Change of Power in Washington

Wow, it has been some time since my last post, which is the cause of many things, of which I will not name. But, something very significant happen last night–election day November 2, 2010, which has brought me out of the woodwork. The Republican party won a major electoral victory, which makes them the majority party in the House of Representatives, and won enough seats in the Senate to make it even more difficult to pass legislation–as if it wasn’t difficult before last night. The cause of this Republican take over, to me, depends on what side of the political spectrum you reside. Republicans seem to suggest that their win was because voters felt President Obama, and his Democratic majority went to far with their legislation, and didn’t listen to the voters. On the other hand, Democrats seem to blame the Republican take over on secret money (there is some basis for that argument since this election season saw an unprecedented amount of campaign contributions totaling $4 billion), President Obama and the Democrats not going far enough with their legislation (not being liberal enough), and voters just taking out their frustration on the economy on the political party in power. All of which could be true depending on how you spin it. However, polling has shown that the economy was at the forefront of everyone’s mind this election season, which means it was the economy stupid. It is as simple as that. The economy, for the normal people–not the CEOs, banks, or politicians–is horrible, to put it plainly (9.6% unemployment, and 17% real unemployment does not bode well for the political party in power). The average person does not know the ins and outs of President Obama’s health insurance reform legislation, stimulus,and  financial reform–the big three. Nor does the average person follow politics or public policy  close enough to know about the smaller pieces of legislation passed by President Obama, and the Democrat majority in Congress, which include: Ted Kennedy’s national service legislation, and the expansion of the Children’s Health Insurance Program to four million more kids, and new regulations on tobacco, and the Lily Ledbetter Fair Pay Act. All of which, when broken down to the specific parts of the legislation, and aren’t heard through misinformation and fear-mongering, poll very well with the voters–when you ask someone if it is a good thing that someone can no longer be denied care because of a pre-existing condition, they approve overwhelmingly.

In conclusion, this election was not a referendum on President Obama, his legislation, or anything else dealing with politics or public policy. Especially considering the approval rating for congress is at an all time low of 9%, voters don’t trust either party, but in a two-party system there is no other choice but the other party. This election season had to do with jobs, jobs, jobs, and will continue to be about jobs, jobs, jobs, until the economy turns around. We just have to stay the course, focus, and persevere , things will get better (hopefully).

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Published in: on November 3, 2010 at 9:23 pm  Leave a Comment  
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Hard times for workers on Labor Day 2010

via Harold Meyerson of the WashingtonPost:

Only a purblind ideologue could miss the pattern here. American employers — more than employers in other nations and more than American employers in earlier downturns — have imposed the costs of the recession and, increasingly, the costs of doing business, on their workers, and kept for themselves damn near all the proceeds from doing business.

What gives? Are American employers meaner than their European counterparts and American forebears? I doubt it. The difference is that American workers have markedly less power than their European counterparts and their American forebears.

That’s partly because unemployment remains so high here. More fundamentally, though, the U.S. private sector is almost entirely — 93 percent — nonunion. Unlike European workers, unlike their own parents and grandparents who lived in a much more heavily unionized America, U.S. workers are now powerless to stop their employers from pocketing all the change.

The source of this problem is outlined in two reports scheduled for release Monday from two very different organizations, the liberal Human Rights Watch, and Freedom House, an organization with a staunch Lane-Kirkland-esque antipathy toward authoritarian regimes left and right: Through the weakness of our labor laws, the reports say, private-sector American workers can no longer form unions. Human Rights Watch documents how corporations that are model (and highly profitable) employers in Europe and frequently collaborate with unions there descend to American employer norms — denying workers the right to join unions — when they come over here. Freedom House, citing the near-impossibility of forming unions in this country, laments that the United States cannot be classed among the 41 nations that afford their workers full freedoms.

A union-free America. Growth down a little, employment down a lot. Profits and productivity up, wages flat. Health-care costs up for workers, down for employers. The return of a thriving middle class? Dream on.

And a happy Labor Day, one and all.

Published in: on September 6, 2010 at 5:37 pm  Leave a Comment  
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Welcome to 1938

via Paul Krugman

And just as some of us feared, the inadequacy of the administration’s initial economic plan has landed it — and the nation — in a political trap. More stimulus is desperately needed, but in the public’s eyes the failure of the initial program to deliver a convincing recovery has discredited government action to create jobs.

In short, welcome to 1938.

The story of 1937, of F.D.R.’s disastrous decision to heed those who said that it was time to slash the deficit, is well known. What’s less well known is the extent to which the public drew the wrong conclusions from the recession that followed: far from calling for a resumption of New Deal programs, voters lost faith in fiscal expansion.

Consider Gallup polling from March 1938. Asked whether government spending should be increased to fight the slump, 63 percent of those polled said no. Asked whether it would be better to increase spending or to cut business taxes, only 15 percent favored spending; 63 percent favored tax cuts. And the 1938 election was a disaster for the Democrats, who lost 70 seats in the House and seven in the Senate.

Then came the war.

From an economic point of view World War II was, above all, a burst of deficit-financed government spending, on a scale that would never have been approved otherwise. Over the course of the war the federal government borrowed an amount equal to roughly twice the value of G.D.P. in 1940 — the equivalent of roughly $30 trillion today.

Had anyone proposed spending even a fraction that much before the war, people would have said the same things they’re saying today. They would have warned about crushing debt and runaway inflation. They would also have said, rightly, that the Depression was in large part caused by excess debt — and then have declared that it was impossible to fix this problem by issuing even more debt.

But guess what? Deficit spending created an economic boom — and the boom laid the foundation for long-run prosperity. Overall debt in the economy — public plus private — actually fell as a percentage of G.D.P., thanks to economic growth and, yes, some inflation, which reduced the real value of outstanding debts. And after the war, thanks to the improved financial position of the private sector, the economy was able to thrive without continuing deficits.

The economic moral is clear: when the economy is deeply depressed, the usual rules don’t apply. Austerity is self-defeating: when everyone tries to pay down debt at the same time, the result is depression and deflation, and debt problems grow even worse. And conversely, it is possible — indeed, necessary — for the nation as a whole to spend its way out of debt: a temporary surge of deficit spending, on a sufficient scale, can cure problems brought on by past excesses.

But the story of 1938 also shows how hard it is to apply these insights. Even under F.D.R., there was never the political will to do what was needed to end the Great Depression; its eventual resolution came essentially by accident.

I had hoped that we would do better this time. But it turns out that politicians and economists alike have spent decades unlearning the lessons of the 1930s, and are determined to repeat all the old mistakes. And it’s slightly sickening to realize that the big winners in the midterm elections are likely to be the very people who first got us into this mess, then did everything in their power to block action to get us out.

But always remember: this slump can be cured. All it will take is a little bit of intellectual clarity, and a lot of political will. Here’s hoping we find those virtues in the not too distant future.

Published in: on September 6, 2010 at 4:14 pm  Leave a Comment  
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Making Social Security less generous isn’t the answer

via Ezra Klein

Raising the Social Security retirement age has become as close to a consensus position as exists in American politics. House Minority Leader John A. Boehner (R-Ohio) supports it. House Majority Leader Steny H. Hoyer (D-Md.) has said that “we could and should consider a higher retirement age.” And for a while, I agreed with them, too. It seemed obvious: People live longer today, and so they should work later into life. But as I’ve looked at the issue, I’ve decided that I was wrong. So let me be the skunk at the party. We should leave the retirement age alone. In fact, we should leave Social Security alone — unless we’re making it more, rather than less, generous.

Social Security provides disability insurance and survivor’s benefits, but when people talk about it, they tend to be referring to its role as a program that provides income support to retirees. The average monthly benefit of $1,170 replaces about 39 percent of the person’s pre-retirement earnings. Over the next two decades, the “replacement rate” is slated to drop to 31 percent. That is less than in most developed countries — the Organization for Economic Cooperation and Development ranks it 25 out of 30 member nations.

The system, in other words, is not that generous, and it’s becoming less so every year. The age at which you can begin collecting full Social Security benefits is moving from 65 to 67, as part of a deal struck in the 1980s to ensure the system’s solvency. And all this at a time when employers are getting rid of defined-benefit pensions, which means that most workers will have no guaranteed retirement income except for Social Security.

Which brings us to Social Security’s financial “crisis.” The issue isn’t that Social Security is spending too much or that we’re living too long. It’s that we’re not having enough children (or letting in enough immigrants). As Stephen C. Goss, the system’s chief actuary, has written, Social Security projects an imbalance “because birth rates dropped from three to two children per woman.” That means there are relatively fewer young people paying for the old people. “Importantly,” Goss continues, “this shortfall is basically stable after 2035.” In other words, we only have to fix Social Security once.

The size of that fix is significant, but not astonishing. Over the next 75 years, the shortfall will be equal to about 0.7 percent of gross domestic product. How much is 0.7 percent of GDP? To put that in perspective, the Center on Budget and Policy Priorities calculates that it’s about as much as George W. Bush’s tax cuts for the rich will cost over the same period. Saying we can afford those cuts — which is the consensus Republican position — but not Social Security’s outlay is nonsensical. Coming up with 0.7 percent of GDP isn’t a crisis. It’s a question of priorities…

Published in: on September 6, 2010 at 2:49 pm  Leave a Comment  
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Bilibertaralarians?

via Cato Institute:

The conservative movement–and, with it, the GOP–is in disarray. Specifically, the movement’s “fusionist” alliance between traditionalists and libertarians appears, at long last, to be falling apart. To understand what’s happening, look at the Democratic gains made in previously Republican strongholds on Election Day. In “Live Free or Die” New Hampshire, both House seats–as well as control of both houses of the state legislature–flipped from the GOP to the Democratic column. Out in the interior West, Jon Tester squeaked past Conrad Burns in the Montana Senate race, while other Democrats picked up a House seat in Colorado (along with the governorship) and two more in Arizona. These parts of the country are all known for their individualism and suspicion of officialdom–in short, for their libertarian sympathies.

Libertarian disaffection should come as no surprise. Despite the GOP’s rhetorical commitment to limited government, the actual record of unified Republican rule in Washington has been an unmitigated disaster from a libertarian perspective: runaway federal spending at a clip unmatched since Lyndon Johnson; the creation of a massive new prescription-drug entitlement with hardly any thought as to how to pay for it; expansion of federal control over education through the No Child Left Behind Act; a big run-up in farm subsidies; extremist assertions of executive power under cover of fighting terrorism; and, to top it all off, an atrociously bungled war in Iraq.

This woeful record cannot simply be blamed on politicians failing to live up to their conservative principles. Conservatism itself has changed markedly in recent years, forsaking the old fusionist synthesis in favor of a new and altogether unattractive species of populism. The old formulation defined conservatism as the desire to protect traditional values from the intrusion of big government; the new one seeks to promote traditional values through the intrusion of big government. Just look at the causes that have been generating the real energy in the conservative movement of late: building walls to keep out immigrants, amending the Constitution to keep gays from marrying, and imposing sectarian beliefs on medical researchers and families struggling with end-of-life decisions.

{…}

The basic outlines of a viable compromise are clear enough. On the one hand, restrictions on competition and burdens on private initiative would be lifted to encourage vigorous economic growth and development. At the same time, some of the resulting wealth-creation would be used to improve safety-net policies that help those at the bottom and ameliorate the hardships inflicted by economic change. Translating such abstractions into workable policy doubtlessly would be contentious. But the most difficult thing here is not working out details–it is agreeing to try. And, as part of that, agreeing on how to make the attempt: namely, by treating economic policy issues as technical, empirical questions about what does and doesn’t work, rather than as tests of ideological commitment.

Can a new, progressive fusionism break out of the current rut? Liberals and libertarians already share considerable common ground, if they could just see past their differences to recognize it. Both generally support a more open immigration policy. Both reject the religious right’s homophobia and blastocystophilia. Both are open to rethinking the country’s draconian drug policies. Both seek to protect the United States from terrorism without gratuitous encroachments on civil liberties or extensions of executive power. And underlying all these policy positions is a shared philosophical commitment to individual autonomy as a core political value.

Could we make a 3rd party by cementing a new fusionist alliance between liberals and libertarians? I be for it.

Published in: on August 26, 2010 at 11:36 pm  Leave a Comment  
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The Secret War in Yemen

via Glenn Greenwald:

What’s going on here seems fairly obvious.  The absurdity of escalating a war in Afghanistan by pointing to The Scary Al Qaeda Menace — when there is virtually no Al Qaeda presence in that country — is becoming increasingly apparent.  Just yesterday, Washington Post article documented — using the WikiLeaks war documents (which, remember, told us absolutely nothing worth knowing) — that Al Qaeda is virtually non-existent in the war in Afghanistan.  So now, administration officials — hiding behind the anonymity which these media outlets naturally provided — fanned out to announce a new, Growing, Scary Al Qaeda Threat in Yemen, which, they boast, now needs its own escalated bombing attacks and CIA operations.  The goal is that the War never ends; the only variable is where it happens to increase on any given day.

The illogic and propaganda driving this is so familiar because it’s what has been driving the American National Security State for the last decade.  There is anti-Americanism and radicalism in Yemen; therefore, to solve that problem, we’re going to bomb them more with flying killer robots, because nothing helps reduce anti-American sentiments like slaughtering civilians and dropping cluster bombs from the sky.  Who could have watched the last decade and have doubts about that brilliant strategic insight?  As Yemen expert Gregory Johnson told The Christian Science Monitor in June, after reports of the use of American cluster bombs:

It is incredibly dangerous what the US is trying to do in Yemen at the moment because it really fits into AQAP’s broader strategy, in which it says Yemen is not different from Iraq and Afghanistan.  They are able to make the argument that Yemen is a legitimate front for jihad.  They’ve been making that argument since 2007, but incidents like this are all sort of fodder for their argument.

Just imagine how helpful a new, escalated drone campaign in Yemen will be — on top of the U.S.-backed abuses from their own government — for helping extremists in that country make the argument that Yemen is a new front in the American crusade against Muslims, similar to what is happening in Iraq, Afghanistan and Pakistan.  Of course none of this is new.  A Rumsfeld-commissioned report from all the way back in 2004 identified the “underlying sources of threats to America’s national security” and emphasized among the leading threats the “negative attitudes” towards the U.S. in the Muslim world and “the conditions that create them.”  That report specifically explained:

American direct intervention in the Muslim world has paradoxically elevated the stature of and support for radical Islamists, while diminishing support for the United States to single-digits in some Arab states.   Muslims “do not hate our freedom,” but rather, they hate our policies.

Personally, I wouldn’t call that a “paradox”:  nothing is easier to understand than why American bombings in the Muslim world increase anti-American hatred and thus fuel anti-American Terrorism and swell the ranks of extremists.  It’d be a “paradox” if that didn’t happen.  And it’s therefore unsurprising that the 2009 Nobel Peace laureate is rapidly becoming as disliked in the Muslim world as the prior U.S. President:  what looks to five Norwegians sitting in Oslo to be a Man of Peace looks much different in the region where his bombs are falling, his hit squads deploying, his war commitments expanding, and his sky robots multiplying.

There’s a particularly bitter irony here.  The campaign against the Park51 community center in Lower Manhattan is being condemned, rightfully so, because it is driven by a desire to stigmatize all Muslims and even institute a generalized war against Islam as American policy.  But far from Ground Zero, having nothing whatsoever to do with the warped right-wing fanatics driving that campaign, we’re increasingly engaging in actions perceived — understandably so — to be exactly the War against Muslims which, with our pretty presidential words, we renounce.  Escalation in Afghanistan, a sustained bombing campaign in Pakistan, all sorts of increased covert actions in multiple Muslim countries, the ongoing imprisonment with no charges of Muslims around the world, bellicose threats to Iran, and now a proposed expansion of our drone campaign into Yemen:  we can insist all we want that we are not waging a War Against Muslims, but it’s going to look to a huge number of people as though we’re doing exactly that.

How long will America run around Muslim nations “playing” protector of the greater good? Forever. And ever. And ever. At this rate I really hope the Aztecs were right about the world ending in 2012.

Hey neoconservative, right-wing lunatics, and no spine democrats do you get it yet? They hate us because we kill innocent civilians, and blow their country up into little pieces–every single day. Would you feel all warm and fuzzy inside about another country if it was blowing up your country into little pieces, all in the name of protecting the greater good? Imagine reliving 9/11 and Pearl Harbor over, and over again–every single day.

Published in: on August 25, 2010 at 11:48 pm  Comments (1)  
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Sums up the Political Environment

via The Nation:

The political calculus is stunning. More than $1 trillion for the banks? No problem. But $10 billion for teachers and $16 billion to help the poor get healthcare? Only if it’s deficit-neutral and offset by other cuts to social spending. Never mind that many people using food stamps are already living through a depression or that food stamps are one of the most reliable ways to stimulate spending. The food stamp lobby doesn’t have quite the same pull as the Chamber of Commerce or US corporations—which have seen their profits rise by 36 percent this year and enjoy profit margins as a share of GDP that are near postwar records.

What happen to a government for the people by the people? Well, it is a government for the corporations by the corporations, which it always has been, but it just has come home to roost. Big banks if you are having a hard time, we will bail you out. Hey you, middle-class person trying to live a comfortable life, do you need some help? Well too f***ing bad, you don’t lobby well enough. Maybe someday, LOSER!

Published in: on August 25, 2010 at 11:26 pm  Leave a Comment  
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Ron Paul Shines Again

Congressman Ron Paul today released the following statement on the controversy concerning the construction of an Islamic Center and Mosque in New York City:

Is the controversy over building a mosque near ground zero a grand distraction or a grand opportunity? Or is it, once again, grandiose demagoguery?

It has been said, “Nero fiddled while Rome burned.” Are we not overly preoccupied with this controversy, now being used in various ways by grandstanding politicians? It looks to me like the politicians are “fiddling while the economy burns.”

The debate should have provided the conservative defenders of property rights with a perfect example of how the right to own property also protects the 1st Amendment rights of assembly and religion by supporting the building of the mosque.

Instead, we hear lip service given to the property rights position while demanding that the need to be “sensitive” requires an all-out assault on the building of a mosque, several blocks from “ground zero.”

Just think of what might (not) have happened if the whole issue had been ignored and the national debate stuck with war, peace, and prosperity. There certainly would have been a lot less emotionalism on both sides. The fact that so much attention has been given the mosque debate, raises the question of just why and driven by whom?

In my opinion it has come from the neo-conservatives who demand continual war in the Middle East and Central Asia and are compelled to constantly justify it.

They never miss a chance to use hatred toward Muslims to rally support for the ill conceived preventative wars. A select quote from soldiers from in Afghanistan and Iraq expressing concern over the mosque is pure propaganda and an affront to their bravery and sacrifice.

The claim is that we are in the Middle East to protect our liberties is misleading. To continue this charade, millions of Muslims are indicted and we are obligated to rescue them from their religious and political leaders. And, we’re supposed to believe that abusing our liberties here at home and pursuing unconstitutional wars overseas will solve our problems.

The nineteen suicide bombers didn’t come from Iraq, Afghanistan, Pakistan or Iran. Fifteen came from our ally Saudi Arabia, a country that harbors strong American resentment, yet we invade and occupy Iraq where no al Qaeda existed prior to 9/11.

Many fellow conservatives say they understand the property rights and 1st Amendment issues and don’t want a legal ban on building the mosque. They just want everybody to be “sensitive” and force, through public pressure, cancellation of the mosque construction.

This sentiment seems to confirm that Islam itself is to be made the issue, and radical religious Islamic views were the only reasons for 9/11. If it became known that 9/11 resulted in part from a desire to retaliate against what many Muslims saw as American aggression and occupation, the need to demonize Islam would be difficult if not impossible.

There is no doubt that a small portion of radical, angry Islamists do want to kill us but the question remains, what exactly motivates this hatred?

If Islam is further discredited by making the building of the mosque the issue, then the false justification for our wars in the Middle East will continue to be acceptable.

The justification to ban the mosque is no more rational than banning a soccer field in the same place because all the suicide bombers loved to play soccer.

Conservatives are once again, unfortunately, failing to defend private property rights, a policy we claim to cherish. In addition conservatives missed a chance to challenge the hypocrisy of the left which now claims they defend property rights of Muslims, yet rarely if ever, the property rights of American private businesses.

Defending the controversial use of property should be no more difficult than defending the 1st Amendment principle of defending controversial speech. But many conservatives and liberals do not want to diminish the hatred for Islam–the driving emotion that keeps us in the wars in the Middle East and Central Asia.

It is repeatedly said that 64% of the people, after listening to the political demagogues, don’t want the mosque to be built. What would we do if 75% of the people insist that no more Catholic churches be built in New York City? The point being is that majorities can become oppressors of minority rights as well as individual dictators. Statistics of support is irrelevant when it comes to the purpose of government in a free society—protecting liberty.

The outcry over the building of the mosque, near ground zero, implies that Islam alone was responsible for the 9/11 attacks. According to those who are condemning the building of the mosque, the nineteen suicide terrorists on 9/11 spoke for all Muslims. This is like blaming all Christians for the wars of aggression and occupation because some Christians supported the neo-conservatives’ aggressive wars.

The House Speaker is now treading on a slippery slope by demanding a Congressional investigation to find out just who is funding the mosque—a bold rejection of property rights, 1st Amendment rights, and the Rule of Law—in order to look tough against Islam.

This is all about hate and Islamaphobia.

We now have an epidemic of “sunshine patriots” on both the right and the left who are all for freedom, as long as there’s no controversy and nobody is offended.

Political demagoguery rules when truth and liberty are ignored.

Couldn’t have said it better myself!

Published in: on August 23, 2010 at 10:31 pm  Leave a Comment  
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ALASKA NOT AFRAID TO BITE THE HAND THAT FEEDS

By Andrew O’Brien

Sarah Palin is the most famous Alaskan in America. It’s not even close. She is a woman who would have you believe that she, much like her adopted state, built herself out of nothing, without the help of a wealthy benefactor or sinister, generous caretaker. It is the narrative of her political life, one that has seen her rise quickly onto the national scene without much of a clue of what she is talking about.

She is also one of the new breed of conservative-libertarian Tea Partiers, fed up with the spending policies of the federal government which allegedly poses an undue burden on the wallets of each American by taxing them to the bone and spending frivolously on silly ventures like health care and unemployment insurance. The cost is more harmful than productive, they argue. America is losing its way.

Here, they are right. Americans are being unduly taxed without receiving proper benefits. Not those that live in Alaska, however.

Alaskans, meet the federal government, your loathsome sugar daddy. It is the one thing you cannot stand, but also the one you cannot live without.

Alaskan state lawmaker Carl Gatto sees the irony here. He’s a Republican state lawmaker who, though clearly aware of the lopsided financing (for every dollar given to the federal government for highway taxes, Alaska received $5.76), still believes the federal government is holding Alaska back.

From the New York Times:

“I’ve introduced legislation to roll back the federal government,” he says. “They don’t have solutions; they just have taxes.”

But…

Mr. Gatto, 72 and wiry, smiles and shakes his head: “I’ll give the federal government credit: they sure give us a ton of money. For every $1 we give them in taxes for highways, they give us back $5.76.”

He points to a newly graded and federally financed highway, stretching toward distant spruce trees. “Man, beautiful, right?”

Hell yeah, man – nothing like a stretch of asphalt highway to bring out the beauty of the pristine Alaskan wilderness. Mr. Gatto’s 180-degree turn from political righteousness to practical appreciation is the defining dichotomy of just how this Alaskan resolves his mixed feelings towards receiving government funds and choosing to go without.

Alaskans tend to live with their contradictions in these recessionary times. No place benefits more from federal largess than this state, where the Republican governor decries “intrusive” Obama administration policies, officials sue to overturn the health care legislation and Senator Lisa Murkowski, a Republican, voted against the stimulus bill.

Although its unemployment rate sits at just 7.9 percent, about two percentage points below the national rate, Alaska has received $3,145 per capita in federal stimulus dollars as of May, the most in the nation, according to figures compiled by Pro Publica, an investigative Web site. Nevada, by contrast, has an unemployment rate north of 14 percent and has received $1,034 per capita in recovery aid. Florida’s jobless rate is 11.4 percent, and the state has obtained $914 per capita.

(more…)

Published in: on August 18, 2010 at 11:08 pm  Comments (2)  
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Prop 8 Decision Cannot Be Appealed?

via TMV:

Ever since long before Judge Vaughn issued his now-famous decision striking down California’s Prop 8 (and by extension of its logic, also striking down all state and federal anti-gay marriage statutes), it has been universally assumed that his decision would be only the first round in a process that would inevitably end at the Supreme Court.

That assumption could be wrong.  The case might already be over, because the proponents could lack standing to appeal.

I was skeptical when I read the headline, but the two cases cited by the appellees seem dead on point to me.

Justice Ginsburg wrote: “An intervenor cannot step into the shoes of the original party unless the intervenor independently fulfills the requirements of Article III.”

Prop 8 was a referendum, not a statute passed by the legislature.  The proponents of Prop 8 were therefore not the defendants, the state of California (personified by Gov. Schwarzeneggar) was.  And the state of California chose not to defend the case at trial and certainly has no intention of appealing Judge Vaughn’s decision.  Prop 8 proponents were intervenors, allowed by Judge Vaughn to stand in the stead of the state at trial.  That was a discretionary act by the judge and the higher courts are not bound to continue to honor it on appeal.  Thus, at the point that the state of California chooses not to appeal, Prop 8 proponents may have no legal basis to continue the case.  In order to continue, they would have to show that they were personally damaged by the Judge’s decision, which may be difficult.

It is possible that Prop 8 proponents could have standing on the basis that Vaughn’s overturning of their ballot initiative is a harm to their rights to enact valid changes to the law by ballot.  Alternatively, they could concoct standing for a new case by creating a new ballot initiative which would be rejected by the Secretary of State on the basis of Judge Vaughn’s decision, creating a new issue for a new case and a new appeal (after a very swift trial court decision) with no standing problem (since they now would be original parties, not intervenors).

Whatever the outcome, however, this turns out to be a risky argument for the appellees to make, as it risks dramatically limiting the reach of their victory:

On the one hand, that would be fortunate for those who want to marry in California.  On the other hand, it means that Judge Walker’s decision remains merely a trial court ruling and order, with no precedential authority beyond the state of California.  For those who think that Walker’s very persuasive decision can survive appellate review, this may seem like a lost opportunity to achieve a regional (9th Circuit) or nationwide precedent that could then be used to attack similar amendments in more than 30 states.

At the end of the day, this very clever legal argument might be too clever by half, as it transforms a sweeping legal victory to a much smaller one.

Published in: on August 14, 2010 at 12:58 pm  Leave a Comment  
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