They Grow Up So Fast

The Supreme Court heard oral arguments yesterday in a case that was bizarre if only for the fact that it had to reach the Supreme Court at all. The case is apropos due to the recently-reported trend of what the media are calling “sexting”: the phenomenon of teenagers sending nude or semi-nude photographs of themselves to each other. It is another front in the War on Sexuality that parents and politicians have been fighting for years. The crux of the argument is this: teenagers should not be having sex, despite the fact that they’re probably in the sexual prime of their lives. It’s like trying to hold back the Colorado River with a wooden, beaver-made dam. It’s not that teenagers didn’t have sex in the past; certainly they did, but it just wasn’t discussed. Sexuality, for everyone — adults included — was something to be ashamed of. We’re just more open about it now. And that’s not a bad thing.

Earth to parents, teachers, and politicians: teenagers will have sex. They are having sex, probably right now. They are programmed to have sex. You can’t stop them. The most you can do is give them the information they need to make good decisions. If you deny them that information, you’re not preventing them from having sex; you’re just denying them information and ensuring that they will probably make bad decisions, instead.

Moving on.

Yesterday’s case involved 13-year-old Savana Redding, who was strip-searched because the principal heard a rumor (”an uncorroborated tip from the culpable eighth-grader,” says the Ninth Circuit Court of Appeals) that she might have brought prescription-strength ibuprofen to school. The school has a zero-tolerance policy for any drugs, whether outright illegal, prescription, or over-the-counter.

Let’s put aside for right now the tired arguments about how zero-tolerance policies don’t work, create criminals out of otherwise law-abiding citizens, and provide no room for human beings to make mistakes of varying degrees.

Let’s also put aside the fact that ibuprofen is not a narcotic and is not to be found on any of the five schedules of the Controlled Substances Act. The only reasons a kid would try to abuse ibuprofen are: (1) she’s really in a lot of pain; or, (2) she’s an idiot. Not only will ibuprofen not alter your mind in any way, taking too much of it will give you tremendous pain and cause stomach bleeding. I’d love to think that Safford Middle School was only looking out for the best interests of its students in preventing an overdose on prescription-strength ibuprofen, but sadly, I don’t really think that’s the case. I think what’s far more likely is an overzealous administrator cracking down on anything and everything that appears to be “drugs.”

In case the summary of this case isn’t disturbing enough and you’d rather have the play-by-play, just read the “Background” section of the Ninth Circuit Court’s opinion. For one, Savana didn’t refuse the search because she said that she felt as though she would be in more trouble if she didn’t comply. If this isn’t the very reason for the Fourth Amendment’s prohibition against “unreasonable search and seizure” — namely, the threat of punishment for people who don’t agree to warrantless searches — then I don’t know what is.

If Savana were an adult an not in school, her constitutional rights would clearly have been violated, the authorities would be in a world of legal hurt, and we wouldn’t be having this discussion. Not to mention that the uncorroborated testimony of a suspect would not have been sufficient evidence for a search even in the Real World. (By the way, the girl who was caught with the ibuprofen, the girl who fingered Savana as the supplier, was not punished.)

But since Savana is in school, and the doctrine of in loco parentis is in play, she suddenly has greatly reduced constitutional rights. Civil Liberties Lite, specially designed for children. Naturally, the principal could have obtained permission from the girl’s parents to perform such a search. For some unfathomable reason, he didn’t, apparently unaware, in his quest to save children from themselves, of the kinds of torts he could be exposing (no pun intended) the school district to. One man’s “reasonable search” is another man’s “assault and battery.”

For a great analysis, check out Slate’s evaluation of the oral arguments, which includes this wonderful sentence about the cognitive dissonance between “school districts all around the country finding naked photos of teens and immediately calling in the police for possession of kiddie porn. Yet schools see nothing wrong with stripping these same kids naked to search for drugs. Evidently teenage nakedness is only a problem when the children choose to be naked.” (Please read this transcript of the oral arguments.)

Then again, should we be surprised the depths to which our police powers are going? And isn’t it surprising that we shouldn’t be surprised? Though I hate to harp on the damage that the George W. Bush administration has done to this country, it’s harping that must be done because the damage is real, significant, and pervasive. The average American’s expectation of privacy has gone down in this Post-9/11 World. Intrusive, unlawful searches are now expected and have become normalized as we are told that these are necessary trades for a gain in security. It would be one thing if there were empirical data indicating that, say, a 10% decrease in liberty causes a 10% or greater increase in security. At least then we could have a debate (even though it still wouldn’t be ethical to trade in that liberty). But as it is now, we have no data indicating that an increase in surveillance cameras yields a decrease in crime, or that warrantless wiretapping is more effective than lawful wiretapping, or that unreasonable strip searches of 13-year-olds yield drug possession convictions. (Well, actually, we have some anecdotal evidence for the last one: Savana had no drugs on her person. One wonders if the principal contemplated a body-cavity search.)

Sorry for the rant. Back to my original thesis: teenagers occupy a nebulous zone between children and adults. Biologically, they are “adults,” even though mentally they are not quite adults, or at the very least, lack the experience of adults. Yet, what qualifies one as an “adult”? There are plenty of adults — cf. global financial crisis — who act like children, and yet we afford them the right of adults, not of children. It was quite brave for the court to admit, in Tinker v. Des Moines, that humans who are defined as children are as capable of profound thought and understanding as humans who are defined as adults, and in so recognizing, that the speech of those so-called children ought to be just as protected as the speech of so-called adults. Unfortunately, the court has continued to shoot itself in the foot over the years, eroding the rights of schoolchildren because, hey, they’re just kids! What do they know?!

We routinely ask teenagers to take on adult responsibilities — President Obama has emphasized volunteering, for example — and yet we fail to consider that they have adult minds, adult thought processes, and adult opinions. Show me a teenager who has made a bad decision and I’ll show you an adult who has made an equally bad decision — or possibly a worse one, since adults are afforded more rights and thus the capability to screw up more in degree than a teenager can. (A teenager sure can’t get a mortgage that he knows he can’t pay for!)

Nevertheless, the brains of humans in the midst of puberty are chemically different from the brains of children or full adults, and it is for this reason that teenagers do a lot of stupid things. But sometimes, teenagers do great things that are on par with the great things that adults do. There’s no reason to assume the worst when it comes to teenagers, as the assistant principal at Safford Middle School did.

I’ve Seen This Movie Before

I had the most amazing dream last night. Thankfully, Jimmy Kimmel in a diaper wasn’t in this one. Instead, I saw Barack Obama giving a speech about government openness and accountability. He talked about the closure of the U.S. terrorist prison in Guantanamo Bay; he talked about ending extraordinary rendition of U.S. terrorism suspects to other countries where they would be tortured; he talked about ending the use of extra-legal means to spy on Americans under color of law, and he talked about an absolute ban on the use of torture.

Recent events have confirmed that this is only a dream. The candidate of alleged change has instead agreed with George W. Bush on almost every torture and secrecy issue. He ordered the closure of Guantanamo Bay. But, in a brilliant feat of misdirection, none of us ever saw that his Justice Department was working tirelessly to ensure that the same civil liberties that were held to apply to Guantanamo detainees would never apply to detainees held at, for example, Bagram Air Base in Afghanistan.

A Lawless Prison By Any Other Name

Sure, Boumediene v. Bush clearly established that, at a minimum, prisoners in the United States’ Guantanamo Bay facility are entitled to habeas corpus, the 793-year-old doctrine that if a person is to be held in jail, he must be charged with a crime. The Bush administration thought that it had sent 600-some detainees of the War on Terr’ into a “legal black hole” (the Justice Department’s words) where US law did not apply, and therefore, people could be kept there indefinitely without being charged with a crime, without the right to challenge their detention, and without the government having to prove that they were terrorists.

Then the Bush administration relented, wrote the Military Commissions Act, and decided that was good enough. The Act explicitly stripped detainees of their habeas rights and said that the government would create military commissions to evaluate whether or not each detainee should continue to be held. The Supreme Court didn’t like that, either, saying that the MCA process was fundamentally flawed, and furthermore, it was not within Congress’ power to take habeas rights away from anyone.

As soon as he came into office, Obama put a halt to the Military Commissions Act tribunals, recognizing that they were fundamentally flawed. He also said he would close the prison in Guantanamo Bay. While those are both laudable, his next action is, once again, right out of How to Suspend the Constitution Without Really Trying, David Addington’s best-selling Richard P. Cheney thriller. Detainees of the War on Terr’ would instead be moved to Bagram Air Base in Afghanistan. The argument is that, since Afghanistan is still an active war zone, it would be ludicrous to give prisoners there any habeas rights, since they would be prisoners of war. Then again, that was the rationale used to scoop up hundreds of people on the “battlefield” in Afghanistan in 2001 and send them to Cuba.

Wiretapping? What Wiretapping?

A few weeks ago, the Obama Justice Department moved to dismiss a case in federal court involving illegal wiretapping. In spite of his January memoranda committing the Executive Branch to transparency and accountability, Obama’s reasoning vis-a-vis wiretapping remains unchanged from the Bush years; that is, opacity in the extreme, no accountability (i.e., you can knowingly and maliciously break the law, but you won’t be prosecuted for it), and a firm commitment to using the state secrets privilege to cover up illegal government activity.

Earlier this month, the Obama administration filed a petition to have the entire warrantless wiretapping case dismissed under a never-before-seen doctrine of “sovereign immunity” that comes from the USA PATRIOT Act. It’s not the sovereign immunity itself that is at issue (sovereign immunity is a very old legal doctrine which holds that the sovereign — in this case, the government — is immune from criminal prosecution in some instances). It’s that sovereign immunity has never before been used a a defense in these wiretapping cases. To the Obama administration’s credit, it has interpreted into being a sovereign immunity claim based on the fact that Congress had not explicitly waived sovereign immunity when it came to these cases. Therefore, argues the Justice Department, the courts must err on the side of the sovereign. This is, of course, in addition to the standard-issue “state secrets” defense, which consists of, “In order for you to have a case, you need to prove you’ve been harmed. In order for you to prove you’ve been harmed, you need access to classified information. Because giving you that information would compromise national security, we’re not going to give it to you. Since you don’t have that evidence to prove your case, you have no case. So let’s dismiss the case.”

Let’s Talk Torture

Yesterday, after years of legal battles led by the American Civil Liberties Union, the Obama administration released four memoranda from the Bush years in which the Office of Legal Counsel — the legal-advice arm of the White House — declared that, yes, “enhanced interrogation techniques” like water-boarding were perfectly legal. In making these documents public, however, Obama added the caveat that CIA employees who engaged in these techniques, which are correctly and properly called torture, will not be prosecuted.

I am of two minds on this particular issue. On the one hand, we have the Nuremberg Defense, used by various strata of Nazi soldiers in the post-World War II Nuremberg trials. The defense amounted to, “I was just following orders,” the implication being that very low-level soldiers who did the actual dirty work of killing 6 million Jews (and millions of others of various non-Nazi-approved races, nationalities, ethnicities, and sexual orientations) were faced with the choice of either doing what they were told, despite their orders being obviously morally and legally wrong, or standing up to their superiors and facing court marshall or death themselves. The outcome of the trials was Nuremberg Principle IV, which states, “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” This principle was incorporated into the Uniform Code of Military Justice, and now U.S. military personnel may refuse to follow an order that they believe violates the law, with the law including the U.S. Constitution and any treaties to which the U.S. may be a party (including the Geneva Conventions, which explicitly forbid the use of torture).

Then again, these CIA operatives were assured that what they were ordered to do was legal. They were assured by the president — who is their boss — that it was okay to do what they were doing. It’s not an issue of questionable legality; they were told — by lawyers, who are alleged to be experts in the field of law — that it was okay to water-board suspects, deprive them of sleep, and occasionally hit them. Must they then be faulted for their lack of follow-up? Are they expected to then second-guess White House lawyers? The issue is murky. Definitely the people at the top who were responsible for crafting these policies — Bush himself, Vice President Cheney, David Addington, John Yoo, and Alberto Gonzales — must be prosecuted. But what about the people in the field? As Glenn Greenwald observes, the law compels the Justice Department to prosecute everyone who took part in torture. There was a moral choice: CIA operatives could have made the choice not to engage in torture. And if it risked their careers, so be it. They were not themselves ever threatened with death or torture; the loss of one’s job is not morally equivalent to torturing another human being.

It’s certainly true that President Obama has done a number of laudable things in his four months in office. But he can still do better, and all of us need to push him away from the trope of “centrism” (which, in U.S. political discourse in 2009, means “being conservative”). And if he does have a legitimate national security concern, he should let us know. He doesn’t have to go into the gory details, but it would be nice to know why he’s suddenly changed his mind. After eight years of “Trust me, I know what I’m doing,” I voted for a government that doesn’t demand faith from its people.

Tea with a Side of FUD

The inanity of so-called Tea Parties is matched only by the stupidity by which they are backed. Thousands of “working-class” Americans — a euphemism for middle-class people in what used to be called “blue-collar” jobs — will attend such events, protesting President Obama’s budget. This in spite of the fact that the vast, vast majority of those in attendence will receive tax cuts from the budget that they’re protesting. Or perhaps they don’t want repairs made to the infrastructure that hasn’t been overhauled in forty years. Seriously, guys, it’s been that long. And that’s what is costs to have roads, electricity, water, sewage, and so on.

The events are being billed as “grassroots,” meaning they formed spontaneously and were organized by the people who are attending them. The opposite of “grassroots” is “astroturf,” a movement that is designed to appear as though it is spontaneous — to give it greater credibility — but is in fact organized and planned by The Usual Suspects: think tanks, high-level political pundits, and lobbyists. It’s also a credit to how out of touch these same strategic planners are with contemporary culture that they use “tea-bag” as a verb, blissfully unaware of the kind of laughter it engenders among those of us in the know. (Parents, ask your kids.)

Yes, these Tea Parties are just such an event. Republicans have become the party of “no way, no how” in the explicit sense that they both do not want Democrats to have their way, but neither do Republicans have an alternate plan of attack. Two weeks ago, they unveiled their own “budget proposal,” which was full of grandiose talk but very, very short on actual numbers. These faux-organic “tea parties” are only the latest in Republicans’ embrace of what the online community calls FUD, which stands for Fear, Uncertainty, and Doubt. FUD is a marketing technique (what else?!) used to make consumers think nasty things about the competitor’s product. FUD almost never comes with verifiable evidence; rather, it is couched in vague, shadowy terms, coupled with equally veiled threats. Microsoft used it two years ago when it publicly claimed that the open-source (and often free) operating system Linux infringed on hundreds of its patents — but never mentioned a single one of those patents by name. Microsoft’s aim was to make IT executives wet their pants with the implicit threat of litigation against any company who might employ Linux instead of Windows. Of course, it was an empty implicit threat, but that didn’t stop Microsoft from digging to the bottom of their bag of dirty tricks to try.

So, too, is it with Republicans. And amidst the tea-bagging, their only response to a cogent plan that will hopefully bring the economy back and provide much-needed renovation to long-neglected public works is … drumroll, please: tax cuts for the wealthy! And not just the wealthy, but the super wealthy. The kinds of people who actually look like Rich Uncle Pennybags (that’s the official name of the Monopoly guy; look how much you’re learning today!). Senator John Kyl of Arizona would like to destroy the estate tax, which will be on vacation during 2010 (expect a lot of wealthy old people to “die” suddenly!) and then return in 2011 to its pre-2001 enforcement levels; namely, a $1 million exemption and a 55% tax rate for everything above that. Sen. Kyl’s plan is to increase the exemption to $10 million and decrease the non-exempt tax rate to 35%. Kyl has billed this as a way to stimulate the economy, since wealthy people will be able to invest in the economy with the additional money they’ll get to keep. Or something.

In this regard, Kyl is either willfully stupid or believes the rest of us to be willfully stupid. In no way will de-clawing the estate tax “trickle down” to the rest of us. The millions and millions of dollars upon which taxes must be paid at the time of inheritance are not located in Scrooge McDuck’s money bin; they’re locked in real estate, which will remain in the family for generations to come.  That means no sale. And that means no trickling. (And, to debunk the “double taxation” bromide that is frequently put forth to criticize the estate tax, if the real property has been in the family for generations, that means it’s never been sold, and if it’s never been sold, it’s never been taxed. At all. The same goes for financial securities like stocks and bonds.) By some estimates, the government will lose $65 billion in tax revenue over 10 years if Kyl’s dreams were to come true. Balanced against that would be the financial gain of one hundred people. Yes, 100 people throughout the entire country would benefit from Kyl’s proposal. Out of 300 million, 100 people — that’s fewer than the number who audition for American Idol – would personally benefit from this legislation. And they are 100 of the super-richest people in the country. Pity them and their billions of never-taxed dollars, locked away in swaths of property.

That’s just one example. Here’s another: the highest marginal tax rate, which Republicans insist must be lowered, lest “small businesses” and entrepreneurs pack up their suitcases and haul off to Ireland so they can take advantage of the tax breaks there. This in spite of the fact that, under President Reagan (who is Hercules, Jesus, and Steven Seagal combined into a bacon-wrapped taco shell), the highest marginal tax rate was 50%, and that it was 91% under President Eisenhower. From 1993 to 2000, arguably one of the longest periods of unrestrained growth in this country, the highest marginal tax rate was 39.6%, and we ended the fiscal year 2000 with a $128 billion government surplus. Are you still laughing, Laffer?

And so, on go the great masses of “grassroots” conservatism, led by their Fearless Leaders as much as they ever were. The fact remains that the Republicans are now, more than ever, the party of pointless obstructionism, perfectly ready to block any Democratic proposal — no matter how it may help the country — without putting forward a viable counter-proposal, all in the name of politics. By obstructing Democrats’ plans, they can, in 2010, point to a lack of progress on the Democrats’ part and say, “See? They did nothing for you in the time they were in office!” They expect voters’ memories to be so short. But isn’t that the card they’ve always played: the Ignorant of Spades? Their success has lain in their hope beyond hope that “working-class” Americans believe every word of what Bill O’Reilly and Rush Limbaugh say, and praying that those same Americans don’t look out the window and see that those words are the opposite of reality; namely, that the Republicans have been tea-bagging them for years.

Obama’s Use of State Secrets Is More of the Same

Throughout his administration, President Bush invoked a little-known and less-understood doctrine called the State Secrets Privilege. The privilege allows the Executive to suppress evidence in a court case if, in the Executive’s estimation, revealing that evidence in court would compromise national security. The use of the privilege is not unprecedented. Bush, however, didn’t merely use the privilege to get evidence thrown out. He tried to have whole cases dismissed. (Please read this article from Lewis & Clark Law Review for more information about the abuse of the State Secrets Privilege.)

In the arena of warrantless wiretapping, the administration argued that it could not provide documentation to plaintiffs that they were wiretapped, since even providing evidence of wiretapping would compromise national security. And, since the plaintiffs can’t prove they were ever wiretapped, they have no standing to bring a case, so the administration also requested that the case be dismissed. Thankfully, Judge Vaughn Walker of the U.S. District Court for the Northern District of California rejected the Bush administration’s assertions.

But now, the Obama administration is in town, and given his memorandum ordering more transparency in government, he’s going to reject the Bush administration’s assertion that entire cases can be thrown out due to the State Secrets Privilege.

Just kidding! In fact, Obama’s Justice Department has gone even further in asserting opacity when it comes to the State Secrets Privilege. On Friday, the Ninth Circuit Court of Appeals rejected the Obama administration’s arguments — which were a continuance of the Bush administration’s arguments — that the State Secrets Privilege can be used to dismiss entire cases.

Immediately following the ruling, Obama’s Justice Department filed a new brief in which it asserted that it will not comply with the Ninth Circuit Court’s ruling because — drumroll, please — no court has the authority to compel the Executive to release top secret information, for any reason whatsoever. In case you think I’m misinterpreting the brief, here you go:

In addition, the relevant Executive Branch official must determine that plaintiffs’ counsel have a “need to know” the information. In this case, the relevant official, the Director of the National Security Agency (“NSA”), has determined that counsel do not have a need to know. This decision is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power, either under its supervisory authority, or under authority analogous to that granted by the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access. Therefore, the Government respectfully suggests that the Court should not take further steps at this time that would result in plaintiffs’ counsel being granted access to the classified information at issue.

Any determination made by the Executive that information is top secret is final. It is not subject to judicial review. Ever. At all. Period. What the Executive says, goes. There is no other instance — none! — anywhere in this country where any body has ever asserted that its decisions are outside the scope of judicial review, save legislation passed by Congress restricting review. This is solely Congress’ power, and not the president’s, as articulated in Article III, § 2 of the Constitution:

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

There is nowhere to be found anywhere in the Constitution the assertion that the president can make decisions that are outside the scope of judicial review. Indeed, the existence of such a rule would be detrimental to our republic. Imagine: the president asserts the State Secrets Privilege for a malicious, disingenuous, non-secret reason, but because the president’s claims of privilege are non-reviewable by anyone, there is no one to appeal to in order to contest the legitimacy of the president’s assertion. If true, this doctrine would mark the first time in the history the United States that a single branch of government cannot be checked by any other branch. This is extremely dangerous.

What will the Obama apologists say now? I have famously complained that Obama’s policies are “more of the same,” whether they be continuances of Clinton-era policies, or Bush-era policies. Which wedge of the Obama Wheel of Apology does this action fall under? Shall we file unilateral executive authority under pragmatism? Or perhaps it is more akin to the I, Claudius explanation, in which Obama will one day pull his mask off and reveal himself to be a progressive socialist who has been working behind the scenes to undermine the system even as he pretends to uphold it? Can this be explained by team of rivals or bipartisanship? What other buzzword that is used to explain away the lack of significant change is appropriate here? Obama can do no wrong!

Okay, coyness aside. The Obama administration has made a bad decision. This is absolutely the wrong assertion to make. And I find it surprising, especially in light of the memorandum mentioned above, that Obama would claim such broad authority in this matter. Unless, of course, the Justice Department is working independently of Obama’s personal agenda, in which case, it’s time for someone to sit down and have a serious talk with Eric Holder about how the Constitution works.

But I seriously doubt this is the result of a rogue Justice Department. No, Obama has made a bad call, here. He is acting terribly like George W. Bush in his assertion of powers that are not his. It doesn’t matter if Obama is a great guy; no one person — not even a “benevolent dictator” — can be invested with such broad powers. It’s illegal, it’s unconstitutional, and given Obama’s background as a constitutional law scholar, he should know better. It’s shameful and he needs to stop it. This is not the change I voted for. (H/T Glenn Greenwald, of course.)

GOP Response: They’re Going to Have to Try Harder

Here’s the Republican plan, as articulated (badly) by Gov. Piyush “Bobby” Jindal:

• create jobs by lowering income tax rates for working families;
• cutting taxes for small businesses;
• strengthening incentives for businesses to invest in new equipment and hire new workers;
• stabilizing home values by creating a new tax credit for home-buyers

The Republican evaluation of these plans is that they “would cost less and create more jobs.” I assume the less and more adjectives refer to the Democratic plan. Here is what the American Recovery and Reinvestment Act does, viz a viz the above Republican bullet points:

• A refundable tax credit of up to $400 per individual and $800 for couples in 2009 and 2010. It is calculated at a rate of 6.2 percent of earned income and is phased out for individuals with adjusted incomes over $75,000 and couples with incomes over $150,000. How does this not lower tax rates for working families?
• Small businesses with gross receipts of up to $15 million can write off 2008 losses against five previous tax years. Current laws allows a two-year carryback of losses. How does this not cut taxes for small businesses?
• An $8,000 tax credit for first-time home buyers for homes purchased between Jan. 1 and Dec. 1, 2009. The tax credit phases out for individuals earning more than $75,000 and couples earning more than $150,000. How is this not a new tax credit for home-buyers?

So, what’s the difference? Republicans want to cut taxes and decrease spending. We’ve seen that before in recessions, and the results weren’t good. Sure, Gov. Jindal and the Republicans believe that “empowering you” is the best way to stop this recession. But what if you don’t have any money? That was precisely the problem that led to the Great Depression, and as noted in the link above, the government’s reaction — to increase taxes and decrease spending — made the problem worse. When no one wants to buy anything, it’s hard to “empower” the consumer to spend money. This is why, in a time of recession, the government intentionally incurs debt in order to increase aggregate demand. Then — and this is the part that Republicans either willfully or negligently don’t mention — when the economy recovers, the government increases taxes and cuts spending in order to pay itself back!

On the Issue of “Small Businesses”

Republicans are fond of conflating individual income taxes and “small business taxes.” There is no such thing as a “small business tax.” The owner of a small business pays himself as an employee, and he pays the marginal tax rate for the salary he pays himself. Concurrently, the small business (which is a corporation if it is incorporated, which it probably is) pays the marginal tax rate for its amount of taxable income. The top corporate tax rate is 38%, which is for taxable income between $15,000,000 and $18,333,333. According to an IRS report from 2005 (the most recent date that the report was issued), 6,082,975 returns were filed for corporations in 2005 (this is adding the number of forms 1120 and 1120S that were filed for 2005, which are by far the most common types of corporate tax forms filed). Of these six million or so returns, 5,475 were for corporations with net income of greater than $15,000,000. That’s 0.09% of corporations. So, when Republicans talk about corporate taxes “hurting” “small businesses,” that’s a lie. The largest single category of business size (as defined by net income) is the “under $25,000″ range.

According to the Small Business Administration, in 2006 (the most recent date that comprehensive figures were available), there were 17,403,814 “firms” in the United States, of which 10,755,262 (62%) have 20 or fewer employees. I think we can agree that the majority of businesses are small by sheer number of employees; this is a purely qualitative evaluation, however, as there are no technical definitions of “small.” This figure does not include nonemployer firms (see below).

Now, if you qualify as self-employed, you pay a flat rate of 15.3%. This rate takes into account the fact that, as a person who is self-employed, your normal payroll taxes — specifically, Social Security and Medicare — don’t happen like they do for people who get a regular payroll check. Also note that only the first $102,000 of self-employment income is subject to the 12.4% Social Security component of the self-employment tax.

The term “small business,” much like the term “partial-birth abortion” and “death tax,” is a public relations phrase, not a legal one. The U.S. Census Bureau, the Internal Revenue Service, and the Small Business Administration (oddly enough) all use the term “employer firm” or “nonemployer firm.” SBA defines a nonemployer firm as “one that has no paid employees, has annual business receipts of $1,000 or more ($1 or more in the construction industries), and is subject to federal income taxes.” There is a larger quantity of nonemployer firms, but there is a far greater amount of revenue from employer firms.

So, in summation, “small business owners” fall into the “working class” tax brackets that get tax cuts, anyway, so they will necessarily get tax relief. Businesses that don’t make a whole lot of money — and that’s the vast majority of them — do get tax breaks. And, in case farms enter the discussion, these numbers don’t include farms. Farms are taxed and regulated differently from every other business.

Republicans like to play up the notion that “Joe the Plumber” would be hurt by Democratic tax policies. In truth, Joe would get a tax cut, and the “small business” that he works for would probably get a tax cut, as well. I doubt, though, that “facts” will stop them from trying.

What’s a Republican Governor To Do?

You know, it’s hard out there for a governor, when he’s trying to make the money for his state budget, and all the infrastructure and unemployment insurance money’s spent, and all the RNC leadership is talking … too much.

Not a single House Republican voted in favor of the “bipartisan” H.R. 1, the American Recovery and Reinvestment Act, signed into law by President Obama last Monday. Republicans were proud of their united opposition to what they called a bill filled with “pork,” though, technically, “pork-barrel spending” is defined as non-essential spending made for specific, pet projects in a congressman’s home district — say, for a $398 million bridge from one scantily-populated town to an airport. Using that definition, there is no pork in this bill, since it allocates money for only large, federal projects, with no mention of specific projects and nothing targeted at specific districts (in fact, the bill’s flaw may just be its breadth, with line-items for things like “Science” within NASA’s budget).

So, anyway, Republicans are very proud of themselves. But it may be a case of cutting off their noses to spite their faces. On the one hand, they want this stimulus bill to be their first major conflict with the Obama administration, so that they have a clearly defined message in opposition to his; i.e., “wasteful spending.” On the other hand, states are seriously hurting for money. Just this last week, the Great State of California finally closed a $40 billion chasm in its budget for next year. (Although, in spite of that, Governor Schwarzenegger terminated 10,000 state employees and cut the salaries of thousands more in an effort to save some cash. Hasta la vista, employees.)

Republican governors are also in charge in some of the poorest states, like Louisiana, South Carolina, and Mississippi, where this money could be really useful! At what point does adherence to ideology actually start hurting people? You may wish to ask the citizens of Louisiana, where Republican Governor Bobby Jindal may refuse $4 billion in infrastructure funds allocated to it under the stimulus plan, according to CBS News. The New York Times reports that Governor Jindal has already refused expanded unemployment benefits because it would raise business taxes.

Republicans don’t want to appear to be hypocrites, so they’ll do the next-best thing: appear to be obstinate. Of course, all of this posturing isn’t being done because Republicans staunchly adhere to their ideals. What did you think this was, Bizzaro United States? Oh, no; these governors are refusing the money because they plan on running for president in 2012! Refusing stimulus money may cause real damage to millions of people in states where demand for social services and entitlement benefits is on the rise, but that clearly isn’t important to Republican presidential contenders who need to be able to point back to a time when they were 100% in line with the Republican talking points about the stimulus.

Thankfully, Governor Schwarzenegger is not running for president (unless they amend the Constitution. Fingers crossed!). Maybe that’s why he will not only take the stimulus money allocated to California, but why he is urging other Republican governors to do so (although he also said he would gladly take whatever money the other governors don’t want). Unless, of course, the other governors are so unselfish that they’re willing to risk the welfare of their states for a cynical attempt at appearing “fiscally responsible” so that they can make a run for the Republican presidential nomination in 2012 by out-conservativing each other. That’s change we can sink in!

Let this serve as another example of why Republicans lost so much in November: as it turns out, they may not care about people. That may be a generalization (and it is!), but I wonder about the guy in New Orleans who’s been laid off and who can no longer make his mortgage payments. I know it will do his heart good to know that Governor Jindal is fighting to prevent him from getting any help because, in so doing, Governor Jindal would boost his chances of being elected president. What does the word “constituency” mean, anyway? Especially when you have to choose between an electorate that can only drag you down and a Republican elite that could be your meal ticket to the presidential nomination.

I’ll give this much to them, though: they stick to their guns, even if those guns will send them hurtling over a cliff. You’ve got to respect someone who is self-centered enough to play chicken with other people’s lives simply to prove a stupid point.

Or not. Which is good, because I don’t.

What Do You Think a Stimulus Is?

Yesterday, President Obama finally stood up to the Republicans. For the last week, Republicans have been doing what they do best: controlling the message. They have talked about the American Recovery and Reinvestment Act of 2009 only in terms of its negative components: how much individual elements cost, how there aren’t enough tax cuts. They have, as they always do, derided and made fun of specific parts of the bill, like the part that calls for moving the federal vehicle fleet to hybrid cars. In much the same way that Sarah Palin derided certain research projects during the election (research projects that, by the way, benefit the state of Alaska), Republicans have attempted to hold up individual programs and say, “Isn’t this stupid?” Of course, that message is only suucessful if the audience similarly agrees that the program is stupid.

Yesterday, at a Democratic getaway (which cost $100,000, by the way), Obama defended the stimulus plan and even — what’s that — improvised:

When you start asking, “Well what is it that’s such a problem, that you’re seeing? Where’s all the waste in spending? Well, you know, you want to replace the federal fleet with hybrid cars.”

Well, why wouldn’t we want to do that? That creates jobs for people who make those cars. It saves the federal government energy, it saves the taxpayers energy.

Then you get the argument, “Well, this is not a stimulus bill, this is a spending bill.” What do you think a stimulus is?  That’s the whole point. No, seriously. That’s the point.

Republicans have been pushing more of the same: tax cuts, tax cuts, tax cuts. For businesses and for the wealthy. But businesses have shown that they have no tolerance for spending money right now. They’ll take a tax cut and save it rather than use it for new production, or investment, or to hire workers. The wealthy have all the necessities of life they need. Rather than spend a tax cut on a new car or a new house, they’ll save it. The marginal value of a 10% tax cut is greater for a poor person than it is for a wealthy person. The wealthy person doesn’t need another Rolls. The poor person needs to eat.

Part of the Republicans’ problem with the stimulus package is that it involves the government doing things beyond fighting wars. It’s a generalization to say that Republicans hate government, but certainly part of what it means to be conservative is wanting “less government.” Grover Norquist is, of course, the proprietor of wanting to make the government so small he could drown it in a bathtub, which is why the government was so mismanaged for so many years. It’s hard to do a job well when you don’t think that job is worth doing at all. Given the choice between action or inaction, conservatives have preferred inaction (except, of course, when action increases businesses’ profits, as when Congress voted to take up United Airlines’ pension plan). One conservative pundit last week (who may or may not be able to speak for all conservatives and may or many not also be an idiot) claimed that the government has never created jobs, that government can only destroy jobs. It’s like dealing with an economic al-Qaeda: Republicans don’t want to negotiate, they don’t want to be bipartisan. They want to get exactly what they want, in full. They’ve grown accustomed to that after eight years. (Democrats have the exact opposite problem: they’ll capitulate at the drop of a hat. They’ll volunteer to capitulate if no one has asked them. There’s even a picture of Harry Reid in the dictionary next to the word “pusillanimous.” Someone needs to tell the Democrats that Ronald Reagan stopped being the president a long time ago.)

It’s true that, given enough time, the economy could probably fix itself (of course, John Maynard Keynes famously said that, in the long run, we’re all dead). But while we’re waiting for the free market to operate, people are getting laid off and losing their homes. Can we morally permit ourselves to let the economy remain in shambles for an unknown amount of time just to prove a point about capitalism? Of course not; it doesn’t make sense to do something just because it’s liberal or just because it’s conservative. We should do things because they work; Obama said as much in his inaugural address (though, admittedly, he was referring to more government versus less government).

Right now, the free market is broken. Consumers don’t want to spend at any price (and “any price” here means “any price that would be beneficial to the market”; certainly businesses could offer their goods for free, but that doesn’t exactly help us out of a recession). The cycle is supposed to work like this: a recession occurs, consumers stop spending, businesses lower their prices, consumers start spending again, business make more money, they start hiring people, consumers get employed again, business raise their prices, and we’re on our way back to 99-cent gas and Hummers at a 2-for-1 discount.

Our recession is working like this: consumers stop spending, businesses lower their prices, businesses lay more people off in order to save money, consumers stop spending even more as some of them get laid off, business revenue decreases, business lay more people off to save money, and so on. It’s a downward spiral that the market can’t correct. The market needs a fresh infusion of cash that just isn’t going to be coming any time soon.

Monetarism has failed. The discount rate — the interest rate that banks pay for short-term loans to other banks — is between 0% and 0.25%. It can’t go any lower, and banks still are reluctant to lend to other banks. This isn’t an issue strictly of price; it’s also one of psychology. Until businesses are ready to produce again, government must step in and fill the void to prevent the recession from getting any worse than it already is. Republicans criticize the size of the stimulus and bring up the issue of how we’re saddling future generations with this debt (these same people, by the way, were remarkably silent as the debt doubled under George W. Bush, Henry Hyde, Tom DeLay, and Bill Frist). They forget the other component of Keynesian economics: once the economy has recovered, the government must increase taxes and cut spending in order to pay back the money it borrowed. Let’s hope Congress doesn’t forget that part.

Update: Daily Kos has an interesting article analyzing media coverage of the stimulus bill. The Liberal Media, as it turns out, are not liberal at all. “Republican lawmakers outnumbered Democratic lawmakers 75 to 41 on cable news interviews.” In addition to Congressional Democrats themselves, cable news networks must be informed that Democrats won the election. Also, some of the Democrats who appeared on cable news networks were “Blue Dog” Democrats who side with Republicans on economic issues. And pretty much every other issue. Why are they Democrats, again?

A Progressive Health Care Solution

In one of my earlier posts, I said that I hoped President Obama would be progressive. I further tried to offer a definition of progressive, to be contrasted with liberal and conservative. That didn’t go over too well. I’m trying again, this time by using the concrete example of health care. How would a progressive go about health care reform? This is the question that I answer in Demockracy’s first-ever podcast – take a listen:

Progressivism and Health Care

Two Days > Eight Years?

I’m feeling pretty good right now.

Yesterday, on his first full day in office, President Obama issued three memoranda to executive departments reinforcing his commitment to open government and accountability. For one, he directed departments to comply with the Freedom of Information Act and err on the side of disclosing information rather than hiding it. In 2001, former Attorney General John Ashcroft ordered executive departments to comply with FOIA requests only after exhausting all avenues to prevent disclosure of information. He even emphasized that potential embarrassment or liability is not a good reason to withhold information requested under FOIA. That’s tremendous!

Obama’s memoranda also gives the National Archives the authority to declassify whatever presidential records it sees fit, a stark reversal from an administration that had fought tooth and nail to keep everything it did secret. The potential exists for massive declassification of Bush administration records that are being kept secret for no other reason that it might be embarrassing or might disclose political favors.

That’s really terrible, in case you were wondering. The Bush administration’s default position was secrecy over disclosure, which only served to emphasize Bush’s greater message: the U.S. government works for we the representatives first, then for you the people. Obama’s philosophy is exactly the opposite: he has said several times that he and the rest of our representatives are public servants first, and everything they do should be in that vein of serving the public.

It should go without saying that our government is accountable to us, but it’s been a long time since that’s been true. We have been told that we have no right to know what our representatives are doing, and in some cases, we have been told it is unpatriotic to question the things our government does. Thank you, Obama, for bringing us back to normal.

And then this morning, as promised, Obama signed an executive order calling for the closure of the Guantánamo Bay prison within a year. The fate of the 200-some prisoners left there has yet to be decided: prosecutions under the Military Commissions Act have been suspended for 120 days, pending a review of each prisoner’s case. Guantánamo is littered with people who did nothing more than be in the wrong place at the wrong time, including people who were minors when they were arrested in 2001.

But there’s more! Obama signed another order directing the C.I.A. to use only the interrogation techniques specified in the Army Field Manual, a policy that has been in the works for two years, but was ignored by the Bush administration in a signing statement.

Things are looking good for America. After eight long years, it’s refreshing to see accountability, transparency, and the due process of law finally take precedence over narrow political interest.

Federalism and Medical Marijuana: A Match Made in Confusion

Federalism is a funny thing. At its best, federalism provides for states’ individual personalities and needs. At its worst, federalism means “no one really knows who’s in charge.” Federalism led to several “nullification” crises in the 1820s when some Southern states, backed by southerner John C. Calhoun (vice president at the time), believed they had the power to “nullify” acts of Congress. Of course, they didn’t, and the states stewed for forty more years until they had a little fight about it.

But, Federalism is here to stay, mostly because it prevents the concentration of all powers in the hands of the federal government. The phrase “United States of America” should be taken more literally than it is: the Founding Fathers thought that this country would, literally, be a bunch of disparate states united by the federal government. In Article I of the Constitution, they laid out Congress’ specific powers: what it can, and cannot, do. Congress’ powers are limited only to those ennumerated in Article I. In 1791, the amendments within the Bill of Rights were ratified, further limiting the federal government’s power. Of note to us now is the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This is important to remember: if there’s a power someone out there can think of, and that power is not specifically granted to Congress, then the state governments or the people themselves have that power. Take liquor control: there’s no federal law governing alcoholic beverages because regulating liquor is not one of Congress’ specifically-granted powers; therefore, that power defaults to the states.

Sure, great history lesson, but this is all so boring. Does any of this have a point?

Let’s begin in 1970, with the passage of the Controlled Substances Act. This marked the beginning of the War on Drugs. The Controlled Substances Act clearly defined what drugs were always illegal, sometimes illegal, and legal. It divides drugs into five categories, or schedules. Schedule I drugs have a high potential for abuse and no accepted medical value. Schedule II drugs have a high potential for abuse and physical or psychological dependence, but have accepted medical value. And so on down to Schedule V, which are drugs with a low potential for abuse and limited psychological or physical dependence. Marijuana is classified as a Schedule I narcotic, meaning it has a high propensity for abuse and no accepted medical value, as far as the U.S. Congress is concerned.

But the U.S. Congress isn’t always correct. In 1996, California voters passed Proposition 215, which permitted physicians to legally prescribe marijuana as a treatment and further permitted a patient or a patient’s caregiver to grow marijuana plants for the patient’s medical use. Proposition 215 has been the basis for many a federalist showdown over who has authority in the realm of legal drugs. The U.S. Justice Department has refused to recognize the legitimacy of Prop. 215, and as such, continues to raid medical marijuana dispensaries in California because, hey, federal law always trumps state law (this is the “supremacy clause” of the U.S. Constitution).

The U.S. Supreme Court, while not ruling specifically on the issue of California’s statute, has twice upheld the supremacy of Congress when it comes to drug enforcement. In 2005’s Gonzales v. Raich, the Supreme Court used some curious reasoning and the commerce clause to find that Congress can regulate marijuana cultivation, even if the marijuana never crosses state lines (disclosure: I wrote the above-linked article).

As much as proponents of legal marijuana may not like to hear it, the law is very cut and dry: when federal law and state law are in conflict, federal law always wins. In this case, California law says that marijuana has medical value and should be prescribed legally. Federal law completely disagrees. Federal law wins. This is most likely what the U.S. Supreme Court will find if they take up the case of San Diego County.

San Diego County and San Bernadino County, two counties in southern California, have been trying for the past three years to overturn Prop. 215. They argue that they should not be required to do something under state law which is illegal under federal law. California’s Fourth Circuit Court disagreed, upholding the legality of California’s statute. The California Supreme Court declined to hear the case on appeal. Now, San Diego and San Bernadino County are taking their fight to the top and asking the U.S. Supreme Court to rule against California.

Which is probably what they will do. As for the Controlled Substances Act itself, marijuana has been shown to have some medical value, but these studies are routinely overlooked by anti-drug advocates who, for some reason, believe that marijuana is the most dangerous drug ever invented. These people are also in charge of our nation’s drug policy. Not only is marijuana not that dangerous (the risk of overdose is zero, for example), but there are many other drugs that are far more dangerous (in the link above to a Rolling Stone article, the author points out that the government ignored the real danger of methamphetamine for years, preferring instead to fight the make-believe scourge of marijuana). The War on Drugs has escalated even into the free speech zone, causing people to be prosecuted under the Controlled Substances Act merely for advocating the use of marijuana or for selling devices that could be used to smoke marijuana.

California, though, is not alone. Other states and municipalities have attempted to circumvent the federal ban in other ways. The most popular method is to make arrest and prosecution for marijuana possession a city police department’s lowest enforcement priority — below traffic tickets, below jaywalking. San Francisco currently has such a policy. The city of Denver passed a referendum in 2005 permitting marijuana possession, even though state law still forbids it. When state, federal, and municipal laws conflict, there’s an enforcement problem. It gets even worse when the people doing some of the enforcing fundamentally disagree with the law. And what happens when the law forbids something that many people do, regardless? Should all those people go to jail, or should the law be re-examined? In Ontario, Canada, a 2008 study showed that 14% of adults used marijuana in 2005. That’s a lot of people; are they all criminals beyond the definition of “criminal” as “one who breaks the law”?

Even if potential Surgeon General Dr. Sanjay Gupta doesn’t think marijuana should be legalized (and for good reasons, too: Dr. Gupta acknowledges that smoking anything is bad for your lungs, and some users report anxiety or depression), he recognizes that some studies have shown marijuana to be an effective treatment for nausea or even Alzheimer’s disease. Marijuana is not illegal because it is bad (cigarettes and alcohol are far worse for your health); it is illegal because a minority of people (the same people who brought you alcohol prohibition) seventy years ago convinced Congress that it was immoral and evil, and that taboo has endured.

Federal marijuana policy is very childish and must be changed, but the Supreme Court is not the appropriate place for relief. If the Court takes San Diego’s case, it will undoubtedly mean the end of medical marijuana legislation for the states. No, appropriate relief must come from Congress, which must remove marijuana from its list of Schedule I narcotics (which is also populated by heroin, mescaline, peyote, and LSD; even cocaine has accepted medical uses!). Rep. Barney Frank took a tremendous step last year when he introduced legislation to permit the possession of small amounts of marijuana by adults (disclosure: I wrote the above-linked article). In the meantime, the people who actually do rely on medical marijuana to get through their day (which, it turns out, are AIDS patients who find marijuana much more effective than the anti-nausea medication they must take with their AIDS drug cocktails) will be ill-served by their government.

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