Adam Serwer

The Drug War Has No Consequences

With the cost of mass incarceration putting a heavy strain on state budgets, even conservatives are beginning to come around to the wisdom of ending the war on drugs. That does not include William Bennet and Joseph Califano Jr. , who argue against any deescalation at all: Legalization will only make harmful substances cheaper, easier to obtain, and more socially acceptable to use. The U.S. has some 60 million smokers, 20 million alcoholics and alcohol abusers, and 21.2 million illicit drug users (over seven million of whom are addicts). If illegal drugs were easier to obtain, this latter figure would rise sharply. Moreover, more readily available drugs will increase criminal activity. Most violent crimes, such as murder, assault and rape, occur when the perpetrator is either on drugs or drunk, and a high percentage of property crime involves people seeking money to buy drugs and alcohol. The irony of them arguing that drugs should be illegal because most violent crimes are committed...

Debt Ceiling Originalism

The argument that the debt ceiling is unconstitutional, coming just as the United States is inching closer to the possiblity of default due to a stalemate in negotiations, seemed a little too convenient for me at first. But Jack Balkin , who has been one of the more eloquent voices of a "liberal originalism" challenging conservatives' interpretation of the Framer's original intent, makes a compelling case that the entire point of the 14th Amendment was to avoid the sort of grandstanding we're seeing right now: No changes were made to Section 4 in the House of Representatives. Representative Thaddeus Stevens , in introducing the measure to the House, remarked on it only briefly: "The fourth section, which renders inviolable the public debt and repudiates the rebel debt, will secure the approbation of all but traitors." Id. at 3148. The House passed the final version on June 13. Id. at 3149. What do we learn from this history? If Wade's speech offers the central rationale for Section...

Fallout

Sweetgreen 's sweet spot. Damon Root says liberals should be careful what they wish for. Reactionaries , FTL. The administration's strategic errors on national security.

Sex Selective Abortion, Ctd

Ross Douthat has a thoughtful response to my post on sex-selective abortion, although I think he's mistaken in his conclusion: This isn’t an unusual situation. Every vision of human liberty requires tolerating certain evils in the name of individual rights, and there’s nothing inherently wrong with erring on the side of freedom, and then trying ameliorate its side effects. But some evils are more striking than others, and some definitions of liberty more dubious — and the graver the evil you’re tolerating, the more likely that your philosophical premises have gone awry. Which is why the pro-life side is well within its rights to point out that the liberal West’s current vision of human freedom bears responsibility for 160 million (and counting) missing girls. There are a few problems I have with this. A society in which women are seen as such a monumental burden that mothers have a financial incentive to avoid having daughters isn't anything like "the liberal West's current vision of...

DoJ To Recommend Investigations In Two Detainee Deaths

Marcy Wheeler reports that Assistant U.S. Attorney John Durham , assigned by Attorney General Eric Holder to investigate cases in which CIA interrogators may have gone beyond the "legalized" torture guidelines established by the Bush administration's office of Legal Counsel, has recommended investigations of two cases in which detainees died. The original mandate for the investigation was " whether any unauthorized interrogation techniques were used by CIA interrogators, and if so, whether such techniques could constitute violations of the torture statute or any other applicable statute." As Ryan J. Reilly noted , rather than mere violations of the guidelines, the Department seems to have decided that only cases in which violations of the guidelines lead to detainee deaths were cases worth recommending for criminal investigation. I don't have access to the information Durham did, so it's hard for me to second-guess his decision. But based on what was revealed about the CIA...

U.S. Sentencing Commission Makes New Crack Sentencing Guidelines Retroactive

In a bit of good news on the Drug War front, the U.S. Sentencing Commission has voted to make the Senate's recently amended crack sentencing guidelines retroactive, meaning that around 12,000 offenders will be eligible to seek a reduction in their sentences. That's despite the administration's preemptive retreat on the issue, which begged the commission to exclude "those who have possessed or used weapons in committing their crimes and those who have significant criminal histories." Republican Congressman Lamar Smith meanwhile, accused the administration of being "more concerned with the well-being of criminals than with the safety of our communities." Crack panic aside however, all retroactivity means is that 12,000 rather than 5,500 will be eligible to petition for a lighter sentence. They'll have to face a federal sentencing judge, who will make a decision "only after consideration of many factors, including the Commission’s instruction to consider whether reducing an offender’s...

Economic Self-Immolation

Georgia : But as the full cost of the immigration reform emerges in the form of an estimated millions of dollars worth of crops rotting in fields, it could alarm other states that have passed or are considering similar strict measures. Georgia labor officials estimate a shortage of some 11,000 workers in the agriculture sector, and the state has enacted a program where people on probation, who often have difficulty finding jobs, are sent into the fields. Alabama : When Tuscaloosa, Alabama, begins rebuilding more than 7,200 homes and businesses leveled by an April 27 tornado, it may find itself missing a workforce capable of putting the city together again. That’s what Ever Duarte, head of the city’s Hispanic soccer league, said after losing a third of his teams in a week. Tuscaloosa County’s 6,000-strong Hispanic population --including roofers, Sheetrockers, concrete pourers, framers, landscapers and laborers -- is disappearing, he said, before a law cracking down on illegal...

Fallout

I'm kind of surprised that people are still being surprised that Chipotle burritos are fattening. The White House counterterrorism strategy kind of blows . The future of marriage-equality ballot measures. Dem senators try their hand at "it gets better."

Sixth Circuit Breaks Partisan Streak On ACA Rulings

Decisions on the constitutionality of the Affordable Care Act's individual mandate have fallen along partisan lines, with Republican appointees voting to overturn it and Democratic appointees upholding it. Until today. A three judge panel made up of two Republican nominees, Judges James L. Graham and Jeffery Sutton --one appointed by Ronald Reagan and the other by George W. Bush --upheld the individual mandate. The opinion was written by Judge Boyce Martin , who was appointed by Jimmy Carter. Martin and Sutton agreed on the constitutionality of the mandate under the Commerce Clause. While Graham said the mandate was unconstitutional, he, along with the other judges, rejected the "activity/inactivity" distinction en vogue in conservative and libertarian circles. Martin's decision rejected the notion that going without health insurance constitutes an "inactivity" that can't be regulated under the Commerce Clause, noting that, "The uninsured cannot avoid the need for health care, and...

Buddy System

The Supreme Court's most recent appointees agree more often than everyone else: It can be treacherous to predict a justice’s path based on early service, and presidents have been disappointed by the positions their nominees take when they reach the bench. But this year, the four youngest justices separated neatly into the court’s ideological wings and then presented a unified front. Obama ’s choices, Justices Sonia Sotomayor and Elena Kagan , agreed 94 percent of the time this term, according to statisticians at SCOTUSblog.com. The only pair that agreed more were Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. , Bush ’s picks, who parted ways in only 4 percent of the court’s decisions. I'm interested to hear Scott Lemieux 's take on this. Lemieux has often argued that from a liberal point of view, Roberts and Alito are far worse than Antonin Scalia and Clarence Thomas , because the latter have firmly held ideological views that occasionally lead them to rule against...

Koh Defends His Interpretation Of The War Powers Act

State Department Legal Adviser Harold Koh went before the Senate yesterday to defend the administration's use of military force in Libya without congressional authorization. Koh's interpretation of the War Powers Act allowed the U.S. to continue military operations in Libya absent congressional authorization. President Obama accepted Koh's interpretation over the advice of Attorney General Eric Holder , Pentagon General Counsel Jeh Johnson , and the Office of Legal Counsel. While the president is not obligated to follow the OLC's advice, in practice the president rarely disregards it. The crux of Koh's interpretation is that because American service members are not at great risk given the military capabilities of Libyan dictator Moammar Ghadafi , the conflict in Libya does not amount to "hostilities" under the WPR. "[T]he operative term, "hostilities," is an ambiguous standard, which is nowhere defined in the statute," Koh testified. "An operation that was expressly designed to be...

Fallout

Is Obama his own worst enemy ? Andrew Cuomo is only a liberal on social issues . Marcy Wheeler was not impressed with Harold Koh 's Senate testimony on the War Powers Act. The challenge of calling rape what it is.

Thomas' Ouija Board Originalism

I meant to write a post about how Justice Clarence Thomas ' dissent from yesterday's Supreme Court opinion striking down a ban on selling violent video games to children didn't involve any actual case law, but Garrett Epps beat me to it, and probably did it better than I would have anyway: Thomas takes a different approach. The majority's decision, he writes, "does not comport with the original public understanding of the First Amendment...The practices and beliefs of the founding generation establish that 'the freedom of speech,' as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians." How do we know this? (Remember that oral argument, no less conservative a figure than Justice Samuel Alito ridiculed Scalia for a question that suggested he wanted to know "what James Madison thought about video games.... Did he enjoy them?") Have Thomas's clerks found legal cases from the...

"Women's Empowerment" Does Not Lead to Sex-Selective Abortion, Ctd.

Jonathan Last takes on my response to Ross Douthat : Finally, Sewer [sic] seems to have misunderstood the origins of sex-selective abortion: It begins not with lower- and middle-class families, who need to worry about girls being a financial drain, but rather with wealthy elites, for whom finances are a much lower-order concern. The behavior then filters down the socio-economic ladder to the middle and lower classes, which do have to worry about money. Hvistendahl makes this all quite clear in her reporting. Um, I never contested that part of Douthat's argument, precisely because arguing that poverty was the issue would have been wrong, but the wealthy respond to economic and cultural pressures as readily as anyone else. Also, the problem isn’t just that girls have a “lower” value to these poorer families. As Hvistendahl shows, the sex imbalance also causes havoc once the shortage of girls gives young women a higher value. When the “value” of young women escalates, it causes all sorts...

Cuomo vs. Obama

Matthew Yglesias and Nate Silver have been arguing whether or not Gov. Andrew Cuomo's successful push for a marriage-equality bill in New York is the result of structural or personal factors, and whether or not Cuomo has shown leadership that President Barack Obama hasn't. I'd say I largely agree with both of them. Obama faces significant procedural obstacles in a 60-vote filibuster and a unified obstructionist Republican opposition, but he's also been an excessively cautious president who has taken few risks in pushing progressive priorities outside of health-care reform. John Aravosis goes further, however, and argues that Cuomo faced more daunting procedural obstacles than Obama: In the NY state Senate they have a super filibuster. It's called the Republican Majority Leader. He has absolute discretion about what legislation he wants to bring up for a vote. If he didn't want to bring up the same-sex marriage bill, he didn't have to - regardless of how many votes we had. But he did...

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