So Much For The Nixon Going To China Moment

In a move that surprises no one but simply continues politics as usual and adds further assurance that we will run our national debt into fiscal oblivion one day during my lifetime, the President has announced that he opposes changing either the retirement age for Social Security or the amount of benefits people will receive under it in the future. This means that the only ways to deal with the looming drawdown of the Social Security fund will be to a) raise taxes or b) divert money from on-budget programs to SSI or c) both.

Democrats, your leader has made it clear that he has no taste for entitlement reform. Republicans have already done the same -- not just for Social Security but also for Medicare. (But they are opposed to "socialism.") Without entitlement reform, there can be no serious discussion of deficit reduction -- defense is only about one-fifth of the total budget, cannot be cut completely, and our spending problem is much bigger than that.

This is the public policy equivalent of a gangrene patient opting to not take antibiotics and other nutritional improvements, and also opting to eschew debridement or removal of the necrotized tissue, proclaiming, "It'll heal on its own." No, it won't. Social Security won't get better on its own. The budget won't get better on its own. We have to cut, something, at some point. The sooner we do it, the less painful it's going to be. Just like pulling off a band-aid, it'll be better if we do it fast and all at once than if we do it slowly and over time.

Scorecard 2010

Here were my predictions for 2010, and here's how they did:

1. Jon Huntsman will resign as ambassador to China and begin to lay the groundwork for a Presidential bid in 2012.  Has not happened.  In retrospect, I failed to credit the idea that Ambassador Huntsman might actually like being the Ambassador to the PRC and that he might not really want to be President.
2. Foolishly, Democrats will campaign in 2010 against George W. Bush.  This will fail and result in gains by Republicans, but more in the House than the Senate.  Congressional Republicans will realize a net gain of only two or three seats in the Senate, leaving the Democrats still firmly in control of that body and reviving talks of abolishing the filibuster.  But, net gains in the House of Representatives will be such that the Democrats' majority in the lower chamber will be roughly ten seats and Republicans will optimistically talk of re-taking the House in 2012.  Democrats abandoned their strategy of running against George W. Bush in favor of atomizing local races, which was only partially effective; Republicans took the House but not the Senate, although their Senate gains were larger than I had predicted.
3. A reconciled health care "reform" bill will not be passed out of Congress until March or maybe even early April.  Its effect will be to very moderately increase taxes on middle-class Americans, only negligibly affect their actual health care options, and substantially inflate both the governmental deficit and the profits of enterprise-level health care providers.  I'm taking credit for calling this one pretty much correctly.
4. The net inflation rate of the United States for CY 2010 will be in excess of 4%.  Gratefully, this has not happened, but only because the Fed has kept the prime rate at a rock-bottom level.
5. President Obama will again increase the number of American troops deployed to Afghanistan.  This happened. That doesn't mean I'm happy about it because I'm not, especially because we're now talking about bringing them home with no apparent political objectives accomplished despite hard work and bloodshed by our military.
6. Canada's government will collapse, for real this time, and new elections will result in a badly-fragmented Federal Parliament with the BQ playing the role of powerbroker.  However, the BQ will not be able to leverage this into actual autonomy. Didn't happen; PM Harper took a hard hit, but survived.
7. An El Niño condition will manifest in the Pacific Ocean, relieving California's drought. In fact, it was a La Niña, but we had a wet winter at the start of 2010 and a wet winter at the end of 2010, and have been out of drought conditions all year.
8. Despite the economic help of favorable (that is, "wet") weather, California will increase sales taxes to 10.5% or higher, resulting in the highest sales tax in the nation.  Despite this, functionally all incumbents in the Legislature eligible for re-election will be re-elected in November and the Democrat nominee (who right now looks like Jerry Brown) will win the Governorship. Mostly happened. The only thing I got wrong was the sales tax hike.
9. A national newspaper of significant stature, I'm thinking the Boston Globe, will be liquidated. The Seattle Post-Intelligencer went all-online and has functionally diedas a result.
10. 2010 will be a good year for the stock market.  The S and P 500 will realize a net gain of over 20% in CY 2010.  As of today, the S and P 500 is 1,124.57, so that means that to win this prediction, the S&P will need to be at least 1,349.48 on December 31, 2010.  The year-end close was it was 1,257.64.
11. Iron Man 2 will be the biggest box office hit of the summer.  But another much-anticipated sequel in the same general genre, Tron 2, will disappoint and lose money.  Wall Street 2 and Sex And The City 2 will both prove to be so unwatchably bad that we all would have been better off had they not been made at all.  Remakes of Clash of the Titans and Red Dawn will both prove to be convincingly entertaining.  Mostly happened. Clash of the Titans disappointed; the release of Red Dawn has been delayed; Tron was fun to watch but looks on track to not make much of a profit compared to its production expenses.
12. In First Amendment news, the Supreme Court will decide for the government, 5-4, in the case of Salazar v. Buono, ruling that a large cross, originally built privately as a war memorial, later transferred to Federal land, then the subject of an Establishment Clause lawsuit, and then the subject of a law transferring the cross to the VFW.  The Court's decision will consider the longevity of the monument as a significant factor mitigating against the finding of an Establishment.  (I consider this a pessimistic prediction, for the record).  Justice Sonia Sotomayor will prove to be the decisive vote in favor of the government.  I nailed it right up to the Sotomayor prediction, which turned out to be wrong. The decisive vote was Anthony Kennedy.
13. In Second Amendment news, the Supreme Court will decide, by at least 7 votes, that the individual right to own weapons articulated in District of Columbia v. Heller will be "incorporated" into the Fourteenth Amendment and thus apply to the several states as well as to the national government.  However, the Court will unanimously decline the opportunity to expand the "privileges and immunities" clause embodied in the arguments.  Watch for the decision in McDonald v. City of Chicago to be one of the last decisions announced in June. I hit this one right on the head.
14. Brett Favre will play his final year for the Minnesota Vikings, and then retire.  For real this time because he'll be 41 years old and in at least moderate pain almost all of the time. He hasn't announced his retirement yet and there will be lots of jokes in August, but after the Vikings' disastrous season, it's clearly time for Brett to say goodbye.
15. Iran will successfully detonate a nuclear device.  This will cause much wringing of hands and gnashing of teeth and many Americans and a significant number of Europeans will consider this to be an existential threat.  While all of this is going on, the Russians will hem and haw and whistle tunelessly while staring at the ceiling while trying to blend into the background and go unnoticed.  However, the Iranians will not use their newly-developed nuclear weapon against anyone, including Israel. Gratefully, this did not happen.
16. On December 31, 2010, the U.S. national unemployment rate will be somewhere between 7.5% and 8.5%. I was too optimistic here; the unemployment rate hovered just under 10% all year.

Not so good this year. Hey, at least I didn't make any predictions as boneheaded as these:

10. U.S. Vice President Joe Biden: "More people are going to be put to work this summer."  June 17, 2010. Embarrassingly for me, Vice President Biden's prediction looks a lot like one of my own.

9. U.S. private citizen Meghan McCain: Sharron Angle, Charlie Crist, Christine O'Donnell, and Carly Fiorina will win their Senate races. November 2, 2010. All those candidates lost, three by decisive margins, congruent with polling data that had been available for weeks prior to Ms. McCain's prediction.

8. U.S. President Barack Obama: Guantanamo Bay's prison facilities will close within one year. January 22, 2009. Still over 150 prisoners there and only three trials have been held, all resulting in convictions.

7. U.S. Gen. Stanley McChrystal: "We're not at the end of the military phase, but we're clearly approaching that." March 2, 2010. Gen. McChrystal was referring to Afghanistan, not Iraq, although in each theater we present have over 50,000 combat troops actively engaged in the vital job of killing bad guys.

5. (Tie) Greek Prime Minister George Papandreou and Irish Prime Minister Brian Cowen: "Our countries don't need to be bailed out" (paraphrase), February 21, 2010 and November 15, 2010. Within weeks of each prediction, both countries were bailed out of imminent financial collapse by special funds created by the EU and the IMF.

4. Newsweek Magazine: Venezuelan President Hugo Chavez will be ousted in a military coup, December 2009. While Chavez remains in power, Newsweek was sold for one U.S. dollar earlier this year.

3. Former Cuban dictator Fidel Castro: The U.S.A. will soon launch an overt attack on Iran, shortly followed by another overt attack on North Korea, June 25, 2010. That, um, didn't happen, El Commandante. Better luck next time.

2. Former U.S. Ambassador to the United Nations John Bolton: If Israel fails to launch an overt military strike on Iran within eight days, the Iranians will achieve a nuclear weapon, August 17, 2010. The Israelis (presumably) used a computer virus instead.

1. Russian Foreign Ministry Diplomatic Academy Dean Igor Panarin: "There is a high probability that the collapse of the United States will occur by 2010," March 3, 2009. Sharp political differences over seemingly vapid causes should not be mistaken for the imminent collapse of a common national identity.

...Stay tuned for my fearless predictions for 2011, some of which will be based on sober analysis and some of which I'm pulling straight out of um, parts of my body.

Closing Guantánamo Bay: The Buick Solution

General Motors has, after its traumatic financial reorganization, reduced its branding from eight or nine different brand names to four. One of its brands, GMC, is reserved for trucks, so it has only three levels of branding available for its passenger cars. Roughly speaking, Chevrolet is now the its entry-level GM brand, its mid-level brand is the Buick, and its luxury line is branded Cadillac. This will become important later on in this post, so just file that bit of background away as I move on to the substance of my thoughts this morning, which have to do with national security and justice.

It is probably beyond trite at this point to say that closing the prison for (accused) terrorist at the U.S. Naval Base on Guantánamo Bay, Cuba, is much easier said than done. While the facility itself can indeed be rendered into the past tense with a stroke of the President's pen, the prisoners therein cannot. And we are talking about some Very Bad Men in that prison.

Why close it at all, then? Why not stop worrying and learn to love Guantánamo? Well, in one sense, the President painted himself into a corner, having offered as a prominent campaign promise the closure of the facility. He's having his feet held to the fire on that from his left flank -- and, oddly, from his right, insofar as he's stuck his neck on the issue and seems completely incapable of admitting his own past naïvité on the matter.

One reason that is heard for closing the prison at Guantánamo is that it is purportedly the "number one recruitment tool" of Al Qaeda. Benjamin Wittes gives lie to that point. The presence of American military troops in Iraq and Afghanistan is the #1 recruitment tool we have handed the bad guys, and misconduct by U.S. military personnel is the #2 tool. If the objective is to starve Al Qaeda of new recruits, closing Guantánamo isn't going to make a lot of difference.

The pressure to close Guantánamo, at least according to Professor Wittes, is really in the form of diplomatic rhetoric from our European allies, who see the prison as a symbol of the Presidency of the detested George W. Bush. Ameliorating our European friends' distaste for our Immediate Past President is a markedly insubstantial justification for letting loose on the world about two hundred dirtbags against whom we have military intelligence strongly indicating a predilection for Blowing People Up.

This is particularly so when privately, most of the nations involved do not particularly want us to do this and are quite satisfied with our indefinite detention of people they do not particularly want delivered back to them. It seems we can point to Wikileaks for confirmation of that last fact.

So the real reason to loot at closing Guantánamo is that keeping Guantánamo open is somehow inconsistent with our own ideals. Having a federal prison located on a naval base outside the de jure territorial limits of the United States is not something that ought to give anyone much heartburn from a Constitutional law perspective. The Federal government can operate a prison, and it may do so wherever it exercises de facto power. Two things about Guantánamo are troubling from a Constitutional law perspective, though: 1) the claim that prisoners there are tortured, and 2) the prisoners are deprived of liberty without due process. Neither of these issues has anything to do with the location or name of where those things are purportedly happening.

As to the first issue, that too can be addressed with the stroke of a pen by the President. It can and should be addressed by Congress. The rule is, and ought to be, stark and simple. Regular Readers are familiar with it by now: no torture, ever. Someone who tortures someone else should be punished. We should be readily willing to offer inspections by NGOs for the purpose of verifying that we do not torture our prisoners because we should not be torturing our prisoners. This does not mean granting the NGO inspectors unfettered access to the prisoners, who are, after all, Very Bad Men.

As to the second issue, the practicalities of providing regular trials in civilian courts to at least the most prominent of these prisoners has proven a significant challenge. So far, only one such trial has taken place, U.S. v. Ahmed Khalfan Ghailani. Ghailani was charged with participating in the 1998 bombings of the embassies in Kenya and Tanzania which killed hundreds of people. The result of the trial was one conviction of conspiracy for the Tanzania bombing and acquittal on the other 284 counts brought against him. While I think this demonstrates the resilience of the regular court system to handle such cases, this ambiguous result is seen as a setback for the government's handling of these prisoners through the judicial process.

The significant issue raised by the Ghailani trial was that Ghailani's statements elicited under torture were excluded from evidence, as were interrogations that resulted from those torture-induced statements. This was the legally correct way for the court to handle the issue. Those who defend the use of torture point out that it is sometimes effective, that when done right it can elicit a great deal of information from the tortured prisoner. Maybe yes, and if so that's a very variable sort of case-by-case calculus, but torture is nevertheless incompatible with due process and incompatible with a ban on cruel and unusual punishment, both of which are Constitutional mandates and both of which are beyond the legitimate exercise of governmental power.*

More obnoxiously, the Administration announced before the trial started that Ghailani would not be freed regardless of the result of the trial. While this may be the right national security decision, it begs the question of why a trial is held at all. A show trial is not due process; indeed, it's better from a due process perspective to say "there will be no trial" than to have a meaningless trial.

So the question of dispensing due process to these prisoners is difficult. Civilian trials and civilian rules of justice in our civilian courts are the Cadillac of due process, but the Cadillac presents difficult challenges in this setting. So maybe we can't afford a Cadillac here.

Military tribunals may well be an effective answer to this conundrum; that might not be a Cadillac solution, but it might be a Chevy hatchback (I think those are called Aveos this year but I can't keep track anymore). Gets you where you want to go but not in any particular style or comfort, which translates to "it doesn't really look like something diplomatically or legally satisfactory."

Congress could solve this problem by creating a new court and a reasonable and fair set of rules of evidence and procedure designed to handle these issues. This could be a step up from a Chevy even if it falls short of being a Cadillac -- call it a Buick.

What we're doing right now isn't even on the GM rating scale -- it's walking. But if we can't afford a Cadillac and the Chevy isn't going to cut it, then the compromise is the Buick.

Congress has authority to do this under Articles I and III of the Constitution. Attempts have been made to go this route, but as of yet Congress has failed to exercise its power in this manner and the President has failed to pursue this solution. Were the President doing more than flailing about to balance the national security needs of keeping these Very Bad Men under our control, and the diplomatic and Constitutional imperatives of affording due process to everyone under our power, he would be tackling the problem from this angle. To be sure, there are complex issues here, but they can be worked out and we have no shortage of smart lawyers familiar with the issues who can contribute to resolving them.

Why he isn't, I don't know. Perhaps he hasn't had time to really consider this in between the myriad of other things demanding his attention; perhaps he lacks faith that Congress will put together something that strikes the right balance between these competing pressures; perhaps he genuinely lacks vision in this area or substantial concern for it, a bitterly disappointing proposition but one which I no longer find surprising. But that, in my sight, is the appropriate route towards undoing the Gordian knot of lawfully disposing of the Very Bad Men in Guantánamo Bay.


* I note that many of those who would defend the government's ability to use torture to extract information from a prisoner are of an identity with those who would criticize the government for reaching beyond the boundaries of its legitimate exercise of power by imposing the "individual mandate" of the "Obamacare" health reform law. Of course, a principled reading of the Constitution is too much to ask from any particular faction in politics these days and those of us who are willing to show real faith to the Constitution as an instrument of liberty and a practical and effective limitation on government's power are still looked on as the "crazy uncles" of American politics, who may raise a good point every now and again but mainly are to be politely disregarded.

The Tax Compromise

Greg Sargent has an interesting observation about yesterday and today's political developments:

Obama's strategy going forward will be to position himself as Washington's lone resident adult in a town full of squabbling children on right and left ... Obama was as visibly frustrated and angry as he's perhaps ever been in public, and some folks are pointing out on Twitter that he seems more angry with the left than he is with Republicans. In fairness to Obama, though, he directed harsher rhetoric at Republicans, implicitly comparing them to hostage takers at one point ...

Wow. He compared the Republicans to hostage takers but was even more mad with the Democrats? If I really believed that Obama were the lone adult in a town full of squabbling children in both camps, I might like him more. But part of being an adult means demonstrating leadership. The compromise was made for the sake of compromise, for the sake of resolving a dispute that was raised strictly for the purposes of raising a dispute.

After all, the part of the deal that Obama got in return was a 13-month extension of unemployment benefits. We can argue about whether that was a good idea or not. But the result is lower taxes and more spending, which is just what both parties really wanted all along. All the angst about Obama betraying his base, about the Republicans putting one over on him, is silly -- this is what everyone in the Statist Party really wanted.

Remember, it's spending, not revenue, that is driving the deficit. The lower taxes aggravate the situation, but the deal delays entitlement reform for more than a year, and without looking at entitlement reform, no substantive deal can be made about spending. The reality of what we get with this deal is more of the same from big-government budget-busting Democrats compromising with big-government budget-busting Republicans about how the big government is going to bust its budget.

So while I like the face of the strategy of Obama being the adult who understands that compromise is a part of governance (yes, it is) the compromise this deal represents isn't much of a compromise at all. I'm unimpressed with everyone involved. This is pretty much what Congress would have done left to its own devices anyway.

Which makes sense -- we don't have a President providing leadership through this fiscal crisis, we have a Prime Minister.

Cranberry Pardon Explained!

Obama Outlines Moral, Philosophical Justifications For Turkey Pardon

Somehow I Don't See This In My Crystal Ball

President Lyndon Johnson famously responded to overwhelming public criticism of his handling of Vietnam by announcing that he would not serve as President for a second full term -- he channeled the long-dead General William Tecumseh Sherman, who said "If nominated, I will not accept; if drafted, I will not run; if elected, I will not serve."

This created chaos for the Democratic party in 1968, and paved the way for Richard Nixon to explore entirely new and different ways to get into political trouble concerning Vietnam.

Today, it is easy to see that President Barack Obama has run in to strong -- I'm not sure "overwhelming" is accurate, but "strong" certainly is -- public criticism of his handling of the economy. Is the solution a Polk-like "one and done" for Barack Obama? 

Survey says: irrelevant, because it's not gonna happen. It's fundamentally contrary to the President's personality not to seek re-election, just as it was fundamentally contrary to his personality to decline a Nobel Peace Prize he demonstrably had not earned.

Advice About Two Years Too Late

Matt Yglesias suggests that the appropriate response by President Obama to the setbacks he and his party just sustained is to withdraw to the White House and make greater use of executive powers -- to do things like appointing more judges, aggressively negotiate trade agreements with major trading partners, and using regulatory and priority-setting power to bypass Congress towards encouraging economic activity. In other words, he needs to stop being the Democrats' Congressional-negotiator-in-chief and start being the President.

You'll pardon me if I say, "I told you so." Nearly three years ago, I mused:

Personally, I think that legislative service is a relatively poor way to train someone for executive leadership. Legislative service is inherently a deliberative process. It involves seeking consensus and compromise amongst people who are more or less equals. Chairs of Congressional committees certainly wield great power, but they do so because they have the backing of their peers and therefore concentrate the power of the entire Congress into themselves, at least within their areas of speciality.

Being a legislator is great experience for learning how to make deals. It isn't a great way to learn how to delegate tasks, how to read peoples' abilities and how to pick amongst people for various jobs, how to set priorities. Executive power is taking the helm of an organization; it is not exercised by seeking consensus and compromise, but rather through personal charisma and the dissemination of a common set of visions, goals, and values. Ultimately, being President isn't about making deals, it's about taking charge. So I have to disagree with those among you who picked service in the Congress as the best qualifier for the White House. I'd have picked "Cabinet service" before "Congressional service." But that's just me.

Leaving aside a spelling mistake which I should have corrected, I stand by those remarks. Nor do I think I was particularly unique or insightful back during the campaign to observe that Barack Obama's very first experience as an executive would be as President of the United States. He was never Governor of Illinois, never ran any kind of an enterprise like a university, never even ran the law firms he worked in. Knowing what to delegate and what not to, judging the character and competence of subordinates and figuring out how much leash to keep them on, and finding the right advisers to filter extraneous information and get the important data where it ought to be are difficult things to do.

Which is why it's telling, and of mid-range importance, that so many Republicans became Governors this time around. They are the farm team for the 2012, 2016, and 2020 Presidential election cycles. In the meantime, it's interesting to see liberals pointing out that President Obama needs to stop being Senator Obama. But this begs the question: shouldn't he have been doing that all along?

Premortem 2010

Ten months ago, I made a few SWAGs about (among other things) politics. Those SWAGs included the following:

Foolishly, Democrats will campaign in 2010 against George W. Bush.  This will fail and result in gains by Republicans, but more in the House than the Senate.  Congressional Republicans will realize a net gain of only two or three seats in the Senate, leaving the Democrats still firmly in control of that body and reviving talks of abolishing the filibuster.  But, net gains in the House of Representatives will be such that the Democrats' majority in the lower chamber will be roughly ten seats and Republicans will optimistically talk of re-taking the House in 2012.

* * *

A reconciled health care "reform" bill will not be passed out of Congress until March or maybe even early April.  Its effect will be to very moderately increase taxes on middle-class Americans, only negligibly affect their actual health care options, and substantially inflate both the governmental deficit and the profits of enterprise-level health care providers.

* * *

California will increase sales taxes to 10.5% or higher, resulting in the highest sales tax in the nation.  Despite this, functionally all incumbents in the Legislature eligible for re-election will be re-elected in November and the Democrat nominee (who right now looks like Jerry Brown) will win the Governorship.

My prediction for California is much closer to what has actually happened than what looks like is about to happen at the Federal level.

California is indeed poised to send back functionally all non-termed members of the Legislature back to Sacramento; those seats for which the incumbent is termed out appear poised for retention by the incumbent's party. There may well be no shift in the partisan makeup of the California Legislature at all.

Federally, I made my prediction believing that the bad general economic conditions present at the end of 2009 would not persist and be mitigated somewhat. I hoped that would be true. Now, where I predicted a gain by Republicans of two or three seats in the Senate, it looks more like seven. That doesn't leave Democrats firmly in control of that body, but they will still be the majority.

The House, however, appears poised for a reversal of control. Right now, Democrats have 255 seats, Republicans 178, and there are two vacancies. The magic number is a net gain of 39 seats for Republicans. My predicted gain of roughly ten seats will be far exceeded; the best predictions available is a shift of fifty-five (!) seats, which would be enough for the GOP to re-take the Speaker's chair.

I think what happened was that the election of Scott Brown earlier this year gave everyone a test of the political waters. Much like I thought, the Republicans found that running a campaign against President Obama and in particular health care reform was potent stuff; the Democrats found that running against President Bush was a non-starter. Why they ever thought to run against Bush during mid-term elections while they controlled the White House is absolutely beyond me.

What happened was that Democrats found that their brand had become toxic and they had no target to point to and say, "But we don't suck as bad as them!" anymore. The best they came up with were the Not-Ready-For-Primetime-Players like Sharron Angle, Christine O'Donnell, and Joe Miller -- but in states with larger populations, even the more conservative of Republican nominees -- Rick Rubio, Pat Toomey, Mark Kirk -- had enough experience and polish to give lie to the idea that cosnervative ideology necessarily means silliness.

I see no reason to think, however, that this election represents an embrace by the electorate of "Republican ideas." Rather, it is a rejection of "Democratic ideas," specifically health care reform. If there is going to be a common thread in the stories at the House level, it will be that Democrats from marginal districts who voted for health care reform get thrown out, while Democrats who can say that they bucked their own party on this one issue stand a reasonable chance of hanging on to their seats.

The result of this will be that the Republicans in office for the 112nd Congress will believe that they have been rewarded for being "The Party Of No" and will double down on doing nothing. The chances that the Obamacare bill will actually get repealed are functionally nil -- the President still holds the veto pen, even if a repeal makes it through the Senate. But there is a reasonable chance, even a probability, that Obamacare will be whittled back incrementally. The political football will be the individual mandate. This strikes me as odd -- the Republicans will realize electoral gains and make political hay during the next cycle, by fighting for the right of people to not have health insurance if they don't have the money to buy it. But there you have it.

Downballot, at least here in California, the real prize is redistricting. Lots of people are focused on Prop. 19, which I predicted a while back and continue to believe will be a very close vote. Right now, I'm pessimistic about whether it will pass. But the big issue is Prop. 20 and Prop. 27.  In the last election, the voters passed Prop. 11, which delegated legislative redistricting to a bipartisan panel of 120 people, 40 Democrats, 40 Republicans, and 40 independents. Prop. 27 would repeal Prop. 11.  Prop. 20 would extend the power of the panel to Congressional districts as well. I have long thought that the heavily-gerrymandered districts are at the root of the political polarization which has effectively paralyzed California's fisc.

This will be somewhat mooted if Prop. 25 passes -- this would reduce the requirement for passage of a budget out of the Legislature from two-thirds to a simple majority. The result of this would be to eliminate the only power that the minority party in the Legislature has, which is to block passage of the budget. Since the 1950's, Democrats have been in charge of the Legislature and for most of that time, Republicans have used the two-thirds rule to slow or mitigate the creep of tax increases which Democrats would have implemented to pay for the expansion of government services that they nevertheless pass. Since Republicans will not allow taxes to be significantly increased to pay for this, the Democrats have financed these things by selling them piecemeal to the voters directly through bond measures and had to content themselves with only incremental increases in taxes and hoping that inflation would catch up with the bonds.

How long could such a thing be sustained?  Fifty-six years, as it turns out, until a national economic crash, hitting particularly hard here, caused existing revenue to drop through the floor.

So these are the big issues and the big forces I see at play right now. I want the Republicans to do better in Sacramento; there is little doubt in my mind that state taxes are already at such heights that California's economy suffers from a drag imposed by the government. This means we need to keep the two-thirds rule and try to fashion more logical and balanced districts in the future so that the Legislature is not run like an old-style Russian Soviet. At the Federal level, I'm not a fan of Obamacare and wouldn't mind seeing it repealed.

All in all, I find reason to be contented and moderately optimistic about the elections today. I don't relish the idea of gridlock and I would like it if the Republicans actually stuck their necks out and proposed actual policies instead of simply saying "Let's go back to the way things were in [mumble mumble]." The gold old days under George W. Bush weren't really all that good, especially from a fiscal perspective. Still, I'm encouraged to see that they are at least paying lip service to the idea of watching our collective money, and I can at least hope, perhaps forlornly, that this ethic by the voters will trickle down to the state level here such that we see institutional steps to keep California's finances in check retained and strengthened.

A Text About 2 Years Of President Obama

In response to a query from a Reader in Portugal, written so that hopefully an automatic translator wouldn't lose too much meaning:

I can tell that your English is much better than my Portuguese. I had to use a computer translator to understand your blog. (I confess I do not understand the ongoing story about the penguins at all. Is it a parody of your government?) Hopefully you can make use of my thoughts.

I get the idea that you are as cynical about your government as I am about mine. Still, I hope what I have to say is useful to you. There was once a tradition in the US that we can criticize our President and our government only among ourselves, and that we should leave our political differences at the nation's borders. In this day and age, that is nonsense - the entire world can read about Americans arguing over politics on the internet and hear us doing it on television, so it is useless to hide the fact that we have strong differences of opinion over here.

In my opinion, President Obama has been a tremendous disappointment. I knew before he was elected that he would change our health care system so that we would pay more taxes for it but not get any real different service from our doctors and hospitals. That has come true. I knew before he was elected that he would continue the wars in Iraq and Afghanistan, while falsely claiming to be bringing them to an end. That has come true also.

But, he promised us that he would work to bring down our national debt. Instead, it has increased by 50% since he took office. He promised us that he would protect our civil liberties and would respect the limits on government power enshrined in our Constitution. Instead, he has continued to spy on American e-mail without getting search warrants, continued to hold prisoners in Guantanamo Bay without giving them access to attorneys, used government money to subsidize private religious activities, and treated gay people like second-class citizens. He has not even managed to appoint enough judges to adequately fill vacancies on our courts, despite having a very friendly Congress which ought to have given him the ability to appoint nearly anyone he wanted.

I do not think any President could have stopped our economy from crashing the way it did. But a responsible President would have found a way to mitigate that damage without giving billions of dollars to the very corporations that were responsible for setting up that fall. To be sure, President Bush did similar kinds of things, and if we had elected John McCain instead of Barack Obama to be President, I doubt things would be very different from what they are.

Obama has delivered on all his campaign promises that I did not like and he has broken all his campaign promises that I did like. Americans may have better emotions about their government with him as the President; people in other nations may have better emotions about the US with him in office. But I think Obama lacks the skills to really be a good President because he never did the sorts of things earlier in his career that would have trained him to become a real leader. If the USA were led by a Prime Minister instead of a President, maybe he'd have been good at that job. But that is not our form of government.

The most frustrating thing, however, is that I see no evidence to support the idea that the other major political party in the U.S. will select a candidate for President in 2012 who will be any better than Obama. I dislike feeling so hopeless, but I can take solace from the fact that the US is still a major industrial power, a wealthy nation, and one that is governed by laws and a strong Constitution -- so President Obama can only do so much damage while he's in charge, and eventually will have to step aside for someone else, who will probably wind up doing a different kind of damage in his or her own way.

I do not know very much about politics in Portugal or its economy. I know that your Prime Minister has reached out to other political parties and has promised reform and efficiency in government and that must have cost him a lot of political support. I know there was a scandal concerning whether he had earned his degree at university, which seems like it is not as important as whether he is leading the government in a good direction or a bad one, and there seems to be a lot of questions about whether he is taking money from companies in exchange for government contracts. In that sense he seems to me to be like former US President Clinton or Italy's Prime Minister Berlusconi -- he may be corrupt and dishonest personally, but it also seems like he's actually a capable leader and must possess some degree of charm in person. You would know better than I, of course.

It also seems like your nation, like mine, has confronted some difficult financial choices recently; at least your Parliament has confronted Portugal's looming pension problem in a meaningful if not entirely satisfactory way, which is more than I can say about our Congress and our pension problem here in the USA.

As one lawyer to another, I say to place your trust and hopes in the rule of law, and to remember that the most important, yet least understood, decisions about what life will be like in the future in a civilized nation are made in its courts and not its parliaments. Do not forget that you play an important role in that system.

Thanks for your note, [Portuguese Reader], and I hope to hear from you again.

- TL

New Deal Meets Trickle Down

It's fair to say that a trio of announcements from the White House are enough to signal a new tone, if not necessarily a new policy, on economic issues. The policies are the result of the continuing failure of the 2009  stimulus package (and the Bush stimulus package before it) and the continuing failure of ultra-low interest rates to produce substantial growth in the economy, particularly with regards to job creation -- and therefore also caused in part by substantial political pressure on Democrats who have come to fear losing control of Congress in the mid-term elections (although the odds still favor narrow retention of Congress by the party in power).

The proposals are these:

• Businesses will get 100% deductions for new capital equipment purchases
• $50 billion will be spent to improve and create road and rail infrastructure
• $100 billion in tax credits to businesses, to be "paid for" by closing unspecified tax loopholes elsewhere

For those of you liberals who are keeping track at home, two out of three of these qualify as direct corporate welfare and the third is -- what the 2009 stimulus was sold to us as having done but apparently did not. Not that there aren't still New Deal cheerleaders out there, but jeez, why not go the last step and revive the WPA?  I've a soft spot in my heart for the CCC and that might produce some actual long-term environmental good, so why not let's pay college-age kids to plant trees instead of going to school again!  (Or we could just continue requiring timber companies to replant as a condition of getting permits to log national forests, but if I were so smart I'd be in the White House, right?)

Now, I like the idea of lower taxes and using tax credits and deductions to mold economic behavior. So it's not like criticizing these policy proposals comes easy for me. But recall that the 2010 deficit was already projected to be $1.5 trillion, so we're looking at raising that to something like $1.7 trilllion here. Recall also that we were promised $800 billion in "shovel-ready" projects which a year and a half later have produced -- some road resurfacing and a lot of pork. Consequently, the deficit comes with ten percent unemployment.

Again for those of you liberals playing along at home, I know you feel the instinct to say, "Without the stimulus, it would have been much worse! It would have been 1930 all over again!" Maybe, maybe not. We won't and can't know that; to say it would or wouldn't have been 1930 all over again is an article of faith and nothing more for anyone on either side of that dispute. I am skeptical of claims that the house would have fallen in completely; the rolling crash of 2007-2009 was not the result of commodities producers reaching peak market capitalization, but rather because the public came to understand that financial services institutions were sitting upon a larger-than-previously-realized amount of nonperforming and undersecuritized real estate loans. Cutting losses means accepting losses, and therefore a lot of institutions took losses. Then the government got involved and played favorites with some and not-favorites with others, and now we're... well, we're where we are, with anemic GDP growth that is not replacing jobs lost over the past couple of years.

So I'm hearing President Obama say that foregoing and/or spending another two hundred billion to two hundred fifty billion dollars or so is necessary to start creating jobs -- but fool me once, shame on you; fool me twice, shame on me. (Wait, I wasn't fooled the first time Obama suggested this. Or the time before that, when President Bush suggested it.) Spending nearly four times this much money before didn't do much of anything; why should it do anything this time? Someone needs to explain to me why adding this money to the debt, at this time, in this way, is going to do something different than the last time we bloated the deficit and punted the problem of paying for it all to the next generation.

I'm at a loss to say which facet of this amazes and disgusts me the most. Is it:

• The condescension that Americans will be so foolish as to give the government a third bite at this apple? or
• The readily-apparent linkage of the Democrats' current political troubles to this empty campaign promise? or
• The lack of originality in the proposal -- does the President's economic playbook really only contain one page? or
• The complete disregard for the fact that we're so far in debt already that the President's own top military and intelligence advisers have said the debt is our biggest national security threat?

While I'd love to see lower taxes we need government revenue so we're just going to have to accepting paying our taxes at the current, or even a slightly increased, rate for the foreseeable future. While I like new roads as much as anyone else that's about the only tangible stimulus result we've seen and it isn't doing a whole lot for the economy. And really, I'm supposed to come back and eat at the trough of stimulus spending for a third time?

This is the marriage of the worst facets of New Deal economics with the worst facets of trickle-down economics -- all that we need is to blend in some Great Society and then the package will be a complete ménage à trois of useless deficit spending. Oh, wait, we got some Great Society earlier this year -- it was a big f--ing deal, remember? Nothing good will come of this and in the long run, America is going to regret it more than it likes the benefits. If they get behind these ideas as a whole, Democrats deserve to lose Congress this November -- not that free-spending Republicans deserve to win it back.

Ugh. I'm going to go clean up dog vomit in the other room because that's bound to be more pleasant than contemplating this any further.

What Obama Hath Wrought

To say that the Presidency of Barack Obama has been a disaster from a governmental restraint perspective is the understatement of the century.  Granted, the century is still young.  But can anyone doubt that Terry Michael's claims that libertarians should have endorsed and got behind Obama have been, at best, demonstrated as almost exactly wrong.  Yes, there are progressives condemning Obama as too conservative and conservatives condemning him as too liberal, but both are missing the point.

President Barack Obama is a statist, whose real agenda is maximizing the power of the national government and in particular that of the executive branch.  His real agenda for the direction of American government is a continuation, if not an acceleration, of the process begun under George W. Bush, a process with its roots in the creation of the Department of Homeland Security and Medicare Part D, which came to full flower in the bipartisan bank bailouts of 2008 and the government buyout of General Motors and Chrysler, and reached a triumph with the health care reform law.

Just like his predecessor -- no, even more callously and crassly than his predecessor -- Obama has suborned compliance with the law to his own political advantage.  Consider, for instance, this interview with an editor at the Associated Press concerning the Obama White House's attitude towards the Freedom of Information Act:

...shortly after President Obama took office, the department had instituted a highly unusual policy that is unprecedented at other federal agencies in which many hundreds of FOIA requests that had been submitted by members of the media, citizens, advocacy groups, members of Congress were being vetted by political staff who didn't know anything about the Freedom of Information Act.

They were allowing the political staff to govern the release of the information. Nothing could be released until the political advisers agree that it was okay to send it out the door. [¶] ... either the political staff, the senior staff in Secretary Napolitano's office were dictating which releases could be disclosed to the public and to the media and to the members of Congress, frankly, and when they could be disclosed.

[Interviewer Q:] But you're saying that they vetted the people who are making the requests. They were looking at the backgrounds of those people?

[A:] The documents that we got described in remarkable detail a process by which the FOIA staff, the career staff at the Department of Homeland Security were instructed to provide, along with a synopsis of the request for information, detailed information about where the person lived, who it was, was it a reporter, was it not, was it an advocacy organization, what was the interest of the advocacy organization. All of this is highly, highly unusual under the act.

In other words, who you were and where you stood politically affected what information the government would release, when it would release it to you, and what portions of it would be redacted. To be fair, the interview goes on to suggest that this policy has been changed and depoliticized somewhat. But the fact that it even occurred to someone to suborn the FOIA process to political considerations demonstrates that the law is viewed as an obstacle to achieving political goals.

And why shouldn't they view the law as an obstacle and not a goal? Obama and the Obamamen view the Constitution as an obstacle rather than a goal. The Fourth Amendment, for instance, is just as much an inconvenience to Obama and his security personnel as it was to Bush and the Bushmen, and their solution is the same -- get private companies, unbounded by the Fourth Amendment, to do all the government's without-good-cause spying on American citizens by proxy.  And Obama and his legislative minions have taken Bush's national security claims further than Bush ever did -- reserving the right to summarily execute an American citizen abroad who is accused* of aiding al-Qaeda, and what's more, making it a crime to offer that American citizen the assistance of counsel.  He has even left truck-sized loopholes in his own orders that continue to authorize the use of torture of prisoners in American custody.**

These things should not make you feel better that Obama is protecting our freedoms and our way of life.  These are attacks on our freedoms and our way of life.  Just like George Bush did before him.  What's worse, these attacks come from within our nation, within our government, come wrapped in the flag to make dissent and criticism of them appear unpatriotic and risky, and because they come from a Democratic President rather than a Republican one, leave the political left of the country largely silent in a damning exposure of their hypocrisy.  Not that the political right comes off much better in my analysis; they loudly condemn Obama doing today exactly the same sort of thing that they cheered Bush on for doing two years ago and the commitment of the "tea party movement" to meaningfully reducing the government's powers can be relied upon only for so long as the President of the United States is not a Republican, at which point we're back to the partisan-polarized dialogue about government power we had going in 2007.

There are meaningful and important differences between America's two political parties.  But I have come closer to thinking that the differences are not so important as the similarities.  There is no significant political organization in America devoted to individual freedom and restraining the power of government.  There is no significant political organization in America focused on the reduction of our government's spending deficit, much less elimination of its debt.  For too long we have allowed fallacious arguments about "the other guy" to distract us from the fact that the people entrusted with safeguarding our Constitution have been the ones subverting it.  "Yeah, but that other guy is really a bad dude and we should be scared of him!" is not a valid rebuttal to

Osama bin Laden masterminded the destruction of some very large buildings and the deaths of over three thousand people, which was an awful thing.  But as awful as it was, America survived that attack.  America was and is stronger than that.  As long as we are a free people, we always will be.  It is only from within, and not from without, that America can truly be defeated.  And the ones who possess the power to defeat America are the ones who ought to be leading it.  America will not be defeated on a battlefield or a chess match.  It will be defeated if and when it morphs into something new and different from what it has been.  That is why we should beware of efforts to change the definition of what an "American" really is.  That is why we should be educated and vigilant and principled with regards to how our government conducts itself.  And so far, my verdict is that we are still at risk.


* Probably correctly, I will stipulate.  That's not the point.
**  I've said it before and I'll say it again -- the rule should be "No torture.  Ever."

Taiwanese Animators Forecast 2012 Election

A working knowledge of Mandarin is absolutely unnecessary to understand everything said or depicted in the video.

It Is Happening Again

In less than twenty-four hours, I have learned that SarahPAC has raised over $866,000 and spent over $742,000 flying its celebrity politician about the country.  The ability to raise numbers approaching a million dollars a quarter, and less commented on but probably more significant, the massive outreach to conservative grassroots, has lent weight and given a spotlight to what I already through were former Governor Palin's Presidential ambitions.

Almost immediately, as if to counter the possibility that Sarah Palin would become the annointed, inevitable Repubilcan Republican nominee, Newt Gingrich (!) announced that he was more serious than ever about running for President during the upcoming cycle.   This isn't actually all much of a statement when read at face value, seeing as Gingrich has never actually declared his candidacy for President in any cycle.  But the impact is not in the literal truth but rather the fact that he raised the flag at all.  So while not quite tossing his hat in the ring, Gingrich through surrogates offered comparisons of himself to Bill Clinton as a candidate.

And then this morning, I can read that the Obama camp is already preparing their campaign template to run against Palin, Tim Pawlenty, Mike Huckabee, Mitt Romney or pretty much anyone else the GOP nominates -- by running against George W. Bush.  The idea is, I guess, that any GOP candidate is "going backwards" while Obama is "going forwards" and therefore the representative of "change" despite being the incumbent.

When you play chess, if your first or second moves are not what you wanted, you still have time to change your strategy and set up a different kind of play.  That's the import that should be read into these "events," which of course are not really events at all but simply factoids and throwaway comments scooped up by a voracious and hypercompetitive news industry hungry for any kind of a political story at all.  Chances are still favorable that the eventual GOP nominee will be someone who right now has a relatively low profile and some ideas that can catch fire.  (A guy can always hope, right?)

Today's point is -- the 2012 Presidential election is now underway.

The Loser Must Acquiesce

The rule of law requires that when a decision is made by the appropriate authorities, everyone go along with it.

I was, and remain, a strong proponent of same-sex marriage.  I thought, and still think, that Proposition 8 was a betrayal of the promise of equal protection, due process, and fair play by the state of California.  A majority -- not a large majority, but a majority all the same -- of the voters here saw it differently, and Proposition 8 became part of the state's Constitution.  I must acquiesce in this result, and confine my response to political action (which mainly takes the form of using this blog as a forum wherein, from time to time, I address the issues and attempt to persuade others to come over to my point of view).

When my client loses in court, she and I have to confront the appropriate alternatives.  We can appeal, or we can go along with the result.  What we can't do is defy the court's order imposing a course of action which we would rather not undertake.  To do so would be to demonstrate contempt for the court.

Magna Charta stands out as a singular moment in Anglo-American legal history because it represents the overt supplication of the will of the King to the rule of law.  Even the King is not above the law after Magna Charta.  The Declaration of Independence and the Constitution are predicated upon the idea that the government of the United States, the political heir to the King, is subject to the rule of law.

And thus it is with great distaste that I see that the Obama Administration has re-imposed a ban on offshore oil drilling, even after a court of competent jurisdiction ruled that such a ban was legally invalid.  The Administration will no doubt defend itself from accusations of contempt of court by protesting that the original ruling invalidating the oil drilling bad was based upon a lack of competent expert evidence, and now the new ban enjoys such support.  However, at least in spirit, this appears to be nothing more than simple defiance of a court order the Administration did not like, re-imposition of a regulation that had already been invalidated by the Court.

Oil drillers are not popular right about now, and deservedly so.  There is room to think that a moratorium on offshore drilling is wise, to permit development and testing of technology to handle catastrophic accidents like the Deepwater Horizion spill.  Oil drills are, neertheless, a vital segment of our economy, one upon which a substantial amount of our infrastructure and thus nearly all of the rest of the economy, depends.  There is much room to both question or praise the wisdom of an oil drilling ban, even a temporary one.  This ban, however, is only the appearance of decisive action by the Administration after the Deepwater Horizon oil spill, however -- it is the Administration decisively nailing shut the door of the barn, many weeks after the horses have all escaped. 

But even if you think that the moratorium on oil drilling was a good idea and will have beneficial effects, the issue here is not whether it's good policy or not.  We're past that.  It's about whether the Administration takes seriously the concept of the rule of law and divided government.  On the face of it, this suggests that the Administration considers the courts to be an obstacle to good government rather than a safeguard of freedom.

You Read It Here First

I was there way ahead you, Spiegel.  I made the analogy on February 13, 2008, to be exact.

Promise Breaker

When I first seriously looked at Barack Obama as a candidate for President, the thing I liked best was that he took civil liberties seriously.  He really got it that freedom is what America is realy, really, all about.  If he became President, our government would take the Constitution seriously again.

Since then, of course, I've been quite disappointed in how reality has played out.  At first, it could be chalked up to inexperience and needing to respond to things immediately before Obama's new policy positions could be fully worked out.  But after a year and a half in the White House, Obama owns whatever it is the government is doing outright, and if anything, it's worse than it was under Bush because not only has nothing changed, Obama has in some cases literally taken things up to the next level.

Here, I'll let my man Jon Stewart lay it out for you, using video to compare Candidate Obama to President Obama in the way that only The Daily Show (and its spinoff Colbert Report)* ever seems to actually do:

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Respect My Authoritah
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

I've said it before -- where Bush would have read your e-mail without a search warrant, Obama will just plain f-ing kill you.  That's rather a more serious civil liberties problem. 

This guy does not take civil liberties seriously.  He talked the talk as a candidate and not only did nothing, but consciously made it worse.  The one thing I really, really was looking forward to in an Obama Administration turns out to to have been a cynical lie.

But on that super-accelerated deficit spending plank of his platform in exchange for little tangible increase in government or medical services, I've got to give the guy credit -- he followed through on that campaign promise with gusto.

I can't say I'm surprised.  I am, however, quite disappointed.


*  Once again, I throw my hands up in frustration that it seems to take a comedy show to do what the news ought to be doing.

Obama's First Oval Office Address (UPDATED)

I caught the tail end of the President's address from the Oval Office tonight on NPR as I drove home.  It's hard to believe that he's been in office over a year and not before used this vehicle for communicating with the nation.  Three things struck me about what he said.

First, he sure invoked religion a lot.  He talked about the "blessing of the fleet," and the Hand of God guiding us and showing us the way out of our problems, and invoked the blessings of God on the nation in our difficult hour.  God, however, is not going to solve the problem of the oil spill -- human beings are going to solve that problem, or not, using science, technology, ingenuity, money, and labor.  God isn't in that picture, so far as I can see.  And the fact that Obama's proposed solutions to the problems we face includes a healthy dose of relying on a nonexistent God worries me.

Second, he indicated that the posture of the regulatory agencies overseeing industrial activity would become more adversarial and less cooperative.  That may or may not be a good thing -- we don't want regulators cozying up to the regulated industries, either in mining or anything else, but we also don't want to regulate industries out of existence or even out of the ability to post healthy profits for their investors.  I would hope for a balanced rather than an adversarial approach.

Third, he pointed out that we need to make a commitment to a long-term shift away from an economy where it makes sense to drill for oil in deep water.  True enough.  But the solutions he mentioned -- more energy-efficient buildings, wind and solar power, and incentivizing research by the energy industry -- left out two rather important, and achievable, pieces of the energy puzzle.  He didn't mention the word "nuclear."  We need more nuclear power plants, and he is wrong to back down from that important part of the array of options available to power our nation.  He also didn't discuss shale oil extraction, which is technology approaching the cusp of economic profitability and which contains the potential for the United States and Canada to both become bigger oil exporters than the Persian Gulf States and Russia combined.  Maybe that's something encompassed by his elliptical reference to R&D, but I doubt it.

A good energy policy is a good environmental policy and a good economic policy, all at once.  Unless all those pieces of the puzzle fit together, it's a patchwork, panicked reaction to adverse events rather than an intelligent and effective response to a crisis.  Last week, President Obama suggested that the oil spill was his 9/11.  Having suspended diplomatic travels and effectively chained himself to the Oval Office and the site of the disaster until it is solved, having early intervention attempts to resolve the process fail miserably and publicly, and facing an ongoing and readily-quantifiable count of the ever-increasing measure of the disaster, it looks a lot more like Obama's Iran Hostage Crisis to me.  Which dovetails nicely into my thoughts that Obama is really Jimmy Carter refashioned for a new generation.

(UPDATE:  Apparently I wasn't the only one underwhelmed with the Oval Office address.)

Something To Note About Elena Kagan

Solicitor General Elena Kagan, if confirmed to the Supreme Court, would be the first Justice to sit on the Court since Lewis Powell to have a background that does not include service on an appellate bench.  General Kagan's background is primarily academic, and she seems to have been a very good (but probably not stellar) academic.  We're going to hear about her decision to not allow the military to recruit lawyers in response to the "Don't Ask, Don't Tell" policy while she served as Dean of Harvard Law School, much will be made of her having had Barack Obama as a colleague while teaching at University of Chicago Law School, and she will be unusually vulnerable to questions about her beliefs on particular issues during her nomination in light of a law journal article in which she suggested it was appropriate for nominees to make such disclosures and that it was politically important that they do so.  She's liberal, but that's not entirely a bad thing (at least, from a civil liberties perspective, which is what counts the most with me) and I can think of no serious objection to her nomination.  It's a base hit, not a home run, for President Obama.  (Judge Diane Wood would have been a somewhat more ambitious pick.)

Obama Plans To Intentionally Violate The Constitution

36 U.S.C. section 119 reads:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

And this, as should have been obvious to even the casual observer, violates the Establishment Clause of the First Amendment to the United States Constitution. A U.S. District Court in Wisconsin has found that the National Day of Prayer is unconstitutional.  The statute's "sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context. In this instance, the government has taken sides on a matter that must be left to individual conscience."  Importantly, that court applied the "endorsement" test rather than the Lemon test:

This legislative history supports the view that the purpose of the National Day of Prayer was to encourage all citizens to engage in prayer, and in particular the Judeo-Christian view of prayer. One might argue that members of Congress voiced secular purposes: to protect against "the corrosive forces of communism" and promote peace. That is true, but the references to these purposes do nothing to diminish the message of endorsement. If anything, they contribute to a sense of disparagement by associating communism with people who do not pray. A fair inference that may be drawn from these statements is that "Americans" pray; if you do not believe in the power of prayer, you are not a true American. Identifying good citizenship with a particular religious belief is precisely the type of message prohibited by the establishment clause.

The decision will of course be appealed and is sexy enough for consideration by the Supreme Court. In the meantime, the National Day of Prayer will go forward on May 6 as originally scheduled. The judge issued an injunction against President Obama from complying with the unconstitutional law, but stayed enforcement for thirty days to allow the government to appeal. May 6 falls within the stay period, and President Obama has indicated that he intends to issue the proclamation.

I said in several places before Obama took office that secular Americans should not consider him an ally.  He has, at least, acknowledged our existence and our citizenship, which is a step up from his predecessor.  But he continues to issue, under his own authority as President, generous subsidies to churches under the auspices of the White House Office of Faith-Based and Neighborhood Partnerships, and despite a finding from a court of competent jurisdiction that the issuance of a national day of prayer violates the Constitution, he intends to go ahead and do it anyway during the stay.  While he isn't violating the exact wording of the court's order, I question whether it is principled for him to do it at all, given the opinion -- and particularly given that he has not opined as to whether the opinion is right or wrong, which debatably he has the power to do as a co-equal branch of government.

Nevertheless, the opinion is a cause for celebration.  Whether the celebration is long-lived or not will be up to the Seventh Circuit and, eventually, the Supreme Court -- and the deciding vote may well be held by a Justice to be named later.

This Is Almost Certainly Correct

I've little time for blogging right now.  In between a heavy work schedule and a mission from The Wife to build a table that seats eight for the back patio in time for a dinner party on Saturday* (she is doing a lot of the work on the project too), by the time I sit down to a computer I've little writing left in me -- much as I want to do it.  So for the time being, I have to point to some other writers and await the day when I can sit down and organize my thoughts about something of general interest, not related to a case I am actively handling, and unrelated to my feeble attempts at carpentry.

But I came across one thing that I think is dead on.  Barack Obama and Nancy Pelosi have killed Mitt Romney's chances at getting the 2012 GOP nomination for President.  The just-passed health care reform plan is too similar to the one Romney handled and praised as governor of Massachusetts, and the GOP is lined up lockstep in opposition to it.  While it might be a principled and appropriate thing for a Constitutional law professor to say, "It's one thing for a state to do it and something else for the Federal government to do it," to a Presidential candidate, it's either a good idea or it's a bad idea, and Romney can't criticize something he once endorsed. 

Well, then again, Romney was pro-choice before he wasn't, and he was anti-balanced budget until he wasn't, and he was anti-gun until he wasn't, was anti-Department of Education until he wasn't, and so on -- so why should he have been pro-health care entitlement until some point in the future he isn't?

Anyway, it's off to a late-night client meeting, so more from the busy busy busy TL when I have a chance.


* On that note, thanks to Commenter zzi for a recipe for pesto alla Trapanese that I intend to use as the foundation for my pasta sauce on Saturday.  Unless I get my mind changed for me, and do rosemary roasted potatoes instead.  The good news is, I should have my sous vide at last for the meat!