2011 - %3, September

Health Care Ruling Takeaway: Virginia AG Ken Cuccinelli Is a Bad Lawyer

| Thu Sep. 8, 2011 3:52 PM EDT
Ken Cuccinelli, the attorney general of Virginia.

Tea partiers love Virginia Attorney General Ken Cuccinelli. A rock star who frequents their events, he speaks the tea partiers' language, especially when it comes to invoking the Constitution as the basis for opposing everything from President Obama's health care reform law to environmental regulations on climate-changing emissions. But Cuccinelli seems to have studied the Constitution the way most tea partiers have—in someone's living room. Because when it comes to actually practicing law, in real courts where the Constitution is really put to the test, Cuccinelli is a bit of a disaster.

Today, the 4th Circuit Court of Appeals, one of the most conservative appellate courts in the country, threw out Cuccinelli's lawsuit challenging Obama's Affordable Care Act and its individual mandate. The 4th Circuit never really got to the constitutional issues of the health care law because it found that Cuccinelli and the state of Virgina did not even have standing to bring the case. The individual mandate, the court found, "imposes no obligations on the sole plaintiff, Virginia," meaning that Virginia had no injury nor future harm that might be remedied by the intervention of a federal judge.

It's a classic example of something Cuccinelli should have learned in Civil Procedure 101: Just because you don't like a law doesn't mean you have the right to go to court and get it struck down. You have to be affected by the law somehow, and it was clear from the very beginning that Cuccinelli and Virginia were not. And if Cuccinelli is hoping the U.S. Supreme Court might come to his rescue on this one, he's probably dreaming. While you never know with the Roberts court conservatives, who have proven far more political than consistent, stalwart conservatives like Antonin Scalia.  Roberts himself has been extremely harsh with plaintiffs on standing issues. (See Robert's dissent in Massachusetts v. EPA, a case challenging the EPA's inaction on climate change.)

But Cuccinelli's legal work isn't, of course, about the law. It's about politics. His concern with constitutional issues is rather selective. Otherwise, how to explain his office's defense of local law enforcement officials in the state arresting gay men under sodomy laws the Supreme Court declared unconstitutional eight years ago? Or his legal opinion that state universities have no legal right to protect students and staff against anti-gay discrimination, despite the 14th Amendment's promises of equal protection under the law? Or what of his waste of taxpayer dollars suing over the health care bill in a case he had no legitimate right to bring? The health care lawsuit won Cuccinelli fans across the country, who will no doubt come in handy when he needs to raise money when he runs for senator or governor down the road. All of that might make him a good politician, but it still makes him a bad lawyer.

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Bachmann Continues $2 Gas Farce

| Thu Sep. 8, 2011 3:40 PM EDT

Politico aptly notes that Michele Bachmann was entirely alone at Wednesday night's GOP debate in her pledge that she'll return the US to $2-a-gallon gasoline. Even Ron "Silver Dime" Paul wouldn't entertain her conceit.

Bachmann's $2 gasoline plan might not be as wacky as the other things she's talked about, like the existential threats posed by efficient lighting, public schools, the gays, and the revenge of the USSR. But trust me, it's just as delusional.

I won't bother rehashing all the reasons it's a pipedream—you can see Bryan Walsh, Brian Merchant, or CNN Money for apt take-downs. The upshot is that Bachmann wants to do things that wouldn't have a big or immediate impact on oil prices (like increasing drilling offshore) but not things that could (like limiting oil speculation). The best she could hope for, if she wants to make good on this promise, is that the US slides back into a recession.

Wednesday's debate set Bachmann up as an also-ran this year, with Rick Perry, Mitt Romney, and John Huntsman clearly dominating the conversation. I guess promising a pony in every gas tank was the best she could do to set herself apart from the pack.

House GOPers Use 9/11 to Attack Defense Cuts (VIDEO)

| Thu Sep. 8, 2011 3:34 PM EDT

With the tenth anniversary of 9/11 upon us, Republican members of the House Armed Services Committee have released a video collage of WTC imagery that warns their Senate counterparts: Cut defense spending, and you'll be responsible for the next attack on America.

"Our No. 1 priority, I think, should be as a Congress to protect our nation," intones a black-and-white, professionally cropped House Armed Services Committee Chairman Buck McKeon (R-Calif.) in the video, embedded below. "What if we're attacked in some other area? What is our military going to be able to do if we keep cutting them?"

Perry and Galileo

| Thu Sep. 8, 2011 1:35 PM EDT

Talking about climate change last night, Rick Perry argued that the science was unsettled: "Just because you have a group of scientists that have stood up and said here is the fact — Galileo got outvoted for a spell." James Fallows explains why Perry is all wet:

Until this evening's debate, the only reason anyone would use the example of Galileo-vs-the-Vatican was to show that for reasons of dogma, close-mindedness, and "faith-based" limits on inquiry, the findings of real science were too often ignored or ruled out of consideration. And Perry applies that analogy to his argument that we shouldn't listen to today's climate scientists? There are a million good examples of scientific or other expert consensus that turned out to be wrong, which is the point Perry wanted to make.

Sure, Perry could have used any of those other examples. But how many people have heard of Alfred Wegener's critics?

If you hang around in crackpot chat rooms occasionally, you'll notice that a common trope is the one about the lonely scientist who was mocked for years but then turned out to be right. Why, just look at Einstein! It doesn't really matter if Einstein really was mocked or not. It just matters that there have indeed been scientists whose work wasn't initially appreciated by the mainstream establishment.

This is also, it turns out, a common trope in the climate denial community. Basically, Perry was saying that Ross McKitrick is a modern-day Galileo. Richard Lindzen is a modern-day Galileo. Lord Monckton is a modern-day Galileo. And Andrew Montford is their prophet. No matter that Perry almost certainly doesn't recognize a single one of these names. They exist, and his fans know them. So while Perry's analogy may seem misguided to you and me, my guess is that he got his point across just fine to the only audience he cares about: potential Republican primary voters. They think of themselves as lonely and oppressed fighters for the truth, just like Galileo. Who better for Perry to invoke?

The Life of Rick Perry As Told Through Taiwanese Animation

| Thu Sep. 8, 2011 1:22 PM EDT

You've got to hand it to the Taiwanese for doing whatever it takes to educate the masses about politics. Ok, so maybe Karl Rove didn't really have a snake shooting out of his mouth when he convinced Rick Perry to become a Republican, and maybe Slick Rick has never ridden an elephant or shot up the governor's mansion with lasers, but who cares? It's a metaphor, dude. If you still think those Carly Fiorina Demon Sheep clips are weird, you've obviously never seen this masterpiece from Next Media Animation:

H/T Texas Tribune

Higher Retirement Age Already a Reality

| Thu Sep. 8, 2011 12:47 PM EDT

Casey Mulligan notes that among workers aged 25-55, hours worked during the recession has declined about 10%. But for older workers, the decline has been far less. For those over 62, hours worked has actually gone up. Why?

[One] possibility is that the labor market distinguishes, at least in a rough way, among workers according to their willingness to work, and that the stock market and housing market crashes have especially stimulated older people to work more. (Young people, on the other hand, had fewer assets before the recession, so a decline in asset prices has little direct impact on them.) This effect tends to increase with age because the propensity to own assets for current needs and future retirement also increases with age.

If you were thinking about early retirement at age 55, you're going to think again if your 401(k) has tanked, your house has lost 30% of its value, and your kids are still living at home because they can't find a job. You also might be motivated to work harder than before because you've seen what's happened to your friends who have lost their jobs and are now, for all practical purposes, unemployed forever because no one wants to hire a 58-year-old who's been out of work for two years.

Which is just to say, this makes sense to me. Older people are highly motivated to keep working, and that means fewer jobs are opening up for younger people. Welcome to the recession.

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Earth to Amazon: Yes, You Are Taxable

| Thu Sep. 8, 2011 12:40 PM EDT
Amazon CEO Jeff Bezos.

When can you tax a business? If Amazon had its way, the answer would be never. In June, the online retail giant launched a $5 million petition drive against a new California law requiring online retailers with a physical presence in the state to collect sales tax. At stake: $200 million in revenue, on top of another $100 million for localities.

Amazon refused to enforce the law, arguing that since it's an online entity, it doesn't have a physically taxable presence (the company has been waging similar battles in South Carolina, Texas, Illinois, Tennessee, and New York). To drive its point home, Amazon cut off service to its California-located affiliates. If an affiliate could be plausibly be described as having a physical presence in California, Amazon didn't want anything to do with it, as The New York Times's David Streitfield explained. Meanwhile, the company barely broke a sweat collecting the 500,000 signatures needed to get a referendum on the measure on the ballot in next June's election. When you consider the fact that Amazon was asking Californians to pledge their vote to paying less when they buy stuff online, that should be no surprise.

The two sides could be approaching a deal. On Wednesday evening, the two sides reportedly agreed that Amazon won't have to collect sales taxes until September of next year. In return, it will abandon its referendum, clearing the way for state lawmakers to settle the issue of taxing online retailers for good. But plan could still fall through.

It might seem kind of insane that online businesses could avoid their tax obligations in this way. As Kevin Drum explained, it all dates back to a 1992 Supreme Court ruling that set the physical presence standard excusing online companies from their tax obligations. No one back in the baby-Internet, halcyon days of AOL and Netscape, predicted that online retailers would one day be raking in $150 billion a year. That's lots of potentially taxable cheddar that states have been leaving on the table.

Currently, there are a host of bills on the federal level aimed at helping corporations use Amazon's physical presence argument. These bills would hit crippled states where it hurts, at a time they can least afford it. So don’t expect this issue to die after next September. Next to the sheer convenience it offers, avoiding taxing purchases is Amazon's chief competitive advantage, as Kevin explained:

For all its talk of technology and convenience and selection, Amazon basically stays in business because it can charge slightly lower prices than brick-and-mortar stores. A level playing field might be good for state coffers and the schools and police officers they support, but to Amazon that doesn't matter. It's nothing personal, mind you. Just business.

With all that's at stake—for states and corporations alike—the battle has just begun.

CORRECTION: This post has been edited to reflect that the deal between Amazon and the Californa state house has not been officially agreed to.

Rick Perry's "Ultimate Justice"

| Thu Sep. 8, 2011 12:22 PM EDT
Texas Gov. Rick Perry.

Wednesday night at the Republican debate, Texas Governor Rick Perry turned the possibility that Texas had executed an innocent man during his tenure into an applause line.

The problem lies, in part, with the phrasing of the question. Rather than asking specifically about the circumstances of the execution of Cameron Todd Willingham, who was convicted of setting a fire that killed his three children, Moderator Brian Williams offered a more abstract query about innocence and the death penalty.

The Return of the Boom-Boom Room

| Thu Sep. 8, 2011 12:03 PM EDT

Sallie Krawcheck recently left her job as president of the Global Wealth and Investment Management division of Bank of America. Nathaniel Popper of the LA Times tells the broader story:

The financial industry, long known for its boys-club environment, has only a small fraction of women as top executives. And that small cadre has been thinning out in recent years, with the most recent example Krawcheck's departure as BofA's president of global wealth management. Her departure is part of a broader trend in the financial industry in recent years: Female employees are losing their jobs at a faster clip than men. From 2007 to 2010, 12.5% of women in the financial industry lost their jobs, compared with 8.8% of men, according to an analysis of government statistics by the Economic Policy Institute. By comparison, in the overall economy during the same period, it was men who lost jobs at a higher rate.

....The finance industry has not historically been known as a welcoming place for women. The cigar and strip-club reputation was confirmed by a lawsuit against Smith Barney in the 1990s, which accused it of turning a blind eye to raunchy, sexist behavior. The lawsuit later became the subject of a book called "Tales From the Boom-Boom Room."

The attention brought by the suit spurred wide-scale changes that helped stamp out overt discrimination and open up hiring. A decade ago, the number of women in finance was rising.

Well, that was nice while it lasted, I suppose. The irony here, of course, is that you can make a pretty good case that the entire credit bubble of the aughts — and the subsequent massive recession caused by its bursting — was basically a product of male testosterone run amok. So what's the answer during the cleanup stage? Get rid of the women!

Yes, our world is insane. Why do you ask?

Chart of the Day: The Federal Sentencing Gap

| Thu Sep. 8, 2011 11:57 AM EDT

The U.S Sentencing Commission has released a new report detailing trends in federal sentencing over the past five years. There's a good deal to sort through, but one big takeaway is that for the first time ever, the majority of federal felony convictions involved Hispanics—even though they make up just 16 percent of the total population. Here's a chart showing the figures:

Data from U.S. Sentencing Commission.: Chart by Tim MurphyData from U.S. Sentencing Commission. Chart by Tim Murphy

There's a pretty clear explanation for this. As the Associated Press notes:

The commission's statistics also reveal that sentences for felony immigration crimes — which include illegal crossing and other crimes such as alien smuggling — were responsible for most of the increase in the number of Hispanics sent to prison over the last decade.

On the other hand, we've seen a boom in the private corrections industry in response to the spike in immigration-related offenses. So don't expect anyone to actually do anything about this.