We Told You So. . .

First off, this post will offend a lot of my right-wing friends, and while I hate to be dick, I am angry, and this post is meant to share my anger with the world in a constructive way. Hopefully, you will understand why I'm angry, rather than get offended. But, with that said, we (the Left) told you (the Right) that your rhetoric was going to get someone killed. And it may have.

On Saturday, when I heard that Representative Giffords was shot, I immediately had a picture of a suspect in mind - white, conservative, and in his mid-20's to mid 40's. And guess what - so did everyone else. When asked, Giffords' father pointed the finger directly at the Tea Party, as did the Sheriff, and every other Democrat and/or liberal in this country. There's a good reason for that - Sarah Palin put a crosshairs on Giffords, her office was vandalized during the health care debate, protesters showed up to her events fully armed, and her Republican opponent held fundraisers where his supporters could shoot an M16 at target with her name on it.

Now, it may be the case that the gunman was not a conservative or a Tea Partier, but rather a lone nutjob with his own agenda. But here's the thing - does he fixate on Giffords without so much heat put on her by the right? Does he even know who she is? We don't know that much. But if it is true that he had no connection with the right wing, don't celebrate, or blame liberals, but rather, breathe a sigh of relief because you got lucky. Really lucky. By the way, in the two days that have passed since the shooting, Senator Bennett and Representative Danny Davis have both received death threats

And if you want to respond to this post by saying that Democrats or liberals are doing this too, please cite specific examples - not from commenters on an open website, but examples from liberals similar in stature to Glenn Beck, Sharron Angle, Sarah Palin, Rush Limbaugh, hell, I'll even go with someone equal to Michelle Malkin's stature. And that's the difference - there are nuts on both sides, but the conservative leadership is actively courting the crazies. And we warned you that this could have serious consequences. Hell, the night before she was shot, Congresswoman Giffords wrote to friends and colleagues to tone down the rhetoric.

And so, I say, we told you so. But guess what, whatever indignation and anger you might feel is nothing compared to the anger we liberals feel over the shooting. Everyone is losing. Oh, and don't you dare complain about the politicization of this tragedy - the attempted assassination of a political leader is a political.

On the tax cut deal. . .

So, with great sadness, all Democrats have finally realized that Obama isn't a progressive, but rather a pragmatist more interested in getting small things done than providing the reform the country needs. This tax cut deal is a disaster on so many fronts - it encourages the Republicans to become more intransigent on other issues, such as Social Security, it demoralizes the Democratic base, and most importantly, its just bad policy. Yes, it could be worse (and that was Obama's point), but not by much.

Q: So, what should good progressives do about this?

A: We need to ratfuck our President.

Simply put, the Democrats on Capitol Hill should completely reject the plan. When the President calls to get people on board, they should dodge his calls. This needs to be a complete and utter loss handed to him by his own party, similar to how the GOP killed Bush's immigration reform bill in 2006.

My reasoning here is simple - right now, the President is negotiating with an intransigent GOP, and a more or less flexible Democratic Party. Democrats, by and large, are less interested in means than they are in ends. So, where a Republican will insist on tax cuts no matter the situation, a Democrat will be willing to discuss a variety of policy decisions to meet the sought after ends. As a result, the President and the policies are pushed further to the right - further than the American people want, by measure of the polls.

However, if Democrats ratfuck this deal, then the President will start having to worry about how the Left will react to his negotiations, and will adjust his behavior accordingly. In so doing, we might see real bipartisan compromise, or we might see no action whatsoever. But we will better negotiations.

Don't Get Fooled Again

During my freshman year at William & Mary, my freshman seminar class had a debate between a country lawyer Democrat and an Wall Street Republican.  In the debate, the Republican crushed the Democrat when he attacked Bill Clinton over the weakening dollar.  Now, the beating didn't occur because the Republican was right, but rather because the Democrat didn't have the foggiest understanding of economics.  And when the Republican came to our class the next day, I managed to get the Republican to admit he was bullshitting about the weakening dollar because he knew the Democrat had no knowledge of economics.

From that moment on, I realized that if Democrats were going to win debates about the economy, they have to know economic theory, or else they'll get rolled by Republicans.  And finally, we're in a situation where knowledge of economics is a good thing, and we end up getting cowed by the Republicans again.  This tweet by John Boehner is the single most ignorant thing about the economy ever.  He wants to create jobs by cutting government spending. . .Ugh.

Here's the problem with Boehner's prescription - we're not in an inflationary cycle, we're in a deflationary cycle.  Yes, the Budget Deficit is huge, and normally that would mean that there would be large inflationary pressures, but there aren't.  Inflation is phenomenally low at 1% (ish), and the economy still sucks.  That's because we have a demand side recession - businesses and customers aren't spending - rather than a supply side shock - where there's no money to invest.  Or, think 1940's instead of 1970's.  So cutting government spending is like giving a laxative to someone who has diarrhea - its only going to make things worse because now no one will be spending.

Cutting taxes is a less stupid idea, but not exactly brilliant either.  Again, there is no problem with the money supply - if anything, there is too little money in the economy right now, so increasing the monetary supply through tax cuts won't help at all.  It might encourage some people to spend a little more, but not enough to help.

No, the only thing that will work here is a massive increase in domestic spending.  Maybe not New Deal big, but close.  That way, government spending will increase overall demand, and people will have jobs, etc.  Now, I understand the whole, if we spend it, we'll end up spending it for a lifetime theory, so write in Sunset clauses into the spending legislation.  But do something.

And ultimately that's the problem - right now there's no Democratic leader who's saying this.  They're all cowed by the GOP rhetoric on the economy, even the dumb rhetoric.  If I was Obama, I would make this case in a national address every single week until Congress passed the right legislation.  Of course, what I'm saying is exactly what Paul Krugman, a NOBEL PRIZE WINNER IN ECONOMICS has been saying for the PAST YEAR AND A HALF, but what the fuck to we know.  Ugh.

Immigration Reform and the Law of Unintended Consequences

So it appears that California's neighbor to the east, Arizona, has passed a ridiculously restrictive immigration law that requires all law enforcement officials in Arizona to enforce immigration laws, and allows law enforcement officials to pick up anyone they suspect of being an undocumented immigrant.  The person would, I guess, have to prove their immigration status by showing their birth certificate on the spot. As you imagine, I have a few thoughts about this.

First, let me say that if I was planning a trip to Arizona, I'm not now.  Due to my Italian heritage, I am blessed with dark (though graying) hair and a decent tan.  So, I may not look Latino, but its close enough that I'm sure as hell not going to take any chances.  Given that the police officer need only have a "reasonable suspicion," (the legal equivalent of "hey, that guy is buying a taco, he must be Mexican"), pretty much everyone is at risk of being arrested for not being able to prove their citizenship on the spot.

Second, while Courts are unpredictable, there's no way in hell this law survives a lawsuit.  For one, foreign relations, which includes immigration, is solely an area of federal jurisdiction and the Constitution is very clear on this.  (Article 1, sections 8 and 10).  That's why every anti-immigrant legislation passed in the last 30 years has been overturned.  

If that wasn't enough, states are prohibited from passing laws that discriminate based on race or nation origin, unless the law is narrowly tailored to avoid racial discriminatory affects as much as possible (see the 14th Amendment).  Given that Arizona sits on the Mexican-American border, its safe to say that when Arizonans complain of undocumented immigrants, they're not complaining about Canadians.  A review of the legislative record will undoubtedly have some legislator complaining about the Mexicans. 

Lastly, and perhaps more interesting to me, is that this immigration law was passed largely because over the past 20 years, the Feds have been enforcing immigration laws to a greater degree.  Arizona, like San Diego, sits on the border, and for time, Mexican workers would cross the border to work in the U.S., but then cross back to live in Mexico.  It was the best of both worlds - American paycheck, Mexican cost of living.  When we made it more difficult to cross the border, Mexican workers had to choose between Mexico and the U.S., and they chose the higher paying jobs up North.  That's why San Diego and Arizona have seen increases in their Hispanic and Latino populations, and that increase in population inflames the populace, leading to more and more anti-immigration laws.  The irony is stunning and tragic.

I think I have Obama figured out. . .

As I ride the train back to San Diego from Orange County (a great way to travel, by the way), I have had time to ponder about Obama during the past few weeks. I’ve often wondered: what the hell is this guy thinking? And I’ve filled this blog with discussions about the failures in health care, etc.

But after the State of the Union and the “question time” deals, I think I finally figured it out. Obama is, at heart, a classicist, and he wants to restore the Republic. Now, this might sound a bit out of “I, Claudius” but hear me out. For the past several decades, the power of the Federal Government has increasingly been concentrated in the hands of the Executive. Not only is the President the Commander in Chief, and running the operations of government, but he’s also pushing legislation, dictating budgets, and otherwise controlling Congress. This concentration of power was most evident under the Bush Administration which, under the theory of the unitary Executive, acted more or less with impunity, and Congress went along with it.

Obama’s actions have shown an interest in changing the dynamic to an earlier time when the Administration might set the agenda, but lets Congress legislate. Thus, to my great annoyance, Obama has left Congress up to its own devices on health care reform. Unfortunately, Democrats are by nature disorganized, and so this approach only makes things worse. But it appears that Obama is trying to strengthen Congress by purposely not stepping in. At least, I hope that’s what he’s doing.

This reestablishment of the Congressional independence also appears to be in line with Obama’s empowerment of the independent regulatory bodies. Under Bush, regulatory agencies were told, more or less, to fall in line with Bush’s conservative ideology. So the EPA refused to regulate Greenhouse gases, even after a conservative Supreme Court issued an order requiring it to do so. And that’s just one example of many. Anyway, Obama’s Administration has quietly gone about reestablishing the independence of these agencies.

Ironically, at the same time Obama is trying to devolve power from the Presidency, the power of the federal government is expanding due to the financial ruin of the economy. And typically, power is concentrated in the hands of an executive during moments of crisis. The takeaway here is that the whole thing is one big mess because Obama is trying to buck way too many trends at once.

Still, one can appreciate what he’s trying to do. When the U.S. government was perfected in the Constitution, there were three equal co-branches of government for a reason. It would be nice to go back to that.

The Supreme Court and Corporations

As an attorney, I probably read fewer cases than I did in law school. At least, fewer when it comes to decisions of consequence. There are a couple of reasons for this: first, I read cases for work so reading cases for pleasure ain't fun; and, second, Supreme Court decisions are ridiculously long. So, let me first say that I haven't bothered to read the opinion of the Supreme Court with regard to corporate political spending but I am bothered by it.

Corporations are not natural born anything - they're the creation of lawyers and legislatures around the world. As economic actors, corporations give investors the ability to experiment with new ideas without putting too much of their personal wealth at stake. That's a good thing. But, corporations exist only so much as Congress lets them exist. If Congress passed a law, and the President signed this law, that eliminated all corporations tomorrow, all corporations would cease to exist because their underlying foundation - legal recognition - would cease to exist. Corporations would become essentially partnerships with each shareholder becoming a proportionate shareholder. The protections from company debt would be eliminated, and the partners would put their own fortunes on the line (as opposed to their share prices).

So, if a corporation is created by legislative action, can be eliminated by legislative action, then Congress should have the right to regulate the activities of these entities, including their "right" to free speech. Justice Rehnquist used to say that in the law, you have to take the bitter with the sweet, and here, the bitter is the inability of corporations to spend on campaigns directly, followed by the sweetness of existence. This is in contrast with actual people, who's creation cannot be so determined by legislative action.

So, what can be done? Simple, Congress can redo the legislation prohibiting corporate donations to campaigns, and then add a provision stripping the Supreme Court of jurisdiction to review the law's constitutionality. Since the Constitution grants Congress the power to decide what the Supreme Court's jurisdiction is (except for those provisions expressly provided for in Article III), Congress can tell the Court that its decision is wrong and tell them to go take a long walk off of a short pier.

Of course, Congress is almost completely owned by corporate interests, so this solution is unlikely. Typical.

A Profanity-Laced Tirade About Health Care. . .consider yourself warned

Two things about the health care debate have royally pissed me off.  First of all, Congress is currently debating whether or not to end the anti-trust exemption for health insurance companies.

WHAT.  THE.  FUCK????  Seriously, why the fuck to do health insurance companies have the right to act as a fucking monopoly?  When did we think this was a good idea?  Furthermore, why in the FORTY FUCKING YEARS OF THE HEALTH CARE DEBATE HAS THIS IDEA JUST COME UP NOW??????  45,000 people are dying every year for lack of health insurance coverage, and another 400,000 people every year are going bankrupt due to illness when they are insured, but I'm sure allowing health insurance companies to do whatever they fuck they want has nothing to do with it.  Unfuckingbelieveable.

Going forward, the public option is a good way to promote competition, and I hope it passes. But you know what else helps competition?  PASSING A FUCKING LAW THAT PROHIBITS ANTI-COMPETITIVE BEHAVIOR YOU HORSEFUCKED MORONS!!!! (Sidenote, I think I just created a new swear here - horsefucked - meaning those who have been fucked by a horse, as opposed to horsefuckers, wherein the horse takes the passive role of fuckee).  Anyway, I'm glad to see that someone has figured this out.

The second thing about this debate that royally pisses me off - Old people protesting health care reform as socialism.  Okay, I've written about this in the past, but today in front of my building there was a protest against health care reform (I think DiFi or Boxer's offices are located in my building).  Of the twenty people there, I'd estimate that at least 80% were senior citizens.

Now here's what gets a hair up my ass - all of these fucking old people are RECEIVING PUBLIC HEALTH INSURANCE THAT I FUCKING PAY FOR.  Medicare is a government run program, paid for by a 3% payroll tax.  That means 3% of my salary and bonuses goes to pay for the health care of old people.  The very same old people who are FUCKING PROTESTING in front of my building saying that government should stay out of health care.  In other words, they're protesting me getting what they got.

FUCK YOU, you DECREPIT, OLD, FAT, FUCKS!!!  I'll tell you what, if you don't want socialized medicine, the burn your Medicare card and get a fucking job.  Not only am I paying your medical bills, but I'm paying for your fucking retirement.  How dare you complain about socialism!  If anyone should be bitching about socialism, its me, the guy who's taxes are paying to keep you alive.

The Fallacy of Tort Reform in the Health Care Debate

Last night, as a gesture to the Republicans, President Obama signaled that he would be willing to discuss medical malpractice tort reform as part of an overall health care package. In very short order, let me throw some cold water on this idea. Here are two reasons why tort reform is not going to work:

1) Federal Courts don't do Med/Malpractice Cases: Under Article III of the U.S. Constitution, Federal Courts only take cases where Congress says its okay for them to take cases. The types of cases that go to Federal Court are either cases involving a federal statute (Civil Rights Act), or involve "diversity" wherein two people from different states sue each other. Medical Malpractice cases, by and large, fit neither of these bases of jurisdiction. Med/Mal (as we lawyers call it), is a negligence tort - that is, the Doctor hasn't violated the law, per se, but rather, has failed to act competently. There's no statutory basis for Med/Mal, but its part of the area of law called the "common law" - the stuff that we got from England. So, no statute, no jurisdiction. Additionally, Med/Mal typically involves people who live within the same state. So, there's almost never diversity jurisdiction. Oh, and Federal judges know this, and HATE to take cases they don't have to take. At any point in any federal litigation, even before the Supreme Court, someone can throw a monkey wrench into a lawsuit by questioning federal jurisdiction.

This point is important because Congress and the President only have the authority to change Federal law. You know that 10th Amendment that Conservatives talk about, well, here's where it comes into play. The Feds can create a law that supercedes State law, but that doesn't mean state law goes away. Hence, the California law on medical marijuana, wherein State authorities (the police) will let someone go for possession if they have the medical marijuana card (or whatever it is), but the Feds can, and have readily, arrested people for possession. So even if the Feds were to outlaw all Med/Mal cases, or limit the damages, it would only apply to those cases brought before a Federal judge (which is a ridiculously small amount).

2) Tort Reform Won't Help Much: Since 1975, California has had limits on Med/Mal cases of the kind the Republicans talk about. These limits are found in MICRA, and the details of the law can be found here. Basically, MICRA limits the amount that someone can recover from a Med/Mal case, requires arbitration, etc. Look, read the description. Anyway, since its enactment, MICRA has been the darling of the California Medical Association. The mere mention of changing even a comma is practically a call to jihad. If you ask the CMA, MICRA is the foundation upon which doctors can practice medicine in California.

Strangely enough, though, medical costs continue to go up in California, more or less at the same rate as everywhere else in the country. And one of the worst instances of insurer neglect came from California. Read the sad story here. Even though California has MICRA, the medical malpractice reform that the GOP wants, Californians have the same problems with health care as everyone else - its too expensive to go without insurance, and the insurance they get is bad.