Author Archive | David Bernstein

Brief Review of Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy

This book, by journalist Charlie Savage was published six years ago, but I just finished it. It’s a well-written, well-researched critique of the George W. Bush’s Administration’s abuse of executive power based on often extremely dubious constitutional theories. If you’re interested in the subject matter, it’s well worth reading, despite its age. Of particular interest to many VC readers is that he traces the intellectual origins of the Bush Administration’s broad assertions of executive power back to (mostly) young conservative lawyers who worked in the Reagan Administration.

I have a few qualms about the book. Most important, for a book that’s all about executive power, you’d hope the author would master what the theory of the unitary executive means, and wouldn’t, as so many Bush Administration critics did, confuse that theory with other issues. Savage, unfortunately, fails that test repeatedly.

Savage also sometimes overstates his case, especially later in the book. For example, Savage notes that Bush issued signing statements indicating that the Administration would decline, for constitutional reasons, to enforce affirmative action preferences in government employment dictated by statute. Savage claims that Bush did so despite the Supreme Court’s holding in Grutter that affirmative actions preferences are constitutionally permissible. Savage indicts the administration for ignoring Grutter in favor of its own interpretation of the Constitution. In fact, Grutter only held that preferences in higher education are permissible. While some scholars think that Grutter’s logic can be applied to employment (I’m not one of them), Grutter didn’t purport to overrule cases unfavorable to preferences, in particular the Adarand case, banning preferences in government contracting. In this instance, I think Bush had the better of the constitutional argument based on Supreme Court precedent, but at the very least Savage significantly overstated the case that Bush was acting lawlessly.

And some [...]

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Canadian Prime Minister Harper on Israel

I think President Obama has been better to Israel than his critics acknowledge, and has been very pro-Israel by any standard except perhaps that of the prior two presidents, who were the most pro-Israel of any American presidents. But it’s hard to imagine him giving a speech like this:

“It is a Canadian tradition to stand for what is principled and just, regardless of whether it is convenient or popular,” he said to the Israeli parliament.

But “support today for the Jewish state of Israel is more than a moral imperative. It is also of strategic importance, also a matter of our own long-term interests,” he elaborated, praising Israel’s record on human rights and economic freedom. “Israel is the only country in the Middle East which has long anchored itself in the ideals of freedom, democracy and the rule of law. These are not mere notions. They are the things that, over time and against all odds, have proven to be the only ground in which human rights, political stability, and economic prosperity, may flourish. These values are not proprietary; they do not belong to one nation or one people. Nor are they a finite resource; on the contrary, the wider they are spread, the stronger they grow.”

“Likewise, when they are threatened anywhere, they are threatened everywhere,” Harper continued. And “what today threatens the societies that embrace such values and the progress they nurture? Those who scorn modernity, who loathe the liberty of others, and who hold the differences of peoples and cultures in contempt. Those who often begin by hating the Jews, but, history shows us, end up hating anyone who is not them. Those forces which have threatened the State of Israel every single day of its existence, and which, today, as 9-11 graphically showed us,

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D.C. District Court Judge Friedman (Clinton Appointee) Rejects Challenge to Obamacare Federal Exchange Subsidies

There’s a lot to absorb in Wednesday’s opinion, but I can’t get past this analysis:

Why would Congress have inserted the phrase “established by the State under [42 U.S.C. § 18031]” if it intended to refer to Exchanges created by a state or by HHS? But defendants [the government] provide a plausible and persuasive answer: Because the ACA takes a state-established Exchange as a given and directs the Secretary of HHS to establish such Exchange and bring it into operation if the state does not do so. See 42 U.S.C. §§ 18031(b)–(d), 18041(c). In other words, even where a state does not actually establish an Exchange, the federal government can create “an Exchange established by the State under [42 U.S.C. § 18031]” on behalf of that state.

I’m certainly no expert at this point on the relevant provisions, and maybe if I went back and read all the cited language this would make more sense to me. But for now, the idea that “an exchange established by a state” can in practice be “an exchange established by the Federal Government on behalf of a state” seems to me to do violence to the English language. Of course, after C.J. Roberts’ opinion in NFIB, such concerns may no longer be decisive. Or maybe this is why the Democrats were so intent on getting three new nominees on to the D.C. Circuit?

UPDATE: This, from the comments, seems right to me: “A s1321 Fed Exchange is a s1311 Exchange. But it still isn’t a s1311 exchange established by the state, which is what is necessary to get the tax relief. It’s a s1311 exchange established by the Feds, because the state has failed to … establish an exchange.” [...]

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“The Nation” has No Credibility

If it did, it wouldn’t have published this obituary of Ariel Sharon by professional anti-Israel agitator Max Blumenthal. I’m not a big Sharon fan, but it’s not the negative nature of the obituary that’s problematic. Rather, I’m not sure I’ve ever seen a more consistently dishonest appraisal of historical fact in the Arab-Israeli conflict, at least this side of Hamas-controlled media. There are so many distortions, exaggerations, and falsehoods that it’s hard to know where to begin, so I’ll just give one example. Referring to the massacre of Palestinian by Christian Lebanese militiamen, “Sharon and many of his officers were well aware of the Phalangists’ intention to murder as many women and children as they could.” Time Magazine made a similar allegation against Sharon, and, following a libel lawsuit by Sharon was found by New York jury to have lied. Israel’s Kahan investigative Commission held Sharon indirectly responsible “for ignoring the danger of bloodshed and revenge” and “not taking appropriate measures to prevent bloodshed.” It also found that while Israeli forces had negligently failed to anticipate the massacre, and take proper measures to respond to initial reports of a massacre. That’s all bad enough, but not for Blumenthal, who apparently is privy to his own set of facts. (Again, this is of a piece with the rest of the obituary, which, and I can’t resist one more example, falsely claims that Sharon orchestrated the “comprehensive demolition of the Jenin refugee camp,” a claim that not even the Palestinian propaganda machine, which made phony allegations of massacres of hundreds by Israeli forces (in fact, only around fifty Palestinians, mostly gunmen, were killed in the battle, along with 23 Israeli soldiers) alleged at the time. UPDATE: Here are aerial photos taken after the Jenin battle showing the camp outside the combat zone [...]

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Is Concern about “Czars” Purely a Partisan Issue?

Quite a few commenters responded to my post about President Obama’s use of high-level appointees not subject to Senate confirmation, colloquially known as “czars,” with some version of the claim that the whole issue is a purely partisan attempt by right-wing Republicans to attack the president. It’s therefore worth pointing out that to their credit, at least two Democratic senators, Robert Byrd and Russell Feingold, expressed concern over the Obama’s use of czars to evade the Senate’s advise and consent power. Of course, Byrd was expressing similar concerns during the Bush Administration, which vastly expanded the use of “czars” exempt from the Senate’s advise and consent role. While many pundits and politicians either switched positions or only criticized one side for using “czars,” Byrd was consistent. [...]

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Can the President Spend Money on Something Congress “Defunds”?

I’ve always thought that when it came to turf wars between the executive and legislature, Congress held the trump card of the “power of the purse.” But here’s what happened back in 2011 when Congress voted to defund several “czar” positions, positions that upset people on both sides of the aisle because they can be an end-run around the appointments clause (requiring a Senate vote) for high-level government officials:

On Friday night, Obama declared that he intends to ignore that part of the budget legislation, issuing a relatively rare “signing statement” after he inked the budget deal in which he argued that the legislative effort to eliminate those positions was an unconstitutional infringement on the executive branch.

“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority,” Obama wrote in a message to Congress. “The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.

“Legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers,” he added. “Therefore, the executive branch will construe [the law as to] not to abrogate these Presidential prerogatives.” Put aside that the president broke his campaign promise not to use signing statements to thwart Congress.

How can the executive branch spend money on, say, the climate czar in the face of a law specifically banning funds from being used for that purpose? Could President Reagan have avoided the Iran-Contra scandal (at least the part involving sending money from the arms sales to the Contras) [...]

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Tikvah Fund Call for Applicants

Below. I did one of the advanced institute seminars in September, it was excellent. My impression is that “serious (not necessarily Orthodox) Jews” are preferred over other applicants.

Interested in the intersection between Jewish and Western thought? Engaged with questions of domestic or foreign policy? The Tikvah Fund is pleased to announced several exciting, stipend-bearing seminars for 2014.

Tikvah programs bring exceptional individuals from America, Israel, and around the world to New York City to study economics, war and grand strategy, and Jewish thought. Our extraordinary faculty includes Peter Berkowitz, Frederick W. Kagan, William Kristol, Meir Soloveichik, Ruth Wisse, and Dara Horn, among many more.

Programs run 1 to 3 weeks starting next spring. All participants receive generous stipends to cover their travel, lodging, and investment of time.

Can’t make it to New York City next year? Learn along with the Institutes on Tikvah’s new blog, The Tikvah Forum, which features interviews with faculty, video lectures, posts by participants, and much more.
Program: Tikvah Advanced Institutes
Eligibility: For advanced undergraduates, graduate students, and individuals in professional life – public policy, journalism, academia, education, law, business, or culture
Dates: 1 to 3 week seminars, running from April to July 2014.
Application Due Date: February 15, 2014

The Tikvah Advanced Institutes will give accomplished individuals of any nationality, from a broad range of academic and professional backgrounds, the chance to participate with leading thinkers and practitioners in their choice of advanced courses on policy and Jewish thought, on a schedule designed for people who do not have much time to spare. The seminars will take place in New York City over periods extending from one to three weeks; and participants will be given stipends of $1,000 to $5,000, depending on the seminar’s length, to cover their travel, lodging, and investment

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Revisiting Krugman on Reagan and Race Part II

Previously, I pointed out that Paul Krugman got his facts wrong on two of the three examples he used in a much-cited column to allege that Reagan used “tacit race-baiting.” But what of the third example? “During the 1976 campaign Reagan often talked about how upset workers must be to see an able-bodied man using food stamps at the grocery store. In the South — but not in the North — the food-stamp user became a ‘strapping young buck’ buying T-bone steaks.”

I traced the source to a February 1976 New York Times article by reporter Jon Nordheimer about Reagan’s Florida primary campaign. The article states that Reagan made no direct appeals for antiblack votes, and said explicitly he didn’t welcome them. However, Nordheimer added, sometimes “the impression is left, perhaps inadvertently, that he comes close to an indirect appeal in this regard.” The example he gave is that the previous night, Reagan gave a speech in which he repeated a favored anecdote about people being upset when they see a healthy young man buying a steak with food stamps. However, Nordheimer wrote, in Ft. Lauderdale this young man became a “strapping young buck,” a phrase he didn’t use in New Hampshire and other states with small black populations. “Young buck,” the reporter adds “to whites in the South denotes a large black man.” Reagan soon denied any racist intent, stating that when he grew up in Iowa in the 1920s, a young man of any race could be describe as a “young buck.”

I’m not sure what to make of this. Except in the context of Reagan’s remarks, I’ve never heard of [or at least don’t recall hearing of] “young buck” being used as a racial term, and I’ve read lots of racist drivel from the South in [...]

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Mockery of the Obamacare Pajama Boy Anti-Semitic?

That’s the claim made by one Jay Michaelson in the Forward:

Yes, Virginia, Pajama Boy is a member of the tribe. Look at him. Pale Ashkenazic skin, Jew-fro’d black curls, Woody Allen specs. Even the smart-ass expression on his face screams of the Wise Son from the Passover Seder.Parenthetically, the model himself is one Ethan Krupp, an Organizing for America staffer who is, in fact, Jewish. But whether Krupp himself is circumcised or not, Pajama Boy is semiotically Jewish, even stereotypically so.

Nope, not a satire. And more:

In fact, Pajama Boy stands at a centuries-old nexus of anti-Semitism and misogyny. As many scholars, including Sander Gilman, David Biale, Paula Hyman, Matti Bunzl, John Efron, and Daniel Boyarin have shown, Jewish men have been accused of being unmanly for hundreds of years – including by other Jews, such as the early Zionists, whose muscular Judaism was a direct response to diaspora Jewish emasculation. This is an old, old motif. The Jew is the Other is the Effeminate is the Liberal. He is the urbanite, the parasite, the usurer, the lawyer. His effeminacy corrupts the Volk or the Heartland or the real American values. He wouldn’t know how to drive a pick-up truck if it was on cruise control. And he definitely votes for Obama. Really, what’s “metrosexual” about Pajama Boy, anyway? The fact that he’s wearing pajamas? Drinking a hot beverage? No – it’s the way in which he so perfectly fits the Right’s image of the liberal Jewish girly-man. There’s a real “masculinity,” and then there’s whatever it is that Pajama Boy is embodying. (For the record, I have no idea whether Krupp is gay or straight. Neither do his haters.)

Still not a satire. Seriously, while I’m aware of the sort of anti-Semitism Michaelson is referring to, [...]

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Revisiting Krugman on Reagan and Race (UPDATED)

Back in 2007, Krugman wrote a much-talked-about column in which he accused Ronald Reagan of exploiting white racism in his quest for the presidency.  He gave three specific examples of Reagan using “tacit race-baiting.”

One was Reagan’s speech at a County fair in Mississippi where, he says, Reagan “declared his support for states’ rights — which everyone took to be a coded declaration of support for segregationist sentiments.”  This event has been discussed in great detail, including on this blog, but suffice to say that this is at best an exaggeration; contemporary coverage of the event, while noting the controversial venue (near where three civil rights workers were murdered), does not support the idea that the audience thought Reagan was endorsing segregation.  As I wrote previously, “Reporters at the time reported that the audience didn’t perceive that Reagan was referring to race , e.g, the NY Times in October wrote, “Although Mr. Reagan did not elaborate on that occasion, he later explained that he was referring to his proposal to shift certain taxing powers and social programs such as welfare from the Federal to the state level. Most of those at the rally apparently regarded the statement as having been made in that context.”   An audio tape of the event (discovered after Krugman’s column appeared) further debunks Krugman’s take, showing that Reagan only mentioned states’ rights once in a context that had nothing to do with race, and the speech itself was about economic policy and never mentioned race.

A second example that Krugman gave was that “Reagan repeatedly told the bogus story of the Cadillac-driving welfare queen — a gross exaggeration of a minor case of welfare fraud. He never mentioned the woman’s race, but he didn’t have to.”  It turns out, however, as a wonderful investigative report [...]

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Nathan Schachtman on the Elite Defense Bar and Expert Evidence

Posted with permission from the SchachtmanLaw blog.

A couple of months ago, Professor David Bernstein posted to the Volokh Conspiracy, a short piece about some of the missteps and mistakes committed by “elite defense counsel” in litigating expert witness issues. Professor Bernstein makes some interesting points about questionable positions taken by “elite defense counsel” (read: “highly paid, large firm lawyers”). For instance, according to Bernstein:
1. elite defense lawyers missed the boat early on by arguing that statistical evidence (observational epidemiology) was inadmissible or insufficient to prove general or specific causation;
2. defense counsel missed the significance of the Supreme Court’s opinion in Daubert;
3. defense counsel continued to press for Frye rule in state courts, although the Frye rule had been shown inadequate and unavailing as a rule to control medical causation opinions; and
4. defense bar has grown soft on Rule 702.

Although the charges seem at points overstated, Bernstein has presented an important indictment of the defense bar. At the very least, the charges deserve a full exploration by a wider audience. Defense lawyers who are self-critical about their practice should certainly be concerned that someone as persistently pro-702 has taken aim at them.
On the first point, many of the early scientific causation battles were fought in tobacco litigation, in which defendants and their counsel were forced to deny and contest the obvious, the causal role for tobacco in carcinogenesis, at all costs. The tobacco defense bar, however, should not be confused with the defense bar, generally. Defense lawyers in Bendectin, silicone, and asbestos cases developed arguments against specious use of epidemiologic evidence, as well as sophisticated, affirmative use of epidemiologic evidence to show lack of association. Even so, we should keep in mind that it often requires a large body of epidemiologic evidence

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American Studies Association Faces Consequences from its Boycott

I previously posted about the proposed boycott of Israeli institutions by the American Studies Association, which was approved by a vote of its membership over the weekend. The boycott is pretty lame; it’s supposed to be in solidarity with the international boycott movement advocated by Palestinian “civil society” organizations, which calls for a complete cultural and economic boycott of Israel. Instead, the ASA is only boycotting official Israeli institutions, and announced that it is inviting Israeli and Palestinian scholars to its next meeting–the exact sort of cultural exchange that opponents of the boycott typically advocate. (Hopefully, no self-respecting Israeli will show up).

Nevertheless, the boycott vote is intended to aid the cause of delegitimizing Israel, and raises the question of whether American universities should continue collaborating with the ASA–by the very logic of the boycott, any individual or organization that works with the “official” ASA, as opposed to individual American Studies scholars, is complicit in the ASA’s attempt to aid the BDS (boycott, divestment, sanctions) movement. The question is especially pressing for American universities that have formal ties to Israeli universities, as the ASA is implicitly boycotting the joint programs. Moreover, given that the boycott of Israel has nothing to do with American Studies, the association seems to have revealed itself to be a political, rather than solely academic, organization, which raises the issue of why university funds should be flowing to it.

Legal Insurrection’s William Jacobson is organizing a campaign to lobby the universities that are institutional sponsors of the ASA to drop their memberships. So far Brandeis University and Penn State Harrisburg have announced they are doing so, pretty impressive given that the boycott was only announced two days ago. Look for more universities to follow, substantial resignations from the rank and file, and more. But don’t worry, [...]

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Is Refusing to Provide Commercial Services for a Circumcision Discrimination against Jews?

Here’s the hypothetical: Shlomo Cohen has been blessed with a son, but he lives in San Francisco, where there is a vocal anti-circumcision movement. He emails his neighbor, a photographer, and asks him if he would photograph his son’s bris. The photographer responds, “Shlomo, no offense, but I think circumcision amounts to genital mutilation, and I can’t participate in that.” Next, he approaches his local organic/vegeterian caterer about catering the bris. The caterer says, “you know Shlomo, I’ve done brises in the past, but I’ve been reading some of the literature put out by the anti-circumcision people, and I think circumcisions cause unnecessary pain to baby boys. So I don’t do brises anymore.”

Shlomo files a complaint with San Francisco’s human rights commission, claiming that the photographer and the caterer are engaging in discrimination against him based on his Jewish ethnicity and religion. There is no evidence that either person turns down or otherwise mistreats Jewish clients or potential clients, and both deny they do so. Should Shlomo win his case?

To me, the answer is no, and pretty obviously so. Neither defending is discriminating against Shlomo because he’s Jewish, they are discriminating against him (if that’s what you want to call it) because they disagree with his particular actions. Indeed, I’d say they are no discriminating against Shlomo at all, they are discriminating against potential clients who want them to help celebrate something that violates their strongly held personal beliefs.

So, am I right? And if so, is there any sensible legal distinction that can be drawn between my hypothetical and the cases in the news in which a photographer and a baker were held to have discriminated against gays because they declined to provide commercial services on moral grounds for gay weddings, but apparently otherwise did not discriminate [...]

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Reminder to Readers about Our Archived Posts–Mistaken Identity

I was just doing some research in the archived posts and noticed that a problem that occurred when we switched servers hasn’t been solved. All the old posts are there, but they often have the wrong “byline.” I.e., a post I wrote may have Eugene’s or Randy’s or Orin’s name on it. So I would suggest that if you are planning to cite one of our old posts somewhere, you check with the purported author to see if he actually wrote the post before attributing it to him. [...]

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