2005 - %3, October

The Imperial Presidency

| Wed Oct. 12, 2005 12:07 PM PDT

Oy. Harold Meyerson reports that Andy Card is confirming some of my worst fears on Harriet Miers:

As White House chief-of-staff, [Card] found the most intriguing article, he said, to be Article II, which established the presidency and the executive branch. Miers, he continued, understood Article II as well, and would defend it "when challenged by those given the power to challenge it by Article I [i.e., the Congress] and Article III [i.e., the courts]." …

At minimum, he suggested that Miers would be the staunchest proponent of executive power over that of the other two branches that the Court had seen in a very long time.It's worth unpacking this statement, because it's much more significant than one might think at first glance. Neil Kinkopf, a former lawyer in the Clinton administration's Office of Legal Counsel, wrote a Legal Affairs article a while back noting that Republican administrations for decades have adhered to this "exclusivity" view of the executive branch—the view that the Constitution divides executive and congressional power into separate spheres, and one cannot encroach on the other. The view appeared in 1989, when then-Assistant Attorney General William Barr wrote a memo to all federal agencies saying: "Only by consistently and forcefully resisting… congressional incursions can Executive Branch prerogatives be preserved." And it came up in the torture memos written in 2002 by Jay Bybee and John Yoo, arguing that the executive has sole control over the military, and as such, Congress cannot stop the president from ordering torture or other coercive interrogation methods.

At least in modern times, the Supreme Court has generally dismissed this "exclusivity" view, with important results. In 1952, the Court barred Harry Truman from seizing steel mills under strike, on the view that the Constitution "enjoins upon its branches separateness but interdependence." In 1974, the Court rejected Nixon's claim of executive privilege to withhold Watergate tapes. In 1988 the Court upheld a congressional law creating an "independent counsel" to investigate and prosecute government wrongdoing, on the theory that Congress may regulate the executive branch. The constitutional theory outlined by Card—and, apparently, Harriet Miers—would, apparently, reject this reasoning.

Does it matter? Yes, and not just because such a view would prevent Congress from banning torture. In his Legal Affairs article, Kinkopf noted that in 1988 Congress required the Department of Health and Human Services to mail every household an educational pamphlet on AIDS. The Reagan administration didn't like the pamphlet and refused to mail it, and the Reagan OLC argued that Congress was encroaching on the president's exclusive right to administer the DHHS. Congress ordered the mailing regardless, but a Court filled with Miers-esque judges might have sided with Reagan. In 1989 the first Bush administration tried to use the "exclusivity" view before the Court to strike down a law authorizing whistleblowers to bring lawsuits on behalf of the federal government against fraudulent contractors. And so on. A judge sympathetic to the "imperial presidency" view is a very bad thing, and seems to me like a much bigger deal than Miers' supposed lack of qualifications.

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Raise Taxes on Whom?

| Wed Oct. 12, 2005 10:06 AM PDT

It's hard to know what the Bush administration plans to do with this:

President Bush's tax advisory commission indicated on Tuesday that it would not propose replacing the income tax with a national sales tax or a value-added tax, but would recommend limits in the popular tax deductions for mortgage interest and employer-provided health insurance.

Interesting. Depending on how that mortage-interest deduction gets phased out, a lot of home values could end up dropping as a result, on the theory that currently, many folks are already bidding up the price of homes until it roughly offsets the value of the deduction. Since the deduction would only be limited rather than eliminated, I'm guessing this would disproportionately affect the upper-middle-class. (Same with the health care deduction for businesses, which is largely regressive.) To balance against this, the commission has recommended eliminating the Alternative Minimum Tax, which would give many of these—presumably upper-middle-class—homeowners an offsetting tax cut, depending on the details, but ultimately, the bulk of the AMT affects high income-earners, primarily. Best to wait until CBPP comes out with an analysis before judging.

In the past, the White House has screwed the poor in order to benefit the well-off; but creating winners and losers among the upper-middle class? Seems treacherous. Or maybe not: Kevin Drum once noted that this constituency is the easiest group for the Republicans to abandon when it comes to tax cut politics. Guess he was right.

Oh, and a flat tax is still under consideration.

It only appears that way when you have a pinhead

| Tue Oct. 11, 2005 7:40 PM PDT

"He is doing great. He has big broad shoulders."

That was First Lady Laura Bush's assessment of her husband and his handling of disasters such as Hurricane Katrina and September 11. In her interview with NBC's Today, Bush went on to say that the people in Louisiana "are rebuilding their lives and other people want to help them."

She was a few miles from my house when she said these things. Her husband was hammering nails at our Habitat for Humanity headquarters in a photo op that even the insulated pod people in his inner circle should have told him to avoid. I listened to the radio this afternoon--all of New Orleans' radio stations are still broadcasting out of Baton Rouge under the United Radio Broadcasters of New Orleans umbrella--and the usual conservative callers were enraged that Bush had made another trip to Louisiana to have dinner and engage in yet another shallow photo session. One of the hosts, not known for his liberal thinking or even for deep thinking, remarked that "if this is the compassionate conservative, I'd hate to see the mean-spirited jerk."

Over the last several years, Louisiana, formerly a solidly Democratic (moderate, of course) state, has become more and more conservative. The state went for Bush in 2000 and 2004. Today, though--at least in south Louisiana--there is agreement that the White House and the entire federal government let Louisiana down in the worst way. There are a few who want to blame Governor Blanco, Mayor Nagin, or Jefferson Parish president Aaron Broussard, but they are becoming a smaller and smaller minority.

As for people rebuilding their lives, thousands are not. They are in other states and will never come back. Many are still living in shelters; the luckier ones have moved into the few FEMA trailers we have seen. Untold numbers of people in New Orleans and surrounding parishes have lost their businesses, just like that. Thousands more have lost their jobs. Those who have returned to New Orleans cannot shop for supplies. There are no hospitals. There is no payroll for law enforcement officers. There is no public transportation. Hundreds of people are still unaccounted for. The tax base is nonexistent. And unlike other areas who have received large relief packets from the federal government, Louisiana has been told we will have to repay the money.

There is no way to really understand the devastation unless you live here. Pretending that Bush--a man so out of touch, one of his aides had to make him a DVD so he would have a clue about what happened when Katrina hit--is prepared to handle the tragedy that has befallen Louisiana is just adding insult to a region that has already suffered catastrophic injury.

Are Democrats trying to shoot down Paul Hackett in Ohio?

| Tue Oct. 11, 2005 4:34 PM PDT

Just posted at Mother Jones: "Friendly Fire," by David Goodman.

For a candidate who just lost a congressional race, Paul Hackett has been a popular guy this fall. The tough-talking Iraq combat veteran turned a special-election fight in Ohio's Second District into this summer's political sleeper hit, energizing Democrats and converting Republicans in the deep-red counties outside Cincinnati and pulling 48 percent of the vote in a district where John Kerry got a mere 36 percent. Soon the national party came courting: Hackett met several times with Senate Majority Leader Harry Reid and Sen. Chuck Schumer, chair of the Senate Democratic Senatorial Campaign Committee (DSCC), both of whom encouraged him to run for the seat of Ohio's senior senator, Republican Mike DeWine, in '06. Hackett said he would—after been told by Ohio Congressman Sherrod Brown that he wasn't planning to run—and on October 3 he publicly threw his hat in the ring.

Then, last week, his phone rang again. It was Sherrod Brown calling to tell Hackett he'd changed his mind: he was running after all. Then Schumer called, and this time he wasn't delivering a pep talk. Hackett got the distinct sense that he was being asked to make way for the party insider. "Schumer didn't tell me anything definitive," he says. "But I'm not a dumb ass, and I know what he wanted me to do."

Continue reading "Friendly Fire" at MotherJones.com

Should Miers Be Confirmed?

| Tue Oct. 11, 2005 1:43 PM PDT

Mark Kleiman is thinking about what the Democrats should do on Harriet Miers. I'm certainly not much good at giving political advice, and there's no reason why anyone should listen to what I suggest, but here are a few odds and ends:

  • Obviously, the key consideration is this: "If Miers is defeated, would her replacement be better or worse?" With that in mind...
  • Whatever else one can say about her, say this: Miers is an administration hack of the first order, utterly subservient to the Bush family. She will almost certainly rule Bush's way in a number of upcoming Supreme Court cases—Hamdan v. Rumsfeld, Padilla v. Rumsfeld, challenging the authority of the president to detain and torture whoever he wants without Congressional oversight. This, to me, is the most important issue on the Court's docket in the near future, along with abortion.
  • The Senate recently passed a bill regulating treatment of detainees in U.S. custody. How long will that bill last? The White House OLC, under Alberto Gonzales, has argued that "any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority to the President." As a legal matter, I think this is flat wrong. As policy, it's disastrous. But would Miers endorse this view, or something like it? Another, more "principled" conservative might put limits on Bush, although that's a gamble: Antonin Scalia has argued, in Hamdi v. Rumsfeld, that American citizens have a right to challenge their imprisonment, but "enemy combatants" abroad do not; Clarence Thomas, meanwhile, basically believes the executive branch can do whatever it wants. Miers will almost surely take Thomas' view; if she was defeated or her nomination withdrawn, her replacement might take Scalia's slightly-less-bad view, which would be better than nothing. But maybe not.
  • On matters concerning things other than the executive branch, Miers is likely to vote no more conservatively than anyone else Bush might nominate. From what we've seen, she might cast a few surprise liberal votes on social issues, especially when it comes to criminal justice, while taking a more consistently pro-business line than a "principled" originalist might do. (Of course, there are very few principled originalists anywhere—see "14th Amendment, affirmative action and"—so this doesn't really matter.)
  • The danger with replacing Miers with a more qualified and "knowledgeable" Justice, one who has a firmer grasp of constitutional issues, like Michael McConnnell, is that a persuasive replacement could potentially convince the centrists on the Court—Breyer, Souter, Kennedy—to swing further to the right. Dahlia Lithwick has suggested that Scalia's antagonistic temperament has alienated many of his colleagues, and Marisa Katz has noted that Rehnquist was unable to convince the liberal justices on his court to sign onto his opinions until he became more likable and less harsh. I already worry that John G. Roberts will be more effective than Rehnquist at this, and we don't need another like him.
  • Politically, if Miers' nomination was sunk, that might harm the Bush administration, but based on history, Bush's ability to ram stuff through Congress seems unrelated to the fact of individual victories or defeats. The Bernie Kerik fiasco didn't hurt the White house, and neither would this. The administration's frequent bumbling of late seems mostly due to the fact that Karl Rove is focusing on staying out of jail. One good thing that could come out of a Miers confirmation would be that evangelical turnout in the 2006 midterms might be depressed; but on the other hand, William Galston and Elaine Karmack have recently observed that evangelical turnout has been mostly constant since 1988, so this seems pretty unlikely.
  • Prediction: The current conservative infighting over Miers will have precisely zero effect on anything substantive, nor will it harm the Republican Party in any way. Read Stanley Coser. Six months from now, they'll have forgotten all about their little grumbling.
  • At an emotional level, I agree with Jack Hitt: Democrats shouldn't even show up for the vote to confirm Miers. This country is fast becoming a banana republic and the best thing the party can do is to let voters know who holds the reins in Congress. More "seriously," though, I don't really know.

    Taking the Offensive on Defense

    Tue Oct. 11, 2005 10:49 AM PDT

    In a recent interview with Salon, Sen. Russ Feingold got vocal about the mess in Iraq and the likelihood that we won't be hanging a "mission accomplished" sign over a working democracy in Iraq before it comes time to withdraw troops. Meanwhile, Robert Kuttner notes in the Boston Globe a CBS poll reporting that 64 percent of Americans "oppose Bush's conduct of the war," and hence:

    [A]n antiwar candidate such as Feingold would be an odds-on favorite to win the Democratic presidential nomination over bigger names disabled by their own fatal caution.

    Keep your hat on Hillary, winning the nomination in 2008 will take more than a diplomatic distaste for war, Bush cronyism, and a federal disaster, or even a season of what some on the right are calling Hillary's primetime infomercial.

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    Keeping the Poor Out

    Tue Oct. 11, 2005 9:40 AM PDT

    Recall that Bush, in the wake of Katrina, was able to suspend federal labor laws that require federal contractors to pay a prevailing wage.

    That was bad enough.

    But now it seems that not only are workers at companies with federal contracts being paid below the prevailing wage, but they are being radically underpaid. Body and Soul links to an LATimes story today which notes that some workers are only being paid $4 an hour!

    Jeanne then writes:

    If all you care about is putting up structures, cheap is good. If you're trying to rebuild a community, the most important thing is giving people something to come back to. Four dollars isn't it. If anybody cared about the community, they'd be paying way more than prevailing wages, and giving evacuees priority on getting the jobs.
    Somehow we have trained these corporations to believe that national disasters are a time for them to profit. But this gets things all wrong. A system that privileges the profit of a construction company over the basic welfare of those who will live in the area after it is rebuilt is a system that has been turned upside down. Indeed, what good will it be to rebuild that community if you underpay the very people who are supposed to live that community?

    DNC Outsources Work to Union-Busting Company

    Mon Oct. 10, 2005 7:01 PM PDT

    There are a few things I expect of the Democratic Party and groups that it hires, employs, works with, etc. 1) Provide great healthcare to all employees and 2) Respect your workers by honoring their right to strike, organize, and collectively bargain.

    Unfortunately, this does not always happen. Nathan Newman directed me towards a rather disturbing story: a Denver-based company called Telefund has been allegedly engaging in Union Busting. What makes this so upsetting is that many progressive organizations outsource their fundraising efforts to Telefund, including, among others, The Democratic National Committee, Amnesty International, the Sierra Club, and Mother Jones.

    Now, there is no indication that any of these organizations are aware of the union busting activity as it has only just come to light. But now that the story has surfaced, an investigation is needed.

    Nathan is right, the DNC (and these other progressive organizations) should not associate itself with any institution that so egregiously violates its workers' rights. I can only hope that they act swiftly to resolve the matter.

    [Story originally found at YAL]

    Preparing for the Flat Tax Assault

    | Mon Oct. 10, 2005 6:11 PM PDT

    I see that Andrew Sullivan has made the flat tax his new pet issue, noting, among other things, that the Eastern European countries that have implemented the flat tax have all seen stunning rates of growth in recent years. Well, good for them. Since this issue is likely to come up sooner or later, though, here are a few initial, mostly scattered points:

  • It's unclear what's boosting those Eastern European economies, exactly. These are all countries that have emerged from communism, privatized industry, and seen an influx of western investment over the past decade. You'd expect them to grow quickly, no? I'd like to see more before ascribing magical powers to the flat tax. Slovakia, for instance, had 4.2 percent growth in 2003, "the strongest growth in Central Europe," right before it moved to the flat tax. Huh. And President Ivan Gasparovic has recently said that the wave of new foreign investors are attracted by the country's cheap labor costs rather than its flat tax rates.
  • Similarly, this IMF paper wonders whether Russia's boost in tax revenues following its flat-tax reform in 2001 were due to voodoo economics or merely to better enforcement. See also "Demythologizing the Russian Flat Tax" by Clifford Gaddy and William Gale.
  • Flat-taxers love to hype the simplicity of the "postcard size tax return," but as analysts have pointed since the days of Cain and Abel, the simplicity of a tax system has nothing to do with the tax rates. Progressive tax rates don't make our system complicated. Once you know your income, you can just as easily multiply it by 23 percent as by 17 percent with a calculator. Try it! The real difficulty comes in actually defining one's income and calculating all those deductions and exemptions. That will never be easy for some people, say, Dick Cheney, no matter what kind of tax system we have. We can still have a simplified tax code that happens to have different rates for different income levels. There are good and fair ways of doing this.
  • It's worth noting that when you add up all federal, state, and local taxes, this country already has fairly "flat" tax rates. According to CTJ, the top 20 percent of earners pay about 32 percent of their income in taxes, the next quintile 29.8 percent, the next quintile 27 percent, and the next quintile 23 percent.
  • Popular resistance to a flat tax, at least in the United States, will come from people who don't want to give up the concrete deductions and exemptions they currently have in exchange for theoretical future gains down the road (from supposedly higher economic growth). I have a feeling that this is a psychological phenomenon that's very difficult to get around.
  • Home values would very likely decline in the short term if we switched to a flat tax and eliminated all deductions, on the theory that right now, the home-mortgage deduction enables buyers to bid up the prices of real estate. The price decline wouldn't change anything on net, but people who currently own homes would obviously be screwed.
  • So, for that matter, would many large businesses. Some corporations get deductions for interest on loans that they've taken out to purchase new equipment, as well as deductions for the depreciation of current equipment. Businesses that have been borrowing and investing in new equipment aggressively would get a kick in the teeth if the United States eliminated all deductions and moved to a flat tax. I daresay that manufacturing would suffer the worst; just don't tell Clyde Prestowitz.
  • If Congress can't, for political reasons, eliminate all those deductions and exemptions, then the effective flat tax rate is going to be very, very high. Certainly higher than the 15 percent effective federal rate that about 60 percent of all taxpayers currently pay. Of course, those are the bottom 60 percent of income-earners, and they have precisely zero sway over the current Republican Party, so that's obviously not a political concern for anyone in power.
  • In theory it's possible to design a progressive flat tax, or simplify the tax code in all sorts of progressive and sensible ways, as Dick Gephardt has suggested. But that's not the flat tax that Andrew Sullivan, John Breaux, or George W. Bush have in mind. Any tax reform that lowers the rate on the wealthy will have to raise taxes elsewhere, obviously. There's no getting around this, except with deficits. If I had to bet, I'd bet that the GOP shies away from real flat-tax reform (for reasons #5, 6, and 7 above) this fall and instead just enacts further tax cuts for its allies. Democrats are in danger of coming to power soon; best to leave them a nice big deficit mess and let them reap the political whirlwind.

    Second Term Revolving Door

    | Mon Oct. 10, 2005 3:34 PM PDT

    The Center for American Progress has a new report out called "The Second Term Revolving Door," documenting new Bush administration officials who have ties to business, as well as former officials who are moving on to plush lobbying careers. In a the abstract, it's hard to see the big deal: clearly a number of appointees in the executive branch are often going to have business experience; nor is it a big deal if civil servants want to cash out after they leave government. This administration, on the other hand, deserves very little benefit of the doubt, especially after it let industry lobbyists infiltrate the Environmental Protection Agency and Food and Drug Administration (see here for a long list) and corporate cronies oversee their former companies in Iraq.

    Perhaps most notably among the current batch, both Philip Perry, the General Counsel for the Department of Homeland Security, and Michael P. Jackson, Deputy Secretary for DHS, have ties to Lockheed (Perry a former lobbyist; Jackson a former COO). Tim Wiener reported in the New York Times last fall that Lockheed is "increasingly putting its stamp on the nation's military policies" through its corporate connections. That process seems to be accelerating.