2012 - %3, January

Conservatives: If You Can't Win the Presidency, Make It Weaker

| Sat Dec. 1, 2012 11:08 AM EST

It's one thing to expand executive powers when your guy is in the White House—but what if the other party holds the Oval Office? That's what elite conservative legal minds were mulling at an American Enterprise Institute event Friday headlined "Founders betrayed? New threats to US democracy and rule of law." Conservative luminaries, including Bush-era torture-justifier John Yoo, warned of a grave constitutional threat in the Obama administration's use of executive power.

CATO institute fellow Nicholas Rosenkranz said Obama had seized a "vast amount of executive power" by allowing people who entered the country illegally as children to stay (though as my colleague Adam Serwer pointed out last summer, presidents from both parties have long claimed the authority to grant stays of deportation). He was also concerned about the possibility that the DOJ may decline to enforce federal drug laws in states that recently legalized pot. (This coming from the same school of thought that says the 10th amendment allows states to ignore federal laws they don't like.) "For those of you who are nervous about some of the tendencies of of this particular president," Rosencranz said, "I would keep your eye on the executive choices like declining to execute law."

He said Congress should clarify that the president must enforce federal laws. Would this, then, apply to Obamacare under a "President Ryan in 2017," asked moderator Henry Olson, director of AEI's National Research Initiative. Well, yes, Rosencranz said—yes, it would.

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NOAA Proposes 66 Corals for Endangered Species Protection

| Fri Nov. 30, 2012 6:52 PM EST

Pillar coral in the Florida Keys: NOAAPillar coral in the Florida Keys: NOAA

Today NOAA proposed listing 66 species of reef-building corals under the Endangered Species Act (ESA): 59 species in the Pacific (7 as endangered, 52 as threatened); 7 in the Caribbean (5 as endangered, 2 as threatened). The agency is also proposing that two Caribbean species already listed be reclassified from threatened to endangered. (You can see the full species list here.)

Today's proposal is part of an ongoing response to a 2009 petition from the Center for Biological Diversity to list 83 species of reef-building corals under the ESA. 

NOAA identifies 19 threats to the future of corals, including the ecological impacts of fishing and poor land-use practices. But first and foremost are three daunting problems related to the continued growth in greenhouse gas emissions and a changing climate:

 

David Burdick / NOAA via FlickrDavid Burdick / NOAA via Flickr

Corals are biodiversity factories providing home and shelter to more than 25 percent of fish in the ocean and up to two million marine species. Their direct economic and social benefits are wide ranging, with one independent study finding they provide some $483 million in annual net benefit to the US economy from tourism and recreation and a combined annual net benefit from all goods and services of about $1.1 billion.

The annual commercial value of US fisheries from coral reefs is more than $100 million annually, with reef-based recreational fisheries generating another $100 million a year.

Following NOAA's proposal there will be a 90-day public comment period (you can submit a comment here) including 18 public meetings (schedule here, more will be added) before the listing is finalized in late 2013.  

 

Full reports downloadable here.

Quote of the Day: Plan? What Plan?

| Fri Nov. 30, 2012 6:07 PM EST

From Michael Grunwald, on Republican whinging about President Obama's budget plan:

It’s really amazing to see political reporters dutifully passing along Republican complaints that President Obama’s opening offer in the fiscal cliff talks is just a recycled version of his old plan, when those same reporters spent the last year dutifully passing along Republican complaints that Obama had no plan. It’s even more amazing to see them pass along Republican outrage that Obama isn’t cutting Medicare enough, in the same matter-of-fact tone they used during the campaign to pass along Republican outrage that Obama was cutting Medicare.

Yes, it is sort of amazing, isn't it? And as Joe Klein says, GOP temper tantrums on this subject are really getting a little old:

Republicans always seem to be outraged. It’s getting boring. They need to step up and make a counter-offer. That’s how people negotiate. In this case, they need to be specific about the spending cuts they want....But it is time to stow the Republican intemperance. It might have seemed “righteous” indignation when the GOP was deluding itself about representing a majority of Americans; now, it just seems puerile and petulant.

I guess I'm not going to hold my breath waiting for this. The Republican Party seems to be pretty much defined by umbrage and resentment these days. If they give it up, I'm not sure what they have left.

Friday Cat Blogging - 30 November 2012

| Fri Nov. 30, 2012 3:54 PM EST

Domino wasn't really cooperative this morning, so I didn't have a whole lot of catblogging photos to choose from. She did deign to let me take a few pictures, though, before she got up to rub her face against the camera and then go upstairs for her mid-morning snooze (not to be confused with her early morning snooze or her late morning snooze). But it's raining around here anyway, so what else is there to do?

What Exactly is Unclear About "Expressly" and "Shall Not"?

| Fri Nov. 30, 2012 3:27 PM EST

Adam Serwer has a helluva strange piece up today about Dianne Feinstein's recently passed amendment blocking indefinite detention of US citizens and legal residents captured on US soil. Here's the nut of the thing:

The question of what the Senate actually did hinges on language in the amendment that reads: "An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States unless an Act of Congress expressly authorizes such detention" (emphasis mine). It's that "unless" that the supporters of indefinite detention latched onto.

"Senator Feinstein's amendment...does not prohibit military detention if it is expressly authorized by law," said Levin, "which I read as a statute authorizing the use of military force itself or some other act of Congress."....But Feinstein said that the Levin interpretation was incorrect, and that based on a federal court decision in the case of Jose Padilla (the only American accused of terrorism to be held in military detention in the US) the 2001 AUMF doesn't count as an authorization to detain US citizens captured on American soil indefinitely. 

This is just....weird. I can imagine thinking that an authorization of military force could also be interpreted as an authorization for indefinite detention, except for the fact that Feinstein's amendment explicitly says that an authorization of military force "shall not" be interpreted that way. Only an act of Congress that "expressly" authorizes indefinite detention may be interpreted to allow indefinite detention.

On a related note, why is Feinstein relying on the Padilla case for backup? That was a pretty fuzzy opinion, wasn't it? Isn't Hamdi more on point? And who cares anyway? Feinstein's amendment would supersede any court ruling based on statutory grounds, and wouldn't matter if the Supreme Court ever ruled that indefinite detention was OK on constitutional grounds. What am I missing here?

We're Still at War: Photo of the Day for November 30, 2012

Fri Nov. 30, 2012 3:12 PM EST

A Soldier watches the impact area as rounds are fired during a live fire exercise in eastern Afghanistan, Nov. 25, 2012. U.S. Army photo by Staff Sgt. Nicolas Morales.

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10 Corporations That Still Get New Government Contracts, Despite Alleged Misconduct

| Fri Nov. 30, 2012 3:12 PM EST

The EPA surprised quite a few people on Wednesday when it announced sanctions on BP related to the 2010 Deepwater Horizon disaster. BP won't be allowed to get any new government contracts until it cleans up its act, the agency said.

This was announced in a short press release that wasn't really very specific about what that penalty means in practice. It could bar the company from new contracts for as long as 18 months—and potentially longer, if there are ongoing legal proceedings against the company. And it's not just BP's Gulf of Mexico affiliate—this suspension applies to all of BP's affiliates, barring the company from billions of dollars in potential future contracts.

This has been a long-time coming for BP. As a ProPublica piece from May 2010 noted, the company was already in trouble before spill:

Over the past 10 years, BP has paid tens of millions of dollars in fines and been implicated in four separate instances of criminal misconduct that could have prompted this far more serious action. Until now, the company's executives and their lawyers have fended off such a penalty by promising that BP would change its ways.

But many companies with federal contracts have been cited for misconduct. Apparently you just have to be really, really bad—like, 26-people-dead, Gulf-ecosystem-destroyed, lying-to-Congress bad—in order to get barred like BP did. The government regularly blocks companies from getting new contracts; there were 5,838 suspensions, proposed debarments, and debarments in 2011, an increase over previous years, but most of them are much smaller companies. 

The Project on Government Oversight (POGO) maintains a database of contractors that have been cited for misconduct, including environmental, labor, and financial legal violations. But as POGO points out, "very few large contractors have been suspended or debarred over the years." BP tops the list with 62 instances of misconduct or alleged misconduct since 1995, but here are the ten other big companies right behind BP that are still allowed to obtain government contracts:

  1. Exxon Mobil, 59 instances of alleged misconduct
  2. Lockheed Martin, 58 instances
  3. Boeing Company, 46 instances
  4. General Electric, 44 instances
  5. Honeywell International, 41 instances
  6. ChevronTexaco Corporation, 37 instances
  7. Northrop Grumman, 35 instances
  8. Fluor Corporation, 34 instances
  9. Royal Dutch Shell PLC, 34 instances
  10. GlaxoSmithKline, 33 instances

 

Will Democrats Vote for Filibuster Reform?

| Fri Nov. 30, 2012 2:26 PM EST

The biggest impediment to filibuster reform has never been Republicans. Senate rules can be changed without them, and their threats of retaliation are mostly bluster. In reality, the biggest impediment has always been Democrats themselves. Harry Reid needs nearly unanimous consent from his own caucus, and there have always been a handful of Dems who are leery of change. The question is, how big a handful? Greg Sargent summarizes the current state of play:

The Hill reports this morning that senators Dianne Feinstein, Mark Pryor, and Carl Levin are uncomfortable with a simple-majority change. Senators Max Baucus and Jack Reed have yet to be persuaded. Senators John Kerry and Jay Rockefeller say they're undecided but leaning towards a change. Senator-elect Joe Donnelly is uncommitted. Presuming Republicans vote unanimously against any changes, if Harry Reid loses six votes, filibuster reform is toast.

It's unclear what the objections are from these senators. In the case of someone like Dianne Feinstein, it's probably just institutional conservatism. In the case of someone like Mark Pryor, it's probably the fact that he represents a conservative state. In the case of more liberal senators, it may be fear of what Republicans can do if and when they return to the majority.

But any way you slice it, getting 50 Democratic votes is the real challenge here, and if the Hill is right, Reid is having trouble rounding up those votes even for the very modest set of reforms he's proposing. Stay tuned.

I Guess the Future Wasn't at Stake in This Year's Election After All

| Fri Nov. 30, 2012 1:40 PM EST

There's one particular strain of Republican reaction to their election loss that's always given me the biggest chuckle, and today Paul Waldman highlights it: the absurd proposition that Mitt Romney never forthrightly defended conservative principles.

Now, it's true that Republicans didn't talk about Bush, but that's because the voters still kind of hate him. But the idea that Republicans "never bothered to contest" Obama's economic arguments? That they never challenged the "war on women" notion? Seriously?

You can argue that Mitt Romney was a crappy candidate, but no conservative can reasonably claim that he didn't make a case for conservatism. In fact, that was the best thing about this election: for all the trivia, it presented a fundamental ideological debate, with both candidates talking about first principles throughout. Conservatives aren't happy that they lost that argument. But even though it's not particularly good politics to condemn the voters for not seeing the light, it's a lot more honest than saying they never got the chance to hear what conservatism had to offer.

For months, conservatives yelled from the rooftops about how 2012 presented the sharpest choice ever in governing philosophies. I'm too lazy to Google up the quotes, so someone else will have to do that, but we were told relentlessly that Obama was a tax-and-spend liberal. That Obamacare represented the Europeanization of America. That Democrats were hellbent on class warfare. That Obama had contempt for the business community. That liberals were expanding the welfare state in order to lock up the votes of the masses forever. That religious freedom was doomed if Obama was reelected. That American exceptionalism was on trial. That this was our last chance to decide between being free men or sheep cared for by the state.

This kind of talk filled every nook and cranny of the election, and both Mitt Romney and Paul Ryan joined in. But as soon as they lost, Republicans suddenly decided that it hadn't been a big-picture election after all. It was about bribing Hispanics. It was about voter turnout machinery. It was about Hurricane Sandy. It was about Mitt Romney being a bad candidate. It was about everything except the actual governing philosophies at issue.

I don't really blame conservatives for holding onto this delusion. If I lost an election, I wouldn't suddenly decide that liberalism was a failure. But the contrast this year is far more striking than usual. More than any election in my memory, conservatives claimed that this one was truly an ideological turning point, America's last chance to choose what kind of country we should be. But literally within hours of defeat, they turned on a dime and insisted that the American people weren't given a real chance to decide between two competing visions. And they've maintained this claim despite losing the popular vote in the House, the Senate, and the presidency, and despite the fact that demographic trends very clearly spell even further trouble in the future for their hardnosed brand of social intolerance and slavish dedication to the interests of the rich.

Conservatism can never fail. It can only be failed.

Will BP Really Be Banned from Federal Contracts?

| Fri Nov. 30, 2012 1:12 PM EST

There are several interesting things to note following Wednesday's announcement that BP has been barred from new federal contracts. First, the Department of Interior announced that the oil giant is also barred from obtaining new leases "unless and until" it resolves the issues that got it barred from contracts.

But as Rena Steinzor, a professor of law at the University of Maryland and the president of the Center for Progressive Reform, points out, BP just won 43 new leases in the Gulf of Mexico in June. And in September, BP got $1.38 billion in new Department of Defense contracts. The debarment doesn't affect current leases. The DOD is the primary agency contracting with BP, and BP was its largest fuel supplier last year. And while DOD has said it doesn't plan to apply for a waiver from the debarment, either the agency or BP could still find ways of getting around it, writes Steinzor:

As DOD’s silence implies, the real question here is what will happen next. Under the law, a temporary debarment imposed without the company's consent cannot exceed 30 days. BP must be given the opportunity to rebut the charges and can challenge any final decision in court. Although some courts have concluded that parties do not have any right to do business with the government, others have said that contractors have a "liberty interest" in continuing to do business with the government unless they are cut off for "just cause," meaning that EPA will be compelled to explain itself quite thoroughly if the matter is litigated.
Even more disturbing, individual government agencies and departments may also waive debarment and do business with banned companies for "compelling reasons," a term every bit as loose and loophole-riddled as it sounds. If DOD goes this route and the President doesn’t back EPA, even this temporary debarment will vaporize as quickly as it materialized. There can be little doubt that BP lawyers have pitched a tent outside the office of the Defense Logistics Agency employee in charge of its case file.

The EPA's move to block BP from new contracts is laudable, but it might not be the final word.