Their Goal: President Empty

   This latest shootdown in the Senate seems to consolidate – at least in my own mind – a certain dynamic with regard to this administration that goes beyond the cover story.  Granted, any new  regulation of firearms has uncertain prospects. But everything I’ve heard about the latest campaign was different. There seemed to be a sort of resignation by the diehards that something needed to be done or else their position would lose all credibility. It was too obvious that the deadliest lunatics are often undetectable until a full-blown tragedy exposes them. Then all the psychobabble about “missed signs” leave you with the helpless awareness that none of it counts a lick at preventing the next such attack.

   That’s why it seemed – at least as far as the Senate was concerned – that we were entering a new era.  The “Sandy Hook” massacre was so horrendous that it lingers in the mind, even now, as a challenge for any society that values decency.  That challenge seemed inescapable, and raised hopes that the needle would be moved – even if only slightly – towards the eventual development of a rational system of gun control. For how could it be otherwise?  Even libertarianism must give way to plain common sense when it comes to protecting the citizenry, which is as close to a  ”must do” function of any government as you can have.   

   But, shockingly, these expectations were shattered.  Sixty votes were needed to block the threatened fillibuster; the count was  54 to 46, not really a squeaker.  Was it meant to show that Republicans can still mobilize for a united front?  To what purpose?  From a “normal” perspective, to unite behind the “right” to enable future mass murderers to enjoy the “liberty” of killing at will is insane. Didn’t the party leaders see the risk?

   On reflection, I think that Republicans were aware of all of that, but still felt protected by something else altogether, something that has no connection to gun control.  It is simply the absolute rejection of the current administration, and everything it stands for.  They felt confident that blocking the vote would be seen as simple defiance, and when the object of that defiance is sufficiently reviled, as he is by a significant minority of Americans, there is protection in demonstrating that defiance for its own sake, no matter what actual problem is at issue.

   If immigration reform is defeated this year, as is distinctly possible even though the current system is a total wreck, I think that this posture must be seen as a factor.  There is probably no other area where Republicans stand to gain as much, especially if its most visible Hispanic leader, Marco Rubio, will ride its success to the 2016 nomination. Conversely, its defeat will be seen as an enormous blow to his chances.  But we shouldn’t undervalue its potential to stop the movement in its tracks.  For the President to get any share of credit for that achievement may be enough to do just that. The rock-hard hostility in the base is as solid as ever.  For many Republicans, the greater risk may be in failing to appease it.

Immigration: Removing the “Catch”

   We all know what the “catch” is: the undocumented eleven million or so who are already here, but who will need to be allowed to stay, and possibly become citizens, if anything can ever be done to repair our broken immigration system.  I admit that I don’t like letting them apply for legal status, but it makes no sense to continue with a system that is not working for us. If the price of revising it is to face that reality, then we should pay it.  It will be worth it just to stop the pretense that we will ever engage in a mass deportation program, someday, whenever we get around to it.  Instead, the illegals will be given the chance to apply for an individual review for continued residency.  What we will get in return, hopefully, is a system where we have true control over immigration, which requires some official record of who comes to this country with the intent of living among us.  We don’t have that now.

  As I said, I don’t like the idea of absorbing aliens who have come here illegally, and have stayed.  They have already shown a disrespect for our laws, and democracy, by dishonest entry.  I think that the process of channeling them into citizenship should incorporate penalties that reflect this fact.  But not a penalty just for the sake of punishment.  The cost of any new immigration program will be enormous, and the American taxpayer will bear the brunt of it. A good share of the cost will have to be paid by those aliens who are applying for legal status here under this new system, but in a way that allocates responsibility in a rational legal framework.

  My formula can be expressed in simple terms: X + Y = LS.  Applying it will be complicated, but it is workable, and not as expensive as other proposals.   Here’s what it means: X = Time ( the total processing time); Y = Payment (the cost to the applicant); LS = Legal Status.

  The formula is applicable to any new law and policy that controls immigration.  It can be used in three kinds of application for legal status.

   The first application group is for people who are requesting permanent residence for the first time, and will be filed in their native country.  The processing of this application, including background check and verification, can be done quickly, at least in relative terms (hopefully, not more than 90 days).  Of course, it will also cost the least to process.  The formula is thus expressed as: 1X + 1Y = LS.

   Now, I will jump ahead to the third group, the one which will involve the greatest time and cost for the applicant. The members of this group will be composed of those undocumented aliens who are filing for status while they are still in this country. Presumably, the eventual law will include the “path to citizenship” that is has been the “catch” in dealing with immigration reform for so many years. But the application is only the first step on this path.  The new law should require applicants to truthfully divulge their history as undocumented residents, including all the income they earned and property they have acquired while in the U.S.  Processing this information, as well as doing a full background check on their history and property, both in their native countries and while in the U.S., should be the most time-consuming and expensive of the three procedures.  The rough formula should be: 4X + 4Y = LS.

   But the formula is most original when used for applicants in a third situation: those who have lived here illegally for a time, but are now applying after they have returned to their native countries and wish to be re-admitted for residency here.  This will also be a time-consuming and expensive process, but not nearly as much as if they had remained here without legal status.  One reason it is faster and cheaper is because you don’t need to include funding for possible deportation, always the most expensive part of the process.  If the applicant doesn’t qualify, the application is simply denied.  However, consideration should be taken for the fact that the applicant has taken a bold step by leaving voluntarily; it reveals strength of character, which is often an indicator of honesty, as well as a commitment to lawful conduct. The formula for this applicant is: 2X + 2Y = LS.

   Of course one factor will be relevant in all three situations: whether the applicant is telling the truth.  The standard for honesty should always be one hundred percent plus.  Especially relevant — as I mentioned in a previous blog entry – is the declaration of income and property.  This is crucial for an accurate computation of the account that must be repaid by the applying immigrant who has lived here illegally.  It will be more, of course, if the applicant remains here during the immigration review, but total disclosure is required in both cases.

  You can be sure that this proposal will be fiercely condemned by liberal as well as conservative partisans.  Liberals will say that hard-working, honest people are being exploited and punished for something that was caused by our own unfair laws, but not by anything that they did.  Conservatives will decry the program as submissive to political convenience, and a betrayal of principle.  I am emotionally closer to the latter position, but only up to a point.  I think it is also unprincipled to ignore the harm caused by a  failed policy, especially when it is so inconsistently enforced.

   Instead, this program will restore certainty to the immigration process.  It is a simple framework that upholds the American values of fairness, truthfulness and respect for the law.  Now is the time to  consider it seriously.

Kill This Powergrab Project

   This past Sunday, (9/24/12) Robert Pear reported this in the NYTimes: the Obama administration is planning a pilot project to distribute questionnaires in hospitals and doctors’ offices for patients to report “medical mistakes”.  These would then be sent to research centers for analysis and, when sufficiently transformed into pure data, forwarded to the White House for…what, exactly?

   Your guess is as good as mine.  But I’ll give you mine first.  I see this as a maneuver that will try to preempt the expected counterattack from conservatives whose goal — or “crusade” if you will –  is to repeal the Affordable Care Act.  While this may serve a political purpose, its value as a measure of health care effectiveness is zero.

   Consider how this data will be used.  The article said the questionnaire is voluntary, and the information will be kept confidential.  One can only assume, then, that any public report will be pure statistical analysis.  Numbers, graphs and the like.  It will postulate trends and venture, with caution, that certain kinds of mistakes occur most often with patients of this or that demographic group, and…well, you get the idea.  The report will conclude — and of this you can be certain — that the project was a success because it “points the way” (such a useful phrase) for more extensive research into this growing problem .

   Growing?  Really?  Amazingly, this tiny seedling project will get attention, which is its real purpose anyway.  I’m sure only the nerdiest congressional staffers will be able to get through the report, but it will inevitably contain enough anecdotal goodies  of  gory medical ineptitude that the public, as fed by the media, will demand “a full investigation”.  Yes, somehow the “pilot”  will prompt Congress to bankroll the full miniseries, with “guest star” celebrity research wonks as an added attraction.

   Am I being paranoid?  Isn’t this only a responsible use of resources in order to better direct medical care?

   No, because the project, in its proposed form, could never do that.  It tries to translate the real experiences of health consumers into a composite made up of numbers only.  It will filter out the individual perceptions of the consumers, which are so varied, and so dependent upon unrecorded details, that no purely statistical breakdown can be accurate.  But accuracy is unimportant in politics.  The magic of numbers is useful in itself, especially when unpopular programs need to be fortified.

   But even if it’s useless, is it really harmful?  Yes, because the more citizens rely upon opaque statistical pictures of their own lives, the less power they have to hold their leaders accountable.  After all, numbers don’t lie, do they?  The well-worn trick is to find some common label to stick on any number of diverse stories, make a count of them, and then you can say they all say exactly the same thing.

   So now what?  I say do something now, before the project is approved.  I propose that we demand that every one of the questionnaires be reviewed by a government professional — not a private nonprofit like the RAND Corporation or ECRI Institute, which are going to analyze the data — so that any reported “mistake” that suggests a serious violation of medical practice, including possible criminal charges, be referred to the appropriate regulatory agency or the DOJ for further investigation.

   This is the only proper thing to do with this data.  Would we shrug off anonymous lists of bartenders serving underage patrons “by mistake”?  That would be OK for tabloid or cable TV exposes, but not for the government.  Once admitted into the public record, even the most cursory allegation of injurious conduct must be investigated.  How can we accept anything less?

   I won’t deny that my proposal may be considered disingenuous.  Better yet, I’ll admit it.  If these conditions were attached to the project, it would almost certainly kill it.  The small agency overseeing it, the AHRQ, has a limited budget and staff.   Now the administration would only have the agency transcribe and file the questionnaires, which would likely avoid congressional oversight.  But if it had to read and classify every charge of misconduct, and make appropriate referrals for the worst, it could not handle the workload.  The administration would also have to create guidelines for classifying the charges.  These would certainly require subcommittee review, and risk the entire project’s becoming a very visible test of the ACA’s survival.

   But what if the administration accepts the idea?  That’s fine with me.  I have no problem with serious scrutiny of professional conduct, especially when our health is involved.  I just don’t like empty political gestures that exploit the public’s anxiety, that’s all.  But as I said, I think the White House would back away from any practical use for this program.  They want to flash numbers and labels, and real substance removes all the value from that.  They would just as soon let it die.

   And good riddance.

The Next Moonshot

    I’m a regular reader of Tom Friedman’s column, and I wasn’t surprised by his latest enthusiasm: inspiring the nation to commit to a goal of “keeping everyone in school”(NYTimes, 9/2/12).  He’s a very credible “can-do” kind of guy, and his belief that America has the ability to thrive in a global economy is convincing because it is so reality-based.  He gives hardscrabble facts, and analyzes them.  He reminds us that President Kennedy promised a landing on the moon within that decade (the 1960s), and he delivered, albeit posthumously.  He says that with leadership that can inspire that kind of commitment, we can do the same with education.

    With all due respect, I doubt it.  Putting aside whether we, as a nation, feel the need to achieve that goal, there are too many unique variables in creating successful schools for us to be able to agree on any single master plan.  With a deadline, no less.  Can you see the Department of Education with the NASA playbook?  I can’t.

    In the first place, ”keeping everyone in school” implies that there is a core of knowledge that all, or even most, Americans can endorse as essential for the national purpose.  We know that “readin’ and ‘rithmatic” alone won’t do that job any more, but what is the real curriculum for success today?  Let’s face it.  The very definition of work, by which I mean the labor one performs for compensation,  is in a state of flux.  How many new jobs today are full-time, and how many cannot be held to any predictable schedule?  How many jobs are for permanent employees, and how many for independent contractors?  It may turn out that having just one marketable skill won’t be enough for many workers, who may be forced to learn a second trade just to earn what a single job paid in the past.  In short, the workforce of the future may need to go back to school, and even then will probably earn less than their parents did.  If you think it’s hard to keep the kids in school now, just wait until that reality kicks in!

    Friedman’s analogy is inapt in another way too.  The challenge to reaching the moon was largely technological and financial.  Success depended on funding the enormous cost and using our best talent to solve the staggering number of problems inherent in the task, but we persevered, and prevailed.  Ah, but then we didn’t have the wilfulness factor to deal with.  The moon, you see, never failed to show up in its orbit to “hang out” with free-floating objects.  It didn’t ram into or otherwise attack the other revolving bodies, wasting an entire launch date.  No, the placid and dependable moon complied admirably.  It simply followed its eternal path and waited patiently to be landed upon.

    No, I don’t think educating America’s youth is analogous to the moon landing at all.  If it was, all we’d have to do is program our kids towards graduation, and launch them.

Christmas In July (1940)

   It’s always a delight to find a terrific film when you’re just surfing the channels.  This treasure from Preston Sturges was his first (released in 1940), but it already has his trademark rapid-fire shouted dialogue, mordant humor and sudden tonal shifts that characterized his  entire – yes, I must say it – oeuvre.

   But I’m not doing a review here.  If you love Sturges, as I do, you’ll welcome it.  Okay, I’ll summarize this: it’s about a low paid clerk in a coffee company in New York and his girlfriend, who works for the same company.  He’s entered a slogan contest for a different coffee company, and top prize is $25,000.  In the depression, you can imagine why tens of millions of “have-nots” applied.  The story shows what ensues – hilariously! – when some co-workers play a cruel gag on him with a phony telegram telling him he won.

   What I find fascinating, though, is Sturges’ concept of the rich, and what the average American thinks of them.  Sure, they show themselves to be as corrupt, stupid, greedy and craven as you might expect, and I’m sure audiences lapped it up (it led to a long-term contract with Paramount).  But what intrigues me is the assumption by Sturges that the average, struggling citizen has no particular animosity towards them.  The “system” may be rigged, but people did not seem to want to change it….except to have the chance to become part of it themselves.

   The film concludes — happily! — with the hero’s boss giving him the “chance” to prove himself as an ad writer even though he got the job through a colossal mistake.  This reflects a decidedly conservative perspective that believes in a free market that will eventually become “enlightened”, and start opening up the process so that the “average Joe” (no Jills yet; this is 1940!) can show his stuff.  In fact, the tone of the film suggests that he’ll succeed in America because he’s just a regular guy.

   So what’s missing here?  I mean, can we see a meaningful difference between that time — when we were just emerging from a depression — to today’s time, with a depression of its own.  Stepping out on a limb, I think not.  I don’t know that the general mood of the country is any more outraged by the wealthy than it was then, even with the even greater gap between the “haves” and the “have-nots”.  I think the core strength of the “small government” movement is that it reflects an uneasiness with major federal regulation of private business.  I don’t think the liberal establishment has made a dent in that general distrust, no matter how often it demonstrates, with, I admit, strong statistical evidence, that it the “wealth gap” is hurting this country.

   But, you may ask, isn’t this just a denial of reality?  Can’t people see that the current system can no longer sustain even this inadequate distribution of basic resources, like health care, unless  it comes under federal control?

   That’s a serious question, and I don’t have an answer.  All I know is it’s good to have someone like Preston Sturges around to make us feel good when we’re confused and miserable.

Mandate Mania

As a long-time SCOTUS junkie, I have never seen anything like the white-knuckle anticipation for the Obamacare decision.  Whatever the outcome, I think the Court is 9-0 about this principle of  appellate jurisprudence: Get out of town fast!   You can be sure that not one of these nine jurists will enjoy being in the glare of the public after this Thursday, and they will try to limit access for their own sanity.

Unlike some commentators, however, I think the mandate is still 50-50.  I was disturbed by Kennedy joining the dissent on the Southern Union Company v. U.S. decision.  The Court had affirmed a broad sixth amendment protection for the citizen in Apprendi, and later cases.  I simply can’t understand why Kennedy would see the need to cut back on that  in a case that is clearly an abuse of judicial discretion.  Significantly, to call the majority’s decision “ahistorical”  is to suggest that there is an approach to the health care mandate that finds an implied confirmation based on repetition alone.  Just because the Court has repeatedly, and improperly, extended the commerce clause should not mean that its scope has actually increased.

But I don’t mean to advance any legal theory in this post.  I am writing here, in haste, to express an optimism —  shaky, at best — about the growing willingness of many citizens to confront their leaders with their dissatisfaction with the government.  This dissatisfaction is currently unfocused, and there’s little agreement on what people want that would replace the rampant paternalism that seems to be Washington’s only work product today.  But it has to start somewhere, and opposing the mandate is as good a place as anywhere else.  What I’m saying here –and about this I am very confident — is that if Thursday’s decision upholds the mandate, that this will definitely NOT put the genie back into the bottle.  There is something refreshing, even liberating, about openly discussing the limits of the government’s authority.  The Court’s decision on Thursday, whatever it is, will serve as the conclusion of this opening chapter.  But the debate will continue, in a major way, in the Senate confirmation hearings of the next nominee to the Supreme Court.

Peevish on Polls

   I admit that my distrust of surveys, or polls, has little statistical evidence to back it up — not that I’ve researched the question.  It’s just that they seem to be everywhere — especially in an election year — and they are reported in the media as hard evidence of what the larger, unpolled population actually thinks.  Well-paid pundits and journalists then use the polls to announce their latest predictions about the “mood” of the country as a whole.

   I’ve often wondered why we believe these polls in the first place.  Thankfully, the media never ties to describe the complex laws of probability that, supposedly, justify the pollsters’ conclusions; we would all fast-exit if they did. I know I’d never consent to such torture, and only a truly committed sorehead would take on the challenge in the hope of exposing the “science” as a fraud.

   And yet, secretly, don’t many of us think it is?  But, if we’re not willing to put in the “hard labor” of learning this pseudoscience, does that mean we are to be forever besieged with polls that claim a national significance based on the droppings of 1,154 unidentified bozos?

   I propose a half-measure as a kind of defense, at least until a hardier sorehead than me comes along to do the dirty work.  Why not have each polled respondent answer a question of fact about the subject they are asked to have an opinion about?  It should be a plain, simple fact, but one that everyone should be expected to know if we are to take their “informed opinions” seriously.  Let’s say, Mitt Romney was the governor of what state? Or maybe, what is a governor?

   I think this is important because the pollsters and pundits never explain why their volunteer army of pollees are representative of us.  We are expected to take that on faith.  A “plain fact” test – like the one I propose — might make them hesitate a little.  In fact, I don’t think the poll interpreters should even know those “plain fact” answers until after they make their “scientific” conclusions about the other questions.  It should be easy to hide the computerized responses from the pollsters, and then publish them widely.  Maybe on the Comedy network.

The Edwards Quagmire

As I write this, the Edwards jury is, hopefully, relaxing and enjoying the holiday before resuming its deliberations on Tuesday.  Judging from the number of times they’ve asked for certain exhibits, they seem to be a serious and deliberate body of citizens.

One of the nagging questions about the trial, however, is just what constituted the criminal acts that Edwards is charged with.  Although I am only going by news and TV summaries, and a quick reading of the indictment, I wonder if some members of the jury are stymied by one of its crucial defining elements: did Edwards’ cover-up of the deal — specifically, using “campaign” funds to pay off his mistress in order to keep the affair secret — amount to a breach of the election laws?

My problem is this.  Was the money really used as part of his campaign?  The government’s theory is that he could never be elected president if the story came out, so the use of secret “hush money” was an unlawful evasion of the limits for campaign contributions.   But this only holds water if you accept outright that the payoff was a legitimate campaign expense.  Since he never declared it to the FEC, we don’t know what that agency would have said about it.

Or do we?  Can we really imagine the FEC would count it as a valid campaign expense?  Of course we can’t, which is why the prosecution stakes the whole bet on conspiracy.  Conspiracy, as we’ve so often seen, makes it a separate crime when a citizen does not inform a particular regulatory agency about certain conduct even when that conduct is never found to be criminal.

In that case, a guilty verdict on conspiracy only would sidestep the crucial question of whether the American people have any legitimate purpose in examining the use of campaign funds at all.  And before you simply laugh off the question, think about this trial in a larger context.  What would we have lost if none of what he did was considered a crime?  After all, the story came out through the media, and it sparked public out rage that ended his campaign.  So it was the media that did that, not campaign laws.  Moreover, the three women involved –  the late Mrs. Edwards, Rielle Hunter, the mistress and Rachel Mellon, the campaign contributor –  all have possibly valid claims against Edwards, which could still result in legal action.  But that would be up to them, wouldn’t it? (although that is no longer possible in the case of Mrs. Edwards).

Whatever the verdict, it cannot be denied that the people who clearly benefit from this trial are prosecutors who will use it to self-promote themselves for political advantage.  I see that as a greater loss to democracy than anything John Edwards is accused of.

 

HBO: Girls

     This show is getting attention because it adds a fresh perspective on sex and youth today.  The four girls are shown dressed down, without makeup, and even on the toilet, but they still convince as confident, eager fledglings who enjoy sex, and get their appetites sated.  Lena Dunham, the star and creator (Tiny Furniture), wants to turn “plain” into the new sexy.  But all of the four actresses are actually good-looking.  A couple of them could morph themselves into the next “Bond” girl with no trouble.  Instead, Dunham shoots for authenticity.  Her sex scene in the pilot is shocking, but still erotic, because it is so casual and spontaneous.  We believe that it happens because both the boy and the girl know they have nothing to lose, so, hey, let’s  just enjoy it.  It captures the intoxicating stink of young sex in New York, which is something that that  other HBO show (wink,wink) could not do with all of its sly namedropping.  But a caveat: Dunham’s scenes with her parents don’t convince.  Her mother is way too frank and sarcastic in how she breaks the news that the money from home will stop.  I think that Dunham’s character  is her mother’s daughter in that she’s been manipulating daddy for years, and she learned from the Master.  Her mother should be shown as the supreme manipulator, and would have been more circumspect and, well, feminine, about it.

A Court Remand for Affordable Health Care

   While there is no precedent that I know of for this, it would be of great benefit to the country if the Supreme Court remanded the Affordable Health Care Act back to Congress without a decision.   Any ruling that does not uphold the law in its entirety will make it useless anyway, so it will go back to Congress no matter which side claims victory.  Recent commentators have suggested that severability is an option; it is not.  I don’t know anyone who has put forward a scenario describing how the law will function without the individual mandate, and I don’t think anyone can.  Without it, the entire funding mechanism is stalled because, put simply, the machine needs fuel to run.  The funding must be continuous and predictable, like any other energy source.

   But what will such a remand “decision” look like?  Well, the Court remands cases all the time, only it reverses the appellate court’s decision first, and sends it back there for a new ruling in light of its instructions.  The difference this time is it goes straight back to Congress exactly as it is, but with the proviso that no decision will be made until Congress has another opportunity to create something that, whether good or bad, can at least function within the confines of legitimate governmental authority. And there won’t be any instructions.  This is important because the law is an entirely new creation.  It is a demonstration by the American people that they want Congress to do something about this problem, and this law is the result.  It was made into law properly; that’s not the challenge here. No, it is being challenged because it contains a fatal  Constitutional  flaw, and the highest court in the land cannot avoid having to recognize that.  That is why the individual mandate must be struck down.

   (Parenthetically, what I’d like to see happen is if the Court struck down Wickard v. Filburn too. Dream on!)

   But there is also unique opportunity here.  Since the law has not gone into effect yet, there is time for Congress to amend it on its own with no consequences, since it has had no practical impact on any citizen, and there will be no refunding of revenues.  True, the argument has arisen that review can be delayed because the Anti-Injunction Act forbids hearing challenges to the “assessment or collection” of  a tax until after it has been paid. However, this point is inapt because the individual mandate is clearly a penalty, not a tax.  Therefore, the case is ripe and ready today, and the Court will have to vote on it up or down unless it creates a novel alternative.

    I think a remand without decision will be favorably received.  There is nothing in the Constitution that forbids it, and it will demonstrate a proper use of the Court’s powers.  It will simply say that the matter is tabled, in effect, pending Congressional action by a date certain — say six months after the seating of the new Congress — and that it can be resumed when and if the Petitioners reintroduce the case at that time.  Of course, Congress may do nothing, but that certainly won’t reflect badly on the Court.  Congressional deadlock seems to be normalcy nowadays.  But I don’t think that would happen.  The country would welcome a gesture, by at least one of the three branches, that the will of the people counts more than partisanship.  The Court could take a leadership role by declaring its deference to Congress because it is the branch most directly answerable to the citizenry.  And in the wake of public approval, I think Congress would rise to the opportunity.

   One final word.  In my cursory research on Congressional remands, I could find no precedent.  But a 2010 blogpost by Dr. Bill May, in cavemannews.com, raised this proposal outright — in a different context — and I am grateful for that, as I am now a devoted fan.