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Meet The New Nullification, Just as Unconstitutional as the Old Nullification

Nineteenth Century Nullificiationist John C. Calhoun

One of the more disturbing developments of the last two years is the reemergence of nullificationism, the unconstitutional notion that states can invalidate laws that they don’t like, among conservative lawmakers and activists.  Governors Bob McDonnell (R-VA) and Bobby Jindal (R-LA)  each signed obviously unconstitutional laws claiming to nullify the Affordable Care Act.  A few right-wing politicians have even embraced the views of Tom Woods, a pseudo-historian and co-founder of a neo-Confederate hate group who once wrote that “[t]he real watershed from which we can trace many of the destructive trends that continue to ravage our civilization today, was the defeat of the Confederate States of America in 1865.”

The only problem for these would-be John C. Calhouns is that the Constitution expressly rejects nullification, but that hasn’t stopped them from dreaming up increasingly creative theories for how states can ignore the Constitution’s express command.  As Dave Weigel reports, the latest such theory comes from former Texas Solicitor General Ted Cruz. The Constitution permits states with the consent of Congress to form contracts with each other — a power that Cruz somehow interprets to allow the states to bypass Congress and the President altogether:

Interstate compacts are an effective way to regulate areas of mutual concern among two or more States. In areas of overlapping state and federal jurisdiction, or where state legislation is preempted by an enumerated federal power, the Constitution requires congressional consent (Art. I, sec. 10). The Supreme Court has held that such congressional consent trumps prior federal law and may even subordinate federal agencies to agencies created by the interstate compact. Although Congress has generally consented to interstate compacts through regular legislation signed by the President, congressional consent does not necessarily require presidential signature; the Supreme Court has suggested that congressional consent may even be inferred from acquiescence. . . .

We propose an interstate compact to create an alternative state-based regulation of health care. The compact would provide that member States are free to choose their preferred model for health care policy; that they may opt out of Obamacare entirely . . . .

Cruz is actually a pretty good lawyer, so it is deeply embarrassing that he would sign his name to proposal that is so riddled with errors.  Contrary to Cruz’ implication, an interstate compact cannot be used to bypass the President’s veto power.  As Article I of the Constitution provides:

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Likewise, the claim that “congressional consent may even be inferred from acquiescence” is simply false.  Under the Supreme Court’s decision in College Sav. Bank v. Fla. Prepaid Postsecondary Ed. Expense Bd., “[s]tates cannot form an interstate compact without first obtaining the express consent of Congress.”  (There is some very old precedent suggesting that Congress’ consent may be implied when it specifically references a compact in a law that carries that compact into effect, but such a law goes a lot further than mere “acquiescence.”)

Ultimately, it’s hard to read Cruz’ claim to the contrary as anything other than another example of conservatives trying to ignore the actual Constitution and replace it with the one that they want.

Yglesias

Third Rail

Brian Beutler reports:

“The third rail is not the third rail anymore,” Rep. Paul Ryan (R-WI), the incoming House Budget chairman, told reporters at a Christian Science Monitor breakfast roundtable with reporters yesterday. “The political weaponization of entitlement reform is no longer as potent as it used to be, and the best evidence is this last election.”

Ryan and several other influential Republicans have found new confidence in the idea that the public would support entitlement cuts. Several candidates, Ryan said, won elections in tough districts on policy platforms modeled after his controversial — and conservative — Roadmap for America’s Future would would privatize social security and turn Medicare into a voucher system.

Here’s the Senate GOP caucus complaining that Democrats want to spend too little on Medicare:

I’m not sure which election Ryan was watching.

Yglesias

Escalator Repair Pathologies

I’ve often wondered why escalators are so often broken in the DC Metro system. Unsuck DC Metro has a fascinating post indicating that the “pick” system used to allocate mechanics deserves a share of the blame:

The source said it’s very common for someone with seniority to bid on escalators they know to be well maintained so they can slide and and not do anything for the six months it’s under their “care.”

“They can coast for a while,” the source said. “Then when problems start, they can move on,” leaving an ailing escalator under the supervision of someone with less experience.

This way of doing things, the source said, “destroys the incentive” of the younger workers who know that if they do a good job, their escalators will be taken away by someone with more seniority.

It seems like the solution here would be to not let people switch on a fixed schedule. You stick with a given escalator until you retire or quit or get fired. Then when a slot opens up, people could be given the opportunity to switch to it with preference according to seniority.

Incidentally, stories like this are why I’m unimpressed by both the pro and con studies about whether or not public sector workers are “overpaid.” WMATA-area taxpayers are getting inadequate value for our escalator-related tax dollar. But the solution here isn’t to pay the people less and establish a new equilibrium where the job’s done badly, but at least it’s done cheaply. The issue is that the job needs to be done properly. The absolute worst thing about the American public sector is the prevalence of non-cash compensation in the form of quality-sapping work rules. The money is incidental.

Climate Progress

Pachauri Debunks Myth Of IPCC As Money-Hungry Bureaucracy

The Wonk Room is reporting and tweeting live from the international climate talks in Cancun, Mexico.

Right-wing opponents of climate action such as Sen. Jim Inhofe (R-OK) and Koch Industries’ Americans For Prosperity have attempted to demonize climate scientists as part of a corrupt, conspiratorial United Nations bureaucracy trying to accumulate money and power. In an interview on Friday with the Wonk Room, Dr. Rajendra Pachauri, the chair of the Intergovernmental Panel on Climate Change (IPCC), explained the reality of the Nobel Peace Prize-winning organization. Since its founding in 1988, it has functioned as a grassroots, volunteer organization of the world’s top climate scientists, working gratis to synthesize their research for the public interest:

The beauty of the organization is that all the scientists the best scientists all over the world volunteer their time, without a single penny being paid by the IPCC.

Watch it:

“We are a very lean organization,” Pachauri explained. The entire annual budget is on the order of five to six million dollars a year. He grinned as he described that the “bureaucracy” of the IPCC Secretariat — the paid staff of the organization — has ballooned, after 17 years of having only five people, to ten people. The thousands of scientists who volunteer their time and effort have committed their lives to research, he said, and they want to be part of the “great mission” of the IPCC to make the science of climate change clear to the world.

In remarks delivered earlier in the day at the Climate Change Communication Forum, Pachauri said that one of the tasks the IPCC needs to take on in the future is to be able to effectively counter disinformation spread by hostile interests. “There is clearly an attempt in some cases to spread information that is far from the truth, which is inaccurate,” he said. “It is the responsibility of the IPCC — as a body serving the larger interests of society — to be able to take care of that reality. So I think that our challenge is cut out for us.”

Yglesias

Pulling Back The Curtain on Human Behavior

Hot new sex research that I’ll link to if only for the SEO benefits:

In a first of its kind study, a team of investigators led by Justin Garcia, a SUNY Doctoral Diversity Fellow in the laboratory of evolutionary anthropology and health at Binghamton University, State University of New York, has taken a broad look at sexual behavior, matching choices with genes and has come up with a new theory on what makes humans ‘tick’ when it comes to sexual activity. The biggest culprit seems to be the dopamine receptor D4 polymorphism, or DRD4 gene. Already linked to sensation-seeking behavior such as alcohol use and gambling, DRD4 is known to influence the brain’s chemistry and subsequently, an individual’s behavior. [...]

“What we found was that individuals with a certain variant of the DRD4 gene were more likely to have a history of uncommitted sex, including one-night stands and acts of infidelity,” said Garcia. “The motivation seems to stem from a system of pleasure and reward, which is where the release of dopamine comes in. In cases of uncommitted sex, the risks are high, the rewards substantial and the motivation variable — all elements that ensure a dopamine ‘rush.’”

This kind of research is in its infancy, life is complicated, etc., so I wouldn’t take this particular finding to the bank. But clearly our knowledge of the genetic correlates of behavior is increasing and will only continue to increase in the future. The implications of this for public policy and society seem to me like they’ll be pretty profound.

People sometimes seem to think that you could forestall a Gattaca-esque scenario of genetic transparency through privacy laws. But it seems to me that you’d actually need to go stronger, and not only guarantee the right to not have your genetic information disclosed. To prevent the emergence of a near-universal disclosure equilibrium in a world of cheap genetic profiling over the long run, you’d need to ban voluntary disclosure. The mere fact that you don’t want a potential partner to know your DRD4 profile will tell her all she needs to know about you.

Politics

Merkley Lays Out A Course For Reforming The Filibuster In The Next Senate: ‘Mark This Date On Your Calendar’

Earlier this year, Sen. Tom Udall (D-NM) delivered an address about conservative obstruction at the Center for American Progress Action Fund titled “Deliberation, Obstruction or Dysfunction? Evaluating the Modern U.S. Senate and its Contribution to American Governance.” At the event, Udall discussed what he called the “Constitutional Option,” which he described as the Senate having the ability to alter its rules with a simple majority vote at the beginning of each Congress. Indeed, with record use of the filibuster in the current Senate, an overhaul of the procedure is needed to prevent further obstruction. Udall reiterated his desire to reform the filibuster in an interview late last month with Tikkun.

Now, another senator has embraced the use of the “Constitutional Option” to reform the filibuster at the start of the new Senate. This week on The Big Picture With Thom Hartmann, Sen. Jeff Merkley (D-OR) laid out a path to fundamentally change the way the filibuster works. Merkeley told Hartmann to “mark this date on your calendar: January 5th. That’s the date we’re going to come in for the next Congress, and it’s on that date that a group of us is trying to pass a motion for the Senate to adopt new rules.”

Merkley then went on to explain his proposal for the new filibuster rules. The senator explained that by assembling 51 votes at the start of the new Senate, he wants to change the chamber’s rules so that when a senator engages in a filibuster, they have to go to the floor of the Senate, “defend your position, hold the floor, and if you’re not there, the Senate goes forth and holds a majority vote.” In other words, Merkley is proposing that if senators want to filibuster bills, they actually have to show up and physically spend time on the floor of the Senate to stop bills from going forth. “Hopefully we can bring together that magic 51 to say let’s make it function, the Senate function, to be that deliberative body that it once was,” he concluded:

HARTMANN: My read of the Constitution is that every two years when a new Congress is installed that each body establishes the rules under which it will operate, and it goes by majority vote. So why are the Senate rules, why are they so disfunctional? And why hasn’t anybody stepped forward to change them?

MERKLEY: Mark this date on your calendar. January 5th. That’s the date we’re going to come in for the next Congress, and it’s on that date that a group of us is trying to pass a motion for the Senate to adopt new rules. And I want to mention Tom Udall has been very instrumental in that effort. We have to get 51 votes on that day in order to open that door. And we need 51 in order to get a new set of rules or modifications. And the type of conversation we’re having right now is to say let’s make the filibuster work the way all of America thinks it works. The American people believe that you have to go defend your position, hold the floor, and if you’re not there, the Senate goes forth and holds a majority vote. And so that is the model we’re trying to create. We’ve laid out a series of ideas, we’re holding a caucus discussion on them, and hopefully we can bring together that magic 51 to say let’s make it function, the Senate function, to be that deliberative legislative body that it once was.

Watch it:

Merkley mapped out his plans in further detail in a memo released two weeks ago. Merkeley writes that he would “require a specific number of Senators — I suggest five for the first 24 hours, 10 for the second 24 hours, and 20 thereafter — to be on the floor to sustain the filibuster. This would be required even during quorum calls. At any point, a member could call for a count of the senators on the floor who stand in opposition to the regular order, and if the count falls below the required level, the regular order prevails and a majority vote is held.”

Merkley and Udall aren’t the only senators wanting to fix the broken filibuster. On Thursday, Sen. Tom Harkin (D-IA) called for ending the practice altogether. “Let’s work together to get rid of the filibuster once in for all!” he said. Their sentiments are in line with 50 percent of Americans, who said in a February 2010 CBS/New York Times poll that the filibuster should be changed (44 percent were opposed).

Climate Progress

Pachauri: The Impacts Of Climate Change Are ‘Here And Now’

The Wonk Room is reporting and tweeting live from the international climate talks in Cancun, Mexico.

The impacts of climate change are here and now, Dr. Rajendra Pachauri warned yesterday at a forum on communicating climate science. Pachauri, the chair of the Nobel-winning Intergovernmental Panel on Climate Change, said that scientists need to do a better job explaining that global warming is not a distant threat, but a present reality:

It is important for us to emphasize the fact that climate change and its impacts are not something in the future. They are here and now. And I am afraid the scientific community has not been very effective in communicating this message, and I hope that we can do something about it.

Watch it:

Pachauri made his remarks at the Climate Change Communication Forum held in association with the ongoing international climate talks in Cancun, Mexico. In his speech, he also argued it is important for people to understand the successes already achieved in tackling global warming pollution, particularly the “win-win” solutions such as energy efficiency that improve both environmental and economic health.

Yglesias

Who Do You Trust

I think almost all political polls are overrated in terms of their relevance, but Gallup’s efforts to gauge the popularity of different occupational groups are underrated:

The very high ratings given to military officers is hugely important in understanding the politics of the war in Afghanistan. And the very high ratings given to health care providers is hugely important in understanding the politics of health care costs. Any given cut in spending might be a trimming of fat, or else it might lead to a major reduction in the availability of useful health care services. And in a standoff between a member of congress and a doctor or nurse over which it is, people are highly inclined to believe the member of congress is lying.

Security

Eight Years Later, Washington Post Still Defending The Saddam-Niger-Yellowcake Story

I’ve not seen the new film Fair Game, the story of how CIA agent Valerie Plame was outed by the Bush administration by way of discrediting her husband Joe Wilson’s public contradiction of one of the administration’s multiple false claims on Iraqi WMD, so I can’t speak to how much it does or doesn’t play with the truth of what happened.

This, however, from the Washington Post’s editorial “review” of the film, is pretty clearly dishonest:

The movie portrays Mr. Wilson as a whistle-blower who debunked a Bush administration claim that Iraq had tried to purchase uranium from the African country of Niger. In fact, an investigation by the Senate intelligence committee found that Mr. Wilson’s reporting did not affect the intelligence community’s view on the matter, and an official British investigation found that President George W. Bush’s statement in a State of the Union address that Britain believed that Iraq had sought uranium in Niger was well-founded.

“Well founded,” I suppose, in the sense that (some in) Britain “believed” it. But as we now know, and as the Washington Post itself has reported, our own intelligence agencies, as well as those of other countries, were highly skeptical of the claim.

Maybe the Washington Post’s editors should try reading their own paper. From April 2007:

Dozens of interviews with current and former intelligence officials and policymakers in the United States, Britain, France and Italy show that the Bush administration disregarded key information available at the time showing that the Iraq-Niger claim was highly questionable.

In February 2002, the CIA received the verbatim text of one of the documents, filled with errors easily identifiable through a simple Internet search, the interviews show. Many low- and mid-level intelligence officials were already skeptical that Iraq was in pursuit of nuclear weapons.

The interviews also showed that France, berated by the Bush administration for opposing the Iraq war, honored a U.S. intelligence request to investigate the uranium claim. It determined that its former colony had not sold uranium to Iraq.

It’s somewhat pathetic that now, years after the Niger uranium claim has been debunked, the Washington Post’s editors are still hiding behind the “Britain believed…” formulation. Just as in the U.S., Britain’s investigation found that leaders had relied on questionable intelligence and disregarded key intelligence caveats in making their case for war. Even so, the Butler report is generally regarded as a whitewash, finding no one responsible for one of the most disastrously consequential propaganda efforts in modern history, just as in the U.S.

It’s not as if the Post’s editors are a disinterested party here, having played a key role themselves in pushing the case for the Iraq war. Hilariously, the editors write that “the film’s reception illustrates a more troubling trend of political debates in Washington in which established facts are willfully ignored.” I quite agree, though I don’t think it’s unreasonable to expect greater respect for those established facts from the Washington Post than from a Hollywood movie.

Politics

Bill To Extend Only Middle-Class Tax Cuts Blocked In The Senate

Today, the Senate held two separate votes on the Bush tax cuts, but ultimately failed to extend any of the cuts that will be expiring at the end of the year. The first piece of legislation, which would have extended the Bush tax cuts for everyone making less than $250,000 per year, was defeated 53-36, falling seven votes shy of the 60 necessary to invoke cloture. Sens. Joe Manchin (D-WV), Russ Feingold (D-WI), Ben Nelson (D-NE), Jim Webb (D-VA) and Joe Lieberman (I-CT) joined all the Republicans in voting no. Eleven senators, all Republicans, did not vote. The second bill, which would have extended the tax cuts for everyone making less than $1 million, was defeated 53-37. As CNN noted, “Despite the realization that neither would get the 60 votes to succeed, many Democrats said before the vote they wanted to get on-the-record in support of extending the lower rates to lower earners.” On Thursday, the House successfully passed a bill extending only the middle-class tax cuts.

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