As long as we're obsessing about the Supreme Court this morning, I might as well make another point that's been on my mind lately: If the Supreme Court overturns Obamacare, it would be their third major anti-Democratic decision in the past dozen years. That's capital-D Democratic. As in the political party.

When it comes to judicial activism, conservatives claim that we liberals have nothing to complain about. The Warren Court was famously activist in a liberal direction, after all, and we lefties thought that was just fine. But there's a real difference here. The famous Warren Court decisions — ending school segregation, expanding the right to counsel, enforcing one-man-one vote, banning organized school prayer — were obviously decisions that conservatives didn't like. But there was nothing in them that was especially damaging to the interests of the Republican Party.

But things are different this time around. In 2000, Bush v. Gore sent the Democratic Party's candidate for president packing and installed George W. Bush in the Oval Office. In 2010, Citizens United opened the floodgates of corporate campaign money, a ruling that very plainly disfavored the Democratic Party on a purely operational basis. And if Obamacare is overturned, it will be a decision that kills off the Democratic Party's biggest legislative achievement in decades.

The current Supreme Court is obviously more conservative than we liberals would like, but that's what happens when the other guys win elections. To some extent, them's the breaks. But to hand down decision after decision that very plainly opposes the agenda of one party over another is quite another. If there's an argument to be made that the court is endangering its legitimacy, this is it. It's not just that overturning Obamacare would be a prodigious repudiation of major legislation based on a very small and questionable point of constitutional law, it's that it would hammer home the point that this court just doesn't like the Democratic Party much. That's not something that either Democrats or Republicans really ought to be comfortable with.

Speaking of constitutional history, Andrew Koppelman has an interesting piece today in the New Republic about a 1918 case that's surprisingly apropos of today's fight over Obamacare — and the conservative fear that upholding it would mean that Congress has been fully unleashed and can now do anything it damn well pleases. Back then, it was about a new federal law that banned the interstate shipment of the products of child labor:

The parallels between the child labor issue and the health care issue are remarkable. In both cases, the legislation in question was the product of a decades-long struggle....Only the federal government could address the issue, since no state would act on its own....Both then and now, challengers to the statutes had to propose that the Supreme Court invent new constitutional rules in order to strike them down. At the time it considered the issue in 1918, there was nothing in the Supreme Court’s case law that suggested any limit on Congress’s authority over what crossed state lines. On the contrary, the Court had upheld bans on interstate transportation of lottery tickets, contaminated food and drugs, prostitutes, and alcoholic beverages.

That’s why the Supreme Court’s invalidation of the law in 1918 astounded even those who had most strenuously opposed enactment. Hammer v. Dagenhart declared — in tones reminiscent of the Broccoli Objection to Obamacare — that if it upheld the law “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” Justice Oliver Wendell Holmes, dissenting, wondered how it could make sense for congressional regulation to be “permissible as against strong drink but not as against the product of ruined lives.” The Court responded that unlike all the contraband that it had permitted Congress to block, the products of child labor “are of themselves harmless.” This meant a completely novel constitutional doctrine: The Court took unto itself the power to decide which harms Congress was permitted to consider when it regulated commerce.

If Obama is going to delve into Supreme Court history to defend healthcare reform, maybe he should skip Lochner and Schechter and instead talk about the Supreme Court's overreach in Dagenhart. Reminding the country that a conservative court once overruled Congress and stood up for the right of 9-year-olds to operate power looms twelve hours a day might bring a little perspective to things.

Speaking to reporters yesterday about his healthcare reform legislation, President Obama suggested that "a law like that" — i.e., one that clearly regulates interstate commerce — "has not been overturned at least since Lochner, right? So we're going back to the '30s, pre-New Deal." James Taranto is simply outraged:

In fact, Lochner — about which more in a moment — was decided in 1905. Thirty years later, after the New Deal had begun, the high court unanimously struck down one of its main components, the National Industrial Recovery Act, as exceeding Congress's authority under the Interstate Commerce Clause. The case was A.L.A. Schechter Poultry Corp. v. U.S.  (1935).

....In citing Lochner, the president showed himself to be in over his head. The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the "liberty of contract"....Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law — contrary to the president's claim — and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

This cracks me up. It's true that Obama got this wrong. Clearly he hasn't been brushing up on his con law cases lately. But I'd be surprised if a single person in the original Republican primary field had even heard of Lochner or Schechter. As I recall, in 2008 Sarah Palin couldn't even name a single Supreme Court case other than Roe v. Wade.

Conservatives have long been desperate to paint Obama as an idiot — when they're not busy painting him as a Harvard elitist, that is — but if the best they can do is to feign outrage over the fact that Obama mis-cited a century-old Supreme Court case, they're digging pretty deep. If that represents the outside boundaries of Obama's ignorance, I'd say we have a pretty well-briefed president.

UPDATE: Okay, two things. First, it was a wee bit hyperbolic to suggest that none of the Republican primary candidates had heard of Lochner or Schechter. Several of them are law school grads, and those are famous cases. They've probably heard of them.

Second, one of the common defenses of Obama is that he meant to say "Lochner Era," which is just shorthand for the era from 1905 to the mid-30s, during which the Supreme Court routinely struck down laws that regulated commercial interests. Maybe so. But he specifically mentioned "pre New Deal," and the Lochner Era goes at least until 1935, when Schechter was handed down. That was very famously a New Deal case (it overturned the NIRA), not pre-New Deal. So that doesn't really fit.

Generally speaking, I've been a little surprised at how careless Obama has been on all this. His original statement that overturning ACA would be "unprecedented" was pretty sloppy. As it happens, I think it would be unprecedented in recent history, but you need to say that, and then say at least a few words about why it would be unprecedented. And the Lochner stuff was sloppy too. I'm not sure why he hasn't been a little more careful in his choice of words.

Nonetheless, listening to conservatives wail about a minor bit of imprecision in a small corner of con law history is a little hard to take, as is their frenzied suggestion that Obama was repudiating the whole concept of judicial review. Coming from a party that makes ridicule of pointy-headed, book-learnin' elites practically a litmus test for the presidency, it's a bit much.

This is mostly in the pointless frivolity category, but the chart below from Matt Glassman shows total annual volume of email received by Congress since 1996. Matt has a few observations about what this all means, which you should read, but what I'm curious about is the huge drop in 2008-09. What happened? Matt says it's a technical artifact: "The large peak in 2007 and the drop-off following it are almost certainly due to the explosion of more intelligent spam and the corresponding adoption of powerful new and improved spam filters in both chambers that year."

If that's true — and corroboration would be welcome from anyone with working knowledge of this stuff — it's an object lesson in statistical analysis. Land mines are everywhere! If you saw this chart and concluded, say, that the financial crisis had somehow wiped out people's desire to email their congresscritters, and then built an elaborate theory around that guess, you'd be totally wrong. It would be a perfectly reasonable theory, but it would be wrong. In reality, nothing interesting happened at all. Caveat emptor.

For the last year or two, the standard MO in Europe has been pretty straightforward: a crisis of some kind every five or six months, followed by a solution that everyone claims will finally fix things, followed by yet another crisis. It's about time for the next one, and Spain appears to be the most likely source this time around:

Spain has set off further alarm bells among bond investors and its crisis-hit eurozone neighbours by conceding that its debts will balloon this year to their highest level for two decades....Despite announcing its most austere budget for more than 30 years last week, Spain's government admitted on Tuesday that the debt-to-GDP ratio will jump to 79.8% in 2012 from 68.5% last year.

....Nerves around Spain's creditworthiness — whose economy is twice the size of that of Greece, Ireland and Portugal combined — had settled somewhat since the depths of the eurozone debt crisis last year. But recent days have brought renewed fears in financial markets and among fellow eurozone members that Spain could be the biggest threat to their future.

Yep, that's a shocker. Spain's most austere budget in three decades has produced a terrible economy, which in turn is producing even bigger deficits. Who could have predicted it?

As usual, it's not as if there are any easy solutions here, so I suppose excessive snark isn't really justified. Still, it's not as if no one saw this coming. And it's inevitable that these crises will continue popping up every few months until, one way or another, Europe solves its fundamental problems. That still doesn't seem to be anywhere on the horizon. In the meantime, keep your seatbelts fastened.

This is beyond bizarre. A three-judge panel of the 5th Circuit Court is hearing a challenge to Obamacare, but when a Justice Department lawyer began arguments this morning she was stopped short:

Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law. The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists....Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

Despite the fact that Kaersvang immediately acknowledged that courts can indeed strike down laws, the panel ordered her to "submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power."

Seriously? These judges are acting like a middle school teacher handing out punishment to a student because of something her father said at a city council meeting the night before. I'm a little hard pressed to finish up this post on quite the right note of jaw-droppitude, but luckily an attorney friend from the South just emailed me about this. Here's his take:

This is meant to embarrass the President. Full stop. Jesus, this is getting scary. It just seems like all out partisan war brought by the Republicans from all corners of the Government. They want to push it as far as they can. And then further. It's incredibly destructive.

Somebody on the right needs to speak up about this. It's an outrageous abuse of judicial power.

UPDATE: Allahpundit speaks up. Judge Smith, he says, was "honked off" at Obama's Rose Garden suggestion that overturning ACA would be "unprecedented":

No true-blue Warren-Court-loving lefty like The One would ever seriously impugn judicial review. And the Fifth Circuit knows it. What they’re doing here is humiliating him as a way of getting him to stop the demagoguery, with the letter acting as the equivalent of a kid writing on the blackboard as punishment after class. “I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question...”

Just what we need. Conservative judges getting "honked off" at a presidential speech and deciding to dish out a little extrajudicial humiliation just to make their honked-offitude clear.

In a recession, you'd expect average pay to adjust to a lower level. As unemployment rises, workers should be willing to accept lower wages, and as wages drop employers should become more willing to hire new workers. If this doesn't happen, the recession is likely to persist. One of the current problems in Greece and Spain, for example, is that their workers became increasingly uncompetitive over the past decade. One way to correct this is by devaluing their currency, which would effectively reduce wages countrywide compared to the rest of Europe, but because they're both on the euro they can't do this.

Another way to effectively reduce wages countrywide is to keep compensation constant but allow a higher inflation rate. If inflation is running at, say, 4%, and you get no pay increase this year, your wages have effectively gone down 4%.

But what if inflation is low? Then the only way to reduce wages is to actually reduce wages. For a variety of reasons, however, employers generally aren't willing to do that. It just pisses off their workers too much. At least, that's the theory. And the chart on the right, from a San Francisco Fed letter, demonstrates that it seems to be true. It tracks wage changes during 2011, and there's a huge spike at zero. Employers don't have a big problem handing out tiny raises and letting inflation do their dirty work for them, but they don't like to directly reduce wages themselves:

This is supported by the large gap to the left of zero between the actual distribution of wage changes and the dashed black line representing the normal distribution. This gap suggests that the spike at zero is made up mostly of workers whose wages otherwise would have been cut.

The moral of this story is that tolerating high inflation during a recession is a helpful thing. The faster wages adjust, the faster the recession will be over, and a high inflation rate allows wages to adjust downward even if employers simply keep nominal pay flat. It's probably too late for this to make much of a difference anymore, but an inflation target of 4% starting back in 2008 probably would have produced a stronger and faster recovery than the one we're finally getting now.

Gardiner Harris has a long front-page piece in the New York Times today about friction between the FDA and the White House over just how strict the FDA's rules should be. With one exception (Kathleeen Sebelius's overrule of the FDA's decision to make the Plan B emergency contraceptive available over the counter) the conflicts actually struck me as fairly minor. One was a labeling issue, another seems to have been little more than a request for information, one is still up in the air, and another was a reaction to a pretty outrageous case of price gouging. This is the stuff of fairly routine bureaucratic scuffling.

But even if there's maybe a little less here than meets the eye, it's interesting to read the genesis of the bickering:

A decision that had nothing to do with the F.D.A. proved the turning point in the agency’s relationship with the White House. In the midst of the bitter 2009 battle to pass a law to provide health care to tens of millions of uninsured Americans, the United States Preventive Services Task Force announced in November that most women should not get routine mammograms until age 50 because the risks of the X-ray screens and surgical biopsies that often follow outweighed the benefits in younger women.

Although the task force did not consider cost in its analysis, Republicans charged that its recommendation was the start of health care rationing, an accusation given prominent play on Fox News. “That scared the bejesus out of everybody,” a top F.D.A. official said.

....A provision of the new law required chain restaurants and “similar retail food establishments” to post calorie counts on menus....The F.D.A.’s first draft of the guidelines — approved by the Department of Health and Human Services and the White House — stated that movie theaters, lunch wagons, trains and airlines would be included. A report about the proposal in The Wall Street Journal on Aug. 31, 2010, nevertheless caught the White House by surprise.

“This was the era of Glenn Beck, and the White House was terrified that Beck would get up and say this is all part of the nanny state,” a senior F.D.A. official said. Beth Martino, the F.D.A.’s chief spokeswoman, was instructed to write a blog post reversing the agency’s draft guidance even before the comment period closed and did so on Sept. 8.

Consumer advocates were outraged.

If this is true, Fox News has really gotten inside the Obama administration's head. On big issues, Obama seems generally willing to take the long view and just accept whatever attacks he's going to get. But at the same time, it sounds like the White House is almost hypersensitive to the potential for smaller issues to balloon into gigantic tea party press frenzies. And on those issues, the game isn't worth the candle. They aren't willing to take weeks or months of demagoguery on Fox over the question of whether movie theaters have to tell us just how bad their popcorn is. (Pretty bad!)

So Fox News is clearly inside the White House's OODA loop in a pretty systematic way these days. Congratulations, guys.

I think David Kopel made this point over at the Volokh Conspiracy a few days ago, but today he takes to the Washington Times to argue that Florida's "Stand Your Ground" law isn't really an issue in the Trayvon Martin case:

The assertion that Florida law allows shooting whenever someone believes it to be necessary is a flat-out lie. The actual law of Florida is that “a person is justified in the use of deadly force” if “(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself...."

Florida’s rule that deadly force may be used to prevent “imminent death or great bodily harm” or “the imminent commission of a forcible felony” is the norm throughout the United States.

Like the majority of American states, Florida does not mandate that victims of a violent crime attempt to retreat before they defend themselves. The retreat rule is irrelevant, regardless of whether you believe Trayvon’s advocates or Mr. Zimmerman’s advocates....Even among the more restrictive states, such as New York, retreat is not required before using deadly force in the home - to prevent a burglary, robbery, kidnapping, rape or other forcible criminal sexual attack. Thus, whether you are in Lake Placid, N.Y., or Lake Placid, Fla., and someone attempts to rob you when you are walking down the street, you have no duty to retreat before using deadly force to thwart the robbery.

I've deliberately commented sparingly on the Trayvon Martin case because the actual facts of the matter are in such turmoil. So I apologize if this question has been answered elsewhere and I just haven't seen it. 

But here's the part I've never quite gotten. Even if you accept Zimmerman's side of the story entirely, Zimmerman was an armed man tracking Martin and obviously scaring the hell out of him. In Zimmerman's account, Martin then jumped him and started beating him up. But even if this is the whole story, is that grounds to shoot someone? Just how much bodily harm do you have to reasonably expect before you're allowed to kill someone? After all, this wasn't in someone's home, and Martin wasn't trying to rob Zimmerman. He was a guy that Zimmerman was trailing. Surely "great" bodily harm has to mean more than just wrestling someone to the ground and throwing some punches, even in Florida? What does Florida law say about that?

Andrew Sullivan links today to a post by David Glasner arguing that low marginal tax rates might actually be bad for the economy:

Our current overblown financial sector is largely built on people hunting, scrounging, doing whatever they possibly can, to obtain any scrap of useful information — useful, that is for anticipating a price movement that can be traded on. But the net value to society from all the resources expended on that feverish, obsessive, compulsive, all-consuming search for information is close to zero (not exactly zero, but close to zero).

....So I am inclined to conjecture that over the last 30 years, reductions in top marginal tax rates may have provided a huge incentive to expand the financial services industry. The increasing importance of finance also seems to have been a significant factor in the increasing inequality in income distribution observed over the same period. But the net gain to society from an expanding financial sector has been minimal, resources devoted to finance being resources denied to activities that produce positive net returns to society. So if my conjecture is right — and I am not at all confident that it is, but if it is — then raising marginal tax rates could actually increase economic growth by inducing the financial sector and its evil twin the gaming sector — to release resources now being employed without generating any net social benefit.

Count me in! I'm totally ready to believe this.

Except that I don't get it. It's certainly true that marginal tax rates have declined dramatically since 1980. It's also true that the financial sector has expanded dramatically since 1980. But what evidence is there that low tax rates caused that expansion? Does finance benefit from lower taxes more than other industries, thanks to the sheer number of transactions it engages in? Or what? There's a huge missing step here. Can anyone fill it in?