31 March 2006

In this case, a court appointed an attorney for a prisoner on his appeal. The attorney admits to having done nothing more than format the prisoner's brief. Yet, in 2-1 decision, the 6th Circuit Court of Appeals says that this doesn't matter. Ironically, the basis of the appeal itself is ineffective assistance of counsel.

An adversary system only works if you have effective defense counsel. The willingness of judges to ignore gross derlictions of duty on the part of defense counsel in very serious cases (this case is a murder case) is appalling and a mockery of justice. (Similarly, five judges on an en banc panel in the 5th Circuit thought that it was O.K. that an attorney for someone in a death penalty trial slept through some of the trial at the counsel table in open court.)

This blog is part of Ian Best's Taxonomy of Legal Blogs at 3L Epiphany, under the category "General Blogs - Law and Culture, Economics, Politics, etc." I encourage you to go and see the entire collection, probably the most comprehensive list of domestic law prof and practitioner run law blogs in existence. It is a wonderful resource, particuarly for anyone want to do quick layman's class research regarding the cutting edge issues in the legal world.

A March 24, 2006 opinion piece by John E. Banzhaf III in the Chronicle of Higher Education entitled "When Law Professors Don't Know the Law" (at B20) has very little good to say about the law professors who backed the law school positions in litigiation over the Soloman Amendment in the case of Rumfield v. FAIR.

How could so many nationally known law professors at top law schools . . . have vbeen so wrong in how they cose to challenge the Solomon amendment and in asserting that the statute violated the First Amendment under no less than four different constitutional theories? Every single justice who participated . . . ruled without exception that every legal theory the law profesors advanced was without merit.

If all those top constitutional scholars honestly believed the arguments that they publicly presented . . . they were so clearly mistaken that it casts some doubt on their competence. To incorrectly predict one Supreme Court decision is not unusual, but when all of their different constitutional arguments fail to sway even one justice (and even to the point of writing a concurrence), red flags should go up.

On the other hand if the law professors knew that their constitutional arguments had virtually no chance of being accepted in the high court, there is a certain hypocrisy in making those claims over and over again in public, including perhaps in their classes, and even a reckless disregard of the constitutional challenge that could easily backfire -- which it did.

As Oliver Wendell Holmes reminded us, "law is nothing more pretentious than the prediction of what courts will in fact do," and law professors are supposed to be learned in the law and to teach it to law students. . . . It is not, and should not be, a statement of what law professors teaching constitional law, no matter how learned, think it should be or how they hope it just might be, based upon their concerns about the underlyingh interests of gay people or their desire to control acess to their campuses.

Instead, they owe their law students, and indirectly the public, the benefit of their best efforts to predict how the justices would rule. When all of their predictions turn out to be so wrong, it only leads credence to the arguments that we law professors live in ivory towers oblivious to the real world, or that our publicly expressed opinions are based more on liberal guilt than hard-nosed and meaningful real-world analysis.

In short, in the view of Professor Banzhaf (he is himself a law professor), the nature of the job of a law professor is to be a prophet and to teach prophecy.

In my opinion, however, this isn't the job of a law professor. First off, predicting how courts will rule is just that, prophecy.

While Professor Banzhaf complains that the law professor's theories were rejected (indeed derided by many members of the court), the truth of the matter is that I can't point to anyone who got the Supreme Court's ruling in the case right. No one predicted that the Court would rule based on the argument that the power to raise Armies allowed Congress to mandate access of military recruiters to private campuses even in the absence of financial strings, and little in the case suggested that the courts would be inclined to go there. Likewise, I can't recall anyone who would have predicted that the Court would rule that while military recruiters must be given access to campus to recruit that even the administration is allowed to institutionally organize protests against their presence designed to make them unwelcome and treat them unequally compared to other recruiters.

Indeed, the fact of the matter is that the Supreme Court routinely makes unanimous decisions, and these unanimous decisions routinely overturn equally unanimous decisions of the courts below. Predicting the decisions of the Supreme Court is uniquely difficult because unlike other Courts no precedent binds it. Losing in a unanimous decision from the United States Supreme Court is not a sign that your argument was frivilous.

Indeed, often, particularly when circuits are split, it is the result that is mandated by our system of precedent. Each circuit must follow the precedents in their circuit, and if one of those is wrong, in the opinion of the U.S. Supreme Court, then the trial judge and court of appeals panels in that circuit are required to make the wrong decisions even if they strongly suspect that every judge of the U.S. Supreme Court might rule otherwise. Furthermore, such a split is one of the clearest pieces of evidence that what the U.S. Supreme Court does is to make law based on policy choices, rather than act as a neutral umpire. Learned appellate justices considering precisely the same issue of federal law, not infrequently come to opposite and unanimous conclusions.

Likewise, it isn't unheard of for the U.S. Supreme Court, facing the same issue on multiple occassions, to flatly reverse itself. The case of the constitutionality of executing a defendant who was seventeen at the time the crime was committed is one of the most recent examples of this phenomena. The constitutionality of the death penalty itself, is another. This is particularly true in the venue of constitutional law, which actually makes up a minority of the court's docket. Courts are often very rigid in adhering to precedent in the case of statutory interpretation, because Congress can always change a law if it doesn't like the way that it has been interpreted. But, they tend to be less rigidly bound by precedent in interpreting the Constitution, because they are the only people in the position to correct a ruling that in hindsight appears to be a poor decision, absent the most extraordinary circumstances.

Indeed, while the Constitution has been amended a number of times in the past 230 years, only a handful of amendments (the 11th, part of the 14th, the 15th, the 17th and the 24th) were in any meaningful way a response to decision of the U.S. Supreme Court on Constitutional issues. The 11th arose from concerns about the scope of sovereign immunity for states under the Constitution, the 14th, 15th and 24th all addressed a continuing inability to have the Courts use sufficient vigilance to prevent racial discrimination, and the 17th settled a long line of litigation over the Constitutionality of the income tax.

Constitutional law today, looks nothing like it did when today's law professors were in law school, and less still like it did a century ago. There is every reason to believe that when today's law students are senior law professors, that constitutional law will evolve into something equally different.

So, if it is almost inherently impossible to predict what the Supreme Court will do, what is the job of a professor of constitutional law and why? The answer, far from being out of the ivory tower, has everything to do with what practicing lawyers do, and is reflected in how law is taught.

The reality of life as a practicing lawyer is that you take your clients as you find them. In a large metropolitan area, you may have only a dim idea of the temperment and judicial philosophy of the judge whom you happen to draw, and that judge may have nothing in their background that gives you any clue about how they will rule on your case. The head of the criminal division of the general jurisdiction court that handles felony cases in Denver, for example, as he explained in the April 2006 issued of "The Docket", which is the Denver Bar Association's monthly journal, spent his legal career prior to being a judge as an insurance defense lawyer (i.e. the kind of lawyer who defense you when, for example, you have been in a car accident and are sued) who had almost no contact whatsoever with criminal cases.

As a practicing lawyer, you rarely have the luxury to ponder what the "right" decision in a case will be, and your audience is surprisingly rarely the judge. Your job, instead, is to be aware of all of the legal theories that are out there, to identify the ones that could do your client any good, and to argue them persausively, most often to opposing counsel. Not infrequently, the most persausive argument in the eyes of the opposing counsel with whom you are negotiating, or even the trial judge, will be an argument that has not been a winner in similar appellate court cases decided on the subject. Almost as often as not, even when a judge rules in my favor in a case, the ruling is on the basis of an argument that I felt was legally less likely to win in the unlikely event of an appeal, than another argument that I made that was rejected. The law in inherently muddy in a very large class of cases.

Yes, as a practicing lawyer, part of the job is to predict what the Court will do. But, in practice, the outcome of really clear cases are clear, not because of the clarity of the appellate court rulings interpreting that area of law, but because the evidence is exceptionally uncontrovertable. And, yes there are safe harbors of settled case law in ordinary run of the mill cases. If the Plaintiff's evidence in a traffic accident case includes a videotape of your client running a red light, or you are caught red handed with a bag full of cocaine in a search that a bus full of people see's you consent to, or a payment is not made on a straightforward promissory note, you have to fold. But, the more multi-dimensional a case is, the less rarely cases like it arise (and Rumfield v. FAIR is not a run of the mill case of a type that courts handle every day), and the more the evidence is equivocal, the harder it is to predict a result. Very few cases with these kinds of issues settle for the amount demanded.

Indeed, contrary to the claim of Professor Banzhaf, cases like Rumsfield v. FAIR do not inevitably wind up in the U.S. Supreme Court. The U.S. Supreme Court often denies certitorari in even constitutional cases of great public interest (when it takes just 80 or so cases a year, it must), and particularly in multi-dimensional cases asking for injunctive relief, elaborate settlements are the norm rather than the exception. Most of the big school desegregation cases, for example, were resolved with settlement agreements, as are most of the big cases involving envirnomental regulation. Cases like these settle precisely because no one can be sure how they will turn out on the merits, and go to the U.S. Supreme Court primarily because the non-economic stakes are so high, the parties have deep pockets, and the dispute is so stark because of the entrenched positions of the parties, that no settlement is mutually agreeable. Another administration might have settled this case, but this particular configuration of parties could not for institutional reasons that apply to each of them, although predicting the intransigence of parties is far outside the usual law professor's purview.

Customarily, constitutional law classes do not even spend so much as a day or two in which the professor teaches the "black letter law" or purports to know what the rule of law is in a case. Law classes are taught socratically. Students do most of the talking and the emphasis is on having them argue intelligently and orally, with only modest preparation, in the classroom, in the face of withering criticism from a more skilled rhetoritician, the professor.

Constitutional law classes are also exceptionally transparent. While physics and chemistry classes, for example, only occasionally provide students with the journal articles that gave rise to the conclusions stated in the textbooks, and history classes are generally taught primarily with secondary sources except at the most advanced level, constitutional law classes are universally taught by having students read verbatim from the cases decided by the judges themselves, with the students left to draw their own conclusions regarding the rules of law enunciated therein. A typical constitutional law textbook is written 90% by the U.S. Supreme Court and 10% by the professor (or less), although the professor, for some reason, gets 100% of the royalties.

Arguing that law professors are not competent because they cannot predict how the U.S. Supreme Court will rule, then, is hardly a valid criticism of them as law professors, because they do not "owe their law students, and indirectly the public, the benefit of their best efforts to predict how the justices would rule," in any case. Telling people what the law is, is the job of judges. Many law students wish that law professors were in that business, but I have yet to encounter a law professor who actually did that with regard to any point of law.

The largest medical study of the efficacy of intercessory prayer in healing has found that it has no effect on patients' recovery from heart-bypass surgery, researchers announced on Thursday. Patients did just as well when church groups did not pray for them as when they did.

30 March 2006

One of the distinctive things you see in the biographies of intellectual figures in the pre-World War II era, and especially the 19th century, is the collections of letters that these individuals left behind. Anybody who was anybody was always dashing off a letter to this leading mathematician or noted author or political figure. Richard Feynman was one of the very last intellectual figures to have done much of this, and his letters are now published.

Then, for a while, this seems to have stopped happening. As populations grew, while mass consumer society kept the number of leading figures in any given field rather small, fame put more distance between the average educated person and the notable people of the day.

But, as in so many things, the Internet has changed everything. One of my blogroll listees, for example, recently send an e-mail to the publishers of the nationally known commercial Mathematica publishers to correct some technical errors in one of their equations. My father, who is a retired professor, has let a couple of publishers of books with geographical sounding titles but few maps know of their deficiencies. I have corresponded with several of my favorite authors, again, by e-mail. We aren't alone in this.

Part of the phenomena is that the Internet makes dashing off an e-mail a relatively easy thing to do. But, that isn't all. Equally important, the Internet, satellite and cable TV, satellite radio, the rise of art house theaters, reduced publishing costs accompanied by rising populations, the expansion of higher education to include many more institutions, and the increased specialization of academe, among other developments, have conspired to increase the pool of prominent people in our society dramatically since the 1950s and 1960s.

It wasn't so long ago that there were 4 television networks in the nation, foreign and independent films were completely unavailable outside half a dozen major cities, a single top 40 list could accurately represent the listening habits of most of America, and the Ivy League and a handful of other institutions had a virtual lock on graduate education. There were a small number of big fish swimming in the pond of the national elite.

The percentage of the population that is college educated (letter writing has generally been a hobby of the educated and comfortable) has quadrupled. But, the number of prominent people in our society has increased far more rapidly. As a result, not only is it easier to write letter again, but the odds that somebody you write to will reply or even take action as a result of your letter has also significantly increased.

This is a healthy development. Elites need not be distant Olympians. A vibrant culture of letter writing is like a parallel processing computer, in which society's maximum effort is devoted to answering worthy questions and communicating knowledge and insight. Blogs, of course, also help this process.

Robert Putnam may be right. Social capital, expressed in face to face contacts between people may be in the decline. But, the Internet is increasingly stepping into the breech and building up a new world of social ties, based not on geography, but on mutual interests.

If you aren't a Colorado lawyer, feel free to skip this post. If you are, read on.

CRCP 16.1

Colorado Rule of Civil Procedure 16.1, which governs state courts of general jurisdiction in Colorado, requires everyone filing a case in Colorado District Court to file a "civil cover sheet". This is a state mandated form with boxes to check on it, one of which says that your case seeks money damages in excess of $100,000. If you don't check that box, you must either follow a streamlined version of civil procedure which greatly limits the ability of the parties to seek information from each other with depositions and interrogatories and the like, or file another piece of paper that opts out of the rule. The cover sheet isn't signed, but it must accompany a signed complaint. The complaint itself, pursuant to Colorado law, often is not permitted to include a demand for a specific dollar amount of damages.

Diversity Jurisdiction and Removal

In order to transfer a case from state court to federal court, in a case where the defendant is not being sued based on federal law, you have to show both that the Plaintiff and Defendant are from different states, and that the amount in controversy exceeds $75,000. You also have to "remove" the case within 30 days of receiving notice in writing that you are allowed to remove it. As I've described at some length previously, multi-state corporations are not considered to "live" in states which are neither their state of incorporation, nor the state where their headquarters is located.

Henderson v. Target Stores

Target is an out of state corporation in Colorado, which was sued by a Colorado resident in a slip and fall case in state court in Colorado.

The Plainiff provided a Complaint, that had no specific money demand, as required by Colorado law, and a civil cover sheet, stating that more than $100,000 was demanded. The next time there was an affirmative statement in writing from the Plaintiff that more than $75,000 was demanded was almost six months later in response to discovery in the case.

The U.S. District Court in Colorado was not impressed, when Target said that the civil cover sheet shouldn't count to start its 30 day deadline to remove the case to federal court because it wasn't signed by the attorney and had procedural purposes related to Rule 16.1 in Colorado. The rule it enunciated was quite simple:

If a complaint is accompanied by a civil cover sheet with the over $100,000 box checked, you have 30 days from receipt of that document and the Complaint that comes with it, to remove the case to federal court based on diversity jurisdiction.

While this case is only a trial court decision, I expect that it will be universally followed going forward.

Markos [Moulitsas] Zuniga: There are plenty of people in our party who can handle policy and wonk out with the best of them. But clearly we don't have many people who can win. Rather than let our wonks go to waste, we'd like to get Democrats elected so we can set them free.

H.R. 1212, Colorado's bill to allow emergency contraception to be prescribed by physicians, sponsored by State Senator Betty Boyd (she was a member of the State House when it was introduced and elevated to the State Senate in mid-session when a vacancy arose), has passed Colorado's General Assembly. It now remains to be seen if Governor Owens will allow it to become law (either with or without his signature).

Owen's has vetoed previous emergency conception bills, which would have mandated that hospitals inform rape victims of the option, regardless of the hospital's religious affiliations, out of free exercise of religion concerns. This year's bill which doesn't mandate that anyone do anything, doesn't raise those concerns, so its prospects with the Governor are not clear, but it does not face a certain veto.

Prior to 1875, the United States has no laws restricting immigration of any kind. While selected exclusions for convicts, prostitutes and immigrants from China were enacted over time, there was not a comprehensive law limiting immigration to the United States until 1924. There was no effort to control the U.S. land border until 1891.

Migration between Puerto Rico and the mainland United States has been completely unrestricted since 1917 when Puerto Ricans were granted United States citizenship.

The 1924 law, which was in effect, with various amendments until 1952, dramatically limited immigration to levels that remain the lowest in U.S. history (also influenced by the Great Depression and World War II which both discouraged immigration). Immigrants from Latin American and Canada, however, were not subject to the quota systems of the 1924 Act, even though large waves of Latin American and Asian immigration largely dates to the period after the mid-1960s.

In 1952 quotas were established based on national origin, with certain exceptions.

My post on The Humvee Problem (which is more historical than partisan) has received quite a bit of attention in the military blogging world, generally with favorable reviews, although a commentor at the Free Republic caustically notes: "Our enemies act on ecstatic revelations from their god. We act on the advice of lawyers."

Defend Colorado Now organizer Fred Elbel conceded the amendment would have little fiscal impact if passed because the federal government requires the state to pay for K-12 education and emergency care for all residents.

Proponents claim that most of their alleged costs of illegal immigration involve federally mandated K-12 education for children of undocumented immigrant mothers, who may themselves be U.S. citizens, Medicaid, also federally mandated for emergency services and about half of which they claim is for births to children who are, of course, U.S. citizens the moment that they are born, and prison costs, which they don't plan to discontinue.

One expense that might be erased outright was "paying for the births of illegal aliens" through Medicaid - not an emergency procedure in his opinion, [John] Andrews said.

So, the main impact that proponents would like to see is to have poor immigrant mothers have home births without medical assistance. Thus, we can know that, at least, we saved $5,000 (the cost of a typical delivery) that might have benefitted an illegal alien, when we are paying $12,000 a year for life (the average Medicaid cost of covering a disabled person) for health care for an American child who developed lifetime disabilities as a consequence of complications of pregnancy, instead of $1,500 a year (the average Medicaid cost of covering a healthy child), until the child grows up and gets a job that provides health insurance.

“[E]very empirical study of illegals’ economic impact demonstrates the opposite . . . undocumenteds actually contribute more to public coffers in taxes than they cost in social services.” . . . each year undocumented immigrants add billions of dollars in sales, excise, property, income and payroll taxes, including Social Security, Medicare and unemployment taxes, to federal, state and local coffers. Hundreds of thousands of undocumented immigrants go out of their way to file annual federal and state income tax returns.

Yet undocumented immigrants are barred from almost all government benefits, including food stamps, Temporary Assistance for Needy Families, Medicaid, federal housing programs, Supplemental Security Income, Unemployment Insurance, Social Security, Medicare, and the earned income tax credit (EITC). Generally, the only benefits federally required for undocumented immigrants are emergency medical care, subject to financial and category eligibility, and elementary and secondary public education.

There is certainly no indication that undocumented immigrants are not paying non-income and payroll related taxes, which are the sole sources of tax revenue for local governments in Colorado, and a significant source of funding for the state government in Colorado. For example, almost all state and local funds for roads in Colorado come from gasoline taxes, sales taxes and property taxes.

According to the Colorado Department of Revenue (on the 2005 Colorado Individual Income Tax Guide), the average household with an adjusted family money income of $20,000-$30,000 pays $1,681 a year in state and local taxes other than state income taxes, and the average household with an adjusted family money income of $30,000-$40,000 pays $2,060 a year in state and local taxes other than state income taxes. The average state income taxes in those income ranges are $524 and $822 a year, respectively, a number that itself depends on family size. If the average undocumented immigrant family is larger than the average family in Colorado, the amount of state income taxes owed would be less. If the average undocmented immigrant family is smaller than the average family in Colorado, the amount of state income taxes owed would be more.

Also, even if undocumented workers aren't paying Social Security and Medicare taxes (and while some are, often with false or borrowed social security numbers, many are paid under the table and don't), they also aren't getting that benefits that are paid for with those taxes. Undocumented workers also make very little use of state higher education (and often do so at out of state student rates, if at all), even though this is one of the many purposes for which state general fund dollars are used.

Enforcing Initiative 55 would cost money as well, despite the fact that it would result in little or no additional revenues for governments. Do we really want to spend the money, for example, to have librarians across the state conducting citizenship tests for every patron prior to issuing library cards and everyone who simply wants to sit in the library and read books, for what is a free service in any case? Should bus drivers demand proof of citizenship when riders seek to pay a cash fare for their trip across town? And, if they don't, do we really want to spend the money to have the state defend a lawsuit from some Tom Tancredo clone insisting that they do?

Initiative 55 is a bad bill that even the proponents agree won't save Colorado money.

#10 from Brian on March 29, 2006 06:48 PMBoth Ford and GM have excess manufacturing capacity. If the pentagon wanted they could easily get a whole factory tooled up to produce whatever vehicle variant they decide upon quickly. The biggest delay would be the tooling changes required and ironing out the supply chain to the plant.

Both Ford and GM would leap at the chance to produce vehicles and avoid laying off part of their work force. But neither Ford nor GM could design a vehicle operate in that kind of environment. They no longer have the engineering experience with combat and explosives.

#11 from Joe Katzman on March 29, 2006 06:55 PMBrian,

Licensed production works.

It is potentially a classic win-win situation. Here's hoping someone with the power to make that kind of thing happen is reads this post.

From a recent e-mail from Ken Gordon, a State Senator running for Colorado Secretary of State:

After Columbine I carried the bill to do background checks at gun shows. The guns used in that tragedy came from the Tanner Gun Show. I was at an event and a woman approached me. She said, “Are you sponsoring the gun show background check bill?”

I said, “Yes.”

She said, “Is it going to pass?”

I had counted the votes. I said, “No.”

She said, “Why not? Everyone thinks that bill should pass. After what happened at Columbine, this is horrible. Why isn’t it going to pass?” She was angry, and because I was the only one there, she was angry at me.

A coalition needs 61 seats in the 120 seat Knesset to form a government.

Acting Prime Minister Ehud Olmert declared victory for his centrist Kadima party in Israel's elections Tuesday, vowing to act on his own if necessary to draw Israel's final borders and "painfully" uproot Jewish settlers if negotiations with the Palestinians are not possible.

His party was broke away from the Likud Party, under the guidance of Ariel Sharon, and has pushed for moderation and a solution to the Palestinian conflict involving withdrawal from many Israeli settlements (about 70,000 people in the West Bank) and a final line of division demarkated by a wall that does not quite follow the traditional West Bank-Israel proper dividing line.

Likud, as a result, lost a massive amount of support going from the largest party in the Knesset with 38 seats, to the fifth largest party with just 11 seats.

U.S. News and World Report, for all its faults, is the touchstone for law school reputation, and its latest rankings will officially be released on Saturday.

My alma mater (and also Ken Salazar's), the University of Michigan, comes in #8 this year. The University of Colorado Law School ranks 52nd. The University of Denver's law school comes in 70th place. The top 100 schools (out of about 170+ nationwide) are ranked. Click on the link for GPA, admissions percentage and LSAT details.

One professor at the Navy's graduate school has real worries that the U.S. Navy presents a target that is vulnerable to new opponents like China:

Q: In short, smart, precision-targeted weapons like cruise missiles are going to become increasingly cheap and available to any government or group that can afford them. The Falklands War between Britain and Argentina gave early indications of the vulnerability of big platforms, didn't it?

A: I think so. The lessons there include: how many British submarines did it take to pen up the entire Argentine navy? Two. Simultaneously, the Exocet missile proved the slow-moving capital ship's vulnerability. Today, the Chinese aren't developing aircraft carrier battle groups, but brilliant sea-going mines that know how to maneuver, supersonic anti-ship missiles -- which means the Falklands War on steroids -- and super-cavitation torpedoes, which create a bubble of air in front of the torpedo, letting them move at hundreds of knots per hour. The Chinese have an explicit "swarming" doctrine that can best be characterized as sea power without a navy. In this new naval antagonism that's emerging, our potential enemies are not trying to emulate what we're doing. Instead, they're innovating in very thoughtful, effective ways.

Certainly, the U.S. Navy is aware of these threats. They have elaborate anti-submarine warfare systems. They have a couple of dozen anti-mine warfare ships. They have point defense systems and other anti-missile weapons designed to stop missiles. They have missiles and carrier based aircraft to keep opposing fighter aircraft out of range. But, there are lingering questions over whether these will work well enough when push comes to shove. This is particularly a concern for logistics ships like tankers and sea lift ships, and for ships carrying Marines. These ships often have less of an escort than aircraft carrier groups against these kinds of threats. The Falklands War is so carefully studied by military strategists, because it is the only significant Naval campaign in recent history.

The U.S. military has abandoned plans to develop a vehicle called the Walrus, a transport airship (basically a blimp) which could carry 500-1000 tons of cargo at speeds greater than a fast sealift ship, over land without regard to roads, and over sea, from point to point.

This leaves fast catarmaran ferries like the USS Swift with about 600 tons of cargo capacity and speeds in the vicinity of 50 knots as the only medium load, intermediate speed cargo vehicle.

Currently, the choice is between slow and port dependent sea lift ships, which go 20-30 knots and carry thousands of tons of cargo, which must be loaded and unloaded at fairly deep water ports in many cases, and fast (several hundred knots) but low capacity airlift, which is limited to about 22 tons on a C-130 short range transport aircraft, 70 tons in the C-17 long range transport aircraft, and a little more (perhaps 120 tons) in a long range C-5 transport aircraft. The C-5, unlike the C-130 and C-17, also can't readily land on field airstrips, and instead requires a regular airport just as commercial freight planes do.

A plan to use small airships as reconnaissance platforms is still under development.

This puts me on track for about 2,000 before the first anniversary of the blog. We'll see.

I still wish blogger had category tagging, but I lack the enthusiasm to start a new blog to break up the various categories of my posts. The plan to blog roll more news sources is also on hold for the time being.

Scalia did not recuse himself. Chief Justice Roberts did not participate because he was on the Court of Appeals panel in the case.

I emphasize the statements of Justice Kennedy below as he is likely to be the swing vote in this case. I am also quoting liberally, but primarily from quotations or paraphrases of the proceeding itself, rather than from analysis from the various sources involved, and in each case with a link providing attribution and access to the fuller story from that source. The full transcript is here.

Scalia asks the first question of Katyal (who has an exceptionally clear voice & projects very well, he hardly needed a microphone), but otherwise the justices ask relative few questions of Katyal, who gets opportunity for long discourses. I found most interesting when Katyal put the military commissions and habeas in their historical context, for example noting that from General George Washington onwards, the military commissions were precisely circumscribed.

11:43, SG Clement starts, as before, he uses no notes or anything else on the podium, having so well memorized/rehearsed his pitch, but about a third of the way through, he did uncharacteristically have to retrieve one of the briefs from the counsel's table, for a few minutes. Overall, there were definitely far more questions of the SG, with several justices interrupting his responses in order to restate their questions. Kennedy's frustration with the SG was palpable and it didn't seem to me that the SG was able to satisfy Kennedy. Breyer, Souter, and even Stevens, also had to interrupt the SG to get him to answer their questions.

Scalia's key comment of the SG was that this was merely a "suspension" of the writ of habeas corpus, which he seemed to view as okay, so that everything else that followed was also okay. But that didn't seem to garner support from the rest of the bench.

Breyer's key questions to the SG were that the Authorization for Use of Military Force (Nov. 2001) did not authorize the Guantanamo commissions or the related detentions, removal from civil courts, etc. A number of the detainees were not actually captured on the battlefield, but were turned in by informants much later, and not necessarily charged with war crimes as such. Breyer emphasizes that these are "terribly difficult and important constitutional questions."

By 12:10 p.m., several of the justices on the north side of the bench were obviously glancing at the clock in the back of the room, but they had to wait another 25 minutes. In contrast to the ERISA case, where the justices kept the pages busy running back to get volumes of the US Reports or to pass notes, the pages had much less to do during the second argument, as the justices were more clearly focused on the oral argument in front of them.

12:28-12:31, Katyal did his rebuttal, with only 2 short questions from Stevens.

Hard to predict the outcome, but I doubt that there will be a 4-4 affirmance of the DC Circuit, as the SCT will assuredly want to have the last word. I predict that Kennedy will join Stevens-Breyer-Ginsburg-Souter for a 5-3 decision. Alito asked very few questions, Thomas none at all, and Scalia's questions were somewhat calmer than I've seen in the past.

From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing "military commission" scheme may well fail.

The Court spent comparatively little time on the issue of whether it has jurisdiction to proceed to a ruling on the merits in the case of Hamdan v. Rumsfeld (05-184), but Justices Stephen G. Breyer and David H. Souter strenuously -- and repeatedly -- advanced the point that the Court would have to find it has jurisdiction in order to avoid the very difficult constitutional question of Congress' power to abolish all forms of habeas challenge to the treatment of war-on-terrorism detainees. It was a point that seemed likely to draw the support of enough Justices to prevail. . . .

With only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused), it appeared that Justice Anthony M. Kenne[d]y might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed trouble[d] about the legitmacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees' lawyer, Georgetown law professor Neal Katyal, that the Court might well "think there is merit" in his argument that the tribunals were not "properly constituted." In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals' authority to try.

The liberal four Justices, Breyer, Souter, Ginsburg, and Stevens were clearly skeptical of the government case. Justice Scalia clearly favors the government position. Justices Alito and Thomas while largely silent are expected to favor the government.

Several justices seemed deeply concerned that the government had gone too far in its plans to hold a special trial for Osama bin Laden's former driver on a conspiracy charge.

Some were downright indignant over the Bush administration's claim that a new federal law bars the high court from ruling in the case of Salim Ahmed Hamdan. . . .

Justice Anthony M. Kennedy questioned Solicitor General Paul Clement about the legal safeguards for the trials. Justice Stephen Breyer also asked what would stop the president from holding the same type of trial in Toledo, Ohio, not just at the military prison in Guantanamo Bay, Cuba. . . .

Alito, the newest justice, suggested the court should wait until Hamdan's trial is over to allow him to question whether charging him with conspiracy violates the laws of war, as Katyal contends.

Souter takes a slightly different tack: If you accept that the military commissions apply the laws of war, don't you have to accept the Geneva Conventions? he asks. Clement responds that the commissions can "adjudicate that the Geneva Conventions don't apply."

"You can't have it both ways, " Souter retorts. The government can't say the president is operating under the laws of war, as recognized by Congress, and then for purposes of defining those laws, say the Geneva Conventions don't apply.

Sure it can. Clement replies that if a detainee has such a claim, he should bring it before the military courts. Even Kennedy seems alarmed now. He confesses that he's troubled by the notion of bringing challenges about the structure of the tribunal to the tribunal itself. "If a group is going to try some people, do you first have the trial and then challenge the legitimacy of the tribunal?" he asks incredulously.

Clement objects to his word choice. "This isn't just some group of people," he says. This is the president invoking his authority to try terrorists.

Breyer goes back to the DTA and whether it stripped the court of jurisdiction to rule on Hamdan's claims. He asks how the court can avoid "the most terribly difficult question of whether Congress can constitutionally deprive this court of jurisdiction in habeas cases." . . . .

Later Breyer will add: "You want to say that these are war crimes. But this is not a war. These are not war crimes. And this is not a war crimes tribunal. If the president can do this, he can set up a commission and go to Toledo and arrest an immigrant and try him." To which Clement's answer is the fail-safe: "This is a war."

And even as it starts to be clear that he is losing Kennedy—who asks whether Hamdan isn't "uniquely vulnerable" and thus entitled to the theoretical protection of the Geneva Conventions—Clement stands firm in his claim that the Guantanamo detainees are different from regular POWs because, well, they are.

A key comment came from Justice Anthony M. Kennedy, the closely divided court's moderate-conservative swing voter. He told Solicitor General Paul D. Clement that he has "trouble with the argument" that, because of the new law, court challenges to the commissions must wait until the trials are over.

"I had thought that the historic function of habeas corpus is to . . . test the jurisdiction and legitimacy of a court," Kennedy said. . . . Kennedy pitched one approach, under which the court might uphold the military commissions, as the administration wants, but require that they proceed in accordance with the Geneva Conventions, international treaties that protect war detainees, as its opponents urge. Then, he suggested, the court could "just remand it for [a lower court] to go into all these arguments." . . . Justice Stephen G. Breyer spoke in strong terms about detainees at the U.S. prison at Guantanamo Bay who are "claiming -- some -- that they were tortured," and of the prospect that the president would use a commission to "pick up an alien and not have any trial at all except for that special commission."

At least five justices — John Paul Stevens, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer — appeared ready to reject the administration's argument that the Detainee Treatment Act, passed and signed into law after the court accepted the case in November, had stripped the court of jurisdiction. . . . Justice Breyer, in his questioning of Mr. Clement, practically begged the solicitor general to endorse an alternative approach that would permit the court to avoid "the most terribly difficult and important constitutional question of whether Congress can constitutionally deprive this court of jurisdiction in habeas corpus cases."

The alternative at hand was the one offered by Mr. Hamdan's lawyer, Neal Katyal, a law professor at Georgetown University. That was to interpret the Detainee Treatment Act as applying only prospectively, stripping federal courts of hearing future cases brought by the Guantánamo detainees but permitting at least the Supreme Court to continue with this one. . . .

For example, Justice Kennedy was questioning Mr. Clement on the government's position that even if the court had jurisdiction, it should abstain from ruling on the validity of the military commission until after Mr. Hamdan's trial. Justice Kennedy said he found the argument troubling, pointing out that Mr. Hamdan was challenging a "structural invalidity to the military commission," its lack of compliance with protections guaranteed by the Geneva Conventions.

"The historic office of habeas corpus is to test whether or not you're being tried by a lawful tribunal," Justice Kennedy continued. "And he says, under the Geneva Convention, as you know, that it isn't."

Mr. Clement replied that Mr. Hamdan could raise that argument, which he predicted would fail, before the military commission itself. There was no reason "why that claim has to be brought at this stage in the procedure," he said.

Justice Scalia then intervened, observing that "I thought we established earlier" that "in the normal criminal suit, even if you claim that the forum is not properly constituted, that claim is not adjudicated immediately." Rather, "it's adjudicated at the conclusion of the proceeding," the justice continued.

"Well, of course, that's true," Mr. Clement said.

Justice Scalia went on: "We don't intervene on habeas corpus when somebody says that the panel is improperly constituted. We wait until the proceeding's terminated, normally."

"That's exactly right, Justice Scalia," Mr. Clement said.

Justice Kennedy objected. "Is that true?" he aside. "If a group of people decides they're going to try somebody, we wait until that group of people finishes the trial before the court intervenes to determine the authority of the tribunal?"

"With respect, Justice Kennedy, this isn't 'a group of people,' " Mr. Clement replied. "This is the president invoking an authority that he's exercised in virtually every war that we've had." . . . .

Mr. Clement asserted that the Detainee Treatment Act would allow a detainees to argue in federal court, after conviction by a military commission, that the commission's procedures were illegal or unconstitutional.

Justice Ginsburg then asked him to "straighten me out." She said, "I thought it was the government's position that these enemy combatants do not have any rights under the Constitution and laws of the United States."

"That is true, Justice Ginsburg," the solicitor general answered.

Mr. Hamdan's lawyer, Mr. Katyal, appeared to get considerable traction with his argument that the crime of conspiracy, with which Mr. Hamdan and nine other detainees awaiting military commissions have been charged, is not an appropriate crime for trial before a military commission. If a majority agrees, this might provide a narrow way of resolving the case.

Hamdan's lawyer, "Katyal, [is] a Georgetown University Law Center professor who was a clerk for Justice Stephen Breyer a decade ago."

The justices seemed especially intrigued with the nature of the crime alleged, conspiring with al-Qaida. At least four justices asked questions related to the charge.

Katyal called the conspiracy charge so broad and unfocused that "a little old lady in Switzerland who donates money to al-Qaida, and that turns out to be a front for terrorist acts ... might be swept up within this broad definition. That's why international law has so rejected the concept of conspiracy."

Katyal's hypothetical doesn't come from nowhere. He is quoting a Justice Department lawyer's statement of the government's position on the issue.

Footnote on Republican Malfeasance.

As an aside, the Senate proponents of the Detainee Treatment Act, Senators Graham and Kyl, inserted fake testimony into the Congressional record in a manner contrary to customary practice regarding prepared remarks which make clear their "non-live status", which no one else in Congress was privy to until after the bill passed, in an effort to make legislative history, implying that the fake testimony was a basis for votes on the legislation. Senator Brownback, who was given a cameo role in the fake testimony, even lied to a reporter claiming that it had taken place. CSPAN, of course, proved otherwise. Page 23 of their amicus brief is particularly damning, where it states "the Congressional Record is presumed to reflect live debate except when statements therein are followed by a bullet . . ", and also claimed in the brief that Congress had the testimony available prior to the vote.

In my opinion this is grounds for Jefferey A. Lamken and Sheila J. Kadagathur, at Baker Botts, who signed the brief, to be disbarred if they indeed did know that, as C-SPAN revealed, these were not live comments. Misrepresentations, even by strong implication, to a tribunal regarding a material matter before the U.S. Supreme Court, is a serious violation of the rules of professional conduct. Likewise, Senators Graham and Kyl should face ethics charges in the Senate for this misconduct. Somehow, I am not surprised to see more Republicans make shit up to support the war on terrorism and to attempt to deceive the U.S. Supreme Court.

Conclusion.

Now, we wait. Also, given the administration's past history in these cases, it is likely to try to change its policies, or seek legislative relief to change the playing field, given the perception that it may lose in the U.S. Supreme Court.

Afghanistan has elected a government, and adopted a constitution on January 4, 2004.

This constitution, by the way, makes Islam the official religion (at Article 2(1)). Article 2(2) provides that "Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law." Article 149 provides that the constitution cannot be amended to cease to require adherence to Islamic law. It adopts Islamic law as a constitutional principal which no other law can violate (Article 3), thus, constitutionally mandating a death penalty for any Muslim who converts to Christianity. And, Article 118 allows judges to be trained in Islamic jurisprudence rather than secular law.

I wonder if President Bush can say, when he reflects on his adventure in Afghanistan that he "saw every thing that he had made, and, behold, it was very good." Genesis, Chapter 1, Verse 31. Or, in the words he prefers: "Mission Accomplished!"

Afghanistan probably is better off. The new Taliban is kinder and gentler than the old one. I'm sure that the old regime wouldn't have been willing to free a man facing a death sentence for converting from Islam to Christianity because "he was mentally unfit to stand trial." (This is likely a polite diplomatic and legal fiction.) Afghanistan has a democratically elected government with elections more fair than many countries that haven't had free elections for decades. It has a government more capable of remaining in power without foreign military aid than the one in Iraq, which has eight or ten times as many foreign troops on its soil, despite having a similar population and land area to Iraq, although it is still fighting its own low key civil war with the remnants of the Taliban. But, it is hard to call the war in Afghanistan an overall success.

27 March 2006

On Tuesday, March 28, 2006 at 11:00 A.M. Eastern Standard Time, the United States Supreme Court will hear oral arguments in the case of Hamdan v. Rumsfield. It is arguably the most important case on the docket. It concerns the power of the President to establish, without statutory authority, a system that holds enemy combatants indefinitely without recourse to the judicial branch, and to similarly try them for alleged crimes in military tribunals that are little more than kangaroo courts.

More than three dozen briefs have been filed on Hamdan's side, largely arguing that the military tribunals established by the White House to try the detainees are illegal. By contrast, only a handful of briefs have been filed on the other side, backing the administration's expansive view of executive authority. . . .

The covers also carry the names of the big-ticket New York, Washington, D.C., and other national law firms that are bringing their muscle to bear, from Cravath, Swaine & Moore to Covington & Burling to Akin Gump Strauss Hauer & Feld to Jones Day.

"The blue-chip firms are all in this case, and it's the senior partners who are involved very often," said David Remes, the Covington partner who coordinated the amicus curiae effort for Hamdan. "This is not a tousle-haired, wild-eyed group of lawyers."

Adds New York University Law School professor Burt Neuborne, who also filed a brief for Hamdan: "This is not noblesse oblige by the big firms. It is an extraordinary no-confidence vote by the establishment bar in what the administration is trying to do here."

Neuborne said the only recent parallel was the effort 50 years ago by New York firms to help desegregate public schools.

As one of those partners explained:

It sounds clichéd, but it's true; this case is about the rule of law. This is a power play by the administration to escape meaningful judicial review.

A tape recording of oral arguments will be released promptly after the arguments are held. They will give us the first real clue concerning the posture that the Supreme Court will take towards the case. Chief Justice Roberts will not participate as he was involved in the case prior to his appointment to the U.S. Supreme Court, where he ruled against Hamdan.

Scalia has been asked by one of the amicus brief groups to recuse himself from the case because he made comments suggesting that he had already made up his mind and was biased by the fact that his son serves in Iraq right now, prior to oral arguments.

Daily Kos diarist le5540 discusses today in an euridite and thoughtful post the Republican tradition of rewarding young loyalists with careers in their modern political machine, just as the Ottomans rewarded loyal idle young Christians with positions in its militia. Meanwhile, uber blogger Markos, the founder of the Daily Kos, recently wound up on CNN pitching his new book, "Crashing The Gates", which similarly argues that Democrats need an answer to the "Right Wing Noise Machine."

I'm not yet convinced.

Why do liberals not feel compelled to create think tanks to the same degree as conservatives? Because liberals are competent enough, and respect the truth enough, not the need that crutch. They can make it in mainstream academia. In contrast, many conservative political theories don't have enough of a basis in fact for credible academics to pitch them. They let their patrons drive their conclusions, instead of the evidence.

Why do liberals not feel compelled to create partisan television and radio networks? Because, as a reality based movement, they don't need to twist the truth to their political ends.

How can conservatives afford to put activists on the payrolls of well paid lobbying firms? Because the rich and powerful tend to have more money for this kind of thing than the disenfranchised poor, whom liberals protect from the rich and powerful while working on unpaid internships and low paying public interest jobs.

The American left doesn't have to buy loyalty. It comes from the grass roots and isn't as homogeneous in its message because that message isn't dictated to it from the top down.

This doesn't mean that there is no paid political class on the left. There are plenty of legislative and executive branch staffers to Democratic politicians. Many of these people go on to be lobbyists or elected officials after they have paid their dues. A Republican Young Turk is rarely going to be effective at persauding a Democratic lawmaker to support or oppose legislation important to his or her client. And, while lobbyists are loyal to their clients, both Republican and Democratic lobbyists and PR firms are full of bright young professionals who value the opportunity to frame their client's objectives in ways that fight the good fight. The flow of influence in the lobbyist-client relationship is not a one way street. Client's express their interests to lobbyists, but lobbyists also pick and choose opportunities for their clients.

There is a place for think tanks. We are faced with a complex world, and bridging the gap from an academic understanding of issues, to concrete proposals for change, does take specialized expertise. But, while finding policy solutions is one thing, formulating political strategies is an area about which I'm more skeptical.

A man who passed himself off as a holistic healer was sentenced to 13 years in prison today for charges of "criminally negligent homicide, practicing medicine without a license, assault, theft and perjury" to which he pleaded guilty. Three of his patients died, and one was seriously harmed.

The Airbus A380 passed a critical evacuation test, making it increasingly likely that this plane, designed to carry up to 853 passengers and 20 crew, displacing the Boeing 747 as the biggest jumbo jet in the sky, will enter commercial service in the near future. It took 80 seconds to get everyone off the plane in a test, with 32 minor injuries and one broken leg. While not perfect, it was well within the range of government safety standards.

If history is any guide, at some point during its service, this class of plane will also become the source of the most deadly plane crash in history.

One of the regular features at group blog My Left Wing is The Daily Rant, a product of blogger bluebird of happiness aka Mary Scott O'Connor, the founder of the site and also a prominent diarist at Daily Kos. Sometimes a picture can provide far more than a thousand words, and even more importantly, can say things that words can't.

The three Republicans and three Democrats on the Federal Election Commission unanimously adopted a rule requiring anyone placing a paid political ad on a Web site to abide by federal campaign spending and contribution limits.

But the rule also updates existing FEC regulations to make it clear that all other Internet political activity, such as blogging, e-mail communications and online publications, is not covered by the campaign law.

"Individual online political activity will be protected from FEC restriction regardless of whether the individual acts alone or as part of a group, and regardless of whether the individual acts in coordination with a candidate or acts independently," said Commission Chairman Michael E. Toner.

This is particularly important for blogs like Musgrave Must Go, which focus on particular federal candidates for public office, and operate anonymously. It is the right call for this time and place, eliminating a host of potentially thorny legal issues, all deeply intertwined with First Amendment political speech rights.

One of Hamdan's lawyers, writing for Slate, notes that there is no precedent for a conspiracy charge violating a law of war, yet this is one of the charges against all of the people facing military tribunals at Guantanamo Bay, and is the sole charge against seven out of ten of them, including Hamdam himself. He also notes that the government does agree that military tribunals are limited to prosecuting laws of war.

A ruling from the U.S. Supreme Court that this is not a violation of the laws of war, could effectively shut down most military tribunal cases and make those that remain, in theory, more difficult to establish.

Obviously, this is a fall back position. Hamdan would prefer a determination that the entire military tribunal system was unconstitutional, and that the Detainee Treatment Act, as a suspension of habeas corpus in a situation where the constitution does not provide for such a suspension, is also unconstitutional. But, it might provide room for a consensus on the court, if it can overcome the jurisdictional issues provided by the Detainee Treatment Act, on, at least, some issue.

This paper offers some exploratory analysis of an extraordinarily rich data set of audit and appeals records, matched with tax returns and financial statements, of several thousand corporations. We find that corporate tax noncompliance, at least as measured by deficiencies proposed upon examination, amounts to approximately 13 percent of “true” tax liability. Second, noncompliance is a progressive phenomenon, meaning that noncompliance as a fraction of a scale measure increases with the size of the company. Other things equal, noncompliance is related to two measures of the presence of intangibles and with being a private company. We find some evidence that incentivized executive compensation schemes are associated with more tax noncompliance, but only with respect to bonuses and not for stock options and other equity-related incentive pay.

Atheists are America’s least trusted group, according to a national survey conducted by University sociology researchers.

Based on a telephone survey of more than 2,000 households and in-depth interviews with more than 140 people, researchers found that Americans rate atheists below Muslims, recent immigrants, homosexuals and other groups as “sharing their vision of American society.” Americans are also least willing to let their children marry atheists.

Cole Ries, the president of the Maranatha Christian Fellowship said . . . “I don’t believe that anybody is really an atheist. I believe that deep down everyone knows there is a god.”

Clearly, atheists, with our low divorce rate (only Lutherans rival them), our low rate of criminal activity, and generally humanistic values (of course, like any group, there are exceptions, with Libertarians views being next most common among us), need a better P.R. agent. And, no, we do not "know there is a god" deep down.

UPDATE: Another story on the same study is somewhat more encouraging as it has actual numbers:

Ninety percent of respondents thought whites and blacks could share their vision of society. About 80 percent said the same of Hispanics, Jews and conservative Christians. More than 70 percent said it of immigrants, and 64 percent said it of Muslims. Atheists had the lowest rating at 54 percent. . . . people with more education, those with more exposure to diverse populations and those from the East and West coasts expressed the highest regard for atheists.

What people think they don't like about us is notable too:

[M]any people "believe atheists have no sense of community and promote cultural elitism and the almighty dollar," Edgell said. . . . "They're associated with moral and social disorder," she said.

Most people think belief in God is closely associated with being law abiding. This isn't true, but it is a common belief.

One of these things is not like the other ones. One of these things just doesn't belong... Hanta, Plague, Ebola, Crutzfeld Jakobs, Avian, Nepah, West Nile, Rift Valley, Anthrax, Norwalk, SARS, Marburg. Give up? The only one of these disease outbreaks since 1993 that does NOT come from from animals is Norwalk virus.

More discussion of the intersection of poverty, food sources and disease outbreaks follows that observation.

(Another view of how this relationship works produces a different conclusion, however. One widely held view of the diseases that wiped out much of the Native American population is that Europeans had developed immunities to many animal born diseases after millenia of farming, while Native Americans, who did not engage in nearly the same level of animal husbandry, lacked these immunities and were devistated when exposed to a plethora of animal source diseases all at once.)

So, the next time you see the people outside KFC at Alameda and Colorado Boulevards protesting its treatment of chickens, remember that these folks are not fringe envrionmentalists, they are Patriots, trying to save us from the next plague.

The Long Bill, as they call it, should be introduced in the General Assembly this week. It is the euphemism used for Colorado's budget. There won't be many surprises. Referendum C and unexpectedly high tax collections notwithstanding, the vast majority of the state budget is already spoken for. Things like mandatory funding for Medicaid, K-12 education, and corrections, which aren't easily adjusted, make up most of the budget.

According to the Colorado Department of Revenue, the state budget breaks down as follows:

Education 43.9% [K-12 and higher education]Social Assistance 25.7% [Medicaid is the biggest line item]Business Community and Consumer Affairs 7.8% [Much of this is users fee financed]Justice 7.3% [Corrections in the biggest line item]Transportation 6.6% [A large share is ear marked from gas taxes and federal funds]Other 8.7%

Colorado also kindly provides every taxpayer with a detailed breakdown by income class of what federal, state and local taxes you pay.

Critics claim the budget is mostly fraud, waste and abuse. All of those are present. But, neither fraud nor abuse are a significant part of state funding, and to the extent that they are, they are hard to reduce. Probably the biggest sources of fraud in the budget comes on the Medicaid line and the tax receipts line. The cat and mouse game between providers who want to get a little more for medical services for which they are paid a below market rate, and Medicaid administrators trying to shut down inappropriate reimbursement requests (many of which will be excused as "mistakes" when the providers are called to task for them) is seemingly eternal. And, sole proprietorships are not more honest in their Colorado returns than they are in the federal returns from which the state returns are derived.

Abuse is even more rare. For the most part, it involves big businesses playing games with their tax reporeting, and small communities of contractors playing games with the bidding process for state contracts (the big software contracts recently entered into with disasterous results by several state agencies to big consulting companies are the most recent examples). There will always be, of course, the occassional state employee taking unreasonable travel and entertainment expenses. But, the dollar amounts involved in this kind of practice tend to be modest, and the risks associated with screwing up can be career ending, or even result in criminal charges. Taking a per diem is usually a far safer alternative (although as Mr. Stengle's case indicates, pushing the boundaries there, even when legal, can be perilous).

Waste is the most common of the items in the dreaded trio of government misuse of funds, and this is in large part because it is so subjective, and because it is so intimately tied to policy considerations.

Is it waste to put someone who has stolen four suits worth $600 combined from a dry cleaner in prison for four years (the average sentence for that offense) at a cost of in excess of $80,000? Is it waste to spend $14,000 a head to keep a small rural school district open, despite its very high non-instructional expenses per student, when urban school districts like Denver spend less than half of much and spend a far larger percentage of those funds on instructional expenses (an issue that has been certified to be on the ballot this year under the rubric of the 65% solution)? Is it waste to subsidize the tuition payments of children of upper middle class parents in the state at state colleges and universities? Is it waste to use tax funds to lure tourists to Colorado's already profitable ski resorts?

Most people wouldn't call those expenditures waste. Most people would call them policy decisions. And, the essence of the budgetary process is making those decisions. The end result, the Long Bill, must receive majority support from budget and appropriations committees, must be approved by both houses of the General Assembly, and must escape the Governor's line item veto pen, while complying with detailed state constitutional limitations and federal mandates on revenue increases, a balanced budget, and spending on particular programs. The line item veto leaves Colorado with few of the "road to nowhere" type projects that might farely be called waste because they serve no public purpose at all, but getting a candidate re-elected, compared to the federal government.

The Big Picture

The truth of the matter is that a great many important policy debates right now are matters of financing. With a few exceptions ensnared in the abortion debate, there is no significant political debate over what good medical practice involves, the debate is over how best to pay for it.

There is a major debate going on over how to provide good educational services, but there is no consensus in either party on one goes about doing it, and as a result, that part of the debate is muted in the face of the debate over how to, and how much to devote to education financially.

Likewise, while there is considerable dispute on a partisan basis over the impact of sentencing on crime and justice, the force that drives the sentencing debate is the cost of imprisoning those who are convicted. Many states have substantially softened sentences for non-violent offenders, not because they are any less tough on crime than they were when they enacted it, but because their state budgets can't afford to build more prisons.

Tort reform debates are ultimately debates about how to finance the cost of accidents. Colorado's decision to abandon no fault car insurance, for example, was basically a policy decision to shift the cost of medical expenses connnected with car accidents from car insurance policies (which were universal, at least in theory), to health insurance policies (which is not universal).

The big debates in federal public finance are over the questions of whether or not the budget should be balanced or not (the not faction definitely has a better track record here), and whether taxes that are collected should come from earned income or investments and inheritances (the faction in favor of shifting almost all taxation to earned income has the upper hand of late).

Not all problems can be solved with money. But, a large share of problems that are within the competency of government to solve at all, can be.