2013 - %3, February

Justice Scalia and the Voting Rights Act

| Thu Feb. 28, 2013 10:44 PM EST

I've been mulling over Antonin Scalia's extraordinary outburst against the Voting Rights Act yesterday, but the more I think about it the more peculiar it seems.

Background first. The provision of the VRA at issue is preclearance, which requires certain states and counties with prior records of racial discrimination to get clearance from the Justice Department before they make changes to their election laws. My understanding is that there are two opposing constitutional interests here. First, under the principle of federalism, states have an interest in making and administering their own laws without getting prior permission from the federal government. Second, under the Fifteenth Amendment, the federal government has an interest in making sure that states don't abridge the right to vote based on race or skin color. When the Supreme Court upheld the VRA in South Carolina v. Katzenbach, it explicitly noted that preclearance tested the boundaries of federal authority:

This may have been an uncommon exercise of congressional power, as South Carolina contends, but the Court has recognized that exceptional conditions can justify legislative measures not otherwise appropriate....Congress knew that some of the States covered by [] the Act had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees. Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself. Under the compulsion of these unique circumstances, Congress responded in a permissibly decisive manner.

In other words, Congress doesn't have the inherent power to approve or veto state election laws. In fact, normally it wouldn't have this power at all. But in this particular case, the court ruled, it had this authority because there were "unique circumstances" that caused the Fifteenth Amendment to trump the rights of the states. The misbehavior of the states in question had been so egregious, so longstanding, and so impervious to previous attempts to stop it, that Congress's extraordinary remedy in the VRA was justified.

In other words, there really is a legitimate constitutional question here. Congress has the power to abrogate state authority only if suitably exceptional conditions apply, and it's a proper question for the Court to decide whether those exceptional conditions still exist. Given this, why would Scalia let loose with this Limbaugh-esque analysis of why Congress reauthorized the VRA in 2006?


Scalia here is making it sound as if Congress just flatly can't be trusted with this kind of decision. But why say something so outlandish when he has a perfectly conventional argument to make instead? Why not simply stick to the question of whether present-day circumstances remain exceptional enough to warrant such a significant intrusion into the customary right of states to make and enforce their own laws?

So I'm sort of stumped. Was there an actual reason Scalia went so far beyond what was necessary? Or was it just a cranky outburst that he made because, after all, who's going to stop him? Even for Scalia, it seems pretty damn peculiar.

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Watch: Piers Morgan Schools John Lott Jr. on Mass Shootings

Thu Feb. 28, 2013 7:51 PM EST


VAWA Passes, the Hastert Rule Takes a Tumble

| Thu Feb. 28, 2013 2:36 PM EST


We're learning something important about House Speaker John Boehner (R-Ohio) and the so-called "Hastert Rule." For those who need a refresher, under modern Republican norms, the Speaker only considers legislation that enjoys "majority of the majority" support — if most GOP House members oppose a measure, it won't even be considered, whether it can pass the chamber or not.


For Boehner's part, the Speaker has long believed in enforcing the "Hastert Rule," but he's finding far more flexibility on the issue than we're accustomed to seeing. When it was time to approve the "fiscal cliff" deal, Boehner ignored the rule to pass a bipartisan Senate plan. When he needed to pass relief aid to Hurricane Sandy victims, he bypassed the rule again.

At the time, the Speaker said these were isolated incidents that wouldn't be repeated, but he we are again — most of Boehner's caucus opposed the Violence Against Women Act, but he brought it to the floor and passed it anyway.

I guess my takeaway is a little different: This is mostly a sign that Boehner understands what his party is up against. In the last election, Republican problems with the Hispanic vote got most of the attention, but that's not the only demographic group the GOP is losing badly. There's also women. And young voters. And especially young women voters: in the last two elections, they've voted for Obama by whopping margins of 69 and 66 percent.

So in the same way that pragmatic Republicans are in favor of passing some kind of comprehensive immigration bill to stop the bleeding among Hispanics, Boehner wanted to pass VAWA in order to stop the bleeding among young women, for whom this is very much a hot button issue. This same dynamic might play out on a few other issues too, but I'm not sure if it heralds the demise of the Hastert Rule more generally. We'll have to wait and see.

More (Stronger) Evidence Linking Sugar to Diabetes

| Thu Feb. 28, 2013 1:36 PM EST

A new study published in the open-access science journal PLoS One offers some of the strongest evidence yet associating sugar, independent of other diet and lifestyle factors, with type 2 diabetes—a link that the sugar industry has sought for decades to debunk.

The study's four authors, including Robert Lustig of the University of California-San Francisco, examined data on sugar intake and diabetes prevalence in 175 countries "controlling for other food types (including fibers, meats, fruits, oils, cereals), total calories, overweight and obesity, period-effects, and several socioeconomic variables such as aging, urbanization and income."

For each bump in sugar "availability" (consumption plus waste) equivalent to about a can of soda per day, they observed a 1 percent rise in diabetes prevalence. This is a correlation, of course, and correlation does not necessarily equal causation. On the other hand, as the authors note in a lay summary, this "is far stronger than a typical point-in-time medical correlation study."

"No other food types yielded significant individual associations with diabetes prevalence after controlling for obesity and other confounders," the PLoS article states. "Differences in sugar availability statistically explain variations in diabetes prevalence rates at a population level that are not explained by physical activity, overweight or obesity."

The correlation, the authors also reported, was "independent of other changes in economic and social change such as urbanization, aging, changes to household income, sedentary lifestyles, and tobacco or alcohol use. We found that obesity appeared to exacerbate, but not confound, the impact of sugar availability on diabetes prevalence, strengthening the argument for targeted public health approaches to excessive sugar consumption."

GOP Caves, Stops Blocking Violence Against Women Act

| Thu Feb. 28, 2013 1:21 PM EST
Congress passes the Violence Against Women Act.






Arkansas Accepts Medicaid Expansion, But Not Via Medicaid

| Thu Feb. 28, 2013 1:12 PM EST

Ed Kilgore, once again directing his gimlet eye at goings-on in his native South, points us today to a report that Arkansas plans to accept the full expansion of Medicaid that's part of Obamacare. The gotcha is that Arkansas' Republican legislature is insisting that instead of receiving traditional Medicaid, all the new beneficiaries will get benefits via private insurance purchased on Obamacare's exchanges. This will almost certainly be more expensive, but apparently Republicans are so enamored of a private solution that they're willing to accept this.

Ed is pretty gobsmacked by that, but I'm a little more willing to wait and see how it works out. In particular, I happen to think this may solve a legitimate problem. Here's the tail end of an article in the Arkansas Times:


This really is an issue with the Medicaid expansion, and it's a well known one. If you're at 130 percent of the poverty level this year, you qualify for Medicaid. If you get a raise and go up to 140 percent next year, you no longer qualify and instead have to navigate the exchanges. If your hours are cut back and you fall to 130 percent again the year after that, it's back to Medicaid.

How big a deal is this? That's hard to say. But it's not a made-up issue, and it's possible that the Arkansas approach could legitimately be better. What's more, I'm OK with allowing states to experiment within limits. It's the only way to find out whether or not the exchanges really are more expensive, and whether or not the Medicaid ping-pong really is a serious problem. The ideology behind this decision might be misguided, but there's a good chance we'll get some useful data out of it regardless.

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Shale Gas Fracking Will Be Around For a Long, Long Time

| Thu Feb. 28, 2013 12:37 PM EST



....Looking at data from actual wells rather than relying on estimates and extrapolations, the study broadly confirms conclusions by the energy industry and the U.S. government, which in December forecast rising gas production. "We are looking at multi, multi decades of growth," said Scott Tinker, director of the Bureau of Economic Geology at the university and a leader of the study.

I don't have access to the study of the Texas field, let alone the "related research" on other shale gas fields, but the press release from the University of Texas does include the chart on the right, which suggests that the Barnett field peaked last year and is now in decline. In 15 years it will be producing at half its peak rate.

But that's still a lot of shale gas between now and 2050, when the field will be exhausted. And it's going to require drilling a lot more wells along the way, since individual wells tend to produce for only a short time. Given this, it sure would be nice to work out the possible environmental damage of shale fracking on air and groundwater now, instead of waiting until 2030 or so, when it will be too late.

The Budding Rand Paul–Bob McDonnell Flame War

| Thu Feb. 28, 2013 11:46 AM EST
Gov. Bob McDonnell (R-Va.).




It's no secret Bob McDonnell has ambitions to run for President.



Business Insider


The Chinese Bond Meme That Refuses to Die

| Thu Feb. 28, 2013 11:00 AM EST





Seriously, WTF Is Up With Bob Woodward?

| Thu Feb. 28, 2013 10:22 AM EST


But yes. It's splashed all over Drudge: "White House Threatens Woodward"! WTF? Well, one of the nice things about missing this in real time is that the whole story has now played out and I can catch up with it in a few minutes. Basically, Woodward told CNN that a "very senior person" at the White House had threatened that he would "regret doing this" if he published a story saying that the sequester originated with Obama. After fast forwarding through an entire day of confused stories, it turns out the official is Gene Sperling, and here's the email he sent Woodward last Friday:



Woodward responded the next day that Sperling had no need to apologize. "I for one welcome a little heat; there should more given the importance."

Some threat, huh? As a friend put it via email, "It's odd that a reporter who you would have to assume has had many run-ins, shouting matches, accusations, etc. would go public with his perceived slights. I can't imagine a junior reporter taking this tack now and not being chastised for mishandling it."

Something very odd is going on with Woodward. The point of Sperling's email is clear: he's not taking issue with the idea that the White House proposed the sequester, but he does think Woodward is wrong when he says both sides agreed that the sequester substitute would be purely spending cuts with no tax increases. Virtually everyone in Washington agrees that Woodward is wrong about that, yet he's been repeating that line for the past week in the face of mountains of evidence to the contrary.

What's more, Sperling quite clearly didn't threaten Woodward, and Woodward didn't take it as a threat at the time. Again: WTF?