Closing out the October fright-fest, this week’s movie recommendation is Ridley Scott’s wildly successful maiden voyage of one of the best haunted house franchises in movie history. It’s Alien (1979).
The opening shot lingers on a wide open expanse of space. Instead of being a place of tranquil comfort, though, Scott’s outer space is an empty and soulless oblivion. Piercing that massive expanse is the clunky Nostromo, a cargo ship staffed by seven weary crew-members on a return trip home. During their journey, they are roused from ‘hyper-sleep’ to respond to a distress signal emitted from a mysterious source along their route. Exhausted by travel and labor, the crew struggles to see why the distress call should be their responsibility. Over the objections of the engineers Brett and Parker (played by Harry Dean Stanton and Yaphet Kotto, respectively), Dallas the captain (played by Tom Skerritt) insists on the Nostromo responding to the call.
Upon reaching the source of the signal, the crew finds a strange, possibly alien spaceship. The exploration party brings back to the Nostromo an unexpected package with unknown properties. In one of the most iconic scenes in movie history, the nature of that package becomes clear while the crew sits down to eat together. Unbeknownst to the crew-members, in bringing the package aboard they also set loose a hostile alien with acid for blood, an appetite for humans, and a mean, mean temper. From that scene onward, the eponymous alien hides in the ventilation pipes and steam-filled corridors of the Nostromo, growing in form at each appearance while it hunts the crew-members - the most resilient of which is the impressive Ripley, played by Sigourney Weaver in her career-making role.
When the characters wake from their groggy slumber at the start of the film, unenthused about either the job they currently have or the one to which they’ve been newly assigned, there’s a prevailing sense of gloom and diffidence permeating the mood. The pacing is deliberate, slow, and unnerving. Then, after the initial set-up is out of the way and the battle against the alien begins, it’s a long haul of tension, anxiety, and fear from about 45 minutes in right through to the very end. Unlike many horror films of similar ilk, Alien doesn’t bother with wacky offbeat comic relief to control the film’s pacing. Instead, Scott is merciless in giving the audience no reprieve whatsoever from the suspense.
Although the budget in Alien was ultimately sizeable, the project certainly did not begin life that way. Much of the film was shot on a shoestring, and it shows in the final product: the tricks Scott uses to elicit a gasp and build tension are basic and require little more than a well-placed shadow and camera. The performances are air-tight, as well. But the suspense of the film is not so much attributable to the action of the film as its concept: one of the defining features of the Alien franchise is the fear and uncertainty about who’s on the good guys’ team.
That ‘evil within’ theme runs throughout the film and operates at multiple levels: there’s the obvious fact that the alien is inhabiting the very ship that’s supposed to protect the passengers from the danger outside; there’s the suspicion surrounding one of the crew members, who isn’t letting on all he knows; there’s the more visceral nature of the alien’s gestation inside the chest cavities of its victims; and finally, in a story arc that is elaborated upon in much greater detail in later films, there’s the duplicitous motives of the corporation for which the characters work. At every turn, Alien raises suspicions about precisely that whichought to be providing a sense of security. Surely the spaceship is safe? If not that, then surely the crew is all on the same page? If not that, then maybe we can expect to be secure in our own bodies? If not that, then at least we can hope the nefariousness extends no further than the ship? On all counts, we’re wrong.
As haunted house films go, Alien is about as good as it gets. Notwithstanding some dated monitor displays and odd noises emanating from the computers, you barely notice that it’s already a quarter century old. Some of the scare tactics are just timeless, it seems.
Shepard Smith was the rare voice of reason during the most fevered hours of the Ebola madness that temporarily gripped the nation this month. The Fox News anchor dedicated four minutes of a newscast to explaining what had been evident once you took a deep breath.
The Ebola epidemic sweeping across three West African nations was not sweeping across the United States, he said. One person died. He got sick overseas. Two nurses caring for him were isolated. One has been released. (Another doctor is now being treated in New York.) Those hyping fear of the deadly virus in the media were being “very irresponsible,” Smith said, and if you wanted to do something, get a flu shot. “Unlike Ebola, flu is early transmitted. Flu … killed 52,000 Americans last year alone.”
Four minutes is an eternity on cable news but such was the height of the hysteria that Smith thought it wise to offer a significant corrective. This despite his network’s strenuous efforts to compete for panicked viewers with CNN, which satirist Andy Borowitz quipped was changing its slogan from “The Most Trusted Name in News” to “Holy Crap, We’re All Gonna Die.” And because peak Ebola was happening just before the midterm elections, President Barack Obama decided to create a new position—a so-called Ebola czar—to mute accusations, from Republicans and Democrats, that he’s not doing enough. Obama appointed Ron Klain, a Washington insider, to be his point man. The Pentagon also announced a military rapid-response team to aid in dealing with any sign of epidemic.
This was probably the right thing to do, politically and practically. Ebola is a scary disease that kills in horrible ways. (Once you show symptoms, you’re already dying.) Therefore, a president must project calm, cool and command. Say what you will about the chief executive but Obama has, always has, projected such traits, which is reassuring to those naturally and understandably concerned about themselves and the welfare of their children.
Politically, he didn’t have much choice but to act. The Republicans have been bludgeoning him with the issue, as is their wont. For the conservatives who dominate today’s GOP, any time government doesn’t work perfectly is an affirmation of their belief that government doesn’t work at all. And their loud calls for the president to do something, anything, belie their traditional claim that most problems can be best solved without the help of a meddling federal government.
Such principled incoherence might be ignored if not for the impact it’s having on the Democratic chances in November. Congressman Bruce Braley is in a tight Senate race in Iowa. During a congressional hearing, he said: “I’m greatly concerned … that the administration did not act fast enough.” Senator Kay Hagan of North Carolina is just three points ahead of her Republican challenger according to one poll. She announced recently that she supported Republican calls for flight bans from West Africa, where the Ebola outbreak is worst. (The government has since announced that incoming flights are to be restricted to five airports.)
Given that Obama responded so quickly to pressure to appoint an Ebola “czar,” you’d expect him to respond to calls for an outright ban, especially when vulnerable Democrats are getting behind the idea. But Obama is dithering. He cites public health officials who say a ban is unnecessary with current and improved protocols in place. Yet expertise had nothing to do with appointing an Ebola “czar.” Ron Klain has no heath care experience and little knowledge of public health policy.
I wouldn’t normally make much of this, as Obama is a shrewd president serving his party. But there are greater threats to public health than a rare disease from a foreign country. To be blunt: There are 300 million firearms in circulation and by one estimate death by gunfire will exceed death by automobile accident some time next year. What we don’t need a fake “czar” to handle a fake epidemic. What we need is a surgeon general to handle a very real public-health threat.
The position of the surgeon general has been vacant so long no one remembers who last occupied it. That’s in part due to the president’s competing priorities but it’s mostly due to a filibuster last spring by Senate Republicans of Obama’s highly qualified nominee, Vivek Murthy. The reason is quite plain. Murthy is outspoken in the belief that gun violence is not a constitutional issue but a health issue. The National Rifle Association fears that is cannot control a political narrative outside the one it controls—the right to bear arms being a universal, constitutional, individual and sacred right that cannot be infringed by the federal government. The vocal but weak gun-control faction in the liberal wing of the Democratic Party cannot compete with such a narrative because their narrative tells the story of taking something away—guns and freedom, in the opposing view. Only a narrative as powerful, and as fear-inducing, as a public health threat like the one we’re currently seeing has the strength to rival the dominance of the NRA’s narrative. So Obama has an opportunity to ram through his nominee. That is, if he chose to.
There are reasons to believe he won’t. One is vulgar but needs stating: he’s the first black American president and his every move arouses deep suspicions in the Know-Nothing electorate that currently sways leadership in the Republican Party. This alone explains the Republicans’ doctrine of Massive Resistance, as it were, which has been their single and most effective political strategy since Obama took office. More significant and more subtle is the prevailing view among establishment Democrats, Obama included, that conflict is bad. This is a party that thinks a great deal about tactics and winning elections but avoids taking a stand if at all possible. And finally, even if Obama were to mount a head-on collision with Senate Republicans over Murthy’s nomination, the result might not be worth the effort. Murthy’s widely acknowledged credentials just don’t matter. As Senator Ted Cruz told CNN: “Look, of course we should have a surgeon general in place. And we don’t have one because President Obama, instead of nominating a health professional, he nominated someone who is an anti-gun activist.”
So, the irony remains.
One person dies from Ebola and everyone screams.
Eight people die every day in gun-related deaths and no one says a word.
A Catch to my Bloomberg colleague Al Hunt for killing off an old political chestnut: the idea that winning statehouses will matter in the next presidential election. As he explains, it just doesn’t:
Who wins the governorship matters a lot to citizens of Florida or Wisconsin and elsewhere, affecting important issues such as taxes and Medicaid expansion. The effect on the 2016 presidential race, however, will be minimal. A case in point: In 2012, five of the most competitive battleground states were Ohio, Florida, Virginia, Wisconsin and Iowa. All had Republican governors; all five voted for Barack Obama.
This isn’t cherry-picking. Sophisticated mathematical models also show no effect.
I should say there are indirect ways governors in swing states might have some effect. To the extent Republicans can win unified control of a state government, they’re likely to make it harder to vote in general, including the use of “targeted inconvenience” tactics, to depress the vote for Democrats. When Democrats win control of a state, they’re likely to make voting easier in general, especially for marginal voters (who tend to prefer Democrats). And as we saw in Florida in the 2000 presidential race, in extremely close recounts, it’s a serious edge to have partisan control of state government.
But in general it doesn’t matter, partly because governors don’t care much. It used to be that most of them were elected every two years, or their four-year cycles coincided with presidential elections. Over time, fewer and fewer gubernatorial elections are aligned that way. Given that midterm elections are almost always bad for the party in the White House, electoral incentives may even run the opposite way. A Democratic governor in a Republican-leaning state would probably be better off with a Republican president during a re-election bid.
So even if governors controlled resources that were important in presidential elections, they probably wouldn’t be all that eager to deploy them. And they don’t have those resources anyway. We’re long past the days when formal state parties were important electoral machines (at least in some places) and were controlled by governors (at least some of the time). Presidents and parties run nationwide campaigns, and have access to both national and local resources. Governors don’t have much to do with that.
All in all, what happens at the statehouse level (and, for that matter, in Congress) on Tuesday — as important as it is — doesn’t tell us anything about White House 2016.
The prevailing assumption is that Republicans will take the Senate in the midterm elections on Nov. 4. It would be a surprise if they didn’t. But not a huge surprise.
In the poll averages at RealClearPolitics, Republican Senate candidates have leads smaller than 2.3 percentage points in Alaska, Georgia and Iowa. If all three of them lost — because of better-than-expected Democratic turnout, last-minute shifts in the race, or dumb luck — Republicans would come up just short of a majority.
That would count as a good night for Democrats, given the usual losses the party in charge of the White House suffers in midterms and given President Barack Obama’s current unpopularity. It would be an especially good night for them if they added to the number of governorships they hold by winning tight races in Connecticut, Florida, Kansas and Wisconsin.
Democrats already believe that history is on their side. It’s part of being progressive, and it’s backed up by demographic trends. A good result in adverse circumstances would add to their confidence about both Hillary Clinton’s chances to win the presidency in 2016 and the basic political soundness of their agenda.
Republicans would be shell-shocked, having done worse than expected in two elections in a row. Defeat would mean the party’s problems run deeper than they thought. And fixing them would be complicated by renewed factional quarreling.
Many conservatives, for instance, would argue that the party establishment had led them to ruin. The establishment largely got its way in the 2012 presidential primaries, and then got its way again in running an agenda-less general-election campaign. This time, Exhibit A for these conservatives would be the North Carolina Senate race, where the establishment candidate — Thom Tillis, the speaker of the state House — has persistently run a little behind his Democratic opponent. (Actually, that might be Exhibit B if Senate Minority Leader Mitch McConnell manages to lose in Kentucky.)
Conversely, a lot Republican officeholders might conclude that the Democratic attacks on them as uninterested in compromise and hostile to women had succeeded, and that they should accordingly move leftward.
All this would make for an exceptionally raucous set of presidential primaries in 2016. Already, Republican grandees are very unsure of who their candidate should be, and suddenly they’d be dealing with a primary electorate more distrustful of their favorites.
Election night probably won’t, in reality, be very happy for Democrats. Hillary Clinton should still keep some champagne handy just in case.
The revised report includes new information on “rated capacity” in U.S. jails, a measure of how many inmates can be held at one time. Astonishingly, after first being measured in 1982, this figure went up every single year for the next four decades. The break in the trend finally came in 2013, when national jail capacity fell by about 5,000 beds. Numerically, this is a small change, but after 40 years of unbroken increases, it’s a bellwether.
These national statistics resonate with recent on-the-ground reporting on counties and cities that are trying to sell off jails that they can no longer fill with inmates. Some localities are looking to sell off entire jail facilities, but I’d rather they use them to reduce their prison population. States could be pay counties and cities to take less dangerous prisoners into local facilities closer to their families. On the front end, empty jail cells are ideal for implementing swift, certain and fair community supervision programs that can serve as an alternative to being sent to prison for offenders with drug and alcohol problems.
The New York Times has a story about whether Bill Clinton fared better than Obama in an equally- if not more - polarized environment. Is this claim completely ridiculous? Obama has certainly dealt with some challenging political conditions, but as Clinton and various others in the Times piece point out, the forty-second president was impeached and accused of murder. How does this compare to the political environment in which Obama operates? How can we compare the achievements of the two presidents, in light of their distinct circumstances? And are their circumstances different points on the same spectrum, or are they qualitatively different?
Let’s turn first to the question of achievements. The Times piece doesn’t mention this, but Obama was able to achieve several of the signature items that eluded Clinton during this first two years in office. That is to say, both presidents began their terms in environments that were a bit hostile and more than a bit polarized - but with unified government. Clinton struck out on health care reform, “gays in the military” (a phrasing that now seems beyond clunky), and economic stimulus. Obama, at various points and to varying degrees, saw the passage of important legislation on all three.
After the 1994 midterms, however, Clinton worked with the Republican Congress to achieve another one of his promises: to end welfare as we know it. At various points in his presidency, Clinton also backed “tough on crime” policies, and efforts to manage “indecency” on TV - all issues typically owned by conservatives.
Broadly speaking, one lesson we can take away is that Obama did better with unified government, while Clinton’s experience of divided government, while marred by impeachment, also featured some significant legislation.
There are a number of possible reasons for this. Obama’s main political image is that of a liberal, Northern Democrat, while Clinton’s political identity was firmly rooted in the centrist, and Southern, tradition of the Democratic Leadership Council. The two also met different kinds of Democratic majorities in Congress. Obama’s was a newly energized majority; Clinton’s a bit sleepy after a nearly 40 uninterrupted years of control in the House, and only a six-year interruption in the Senate during the Reagan years. Finally, as I’ve indicated in previousposts, timing is everything. The 2008 election presented a clear choice on economic, foreign policy, and social issues (or so we thought; some of these differences have been more apparent than others). The 1992 election, though delivering a rejection for the incumbent Bush administration, was in large part a contest among competing visions of centrism. Although Clinton defeated an incumbent, the sense of a demand for change in policy direction was arguably more clear in 2009.
Substantial evidence suggests that Obama operates in a much more hostile and divided environment than Clinton did, even after the 1994 elections. Congressional polarization has increased. The presidential approval gap has expanded. Right-wing media has proliferated. Some new research that Amber Wichowsky, Jordyn Cziep, and I presented at APSA also suggests that the language used by the Speaker of the House (in floor speeches and other contexts) has become more sharply polarized over time - more negative toward the president and the other party, more negative about the idea of compromise. So if we are going to measure polarization spatially, or in terms of a continuum, Obama’s presidency is pretty clearly more polarized.
The more difficult question is whether the two presidents’ difficulties are comparable. Clinton was more literally threatened with removal from office - it may happen yet, but Obama hasn’t been impeached and the House seems to have lost momentum for its lawsuit.
Clinton suffered from some major early political setbacks. Even before the health care debacle, he began his first term with low approval ratings and a shaky claim to electoral legitimacy. Although the margin was decisive, the 1992 election brought Clinton to office with only 43% of the vote, and in some circles Clinton was perceived as having won only because Perot “stole” votes that would have otherwise gone to George H.W. Bush.
Obama won the largest share of the popular vote of any Democrat since Lyndon Johnson, and enjoyed high initial approval. But even before the election, Obama’s legitimacy was contested in terms of his religion, race, and background. The most significant of these challenges, of course was the so-called “Birther Movement,” whose core claim was that Obama had not been born in Hawaii as he said, but instead in Kenya, rendering him ineligible to serve as president.
Clinton was the subject of jokes about his class and Southern background, as well as sexist jabs at then-First Lady Hillary Clinton. Nevertheless, there’s a case to be made that the kinds of insults directed at Obama are qualitatively different from much of what previous presidents in general, and Clinton in particular, have had to endure. These attacks get at Obama’s honesty - something familiar to Clinton and to other politicians too - but also at the most basic aspects of his identity: his name, his heritage, and the color of his skin.
The discourse surrounding the legitimacy of Obama’s presidency has tapped into broader political conflicts. Racial, religious, and ethnic attacks say a lot about the people launching them, and they bring people who might not have otherwise been as personally invested into the argument. In this sense, the political implications of the Obama presidency have been a lot different from the Clinton presidency. The nature of polarization in the Obama presidency is evidence of a long-dormant, unfinished conversation in American politics about race.
Despite this important qualitative difference, the fact remains that we are having this conversation about the last two Democratic presidents. Reagan and both Bushes dealt with some of the factors inherent to an age of polarization. But were the legitimacy questions the same? They were certainly present to some extent. We saw bumper stickers about “a village in Texas missing its idiot” and declaring “he’s not my president.” But a serious impeachment movement never took off. Bush’s right to be in office - despite the complications of the 2000 election - was rarely questioned; he certainly never had to produce any additional documentation establishing his right to be in office.
Like Clinton before him, Obama has had a rocky and rancorous presidency. The Bush presidency, too, was marked by intense polarization and debate, and the formation of a clear opposition. But there were far fewer protests against his right to hold office. When we ask who had it worse, Clinton or Obama, the premise of the question may be as revealing as the answers. Have the deepest legitimacy challenges been aimed at recent Democratic presidents, while their Republican counterparts have been spared?
So the House Republicans never got around to filing the lawsuit against the president that they were all worked up about a few months ago (a bunch of people noticed; I recommend Kevin Drum’s look at it).
Rather than try to speculate on why not, I’ll just present a special House version of my occasional look at things that haven’t happened or been in the news, which in turn tells us something important. These aren’t minor items they didn’t happen to get around to. This is basically the Republican agenda over the last several years. So before anyone gets caught up in taking seriously their new claims of what they’re going to do in the future, a little bit of dogs not barking:
1. The House didn’t file the lawsuit against Barack Obama.
2. The House didn’t take up several different “piece by piece” immigration bills.
3. The House never considered tax reform. No bill was considered in committee, or even introduced. They did get all the way to the hearing stage on that one.
4. And the granddaddy of them all, no matter how many times they promise it’s going to happen any month now, the House Republicans still have no “replace” plan for their pledged repeal-and-replace approach to Obamacare. No bill, not even real hearings to talk about drafting a bill.
Coverage of the Pew Research Center’s latest study has emphasized the finding that news consumption has become more polarized, each of us preferring All the News that Fits Our Worldview.
But to me the most interesting finding was different: the deep alienation of conservatives from mainstream media and “journalism.”
Get this: among the 36 outlets they studied, there was only one - The Wall Street Journal - that had positive levels of trust among both consistently liberal and consistently conservative Americans.
This was not because of ideological polarization (liberals trust plenty of outlets). It is because conservatives trust so few. Not surprisingly, they mistrust MSNBC and Mother Jones. But they also mistrust ABC News, CBS, NBC, The New York Times, The Washington Post, and CNN. Hell, they even discount Bloomberg, USA Today, PBS and Yahoo News.
Indeed, among the eight news sources they trusted, only one (The Wall Street Journal) can really even be described as a neutral journalistic organization. The others are proudly ideological: The Sean Hannity Show, Breitbart, Drudge, The Glenn Beck Program, The Rush Limbaugh Show and Fox News. And one suspects that the toleration of the Wall Street Journal results from the famously conservative editorial page not because of the journalism, which is high quality but ideologically indistinguishable from the New York Times.
Conservative activists have, of course, railed against the “liberal media” for years, but it’s jarring to see the extent to which American conservatives have abandoned traditional journalistic sources.
How did this happen?
Part of the answer is Fox News itself. When it launched, Fox did not market itself as a conservative news organization. Rather it was “fair and balanced”, while everyone else was biased. Viewers want to think of themselves as fair minded and Fox obliges by explaining (over and over) that they are the neutral ones while the rest of the media has been corrupted by ideology.
Is there any truth to the claims of media bias? At the heart of the argument is the observation that most reporters are liberal. When I worked at newsmagazines, I would look around at my peers and think, yes, more of them are probably liberal than conservative. When I was national editor of US News I even engaged in what I called “conservative affirmative action,” hiring a couple of talented conservative writers (Michael Gerson and Major Garrett) to provide greater diversity of sourcing and perspectives.
Conservatives then go on to say that this numerical superiority of liberals creates bias against their worldview. Again there’s a grain of truth, especially as it relates to the topics pursued. Reporters are genuinely more interested in, say, the plight of the poor than the plight of the small businessman burdened by regulations. One reason I started a website devoted to religion in 1999 (Beliefnet) was my sense that often-secular, urban editors gave short-shrift to matters of faith.
But where the conservative critique, in my experience, goes off the rails is in exaggerating the significance of those tendencies and misunderstanding the far more powerful institutional and commercial biases that actually shape mainstream media.
Indeed, to a professional journalist, the idea that our ideological proclivities drive our coverage is actually a non-sequitur. It’s somewhat like saying a conservative surgeon would only operate on Republican patients or a liberal mailman would only deliver to homes with Obama signs. On some level, the conservative critique assumes that there’s no such thing as journalism as a profession, bound by a certain code of ethics, reinforced by a professional culture.
What are the more important professional pressures, mores or biases?
We all have our list. In my experience, there tends to be a bias toward contrarianism among reporters and toward establishmentarianism and centrism among media executives. The general tendency of reporters to be skeptical of “the powerful” may sometimes tip them against the wealthy but more often it makes them antagonistic to whoever holds office. (When I was at Newsweek, the contempt for the Clintons was intense). At the same time, reporters are human and fall victim to the same adoration of winners as anyone else. I hate to admit it but, at Beliefnet, we named George W. Bush Most Inspiring Man of the Year when he was popular and piled on the criticism once he became unpopular.
Most important, there is a “bias” toward career advancement, which invariably creates the drive to get scoops or drive traffic. That pushes the relentless quest for drama and pizzazz, rarely with an ideological motivation.
Less cynically, what I mostly have heard during my career is a quaint, old-fashioned commitment to accuracy and fairness. I can remember one or two discussions about holding a story because it would hurt a favored person or cause. But I’ve heard countless conversations about whether something was true or fair.
In fact, while reporters are a notably secular lot, they are the most moralistic people I know - as they tend to reject relativism and think there is actually such a thing as “truth.”
It probably surprises conservatives that the bastion of liberalism, The New York Times, has in recent years exposed Gov. Andrew Cuomo’s meddling with a state ethics commission; showed how gun regulations are making too many people inappropriately ineligible for permits; and unveiled the corruption of liberal lion Charles Rangel.
This does not compute! How could the “liberal” New York Times be spending considerable resources reporting stories that undercut the Democratic Party’s agenda? Apparently, even if the Times is stocked with liberal reporters, other factors drive the newsroom.
To be clear: that’s not to say that reporters don’t sometimes secretly prefer one side (with a few exceptions, most reporters vote, so they have to be puling the lever for someone). And yes, ideological biases can sometimes bleed into journalistic choices. (The largely pro-choice nature of the press corps makes it hard for reporters to understand the non-cynical, philosophical nature of the anti-abortion position).
But on balance these are minor factors compared to powerful forces pushing in other directions, some noble (professional commitment to truth), some less so (need to boost circulation).
The alienation of conservatives from high quality journalism, revealed in the Pew study, is a deeply unfortunate development. Not only does it lead to the polarization described in the Pew report but also to the erosion of a public demand for “objective” journalism.
This, combined with a growing sense on the left that the mainstream media cannot be trusted (because it’s too corporate), means there is a shrinking public constituency for labor intensive reporting.
The British taxpayer just got an unpleasant surprise. The EU obligates member states with stronger economies to pay more of the EU’s budget than do members who have weaker economies. Having crunched a bunch of revised current and past economic figures, the green eyeshade wearers in Brussels have announced that some countries are due money back and others must pony up more. As the above chart shows, many countries are affected, but most of the action can be summed up simply: The Brits are being touched for over 2 billion Euros, which will fund hefty rebates for the French and Germans.
Whether the revised economic figures are more accurate than the early versions (which would mean Britain is simply being asked to make up for a getting an overly sweet deal in prior years) or whether they are less accurate (which would mean Britain is being mulcted) is beyond my ken. What I find more interesting is how European policy making might change if those who want the EU to be more centralized and powerful succeed in their wish to make equalization payments like these much larger and more frequent.
Politicians are always tempted to give voters more in services than they charge them in taxes, while sticking non-voters with the resulting debt (e.g., children and generations yet unborn). This can clearly work politically, but there is always a risk that voters will eventually notice how much their grandchildren are struggling and begin to hold the political class accountable. The perfect solution for this problem for integrity-free pols is to create international agreements such that the debt burden caused by undertaxation (or if you prefer, overspending) is shifted to people who will never be able to kick them out of office: Voters in other countries.
Imagine a EU centralizer’s dream world in which the equalization payments in question were 50 times what they are today. If you were running a country where the work week is capped at 35 hours, the retirement age is 60 and employees are only expected to come to work 26 weeks a year (the rest of the time, they would be on holiday or on strike), you would eventually be punished by the electorate for delivering little or no economic growth. But if you are in international equalization payment agreements with other countries in which cultural norms and labor rules are such that people work much harder and produce more economic growth, you might be more inclined to lower your own country’s retirement age or the number of allowed hours of work per week. Your own citizens would be happier, and your treasury would get a big check each year from other countries. And if the countries who are paying your bills are historical rivals of yours, so much the sweeter — perhaps even a vote winner if handled properly.
When, back in July, Speaker John Boehner secured House authorization to file suit against President Obama for “changing the health care law without a vote of Congress, effectively creating his own law,” cynical Democrats derided the planned litigation as a “political stunt,” a talking point for the fall campaign playbook. But a report by the apolitical Congressional Research Service (CRS), completed on September 4, but never released by the member who sponsored it, nor mentioned in the press, indicates that the Democrats were not cynical enough.
Now, three months after the party-line House vote to green-light the lawsuit, no complaint has yet been filed. If this stretched out delay means that Boehner has actually redirected his sue-Obama gambit toward oblivion, the reason may be this unnoticed six week old CRS report. While bearing an opaquely generic title - “A Primer on the Reviewability of Agency Delay and Enforcement Discretion,” the report actually targets a single instance of alleged agency delay and exercise of enforcement discretion - the Obama Administration’s adjustments of effective dates for the Affordable Care Act’s so-called employer mandate to offer employees ACA-complaint health insurance or pay a tax. This delay happens to be the basis - the sole basis - for the legal action against the President that Boehner outlined in July. Although shrouded in twelve pages of fine print and protectively bureaucratic phraseology, the report’s bottom line is clear: not merely are the legal underpinnings of the Republicans’ planned lawsuit weak; the report turns up no legal basis - no “there” there - at all.
CRS reports such as this one are generated in response to requests by members or committees of Congress, though the CRS does not make public the identity of the requester or requesters. This particular report - of which House Democrats were unaware until it appeared - bears the earmarks of an inquiry, requested by the Speaker or his allies, to give some color of legitimacy to their charges of rampant presidential illegality. Instead, the result validates the lawyers’ maxim not to ask a question when unsure of the likely answer. The Report offers two conclusions: First, under the Administrative Procedure Act (APA), no rulemaking procedure was necessitated by the Administration’s initial one-year delay in enforcing the employer mandate, past the ACA’s prescribed January 1, 2014 effective date. This was so, the Report states, because, “where an agency fails to take a discrete action by a statutory deadline, … no rulemaking is required.” What the Report - understandably - does not say, is that it was this very regulatory delay that first triggered Republicans’ “lawlessness” outcry. Within a week of the Treasury Department’s announced postponement, indignant editorials, op eds, and blog posts popped up in the Wall Street Journal, National Review, and other conservative bastions, over professorial signatures from the likes of Stanford’s Michael McConnell and Georgetown’s Nicholas Rosencrantz, all variations on a script alleging serial violations of Obama’s constitutional duty to “take care that the laws be faithfully executed.” Well, the CRS report concludes, actually not. Indeed, its authors note, such delays are anything but unique to the Obama administration’s implementation of the ACA. On the contrary: “Often the agency has simply not been able to accomplish the required action within the time provided by Congress.”
Second, the Report states that, when, in February 2014, the Administration announced an additional year’s postponement of full enforcement of the mandate, until January 1, 2016, “informal rulemaking procedures” appeared to be required. In fact, as the report’s authors reference, the Administration had engaged in precisely the type of informal rulemaking process that, the report concluded, was called for. The Administration’s action finalized a September 2013 Notice of Proposed Rulemaking, making adjustments in response to comments from interested parties, precisely as prescribed by the APA. In other words, having been asked whether the Obama administration had crossed all its t’s and dotted its i’s, the CRS’ answer was unequivocal: yes it had. In bland CRS-speak, this seems like a veritable finger in the eye - or perhaps, a blunt warning to the Speaker to drop the lawsuit project.
The CRS has not been alone in cautioning that this sue-Obama gambit would prove an “embarrassing loser,” as former House Legal Counsel Charles Tiefer testified to the House Rules Committee on July 16. Scattered conservative legal scholars summoned the intellectual integrity to go public with skepticism. On September 23, eminent Seventh Circuit Reagan appointee Judge Frank Easterbrook dismissed a case challenging the ACA employer mandate, with a curt opinion that signaled that Boehner’s House colleagues probably would be deemed to lack the personal “particularized injuries” prerequisite for legal standing to get into court. More telling, indeed humiliating, on September 19, Boehner was fired as a client by the firm he had hired to prosecute his suit; reportedly, the firm had been advised by clients that continuing with the representation could harm its credibility.
Whether or not House Republicans heed these omens, more broadly revealing is the fact that they have invested this heavily in a scheme to recruit the federal judiciary for ends so transparently political and legally meritless. Evidently, after years of 5-4 Roberts Court decisions displacing legal precedent to advance Republican ideological and political agendas - in high-stakes fields such as minority voting rights, campaign finance restrictions, abortion, and, last term, religious preferences of conservative business owners versus Obamacare women’s health protections for their employees, conservative politicians and activists have come to count on their political kin on the federal bench to toe their lines.
Perhaps all these cautionary yellow lights flashing at Boehner’s lawsuit foreshadow limits to conservative judges’ tolerance for being viewed as Republican fixers, limits that could be close to being reached, or broached. Indeed, other such straws have appeared in recent winds. The Supreme Court started its new term boosting the number of states where same-sex marriage is legal from 19 to 30, one deft stroke, by simultaneously denying petitions for review of several appellate court decisions invalidating state bans on same-sex marriage. Last week, Chief Justice John Roberts broke ranks with the three other normally reliable anti-abortion justices - Antonin Scalia, Clarence Thomas, and Samuel Alito - to effectively reopen 13 abortion clinics in Texas, by putting on hold a decision by the Fifth Circuit Court of Appeals that had upheld a Texas law forcing their closure. Two weeks earlier, Roberts used a widely publicized speech to a University of Nebraska audience to decry the potential for “partisan rancor [to] spill over and “politicize” the Court, sharing his “worr[y] about people having that perception.”
A near-term chance looms, for Roberts and his colleagues to demonstrate his professed zeal to “keep the partisan divide on the other side of First Street.” This involves the latest twist in the litigation threatening to cut off federal subsidies on, Affordable Care Act exchanges in the 36 states where they are managed by the federal government, thereby shutting down those exchanges altogether and stripping nearly five million individuals of health insurance. The challengers’ attorney, Michael Carvin, has asked the Supreme Court to take the highly unusual step of immediately taking control of the case, thereby preempting a potentially adverse ruling by the full District of Columbia Circuit’s thirteen judges. With disarming candor, Carvin recently confided that his serene confidence in success rests squarely on the political leanings of the Supreme Court’s five conservatives, who, he sneered, are not “going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think.” The high Court could consider Carvin’s petition as early as an internal conference scheduled for October 31. We could know soon about the soundness of Carvin’s low estimate of the weight carried by legal precedent and judicial practice in the Roberts Court, when the fate of President Barack Obama’s signature accomplishment is at stake.
Students from elite colleges march off to jobs at the big banks and consulting firms less by choice than because of a rigged recruiting game that the schools themselves have helped to create. By Amy J. Binder 10/01/2014