to Taylor Swift for what he did, because he has "like, faltered, you know, as a human," but he gave into peer pressure when he did it, but later on, he wrote an entire album which was his "long, backhanded apology," which presumably, he wasn't pressured by peers to do.1

Got that?

I am personally disgusted that I now know so much about this issue.

1. I hope that I got that sequence right, but even if I got it wrong, I'm not rewriting it.

Consequences of the Employer Mandate Delay

This article, by Thom Lambert, is quite valuable. And the following excerpt is very revealing indeed:

. . . Suppose an employer wishes to provide $40,000 in total compensation to a 40 year-old employee who is the head of a four-person household. If the employer were to purchase a family policy for the employee (approximate cost $12,000/year), she would pay the employee $28,0000/year in cash. The employee would pay no payroll or income tax on the component of his compensation provided as health insurance, so he would receive an effective federal subsidy of $2,718 (22.65% * $12,000). If the employer were to drop health care coverage and thus drive the employee to an exchange, the employer would have to pay $2,000 and would therefore reduce to $38,000 the total amount she would pay the employee. The employee would then receive all his compensation — all $38,000 — as take-home pay. On the $12,000 that otherwise would have been paid as benefits, he’d have to pay $2,718 in tax, but he would now be eligible to purchase insurance on his own at a heavily subsidized rate. The ACA would limit his out-of-pocket insurance expense to 4.52% of annual income ($1,718), which means he would receive a whopping $10,282 subsidy on the $12,000 family policy. This employee is $5,564 better off if his employer drops coverage (costing him $4,718: $2,718 in foregone tax subsidy plus a penalty-induced compensation reduction of $2,000) and allows him to access the more generous subsidies available on state exchanges (benefiting him by $10,282).

This is the huge problem with the ACA’s Employer Mandate/subsidy scheme: The scheme as a whole creates incentives to dump lower-income employees on the subsidized exchanges. The Obama Administration’s politically expedient delay in implementation of the Employer Mandate does nothing to alleviate this difficulty. But it might  help Nancy Pelosi get her old job back.

And that's all that really matters, isn't it?1

1. I know, I know; it's shocking to think that politics may be behind this. Still, it's worth mentioning.