A radical departure? Congress can tax inactivity

There is a mystery to John Roberts' opinion upholding the mandate under Congress's taxing power while ruling it an unconstitutional exercise of Congress's Commerce Clause power.  With regard to the Commerce Clause, Roberts adopted wholesale the plaintiffs' argument that it's a radical and dangerous departure for Congress to "create" commerce or "compel" inactivity.  Yet Roberts finds that Congress does have the power to tax inactivity, notwithstanding that none the precedents he cites as support for upholding the penalty for not buying insurance do tax inactivity. He is up-front about this apparent paradox:

There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something (p. 41).

Conservative justices deny Congress a power that Congress doesn't want

[Reposted, with new post-mortem comments from Randy Barnett, chief architect of the case against the mandate.]

The first really substantive part of the "syllabus" or executive summary of the Supreme Court decision upholding the individual mandate and the ACA looked like Armageddon for the Administration:

2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30....

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clausewould give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27.

That is a straight exposition of the plaintiffs' core argument.  Congress cannot create commerce; Congress cannot regulate inactivity; Congress cannot compel commerce. It's a miracle that Roberts turned around and upheld the mandate as an exercise of Congress's taxing power.  But hasn't this decision dealt a blow to Congress's power to regulate commerce?  Does it kick off a rollback of the series of decisions in Roosevelt's second term that expanded that power?

Probably not. Congress's right to compel purchases is a conservative worry, not a liberal one. Verrilli's core "limiting principle" was essentially that insurance is unique (because you never know when you'll need the benefits), and health insurance a singularity within that singularity (because if you lack it, your fellow citizens will ultimately foot much of the bill).  And he meant it!

In his reply brief, Verrilli identified democratic accountability as the ultimate limiting principle that would confine the purchase mandate to health insurance:

Scotusblog's finest hour

As a counterpoint to the bumbling of CNN, Fox et al, the probity and precision of Scotusblog's 6/28/12 liveblog is worth savoring. My emphasis below.

10:07

Amy Howe:  We have health care opinion.

10:08

Amy Howe:  Parsing it asap.

10:08

Amy Howe:  The individual mandate survives as a tax.

10:09

Amy Howe:  It's very complicated, so we're still figuring it out.

10:10

Kali:  We are still here. Don't worry.

10:10

Tom:  So the mandate is constitutional. Chief Justice Roberts joins the left of the Court.

 The individual mandate survives as a tax! That was one of the best moments of my life (I know, I know, get a life...).

To what extent did SCOTUS inhibit Congress's power to regulate commerce?

Yesterday, I suggested that the Supreme Court's finding that the individual mandate exceeded Congress's Commerce Clause powers did not in fact crimp Congress's ability to regulate commerce in any significant way, since Congress has no desire to impose any more purchase mandates. Donald Verrilli stressed in his reply brief that health insurance is a unique case, pointing out that states, which have an unquestioned power to impose purchase mandates, don't do it. Justice Ginsburg made the same point in exquisite detail in her dissent with regard to the Commerce Clause.

In today's Times, however, Neal Katyal, who served as acting Solicitor General after Obama appointed Elena Kagan to the Supreme Court and who argued the ACA case at the appellate level, makes a compelling case that the decision did limit the federal government's power and expand the Court's propensity to legislate from the bench in significant ways. Chief among them was in its invalidation of Congress's power to enforce its expanded Medicaid mandate:

"Verrilli, slapped silly, recovers willy-nilly" revisited

On March 28, I wrote in defense of Solicitor General Donald Verrilli's performance in oral argument over the constitutionality of the individual mandate:

To a degree, I suspect that critics are projecting their own discomfort and shock at the apparent intense hostility to the mandate expressed by Scalia, Roberts and Alito at the outset onto Verrilli, concluding that he buckled under the pressure of hostile questioning. Maybe he did look and sound ill at ease -- the play's the thing, not the script. But if  he did not answer this point or that point at the particular moment when one critic or another thought appropriate, it was in large part because he was repeatedly interrupted.  Ironically, some of the interventions by Ginsburg and Breyer may have diverted him an early answer to the core question: what was his "limiting principle, " a line the federal federal government could not cross while exercising its power to regulate interstate commerce.

By my count, Verrilli was interrupted 44 times in 50 pages of testimony.  Plaintiff's counsel Paul Clement, who was more fluent, was interrupted just 12 times in 24 pages. Clement's co-counsel Michael Carvin was interrupted at a rate similar to Verrilli -- 25 times in 27 pages. But the intensity in the two halves of the proceeding was reversed:  the liberal justices got in the groove of defending the mandate near the end of the proceeding, while Verrilli was buzz-sawed most intensely at the outset -- 16 times in the 15 pages following his opening statement. 

It seems I undercounted the interruptions when picking over the transcript. This afternoon, former Office of Legal Counsel head Walter Dellinger argues in Slate:

Footnote to a fact-checked false impression

The Note's Chris Good flags an anti-Obamacare ad aimed at young adults by Crossroads Generation, a younguns' auxilliary of Karl Rove's American Crossroads.  This 1-minute font of information nyaah-nyaahs that while Obamacare enables adults under 26 to remain on their parents' insurance, 

...actually, states already allowed kids to stay on their parents' insurance before Obamacare.

I want to add one key point and one minor to Good's debunk below:

As The American Prospect goes, so goes the American prospect?

Answering The American Prospect's call to readers to help save the magazine from extinction, I donated some money and subscribed.  Honestly, I don't know if I'd ever even seen the print edition before my first issue arrived a couple of days ago. May it not be the last!  It's "The Poverty Issue," taking grim stock five decades after the U.S. declared war on poverty, and it's terrific.

Mark Levinson, writing about measurement of poverty, gives us to understand that by the most credible measures, there are currently between 69 and 100 million poor people in America. Roughly one third to one quarter of the nation is, if no longer ill-housed, ill-clad and ill-nourished, still unable to meet a Basic Needs Budget with any consistency.  Peter Edelman, Bill Clinton's onetime Assistant HHS Secretary who resigned in protest when Clinton signed the Republican welfare reform law (which Edelman reminds us, knocked 10 million people off the welfare rolls), examines why the percentage of Americans in poverty stalled for 30 years after 1970 and backslid in the past decade -- mainly because "well-paying industrial jobs disappeared to other countries  and to automation"  and because we allowed unions' strength to erode rather than to migrate to the kinds of jobs that have filled the void.

Edelman offers various policy prescriptions to rebuild the middle class, and the article headline insists, "..We Can Solve This." While that would doubtless be true for a government with the desire and freedom to act, it's hard to imagine this generation of Americans mustering a fraction of the political will that would be required:

My last best shot in defense of the ACA

[repost] I have a piece up at The Atlantic updating my case that the enemies of the ACA misrepresented the individual mandate in the Supreme Court, that the cadre of oppressed citizens they conjured up is a phantom, and that the law's creators worked under a self-imposed "limiting principle," doing their utmost to minimize the financial burden imposed by the mandate.

Below, a few posts that flesh various parts of the argument compressed in the Atlantic piece.  A full index of my posts on the ACA in the Supreme Court, along with outside sources relevant to my argument, is here.

Misrepresentation of the mandate in the Supreme Court: Why it still matters (5/10)

Three possible surprise rulings on the Affordable Care Act (6/15)
Attention, Justices Kennedy, Roberts et al: Read the young people's brief (5/5)  
The ACA offers catastrophic coverage: the AP notices  (4/10)
Marty Lederman concurs: the individual mandate could be trimmed, not killed (4/5)
Go tell the justices: the ACA has a catastrophic coverage option (3/31, updated 4/2)  

And, for the record, the 3/28 post by a healthcare attorney who picked up the plaintiffs' core card trick more or less in real time during oral argument: Ragbatz on the catastrophic coverage options in the ACA. 

The conservative justices shake the Etch-a-Sketch -- twice

For supporters of the Affordable Care Act, the tea leaves after oral argument in the Supreme Court were bad enough. In recent days, though, worse omens have deepened the gloom, as the conservative justices have shown signs of clearing the conceptual decks  for a strike-down of the individual mandate at least.  Perhaps implicitly acknowledging that recent legal precedents suggest that the mandate is constitutional, they have indicated a new willingness to cast aside the judicial principle of stare decisis -- let the decision stand. In fact, in the past week, two justices have signaled a willingness not to let their own decisions stand.  And both those decisions have a bearing on the mandate's constitutionality.

First up is Scalia, who is soon to release a new book that has been reviewed by the New York Times. TPM's Sahil Kapur highlights the relevant section:

What about state-imposed individual mandates?

If the Supreme Court strikes down the individual mandate but leaves the rest of the ACA intact, one fact to keep in mind is that states maintain the right to impose such a mandate.  Backhandedly, even the plaintiffs acknowledged as much. The state respondents' brief makes much of a distinction between regulating commerce and "creating" it by requiring individuals to purchase something, asserting that Congress does not have the right to "compel individuals to engage in commerce." But the states do have that power:

The power to force individuals to engage in commercial transactions against their will was the kind of they reserved to state governments more directly accountable to the people (p. 17).*

Massachusetts, ICYMI, has exercised that power.  No one has challenged it.  And Mitt Romney has been insisting for two years that each state should have the power to find its own healthcare solution.

Bring it on, Mitt

The Weekly Standard's Frank Cannon and Jeffrey Bell, following an alas-for-the-evil-emperor paean to Obama's tactical brilliance that will take Democrats through the looking glass, call for* a "forward-looking economic debate" between Romney and Obama:

Smart messaging, with a large dollop of denial, from Aetna's Bertolini

The health insurance industry has sensed and seized -- or created -- a PR opportunity amid the mounting tension in the runup to the Supreme Court's decision on the constitutionality of the Affordable Care Act. First, UnitedHealth announced that it would continue to allow parents to cover adult children up to age 26, a requirement of the law, regardless of whether that part of the law was struck, and adhere to other ACA mandates, such as providing preventive services without copay and forgoing lifetime coverage caps. Aetna and others made similar announcements. Mark Bertolini, CEO of Aetna, has been particularly out front, giving interviews to the Wall Street Journal and Washington Post emphasizing Aetna's innovation in improving healthcare delivery and reducing costs.

There's some disingenuity in Bertolini's message as it's evolved over the past two weeks, however. Yesterday he told WonkBlog's Sarah Kliff that the Supreme Court decision doesn't matter, that Aetna and the industry will continue with innovation regardless of the decision, and that a deficit reduction deal is more important than the ACA.  That's backwards. If the ACA's new rules for health insurers and array of cost-cutting incentives for healthcare providers and insurers are left in place, they will likely have a bigger long-term impact on government spending than any tax-and-spending deal the Congress strikes. Bertolini's own boasts about Aetna's recent accomplishments and strategy indicate as much, though he's now working to unmoor their origin and continued impetus from the ACA.  Check out the denial in his exchange with Kliff:

The morality tale that may sink the ACA, cont.

I have a piece up at The Atlantic updating my case that the enemies of the ACA misrepresented the individual mandate in the Supreme Court, that the cadre of oppressed citizens they conjured up is a phantom, and that the law's creators worked under a self-imposed "limiting principle," doing their utmost to minimize the financial burden imposed by the mandate.

Below, a few posts that flesh various parts of the argument compressed in the Atlantic piece.  A full index of my posts on the ACA in the Supreme Court, along with outside sources relevant to my argument, is here.

Misrepresentation of the mandate in the Supreme Court: Why it still matters (5/10)

Three possible surprise rulings on the Affordable Care Act (6/15)
Attention, Justices Kennedy, Roberts et al: Read the young people's brief (5/5)  
The ACA offers catastrophic coverage: the AP notices  (4/10)
Marty Lederman concurs: the individual mandate could be trimmed, not killed (4/5)
Go tell the justices: the ACA has a catastrophic coverage option (3/31, updated 4/2)  

And, for the record, the 3/28 post by a healthcare attorney who picked up the plaintiffs' core card trick more or less in real time during oral argument: Ragbatz on the catastrophic coverage options in the ACA.  

Someone talk me down

I am so freaked out by the weakening global economy, the Republicans' ballyhooed Supreme Court-enabled  3-1 spending advantage, and the pending ACA decision by same Bushified court, I feel like Ingrid Bergman as the Germans march on Paris. Really, it feels as if the forces of reaction are gaining critical mass. They've sandbagged the economy, sabotaged the ACA, packed the court, and won the right to saturate elections with money.

Once again, I am reminded of Francis Fukuyama's demonstration that in other eras, state sovereigns have found means for a few centuries to check the ability of elites to entrench their advantages, only to have the elites eventually find ways to breach the defenses. The question is whether the current disproportionate accretion of wealth and power to the 1% will once again prove cyclical, as in the wake of the 1929 crash, or this time become permanent.

The billionaire barbarians are at the gates.

Customer Relationship Management, Murdoch style

Print publications, as everyone knows, have been hurting for some time, and many resort to revenue boosters as desperate as those of broke cities looking to jack up parking violation revenue.  For years, I've held off from tempting 1-year offers from the Economist because they won't let you pay by check -- they want your credit card for automatic renewal. I can accept a reasonable bump-up when a new subscriber offer expires, but I don't want it to be unilateral.

For arrogance and customer manipulation, though, nothing beats The Wall Street Journal in the Murdoch era. My online subscription just expired, and when I tried to click through to an article I was bumped to a subscribe page offering a decent combined print-and-online rate ($5.99/week). It's a great time for me to renew, I figured, because my credit card expires in August. I filled out my credit card info, but never pulled the trigger. The terms are unacceptable on several counts.

First, the fee is billed weekly, so they'd be coming after me for my new credit card info right away. Worse is what they do with it.  This offer was dangled before me, an existing online customer, as an "introductory" one -- which makes partial sense, as I have not subscribed to the print edition for some time.  At page bottom, however, is this caveat:

Would the ACA reduce the number of Americans on disability insurance?

What do people who have lined up all night (in their cars) for a day of free medical care at a Remote Area Medical clinic in rural Tennessee think of the Affordable Care Act?

Many have never heard of it, reports TNR's Alec MacGillis in Kaiser Health News. But one uninsured patient offered instant economic analysis that the CBO would be well advised to take note of:

..it it was hard to find visitors to the clinic who would not benefit directly from the law. Barbara Hickey, 54, is a diabetic who lost her insurance five years ago when her husband was injured at his job making fiberglass pipes. She gets discounted diabetic medication from a charity, but came to the clinic to ask a doctor about blood in her urine.

Under the law, she would qualify for Medicaid. Her eyebrows shot up as the law was described to her. "If they put that law into effect, a lot of people won't need disability," she said. "A lot of people go onto disability because they can't afford health insurance."

States like Tennessee have kicked a lot of people off Medicaid in recent years -- in Tennessee, you may now be ineligible if you earn as little as $10,000. Conversely, the federal disability rolls have swelled since the financial meltdown and have been rising steadily since the 1990s. Investor's Business Daily reported on April 20 of this year:

In which Timothy Egan completes Tyler Cowen

Methinks that there's a circularity to Tyler Cowen's argument that lack of trust in government would undermine the effectiveness of traditional stimulus measures to boost public employment:

Various policies that are being put on the table, including forms of fiscal and monetary stimulus, try to accelerate this repair process. They would all be likely to underperform, partly because the public, rightly or wrongly, doesn’t see them as ways to rebuild confidence. We have become skeptical of our own macroeconomic authorities and abilities, and that, in turn, makes successful policy harder to pull off. 

For instance, there is a good case to be made for monetary expansion, given the current low rate of inflation and high rate of unemployment. But if fear of inflation puts off the American public, such a policy will again underperform, relative to what we have learned in textbooks. There won’t be a credible commitment to see the monetary stimulus through, as people panic that resulting inflation will be used to redistribute wealth. (Although Sweden and Switzerland have had effective monetary policies recently, both of those countries have especially high rates of trust in government.)

First, lack of trust stems in part from lack of effective government. Timely and sufficient stimulus would (or would have) demonstrably improved the economy and so boosted trust that government can act effectively.

A worrisome microsamplling

My takeaway from several articles published in the wake of Obama's statement of support for gay marriage was that the 'evolution' would not significantly hurt his support in the African American community. Perhaps not. But trolling for voter registrations and supporter signups in a couple of parks in Allentown, PA yesterday, my little group encountered three African Americans who said they would not vote for Obama because of his stand on gay marriage. Can't say how many people, or black people, we spoke to overall.  But those reactions did jolt a bit.

Three possible surprise rulings on the Affordable Care Act

Supporters of the Affordable Care Act would regard a Supreme Court ruling that the individual mandate is unconstitutional as a chaos-inducing disaster; a strike-down of the entire law as a catastrophe; and an unconditional upholding as an unlikely consummation devoutly to be wished.  There are, however, more ambiguous possibilities -- each unlikely in itself, but taken together, representing a reasonable chance of not-entirely-awful surprise.  Here are three.

1. Kick the can.  The first question the justices considered in oral argument is whether the constitutionality of the mandate can be challenged before anyone is subject to the mandate, which won't happen until the exchanges open in 2014. The case that they cannot rests on the Anti-Injunction Act, which bars challenges to a tax until the tax has been assessed. Both the government and the plaintiffs argued that the Anti-Injunction Act does not apply in this case; the Court appointed an outside attorney (Richard Long) to argue that it does. The arguments were arcane -- a plain-English summary is available on Scotusblog --  and most observers did not think that the justices seemed to seriously entertain the notion that the AIA applies in this case.

But a punt remains a legally viable option if five justices can't coalesce in a coherent decision to strike all or part of the law. What if, say, two justices want to strike the whole thing, and three want to strike the mandate alone, or in some way reshape it (see below), and they can't agree on instructions to give Congress if they leave a law on the books while destroying or reshaping a part that affects the whole? Mightn't they decide to defer decision until the mandate (and the exchanges) are actually operating?

Obama contrasts two economic visions -- and fact- vs. fiction-based campaigning

The euphoria will last only until the next batch of crummy economic data -- or until the Supreme Court hands down its decision on the Affordable Care Act.  But having indulged in a mid-afternoon watch of Obama's  major economics speech in Cleveland, I can't help but feel for a moment that he just can't lose. 

The speech's basic structure was admirably simple: a contrast of two diametrically opposed economic prescriptions (I won't say "visions," because I don't believe that Romney believes in the policies he's selling).  That contrast included what I craved: the same kind of detailed dissection of Romney's economic plan that Obama leveled at the Ryan budget in April -- which feels like an age ago. Of course the contrast was wrapped in layers of context  : the Bush-era policies (which Romney wants to reprise) that led to crisis; the unfinished recovery he's led; and, as Obama has sketched out repeatedly since 2007, a contrast between the American tradition as he sees it -- of prudent public investment and shared prosperity -- and the GOP policies that have taken us off that path -- radical tax cuts and deregulation. 

Also key, though, was a second, unstated contrast: between truth-telling and lying.  Obama never called Romney a liar, and he never accused him of not believing in the extremist GOP economic prescriptions that in his narrative led the US to disaster [update: I kind of changed my mind on this as I cut and pasted below...].  But he emphasized the factual basis of his own analysis of the GOP budget -- and set that analysis against the phony tissue of Obama-myths with which Romney & co. are saturating the airwaves.  Watch the way he contrasts his own attack with the attack on him. My emphases, natch.

The day American democracy died?

Here's a news snippet, as excerpted in Mike Allen's Playbook, that perhaps lays bare the arc of U.S. history since 1980. And it doesn't bend toward justice:

NINE-FIGURE DONATION TO ROMNEY? "Adelson's Pro-Romney Donations Will Be 'Limitless,' Could Top $100M," by Forbes' Steven Bertoni : "Sheldon Adelson, along with his wife Miriam, ... donated $10 million to the leading Super PAC supporting ... Mitt Romney-and that's just the tip of the iceberg. A well-placed source in the Adelson camp with direct knowledge of the casino billionaire's thinking says that further donations will be 'limitless.' Adelson, who has built Las Vegas Sands into an global casino empire, will do 'whatever it takes' to defeat Obama, this source says. And given that Adelson is worth $24.9 billion-and told Forbes in a recent rare interview about his political giving that he had been willing to donate as much as $100 million to his initial presidential preference, Newt Gingrich-that 'limitless' description telegraphs potential nine-digit support of Romney." http://onforb.es/KpzkDk

The "arc" has been sculpted by Republican-appointed Supreme Court justices who, beholden to an ideology that admits no distinction between money and speech, have literally sold American democracy down the river to the GOP's corporate and megarich individual backers.

Now cracks a noble heart

...that of our brave blind beagle-mutt, Merlin, who died after a couple of quick cries and tremors yesterday afternoon. He was eleven.

He went quietly. He stopped eating on Saturday and basically slept all the time, just drinking a little if you raised the bowl or even a handful of water to his lips, until his heart (I presume) gave out on Monday. My wife came home came home at about 4:30 in the afternoon, and he managed a few tail thumps. At about a quarter to five, he gave a sharp yelp and the throes began. We were with him, petting him as he gave up the ghost on our kitchen floor.

The kernel of truth in blaming Obama

Greg Sargent and Steve Benen share a tic.  Almost daily, both expose the big lies and small lies on which Romney's economic case is founded.  Almost invariably, after highlighting the falsity in the Romney narrative, they warn: it could work.

One underlying assumption, inculcated by the political scientists, is that voters blame the president for the state of the economy because they don't understand how limited the powers of the presidency are, particularly when the out-party is determined to block all action proposed by the president. Hence Benen today:

Romney Rules, cont.: blame Obama for effects of policies I advocate

I want to add a footnote to Jonathan Bernstein's challenge to the media to spotlight the substance of Obama and Romney's opposing stances regarding public sector layoffs, which Romney publicly advocated  on Friday, claiming the US doesn't need more firemen, police or teachers. Bernstein:

The real problem with Obama's June 8 press conference

I am not going to opine on whether Obama's "the private sector is doing fine" gaffe will hurt him in the long run.  Sullivan assumed yes, and when I read his lament I jumped immediately for comfort to Jonathan Bernstein, who, right on cue, assured that ultimately it will matter not a whit. 

I am distressed, though, by a more conscious word choice of Obama's in that June 8 press conference below, though -- on that recalls the political summer from hell, 2011.  Wanna guess what I'm thinking?  I will refrain from putting the (repeated) keyword in italics:

Last September, I sent Congress a detailed jobs plan full of the kind of bipartisan ideas that would have put more Americans back to work.  It had broad support from the American people.    It was fully paid for.  If Congress had passed it in full, we’d be on track to have a million more Americans working this year.  The unemployment rate would be lower.  Our economy would be stronger.

Reminder: manufacturing jobs were not always 'good' jobs

At a Netroots Nation plenary panel this morning, labor leaders Ai-Jen Poo of the National Domestic Workers Alliance and Richard Trumka of the AFL-CIO each made variants of a fundamental point about the current American labor market.

As Trumka put it, manufacturing jobs -- steel jobs, auto industry jobs, etc. -- were not always "good" jobs.  Collective bargaining made them good. In the 1920s and 1930s, the position of factory workers was  analogous to that of service workers today.

Poo added that service jobs and "care" jobs are where the growth is  The demographic shift toward the elderly is as important as shifts in the country's ethnic makeup (and, she might have added, or may have implicitly, growing numbers of relatively young nonwhites are making their living caring for elderly whites.  The status and dignity of those jobs needs to be raised.

Richard Florida does a nice job putting these points in context.  Here's one iteration from a July 2010 op-ed:

The problem is that on average, service workers earn only half of what factory workers make – and only a third of what professional, technical and knowledge workers are paid. The key is to upgrade these jobs and turn them into adequate replacements for the higher-paying blue-collar jobs that have been destroyed.

It has happened before. Yet the blue-collar jobs we pine for were not always good jobs: we made them good jobs. When my father came back from the second world war, his poorly paid factory job had been transformed. He was able to buy a house, put his two sons through college and participate fully in the American dream. Some of this was due to the power of unions. Most of it was because of the enormous improvements in productivity wrought by improved technologies and management techniques.

If service workers are to be well paid, the country has to keep generating wealth by selling goods and services abroad. Seems like we don't have a problem with that; the problem is that our successful companies don't generate as many jobs at home as they used to, and their profits flow mainly to the top.  Can that wealth be shared without killing the golden geese?  That is, can the wealth generated by American companies be better distributed to benefit not only their own workers, but the growing number of service workers we all seem to require?

Crumbling country watch

Browsing a weeks-old National Law Jouirnal, I came across one more sharp snapshot of desperately needed infrastructure upgrades gone a-begging:

Federal court officials in Nashville, Tenn., have waited more than 10 years for their turn to build a new federal courthouse.

Rep. Jim Cooper (D-Tenn.) has had the courthouse on his agenda since he arrived in Congress in 2002, and he's still stressing patience to the city and judges who are stuck in the current 58-year-old building. "We're near the top of the list, so that day will come," he said.

But it may not be coming any day soon. The budget crunch in Washington means that the Nashville project, and a dozen like it across the country, likely will have to wait years longer.

Romney Rules

Weekly, Steve Benen tallies up the latest instances of Mitt's Mendacity.  At longer intervals, the Dish flags Romney's Big Lies, the core myths of his case against an imaginary Obama. I find the laser focus on lying a little narrow: the modes of Mitt's deception are manifold. As a private equity chief, Romney was a master of playing a rigged game, or of himself rigging games in his firm's favor; he has carried that skill to the political arena.  He would have the election played by Romney Rules, compiled below.

1. Context doesn't matter. Anything you say I may use against you, e.g., by making it sound like you said the opposite.

2. My record shall be judged by different standards from that of my opponent. For example, job losses in my first year in office don't count; in his, they shall define his entire record.

3. What I said 18, 10, 4, or 3 years ago doesn't matter. Erase it from your mind.  I've been as consistent as human beings (all three of me) can be.

Wisconsin shuts barn door after horse bolts

...or rather, after wolf enters and marauds.

Not pretending to any in-depth knowledge of Wisconsin politics, but this strikes me as an important, under-reported part of last night's story. Lee Bergquist of the Milwaukee Journal Sentinel reports:

Democrats appeared to have assumed control of the state Senate with results posted early Wednesday showing former Sen. John Lehman (D-Racine) defeating incumbent Van Wanggaard in a tight race.

What's Obama's peer group job creation ranking? Way better than 47th of 50

Romney's job creation record as governor of Massachusetts bears a striking -- if superficial -- resemblance to Obama's as President: a first year of job losses followed by three years of weak growth (actually, for Romney, a rather strong final year following two near-flat years).

Romney has been attacking Obama's job creation record since...forever.  You know the drill: Obama made the recession worse, Obama isn't working, nearly a million jobs lost on his watch.  This week, as the Obama team turns the tables and broadcasts that Massachusetts ranked 47th out of 50 states in job growth during Romney's tenure, the Romney camp finds an excuse: you can't blame him for first-year job losses. Of course, if you give Obama that pass, the country has gained nearly 4 million jobs on his watch.  Or, as Michael Tomasky calculated: excluding each executive's first year, and through April of their fourth year, Obama has presided over 2.35% job growth, Romney over 1.9%.

Hence, two Obama spox pounced this morning on Twitter:

Jim Messina: Romney economics: Under Romney, MA fell to 47th out of 50 on job creation. Under POTUS, we see 27 months of private-sector job growth.

Stephanie Cutter: Romney campaign undercut its entire strategy by arguing that he inherited bad economy so 1st yr shouldn't be counted.

What's needed to concentrate fire, it seems to me, is an apples-to-apples comparison to Romney's 47/50 ranking, or a reasonable facsimile thereof. In reality, any local economy in any given period is sui generis; Rick Perry is not a "better" job creator than Mitt Romney. But with Romney shamelessly manipulating the stats to attack Obama, it's fair to come up with a "peer group" for the US during Obama's term.  And what could be fairer than the OECD, which includes Korea, unemployment rate 3.7% at present, and Japan, clocking in at  4.5%?  So let's have a look.

Hey, maybe the Budget Control Act was a 60-yard punt for Obama after all...

so I wondered when the supercommittee failed and Obama coolly let it:

If you assume that a) Obama wanted a deal that included at least as much in cut spending as the BCA mandates; b) he is willing to live with the large defense cuts if he can't renegotiate them on his own terms; c) he will finally make a firm stand on the Bush tax cuts in 2012, insisting on either a restoration of the Clinton era top marginal rate or tax reform that provides more revenue than just that sunset would yield; and d) once Boehner backed out of the summer deal, a good outcome was impossible without and until Obama's reelection... then maybe he tacked his way to the lowest risk/highest yield strategy available to him.

Now lo, Republicans are loathe to let the ax they rigged let fall, reports Jonathan Weisman:

Best Bill Clinton story ever?

Gail Collins, after a little inside dope illustrating the shallowness of John Edwards' engagement with policy questions, has this about Bill:

I’ve listened to in-depth policy discussions with a lot of presidential hopefuls. I once rode in a car with Bill Clinton, during which he gave a nonstop disquisition on highway funding that I found a little disjointed until I looked over and noticed that he had actually nodded off and was talking in his sleep.

Ditto for Hillary. When the firestorm broke in May 2008 over her reference to Bobby Kennedy's assassination (as evidence that primary fights should really just be getting going in June), I watched the whole 60 minutes of her interview with the Sioux Falls Argus-Leader in which that gaffe occurred (in the final two minutes). She too looked gaunt, exhausted, ready to fall asleep in mid-sentence. But I wish the tape or transcript were still up and you could hear that woman discourse on Native American policy and the varieties of potential ethanol sources and western water distribution arrangements.

Obama is the same way -- now, if not always in 2007-2008. But then, policy fluency isn't eveything...

Capitulation, revisited

My hope is that today, with its terrible jobs report, is the darkest hour of the Obama reelection campaign.  Or, more realistically, that it's not the start of a lethal slide, for the economy and for the president.  But as Democrats cry sabotage on Twitter, and Michael Cohen, who joins that chorus, then laments that the federal government has done nothing substantial to boost jobs in three years, my mind goes back to the most stinging indictment that Democrats, led by Obama, let that sabotage happen.

That indictment came down on July 31, 2011, as the details of the debt ceiling deal emerged.  The original headline as I recall it, online or in print, was Capitulation.  It lives online now as The President Surrenders:

For the deal itself, given the available information, is a disaster, and not just for President Obama and his party. It will damage an already depressed economy; it will probably make America’s long-run deficit problem worse, not better; and most important, by demonstrating that raw extortion works and carries no political cost, it will take America a long way down the road to banana-republic status.