Political update for February, 2011

What in the world happened to Glenn Beck?

I barely watch cable news shows any more, pretty much since the ’08 elections, and particularly at night, when the commentators are almost literally throwing red meat to their audiences. Still watch Morning Joe maybe 20 minutes a week and if there is good coverage of havoc somewhere, as there is this week, I’ll watch that. Glenn Beck is someone I have never watched with the exception if I am on the thingee at the gym, and Cash Cab isn’t on another set. I do put on talk radio when I drive and I have to say that personally, I like him personally for the most part.

And I’ve always said about him, he can make a lot of sense (meaning when he agrees with me) – until he says something crazy. I had heard he said wild things, but hadn’t seen it myself because I wasn’t on the thingee all that long and sometimes Cash Cab was actually on too. Then one night, he said something that really made me laugh. While making oodles of money on tv, his own radio show and being a best selling author, he announced – we are no longer a capitalist company.

What? I wish I could have had a line into his show, ring him up and ask him in front of his audience – how much money did you earn tonight? Beck took cable by storm, ringing up huge audiences. And then, for some reason, when the tea party was at it’s hottest in 2010 and you would thing he'd ride that wave, his ratings started going down. Not just a little. A lot. It didn’t make sense. He even managed to have a very successful rally last year on the anniversary of Martin Luther King, Jr.’s Washington D.C. speech.

Now, in 2011, his tv audience is down about 40% from the year before and 50% with the younger demographic. It’s not that the network is doing badly. Fox still beats CNN and MSNBC combined. And Beck, bad as he did comparatively, still beats Chris Matthews, Wolf Blitzer and Headline News together, but his ratings have been progressively going down. But Brett Bair, who seems like a really nice guy with little charisma, is now no. 2 overall on the station, and Hannity no. 2 with the youth rating. Beck is demoted to 5th.

Fox gets its rating from conservatives, not liberals and not that many independents. And, he hasn’t done anything to offend them. So where is his audience going? It can’t be that he doesn’t say whacky things anymore. I heard him defend on the radio the other day Michele Bachman’s statement that the founders worked tirelessly until they ended slavery was true. Really? Even the youthful founder, James Madison, had died almost three decades before the 13th amendment. She specified J. Q. Adams, who was not only not a founder, but the son of a founder, and he was also long gone before the 13th amendment was even proposed. I listened to him say it online again just to be sure and I had it right. It was an unusually angry rant against Chris Matthews (who also says crazy things) and he even claimed that Matthews hates Frederick Douglass because Douglass changed his mind and said the constitution was an anti-slavery document. That’s true, Douglass did do that, but it was, in my opinion – because, as Mr. Beck suggests, I actually do my own homework and read history, that it was purely a political decision by Douglass and even ruined his relationship with William Lloyd Garrison. And, one more thing, Mr. B. He didn’t do it after he had a conversation with Abraham Lincoln. They didn’t even know each other at the time and met over a decade after his 1852 speech.

What happened to Glenn Beck? I don’t know. Still better to be him than Keith Olbermann or David Shuster, of course.

Speaking of Keith Olbermann

I’ve often said out of all the pundits, the meanest, the one I can stomach the least, was Keith Olbermann. Not that I didn’t think he was talented. He is a good looking man with a great voice and can talk a blue streak. Like many of the other television or radio political jocks, he can rambles on about the same thing over and over again and maintain grow his audience (although tiny compared to Fox). He writes much (maybe all - not sure) of his own stuff, and it rings, whether you agree or not.

Back in ’08 when I still watched cable news, I email MSNBC several times. They finally took my request (along with, I’m sure, thousands of other people) and fired him along with Chris Matthews from their campaign anchor positions. I don’t really think someone like Mr. Matthews belongs doing campaign coverage, but Mr. Olbermann made a joke of it to the point it seemed like a Barack Obama campaign commercial.

When he was fired from his job last week I watched some old videos on youtube. In one, while Joe Scarborough commentated from the Republican convention, KO said under his breath – “Someone get a shovel,” and got called out on it. One night he pissed off his co-anchor so bad that Chris Matthews interrupted the conversation with the next guest and yelled at him. This could not have made anyone really happy at MSNBC.

Reportedly, the station wanted to fire him a long time ago. I wish they did. I try not to dislike people, but sometimes it happens anyway and I just have problems with his hubris. The day he was canned I tried to email Bill O’Reilly (not really a fan of his either) as Olbermann had made a regular mockery of him. I couldn’t remember the email address he repeats like a mantra on his show, but I wanted to send him the following idea.

At the end of his show he should face the camera and say: “We learned today that a certain competitor and critic of mine was fired from his job at a network I’d rather not mention. In fact, I’m not going to comment on the whole story at all.”

And, then give the biggest smile he can while the camera just lingered on him.

Wherefrom Egypt and Tunisia?

Egypt is getting the 24/7 news coverage it should, and I never cease to be amazed 10 years after 9/11 how ignorant news personnel are about Islam. Sure, they’ve learned a few buzz words like Shi’a and Sunni, but they don’t know much about them.

Here’s something you can mention at your next cocktail party (incidentally, is there really even such thing as a cocktail party anymore, and if there is, why have I never been invited to one?) – the news media will tell you endlessly that this cycle of protest started in Tunisia last week. And, it may be true. But, it is quite possible that the inspiration for what happened in Tunisia and now Egypt, Yemen, etc., started in North Africa all right, but in an area known as either Western Sahara or Morocco, depending on your view point, back in November of last year.

If you look at a map of Africa, which I confess I do more than would seem healthy, and find Morocco right across the water from Spain, you will find to the southwest of it a country called Western Sahara.

Actually, it’s not quite a country. According to the U.N. it is a non-self-governing territory. It may not look so big on a map of Africa, but that’s because the countries neighboring it are huge. It is actually larger than France, for example, which is the largest country in the European Union. But, it is also mostly sand as you'd guess from the name.

The territory has been disputed between Morocco and the Polisario Front (Communist? Free market advocates? Criminal syndicate? Terrorist links? Freedom fighters? All of the above?) for about 35 years or so when Spain finally gave her up as a colony in the 1975. Some countries recognize her as an independent country and some recognize Morocco as the sovereign. I don’t intend to go through the whole history, but despite the fact that most of it is unusable and that there are only a half million people in the entire area, compared to France again with 62 million or 124 times as many people, they fought a war over it for a while. Morocco continues to govern much of it.

About 3 months ago, there was a dust up. A group of the native Sahrawis set up a protest tent city outside of the major city of Laayoune. It was the largest protest they have ever had there since Spain left. Moroccan troops attacked. The tent city was broken up and there were many injuries and reportedly the deaths of dozens of natives and a dozen officers. The fighting spread to the city and there were fires and stone throwing akin to what we saw in Tunisia and are now seeing in Egypt. France, which backs Morocco in its claim, blocked a U.N. inquiry.

Can I say with certainty that the events in Western Sahara was a cause of what took place in Tunisia and now Egypt. Of course not. But they are in the same area of the world and although we pretty much ignore here what happens in Western Sahara, it is big news in that part of the world (I checked their English language newspapers). While the revolt in Tunisia was going on, the Polisario Front and Morocco were engaged, without fruit, in another round of U.N. negotiations which had originally scheduled to start the same day as the Laayoune battle. And, of course, the attack on the protesters came only a few months ago. Proximity in time and place should mean something.

I’m not suggesting a John Le Carre type conspiracy here. I am only talking about inspiration? The Tunisian revolt did not come from nothing. I’m suggesting that this event, virtually unreported in the United States, might be a large part of it.

As I did with our invasion in Panama, Desert Storm and the last invasion of Iraq, I am glued to the television set watching the same scenes in Egypt over and over again. And, I admit, I am excited by it like I would be watching an NFL football game. That’s probably not politically correct to say and it’s not that I don’t have empathy. I have plenty of that. But, this is not news you can catch up with later.

What amazes me is how many people think they know what is going to happen. Think about it. Mubarak has been there for thirty years and there were only 3 for the nearly 30 years before that. Who knew Sadat was going to be assassinated? Who knew that Mubarak would be there for 30 years? Who knew this was going to happen?

As I write this, there is a deadline given by the protesters for Muhbarak to be gone by tomorrow. They are preparing for an attack on them. But, no one knows what is going to happen. Is the government going to have the so-called “goon squads” charge again? Is the Muslim Brotherhood plotting to take power once the government is gone? Will President Obama be more outspoken in supporting the protesters? Is Mubarak right that if he leaves now, there will be chaos? Does Elbaradei have any real say in anything or any serious future? Do we want a less secular, more anti-Israel democracy in place? These are all questions and I do not have any answers. More, I’d suggest that anyone who predicts correctly, will have just gotten lucky.

I don’t even know what will happen by tomorrow morning and despite that tv will be boring again, I hope for a peaceful solution.

Still no shows on the right for 2012

How different is this than the last time? By now the candidates for both sides were mostly known if you were paying attention. Now, of course, we know Barack Obama is going to be the candidate for the Democrats. The fantasy of the right that Hillary Clinton was going to challenge him for the nomination – always laughable – is not even thought about anymore.

But where are the Republican leader? Tim Pawlenty is busy trying to get anyone to notice him, but he hasn’t announced. Mitt Romney is doing his rounds, boring everyone, not answering questions about the Massachusetts health care plans well, and not announcing anything. It is such a desert out there that now the media is starting to speculate about Jon Huntsman, who has a slightly better chance of winning than I do, and Michele Bachmann, who is more deliberately divisive than Sarah Palin can ever hope to be.

And that is who we are all waiting for, isn’t it? Sarah Palin. That will be front page news. 

I am almost positive I am right about Mike Huckabee (I always want to call him Bill, for some reason). He isn’t running. Maybe I dreamed he already said so, because I had to double check. If I haven’t suggested it before, I don’t think Ms. Palin will either. I think she knows she can’t win and losing might jeopardize her chances forever or hurt her celebrity, which is how she makes her living. The time may be right for her followers, but she is not ready, if she ever will be. For reasons I can’t quite comprehend, Mayor Giuliani said if she runs, he might. I guess he sees himself as the moderate and thinks the comparison will do him well. But, he couldn’t get anywhere last time and this time the party has moved right. He’s kidding himself. Newt Gingrich is occasionally getting his name in the news. With less certainty than my other predictions, I just don’t feel a run by him, even if he donated very heavily to Iowan politicians and went there ten times in 2010. This is what is reasonably called “spidey-sense.”

I am expecting a much smaller field than last time. I’m not counting Alan Keyes whether he turns up on a debate platform or not (the greatest unsolved mystery of the ’08 campaign). It won’t be as exciting as last time unless Sarah Palin running, and in some ways, I’m kind of happy they are waiting. Elections bring out the worst in people. It’s not that I mind family and friends calling me a Nazi, Commie, racist, partisan, American hater and misogynist. Sometimes I find it funny. But, I wouldn’t mind if it was just for a little shorter period this time.

Health care, anyone?

The health care repeal in the senate has failed. It’s done. But, still, a federal district court in Florida has declared the law unconstitutional based on the mandate requiring those who don’t want health care (and some who can’t afford it) to pony up anyway and pay a penalty.

The argument by about half the states, which are opposing the law is that the mandate is the first time in history people will be required to pay for a product they don’t want, which is not authorized by the commerce clause contained in Article 1, section 8 of the constitution.

A Virginian court has already found this, but it stayed the enforcement knowing that it would go up on appeal. This judge, Roger Vinson, instead that as he granted a declaratory judgment stating the law unconstitutional (because the rest of the health care law can’t work without the money from the mandate), no injunction is necessary.

What does that mean for the states? Generally speaking, any district court judge can declare a law unconstitutional and it is until appealed and overturned. Right wing media hosts have been saying that the argument is over and the federal government has no choice – the federal government can’t put the law in effect barring Judge Vinson someday being overruled. That’s pretty funny, of course, as quite recently they were telling us that a district court didn’t have the power to force the federal government to stop enforcing don’t ask, don’t tell.

What do lawyers think? They don’t seem to know. Some attorney generals are already saying that their states should continue and others that they should not. I would say that for those within the jurisdiction of the Florida federal court, that is true. Which would mean in Florida, but not any other state.

The truth is, this should get an expedited hearing in the responsible court of appeals, and then straight up to the Supreme Court. Too much rides on this as a result of the size of the legislation.

I watched a bunch of fancy schmancy lawyers on C-Span the other day as they were questioned by Senators. The lawyers, of course, differed as to whether the law violated the commerce clause. No surprise as the congress usually tries to have witnesses of different persuasions. Some felt this is well within congress’s powers and others that it is revolutionary. Personally, it seemed to me a waste of time for the Senate to listen to disparate opinions now given that it is up to the courts to decide.

This is a politically explosive case. Politically explosive cases often end up as 5-4 decisions in the Supreme Court. However, both Justice Kennedy and Justice Scalia have shown a bit of leeway in commerce clause cases and it cannot be positively stated what they will decide. However, that is not a prediction. Just a - don't be surprised. I rather think they will side with the complaining states, but one argument, which might have some effect on Justices Kennedy and Scalia, is that no one doubts this would be constitutional if the penalty was a general tax and a credit was given to those who purchased health care. That is, it would be the same thing phrased differently. Justice Scalia sometimes asks in oral argument - so, if we just change the titles around, everything's fine? Another argument that might affect them is one Justice Scalia concerned himself with before, that the necessary and proper clause permits regulation of non-commerce when it affects interstate commerce. However, they may also find that is true with activities but not inactivities like not buying health insurance.

It was a very long decision and I’m not about to decode it here. But, I will give you a few basics. Congress is not authorized to pass any law it wants. It has to be authorized by the constitution's grant of power to it in Article 1, section 8, which lists a whole bunch of things congress can do, including things like coining money, declaring war, and regulating interstate commerce, among them. At the end of the list there is what is called the necessary and proper clause. That clause means that even if something isn’t in the list, congress can still do it if it is necessary and proper to achieve one of things it is permitted to do.

Long ago, and while some few founders were still alive, the necessary and proper clause was interpreted to mean convenient and proper. Fuss all you want, it is too firmly entrenched in our constitutional law since 1819 (McCulloch v. Maryland) to be overturned without a near legal revolution. Chief Justice John Marshall noted that the commerce clause was difficult to interpret and probably would be as long as we kept the system we had. He was right. However, for a long time, the commerce law was not that controversial and rarely referred to by congress.

Although you can trace a long change in the history of the commerce clause starting in the late 19th century, it really accelerated in the late 1930s and early 1940s with New Deal legislation. One of the cases that most dramatically demonstrates the sea change in the law is Wickard v. Filburn (1942), wherein a farmer who was also growing food to feed his own family was held to be in violation of a federal law limiting what he could grow. That a farmer could be told that the federal government could tell him he couldn’t grow his own food on his own property to feed his family stunned many people then and continues to now.

This isn’t going to be a full tutorial on the commerce clause which you can get many other places, including on Wikipedia, but hopefully you get the drift. Nowadays, most everything the congress wants to authorize under the clause passes the Supreme Court’s test. While the court drew a line in the sand in the 90s in two cases (Morrison and Lopez, if you care), they then drew back a little (Raich, if you still care), it continues to be the go to provision in the constitution. This is not just because of a change in the interpretation in the law, but I don’t think anyone, even the most ardent states’ right advocate, disagrees that there is a lot more interstate activity now than in the early days of the country.

Two district courts have found that this law is constitutional and two that it is not. Before it gets to the Supreme Court, there might have to be a split in the various circuit courts of appeals. It might get there anyway because of the seriousness of the dispute. But, that the Supreme Court will decide itself.

Personally, I think the interstate commerce clause has been expanded enough. I would also see a liberty interest here under the 5th amendment as more pressing than the commerce clause argument, but that doesn't seem to be an issue here for the lawyers involved. But, I acknowledge that I would have to put in a lot more time to make a decision on the legal aspects of this matter and perhaps I will in a separate post dedicated to it. I have long been a believer that interpretations of the constitution and fundamental law are unavoidably as personal for judges as legal and personal feelings of liberty will undoubtedly matter. And, of course, what the constitution might have meant in the beginning is hopelessly complicated and even distorted forever by the principle of stare decisis, also known as precedent. While Justice Thomas frequently suggests that original meaning be returned to, he is outvoted by every other justice on the court now and pretty much all that have ever been there.