Monday, December 22, 2014

Prosecute Torturers and Their Bosses - Editorial

The Times editorial highlights John Yoo (now a Berkeley law prof) and Jay Bybee (now a 9th Circuit appeals court judge) as ones who should be investigated for criminal responsibility for the Justice Department legal memoranda they drafted providing justification for "enhanced interrogation techniques" - torture methods denounced by the recent Senate Select Committee report.  - gwc
Prosecute Torturers and Their Bosses -
by the Editorial Board
***The American Civil Liberties Union and Human Rights Watch are to give Attorney General Eric Holder Jr. a letter Monday calling for appointment of a special prosecutor to investigate what appears increasingly to be “a vast criminal conspiracy, under color of law, to commit torture and other serious crimes.”
The question everyone will want answered, of course, is: Who should be held accountable? That will depend on what an investigation finds, and as hard as it is to imagine Mr. Obama having the political courage to order a new investigation, it is harder to imagine a criminal probe of the actions of a former president.
But any credible investigation should include former Vice President Dick Cheney; Mr. Cheney’s chief of staff, David Addington; the former C.I.A. director George Tenet; and John Yoo and Jay Bybee, the Office of Legal Counsel lawyers who drafted what became known as the torture memos. There are many more names that could be considered, including Jose Rodriguez Jr., the C.I.A. official who orderedthe destruction of the videotapes; the psychologists who devised the torture regimen; and the C.I.A. employees who carried out that regimen.
One would expect Republicans who have gone hoarse braying about Mr. Obama’s executive overreach to be the first to demand accountability, but with one notable exception, Senator John McCain, they have either fallen silent or actively defended the indefensible. They cannot even point to any results: Contrary to repeated claims by the C.I.A., the report concluded that “at no time” did any of these techniques yield intelligence that averted a terror attack. And at least 26 detainees were later determined to have been “wrongfully held.”
Starting a criminal investigation is not about payback; it is about ensuring that this never happens again and regaining the moral credibility to rebuke torture by other governments. Because of the Senate’s report, we now know the distance officials in the executive branch went to rationalize, and conceal, the crimes they wanted to commit. The question is whether the nation will stand by and allow the perpetrators of torture to have perpetual immunity for their actions.
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Sunday, December 21, 2014

Obama, the Least Lame President? -

Obama, the Least Lame President? -
by Ian Ayres and John FabianWitt

HISTORIANS rate presidents by every conceivable quality.One survey of presidential scholars rates presidents along no fewer than 20 dimensions, from best luck (Washington) and best imagination (Theodore Roosevelt) to best intelligence (Jefferson) and best handling of Congress (Lyndon B. Johnson). And of course, there’s the ultimate prize: Best president, a distinction Lincoln and Franklin D. Roosevelt have traded back and forth since at least the first modern survey, in 1948.

What about least lame duck? President Obama is making a run for the title. Since the midterm elections, in his first month and a half as a lame duck, Mr. Obama has taken dramatic action on immigration, climate change and now, normalizing relations with Cuba.
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A Big Safety Net and Strong Job Market Can Coexist. Just Ask Scandinavia. -

Let's get this straight: American voters are wrong.  High taxes, high wages, and high employment go together.  Security makes us free - not lazy and dependent.  Check out the graphs.  They are dramatic.  MORE PEOPLE WORK in high welfare, high tax countries. - gwc
A Big Safety Net and Strong Job Market Can Coexist. Just Ask Scandinavia. -
by Neil Irwin
It is a simple idea supported by both economic theory and most people’s intuition: If welfare benefits are generous and taxes high, fewer people will work. Why bother being industrious, after all, if you can get a check from the government for sitting around — and if your choice to work means that much of your income will end up in the tax collectors’ coffers?

Here’s the rub, though: The idea may be backward.

Some of the highest employment rates in the advanced world are in places with the highest taxes and most generous welfare systems, namely Scandinavian countries. The United States and many other nations with relatively low taxes and a smaller social safety net actually have substantially lower rates of employment.'via Blog this'

Saturday, December 20, 2014

Torture - the lawyers' role

Torture by the CIA is back in the news thanks to the Senate Intelligence Committee Report on the CIA Detention and Interrogation Program.  The role of lawyers is a worthwhile topic for a term paper or more.
CIA Director John Brennan declared "abhorrent" certain `unauthorized' acts.  But it is the "authorized" ones that are the cause of much concern.  The "torture memos"  were authored by the Justice Department's Office of Legislative Counsel -particularly by Berkeley law professor John Yoo.  They were subjected to withering criticism in many places - particularly at the blog Balkinization.  Some, like former Attorney General and federal judge Michael Mukasey continue to defend the measures,
Some in Congress - John Conyers and Jerrold Nadler (a Fordham Law grad) referred  Yoo to state attorney discipline authorities.  An internal DOJ report found that Yoo and Jay Bybee (now a federal judge) had committed"intentional misconduct" but the final DOJ action held that there was no "unambiguous" standard governing Yoo and Bybee's work at Justice.  The matter therefore was not referred to state authorities for discipline.

Judge in Maryland Locks Up Youths and Rules Their Lives -

Herman C. Dawson "tough love" Maryland judge
Judge in Maryland Locks Up Youths and Rules Their Lives -
by Erica Goode
[The general trend is to lower incarceration and charging of juveniles - because crime rates are down and Americans are coming to realize that it is a national disgrace that we incarcerate people at a rate far in excess of the rest of the world.  Mainly Black and Latin men.  But some "tough guys" are holdouts.]
Judge Herman C. Dawson is an example. Presiding in Courtroom D-15 of the mammoth county courthouse here over cases that range from shoplifting to armed robbery, he has won a reputation as a jurist who brooks no excuses and involves himself deeply in the lives of the teenagers who come before him.

Raised by a single mother in the segregated South, he subscribes to a “tough love” philosophy that venerates hard work, education and personal responsibility as the antidotes to poverty, negative peer pressure, chaotic parenting and other forces that can tip children into delinquency.
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Employers, HSAs and the ACA | xpostfactoid

ACA Subsidy By Income Family Of Four Chart
Lawyers are employers. Paying the employee's health insurance has been tax advantaged - it is untaxed for the employee and deductible for the employer. I used to show my employees their total compensation package.  Base salary for support staff was about $40,000(10-15 years ago). So deductibility was helpful. The ACA subsidies help a lot at that level. (See Financial Samurai HERE) But if you do what we did - "reward" with higher pay those who had coverage through a spouse it gets complicated. Andrew Sprung explains.  - gwc
Employers, HSAs and the ACA | xpostfactoid
by Andrew Sprung
Jay Hancock at Kaiser Health News reports that significant numbers of small businesses may stop offering health insurance to their employees, sending them instead to the ACA exchanges. This could be a good thing for employees who earn little enough to qualify for strong ACA subsidies -- win-win for employer and employee at the federal government's expense.

According to the Kaiser Family Foundation, small employers in 2014 paid an average of nearly $5,000 for solo coverage and a bit more $10,000 for a family premium. What if an employer wants to compensate employees for dropping a benefit that constitutes such a large share of their compensation?  There's a problem with straight salary increases: they reduce employees' ACA subsidies and so give a portion of the extra income back. At healthinsurance.orgI examine three scenarios in which a pay hike worth about 70% of a typical employer premium contribution triggers subsidy reductions ranging roughly from about 25-- 80%.

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Friday, December 19, 2014

An Early Look At Changes In Employer-Sponsored Insurance Under The Affordable Care Act

One of the raps against the ACA is that employers would reduce workers hours in order to avoid the requirement that employers of over 50 persons provide health insurance to full time employees.  So far it appears that on aggregate at least that has not happened. - gwc
An Early Look At Changes In Employer-Sponsored Insurance Under The Affordable Care Act
Urban Institute study
  • John Holahan
  • Critics frequently characterize the Affordable Care Act (ACA) as a threat to the survival of employer-sponsored insurance. The Medicaid expansion and Marketplace subsidies could adversely affect employers’ incentives to offer health insurance and workers’ incentives to take up such offers. This article takes advantage of timely data from the Health Reform Monitoring Survey for June 2013 through September 2014 to examine, from the perspective of workers, early changes in offer, take-up, and coverage rates for employer-sponsored insurance under the ACA. 
    We found no evidence that any of these rates have declined under the ACA. They have, in fact, remained constant: around 82 percent, 86 percent, and 71 percent, respectively, for all workers and around 63 percent, 71 percent, and 45 percent, respectively, for low-income workers. To date, the ACA has had no effect on employer coverage. Economic incentives for workers to obtain coverage from employers remain strong.

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    News Worsens for Law Schools: Fall 2015 Applicants Are Down 9.1%; 'J.D. R.I.P.'?

    1,000 word picture. - gwc
    TaxProf Blog: News Worsens for Law Schools: Fall 2015 Applicants Are Down 9.1%; 'J.D. R.I.P.'?

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    Lawyers Coax State Attorneys General to Big Paydays - NY Times

    Conservative Attorneys General talk the tort reform talk when they woo their donors and primary voters.  But when faced with the chance to be populist heroes and put cash in the state coffers they often turn into aggressive and innovative plaintiffs lawyers. -gwc
    Lawyers Create Big Paydays by Coaxing Attorneys General to Sue -
    by Eric Lipton
    WASHINGTON — When they met at the J. W. Marriott Hotel two blocks from the White House, Linda Singer, a former attorney general turned plaintiffs’ lawyer, approached Attorney General Gary King of New Mexico with an unusual proposition.
    Ms. Singer wanted him to sue the owner of a nursing home in rural New Mexico that Mr. King had never heard of and Ms. Singer had never set foot in. She later presented him with a proposed lawsuit that did not cite any specific complaints about care. What she shared with him were numbers on staffing levels gleaned from records suggesting that residents were being mistreated there and at other facilities.
    “Do you have 10 minutes at any point today?” Ms. Singer, who had served as attorney general in the District of Columbia, wrote to to Mr. King in a March 2012 email, to set up a meeting. “I finally got the numbers on the nursing home case and would love to discuss it with you briefly.”

    Can Cuba Escape Poverty but Stay Healthy? -

    There is no paradox. Socialist medical care actually works because health care is a priority.  Low tech, attentive, universal healthcare.  - gwc
    Can Cuba Escape Poverty but Stay Healthy? -
    Cuba has many economic problems, including the inefficiencies of central planning and the long trade embargo with the United States. Yet the country has a thriving public health system that has made its population among the healthiest in the world.
    Researchers call it the Cuban Health Paradox. The country’s economic isolation has left it poor, but people there live as long as their counterparts in much richer countries. According to data from the World Bank, life expectancy for someone born in Cuba in 2011 was 79 years, just a little longer than that of an infant born in the United States the same year. But the United States economy is more than eight times larger, per person, than Cuba’s. Meanwhile, in countries like Iraq and Belarus, where, like Cuba, the economy produces about $6,000 annually per person, the life expectancies are more than eight years shorter.

    'via Blog this'

    Wednesday, December 17, 2014

    ACA Medicaid Expansion Reaches Homeless

    Half the states - all GOP -led -  have refused to expand Medicaid under the Affordable Care Act.  The cruel effects are highlighted by the dramatic improvements in care for the homeless who have gotten coverage through the law which the House of Representatives has 51 times voted to repeal.  The homeless live in shelters, on the street, in tents, under bridges, etc.  They are the least among us.  And "Obamacare" has helped them get medical care - relieving suffering, saving lives and enabling some to get on their feet.  The Kaiser Family Foundation reports HERE.

    Tuesday, December 16, 2014

    Crime-Fraud Exception to Spousal Privilege Passes Assembly | New Jersey Law Journal

    No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within [Rule501(2)].  N.J.S.A.2A:84A-22; N.J.R.E.509.
    The Supreme Court of New Jersey lamented that as written the above statutory rule of evidence prevented admission of intercepted inter-spousal communications between husband and wife who were jointly engaged in the heroin trade.  The Court urged the Legislature to join every Federal Circuit and the many states which have embraced the "crime-fraud exception" to the privilege not to disclose confidential communications between spouses.  The Legislature is acting on the invitation. - gwc
    Crime-Fraud Exception to Spousal Privilege Passes Assembly | New Jersey Law Journal
    A bill that restricts when criminal defendants may invoke a privilege that bars communication between spouses from evidence has cleared one chamber of the Legislature—and unanimously so.
    The New Jersey Assembly on Dec. 15 passed the measure, which would create a crime-fraud exception to the marital communications privilege, by a vote of 73-0. There were no abstentions.
    It's a change the state Supreme Court urged lawmakers to make in a decision earlier this year, State v. Terry.
    The measure, A-3636, was introduced on Sept. 15 and, a week later, unanimously approved by the Assembly Judiciary Committee.
    In Terry, Chief Justice Stuart Rabner asked lawmakers to follow the lead of all 11 federal circuits and many states by creating the exception.
    In the case, the Ocean County Prosecutor's Office sought to make use of phone calls and text messages between Teron Savoy, the accused leader of a drug trafficking network, and his wife, Yolanda Terry, also charged with participating in the scheme, according to court documents.
    The calls and texts were intercepted by wiretapping two cellphones used by Savoy, according to court documents.
    Savoy and Terry moved to bar admission of the evidence at trial based on New Jersey Rule of Evidence 509, which provides, "No person shall disclose any communication made in confidence between such person and his or her spouse." The privilege is also set forth in the Evidence Act of 1960. At present, marital privilege may be overcome only in certain circumstances, such as when either spouse waives it.
    Ocean County Superior Court Judge Stephanie Wauters denied the motion, holding the privilege inapplicable because it would be law enforcement, not one of the spouses, who disclosed the communications.
    But the Appellate Division reversed, deeming the communications protected even though they were intercepted. The panel agreed with Wauters that a crime-fraud exception for spousal communications was a good idea, but said New Jersey judges lack power to create such an exception.
    The Supreme Court affirmed on the applicability of the marital privilege to Savoy and Terry's case, but called for a change in the law to "strike an appropriate balance between marital privacy and the public's interest in attaining justice."
    "The marital communications privilege is meant to encourage marital harmony, not to protect the planning or commission of crimes," Rabner said.
    He proposed language that would create an exception for "a communication that relates to an ongoing or future crime or fraud in which the spouses were joint participants at the time of the communication."
    Rabner pointed out that many other jurisdictions—including California, Illinois, New York and Texas—have a crime-fraud exception. And the crime-fraud exception already exists for other evidentiary privileges in New Jersey, he added: attorney-client, physician-patient, cleric-penitent and mediation privileges.
    The Evidence Act allows for adopting new evidence rules either by legislation or court rule. Rabner cited prior instances where the court had called on the Legislature for significant revisions to the hearsay rules.
    The bill nullifies the privilege on communications between spouses or civil union partners "if the communication relates to an ongoing or future crime or fraud in which the spouses or partners were or are joint participants at the time of the communication."

    Read more:

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    Two Theologies Have Blocked Medicare-For-All – Health Affairs Blog

    Two Theologies Have Blocked Medicare-For-All – Health Affairs Blog:
    from the Yale Law School conference The Law of Medicare and Medicaid at Fifty
    "In the 50 years since Medicare was enacted, Congress has never seriously considered extending Medicare to all Americans, nor even lowering Medicare’s eligibility age below 65. This pattern persisted even during those periods when national health insurance was at the top of the national agenda. This is not what the original advocates of Medicare anticipated when Medicare was enacted in 1965. They saw Medicare as the cornerstone of a national system of health insurance that would eventually cover all Americans.

    Two Myths that Undercut Medicare-for-All: Managed Care and Competition

     In the paper we presented at the Yale conference, we reviewed short- and long-term factors affecting the debate about Medicare over its lifetime, and then turned to a discussion of two long-term factors: the rise of what came to be called the managed care movement, and the resurgence of a longstanding campaign promoting the idea that competition can right the wrongs of American medicine. The managed care movement helped marginalize support for Medicare’s expansion primarily through its influence on the proponents of national health insurance. It did so by persuading many potential proponents of Medicare expansion to pursue a different reform strategy.  Insurance companies practicing managed care, the rhetoric claimed, were more efficient than Medicare.  Managed care kept Medicare-for-all off the congressional agenda primarily by inducing potential proponents of Medicare expansion to support managed care rather the expansion of the traditional Medicare program."

    'via Blog this'

    Push to Provide Lawyers in New York City Housing Court Gains Momentum -

    Push to Provide Lawyers in New York City Housing Court Gains Momentum -
    by Mireya Navarro
    At the information table at Housing Court in the Bronx, tenant after tenant approached, often anxious and often in a familiar predicament — they owed their landlords rent and needed more time to pay it. Some had received eviction papers and did not know what to do.
    Ana Cruz, a mother of three who said she owed $3,600 on her one-bedroom apartment because her public benefits had been cut, knew a little more.
    “I feel I need a lawyer,” she said.
    Most low-income tenants in New York face their landlords’ lawyers without lawyers of their own. Critics have long complained that without counsel, tenants are all but set up to lose, and often do. With the city stepping up efforts to help tenants remain in rent-regulated apartments, as part of Mayor Bill de Blasio’s affordable housing strategy, the lack of counsel in Housing Court is drawing increased attention from City Hall and the court system.
    The mayor has doubled spending for legal aid to fight evictions to more than $13 million a year; a bill pending in the City Council would require the city to spend more than $100 million. The legislation is part of a national campaign by elected officials, legal scholars and tenant advocates to establish a right to counsel in civil actions that impact basic needs like housing. The Sixth Amendment guarantees a right to counsel in criminal cases, but the Constitution does not provide a similar right in civil cases.

    'via Blog this'

    Sunday, December 14, 2014

    US government's use of torture is an indelible stain on the nation's conscience | National Catholic Reporter

    Editorial: The US government's use of torture is an indelible stain on the nation's conscience | National Catholic Reporter
    Since 2003, when news reports of torture at Abu Ghraib first appeared, we have known that the CIA was involved in systematic human rights violations and torture, in that instance, working with the U.S. military. Since then, more reports have surfaced, and the word "waterboarding" entered the national lexicon. The release last week of the U.S. Senate Select Committee on Intelligence report on torture demonstrated for all to see that the activities undertaken in our name, by our government, were even worse than we had previously thought.
    The details of the torture the CIA committed are chilling and need not be repeated here. Equally chilling was the response to the report's release. All manner of justification for the use of torture was presented, insults were hurled at Sen. Dianne Feinstein for releasing the report, and dark threats were made about new terrorist attacks on account of the report's release. Former vice president Dick Cheney, arguably the most sinister public official since Richard Nixon, said, "The report's full of crap."
    As E.J. Dionne noted in The Washington Post, "The pushback against Feinstein makes clear that many involved in 'the program,' as they so delicately call this departure from our own norms, would do it all over again."
    Wars create moral quandaries all the time, which is one good reason they should be avoided. But, after World War II and especially after the unique crime that was the Holocaust, the United States led the effort to enact international laws protecting human rights and proscribing certain activities as war crimes. Even amid the moral confusion of war, some things are beyond the pale, too indecent to be allowed, an insult to our common humanity.
    In 1948, the U.N. Universal Declaration of Human Rights was passed. The following year, the Geneva Conventions built on earlier treaties to ban certain inhumane practices. In 1984, the U.N. Convention against Torture was adopted. When President Ronald Reagan sent the Convention against Torture to the Senate for ratification, he said it "marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today."
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    In the wake of the terrorist attacks on Sept. 11, 2001, that proud history was quickly forgotten. International norms were inconvenient. We understand the need to prevent such attacks in the future, but in the first few days, while the remains of the Twin Towers still smoldered, it was obvious that prevention was not the only goal of the Bush administration. They wanted payback and punishment.
    What the administration forgot: One of the things that distinguishes terrorism from other forms of violence is precisely the terrorists' willingness to flout the rule of law, to ignore and willfully transgress standards of human decency. And lest we now comfort ourselves by turning the Bush administration into a kind of scapegoat, we feel compelled to wonder if a popular referendum on permitting torture would not have passed overwhelmingly in 2003 or 2004 or, sadly, even today.
    We commend one prominent Republican for swimming against the tide: Sen. John McCain, who happens to be the only member of Congress with firsthand experience of torture:
    "I have often said, and will always maintain, that this question isn't about our enemies; it's about us. It's about who we were, who we are and who we aspire to be. It's about how we represent ourselves to the world. ... When we fight to defend our security we fight also for an idea ... that all men are endowed by the Creator with inalienable rights."
    McCain correctly identifies the moral agent in the act of torture: It is the person committing the torture, not the person being tortured. And, insofar as the torture was done in our name, it is about us. We can all acknowledge that the terrorists in custody were bad people who did gravely evil things. That does not justify us lowering our own standards of decency.
    As Christians, we have a special responsibility to combat torture. As Maryann Cusimano Love, a fellow at the Institute for Policy Research & Catholic Studies,noted in 2009, "Being disciples of a tortured God means that we must never be torturers, but must see in the image of Christ our solidarity with the powerless and marginalized, the victims of torture. We must see the fundamental dignity of human life, the face of God, even in suspected enemies, and treat them accordingly."
    The Senate report demonstrates that we did not, in fact, respect the fundamental dignity of those in our custody. Respect for human dignity is the indispensable cornerstone for any and all peace-building efforts in the Middle East and beyond. In fact, it is strange that those who defended the war in Iraq do not see how badly torture harms their own stated goals. The struggle against Islamist extremism is primarily to be won not on the battlefield, but in the hearts and minds of Muslim communities. Only when people in at-risk communities are convinced that the rule of law is preferable to the law of violence will that struggle be won. Both the war in Iraq and the systematic use of torture make a mockery of the rule of law and, just so, provide recruiting tools for terrorists.
    If Christians are in agreement that torture is wrong, there is less agreement about what justice demands of those who perpetrated it. The Convention against Torture included provisions for "universal jurisdiction" -- that is, every signatory country is bound to enforce its provisions and bring perpetrators to justice.
    But who most deserves to be brought to the bar of justice? A CIA operative who was following orders? Certainly. But what about the lawyers at the Justice Department who gave that operative a green light? And what about White House officials who encouraged the lawyers to find whatever loopholes were needed to achieve that green light?
    We live at a time when administrations try and provide "plausible deniability" to presidents, and it is not clear to what degree President George W. Bush knew the details of what the CIA was doing. But plausible deniability cannot be allowed to vitiate constitutional responsibility. It is hard to believe that senior officials at the White House were not winking at, at least, or encouraging, at worst, what was happening in prisons around the world.
    (Let's not forget former Secretary of Defense Donald Rumsfeld's comment: "I stand for 8-10 hours a day. Why is standing limited to four hours?" written in the margins of a memo in which he approved interrogations techniques such as forcing prisoners to stand for extended periods, stripping them nude, and threatening them with dogs.)

    The use of torture by U.S. government personnel is an indelible stain upon the nation's conscience. It will not wash off. The release of the report is a first step in truth-telling, but reconciliation requires more. It requires justice. None of us should be naïve about the threat terrorists pose. But all of us should have the moral intelligence to recognize that our strongest weapons in the fight against religious extremism and terrorist violence are our ideals.  

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    Saturday, December 13, 2014

    Another attack on the ACA - House of Representatives v. Burwell

    Another Baseless Attack on Health Law -
    The Times has an editorial today denouncing the House of Representatives suit against the Obama administration for measures it has taken to enforce the Affordable Care Act which the GOP majority has voted 51 times to repeal.  As we know from the four Justices who would have voided the entire law the courts - once you get to the top - may be an ally of those who would like to destroy the most important social welfare measure since Medicare.  The Times piece is good - but I thought I would add my own say,  It appears below.  - gwc

    A judicial hammer and anvil?
    by George W. Conk

    We have one national government - the United States of America but its powers are divided. All legislative power is in the Congress whose powers are divided.  The Executive is charge with the duty to take care that the laws are faithfully executed.  And the President shares in the legislative function via the veto power.  The judicial power rests in the Supreme Court and such inferior courts as the Congress via legislation may create.  The judicial power is limited to a specified set of issues, the most important of which are interstate disputes, “cases in law and equity”and to “to controversies to which the United States shall be a party”. Nowhere does Article III extend the judicial power to disputes among the branches of government.  Accordingly such disputes have not been presented to the courts.

    But now the House of Representatives as one half of the legislative branch has departed from that tradition.  It has filed an action styled United States House of Representatives v. Secretaries Burwell, Lew and the administrative agencies they lead - the Departments of Health and Human Services and The Treasury.  Continuing the House majority’s assault on the Patient Protection and Affordable Care Act (ACA), the suit seeks a declaration of unconstitutionality and injunction against two key measures: first, the Executive’s grant of tax credits and refunds to insurers mandated by the ACA.  The measure is designed to compensate for “cost sharing reductions” mandated as a condition of being permitted to offer insurance policies through the ACA health insurance marketplace exchange.  Congress has refused to make a specific appropriation.  The House argues that the IRS regulation which pays these obligations from permanent amounts to a “legislative change to the ACA”.  Second the House attacks the executive action permitting employers who must provide health insurance to all full time employees to  escape ACA sanction if they achieve 95% coverage.

    These Executive actions, the complaint asserts, “usurp Article 1 legislative authority”  and are unconstitutional. The House seeks an injunction against the executive.  In each count the complaint recites that “the House has been injured, and will continue to be injured, by defendants’ unconstitutional actions”.  It is a concept of injury that has never been asserted or recognized.  Though Congress has on a couple of occasions (most recently in Don’t Ask Don’t Tell) litigated to defend a statute, it has never sought to have a court define the often obscure line between legislative and executive action.  With good cause.

    There are many ways to view the House’s action - e.g as one that lacks standing (has it suffered a particularized injury in fact as required in Lujan v. Defenders of Wildlife (1992)?  Or does it pose a non-justiciable political question. In the redistricting case Baker v. Carr (1962) the Supreme Court embraced one person one vote.   It began by asking is “the matter textually committed to a coordinate political department” and are there  available “judicially discoverable and manageable standards for resolving” the issue.  One could plausibly embrace the view that courts can develop doctrines to determine the difference between legislation and the interpretation necessary to “faithfully execute” the laws.

    But our experience in recent years trying to maintain judicial independence in New Jersey encourages caution.  So does the auctioning of the judiciary as partisan cash flows into judicial elections around the country.  As respect for Congress has fallen we grow more concerned about preserving the autonomy which is critical to judicial legitimacy.
    If the courts were to adopt a strict construction of the grants of power in Articles I and II it would require courts to examine the nature of each exercise of federal power and then to prohibit the wrong branch from exercising it.

    Separation-of-powers doctrine would become a  judicial hammer and anvil for invalidating a wide range of congressional or executive action that could be found to stray over the no man’s land of ambiguity in terms such as legislate, interpret, and enforce.  This might be appealing to judges who do not like the administrative state or who believe that Congress meddles too much in executive affairs.  But it would be a revolution in the law of separation of powers in the United States.  The federal courts should decline the invitation tendered by the House of Representatives.
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    Fei Chang Dao: Nobel Peace Prize History With Baidu Encyclopedia Characteristics - 2014 Edition

    I think the Chinese Communist Party has a lot of strengths and is making good progress on many fronts, including legal reform and environment.  But this sort of  timidity by the giant search engine Baidu  makes me think it is Humpty Dumpty wobbling on top of the wall. - gwc
    Fei Chang Dao: Nobel Peace Prize History With Baidu Encyclopedia Characteristics - 2014 Edition: "In 2013, this blog noted that the Baidu Encyclopedia (Baike 百科 - a Wikipedia-like product) list of Nobel Peace Prize winners did not include either Liu Xiaobo or the Dalai Lama.  These screenshots were taken on December 13, 2014, and show that the list now includes a reference to Liu Xiaobo, but still omits the Dalai Lama. "

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    Citigroup Will Be Broken Up | The Baseline Scenario

    Citigroup Will Be Broken Up | The Baseline Scenario:
    by Simon Johnson (MIT Sloane School of Management; formerly chief Economist - IMF)
    "In a blistering speech on Tuesday, December 9th, Senator Warren emphasized how much power large Wall Street banks have in Washington. The pushback from those banks’ supporters was, not surprisingly, to deny any special rights and privileges.
     On Wednesday, a provision — drafted by Citigroup — to repeal part of the Dodd-Frank financial reforms (Section 716) was added by House Republicans to their spending bill. On Thursday, Citigroup led the charge to persuade enough Democrats to vote for that bill.

    The repeal of Section 716 stayed in the spending bill only because Wall Street brought so much pressure and influence to bear. Everything that transpired on Wednesday and Thursday exactly fit the pattern that Senator Warren had described on Tuesday. Those seeking to disparage Senate Warren now attempt to paint her as some sort of extremist – the tea party of the left.
    But such a description is completely at odds with the reality of this week. In arguing against the repeal of Section 716, Senator Warren was supporting arguments put forward by Thomas Hoenig (a Republican appointee at the Federal Deposit Insurance Corporation), Sheila Bair (Republican and former chair of the FDIC), and Senator David Vitter (R., Louisiana). On Friday, the Systemic Risk Council – chaired by Sheila Bair – put out a statement against the repeal of Section 716. (I am a member of the SRC; the council includes people from the left, center, and right of the political spectrum.)"

    This is not a left vs. right issue. It is a fundamental systemic risk issue, on which people across the political spectrum who want to lower those risks can agree – Section 716 should not be repealed. In fact, some of the sharpest voices on this issue come from the right.

    In a statement on Tuesday, Thomas Hoenig, appointed by the Republicans to be Vice Chair of the FDIC, said:
    “In 2008 we learned the economic consequences of conducting derivatives trading in taxpayer-insured banks. Section 716 of Dodd-Frank is an important step in pushing the trading activity out to where it should be conducted: in the open market, outside of taxpayer-backed commercial banks. It is illogical to repeal the 716 push out requirement.”
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    Israel: A Time for Personal Sanctions | The Third Narrative

    Israel: A Time for Personal Sanctions | The Third Narrative

    Israel: A Time for Personal Sanctions
    December 8, 2014

    A central obstacle to a just peace between Israelis and Palestinians is the continuing occupation of the West Bank. Accordingly, we call on the United States and the European Union to impose personal sanctions on a cluster of Israeli political leaders and public figures who lead efforts to insure permanent Israeli occupation of the West Bank and to annex all or parts of it unilaterally in violation of international law.
    There is a compelling current precedent for such moves. In response to Russia’s unilateral annexation of Crimea and its ongoing campaign of aggressive destabilization in eastern Ukraine, the United States and the European Union implemented, among other measures, personal sanctions—visa restrictions and foreign asset freezes—against government officials, public figures, and others who play especially significant roles in promoting and implementing violations of international law. (1)  We propose that similar personal sanctions be imposed on Israeli political leaders and other public figures who play central roles in Israel’s systematic, long-term violations of international law.
    UN Security Council Resolutions 242 and 338 allowed for a temporary Israeli occupation in the territories captured in the 1967 war, while calling for a negotiated peace settlement that would include Israeli withdrawal from occupied territories in return for recognition of Israel’s right, along with other states in the area, “to live in peace within secure and recognized boundaries free from threats or acts of force.” These resolutions did not authorize permanent occupation, large-scale ongoing Israeli settlement in the occupied territories, or creeping annexation in the West Bank. Those policies plainly violate international law.
    Continuing settlement and piecemeal annexation directly violate the Hague Regulations and the Fourth Geneva Convention, which regulate the conduct of belligerent occupations, and also violate the ban on acquiring territory by force which is one of the foundations of the modern international order. In addition, they deliberately aim to prevent the kind of negotiated peace settlement envisioned by Resolutions 242 and 338.  These policies threaten to lock both Israelis and Palestinians into an inescapable path toward catastrophe. They demand an urgent response.
    That response, we believe, should not take the form of generalized boycotts and other sanctions that indiscriminately target Israeli society and Israeli institutions. Such measures are both unjust and politically counterproductive. In particular, campaigns for boycotts and blacklists of Israeli academia attack the most basic principles of academic freedom and open intellectual exchange.***
    The undersigned are members of the Scholars for Israel and Palestine, affiliated with The Third Narrative (14):
    Gershon Shafir
    University of California, San Diego
    Jeff Weintraub
    Independent Scholar
    Michael Walzer
    Institute for Advanced Study, Princeton
    Todd Gitlin
    Columbia University
    Sam Fleischacker
    University of Illinois at Chicago
    Alan Wolfe
    Boston College
    Alan Jay Weisbard
    University of Wisconsin, Madison
    Rebecca Lesses
    Ithaca College
    Joe Lockard
    Arizona State University
    Zachary J. Braiterman
    Syracuse University
    Irene Tucker
    University of California, Irvine
    Michael Kazin
    Georgetown University
    Steven J. Zipperstein
    Stanford University
    Jeffry V. Mallow
    Loyola University Chicago
    Ernst Benjamin
    Independent Scholar
    Rachel F. Brenner,
    University of Wisconsin, Madison
    Chaim Seidler-Feller
    University of California, Los Angeles
    Jonathan Malino
    Guilford College
    Miriam Kastner
    University of California, San Diego
    Barbara Risman
    University of Illinois, Chicago

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    Friday, December 12, 2014

    Gavel Grab » Column: Independent Spending Dominated 2014 Judicial Elections

    by Ronald K.L. Collins:
    Question: You have long been on record as being a critic of the [Supreme] Court’s decision in Buckley v. Valeo (1976). You maintain that the “American system of campaign financing is extremely porous and is widely and probably correctly believed to constitute a thinly disguised system of quasi-bribes of elected officials; at the very least it tilts the playing field very steeply toward the wealthy and the well organized . . . .” Given that, how bad in your view have things become in light of rulings such as McCutcheon v. FEC (2014)?
    Judge Richard Posner: Very bad.
    Gavel Grab » Column: Independent Spending Dominated 2014 Judicial Elections:
    Large-scale independent spending ushered in by the Supreme Court’s Citizens United decision dominated this year’s judicial elections, according to the Center for American Progress.

    Independent spending totaled more than $8.5 million of an overall $15 million spent on the elections, according to CAP, which said it was the first time that independent spending outpaced candidate spending.

    In a column entitled “The Million Dollar Judges of 2014,” CAP reported the following top state judges whose campaigns benefited from more than $1 million in spending, including by lawyers or corporations who might appear before them in court: North Carolina Chief Justice Mark Martin, Ohio Justice Judith French, and Michigan Justices Brian Zahra and Richard Bernstein. The column by Billy Corriher concluded:
    “The 2014 election vividly illustrates former U.S. Supreme Court Justice John Paul Stevens’ warning in his Citizens United dissent that the majority had ‘unleashed the floodgates’ of spending in judicial races. Groups unaffiliated with the candidates can often accept unlimited contributions, and most judicial ethics rules do not even mention independent spending as a basis for recusal. Reforms such as public financing for judicial candidates, merit selection for judges, and stricter recusal rules could help ensure that donors cannot buy justice.”
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