Archive for November, 2011

Defense bill will allow President to indefinitely detain American citizens

Posted by on Nov 30 2011 | Counter-Terrorism Policy, obama, Terrorism, War on Terror

H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012, has already passed the House, and is currently before the Senate. One section of the bill gives the President the authority to detain indefinitely American citizens, picked up on American soil, because they are allegedly supporting the enemy:

Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 23 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 11 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Yesterday the Senate rejected an amendment by Senator Mark Udall (D-Colo.) that would have stricken the detention provisions, and required the Executive branch to submit a report (within 90 days) on the the legal and practical issues involving detention, and required Congress to hold hearings on the detention within the next 45 days after receipt of the report.

The bill also includes provisions to prevent civilian trials of prisoners currently held at Guantanamo. The Obama administration is threatening to veto the bill, although the objections appear to involve Guantanamo-type issues, and not the expansion of the executive’s detention powers. [Note: The bill version quoted above is the version as passed by the House and sent to the Senate. It is the latest version available on Thomas. The numbering for some sections may be different in earlier versions of the bill.] Kudos to Senator Udall, one of the few genuine civil libertarians in Congress, for taking the lead on this issue.

UPDATE: A commenter points out that, according to Senator Carl Levin, it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power. See the C-Span video of the debate on the floor of the Senate, at 4:43:29. This is not the Obama I caucused for in Feb. 2008.

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Cartoonists Crash My TV Show

Posted by on Nov 30 2011 | Idiot Box (TV Show), PPC

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Wonk Talk: Judicial Federalism

Posted by on Nov 29 2011 | Constitutional History, Constitutional Law, federalism, Health Care,, PPC, Tenth Amendment, U.S. Constitution

Ok, maybe my title is a bit of an overstatement. Granted, podcasts on issues surrounding the law are rarely outside the confines of “wonk,” somehow our resident Constitutional Law scholar Professor Rob Natelson makes constitutional law, legal matters and history consumable even at my level. His latest podcast is on judicial federalism. …Judicial whaaaattt?

Let me explain. Like the Founders themselves, the center-right today is a big fan of federalism – aka states’ rights. The Constitution is a document that outlines enumerated federal powers. Whatever not enumerated is left to the states and people. This way, we have 50 separate locations for testing public policies. 50 “test tubes of innovation” reveal what policies work and what policies fail miserably. (i.e. Romney-care in Massachusetts anyone?) Conservatives rightly point to federalism’s rich history and practical advantages when it comes to things like commerce and regulating economic affairs. However, federalism as it pertains to the law, civil justice, and the courts rarely, if ever, gets discussed. This is where Professor Rob Natelson comes in.

He argues in his blogpost that the Colonists were just as likely to be heard screaming, “leave our law alone” as they were “no taxation without representation!” The idea that the Crown ought not to interfere in Colonial civil justice matters was essential to the early patriots. Indeed, early pamphleteers mentioned among the many grievances against the King the injustice of British interference in strictly American judicial matters. Consequently, these early cries for judicial federalism were woven into our nation’s founding documents.

Today, “conservatives” in Congress are pushing for a federal medical malpractice reform bill – HR5. In other words, they like federalism and states rights – except when it comes to judicial matters. Then they want Washington, DC to impose its will on state law. Of course this is nonsense and Rob explains exactly why in this important paper, The Roots of American Judicial Federalism. As Rob says in the podcast, “what’s Constitutional isn’t always what I like. And what’s unconstitutional isn’t always what I don’t like.”

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There’s No Sexy in Medicaid

Posted by on Nov 28 2011 | Health Care, health control law, obamacare, PPC, Taxes

In the constant struggle for taxpayer dollars, there exists one big budget item that tends to get lost in shuffle: Medicaid.

Medicaid plays a particularly cruel trick on state budgets. As the economy takes a turn for the worse, revenues coming into the government decline. Coloradans are making less money and paying less in taxes. In turn, poorer Coloradans means more of us on government rolls – like Medicaid. With more people applying for Medicaid benefits, the strain on government’s smaller revenue stream becomes greater and greater. It’s a vicious cycle that doesn’t seem to excite newspaper reporters like declining funds for K-12 education seems to.

As rare as a good Medicaid lead story is, the Durango Herald’s Joe Hanel did a great job of reporting on what many consider a rather unsexy news story. Here is something to be concerned with,

An extra 281,000 people will join the Medicaid rolls between 2007, when the downturn began, and next year, the state predicts. That’s an increase of 72 percent in just six years.

Ouch. A 72% increase would require some extra funding right Joe?

Although next year’s budget is growing slightly, higher Medicaid expenses will eat up all of the growth and more, putting the squeeze on schools, colleges and the rest of government.

Double ouch! See, it’s a perpetuating cycle. The question is: what can we do about it? Some would suggest more taxes and fees. Some want more taxes masquerading as fees. But that only addresses the revenue side of the equation. And increasing revenues means taking more from the struggling private sector – the sector that actually creates jobs. What about the cost side of the equation? It is here where Hanel quotes our Health Care Policy Center director Linda Gorman,

Also, the state can ask for specific waivers from federal Medicaid rules, Gorman said. In fact, Colorado already has 11 waivers, but they usually let the state expand coverage in a more cost-effective way than federal rules allow, not reduce coverage. Gorman thinks the state needs to be more creative about asking for waivers that would let it run its programs more economically.

To hear more Linda Gorman on the crushing weight of Medicaid expansion, check out my TV show from a few weeks back.

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60s sitcom themes: The hidden alien. The strange family that doesn’t know it is strange.

Posted by on Nov 23 2011 | Uncategorized

During the early and mid-1960s, a typical theme of television situation comedies was a character who is some way was different from everyone else, and whose difference (or whose very existence) needed to be concealed from almost everyone by the show’s protagonist. To wit:

Mister Ed (1961-66). Mister Ed is a talking horse who belongs to a human named Wilbur, and will speak only to him. Wilbur attempts to conceal Mr. Ed’s ability from the neighbors.

McHale’s Navy (1962-66). In the South Pacific during World War II, PT boat Lt. Commander McHale and the crew of PT-73 work hard at having fun, to the dismay of Captain Binghamton.  Concealed in their barracks is a Japanese prisoner of war named “Fuji,” who gratefully serves as their houseboy. Keeping Fuji hidden from the American officers is the subject of several episodes, but it is not as central to the show as are the secrets in the other shows on this list.

My Favorite Martian (1963-66). After a Martian scientist’s spaceship crashes, Tim O’Hara rescues him. Tim invites the Martian (whose real name is Exigius 12½) to live with him, and passes him off as Tim’s “Uncle Martin.”

Bewitched (1964-72). Samantha is a beautiful witch who is married to advertising executive Darrin Stephens. They live in the suburbs, and often face challenges trying to conceal Samantha’s powers from the nosy neighbors and Darrin’s boss.

My Mother the Car (1965-66). David Crabtree’s deceased mother is reincarnated in a 1928 luxury automobile. She speaks only to him, through the car radio. He must conceal the car’s secret from the world, especially Captain Manzini, who is determined to acquire the antique.

I Dream of Jeannie (1965-70). Jeannie is a beautiful 2,000 year old genie who lives with astronaut Tony Nelson. Tony and his best friend Roger must conceal Jeannie’s existence from everyone else, especially the commanding officers at NASA.

Another theme of some sitcoms of the period is the family of freaks who do not know that they are freaks:

The Beverly Hillbillies (1962-71). After the Clampetts accidentally strike it rich by discovering oil on the Ozark property, patriarch Jed moves them to Beverly Hills. They retain their rural dress and customs, and seem to have little or no idea how aberrant they are in urban California. Their innocent good nature keeps them (except for the half-witted skirt-chaser Jethro) out of trouble most of the time.

The Munsters (1964-66). The father looks like Frankenstein, his father-in-law is a vampire, and so on. Living with them is their niece Marilyn, who is an ordinary human college student, and whom the rest of the family considers to be a freak, but they are very nice to her. Marilyn apparently is unaware that the Munsters are different from everyone else.

The Addams Family (1964-66). A family of wealthy eccentrics with paranormal abilities and a strong taste for the macabre enjoys life in their mansion. Again, they have no clue how bizarre they are.

So in 1965-66, when there are only three national networks producing TV series, we have in a single television season five shows built around the concealment of character with a unique trait. (Or six, if you include the McHales’s Navy subplot), and three shows about extremely strange families who think they are normal.

So my question to the commenters is “Why?” Were these shows an unintentional avant garde, extolling the pleasures of non-conformity and the virtue of tolerance to Middle America? Except for “My Mother the Car,” all the shows were at least moderately successful for a while, and Beverly Hillbillies and Bewitched garnered top ratings. So was the American public subconsciously looking for validation for non-conformity? Or is there some other explanation?

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You Can’t Be Pro-Poor and Pro-Green

Posted by on Nov 22 2011 | Economy, energy, Environment, PPC, Regulation, Taxes

In her newest article for, Amy Oliver asks an important question: can you be an advocate for the poor AND for “green” energy simultaneously? Her answer is: absolutely not.

Poverty rates have been rising over the last decade. Even in states like ours that claim to be renewable energy meccas.

…Colorado, home of the New Energy Economy and an aggressive renewable energy mandate, now has 40,000 fewer jobs than in 2000 with 900,000 more residents, the highest rates of unemployment in 28 years, and the median salary remains at the same level it was in 2000. The wage gap is considerable between black and Hispanic households, which make $20,000 less than the state’s median household income of $54,000.

No question, times are tough. Especially for the poorest folks among us. This makes for a rock/hard place situation for those on the Left. They promote themselves as champions of the poor and downtrodden. They claim to be the voice for the voiceless. Yet at the same time, they push aggressively for green energy in America. These positions become diametrically opposed when you consider the effects of our green energy policies.

Take for example our renewable energy mandate (RPS). The mandate in Colorado is 30%. This means that 30% of the electric power in our state must come from renewables. Whether you want it or not and whether you can afford it or not is beside the point. You’re paying a good chunk of your income for someone else’s wind and solar fantasies. This acts like a regressive tax on the poor. Why? Well, I’ll let Amy explain.

From 2011 to 2020, the RPS “will cost Colorado citizens an additional $11.78 billion over conventional power. By 2020, the RPS will force working families to an average of $337 more per year. By 2020, the RPS will cost commercial businesses an average of $2,360 per year. By 2020, the RPS will cost industrial businesses an average of $43,367 per year.

Renewable energy is simply not efficient. Unfortunately, our renewable energy mandate forces the least capable of us to fork over more of their money for energy. In many cases, it’s nothing more than a wealth transfer from poor to rich. How can you say you care about the poor when you force high energy costs on them en masse?

The working poor cannot afford this green agenda. The unemployed cannot afford this green agenda. If you want jobs in Colorado, the last thing you should want is green energy.

By 2020 “Colorado will lose an average of 18,380 jobs. Wages will be reduced by an average of $1,269 per worker. Total “annual real disposable income will fall by $1.87 billion.

That doesn’t sound very poor-friendly does it?

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Why Yankee Doodle called it “macaroni”

Posted by on Nov 19 2011 | History

The question has bothered me for decades. We sang “Yankee Doodle” plenty of times at school, but nobody seemed to wonder why he would say that “a feather in his cap” was “macaroni.”

At last, I found the answer, in Thomas Wright’s book “Caricature History of the Georges” (1860), which examines political and social satire drawings during the reigns of England’s King Georges I, II, and III. A very interesting book, if you’re interested in English history. Despite what the title might suggest, most of the book is text, not pictures. The author notes that for a while in the late 18th century, magazines often did 3-word book reviews. So let’s call this book “clever, erudite, tory.”

On pages 258-61, we learn that during the reign of George II, “men of fashion” were called “beaux.” In 1749, “fribble” became the new term, and this persisted into the reign of George III. In 1772, things changed. Rich young men who had made the tour of the continent came back with new fashions of all kinds; thanks to the wealth pouring in from India, the time was one of extravagant frivolity. The young men formed a club which soon took the name of the unusual Italian dish which it served. For the gentlemen of the Macaroni Club, “it was their pride to carry to the utmost excess every description of dissipation, effeminacy of manners, and modish novelty of dress.” The Macaronis of 1772 “were distinguished especially by an immense knot of artificial hair behind, by a very small cocked-hat, by an enormous walking stick, with long tassels, and by jacket, waistcoat, and breeches, of every close cut.”

Then in 1773 the Macaroni fashion changed to “the elevation of the hair, and the adoption of immense nosegays in the bosom.”

So the mystery of Yankee Doodle is solved. He is an American rube and rustic. He naively thinks that a mere feather in his cap makes him an ultra-fashionable “macaroni.”

It turns out that I could have learned the truth by just looking up “Yankee Doodle” and “Macaroni” in Wikipedia. But at least I finally understand.

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The Cartoon Edition of my TV Show

Posted by on Nov 18 2011 | Idiot Box (TV Show), PPC

What’s it like to earn a living lampooning politicians? Find out on Devil’s Advocate tonight as I am joined by syndicated editorial cartoonists Chuck Asay (formerly of the Colorado Springs Gazette) and Henry Payne from the Detroit News. That’s 8:30PM on Colorado Public Television 12. Re-broadcst Monday at 1:30PM.

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U.S. House Passes Conceal Carry Reciprocity Bill

Posted by on Nov 18 2011 | guns, PPC, Second Amendment

I wanted to alert my readers to a media release Dave Kopel sent out to Second Amendment friends this past Wednesday. And as a friend of conceal carry and gun rights myself, I have to give a big thanks to Dave for all his hard work. (yet again)

U.S. House passes law to allow Coloradoans to carry handguns in other
states. Independence Institute’s David Kopel testified to Congress in
favor of the bill

On November 16th, the U.S. House of Representatives voted 272 to 154 to
pass H.R. 822, a bill which creates national reciprocity for concealed
handgun carry licenses. Colorado’s four Republican Representatives are
all co-sponsors.

The bill now moves to the Senate, where a similar bill in 2009 won a
majority, but was defeated by the filibuster. Senators Udall and
Bennet voted in favor of that bill.

If the bill becomes law, Colorado residents who have a concealed
handgun carry permit could carry a handgun in all other jurisdictions
which issue concealed handgun permits. This would be everywhere except
Illinois and the District of Columbia. When carrying in another state,
Coloradoans would have to comply with the all the rules of the other
state, just as Coloradoans who drive in other states have to obey the
traffic laws there.

Independence Institute Research Director David Kopel testified in
support of the bill at a Sept. 13 hearing of the House Judiciary
Committee’s subcommittee on Crime, Terrorism, and Homeland Security.

Kopel’s testimony explained why the bill is a proper exercise of
Congress’s authority to enact legislation to protect national
constitutional rights, such as the right to interstate travel, and the
right to bear arms. The 14th Amendment was added to Constitution in
1868 for the intended purpose of granting Congress the power to take
action when states infringe “the Privileges or Immunities of citizens
of the United States.” The history of the 14th Amendment shows that
Congress was particularly concerned about state infringements of the
Second Amendment and of the right to travel.

Kopel’s testimony also presented data showing that concealed handgun
permittees are much more law-abiding than the general population, and
there is no reason for legislators to fear that permitees–who have
been proven to be law-abiding in their home states–will turn into
criminals when they cross a state border. The legislation was
necessary, Kopel said, because of a handful of states, including New York
and New Jersey, refuse to allow non-residents to apply for carry
permits, and also refuse to honor permits from other states.

Kopel’s written testimony is available at

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Bleg: Recommended US history book for Con Law I?

Posted by on Nov 17 2011 | Constitutional Law, History, Law schools

Next semester I will teaching the Constitutional Law I class at Denver University. It’s the standard class that almost all 2d or 3d semester law students must take at all law schools:

This required introductory course examines the role of the United States Supreme Court and, in particular, the Court’s power in exercising judicial review in cases interpreting the U.S. Constitution. The course focuses primarily on two topics. First is the doctrine of Separation of Powers: examining the structure and interrelationship of the three branches of the federal government, Congress, the Executive Branch, and the federal judiciary. Second is the doctrine of Federalism: the relationship and power distribution between the federal government and state governments. In addition, all sections will devote part of the course to an introduction to at least one aspect of the large field of individual constitutional rights. The specific rights covered will vary by instructor. . . .  Students who wish to gain a deeper understanding of these topics are strongly encouraged to take Constitutional Law (Advanced): Individual Rights.

My particular class will pay special attention to some topics of great modern relevance: the interstate commerce power and the N&P clause, since the Supreme Court will be hearing the most important case in decades on those topics. We will also get into some depth on the President’s war powers under Article II, since those were the subject of much debate under Bush, and remain so under the current administration–including the war with Libya.

I’ll be using Randy Barnett’s textbook, which is mostly chronological. One of the main purposes of the class is for students to learn how to practice constitutional law using originalism AND using living constitutionalism. The latter necessitates a chronological approach, since to counsel clients on how the Constitution might change in the future (or might change now), one must understand how the application of the Constitution has varied during different periods in American history.

In the class, I will explain some key facts in American history, for the benefit of students who may not have much history background. Some students, though, might want to do some additional reading to deepen their knowledge. So what American history survey book would commenters recommend for such students? I’d strongly prefer that the book be available in paperback, and not tremendously long, since first-year students have plenty of reading to do already.

FOLLOW-UP: Things are worse than I had feared. Several commenters mentioned some great books (e.g., Gordon Wood), but I want a survey that goes from no later than 1776 through most of American history. No textbooks for AP or college US History, although I wish my students had the time and the money for the Schlesinger textbook. No books that focus on a particular issue, even if it’s a broad one (e.g., Eric Foner’s book). I’m certainly not going to inflict Howard Zinn on my students. I read the 1st edition of People’s History almost as soon as it came out, and enjoyed it. But that’s definitely not the starting point for someone to learn the actual history of the United States; it’s a book for someone who already knows a lot of American history, and can discern the difference between some neglected stories that Zinn tells, and the incredible amount of chaff. Bill Bennett did so much damage to the Constitution during the Bush administration that I recoil from using his book in a constitutional law class. So in the realm of affordable survey paperbacks, we’re down to Brogan’s Penguin History and Paul Johnson’s A History of the American People. Based on Amazon reviews, each book is way too didactic for my purposes. Not that the distinguished authors are not entitled to their points of view; I just want something without such a heavy hand. At this point, I’m leaning towards telling students to buy Samuel Eliot Morrison’s Oxford History, which ends in 1963, but is available used for almost nothing, plus shipping. Or his more recent Concise History of the American Republic, also available used for very good prices.

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