Update no.477

Update from the Heartland

No.477

31.1.11 – 6.2.11

Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- On Monday, another Federal district court judge issued a second ruling of unconstitutionality against the Patient Protection and Affordable Care Act (PPACA) {PL 111-148} [432], after the previous unconstitutional ruling – Virginia v. Sebelius [USDC VA ED(RD) civ act no.3: 10CV188-HEH (2010)] [470]. I reviewed the latest case below – Florida v. HHS [USDC FL ND(PD) Case No.: 3:10-cv-91-RV/EMT (2011)]. The plaintiffs are:
** 26 states – Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming;
** two private citizens [Mary Brown and Kaj Ahlburg]; and
** the National Federation of Independent Business (NFIB).
The defendants are the United States:
** Department of Health and Human Services;
** Department of Treasury, and
** Department of Labor (and their respective secretaries).
-- On Wednesday as predicted, the Senate rejected the repeal of PPACA [432] passed by the House [473, 475]. In an odd twist of parliamentary procedure, the Senate voted on S.AMDT.13 [Senate Amendment 13] (repeal PPACA) to S.223 (FAA Air Transportation Modernization and Safety Improvement Act) [Senate: 47-51-0-2(0)]. Go figure!
-- More on Senate Rule XXII (the filibuster) [474/6]:
“The Senate vs. the future”
by Ezra Klein
Washington Post
Published: Monday, January 31, 2011; 7:30 PM
http://www.washingtonpost.com/wp-dyn/content/article/2011/01/31/AR2011013105274.html?wpisrc=nl_politics
Klein’s opening line, “If historians ever have to pinpoint the day that America lost the future, they're likely to look to Thursday [27.1.2011].” I shall state emphatically, I could NOT disagree more. The filibuster [476] (kinda like a gun) is NOT the culprit. The base issue is the rabid parochial politicization that has infected our body politic for decades now. Two generations of politicians have abandoned or lost the art of compromise and negotiation – a process the inherently finds moderation and stability. Now, it is all about one side or the other – one ideology over another – winning, dominating the arena, as with the gladiator. It should be no surprise whatsoever that the rising forces seek the safety of simple majority rule . . . that way the necessity or motivation for compromise is eliminated, eradicated and obliterated. Quite frankly, I find considerable comfort in Senate Rule XXII as I do in my small personal arsenal. Unlike Ezra Klein, I see the resistance to change the process that has served this Grand Republic for several centuries as refreshingly affirming. Klein’s last two paragraphs make my point precisely, rather than his, it seems to me. Long live this Grand Republic!
-- The defense lawyer spin process begins to soften the public image of Bradley E. Manning [450], the Army private accused of leaking classified material to the anti-secrecy Web site WikiLeaks. A “mental health specialist” apparently recommended that young Manning not be deployed to Iraq, but his immediate commanders sent him anyway. The allegation and his commanders' failure to properly discipline Manning, may have contributed to one of the most high-profile classified military network breaches. Don’t ya just love how the spin doctors work? Then we have our favorite congressman, Representative Dennis John Kucinich of Ohio, fretting about Manning’s health in confinement at the Marine Brig, MCB Quantico, Virginia.
-- I have no intention of promoting the soon-to-be-released memoir of former defense secretary Donald Henry Rumsfeld [099 – 257]. Numerous Press sources have reviewed and reported on his magnum opus. According to most reviewers so far, Rummie remains largely unapologetic about his overall handling of the Iraq conflict. At least, Bob McNamara had the courage to admit the error of his decisions. Rummie cost us more precious lives, treasure and reputation than necessary to accomplish the mission. He lost more rungs of respect in my eyes.

I hesitated to jump into the current events of North Africa and the Middle East. I just did not have a clear enough image of what was happening or why. Numerous politicos, talking heads and Press outlets forecast the need of governance reform for many nations, especially among Muslim countries. Many of those forecasts predicted conflagration. The only question was when. It appears more and more each day that when is now as the cascade of dictators progresses. The first domino – the spark that lit the fuse – fell on 17.December.2010, in Sidi Bouzid, Tunisia. An unemployed, university graduate by the name of Tarek al-Tayyib Muhammad ibn Bouazizi, 26, spent the last of his money to buy fruits and vegetables he intended to sell that day to earn a little more money for his family. The police arrested Tarek for not having a street vendor’s license and confiscated his precious produce and cart. Turns out Tunisia had no law requiring a license, which means those local police officers sought a bribe, which Tarek was unable or unwilling to pay. As a consequence of the injustice and economic impact, Tarek chose to immolate himself in front of a local government building; he died three weeks later. The shock waves reverberated throughout Muslim North Africa and the Middle East. Tunisian President [nay dictator] Zine al-Abidine Ben Ali, 74, fled to Saudi Arabia on 14.January.2011. Egyptian citizens took the cue and moment to open their protest in Cairo’s Midan Tahrir (AKA Tahrir Square or Liberation Square) against the harsh rule of President [nay dictator] Muhammad Hosni Sayyid Mubarak. The drama in Egypt continues to play out as Mubarak refuses to step down and appointed Omar Suleiman [former Director of the General Intelligence Directorate] as Vice President. Then, President [nay dictator] Ali Abdullah Saleh of Yemen cracked down on protesters and announced he would not seek re-election [a figure of speech] when his term ends in 2013. King Abdullah II [bin al-Hussein] of Jordan dismissed Prime Minister Samir Zaid al-Rifai and his cabinet on Tuesday, and appointed Dr. Marouf Suleiman al-Bakhit as the countries new prime minister. I imagine trigger fingers in Israel moved ever so closer to the safety lever. The challenges to President Obama and Secretary of State Clinton are enormous and almost incalculable as they strive to keep up with the changes and adjust U.S. foreign policy accordingly. These are indeed interesting times.

Another learned opinion:
“Where is President Obama's will to win? – Close Guantanamo now”
by Charles C. Krulak and Joseph P. Hoar
Chicago Tribune
January 30, 2011
http://articles.chicagotribune.com/2011-01-30/news/ct-perspec-0130-war-20110130_1_federal-courts-military-commissions-guantanamo-bay
They concluded, “It is time to learn. Our courts work. Our Constitution works. Our police and FBI and military work. To ensure that we move forward, and do not continue to backslide on commitment to the rule of law, the president must lead. If the president leads, we will continue to stand by him.” Who could disagree with that? Chuck Krulak was our 31st Commandant. Joe Hoar was Commander-in-Chief Central Command, but more importantly, he was my first executive officer when I was a young lieutenant of Marines. To say the least, I have considerable respect for both men, but . . . They said, “His leadership sent a strong signal that America was changing course and was again a nation of laws, that those who were cleared of misconduct would be released, those who stood accused of crimes would be held to account, and that Guantanamo would then be closed.” Frankly, I am staggered and literally dumbfounded. “Crimes!” As our British cousins say, I am gobsmacked! I guess the generals are convinced that we are not and never have been at war. Well, I respectfully disagree. We are at war! The detainees are unlawful battlefield combatants, not criminals, not mere innocents caught up in world events. The laws of war dictate prisoners captured as a product of war can be detained until hostilities cease. Last time I checked, I believe we are still at war.

“FBI in hundreds of privacy violations, report finds”
by Jeff Stein
Washington Post
Posted: 31.January.2011; 2:35 PM ET,
http://voices.washingtonpost.com/spy-talk/2011/01/fbi_in_hundreds_of_privacy_vio.html
. . . more detail:
http://www.eff.org/pages/patterns-misconduct-fbi-intelligence-violations - 9
This story was largely overlooked in the turmoil of the week. We owe the Electronic Frontier Foundation (EFF) our gratitude for their perseverance. As much as I resent and object to such abuses in the name of national security and advocate for safeguards to prevent future transgressions of this nature, I urge caution to avoid the over-corrections characteristic of the Church Committee consequences.

The latest challenge to the Federal health care reform law is perhaps the most significant so far due to the scope as noted above. As numerous Press funzionari, partisan politicos, and miscellaneous talking heads noted, the score is now 2-2 – all destined for the appeals process and ultimately the Supreme Court. The Federal legislation at issue: the Patient Protection and Affordable Care Act [PL 111-148] [432], as amended by the Health Care and Education Reconciliation Act of 2010 [PL 111-152]. Federal District Court Judge [Clyde] Roger Vinson [USNA ’62, I might add] of the Northern District of Florida, Pensacola Division, issued his ruling on Monday in the case of Florida v. HHS [USDC FL ND(PD) Case No.: 3:10-cv-91-RV/EMT (2011)]. Vinson noted, “[This case] is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government;” which in turn illuminates the scope of not just this case but also the whole question in the main. More to the point, he said, “The Constitutionality of the individual mandate is the crux of this entire case.” Vinson determined the individual mandate was unconstitutional and was not severable from the law as whole. The judge drew a very find point on his reasoning, “If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be ‘difficult to perceive any limitation on federal power.’” Finally, a breath of reason! By the various judicial opinions I have read so far, it appears to boil down to this: If you believe in and are committed to federalism, then virtually by definition you embrace the expansive interpretation of the Commerce Clause (Article I, § 8, Clause 3) and the Necessary and Proper Clause (Article I, § 8, Clause 18) of the U.S. Constitution, and most likely discount or ignore the 9th and 10th Amendments. Most of the opinions on the ramifications I have read to date appear to be political rather than legal or judicial. From my lay perspective, Judge Vinson struck resonance – the individual mandate exceeded the constitutional authority of Congress or any governmental entity. Unfortunately, if Judge Vinson’s opinion is upheld through appeal and affirmation by the Supremes, that would leave us with an eviscerated PPACA and returns us to the status quo ante and back to our social and political dilemma – medical care for the uninsured.
We have the dilemma of compassion, i.e., wanting everyone to have proper medical care, against the abuse by some of our generosity. There are perhaps numerous options including denial the medical coverage (which is a virtual impossibility from my perspective). I think I am absolutely convinced of is the status quo ante is simply not stable, sustainable or acceptable. So, if the individual mandate, denial of services, and the old method of expense recovery are not acceptable, then we must find some other acceptable method of paying for services rendered. My recommendation: shift the costs of the uninsured from the health insurance industry and those who pay for their health care to the Treasury; the base for payment is far bigger than the fraction who use / need health care. The primary detractor from my recommendation: there are no motivations for insurance coverage. Nonetheless, in this situation, we have an opportunity . . . to tweak-up PPACA . . . to address the ignored carnivores amongst us of tort reform and interstate insurance competition; the replacement of the individual mandate; and, helping health care providers transition from the current expense structure to a new, far-lower, overhead balance sheet and cost of goods & services provided. Lastly, we can malign President Obama and the 111th Congress, but at the end of the day, at least he (they) had the cojones to do something about the health care crisis. We can hide in ignorance behind our employer subsidized health care benefits, but that does not change reality. The system is unstable and has been for several decades.

As is always the case these days, those on the side of PPACA were screaming about judicial activism – the mantra chant for anyone who disagrees with a judicial ruling.
“Judicial Activism on Health Reform”
Editorial
New York Times
Published: February 1, 2011
http://www.nytimes.com/2011/02/02/opinion/02wed2.html?nl=todaysheadlines&emc=tha211
and
“Bush-Appointed Federal Judge Tosses Out Challenge to Health Reform”
by Ian Millhiser
ThinkProgress
Posted: 4.February.2011; 10:03 am
http://thinkprogress.org/2011/02/04/aca-standing/
The injection of partisan politics into the judicial renderings on this very important societal topic ultimately becomes counter-productive as one side or the other discounts or flatly ignores opinions that do not match their political perceptions. We must filter out partisan politics and focus on the facts and solutions to real problems.

News from the economic front:
-- The Wall Street Journal reported 2010 total compensation and benefits for publicly traded Wall Street banks and securities firms hit a record of US$135B, up 5.7% from US$128B billion in combined compensation and benefits for the same companies in 2009.
-- The Labor Department reported nonfarm employment rose by 36,000 in January, as private-sector employers added 50,000 jobs. The December jobs number was revised to show an increase of 121,000 jobs from a previous estimate of 103,000. The unemployment rate, which is obtained from a separate household survey, fell to 9.0% last month. Roughly 13.86 million people who would like to work continue to look for a job.

L’Affaire Madoff [365]:
-- Madoff Bankruptcy trustee Irving Picard filed suit under seal on 2.December.2010, against the mega-bank JPMorgan Chase in his effort to recover assets for the victims of Bernie’s crimes. Picard seeks US$6.4B from the bank under his accusations that the bank suspected the validity of Bernie’s investment returns and chose to do nothing. I imagine the bank’s executives and lawyers are more worried about the prospect of criminal charges.

Comments and contributions from Update no.476:
“Our Top Marine is true to his word. He is a man of honor who can disagree and turn right around to make it happen. A lesson in leadership once again.
“Click on the link below and you can read the article and watch the video. Well done.”
http://blogs.wsj.com/washwire/2011/01/30/top-marines-pledge-to-step-out-smartly-to-comply-with-dont-ask-repeal/
My reply:
I am not ashamed to say they brought tears of pride to my eyes. We knew they would lead, and so it is. I would say a perfect message and precisely the correct time. God bless ‘em on this important journey.
Postscript: I encourage everyone who reads this to visit link and listen to the video message. You will have a small glimpse of what it means to be a Marine.
Comment to the Blog:
“Please be cautious with sarcasm. Some of us only ‘get’ it when you label it.
“Re culture of cruelty: I agree with Giroux's point, although I dislike his indirect writing style. I guess I was wrong in assuming that Americans in general already knew that our nation had developed a mean streak; he and you both treat it as news. The culture of cruelty became a simple fact to me early in the Reagan administration, which had a much smoother presentation of the same policies and excuses for them. Incidentally, European and Canadian sources take the politics of cruelty in the USA for granted, although they tend to label it as corruption or lack of national good sense.
“Re filibuster rules: You might want to study the filibuster rules a bit more closely. The bottom line is that a single Senator can make decisions for the entire country. This makes it much easier to support the politics and culture of cruelty. Good luck to the country.
“Re earmarks: I believe we may safely ignore Obama's comment on earmarks. Realistically, earmarks are the currency that pays off Senators who threaten to filibuster (see above) and committee chairs in both houses that have the ability to kill legislation whether it's good, bad, or somewhere in between.
“Re State of the Union: I find it hopeful that the Tea Party gave an additional response to the State of the Union message. Apparently, the Tea Party people do not see themselves as Republicans.
“Re: the Tucson shootings. What ties Jared Loughner to the earlier political violence and rhetoric is the culture of cruelty that has been active since Reagan, not leaving out the Clinton administration. Two of the features that made Loughner's actions more likely are the cultural acceptance of violence (see the linked Giroux article) and the steady drop of funding for mental health agencies of all sorts. At this point, even an obvious case such as Loughner received no attention until he killed six people all at once and injured thirteen more. I suspect that our current American political and cultural climate simply expects such incidents to happen and prefers the police to kill the perpetrator, thus saving the expense of an investigation and trial to find out what happened.”
“PS: re our prior discussion of Goldman-Sachs’ drop in profits: I am including a link an article from The Baseline Scenario. Written by Simon Johnson, a former chief economist for the International Monetary Fund, the article discusses the US government’s approach to banks that are “too big to fail.” I suspect the risk of another spectacular crash is closer than Americans realize. Other articles on that blog discuss the mechanics of that. The boiled-down version is that the real advantage of being “too big to fail” is that lenders know that the government will provide unlimited money to those banks if they threaten to fail. Therefore, lenders will unfailingly loan to those banks regardless of risk, and at lower lending rates than to anyone else. As long as the US Treasury holds out, there is no risk in lending to “too big to fail” banks. Too bad about those tax dollars.”
My response to the Blog:
Re: sarcasm. Point noted, understood and accepted.
Re: politics of cruelty. I suspect we are now expanding Giroux’s original premise beyond its initial scope. This is a worthy topic of debate. So, let us begin with perhaps a question or two. Does an individual have a right to defend himself and his family? If so, to what extent, and how is that boundary defined? Does every human being on the planet deserve or have a right to live? If so, to what degree? Food, lodging, car, flat screen TV . . . how far do we go to make everyone equal?
Re: filibuster. Respectfully, you might want to study the rules a bit more closely. There is no filibuster that cannot be overridden. If the Majority Leader decides against calling a cloture vote, then yes, one senator can block. However, if the Majority Leader calls a cloture vote, he must have 3/5th in the affirmative to override. If a senator refuses to relinquish the floor, he must maintain it per the rules; if not, the Majority Leader can call the cloture vote. One senator can stop a vote for a period of time, as Strom Thurmond did in 1964 (83 days), but he was eventually overridden and the Civil Rights Act of 1964 [PL 88-352] became law.
Re: earmarks. Yes, it is political currency, but it is not limited to the Senate; and, earmarks are not required (see above). I continue to maintain that earmarks are an expedient and effective instrument of corruption.
Re: Tea Party. Apparently not, but they caucus with the Republicans, and they use that label in their official descriptors.
Re: Loughner. I do not share your pessimistic view of the American political system. I do not agree that Loughner was a product of the so-called American culture of cruelty. In fact, I fundamentally reject Giroux’s notion flatly. To be blunt and harsh, I see Giroux’s construct of his culture of cruelty as the inverse or reflected image of communist ideology, i.e., everyone deserves everything equally – great idea, but unfortunately, it will never work . . . at least not in pure form. I do agree with your assessment of mental health support. I think there are legitimate reasons, but that does not make it correct. To me, the key is official recognition, rather than allowing neglect to force a violent reaction to garner attention as in Loughner’s case (apparently). We need some level of collective interaction that is beyond conventional social services as we know them today and law enforcement. Loughner had not broken any law, but he clearly needed help; and, the ones who should have cared for him chose not to get him the help he needed.
Re: “too big to fail.” The hard, cold reality is too big to fail negates a fundamental precept of capitalism and violates the principal self-correcting mechanism that makes a free market work. Congress passed the Sherman Antitrust Act [PL 51-190] in 1890 for many reasons – a few of which seem quite applicable today. Too big to fail presents a threat to society in general, as we given a glimpse two years ago. As best I can determine, the Dodd-Frank Wall Street Reform and Consumer Protection Act [PL 111-203] does NOT remedy the condition whatsoever. Although the banks were the focus of this last go-around, it could easily have been the defense industry, yet we could also argue the government has been subsidizing the defense industry since WW2. I would like to see a threshold definition of too big to fail and regulations to prevent exceedances and break-up those banks above the threshold; then, once accomplished, a bank survives by the wisdom of its choices.
. . . a follow-up comment:
“I was rather startled by your response to the politics of cruelty, as I had not discerned any part of that from your blog posting. Where in Giroux's article or my discussion of it did you find the idea of making everyone equal? I can only assume that you have operated from some sort of either/or assumption that totally eludes me. Don't worry, Cap, nobody is coming to take away your TV.
“We simply fail to see the wisdom of telling people to go out and get a job when we know they have no skills or outdated skills and cannot get a job that will support them. Without offering training, it's simply a way for society to blow off its responsibility. In much the same vein, making it illegal to sleep on the sidewalk does nothing to address homelessness, but does allow people with a mean streak to believe they've ‘done something about those people.’ I have slept on concrete; I assure you it’s not something one does as part of an easy life.
“Humans are a social animal, designed to live in groups. As such, we have a minimal responsibility to one another that ought to be at least as benign as the ties among a pack of wolves or a pride of lions. Acting as if we are separate is every bit as silly and unsustainable as Communism, and the USA is in the process of proving this point. I don’t seek to make everyone equal. Most of the people I know who have more possessions than me have less serenity, and I certainly would not trade places with you or the two wealthy men I know personally. I would, however, like to feel secure in the idea that I will never again have to sleep on concrete, even if I make major financial mistakes.
“If you study your own discussion of the filibuster rules, I think you will find you have made my point for me. Thanks.
“The Tea Party may caucus with the Republicans and do what is needed to maintain the official affiliation, but I'm not kidding myself about their intentions.”
. . . my follow-up response:
No need to make it personal.
The dilemma we face is helping those who truly need help and want to better their lives from those who simply want a good life to be provided for them. We have discussed this before. In these topics, general rules and simple solutions rarely address the situation of any given individual. Like most human endeavors, internal, personal, private motivation of any individual in question is the key – addiction, commitment, motivation, ambition, et cetera ad infinitum. The difficulty for us remains, how do we sort out the wheat from the chaff, and deal with the results accordingly.
Freedom means freedom. It does not mean I am free to have you provide me the life I feel I deserve. The more support, the more terms necessary for that support. We should provide support, but on our terms, not the recipients. I am not against supporting those who need support on a temporary basis to help them past a rough patch. I am not interested in providing any support to abusers, those who take advantage of our generosity or those who have no interest in contributing to society.
My notion of isolation camps addresses these issues directly. Sustenance and cover can be provided who seek to abuse, to not be productive, as long as they abide by the rules of our support. We could also provide training for entry-level jobs. There is a lot we could do, but at the end of the day, it still always boils down to the individual.
I do not want you to ever sleep on concrete again, either, my friend.
My apologies. I guess I simply do not see, comprehend or understand your point regarding the Senate’s filibuster process.
I share your assessment of the so-called Tea Party and its notional members of Congress . . . although perhaps from a different perspective. I think at the end of the day we will find they are no different from other politicians. Time shall tell the tale.

A new contribution:
“It's good to know that someone is adapting to the climate change.”
“Why Seattle Will Stay Dry When Your City Floods”
http://motherjones.com/forward/emailref?path=node/96431
My reply:
Interesting article. Nice to know some folks are thinking ahead by several generations. In this topic, I am quite conflicted. I do not believe climate change is human driven. I believe climate change has been and will forever be a part of Earth. The dynamics of weather are of far greater scale than human inhabitation has ever or probably ever will be. Regardless, I am strongly in favor of reducing all pollutants we create including CO2 and other greenhouse gases. We should be striving for zero pollutants perhaps even zero emissions. To my knowledge and understanding, I am far more worried about population growth and sustainability than I am about climate change. The climate is going to change no matter what we do, and we will adapt as we always have; but, over-population will be far more destructive . . . Yemen or Somalia being prime examples; they have produced far more people than their land can support, or put another way, they are living where the land does not welcome them, so they have significant, maybe even dramatic, social, political and economic pressures that contribute directly to instability. Unfortunately, with modern mobility, they export their unrest . . . thus al-Qaeda.
. . . a follow-up comment:
“I certainly share your concern about population growth. Ever-enlarging populations draw on resources in obvious and subtle ways, and the distribution of people in deserts and other undesirable lands versus fertile lands does indeed exacerbate the issues. However, as my Environmental Science textbook (from Summer 2010 trimester) (Cunningham & Cunningham, 2008) points out, the population issue has been addressed well in advanced nations. Indeed, Japan currently faces issues due to its aging population, a result of their low birth rate. Less developed nations are beginning to reduce population growth as well; the growth rate tends to drop as various other social issues are resolved.
“Climate change is indeed a natural and cyclical event. However, as a strong consensus of scientists agrees, human activities have dramatically increased the rate of change. ‘We will adapt as we always have’ no longer applies because humans have not faced this rate of change before. You are right that change is inevitable, because the atmosphere is such an enormous system that any change in input only results in output much later. All the same, you and I have grandchildren whose lives will be drastically affected by the decisions that political leaders worldwide make within the next few years. My highest environmental priority, therefore, is climate change.
“This is a field that fascinates me; I would be very happy to continue the discussion.”
. . . my follow-up reply:
I see your reasoning as sound and compelling. However, as I stated earlier, I believe over-population regionally, nationally and internationally will be far more dramatic and immediate in its trauma upon mankind than climate change. Also, as I said, I do not need a linkage between human produced pollutants and climate change to convince me all pollution is bad and should be stopped in the most expeditious and effective manner.

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)