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Will the Supreme Court Split the Difference on Health Care and Immigration?

"The High Court" (c) Charles Bragg

Last November, the U.S. Supreme Court announced it would hear one of many lawsuits by conservative officials challenging the new federal health care reform law championed by President Obama. At the time, you will recall, very few observers thought there was a serious chance that the high court would invalidate the legislation.

I was among them –until three weeks later, when the Supreme Court announced it would hear the federal government’s challenge to Arizona’s immigration law, which bars illegal immigrants from trying to get a job and gives state cops the power to arrest people suspected of being illegal immigrants. The Obama Administration argues the Arizona law interferes with federal authority to control the nation’s borders.

When I heard that the Court took the immigration case, I was pretty sure I saw a trade-off in the works.

Here’s how I reckoned it: extreme conservatives loathe universal health care (and the President) and want to stop it now, before it takes effect and becomes one of those successful federal programs, like Social Security, that becomes wildly popular and hence impossible to privatize or repeal. Liberals, by contrast, aren’t crazy about the sorely compromised product that President Obama signed, but they believe that everybody should receive the health care they need, and that the government ought to at least mandate fair rules in the marketplace. Overturning the new law would set liberals ablaze, and give President Obama a powerful campaign issue – activist judges – in the Fall.

On immigration, many liberals are uncomfortable with the harsh and arguably unconstitutional provisions of Arizona’s law. And they remember how the “state’s rights” movement was once a thinly veiled euphemism for maintaining state laws that discriminated against African Americans. But conservatives strongly support the right of Arizona to take extraordinary measures to stop illegal immigration. Overturning the Arizona statute would anger the conservative base.

See where I’m going here?

By taking both cases within a few weeks of each other, the Republican majority on the Supreme Court gave itself the kind of political cushion it didn’t have when it handed the presidency to George W. Bush in Bush v. Gore. The high court can grant conservatives the massive victory they seek by invalidating federal health care reform, and then disappoint them by ruling in favor of the federal government in the Arizona case.

“See! Impartial!” the pundits will trumpet; “this proves that Supreme Court ‘judges are like umpires,’” as now Chief Justice John Roberts put it during his confirmation hearings on Capitol Hill in 2005. “Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules,” he said at the time, and it sounded reassuring.

“Split the difference” maneuvering is a common feature in American politics. I've seen it in action ever since I first worked on Capitol Hill in the Seventies. The lawmaker votes against a bill – disappointing some – only to vote for a different bill a few days later, pleasing them. All is forgiven, or maybe not; either way, it's portrayed as proof of "independence": “If both sides are mad at me,” the politicians’ old saw goes, “I must be doing something right.”

That may fool some of the people some of the time, but such tactical machinations are of course completely improper in the judicial branch, where justice is supposed to be blind and decisions made based on the merits of the case, not whether “the base” will be thrilled or disappointed, or both.

As a lifelong student of the law, I hope I’m wrong about the U.S. Supreme Court. Those who devote their lives to justice, as most lawyers one way or another must, can only rue the public’s distrust of the judicial process.

That’s growing, and no wonder. Some conservatives indiscriminately berate “judicial activists” on the bench. Meanwhile, corporations spend increasingly vast sums of money belittling judges, juries and lawyers in the quest to pass legislation repealing the average American’s right to hold wrongdoers accountable in a court, which they call "tort reform."

And in a little noticed part of its infamous Citizens United decision, the Supreme Court granted corporations the First Amendment right to campaign for or against judges as if they were politicians. Super PACs are now targeting justices whose rulings aren’t pro-business enough – as if “pro-business” is a constitutional imperative unto itself.

I checked the Constitution – it’s not in there.

Unfortunately, what’s transpired since last winter gives me little reason to believe that the current Supreme Court will put respect for precedent over politics. During three days of hearings last month, the notion that the Supreme Court would invalidate the federal health care law went from being a right wing fantasy to a possible, even likely, outcome based on the questions and comments of the Republican justices.

In fact, after the hearing on the immigration law last week, it looked to many like the Supreme Court was prepared to rule in favor of Arizona.

The Conventional Wisdom now has the Court dumping heath care reform and upholding the immigration controls, making it a clean sweep for the anti-federal government conservatives. After all, members of the Supreme Court cannot be held accountable for their actions, short of impeachment. So why would they care whether they look like they’re “balanced”?

So much for my theory.

On the other hand, a political version of one of the laws of quantum physics may be at work on the Court at this very moment. The Heisenberg Principle posits that the mere observation of atomic particles changes their course. Since its astounding determination that the Constitution protects corporate money, the Supreme Court has come under a nearly unprecedented degree of criticism. Perhaps the public scrutiny is beginning to have an effect.

At least two members of the Court itself have said they want to reconsider it (PDF). Justice Anthony Kennedy, the “swing vote” on the bench, may end up unwilling to join in a wholesale re-engineering of constitutional law. Some experts suggest that Chief “Umpire” John Roberts might be sensitive to how history will view his stewardship of the institution.

So I still wouldn’t be surprised to see a “split the difference” strategy play out in June, when the Supreme Court is expected to issue its decisions on both cases, just five months from the election.

Citizens United / Harvey Column / Supreme Court - 04/30/2012

Secrets of a new "Free Trade Frankenstein"

Remember NAFTA?

The North American Free Trade Agreement between the U.S., Mexico and Canada was supposed to promote commerce between the three countries creating the world’s largest “free trade” area by removing tariff and quotas on U.S. goods.

It was supposed to increase employment and prosperity across borders.

But there was nothing free about NAFTA.

It turned out to be a devastating trade for nearly a million American workers, whose jobs were exported to other countries where wages are lower and U.S. companies aren’t subject to worker, health and environmental rules, and got nothing in return.

Millions of workers in Mexico’s small-scale agriculture also lost their livelihoods because they couldn’t compete with subsidized U.S. corporate agribusiness, which flooded Mexico with corn.

Look out, because there’s a new “free trade” Frankenstein on the horizon. Because the public has gotten wise to the big lie of “free trade,” the authorities have changed the labeling – they call this one a “partnership” – the Trans-Pacific Partnership agreement.

So far, it includes U.S., Australia, New Zealand and several Pacific Rim nations.

Who’s not included in the partnership?

Anybody from the public, or advocates for consumer, labor, environmental rights, improved health care, or anybody else that would question the notion of giving the corporate giants who have exclusive access to the negotiations anything they want.

According to critics, these deals should be more accurately labeled “corporate rights agreements,” because that’s what the real focus is – protecting corporate interests and their private property rights against any interference from environmental, labor or financial regulations they disagree with – either in the United States or any other country.

For example, the World Trade Organization, which judges trade disputes, recently ruled against a number of U.S. regulations designed to protect consumers, like labeling meat with its country-of-origin, and a ban on clove cigarettes to reduce teen smoking.

These trade agreements allow corporations to challenge national laws they don’t like in special courts. As in the secret negotiations, the public has no right to appear in those courts.

In addition, critics fear that the negotiations could lead to the imposition of strict intellectual property protections for companies that would have wide-ranging impacts, including limiting the availability of less expensive generic medicines, including AIDS drugs, critical to Third World countries’ efforts to limit illness and disease.

U.S. negotiators, led by trade representative Ron Kirk, insist the negotiators need secrecy to be able to negotiate freely.

Trust us, he insists.

But the negotiations aren’t secret from the lobbyists for the corporations whose rights and profits are at stake – they have full access, through “trade advisory groups” that review documents that are off limits to the public.

Corporate bigwigs also gain access to the negotiations while wining and dining with trade negotiators and politicians at fancy dinners at swank restaurants.

At one recent dinner in February in Washington D.C., the sponsors included a who’s who of corporate power – Amgen, Chevron, Dow Chemical, GE, Microsoft, Target and Wal-Mart, along with industry groups such as the Business Roundtable, Chamber of Commerce and PhRMA.

Fortunately, all the issues and secrecy around the talks have attracted attention.

Oregon Sen. Ron Wyden has become a leader in the fight to open up the TPP talks. Meanwhile several other groups, including Public Citizen’s Global Trade Watch, the California Fair Trade Coalition, and the Citizens Trade Campaign, have launched campaigns against the secrecy surrounding the TPP and raising issues about the substance of the agreements.

We don’t need more assurances that the trade negotiators and lobbyists are protecting our interests. We don’t need any more PR about how trade will create jobs in America. We can predict the unfortunate outcome of the TPP talks if they remain closed to the public, with only the insiders working to pursue their interests.

We need the most open process, public participation and the toughest scrutiny possible to avoid a massive rip-off at the hands of our secret “partners.”

Martin Column / TPP - 04/04/2012

Top 4 Lesson Big Bankers Can Teach Us

America’s bankers have been extraordinarily effective in responding to a financial crisis that they created. They’ve worked hard to make sure that the response to the crisis didn’t threaten their fat bonuses or their awesome political power.

They succeeded in gutting the toughest aspects of financial reform. Then they started lobbying the regulators who will have the enforcement power.

Now they’re toiling to undermine a proposed settlement with authorities over widespread abuses in the foreclosure process, and demonizing consumer champion Elizabeth Warren and the Consumer Financial Protection Agency in the process.

Of course they’re getting plenty of help from their government enablers. As Gretchen Morgenstern reported in the New York Times, the 50 state attorney generals who are supposed to be spearheading the investigation into the foreclosures aren’t doing any actual investigating.

This puts them at a definite disadvantage when they sit down to negotiate with the banks.

Those of us who aren’t bankers and would like to see a different outcome could learn a few things from the bankers.

How do the bankers do it?

They’re relentless. They don’t take no for an answer and they don’t know the meaning of defeat. They have lots of money and they’re not afraid to spend it on campaign contributions and lobbying. While we may not be able to match their cash, there’s no reason we can’t be as relentless as the big bankers. They wouldn’t still be in business, let alone raking in billions in bonuses, if we hadn’t bailed them out.
They have no illusions about loyalty. They spent big to elect President Obama. But when it looked like they could get more from the Republicans, they switched sides. Nobody can take their support for granted.
They have no shame. They never apologized for all the risk and fraud that created the collapse. They never offered to tighten their belts or pick up part of the tab. They just kept fighting for their selfish interests.
They maintained their sense of humor. How else do you explain their carping about how anti-business the president is, while Obama’s team does whatever it can to prop up the “too big to fail banks” while wringing its hands that it just can’t do any more to help the unemployed or distressed homeowners?

Financial Crisis / Financial Reform Legislation / Foreclosure / Martin Column / Outrage - 03/19/2011

Want a Job? Go to Prison

American workers find themselves in an increasingly uncomfortable squeeze.

On one hand, public officials demonize organized labor, as seen in Wisconsin and several other midwestern states.

On the other hand, the growing trend in outsourcing keeps jobs closer to home, but with equally disastrous results, paying prisoners an average of less than a dollar an hour for work once done by decently paid workers on the outside.

Prisoners aren’t just making license plates anymore. They do everything from manufacturing plastic cups and furniture to operating call centers.

In the most recent example of this disturbing trend, prisoners are apparently building electronic parts for Patriot missiles.

The story was laid out by Jason Rorhlich on Minyanville, where he displays all of the promotional material by the firm, which obtained the contract to have the prisoners do the work. The firm, called Unicor, is a giant, wholly-owned subsidiary of the federal government originally formed during the Depression. It operates more than 100 factories in federal prisons and employs about 17,000 inmates, or about 11 percent of the federal prison population.

Unicor even received nearly $1 million in stimulus money, earning the ire of some on the outside who said they could have used the work.

After Rohrlich’s piece appeared, and it was picked up by Wired, Lockheed’s PR machine spun into action, denying that prisoner labor was used in building the Patriot, acknowledging for Wired that prisoners only worked on Raytheon’s ignition system for the missile. Which left Rohrlich and readers scratching their heads, given how hard Unicor has been bragging about its work on the missiles themselves. Does Unicor, an arm of the federal government, not know what its employees/prisoners are up to? Or is Lockheed working on some pretty lame damage control? I hope the missiles work better than the public relations does.

As Wired points out, the Patriot is just one in a long string of weapons work that Unicor has done, including work on F-15 and F-16 fighter jets and Cobra helicopters.
This week, Unicor scored a $20 million, no-bid contract to build bulletproof vests. All I can is say is they must have connections, since the last time they built body armor for the Army, it didn’t work so well. Last year the Army had to recall 44,000 Unicor-built helmets because they failed ballistics testing.

This is not about trashing prison training and rehabilitation efforts, which should be continued because the evidence shows that they work in reducing recidivism. But can’t our public officials find a way to do it without undermining the middle class, which they all claim to be so devoted to?

Martin Column - 03/11/2011

Don't Let the Bad Guys Get Away!

Hollywood loves a good chase. Last night at the Oscars, Tinsel Town sent a strong message to the rest of the country – the bad guys are getting away, and the cops aren’t even on their trail.

For a brief instant the Obama administration’s sorry efforts in holding bankers accountable for the financial collapse took center stage at, of all places, the Academy Awards.

Accepting his Oscar for “Inside Job,” his documentary about the financial collapse, Charles Ferguson used the opportunity to remind the audience of millions that not a single banker had gone to prison for fraud.

Ferguson was saying what the mainstream media has deemed a non-story, following President Obama’s lead in downplaying accountability while highlighting evidence of economic recovery.

But Ferguson joins a handful of prominent critics, including Bill Black, Simon Johnson, former Sen. Ted Kaufman, Dean Baker and Matt Stoller, who have been sending the same message in a variety of less prominent venues.

Meanwhile the president, far from insisting that his prosecutors develop fraud cases against top bankers, appoints them to top positions in his administration.

Typical is this recent column from the New York Times oped columnist Joe Nocera, who pooh-poohs the criminal aspects of the financial meltdown, blaming it on widespread “mania.”

Make no mistake; these are hard cases to make. In the 90s I covered the prosecution of savings and loan magnate Charles Keating, the poster child for bad behavior and political shenanigans for that earlier banking fiasco that also followed a rash of deregulation. Keating was convicted in both state and federal court. Though the convictions were overturned, Keating did serve four and a half years of his five-year state sentence.

Good prosecutors don't mind tough cases. They enjoy the challenge. But their bosses set their priorities and have to give them the support they need.

The Obama administration is barely even trying, afraid of alienating the bankers it’s trying to court. The cases that have been brought are either minor sideshows or they’ve been mishandled.

A local prosecutor told me that federal authorities have shown no interest in the painstaking work of building serious cases against bank executives, which would involve authorities going after minor players such as mortgage brokers, and working their way up the chain of responsibility.

In Inside Job, former New York state attorney general Eliot Spitzer has a suggestion for prosecutors – do unto the bankers what the prosecutors did unto him: go through their credit card receipts looking for evidence of illicit activity, like paying for high-priced hookers. Bust the bankers for their bad personal behavior and then obtain their cooperation in investigating financial abuse.

It may work; it may not. But at least prosecutors wouldn’t be sitting on their hands. They’d be doing their jobs – aggressively going after the bad guys.

Around the Web / Martin Column / Uncategorized - 02/28/2011

What the President SHOULD Say

Republicans may have driven the car into the ditch. But voters know the difference between a sales job and reality.

That’s why they didn’t trust President Obama and the Democrats’ pitch that they had gotten the car out of the ditch and gotten it running again.

It didn’t ring true because far too many Americans are still stuck in the ditch.

And all of the presidents’ talk about how much worse off we’d be without his team’s hard work fell on deaf ears.

From the time he took office through the election, the president and his team failed to adequately acknowledge how deep the ditch was. By all accounts, the president is a brilliant man, and he’s hardly the first president to suffer a midterm “shellacking.” And his opponents haven’t exactly been overflowing with creative ideas for how to get the economy going again for those of us who aren’t bankers.

I also realize it’s not just up to the president – we all have a responsibility. So here’s my humble contribution to help the president make a mid-course correction: some suggestions for what the president might say.

My fellow Americans:

You sent me a strong message on November 2. I have to admit it stung. It’s taken a while to sink in, but I get it now.

I haven’t taken the economic pain that many of you are feeling seriously enough. The range of solutions I’ve chosen have been far too narrow and not nearly ambitious or imaginative enough. I’ve paid too much attention to not riling the markets and not enough attention to getting you back to work and keeping you in your houses. For that I owe you an apology. I have also belittled your concerns that our government has fostered a system that favors the wealthy and connected over other Americans. I’m sorry for that too.

I know that words without action ring hollow. So I’m replacing my entire economic team with men and women who are more attuned to the economic crisis that many of you find yourselves in. We’re fortunate that we have such a distinguished group to choose from – Paul Volcker, Robert Reich, Bill Black and Brooksley Born among them.

I have previously attributed the lack of popularity of some of my administration’s policies to my inability to sell them properly. But in retrospect, I see that the problem wasn’t the message. It was my previous unwillingness to fight, and fight hard, for stronger policies, stronger solutions to the country’s economic problems. I should have done so earlier.

But I will do so now.

Make no mistake. These solutions will cost money. Putting people back to work will cost money. But that money is an investment in a future that we can all live with, not just the well-to-do, and that will pay dividends later. I know that my opponents have raised concerns about the federal deficit, and I share some of those concerns. But my top priority for the next two years will be putting Americans back to work and making sure that we have a recovery that works for everybody. If my opponents want to have a debate on the deficit, I welcome that. If they want to have a debate on whether the government can truly help people or whether the government itself is the problem, then I welcome that too. Let’s have it on television.

But mostly I welcome my opponents’ ideas about how to put Americans back to work. Because the American people don’t just want an endless debate. You want action.

We’ll have a debate and then we’ll get to it. I know that you’re impatient. You also don’t want excuses. You won’t get any from me. What you will get is a plan to reduce unemployment, stabilize housing and reduce the widespread economic misery. I promise you that will be my number one priority.

Thank you for the great trust you have placed in me.

Can I guarantee success if my opponents decide to stand in the way rather than cooperate? Probably not. But I promise you that for the next two years all of my energy, intellect and passion will be harnessed to this effort, whatever the obstacles or political costs.

Martin Column / Outrage / Paul Volcker / President Barack Obama - 11/05/2010

The Reform Charade

Remember when the president’s chief of staff, Rahn Emmanuel, strode onto the political stage and stirringly channeled Churchill, saying: “Never waste a crisis?”

It turns out that what he was really saying was: “Never waste an opportunity to reward your campaign contributors.”

Two years after the credit meltdown that crippled our economy, the financial system remains way too complicated and continues to reward high risk and focus on short-term profits that offer few benefits to those who aren’t bankers.

And even after the fiasco we’ve been through, the banks continue to snooker the snoozing watchdogs.

Last week, the Wall Street Journal reported how 18 banks have continued to manipulate their financial reporting to disguise from regulators their real level of risky borrowing.

And this is after the generous, no strings attached bailout that put trillions of taxpayer-backed dollars into the hands of the big banks.

We need a massive overhaul. What we’re getting instead is a charade, tricked out by a Democratic leadership intent on rewarding failure, propping up the status quo and labeling that reform.

One of the few U.S. senators who’s offering a stronger version of reform and consistent candor on the shortcomings of the leadership’s proposals is the man who replaced Vice President Joe Biden. Sen. Ted Kaufman, D-Delaware, said last month: “After a crisis of this magnitude, it amazes me that some of our reform proposals effectively maintain the status quo in so many critical areas, whether it is allowing multi-trillion-dollar financial conglomerates that house traditional banking and speculative activities to continue to exist and pose threats to our financial system, permitting banks to continue to determine their own capital standards, or allowing a significant portion of the derivatives market to remain opaque and lightly regulated.”

The Democratic senators would do well to be guided by the words of someone who was one of them not long ago, who was particularly astute about the toxic influence of lobbyists and campaign cash on our economy and the political process.

Back when he was a U.S. senator, President Obama wrote in the Financial Times in 2007 that the subprime crisis “was also a parable of how an excess of lobbying and influence can defeat the common sense rules of the road, placing both consumers and the nation’s well-being at risk.”

Washington, Obama wrote, “needs to stop acting like an industry advocate and start acting like a public advocate.”

Candidate Obama wouldn’t have been shocked by the new report from the Treasury Department’s Inspector General about how the two regulating agencies which were supposed to watching over Washington Mutual bungled the job before the bank collapsed in 2008, under the weight of worthless subprime mortgages, resulting in the largest bank failure in U.S. history.

It turns out that regulators were well aware of the foul odors coming off the carcass of Washington Mutual’s loan business. But the Office of Thrift Supervision continued to find the bank “fundamentally sound” and didn’t raise alarms until days before it collapsed.

We can’t let our leaders ignore these harsh lessons that came with such a high price. They may be able to squander a crisis, but without some meaningful change to rein in the financial industry, the crisis may waste the rest of us.

Martin Column - 04/12/2010