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So Dan Metcalfe is back at it again. The former FOIA person for the Justice Department, with an assist from Politico, continues to spout uniformed nonsense on eGhazi. Some examples:

We now have former Secretary of State Hillary Clinton being revealed as someone who took the unprecedented step of arranging to use her personal email account for all of her official email communications.
But didn't Colin Powell do the same thing? I'm sure I read it somewhere. Why yes, here it is in,um, Politico:
Like Hillary Clinton, former Secretary of State Colin Powell also used a personal email account during his tenure at the State Department, an aide confirmed in a statement.“He was not aware of any restrictions nor does he recall being made aware of any over the four years he served at State,” the statement says. “He sent emails to his staff generally via their State Department email addresses. These emails should be on the State Department computers. He might have occasionally used personal email addresses, as he did when emailing to family and friends.”
Not quite so "unprecedented" Mr. Metcalfe. And Powelll was on your watch. But maybe Powell did something different? Metcalfe says:
[T]he Federal Records Act’s documentation and preservation requirements still called upon that official (or a staff assistant) to forward any such email into the State Department’s official records system, where it would have been located otherwise.
This appears to be exactly what former Secretary of State Colin Powell did during his tenure, just as other high-level government officials may do (or are supposed to do) under such exceptional circumstances during their times in office. [. .. .]
It also is what Hillary Clinton did. Indeed, Clinton went one better than Powell, by retaining the records. Powell said:
“He did not take any hard copies of emails with him when he left office and has no record of the emails.
Indeed, perhaps Mr. Metcalfe can find Powell's e-mails for him.

But Metcalfe continues with his ignorance and crackpotism:

OK, please now tell us, Secretary Clinton, exactly which “federal guideline” (even one will do, notwithstanding your claim of plurality) makes it “clear” that you can unilaterally decide, dispositively and with such finality, which of your work-related records are “personal” and which ones are not[.]
Um 5 FAM 544.3.2 Mr. Metcalfe?
E-mail message creators and recipients must decide whether a particular message is appropriate for preservation.
Now Mr. Metcalfe has had weeks at this point to familiarize himself with regulations he apparently had no notion of when he was DOJ's "head honcho" on FOIA. Clearly he did not. And just as clearly, he is an incompetent crackpot. Shame on Politico for publishing his drivel.
Discuss

Yesterday, I proposed a project intended to present Hillary Clinton's record on the issues of the day juxtaposed against Left Flank views on these issues. My commitment is to devote a front page Sunday essay to each of the identified issues based on either relying n diaries or articles identified to me as (a) describing Hillary Clinton's positions and/or a representative description of the Left Flank view on these issues.

The issues I'd like to see covered: (1) income inequality; (2) financial regulation; (3) Social Security; (4) Medicare; (5) Medicaid and children's health insurance; (6) foreign policy; (7) climate and environment; (8) national education policies and financial aid and loans for educational purposes; (9) trade policies; (10) government disclosure policies; (11) voting rights; (12) discrimination issues; (13) criminal law enforcement issues; and (14) any other issue that interests the Left Flank.

For the first essay, I would like to concentrate on issues 1 and 2.

Please let me know about good diaries and articles via Kosmail with the subject line "Hillary Clinton positions/Left Flank."

Target for first essay is March 29. To meet this target I must submit essay for editing by March 27 at 3 pm Eastern.

Please note the idea is not for me to give you my thought on this but to instead be a conduit for Left Flanks views. Thus whether this project happens or not is dependent on Left Flankers. IF the material is sent to me, I will post a Sunday essay on the particular issues. If not, this project obviously won't come to fruition.

Thanks for the assistance.

[UPDATE] Let me take a moment to describe how I foresee the essay. I would take the links provided to me, quote as extensively as copyright law permits on the issue at hand for each link. Since each essay will address the specific identified topic, this should require minimal editing from me beyond choosing the excerpt. As I say, my idea is that I am merely a conduit. My participation would come in the comments.

Discuss

In Laurence Lewis' FP essay, I fell into a conversation on the Left Flank, its point of view on Clinton's policies and record, and what the Left Flank would want to hear, if anything, from her.

A related critique was the view that the front page of Daily Kos is not looking hard enough at Hillary on the substantive issues.

I admit the latter critique bothers me and I want to, in my minor way, address this.

So I'm testing the waters for a sort of crowd sourced project - to investigate Clinton's record on substantive issues and what the Left Flank would want on those issues.

Since I'm much less Left Flank than most here, I think it would be more interesting to have this project driven by persons more fully in the Left Flank.

What I would do is commit to running a Front Page Sunday essay a week on issues fleshed out by a group, whether I agree with it or not. Of course I'll need to comply with site rules, but other than that, I'll just write and edit for clarity and the like.

Please advise if this sounds like a plausible idea.

Discuss

Media Matters points us to State Dept Reg. 5 FAM 443.2:

E-mail message creators and recipients must decide whether a particular message is appropriate for preservation In making these decisions, all personnel should exercise the same judgment they use when determining whether to retain and file paper records.
We already know there was no prohibition until 2014 regarding the use of private e-mail accounts. We now know that, as a formal matter, even e-mails sent or received on State Department email account were not automatically preserved. Instead only those e-mails designated for preservation,  by the determination of the individual holding the e-mail, would be preserved.

Hillary Clinton should have made these determinations in a timely manner. When she did not, after the effective date (in 2010) of the 2009 NARA regulation, she failed to comply in my opinion. (I do not accept her argument that she could rely on the determination of the recipient or sender from a .gov account.)

But in terms of laws and regulations, this has become "The Incredible Shrinking Scandal."    

Discuss

As Laura Clawson deftly describes, the Media is turrible on its best days, but when the Clintons are involved, they reach seemingly impossible nadirs, and stay down there.

There's a lot to question about Hillary Clinton's policy positions, especially, in my view, on foreign policy. But those questions will never get asked by the Media on its own.

The Media doesn't actually care about policy. Partly because it's hard to report on policy. Partly because they don't really care about policy. The only way they do is if a political opponent raises the issue.

Do you want to hear about income inequality and how Clinton would try to attack the problem? Don't hold your breath waiting for the Media to cover that. It will require a primary challenger to do this.

Want to hear about Hillary Clinton's foreign policy views? Want her hawkish ideas challenged? Don't count on the Media for that. It will take a primary challenger.

I don't think any fair person can challenge Clinton's commitment to women's rights. But just yesterday she gave a speech at the UN on the 20th Anniversary of her famous "women's rights are human rights speech," the chances of prominent coverage would have been nil but for the chance to ask about eGhazi.

Without a contested primary, no important issues will be covered.

Democrats need a contested primary.

Hillary Clinton needs a contested primary.

Because our Media is simply terrible.

Discuss

In a story about eGhazi, the NYT publishes this:

the president himself and Mrs. Clinton’s successor, Secretary of State John Kerry, both use private accounts in addition to their government email addresses.
Is this a problem? The story states that the concern in eGhazi is:
control over what emails to release and when
Doesn't maintaining a private e-mail raise the same concern? Indeed, in a more pointed way? Now the response will no doubt be "not if the personal e-mail is not used for official government business." But that begs the question - who decides what's "official government business" and who has "control over what e-mails to release and when?"

My point is the control of e-mail release happens both when the transmission occurs (when choosing to use either govt e-mail or private e-mail) or when deciding which e-mails pertain to government business after the fact.

A scheme to conceal e-mails would be better if you maintain both private and government e-mails than going all private e-mail. Which, if you think Clinton went all private e-mail to control and conceal e-mails, makes the alleged Clinton scheme pretty moronic.

As Supervilllains go, Hillary seems a piker to me.

Discuss

Late this afternoon both Politico and ABC filed questionable stories claiming Hillary Clinton violated "clear cut" State Department policy against use of private e-mails. Politico asserted:

The State Department has had a policy in place since 2005 to warn officials against routine use of personal email accounts for government work, a regulation in force during Hillary Clinton’s tenure as secretary of state that appears to be at odds with her reliance on a private email for agency business, POLITICO has learned.

The policy, detailed in a manual for agency employees, adds clarity to an issue at the center of a growing controversy over Clinton’s reliance on a private email account. Aides to Clinton, as well as State Department officials, have suggested that she did nothing inappropriate because of fuzzy guidelines and lack of specific rules on when and how official documents had to be preserved during her years as secretary.

But the 2005 policy was described as one of several “clear cut” directives the agency’s own inspector general relied on to criticize the conduct of a U.S. ambassador who in 2012 was faulted for using email outside of the department’s official system.

The story appears inaccurate because the "clear cut policy" appears to apply to overseas postings, not to the Secretary of State. The provision Politico and ABC relied upon is in fact promulgated by the Diplomatic Security bureau of the State Department - 12 FAM Diplomatic Security. The purpose of the Handbook is described as follows:
The purpose of this Foreign Affairs Handbook (FAH) is to prescribe uniform
policies, criteria, and standards for the LGP at U.S. Department of State  (DOS) installations abroad and to provide guidance on how to initiate and manage a LGP. - FAM 210 [My emphasis]
1 FAM 280 provides that the Assistant Secretary for Diplomatic Security is charged with the responsibility to promulgate 12 FAM:
The Assistant Secretary has overall substantive and coordinating responsibility for the following Department regulatory publications: [. . .] (2) Foreign Affairs Manual (FAM), Volume 12 ―Diplomatic Security and its related Foreign Affairs Handbooks (FAHs) in their entirety
I have not found any indications that Diplomatic Security can promulgate rules applicable to the entire State Department. Politico and ABC are citing 12 FAM 544.3, which states:
It is the Department’s general policy that normal day-to-day operations be conducted on an authorized AIS, which has the proper level of security control to provide nonrepudiation, authentication and encryption, to ensure confidentiality, integrity, and availability of the resident information. The Department’s authorized telework solution(s) are designed in a manner that meet these requirements and are not considered end points outside of the Department’s management control.
But even this policy's application is not clear. For example, 544.3 further provides:
In the absence of a Department-provided secure method, employees with a
valid business need may transmit SBU information over the Internet unencrypted [. . .]

All users who process SBU information on personally owned computers must ensure that these computers will provide adequate and appropriate security for that information. [My emphasis]

Further 12 FAM 544.2 provides:
Where warranted by the nature of the information, employees who will be transmitting SBU information outside of the Department network on a regular basis to the same official and/or most personal addresses [. . .]
On Twitter I have been going at it with Josh Gerstein, the Politico  reporter who wrote the piece. He insists that the FAM applies in its entirety to every State Department employee. I think that is clearly wrong.  I'll relate our back and forth on the flip.  
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Supreme Court 2010
Will these nine folks deprive 10 million people of health insurance?

Wednesday's the day—the Supreme Court hears oral argument Wednesday morning in the King v. Burwell case, which could decide whether nearly 10 million Americans lose their health insurance.

The specific issues in the case have been discussed at length, including by me: King v. Burwell: Interpreting the Affordable Care Act; King v. Burwell: Chevron deference and King v. Burwell: Constitutional Avoidance.

The nickel version is this: does a tax provision included in the ACA prohibit tax credit subsidies on federal exchanges because the language used states that such tax credits are for "an Exchange established by the State under 1311." As I explained in the three linked posts, I find the challengers' argument not only unpersuasive, but borderline frivolous. But what I find and what the conservative five find is almost never the same.

So this post is intended to assist in "reading the tea leaves" from the oral argument and what to look for in terms of clues of which way the votes might go. Fortunately for all of us, one of our premier "Courtologists," Adam Bonin, will be providing a recap after the argument.

Below the fold you will find my listicle of things to watch for in Wednesday's oral argument.

Continue Reading
Oblique facade of the Supreme Court
According to the doctrine of constitutional avoidance, the court should seek to interpret a statute in order to avoid a constitutional question.
In my previous posts on King v. Burwell, I addressed the statutory interpretation of the text of the Affordable Care Act and the impact of Chevron deference on the case. In this post, I will review what may be the argument that is most appealing to the conservative justices of the court which would lead to a favorable result for the government, the doctrine of constitutional avoidance to avoid a federalism issue—specifically the Pennhurst doctrine.

The argument is well presented in the amicus brief (PDF) of 22 states urging the upholding of the IRS rule that provides that the tax credit subsidies of Section 36(b) of the tax code, promulgated by ACA, are available on the federal exchanges. Let's start with the doctrine of constitutional avoidance. The State amici argue:

“A statute should be interpreted in a way that avoids placing its constitutionality in doubt.”[cite omitted] The constitutional-doubt canon “militates against not only those interpretations that would render the statute unconstitutional but also those that would even raise serious questions of constitutionality.” [cite omitted]
This is an uncontroversial observation. So what is the "constitutional infirmity" that the challengers' argument presents? It is the Pennhurst doctrine. The amici explain:
When Congress enacts cooperative-federalism programs, the States are entitled to clear notice about the conditions to which they have agreed. [cite omitted] The Court in Pennhurst State School & Hospital v. Halderman [cite omitted] described that clear-statement rule this way:

[L]egislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation. [Cite omitted.]

So there are the doctrines of constitutional avoidance and the constitutional infirmity that are implicated in King. Where do the arguments take us? I'll explore on the flip.
Continue Reading

Mon Mar 02, 2015 at 05:30 PM PST

King v. Burwell: Chevron Deference

by Armando

Oblique facade of the Supreme Court
Chevron deference provides that if a law is not clear, the court will defer to the Executive Branch interpretation.
Recently, I presented an argument, limited to only the text of the Affordable Care Act and the most basic and universally accepted canons of statutory interpretation (I did not rely on legislative purpose or history or any other rules of construction such as constitutional avoidance). This argument was for a plain and unambiguous reading of ACA as providing for tax credit subsidies to participants in federal health insurance exchanges operating in 36 states (14 states created state-operated exchanges).

Obviously I'm persuaded by this argument. But suppose five members of the Supreme Court refuse to accept this argument. What happens then? Well, if five members of the SCOTUS instead accept the challengers' arguments that the plain and unambiguous interpretation of ACA prohibits tax credit subsidies on federal exchanges, then the inquiry ends—the challengers win, millions lose their health insurance, state insurance markets are thrown into chaos and  the SCOTUS imposes great hardship on the nation.

But what if the SCOTUS finds ACA ambiguous on the question? This is what the Fourth Circuit found (one concurring opinion found ACA to unambiguously provide for tax credit subsidies on the federal exchanges) in the case currently being heard by the SCOTUS, King v. Burwell.  In such a case, a rule known as Chevron deference, which provides that when a law is ambiguous, the court shall defer to a permissible interpretation of the Executive Branch, will apply.

On the flip I will examine Chevron deference, by reviewing the Fourth Circuit's application of the rule in the very case now before the SCOTUS.

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Oblique facade of the Supreme Court
The rules of the game at the Supreme Court are not what they used to be.
Section 1311 of the Affordable Care Act (PDF) ("Obamacare") provides, in part, as follows:
Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘‘Exchange’’) for the State [. . . .]
Read literally and in isolation, this provision requires states to establish "exchanges." There is no escape clause provided in Section 1311. However, such a provision would violate the rule established in Printz v. United States, in which Justice Scalia, writing for the court, stated that "the forced participation of the States' executive in the actual administration of a federal program" violates the Constitution's federalism provisions.

Given this, you might be surprised to learn that, given all the legal challenges raised against Obamacare, none was raised challenging Section 1311 under Printz. The reason is that Section 1321 of the ACA provides an alternate mechanism for forming "exchanges" in states that does not require direct state involvement:

PART 3—STATE FLEXIBILITY RELATING TO EXCHANGES SEC. 1321; 42 U.S.C. 18041. STATE FLEXIBILITY IN OPERATION AND ENFORCEMENT OF EXCHANGES AND RELATED REQUIREMENTS. [. . .]

(c) FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS.—

(1) IN GENERAL.—If—
(A) a State [does not establish an Exchange . . .  ]

the Secretary shall (directly or through agreement with a not for-profit entity) establish and operate such Exchange within the State  [. . .]

Thus, as you can see, when Section 1311 is read in the context of the entire statute, and in this instance, when read in concert with Section 1321, there is in fact no "Printz problem" in Section 1311, as the states are not in fact required to "establish an exchange." (Exchanges are the insurance marketplace where participants shop for insurance to meet their particular needs and means, means which include tax credits to subsidize the cost of such insurance.)

What I just demonstrated was an exercise in statutory interpretation, using universally accepted techniques of interpretation. Indeed, my interpretation is so commonplace that even when actors (Republicans) have grasped at many a novel argument to legally attack Obamacare, this has not been one of them. Which brings me to King v. Burwell, a case which, remarkably, will be argued before the U.S. Supreme Court on March 4. In King, the challengers are arguing for a rejection of the commonplace statutory interpretation techniques I've just illustrated, arguing instead for an isolated and illogical reading of 26 USC 36(b), the provision of ACA that describes the tax credits and subsidies to be provided to exchange participants.

On the flip side, I'll explore the challengers'  arguments and the government's response.  

Continue Reading

Sat Feb 21, 2015 at 12:00 PM PST

Dave Weigel on Obama and Racism

by Armando

Dave Weigel, who many progressives like, tweeted this:

Proud to say I never liked Weigel.

Discuss
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