As the debate over health care reform approaches it’s final hours in the House of Representatives, there’s been much discussion over the past week over a rather obscure topic — the internal operating procedures of the House of Representatives, and specifically the apparent intention of House Democrats to use something that has been called “deem and pass” to get the Senate Bill approved and a Reconciliation Bill to the Senate.

The first question, of course, is exactly what “deem and pass” actually is, and George Washington University Professor Sara Binder gives perhaps the best explanation I’ve seen to date:

So how is the process likely to unfold? We can’t be entirely sure of all the details yet, but it will likely start on Saturday when the Rules Committee meets, most likely in its usual room in the Capitol—a tight squeeze with just a handful of spectator seats. At that point, the committee will unveil its recommended special rule and debate it. We don’t know yet for sure what the rule will say. There will most likely be that self-executing provision that “deems” the Senate-passed health care bill as passed by the House upon adoption of the rule or upon House passage of the reconciliation bill.

(…)

The Rules Committee has now written up a special procedure for its debate and the House has approved it. If the rule is written in such a way that enactment of the rule itself deems the Senate bill passed, the Senate bill would—at that point—be ready for presidential signature. Health care reform, in other words, would be ready to become law. But it’s more likely the rule will stipulate that the Senate bill becomes law only after the House approves the reconciliation package. If so, reform’s fate will still not be settled. It will depend on whether the reconciliation bill passes.

And so the House will proceed to debate the reconciliation package, in whatever manner and for whatever duration the rule stipulates. Most likely, no amendments will be allowed. Once debate is exhausted, the House will move the previous question motion again, this time in preparation for final passage of the bill. Again, it will take 216 to agree to the previous question motion, setting up the climactic vote

(…)

[I]f all has gone according to plan for the Democrats, the chamber will come to its up-or-down vote on the reconciliation bill. If 216 members vote yes, the reconciliation bill will go to the Senate. And the main Senate bill? That one will enter the “enrollment” process to prepare it for its journey up Pennsylvania Ave to the White House.

Doesn’t exactly sound like Schoolhouse Rock does it ? That, I think is one of the reasons that we’ve seen such a strong reaction to this issue from many pundits and members of the public. Whether it’s right or wrong, it doesn’t seem right. Politically, it’s a dumb move that I think Democrats will come to regret. But what about the Constitution ? Is “deem and pass” Constitutional ?

Former Federal Judge Michael McConnell was among the first to state publicly that the answer is a clear no:

To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

It seems like a fairly straightforward, textually sound argument, and many on the right have essentially adopted McConnell’s argument as their own. Both Virginia Attorney General Ken Cuccinelli and talk show host Mark Levin have said that they intend to file lawsuits if the House utilizes the “deem and pass” strategy.

It turns out, though, that the answer isn’t quite as simple as McConnell makes it out to be.

In 2005, the Circuit Court of Appeals heard a case titled Public Citizen v. US District Court for DC. In that case, Public Citizen, joined by Members of Congress including Nancy Pelosi and current Rules Committee Chairperson Louise Slaughter (of the “Slaughter Solution) were challenging a “deeming” procedure used by the Republican-controlled House.

Here’s what the Court said:

The District Court held that Public Citizen’s bicameralism claim is foreclosed by the Supreme Court’s decision in Marshall Field & Co. v. Clark, 143 U.S. 649 (1892). See Public Citizen v. Clerk, U.S. Dist. Ct. for D.C., 451 F. Supp. 2d 109 (D.D.C. 2006). In that case, the Court held that the judiciary must treat the attestations of “the two houses, through their presiding officers” as “conclusive evidence that [a bill] was passed by Congress.” Marshall Field, 143 U.S. 672-73. Under Marshall Field, a bill signed by the leaders of the House and Senate – an attested “enrolled bill” – establishes that Congress passed the text included therein “according to the forms of the Constitution,” and it “should be deemed complete and unimpeachable.” Id. at 672-73. Recognizing that Marshall Field’s “enrolled bill rule” prohibited it from questioning the congressional pedigree of the bill signed by the Speaker and President pro tempore, the District Court dismissed Public Citizen’s complaint and denied its motion for summary judgment. Public Citizen, 451 F. Supp. 2d 109. …

We agree with the District Court that the enrolled bill rule of Marshall Field controls the disposition of this case. We therefore affirm the judgment of the District Court. We find it unnecessary to determine whether Public Citizen has standing to bring suit, because we conclude that the Marshall Field rule of dismissal “represents the sort of ‘threshold question’ [that] . . . may be resolved before addressing jurisdiction.” Tenet v.Doe, 544 U.S. 1, 6 n.4 (2005).

In Marshall Field, the Supreme Court said:

The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable.

(…)

It is admitted that an enrolled act, thus authenticated, is sufficient evidence of itself—nothing to the contrary appearing upon its face—that it passed congress

So, assuming that Marshall Field applies, once Nancy Pelosi and either Vice President Biden, as President of the Senate, or Senator Byrd, as President pro tempore attest that the bill has passed their respective houses, that is the end of the matter unless the Supreme Court ends up over-ruling a 118 year old precedent and creating a Constitutional crisis.

KipEsquire has made some good points suggesting that Marshall Field might not apply in this case, but it doesn’t end there.

I vaguely recalled learning the Enrolled Bill Doctrine in law school. Not in a Constitutional Law class, mind you, but in Statutory Interpretation. That’s because the Doctrine is not a true constitutional principle. It is, at best, an editorial footnote, one that deals only with Congressional scrivener’s errors, not with major foundational questions of federal lawmaking.

This is why those — even those who oppose Obamacare — citing to the Enrolled Bill Doctrine are misguided. Unlike so many other judicial atrocities, the Supreme Court has never before — and will not now — nullify the Presentment Clause (or tolerate its nullification by Congress, the President or both). We saw that as recently as Clinton v. New York, 524 U.S. 417 (1998), in which the Court struck down the line-item veto.

I understand the Presentment Clause arguments, and have blogged about them, favorably, over the past week or so. Based on a strict reading of the text of the Constitution, I think that it’s probably correct that the House is required to actually vote on the Senate Health Care Reform bill. However, the Presentment Clause does not state the manner in which the vote must be taken by each chamber, and Article I Section 5 says the following:

Each House may determine the Rules of its Proceedings,

In United States v. Bellin 144 U.S. 1 (1892), the Supreme Court stated:

The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations, all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

If the House of Representatives passes a Rule stating that the Senate bill is deemed as having been passed by the House, that would seem to fall within the discretion of the House under Article I, Section 5. And, as Jack Balkin notes, it would be part of a method under which “deem and pass” could occur without violating the Presentment Clause:

[T]here is a way that “deem and pass” could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule.

How that would not be in compliance with the Presentment Clause is beyond me.

Politically, “deem and pass” is a stupid idea because it smacks of dishonesty and, more importantly, there seems to be something wrong with using this method to pass such a major piece of legislation, even if the method itself is Constitutional.

Just because it’s politically stupid, though, doesn’t mean it’s unconstitutional.

Note: This post was developed from a series of posts I published on my personal blog earlier this week.

Update 2:39pm EDT: The Washington Post is reporting that the House leadership has decided not to use a “deem and pass” rule for tomorrow’s vote. To me, that means that they are confident they have the votes.

With less than five days until the scheduled execution of Hank Skinner, a DNA testing laboratory in Phoenix, AZ has offered to test evidence that Skinner’s attorneys say will prove his innocence. Chromosomal Laboratories has told Texas Gov. Rick Perry that they will run the tests for free if Perry agrees to grant Skinner a 30-day reprieve. Under Texas law, the governor has the authority to grant a one-time reprieve for capital cases.

The Texas Tribune reports that Gov. Perry has not decided whether or not he will grant the reprieve and said that any decision to test the DNA will be decided in the courts.

My question for Gov. Perry is what is there to think about? The man has been on death row for 15 years; what is the harm in giving him just 30 more days to determine once and for all if he is guilty or not? The state cannot give Skinner his 15 years back if the state turns out to be wrong but he could at least live the rest of his life a free man. The state obviously cannot give Skinner his life back once the state takes it from him, however.

Whether you oppose the death penalty or not we can all agree that the state should at least make every reasonable effort to ensure that the person being put to death by the state actually committed the crime. This is not an unreasonable request.

The execution is scheduled for March 24, 2010 so there isn’t much time left to act (see the contact information below).

Opinion Lines
Texas callers: (800) 252-9600
Out of state callers and Austin residents: (512) 463-1782

Office of the Governor, Main Switchboard (from 8:00 a.m. to 5:00 p.m. CST): (512) 463-2000

Office of the Governor Fax: (512) 463-1849

The Innocence Project also has an easy petition that only takes a few minutes to fill out.

Related: Former Texas Prosecutor and Judge Both Believe the State Has Executed More Than One Innocent Man

From the LA Times, a story about the LA City Council. Electronic auto-voting allows council members to avoid actually attending council meetings, much to the chagrin of voters:

Still, their physical absence frequently infuriates members of the public who show up to testify only to find themselves addressing one or more empty chairs.
Advertisement

“We go there to talk to the full City Council,” said Ziggy Kruse of the Hollywood Studio District Neighborhood Council. “If you get eight people in their seats, you’re lucky.”

Oh, you naive citizen… You’re assuming they actually give a shit what you say.

Hat Tip: Reason

While the Democrats in Congress will try to spin it otherwise, the truth about the CBO numbers released today can be found on the first page of CBO Director Douglas Elmendorf’s letter to Speaker Pelosi:

Although CBO completed a preliminary review of legislative language prior to its release, the agency has not thoroughly examined the reconciliation proposal to verify its consistency with the previous draft. This estimate is therefore preliminary, pending a review of the language of the reconciliation proposal, as well as further review and refinement of the budgetary projections.

In other words, this isn’t a final scoring of the the health care bill, and it isn’t complete because Congress hasn’t told the CBO what’s in the reconciliation package that they’ve supposedly been working on for a week now.

One Capitol Hill reporter stated on Twitter earlier that a final CBO scoring won’t be released until tomorrow, or Saturday. If that’s the case, then the 72 hour clock has NOT started running yet and we won’t see a vote on this until early next week.

Don’t let them fool you.

I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.

– Thomas Jefferson

March Madness has arrived. For the first time, I’ve decided to throw together a Liberty Papers Bracket Challenge. Hosted at CBS Sports (p/w “thomaspaine”), feel free to sign up. Hurry, of course, as the games start Thursday morning.

Scoring rules are somewhat standard, but with a kick on the first two rounds. Picking a winner adds their seed to your point total, meaning you get significant benefit from picking the right upsets during those first two games.

The winner will earn a guest post here at The Liberty Papers, with minimal restrictions on tone and subject.

Sign on up and let’s see what you’ve got! And of course, consider this an open thread to root for your favorite team. I think my allegiance is well known…

It’s very simple… Just require federal employees to follow the law, and they’ll make themselves ineligible for service:

`SUBCHAPTER VIII–INELIGIBILITY OF PERSONS HAVING SERIOUSLY DELINQUENT TAX DEBTS FOR FEDERAL EMPLOYMENT

`Sec. 7381. Ineligibility of persons having seriously delinquent tax debts for Federal employment

`(a) Definition- For purposes of this section–

`(1) the term `seriously delinquent tax debt’ means an outstanding debt under the Internal Revenue Code of 1986 for which a notice of lien has been filed in public records pursuant to section 6323 of such Code, except that such term does not include–

`(A) a debt that is being paid in a timely manner pursuant to an agreement under section 6159 or section 7122 of such Code; and

`(B) a debt with respect to which a collection due process hearing under section 6330 of such Code, or relief under subsection (a), (b), or (f) of section 6015 of such Code, is requested or pending; and

`(2) the term `Federal employee’ means–

`(A) an employee, as defined by section 2105; and

`(B) an employee of the United States Postal Service or of the Postal Regulatory Commission.

`(b) Ineligibility for Federal Employment- An individual who has a seriously delinquent tax debt shall be ineligible to be appointed, or to continue serving, as a Federal employee.

`(c) Regulations- The Office of Personnel Management shall, for purposes of carrying out this section with respect to the executive branch, prescribe any regulations which the Office considers necessary.’.

(b) Clerical Amendment- The analysis for chapter 73 of title 5, United States Code, is amended by adding at the end the following:

`subchapter viii–ineligibility of persons having seriously delinquent tax debts for federal employment

`7381. Ineligibility of persons having seriously delinquent tax debts for Federal employment.’.

Sounds like it’s time to get some folks with clout to push this. Get Ron Paul on board, get Jeff Flake on board, and get the TEA Party folks on board. I say we make this happen.

Hat Tip: Reason

Hank Skinner is scheduled to be executed by the State of Texas on March 24th. Despite more than a decade of requests to have his DNA tested, Texas courts have denied him every step of the way. The Medill Innocence Project has even offered to pay for the testing to no avail. Skinner’s attorneys have appealed to the U.S. Supreme Court to force the issue before it’s too late. Given the recent ruling in Osborne, I’m not optimistic that Alito and Roberts would put their slavish allegiance to process aside long enough to allow the truth of Skinner’s guilt or innocence to see the light of day…at least until after Skinner is executed (maybe).

Former Texas prosecutor Sam Millsap wrote an op-ed piece in The Houston Chronicle explaining why he believes the courts should grant Skinner’s request, if for no other reason, to learn the truth. He also pointed out that only a week ago, Gov. Rick Perry pardoned Tim Cole posthumously some 9 years after he died while in prison. Why wouldn’t the same governor want to avoid making the same mistake again?

Millsap:

I’m not an advocate for Hank Skinner. I’m an advocate for the truth. If DNA tests could remove the uncertainty about Skinner’s guilt — one way or the other — there’s not a good reason in the world not to do it […]

[…]

It is cases like Skinner’s that ended my lifelong support for the death penalty. Any system driven by the decisions of human beings will produce mistakes. This is true even when everyone — judges, prosecutors and defense attorneys — is acting in good faith and working as hard as he or she can to get it right.

From there Millsap gets personal and explains why he, acting in good faith, may have been responsible for prosecuting an innocent man who was executed in 1993.

Why the change of heart? Millsap explained that one of his star witnesses against Ruben Cantu recanted his testimony 20 years later. Millsap said he believes the witness’s latest version of the events because the witness had nothing to gain from changing his testimony “except a whole lot of trouble.”

Beyond Cantu, Millsap also believes Texas has executed at least two other men he says “were almost certainly innocent”: Carlos DeLuna, executed in 1989 and Cameron Todd Willingham, executed in 2004.

Millsap is by no means the only individual inside the Texas criminal justice system who recognizes inherent flaws in the system which kills more people every year than any other state. State District Judge Kevin Fine recently granted a pretrial motion declaring the death penalty unconstitutional due to his belief that innocent people have been executed in Texas and elsewhere:

“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” state District Judge Kevin Fine said. “It’s safe to assume we execute innocent people.”

Fine said trial level judges are gatekeepers of society’s standard for decency and fairness.

“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?” he said. “I don’t think society’s mindset is that way now.”

The article goes on to point out that Judge Fine’s ruling will likely be overturned on appeal and is more symbolic than anything else (i.e. a way to force people to discuss the issue of the death penalty). Fine is taking quite the career risk in a very pro-death penalty state which elects its judges. His critics, who like to point out that Judge Fine is a former cocaine addict, argue that his ruling has no basis in the law.*

And maybe Judge Fine’s critics are technically right** about his “judicial activism,” but can anyone really argue with the judge’s logic? Is it possible for sates to execute only guilty individuals 100% of the time when states have admitted to wrongfully convicting others for lesser charges? If not, what is the acceptable margin of error when we are talking about allowing the government to kill?

These are the kinds of questions which I hope keep Gov. Perry up at night with the scheduled execution of Hank Skinner and those who will undoubtedly follow.

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Economist Donald Marron:

I often tell my students that, in my humble opinion, one purpose of government is to help people be happy. The DC government did a good job on Wednesday.

I disagree with that on so many levels. The government’s job is to secure people’s rights, and as Thomas Jefferson so eloquently said, one of those inalienable rights is the pursuit of happiness. But we cannot move from a government built to secure negative rights to one built to fulfill positive rights just by wishing it so.

But this is one of those special cases where the government got it right. The government, through bigoted discrimination, was actively denying some citizens of their right to pursue happiness as they see fit. In this case, they did help people be happy, by getting out of the way.

Hat Tip: Ezra Klein

Ezra Klein, on Congressional bending of the rules*:

Here are some things that happened on the night the GOP pushed the Medicare Prescription Drug Benefit through the House of Representatives:

A 15-minute vote was scheduled, and at the end of 15 minutes, the Democrats had won. The Republican leadership froze the clock for three hours while they desperately whipped defectors. This had never been done before. The closest was a 15-minute extension in 1987 that then-congressman Dick Cheney called “the most arrogant, heavy-handed abuse of power I’ve ever seen in the 10 years that I’ve been here.”

…

Democrats, who are currently trying to pass health-care reform in a way that doesn’t break congressional rules but does upset some Republicans, should take note.

This episode, as well as the continual push for spending and expansion of government that accompanied these tactics, may have won the day but lost the war.

One must ask why a party with full control of Congress needed to threaten some members and bribe others to get their reform passed? To this I see two potential reasons:

1. They truly believed that the legislation was improper for the federal government.
2. They were scared their constituents would punish them at the ballot box for their mistreatment of the public purse.

If the former, changing their vote and voting against their principles should reflect poorly on their character. If the latter (which I believe to be the case), at least it proves one thing: they were right.

After several years of George W.C.C. Bush** and Republican control of Congress, conservatives expected several things. Tax cuts, of course, which they got. Control over the size and growth of government spending, though, which they didn’t. Eventually the cry from many on the right seemed to be “if they’re going to spend like this anyway, we might as well elect Democrats!” Those on the right who continued to argue against such an idea (Hannity, Limbaugh, et al.) were reduced to the argument that while these Republicans are bad, those Democrats are assuredly worse.

The end result was that the party’s core voting block, fiscal conservatives, stayed home a few elections in a row and turned the Congress over to Democrats. And where did this occur? In Congressional districts where seats were vulnerable…

…just like the Blue Dog seats.

Why don’t the Democrats play hardball? Because enough of them know that passing this bill will end their political careers, and a few of them are just getting their posterior imprints comfortable when they ousted Republicans in 2008 or 2006. They want another few decades in Congress, not another 10 months.

They saw the results of bold action that might upset voters, and they’re certainly not in a hurry to repeat the carnage.
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The Economist Free Exchange blog points me to Steve Waldman and an interesting question:

Suppose the good guys win. Better yet, suppose they had never lost. Suppose banks had never ventured beyond conservatively prudent lending; that there had been no housing, internet, or credit bubble. Forlorn cul-de-sacs surrounded by mouldering homes were never cut from the Arizona desert. Webvan and pets.com were rejected straight off by investors rather than soaring against all reason then dying in an unreasonably sudden collapse.

In a world without bubbles and, let’s not mince words, in a world without fraud in substance if not in law, would we, or how could we, have enjoyed two decades of near “full employment” and apparent growth? Without all the internet companies that were forseeably destined to fail, without all the housing construction, without all the spending by employees whom we know now and should have known then were not actually participating in economic production, without all the spending by people feeling rich on stock or housing gains that would eventually collapse in their or someone else’s arms, what kind of economy would we have built?

He goes on to defend FDR in the wake of the Great Depression and suggest that the reforms FDR built into the economy set the stage for a more stable and long-lasting postwar boom. There’s a lot of “what if?” to be played there, and I’m not going to wade into that one.

What I am going to argue against is the attempt to lump the internet bubble and the housing/credit bubble as if all bubbles are equal. Of course, there are parallels. The biggest one that I always — as a contrarian — harp on is the belief during bubbles that “it’s different this time!” During the internet bubble, people seemed willing to throw money at companies that had no business model, no revenue or expected revenue stream, just because they ended in .com. During the housing/credit bubble, people were willing to stretch farther than ever historically prudent because they believed that the complex financial instruments spread the risk as far away from them as possible — and besides, “housing has never had a nationwide crash!”

But I personally believe that during the internet bubble, it indeed was “different this time”. Not from the standpoint of a bubble, as people were willing to invest in an industry they didn’t understand with no history or easy way to determine who would be the winners and the losers. It was a true measure of “irrational exuberance”, where stock investors got WAY ahead of the fundamentals and valuations soared so quickly that normally prudent investors got sucked in.

But it was different. The world of today shows just how different it was. How many existing business models has the internet broken? Ask the travel agency business. Or the book/DVD sales business. Music sales are replaced by the internet. Newspapers are dying. TV is being transformed (enabled later than “the internet” by the growth of high-speed connectivity and computing power). The 24-hour cable news world has now been replaced by the instant news feed called “twitter”. And of course one of the oldest business models in the world — mail service — has been replaced by a worldwide instant network.

Outside of business models that were destroyed, many have simply been enabled. My boss lives in Virginia; I live in California. I’ve met him in person once. Yet that’s not an impediment to business. Near-ubiquitous connectivity ensures that I can travel to a city to visit customers and be reachable by cell phone, email, and wherever I have wifi my laptop can hook me into any resource I need in my company. These things were in their infancy in the early 90’s — now they’ve changed the way we do business.

The instant communication and vast repository of information the web puts at ones fingertips creates new social networks and niches for all sorts of interests. As a homebrewer, the trials and tribulations of learning to brew in a pre-internet period would have led to a lot more poor-quality, infected, or generally crappy brews. Instead, I have a ready-made resource of “tribal knowledge” willing to answer questions, help someone out, etc. Even here at the blog I’m linked to an entire community of libertarians. Pre-internet, most libertarians thought they were the only one in their community. Now it’s obvious that there are a lot more out here than one would think. Pre-internet, back in my BBS days, to meet people in person from the online world was “weird” and/or “creepy”. Now people meet their spouses through the ‘net.

The internet bubble was a stock bubble — that much is certain. But the internet is a revolutionary transformative technology that is dramatically changing the way society lives and communicates. Much of the internet bubble occurred because people could sense that something big was happening, and they wanted to be a part of it. And they were right.

As far as I can tell, the housing/credit bubble had none of this. The financial innovation of the last decade never really seemed transformative or revolutionary. Houses didn’t suddenly sprout money trees in their backyards, although the HELOC/ReFi ATM may have made it seem like it. House prices started skyrocketing, but the fundamentals (i.e. income, rental parity, etc) never came close to keeping up. Instead of transforming housing, the only transformation was that affordability went out the window, to be only replaced by crushing debt loads and the hopes that appreciation will keep you solvent.

Steve asks in lieu of the bubbles, what kind of economy we would have created. At least with respect to the internet bubble, I’m not sure we’d have done much differently.

So the receptionist at the office started* walking around handing out envelopes — envelopes larger than a paycheck — which is sometimes not a good sign. But lo and behold, opening the envelope revealed a nice crisp, clean $10 bill courtesy of [a proxy for] the government!

This is an employment survey designed to assess “worker attributes and job characteristics”. It’s funded by the DoL and the ETA [Employment & Training Administration]. And they expect to become “the nation’s primary source of occupational information”.

But my normal railing against government — wondering why they need this source of information, wondering if they’ll be any more “primary” of a source than monster.com, or to point out how the bland questions in their little booklet doesn’t come close to explaining my job — is a whole different discussion. My wheels got spinning when I saw the $10 bill paper-clipped to the front of the paper. After all, they explain quite clearly that it’s a voluntary survey. Yet there’s a $10 bill on the front.

Now, I’ve seen “free” money before. At least once a week I get a check in the mail from some scamming company, and all I need to do to sign up for their service is to cash it. But this is cash. And the survey is voluntary. The worst threat they can make is that if I don’t fill out the survey, they’ll inflate away the value of that $10 note. But they were going to do that anyway, and anyway I spent it before it was worth less than $9, I’m sure.

Immediately it’s clear that they’re getting a lot more from DoL/ETA to run this survey. It makes me wonder what kind of model their funding is based on. Is it a pay-per-completed-survey model? If so, one would think the gov’t is paying a much higher price for each completed survey. Is it a simple grant? One wouldn’t think so, because the company (RTI) running the survey could probably get higher compliance by sending out higher numbers of surveys overall.

Part of me wonders why they sent out cash rather than something that was contingent on completing the survey — but I know why they didn’t do that. If I’d received something like that, I’d have pitched it. If I’d received something traceable (like a check), I’d have pitched it. Frankly, if they hadn’t had a web-enabled response form [and I'd been forced to "write" a response], I’d have pitched it. Heck, if they’d told me that compliance is mandatory, that’d probably make me more likely to pitch it — assuming, of course, that doing so wouldn’t get me in trouble with the nice folks who sign my paychecks.

So I understand why they send out the cash. After all, even I — as someone who cares little about government intelligence-gathering — ended up filling it out due the implicit guilt of taking the “free” $10.

But what I don’t understand is why this data is so worthwhile that the federal government would spend so much money collecting it? Actually, I understand that too. It’s not their money.
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I have to think that’s the only acceptable reaction to this:

The Transportation Security Administration is spreading airport body-scanner technology across the country.

A TSA official said Friday that units will be fielded next week in Chicago, and in the coming months at Fort Lauderdale, Fla.; San Jose, Calif.; Columbus, Ohio; San Diego; Charlotte, N.C.; Cincinnati; Los Angeles; Oakland, Calif.; and Kansas City.

They are among 150 machines bought with money from the federal stimulus package signed into law by President Obama last year.

I figure if they’re gonna look, I might as well give them a show, right? Now, I’m not talking about some Dirk Diggler-esque salamander halfway down my leg…

I’m just wondering what it would take to get this made out of rubber?

Hat Tip: Jason Pye @ UL

Yep. Modern life has made surrealism obsolete.

Hat Tip: EDSBS

The state of Washington is currently in process on a bill that will impound any car for 12 hours where the driver is arrested on suspicion of DUI. This will be automatic — whether the car is owned by an innocent third party, or whether someone else in the vehicle can legally drive does not exempt the auto from the policy.

But here’s the quote:

The Towing and Recovery Association of Washington is one of the main lobbying organizations pushing for the adoption of the law.

Really?! I’m SHOCKED!

Who’da thunk the tow truck lobby cared so much about the children?

Hat Tip: Overlawyered

The latest controversy of the day among many on the right, led principally by Liz Cheney and William Kristol, involves attacking Justice Department lawyers who represented alleged members of al Qaeda or the Taliban detained at Guantanmo Bay.

As Kristol puts it:

[L]awyers now at the DOJ worked on the historic Boumediene case. That case established the Gitmo detainees’ right to challenge their detention in habeas corpus hearings. In effect, the habeas proceedings have taken sensitive national security and detention questions out of the hands of experienced military and intelligence personnel, and put them into the hands of federal judges with no counterterrorism training or expertise. That lack of experience shows. For example, in one recent decision a federal judge compared al Qaeda’s secure safe houses (where training, plotting and other nefarious activities occur) to “youth hostels.” The habeas decisions are filled with errors of omission, fact, and logic.

Still other lawyers did work on behalf of these well known terrorists: Jose Padilla (an al Qaeda operative dispatched by senior al Qaeda terrorists to launch attacks inside America in 2002), John Walker Lindh (the American Taliban), and Saleh al Marri (who 9/11 mastermind Khalid Sheikh Mohammed sent to America on September 10, 2001 in anticipation of committing future attacks).

Now, we don’t know what assignments these lawyers have taken on inside government. But we do know that they openly opposed the American government for years, on behalf of al Qaeda terrorists, and their objections frequently went beyond rational, principled criticisms of detainee policy.

Not everyone on the right agrees with Kristol and Cheney on this, of course. Two former Bush Administration DOJ officials, John Bellinger III and Peter D. Keisler, have come to the defense of what Cheney, Kristol, and their acolytes are calling “The Al Qaeda Seven”. and one very conservative blogger who has no love for the Obama Administration puts it this way:

The lawyers who represent criminals do not represent them because they support crime, they represent them because they support our system of justice. So too those who represented alleged members of al-Qaeda do not support their beliefs but our beliefs in the right to a fair trial and the right to a lawyer. Our system of justice depends on lawyers vigorously advocating for the rights of criminals to receive a fair trial. I couldn’t do it–I’m more of a “try ‘em and fry ‘em” kind of lawyer–but somebody has to do it. And to seek to disqualify lawyers for simply doing their jobs because we don’t like who they represented is plain stupid. Oppose the Obama Administration and Attorney General Holder when they are wrong, not merely for the sake of opposing them.

As Walter Dellinger points out in today’s Washington Post, this attack on the legal profession is nothing short of shameful:

It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm’s offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? . . . Whose values do they share?”

(…)

That those in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers — and on the integrity of our legal system — is shameful. Shameful.

Moreover, as one blogger points out, these lawyers were doing what every lawyer does:

[L]awyers represent clients. That’s what they do. It’s a mistake to assume that because Lawyer A represents Client B, he approves of whatever it is that Client B was accused of. He may genuinely believe that Client B is innocent. Even if he doesn’t, he almost certainly believes that Client B is entitled to a fair trial to establish his guilt or innocence. And he absolutely believes that he wants to collect his paycheck, in return for which he must do what he does, which is represent clients (by either personal hiring or government appointment to the job).

Just ask a guy named John Adams:

“I. . .devoted myself to endless labour and Anxiety if not to infamy and death, and that for nothing, except, what indeed was and ought to be all in all, sense of duty. In the Evening I expressed to Mrs. Adams all my Apprehensions:That excellent Lady, who has always encouraged me, burst into a flood of Tears, but said she was very sensible of all the Danger to her and to our Children as well as to me, but she thought I had done as I ought, she was very willing to share in all that was to come and place her trust in Providence.

“Before or after the Tryal, Preston sent me ten Guineas and at the Tryal of the Soldiers afterwards Eight Guineas more, which were. . .all the pecuniary Reward I ever had for fourteen or fifteen days labour, in the most exhausting and fatiguing Causes I ever tried: for hazarding a Popularity very general and very hardly earned: and for incurring a Clamour and popular Suspicions and prejudices, which are not yet worn out and never will be forgotten as long as History of this Period is read…It was immediately bruited abroad that I had engaged for Preston and the Soldiers, and occasioned a great clamour….

“The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.

Yes, that’s right. One of America’s greatest Founders, a member of the Continental Congress, and Second President of the United States defended the British soldiers accused of killing five people in the Boston Massacre. He did it because he believed that everyone deserved a defense.

It’s a fact of life that lawyers who practice criminal law, and sometimes even us civil attorneys, will eventually represent disreputable clients. Some do it because they are doing their job, some do it because they believe everyone deserves a defense, and they deserve our thanks, not our condemnation.

O/P: Below The Beltway

One of Ezra’s regular commenters is running for Congress, and had this to say:

You are way off, Ezra. The time breakdown on fundraising during a campaign is more like 50-70%. It’s absolutely horrifying. I used to be a policy wonk who could talk the most minute details of big bills and who actually read most of the health care bill. Now that I’m running in the XXXX XXXX (Dem primary), I spend all my time meeting with prospective donors and cold-calling past Dem donors. It’s sad that when I’m the closest I’ve ever been to shaping policy, I’m also spending the least time in the past decade focused on immersing myself in it.

I’m not surprised. I long ago lost faith in the system, and have said for a very long time that it is structurally incapable of fixing its problems. The more I study (and having just finished Hayek’s “The Fatal Conceit” I’ve studied from the master), I think that fundamentally the problem is not solvable.

But Ezra hasn’t reached that point yet. He’s still wondering why the power-brokers don’t want to break down the system which gives them power:

What I can’t understand, though, is why the drumbeat for public funding of elections isn’t loudest within Congress itself. After all, congresspeople regularly say that they hate this part of the job. When they retire, they complain about it constantly. And yet, they don’t seem particularly interested in changing it, even though they would be the most direct beneficiaries. I guess the answer is that once you’ve constructed a fundraising network you have an enormous advantage over competitors who have to do all that work from scratch, and so blocking campaign finance reform makes continued reelection more likely. But can that really be worth the day-to-day misery?

Now, the difference between Ezra Klein and I in this case is hope. He has hope — albeit false hope — that the system is fixable. I’ve lost that hope and think it’s just time to stop asking the system to fix problems in the first place.

Michael Cannon of Cato is a healthcare buff and more of a regular foe of Ezra Klein, and he has predicted that “Ezra Klein will die a libertarian. And it won’t be a deathbed conversion, either.” There may come the day when he battles so hard — in vain — to fix the system that he realizes that he’s tilting at windmills. Perhaps Cannon is correct. Klein is young enough — and smart enough — to learn that yes, in fact, politicians care so much about retaining their power that they’ll endure all sorts of misery to continue to “serve”. Raised in close view of the dysfunctional government of California, and now seeing the dysfunction of the Senate first-hand in the health-care debate, he’s unlikely to maintain his faith much longer.

Klein approaches the healthcare debate much the same way that I once advocated for the FairTax. He assumes that the issue is important enough to transcend politics and interest groups. He assumes not only that Congress can create a fair, compassionate, cost-effective government run system without unnecessary rationing, but also that they’ll actually ignore all their incentives to saddle it with restrictions, appease interest groups, and throw so many government (& union) provisions into the works to push the cost into the stratosphere. Much like I once thought that the idea of the FairTax was so compelling that Congress would respond to voters and common sense and act counter to their own electoral interests to enact it “as written”. He’ll be proven wrong, of course. My only hope is that it doesn’t require such a monstrosity to be enacted to make him see the error of his ways.

I am a stickler for grammar, but it is also one of my pet peeves.

So on National Grammar Day, I’d like to post a few of them.

#1 – Nested parentheses: The general grammar rule is never to nest parentheses. But as an engineer with the combination of math, computer code, and boolean logic backgrounds, nested parentheses seem so natural to me that I largely try to ignore this rule. I’ve been getting better about this, such that when I first write something using nested parentheses I make sure to take a close look at it to determine if there’s a better way to phrase it such that it doesn’t require nesting. But if I think it’s required, I ignore the rule.

#2 – Punctuation inside quotes: I don’t like putting punctuation inside quotes unless necessary. Take this following sentence. Did Bob ask you “where are you going?” It’s a question inside a question. I’d like to put a question mark before and after the quotation marks, because there is a question nested inside the quotes and the entire sentence is a question. Or likewise, the following sentence. Did Bob say “the sky is blue”? Correct grammar is to put the question mark inside the quote. But “the sky is blue” is a statement, not a question.

So I’ll open it to the floor. Feel free to fill the comments with your own grammar pet peeves; alternatively to pick apart any mistakes I’ve made in this post.

Hat Tip: Kevin Drum

I suppose it will sit on his mantle next to his Nobel — of which he’s equally deserving.

Atlanta:

A 45-year-old woman, charged with ending a domestic dispute by killing her 26-year-old husband of five days, is a registered lobbyist for a group fighting domestic violence.

Watch out for those cougars, gentlemen. They may seem exotic and human-friendly in the wild, but once they have you in captivity you become their toy — and they play rough.

Hat Tip: QandO