THE GUNS THAT STOLE CHRISTMAS

THE GUNS THAT STOLE CHRISTMAS

One of the guns was a Bushmaster .223 rifle.  The second was a Sig Sauer pistol.  The third a Glock pistol. 

All were semi-automatic. This means that, once a bullet was fired, the guns automatically re-loaded and were set to be fired again.  There was no need to re-cock or manually re-load the guns.

Yesterday in Newtown, Connecticut, Adam Lanza used one or more of them to kill twenty children and six adults in an elementary school.  He then killed himself.  One newspaper reported that he had fired more than 100 rounds.  His victims were shot multiple -- some as many as three to eleven -- times.  He apparently had previously killed his mother, with whom he lived in that town. He also reportedly suffered from a personality disorder or some other mental illness. 

The dead children were first graders.

The Sig Sauer is advertised as a "weapon of choice for elite units around the world."  Its P220 model pistol, which was created in 1985, "led the semi-automatic revolution" in gun manufacturing.  There are at least twenty three models of Sig Sauer pistols.  Like the elite car companies, they even sell "certified pre-owned" guns.

Glock tells potential customers that "Armed forces all over the world count on Glock. Why shouldn't you?"  According to the company,  "When you carry a Glock, you carry confidence."  It also targets woman.  Glock's web site says "We believe in empowering women.  That's why we've packed full-size performance into even our smallest pistols."  For its part, Bushmaster claims that "With a Bushmaster for security and home defense, you can sleep tight knowing that your loved ones are protected." Its "lightweight carbon models" are supposedly "perfect for women." "Any gun will make an intruder think," it says, but "a Bushmaster will make them think twice."

The guns carried or used in Newtown were legal.  They were registered to Lanza's now dead mother, Nancy, who apparently did not consider the possibility that a personalty-disordered (or otherwise mentally ill) young man and guns might make for a lethal combination.  In any case, she almost certainly was not asked about the condition of her son when she purchased the guns, and the web site manuals and safety materials provided by Bushmaster, Sig Sauer and Glock are themselves silent on mental illness.  According to Sig Sauer's site, it is not "frequently asked" about the issue either.

President Obama was near tears yesterday when he went to the podium to offer condolences.  So were many of the television journalists reporting the story. 

I too am very sad.  

I remember when my son and daughter were first graders.  I remember them as first graders in this Santa Claus is coming to town week, when their combination of joy and innocence could melt the hardest hearts.

But mostly I am very angry.

We live in a country where there are more than 300 million "non-military firearms."  Of the guns in the United States, at least 40% were purchased without a background check.  Though the guns used in Newtown were legal, those used in many homicides are not.  And calling the Newtown firearms "legal" doesn't change the fact that their presence in that home was simply stupid in view of who lived there.  Nor does it change the fact that no one -- not Bushmaster or Sig Sauer or Glock or the retailer or any government -- asked about the household or warned about the dangerous mix it presented once firearms were introduced.

We will now go through our customary period of mourning.  The NRA will be silent for a week or so.  Then it will point out that Connecticut has some of the strictest gun control laws and claim that, since those laws did not stop these killings, gun control is ineffective.  Others will say -- in fact, some already did yesterday -- that if the kids had firearms, fewer would have been killed.  The same thing was said after the shootings in Aurora earlier this year.  

Apparently, however, the guns-uber-alles crowd now thinks first graders should pack heat too!

This is nuts. 

No other country has this problem.  

We can do sufficient background checks to keep guns out of the hands of the most dangerous.  We can criminalize multi-clip ammunition magazines. We can permanently ban possession of assault weapons; the Bushmaster used in Newtown either is such a weapon or, slightly modified, easily becomes one.  We can ban possession of firearms by the mentally ill and make homeowners responsible to insure the ban is enforced in their homes.  Short of new laws, we can stop glorifying a gun culture that tells would be purchasers, in some sort of phallic overload, that when they purchase a gun, they buy "confidence."

But we do none of this.

In trying to capture words adequate to the occasion, Connecticut's Gov. Dan Malloy stood in Newtown yesterday and said that "Evil visited this community today."  He was wrong.  Evil was stored in Nancy Manza's Newtown home.  All that showed up yesterday was . . . 

Evil's accomplice.

HOLIDAY FEVER

HOLIDAY FEVER

We are in one of those "in-between" periods.

Some of them are annoying.  

Once February ends, I am generally in no mood for the "in like a lion, out like a lamb" daily dreariness of early March.  I can understand why my co-religionists turned St. Patrick's Day on March 17 into an annual debauch.  It was more an expression of frustration at the pace of seasonal change than a window into the soul of the Irish.

There is a different  problem with a languid August.  By then, the heat of the summer just creates lassitude as everyone waits for the fall.  The French take the entire month off.  We can't, of course, lest our vacationing -- along with the last vestiges of our social safety net and the not yet fully implemented vision that is Obamacare -- be vilified as "European style socialism."  But they have it right.

Not much gets done in August.

Unlike that period between Thanksgiving and Christmas.  Where we are right now. And which is somewhat . . . 

Dizzying.

To begin, and this is where America often begins when it thinks about these things, the period is that one time of the year when commerce --  in particular, "retail" -- is one steroids.  This year, the stampede that is Black Friday began on Thanksgiving itself.  This more or less represents the repeal of the latter, which was initially created by George Washington in 1789 when he proclaimed November 26 as "a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God."  

Among those "signal favors," according to Washington's proclamation, was  "the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted".  In other words, Thanksgiving was created -- inter alia, as we lawyers say -- to thank God for . . .

The federal government.

Who would have thunk that!

In any case, our first President's intentions to the side, the day has now pretty much become a national prelude to . . . shopping.  And shop we did this year.  According to the reports, Black Friday (which began shortly after dinner on Thursday), followed by "Shop Small" Saturday and "Cyber" Monday, produced over $62 billion in sales.  $59.1 billion of that spending occurred over the four day weekend, 41% of which was on-line. "Shop Small" Saturday accounted for $5.5 billion in sales and "Cyber" Monday had $1.5 billion, both records.  All sales figures were substantially above last year's figures, and in total, 247 million shoppers either visited stores or shopped on-line.

A little less than three weeks before this shopping spree, Americans went to the the polls to elect their President.  At that time, 127,683,108 of them actually voted.  Three weeks later, 247 million of them went shopping.  In other words, there were about 120 million more "shoppers" than there were voters.  Now, the  "shopper" figure may be plagued by some double counting.  Some people no doubt made more than one purchase over the weekend-plus-Monday's orgy of commerce, and that 247 million number would therefore have to come down to reflect actual individuals.  But still in all, a lot more people shopped after (or on) Thanksgiving than voted on Election Day.

So take that George Washington.

In any case, there are now twenty-six days 'til Christmas.  We used to distinguish between "days to Christmas" and "shopping days to Christmas."  But now, every day is a shopping day.  So the math is less complicated.  During this period, there will be office Christmas parties, relatives who undergo their annual holiday meltdowns, millions of visits to thousands of Santas, talk radio's now annual  claims that liberals are taking "Christ" out of Christmas, and . . . 

Incessant talk about the so-called "fiscal cliff."  

Which is to economics what those old plastic trees were to Christmas.

Entirely artificial.

The fiscal cliff was created by politicians who held raising the debt ceiling hostage to their anti-tax, anti-spending crusade.  They did so in the midst of an anemic recovery that followed a near depression, the only solution to which was a Keynesian stimulus, which they generally oppose.  To raise the ceiling, Congress passed and the President signed a sort of mutual suicide pact -- if some agreement on taxes and spending is not reached by December 31, the tax rates on January 1 will return to the Clinton era rates (39% at the high end, as opposed to today's 35%) and there will be big cuts in both domestic and defense spending.  The combined effect is predicted to be a drop in annual economic growth of about 1-2% over the next two years and, potentially, a new recession.

The "fiscal cliff" is artificial for two reasons -- one metaphorical, the other real.  As a metaphor, the notion is just false.  It suggests that the fall off in growth (the "cliff," as it were) will somehow be the fault as much of those who refuse to reduce the deficit (the liberals) as it will of those who refuse to increase taxes on the wealthy (the conservatives).  But it won't be.  The loss in growth -- and this is where the artificiality becomes real --  will be a function entirely of the austerity the suicide pact enforces.  If taxes on middle incomers (but not the super-wealthy) go up and spending goes down, that is austerity and that is what kills growth and creates a new recession.  If taxes on middle incomers do not rise and the spending cuts are targeted, you do not decrease growth; at the same time, you nominally lower the deficit by improving the government's balance sheet on the revenue side. 

There are some signs the cliff will never be reached.  Having lost the last two Presidential elections (and five of the last six if you count 2000 correctly), the GOP is now being hoist on a demographic and ideological petard that it quickly needs to unshackle itself from if it is to win nationally in the future.  This means appealing to more than the 1% (or their wannabes) and religious fundamentalists, ending its alienation of Hispanic voters, and becoming pro-growth.  Obama is proposing a pro-growth and relatively painless give-up on their part -- the rich pay more but everyone else stays where they are and draconian spending cuts are significantly softened; he is doing this in a post-election world where the polls say voters will hold the GOP accountable, as they should, for the anti-growth austerity the "cliff" tries to mask. 

This is, as Bill Kristol told them shortly after the election, hardly a bad deal for the GOP.  It allows them to retain their no tax bona fides with most of the country and doesn't undermine long term deficit reduction.

They will probably accept it, or some version fairly close.

If not . . . 

There are twenty six shopping days 'til Christmas.

RELIEVED

RELIEVED

Others will and already are picking apart the election result and explaining why it happened.  

The featured causes include significant increases in the number of Hispanic voters, the GOP's seriously declining share of that vote, the ubiquitous gender gap, extremism on the right, and -- perhaps owing to that extremism -- the inability of Romney, though he tried,   to credibly embrace the center once the general election was upon him.  

All are valid.  

But the thing that most struck me about the election was not why it happened but rather the dominant emotion the result elicited.  Other than in the immediate aftermath, it wasn't elation or exuberance.  It certainly wasn't chest thumping or braggadocio. It wasn't even all that much score settling (though statistics and real evidence guru Nate Silver -- who called the Presidential result in all fifty states -- is clearly entitled to take a lot of names).  Rather, on the extreme right, it was denial.  And everywhere else it was . . . 

Relief.

The Europeans were relieved.  The Chinese were relieved.  The Middle East was relieved to the extent possible in that part of the world.  Seniors and  women were relieved, and so were all those people living on the coasts who just got hammered by Hurricane Sandy and don't believe "the jury is still out" on climate change and global warming.  Even Floridians, where the vote is still being counted, were relieved, no doubt grateful that Ohio and Colorado put someone over the top and spared the rest of us a re-run of 2000. 

So why was this the case?

The simple answer, I think, is this.  Had Romney been elected, and certainly had he been elected along with a Republican Senate and House, the country was going to march to the beat of a radically different drummer.  From an immediate fixation on drastic spending cuts to a resurgence of neo-conservative militarism, the future was not going to look remotely similar to the recent past.   The country's foreign and domestic policies undoubtedly would change.

But, much more importantly, so would its priorities. 

In a demand starved environment where austerity has failed wherever it has been tried, the new normal would have been, at the very least, a second recession or depression.   The British demonstrate this reality in spades.  In 2010, having jettisoned a government embracing reasonable Keynesian stimulus for one that denied its necessity, the UK cut spending and watched itself slide into another downturn from which it has yet to emerge.  Nor have the austerians fared any better on the continent.  Unemployment is at historically tragic levels in southern Europe, civil unrest is becoming a serious problem in Greece,  and the absence of real growth is even now starting to hurt the inflation-obsessed Germans.  

America, in contrast, has been a relative success story since Obama became President.  

And this was not by accident.  

The auto industry bail out saved Michigan and a large part of the mid-west.  The early term Recovery Act pumped billions into an economy that was then on life support.  It is true, of course, that the patient has only recently  been released from intensive care.   And she is hardly able to walk out of the hospital.

But she is no longer dying either.

The likelihood is that all this would have ended or been reversed if Romney had been elected President.  However much he tried to convince us of late that a moderate heart beat in 2012's version of an otherwise extreme political body, Romney never wavered in his opposition to the stimulus.  He falsely claimed it had failed but truly believed it should not have been adopted.  Ditto on Obamacare, which he would have repealed.  To bend the medical cost curve, which Obama bends with his state-based exchanges and best-practices panel, Romney's answer was privatized Medicare, which in the end could only bend it by denying care to those without the means to supplement their vouchers.

Romney was about ending the New Deal at home . . .

And resurrecting the Neo-Con Deal abroad.  

How else to explain the unasked for increases in military spending.   Or the fact that any Republican cabinet would have included their Secretary of State in waiting, John Bolton, one of the architects of Bush II's armada uber alles approach to foreign policy.  Or the false claims that Obama's approach was to undertake "an apology tour."  Or the GOP's xenophobic approach to immigration, where the first question asked any Hispanic (let's not kid ourselves here) would have been "where's your green card," in the hope that "self-deportation" eliminated the need for the nastiness now au courant in Arizona.

And then there was the Supreme Court.  Which is likely to have three or more vacancies in the next four years.  Romney wanted more Scalias.  

Most of us do not.

So, at the end of the day, in a reprise of that old Alka-Seltzer commercial, the country woke up on Wednesday morning having been asked how it spelled relief.  The answer was . . .

O-b-a-m-a.

MOTHER NATURE AND MITT

MOTHER NATURE AND MITT

It was supposed to be the week we all focused on those eight swing states -- New Hampshire, Wisconsin, Iowa, Ohio, Virginia, Florida, Colorado and Nevada.

And then reality intervened.

The latest "storm of the century" hammered the tri-state New York region earlier this week and we are not remotely far along in digging out from under.  I lost power but was among the lucky who had it restored within two days.  Hundreds of thousands remain in the dark.  No electricity, and for all but those whose technology is circa 1950, no heat, no hot water, and  (absent working refrigerators) no fresh food either.  Gas lines reminiscent of the Arab oil embargoes of the '70s dot the suburban landscape.   Jobs became an escape, until everyone had to actually begin the commute to them.  Then they just morphed into part of the continuing nightmare. New York City south of 34th Street is still dark.  Many of the  subways are idle in that part of town, and some of the tunnels remain flooded.

The city that never sleeps is officially exhausted.

Natural disasters bring out the worst in Mother Nature but often the best in us.  New Jersey's in-your-face Governor, Chris Christie, had a moment, actually more like a long weekend, of consummate class this week, continually praising the President he had been routinely lampooning, honestly grateful for the on the job competence Obama exhibited on Sandy, in contrast to the federal government's insouciance on Katrina in 2005.  The same, however, could not be said of Mitt Romney.  The man who only months ago told us he wanted to shutter the Federal Emergency Management Agency (FEMA), and out source disaster relief to the states and localities affected, was eerily silent when journalists asked if he was still of that view.

What's he waiting for?

Memo to Mitt -- next Wednesday is too late.

Further memo to Mitt -- closing FEMA is truly a bad idea.

In case Governor "I-saved-the-Olympics-am-a-businessman-and-trust-me-will-create-jobs-even-though-I -can't-tell-you-how-because-what-I'm-for-actually-doesn't-do-it" hasn't noticed, natural disasters tend to cripple or seriously hamper the areas affected.  Last time anyone checked, Louisiana did not have the resources to dig out from Katrina on its own in 2005, nor do New York City or New Jersey or Connecticut in the wake of Sandy today.  As of now, FEMA can call in the Army Corps of Engineers, which actually has a unit committed to nothing but "unwatering" a flooded levee (or tunnel).  And today, those "unwater-ers" are busy drying out lower Manhattan.

So Mayor Bloomberg doesn't have to.

Disaster relief has been part of the federal government's mandate for more than a hundred years.  The only reason it was not part of that mandate beforehand is that the feds did not then have the capacity to move resources and manpower to the scenes of natural disasters on a moment's notice.  Today they do.  Right now, there are hundreds of FEMA employees from across the nation, marching through the Rockaways in New York City and through towns up and down the Jersey Shore, making sure those without access to phones or the Internet can immediately apply for the assistance they need.  Last night, the National Guard in their army convoys was ferrying families in flooded Hoboken to safety.  In the months ahead, the federal government will be writing checks to tens of thousands of victims who will re-build their homes and businesses.

The states and localities could not do that on their own either.

Throughout this Presidential campaign, I have been searching for the best word to describe the GOP's challenge to Obama this year.   And I now think Mother Nature has come up with that word.  Romney's vision, if it can be called that, is artificial.  There is a disconnect between the problems we face and the so-called solutions he trumpets.  You can't jump start an economy starved for demand by crippling the ability to use fiscal policy to create that demand.  You can't empower women while controlling and denying their access to  health care.  You can't beat terrorism by ignoring the world's terrorist in chief, the now dead bin Laden.  You can't lament the frequency of now annual storms of the century while denying climate change or global warming.  And you can't be for disaster relief if you demand that it come only from those governments least able to provide it.

That's not relief.  

It's neglect.  

And it is Romney's platform.  

He may have been a  can-do businessman.  But he's now proposing to be . . . 

A won't do President.

ROMNEY AGONISTES

ROMNEY AGONISTES

I am from New York. 

But last week went to Virginia.  

And was finally in a state where there actually is a Presidential campaign.

Here is New York, safely blue, we are besieged with information from the under-ticket.  No Presidential candidate need apply.  I know, for example, that one of my Congressional candidates,  Sean Patrick Maloney (he always uses the Patrick, though I doubt anyone questions his ethnicity), will preserve Medicare and the right of women to make their own health care choices, and that his opponent will not.  I then find out, however, that his opponent, Rep. Nan Hayworth, a so-called Tea Partier elected in  2010, will do the same, or so she says.  I know she was for the Ryan budget, and so have more than some doubts about this.  But all her fellow-travelers in the GOP are singing from the same hymnal, doing their best to convince us that they are . . .

What they clearly are not.

Mitt Romney, of course, has written the book on this.  

And added yet another chapter to it in his debate this week with President Obama.  

The topic this time was foreign policy, but the same feigning Mitt showed up.  In Denver, the candidate for the $5 trillion tax cut, $2 trillion defense increase, and junking of Obamacare, became the candidate without the cut or the increase and with a ban on exclusions for pre-existing conditions and an extension of parental coverage for kids.  In Boca Raton, the policies changed but the approach did not.  This time,   pace his recent and not so recent past, there was no red-line on Iran's nukes and certainly no war, no disagreement on the 2014 deadline for pulling out of Afghanistan, and no disagreement on Pakistan.

In his previous life, Romney had so berated Obama for weakness on Iran that, given the actual strength of the sanctions regime (it is literally putting the Persians on rations), his policy alternative had  to be viewed as favoring a military strike.  He had also joined John McCain in committing to not violate Pakistan' sovereignty without their permission (which would have made the bin Laden raid either impossible or ineffective).  In Boca Raton, however,  the candidate (and party) that ignored Osama bin Laden for ten years was forced to praise the President who didn't,  and sanctions-shaped diplomacy replaced neo-con sabre rattling as the policy of choice on Iran.

Even when he went off topic, Romney stayed in character.   

When the debate strayed into auto company bailout territory, laser-focused as both candiates were on the bailout's positive impact in Ohio, mutating Mitt claimed he was actually for federal assistance to the auto companies in 2009.  This was a lie, or as they say these days, a post-truth.    In fact,  at the time the bailout was proposed, Romney said the auto companies should be forced to re-organize in a bankruptcy court.  Unfortunately for Mitt, this is neither a place debtors go in search of federal assistance nor one where that assistance is given out.

In truth, the only real contrast the entire night was the one that blew up in Romney's face.  

Earnestly -- but inaccurately -- asserting that his proposed defense increase was merely opposition to the sequestration that may occur later this year (the latter of which, by the way, neither he nor Obama can stop without Congressional action, which the GOP is now holding hostage so as to preserve Bush II's tax cuts for the wealthy ), Romney claimed our Navy was woefully under-equipped, noting that it had fewer ships today than in 1916.  Obama's rejoinder was that the force structure had been set, in consultation with the Joint Chiefs and all three branches of the military, based on strategic concerns and that, in the line that broke records on Twitter, "We also have fewer horses and bayonets."

At which point, Romney just went back to agreeing with Obama, looking "Presidential", and trying to make sure he didn't turn off the the last two undecided voters in Ohio . . .  or Colorado . . .  or New Hampshire.  

Which was his only purpose from the outset.

Now, to be frank, there is a Shakespearean "doth protest too much" quality to all of us who lambast Mitt Romney for tacking to the center in a general election.  They all do it and Romney is not the first, nor will he be the last,  to raise political posturing to an art form.  In fact, if that were all his 11th hour, 59th minute metamorphosis amounted to, it might very well say much that was negative about his character (as in "I'll do or say anything to get elected"), while at the same time saying a lot that was positive about his brain (as in "OK, I am really not that crazy and won't drive us off the cliff by actually implementing all that right wing stuff").

Here,  however, is the problem.

If elected, Romney  won't be able  to govern from the center, even if he has undergone a sort of road to Damascus conversion to common sense.  

He won't be able to do this because no President governs alone and Romney's party has no one in it who can implement a set of centrist policies.  On the one hand, as Grover Norquist -- he of the "no tax" pledge in exchange for beaucoup de campaign contributions -- has made clear, the only job a Republican President has is "to sign [the] stuff" the right wing sends him.  On the other, if you look for potential Republican cabinet secretaries who could implement a non-right wing agenda on either domestic or foreign policy, there are none.

To a man (and woman), the current crop of GOP governors has preached at the altar of tax and spending cuts, eliminating public sector unions, opposing cap and trade to bring down carbon emissions, and favoring oil and natural gas over renewables.  Put simply,  a set of Republican centrists to run HUD . . . or the Departments of Energy . . .  or Health and Human Services . . . or Labor . . . or the EPA is  unavailable.  And on foreign policy the situation is even worse.  Romney's Secretary of State in waiting is John Bolton, and he is not against either going to war on Iran or out-sourcing the job to Israel.  

So what Romney believes, or more importantly whether he believes anything, may not even matter.  

If he is, as he pretended to be for virtually all of this and the last Presidential campaign, a once moderate governor now become a garden variety Republican right winger, the voters will reject him.  But if he is the vague but discernible moderate whose mantle he donned in all three presidential debates, a guy who answers "Never left ya" to Bill Clinton's "Where ya been these last few years, I missed ya", the elites in his own party will reject them.  

The reality is that Romney sought and obtained the nomination of the most conservative and extreme Republican Party in the modern era.  It is layered with true believers running through Congress, the well-funded right-wing think tanks and corporate lobbyists, and the right-wing media of Ailes's Fox and Murdock's NY Post.  Its policies would take us back to the economics of the 19th century and the foreign policies of the first decade of this one.  Romney could not have won the nomination without them.  That was his problem.  Ours is that he has no one to govern with . . .

Other than them.

THE MULTI-TASK CANDIDATE

THE MULTI-TASK CANDIDATE

I am a little late to the party this week.  I could not really choose between baseball and the Vice-Presidential debate last Thursday.  So I had half an eye on each.

These days, that is called multi-tasking.

A lot of folks are very proud of their ability to multi-task, and they let you know it.  When you complain about requests to do more than two things at once, the multi-taskers upbraid the singularly focused.  Multi-taskers are vigorous, dynamic, engaged.  Those who resist are lazy, static, uninvolved.   Multi-taskers create the impression they are problem solvers, always willing to add a puzzle to their plate and have at it.  Their opposites avoid those opportunities, compulsing a single trial or tribulation to death.  Multi-taskers embrace the speed of light pace of our post-quantum world.  They count in nano-seconds. 

Everyone else is ponderous.

Lots of businessmen are constantly multi-tasking.  And even when they aren't doing it, their demeanor evokes it.  Just take a look at Jack Welch, GE's former CEO.  In the space of about five minutes last week, he was for Romney, against the Bureau of Labor Statistics and their lower-than-8% unemployment rate, for the notion that this constituted a conspiracy, and then against the notion he was "blaming" anyone for the conspiracy he pretended to unearth.

All at the same time.

A multi-tasking home run, if you will.

Mitt Romney is a multi-tasker.  All those pundits lambasting Mitt for his lack of specifics, or for his herculean ability to completely change his mind in the space of, if not a moment, then most certainly an election cycle, are missing the point of the man.  It's not hypocrisy, or the greasy wheel of a false politics that promises what can't be delivered.  It's not even the  re-awakening of an erstwhile moderate self (though Bill Clinton did have a lot of fun with that possibility). It's none of that.  What it is . . . is . . .

Multi-tasking run amok.

Multi-taskers never get criticized for this, but their real problem is that they cannot focus.  They have very short attention spans.  My guess is that, were you to assemble a statistically valid sample of multi-taskers, a group diagnosis of Attention Deficit Disorder would not be far behind.  It, of course, flies in the face of conventional wisdom to suggest that CEO Mitt or any of his successful confreres can't focus; that is ostensibly what they are paid to do, and the better they do it, the more they make.  But run that reel a second time and look carefully.  The Mitts of the world are not the ones doing the focus-ing.  That work is being done by the brilliant back office guys and gals.  Mitt is only the "closer", the guy they send in to seal the deal at the end. 

Probably can do a bunch of them in a morning.

After all the non-multi-taskers have crunched the numbers and spent their all-nighters in the weeds.

Multi-taskers, however, make bad presidents.  Bush II was a multi-tasker.  You could tell given his love affair with his schedule.  He ran the White House by the clock and was never late for the next  meeting, regardless of what went on in the last one.  That's discipline.  The discipline of a multi-tasker . . . 

Who multi-tasked us to a near disaster.  

Clinton -- contrary to appearances -- was not a multi-tasker.  It's not that Clinton did not get a whole host of things done in a single day.  He did.  But he took his time on each.  He is even like that when he campaigns.   Just ask his scheduler.  If Clinton meets you -- and I have met him at least three times --  he focuses and the watch stops.  By the time you're done, he'll remember your name two years later.

A multi-tasker can promise a 20% across the board tax cut that doesn't add up.  Or a $2 trillion defense increase that doesn't increase the deficit.  Or a ban on exclusions for pre-existing conditions that doesn't require a mandate or raise premium prices.  He (or she) can do this because, by the time he has to confront the contradictions he has embraced, indeed even while confronting them,    he  is on to the next . . . problem.

While some aide is cleaning up the mess.

That's multi-tasking.  Doing two or more things at once . . .

Poorly.

 

ROMNEY REPEALS ROMNEY

ROMNEY REPEALS  ROMNEY

Both Presidential candidates went to the University of Denver on Wednesday night .  President Obama went there to debate Mitt Romney.  Romney went there to debate . . .

Himself.

All the pundits pronounced Romney the so-called winner.  

The liberals on MSNBC were apoplectic at the President.  Ed Schultz repeatedly bemoaned the President's failure to come at the former Massachusetts governor, whether on the issue of privatizing Social Security (which Romney has been for), or cutting Medicare (which Obama did not really do and which, in any case, Romney in fact does), or obstruction (which the GOP practices with Prussian-like discipline in Congress), or just being preternaturally out of touch (as evidenced by Romney's 47%-are-dependent claim).  Chris Matthews said there was no "Bobby Kennedy" in the President (Matthews remarked that before the first JFK-Nixon debate in 1960, Bobby told Jack to "kick him in the balls").  And Rachel Maddow noted the total absence, in a debate billed as one on "domestic policy",  of conversation on a host of domestic issues where Romney is weak -- abortion, reproductive rights, environmental policy.

While, of course, the left was exasperated, the right was ecstatic.  For the first time in the fall campaign, they thought they had something to crow about.  And crow they did, in typical fashion.  Former Mayor Rudy Giuliani was his old obnoxious self, pronouncing Romney's ostensible victory "devastating" on the one hand, while insulting the President as "befuddled," "surprised" and "looking for a teleprompter" on the other.  Having gone ad hominem (the Mayor calls it "ad personam" but needs to brush up on his Catholic school Latin) on the President, there was rich hypocrisy in the air when he blasted Chris Hayes for asking whether money from Homeland Security to Giuliani himself amounted to exactly the sort of "feeding the [government} beast" for which Giuliani derides the administration.  Rudy denied he ever had any Homeland Security contracts, but that was mere wordsmithing.  His firm, Giuliani Partners, has made millions advising firms that themselves have millions in Homeland Security contracts. 

In any case, the right thinks Romney triumphed, the left thinks Obama fell asleep.

And they're both wrong.

Here's why. 

When all the dust settles, the long term story on Wednesday's debate will be Romney's debate with himself.  On issue after issue, the former Governor was an act of re-invention of self in progress.  If Obama seemed befuddled, I can't blame him.  I was a little bit befuddled too -- at, yes, the sheer audacity of Romney's effort at self-redefinition, but mostly at the unrecognizable story now being told.  On issue after issue, a new Romney emerged.  When his campaign manager told us last spring that general elections present a veritable "etch-a-sketch" moment to wipe the old slate clean, he was not kidding.

Because for Romney, this was an "etch-a-sketch" debate.

On taxes, Romney has for the past eighteen months told us that he plans to cut federal income taxes across the board by 20%.  By simple math (Bill Clinton's vaunted "arithmetic" in Charlotte last month), that adds up to (1) a $5 trillion dollar cut that (2) disproportionately favors the wealthy.  Last night, however, Romney said, "I don't have a $5 trillion tax cut."  He then followed up with "I'm not going to reduce the share of taxes paid by high-income people."  Both statements are false.  The first is flagrantly so.  A 20% "across the board" cut in rates equals $5 trillion no matter who is counting, but all the GOP nominee was banking on is the notion that those 40 million watching the debate would not realize Wednesday's Romney was at total war with Tuesday's.  

As to the second, it is likely to turn out to be a gross distortion as well.   While the "share" paid by high-incomers could stay the same even if cuts are passed, Romney has told us his tax cut will be "revenue neutral" and will not increase the deficit.  The money to fund the cut, therefore, has to come from either spending cuts, closing loopholes or eliminating deductions. He hasn't identified loopholes and his base will oppose eliminating the big money deductions (in the day leading up to the debate, he floated the idea of capping deductions at a certain amount, but last night he just invited us to "pick any number" for that amount; apparently he hasn't polled yet on which number will be least offensive to voters).  So, really, spending cuts it is, and since he wants to raise defense spending and swears he won't cut Medicare, the reductions have to come from everywhere else -- food stamps, public housing, student loans, education, basic research, etc.  

Most  of which  does not benefit the rich.

But all of which benefits the middle and lower middle classes, and the poor.

And all of which, taken together, would still not be sufficient to fund his tax cut without increasing the deficit.

Reinvention continued on health care.  For the entire campaign, we have been told that a President Romney will repeal Obamacare "on day one."  He routinely decries the individual mandate (even though he passed one in Massachusetts).  Now he says that he will not repeal all of Obamacare, promising to retain those parts of the law which forbid insurance companies from excluding applicants based on  pre-existing conditions and allow parents to continue to cover kids until the kids turn twenty-six.  At the same time, he (1) proposes to allow the states to create their own plans to bring the costs of health care down, (2) guarantees Medicare will not change for those fifty-five and older, and (3) wants to voucherize Medicare for those who are younger.

These are circles that cannot be squared.  

If, in fact, Romney repeals the individual mandate while retaining the ban on exclusions for pre-existing conditions and the parental coverage extension, insurance premiums will sky-rocket and no one will be able to afford policies.  The only reason companies can accept the ban and the extension is that the mandate guarantees them millions of additional customers, many of whom will be perfectly healthy and thus premium paying non-users.  That, moreover, is the essence of insurance.  You create a pool and then spread the risk.  The larger the pool, the larger the spread, the lower the individual cost.  

The notion that states on their own can manage this problem is sheer nonsense.  While they've been trying for the last thirty years, costs have routinely gone up at rates exceeding inflation and insurance companies have monopolized the individual state markets.  In fact, the only state that succeeded in stemming this tide is Romney's Massachusetts, which became the template for Obamacare.  In the debate, Romney claimed he wanted to defer to the states, which he praised as "laboratories of democracy, " using a phrase he borrowed from the Progressives of yore.   He should know, however, that when those state "labs" come up with experiments that work, there's nothing wrong with  allowing the rest of us in on the success.

Then there was Romney on Medicare.  He falsely accused the President, yet again, of cutting $716 billion from the program (even though his own program does exactly that).  What Obama in fact did, however, was cut payments to insurance companies -- the middle men -- so that the money could be re-directed to benefits.  Next up was the claim that Romney would preserve the program for seniors (or those close) who now have it, but voucherize it for the young, the latter of which is a bad idea he hopes the young won't notice.  Romney glibly asserted that his privatized Medicare world would be one where citizens could choose Medicare over private insurance, but he knows that sort of competition will be entirely illusory.  Instead, the well off will use their vouchers to supplement their own payments and buy high end insurance, while the less well off will be left with Medicare.  In the meantime, nothing will have been done to lower costs, so the pressure on Medicare to cut benefits will be ineluctable and cut they will.

Some might even call it rationing.

By economic class.

On tax cuts and health care, Romney and his seconds think he etch-a-sketched his way to a good night.  On others as well , they think he did the same.  In the wake of the 2008 financial implosion that effectively caused a lesser Depression, Romney has been for repealing Dodd-Frank, the rather anemic re-regulation passed to combat the worst excesses that led to our recent rendez-vous with 1929.  Last night, he changed that to repeal and replace.  With what?   Who knows.  He falsely claimed that Dodd-Frank preserves "too big to fail",  but it doesn't.  It simply recognizes that certain large institutions are "systemically" critical and therefore have to both satisfy larger capital requirements and come up with appropriate plans (so-called "living wills" in the parlance of the regulators) to reorganize or liquidate in the event of any future imminent collapse.  Contra Mitt, Obama  was not endorsing "too big to fail."  He was simply following "too important to be ignored."

Which would have been nice to see in the last President, or the current GOP nominee, when all hell was breaking loose in 2007 and 2008.

So that was the debate.  

Romney v. Romney, really.  

One of them had to lose. 

CALL ME DEPENDENT

CALL ME DEPENDENT

So Mitt Romney, then contestant and now nominee, went to one of those fundraising salons of the rich and richer this past April and told them that 47% of the country was dependent on government and would never vote for him.  

I am actually being nice.

Here's the complete quote: 

"There are 47 percent of the people who will vote for the president no matter what. All right, there are 47 percent who are with him, who are dependent upon government, who believe that they are victims, who believe the government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you name it. That that's an entitlement. And the government should give it to them. And they will vote for this president no matter what . . . My job is not to worry about those people. I'll never convince them they should take personal responsibility and care for their lives. What I have to do is convince the 5-10 percent of people who are independents, that are thoughtful, that look at voting one way or the other depending upon, in some cases, emotion, whether they like the guy or not."

This secretly recorded confessional from Romney is now front page news.  

But it shouldn't be.

Because there is nothing "new" about it.

It was my sad duty last week to attend the funeral of the wife of the federal judge I worked for in 1982-83.  He was a Reagan appointee, and after getting a clerk who had knocked on doors for Ted Kennedy in 1980 (namely, me), a few more politically congenial ones followed.  In fact, a whole host of them -- freshly minted graduates of The Federalist Society (and our nation's elite law schools). For the record, the judge never cared what your politics were and ours has become a close bi-partisan friendship over the years; sometimes we think we are the last of a dying breed.  But self selection being what it is, the students apparently cared about his politics, and so the conservatives flocked to him.  And in conversations with more than one of them last week, "dependency" was the watchword.

As in, Obama is creating "a nation of dependents."

Now at one level, this is just silly.  For starters,  it is plainly inaccurate.  We are all beneficiaries of government programs, whether those programs come in the form of the military that defends us, the roads that carry us, the schools that educate us, or the clean air and water that sustains us.  Obama did not create any of that, nor does the "dependency" it entails capture only the putative 47% who Romney claims "will vote for the president no matter what."

In other words, welcome to the club, Mitt.  You too are a dependent.

But, of course, Mitt and my conservative co-clerks are not lambasting all of us.  Not at all.  Instead, they have a special view of dependency.  As Gov. Romney himself laid it out at that April fundraiser, it's a multi-step process, the logic of which -- in a sort of Cartesian politics -- leads inexorably to dependence.  So if (1)  you are a victim, (2) you believe the government should feed you, house you and medicate you, (3)  you think you are in fact "entitled" to all of this, and (4) you do not take "personal responsibility" for you life, then (5) you are a dependent and (6) an Obama voter, along with (7) slightly less than half the country.

Actually, however, you probably do not vote at all (that's way too responsible).   You most certainly are not part of a group that shares all of these characteristics at once, comprises "47%" of the electorate, and is inexorably wedded to Barack Obama.  

Because no such group exists.

So what gives?

This is demonization, pure and simple.  Romney's April confessional unearthed a lot more than his (or the GOP's) Thurston Howell political persona.  In fact, it unmasked the Willie Horton side of this campaign.  To begin, note that the logic begins, and ends, with a description of the entire group of us who "would never vote for" anyone but Barack (of which, I am one).   

We are all dependent bums.   

It doesn't matter that I just wrote a sizable tax check to the federal government, one of the five I write each year and have for the past twenty-five.  Or that, along with many others who count themselves among the 47%, I pay at a rate more than double Romney's.  Or that I paid off my student loans more than twenty years ago. 

If you are with him (Obama), you are with them (the "dependent").  

Note, secondly, the "them" you are with.  As Romney more or less put it, the dependent think the government owes them food stamps,  public housing and Obamacare.    The specific list of entitlements he chose to pin on Obama's base was thus decidedly narrow.   In fact, those entitlements benefit two -- and only two -- classes.

The poor .

And the sick.

So here's my confession, Mitt.

I'm with them.

Call me dependent.  

WHAT'S IN A NAME?

WHAT'S IN A NAME?

So I am now being told that we are in the era of "post-truth politics."

According to the pundits, this is an era where facts do not matter.  Instead, media reporting takes the form of "he said, she said" dueling quotations.  Every claim, however preposterous, is framed as the neutral report of an asserted proposition by the would be proponent, followed in turn by an equally anodyne denial of the proposition by the would be opponent.

It is not clear to me when, precisely, this new era began.

In my lifetime, the modern starting point for overt media bashing was Spiro Agnew, circa November 1969.  He was Richard Nixon's Vice President and, like Nixon, was also "a crook."  Unlike Nixon, however, he never really denied it.  Instead, he resigned the Vice-Presidency in 1973 and plead "nolo contendere" to charges of having accepted bribes while serving as Governor of Maryland.  "Nolo contendere" is lawyer-Latin speak for no contest and really just constitutes a sort of linguistic way around having to actually utter the word "guilty" in a courtroom; the two more or less amount to the same thing.  In any case, before he nolo-ed his way to retirement, Agnew toured the land eviscerating the networks and the New York Times and Washington Post for their alleged liberal bias.  Over time, these claims became a settled part of the conservative political canon, ultimately spawning in their wake both Fox News, the post-truth era's example of "fair and balanced," and the snarky anti-media jibes prevalent at any GOP convention.

So, I am thinking, maybe  this "post-truth" period started back then, with media big feet ultimately inhibited into the neutral alley of claim and counterclaim just to avoid the charge of left wing bias.  Woodward and Bernstein, of course, would have none of this, nor would their editor, Ben Bradlee.  They followed the Watergate story wherever it lead, set out the facts, and ignored denials coming from the Nixon White House. 

But ever after, it really has not been the same.  

Reagan skated on Iran-Contra, as did Bush II on no WMD in Iraq.  And now, Romney and Ryan want to do the same on the economy, hoping to assert their way to the White House notwithstanding the plain factual inaccuracy of their claims.  

And it may work.

Here's why.

We are not any dumber than our confreres (and soeurs) from the pre-"post truth" era.  And that era was not one in which facts were always presented with pristine clarity, unalloyed or without varnish.  In fact, the opposite was often the case.  

In the 19th century, before Ochs and Sulzberger began to professionalize journalism, truth was not remotely evident in the broadsheets of the day.  Indeed, when historians tried to reconstruct the famous 1858 Lincoln-Douglas debates, they relied on the pro-Lincoln newspapers to reconstruct Lincoln's remarks and on the pro-Douglas papers to do the same for Douglas's.  Had they done otherwise, there would be no accurate record for the simple reason that Lincoln papers made Douglas look like a fool while Douglas papers did the same to Lincoln.  Forty years later, things were not much better.  In 1898,  William Randolph Hearst's scandal sheets  more or less started the Spanish-American war all by their lonesome, inundating the public with the dubious claim that the Spanish had attacked an American ship -- the Maine -- in Cuba.  And a half century later, truth still went wanting in the red-baiting and black listing of Joe McCarthy.  

The difference between then and now is that we seemed to be improving.  Regardless of the overt bias of mid-19th century news sheets, or the egomania of Hearst, or the manipulative work of Joe McCarthy, Ochs and Sulzberger and Edward R. Murrow were still manning the barricades on the side of truth.  They weren't ducking the truth; they were searching for it.  And when they missed the mark, they called it a mistake, or an error, or a lie.

That's the problem now.  

We've labelled lies as something else.  They are no longer lies, not even mistakes or errors or just plain wrong.  They are now post-truths, data points in the dawn of an ostensibly new era.

So Chris Christie gets to say Republicans will save Medicare, when the voucher plans they endorse will simply turn this successful government run program over to insurance companies that for fifty years have had us spend more but get less than any other advanced democracy on the planet; or Rick Santorum gets to say Obama ended work requirements for welfare by acceding to waiver requests from GOP Governors, when he did no such thing; or Paul Ryan gets to say Obama "did nothing" with the Simpson-Bowles deficit reduction recommendations, when Ryan himself killed them; or everyone at the GOP Convention in Tampa gets to claim Obama told small businessman and woman they did not "build" their enterprises, when the President never said that; or the GOP ticket gets to pretend that spending cuts in a world of near zero interest rates will create economic growth, when they will do the precise opposite.

These aren't "post-truths."  

They are lies.

And calling them post truths . . .

Is just another lie.

AUGUST 1912

AUGUST 1912

About a hundred years ago, all was supposedly right in the world.

Well settled in the predictable conventions of the 19th century, no one, it seemed, even contemplated the possibility that the century long post-Napoleonic order could or would be rent asunder.  European stability, coupled with attendant increases in trade and economic largess triggered by the greatest surge in labor saving gadgetry the world had ever known, seemed to have ushered in an unending era of relative peace and prosperity.  The railroads, telegraphs and oceanic steamers that made the world a smaller place existed in an easy camaraderie with the elevators, refrigerators and now-available-on-a-large-scale "horseless carriages" that made it an easier one as well. 

Sure, there were pockets of despair -- from the Irish nationalists demanding freedom from an imperial order that had unnecessarily killed millions of their countrymen in an if not created then certainly abetted famine, to the widespread poverty of an industrial order that produced a set of discordant notes running from Marx's manifesto to the Paris Commune to the nascent labor movement -- but things on the whole seemed always to be improving.

And then, two years later, a Serbian nationalist assassinated an Austrian prince and the world blew up.

For well over ninety years now, historians have sliced and diced the causes of World War I from almost every possible angle.  They have lamented the failure of statesmanship that unnecessarily turned a crime into a cause.  They have unmasked the fragility inherent in inter-related monarchies, where Kaiser, Czar and King all had the same grandmother and, perhaps, the same psychoses.  They have plumbed the documentary record to expose the flaws in inter-locking treaty commitments that turned the heirs of Bismarck, Metternich, Gladstone and Disraeli into dominoes that mindlessly fell into their pre-assigned positions, as one after another erstwhile great nation mistook action for strength while dismissing thought as the province of the weak.  They have condemned the leaders who ignored America's Civil War, a stark and recent example of how total war would become in the new industrial age. 

But perhaps the most accurate assessment is this --

World War I happened because no one in any position of responsible authority really thought it could . . . or would.

And in that, there is a lesson for us in August 2012.

We are running around in circles today, and our arguments are often pointless, especially when it comes to the economy.   Neither the temerity of the European Monetary Union nor the austerity plans embraced by various conservative and/or creditor friendly  political parties or governments make any sense in the current economic environment.  When interest rates are near zero, demand has imploded, and growth become anemic, deficits are irrelevant and fiscal stimulus on a massive scale is really the only  solution.  To pretend this is not the case, or to ignore the transparently obvious realities that make it so, is the rough equivalent of assuming in 1912 that a world war lasting four plus years -- and costing tens of millions of lives -- can never happen.  To further assume that austerity will  somehow create a recovery under these circumstances is equivalent to assuming in 1912 that the cavalry will be be relevant in the coming mechanized war. 

Whether fiscal stimulus has to be administered through existing governments, as is the case here in the US and in Britain, both of whom still control their currencies, or must first traduce the barriers of a monetary union that needs to somehow get itself to the point where its supposed central bank is allowed to represent everyone and not just creditors, as is the unfortunate case in most of Europe,  is at this stage almost beside the point.  If it is not done -- both here and there -- there will be no recovery in any significant sense of that word.

What if the opposite is done?  What if Romney becomes president here and implements some version of Rep. Ryan's and the right-wing House of Representatives' budget? What if the European Central Bank continues to dawdle on having member states underwrite continent-wide bonds so that Germany can inflate as Spain, Italy, Greece and Ireland devalue  (growing their economies by making their products cheaper and improving their comparative competitive position)?  What if, in other words, everyone takes their assumed positions and, lemming-like, marches down the road to economic perdition?  What if this all occurs and, as is likely, the consequence is Depression?

The answer is, unfortunately, simple.

One hundred years from now, a new crop of historians will have spent their careers puzzling over the mindlessness of a governing class that ignored reality and assumed the worst could never happen. 

They will ask how it was that science -- in this case, economic science -- could have been so thoroughly discarded. 

They will lament the lives needlessly ruined, the assumptions mindlessly made, the history casually ignored.

And some may even recur to an earlier time and a different world -- the world of August 1912. 

Where a different hell was ultimately produced . . .

For the same reasons.

AURORA AND PENN STATE

AURORA AND PENN STATE

A week ago the big news was whether the statue of Joe Paterno would come down at Penn State in the wake of the university's report that he and other higher ups had covered up Jerry Sandusky's child abuse.  Then, last Friday, a gunman opened fire in a crowded theatre in Aurora, Colorado, killing a dozen people and injuring over fifty. 

The two tragedies seemed completely disconnected.  Different crimes.  Different places.  Different victims.  But they actually have one thing in common.

Denial.

By us.

We have created a culture where individual responsibility is a paramount moral imperative but social or collective responsibility is denied at every turn.  If you look at the commentary on the defrocking of Paterno or on this week's announcement by the NCAA of the penalties it will impose on Penn State's football program, you may be struck by the sheer number of individuals who think these results are unfair.  The football team never molested a child and the players should not be penalized, so the commentary goes.  Maybe it was acceptable to take JoePa off his pedestal, they continue, but that is where it should have ended.

Now fast forward to the commentary on the tragedy in Aurora.  The reaction of many to those who suggest flaws in a legal regime that allowed the killer to confront his intended victims with ammunition magazines that allowed him to get shots off at the rate of 50-60/minute is the same.  Guns don't kill, people do; if only some of the theatre goers had been armed, the carnage would have been abated; in fact, said some, the law was part of the problem because it allowed those theatre goers to carry concealed weapons but prohibited those same theatre goers from firing them.

This is denial on a large scale.  And until we confront it, the tragedies in Aurora . . . or Columbine . . . or Tuscon will continue, and the disgusting crimes committed by the Sanduskys of this world will never be completely unearthed and eliminated as future possibilities.

It is well and good to condemn the Aurora shooter and Penn State's perverted assistant coach.  It is also well and good to condemn the college officials and Happy Valley icon for their head in the sand cover-up. 

But after we have done all that, it might be a good time to look in the mirror.

Intercollegiate football is a multi-billion dollar business.  Those football powerhouses bring in enormous sums to the universities that sponsor them.  In western Pennsylvania, Paterno was untouchable, and so was the football program he repeatedly put on the national map.  When he was told to resign by the university's President years ago, Paterno just ignored the demand.  When he finally retired, he was given a multi-million dollar severance package, complete with access to jets and luxury boxes.  Why?  Because in our cost-benefit world, JoePa was a football entrepreneur whose program funded libraries, endowed chairs, and kept State College more than afloat. 

No one could afford to say "no" to him  until a former FBI Director unveiled what was really going on.

By then, unfortunately, it was too late.

Last Friday, it was also too late in Aurora.  

There is no rational reason anyone needs or should be permitted to buy an ammunition magazine that can enable a firearm to  be unloaded with the rapidity of a sub-machine gun.  None! And the notion that we can even the scales and avoid these tragedies by allowing Joe Average the same firepower as any would be killer is simply ludicrous.  The Aurora gun man had outfitted himself head to toe in bullet proof vests and  body armor.  One reason the hundreds of theatre goers could not escape was that he was able to spray the crowd repeatedly with deadly bullets from his fast action  ammo clips.  Under those circumstances, it's impossible to see what well-armed victims could have done  -- if they got up to shoot, they would have been killed; if they succeeded in shooting, the body armor would have protected their assailant.  

And how many others would have died -- in this proposed 21st century version of the shoot out at OK Corral -- is not even considered.

Guns too are a mutli-billion dollar business in this country.  Because there are no truly protective national laws -- the assault ban was allowed to expire in 2004  --  we labor in an environment of patchwork state laws where gun manufacturers in low-control states grossly overproduce given the demand in those markets, knowing full well that the supply will inevitably (and illegally) find its way to the high-control states.  

Nevertheless, it is considered impossible to pass national gun control legislation given the NRA and a Supreme Court that has turned the Second Amendment into something it never was -- a right to bear arms unmoored from any need to provide for a well-regulated militia, which was that Amendment's original (and only) purpose.  Meanwhile, President Obama says his administration will not propose any further controls, and Mitt Romney --- who actually signed an assault weapons ban in Massachusetts when he was Governor -- claims no new laws, not even renewal of the old assault weapons ban which limited the size of ammo clips, are necessary.

We cheered for Paterno and those Nittany Lions for years.  And we have voted in those NRA-fearing Senators, Representatives, state legislators and Presidents for those same years.  

If we think there aren't more Sanduskys out there in the untouchable venues of intercollegiate sport , or more Auroras in a future beclouded by a distorted Second Amendment, we are in denial.  And until we confront the reality behind those tragedies, they will not end.

Because, as Shakespeare once put it, the fault is not just in our stars . . . 

It's in ourselves.

 

GOING SMALL

GOING SMALL

It was supposed to be historic and certainly was the most anticipated Supreme Court decision since Bush v.  Gore.  The result was also unexpected and therefore surprising

But in the end, if it lives up to all the hype, it will be for all the wrong reasons.

That's my take on National Federation of Independent Business et al. v. Sebellius, the decision issued by the Supreme Court last week on the constitutionality of the Affordable Care Act (ACA), a/k/a Obamacare.  

To begin, the decision contains a number of anomalies. 

One is that it violated the settled practice that High Court opinions generally avoid unnecessary arguments or holdings.  Lawyers call this unnecessary stuff dicta, a kind of judicial throat clearing generally done in the privacy of chambers rather than the pages of opinions.  But National Federation of Independent Business marches dicta into a judicial hall of fame.

Five justices, including the Chief Justice, decided that the ACA's individual mandate  was a constitutional exercise of Congress's taxing power.  Their take was that the penalty imposed on those who remain uninsured was essentially a tax, which Congress has the power to levy under Article 1, Section 8 of the Constitution.  Under that view, the individual mandate could be construed simply as imposing that tax on those who avoided insurance, rather than as mandating insurance coverage from those who would refuse it.  If you do not want to be insured, the claim goes, you do not have to be.   You just have to pay the tax (to defer the cost your free riding inevitably imposes when you get sick and go to the emergency room anyway).  

That ended the argument on constitutionality per se, and consequently there was no need for the Chief Justice to sally forth with his claim that the Act was not  Constitutional under the commerce clause.  But sally forth he did.  On the theory that he, Roberts, would have upheld the law under the commerce clause if he could have, so he had to first determine that he could not  . . . 

So that he could then find it Constitutional under the taxing power.

This, however, is no theory at all.

Because if it were, two centuries of Supreme Court jurisprudence go out the window.   Every case involving multiple claimed bases for Constitutionality necessarily presents the option of deciding them all.  Nevertheless, the practice of refusing to do so has -- until last week -- triumphed anyway. 

Another anomaly was the Court's market analysis, which was part of its unnecessary holding that the individual mandate was not a proper exercise of Congressional power under the commerce clause.  The Court focused on one ostensible market (the market in health insurance) while ignoring the other far more important one (the market in health care itself).  This was the only way the Court could get to its determination -- with which five Justices agreed -- that inaction (in the form of not insuring, which was what the mandate is designed to end) could not constitute the act of engaging in commerce.

The problem here, however, is that the insurance market is really not an independent market.  Insurance is simply a mechanism that health care consumers use to obtain and pay for health care.  Without the market in health care, there would be no insurance market.  Most importantly, those who refuse to buy insurance are not passively inactive in the health care market.  To the contrary, they are very active when they need care.  They march to the nearest hospital emergency room and get it.  And the rest of us then pay for it.  Consequently, the more accurate economic take on insurance refuseniks is not that they are doing nothing.  It is that what they are actually doing -- namely, self-insuring, or more accurately, "free riding" -- is running up the costs for the rest of us and for the system as a whole.  Those "acts" unmistakably affect commerce, and the Congress thus had the unimpeachable Constitutional right to regulate them.

Under the commerce clause.

Anomaly Number Three -- the Court's majority holding that the ACA's Medicaid expansion is unconstitutional because it gives the states no real choice other than to accept the expansion.  

This was truly poppycock.  For as long as anyone can remember, the federal government has had the right to offer states money in return for the states agreeing to be bound by the terms of the offer.  That is how Medicaid works, and has worked since its passage in 1965.  Last week, however, the Supreme Court junked that right.  Now, if the feds give the states the option of receiving money under federal terms, and the states accept that offer, the feds cannot later amend the offer (even if the original grant comes replete with a bold warning that the feds were retaining the right to do so) and condition receipt of all the funds on compliance with the newly amended program.  

The Gang of Five who held the ACA's Medicaid expansion illegal claimed that requiring the states to lose all their Medicaid money if they did not agree to the new expansion of eligible recipients --to those whose incomes were 133% of the federal poverty level -- constituted a "gun to the head" of the states and left them no option but acceptance.  It was OK, so the Court said, for the federal government to withhold the new money if the states did not cover those eligible under the new rule, but they could not lose their old Medicaid money.

This was ludicrous at two levels.   On the one hand, the "gun to the head" analogy pretty much dies once the actual terms of the ACA are examined.  Under it, the federal government pays for 100% of the costs of the newly eligible Medicaid recipients for the first two years the Act is in effect, and for 90% thereafter.  This is hardly a gun; it's more like a Congressional wet kiss. On the other, there really was no basis for the decision in any Supreme Court precedents, all of which have allowed the federal government to condition grants and to amend those conditions later on so long as the states were advised of that possibility in the first place.  

What the Court did, in fact, was to basically turn federalism on its head.  Now, instead of the federal government retaining the right to control how its (or the country's federal income taxpayers') money is spent,  the states get to say yes once, on one set of conditions, and the feds can never thereafter alter those conditions, even if they told you they could when they gave you the initial grant.  It's a bit like Mom and Dad being duty bound never to reduce the initial allowance they give the kids.

Contra the Gang of Five, this sort of behavior does not respect the sovereignty of the individual states.  It just institutionalizes (or Constitutionalizes) their dependence.

Which is not what conservative jurisprudence is supposed to be about.

So why all the anomalies?

It is difficult to avoid the conclusion that more is going on here.  Some have suggested privately that Roberts switched his vote in the last weeks after Sen. Leahy criticized the Court on the floor of the Senate.  Others have claimed that the decision itself puts new and not so hidden arrows in the conservative quiver (e.g., the commerce clause holding and the Medicaid expansion holding) that will come back to bite those who try to use the federal government to solve any national problems in the future.  Still others have raised Chief Justice Roberts to new heights, arguing that he has put the interests of the nation ahead of his party and, in the words of the New York Times's Tom Friedman, "gone big."

I vote for a modified version of the first and second options.

I think Roberts knows the Court has been losing its luster for some time now and is increasingly viewed as just another partisan operator in today's highly charged political environment.  Its decision to award the Presidency to George W. Bush in 2000 began this walk down the slippery slope of judicial partisanship, and the Citizens United decision in the last term (which unleashed unidentified and unlimited corporate money on the political process) more or less capped it.  Now the Court's public approval rating is in the thirties. 

Nothing like Congess, but worse than it has ever been.  

Roberts had to do something to reverse this trend and pulling the ACA off the Constitutional cliff may do it.  The best way to rebut a claim of partisanship is to do the unexpected.  No one expected John Roberts to uphold Obamacare.

So he did.

He, of course, also wrote a wacky and unnecessary commerce clause opinion that smacks of the sort of judicial ignorance of economic reality characteristic of pre-New Deal Supreme Court rulings .  In that world, manufacturing was not commerce; it just preceded it.  In the Gang of Five's world, marching to the emergency room is not commerce if you decide beforehand not to be insured (or, more probably, if an insurance company decides that for you).  And he also wrote an equally wacky attack on Medicaid expansion that Constitutionally binds the federal government to deals it never struck in the first place, and then makes those deals un-amendable unless the states agree to the actual amendment or unless those initial deals are so small that ending them does not really matter to the states in any case. 

The combined effect of these rulings over time will be to limit the federal government's ability to solve national economic problems.  Instead, the national government will be Constitutionally bound to make its programs small enough so that any offers to the states do not become too big to amend or improve.  The commerce clause -- which has more or less saved every piece of national economic legislation since 1939 -- will be  back in a danger zone where phony semantics substitute for real economics.  And the only thing left will be the taxing power.  Lots of luck with that.   

Because no one other than the cognescenti is reading all of Chief Justice Roberts's opinion right now, he gets credit for "going big."

When what he really did could turn out to be . . . 

Pretty small.