Currently viewing the tag: “can’t”

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Paul Krugman blogs about trains:

Some of the comments on my various pro-train posts have been along the lines of “Oh yeah, try taking the train to Los Angeles.” But that, of course, misses the point.

I endorse Krugman’s analysis, but in some ways I think the fact that you can’t get to LA on a train actually is the point. You can’t take the train from New York to Los Angeles. You can’t drive from New York to Los Angeles. You need an airplane. But LaGuardia Airport has limited runway capacity and many daily flights to Boston. Clearly, though, you can take a train from New York to Boston. So money spent on improving the speed and passenger capacity of NYC-Boston train links is, among other things, a way to improve New York’s air links to the West Coast.

Now a separate question is whether there’s any feasible way to actually do this in a country that doesn’t have a French (or Chinese) level of central political authority empowered to build straight tracks through people’s suburban backyards. The answer seems to be “no,” but the potential gains from greater rail capacity in the northeast are large and would (via airplanes) spill over into the rest of the country.


Yglesias

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Last summer, a Chinese telecommunications giant founded by a former People’s Liberation Army (PLA) engineer was rebuffed in its effort to sell vast quantities of equipment to Sprint Nextel – an American company that provides communication services to the U.S. Defense Department and other government agencies.  An interagency group known as the Committee on Foreign Investment in the United States (CFIUS) took a hard look at the proposal and, quite sensibly, rejected it on national security grounds.

Unbeknownst to CFIUS at the time, Huawei was making another, unscrutinized and problematic investment in the United States.  It bought pieces of 3Leaf, a now-insolvent pioneer in “cloud computing” technology, including intellectual property with obvious military applications.

When this transaction serendipitously came to the Pentagon’s attention, alarm bells went off.  CFIUS took a look at it as well and came to the same conclusion as it had with the Chinese company’s previous play with Sprint Nextel and two earlier initiatives – its effort to buy a stake in 3Com and bid to invest in some of Motorola’s assets: No way.

Initially, Huawei declared that it intended to appeal to President Obama to overrule his interagency experts.  Perhaps in doing so, it was counting on his well-established proclivity to yield to Chinese demands.  Perhaps the company was banking on the political influence of the prominent former American officials it had indirectly hired through a firm called Amerilink to tamp down their successors’ security concerns about Huawei.  These advocates include: a former Vice Chairman of the Joint Chiefs of Staff, Adm. William Owens; a former House Majority Leader, Rep. Richard Gephart; and a former Deputy Secretary of Defense, Gordon England.

Five days after floating this idea, however, the Chinese were persuaded to abandon their latest gambit.  Presumably, Huawei’s American guns-for-hire or perhaps Obama’s own advisors impressed upon them that President Obama could hardly afford to ignore CFIUS’ conclusions in order to do the PRC’s bidding.

Now, Huawei is trying a new tack.  Its deputy chairman, Ken Hu, published last week an audacious open letter on the corporate website.  Hu professes the company’s commitment to free enterprise and insistently denies any wrongful expropriation of proprietary information or ties to the PLA.  He decries the “longstanding and untrue rumors and allegations” that, among other things, suggest the company would use access to U.S. computer networks for nefarious purposes.  He goes so far as repeatedly to call on Washington to conduct a “thorough government investigation [that] will prove that Huawei is a normal commercial institution and nothing more.”

Essentially, Hu has challenged the U.S. government to make public what it knows about the security threat posed by this Chinese behemoth.

What a splendid idea!  The more the American people know about Chinese enterprises like Huawei and the full extent of their efforts to penetrate the U.S. market (for example, for the purpose of acquiring technology, both legally and illegally) and the security implications of our relying upon their products and services, the better.

Here are a few suggestions concerning information – at least some of which has evidently driven past CFIUS decisions to parry Huawei’s U.S. machinations – that it would be helpful to share with the American people:

  • What is the actual relationship between Huawei and the Chinese government? Hu declares that his enterprise is “a private company owned entirely by its employees.”  While he acknowledges that it benefits from tax incentives and loans made available to its customers from China’s “commercial banks” – read, state-owned enterprises routinely used as financial instruments of the communist government in Beijing – Hu suggests that there’s nothing for us to worry about.  That is assuredly not the case, and we need to know the truth.
  • How about the true extent of ties between the People’s Liberation Army and Huawei? At a moment when the PLA is increasingly ascendant and aggressive, both at home and abroad, Hu’s assurances of no connection beyond its founder’s past service in the military’s now-disbanded engineer corps ring hollow. Huawei’s massive state-supported telecommunications research and development activities have clear military applications.  And its commercial transactions assuredly afford Chinese intelligence opportunities for insinuating trap doors and other means of penetrating Western computer and communications networks.
  • What has been Huawei’s record elsewhere overseas? The company has been implicated in selling sophisticated equipment to the Taliban, Saddam Hussein’s Iraq and the Iranian Revolutionary Guard Corps, in part, to improve their military capabilities.  Aiding and abetting America’s enemies is not something we can safely ignore, especially since it is both suggestive of Huawei’s utility to the Chinese government and adds further reason to be concerned about the role it might play if allowed to expand its operations here.

Evidently, China is prepared to play hardball.  It has announced that it will establish an inter-ministerial committee similar to CFIUS. Presumably, it will become an instrument for selectively restricting foreign investment in the PRC – retaliating against U.S. business interests in the event of future CFIUS rejections on security grounds and creating still-greater leverage on U.S. companies to support its predatory trade and “commercial” activities.  Only by making plain what Huawei and similar enterprises are up to can the threat they pose be properly understood – and countered.  The place to start is by saying “No way, Huawei.”

Big Peace

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Or, The Continuing Media Narrative of ‘Acceptable’ Racism.

Dr. King once said, “Injustice anywhere is a threat to justice everywhere.” Apparently, US Attorney General Eric Holder didn’t get the memo.

As reported and applauded by Politico, Holder announced Tuesday that he was fed up with listening to whining whites who claim the justice department deliberately blocks investigations of black on white racism. Predictably, the Establishment media sides with Holder.

“Think about that,” Holder said. “When you compare what people endured in the South in the 60s to try to get the right to vote for African Americans, to compare what people subjected to that with what happened in Philadelphia, which was inappropriate .. .to describe it in those terms I think does a great disservice to people who put their lives on the line for my people,” said Holder, who is black.

Holder noted that his late sister-in-law, Vivian Malone Jones, helped integrate the University of Alabama.

“To compare that kind of courage, that kind of action, to say some Black Panther incident is of greater concern to us, historically, I think just flies in the face of history,” Holder said with evident exasperation.”

So the obvious takeaway from this is that some racism is worse than others. Some racist injustice is worthy of prosecution, other racism is not. Apparently, whites simply haven’t suffered enough. They don’t deserve legal protection. So, any injustices committed against white people should be swept under the rug. It’s not worth Eric Holder’s time.

One might be shocked by the statements. One might even wonder why the media chooses not to attack Holder for his patently racist statements. After all, were a white man to suggest this, his career would be over in a hail of media machine-gun fire. Reporters would fall over themselves to attack him, and his family would be ruthlessly attacked in the community. His kids would have to stay home from school (assuming their teachers weren’t on strike, anyway), and he’d get hate mail and death threats for decades.

But the Establishment Media’s lack of moral indignation isn’t surprising. In America, it’s blasphemous to even suggest that whites could be victims of racial injustice.

Whites are the permanent “oppressors” in the mainstream media narrative, while all other races are the permanent “victims.” In fact, “white” and “oppressor” are essentially synonymous — meaning: whites are the bad guys. All whites have been lumped together and typecast in a bad reality TV show. Because whites as a group do not have clean hands, therefore, they are denied the right of seeking justice.

If that isn’t stereotyping, I don’t know what is.

The larger issue, of course, is that “whites as racists” constitutes the fundamental lens through which Holder views issues in America. During the healthcare debate, Holder likened opposition of Obamacare to opposition to civil rights. Not civil rights in the sense that, “all Americans share civil rights,” mind you, but “Civil Rights” as in the struggle for black legal equality in America during the 40’s-60’s. Translation: those who oppose Obamacare are racists. Such language is naked race-baiting and scapegoating. But Holder doesn’t care. Whites are the bad guy bogeymen, trotted out when it gets tough to pass legislation. And his recent comments reveal his paradigm: white Americans are generally racist and any time they oppose any Obama policy or “injustice” at the hands of a racist group, they’re either being racists or they’re simply not entitled to equal protection because they haven’t suffered as much as other groups.

Nobody is seeking to belittle the suffering of other people, here, but America seeks equality. This means equal protection under the law, not equality in historical racial suffering.

Holder’s statements are completely sadistic, and they betray his motives. He has a score to settle, and by his figure whites have a lot more suffering to endure before they have a right to expect justice from the “Justice Department.” Satisfying vendettas is for Mob Bosses, not the US Attorney General’s Office.

The Establishment media’s silence regarding his racist statements demonstrates agreement and approval. Such hypocrisy. Such shame. Such racism.


Big Journalism

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The roaring debate over the budget has flooded Congress with proposals and counter-proposals aimed at lessening the gaping hole between federal revenues and expenses. Almost every part of the federal budget, including defense, has been targeted under various plans. But cutting defense spending doesn’t fix the problem. It doesn’t even come close.

According to Heritage Foundation Vice President Kim Holmes, Congress could eliminate the entire Department of Defense budget and still have crushing debt in the future. The greatest slice of the federal budget goes to cover Medicare, Medicaid, and Social Security, and that slice will only get bigger as baby boomers retire. We spend twice as much on those programs than we do on defense. Effective efforts at restoring fiscal health should begin by reforming social entitlements.

Of course, defense spending is a sizeable part of the remaining budget. In a recent publication, Heritage expert Mackenzie Eaglen identifies specific programs that demand scrutiny and if warranted, the judicious use of the budget scalpel. Any superfluous, wasteful, or inefficient program should be cut. But these “savings” should immediately be reinvested into programs that increase the security of our troops, keep the United States military at the top of its game, and safeguard our country.

It comes down to this: Although cuts to the federal budget are desperately needed to tackle out-of-control spending, slashing defense won’t solve the problem. Nor is it appropriate, given the enormous responsibilities the United States asks of its military and intelligence agencies.

Providing for the “common defense” is no luxury. It is the first obligation of the federal government, according to the Constitution. Shortchanging defense is sacrificing security.

Scott Nason is currently a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm

The Foundry: Conservative Policy News.

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Halfway through the 2011 fiscal year, our military is continuing to fight a ramped-up war in Afghanistan, preparing to redeploy 50,000 forces out of Iraq, conducting numerous humanitarian missions, and maintaining all other operations abroad. And it’s doing all this without a shred of fiscal security.

Were Congress to fund defense through a year-long Continuing Resolution, elected officials would be reducing the annual defense budget by at least $ 18 billion. The effects would wreak havoc on spending plans for the following fiscal year, setting the military further behind where it had planned to be. Such alarmingly reduced funding levels are well below what’s needed to meet current national security requirements.

Gates is more than skeptical about untimely spending cuts.

The implications of a spending freeze for defense go beyond losing the planned growth that $ 18 billion would purchase. This amount doesn’t include potential losses associated with contract and procurement delays that place the defense industrial base on indefinite standby. As Secretary Robert Gates has noted, today’s defense spending is “as low a percentage of federal outlays as it’s been since before World War II.” The harm Congress would impose on the military under a long-term CR is both unsustainable and unconscionable.

Gates is rightfully calling on Congress to stop playing games with military spending. Congress must take a longer view. Members would be wise to listen carefully to what the civilian in charge of the Defense Department recently told the press about a CR:

It’s the worst of all possible kinds of reductions, in significant measure because it comes halfway through the fiscal year. But beyond that, we can’t make up all of that through changes in contracts and programs and so on. And, in fact, most likely it would come out of operations and maintenance, even in war — operations and maintenance, through stretching out programs, which is what makes them very expensive; cuts in training and readiness.

And frankly, that’s how you hollow out a military even in wartime. It means lower flying — fewer flying hours, fewer steaming days, cuts in training for … home-stationed ground forces, cuts in maintenance and so on.

So, again, if we ended up with this yearlong continuing resolution, this new Congress would be responsible for a cut that’s nearly twice the size of our FY12 proposal and much, much more damaging.

So my question is about the seriousness of those who are worried about reductions to the defense budget, and I think they can demonstrate that seriousness by passing a defense appropriations bill, which still would be $ 10 billion less than the president has asked for.

So in short, talk about not cutting defense in FY12, as far as I’m concerned, is simply rhetoric without action on the FY11 defense budget that’s already in front of the Congress.

A yearlong CR would hamper the Navy’s ability to grow the fleet and affect more than 20 Air Force acquisition programs that require immediate funding. For example, the Navy and Congress have long sought to increase production of Virginia-class submarines from one to two per year: these plans would be further delayed by a continued freeze on defense spending. This would then increase the cost of these submarines in 2012 as a result of significant program and planning disruption.

Funding defense through a long-term CR could also cut the number of the Navy’s P-8A Poseidon maritime surveillance aircraft from seven to six and significantly slow the in-service date of these aircraft into an operational squadron. Further, Congress would essentially be increasing the cost of all major defense programs in 2012 if defense remains frozen at ’10 levels. Why? Because programs that are stalled or slowed due to inadequate funds in 2011 will then be too immature to execute next year. This then increases the cost of the program, which then virtually guarantees a cut in what the military can buy.

Congress should either separate FY 2011 defense spending from the CR and pass it as a stand-alone bill, or find an additional $ 18 billion within their reductions package to adequately fund defense this year. Doing any less could start the military down a familiar and dangerous path of possibly becoming a hollow force.

By adequately funding defense at the president’s requested and legitimately needed level, Congress would be saving itself from creating unnecessary longer-term costs. Forcing the military to postpone plans to buy needed items for those in uniform won’t really save money. When schedules slip, costs grow. When costs grow, the overall buy is cut. This destructive cycle costs more over time — and it will be ended only if Congress demands savings, efficiency, and the smart use of taxpayer dollars.

Big Peace

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Writing in today’s Washington Times, Israeli Deputy Foreign Minister Danny Ayalon offers the latest entry in the never-ending effort by Israeli and American conservatives to downplay the significance of the Israeli-Palestinian conflict:

The last few weeks and months have finally proven the fallacy of one of the most mistaken theories about development and peace in the Middle East. For a number of years, foreign officials, experts and commentators have claimed that if the Israeli-Palestinian conflict was solved, then there would be peace in the Middle East. This was coined “linkage.” […]

The WikiLeaks revelations proved that among Arab decision makers and policy-shapers, the Israeli-Palestinian conflict was fairly low on the list of urgent priorities in the region. These private conversations reveal that Arab leaders are preoccupied with the looming threat of Iran and only make perfunctory statements on the “Palestinian question,” as one senior American diplomat who has spent his career in the Middle East told the New York Times recently.

These revelations shook the linkage argument to its very foundations, but recent events in our region have dealt it the mortal blow.

In keeping with the rules of this genre, Ayalon’s presentation of the linkage argument is an obvious straw man. No one has ever claimed “if the Israeli-Palestinian conflict was solved, then there would be peace in the Middle East.”

The actual linkage argument was probably best articulated by Gen. David Petraeus in his statement (pdf) to Congress last March, in which he cited “Insufficient progress toward a comprehensive Middle East peace” as one of the key challenges to security and stability in the region:

The enduring hostilities between Israel and some of its neighbors present distinct challenges to our ability to advance our interests in the AOR [area of responsibility]. Israeli-Palestinian tensions often flare into violence and large-scale armed confrontations. The conflict foments anti-American sentiment, due to a perception of U.S. favoritism for Israel. Arab anger over the Palestinian question limits the strength and depth of U.S. partnerships with governments and peoples in the AOR and weakens the legitimacy of moderate regimes in the Arab world. Meanwhile, al-Qaeda and other militant groups exploit that anger to mobilize support. The conflict also gives Iran influence in the Arab world through its clients, Lebanese Hizballah and Hamas.

As I showed in an article for Foreign Policy, Ayalon’s claim about WikiLeaks is simply false. In fact, the WikiLeaks documents revealed Arab leaders bringing up the Palestinian issue with almost as much frequency as Iran. Read the statements for yourself and decide whether they seem “perfunctory.”

Speaking at Israel’s Herzliya Conference earlier this month, just days before Mubarak fell, Israeli opposition leader Tzipi Livni herself endorsed the linkage argument. “I do not believe Israel is the source of extremism in region,” Livni said, “but the conflict has influenced both existing peace agreements with our neighbors, and impacted our ability to change reality in region”:

We don’t have border conflicts with Egypt and Jordan, but this is a cold peace. It is a cold peace because of the linkage between the conflict and our relationship with these countries… These governments have had to cope with hostile public opinion because of the conflict.

Speaking later, NATO Secretary General Anders Fogh Rasmussen similarly stressed the significance of the conflict. “The [Israeli-Palestinian] conflict is not the only problem in the region,” Rasmussen said, “but it constitutes a major impediment to addressing other issues that threaten regional stability.”

According to Ayalon, this is all delusion. To better understand where Ayalon is coming from, it’s probably good to keep in mind that he argues that the West Bank isn’t really occupied.

As for what the ongoing uprisings mean for the salience of the conflict among Arabs, you’ll notice that after Ayalon asserts that they’ve dealt linkage a “mortal blow,” he offers no evidence for this. Honestly, I’m continually baffled by this bizarre, almost religiously fervent belief among some conservatives that Arab publics only care about the Palestinian issue because Arab despots have poisoned their minds with propaganda about it. While it’s of course true that Arab demagogues have tended to cynically stoke resentment over the issue to divert anger from their own failures, the reason this is effective is because Arab publics genuinely care about the Palestinian issue. Osama bin Laden may or may not actually care about it when he mentions it in his fatwas, but that’s actually irrelevant. He knows that his target audience does.

Virtually every scrap of polling data on Arab public opinion confirms this. The Israeli-Palestinian conflict is not usually rated the most pressing issue, but it’s one that continues to be very important among Arab publics. In my view, it’s very similar, actually, to the way that many Americans identify with and care about Israel, even if it’s only a top issue for a very small, committed minority. It doesn’t seem that hard to understand. It’s both odd and a little sad that we have this handful of American and Israeli conservatives who seem to believe that if they will it, linkage will become a dream. But, as Rashid Khalidi and Fouad Ajami both suggest in articles today — and there’s really not a lot on which you’ll fine these two gentlemen agreeing — if the Palestinian issue complicated Israel’s relationships with the dictators of the region, forming relationships with governments that are actually representative will only be more so. Imagining that their 60-year conflict with the Palestinians might simply decline into a non-issue is an illusion of which responsible Israeli leaders would do quite well to rid themselves.

Wonk Room

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Courage.


My heart sank when I read it, but look at it this way: Is this really the hill you want to die on? The GOP’s proposed budget cuts, while steep by normal standards, are nothing more than a token to please the base. Whether we end up cutting $ 100 billion or $ 60 billion or $ 10 […]

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Hot Air » Top Picks

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“I don’t think it’s a killer issue for him.”


A bizarre clip. I think this is the wrong way for Romney to go — and I think Huckabee knows it’s the wrong way for him to go — simply because Romney can’t afford to admit to any further errors in judgment. He’s forever suspect because of his abortion reversal; if he cops to having […]

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Hot Air » Top Picks

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At a townhall meeting Monday, tea party firebrand Rep. Allen West (R-FL) got into a shouting match with a Muslim attendee who confronted West about his history of highly Islamophobic comments. “Don’t try to blow sunshine up my butt and tell me [Islam] is all warm and fuzzy,” the congressman angrily responded to the questioner’s assertion that Islam is not a violent religion.

West appeared on Fox and Friends this morning to discuss the incident. Propped up by Fox host Steve Doocy, West, a retired lieutenant colonel, said he couldn’t possibly be Islamaphobic because, “I have done my share to bring the light of freedom into the Islamic world” while serving with the Army in Iraq and Afghanistan:

DOOCY: You stood up for the principles of the Muslim countries. You served abroad, and you tried to keep freedom alive in Muslim countries.

WEST: Absolutely. And I think that’s one of the things that we should understand. You know, we went into Kosovo to protect the Muslim population there. You know, I was there in Desert Storm and Desert Sheild to protect Kuwait. I served in Iraq, I’ve been in Afghanistan, I spent two and half years there.

So I think I’ve done my share to bring the light of freedom into the Islamic world. And for this young man to come up to me and try to castigate me as some enemy of Islam, I will not tolerate that.

Watch it:

Indeed, West served for 20 years in the military, but his career ended abruptly in 2003 when he resigned under a cloud while facing a court martial over the brutal interrogation of an unnamed Iraqi man. According to his own testimony during a military hearing, West watched four of his men beat the suspect, then West said he personally threatened to kill the man while holding a pistol. According to military prosecutors, West later took the detainee outside and fired a 9mm pistol inches from the man’s head, in order to make him believe he would be shot. West thought the man had information about an assassination plot against him.

It’s telling that West sees occupying another nation and then brutally mistreating one of their citizens as bringing “the light of freedom into the Islamic world.”

ThinkProgress

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Several Republican governors — most notably Gov. Scott Walker (R-WI) — are trying to legislatively strip public employees of their right to collectively bargain, under the guise of a budget crisis. These governors are using the economic anxiety being felt across the nation as a justification for eliminating the ability of workers to bargain, even though such rights have no bearing on a state’s fiscal soundness.

Gov. Mitch Daniels (R-IN) already stripped public employees of their right to collectively bargain in 2005. But even having personally implemented such a policy, Daniels can’t explain how it would help Wisconsin get its budget into balance. In fact, Daniels admitted to NPR’s Diane Rehm yesterday that removing collective bargaining rights from public employees is all about kneecapping unions politically:

REHM: Help me to understand how taking away the rights of collective bargaining would fix or help to fix the budget shortfall.

DANIELS: Well, the most powerful special interest in America today are the government unions. They’re the leading financial contributors. They have the biggest PAC’s. They have muscle. A lot of times their contracts provide for time off to go politic and lobby. And over the course of the last few decades, if there were ever injustices or shortfalls in how we took care of government employees, it has been fixed and over-fixed. And so I think that the — you know, he’s trying — what he’s trying to do is, in the public interest, interrupt this fortuitous process in which taxpayer dollars pay for very solid salaries for government employees. […]

REHM: I still am totally in the dark as to how bargaining and the bargaining power of unions and taking that away is going to affect the budget process.

DANIELS: Well, if my newspaper is correct, he is not talking about that. He’s talking about narrowing the scope down to wages and, you know, that…

REHM: But they’ve already conceded wages.

DANIELS: Well, you know, this is — I think he’s trying to fix a structural problem, which I’ve demonstrated or discussed to you already, Diane. The problem comes from the, you know, forced expropriation, whether they like it or not, of money from — that started with the taxpayers, from the salaries of government workers, circulated back into a political machine that is the most powerful out there.

Daniels can’t give a reason for how eliminating collective bargaining would reduce state deficits because there isn’t one. In fact, “states with no collective bargaining rights for any public employees saw an average budget shortfall of 24.8 percent in 2010 while states (including the District of Columbia) with collective bargaining for all public employees had an average budget shortfall of 24.1 percent.”

Daniels is dealing with protests in his own state that mirror those occurring in Wisconsin. In fact, Indiana Democratic lawmakers left the state today — denying the state legislature a quorum — in order to block a bill that would make Indiana a “right to work” state, which would allow non-union members to free-ride on union contracts. Central Indiana Jobs with Justice called the bill “an attack on the middle class.”

Cross-posted on The Wonk Room.

ThinkProgress

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Several Republican governors — most notably Gov. Scott Walker (R-WI) — are trying to legislatively strip public employees of their right to collectively bargain, under the guise of a budget crisis. These governors are using the economic anxiety being felt across the nation as a justification for eliminating the ability of workers to bargain, even though such rights have no bearing on a state’s fiscal soundness.

Gov. Mitch Daniels (R-IN) already stripped public employees of their right to collectively bargain in 2005. But even having personally implemented such a policy, Daniels can’t explain how it would help Wisconsin get its budget into balance. In fact, Daniels admitted to NPR’s Diane Rehm yesterday that removing collective bargaining rights from public employees is all about kneecapping unions politically:

REHM: Help me to understand how taking away the rights of collective bargaining would fix or help to fix the budget shortfall.

DANIELS: Well, the most powerful special interest in America today are the government unions. They’re the leading financial contributors. They have the biggest PAC’s. They have muscle. A lot of times their contracts provide for time off to go politic and lobby. And over the course of the last few decades, if there were ever injustices or shortfalls in how we took care of government employees, it has been fixed and over-fixed. And so I think that the — you know, he’s trying — what he’s trying to do is, in the public interest, interrupt this fortuitous process in which taxpayer dollars pay for very solid salaries for government employees. […]

REHM: I still am totally in the dark as to how bargaining and the bargaining power of unions and taking that away is going to affect the budget process.

DANIELS: Well, if my newspaper is correct, he is not talking about that. He’s talking about narrowing the scope down to wages and, you know, that…

REHM: But they’ve already conceded wages.

DANIELS: Well, you know, this is — I think he’s trying to fix a structural problem, which I’ve demonstrated or discussed to you already, Diane. The problem comes from the, you know, forced expropriation, whether they like it or not, of money from — that started with the taxpayers, from the salaries of government workers, circulated back into a political machine that is the most powerful out there.

Daniels can’t give a reason for how eliminating collective bargaining would reduce state deficits because there isn’t one. In fact, “states with no collective bargaining rights for any public employees saw an average budget shortfall of 24.8 percent in 2010 while states (including the District of Columbia) with collective bargaining for all public employees had an average budget shortfall of 24.1 percent.”

Daniels is dealing with protests in his own state that mirror those occurring in Wisconsin. In fact, Indiana Democratic lawmakers left the state today — denying the state legislature a quorum — in order to block a bill that would make Indiana a “right to work” state, which would allow non-union members to free-ride on union contracts. Central Indiana Jobs with Justice called the bill “an attack on the middle class.”

Wonk Room

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What with President’s day and the general failure of Obama to be the rhetorically inspiring leader that climate hawks had hoped for on global warming, I’m going to repost my multi-part series on Lincoln.

This is material that comes from my unpublished book on rhetoric and politics — which I am still hoping to get published (soon).  Also, I’m at Stetson University this week as a Woodrow Wilson Visiting Fellow, discussing with the students How they can be most employable in a world of global warming and peak oil and food insecurity.  So you will notice a higher than normal amount of reposting and guest posting.

I think science has mostly told us what it can about the urgent need to act swiftly and strongly to reduce greenhouse gas emissions and avoid destroying the planet’s livability for the next several hundred years (see A stunning year in climate science reveals that human civilization is on the precipice).

Yes, more observations and more analysis are valuable — and I will keep reporting on the ever-worsening climate outlook — but right now we need much more persuasiveness (see Why scientists aren’t more persuasive, Part 1).   As James Hansen says, we are still waiting for our climate Churchill.

One of Churchill’s defining characteristics was his mastery of rhetoric.  Indeed, at the age of 22 he wrote a brilliant, unpublished essay, “The Scaffolding of Rhetoric so.”  But this is the day we remember Lincoln, so I’m going to rerun my series on Lincoln’s mastery of rhetoric, the 25-century-old art of influencing both the hearts and minds of listeners with the figures of speech. If you have any doubt about the importance of the figures to Lincoln, consider this:

In a famous 1858 speech, Lincoln paraphrased Jesus, saying “A house divided against itself cannot stand,” and he extended the house metaphor throughout the speech. His law partner, William Herndon, later wrote that Lincoln had told him he wanted to use “some universally known figure [of speech] expressed in simple language … that may strike home to the minds of men in order to raise them up to the peril of the times.”

Part 1 will look briefly at how Lincoln taught himself the figures. Later parts will look at his use of three figures in particular: irony, metaphor, and extended metaphor. The best textbook on the figures of speech in the English language, other than the King James Bible, is the complete works of Shakespeare.

The Bard and his audience knew and used over two hundred figures of speech. The figures–the catalog of the different, effective ways that we talk–turn out to “constitute basic schemes by which people conceptualize their experience and the external world,” as one psychologist put it.

Elizabethans like Shakespeare learned the figures the hard way. William likely attended the town grammar school from age seven to at least age thirteen. Grammar schools got their name because they taught grammar–Latin grammar. The schooling was intensive: ten hours a day, six days a week, thirty-six weeks a year.

The amount of repetition was staggering: Every single hour of instruction required, according to one sixteenth-century schoolmaster, six or more hours of exercises to apply the lesson to both speaking and writing. Much of the curriculum was rhetoric since the Elizabethans saw eloquence as the greatest skill to be acquired and rhetoric as the key to the Bible and literature. The teaching strategy was systematic: “First learn the figures, secondly identify them in whatever you read, thirdly use them yourself.” Hour after hour after hour, identifying every figure in Ovid or Cicero, then creating your own versions.

How did students respond to such rigorous teaching? C. S. Lewis says we must imagine the following mindset of would-be Elizabethan poets: “Your father, your grown-up brother, your admired elder school fellow all loved rhetoric. Therefore you loved it, too. You adored sweet Tully [Marcus Tullius Cicero] and were as concerned about asyndeton and chiasmus [figures of speech] as a modern schoolboy is about county cricketers or types of aeroplanes.”

Nineteenth-century America lacked the rigorous teaching of the rhetoric of Shakespeare’s day, but orators were widely admired, entertaining large audiences–and larger readerships–with speeches that lasted over two hours and that might be printed in a local newspaper, the text often filling the entire front page. This was the golden age of American oratory, the age of Daniel Webster, of Henry Clay, of Stephen Douglas, and of Abraham Lincoln.

In modern times, with multiple media to entertain ourselves with–television, movies, radio, the Internet, video games, iPods–we can hardly imagine what it was like to live at a time when public speeches and debates were a primary form of entertainment. One 1858 audience, after sitting through three hours of Lincoln and Douglas debating, actually went out to hear another speech. Lincoln himself, after his first debate with Douglas that year, headed off to hear another speech.

Lincoln, a master orator, debater, and rhetorician, was the most consciously rhetorical of our presidents. He once incisively attacked an opponent for employing a particular metaphor–using a metaphor of his own: “I wish gentlemen on the other side to understand that the use of degrading figures [of speech] is a game at which they may not find themselves able to take all the winnings.”

In Lincoln’s day, aspiring preachers, lawyers, and politicians were taught some rhetoric in college, though they would have learned much just from their study of the Bible. Lincoln worked hard to teach himself elocution and grammar.

Lincoln studied the great speechmakers of his time, like Daniel Webster, as well the great Elizabethan speechmaker. At an early age, he appears to have studied William Scott’s Lessons in Elocution, which ends with forty-nine speeches from life and art, nineteen from Shakespeare, including a number that he memorized, such as the soliloquy by King Claudius on the guilt he feels for having murdered Hamlet’s father. At the age of twenty-three, Lincoln walked six miles to get a copy of Samuel Kirkham’s English Grammar, which ends with a several-page discussion of the figures of speech.

Lincoln continued his passion for poetry and Shakespeare throughout his entire life. He spent hours reading passages from Shakespeare to his personal secretary John Hay and the artist F. B. Carpenter. After seeing one performance of Henry IV Part One, Lincoln debated Hay on the meaning and emphasis of a single phrase of Falstaff’s. During the painting of “Signing of the Emancipation Proclamation,” Carpenter describes Lincoln reciting Claudius’s 36-line speech in Hamlet “from memory, with a feeling and appreciation unsurpassed by anything I ever witnessed upon the stage.”

The one figure of speech discussed in both Kirkham’s book (briefly) and Scott’s book (with three full pages of examples) is antithesis–placing words or ideas in contrast or opposition, such as Lord Chesterfield’s quip, “The manner of speaking is as important as the matter,” or Shakespeare’s

Cowards die many times before their deaths,
The valiant never taste of death but once.”

This became one of Lincoln’s favorite figures, in unforgettable lines such as “the world will little note, nor long remember, what we say here, but it can never forget what they did here” and “with malice toward none; with charity for all.”

Part 2: Use irony, the twist we can’t resist

Irony, derives from the Greek eironeia (”dissimulation”), the term given to the action and speech of the eiron, or “dissembler,” a stock character in Greek comedy. The first recorded use is the Republic by Plato where “Socrates himself takes on the role of the eiron” and feigns ignorance as he asks “seemingly innocuous and naive questions which gradually undermine his interlocutor’s case,” trapping him “into seeing the truth.” Many Greeks did not see the truth the way Socrates did-they put him to death-so eiron also carries the sense “sly deceiver” or “hypocritical rascal.”

I have previously written about Socratic irony–whereby an eloquent, sophisticated speaker pretends to be a blunt everyman (see Why scientists aren’t more persuasive, Part 2: Why deniers out-debate “smart talkers”).

Eirons are a stock character in popular culture, most commonly found on police dramas — think Peter Falk’s Lt. Columbo. In Shakespeare’s Julius Caesar, Marc Antony takes on the role of the eiron when he pretends to praise those who killed Caesar even as he whips up the Roman crowd against them. Antony says “I am no orator, as Brutus is, But–as you know me all–a plain blunt man.” It is a mark of eirons and wily orators that they accuse their opponents of being rhetoricians.

Lincoln opened his masterful February 1859 Cooper Union speech echoing Shakespeare’s Antony: “The facts with which I shall deal this evening are mainly old and familiar; nor is there anything new in the general use I shall make of them.” (In Antony’s own words, “I only speak right on; I tell you that which you yourselves do know.”)

VERBAL IRONY

A second type of irony is best called “verbal irony.” For the Roman rhetoricians, such as Cicero, ironia denoted a rhetorical figure of speech “in which, for the most part, the meaning was contrary to the words.” To borrow a chiasmus from A Dictionary of Literary Terms, “at its simplest, verbal irony involves not meaning what one says, but saying what one means.”

The first mention in English is in 1502: ‘yronye … by the whiche a man sayth one & gyveth to understande the contrarye.” Verbal irony is a trope, from the Greek for turn, since it is a figure of speech that turns or changes the meaning of a word away from its literal meaning (like metaphor).

Verbal irony is an essential element of certain kinds of speeches, especially those that occur in a debate or are similarly aimed at disputing a point or rebuking an opponent. Using verbal irony is a powerful means of turning your opponent’s argument against him or her, by revealing a deeper truth that utterly undercuts that argument. Verbal irony is the way to call your opponent a liar without calling your opponent a “liar.”

Two speeches capture the essence — and importance — of irony better than any other. The first is by Shakespeare, the second by Lincoln. Marc Antony’s “Friends, Romans, Countrymen” speech in the Roman Forum is a model of rhetorical brilliance — and was a model for Lincoln.

Brutus, in his Forum speech, had just convinced the crowd the assassination of Caesar was justified. He convinced them so well that some citizens were persuaded, ironically, that he should be the new Caesar. In making his case, Brutus used the word “honor” four times. Since Brutus was widely respected for his honor, since he directly links the citizens’ belief in him to that very honor, Antony needs to attack that quality in him, but do so indirectly, since Brutus has won the crowd completely over.

Cleverly, Antony himself uses the word “honorable” ten times in this one speech. He repeatedly says Brutus is an honourable man and that all of the conspirators are honourable. His irony is increasingly blatant:

When that the poor have cried, Cæsar hath wept;
Ambition should be made of sterner stuff:
Yet Brutus says he was ambitious;
And Brutus is an honourable man.

With this drumbeat, Antony convinces the crowd that there was no justification for killing Caesar, which in turns means the murder was a dishonorable act. For a final knockout punch, Antony reveals the existence of Caesar’s will to the citizens, showing them the parchment he describes as the final testament of Caesar’s love for them. The citizens beg him to read the will. Antony slyly says

I have o’ershot myself to tell you of it.
I fear I wrong the honourable men
Whose daggers have stabb’d Caesar; I do fear it.

The crowd is now his. One citizen shouts, “They were traitors,” and then spits out, “Honourable men!” This speech is a treatise on verbal irony.

Irony is about having the actual meaning of the words turn out to be the opposite of their literal meaning. Antony uses irony to negate the meaning of “honor” and “honorable” as it applies to Caesar’s murderers, using verbal daggers to repeatedly stab Brutus’s reputation. His speech is aimed at stirring the Roman citizens to revenge and murder. It works.

In his crowd-pleasing and career-making Cooper Union speech, Abraham Lincoln used the same rhetorical strategy as Antony-ironic repetition. Much as Antony was not directly debating Brutus, but giving a speech right after him, Lincoln was not directly debating Stephen Douglas, but giving a speech a few months after him. He was offering a very different answer on the crucial “question,” as Douglas called it: Is the federal government forbidden from controlling “slavery in our Federal Territories”? Lincoln starts by quoting Douglas for his New York audience:

In his speech last autumn, at Columbus, Ohio, as reported in The New York Times, Senator Douglas said:

“Our fathers, when they framed the Government under which we live, understood this question just as well, and even better, than we do now.”

I fully indorse this, and I adopt it as a text for this discourse.

“What is the frame of government under which we live?” Lincoln asks rhetorically, as if to clarify Douglas. He immediately helps the audience, “The answer must be: ‘The Constitution of the United States.’ ” He does this so that he can define the “our fathers” in Douglas’s speech as the thirty-nine men who signed the Constitution: “I take these ‘thirty-nine,’ for the present,” Lincoln says, “as being ‘our fathers who framed the Government under which we live.’ ”
Then Lincoln begins his brilliant analysis to show that Douglas’s words were, in fact, ironic. Douglas had said plainly that the framers of the U.S. government not only understood the slavery issue better than the people in the mid-1800s, but also that they agreed with Douglas. Lincoln grants that the framers understood the slavery issue better but proves that they agreed with him. He examines the voting record of the thirty-nine framers of the Constitution to show that

… twenty-one-a clear majority of the whole-certainly understood that no proper division of local from federal authority, nor any part of the Constitution, forbade the Federal Government to control slavery in the federal territories; while all the rest probably had the same understanding. Such, unquestionably, was the understanding of our fathers who framed the original Constitution; and the text affirms that they understood the question better than we.

Just as Antony threw Brutus’s words back in his face, so, too, does Lincoln with Douglas’s words. In a masterpiece of ironical repetition comparable to Antony’s more famous speech, Lincoln repeats the word “fathers” thirty times, repeats the number “thirty-nine” twenty times, and repeats the entire phrase “Our fathers, when they framed the Government under which we live” and the phrase “better than we,” a remarkable twenty-two times, presumably with a more ironic tone of voice each time (just as a great actor playing Antony would with the word “honorable”), drawing considerable laughter and applause. This is the speech of a man who read Shakespeare often–and aloud.

With a single electrifying speech, masterfully using Socratic irony and verbal irony, as well as a number of other figures, Honest Abe jump-started a campaign that would win him the Republican nomination and ultimately the presidency.

The Cooper Union speech is not as well known to the public as many of Lincoln’s as other speeches, but it is as masterful and as important to his career as any. The discussion here draws on Harold Holzer’s book, “Lincoln at Cooper Union: The Speech That Made Abraham Lincoln President,” a must read for students of Lincoln or rhetoric.

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Climate Progress

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(Stewart Baker)

The Ft. Hood shooting has finally been the subject of a careful after-action analysis — a study that DOD should have done but didn’t.  The analysis was done instead in a bipartisan report by Senators Lieberman and Collins, who lead the Homeland Security committee.  Their report reveals few new facts but offers disturbing insights into DOD’s cultural dysfunctions.

On November 5, 2009, witnesses say, Maj. Nidal Hasan leaped on a desk at a Ft. Hood readiness center, shouted “Allahu Akbar” and began executing the unarmed soldiers all around him.  Thirteen people were dead and thirty-two wounded before an armed police officer managed to shoot Hasan five times.  Now confined to a wheelchair, Hasan is expected to go on trial shortly.

Anyone who paid attention to news coverage after the rampage knows that the Army had plenty of warning about Hasan’s Islamist views.  Classmates say that he questioned whether he could fight against other Muslims and made presentations justifying the murder of non-Muslims, suggesting that Muslim-Americans in the armed forces might kill other servicemembers, defending Osama bin Laden, and justifying suicide bombers.  The servicemembers in the audience were so appalled that the instructor finally stopped one of Hasan’s presentations.  Off the record, it seems, everyone thought Hasan was dangerous, a nutjob, or an Islamist, and perhaps all three.

On the record, though, no one would criticize him.  You don’t rise in the armed forces if you can’t read your superiors.  And the rising officers who met Hasan knew what their superiors wanted without having to be told.  Islam was a religion of peace, and Muslims in the Army were a welcome sign of diversity. Treating Hasan as a dangerous Islamist would put those messages at risk.

And that might be bad for their careers.  So instead they spun Hasan’s rants into gold.  His 2007–2008 evaluation praises Hasan for having “focused his efforts on illuminating the  role of  culture and  Islamic faith  within the Global War on Terrorism.”  It adds that his “work in this area has extraordinary potential to inform national  policy and military strategy. … His unique interests have captured the interest and attention of  peers and mentors alike.”

The next year was the same, full of praise for Hasan’s “keen interest in  Islamic culture and  faith  and his shown capacity to contribute to our psychological understanding of  Islamic  nationalism and how it  may relate to events of  national security and Army interest.”

So far, no surprises.  It was clear within a few days of the shootings that political correctness had played a role in Hasan’s promotion and retention.  What the Lieberman-Collins report tells us, though, is how big a role political correctness played even after the government discovered through intercepts that Hasan was corresponding with the Yemeni-American Islamist, Anwar al-Awlaki.  (Awlaki’s name is redacted from the report but has been widely reported in the press.)

The intercepted correspondence went to the FBI’s San Diego office. According to the Lieberman-Collins report, Hasan’s initial correspondence wasn’t conclusive proof that he was a risk, but it begged for investigation.  His messages, it says, “meandered in  a ‘stream of consciousness,’ hinted at the answer Hasan  wanted to hear, and  had content that contravened officership standards.”  According to the report, “The communications on their face  raised questions of  whether Hasan was a potential counterinteligence or  counterterrorism threat.”  That’s how the FBI office in San Diego saw it too. Because Hasan was stationed at Walter Reed medical center, San Diego asked the FBI’s Washington field office to follow up.

The Washington field office booted the assignment.  It waited until the 90-day deadline for responding to inquiries was nearly up.  Then a detailee spent four hours looking at Hasan’s records.  The detailee found no mention of Hasan in terrorism databases but he did find the evaluation reports in which Hasan’s public displays of radicalization were cleverly repackaged as praiseworthy research into the “role of culture and Islamic faith within the Global War on Terrorism.”

So, put yourself in the place of the agent assigned to this problem.  You’ve got an Army major sending weird but not quite damning emails to al-Awlaki.  The Army seems to know he’s working in the area of Islam and terrorism, and he isn’t in the suspected terrorist database.  You could go talk to him, or send an official request for information to the Army.  If you do, though, there’s a chance you’ll be accused of trying to wreck Hasan’s career on flimsy evidence — on the basis of his protected religious and political speech, no less.  In addition to constitutional violations, you could be slammed for racism, or Islamophobia, or cultural insensitivity. After all, this is happening in May of 2009, and the Justice Department is under new management, management that is sending very different signals about its priorities in dealing with terrorism and Islam.

Meanwhile, the evaluation reports are staring you in the face.  They offer an easy way out of the dilemma.  “Research, yeah, that’s the ticket,” I imagine the agent saying to himself, “Hasan could be doing research.”  So he blows off San Diego’s concern without interviewing Hasan or doing anything else that might cause waves.   San Diego complains. Washington fires back. And neither office does enough followup to discover the rest of Hasan’s correspondence with Awlaki.  (There’s a long and interesting inside-baseball story about that, and the FBI’s relationship with other agencies, in the report that I may discuss in another post.)

Next thing the FBI in San Diego knows, there are thirteen dead and 32 wounded at Ft. Hood.  As the reports hit the wire, one San Diego agent points and says to another, ““You know who that is?  That’ s  our boy!”

It was indeed. You’d think a loss like that would cure DOD of political correctness.

You’d be wrong.

DOD quickly stood up an independent review of the Ft. Hood shooting by former Secretary of Veterans Affairs Togo West and retired admiral Vern Clark.  A staff of full-time contractors and military personnel served West and Clark, who were asked to look hard at internal threats to the military. The result of all this effort is a model of politically correct mush — a classic of contractor-speak, in fact.

Fifty members of the military community were gunned down, their ears still ringing with “Allahu Akbar!” shouted by a man wearing their own uniform. And the official DOD report on the attack never mentions Islam once.  In contrast, it touches on the threat posed by “low self-esteem” four times.

The closest the report comes to blaming Islamic extremism for the attack is a single sentence identifying the sources of domestic terrorism.  In case you’re wondering, they include “animal rights, environmentalism, nationalism, white supremacy, religious causes, and right-wing politics.”

So there you are.  I can’t help wondering if Secretary West and Adm. Clark expect the Pentagon to take on the threats in that order. That way, DOD would first stem the threat of excessive nationalism in the military; then it could turn to the threat posed by “religious causes.”  And maybe, just to avoid discrimination, it could do the religions alphabetically — getting to Islamic extremism after it mops up Episcopalian extremism and just before tackling Jehovah’s Witness extremism.

Okay, that’s a little unfair to Secretary West and Adm. Clark.  But only a little.  In its delicate sidestepping of Hasan’s obvious motivation, and its irresponsible sidestepping of the shocking PCness epitomized by Hasan’s evaluations, the West/Clark report is part of DOD’s problem.  It stands in stark contrast to the aggressive DOD action in 1996, when two Army soldiers carried out a racially motivated murder of an African-American couple.  Then, the Army had no trouble adopting a policy on extremist activities that forthrightly named white supremacist activities as a basis for disciplining soldiers.

When it comes to jihad, though, the mealy-mouthed West/Clark report tells us everything we need to know about DOD’s thinking. As the Lieberman-Collins report makes clear, the Army had all the tools it needed to deal with Hasan’s radicalization; it had used them recently and to good effect against racist and white supremacist groups in the Army.  As the Lieberman/Collins report makes clear, however, Islamic supremacy is an ideology that DOD refuses to acknowledge:

Neither of  Secretary Gates’ two memoranda directing implementation of particular West/Clark recommendations mentions violent Islamist extremism explicitly.  Both memoranda continue to down play the unique threat of violent Islamist extremism by portraying it as a subset of a more general threat — either workplace violence or undefined “extremism” more generally.  We remain concerned that DoD will  not appropriately revise policies to address violent Islamist extremism among servicemembers and that DoD personnel will not be specifically trained concerning violent Islamist extremism.

That sounds like a safe bet to me.  But it’s a bet likely to be measured in deaths not dollars.

If there’s anything I’ve learned in government, it’s that intellectual climate matters.  The 9/11 attacks were aided greatly by an intellectual climate in which privacy and civil liberties had far more practical value than preventing terrorist attacks. And a climate in which Islamic radicalization is described only in euphemisms didn’t just protect Hasan from scrutiny.  It help the next recruit as well.

That’s why efforts to shut the Overton window on inquiries into domestic radicalization are not just wooly-minded.  They’re dangerous.  This time, political correctness runs the risk of getting Americans killed – by discouraging counterterrorism officials from doing their jobs properly.

Senators Lieberman and Collins deserve credit for their courage in holding the window open.




The Volokh Conspiracy

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Wisconsin Gov. Scott Walker (R) claims with a straight face that his so-called “budget repair” bill does not take away collective bargaining rights for public workers. Maybe he hasn’t read his own bill, because if had and still made that claim, he would be lying. My guess is he has read the bill.

So has Washington Post columnist Ezra Klein. He writes “Walker tries to sell the change in collective bargaining as modest.”  But, says Klein

The best way to understand Walker’s proposal is as a multi-part attack on the state’s labor unions. In part one, their ability to bargain benefits for their members is reduced. In part two, their ability to collect dues, and thus spend money organizing members or lobbying the legislature, is undercut. And in part three, workers have to vote the union back into existence every single year. Put it all together and it looks like this: Wisconsin’s unions can’t deliver value to their members, they’re deprived of the resources to change the rules so they can start delivering value to their members again, and because of that, their members eventually give in to employer pressure and shut the union down in one of the annual certification elections.

You may think Walker’s proposal is a good idea or a bad idea. But that’s what it does…[he] is trying to obscure his plan’s specifics behind misleading language about what unions can still bargain for and misleading rhetoric about the state’s budget.

Click here for the full column.

AFL-CIO NOW BLOG

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Late Thursday, February 17, the Obama Administration filed a incredibly odd and almost insulting “Motion to Clarify” the judgment in the case it lost against 26 states and the NFIB in the Obamacare litigation in Florida v. U.S. Department of Health and Human Services, No. 10-cv-00091 (N. D. Fla.)(Judge Vinson). With this motion, the Administration has now stated officially that, notwithstanding the Judge’s declaration of the Patient Protection and Affordable Care Act (ACA or Obamacare) as unconstitutional, the Administration does not interpret the Judge’s order as requiring the Administration to cease carrying out the unconstitutional ACA. The “Motion to Clarify” does not explicitly seek reconsideration of Judge Vinson’s judgment declaring the ACA unconstitutional, nor does it seek a stay of that judgment; it simply says the Federal Government will not be following the Judge’s judgment declaring the ACA unconstitutional unless the Judge issues another order stating to the Government that the Judge did, in fact, anticipate its judgment to have immediate injunction-like effect.

This motion really is one for reconsideration of the entire case and to stay the judgment in disguise, but the Administration cannot meet the necessary standard to stay the judgment. Most legal observers would conclude that the Administration filed this “Trojan Horse” motion in bad faith. Suggesting that Judge Vincent needs to give further effect to his order is an insult to the judiciary’s role in our republic, and the court will almost certainly reject the motion.

The Administration’s memorandum filed with the district court is a study in creative writing for a broader political audience. In my humble experience, it is not the kind of legal argument any serious litigator would want to file in court, because it toys with Judge Vinson’s very kind way of putting his prior judgment and effectively taunts him that he couldn’t possibly have understood the enormity of what he was doing or meant that his judgment would be given effect anytime soon. The Memorandum in support of the motion is couched in very polite language (for a more general audience), but its meaning is startling for those who understand that the Rule of Law requires a losing party to abide by a court’s ruling pending appeal unless it actually seeks and obtains a stay of the mandate.

The Administration’s motion and memorandum essentially says that it will not abide by the ruling unless the judge tells them a second time he really meant to issue a binding judgment. The memorandum provides in pertinent part:

“Defendants will appeal both the Court’s judgment and the rulings that underlie it. This motion respectfully asks the Court to clarify the scope of this order, in particular that its declaratory judgment does not relieve the parties to this case of any obligations or deny them any rights under the Affordable Care Act while the judgment is the subject of appellate review, or, if the Court anticipated otherwise, to address specifically what the Court intends the parties’ obligations and rights to be under the judgment while appellate review is pending. . . . [Memo, page 2]

“Given (a) the wide-ranging and indeterminate consequences that would occur if the declaratory judgment were assumed to have immediate injunction-like effect; (b) the Court’s acknowledgment that it was deviating from the ‘normal rule’ of severability; (c) the concededly unique nature of the Court’s judgment, see, e.g., Op. 74 (‘This is not a situation that is likely to be repeated.’); and (d) the fact that the Court declined to impose an injunction, see Op. 75, defendants do not interpret the Court’s order as requiring them to immediately cease operating programs, implementing Medicare reforms, collecting taxes, extending grants, providing tax credits, and enforcing duties created by the ACA with regard to the plaintiff states, National Federation of Independent Business (‘NFIB’) members, and individual plaintiffs pending appeal, and defendants are proceeding on that basis.” . . . [Memo, p. 4]

“Defendants therefore respectfully request that the Court confirm that its declaratory judgment does not in itself automatically and in a self-executing manner relieve the parties of their obligations or rights under the Affordable Care Act while appellate review is pending.” . . . [Memo, p. 6]

“If the Court disagrees with defendants’ understanding and instead issues an order stating that it did, in fact, anticipate its judgment to have immediate injunction-like effect, defendants will consider how to respond pending appellate review, including whether to seek a stay pending appeal. Otherwise, defendants will proceed based on their understanding of the judgment as reflected above.” [Memo, p. 15]

Another question is why it took so long for the government with its legion of lawyers to file this shoddy, semi-insulting, political motion.

In reviewing the motion and supporting 16 pp. memorandum, I would have to guess the government spent more time war gaming the title, “Motion to Clarify,” and the PR phasing of its memorandum than its legal argument. It is also possible the real lawyers in the room who had to sign the pleadings and who might later have to defend them put up a fight. We may never know the truth about the inner deliberations over these documents, but it suggests to me that Obama Administration increasingly realizes that its legal case is lost. It’s shifting resources from winning the case in the lower courts to winning the public relations game for the next year or two. In short, this motion has more value as a delaying tactic and to persuade those outside the normal litigation process that its 2-2 win/loss ratio is still relevant.

The Foundry: Conservative Policy News.

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