Will there be Strange Bedfellows for same-sex marriage decisions, too?

On Monday, the Supreme Court handed down five decisions. More are expected during the remaining days of the term, before the end of the month: big decisions in affirmative action, voting rights, and same-sex marriage cases. We will be monitoring those and will post breaking news if any of them come up.

In the meantime, I want to cover two decisions on cases I’ve written about before.

In Federal Trade Commission v. Actavis, the issue was about “pay to delay”: is it legal for companies to “settle” “lawsuits” when what they are really doing is delaying a generic manufacturer’s product rollout in order to keep charging higher prices for a drug?

In Maracich v. Spears, the Court was asked to decided if the privacy protections built into the Drivers’ Privacy Protection Act (DPPA) applied to soliciting class members for a class-action lawsuit.

The Maracich case was notable for the odd arrangement of liberal and conservative justices that came together to make the majority. Is this a harbinger for the near future, particularly the cases still at issue from this term? 

Federal Trade Commission v. Actavis

In my article previewing arguments in FTC v. Activis, I described it as a case of “the goose that laid the golden egg”. Besins Healthcare (now Solvay) is a pharmaceutical company that sought to make a generic formulation of testosterone cream, a big seller amongst men of a certain age. Watson Pharmaceutical (now Actavis) began to develop and market a generic formulation of the drug.

Under a now-standard arrangement in the drug industry, Watson/Actavis sued Besins/Solvay, claiming patent infringement. After some legal wrangling, Besins/Solvay accepted a “settlement” in that lawsuit, which was likely never about patents at all. This payment allowed Watson/Actavis to continue their patent-protected monopoly on testosterone cream.

The general scheme is called “pay to delay”.

The FTC sued Actavis, claiming “pay to delay” arrangments are a restraint of trade and that the patent arguments are just a smokescreen to cover up blatant collusion.

Justice Breyer, writing for a 5–3 majority (Justice Alito was recused), ruled that the “pay to play” arrangement is not on its face restraint of trade. The FTC still has to prove its antitrust case. However, the case will be decided by a lower court using rules set out by Justice Breyer: it’s about antitrust law, not patent law. The FTC will need to prove that consumers pay higher prices because of “pay to delay”. Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined Breyer in the majority. This is the usual arrangment of liberals + Kennedy as the swing vote.

Chief Justice Roberts, in his dissent, claimed that there is no way to remove patent law from the arguments in this case and so he is openly skeptical that Breyer’s rules will work. Justices Thomas and Scalia joined the conservative minority.

Maracich v. Spears

Maracich v. Spears, which I also wrote about earlier, was focused on a South Carolina case in which lawyers wanted to bring a class-action lawsuit against car dealers. They tried to use state Department of Motor Vehicles records to find likely plaintiffs to join the class. Is this legal, given that the Federal DPPA only allows use of this information in certain cases, including preparation for litigation? In other words, is finding people to join you in a lawsuit solicitation, or is it preparation for litigation?

An odd mixture of Justices Kennedy, Chief Justice Roberts, and Justices Thomas, Breyer and Alito made a 5–4 majority that held it’s solicitation, not preparation. In this case, Justice Scalia was joined by liberal Justices Ginsburg (who wrote the dissent), Sotomayor, and Kagan in the minority.

What does this mean for outstanding cases in affirmative action (Fisher), voting rights (Shelby County), and same-sex marriage (DOMA, Prop 8)? We won’t have to wait too long to find out.

Related articles

• U.S. top court says FTC can sue over deals that delay generic drug sales
• Waiting for #SCOTUS: Tweets from the Peanut Gallery
• Details: FTC v. Actavis
• Supreme Court Adds Antitrust Consideration to Patent Settlements.
• Supreme Court rules lawyers cannot solicit clients through DMV records

What, me worry?

If you’re looking for a real scandal among this season’s fauxrage, here it is.

Representative Darrell Issa (R-Vista, CA), chairman of the House Oversight Committee, has been revealed definitively to be a fraud and a liar. He has been engaged in a campaign to create a scandal that doesn’t exist, and that he knew doesn’t exist. This isn’t the first time he has violated the public trust. It is not likely to be the last.

Back in May, it was revealed that the IRS had been giving scrutiny to right-wing political groups applying for 501(c)(4) tax exempt status. Issa has been trying to prove — and has been claiming — that orders to target these groups came from Washington, and probably directly from the White House. He has, however, known all along there is no evidence of this. We now know he has known for quite some time that his accusations are not only unsupported, but also untrue.

In an apparent effort to find and appropriately review the explosion of political organizations seeking tax exempt status in the wake of the Citizens United decision, an IRS office in Cincinnati instituted a procedure of searching for certain terms — such as “tea party”, “patriot”, “9–12″, and other ultaconservative shibboleths. This attempt to find a shortcut in reviewing applications has been presented as “targeting conservative groups,” despite there being no conservative groups whose applications were denied, and despite liberal groups undergoing similar scrutiny, and despite liberal groups being the only ones denied tax exemptions.

In point of fact, the employees at the IRS are in a difficult position. They are not only required to handle an increased volume of applications with a smaller budget, but also being tasked with determining whether these groups are “primarily” engaged in “social welfare” activities, as opposed to political activities. This is a particularly nasty problem because the law actually states that 501(c)(4) groups must be “exclusively” engaged in “social welfare” activities. None of the Tea Party groups applying for tax exemption should have been approved, though all were. This term-search pattern seems to me a reasonable way to identify them.

As I said, despite all this, Republicans have been trying to present the actions of the Cincinnati office as a “scandal”. House Appropriations Committee Chairman Hal Rogers (R-Somerset, KY) claimed right-wing groups were targeted because of President Obama’s imagined “enemies list”. This is a meme that Issa has been pushing since last September on Fox and Friends:

Not since Richard Nixon have we seen a President who puts together an enemies list and has a whole team pursuing it. That’s what’s happened in this administration. It’s sad. It’s not the America I want to see going forward. I sincerely hope that after the election, regardless, the American people will have made a statement that they won’t tolerate this.

On June 2, Issa went so far as to call the President’s press secretary, Jay Carney, a “paid liar” for denying any connection between the IRS “targeting” and the Administration.

In a press conference on May 22, Carney said he had no information to contradict an inspector general report that found “no evidence of outside influence or pressure from higher-ups.”

Issa tried to contradict that assertion by releasing snippets of a transcript from an interview the House Oversight and Government Reform Committee, which he chairs, conducted with a “Cincinnati IRS employee.”

During the interview, the employee says his supervisor asked him to pull applications for non-profit status filed by Tea Party groups.

The committee asked the employee: “Did [your supervisor] give you any indication of the need for the search, any more context?”

The employee answers: “He told me that Washington, D.C., wanted some cases.”

But Issa didn’t release the whole transcript. He gave only parts of it. The above slander of Jay Carney happened during an interview with CNN’s Candy Crowley. She pressed Issa to release full transcripts of the interviews. He said he would, just not yet. On June 9, ranking committee member Elijah Cummings (D-Baltimore, MD) released some further transcripts that appear to contradict Issa’s snippets:

Cummings told Crowley he “begged” Issa to release the full transcripts – and promised her “If he does not release them, I will. Period…I’ll release them by the end of the week.” …

While Issa had acknowledged that at least one staffer told investigators he didn’t see evidence of White House involvement, the full interview was more emphatic, Cummings said.

Leaking Classified Data

Cummings has continued to press Issa to release the full transcripts, and has been claiming that the total testimony does not support Issa’s innuendos or the idea that anyone in Washington had anything to do with alleged “targeting”.

On June 11, Issa said that to release all the transcripts would be “reckless”. Democrats on the committee insisted he should anyway, and last Thursday sent him a letter giving him until Monday to do so.

On Monday, in an apparent attempt to trump Cummings, Issa showed reporters some further edited portions of testimony transcripts, a total of about 50 pages out of an estimated 300. Reporters were allowed to take notes, but not make photocopies.

Yesterday, Cummings had enough of it, and released roughly 200 pages of transcripts, the full five-hour interview with Cincinnati IRS Screening Group Manager John Shafer. Issa is reportedly furious, and no wonder. The full transcript proves that Issa is a liar:

Cummings released transcripts with an IRS screening group manager described as a “conservative Republican,” who said that the targeting of the Tea Party groups applying for tax-exempt status started with low-level workers in Cincinnati. The witness also said that there was no communication on the targeting with any senior IRS officials or with anyone in Washington or the Obama administration.

You can read some key portions of the transcript here.

It turns out there is no scandal. There was no targeting. There is no “enemies list.” There was a self-identified Republican bureaucrat who was trying to do his job, doing his best to identify groups that were applying for tax exempt status but didn’t deserve it.

Issa’s response?

I am deeply disappointed that Ranking Member Cummings has decided to broadly disseminate and post online a 205 page transcript that will serve as a roadmap for IRS officials to navigate investigative interviews with Congress.  After unsuccessfully trying to convince the American people that IRS officials in Washington did not play a role in inappropriate scrutiny of Tea Party groups and declaring on national television that the case of IRS targeting was “solved” and Congress should “move on,” this looks like flailing.  Americans who think Congress should investigate IRS misconduct should be outraged by Mr. Cummings’ efforts to obstruct needed oversight.

There is no evidence — not a whiff of a hint — that anyone in Washington (let alone the President) was involved, yet Issa continues to pretend there is. Worse, he implies that releasing the evidence that the White House did not target right wing groups will allow future witnesses to copy this testimony, and so to present a consistent story.

This fits in the pattern of the Benghazi nonsense, and the “Fast and Furious” investigation, where Darrell Issa desperately tried to find (or to create) evidence of wrongdoing on the part of the Obama Administration. There was no such evidence, because there was no wrongdoing. The only scandal here is that a partisan fraud like Darrell Issa still holds a seat in Congress.

Meanwhile, important legislation doesn’t get considered, and the House keeps holding meaningless right-wing votes. It is time to change American politics.

Related articles

• Full House Committee Transcripts Reveal What Issa Wanted to Hide
• Cummings releases IRS transcript
• Democrats Release Full House Committee IRS Transcripts
• Darrell Issa Refuses To Release ‘Evidence’ That Obama Conspired With IRS To Target Tea Party
• Top Democrat on oversight committee gives Darrell Issa deadline for IRS transcript release

Most of the stories in the news treated the decision as a slap to the state of Arizona, in that it prevents them from implementing the law as written. But it’s not quite as simple as that.

See, the news media read the beginning of Justice Antonin Scalia’s decision, and concluded that Arizona is prohibited from requiring proof of citizenship. But in fact the decision states that Arizona can’t simply unilaterally adopt that requirement. Scalia points out that Arizona is free to ask Congress to pass a law permitting states to have such a requirement.

And, even if Congress doesn’t oblige, Arizona is also free to go to court and argue that they have the right to require proof of citizenship to vote, even if not to register: 

Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them. The Constitution prescribes a straightforward rule for the composition of the federal electorate. Article I, §2, cl. 1, provides that electors in each State for the House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature,” and the Seventeenth Amendment adopts the same criterion for senatorial elections. Cf. also Art. II, §1, cl. 2 (“Each State shall appoint, in such Manner as the Legislature thereof may direct,” presidential electors). One cannot read the Elections Clause as treating implicitly what these other constitutional provisions regulate explicitly.

All of this means that we may well find that this case opens the door to future restrictions on voting. If that is, indeed, the case, then Scalia will have conceded the battle in order to win the war for conservatives.

In the meantime, Arizona is (briefly) chastened.

And, in other news, the Supreme Court also issued a decision on Salinas v. Texas, which was covered by dcpetterson in April. In that case, the question revolved around the Fifth Amendment’s right to remain silent. In a 5–4 decision authored by Justice Samuel Alito, who was joined by the usual conservatives, plus the swing vote of Justice Anthony Kennedy, the Court ruled that ignorance of the law does not give a defendant a free pass to assert the right to silence simply by being silent. While someone not in custody is not required to self-incriminate, such a person must positively assert that right to silence, even without being informed of having such a right (since informing comes at the time of arrest).

The decision notes that there isn’t a formal process for asserting that right, but merely that it requires a positive action to make clear that the person is asserting that right.

I find this a difficult argument to keep simultaneous to the argument that resulted from the Miranda v. Arizona case that gave us the now-famous Miranda warnings. Maybe I’m just not creative enough. What do you think?

Related articles

• Scalia, Supremes reject Arizona voter suppression attempt
• Details: Arizona v. Inter Tribal Council of Arizona, Inc.
• SCOTUS says states can’t require proof of citizenship to register voters
• Justices: Arizona voter registration rules go too far
• Opinion recap: One hand giveth.…
• Court Strikes Arizona’s Proof-of-Citizenship Requirement
• Supreme Court: Federal election law trumps Arizona’s proof-of-citizenship mandate
• Is the United States Supreme Court Available To The Highest Bidder? Supreme Court Chief Justice John Roberts Votes Again

Eye of Sauron? Source: NASA

The cover leader in this week’s Economist had a subhead that caught my eye:

A government’s first job is to protect its citizens. But that should be based on informed consent, not blind trust

Although the leader’s anonymous author went another direction with his argument, those words crystallized an idea in my mind: peer-reviewed surveillance. Let me explain after the jump.

In a previous career, I was a scientist and administrator. I had the privilege (what most people considered a burden) to serve on an Institutional Review Board (IRB) at a couple of different institutions.

The IRB is medical science’s response to the ethical dilemma posed by recruiting patients for biomedical research. IRBs are guided by the Helsinki Declaration, a 1975 document that was a turning point in the Cold War between Russia and NATO. NATO allies acknowledged the borders of Warsaw Pact countries, while Russia and her satellites agreed to a set of basic human rights enshrined in Clause VII. At the same time in the United States, Congress responded to the Tuskegee Experiment and the abuses of Nazi doctors by passing the National Research Act of 1974 ensuring that human rights would be protected in biomedical research. These rights were enumerated in the Belmont Report of 1978. The Belmont Report is written on three basic principles: “respect for persons, benefience, and justice”. The IRB ensures these principles for each patient by these tools:

• informed consent
• assessment of risks and benefits
• selection of subjects

It occurs to me that what we need in this nation is a Belmont Report and IRB for state-sponsored surveillance.

War is Peace.
Freedom is Slavery.
Ignorance is Strength.

The surveillance state has expanded beyond our ability to control it. An estimated 1.2 million Americans hold a “top secret” clearance. Does America need that many people with access to classified information? No wonder the Bradley Mannings and the Edward Snowdens can’t be screened out like they could in the past. They’re turning us into a nation of Junior Spies.

The number of classified documents has grown at an even faster rate. Just like in the 1980s no one was ever fired for buying IBM, in the 20-teens no one is ever fired or disciplined for classifying a document that should be open. We have too much documentation held secret, and too many people with access to it.

Patients who subject themselves to biomedical research face obstacles to making good decisions. There is a huge differential in power, and a huge differential in knowledge. Just like we can’t teach a patient everything his doctor knows, we can’t (for different reasons) tell Terrorist Folks and non-Terrorist Folks alike everything we know, either.

What if a panel of top national security officials (undersecretaries and Congressional staffers) with the appropriate clearances was to review each request with an eye towards respect for persons, benefience, and justice?

What if each proposal required the panel to develop an informed consent document that Americans could examine?

What if each proposal was required to include an assessment of risks and benefits from the “procedure” to be done?

What if the selection of subjects (in this case, those under surveillance) were reviewed by an expert panel?

What if we actually applied the Helsinki principles to our fellow Americans?

Acceptable damage?

The most destructive wildfire in state history is raging in Colorado. It has already destroyed 473 homes and damaged an additional 17. The second-most destructive fire was a year ago, the Waldo Canyon Fire, which raged from June 23, 2012 until it was declared contained on July 10. That blaze destroyed 346 homes.

This year’s massive fire is one of about 19,000 wildfires that have destroyed over 700 square miles this season. Five firefighters have died so far this year, and the number of fires in Colorado has increased forty five percent over last year.

It is possible that the severity of recent wildfire seasons has been worsened by global climate change. Even though that’s a favorite topic of mine, that won’t be the focus of today’s article. The damage caused by these fires is also being increased by the effects of the Republican sequester cuts.

Fifty million dollars has been cut from the budget of federal firefighters because of the sequester. This has forced the Forest Service to cut 500 firefighters and 50 engines. They are facing more fires, and larger ones, with fewer people and fewer resources.

Let’s review why the sequester cuts happened.

Back in 2008, the world economy collapsed. We can debate elsewhere the causes of the collapse. One of the reasons for the slowness of the recovery was that, for the first time in seventy years, the world in general, and America in particular, declined to engage in massive stimulus spending in response to a recession.

This had been the prescription since World War Two. Stimulus spending had ended every recession since the 1940’s. In a famous phrase recognizing this fact, a phrase apparently coined by Milton Friedman but also used by Republican President Richard Nixon, “We are all Keynesians now.” Even Republican Vice President Richard “Dick” Cheney acknowledged that Republican President Ronald Reagan had “proved deficits don’t matter.”

Once Barack Obama was inaugurated as President however, all that changed. Suddenly, deficits were The. Most. Terrible. Thing. Ever. and Republicans began presenting the idea of using stimulus spending to recover from the Great Recession as being tantamount to signing a pact with Satan.

In an advertizing scheme known as the “Tea Party,” funded mainly by the Koch brothers and big tobacco interests, Republican voters were encouraged to demonize both deficits and health care reform. This led, among other results, to the election of a bevy of inexperienced ideologues to both state and national legislatures in the 2010 midterms. That, in turn, led to an argument over increasing the debt ceiling in the summer of 2011, under the lie that raising the debt ceiling was synonymous with borrowing more money. It’s hard to say if elected Republicans believed this lie, or simply told it with the hope that Republican voters would be stupid enough to believe it. In either case, the debt ceiling argument had two lasting results — the first-ever downgrade of America’s credit rating, and the sequester.

Republicans insisted on various conditions for allowing America to continue to pay its debts. One of these was a bipartisan and bicameral “Supercommittee” ordered to find four trillion dollars in unnecessary deficit reduction (remember Cheney’s statement about deficits?). If the Committee could not come to an agreement, there would be over a trillion dollars in automatic spending cuts, evenly split between domestic and military spending, cuts carefully chosen to be so offensive and destructive and dangerous that they would force the committee to come to agreement.

Despite the horrible, terrible, no-good threatened cuts, the Supercommittee never reached agreement, because Republicans refused to allow any tax increases at all as a technique to assist in deficit reduction. The sequester cuts were scheduled to kick in on January 1, 2013, but were postponed until March 1. As substitute for the sequester, the President recommended a combination of more appropriate spending reductions and some tax increases. Republicans would have none of that, instead proposing that all the cuts be shifted into the domestic side, leaving the military untouched. Of course, again, no agreement could be reached.

So the sequester cuts have begun to go into effect. At first, Republicans tried to blame the President for the cuts. Speaker of the House John Boehner frequently referred to “the President’s sequester”. He later acknowledged this had been a lie, and that President Obama hadn’t wanted the cuts. But by then, Republicans were crowing about it — as well they should, since they’d been trying to slash spending ever since President Obama took office.

In the weeks after March 1, while the effects of the sequester cuts were still marginal at most, this seemed like a safe strategy. Republicans insist most federal spending is unnecessary, and that citizens would not only be unharmed, but would actually benefit from federal cuts. It’s been a few more months. How’s that working out?

It’s still too early to see the full results, since the cuts are to be spread over ten years. As far as what Americans think of the sequester,

Public opinion is divided: Fifty-six percent of Americans surveyed in an ABC News-Washington Post poll in May disapproved of the cuts, but far fewer — 37 percent — reported they’d been personally hurt. Still, that was up from 25 percent in March. Support varies by income, according to the poll; it’s highest for those with incomes of $100,000 or more.

The chief federal defender for the southern district of Ohio, Steve Nolder, had to deal with an eleven percent budget cut. He responded by firing himself.

The budget for the Head Start program for 16 counties in western Kentucky was reduced by about $750,000. The program laid off about 50 people, mostly teachers, and reduced the children it serves by 160.

Tier III federal unemployment benefits start when a worker who has been laid off has exhausted nineteen weeks of state payments. These benefits, which are administered by the states, were slashed by sequester cuts. Most states responded by trimming the benefits all individuals receive. Florida’s solution was to end benefits four weeks early, leaving more than 100,000 people without unemployment benefits.

Mayors of America’s cities are gathering in Chicago this week for the Clinton Global Initiative America. A bipartisan complaint centers around federal cuts that are harming our cities, sometimes due to non-obvious side effects:

Philadelphia is scrounging for money to reduce child lead poisoning. Mesa, Ariz., sales-tax revenue is softening as Boeing Co. suppliers cut back. Oklahoma City anticipates less spending from its largest employer, Tinker Air Force Base.

There have been deep cuts in basic research spending. An estimated $1.7 billion in cuts to the budget of the National Institutes of Health will result in 2,000 fewer research grants. Not only are thousands of scientists and research staffers likely to lose their jobs, but this will delay or eliminate research on cures for diseases like epilepsy or diabetes — which, in turn, will continue to drive health care costs upward, paradoxically putting more pressure on the federal budget and further increasing  deficits.

This is the most telling irony of Republicans’ ill-considered orgy of spending cuts — it actually increases the deficit, through lower tax revenues, higher unemployment costs, additional infrastructure disintegration, worsening education, and a host of other bad effects, short-, medium– and long-term.

In addition to hurting the budget, these spending cuts are harming our economy. This has been noticed by sane minds outside of our own country:

As much as half of U.S. economic growth this year has been slashed due to tax increases and indiscriminate federal spending cuts known as sequestration, according to a sobering new forecast by the International Monetary Fund, which urged lawmakers to repeal the cuts.

According to Christine Lagarde, IMF’s Managing Director, “The sequester cuts not only reduced growth in the short term, but they also hurt the most vulnerable and they produce very undesirable effects in that regard.”

Meanwhile, firefighters continue to battle the Black Forest Fire north of Colorado Springs. That fire has already consumed over 15,000 acres. There also is the Royal Gorge Fire, southwest of Colorado Springs, which is now 40 percent contained after scorching more than 3,200 acres. We cannot blame these fires on the sequester. We can — and should — note that we’re asking firefighters to do more with less. They have less, not only because of the sequester, but because of the newfound Republican insistence on not doing things America needs to have done.

It seems more important to tear things down than to solve the problems we face. One would think we were in the midst of an old Talking Heads video.

Related articles

• IMF: Sequestration Cuts US Growth Nearly In Half, Barely Dents Deficit
• Sequester Winning
• Obama Proven Right as CBO Finds GOP Backed Spending Cuts Don’t Reduce Debt
• Republican Refusal to Fix the Sequester Has Created a Death Panel For the Poor
• Austerity Measures Take Many Forms
• Most Rapid Deficit Reduction Since World War II

As I noted before, Texas and Oklahoma, the states involved in the dispute, are “prior appropriation” states, whereby water is allocated based on permits issued to those who make “beneficial” use of the resource. In this case, the water in question flows down the Red River, which marks much of the Texas-Oklahoma border. The Tarrant Regional Water District (serving an area of Texas around Fort Worth) wanted to directly access water from within the state of Oklahoma.

Oklahoma law prohibited such diversions, which is why Tarrant immediately sued in federal court after filing the diversion request with the Oklahoma Water Resources Board. Tarrant’s argument was that federal law (in the form of the Red River Compact) trumps state law, and — even if it doesn’t — the Constitution’s Commerce Clause precludes a state from discriminating against interstate commerce with respect to water resources.

The Court sided with Oklahoma (specifically Rudolf John Hermann, who represented the state). But, in doing so, the Justices sidestepped the constitutional questions brought forth by Tarrant. Rather, the Court concluded that Tarrant’s arguments were irrelevant based on other facts in the case.

With respect to federal law trumping state law, the Court examined the Red River Compact as a contract, which it is. In contract law, courts are expected to determine the intent of the contract based on the language included in the contract. Tarrant had argued that § 5.05(b)(1) of the Compact, which was ambiguous about cross-border rights, should therefore be construed to include such rights. The Court didn’t buy that, suggesting that any such ambiguity should be construed in favor of the sovereign states, rather than in favor of federal control. In particular, the Court noted that other water compacts include explicit rights to cross state borders to acquire water resources, suggesting that such an intent must be explicit to be found by the Court. As such, the Supreme Court concluded that there was no conflict between Oklahoma law and the Red River Compact, and therefore the Court need not address the balance of power.

The Justices similarly sidestepped the issue of the Commerce Clause. The Court noted that Tarrant’s argument about Commerce Clause applicability revolves around the presence of “unallocated” water from the watershed. Because the Red River Compact, in fact, allocates all water from the watershed, the Court concluded that the Commerce Clause is not applicable.

Some Supreme Court analysts have suggested that this was a unanimous non-watershed watershed decision in order to save the real fireworks for the last two weeks of the season, which will include decisions on affirmative action and same-sex marriage. Perhaps so.

This decision is not likely to do much for the future of interstate water wars, which will almost certainly increase in frequency and severity as our remaining reserves of water are depleted.

Related articles

• The US Supreme court decides in favor of Oklahoma in Tarrant v. Herrmann
• Supreme Court rules for Oklahoma in Red River water dispute
• Supreme Court settles water fight
• Supreme Court plugs up Oklahoma river as water source for Texas
• Supreme Court Decides Water Law Case
• Oklahoma lawmakers praise Sup. Ct. water decision

Ducking Out Of His Own Bill ?

The week started with revelations about the NSA and a leaker who remains at large, and led to later revelations about State Department employees having sex. In what may be a related sexual development, an all-male vote in the House Judiciary Committee recommended passage of a bill to outlaw all abortions nationally past 20 weeks — even in cases of rape and incest.

Taking a long way around to sex, the Senate voted to allow debate on the immigration reform bill. It then defeated an amendment regarding border security, despite the threat of one of the bill’s authors, Senator Marco Rubio (R-FL), to scuttle the bill if it didn’t have this amendment. That same Marco Rubio is now threatening to scuttle the bill if it recognizes same-sex couples. Continuing this theme of obsession over sex, Republicans in Wisconsin are ramming through a forced ultrasound bill, requiring women to receive an invasive and medically unnecessary procedure if they want an abortion.

Leaving aside for a moment subjects of sex, abortion, and rape, President Obama has announced conclusive evidence that the Syrian government used chemical weapons against its own people, and America will therefore increase military support for Syrian rebels. None of this will alter plans for New Jersey to hold a special election in October to replace the late Senator Frank Lautenberg.

Those are only a few things that happened during this busy week. What do you want to talk about?

Don’t see an article on a particular topic, but want to talk about it somewhere? This is Open Mic. Talk about whatever you want, but stay respectful.

We create a new Open Mic every week to give a clean slate, but feel free to add to this topic at any time.

In an opinion written by Justice Clarence Thomas, the Court held that synthetic DNA is patentable, while naturally occurring DNA is not.

As much as I often disagree with Justice Thomas (especially his public comments from the bench — what a loudmouth!), he has written a beautiful description of the relevant facts in the case. The opinion is well worth a read.

Xi Jinping

The summit between US President Barack Obama and Chinese Premier Xi Jinping concluded on Saturday with no major policy pronouncements or apparent progress on the thorny issues that divide the world’s two largest economies. (China passed Japan between 2008 and 2011 to take over second place, and is due to pass the US as the world’s largest economy in about 2030.)

Xi Jinping is the fifth generation of modern Chinese leadership. Following in the footsteps of Mao Zedong, Hua Guofeng, Hu Yaobang, Zhao Ziyang, Jiang Zemin and Hu Jintao, he is currently the General Secretary of the Communist Party.

The power of the General Secretary is not assured. For example, from 1978 to 1992, Deng Xiaoping served as China’s “paramount leader” even though he had no official title in the party, which was ostensibly led by Hua, Hu and Zhao during that time. Deng was the most prominent of the “second generation” of Chinese leadership, which assumed power after Mao’s death and the end of the “first generation”.

The “third generation” was led by Jiang, and the fourth was led by Hu. With the turmoil of Mao’s death and the purge of the Gang of Four well-forgotten, China appears to have established an orderly 10-year cycle of leadership change, in accordance with the Constitution.

On November 15, 2012, Xi became General Secretary of the Central Committee of the Communist Party of China and Chairman of the Party’s Central Military Commission. On March 14, he was named President of the People’s Republic of China. The sixth generation is due to assume power in 2022.

Three major items were on the agenda of the “shirtsleeve summit” held between Friday, June 7 and Saturday, June 8 at the Annenberg mansion (“Sunnylands”) in Rancho Mirage, California, about 100 miles east-southeast of Los Angeles, near Palm Springs.

Cartoon by KAL for the Economist (June 1 issue).

First, Obama and Xi discussed cybersecurity. This was apparently the thorniest issue at the summit, made even thornier after the conclusion of the summit, when Edward Snowden outed himself as the PRISM leaker and took asylum in Hong Kong. Obama said Chinese hacking was

inconsistent with the kind of relationship we want to have with China

according to his outgoing National Security Advisor, Tom Donilon. Donilon is to be replaced by Susan Rice. The position does not require Senate confirmation, unlike Rice’s previous position as UN Ambassador or her failed attempt to become Secretary of State on Hillary Clinton’s retirement.

A second major topic was the management of climate change. Xi and Obama agreed to limit emissions of hydrofluorocarbons (HFCs), a major contributor to global warming. HFCs replaced chlorofluorocarbons like dichlorodifluoromethane (Freon-12) as a refrigerant and propellant after damage to the Earth’s ozone layer prompted the US to ban them in 1978. The much more serious of carbon dioxide emissions and anthropogenic global warming was either not discussed, or the results of those discussions was not announced.

The third issue is one I’ve written about before: the fate of the islands that the Chinese call the Diaoyus, and the Japanese call the Senkakus. These relatively worthless rocks in the South China Sea may turn out to be a key bargaining point in Pacific Rim relations. The Chinese media have been full of feverish speculation that Obama sold out the Japanese claim to the islands in return for help in the US-North Korea relationship.

In an OpEd piece in the New York Times, Isaac Stone Fish, an associate editor at Foreign Policy, thinks this is exactly what will happen:

Perhaps more importantly, would the United States trade its unfettered support of Japan for support from China on dealing with North Korea? The idea is not as outlandish as it may sound. Obama appeared to further convince Xi on the need to reign in Pyongyang. Is protecting a group of small islands in the East China Sea more important than preventing North Korea from being able to shoot missiles at the United States?

Is this a turning point for US-China relations, or even US-Japan or US-North Korea relations? What did Obama do, and what should he have done?

Related articles

• The Xi Jinping-Obama Summit — Analysis
• Obama, Xi to dispense with formalities at summit
• Obama-Xi summit tackles hacking, North Korea, climate change
• Senkaku Islands are “core interest” of China, Xi tells Obama

Can Gold Come From Pieces of Eight?

Some potentially good news came out of Washington yesterday. The U.S. Senate voted 82–15 to allow debate on the immigration reform bill from the “Gang of Eight”. All fifteen “no” votes were Republicans. Though this is certainly an important vote, it doesn’t guarantee passage of the final bill, and most certainly doesn’t say anything about the bill’s possibilities in the House.

Not all votes in favor of allowing debate will necessarily translate into votes in favor of the bill. Senate Minority Leader Mitch McConnell (R-KY) insisted the bill as it is contains “serious flaws” and wants changes in the areas of border security, taxes, and government benefits. It already denies benefits to non-citizens, collects taxes from them, and vastly strengths border security, but he wants more:

For instance, McConnell said he wasn’t satisfied with just the Department of Homeland Security certifying that the U.S.-Mexico border was secure – a key requirement in the 13-year pathway to citizenship for current undocumented immigrants.

Attempts to amend the bill began immediately, some of them seeming intended to give a new definition to the word “irony”. One member of the Gang of Eight that wrote the bil, Senator Marco Rubio (R-FL), himself a Cuban-American, introduced an amendment requiring citizenship candidates to be proficient in English. Perhaps serving as an intentional contrast, Senator Tim Kane (D-VA) delivered a passionate speech on the Senate floor in favor of the Rubio’s unamended bill in Spanish.

Interestingly, after hearing back in 2009 about how terrible it is that bill such as the Affordable Care Act were such large and weighty tomes, this immigration bill weighs in already at 1,076 pages (or 867 pages, depending on whom you believe) — without additional amendments — yet four of the bill’s eight authors are Republicans. One could wonder if the okay-ness of large bills is at least partly dependent on the bill’s authorship.

Irony?

President Obama gave a speech yesterday from the East Room of the White House in support of the bill, saying Congress “needs to act and the moment is now.” Perhaps in response to presidential support, the Heritage Foundation announced a $100,000 online campaign in opposition to the bill, predictably calling it “Congress’s Amnesty Bill”, which is an expensive act intended to “pay for amnesty to illegal immigrants.” While it is generally accepted that Republicans need to court Hispanics if they want to win the White House any time soon, and while immigration reform is generally seen as a necessary step in that direction, conservatives such as Heritage apparently haven’t gotten the memo that it is counterproductive to use phrases in this debate such as “amnesty” and “illegal immigrant.” (You really should look at Heritage’s page on the topic. It will amaze you, regardless of your political persuasion, but perhaps not for the reasons they’d like.)

Senator Kelly Ayotte (R-NH) came down in favor of the bill. Senator Rand Paul (R-KY) joined Senator Rubio in saying he could only support the bill if it got tougher border security measures. (Laser-armed alligators perhaps?) Senator Paul did offer to serve as a “conduit” to House conservatives who might otherwise oppose immigration reform. (Does anyone suspect Paul might be trying to bolster is cred as a big player in American politics?)

I’ve written previously about this bill, its importance to Republicans, and the stringent requirements it contains in the way of border security and the extremely high bar it sets for those who want to become citizens. I’ve also pointed out the dangers to Republicans in opposing the bill, and their seeming tone-deafness in doing so anyway. Senate Majority Leader Harry Reid (D-NV) put the reason for supporting the bill this way: “There are 11 million reasons to pass common-sense immigration reform that mends our broken system — 11 million stories of heartbreak and suffering that should motivate Congress to act.” One would think this is the tone Republicans would want to strike, in an effort to show a constituency they must attract that they care.

This, however, is how Senator Ted Cruz (R-TX) views the bill’s chances:

“The biggest obstacle to passing common sense immigration reform is President Barack Obama,” Cruz [says,] … going on to say that the White House’s “insistence” on including a path to citizenship is standing in the way of the bill’s ultimate passage.

“The path the White House is going down, I believe, is designed for this bill to fail,” Cruz says. “It is designed for it to sail through the Senate and then crash in the House to let the president go and campaign in 2014 on this issue.”

Underscoring his hard-line approach, Cruz says he won’t compromise on his stance against a path to citizenship despite calls from many Republicans that passing an immigration reform package is necessary for the party’s success in the 2014 and 2016 elections.

Cruz may not be alone in so strongly opposing a path to citizenship, though his apparent reasons for opposing it are interesting:

… immigration reform that includes a path to citizenship is also supported by many major GOP stakeholders and GOP-aligned special interests, from the U.S. Chamber of Commerce to prominent members of the GOP consultant/strategist establishment. There are a variety of reasons for this, including the belief among many that modernizing the party’s position on immigration is essential to repairing the party’s relations with Latinos.

And yet, in the reality inhabited by the new Senator from Texas, the path to citizenship is a threat to the bill primarily because President Obama wants it. Thank you, Senator, for clarifying exactly what this is really all about.

So there seems to be a split here among Republicans, on whether it is more important to appeal to Hispanics or to find an excuse (be it border security, spending money, lamenting federal benefits, or condemning “amnesty”) to oppose President Obama.

There seems to be three general ways this can all play out:

1. The Senate could pass immigration reform substantially like the current Gang of Eight bill. This could, conceivably, be accepted by the House and then become law.
2. The Senate — or the House — could pass a substantially altered bill, and some watered-down, bastardized bill could come out of conference and become law.
3. The Senate could pass either something like the current bill, or a vastly altered one, and it could die in the House.

It seems to me that only the first of these options has any chance of helping Republicans gain any ground with Hispanics, and even then the effect will be marginal at best. This being the case, many Republicans from both houses might think it more important to pander to their far-right primary voters, and load up the bill with poison pills such as Rubio’s English-only amendment, or armed drones on the border, or requirements that federal benefits be denied to the grandchildren of immigrants. Why not, since they won’t get credit for anything good the bill contains, and the Tea Party will see it as not only “amnesty,” but also — worse — a victory for Obama?

What do you think will happen to this effort? Will we get immigration reform enacted — and if we do, will be be any sort of meaningful immigration reform?

Related articles

• Senate gets high-stakes immigration bill
• IT’S OVER: Comprehensive Immigration Reform Is Going To Pass
• Senate GOP leaders face tough choice on immigration reform
• Immigration debate clears procedural Senate hurdle
• Senate votes yes to proceed with immigration bill — what’s next
• Senator Paul says he’s open to voting for immigration bill
• Ted Cruz says Obama is playing politics with immigration reform
• Senate Republicans push tougher border plans in U.S. immigration bill