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Health

Small Problem For States Challenging Health Reform: They Don’t Have Standing

lawsuit-cash-advance-fundingFile this one under two more reasons why the constitutional challenges to health care reform are frivolous. Over at Slate, Simon Lazarus and Alan Marrison argue that Virginia, Florida, and the 20 other states that have joined the lawsuits lack standing and can’t get around the Tax Injunction Act, which prohibits courts from “restraining the assessment or collection of any [federal tax]“:

The first problem is that state governments are the wrong plaintiffs to challenge the individual insurance mandate. No state will ever have to pay a penny in taxes or be told to take out health insurance: The law applies only to individuals. The attorneys general might have attempted to plug this gap by adding individual plaintiffs to their complaints. But even if they found those people, the AGs couldn’t sue on their behalf right now, because the mandate does not take effect until 2014. Between now and then, all kinds of things could cause plaintiffs to lose their standing to sue [...]

There’s another barrier to the AG’s lawsuits: the Tax Injunction Act. This federal statute, on the books for more than 50 years, forbids courts from “restraining the assessment or collection of any [federal] tax” whether the suit is by the taxpayer, a state attorney general, or anybody else. The tax code gives taxpayers who believe they ought not to have to pay a tax two options: decline to pay and make their objection as a defense when the IRS comes after them, or pay the tax and sue for a refund. Congress enacted these requirements to facilitate efficient tax collection, and there is no basis for the courts to carve out an exception for these suits.

Add this to the fact that some very recent Supreme Court decisions have found that the federal government can regulate commerce and you have 22 states wasting their taxpayer’s dollars on lawsuits they can’t possibly win. But then again, they probably know that. As the authors note, “Several of the AGs, including lead plaintiff Bill McCollum, are featuring the suits in their campaigns for higher office. And, of course, the suits make for great talking points in a general campaign to discredit health care reform.”

Education

Burr ‘Couldn’t Imagine’ Supporting A Bill To Prevent Mass Teacher Layoffs

One of the many devastating results of the Great Recession has been the damage wrought on state budgets, which have led to dramatic cuts in education, including plenty of teacher layoffs. Part of this pain was alleviated by the economic stimulus package passed last year, but the depth and length of the recession means that many states are still in very bad shape.

Sen. Tom Harkin (D-IA) has crafted a $23 billion bill meant to help states avoid making mass teacher layoffs, which Senate Majority Leader Harry Reid (D-NV) has promised will reach the floor sometime. “We will be pushing hard for this in the Senate,” Harkin said.

Thus far, Harkin has received no Republican support for his effort. When National Journal asked Sen. Richard Burr (R-NC) if he would back the bill, he scoffed that he “couldn’t imagine” a situation in which he would give a bill preventing teacher layoffs his blessing:

Another GOP member, Richard Burr of North Carolina, said he hadn’t seen the bill but “couldn’t imagine” he would support it, positing that it’s not the role of the federal government to hire teachers.

Burr might want to spend some time imagining what teacher layoffs in his own state would look like. There are currently 3,700 fewer teachers working in North Carolina than there were last year, and cuts for the next school year “will be even worse.” “We are doing things and considering options I never thought I’d have to consider,” said Peter Gorman, superintendent of the Charlotte-Mecklenburg schools, who is looking at cutting 600 teachers (and a total of more than 1,000 employees) for next year.

And many school districts are in far worse shape, which could have the net result of hundreds of thousands of layoffs across the country. As the New York Times reported, “Illinois authorities are predicting 17,000 job cuts in the public schools. And New York has warned nearly 15,000 teachers that their jobs could disappear in June.”

Leaving aside the detrimental effect these layoffs will on schoolchildren, preserving these jobs acts as economic stimulus, because instead of going on unemployment benefits, these teachers and other employees keep collecting a paycheck, spending money, and boosting demand. But Burr can’t find it in his head to imagine a situation in which that might be a good thing.

Security

GOP Candidate Runs Pro-Racial Profiling Ad: ‘Let’s Face It’ — The ‘Good-Looking Rich Guy’ Isn’t A Terrorist

Dan Fanelli, a “former Navy and commercial airline pilot” who is competing in the GOP congressional primary for the chance to run against Rep. Alan Grayson (D-FL) in the general election, has begun airing a new ad in which he seems to endorse racial profiling of darker-skinned Americans to detect terrorists. Fanelli implies that all terrorists look alike.

In the ad, Fanelli stands in front of an elderly white man dressed in a business suit and asks, “Does this look like a terrorist?” He then holds out his hands to his other side and a burly, swarthy-skinned man emerges, prompting Fanelli to say, “Or this?” The candidate continues, “It’s time to stop this political correctness and the invasion of our privacy. Let’s face it, if the good looking rich guy without much hair was flying airplanes into the twin towers, I’d have no problem being pulled out of line at the airport.” Watch it:

The Washington Post’s Greg Sargent asked Fanelli if “the message of the spot was that darker people are more likely to be terrorists.” Sargent writes that Fanelli “said it wasn’t, claiming that the ad’s point was that people from countries like Iran, Iraq, Saudi Arabia, Pakistan and Syria ‘require a higher level of security.’”

While Fanelli’s suggestion of placing special security emphasis on people who look a certain way or come only from certain countries is offensive, it’s also wildly ineffective in actually combating terrorism. A study released last year by the Proceedings of the National Academies of Science conducted a mathematical analysis to compare random screenings to racial profiling. It found that racial profiling is “no more effective” than using the random method in detecting terrorists.

Indeed, terrorists come in all shapes, sizes, and colors, and do not simply belong to one religion, ethnicity, or nationality. The “shoe bomber,” Richard Reid, was Jamaican and British. Al Qaeda recruit Adam Pearlman was a white American. Germaine Lindsay, one of London’s 7/7 bombers, was Afro-Caribbean. Umar Farouk Abdulmutallab was a black African.

Update

During an interview on Fox News’ Red Eye last month, Fanelli said he thinks “[racial] profiling is good,” and claimed the ad is just an example of using “a little humor to make a point.”

Climate Progress

EIA Stunner: Energy-related CO2 emissions are now down nearly 10% from 2005 levels. Can’t this country manage another 7% drop in 10 years?

Clean energy leads the way

EIA CO2 2009

The U.S. Energy Information Administration (EIA) just issued its must-read report on U.S. Carbon Dioxide Emissions in 2009.  It turns out energy-related CO2 emissions have dropped faster than EIA had expected just a few months ago (see my September post, “EIA stunner: By year’s end, we’ll be 8.5% below 2005 levels of CO2 “” halfway to climate bill’s 2020 target“).

Surely this country could reduce CO2 emissions a little more than 7% in 10 years and meet the modest target set out in the Senate climate bill, which appears likely to be introduced next week.  It really isn’t bloody hard (see Game changer part 2: Unconventional gas makes the 2020 Waxman-Markey target so damn easy and cheap to meet).

Read more

Justice

Military Establishes Quasi Anonymous Website To Solicit Servicemembers’ Views On DADT

service_public_opinonWhen the co-chairs of the Pentagon’s DADT “Working Group” testified before Congress, they promised to develop a system of consulting with gay members without inadvertently outing them. “We envision outreach through social media so that a wide variety of individuals both within the Department of Defense and without who will have views on this matter have an opportunity for their voice to be heard,” General Carter Ham, one of the working group’s co-chairs said.

Since March, the group has conducted public discussions and met with chaplains, Reserve Flag Officers and Sailors, veteran organizations, foreign military leaders who allow gay servicemembers to serve openly and assorted service members and their families. Recently, the Defense Department established a temporary website that would allow servicemembers to comment on the policy. It’s unclear, however, if the comments can be traced back to their source or if gay members could be outed when they reveal their orientation:

The recently created site — www.defense.gov/dadt — is accessible only by using a DOD-issued Common Access Card, which most family members don’t have. And use of the CAC card means that any comments are potentially traceable back to their source. The website urges users to be “open and honest” with their responses. But they also are reminded “don’t use your name or the names of others … The ‘Don’t Ask, Don’t Tell Law’ is still in effect.”….The website offers a blank “comment box” but no guidelines regarding what kinds of opinions are being sought. [...]

All comments will be reviewed by a third-party contractor, who will take out any names or other potential identifiers provided in the online comment box before submitting them to the DOD working group reviewing the “don’t ask, don’t tell” policy, Smith said. Still, a user agreement at the site warns that the working group “cannot guarantee the confidentiality of the information you provide.” Using a CAC to get to the site creates a digital log-in record. But Smith said DOD won’t be “going back through the system to identify anyone who has given us this feedback.”

A message on the site indicates that a “confidential mechanism” for offering feedback is still under construction.

The group is scheduled to produce a final report by December 1, but some have questioned the purpose or utility of soliciting opinions altogether, since “It’s not usual for us to go to the military and to have necessarily them believe that their personal feelings are going to determine the policy that moves forward.” If anything, previous surveys have found that a growing number of servicemembers have no problem serving with openly gay or lesbian troops.

Incidentally, the Center for American Progress Action Fund has also launched a campaign collecting video testimonials from gay and straight servicemembers and veterans, speaking to the failure of the DADT ban. Submit a video here.

Yglesias

Endgame

From across the Vistula, you’ve come so very far:

— GOP picks Wall Street over free markets.

— John Thune explains that Bob Corker sometimes goes off-message because he actually thinks about the issues.

— What happens when the Greek riot police realize their pay is being cut too?

— David Obey’s retirement is not helpful for Democrats.

—Krugman’s asking rhetorically, but if you want the answer you need to look up Lindblom’s account of the privileged position of business in polyarchy.

— The FinReg bill is punting on an awful lot of stuff.

“Machete” should benefit from the Arizona law.

In honor of the UK election, here’s British Sea Power “Waving Flags”

Health

Sen. Leahy Proposes Amendment To Repeal Anti-Trust Exemption For Health Insurers

Sen. Patrick Leahy (D-VT) with Michelle Obama

Sen. Patrick Leahy (D-VT) with Michelle Obama

Sen. Patrick Leahy (D-VT), a long time supporter of ending the anti-trust exemption enjoyed by insurers, has filed an open amendment “to the pending Wall Street reform legislation” that would bar health insurance issuers or issuers of medical malpractice insurance from engaging in “any form of price fixing, bid rigging, or market allocations in connection with providing health insurance coverage or coverage for medical malpractice claims or actions.” The anti-trust provision passed in the House, but was not part of the Senate legislation or reconciliation package that ultimately became law. From Leahy’s office:

“The recent economic crisis showed all of us that corporations do not act responsibly without adequate oversight,” said Leahy. “It is important to remember that there is another industry that is not required even to play by the same rules of competition as everyone else. Benefiting from a six-decade-old special interest exemption, the health insurance industry is not subject to the Nation’s antitrust laws. We can surely agree that health insurers should not be allowed to collude to fix prices and allocate markets.”

All this sounds good, but it’s unclear if just lifting the exemption would lower health care costs or accomplish much of anything. As former anti-trust enforcer David Balto explained in an interview with the Wonk Room, “at some point in time, the anti-trust exemption probably served as some type of an obstacle and inhibited the federal anti trust agencies from going in and blocking some of the mergers that have led to such a concentrated market. At this point, there is really no need from the industry’s perspective, for an anti trust exemption. This anti trust exemption permits them to coordinate activities which would be considered collusion in other industries. When you are a monopolist, there is no need to collude.”

Removing the exemption would allow anti-trust enforcers to begin preventing anti-competitive activities and enforcing the new regulations of reform. But regulators will probably need some more funding if they’re going to prevent insures from entering into collusive arrangements that would undermine any new competition created by health reform.

Leahy’s amendment is one of approximately 90 amendments filed to the Wall Street reform measure and will require 51 votes to pass.

Yglesias

What a Bubble Looks Like

I’m sure Casey Mulligan has done some good work somewhere, because he seems to be pretty prominent, but in his time as an amateur pundit he sure does write some dumb stuff. For example, a post titled “Was It Really a Bubble?” has this opening paragraph:

Adjusted for inflation, residential property values were still higher at the end of 2009 than 10 years ago. This fact raises the possibility that at least part of the housing boom was an efficient response to market fundamentals.

It’s hard to know what it would mean for market prices to not be “at least in part” driven by fundamentals. It’s also hard to see why this would contradict the notion that there was a housing bubble. Yesterday we read a transcript in which a Fed staffer said:

I don’t want to leave the impression that we think there’s a huge housing bubble. We believe a lot of the rise in house prices is rooted in fundamentals. But even after you account for the fundamentals, there’s a part of the increase that is hard to explain.

And as I wrote yesterday, that’s what a bubble is—an increase that can’t be explained in terms of the fundamentals. Mulligan gives us a different phrasing of the same point, an increase whose magnitude can’t be explained by the fundamentals. In other words, a bubble. But he wants to say it wasn’t really a bubble since “at least part of the housing boom was an efficient response to market fundamentals.” He even has a chart!

DESCRIPTION

When I look at that chart, I see a bubble. It’s a picture of a bubble inflating and then bursting. The cost of housing increases over time because there are supply constraints in many desirable areas and because income increases. This is reflected in the fact that both home prices and rents have an overall upward trajectory over time. But for a while home prices were soaring much faster than rents, then prices crashed. That was the bubble.

Security

Shahzad Questioned Extensively Before Being Read Miranda Rights And Continued Cooperating Afterwards

As ThinkProgress noted yesterday, after alleged Times Square bomber Faisal Shahzad was arrested late Monday at JFK International Airport, conservatives began following the political playbook they used to criticize the Obama administration’s handling of the attempted Christmas day bombing: complaining that authorities might read him his Miranda rights. “Don’t give this guy his Miranda rights until we find out what it’s all about,” said Sen. John McCain (R-AZ).

McCain’s close ally, Sen. Joe Lieberman (I-CT), even suggested that Congress should create a process to strip “American citizens who choose to become affiliated with foreign terrorists” of their citizenship and, therefore, their Miranda rights. Lieberman explained to reporters that he believes “that any time we arrest somebody we suspect to be a terrorist the first thing that ought to happen with them is they ought to be interviewed without Miranda Rights being given to them”:

LIEBERMAN: My own feeling about this is that any time we arrest somebody we suspect to be a terrorist the first thing that ought to happen with them is they ought to be interviewed without Miranda Rights being given to them by law enforcement officials to extract from them every piece of information that might help us stop an ongoing terrorist threat. My own feeling is that anybody who we decide there is reasonable possibility that they’ve committed a terrorist act ought to be turned over to our military justice system because though it’s an unconventional war, they are prisoners of a war. A war that Islamic extremists declared against the United States, certainly, on 9/11/01. So, bottom line, I don’t believe somebody like Faisal Shahzad should receive Miranda rights. I don’t believe he’s entitled to them.

Shahzad, a naturalized U.S. citizen, did eventually have his rights read to him, but not until after he was questioned extensively under a “public safety exception” to the Miranda rule. Fox News’ Jamie Colby reported today that “a source on the Homeland Security Committee” told her that Shahzad was read his rights “nine and a half hours after questioning.” Watch it:

Colby added that she was told that once Shahzad was Mirandized, “he waved his right to counsel, he waved his right to an appearance.” Indeed, Deputy FBI director John Pistole said yesterday that Shahzad continued to cooperate after hearing his rights:

Shahzad was not immediately Mirandized after authorities yanked him off a Dubai-bound flight from New York Monday night. John Pistole, deputy FBI director, said Tuesday that agents interviewed him under the “public safety exception” to determine whether there was an imminent threat.

He was later read his rights and waived them, according to the White House. Officials have described the suspect as cooperative and talkative ever since.

“He was … cooperative and provided valuable intelligence and evidence. He was eventually transported to another location, mirandized and continued talking,” Pistole said.

So, despite conservative complaints, reading a U.S. citizen his Miranda rights has not impeded information-gathering. But this hasn’t stopped conservatives from complaining. Former Attorney General Michael Mukasey told Fox News that despite claims that Shahzad “kept spilling the beans, the question is how many beans he spilled.”

Update

New York City Mayor Michael Bloomberg said today that Shahzad has “continued to be helpful” after being Mirandized.

Climate Progress

Saudi-funded Fox News rejects ad by veterans group arguing against Middle East oil dependence

Last week, progressive veterans organization VoteVets.org released an ad arguing that “a clean energy climate plan would cut our dependence on foreign oil in half and cut oil profits for hostile nations.” The ad asserts that “every day, Iran gets $100 million richer selling oil around the world and peddling hate.”  TP has the story.

While CNN and MSNBC have aired the ad, Fox News is refusing to do so. Politico reports Fox apparently found the ad “too confusing.” Watch the “confusing” ad:

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