Selective Executive

July 1, 2014 Leave a comment

Last year, I noted that President Barack Obama seemed to be selectively leveraging his executive muscle in favor of certain constituencies and not doing so to benefit others. Following the passage and effective date of the Affordable Healthcare Act (“ACA”), the President acted, probably in illegal fashion, to help the business community by delaying application of the new law’s burdens on employers. (As Jon Stewart noted at the time, the administration did not afford other constituencies, like young people, the same benefit.) What the President was willing to do– circumvent Congress to achieve a desired policy outcome– last July for businesses under the ACA he was not willing to do for immigrant families being split up under deportation laws last November, suddenly bemoaning that Congress was standing in his way (“When it comes to immigration reform, we have to have the confidence to believe we can get this done, and we should get it done. The only thing standing in our way right now is the unwillingness of certain Republicans in Congress to catch up with the rest of the country.”).

This seesaw pattern has continued in 2014, and others are catching on. Earlier this month, Glenn Greenwald noticed another executive power incongruity emanating from the White House, this time in the foreign policy context. Like his selective enforcement of the ACA, the President likely illegally circumvented Congress and released five Guantanamo Bay prisoners in exchange for the return of an American prisoner. The exchange provided a public reminder of many things, one of the most basic of which was that the U.S. prison at Guantanamo Bay remains open and operative, contrary to the President’s longstanding promise to close it. As Greenwald points out, “the sole excuse now offered . . . for this failure [to close Guantanamo] has been that Congress prevented [the President] from closing the camp.” He concludes: “either the president broke the law in releasing these five detainees, or Congress cannot bind the commander-in-chief’s power to transfer detainees when he wants, thus leaving Obama free to make those decisions himself. Which is it?”

If the President’s actions do not contradict his words, they at least illuminate his priorities. The President may truly desire all of the policy outcomes he professes to seek. By leveraging his executive might in pursuit of some of those outcomes and not others, though, he reveals which goals really matter to him. The above examples show that, for President Obama, helping businesses and securing the return of an American POW were high-priority goals, while helping immigrant families and closing the Guantanamo Bay prison are lesser priorities.

If there is a lesson here, it is not a new one: when evaluating a politician’s performance, we cannot merely rely on her own words. It is appropriate to measure a politician’s record against the rubric she makes for herself through campaign promises and other goal-setting pronouncements. In conducting that measuring, however, we must look to the politician’s actions, and we must look at them in context, not in isolation. When an elected leader shows that he is willing to exceed the legal confines of his office in order to achieve a goal, we should accord little weight to his complaint that the same legal obstacle, elsewhere ignored, precludes his achievement of another ostensibly desired goal. We may not reasonably be able to expect forthright honesty in our leaders’ self-critical evaluations, but we ought to demand that degree of thoroughness of our own critical evaluations of our leaders.

Categories: Action, Current, Legal, Politics

The Internet’s Thin Veil

June 29, 2014 Leave a comment

Setting aside the net neutrality policy debate, the internet’s level publishing platform does not seem to have allowed for a multitude of dislocated voices so much as a partial reorganization of collective publishing entities in a way that is not so different from the newspapers and magazines that controlled periodical publication during the wholly print era. For those writers coming of age today, the internet’s vastness actually may make it even more difficult to catch the eye of those in control of the most well-attended publishing outlets.

What may be different today, though, is the relative ease with which readers may examine an individual’s writings, musings, exercises, and even drafts posted online before the individual accepted an invitation to join a popular publishing platform. Sometimes, as in the case of Clay Travis, who posted multiple unfavorable comments of Fox Sports not long before accepting an offer to join the network, it is quite easy to find this content. Other times, a small mistake can unlock a trove of old material.    Read more…

The Full Legacy of Public Policy Decisions

May 31, 2014 2 comments

The United States Department of Veterans Affairs is in the news these days, and not inappropriately. Tales of bureaucratic inefficiencies are legion, of course, and maddening as it is that this particular tale directly and significantly affects the lives of those arguably least deserving of abuse at the cumbersome hand of the federal government, it cannot be surprising that bureaucratic inefficiency adversely affects people in meaningful ways. This is not an unacknowledged problem.

Probably coincidentally, this recent spotlight on the VA’s lethal shortcomings has illuminated another, less recognized and thankfully less lethal, feature of our public policy apparatus: governmental policy decisions can give birth to longer, sometimes much longer, legacies than likely were ordinarily contemplated at the time the decision was made. The VA, of course, is not immune to this effect, as evidenced by the fact that there is a Wilkesboro, North Carolina woman receiving a monthly payment from the VA in ongoing satisfaction of a pension for her father’s military service in the Civil War. The story of Irene Triplett and her father, Mose Triplett, is a somewhat interesting one from a historical perspective, as is to be expected of such stories.

The Triplett family’s story also serves as a reminder that public policy decisions can be fraught with costs– broadly defined– that extend, in some respects unpredictably, long beyond their commonly anticipated scope. This is as true in war as it is in any other public undertaking. In 1974, there were nearly 28,000 families receiving veterans’ benefits as a result of service in Spanish-American War, fought for three and a half months in 1898. Last year, the VA paid $2.2 billion to nearly 219,000 families for service in World War II, which ended in 1945. (Click the image and scroll to the bottom of the page for interactive functionality.)

longcostsofwar

Rarely, one must believe, do policy makers or citizens contemplate at the time the country enters into a military conflict that the financial costs of the decision to go to war might extend over 150 years beyond the conclusion of that war. And while the discussion thus far has emphasized the long life of the financial commitment of an engagement in armed conflict, we are only beginning to recognize the scope of the legacy of the real medical and social costs of armed conflict that the tallying of VA benefits is unlikely to capture in full.

This phenomenon is not limited to the military context, of course. Many laws have “sunset” provisions that purport to set an expiration date, which legislatures subsequently may extend, for the legislation. Judicially enunciated policies can operate similarly. The Supreme Court justices themselves are an example. President Gerald Ford appointed John Paul Stevens as an associate justice in 1975. (President Richard Nixon appointed Stevens to the Seventh Circuit Court of Appeals in 1970.) Justice Stevens served on the Supreme Court until 2010, four years after Ford died. Ford thus continued to influence public policy from the grave. Indeed, Stevens, who is still alive, continues to influence public policy through speeches and other appearances to this day.

Humans are not great at contemplating the long-term consequences of their actions. This cognitive deficiency extends, with consequences, to their enactment of public policies. Rather than punt difficult decisions to future generations, the better approach may be to limit such policies to short-term effectiveness with opportunities to reconsider them down the road.

Categories: Current, Legal, Politics

April Fools

April 30, 2014 Leave a comment
Here then, a brief comment at the end of this the taxiest month. We are beginning to learn that big tax returns are not such a thing to be celebrated. Receiving our return on our zero-interest loan should not be an excuse to go on a spending spree. Still, it is better to receive a return than be required to pay up on the fifteenth, right? Again, no. Receiving a return means that the principal amount of that zero-interest loan, gathered through periodic withholdings during the year, was too high. Better to pay more of your invested money at the end then have paid too much in the past.

What are the roots that clutch, what branches grow
Out of this stony rubbish? Son of man,
You cannot say, or guess, for you know only
A heap of broken images, where the sun beats,
And the dead tree gives no shelter, the cricket no relief,
And the dry stone no sound of water. Only
There is shadow under this red rock,
(Come in under the shadow of this red rock),
And I will show you something different from either
Your shadow at morning striding behind you
Or your shadow at evening rising to meet you;
I will show you fear in a handful of dust.

Categories: Privatize, Tax

Placebo Placebo

March 31, 2014 1 comment

A well-recognized component of therapeutic drug testing is comparing the experiences of people receiving the drug with those of people not receiving the drug. In short, the testers want to know whether the drug actually does anything. In these tests, the control group– the people not taking the drug– often receives an inert substance the group nevertheless believes to be the drug being tested. Sometimes, despite receiving no medication whatsoever, members of the control group experience improvements in their symptoms. Rather than from a targeted, scientific testing process, this effect also can result from a long, steady, general drumbeat about the efficacy of a therapy. The touted ability of vitamin C to prevent the common cold appears to be such an example.

When people discuss the placebo effect, they usually apply a negative connotation. If the appearance of the placebo effect isn’t a disappointment, as in the case of a tested drug that is less effective than hoped, it’s a fraud, a shorthand way of saying Emergen-C doesn’t really work.

That is, unless you believe it does, in which case it might.

Instead of dismissing the placebo effect as shorthand for failed expectations or a dead end, perhaps it is an opening for new exploration. (Perhaps, and likely so, such exploration already has occurred.) If the mind, through delusion (conscious or unconscious), belief (actual or fraudulently induced), or faith (earnest, blind, or false), can achieve physiological results in the body, we may need to consider manifestations of that capability like the placebo effect an entry point rather than a concluding point, something to be harnessed or developed, rather than dismissed.

Categories: Listening, Science

Blizzards of the Southern Wild

February 10, 2014 2 comments

ajcsnowcropHistory shows again and again how nature points out the folly of man

How did this happen? How did one inch of accumulated snow bring a major American city and a region to a grinding and extended halt in the span of an afternoon?

People raised and residing in communities and regions where snow is a common seasonal precipitate tend to focus on snowfall amounts when they look at Southern snowfall situations. They measure their winters in how muchs and how longs, so that focus makes sense. Others classify their winters, from a snowfall perspective, in ifs, however, and when they have snow-related troubles, the amount of snow has little to do with the cause and manifestation of those troubles.

“How could one inch of snow shut down a city?” That starting point not only will cause the questioner to miss the real cause of the problem, but it indicates a basic misunderstanding about the questioner’s own, inevitable snow troubles. When it comes to problem-inducing snowfall events in different regions, the difference is a matter of degree, not of kind. Some communities, like Detroit and Boston, merely have higher tolerance thresholds than others, like Atlanta and Birmingham. The “how much?” question is relevant to the determination of those thresholds, but, for every community, significant seasonal struggles only materialize “if” that threshold, whatever it may be, is met. It could be two inches in Hattiesburg or two feet in Harrisburg; that twenty-two-inch difference is not really important.

People  who live in communities that are familiar with and expect and are prepared for snow laugh when those who do not take anticipatory actions like cleaning out grocery stores and cancelling school. I have learned that these are not irrational, panic-driven actions, however. When even an inch of snow falls in an area equipped to handle no more than zero inches of snow, vehicular and even pedestrian transportation can become very dangerous. When some of those anticipatory actions are not taken, real problems can result.

Infrastructure deficiencies are a central cause of winter weather problems. Communities that only rarely receive any snow are unlikely to have or have in sufficient quantity rudimentary implements and equipment like snow plows, shovels, salt trucks, and tire chains. In such cases, even an inch of snow on roads and sidewalks can quickly become a broad sheet of ice that would present a movement challenge regardless of latitude.

In addition, a community’s more traditional infrastructure– the road system– can play a role. Atlanta is known for having bad traffic on a good-weather day. While a lack of city planning may bear some of the blame, historical and daily demographic realities, while not unrelated, may be of a magnitude that simply overshadows the other factors. Georgia’s population has doubled over the last forty years or so. Additionally, with the well-known exception of Washington, D.C., no city of at least 250,000 people experiences as large a workday population increase as Atlanta (62.4%; next largest is Tampa, Florida, at 47.5%). Choreographing the movement of that relative volume of (overwhelmingly automobile) commuters is messy on a good day.

More than anything, it was traffic, and the weather’s disruption of typical traffic flow (and not the fact of the weather itself), that was central to most of the well-publicized problems Atlanta and the region experienced last month. For example, some outside the region seemed to believe that the reason many schoolchildren spent the night at their schools was because their parents were too afraid of the snow to venture out to pick them up. In reality, the schools were inaccessible to parents due to the gridlocked status of the roads, just as the children’s homes were inaccessible to school buses. The story of Grace Anderson, the baby born on the interstate while her pregnant mother and father attempted to reach a hospital, is more fully illustrative of the circumstances.

From an emergency management response perspective (as distinct from an emergency preparedness perspective), then, the failure here– and the flaw in the perception of those observing from outside the region– was a failure to appreciate that the problems that would arise would be problems of infrastructure, rather than possibly irrational responses to weather qua weather.

_______________________________________________________________

Another winter storm is set to arrive across the Southeast beginning today.

Categories: Current, Politics

Eminent Corporate Domain: Double-Dipping and Alter Egos

January 31, 2014 Leave a comment

From the first-ever eminent domain case to one of the most recent: Last week, the Georgia Supreme Court decided Dept. of Transp. v. McMeans, No. S13G0614 (Jan. 21, 2014), a case involving the condemnation of land owned by a man named Brian McMeans. McMeans Leasing, Inc. (“MLI”), a corporation solely owned by McMeans, operated as a business on the land.

McMeans filed an answer acknowledging ownership in the condemned property. MLI then filed an “amendment” to McMeans’ answer, asserting that McMeans’ original answer was for MLI; that it was a leasehold tenant on the property; and that it would suffer business-loss damages as a result of its removal from the property. McMeans filed another answer for himself, asserting that he would suffer damages from a) loss of the use of the property; b) interruption in business income; c) loss of business; and d) damage to business; in addition to the value of the property itself. McMeans then sought to amend his answer to add a separate business loss claim. The Georgia Department of Transportation (“DOT”) moved to strike MLI’s answer and McMean’s answer adding the business-loss claim, and the trial court granted DOT’s motion. McMeans immediately appealed.

The Georgia Court of Appeals reversed the trial court and, citing Dept. of Transp. v. Acree Oil Co., 266 Ga. 366 (1996), ruled that business loss is recoverable as a separate element of damages where the landowner owns the business and the taking results in a total loss of the business.

The Georgia Supreme Court reversed the appellate court. The court agreed with the court of appeals that, under Georgia law as enunciated in Acree Oil Co., business loss is recoverable as a separate element of damages (separate from the value of the taken land, the primary measure of damages in condemnation cases) when the business belongs to a lessee other than the landowner or when the landowner owns the business and the taking results in a total loss of the business. Basic tenets of corporate law apply to distinguish as separate legal entities McMeans and MLI, even though McMeans is the sole owner of MLI. Because MLI “owned the business located and operated on the condemned property,” MLI, not McMeans, was the party that could properly assert the business-loss claim.

Was McMeans’ error here the result of a basic misunderstanding of corporate law principles or a lack of precision in pleading? The inelegant series of answers and amended answers filed at the beginning of the action suggests he appreciated to some degree the legal distinction between himself, a natural person, and MLI, a corporate person, each with different, concurrent interests– an ownership estate and a leasehold estate, respectively– in the condemned realty.

My initial read of the case was that McMeans was trying to double dip: he wanted to claim business-loss damages for himself and for MLI. The Georgia Supreme Court appears to have interpreted the case that way as well, because it emphasized its corporate-law analysis, seemingly admonishing McMeans for forgetting that he and MLI were separate entities, and not engaging in any significant analysis of condemnation-law.

Maybe McMeans was trying to double dip by simultaneously respecting that he and MLI were separate legal entities and acting as MLI’s alter ego. The condemnation-recovery principle from Acree Oil Co. does seem to offer a potential avenue for McMeans, though:

Post-taking business losses can be recovered as a separate legal element in instances when the business belongs to a separate lessee or when the business belongs to the landowner and there is a total taking of the business.

Because “[t]he distinct corporate entity MLI owned the business located and operated on the condemned property,” the business-loss claim belonged to MLI, not McMeans.

While the court viewed this case under the first prong of the Acree Oil Co. language quoted above, as an “instance[] when the business belongs to a separate lessee,” the second– an “instance[] . . . when the business belongs to the landowner and there is a total taking of the business,” also seems to apply. McMeans, the landowner, does “own the business,” after all, even as “the business,” MLI, leases the land from McMeans.

Alternatively, as a matter of practical corporate law practice and parlance, “the business” and MLI may not be synonymous here. The possible confusion raised in the previous paragraph does illuminate the rub of this case, however. The administration of the power of eminent domain, in its compensatory facet, must balance the interests of those with direct interests in the taken property against those of the general public, the ultimate source of the compensatory funds. Double dipping by someone like McMeans harms the public at large. Additionally, when a corporate personhood element is in play, respecting corporate formalities is important in every case in order to protect the interests of, for example, leasehold tenants that lack a close legal relationship to the landowner.

Whatever entity “owns the business” in the McMeans case, there was only one business operating on the taken land, and the state therefore should pay, at most, one business-loss claim. In McMeans, as a practical matter, it did not make a difference whether McMeans or MLI brought the business-loss claim, as sole owner of MLI; McMeans was going to receive the money either way. By allowing only MLI to bring the business-loss claim, the court reached the correct result: it protected the citizens of Georgia from paying a windfall, and it protected the independent right of others with leasehold interests to recover in future condemnation actions.

Categories: Current, Legal, Privatize
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