Tag Archives: Josh Marshall

So, What Happened Over The Weekend?

Ed Morrissey:

NBC has a fairly comprehensive report on the American attack on Libyan forces this morning, complete with totals thus far on cruise missiles (114 of them) and attacks by stealth bombers on air-defense systems, with 20 of those targeted. Military airstrips around the country have been bombed as well, up to 40 of them. Libya claims that 48 people have died as a result of those attacks, and Moammar Gaddafi gave the usual warning to the Muslim world that this was the start of a “crusader war” against an Arab nation. One piece of news might raise eyebrows — the US has sent fighter jets from Sicily to attack Gaddafi’s ground forces around Benghazi

That would seem to go beyond the UN mandate for a no-fly zone. The Pentagon tells NBC that their interpretation of the mandate is that they need to protect civilians, an interpretation that would leave practically no option off the table. Even without considering a ground invasion, it could mean that the US could attack Tripoli or practically any target they wish from the air or through off-shore cruise missiles. As Jim Miklaszewski reports, it looks as though the intent now is to utterly destroy Gaddafi’s army in an attempt to force him into retreat.

Not for nothing, but wasn’t that more or less our strategy in Iraq in 1990? We had a lot more firepower on target in that case, and it still took a ground invasion to eject Saddam Hussein from Kuwait — and that wasn’t his own territory, either. Had we done this four weeks ago, we could have protected a status quo, de facto liberation of Benghazi and other areas of Libya. Now, the Libyan position is so advanced that Gaddafi can likely abandon his armor in the city and reduce the rebels to destruction. It will just take a little longer. The time to stop Gaddafi from seizing Benghazi and stomping out the rebellion was when Gaddafi was bottled up in Tripoli.

Marc Lynch at Foreign Policy:

President Obama’s decision to join an international military intervention in Libya has met with a largely negative response in the United States across the political spectrum. Critics correctly point to a wide range of problems with the intervention: the absence of any clear planning for what comes after Qaddafi or for what might happen if there is an extended stalemate, doubts about the opposition, the White House’s ignoring of Congress and limited explanations to the American public, the selectivity bias in going to war for Libya while ignoring Bahrain and Yemen, the distraction from other urgent issues.  I have laid out my own reservations about the intervention here and here.

This emerging consensus misses some extremely important context, however. Libya matters to the United States not for its oil or intrinsic importance, but because it has been a key part of the rapidly evolving transformation of the Arab world.  For Arab protestors and regimes alike, Gaddafi’s bloody response to the emerging Libyan protest movement had become a litmus test for the future of the Arab revolution.  If Gaddafi succeeded in snuffing out the challenge by force without a meaningful response from the United States, Europe and the international community then that would have been interpreted as a green light for all other leaders to employ similar tactics. The strong international response, first with the tough targeted sanctions package brokered by the United States at the United Nations and now with the military intervention, has the potential to restrain those regimes from unleashing the hounds of war and to encourage the energized citizenry of the region to redouble their efforts to bring about change. This regional context may not be enough to justify the Libya intervention, but I believe it is essential for understanding the logic and stakes of the intervention by the U.S. and its allies.

Libya’s degeneration from protest movement into civil war has been at the center of the Arab public sphere for the last month. It is not an invention of the Obama administration, David Cameron or Nikolas Sarkozy.  Al-Jazeera has been covering events in Libya extremely closely, even before it tragically lost one of its veteran cameramen to Qaddafi’s forces, and has placed it at the center of the evolving narrative of Arab uprisings.  Over the last month I have heard personally or read comments from an enormous number of Arab activists and protest organizers and intellectuals from across the region that events in Libya would directly affect their own willingness to challenge their regimes. The centrality of Libya to the Arab transformation undermines arguments  that Libya is not particularly important to the U.S. (it is, because it affects the entire region) or that Libya doesn’t matter more than, say, Cote D’Ivoire (which is also horrible but lacks the broader regional impact).

The centrality of Libya to the Arab public sphere and to al-Jazeera carries a less attractive underside, though.  The focus on Libya has gone hand in hand with al-Jazeera’s relative inattention to next-door Bahrain, where a GCC/Saudi  intervention has helped to brutally beat back a protest movement and tried to cast it as a sectarian, Iranian conspiracy rather than as part of the narrative of Arab popular uprisings.  It has also distracted attention from Yemen, where rolling protests and mass government defections might finally today be bringing down the Ali Abdullah Saleh regime. The TV cameras have also largely moved on from the urgent issues surrounding the ongoing transitions in Tunisia and Egypt. Cynics might argue that the GCC and Arab League have been willing to support the intervention in Libya for precisely that reason, to keep the West distracted from their own depradations.

Finally, as I warned last week, Arab support for an intervention against Qaddafi to protect the Libyan people rapidly begins to fray when the action includes Western bombing of an Arab country. It should surprise nobody that the bombing campaign has triggered anger among a significant portion of the Arab public, which is still powerfully shaped by the Iraq war and aggrieved by perceived double standards (one of the most common lines in Arab debates right now is “where was the No Fly Zone over Gaza?”).  Amr Moussa’s flip-flopping on the Arab League’s stance towards the intervention should be seen as part of that tension between the desire to help the Libyan people and continuing suspicion of Western motives.  Skeptical voices matter too —  ignoring or ridiculing influential or representative voices simply because their message is unpalatable is a mistake too often made in this part of the world.

Amy Davidson at The New Yorker:

What are we doing in Libya? “Helping” is not a sufficient answer. President Obama said that, if we didn’t act, “many thousands could die…. The calls of the Libyan people for help would go unanswered.” But that is a motive, a desire—not a plan. Obama also said that America wouldn’t be leading operation Odyssey Dawn, just helping: our allies, particularly the French and British, had this one, and the Arab League would help by cheering. By Sunday, though, there was division in the Arab League, and there was something iffy to start with about making Nicolas Sarkozy the point man on anything. (One of the many, many things I wish I understood was what role French elections played in all of this.) Could Congress and the American people have maybe helped the Obama Administration think this one through?

Members of the Administration, including Tom Donilon, the national-security adviser, and Robert Gates, the Secretary of Defense, keep repeating the phrase “days, not weeks.” But what they are referring to is not the length of the operation but of America’s “leadership” of it. Who will take over? There is more clarity on that point than on the question of who will take over Libya if Qaddafi leaves, but that’s a pretty low bar: as Philip Gourevitch points out in his pointed summary of the questions attending this operation, we have no idea. Hillary Clinton talked about people around Qaddafi deciding to do something—the eternal desire for the convenient coup. Do we care who the plotters are?

Another thing that more people perhaps should have been clear about was the extent of Odyssey Dawn. The Times spoke of discomfort at how it had gone beyond a “simple ‘no-fly zone.’ ” But, despite the blank, pristine quality of the term, imposing a no-fly zone is not a simple, or clean and bloodless, thing, as if one simply turned a switch and the air cleared out. Pentagon spokesmen talked about hitting anti-aircraft installations, aviation centers, and “communication nodes.” Empty skies require rubble on the ground.

Lexington at The Economist:

For what it is worth, I welcome the fact that the world at last seems willing to exercise its so-called “duty to protect” people at risk from their own governments. The failures to do so in Rwanda and Darfur and so many other charnel houses is a blot on its conscience that will never be erased. But there is no escaping the fact that this new entanglement was decided upon behind closed doors at the UN and with very little public debate here in the United States. None of this will matter if the end comes quickly. But if things go wrong and America is drawn deeper in, the domestic consequences for the president could be far-reaching.

Tim Carney at The Washington Examiner:

At once presumptuous and flippant, President Obama used a Saturday audio recording from Brazil to inform Americans he had authorized a third war — a war in which America’s role is unclear and the stated objectives are muddled.

Setting aside the wisdom of the intervention, Obama’s entry into Libya’s civil war is troubling on at least five counts. First is the legal and constitutional question. Second is the manner of Obama’s announcement. Third is the complete disregard for public opinion and lack of debate. Fourth is the unclear role the United States will play in this coalition. Fifth is the lack of a clear endgame. Compounding all these problems is the lack of trust created by Obama’s record of deception.

“Today, I authorized the armed forces of the United States to begin a limited military action in Libya,” the president said. For him it was self-evident he had such authority. He gave no hint he would seek even ex post facto congressional approval. In fact, he never once mentioned Congress.

Since World War II, the executive branch has steadily grabbed more war powers, and Congress has supinely acquiesced. Truman, Johnson, Reagan, Clinton and Bush all fought wars without a formal declaration, but at least Bush used force only after Congress authorized it.

And, once more, the president’s actions belie his words on the campaign trail. In late 2007, candidate Obama told the Boston Globe, “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

There is no claim that Moammar Gadhafi poses a threat to the United States. But asking President Obama to explain his change of heart would be a fruitless exercise. This is a president who has repeatedly shredded the clear meaning of words in order to deny breaking promises he has clearly broken — consider his continued blatant falsehoods on tax increases and his hiring of lobbyists.

James Fallows:

Count me among those very skeptical of how this commitment was made and where it might lead.

How it was made: it cannot reassure anyone who cares about America’s viability as a republic that it is entering another war with essentially zero Congressional consultation or “buy-in,” and with very little serious debate outside the Executive Branch itself. And there the debate was, apparently, mostly about changing the President’s own mind. I recognize that there are times when national safety requires an Administration to respond quickly, without enduring the posturing and institutionalized dysfunction that is the modern Congress. Without going through all the arguments, I assert that this is not such a moment. To be more precise: the Administration has not made the public case that the humanitarian and strategic stakes in Libya are so unique as to compel intervention there (even as part of a coalition), versus the many other injustices and tragedies we deplore but do not go to war to prevent. I can think of several examples in my current part of the world.

I didn’t like the “shut up and leave it to us” mode of foreign policy when carried out by people I generally disagreed with, in the Bush-Cheney era. I don’t like it when it’s carried out by people I generally agree with, in this Administration.

Where it might lead: The most predictable failure in modern American military policy has been the reluctance to ask, And what happens then? We invade Iraq to push Saddam Hussein from power. Good. What happens then? Obama increases our commitment in Afghanistan and says that “success” depends on the formation of a legitimate, honest Afghan government on a certain timetable. The deadline passes. What happens then? One reason why Pentagon officials, as opposed to many politicians, have generally been cool to the idea of “preventive” strikes against Iran’s nuclear facilities is that many have gone through the exercise of asking, What happens then?

Launching air strikes is the easiest, most exciting, and most dependably successful stage of a modern war, from the US / Western perspective. TV coverage is wall-to-wall and awestruck. The tech advantages are all on our side. Few Americans, or none at all, are hurt. It takes a while to see who is hurt on the ground.

But after this spectacular first stage of air war, what happens then? If the airstrikes persuade Qaddafi and his forces just to quit, great! But what if they don’t? What happens when a bomb lands in the “wrong” place? As one inevitably will. When Arab League supporters of the effort see emerging “flaws” and “abuses” in its execution? As they will. When the fighting goes on and the casualties mount up and a commitment meant to be “days, not weeks” cannot “decently” be abandoned, after mere days, with so many lives newly at stake? When the French, the Brits, and other allies reach the end of their military resources — or their domestic support — and more of the work naturally shifts to the country with more weapons than the rest of the world combined?  I usually do not agree with Peggy Noonan, but I think she is exactly right in her recent warning* about how much easier it is to get into a war than ever to get out. I agree more often with Andrew Sullivan, and I share his frequently expressed recent hopes that this goes well but cautions about why it might not. (Jeffrey Goldberg has asked a set of similar questions, here.)

Josh Marshall at Talking Points Memo:

So let’s review: No clear national or even humanitarian interest for military intervention. Intervening well past the point where our intervention can have a decisive effect. And finally, intervening under circumstances in which the reviled autocrat seems to hold the strategic initiative against us. This all strikes me as a very bad footing to go in on.

And this doesn’t even get us to this being the third concurrent war in a Muslim nation and the second in an Arab one. Or the fact that the controversial baggage from those two wars we carry into this one, taking ownership of it, introducing a layer of ‘The West versus lands of Islam’ drama to this basically domestic situation and giving Qaddafi himself or perhaps one of his sons the ability to actually start mobilization some public or international opinion against us.

I can imagine many of the criticisms of the points I’ve made. And listening to them I think I’d find myself agreeing in general with a lot of it. But it strikes me as a mess, poorly conceived, ginned up by folks with their own weird agendas, carried out at a point well past the point that it was going to accomplish anything. Just all really bad.

Spencer Ackerman at Danger Room at Wired:

As the United Nations-sanctioned war against Libya moves into its third day, no U.S., French or British aircraft have been shot down by Libyan air defenses. Part of the credit should go to the Navy’s new jammer, which is making its combat debut in Operation Odyssey Dawn. But the jammer isn’t just fritzing Moammar Gadhafi’s missiles, it’s going after his tanks.

Vice Adm. Bill Gortney told the media on Sunday that the EA-18G Growler, a Boeing production, provided electronic warfare support to the coalition’s attacks on Libya. That’s the first combat mission for the Growler, which will replace the Navy’s Prowler jamming fleet. Only Gortney added a twist: not only did the Growler go after Libya’s surface-to-air missiles, it helped the coalition conduct air strikes on loyalist ground forces going after rebel strongholds.

According to Gortney, coalition air strikes “halted” the march of pro-Gadhafi troops 10 miles south of Benghazi, thanks to French, British and U.S. planes — including the Marine Corps’ Harrier jump jet — thanks in part to Growler support. There’s no word yet on whether the Growler’s jamming functions disrupted any missiles that the pro-Gadhafi forces carried, or fried any communications the Libyan loyalists attempted to make back to their command. But Robert Wall of Aviation Week notes that the continued “risk from pop-up surface to air missile firings” prompts the need for Growlers above Libya.

And expect the Growler to keep up the pressure. The Pentagon plans to transfer control of Odyssey Dawn from Gen. Carter Ham and U.S. Africa Command to an as yet undetermined multinational command entity — at which point, the U.S. is expected to take a backseat in combat missions. But it’ll continue to contribute “unique capabilities” to the Libya mission. Namely, Gortney specified, “specialty electronic airplanes” such as the Growler. (And refueling tankers, spy planes, cargo haulers and command n’ control aircraft.) No wonder Defense Secretary Robert Gates hearts it so much.

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Filed under Africa, Global Hot Spots

The Word From Madison, Wisconsin

Alex Altman at Swampland at Time:

Thousands of Wisconsin’s union workers and supporters crowded into the state capitol in Madison for a second day to protest a bill that would strip key collective-bargaining rights from public employees. The measure, introduced last Friday by new Republican Governor Scott Walker, would take away public-worker unions’ ability to negotiate pensions, working conditions and benefits. State and local workers would have to foot more of the cost for their pensions–around 5.8 %–and more than twice that percentage of their health-care costs. Nearly all public workers–the bill exempts police, firefighters and state troopers–would be able to bargain only for salary, and any wage increases would be tied to the Consumer Price Index. (Raises beyond that capped figure would require a special referendum.) With Republicans now in control of the state legislature after November’s electoral victory, the measure is expected to pass as early as tomorrow. You can read the statehouse’s summary of the bill here.

There’s no question Wisconsin has a deficit problem. The state has a short-term budget shortfall of $137 million, and over the next two years the deficit balloons to more than $3.6 billion. Walker says the “budget repair bill” would save some $30 million this fiscal year, which ends June 30, and $300 million during the following two. “I’m just trying to balance my budget,” Walker told the New York Times. “To those who say why didn’t I negotiate on this? I don’t have anything to negotiate with. We don’t have anything to give. Like practically every other state in the country, we’re broke. And it’s time to pay up.” He says the measure will help avoid up to 6,000 layoffs.

The measure has infuriated the state’s 175,000 public-sector employees, who say they’re being scapegoated by a governor whose party has no love for unions.Other newly installed Republican governors, from Florida’s Rick Scott to Ohio’s John Kasich, have zeroed in on cutting state-employee rolls and rights as a way to close sagging budget gaps. But Walker’s plan, which guts entrenched rights, is perhaps the most dramatic. “It is up to us to fight for the right of workers to have a collective voice on the job,” said Wisconsin AFL-CIO president Phil Neuenfeldt. “This proposal is too extreme.”

David Vines at Huffington Post:
For the last two days, protestors have been marching on the Wisconsin State Capitol, protesting Governor Scott Walker’s new union-busting budget proposal. Last night, a public forum was held and protesters got a chance to speak inside the Capitol to let their voices be heard. As of early Wednesday morning, citizens are still speaking to the Joint Finance Committee in the Capitol.

Scroll Down For Latest Updates.

*All times are Central Standard Time

Tuesday, February 15, 10:42 PM: Thousands of demonstrators are inside the Capitol, demanding a chance to speak in an open forum. Officials have been allowing citizens to sign up on a list, but are debating closing down the list due to overcrowding and public safety reasons. Video here.

11:20 PM: I conducted interviews with three members of the University of Wisconsin community, which can all be seen below.

“I’m worried about the future,” Jason Kempe, a Spanish teaching assistant, told me. “I don’t have a problem with losing, but I do have a problem with abolishing the ability to negotiate,” he said. Watch the full interview here.

Then I spoke with Chris McKim, a recent UW graduate who recently spent time abroad in Nepal. “Where I was living in Nepal, they are coming out of 15 years of civil war over very basic human rights, one of them the right to peacefully assemble and collectively bargain in unions,” McKim said. “To see something like that stripped from us here at home, it’s horrifying.” Watch the full interview here.

“We want our professors to be the best and we want our TA’s to be the best,” said Meghan Ford, an undergraduate student at the University of Wisconsin. “They work extremely hard and to take away their pay like this is a basic violation of human rights, not just worker’s rights.” Watch the full interview here.

Wednesday, February 16, 12:22 AM: It’s past midnight here but the crowd has not thinned out much.

I just talked to Leif Brottem, a sixth-year PHD student and research assistant at UW-Madison. “Taking away health insurance and taking away bargaining rights of the union really… it’s going to negatively effect the university’s ability to attract students which are the lifeblood of the university.” Watch the full interview here.

Then, I interviewed Zachary DeQuattro, a TAA member and Zoology teaching assistant at UW-Madison. “I’m here tonight in support of my wife whose a Madison school teacher, and in support of myself and other graduate students,” DeQuattro told me. He said of the proposed bill, “It’s really the start of losing the whole union setup. The union will be eaten up trying to re-certify every year and it’s just a real shame.” Watch the full interview here.

12:51 AM: Just got word from a student upstairs that this hearing will likely go on all night. The Republicans may leave at 2:00 when they initially anticipated the forum to end, but I’m hearing that this will go on all night.

2:00 AM: It is officially 2:00 AM and the forum is still going strong. I’m with a few hundred people in the atrium of the building, some of whom are fast asleep.

2:02 AM: All of the lights went off for about 10 seconds, which was met with cheers from some of the people gathered here, but they were promptly turned back on. “Maybe someone just leaned on the light switch,” a friend of mine joked.

Choire Sicha at The Awl:

Just in case you’re busy tracking unrest in Bahrain or elsewhere around the globe, you should also know that Wisconsin’s capitol is still actually totally occupied, due to its governor being an enemy of working people everywhere. Live coverage here and here.

Josh Marshall at Talking Points Memo:

Over the last few days we’ve had a growing number of emails from readers saying what’s happening now in Wisconsin is important and we should be on it. As you can see from our current feature, we agree. And we are on it. So I wanted to take a moment to explain just why I think this is so important.

On one level, this is just a meaty news story. The newly-inaugurated right-wing Governor of Wisconsin is using the state’s budget crisis to drastically change the rights of union organizing in the state. He’s even added the weird and bizarre touch of proactively hinting that he might call out the state National Guard to calm any labor unrest. The key point is that Gov. Walker is going well beyond cross-government retrenchment to making wholesale changes to rights to collective bargaining. In response, labor and its progressive allies are mobilizing in a huge way to counter the effort. [Click here to see our slideshow of what’s happening on the ground in the state capitol today.] The Governor excludes police and firefighters from the changes to the labor laws. But at least the firefighters in the state seem to be standing with other public sector union members in what’s turning into a huge public battle.

That in itself would make it a story we’d want to be all over. But it’s quite a bit more than that. Whichever side of the policy issue you’re on, I think the outcome of this situation is going to have ramifications across the country. Republicans came out of the 2010 election pumped up and feeling that they had a huge mandate to fundamentally change government in this country. I don’t think the elections really told us that at all. But these things are decided by results post-election not by analysis of the election returns. And that’s what’s being determined right now.

Ann Althouse:

I said imagine how Democrats would react if Tea Partiers had a demonstration like that — replete with misspelled signs and signs depicting a Democratic Party politician as Hitler or with his head in a noose.

The fact is that the Republicans decisively won the governorship and both houses of the state legislature — probably with next to no votes from the people who came to the demonstration. If you’re asking — like Shilling — for the Republican legislators to listen to democracy, they should look at the last election, the people all over the state who voted for them and, presumably, for fiscal responsibility and shared sacrifice.

The people around the state were probably at their jobs yesterday, not able to travel here, into the heart of the state’s liberal politics, to do a counter-demonstration and show their numbers (the numbers recorded last October at the polls). Did the demonstrators — many of whom were teachers — try to speak to those people or did they mostly look inward, at each other, pumping up their own resolve?

What are the people around the state supposed to think of them — teachers who have pretty nice jobs and who decided they could go somewhere else for the day instead? What did those teachers teach? I didn’t notice any of them trying to speak to the people of the state, trying to win anyone over. In fact, there were chants — simple, repeated words that don’t try to explain and persuade — and ugly signs full of name-calling and violence. There were plenty of nice people too and gentle signs, but the nice to ugly ratio was worse than at the Tea Party rallies I’ve seen, and Democrats aimed such contempt at the Tea Partiers. Why should the Tea Party-type people of the state be impressed by the other side’s crowds?

Eric Lach at Talking Points Memo:

Speaking on Morning Joe Thursday morning, Rep. Paul Ryan (R-WI) compared the current situation in Wisconsin, where Gov. Scott Walker (R) has inspired days of protests by proposing a budget that would remove key bargaining powers for public employee unions, to the recent unrest in Egypt that toppled the 30-year authoritarian rule of Hosni Mubarak, saying it’s “like Cairo has moved to Madison these days.”

Host Mika Brzezinski asked Ryan what he made of the protests and Walker’s “stand.”

“He is basically saying, state workers, which have extremely generous benefit packages relative to their private sector counterparts, they contribute next to nothing to their pensions, very, very little in their health care packages,” Ryan responded “He’s asking that they contribute about 12% for their health care premiums, which is about half of the private sector average, and about 5.6% to their pensions. It’s not asking a lot, it’s still about half of what private sector pensions do and health care packages do. So he’s basically saying, I want you public workers to pay half of what our private sector counterparts are, and he’s getting, you know, riots. It’s like Cairo has moved to Madison these days. It’s just, all of this demonstration. It’s fine, people should be able to express their way, but we’ve got to get this deficit and debt under control in Madison, if we want to have a good business climate and job creation in Wisconsin.”

Ryan then seemed to compare what’s happening in his state to anti-austerity protests that took place in Europe last year.

Ben Smith at Politico:

The Democratic National Committee’s Organizing for America arm — the remnant of the 2008 Obama campaign — is playing an active role in organizing protests against Wisconsin Governor Scott Walker’s attempt to strip most public employees of collective bargaining rights.

OfA, as the campaign group is known, has been criticized at times for staying out of local issues like same-sex marraige, but it’s riding to the aide of the public sector unions who hoping to persuade some Republican legislators to oppose Walker’s plan. And while Obama may have his difference with teachers unions, OfA’s engagement with the fight — and Obama’s own clear stance against Walker — mean that he’s remaining loyal to key Democratic Party allies at what is, for them, a very dangerous moment.

OfA Wisconsin’s field efforts include filling buses and building turnout for the rallies this week in Madison, organizing 15 rapid response phone banks urging supporters to call their state legislators, and working on planning and producing rallies, a Democratic Party official in Washington said.

The @OFA_WI twitter account has published 54 tweets promoting the rallies, which the group has also plugged on its blog.

“At a time when most folks are still struggling to get back on their feet, Gov. Walker has asked the state legislature to strip public employees of their collective bargaining rights. Under his plan, park rangers, teachers, and prison guards would no longer be able to fight back if the new Republican majority tries to slash their health benefits or pensions,” OfA Wisconsin State Director Dan Grandone wrote supporters in an email. “But that’s not even the most shocking part: The governor has also put the state National Guard on alert in case of ‘labor unrest.’ We can’t — and won’t — let Scott Walker’s heavy-handed tactics scare us. This Tuesday and Wednesday, February 15th and 16th, volunteers will be attending rallies at the state

Wis Politics:

In protest of the budget repair bill that will strip public union workers of almost all of their collective bargaining rights, Senate Democrats have walked away from a floor session.

Senate Majority Leader Scott Fitzgerald said Dems are refusing to come to the floor to debate and vote on the bill.

Fitzgerald said at some point, if needed, Republicans will use the State Patrol to round up Democrats to bring them to the floor. The bill passed the Joint Finance Committee on a partisan 12-4 vote Wednesday night and was due to be taken up by the Senate today.

During last night’s debate on the repair bill, Republicans on the JFC amended the bill to remove a provision stripping pension and health benefits from limited term employees.

The GOP amendment will also mandate local governments offer civil service protections to public employees similar to those state employees receive. Democrats on the committee, unsatisfied with what they felt were insignificant changes, voted against the amendment.

“We have to continue to fight,” Rep. Tamara Grigsby, D-Milwaukee, said. “This is one battle in the war.”

Republican leaders expected it to pass through the Legislature unchanged except for the amendment added in the JFC.

A few audience members broke down in tears as the committee moved toward a vote.

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Filed under Economics, Legislation Pending

This Story You Will Be Talking About Tomorrow

Mark Joyella at Mediaite:

Sources tell Mediaite Keith Olbermann and MSNBC were headed for a breakup long before Comcast’s rise to power, but clearly something set the divorce into motion quickly today, with network promos set to run touting Olbermann’s role in MSNBC’s coverage of next week’s State of the Union address–and, notably, a Keith Olbermann promo running on MSNBC in the hour after the host signed off and left the network.

MSNBC executives have long planned for the day the network’s star might be sent packing, and the rise of Rachel Maddow at MSNBC–along with the grooming of Lawrence O’Donnell as a potential replacement for Olbermann–appears to have hastened the host’s departure.

While Olbermann and his iconic Countdown have been immensely important in the resurgence of MSNBC, Olbermann’s friction with management has been a sticking point. At many points–including the recent suspension over political contributions–tensions rose so high as to lead to serious discussions inside MSNBC about firing their star.

With Maddow enjoying both immense popularity inside MSNBC and very strong ratings for her Rachel Maddow Show, Olbermann’s invincibility as the heart and soul of MSNBC’s brand became softer. In recent weeks, sources tell Mediaite there have been meetings on the topic of Keith Olbermann and his future at the network. Did Comcast–as many Countdown viewers seem to suspect–order Olbermann out? It appears that the end of the Olbermann era at MSNBC was not “ordered” by Comcast, nor was it a move to tone down the network’s politics. Instead, sources inside the network say it came down to the more mundane world of office politics–Olbermann was a difficult employee, who clashed with bosses, colleagues and underlings alike, and with the Comcast-related departure of Jeff Zucker, and the rise of Maddow and O’Donnell, the landscape shifted, making an Olbermann exit suddenly seem well-timed.

Howard Kurtz at Daily Beast:

Whatever his excesses, he led third-place MSNBC out of the cable wilderness to the point where it overtook CNN in prime time, boosted not only by his numbers but by those of his protégé, Rachel Maddow.

Without question, he was a polarizing presence, and several NBC veterans, including Tom Brokaw, complained to network management that he was damaging MSNBC’s reputation for independence.

At a meeting with Olbermann’s representatives last September, NBC Chief Executive Jeff Zucker and NBC News President Steve Capus said that some of their client’s behavior was unacceptable and had to stop. Griffin said that Olbermann’s personal problems were affecting his work and he looked angrier on the air, eclipsing the smart and ironic anchor they had once loved.

In November, when Griffin suspended Olbermann indefinitely over the political donations, the two sides engaged in blistering negotiations over how long it would last. Olbermann’s manager, Price, warned Griffin that if the matter wasn’t resolved quickly, Olbermann would take his complaints public by accepting invitations from Good Morning America, David Letterman, and Larry King.

“If you go on GMA, I will fire Keith,” Griffin shot back.

The suspension wound up lasting just two days, and Olbermann said he was sorry for the “unnecessary drama” and “for having mistakenly violated an inconsistently applied rule” in making the $7,200 in contributions. But after years of internal warfare, Olbermann had no major allies left at 30 Rock.

There were similar backstage struggles in 2008 and 2009 when top executives tried to get Olbermann and O’Reilly to tone down their personal attacks. O’Reilly, who never mentions Olbermann by name, was assailing NBC’s parent company, General Electric, while Olbermann once imagined the fate of “a poor kid” born to a transgendered man who became pregnant, adding: “Kind of like life at home for Bill’s kids.”

Josh Marshall at Talking Points Memo:

I was just on in the opening segment of Olbermann tonight. And I get home and get this press release from NBC saying this was the last episode of Countdown. At first I figured it had to be a spoof email because, jeez, I was on and I didn’t have any sense that any other than a regular Friday evening show was on. But sure enough I pulled up the recording and now I’m watching his final sign off.

I doubt I would have had any heads up or known anything was happening if Olbermann was going to go off the air. But I was a bit more stunned than I might otherwise have been because I was just over there. And I did not have any sense that there was anything any different than normal going on. Everything seemed calm and pretty sedate. I didn’t sense anything different in Keith’s manner or affect (though it’s not like we’re tight and I would have been the person to notice.) There were a few more people than I’m used to seeing in the studio — maybe two or three, seated, who seemed to be there to watch. (Something I don’t remember seeing before.) But nothing that made me think twice that anything odd was going on.

I’m sure we’ll be hearing soon enough what on earth happened here. But color me stunned. And really disappointed.

Joe Klein at Swampland at Time:

Keith Olbermann and I started from the same place, the same school, the same English teacher–Arthur Naething–who changed our lives. I’ve always had a soft spot for Keith as a result, even when he called me one of the worst people in the world (based on a wildly inaccurate interpretation of something I’d written). I’ve criticized him, too, for his melodramatically over-the-top effusions. I’m not so sure what this dispute with MSNBC is all about, but I’m sad that Keith won’t be around (at least, for a while). If there is a place for the nonsense-spew of Fox News, there has to be a place on my cable dial for Olbermann (who, while occasionally obnoxious, operates from a base of reality–unlike some people we know [see below]). Keith is a brilliant writer, and presenter; I always enjoy watching him, even when he’s occasionally wrong. I hope I’ll have the opportunity to do so again soon. In the meantime, I hope he’ll heed the words of the master and “Go forth, and spread beauty and light.”

On another decidedly hilarious front, Glenn Beck has found yet another enemy of the people in a 78-year-old Columbia University professor named Frances Fox Piven. I’ve always thought that Piven’s work was foolish and inhumane. There was a brief, disastrous time in the 1960s when her desire to flood the welfare system with new recipients was the tacit policy of the city of New York, which produced absolutely terrible results–as Daniel Patrick Moynihan predicted–in the 1970s and 1980s. I also remember Piven railing against a brilliantly successful welfare-to-work program called “America Works” because it was for-profit, even though the company only was paid by the government if the recipient remained on the job for six months (and even though the ability to do honorable work gave the women involved new-found confidence, according to study after study of the results). But the notion that Piven’s ideas had any widespread influence, or are even worth commenting on 45 years later, is beyond absurd; it is another case of Beck’s show-paranoid perversity. It seems academic and sophisticated, to those who don’t know any better: Glenn’s soooo erudite, he’s found a secret part of The Plan to turn America into a socialist gulag, hatched by a college professor. The reality is that he’s focused onto an obscure form of left-liberalism that was found wanting a long time ago, as the sociological results of Aid to Families with Dependent Children became known, and better ways to help the poor were developed.

Beck’s essential sin is a matter of proportionality. He has, as ever, latched onto an obscurity, blown it out of proportion–as he did with Van Jones’ stupid but essentially harmless comments about communism–and turned it into a lie. He is an extraordinary liar, on matters large and small, as I’ve learned from personal experience with the man. That Beck remains on the air and Keith Olbermann–unpleasant and extreme at times, but no fantasist–isn’t anymore is a travesty.

What of Olbermann’s legacy? There’s a great deal of crowing on the right about Olbermann’s apparent ouster. But let’s be clear on what he accomplished: He helped clear a huge space on the airwaves for “unapologetic liberalism,” as Steve Benen puts it, when it remained anything but certain that such a space could be created with any measure of success.

The unexpected popularity of Olbermann’s show early on cleared the way for MSNBC to stack its nighttime lineup with pugnacious lefty hosts. Indeed, it was Olbermann who invited Rachel Maddow on repeatedly as a guest, raising her profile to the point where she got her own show. Olbermann, followed by Maddow, proved in the face of enormous skepticism that there’s a huge audience out there for real liberal talk-show hosts to adopt the sort of take-no-prisoners approach once monopolized by the right. Only they accomplished this without descending into the crackpot conspiracy mongering and all-around ugliness of Rush Limbaugh and Glenn Beck.

Indeed, there’s already talk that CNN might be interested in picking up Olbermann. While that seems unlikely, given CNN’s more staid air, the mere fact that it’s being discussed at all shows how much he helped change the landscape.

Olbermann may be gone, but the space he did so much to help create is here to stay.

Joe Coscarelli at Village Voice:

Though it’s as of yet impossible to answer the question “Why?” in regards to Olbermann’s dismissal, what is on the record is how trying he was to manage. Back in October, there was Gabriel Sherman’s account in New York of the cable news wars with tidbits like this:

But Olbermann can take his eccentricities to extremes. There’s a story that he told his producers to communicate with him by leaving notes in a small box positioned outside his office. Last spring, after David Shuster tweeted that he was guest-hosting Countdown while Olbermann was out sick, Olbermann erupted when a blog mentioned Shuster’s tweet and he fired off an e-mail to him saying, “Don’t ever talk about me and medical issues again.” Olbermann’s executive producer later told Shuster that there’s a rule against mentioning Olbermann on Twitter.

And more of the same in the Times today:

Mr. Olbermann was within one move of being fired in November after he was suspended for making donations to Democratic Congressional candidates. He threatened to make an appearance on ABC’s “Good Morning America” to protest the suspension; Mr. Zucker was prepared to fire him on the spot if he did, according to a senior NBC Universal executive who declined to be identified in discussing confidential deliberations.

Many questions remains, but if he’s not in the mood for a vacation, Olbermann does have options, namely radio or the internet. So he should join us and he needn’t worry — here, everyone is an asshole.

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From The Home Office In Yazoo…

Andrew Ferguson at The Weekly Standard:

Both Mr. Mott and Mr. Kelly had told me that Yazoo City was perhaps the only municipality in Mississippi that managed to integrate the schools without violence. I asked Haley Barbour why he thought that was so.

“Because the business community wouldn’t stand for it,” he said. “You heard of the Citizens Councils? Up north they think it was like the KKK. Where I come from it was an organization of town leaders. In Yazoo City they passed a resolution that said anybody who started a chapter of the Klan would get their ass run out of town. If you had a job, you’d lose it. If you had a store, they’d see nobody shopped there. We didn’t have a problem with the Klan in Yazoo City.”

In interviews Barbour doesn’t have much to say about growing up in the midst of the civil rights revolution. “I just don’t remember it as being that bad,” he said. “I remember Martin Luther King came to town, in ’62. He spoke out at the old fairground and it was full of people, black and white.”

Did you go? I asked.

“Sure, I was there with some of my friends.”

I asked him why he went out.

“We wanted to hear him speak.”

I asked what King had said that day.

“I don’t really remember. The truth is, we couldn’t hear very well. We were sort of out there on the periphery. We just sat on our cars, watching the girls, talking, doing what boys do. We paid more attention to the girls than to King.”

Matthew Yglesias:

Fortunately, it’s actually possible to look at the archives of the Citizens Council newspaper published right in Mississippi. Here’s a selection:

The Citizens’ Councils were, right in the state of Mississippi where Barbour is from, the respectable face of white supremacist political activism. Here’s an example from the Association of Citizens’ Councils pamphlet: “Why Does Your Community Need a Citizens’ Council?”

Maybe your community has had no racial problems! This may be true; however, you may not have a fire, yet you maintain a fire department. You can depend on one thing: The NAACP (National Association for the Agitation of Colored People), aided by alien influences, bloc vote seeking politicians and left-wing do-gooders, will see that you have a problem in the near future.

The Citizens’ Council is the South’s answer to the mongrelizers. We will not be integrated. We are proud of our white blood and our white heritage of sixty centuries.

Haley Barbour gives these people credit for keeping things calm!

From 1956, David Halberstam at Commentary:

In march of this year Congressman John Bell William told a Greenville, Mississippi, White Citizens Council, “I’d gladly trade all the Negroes in the country for my few good nigger friends.” Williams is no political scientist—he flunked out of the University of Mississippi law school in near record time—but on this occasion he did, if inadvertently, define the nature of the Citizens Council movement. Pull aside the curtain of States’ Rights and you find, more prominent than anything else, this desire to trade coat-and-tie Negroes for barefoot ones.

The White Citizens Councils, a loosely connected series of local groups which have arisen throughout the South in protest against the Supreme Court’s May 17, 1954 desegregation decision, undoubtedly constitute a very significant political phenomenon. Individually, the Councils can be either powerful or frail, at times the sincere expression of confusion and desperation, at other times the vehicle for personal frustration. But the single thread connecting all the Councils, strong and weak, is the determination not just to oppose integration in the public schools but to stop or at least postpone it. In most of the Deep South, where hostility to integration is nearly universal, it is this militancy and dedication that make the Council member stand out.

Despite occasional efforts by supporters to build the Councils up into a movement of broad conservatism, their only serious purpose is to fight the National Association for the Advancement of Colored People. Not only do they contest the NAACP’s desegregation suits, but they seek to cancel much else that the Negro has gained over the last half-century by keeping him out of the polling booth. The exact strength of the Councils is difficult to determine: in Mississippi, their cradle, 100,000 members are claimed, but sober estimates would run closer to 55,000. Yet nowhere in the Deep South is their strength to be scoffed at—it is a product of crisis and as more law suits are filed it will mount.

Josh Marshall at Talking Points Memo:

Just by way of background, in the last decade or so there’s been controversy about a group called the Council of Conservative Citizens, a successor group to Citizen’s Councils. In other words, the CCC group was an organizational attempt to cleanse the reputation of the earlier group or rather shed some of its more explicit connection to white supremacy and legal racial discrimination. But even those folks were and are so retrograde that the mainstream right would have nothing to do with them. David Keene, head of the American Conservative Union — sponsor of the annual CPAC conference — said almost a decade ago: “We kicked [them] out of CPAC because they are racists.”

So folks like Keene won’t have anything to do with the cleaned up, scrubbed down version of the group. But Barbour thinks the genuine article operating as the rearguard during the Civil Rights Era was just great.

Ace Of Spades:

There are a couple of things to chew on here.

First, both Barbour and Yglesias can be right. Based on the profile it’s clear that many people in Barbour’s home town (including his brother Jeppie, the then Mayor) held beliefs that simply were reprehensible about blacks but none the less managed to take a relatively benign course of action in integrating the community.

[…]

Were members of the Yazoo Citizens Council less than the shining examples Barbour holds them up as? Based on the examples Yglesias digs up, yeah. That’s not exactly a surprise given the time we’re talking about.

Does Barbour’s romanticized version of events fail to convey the whole picture and give some people more credit than they deserve? I’d say so. But that’s not exactly news either. The profile makes it clear these are people Barbour grew up around and admired. The fact that he cuts them slack the rest of us wouldn’t does not exactly shock me. It’s a pretty human reaction. Does this mean Barbour is a racist? Of course not. Does it mean Barbour supported segregation then or supports it now? Of course not.

So what does it prove? Nothing much as far as I can see. What it does is confirm something we already know…Democrats get a pass for their past and Republicans get nailed for the slightest variation from liberal dogma.

Obama skated by on Bill Ayers by saying he was a child when Ayers was bombing buildings and killing people. Of course Ayers past wasn’t the issue, it was his unapologetic defense of it and the wisdom of a presidential candidate associating himself with such a man in the present.

Barbour was 8 years old when the 1955 campaign to intimidate supporters of school integration Yglesias cites was conducted. What’s the relevance of that to Barbour or his memories of integration efforts in the 60’s?

If Barbour were associating with men who still believed in segregation or defended their role in opposing it back in the day (as Ayers does about his terrorist past and continued belief in violence as a political tool), I’d be the first to say he has a disqualifying problem. But that’s not the charge, is it?

Oh and if supporting segregation is disqualifying (and again no one is claiming Barbour did any such thing, then or now), then I’d like liberals to explain their on going love affair with Jimmy Carter.

As Laughlin McDonald, director of the ACLU’s Voting Project, relates in his book A Voting Rights Odyssey: Black Enfranchisement in Georgia, Carter’s board tried to stop the construction of a new “Elementary Negro School” in 1956. Local white citizens had complained that the school would be “too close” to a white school. As a result, “the children, both colored and white, would have to travel the same streets and roads in order to reach their respective schools.” The prospect of black and white children commingling on the streets on their way to school was apparently so horrible to Carter that he requested that the state school board stop construction of the black school until a new site could be found. The state board turned down Carter’s request because of “the staggering cost.” Carter and the rest of the Sumter County School Board then reassured parents at a meeting on October 5, 1956, that the board “would do everything in its power to minimize simultaneous traffic between white and colored students in route to and from school.”

It’s clear that this country still hasn’t fully dealt with the implications of the Civil Rights era or how to deal with the sides people took or didn’t take at the time. That’s only going to fully come about when the generations that lived through that era have all passed.

I get that it’s a complicated and emotional issue but I think we need some balance in how we deal with it. To simply and forever give Democrats who actively took part in it a pass, while smearing Republicans who only had tangential involvement (like a high school aged Haley Barbour) is simply unacceptable.

Now, all of that said…this is simply bad politics for Barbour. A lot of folks whose only notions of the south come from watching or reading To Kill a Mockingbird or popular history simply equate “southern” with “racism”.

The insinuation that Barbour is an apologist for racists (or worse) is a powerful one. People want to hear their own worldview reflected back at them by politicians. That’s why Obama is forced to pretend his incredibly strange childhood and background fits perfectly within the traditional American narrative. Barbour’s recollection of the south in the 60s will no doubt resonate with a lot of people who live there and know people they like and respect who did the best they could in difficult times. But for a lot of others it will sound like (pardon the phrase) whitewashing history. Personally, it strikes me as somewhere in between.

As a matter of pure politics, if Barbour does run for President (and you can tell the left is at least a little worried about that judged on the hits he’s taking today), he’s going to need to have a better spin on his take about this period in history. Because, as we see, it’s going to be brought up over and over again if he is nominated. Voters outside the south (think Ohio, Pennsylvania, Colorado, even Florida) are going to want a better narrative than, “there were some good people who stood up for integration regardless of their feelings about blacks”.

David Weigel:

Like I said, Barbour is not dumb. If he’s being a revisionist about race in Mississippi, he’s not alone, and he’s fighting back against a media standard that all conservatives hate — this idea that Southerners and conservatives can never stop atoning for Jim Crow. Why should he have to apologize for this, after all? He wasn’t in a Citizens Council. With the exception of some people, like Howell Raines — who covered Barbour’s 1986 Senate bid — how many of these reporters know what they’re talking about, anyway? And there are few things conservative voters hate more than being told they were on the wrong side of the Civil Rights movement.

Max Fisher at The Atlantic with the round-up

Jonathan Chait at TNR

Eric Kleefeld at TPM:

I just spoke with Dan Turner, the official spokesman for Gov. Haley Barbour (R-MS), who responded in strong terms to criticism of Barbour’s recent praise for the segregationist Citizens Council groups of the Civil Rights era.

“You’re trying to paint the governor as a racist,” he said. “And nothing could be further from the truth.”

[…]

So, I asked Turner, does Barbour have any comment on the Citizen Council movement’s basis in white supremacy, and its work of launching economic boycotts to cut off employment and business for African-Americans who became active for civil rights — including that notable occasion in Yazoo City?

“Gov. Barbour did not comment on the Citizens Council movement’s history,” Turner responded. “He commented on the business community in Yazoo City, Mississippi.”

I asked further about the Citizen Council movement’s white supremacist activities, such as the boycotts in Barbour’s hometown. “I’m not aware that that’s accurate,” Turner said. “I’m not aware that he [Barbour] has any statement on that. I’m aware of the statement that he made in context of how he made it.”

After being pressed further on whether Barbour’s comments about the Citizens Councils were accurate, Turner said: “I’m aware of what the governor said in this interview. I’m not gonna get into the business of trying to twist what the governor said, or to manipulate it.”

What does he mean by manipulate it, I asked?

“Your questions are very angular, let’s say that,” said Turner. “You have a very specific point that you’re trying to drive at, and you’re trying to paint the governor as a racist. And nothing could be further from the truth.”

I then responded that I was not asking about whether Barbour is a racist, but was asking about whether it is true or not that the group he praised was a racist organization?

“It was an organization in Yazoo City that was, you know, a group of the town leaders and business people,” Turner responded, then referring back to Barbour’s comment. “And they passed a resolution that said anybody who started a chapter of the Klan would get their ass run out of town. And that doesn’t sound like a racist to me. Does it to you?”

Turner then repeatedly asked me that question, whether the group in Yazoo City sounds racist from its anti-Klan policies. I responded again by asking about the same Yazoo City group that launched boycotts of African-Americans who sought civil rights.

Turner asked me a question right back. “Do you have any comment that throughout the history of America things have changed?” he said. “Do you have any comment that there were riots in Northern cities, as well as how there were problems in Southern cities?” Turner then pointed out that civil rights was an issue for the whole country, including places like Boston, and not just the South. And as he also added again, things have changed.

“Tell me what in Gov. Barbour’s past gives any indication of any racist leanings, and I’ll be glad to address the question,” said Turner. “Otherwise, it’s not a legitimate question. There’s nothing in his past that shows that. If you pick out a sentence or a paragraph out of a fairly long article and harp on it, you can manipulate it. And that sounds to me like what you’re trying to do.”

Charles Johnson at Little Green Footballs:

It’s a trivial matter to show that the Citizens’ Councils were repellent white supremacist organizations, and their current incarnation, the Council of Conservative Citizens, is every bit as bad — if no longer as powerful.

And I don’t believe Turner doesn’t know this. How could he not know? It’s as if they just can’t help themselves.

The White Citizens’ Councils usually refrained from terrorizing and murdering black people like the Klan did, because they were businessmen. A permanent underclass of low-cost, low-maintenance servants and manual laborers was very valuable to them. So instead of killing African Americans, they just denied them education and opportunities.

Unless, of course, they happened to be wearing their Klan robes — because, contrary to Barbour’s whitewashed narrative, there was a lot of crossover between the CC and the KKK.

Amanda Terkel at The Huffington Post:

After facing intense criticism Monday over his comments about civil rights and the White Citizens Council, Mississippi Gov. Haley Barbour (R) has released a follow-up statement condemning the segregationist group.

When asked why my hometown in Mississippi did not suffer the same racial violence when I was a young man that accompanied other towns’ integration efforts, I accurately said the community leadership wouldn’t tolerate it and helped prevent violence there. My point was my town rejected the Ku Klux Klan, but nobody should construe that to mean I think the town leadership were saints, either. Their vehicle, called the “Citizens Council,” is totally indefensible, as is segregation. It was a difficult and painful era for Mississippi, the rest of the country, and especially African Americans who were persecuted in that time.

 

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Filed under Political Figures, Race

Talking About The Clause… No, Not That Claus

Andrew Sullivan rounds up some of this.

Josh Marshall at Talking Points Memo:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Julian Sanchez on Marshall:

And the weird thing is, he’s right… sort of! It does seem like a surprising result, given the last century of Commerce Clause precedent, that anything plausibly describable as economic activity might be found beyond the power of Congress to micromanage. “Preposterous on its face,” even.

But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of precedents and instead just ask how far a federal power to “regulate commerce…among the several states”—especially in the context of separate and parallel powers to regulate commerce with foreign nations and Indian tribes—can plausibly be stretched. Isn’t it the idea that “regulate commerce” could entail a power to require a private individual in a single state to buy health insurance that ought to seem kind of crazy? Shouldn’t we find it more intuitively preposterous that a provision designed for tariffs and shipping rules should be the thin end of the wedge for a national health care policy?

And yet it isn’t! It’s the denial of that infinitely flexible reading that now seems strange. And that’s really strange.

Megan McArdle on Sanchez:

Obviously, I agree with Julian.  I have been reading a lot of well-meaning liberals who are befuddled by the notion that conservatives are going after the mandate, when that runs the risk of bringing on single payer.  Personally, I kind of doubt that, but this is completely beside the point.  On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?

This doesn’t seem to be a question that interests progressives; they just aren’t very excited about economic liberty beyond maybe the freedom to operate a food truck.  And so they seem genuinely bewildered by a reading of the commerce clause that narrows its scope, or an attempt to overturn the mandate even though this might lead us into a single payer system.  If you view this solely as tactical maneuvering, perhaps it really is preposterous.

And of course, for some conservatives, these operations are tactical, but for a lot, it’s an actual horror at the ever-expanding assertion of government powers.  I’d like it if they’d get equally horrified about, say, the TSA and the drug laws, but there you are: neither side is as consistently supportive of liberty as I’d like.

Radley Balko:

Next, I posed this question to Chris Hayes on Twitter, so I’ll pose to those of you who read this site who are outraged by the Hudson ruling: Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits. I mean, during her confirmation hearings, Elena Kagan couldn’t even bring herself to say that it would be unconstitutional for the federal government to force us to eat vegetables every day. (She did say it would be bad policy — but that’s a hell of a lot different.)

If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place? I suppose an alternate answer might be that the Constitution does place restrictions on the federal government, but those restrictions have become anachronistic given the size of the country, the complexity of modern society, and so on. To which my follow-up question would be, do you believe there should be any restrictions on the powers of the federal government? Let’s say, again, beyond those laid out in the Bill of Rights.

I guess to get at the meat of the disagreement, I should ask one more: Do you buy into the idea that the people delegate certain, limited powers to the government through the Constitution, or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution? It’s not an unimportant distinction. I’m not sure it’s consistent to believe that the government gets its power from the people, but the people have gone ahead and given the government the power to do whatever it wants.

I’m not trying to be cute. I’m genuinely interested in how people on the left answer these questions. Rep. Pete Stark, a liberal Democrat, said a few months ago that he believes there are no constitutional restrictions on what the Congress can do. To hear from a sitting Congressman was refreshingly honest. And terrifying.

Jonathan Chait at TNR:

The conservative argument, reflected in Republican judge Henry Hudson’s ruling against the individual mandate, is that purchasing health insurance is the ultimate individual decision, and that abridging this liberty would, in Hudson’s words, “invite unbridled exercise of federal police powers.” If the individual mandate is permissible, writes George Will, then “Congress can doanything – eat your broccoli, or else – and America no longer has a limited government.” Megan McArdle echoes, “On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?”

This is the intellectual rationale for the hysterical conservative response to the pasaage of health care reform. By this line of reasoning, the individual mandate springs from a paternalistic desire to compel individuals to engage in behavior that affects nobody but themselves.

But of course, the decision not to purchase health insurance is the very opposite. Those who forego health insurance are forcing the rest of us to cover their costs if they exercise their right to be treated in an emergency room. They are also forcing the rest of us to pay higher insurance rates, now that insurance companies can no longer exclude those with preexisting conditions. That, of course, is exactly why conservatives supported it for so long.

Conservatism’s sudden lurch from supporting (or tolerating) the individual mandate to opposing it as a dagger in the heart of freedom is a phenomenon that merits not intellectual analysis but psychoanalysis. This is simply how conservatives respond in the face of every liberal advance. At such moments the nation is always teetering on the precipice between freedom and socialism. The danger never comes to pass, yet no lesson is ever learned. We simply progress intermittently from hysterical episode to hysterical episode.

Conor Freidersdorf at The American Scene on Chait:

It’s handy to argue against the generalized hypocrisy of incoherent ideological adversaries, though I don’t think that describes Megan McArdle, Julian Sanchez, Radley Balko, or many others who see constitutional problems here, myself included. I’ll see if I can make a case without lapsing into hysteria: If the Obama Administration’s health care reform bill stands, I do not imagine that America is going to cease to be free, or that a decisive blow in the battle between capitalism and socialism will have been struck. Although I would’ve preferred different variations on health care reform, I am not even expert enough to know for sure whether they’d have been more successful.

What does worry me is the notion that the federal government is no longer an entity of enumerated powers – that a limit on its scope purposefully established by the Founders no longer exists. It used to be a check and balance. Is it now completely gone?

If Judge Hudson’s ruling is upheld, I’ll celebrate not because I fear Obamacare – I’m cynical enough to suspect that whatever came next might well make me even worse off – but because a limit on federal power that I care about generally has been re-asserted.

Should his ruling be overturned, I’ll be disappointed because the precedent troubles me: if the commerce clause can prevent me from growing marijuana in my backyard and mandate that I buy a particular kind of health insurance that covers far more than emergency room care, what Congressional action can’t it cover? You’d think from Chait’s post that liberals never approach matters of constitutional law in this way, looking past the utility in a given policy area to ask what the long term implications are for state power.

What I’ve yet to see answered to my satisfaction is Radley Balko’s question

Chait responds to Friedersdorf:

Let me try to reiterate my point.

The legal merits of Hudson’s ruling, which seem to be totally daft, are themselves piggybacked upon a policy argument which is itself highly unpersuasive at best. The political argument, endorsed by Friedersdorf, maintains that the individual mandate represents some dramatic new imposition of Congressional power. Congress’s power may have grown over the years, the argument holds, but the individual mandate represents some new frontier of intrusiveness. It is forbidding an activity (or inactivity) that is more personal and less intertwined with the economy as a whole than almost any previous regulation. It is not dramatically different than a law requiring people to eat broccoli.

But this is totally incorrect. In reality, the individual mandate is much less intrusive and paternalistic than many regulations accepted as Constitutional. The rationale isn’t to make people buy insurance because it’s good for them. If people want to accept the risk of illness on their own, that’s fine. The issue is precisely that they can’t do this without forcing the rest of us to pick up the tab when they 1) show up at the emergency room, or 2) decide to buy private insurance in a now-regulated market.

Regulations to prevent people from offloading their risks onto others are extremely common and extremely necessary. So, again, the right’s portrayal of this as a dramatic expansion of the scope of Congressional action is wildly misleading, and it owes itself not to any sober analysis of federal power but to the psychology of reaction.

Now, Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

Freidersdorf responds to American Scene:

Actually, I am endorsing a somewhat different argument, and I apologize if I misstated my position or was less than clear about it. It isn’t that I think the individual mandate is an imposition of Congressional power more dramatic than anything seen before. It is merely one example of the longstanding Congressional tendency to justify all manner of things – gun free school zones, legislation to prevent violence against women, the ability to grow marijuana in my backyard, etc. – under the banner of the commerce clause. Where I come down on these cases has nothing to do with policy arguments: on the merits, some seem like good ideas to me, and others seem like bad ideas, but none strike me as attempts to regulate interstate commerce unless that task is so broad that it imposes no meaningful limit on the scope of federal power. (Speaking of which, I’d still like to see Chait and Kevin Drum answer Radley Balko’s question.)

Chait writes:

Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

I actually agree that the individual mandate doesn’t constitute an obvious high water mark when it comes to legislation passed under the umbrella of the commerce clause. But surely Chait understands how constitutional challenges work. Most people who care about the principle at stake don’t get to choose the partisan blowhards on the same side of the issue, let alone the case that someone with standing files, that winds its way through the courts, that results in a favorable ruling, and that has a chance of making it to the Supreme Court. The individual mandate may not constitute a high water mark as legislation, but if it ends up being a SCOTUS test case, the majority opinion that results might well entrench a precedent that goes farther than any before it, and determines the future of the commerce clause for generations. To me, Linda Greenhouse is right: the issue at stake is whether the Rehnquist Court’s jurisprudence is going to be killed in infancy or mature into a more expansive body of law.

Noah Millman also responded to my earlier post.

He writes:

…it is unquestionably within the power of Congress to tax, and the mandate could have been structured as a tax-plus-voucher scheme that would have had exactly identical effects. Does that mean that the law is constitutional? If not, then the reason is entirely some notion of precedent – that if this form of the law is Constitutional then other mandates that could not obviously be structured as a tax (“From this day on, the official language of San Marcos will be Swedish. Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now… 16 years old!”) would also be acceptable. If that’s the argument that’s being made, then why are we arguing about the health insurance mandate as such being a threat to freedom?

First of all, the judicial precedent in this case won’t necessarily apply only to future commerce clause cases that involve mandates. Second, people are talking about the mandate as a threat to freedom for all sorts of reasons, many of them nonsensical. There are two arguments that I regard as plausible. One is that the mandate is particularly troubling because it requires payments to powerful corporations that spent millions of dollars lobbying the very people who wrote and passed health care reform. Call it the wonko-industrial complex. What if it gets out of control?! But that isn’t my position. It’s the second argument that I am making: it’s the jurisprudential precedent and the implications for the commerce clause and federalism generally that matter.

Tim Lee:

I get what Julian, Radley, and Megan are saying, and in principle I agree with them. A fair-minded reading of the constitution and the debates that surrounded its enactment makes it pretty clear that the founders’ goal was to create a federal government of far more limited powers than the one we’ve got. But I’m finding it awfully hard to get excited about the federalist boomlet sparked by Judge Hudson’s ruling that the ObamaCare insurance mandate is unconstitutional. I’m not a big fan of ObamaCare, and I wouldn’t be too sad to see portions of it struck down by the courts. But the rank opportunism of the Republican position here is so obvious that I have trouble working up much enthusiasm.

There’s nothing particularly outrageous about the health care mandate. The federal government penalizes people for doing, and not doing, any number of things. I’m currently being punished by the tax code for failing to buy a mortgage, for example. I’d love it if the courts embraced a jurisprudence that placed limits on the federal government’s ability to engage in this kind of social engineering via the tax code. But no one seriously expects that to happen. The same Republican members of Congress who are applauding Hudson’s decision have shown no qualms about using the tax code for coercive purposes.

The test case for conservative seriousness about federalism was Raich v. Gonzales, the medical marijuana case. Justices Scalia and Kennedy flubbed that opportunity, ruling that a woman growing a plant in her backyard was engaging in interstate commerce and that this activity could therefore be regulated by the federal government. If Scalia and Kennedy now vote with the majority to strike down portions of ObamaCare, it will be pretty obvious that they regard federalism as little more than a flimsy pretext for invalidating statutes they don’t like. Or, worse, for giving a president they don’t like a black eye.

Joshua Holland on Balko:

The question’s a straw-man — as evidence that “the left” flatly rejects all limits on the federal government, Balko offers up a statement by Rep. Pete Stark, a liberal from California, which was taken at least somewhat out of context during a town haul meeting with constituents and turned into a minor brouhaha by Andrew Breitbart’s crew a few months back.

More importantly, premising the question on us “setting aside the Bill of Rights” and amendments 11-27 just because they were ratified after the fact is disingenuous. As soon as an amendment is ratified, it becomes part of the United States Constitution, and those amendments happen to codify most of the constraints on the federal government that liberals hold to be the most important. (Balko’s a good civil libertarian who thinks they’re pretty important too.)

Essentially, he’s saying, ‘aside from preventing the government from limiting your right to speak, worship, assemble, petition government for redress, searching or seizing your stuff without due process, forcing you to incriminate yourself, enacting policies that discriminate on the basis of race and gender and guaranteeing a dozen other cherished freedoms, are there any constraints at all that you lefties find legit?’

That aside, the longer answer is that the Framers obviously didn’t create a detailed, step-by-step handbook for governing the U.S., and they didn’t try to anticipate every conflict that might come up in this new federal system they were cooking up. But they knew that conflicts would in fact arise, and they created a court to adjudicate those conflicts. It’s an enumerated power!

Now, the issue before us is what economic activities (or non-activities) the Commerce Clause empowers the feds to regulate, and the Supreme Court has used an expansive – and, yes, expanding – interpretation of that clause for close to 75 years.

Balko, like his fellow libertarians, and, less consistently, conservatives, doesn’t like that interpretation, which is his right. But it is nevertheless what’s known as a “super-precedent” – jurisprudence that’s been tested and affirmed in a not one or two, but a series of cases decided by the courts over the years.

Until maybe 20 or 30 years ago, the idea that judges should, accept in very rare cases, defer to precedent was a key tenet of judicial conservatism. That’s changed somewhat with the right’s focus on “originalism” – the idea that justices should try to glean the original intent of the Framers and put a little less emphasis on upholding precedent. (That shift is why, ironically, when one defines “judicial activism” as a willingness to overturn past rulings, conservative justices have been shown to be far more activist than liberals in recent times.)

So, a shorter answer, speaking as just one lefty, is that I accept any constraints on the government that the Supreme Court, guided, as it should be, not only by the text of the Constitution but also by past precedent– and checked by the states and the executive and legislative branches via the amendment process — holds to be legitimate.

Scott Lemieux on Balko:

Well, I don’t really see the Bill of Rights as a mere aside; these limitations are very important. But that said, to play the mild contrarian I don’t actually have any objection to U.S. v. Lopez. When a statute is not a regulation of economic activity, has no jurisdictional hook, has no necessary connection to a broader regulatory regime, and Congress can’t be bother to explain what the connection to interstate commerce is or why federal action is necessary…I don’t really have a problem with the Supreme Court ruling the statue as beyond Congress’s authority. And while I disagree with United States v. Morrison, this is primarily because I strongly reject the narrow conception of Congress’s enforcement power under Section 5 of the 14th Amendment. I have no problem saying that the commerce clause limits federal ability to intervene in purely local crime enforcement.

Now, I assume the libertarian response will be that this isn’t much, and…this is right. I don’t think in a modern industrial economy there’s any point in the Supreme Court trying to make distinctions between “local” and “national” economic regulations.

One thing I would add, though, is that saying that the Court should not strike down economic regulations under a narrow interpretation of the Commerce Clause is not to say that the power of Congress is unlimited. As many of you know, Madison did not feel that “parchment barriers” were the most important protection against excessive government. Rather, he felt that an institutional design featuring multiple veto points was the central protection. And, in fact, Madisonian institutions have been effective — from my non-libertarian perspective, often much too effective — in limiting the authority of the federal government to regulate the economy. I think these limits are (more than) sufficient, and having the courts try to apply a conception of economic powers more meaningful in an 18th-century agrarian economy doesn’t make any sense.

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“You’ve Got To Stop This War In Afghanistan.” Richard Holbrooke: 1941-2010

Rajiv Chandrasekaran at WaPo:

Longtime U.S. diplomat Richard C. Holbrooke, whose relentless prodding and deft maneuvering yielded the 1995 Dayton peace accords that ended the war in Bosnia – a success he hoped to repeat as President Obama’s chief envoy to Afghanistan and Pakistan – died Monday in Washington of complications from surgery to repair a torn aorta. He was 69.

A foreign policy adviser to four Democratic presidents, Mr. Holbrooke was a towering, one-of-a-kind presence who helped define American national security strategy over 40 years and three wars by connecting Washington politicians with New York elites and influential figures in capitals worldwide. He seemed to live on airplanes and move with equal confidence through Upper East Side cocktail parties, the halls of the White House and the slums of Pakistan.

Obama praised him as “a true giant of American foreign policy who has made America stronger, safer, and more respected. He was a truly unique figure who will be remembered for his tireless diplomacy, love of country, and pursuit of peace.”

Secretary of State Hillary Rodham Clinton said in a statement that the United States “has lost one of its fiercest champions and most dedicated public servants.”

Michael Crowley at Swampland at Time:

Holbrooke’s Last Words

“You’ve got to stop this war in Afghanistan.”

Spoken to a Pakistani surgeon who was sedating him before surgery.

Joshua Keating at Foreign Policy:

Holbrooke’s untimely death comes as a particular shock to those of us at FP, who saw him only two weeks ago when he was honored at our Global Thinkers Gala and was at his pugnacious best. (Here’s a video of his speech at the event, in which he called his years at FP “among the most important in my life and my career.”

Holbrooke was a giant of American policy over the last half century, trouble-shooting in conflicts from Vietnam, to the Balkans, (about which he wrote his classic first-person account, To End a War) to Afghanistan. (He’s probably one of the few State Department figures to play a starring role in both the Pentagon Papers and the WikiLeaks documents.)

But while often seen as the consummate Foggy Bottom insider, Holbrooke was never sentimental about the business of American foreign policy. His first piece from the very first issue of Foreign Policy in 1970 takes on the bloated U.S. foreign-policy bureaucracy, or has he called it, “the machine that fails.” In Holbrooke’s view, the proliferation of massively-staffed agencies accountable for different aspects of U.S. foreign policy had made the entirely apparatus dangerously unwieldy.

Josh Marshall at Talking Points Memo:

Diplomacy is a paradoxically insular world. And most of the nation’s foreign affairs get little treatment in the headlines. So I imagine that more than a few readers are wondering why we’re giving such major treatment to the death of Obama administration who many of you probably have never heard of or perhaps only in passing.

As the obituaries note, Holbrooke was key figure in US diplomacy for almost half a century. One fun fact: he authored a substantial portion of the Pentagon Papers. What may or may not come through as clearly was the size of the personality and the doggedness — a fact that likely kept him from the top job of Secretary of State in this and last Democratic administration.

Vice President Biden’s statement contains these two sentence: “Richard Holbrooke was a larger than life figure, who through his brilliance, determination and sheer force of will helped bend the curve of history in the direction of progress … He was a tireless negotiator, a relentless advocate for American interests, and the most talented diplomat we’ve had in a generation.”

His reputation rests on his role in ending the war in Yugoslavia, where he demonstrated a cold-eyed, unabashedly pragmatic mix of cajoling, bullying, threatening and negotiating mixed with bombing to achieve an eminently just and moral end, which makes him on several levels a hero to many of us.

Spencer Ackerman (entire post):

Out for a long-overdue drinks and dinner with foreign-policy-oriented friends tonight, all of a sudden our phones buzz. Richard Holbrooke, the most distinguished diplomat of his generation, has died. None of us know quite what to say. Our respect for Holbrooke has long been tempered with a certain exasperation with how his personality has overshadowed his talents and gotten in the way of his ambition.

And all of a sudden it dawned on me how trivial and thin that critique is. What other American diplomat can credibly say s/he ended a savage war? I read To End A War the year I came to Washington and decided I wanted to cover foreign policy — immediately, if I recall correctly, after I finished A Problem From Hell, partly because I didn’t want to stop exploring what that book mined — and still remember how superhuman a task Dayton seemed, even after factoring out Holbrooke’s interest in making it seem so arduous.

For 40 years, no other diplomat has played as impactful a role in as many of the nation’s crucibles. It’s him and Kissinger (and Kissinger’s been out of the arena for a long time). And whatever Holbrooke’s flaws were, his influence during these tests was ultimately wise and beneficial, quite unlike Kissinger’s. Think for a moment about how thin the line is in foreign affairs between principle and hubris; between the lessons of experience and the blinders they impose; between subtlety and miscalculation. Someone who manages to manage, as Holbrooke always did, is a precious resource.

We read our messages, and clinked our glasses in honor of a great man, thought briefly of his family, and drank. RIP.

Steve Clemons:

Richard Holbrooke is gone. This is not the time for cliches.

But I can’t imagine results-achieving American diplomacy without him. I will personally miss him so much — and am deeply saddened by his passing.

Condolences to Kati Marton, his amazing wife; and to all of his current team — and his many former staff who will carry on his ideas and work for years.

Steve Coll at New Yorker:

It was not easy to construct a quiet hour or two with Richard Holbrooke. I saw him regularly, as did other journalists and researchers who worked on Afghanistan and Pakistan, but a long sit-down took some effort. Holbrooke was an accessible, open, and attentive person, but he was also in perpetual motion. He moved from meeting to meeting, conversation to conversation, and if you managed to sequester him somewhere for fifteen minutes or more, his cell phone was sure to ring—Islamabad, Kabul, the Secretary of State, somebody.

Earlier this year, however, we managed to arrange a private lunch in Washington on a Saturday. He invited me to meet him at the Four Seasons Hotel, near his home in Georgetown. The dining room at the hotel is not quite the watering hole for the wealthy and famous that it is in Manhattan, but it is a Washington-limited facsimile. When the Ambassador arrived the maître d’ attended him lavishly, scolding the waiter who had initially greeted him for failing to assign him an appropriately expansive and exclusive table.

He was carrying that morning’s Financial Times. He marvelled over an article he was reading about I. M. Pei and he wanted to talk about architecture for a while. As I had gotten to know him a little, I had discovered that he would speak about subjects such as acting or trends in academic history with genuine passion. He sometimes preferred those topics to the repetitive nuances of South Asia’s dysfunctional politics. He had a reputation for creating drama around himself; he was genuinely a theatrical man, in the sense of being physical and full of emotion and gesture. I came to think that he lived the way he did in part to avoid boredom.

While we ate lunch, Jerry Seinfeld and some of his entourage entered the dining room; Seinfeld was a guest at the hotel. “Jerry!” Holbrooke shouted, warmly. They were neighbors, it turned out, in New York and Telluride. We stood for introductions and chit-chat. Holbrooke asked what Seinfeld was working on and the comedian talked about his new reality-television show. In mid-explanation, however, Holbrooke’s cell phone rang. It was Robert Mueller, the director of the Federal Bureau of Investigation, and so the Ambassador had to interrupt Seinfeld to take the call. Eventually we returned to our table and resumed our discussion about the Waziristans and the rest.

Jeffrey Goldberg:

I’m finding it mind-boggling (as is Jim Fallows) that Richard Holbrooke has died, because he was not the sort of person who dies, or at least dies before he’s finished with what he needed to finish. There was too much will inside him to achieve, and he had not yet achieved what he needed to achieve. The last time I spoke to him, a couple of months ago, I asked him if he would replace George Mitchell as the Middle East envoy when Mitchell inevitably stepped down. It always struck me that Holbrooke, with his titanic ego, his magnetism and his brute intelligence — and also his conniving, man-of-the-bazaar qualities so unusual in an American — would be the only American who could birth a Palestinian state and bring peace to the Middle East (Could you just imagine Bill Clinton as good cop and Holbrooke as bad? I could).  Holbrooke laughed off the question, but not really. There were challenges he needed to master before he mastered that one. He was not having great luck in Afghanistan, and he might very well have ultimately failed, but you have to ask yourself — who else? Who else could do what he did? Who else is there? Richard Holbrooke will be missed, even — especially — by the people he drove mad.

James Fallows:

I am thinking of a dozen stories now, starting in the early 1970s when he was editor of Foreign Policy magazine and I was a fledgling freelance writer for him. (Or when, a few years later, I had the odd experience of welcoming him to Plains, Georgia as part of the Carter campaign team.) I will store them up for another time. He was a tremendous force, overall for the betterment of American interests and the world’s. My sympathies to his wife Kati and the rest of his family.  It’s routine to say this, but in this case it’s really so: his absence will be felt.

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Virginia Is Not For Lovers Of A Mandate

Kevin Sack at NYT:

A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

Judge Henry E. Hudson, who was appointed to the bench by President George W. Bush, declined the plaintiff’s request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.

In a 42-page opinion issued in Richmond, Va., Judge Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.

The judge wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.

Daniel Foster at The Corner:

Suit was brought by Virginia attorney general Ken Cuccinelli.

“I am gratified we prevailed. This won’t be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution,” said Cuccinelli in a statement.

Cuccinelli has made the extraordinary request that the case bypass the regular appellate order and proceed directly to the highest court, arguing that the Obama administration, too, would benefit from a speedy resolution.

Josh Marshall at Talking Points Memo:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Tom Maguire

Jonathan Cohn at TNR:

Hudson’s ruling is not unexpected. He is a Republican appointee with a history of conservative rulings. Nor is it definitive. Two other federal district judges, Democratic appointees both, have already ruled that the entire law passes constitutional muster. A fourth decision, by a judge in Florida, is expected by year’s end.

Most legal experts expect that, eventually, the case will come before the U.S. Supreme Court. Hudson himself acknowledged as much, writing “The final word will undoubtedly reside with a higher court.”

And how might the five Republican appointees and four Democratic appointees on the Surpeme Court rule? Most court observers I know believe that at least one of the Republican appointees, most likely Anthony Kennedy, would agree with the government that the Affordable Care Act falls well within traditional boundaries of the taxing and interstate commerce powers. (For an example of such logic, see the Michigan ruling from a few weeks ago.)

I tend to think those experts are right, for reasons I’ll get around to explaining one of these days. Then again, I recall hearing similar confidence about another highly anticipated court ruling–one about, oh, ten years ago.

For more on the mandate and some varied opinions on how an adverse ruling by the Supreme Court might affect the Affordable Care Act overall, see Aaron Caroll, Jonathan GruberEzra Klein, and Igor Volsky.

Meantime, if you’re looking for a more generic primer on the individual mandate, I highly recommend this video from the Kaiser Family Foundation.

Orin Kerr:

I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself. The key line is on page 18:

If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.

Ezra Klein:

he real danger to health-care reform is not that the individual mandate will be struck down by the courts. That’d be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn’t penalize anyone for deciding not to do something (which is the core of the conservative’s legal argument against the provision). Here’s one suggestion from Paul Starr, for instance. The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that’s exactly what the plaintiff has asked Hudson to do.

Hudson pointedly refused. “The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.” That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for “1501.” It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make “specific reference” to the provision, even if you could argue that they are “directly dependent” on the provision. The attachment of the “specific reference” language appears to sharply limit the scope of the court’s action.

Doug Mataconis:

In this particular case, the next step on the appellate ladder would be the Court of Appeals for the Fourth Circuit, which has generally had a reputation of being among the more conservative Courts of Appeal.  However, Virginia’s Attorney General has reportedly been mulling the idea of  applying to the Supreme Court to leave to bypass the  Court of Appeals and proceed directly to the final state of the appellate process. Even if such an application were made, there’s no guarantee it would be granted so the the case may end up in the 4th Circuit anyway, but this strikes me as mistake. It seems to me that a final hearing before the Supreme Court might have a better shot, for Virginia, if it had other rulings against the law from other Courts behind it.

In any event, it’s clear that the Federal Government was unable to overcome much of the initial skepticism that Judge Hudson expressed about the arguments in favor of the mandate in his ruling on the government’s Motion to Dismiss. On the Commerce Clause, Hudson ruled that the requirement that American citizens purchase health insurance or face a penalty to exceed even the relatively liberal bounds of Congressional authority as set forth in case likes Wickard v. Filburn and Gonzalez v. Raich and that failure to act cannot itself be considered an act occurring within interstate commerce. On the government’s backup argument that the mandate and it’s penalty are justified under Congress’s far broader authority to tax for the “general welfare,” Hudson essentially ruled that the taxing power cannot be used to accomplish a purpose not authorized under the specific grants of power given to Congress under Article I, Section 8, and that the Attorney General’s argument is undercut by the fact that both Congress and the President specifically denied during the build up to passage of the Affordable Care Act that the mandate was a tax (a relevant fact because it goes to the question of Congressional intent).

Finally, rather than declaring the entire ACA unconstitutional, Hudson’s decision merely enjoins enforcement of the individual mandate. However, given the fact that mandate is the centerpiece of the entire regulatory scheme, it is hard to see how the rest of the law could survive without it.

This case is obviously going to be appealed, but it’s nonetheless a victory for Virginia, and it’s noteworthy as one of the few times in recent memory that a Court has said to Congress — no, you can’t do that. For that reason alone, it’s a good thing.

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