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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, April 30, 2011

Nella Larsen

[spoiler alert]

Nella Larsen (white mother/black father) had a literary career during the 1920s, writing a few short stories (three found in a "complete" collection of her works available, though she had other minor ones) and two short works (perhaps novellas -- together, they amount to the length of a novel) reflecting her own experiences and racial concerns. After a plagarism accusation, marriage problems and a failed attempt to write another novel, she went back to her original career as a nurse.

I never heard of her until happening to pass her book Passing in the classics section. As a kid, never a big fan of fiction, but over the years, did manage to read some classics. Anyway, Larsen's works impressed some over the years, including those naturally interested in works dealing with biracial matters. Passing concerns two childhood friends who meet again as an adult at a "white" establishment. The driving force in the book is a biracial woman who passes, marrying a bigoted white man who isn't aware of her background. The book however is in the voice of her friend, who also sometimes passes, but is married with kids to a black man. Her old friend's reappearance brings out various concerns she has with her marriage and unhappiness in her life that she tries to keep hidden.

The book has a tragic ending mixed with a bit of mystery. It provides a view of 1920s Chicago and New York, including the life of a well off black couple, something the author is familiar with given her marriage to a successful academic. Her first book, which appears to have some autobiographic elements (she was secretive of her own troubled childhood) was Quicksand, and provided some well drawn vignettes of various "lives" the character tries to (without permanent success) obtain satisfaction. A black academy, elite black life in New York City, Denmark and poverty in a small Southern town (married to a minister). This too ended on a tragic note, the character's well being and independence both lost.

Both books have a troubled opinion of the race question, biracial women in particular seen as a threatening force, each race having an uncontrollable urge for the other race in some fashion. Each biracial woman has a special connection to blacks, their relationship with whites at best somewhat unhealthy, but they are not totally comfortable with blacks either. The books are well written and are excellent examples of psychological fiction, in the sense that they provide very good case studies in fictional form. Quicksand is split by chapters though the story is basically divided by her travels. Passing is split into three encounters.

Recommended for a look into another era and as fiction overall.

1000 Days: The Ministry of Christ

Disclosure: I received this book free from the publisher through the BookSneeze. I was not required to write a positive review. The opinions I have expressed are my own.

The title of this book brings to mind JFK or the second wife of Henry VIII, both who made a special mark for a thousand days and were remembered for quite longer than that. This book is about someone who also shined for a brief moment -- the title refers to the days of his public ministry (a matter that honestly is an estimate) -- and explains how he enabled humanity to obtain true peace and happiness.

The book is meant for individual enlightenment and group discussion, each chapter -- lesson plan like -- have questions for individual reflection and/or small group discussion. An extended Bible Study Guide and summary of 100 Main Events in Jesus' Life is also included. There in no index, which is unfortunate. The author is the son of Rev. Jerry Falwell, himself a pastor and media commentator/columnist.

I have not read too many biblical analysis type books of this nature, so cannot honestly say how it compares with others. Nonetheless, I am unsure -- other than the author's celebrity -- the particular draw of this book. The writing is average, neither good or bad really. Some thought it cliche-ridden or such, but there are various standard themes, so not sure what that quite means. Some dispute its arguments. I am not a biblical scholar. I cannot dispute it on that level.

Still, especially for the newcomer, the book didn't really pull you in or offer much in way of novelty or must read material. If it was a required reading or a means to examine the material, fine enough. A nod for its attempts to make a personal connection and suggest the radical nature of belief in Jesus Christ.

Average. 2.5 stars.

So It Goes

Niese makes one major mistake in the seventh and the reliever finishes the job. Niese and the Mets lose (2-1) against Halladay, who teased them again. Blah. Saw part of it, but did not wait for the shoe to drop. Not really a fan of that sort of thing.

"The Court and Constitutional Interpretation"

The Supreme Court website (h/t Volokh Conspiracy) has this tidbit:
The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court's considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.
Living Constitution, huh? The term can be used in various ways, including a fairly vanilla one where the First Amendment can apply to the Internet. Still, the term clearly has a certain implication and the use of quotes only encourages you to think of them as compared to a passing reference without quotes. Later we read:
In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own application "would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves."
Again, you can interpret that innocently, so to speak, but this originalist reading of the words (I like how quoting Marshall is supposed to be revisionist) seems fair. The quote has a Kennedyesque flavor. The "future elaboration" would arise from basic principles, not the specific understandings of a past age. To quote a key Kennedy expression of the idea:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
This is timely since someone accessed a past discussion on this blog of what might be called liberal originalism (with links to Jack Balkin's promotion of the idea) which can be found here. The page's summary is strange all the same, since it again is something that some of the justices are likely to be uncomfortable with given its implications. I would even note that the "complex role" does not only derive from judicial review -- the courts would have such a role even if it did not have such a power or one much more restrained. Also, "individual rights"? Again, Kennedyesque, since unlike others, he would consider that to include federalism.

The overall effect of the discussion is appreciated though and it underlines that even if a Kennedy as the swing justice is pretty conservative, things are not totally bad. This page should be quoted by the appropriate parties -- it has potential.

Friday, April 29, 2011

Friday Quickies

FNL and Rules of Engagement were better this week though I think FNL just might lack a bit of something overall this time around. Pelfrey didn't play like he felt better. Yet another grand slam without hitting one. Talking about conspiracy theories ...

Mets: Now It Gets A Bit Harder

First, they lost a close one of #5 v. crafty veteran, Willie Harris not the person you want to have to hit the tying hit at the end of the game. Now, they have to face the Phillies, if injury plagued. Let's see what you got, big boy. Meanwhile, Tampa now 1.5 back.

Thursday, April 28, 2011

Yoo Got To Be Kidding Me

Yoo [good comments here] and Addington are suddenly wary about executive power. Art. II expressly gives Congress the power to authorize presidents to appoint "inferior" officers by themselves. Meanwhile, powerful account of Lara Logan's attack.

A careful path

In the midst of the Clement/K&S issue, I got in a bit of a dispute with someone who I felt was providing a too simplistic take on the issues. Or, rather, in effect sweating the small stuff. This is a tricky business, since it is with someone both very intelligent (many of his posts are excellent) and mostly on my side overall. But, he makes arguments that I think are wrong. How far do you go here? Note the penultimate comment suggesting I was arguing trivial things. This was not the first time that popped up. At times, I was deemed "the enemy" for my comments.

My general philosophy is to take an issue as a general matter and get a general understanding of where I'm leaning. On various issues, and his reference to Dred Scott is but one, I'm pretty interested and knowledgeable about the details. [I just read not only the opinions but other material on the case just in the last week or so. I wrote a paper on the case a long time ago. etc. Simplistic takes on that case annoy me almost as much as simplistic takes on Roe.] There are loads of details, however, so it's best not to try to do too much. This applies to general arguments. People repeatedly, however, feel a need to speak broadly in ways that I disagree with (or are simply wrong), even though I'm simpatico on their bottom line.

When arguing a side on message boards and so forth, I find this tendency somewhat foolhardy. I understand the power of advocacy and passion, but usually you don't need to go all the way to make your point. Again, my "generalist" philosophy should temper my opposition here, if the basics are right. So, I respect Glenn Greenwald even though I find him overblown a bit too often. If you are right most of the way, a few problems are acceptable. It even makes things a bit interesting. And, if you are a somewhat wrong, as you will be from time to time, it keeps you somewhat humble. Some rather not compromise like that; it is best to let it go up to a point.

And, not try to unnecessarily correct little things. As someone who likes relatively trivial details more than many, this is not always easy for me, sure enough. The eventual reply that I was arguing trivial things to me seems silly. The Dred Scott thing was something the person brought up and simplistic substantive due process based attacks on that opinion is a usual trope for conservatives, including those who attack SDP when used to support gay rights. Disagreeing on his take on the case is not trivial. The top of the thread might suggest he likes to comment and discuss, but being challenged might annoy him after awhile. As with the "my betters" debate (see earlier post), it is best to try to stay even-keeled here. It might be hard, especially if the other person simply doesn't want to take the effort to seriously engage. If you do, as even that person did to an extent, your sparring partner will respect you more. I have seen it -- it is like they are surprised you are not lashing out or are being temperate. Within reason, that has its place.

The other part of the discussion is in effect over the public policy exception to the Full Faith and Credit Clause.* He relied on a literal reading of the clause, which seems to be absolute about giving full faith and credit to other states' actions in the categories provided. This argument is made by others. But, the clause is not and never has been absolutely applied. If something is in violation of public policy (as in general, I speak generally here, the specific nuances not my concern), a state has some discretion ("judgments" like child custody matters are different here) in not giving full faith and credit. This applies to marriage. Thus, that aspect of DOMA was gratuitous.

Now, this doesn't mean DOMA is home-free and I cited this in the past. The clause allows Congress to regulate (though they rarely have) in the area but the "effects" have to regulated by "general laws." Some argue that this blocks discriminatory laws akin to DOMA, though I'm not aware of any courts that have accepted the theory. But, the best way to attack DOMA is on simple equal protection principles. And, maybe a bit of federalism, though the courts are selective there. Again, however, that aspect of his comments were not trivial and as a matter of framing of the argument, problematic.

After all, on a core issue, I agree with "Xando" there, though writ large, I surely don't. Anyway, back to your schedule program; "commenting commentary" over.


* He also combined Full Faith and Credit with Privileges and Immunities of Citizenship [again, why do they change it to "or" in the 14A? does it matter?], related, but not really the same things. "States" practice full faith and credit; "citizens" have privileges and immunities. Again, though some don't, it's best not to struggle among the weeds here. It might amuse you, but the result is getting off on tangents.

Still, states aren't giving up something here, as I noted. They each have a right to use the public policy exemption, so the exception to the rule benefits everyone. I don't think my point there was really answered. But, you know, I see that a lot -- I'm just not important enough to get a response, even when asking someone challenging me to clarify what they are saying. Oh well.

Seriously, sometimes I find people rather debate the same old tired things than answer something that might complicate it. I find this distressing (probably take it too seriously sometimes) and even a bit boring. Complexity is more fun, though sure, you always have some basics. You know, like Mets over Phillies etc.

Ex Met Acts Out

"I would like to say a few words to kids that go to Major League Baseball games," pigtailed Kylynn Quinn said. "Kids should be allowed to be at baseball games without a coach yelling at them or other people."

-- Braves Pitching Coach crosses line
Shouting at fans, especially with gay slurs, is a no no, but when little girls get involved too, well, you might not be around much longer.

Mets Make It Six

It was a bad call in a game vs. the Nats against a not very good team playing good against some worse teams. But apparently it did hype up the ball club. Will they keep it up versus Philly? Will Murphy (DH material?) stop having mental blocks on the field? Time will tell.

Wednesday, April 27, 2011

Just calling balls and strikes

Business, who lost some this term, won one today. The justices, 5-4 (Thomas splitting with Scalia again, if only partially), had different views of federalism, arbitration and the spirit of the federal law in question. Balls/strikes, right? Not quite. Consumers lose.

Half full?

Reading various "such a loser (and about as bad as Bush)" comments, I appreciated this analysis. Others think his birth certificate bit today was ill advised, but it still underlines the stupidity and darn if he sounds presidential here. Right direction, just not far enough.

Tuesday, April 26, 2011

I Spar With My Betters

The somewhat amusing thing about this is that I think Lochner isn't all bad (there is a liberty interest there); he (at times, a tool anyway) seems to be too selective and refusing to actually want to face up to it. I ended up saying magic words and left him feeling superior.

Obama -- Moderate Republican?

See here. Party labels have changed over the years; Republicans used to be the pro-black and often sane party. If ending DOMA and being pro-choice is "moderate Republican," that's somewhat reassuring.

More on Clement (DOMA Case)

Instead of providing another quick comment on the Clement matter, which I deleted, I will expand things a bit. As noted here recently, former Solicitor General Paul Clement accepted the assignment to defend DOMA for the House of Representatives, or more accurately, the Republicans there since the Democrats didn't want to do so.

His firm, who also has defended GITMO detainees, later withdrew from the case citing "vetting" problems as the main reason. Most assume the true reason was public and internal pressure given the nature of the cause. Volokh Conspiracy has various blogs with many comments, the general sentiment on Clement's side, at times comparing the opposition to McCarthyism and Clement to John Adams defending the soldiers after the so-called Boston Massacre. The fact some of these people know and like Clement might be coloring their opinions somewhat.

Either way, there is some false equivalence going on here, even if the firm is not innocent. Defending possibly innocent prisoner, particularly given it is done gratis in many cases in the GITMO situation, is somewhat different than defending the House of Representatives. I can even see a scenario where some law (local or whatever, nothing many firms wish to give up much to defend) is being defended and public pressure makes it hard to obtain the best counsel. I don't see that the case here. If human rights groups or whatnot want to apply some pressure, especially given firms have equality requirements even for recruitment purposes, I think it's pretty legitimate. I also feel fine disrespecting Clement for defending bigotry.

I don't know all the details, but let's take for granted that the firm (as it said itself) handled things badly here. If the case was something they wanted to avoid, it should have done so upfront, though having just taken the case (this is one thing I haven't seen mentioned yet [here we go]), the detrimental reliance (cf. if the House had to get new counsel at the last minute; here, Clement still is counsel and found a nice copacetic right leaning firm to go to) is pretty low. But, especially given a troubling "a gag order" the House included, I can imagine the case has special aspects that the firm did not properly vet out when it should have.

Yes, it could have dealt with such issues, including renegotiating (if the House accepted) the clause that had them saying they "will not engage in lobbying or advocacy for or against any legislation [to] alter or amend in any way the Defense of Marriage Act." Ideological pressure, including by some inside the firm, also clearly was a major matter here. Such is the problems when trying to find firms to defend bigotry as compared to defending alleged terrorists or the right for bigots to speak their mind. [Relatively cheaply too. Again, huh, looks like there very well could have been various "vetting" concerns aside from opposition to the cause.]

I would have accepted if they let him defend the case. Given his background and all, why wouldn't you think he would at time bring in conservative clientele? And, it is for the greater good if DOMA gets a full defense in court, which will help legitimize it losing there. Note that it is getting that defense from Clement all the same. Not sure if it is upsetting that it is not at King & Spalding. So, contra Clement's concern that to "delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law" or not fear of "abandonment" as a result of the cause being "extremely unpopular in certain quarters" [you know, extremist sorts], I can live with this sort of thing.

This doesn't mean K&S is off the hook, and some who I generally agree with are not great fans of their handling of the situation (though I tend to think they are somewhat off base) but Clement isn't either. He too had a responsibility to fully prepare his firm for the difficulties of such a case. The opposition was far from surprising. Orin Kerr at one point at VC suggests the firm wasn't even aware of the special House requirement until after they withdrew. Really?! Shouldn't Clement clue them in about such a potentially complicating fact? Sounds like there was some lack of proper "vetting" all around.

So, mild "bad boy" to K&S, but not getting very worked up about it.

Monday, April 25, 2011

DOMA and GITMO Updates

Per the GITMO "document dump" (see here) and so forth, the view set forth here on the complexity of Obama and company's failure is comparable to my own. What a thing to resign over (even if professional ethics warranted it; need more details on the "vetting").

Saturday, April 23, 2011

Mets Look Like A Real Team

Helps playing bad teams (like themselves?). Gee might have a future. Murphy flubbed a ball, but balanced things out hitting. Overall, Murphy and company has been no worse than Castillo as a whole would be, without the taint of failure. OF doing pretty good, except Pagan.

Friday, April 22, 2011

Still Hasn't Hit Stride

Friday Night Lights seems to be missing something that might have been flagged when Tami turned away from kissing Eric on Julie's bed -- the timing there was good. The counseling stuff/troubled kid bit was also kinda tired. The packed in there great stuff isn't there.

Oh grow up

President Obama has already made up his mind. He thinks Manning “broke the law.” ... This is vile.

Yes, that's why he was arrested and charged ... because no one knows if he did, right? Obama shouldn't have said it, but vile? The comments over there are over the top, to put it nicely.

"flying death robots" in Libya

Good one GG, but seriously, I bet Obama didn't want that Nobel Peace Prize. Still, who would turn that down? More: "But Congress would still have to care." He promised more war (in Afghanistan etc.) in '08, so no one should be surprised at this. Still not Bush. Dubious though.

Mets Look Like A Real Team ... For A Night

But, Pagan gets hurt, reminding us of who they be.

Thursday, April 21, 2011

Dr. Erica

SoapNet aired the true Being Erica season finale (a Christmas episode was aired last in Canada) last night and it was a good completion of the season. The "you were just in a coma" was a final test to see if she holds on to her inner being. Now, CBC has to fund a Season 4!

Wednesday, April 20, 2011

Mets Really Look Pathetic

Murphy looked good overall and Izzy too but not so much the rest. They have more ways of f-ing up than there are Geico commercials.

Supreme Court Watch (HB Stevens!)

More on yesterday's Supreme Court opinion. And, today's -- sovereign immunity upheld, Sotomayor (Obama = Bush watch!) and Breyer dissenting. Kagan recused, Ginsburg joined majority, which is a fairly narrow (but see) statutory matter, if still unappreciated.

Trump: Privacy & Pro-Life?

On the abortion question, [James Stockdale] had a clear answer. "I believe a woman owns her body and what she does with it is her own business. Period."

Mr. Quayle and Mr. Gore debated that issue for more than five minutes.
At the end of the day, who was more serious in that 1992 debate? Been twenty years, don't remember much at all of it, but I recall that. The questioner expecting more of an answer, but it was enough. And, given that Perot -- like your average third party candidate -- was as much or more about the issues than the candidate winning, that meant a lot.

If anything, Donald Trump as a candidate is more ridiculous than making James Stockdale (but really, given some of the options of late, how much so?) a vice president candidate. As he wondered, "why [are they] here?" Still, we can learn something from them being there. Rachel Maddow noted that Trump hooking on to the birther issue underlines that it remains important to the Republican base. Some, like Eric Cantor, might not want to admit to this, but it is so.

A bit more substantively, Trump in an interview wondered why he was asked if he believed in a constitutional right to privacy. The question itself was novel -- you aren't supposed to ask something like that to an interviewer, particularly since it suggests you are uninformed. But, the average person might appreciate it. They might say, "yeah, I don't believe in abortion, but privacy is still a good thing. The difference is that human life is involved." Roe v. Wade:
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus.
Justice White in fact accepted the right to use contraceptives but argued that this was a fundamental dividing line, one that made the right to choose an abortion different. The argument than becomes if it really is so different that the right to privacy totally ends. Most do not think so, particularly in an absolute way. But, most also think there are some differences. The fact that some activists feel a need to deny a right to privacy at all (while in effect accepting it in certain contexts, such as raising their children) doesn't change this fact.

Thus, though some felt Trump was showing his ignorance here, I think this underlines why people are interested in his candidacy. Obviously, it is largely because he is a celebrity and a salesman. But, it also is that many want someone not merely fitting in some standard tired box. Someone who can realize that being pro-life doesn't mean they oppose privacy in many respects.

Body of Proof

I'm not really interested forensic shows, at least the ones on now, trying many of them. The latest is Body of Proof about a medical examiner (Dana Delany, looking good at 55). Watchable but cliched and somewhat tired. Is that the guy from Suite Life?! Seven of Nine?

Talking Religion

I find the inability to listen to and contemplate beliefs not accepted shown by the person cited here (and some of the comments) troubling. Even atheists should be able to step in the other person's shoes and realize the deeper issues religion stand in for. More there.

Tuesday, April 19, 2011

Presiding Justice Scalia

Scalia presided over a case today (Roberts recused) and was the most senior member of the majority (no expansion of state immunity in intra-state conflict; Roberts dissenting). Goodwin Liu again.

Paul Clement Defends Bigotry

He had a duty to defend some questionable stuff while a member of the Bush Administration, but PC is taking a totally voluntary duty to serve the "bipartisan" defense of DOMA. The challengers don't oppose such intervention, but still, it is a defense of bigotry.

Gender Based Abortions

I have addressed the matter before, but provide another comment in response to the concerns raised by sex specific abortions here. Simply put, sometimes private choices can be discriminatory. Blocking them by law isn't the answer. Accord: abortion rights are key too.

Monday, April 18, 2011

And More

I added some comments to my post on the much ado about nothing signing statement (flashback!) b.s. TV-wise, the new Victorious (aka pretty kids go to fun h.s.) was cute/amusing last weekend, a few characters looking slightly different. Cute title. More on FNL.

Sunday Quickies

After Saturday's deluge (umbrellas in wind are useless), Sunday was nice around here. The Mets actually won, Murphy (doing well as a whole) off so not able to mess up on the bases. Army Wives again was okay -- not really into the plots. Week begins: time for more b.s.

Saturday, April 16, 2011

Here's Lilly

I received this book free pursuant to Book Sneeze in return for a review.

This is a pleasant book for young teens, perhaps, regarding the trials and tribulations of six grader Lily.  It is part of the "young women of faith" series, though it is not "faith" heavy or anything.  Many books, including those for children and young adults, have a moral to them and are acceptable for general audiences.  I think this book too has the possibility to be enjoyed by the general public, not just "faith" based readers.  The parents tell her to respect God's place in modeling (she learns some things in the end: "I didn't learn it in church. I learned it in modeling school."), for instance, but someone else could use somewhat different language to get to the same place. 

It is a quick read -- about 140 pages -- and has a good amount of action. She interacts with her friends, family and dealing with a boy.  She learns some things, including the possibility of misunderstanding others.  The importance of family, friendship and being yourself are all promoted.  She gets through various little trials, such as a kitchen mishap.  The business about the husband/father helping out while the mom is busy is also appreciated.  Some might have mixed feelings about modeling in general, but it all works out well in the end. 

The writing is pretty good overall, fairly descriptive and the story introduces you to the action and characters from page one.  Colorful cover photo -- no need to judge a book by its cover, but who doesn't a little bit?  I would recommend this for young readers and give it three stars.

Chris Young On DL

The one pitcher who was consistently good. Oh well.

Obama v. the Spending Power?

[Update: Yesterday, GG put forth a full blog post on this matter, which is getting some blog attention.

As I discuss below, I find it exaggerated or worse. I find the suck-up "you go boy" comments in response to his post annoying as well, going through about ten pages of them and finding like one person refuting him, and even there only as a matter of perspective. His reply that he many many times praised Obama is risible. It's b.s. -- a few praises don't override his general message that Obama is a same old same old hypocrite. It is especially ironic, given the below quote (a Q&A he cited repeatedly in the past), he thinks (unlike I) that there is a credible constitutional argument here. (More here [comments]. Still seems like a stretch.)

Since the objection is not "dubious," the offices aren't being funded and it is unclear how any legislation is being twisted, what the heck is the big problem here? Seriously. Get a clue. The statement, especially in hindsight given the offices in question aren't filled now (hard to find that out reading some of the criticisms -- seems sorta relevant), seems largely symbolic. If, and this law doesn't do it, advising him really is constitutionally blocked, he will resist it. A statement that sends a wink and a nod that mistreatment of prisoners isn't really a problem is one thing. What does this do?]

Glenn Greenwald joins with the usual suspects to flag the "brazen" signing statement that allegedly attempts to strip Congress (line item veto style) of its power of the purse. Let me say upfront that the video GG tweets about is different than the more nuanced official statement of the campaign where signing statements are okay, if done in a less open-ended fashion than Bush. To cite the Q&A cited in the article linked:
The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation.
So, we are left to determine what this means in practice. What is an "implausible" objection? Is a "plausible" one allowable in this context? What does "change the meaning" mean in specific cases? Now, we can always take the approach cited by David Bernstein that it might be better if we take the Reagan/Bush approach of doing all of this secretly. Or, only when it involves funding terrorists or such. I'm more inclined to appreciate them doing it aboveboard and in a less blatant fashion. This does in various cases results in shades of gray. You know, like in the real world.

Anyway, though Jack Tapper flags the Q&A, we don't actually get a link to the signing statement or the actual legislation. This has been an issue in various cases. It is tedious. I have to search online for the legislation or the statement or the court opinion etc. when a simple link would be much easier. Maybe, now that the NYT is requiring payment for online visits over twenty a month (for some reason, I was given a free go of it for apparently this year, maybe given my long term account), it at least will always provide such linkage. It does seem to do so in many cases. It isn't too difficult.  Do I need personally to search a 451 page bill for the relevant section?  The same applies to the Affordable Care Act and the so-called "mandate."  It's tedious to have to actually find the relevant sections, making it easier to stereotype/misconstrue them. 

The statement:
Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President. The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority. The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.
Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.  Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.
The link is mine. The announcement also doesn't have a link to the legislation. Tedious business. Anyway, the section says certain funds (not sure if this means any funds) could not be used to fund a few positions that are colloquially known as "czars." Little things like this are the nitty-gritty of legislation and funding is a major way Congress can restrain executive power. Since the first President only had a handful of staff, it is clearly not an Art. II requirement that he be able to have whomever he wants and have them funded.  Putting aside the list of positions, the text of the section is thus:
SEC. 2262. None of the funds made available by this division may be used to pay the salaries and expenses for the following positions
I'm not sure what the signing statement purports to do.  He can obtain advice and supervise all he wants.  If he wants to actually pay the salaries of the named positions, well, yeah, that would be illicit.  Now, given everything else, I'm not going to be horrified at such a thing.  I can see how the overall principle could be very problematic -- the power of the purse is a major way to restrain executive overreach and even John Yoo admitted to that (easily done, since any actual attempts were open to veto).  But, the statement is vague, which yes, is annoying.

Still, I'm not sure where he said he will pay the people anyway, though if he doesn't use "the funds made available by this division," even that doesn't seem barred by the section involved.  I will readily admit that there is an implication that he is saying that, but without more, what exactly are we supposed to THAT upset about here?  If someone put this on the bottom of a much longer list, maybe, but even there, this seems of the variety where some false equivalency is sought out.  And, the fact that the measure apparently doesn't really do anything reaffirms that his statement could be taken as purely hortatory without any real effect. 

This is all much ado about not much.  It is however an easy target for Obama critics.  It's tiresome and somewhat lazy.  Like, Daniel Murphy made a stupid running mistake in a recent game, one that wound up not meaning anything since the next guy didn't get a hit.  The game had lots of stupid plays.  Murphy as a whole has been decent -- he has hit some, including in key situations and made some good plays in the field.  But, the one play is cited in a way that colors his overall play.  It is unfair and misleading.  The fact I read too much online stuff only makes it worse.

Obama has overreached in various cases.  This is at best a white lie type of thing, if that.

[Reading some of the back/forth between the GG tweets, there seems to be some understanding that Obama should be able to fill specific positions, but I'm not sure if this means they think Congress must fund specific "positions" such as some sub-cabinet position or even a whole department. That really makes no sense. Congress can defund positions. What is the constitutional controversy there?!]

Friday, April 15, 2011


H/t Glenn Greenwald: more doubts on Libya. Being Erica -- cute Xmas episode; cliffhanger sounding episode left. Though I thought Sweeney was taking a break, this is funny. Obama does have his moments. [FNL started on a pretty boring note.]

Another Mets Lead Blown

The Mets are really getting to be embarrassing. The "half full" take is that without various miscues, they could have a winning record. The fans expect mediocrity this season. But, if they can't manage some little things, that is too much. A good message for all.

Thursday, April 14, 2011

National Day of Prayer: No Standing to Challenge

I supported but realized the ruling against a National Day of Prayer had little chance of staying power. Not surprising, though as I say here, the result favors a clear if minor establishment of religion.

Principle Is Appreciated

The NYT has a profile of newbie Rep. Amash (R-MI), who has thus far gone out of the way to remain principled (up to a point, I'm sure), even if it means going against his own party. I will vote for people who promote policy I believe in, but principle is appreciated.

Wednesday, April 13, 2011


Bit the Mets again, this time via a three run homer when walking him (that's a good idea when he keeps on hitting) would have been a good idea. They walked him later. That's nice. The Mets are not meeting the fans already low expectations. Murphy is doing well though.

Tuesday, April 12, 2011

Budget Insanity Again

The D.C. home rule thing is pissing a lot of people off but it's not the only Hobson's Choice. Another is a bunch of social spending cuts that on balance is meaningless realistically on a fiscal level except to please anti-some types of government conservatives.

It's Wrong, But Not As Shocking As All That

"Both sides came to table agreeing not to fund abortion, and it wasn’t even considered." To the mind of some (also Maddow's "asterisk" last night), maybe this doesn't mean D.C., though for years (though it seems to surprise some), it has. I understand the importance of local rule and find singling out abortion wrong anyways. Still, unsurprising.

Monday, April 11, 2011

Drinking Game Time: Count the Miscues

When a reliever comes in from the minors, walks the first guy he faces, flubs a double play ball and then gives up two runs ... and it is just one reason why the team lost, well, you know. Issy looked good. Beato too. And, Murphy three. Still, not good. More Tums, Mr. Collins?

Legal Quickies

Following up on their book, interesting, an essay argues Roe v. Wade was not by itself so important (trouble). I think the "Roe was a political disaster" thing has been overplayed. Obama gets a limited win on the 'no papers' lawsuit. Powerful concurrence.

iCarly: OMG

The debate among fans on who should hook up with who on the show moved in the Freddy/Sam direction, something hinted by the promo, and cemented by a end of the episode kiss. Jump the shark moment? Maybe. A few hints but her "love" for Fred was something of a leap.

Sunday, April 10, 2011

Chris Young Shines Again

The bullpen and clutch hitting? Not so much. The other newbie did decent on Saturday, K-Rod getting a foul ball in his first career plate appearance, but bit of a buzz-kill today. Keep the Tums handy, Terry.

Saturday, April 09, 2011

Adults in D.C.

No shutdown. This is the path of adults. We are told by some it was a "bad deal," but any deal with the current group will be "bad." We are told the "spin" is bad. Fine. Government and some sanity won though and advantage Dems there. More by me here (comments).

Friday, April 08, 2011

Same Old ****

Other than ending around the time they usually begin, the Mets nailbiter loss (well until the 8th; after 1-2 vs. the Phils) against the Nats was totally predictable. Rays are not having a good week. [Update: But, at least one good inning.]

A Shot of Faith

I received this book free from Book Sneeze pursuant to publishing a review.

The author has a PH.D in philosophy but also has an engineering background, so the purpose of this book is to argue that believing in God is rational from the point of view of a scientific mind. It tends to be problematic to try to defend faith in God this way, the arguments for God based on reason (e.g., there has to be a first cause -- as if it has to be a benevolent God) tend to fall apart upon scrutiny. But, the book wishes to provide a "simple yet solid case for Christian belief" and do so in a down to earth, even cheerful way.

The book starts by raising one segment of atheists -- aggressive atheists of the Sam Harris school. This is something of an easy target, since many who reject the existence of God are far from this type of person. Still, the book says this "new strain" of atheists are of particular importance and the book is in place to deal with such "militant" types. Or, "ardent" atheists. Why not simply make your case? We are told this upfront in one of the early bullet points, which provide both a summary and a quick reference guide for the battle. I find this a dubious and unnecessarily combative beginning.

The book starts off with talk of "evidentialism" or the view that beliefs to be rational should have evidence to prove them true. But, this can't be true, the author argues, since all beliefs have to have some foundation. Which have no supporting evidence. I don't accept the premise. No gotcha. Sorry. The foundation of any "belief" can have rational basis. God, e.g., was thought, is though, to be reasonable given it seems to be the only "reasonable" way to describe certain facts or visions or whatnot. There are other ways to describe them, but I put that aside. Finally, even not all beliefs could be defended rationally, this need not lead to "all" beliefs would be irrational. Again, no go.

Next, "faith" is listed as something "by way of testimony." Well, not really. Sometimes. Sometimes, we have faith in a friend because others back it up. Sometimes, it is merely faith based on what you yourself believe. Anyway, the faith has to be within reason. Faith in God for atheists is not, since it carries too much baggage. We are just barely into the argument and it is on its last legs. But, the author, impressed with his self-assumptions, by now argues the burden is on the other side. Again, no go. If we assume God exists, just as many other assumptions that later (at times fairly recently, such as certain sex roles no longer assumed by the majority as being true), it does make it easier. Sorry though, I don't see the book getting to "God as a default position."

The book is written in a down to earth fashion and has useful bullet point summaries but I fear it won't provide much "ammo" for those who reject its basic premises. Scientists believe in God. Believers aren't just uneducated types. That's a strawman though.   Two stars.

TV Quickies

Being Erica was more average this week; only two more episodes left of this run. There is a Drop Dead Diva sighting though with a mini-marathon upcoming. Mets lost yesterday as expected, just more badly. What is with the 0-6 AL East bottom feeders?!

We are talking "executive" here, right?

The OLC, calling Marty Lederman!, put forth a broad definition of presidential "don't call it war" power that underlines how far we have gone here. Did General George Washington have such a roving power?

Thursday, April 07, 2011

Baby Steps

This post (and the one referenced) underlines the importance of open government, but the first post did have a "glass half full" flavor in that some significant improvement seemed to have occurred. Better slow struggle out of the hole than the wish of some to give newbies shovels so they can dig it deeper. But, only somewhat so.

Pelfrey Doesn't Have It Again

Pelfrey had an even worst outing, helped when the reliever came in and couldn't get the pitcher out. Down 7-0, I switched to The Civil War on PBS, but they clawed back. But, helped by a checked swing double, the Phils came back and won. The Mets didn't do much after tying mid-game, except give up runs. It's something, but the end result doesn't make me too happy. Moral victories go only so far for me.

Wednesday, April 06, 2011

Emergency Contraception Ruling

When this matter was up in the past, I was hesitant, particularly since I live where there are loads of places to fill prescriptions. So, "as applied," the ruling might be right, especially pursuant to local law. As I say in the comments, maybe not in other cases.


I see someone looked at my early Palin comments. Often a bit amusing to look back. Started reading this 19th Century prose Shakespeare for younger readers (free via Kindle) and it is a pretty good way to get a quick taste. Mets start off well. Stewie foiled?

"The press" and such

Some think "the press" as an institution should get special privileges but this pretty convincing article suggests historically the 1A concerns a means of expression, not an institution. Debbie Wasserman Schultz seems like a good fighter to have leading the DNC.

Tuesday, April 05, 2011

The SC Steps Into the Briar Patch

An upcoming Supreme Court case will (after apparently avoiding it) deal with "ministerial exceptions" to civil rights laws, which seems ultimately to be a matter of where to draw the line. The other publications of Prof. Corbin are interesting too.

Monday, April 04, 2011

Supreme Court Watch

Detainees: The Supreme Court continues to not take another detainee case (not that I might like the result if they did), leaving things in the hands of D.C. Circuit appellate judges who don't like the few limits the Court put in place already.

Per the recent "selective focus" immunity ruling, Justice Thomas handed down another death penalty ruling restricting safeguards. Not quite as compelling, though still 5-4 (Breyer only dissented in part; Alito concurred but agreed with the dissent somewhat) as a whole. Sotomayor again takes the liberal lead, this time the three women justices held together v. the guys. [Update: Actually, Sotomayor was only joined in part by Ginsburg/Kagan, she apparently taking the "go it alone" strong liberal view (or what that amounts to these days) ala Stevens to heart. More analysis here.]

Meanwhile, pressured in part by Congress, the Administration now says KSM won't get a civilian trial. Obama is surely not free from blame here, but it is hard to (sorry GG) just put it on him. For instance, if Congress refuses to fund transfers, what is he supposed to do? Veto such a bar? It is unclear if Congress won't override and if it does not, they still need to actively fund it. And, meanwhile, the people continue to be held in limbo.

Religion: Justice Kagan wrote her first dissent to a ruling it was held that: "Because respondents challenge a tax credit as opposed to a governmental expenditure, they lack Article III standing under Flast v. Cohen." As Kagan wrote in a 5-4 dissent that Stevens easily could have wrote (though the "now really" comment doesn't quite work for him), "cash grants and targeted tax breaks are means of accomplishing the same government objective—to provide financial support to select individuals or organizations." She used various comparisons such as:
Our taxpayer standing cases have declined to distinguish between appropriations and tax expenditures for a simple reason: Here, as in many contexts, the distinction is one in search of a difference. To begin to see why, consider an example far afield from Flast and, indeed, from religion. Imagine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, that many millions of taxpayers oppose this bailout on the ground (whether right or wrong is immaterial) that it uses their hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members of Congress make the following proposal: Rather than give the money to banks via appropriations, the Government will allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U. S. Treasury. Would this proposal calm the furor?
Slate covered the orals here. As the NYT recap today noted, upholding this particular law might not mean much. In fact, the merits of the law wasn't even addressed, and arguably there is a way for some other group other than taxpayers to challenge the law or some other tax credit scheme in another context. For instance, if certain schools benefit over others, an equal protection claim or maybe even an establishment claim (now more specific to money not received) is possible. And, in such a case, Kagan can again argue that "historians and legal scholars have uniformly understood the opt-out provision as a considered attempt to accommodate taxpayers who did not want their tax dollars to go to religion." And, furthermore, if less uniformly, that something like that would have violated Madison's philosophy. The dispute underlining the limitations of appeals to originalism. That is, for those who put a lot of stock in such things.

The problem is that taxpayers are a primary way that such schemes are challenged in court as noted by Kagan (pointing out how many past Supreme Court cases came via that route). Also, the general message put forth was to be strict about standing. Except, perhaps, if some affirmative action law has to be struck down or something. I snark. But, such "judicial minimalism" -- or keeping certain people out of the courts -- does seem to be selectively applied. In reality, there are limited judicial resources, including judicial capital, and conservatives tend to realize this as much as the next person. And, narrow taxpayer standing isn't the only avoidance tactic as shown in public display cases and others.

And, since tax dollars for religion was a key problem the religion clauses specifically are concerned about (see Flast), this is the point of laxer standing rules in this context as compared to any potentially prohibited use of government funds. Most constitutional provisions don't have that special character, except perhaps something like the requirement in Art. I, sec. 9 to disclose expenditures. The best one might say is that if they actually went to the merits, the Court likely would have upheld the program, which would be worse. And, even narrow Flast standing is better than none ala Scalia/Thomas.

Anyway, avoidance -- habeas and taxpayer and so forth is the name of the game today.

Citizenship Duties

GG has a bit about "citizenship duties," including independent thought. I suggest here that voting is part of it too. These aren't enforceable, of course, but with power and liberty should come some responsibility. And, not just avoiding jury duty.

Sunday, April 03, 2011

Mets Win First Series

K-Rod blew his first save but the Mets won anyway and then the team Zen Master (and knuckleballer) followed up with a good job, helped by some more offense (and Marlins misplays). BTW, actually the Mets haven't hit a grand slam since 2009, giving up 17 since.

Saturday, April 02, 2011


The Astros blowing a game to the Phillies that they HAD was a suitable prologue to the Mets first game. Pelfrey didn't have it, a long first at bat setting the tone, ending early with a grand slam. Mets are 0-13 on that front. Mets showed some life late but the tack on runs by the pen (Beato good) didn't help. Eamus and Harris looked good.

Friday, April 01, 2011

I Get Off The Bus

I think Citizens United was rightly decided (if overbroad) and find much criticism misguided. But listening to the orals, the new finance case is lame. The public financing scheme is not invalid.