Non-negligent mistake vs negligence vs strict liability vs Benghazi

Tort law was one of my favorite classes in law school, gruesome injury cases being more interesting than contractual disputes over international chicken shipments.

The usual rule of non-negligent mistake is that you lump it. I drive over a virtually-invisible oil patch and go into a skid and injure you. No one would've seen it, so the injuries are your problem.

Negligence is when I failed to see an otherwise-visible oil patch because I was adjusting the car radio instead of carefully watching the road, and this time I owe you. The classic Reasonable Person wouldn't have adjusted the radio except in absolutely safe conditions. The RP isn't superhuman, supersmart, or superskilled, but he or she doesn't make easily foreseeable mistakes.

Strict liability reverses the rule of non-negligence:  if the harm was from something that even RP would not have avoided, the victim gets compensated. Same as the first case, I drive over a virtually-invisible oil patch and injure you, only that now, your injury results from the fact that I was transporting explosives that then exploded. Strict liability is considered a mostly-modern legal invention but there were earlier forms. Collapsing dams for watermill ponds were examples, and my favorite case was a pioneering, late 19th-Century balloonist who landed on a woman's vegetable patch. She hauled him into court for her veggies. He rightly pointed out that ballooning is brand new and no one knows how to land them - the judge said tough luck, if you do something abnormally risky like ballooning then you're strictly liable for any harm.

Negligence and strict liability seemed like separate concepts until Professor Grey pointed out that the Reasonable Person acts reasonably every time, but no actual human being does. It is unreasonable to expect someone to be reasonably prudent every time, but the law expects that, so a corner of strict liability is embedded in the law of negligence, presumably for the same societal reasons that we apply strict liability in other situations.

So this brings us to Benghazi - it's hard to figure out what the right wingers are screaming about, especially when their bizarre claims about coverups seem tangential to the real issue of inadequate security in the lead-up to the tragedy. I don't know if the inadequate security was a non-negligent mistake or negligence on someone's part, although I'd lean towards the latter. As far as the response  once the attacks started and the hurt feelings of the people who believe they didn't get accurate information in the near-term aftermath, the first of those two things is hard to judge and the second isn't all that important.

But that still leaves the screw-up in the security preparations. Even if it's negligence that resulted in four deaths, I don't hold that as a major screw-up of the Obama Administration. They make thousands of security decision, and they will screw some of them up. Someone should pay for it somewhere in the chain of command (assuming it is negligence), but this is small potatoes - it would be unreasonable to go from this to concluding that the administration as a whole is negligent.

I wish the worst thing we could say about the Bush Administration was that they screwed up and four people died.


UPDATE:  I need to do some additional research but I think Paul Ryan lied to the public on national television about a national security issue in the vice-presidential debate when he said there was virtually no US security in Libya compared to what we have at the Paris embassy, while knowing that CIA was nearby. He should get hit with this when he runs in 2016.

ICYMI*, Chait's optimist take on Obama and climate

Boiling it down to the essence:

After Obama’s original cap-and-trade plan failed, he started using the agency regulatory powers directly. (This is how Obama has been able to issue new regulations on cars, fuel, appliances, and future power plants.)

So far, there is one hole in his regulatory agenda: power plants that currently exist. This is, unfortunately, a very large hole, as these plants, mostly coal, emit 40 percent of all U.S. carbon emissions.... 

Then, a few weeks after last year’s election, the Natural Resources Defense Council published a plan for the EPA to regulate existing power plants in a way that was neither ineffectual nor draconian. The proposal would set state-by-state limits on emissions....Much like a cap-and-trade bill, it would allow market signals to indicate the most efficient ways for states to hit their targets—instead of shutting coal plants down, some utilities might pay consumers to weatherize their homes, while others might switch some of their generators over to cleaner fuels....Here is a way for Obama to use his powers—his own powers, unencumbered by the morass of a dysfunctional Congress—in such a way that is neither as ineffectual as a firecracker nor as devastating as a nuke: The NRDC calculates its plan would reduce our reliance on coal by about a quarter and national carbon emissions by 10 percent.... 

[NRDC's] Lashof predicted the following sequence of events. The agency will finish drafting its regulation scheme by the end of the year. It will then take about a year of public comments and revisions, at which point it will finalize its rule. That will be the end of 2014, just after the midterm elections. Another nine months to a year will be required to carry out the rule, which will get us to the end of 2015—and the international climate summit.

I've thought the most likely outcome is that Obama would do the wrong thing on Keystone and match it with a right thing on something else about climate. Not sure if the timing proposed above would make it the right thing to be matched with Keystone. This is far more important than Keystone, though, if it happens.

The remainder of Chait's article argued that Obama has used the regulatory structure as much as he could for small-bore climate actions, and if you set aside the bully pulpit issue then he's done a decent job. My impression, not backed by solid data, is that he passed up a lot of politically viable chances for small-bore actions on climate.

NRDC's proposal is here. Basically your state's average emission rate has to be somewhat better than a combined rate for coal and natural gas produced by current plants, with the combined rate determined by the mix of coal and gas you currently have. AFAICT if your state already has little coal and a lot of renewables, you don't have to do much, but if your state has a lot of coal power, the punched is eased somewhat. Many different trading devices allowed to reduce emissions rate, including purchasing efficiency efforts by consumers.

UPDATE:  clarified per the comment.


*ICYMI, ICYMI, means in case you missed it. I missed it when it came to that acronym for a while.

Trans Canada's Humpty Dumpty wrote Obama's environmental review of Keystone. Nothing unusual about it, sadly.

Brad Johnson writes that the Environmental Impact Statement giving a fairly decent review was written by, wait for it, a consultant hired for that purpose by Trans Canada, the applicant for the permit.

Conflict of interest, you say? Humpty Dumpty says a conflict of interest is what he says it is and no more, and in the best Washington DC scandal sense, my sense is that this is legal.

I should qualify that by saying I don't know federal environmental review (NEPA) law as well as California's equivalent (CEQA) law, but this would pretty much be allowed under California law, and CEQA is usually stronger than NEPA. Here I am banging on about this, nearly 6 years ago:

In most Bay Area cities, when a developer applies for a permit that requires the city to do environmental review, the developer pays a fee and the city then uses the fee money to hire expert consultants to prepare the environmental report. San Jose, by contrast, allows the developer to directly select and hire the environmental consultants who prepare an administrative draft of the environmental report. While San Jose may then modify the administrative draft, the developer-controlled draft is biased to play down the impacts. The direct expertise is in the hands of people loyal to the developers, not to the City or to a neutral evaluation process.

While most Bay Area cities have moved away from this, San Jose still hasn't, and it's still legal.  Almost as embarrassing, my own water district has the same bad policy (it's on my to-do list and we almost never issue complicated permits for private parties anyway, so there). Now under CEQA, an agency can get in theoretical trouble if it can be shown they rubber-stamped the document they received from the developer's consultants, but you know that happens anyway, and the bias will survive regardless. I'm not sure what the standard is under NEPA and whether they've met it, but given the scrutiny, they probably have.

There is another check on the developer bias - an environmental report can be challenged in court, and going too far in one direction will make it legally vulnerable. By express legal design, however, the courts favor agencies over plaintiffs for the more extensive environmental reviews, and many reviews never get challenged by anybody.

There's been some noise in California about "reforming" CEQA, mostly to make it easier to get projects done. I'm not adverse to some deals on it, but the type of reform I'm talking about hasn't seen much discussion.

For a contrary opinion to the idea that Keystone won't have much of a climate effect, read NRDC.

Obama immigration plan is too tough and too lenient

This has a climate hook, by the way.

Obama's plan, summarized here, takes 13 years to give citizenship to people who have been here just short of forever.  It also legalizes and puts on the same track the people who arrive the day before the proposal would be introduced as legislation.  These are two different sets of people both as far as our ethical obligations and our self-interest are concerned.

The starting point should recognize three categories, and then argue who fits in those categories:

1. Immigrants who have been here a very long time - these people are Americans, basically, and have about as much right and reason to be citizens as the rest of us.  Once we've figured out that they qualify in this category, the wait time should be short to make them citizens.

What constitutes a "very long time" is a devilish detail that could get much debate, but that debate doesn't remove the fact that the category is legitimate.  The law by necessity draws a bright line somewhere in a gray area.  That's just life.

2. People who arrived recently - these are different people.  They aren't Americans, they are prospective immigrants who happen to be here already.  They aren't integrated into society and they haven't given significant investments of their lives into building the country.  The key here is that we owe them no more than we owe other prospective immigrants, so it's up to us to decide whether it's in our interest to give them a different status than other prospective immigrants who haven't come here illegally.

3. People in transition to becoming immigrants - just because you have to establish bright lines in gray zones doesn't mean you have to deny the existence of a gray zone.  So here they are, people who haven't just arrived but also haven't been here for so long that the only ethical and reasonable thing to do is to fast-track them to citizenship.  Some immediate legalization plus lengthy path to citizenship seems appropriate.  Obama's one-size-fits all approach is probably best just for this group.

The climate angle is this aspect (from the link above):  "The White House draft wouldn’t just affect undocumented immigrants currently in America. Spouses and children of newly legalized prospective immigrants could also apply for an LPI visa themselves from overseas if they pass a background check and pay the proper fees."

If you add triple the number of immigrants from the current 11 million, that extra 33 million people will mean a 5 to 7 percent increase our national greenhouse gas emissions.  Global GHG emissions aren't affected in exactly the same way, but it will increase as these people move from lower-carbon footprints to our own.  Even if the effect is reduced by having a total cap on emissions, the cap itself will be determined in part by how easy it is to live within the cap, and increasing the population by 5 percent will make it that much harder.  I don't think LPI visa holders or green card holders should have the right to bring in new immigrants - they should complete the citizenship process first.

Two other points - first, Obama's 13 year proposal is a classic worse-than-unethical-because-it's-a-blunder.  The significant majority of these people are going to be Democratic voters.  You don't make them wait forever to vote, and you don't start off with 13 years as your opening bid and then negotiate something worse than that with the Republicans.

Second, I think the issue underscores the need for future international greenhouse gas regulation to recognize and reward countries for accepting immigrants.  While Europe and Japan have admittedly done a far better job than the US on climate over the last 25 years, it would be an interesting exercise to estimate what their emissions would have been if they had accepted the same level of immigration.  Still far less than the US per person, but maybe not quite as stellar.

Obama picks up the "it's not a coincidence" theme

From the Union's State:

Now, it’s true that no single event makes a trend. But the fact is, the 12 hottest years on record have all come in the last 15. Heat waves, droughts, wildfires, floods, all are now more frequent and more intense. We can choose to believe that Superstorm Sandy, and the most severe drought in decades, and the worst wildfires some states have ever seen were all just a freak coincidence. Or we can choose to believe in the overwhelming judgment of science and act before it’s too late.

I continue to think the fact that science has a story that provides closure, while science denial relies on "it's all just coincidences, one after another!", is a key advantage in pulling the fence-sitters to our side, and one we need to push a lot harder.  The most scientifically-convincing evidence is about the non-coincidence between warmth and greenhouse gases, but the public can think about the climate weirding throughout the world as additional non-coincidences.

Something else that's more of a tea-reading exercise - here's more of his speech a few paragraphs later:

Last year, wind energy added nearly half of all new power capacity in America. So let’s generate even more. Solar energy gets cheaper by the year. Let’s drive down costs even further. As long as countries like China keep going all-in on clean energy, so must we.

Now, in the meantime, the natural gas boom has led to cleaner power and greater energy independence. We need to encourage that. That’s why my administration will keep cutting red tape and speeding up new oil and gas permits.

Sadly, I think I agree with Eli that Keystone pipeline to take out oil sands will get built, despite my hopes last year (maybe John Kerry demanded freedom on this issue, but I doubt it).  There is another hand though - I'll bet the administration, if it okays the pipeline, will balance its destructive action with something that helps humanity.  They'll marry the two issues just like Obama did in his speech, although they might not frame them the same way as I do.


UPDATE -  the substance of Senator Rubio's response to Obama on climate:

When we point out that no matter how many job-killing laws we pass, our government can’t control the weather – he accuses us of wanting dirty water and dirty air.

Truth hurts sometimes.  More on Rubio soon.

UPDATE 2:  Just listened to David Sirota, who independently made the same prediction that Obama will balance Keystone approval with climate action.

You read it here first (or before these other guys, anyway)

(A little update:  a cooking fire from our Vietnam trip.  Time for biochar instead.)

One.  Eli says in 2009 that the developing world's role in climate mitigation should focus on reducing their emissions of black carbon by 90% or more in a decade, and now we learn that black carbon could be the #2 bad guy in the climate biz, displacing poor methane.  For my part, this is one of the few climate issues where I'm pretty optimistic.  Assuming the peak energy arguments are wrong, then economic development means wood burning cookfires and the like are gradually going to be less prevalent.

Another.  I argued last November that Obama should go big on immigration reform, getting immigrants who've been here for a long time on a reasonable path not just to legalization but to citizenship, and that seems to be what he intends.  Personally I doubt even the less-xenophobic faction of the Republican leadership will really go along with a real path to citizenship, despite the extremely vague statements of some.  To the extent they're obstructive, they'll pay the political price, but to the extent we get new voting citizens, it'll take a while before the Republicans live down their past practices.  Gun control is a good example that extends beyond immigration - the new groups are very supportive, especially Latinos.

A third.  At the same post above in November I did my own little calculation to determine there was only a 52% chance that all five conservative Supreme Court justices would defer escape to the Choir Invisible in the next four years, and last week Slate's slightly fancier look found a 54% chance that none would be no more in four.

Good enough for now.  I could add that Libya is looking good while Syria isn't, but maybe another time.

Time to show fingerprints on Syria issues

From NYTimes:

The Obama administration secretly gave its blessing to arms shipments to Libyan rebels from Qatar last year, but American officials later grew alarmed as evidence grew that Qatar was turning some of the weapons over to Islamic militants, according to United States officials and foreign diplomats.... 

The experience in Libya has taken on new urgency as the administration considers whether to play a direct role in arming rebels in Syria, where weapons are flowing in from Qatar and other countries.

The Obama administration did not initially raise objections when Qatar began shipping arms to opposition groups in Syria, even if it did not offer encouragement, according to current and former administration officials. But they said the United States has growing concerns that, just as in Libya, the Qataris are equipping some of the wrong militants....  

Relying on surrogates allows the United States to keep its fingerprints off operations, but also means they may play out in ways that conflict with American interests....

“....When you have an intermediary, you are going to lose control.”

The obvious reaction is either stop getting involved or stop worrying about showing your fingerprints. I'll go for Door #2.  I supported making the threat of limited military involvement in February and more actual support for the opposition in July, and I think either case would have shortened the time frame of the civil war and improved a future transition.  I remain concerned about ethnic massacres and religious instability in the post-Assad future.  Supporting groups that are less likely to do this, and especially getting Alawite opposition groups into a prominent position in the opposition military forces, could be crucial for the country's future.  Unfortunately, I think the war might still grind for months more, giving time for this option to work out.

For my less interventionist friends, I'll just mention that until recently I hadn't been too opposed to the drone war in Pakistan overall as a legitimate function of self-defense against Al Qaeda, but I'm reconsidering.  Al Qaeda in Pakistan isn't that big of a threat, while Pakistan itself desperately needs stability.  Pakistan is simply more important, and the drone strikes aren't helping.  Not sure if I'd completely eliminate them, but the go/no go decisionmaking needs to change.

The path to citizenship will be crooked for Republicans

A few more thoughts on the election and then I'll let it go:

Immigration.  The Republicans are in trouble on immigration and citizenship no matter what they do.  No change and they imitate the California Republican Party in relevance.  Much of their elite seems to realize this and want to compromise, but the Democrats should put them through a wringer and demand everything the Ds think should happen:  a reasonable pathway to citizenship for immigrants who have been here for a reasonable amount of time.  The 1987 amnesty applied to people who had been in the country for over five years, setting them on a path to citizenship seven years after being legalized.  Personally I'd lengthen the first period and shorten the second one, but it's a reasonable model for the future.

If the Rs refuse to pass something like this through Congress, then beat them up over it in 2014 while also getting the best compromise possible.  If the Rs do pass something substantial, then they still lose, because those legalized citizens will be Democratic voters for a generation and a fraction.  The Rs painted themselves into this corner, it'll be a long time to get out.  The white vote share of the presidential electorate is declining 2 points every four years, probably translating into a one-percent gain each cycle for the Democratic candidate.

Denialists lost seats.  In under-reported news, four out of five Congressional Representatives dubbed the "Flat Earth Five" by the League of Conservation Voters for denying climate reality lost their seats, and eleven of twelve generally anti-environment candidates also got beat.  These people were specially targeted and I've been looking for more specifics; the League needs to update their website (a little update here).  This is a nice bit of karmic payback for 2010, when most of the eight Republicans who voted to do something about climate lost their seats to primary challengers.

Citizens United redistributed income.  Some billionaires redistributed a few percent of this year's income to the somewhat-less wealthy without causing too much harm at the federal level in this election.  I'm not quite as sure they were harmless at the state and local level this cycle, and even the dumbest of rich people may learn to spend their unlimited campaign money more effectively in the future, again most likely by targeting it at the state and local level.  Watch out for next time.

Overturning Citizens United.  Obama will probably nominate 2-3 justices over the next four years.  Ginsburg, age 79 and with previous cancer bouts, should have retired a year or two ago but took a huge risk hanging on.   Hopefully she'll do the right thing, and Breyer, age 74, might do the same.  The conservatives' ages are 76 (Scalia), 76 (Kennedy), 64 (Thomas), 62 (Alito) and 57 (Roberts).  They'll do their best to last out four years, but might not have a choice.

Bahrain Silence = Climate Silence.  Juan Cole had an interesting post about continuing repression in Bahrain against the Shiite majority.  Too bad that Romney wasn't asked to compare his relative activism over Syria, which I liked, to the situation in Bahrain.  Maybe the Republican talking heads on the Sunday shows could still get asked - this is the worst situation of the US looking the other way, for somewhat obvious military reasons.

Hanging up my local politics crystal ball.  My water district had three elections, and I called all three wrong.  It doesn't make the results bad - I'm actually thrilled that our funding measure that needed two-thirds' support under California law received 72.65% support, and it includes $24 million that helps prepare for sea level rise along San Francisco Bay.  Staff's first draft had $5 million for this; I can (and will) take credit for much of the increased funding.

UPDATE:  forgot to add my plea to reduce the Senate filibuster bottleneck, along with the actually-still-alive hope that Harry Reid might do it.

UPDATE 2:  with actuarial tables and my trusty calculator, I get a 79% chance of four-year survival for each of Scalia and Kennedy, 93% for Thomas, 94% for Alito, and 96% for Roberts, leaving a 52% chance that all five will survive four years.  Their health probably makes this an underestimate, but severe disability might also get one or two of them to leave if they really couldn't serve.

Taking on our toughest challenges

The Christie cameo is probably no accident - enviros would love to split him off from the denialists.


P.S.  For my wonderful Santa Clara County voters, please vote Yes on Measure B!

If campaigns are zero-sum games, why will neither side talk about climate?

I've seen the justified lamentations about the lack of climate discussion in the campaign, and occasional discussion of why Obama hasn't talked that much about it.  (I provided my own explanation - Ohio.)  There's less discussion of why Romney doesn't talk about it, and little about why the interaction between candidates doesn't produce discussion.

In zero-sum politics, a disadvantage for one candidate should be an advantage for the other candidate, so why doesn't at least one of them push his opinion?

Unlike Karl Rove, I don't have THE answer, but I do have possibilities:

1.  This NYTimes article says their positions aren't that different.  Both acknowledge people are changing climate, so there's no reason to talk about that as opposed to their actual differences over energy policy.

I'm not buying it, first because it far overstates Romney's acceptance of climate change: "there remains a lack of scientific consensus on the issue."  That leaves plenty of room for a fight between reality and denial.  Also the strong difference in energy policy - support a growing sector versus abandoning it to China in favor of a declining and polluting sector - should easily reference back to climate.

The article does provide a service in saying Obama hasn't been completely silent.  And Romney's oblique references have been mocking Obama's intention to do something about it.  Let's refine the question to why both sides say so little instead of being silent.

On to more promising ideas.

2.  One or both sides overestimate the risk to their position.  If each side thinks the issue can backfire and hurt their side relative to the other, then neither will bring it up.  Both campaigns might think the issue has a 55% chance of helping the other side - that's not possible in zero sums, but would mean someone has bad political judgment.

I think this plays a role.

3.  It's not climate as an issue but their own ability to hurt themselves.  Maybe the candidates figure anything they say is more likely to motivate the other side than it is to motivate their own side, so again they keep quiet.  The analogy would be to Romney's relative silence over his abortion position, and the Democrats' relative silence about their somewhat-tepid opposition to torture and civil rights violations.

Problem with this one is that surrogates and Superpacs would likely go on the attack over climate, but everyone has little to say.

4.  It's like space policy - not enough people cared to force it on the agenda.  If Hurricane Sandy had happened in September then things might have been different.  If last summer's heat wave had more time to get into the public mindset, it also might have changed things.  The idea here though is that while the policy elites may be thinking of these things, most of the public isn't.

Sadly, I'm giving this last option the most credit, with an assist from overestimating risk.  It doesn't excuse a lack of leadership, but again helps explain it.  And it means those of us who care about climate have to do more.


For a little respite from climate silence, here's a debate between campaign surrogates with the last part discussing climate.  Romney's surrogate flat-out lies in the debate about current coal technology not producing pollutants, but admits that Romney would eliminate greenhouse gas controls that the EPA is currently phasing in under the Clean Air Act.  He also says the government should provide some money for energy research, but nothing to reduce carbon emissions.  So much for the NY Times article.

Obama's tightrope on European airline emissions

Obama and the Senate Democrats are playing dangerous games, hopefully with care, with Europe's attempt to reduce carbon emissions from airlines.  The EU is applying cap-and-trade not just to internal flights but also flights to and from Europe.  For that, the US lines up with China and Russia saying the Europeans shouldn't care about emissions that start outside of their own borders.

This is important even if you don't like cap and trade and prefer a carbon tax.  How one area that's controlling its emissions interacts with other areas that aren't has to be resolved or the system will break down.  The key method is some kind of carbon emission tariff, and the EU system for airlines parallels that. A legitimate complaint could be made that the EU is keeping all the money for the carbon allocation emissions - it should instead divide up the money for carbon reductions with the outside countries.

I'm going to be optimistic that Obama hopes to use the crisis to push for a global framework on controlling airline emissions.  Using a crisis to achieve a resolution better than the status quo ante is a standard technique, but a risky one. A global airline emission framework has been in the works, for fourteen years.  The EU has every reason not to wait, but hopefully their push forward can move the rest of the world forward.

Airline emissions also aren't trivial and likely to increase substantially.  Anyone who's calculated their own carbon footprint can see that months of efforts to control emissions get ruined by a single cross-country flight.

Electricity from renewable energy can transform ground transport but can't do the same in the air.  Jet fuel from biofuels is barely getting started, so this is a serious problem.  Let's hope we don't stumble.

Syria speculations

1.  Me from Aug. 31, responding to William's request for my prescience on Syria:

I'm clearly not too prescient about civil insurrections, but I think the bad guys will win in Syria, at least for the short term. The military hasn't seemed divided there, which is the only way for the unarmed good guys to win.

So, wrong again, somewhat.  Maybe penalties assessed against me could be reduced by my "short term" qualifier.  The Libyan and Syrian civil uprisings started about the same time but the former started peeling off military units immediately while the latter only had random low-level deserters until recent months.

My guess based on other countries has been that people power uprisings have to win quickly, within weeks, or not at all.  I should modify that to say that successful people power uprisings win quickly or not at all, unless they become civil wars which follow a different kind of trajectory.  I still think Syria is unusual though in the length of time it lasted as civil demonstrations before either fading away or transitioning to what it's now become.

2.  Pretty obvious it's a civil war now, and despite the only-recent change in terminology by the Red Cross, it's been a civil war for months now.  Also obvious that Assad's finished, although I still disagree that it was obvious a year ago.  The US government seems to agree he's finished.

3.  As rebels are starting to take territory, although not necessarily hold it, the situation is becoming more like Libya, including a downside that rebels become more vulnerable to air power.  I stand by the argument I made in February that we should provide more direct military assistance to rebels, particularly in creating safe havens.  The tens of thousands of people that have fled to Turkey in just the last few days could still be in a Free Syria, starting to organize the transition.

4.  My argument in February relied on negotiations first, with military assistance as a backstop.  That's changed - unless there's a coup/assassination, negotiations are useless now.

5.  The key issue now is planning that prevents massacres of Alawite and Christian minorities.  Peeling off enough of them to assist the rebels would definitely help.

6.  Speaking of Syrian Christians, it's interesting that conservative American Christians are so aggressive over Syria when most of them were far more reticent to support change in Egypt.  The obvious difference is the attitude of the regimes toward Israel.  I'm guessing conservative American Christians aren't all that interested in the fate of Syrian Orthodox synods.

7.  The rebels in Syria seem even more like a black box than the ones in Libya.  OTOH, things seem to be going okay in Libya (no takers still on my Libya bet offer).

8.  Not sure of the value of my military predictions, but here's one:  Assad won't use chemical weapons.  I believe without evidence that Western nations have secretly communicated to him their guarantee that the gain to him from using them will be outweighed by the Western response.  He might still be tempted to use them in extremis but at that point, hopefully, anyone given the order will realize the personal best option is to disobey/take government succession planning into their own hands.

UPDATE:  forgot to reference the one-month rule that started working in Libya around May 2011 - from then on, setbacks to the rebels never lasted more than 30 days, and each month left them more powerful than the month before.  My guess is the same rule may have started applying in Syria a month or two ago, and a month or two more of the same will indicate the eventual result.

The real process problem that Republican leaders have with Obama's immigration order

UPDATE:  per the comments, the change was a policy change and not a new Executive Order as it was originally reported.  Not sure that changes the analysis.)


Republican leaders have complained at great length about the alleged process problem with Obama's DREAM executive order, deferring for two years any action to remove illegal immigrants who were brought here as children.  They say it's not up to Obama to choose which laws to enforce, and the correct process is to change the law via Congress.

So this is silly- prosecutorial discretion is a standard executive function.  The Rs do have a process concern, just not the one they mentioned.  See the recently-passed transportation bill instead:

Thanks to the stubbornness of the Senate’s political odd couple — the liberal Barbara Boxer of California and the conservative James Inhofe of Oklahoma — Congress approved on Friday afternoon a serviceable transportation bill.... it does not include two anti-environmental riders pressed by the House — one approving the risky Keystone XL oil pipeline from Canada, the other preventing regulation of toxic coal ash waste from power plants....There are flaws, some serious. Financing for “transportation alternatives” — bike paths, pedestrian walkways and the like — suffered modest cuts. The bill also directs the transportation secretary to suspend environmental reviews of highway and transit projects costing less than $5 million, in violation of environmental law.

What's the relation?  Must-pass, popular legislation is a great place to push one's priorities onto one's opposition, especially unpopular things like stopping regulation of toxic coal ash.  The Rs didn't get all they wanted, but they did get some of it.

They wanted the same process for popular, must-pass legislation barely tolerating illegal immigrants brought here as children - they wanted to see what other, unrelated and toxic provisions they could get passed at the same time within Democratic legislation.  Now, it's no longer must-pass - the Ds can help their constituencies via Executive Order, so Rs have to actually offer something better than the EO to get them on board.

Expect the same thing, by the way, for whatever your favorite flavor of climate legislation.  It won't stay pure.  Sorry about that.  To whatever (limited) extent we can get similar climate results via EPA regulation under the Clean Air Act, that reduces Republican leverage, just as Obama did on the immigration issue.

Obama reconsidering buffer zones for Syrian refugees

Turns out that a strict talking-to didn't fix things.

CNN:

With the Syria deal in jeopardy and questions as to whether Syria will truly cease its military operations, particularly after Syrian troops fired across the border into Turkey, discussions within the Obama administration about creating a Syria-Turkey border "buffer zone" have intensified, State Department officials tell CNN. 

"It would be correct to say this idea is getting another look in the last week or so," one official said about the buffer zone.

Fox says Turkey isn't onboard, but who knows.  This should've been done some time ago, but better late than never.  Havens could allow the development of a Free Syria alternative to Assad, would put increasing pressure on the military to get rid of the leadership that's causing the loss of territorial integrity, and could allow Turkey and the West to filter out some of the jihadist elements that could make things worse.

Now that we've delayed and the opposition has lost most of the territory it controls, I'm less supportive of arming the opposition - it's less clear now whether that could save lives.  Arming some vetted groups in the safe havens though, instead of whatever crazies that Saudi Arabia wants to arm, could be a good idea.

Did Romney pay zero taxes in 2009? And 2008?

Romney's caught heat for a lack of transparency in his finances, especially compared to his father's presidential run.  He's now announced a delay in filing his final 2011 taxes, presumably looking for a time when people will be less resentful of a multi-millionaire paying lower tax rates than they do.

Back in the heat of the primary, though, Romney was forced to release his 2010 taxes and estimate 2011, but failed to do any more as the Democrats have demanded.  The Washington Post blogger guessed it was the exotic nature of his finances that made him hesitant to release them.  Let me try another guess.

The issue:

Among the details that may spur fresh debate: The returns show that Romney was able to cut his taxable income by $4.8 million because of losses carried over from previous years. Under the tax code, taxpayers who lose money from their investments can deduct those losses against their capital gains. If a taxpayer ends up losing so much that the losses outweigh the gains in a given year, the rest of those losses can be carried to the next year and subtracted from income.

Capital losses are carried over from previous years - the years that Romney still refuses to release.  The carryover means he had no net capital gains in 2009, possibly in previous years as well.  The only taxes he paid in 2010 were capital gains - he had no earned income.

Unless he had earned income in 2009 that he didn't in 2010, which seems unlikely because he's been running for president since 2006, then the information he has given suggests he paid no taxes in 2009, or even earlier if he took large capital losses in 2007 or 2008 that carried over for subsequent years.

I'm no tax expert so maybe I'm missing something, but this looks like dynamite to me.


UPDATE:  looks like others have had the same thought.  More links here.

Endangered Species Act also at risk along with Obamacare tomorrow

Obamacare undergoes Supreme Court scrutiny tomorrow, and we'll hear in a few weeks/months as to what the Court does.  The challenge is whether Congressional ability to regulate interstate commerce allows the government to require people to buy health insurance, paying a penalty if they refuse to do so.

Wading through the mumbo jumbo, I think we ultimately have two choices.  One is that except in the most strained and patchworked circumstances, Constitution places almost no restraint on the ability of the federal government to act like a state government in terms of economic regulation.  Politics, not courts, restrain the scope of federal government.  This is the choice that courts have made since the 1930s.

The other choice is that except in strained and patchworked ways, the Constitution doesn't allow the federal government to operate like a modern integrated nation-state in terms of economic regulation.  The government could figure out weird work-arounds involving tax incentives in some cases, but otherwise we'll just have to hope that government is the problem and not the solution, because we're not going to let it operate as a solution.

These are the ultimate choices, and a decision to partially overturn Obamacare doesn't send us all the way to the second choice.  It does start us down the road though, with consequences to follow.

Next in line could be the Endangered Species Act, which has been challenged often and unsuccessfully for involving non-economic, intrastate activity.  It's the nature of species dwindling enough to be eligible for listing as endangered that also makes them less important economically, and they rarely locate their last habitats on the border between states instead of inside a single state.  Lower courts haven't worried about this though, based on Supreme Court precedent since the 1930s.

The Supreme Court never reviewed this particular challenge though, and Chief Justice Roberts, back when he was a wee appellate judge, signaled his own concern with the ESA.  If the Supreme Court changes how we understand the Commerce Clause, things can change for environmental regulation.

A lot is dependent on what the Court decides over Obamacare, and on who gets to make the replacement appointments between now and January 2017.

Romney opposed both major legal challenges to ObamaCare

Romney used to support the individual mandate to buy health insurance.  This Democratic National Committee ad lays out some video clips about it, some of which are cherry-picked, but the overall discussion and the part about Wyden-Bennett are spot-on:


Glenn Kessler has a disingenuous dismissal of the ad.  In particular he claims that when Romney was referring to "we" Republicans as supporting Wyden-Bennett, Romney didn't include himself in that "we" and that Romney was not endorsing the mandate.  Read the full language at Kessler's post, but it seems to me that "we" is easily understood by non-Kesslers.  More tellingly, Kessler daintily omits the context and fails to quote the language in the USA Today Op-Ed by Romney supporting a tax penalty for those who don't buy insurance, which is the functional equivalent of a mandate.

Kessler actually uncovered a nugget that was real news, though, even if he failed to recognize it.  Romney said this:

I would not mandate at the federal level that every state do what we do, but what I would say at the federal level is we’ll keep giving you these special payments we make if you adopt plans that get everybody insured. 

While this language doesn't support the DNC's argument about a mandate, it's the same type of argument that conservatives are litigating against in Obamacare.  They say the withholding of Medicaid payments unless states expand the program is illegal control of the state governments by the federal government, and that's exactly what Romney wanted to do with the mandate program - require states to impose mandates or lose their funding.  While this argument isn't expected to do very well, the Supreme Court decided to consider it.

Romney's piled up a record that he'll have to run against if he becomes the Republican nominee.

Romney's Kinsley Gaffe, in context

I'll leave 'poor' Mitt Romney alone for a while after this, but I wanted to highlight Chait's identification of Romney's statement that he's "not concerned with the very poor" as a Kinsley Gaffe, where a politician makes the mistake of saying something that the politician actually believes.

Romney has deliberately lied about Obama, changing Obama's statement about the McCain campaign by removing the context in order to claim it was Obama's statement about himself.  Adding context to Romney's statement doesn't help him much though - he's not concerned because the poor have a safety net, and he even generously offers to fix any holes "if" any exist.  What this indicates is his true belief that there were no holes in the safety net before the Great Recession, and that nothing the Republicans have done or plan to do will create more holes.  He further believes that the very poor don't work, or apparently don't even want to work, so they're unaffected by increased unemployment and depressed wages.

Republicans with responsibilities at local and state levels are often a little more realistic than this (I know some of them), so that a former governor can actually believe this is pretty depressing.  Massachusetts is a prosperous state, so Romney didn't have to focus on the poor in quite the same way as elsewhere, but that's not a good enough reason.

Chait's one mistake is creating a distance between Romney and his campaign.  Whatever Romney "really" believes eliminate [EDIT:  should've said "does not eliminate"] his primary responsibility for his campaign.  And his Kinsley Gaffe tells us about Romney himself.


UPDATE:  Romney backpedals and acknowledges the safety net has holes, throwing under the bus those people who backed him with statements that the poor have more than enough safety nets.  Given that he's been running for president for over six years now, I'd expect him to be able to identify at least one of those holes and what he'd do to fix it.  Since he hasn't, we can weigh his promise to identify and fix the holes with an appropriate level of credulity. 

Glenn Greenwald is primarily responsible for the failure of progressive legislation since 2008.

The reasoning's simple:  Greenwald's part of the left, just like Obama and the Democrats who controlled the House and had a filibuster-proof majority in the Senate for a while.  Greenwald's side failed to pass enough progressive legislation, therefore Greenwald's primarily responsible.

If you don't like this reasoning, complain to Greenwald:  he used the same reasoning to say voters will determine that Republicans are not primarily responsible for the failure to pass progressive legislation, laying responsibility instead at Obama's feet, especially with repeated reference to the 60-person Senate majority.  Greenwald does some really good work on civil liberties but mixes it in with this terrible reasoning.  Fault lies primarily with the Republicans, secondarily with the Democratic Senators (and some Representatives) who refuse to vote in defense of the middle class and for scientific reality.  Obama is not a Prime Minister.  Maybe somewhere Greenwald has laid out how he thinks Obama could've pushed legislation through, but he certainly didn't make that point when I listened to him.

That's not to say Obama is blameless - Greenwald rightly points to the HAMP mortgage modification failure as a self-inflicted wound.  On legislation though, he and we have to deal in reality.

Speaking of reality and legislation, we might want to look ahead.  A best-case scenario in 2012 elections will bring Obama back along with marginal control of the Senate and House.  I'm guessing more likely that Obama returns and we only get one of the two congressional houses, and even worse scenarios are very plausible.  The  best case scenario, in other words, still has us in worse position than 2009-2010.  Things generally get worse in mid-term elections for the majority party, and the majority party starts getting tired and often corrupt after many years in office.  

I think the best chance to pass climate legislation for another four years was the one that we had before the 2010 elections.  It really is a shame that many enviros failed to push for cap-and-trade, because as marginally, politically viable as it was, it was the best shot for years to come.  A national carbon tax was not politically meaningful and will take a lot more changes of political fundamentals before it will be.  Some enviros missed the boat last time.  We can still work together though do things on a piecemeal basis and at the state and local level instead, and gradually enforce carbon regulation through the Clean Air Act and other laws.

Obama good, Obama ungood

The good news is decision that gay rights and human rights "are one and the same" in a speech by Hillary Clinton, one that states the Obama administration will work for this concept internationally, and put some money behind it.   They also acknowledge imperfections here in American, while being studiously silent on gay marriage.

The foreign policy realists would say this will cost us internationally, just as any other human rights effort will cost us.  They'd be correct in some areas, although other places like Europe it should actually help our image and soft power.  Long run is a different story though, as history kind of arcs somewhat toward justice.

How this gets reflected in domestic politics will be interesting, because people who are somewhat conservative on gay rights domestically, say hypothetically a political science professor who supports civil unions, would fall on the far left of the spectrum of the countries with the worst discrimination.  The natural Republican reflex of opposing everything Obama does will then start looking pretty awful in the context of horrible abuses overseas. Rick Perry lost no time decrying "special rights" promotion, but the actual Republican nominee will probably lose votes while irresolutely dodging the issue.  Score one for the good guys.

The ungood side is the decision to overrule FDA's authorization of selling the Plan B contraceptive as a standard over the counter item.  Double plus ungood not because of the politics but the false claim that the science gives any reason to do this.  To the FDA's credit, they more or less stated their disagreement and weren't suppressed from doing that.  This is standard, almost, Republican-style War on Science.  Chris Mooney's book on the subject noted the Democrats were guilty too of this offense, but just not nearly to the same extent.  One strike against the Obama Administration in this regard.

I don't want to end on that note, so I'll add another piece of good news.  Younger Americans are significantly more accepting of climate science than older ones.  Now consider that even some Republicans acknowledge their antipathy to gay rights is a dying cause.  The very few scientists who don't accept climate science are also aging out (page 12) and not being replaced by anyone except lawyers, so the younger generation is being educated the right way.  I'm not sure how many demographically-challenged positions the Republicans really want to take, but maybe they should reconsider.


UPDATE:  Chris Mooney on Plan B here.  Similar grasp of the obvious.