2012 - %3, March

Obamacare's Supreme Court Disaster

| Tue Mar. 27, 2012 3:00 PM EDT

Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court. 

Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism's biggest domestic accomplishment since the 1960s—and one that may well have doubled as its eulogy. 

"What is left?" Justice Antonin Scalia demanded of Verrilli, "if the government can do this, what can it not do?" Verrilli's response to this basic and most predictable of questions was to rattle off a few legal precedents.

Justice Samuel Alito asked the same question later. "Could you just—before you move on, could you express your limiting principle as succinctly as you possibly can?" Verrilli turned to precedent again. "It's very much like Wickard in that respect, it's very much like Raich in that respect," Verrilli said, pointing to two previous Supreme Court opinions liberals have held up to defend the individual mandate. Where the lawyers challenging the mandate invoked the Federalist Papers and the framers of the Constitution, Verrilli offered jargon and political talking points. If the law is upheld, it will be in spite of Verrilli's performance, not because of it.

The months leading up to the arguments made it clear that the government would face this obvious question. The law's defenders knew that they had to find a simple way of answering it so that its argument didn't leave the federal government with unlimited power. That is, Obamacare defenders would have to explain to the justices why allowing the government to compel individuals to buy insurance did not mean that the government could make individuals buy anything—(say, broccoli or health club memberships, both of which Scalia mentioned). Verrilli was unable to do so concisely, leaving the Democratic appointees on the court to throw him lifelines, all of which a flailing Verrilli failed to grasp. 

"I thought what was unique about this is it's not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don't buy the product sooner rather than later," said Justice Ruth Bader Ginsburg. Verrilli responded gratefully: "That is—and that is definitely a difference that distinguishes this market and justifies this as a regulation."

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Want To Party With Obama? Show Him The Money

| Tue Mar. 27, 2012 2:44 PM EDT
President Barack Obama talks with senior advisors in the Oval Office, Feb. 29, 2012.

In the late 1990s, Bill Clinton and the Democratic National Committee faced blistering criticism for wooing wealthy donors with White House sleepovers, coffee breaks with the president, and rides on Air Force One. A decade later, as a candidate, Barack Obama bashed the cash-drenched culture of Washington politics. And as president, Obama has rejected lobbyist donations and pledged to keep lobbyists out of the White House and donors at a healthy distance.

Yet according to a new analysis, big-time donors are finding the Obama administration's doors flung open to them. An analysis by the Associated Press found that since mid-2009, more than half of Obama's top donors, as well as givers to a super-PAC backing his re-election bid, scored invites to the White House. Out of some 470 Obama donors, the AP found that at least 250 of them had attended White House parties or sat down for intimate meetings with Obama advisers.

At a recent state dinner, 30 Obama donors received invitations from the White House, where "they mingled with celebrities and dined with foreign leaders on the South Lawn of the White House," the AP reported.

Donors gaining access to the president, of course, is a bipartisan tradition in Washington. But the AP's analysis comes at a tricky point for Obama when it comes to campaign finance:

Obama's campaign has said it would begin encouraging supporters to donate to a "super" political action committee supporting him, Priorities USA Action, to counterbalance the cash flowing to GOP groups. The decision drew rebukes from campaign-finance watchdogs and Republicans who said Obama flip-flopped on his prior stance assailing super PAC money. The group supporting Obama has raised $6.3 million so far.

Visitor-log details of some of Obama's donors have surfaced in news reports since he took office. But the financial weight of super PACs and their influence on this year's election have prompted renewed scrutiny of the big-money financiers behind presidential candidates—and what those supporters might want in return.

Many of the White House visits by donors came before the president embraced the big-money, fundraising groups he once assailed as a "threat to democracy" on grounds they corrode elections by permitting unlimited and effectively anonymous donations from billionaires and corporations. Obama was once so vocal about super PACs that, during his 2010 State of the Union speech, he accused the Supreme Court in its 2010 decision in the Citizens United case of reversing a century of law that would "open the floodgates for special interests." But the success of Republicans raising money changed the stakes.

Obama's re-election campaign has raked in $120 million in donations to date. Priorities USA Action, the pro-Obama super-PAC started by two former Obama aides, has raised $6.3 million to date.

The Death of the Enclosed Mall

| Tue Mar. 27, 2012 2:38 PM EDT

Dan Malouff reports that enclosed malls are shutting down all over the Washington DC metro area. Atrios comments:

There's an absolutely absurd amount of retail floor space in this country, so this isn't all that surprising.

But there are two things going on here. First, as the chart on the right shows, there was a big spike in construction of retail space between 2004 and 2007 that was unsustainable, and the Great Recession unsustained that spike with extreme prejudice. So in one sense, no, it's not that surprising that a bunch of retail space has shut down recently.

At the same time, the long-term trend is up, up, up, and the recent bursting of the retail bubble, which was part of the wider commercial real estate bubble, seems to have run its course. (Knock wood.) But despite that, enclosed malls are still shutting down, part of a trend that's been going on for years. Here in my neck of the woods, for example, I don't think a new enclosed mall has been built in the past 20 years. But that doesn't mean retail is dead. During that same period, three gigantic open-air retail centers have opened within five miles of my house, each with over a million square feet of retail space. For some reason, enclosed malls are out and open-air "power centers" (or "lifestyle centers" or whatever they're calling them these days) are in.

I actually find this a little inexplicable. Here in Southern California it makes at least a bit of sense, since the weather is generally pretty good. Outside the sunbelt, though, not so much. What's more, these outdoor malls are a pain to navigate. In a typical enclosed mall, parking forms a ring around the structure itself, which is fairly compact and walkable. But the outdoor malls are often just the opposite: a gigantic parking lot with stores in an outer ring. This means that it's a long walk if you want to visit more than one store.

So why are enclosed malls on the outs? They're good in all weather, and they're convenient if you want to shop at a bunch of different stores. Open air malls are neither. On the other hand, if you want to shop at one store, and park close to it, they're a better option. And they're outdoors. If you like walking around in the fresh air, they're pretty appealing.

In any case, I've never entirely understood this trend. But it's been going on for a long time, so it's more than just a short-term fad. Enclosed malls are dead. Long live the outdoor mall.

Iran War Watch: The Wheat Import Strategy

| Tue Mar. 27, 2012 1:59 PM EDT

Are the United States and Iran on a collision course over the Middle Eastern country's controversial nuclear program? We'll be posting the latest news on Iran-war fever—the intel, the media frenzy, the rhetoric.

Just in case, the government in Tehran is pursuing a number of avenues to prep for possible military confrontation with Israel and the United States: Airbone war games. Puffed-up rhetoric. Possibly raising some hell in the Strait of Hormuz.

Also, they're hoarding wheat—lots of wheat. Here's why this matters, courtesy of the Wall Street Journal:

Iran is ramping up imports of wheat, including rare purchases from the U.S., in a sign Tehran is building a strategic stockpile of grain in anticipation of harsher sanctions or even military conflict...Such a maneuver could bolster the Islamic regime at a time when the West is increasing pressure over Iran's disputed nuclear program, including curbing purchases of Iran's oil and freezing its government banks out of international networks.

Current U.S. sanctions allow companies to sell food to Iran. Access to wheat is crucial for the country, enabling it to prevent spikes in the cost of bread, a key staple among its 78 million citizens. Such spikes have in the past led to social unrest in Iran and elsewhere in the Middle East.

The Iranians have also purchased wheat shipments from Brazil, Australia, Russia, Germany, and others over the past few months, and is in negotiations for what might be a three-million-ton buy from India, with imports on track to rise even more. The US Department of Agriculture estimates Iran will import 2 million metric tons of wheat through June 2012, which constitutes a tenfold jump from a February estimate, and enough to cover roughly 13 percent of Iran's annual consumption, according to data compiled by the USDA.

"With any number of unknowns out there—a potential attack on its nuclear facilities, the possibility that a different administration takes office in the United States—the regime is prudently laying aside [food] stocks in the event things go very wrong," said J. Peter Pham, a director with the Atlantic Council told Reuters.

But even in times that weren't marked by such bellicose rhetoric, the Iranian regime has been known to indulge in ramping up American imports. During the Bush years, US exports to Iran grew more than tenfold, including over $158 million worth in cigarettes. Other hot items include fur, perfume, military apparel, bras, and bull semen.

Coal's Final Hoorah Coming Soon

| Tue Mar. 27, 2012 1:20 PM EDT

Matt Yglesias writes that new EPA rules will soon spell the end of new construction of coal-fired power plants:

The new rules will mandate that all new power plants generate no more than 1,000 pounds of carbon dioxide per megawatt of electricity produced. That's a standard that your basic renewables can of course easily meet as can nuclear plants. It also conveniently draws the line such that natural gas, whose price has plummeted lately amidst the North American Fracking Boom, fits in under the standard as average gas-fired plants emit between 800 and 850 pounds per megawatt. But coal plants on average emit almost 1,800 pounds per megawatt, way outside of the acceptable range. The result is that barring some miraculous new innovation in the creation of cost-effective carbon sequestration technology, there aren't going to be any more coal-fired plants built in the United States. The face of new fossil fuel based electricity will be gas (which is considerably cleaner than coal), and the alternative to gas in the event that the gas boom ends will be renewables.

Back in 2010, the power industry was in the middle of a boom in construction of coal-fired plants. "Building a coal-fired power plant today," said Severin Borenstein, director of the Energy Institute at the University of California at Berkeley, "is betting that we are not going to put a serious financial cost on emitting carbon dioxide." And that was a good bet! In fact, cap-and-trade legislation had collapsed earlier that year amid mutual recriminations, which meant that putting a price on carbon was dead for the forseeable future.

But in the long run, power companies were just trying to beat the clock. One of the most compelling arguments in favor of cap-and-trade was simple: it's better than allowing the EPA to hand down a bunch of hamhanded command-and-control rules, but if cap-and-trade fails, that's exactly what will happen. And guess what? That's exactly what's now happened.

So it was a good bet, all right, and power companies were smart to get started on as many coal-fired plants as they could. They knew that any plants they built would be profitable as long as carbon emissions remained unregulated, and they also knew that EPA would likely shut down the construction boom for good before long. So it was build, baby, build. We'll be paying the price for this for years to come.

Quote of the Day: Today's Supreme Court Debacle

| Tue Mar. 27, 2012 12:43 PM EDT

From Justice Anthony Kennedy, generally believed to be the key swing vote on the individual mandate, during oral arguments today:

Can you create commerce in order to regulate it?

I'm not sure what the context for this was, and on its own it doesn't make a lot of sense. What commerce is the government supposedly creating? But it's a bad sign, and CNN legal analyst Jeffrey Toobin had a dismal appraisal of this morning's session:

"This was a train wreck for the Obama administration," he said. "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate."

....Toobin also said he thought Justice Kennedy, the perennial swing vote, was a "lost cause" for supporters of the health care reform law.

Urk. Fasten your seat belts.

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The Conservative Agenda in the Trayvon Martin Case

| Tue Mar. 27, 2012 12:07 PM EDT

Has there been any public controversy in recent memory as disheartening as the Trayvon Martin case? I don't mean the killing of Martin itself, though. That's certainly disheartening, but it's hardly unique. I'm talking instead about the political reaction to it.

A week ago, the worst I could say about right-wing reaction to the Martin case was that conservatives were studiously ignoring it. But that was a week ago. Since then, conservatives have entered the arena with a vengeance.

But why? At first glance, there's no obvious conservative agenda here. They might, in the abstract, want to defend the "Stand Your Ground" laws that have suddenly drawn the public's attention since the Martin shooting. But the shooting itself? There's no special conservative principle at stake that says neighborhood watch captains should be able to shoot anyone who looks suspicious. There's no special conservative principle at stake that says local police forces should barely even pretend to investigate the circumstances of a shooting. There's no special conservative principle at stake that says young black men shouldn't wear hoodies.

But as Dave Weigel points out today, the conservative media is now defending the shooter, George Zimmerman, with an almost messianic zeal. There's a fake photo of Trayvon Martin making the rounds, and even after it was debunked it's still making the rounds:

Why is the fake photo so popular? It's part of a new cottage industry of "truth about Trayvon" content, calibrated to convince people that they really shouldn't worry about the implications of this killing. Why, the kid wasn't even a saint! He might have been shot after brawling with the man who creeply followed him around the gated community? The Drudge Report has become a one-stop shop for Trayvon contrarianism.

Unfortunately, it's not really a cottage industry at this point. More like a mammoth, smoke-belching factory. When I opened my LA Times this morning, for example, I found Jonah Goldberg staring back at me, explaining that we shouldn't really care about Trayvon Martin because:

Martin's tragic death is a statistical outlier. More whites are killed by blacks than blacks killed by whites (or "white Hispanics"). And far, far more blacks are killed by other blacks. Indeed, if we're going to use the prism of race to analyze murder rates, then the real epidemic is that of black murderers.

Quite so. And that, it turns out, is the conservative principle that's actually at stake here: convincing us all that traditional racism no longer really exists (just in "pockets," says Goldberg) and that it's whites who are the real racial victims in today's America. Heh indeedy.

Medicaid is the Big Sleeper at the Supreme Court

| Tue Mar. 27, 2012 11:17 AM EDT

Aaron Carroll writes today that although the individual mandate is getting all the attention, the Supreme Court's ruling on Obamacare's expansion of Medicaid is even more important:

The way the ACA is written, unless states comply with these expansions, they stand to lose all Medicaid funding....Florida, along with 26 other states, is bringing a case to court based on the Constitution’s Spending Clause. Basically, the federal government has the right to make states accept certain conditions for which they will be given federal funds. If they don’t accept the conditions, then they don’t get the money. This is how Medicaid began, as an optional program states could agree to join. All of them did, obviously.

But now the law has changed, and those against the ACA’s new policy argue that this is an unfair expansion of a program that in practical terms is no longer optional. Medicaid is so fundamental to states’ operations now, they assert, that it can’t be considered funding that states can refuse if they choose not to agree to the new regulations. Because they will lose not only the new funding but all Medicaid funding if they don’t expand the programs, they say the actions of the federal government are coercive.

Aaron is right that this part of the case is far more fundamental than the court's ruling on the mandate. If the mandate is overturned, it would place moderate new limits on Congress's regulatory power. It wouldn't even necessarily be disastrous to Obamacare: there are other ways to implement an effective mandate that are unquestionably constitutional, after all. The problem is that right now Democrats don't have the votes to pass one of those other ways. But that's a political problem, not a fundamental constitutional problem.

The Medicaid changes are quite different, though. For decades, Congress has implemented national programs not by explicitly forcing the states to go along, but by making funding available only to those states that agree to follow federal rules. Critics have long argued that this is a subterfuge: Congress does this in cases where they don't have the constitutional power to make a program mandatory on a national basis, so instead they extort cooperation by sucking out tax dollars from the states and then agreeing to give them back only if the states go along. But subterfuge or not, courts have always ruled that this is constitutional.

So if the Supreme Court overturned the Medicaid changes, it would be a genuine earthquake. At worst, it would make hundreds of programs instantly unconstitutional and expel the federal government from playing a role in dozens of policy areas. At best, the federal government could still start programs this way, but could never change them once they'd become entrenched and were no longer "optional." This would freeze policy in place in a way that would be disastrous.

This, of course, is why most observers haven't paid a lot of attention to this part of the case: it's nearly inconceivable that the court is willing to produce this kind of bedlam. It would overturn decades of very clear precedent and produce chaos at both the state and federal levels. And unlike overturning the mandate, overturning Congress's ability to fund national programs this way would quite likely provoke a genuine constitutional crisis. I don't think anybody believes the court is really in a mood to do this. So even if they do overturn the Medicaid provisions (unlikely), they're almost certain to do so on very narrow terms that don't have a broad impact on Congress's general ability to make federal grants conditional on Congress's rules.

But I guess we'll see. If this part of the law gets upheld, but by only a 5-4 vote, it would mean that Medicaid is safe but that the court is really and truly feeling its oats. This part of the program will be argued tomorrow, and it's worth a watch.

Montana GOPer Compares Sandra Fluke to Studding Bulldog Named "John-Boy"

| Tue Mar. 27, 2012 11:11 AM EDT
Montana state Rep. Krayton Kerns.

Montana GOP state Rep. Krayton Kerns is taking criticism for comments he made earlier this month comparing Georgetown law student Sandra Fluke to a studding English bulldog named "John-Boy." Yes, really.

In mid-March, Kerns, a veterinarian from the ranching town of Laurel, posted an entry to his personal blog, "Ramblings of a Conservative Cow Doctor," in which he mused about the irony of freedom-loving Americans being "screwed" by the debate over access to birth control. Why, Kerns wondered, are we spending so much time talking about "contraception for coeds"? On Monday, Planned Parenthood spokeswoman Stacey Anderson told the Missoulian Kerns' post was "degrading, sexist and inexcusable."

Anderson was referring to this passage:

Before a mock congressional hearing she testified $1000 per year for contraception is cost prohibitive for students and this expense should be borne by people who actually have jobs. (This makes sense to her because she is still in college.) When I finished banging my head on the table, I pulled out my imaginary photo albums and reminisced about the free-love college days in the '70s and '80s. Things were different then. I remember John earning $1000 per month for sex at Colorado State University, so contraceptive costs were meaningless to him. Let me tell you about John.

John was a swinger, but not your typical a sex symbol. He was hairy, had short legs, fat belly and he slobbered a lot, but the vet school rumor mill said he was earning nearly $300 per week practicing his trade. John's registered name was John-Boy and he was a grand champion English bulldog owned by a pharmacology instructor at Colorado State. Lamenting John-Boy's stud service popularity, Steve, a classmate of mine whined, "That dang dog makes $1000 per month in stud fees and I can't even give it away." Enough said about the good old days and this brings me to my point: How in the world did the political debate descend to the level of contraception for coeds?

This is of course a misunderstanding of the concept of health insurance, which is not charity, but rather something that you pay into in exchange for coverage. It's also not an accurate depiction of Sandra Fluke, who is a thirty-year-old third-year law student, not an undergraduate "coed." Nor does it appear that Kerns actually read Fluke's testimony, which focused not on her sex life, but on one of her lesbian classmates who has a medical condition that made birth control a necessity. Also: What does a studding bulldog have to do with anything?

But at least Kerns understands that the cost of birth control doesn't hinge on how much sex you have—which is more than you can say for Rush Limbaugh.

We're Still at War: Photo of the Day for March 27, 2012

Tue Mar. 27, 2012 10:33 AM EDT

US Army Sgt. Paul Jordan, a medic assigned to the 25th Combat Aviation Brigade, provides security as a UH-60 Black Hawk helicopter arrives to extract his team and members of 2nd Afghan National Civil Order Patrol Special Weapons and Tactics Team in Kandahar province, Afghanistan, on March 16, 2012. DoD photo by Sgt. Daniel Schroeder, US Army.