Month: January 2015

They will never quit

by digby

Ever:

With a fight over Social Security brewing in the new Republican Congress, advocates are worried that a possible GOP angle is to turn Social Security into a perennial crisis in much the same way raising the debt limit has become. By setting up a series of forcing events, the argument goes, Republicans would be able to create an ongoing crisis atmosphere around Social Security that would create a pretext for dramatic changes to the 80-year-old program.

As TPM has documented, the House passed a rule on the first day of the new Congress that prohibited the routine transfer of tax revenue between Social Security’s retirement and disability funds, the latter of which will stop being able to make full benefit payments starting in late 2016. The transfer, known as reallocation, has been done under Democratic and Republican administrations multiple times in the past, most recently in 1994, but the new House rule forbids it unless it is accompanied by measures that improve the overall solvency of Social Security.

House Republicans have been transparent about their intentions of using the new rule to force a debate on changes to the program, while advocates and Democrats warned that the rule could lead to benefit cuts. But there is another possibility: Republicans could pass a short-term reallocation that would set up another shortfall a few years down the road — and one that could arrive under a new Republican president.

It would in theory turn Social Security reallocation into something akin to the debt ceiling of the last few years: A formerly routine accounting move that the GOP is now trying to use as a leverage point to advance conservative proposals. Advocates told TPM that it was a scenario they were taking seriously.

“Just as with the debt limit, Congress could require regular short-term action, keeping a climate of crisis and requiring new legislation frequently,” Nancy Altman, co-director of Social Security Works, told TPM. Advocates are pushing for a clean reallocation, which is projected to keep both funds solvent until 2033.

And remember, these deficit fetishists are always wrong about everything:

August 28, 1996

CHICAGO – Sen. Bob Kerrey smells an odor coming from the Republican and Democratic stands on entitlements.

“It’s one of the cruelest things we do, when we say, Republicans or Democrats, `Oh, we can wait and reform Social Security later,’ ” the Nebraska Democrat said.

Mr. Kerrey says that without reform, entitlements will claim 100 percent of the Treasury in 2012.

“This is not caused by liberals, not caused by conservatives, but by a simple demographic fact,” Mr. Kerrey warned at a meeting of the Democratic Leadership Council.

“We [will have] converted the federal government into an ATM machine.”

Yes, that is a Democrats saying that. And there are plenty of them today who believe the same nonsense. At some point I have no doubt that the GOP will wear them down and train them to reflexively give in rather than undergo repeated crises. They are Pavlov’s dogs. And Pavlov wants some of that social security money for his portfolio.

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by digby

It took them a while, but they did it:

In the last four years, ForAmerica has quietly amassed what it likes to call a “digital army” on Facebook—a force that that now numbers more than 7 million. The group’s spectacular growth can be explained in part by the paid acquisition of its members through targeted advertising. But thanks to a daily stream of savvy and snackable red-meat messaging, these mercenaries have become loyal conservative digital soldiers whose engagement is attracting new recruits. These days, a routine post on ForAmerica’s page reaches more than 2 million people, achieves more than 100,000 “likes,” and has tens of thousands of people repost and comment. 

But shutting down the White House switchboard this summer was just a warm-up act. Bozell and his father, Brent Bozell, the group’s chairman and a fixture in the hard-liner wing of GOP politics, have been positioning their troops for a bigger battle: policing the 2016 Republican presidential race. 

“Anybody who runs as a conservative,” Brent Bozell declared, “is going to have to satisfy our army.” 

Already, the Bozells have proved willing—if not eager—to direct their army’s rage against fellow Republicans. They jammed the lines of Mitch McConnell’s campaign office in the final days of his crucial reelection contest, accusing the senator of sounding wobbly on repealing Obamacare. Just last week ForAmerica urged its members to dial up House Majority Whip Steve Scalise and demand he toe the conservative line on immigration. These pressure campaigns are orchestrated by the Bozells, but executed by their group’s excitable, activist base.

For a long time the left was way ahead of the right on the internet. And I’d guess they still are in some respects. But there was no way the right wouldn’t figure out how to harness the grassroots through this new medium. They were the ones who invented direct mail, which built the conservative movement over decades.

And whatever medium they use, they are extremely good at getting their message across to their base and keeping them active and engaged. They changed the face of American politics.

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Guess who set the little landmine called the “subsidy clawback”?

by digby

Brian Beutler makes an excellent argument in this piece that the Republicans knew very well that the ACA anticipated that states would use a federal exchange, the basis of the ridiculous suit before the Supreme Court called Burwell vs King. It has to do with the subsidy clawback that I and other have been complaining about and which we are going to hear a lot more about once people sit down to do their taxes.

I somehow missed the fact that this wasn’t in the original ACA but was rather a 2011 proposal by the House Republicans — a proposal with which the Democrats ended up agreeing and which the president signed. WTF!

Here’s a contemporaneous account from CJR:

The health reform law, aka the Affordable Care Act, took a hit last week. Many journos, though, were apparently snoozing. In a talk at the annual meeting of the Association of Health Care Journalists, Washington and Lee University law professor Timothy Jost revealed that the president had just signed a bill giving the business community a present it had been wanting in the worst way. The much-despised 1099 form reporting requirements to the IRS were finally gone. What does that have to do with health reform, you might ask? It means, said Jost, “Many Americans are going to be shocked to discover when they figure up their taxes at the end of the year that what they thought was a grant was in fact a loan.”

It seems that when the reform law was moving through Congress, lawmakers needed to raise revenue to pay for the subsidies that millions of the uninsured will receive to buy health policies come 2014. They had to do that without overtly raising taxes so they settled on a plan that would require firms to report transactions totaling at least $600 a year paid for goods and services. The idea was to capture unreported tax revenue—estimated at some $22 billion—that could be used to pay for the subsidies.

Businesses howled and ran to Congress where Dems and Republicans alike agreed the reporting requirements were too onerous—too much paperwork, and one of the “tweaks” began winding its way through the legislative process. To get rid of the reporting rules, legislators had to find additional money to make up for the revenue they had counted on from the 1099 reporting requirement. Where did they find it? You guessed it —from those who would receive the subsidies in the first place. As part of the same bill, Congress required those receiving subsidies to pay back any extra subsidies resulting from changes in income. What Congress gives, it can also take away.

Jost explained to reporters that the government will pay subsidies to insurers in advance each month, based on past and estimated future income. But the day of reckoning comes at the end of the year when the government will want to know if it overpaid on someone’s behalf. And that can easily happen. Said Jost:

Income is often unstable in low income families. A person may work 40 hours one week, 20 or none at all the next. Projecting income over a year is very difficult. A person may lose or secure a reasonably well paid job half way through the year, making household income look very different on April 15 than when the benefits were received.

A family with an income around $67,000—about 300 percent of the federal poverty level—who has a child move out of the house halfway through the year, could end up owing up to $2500 on tax day.
Jost offered other observations for reporters writing about health reform—and for the public, too. The reform law ends the insurance practice of checking up on your health when you apply for a policy and refusing to issue a policy to people who have expensive health conditions.

Insurance will thus cost more for the healthy and less for the unhealthy. What people pay will also be related to their age. Most of the time older people will pay more than younger ones. But in general, Jost said: “Premiums are likely to be quite costly for those who do not receive premium assistance,” he said. In fact, he added, “premiums will go up significantly” for those who don’t qualify for subsidies. A bad omen!

So these rising costs and the clawbacks are tied together. This bundle has been one of the most underreported stories in the whole health care discussion.

And we expect that the Democrats will do anything in their power to maintain what’s left of the integrity of the ACA? Jesus, they didn’t even fight this in the very beginning, and the president, whose name is attached to it, signed on the thing. Who needs the Supreme Court?

The other problem is that the exchanges didn’t say much about this last year. And if they had, people would have looked much more closely at the real cost of their insurance policy in order to gauge how much they might owe if they had to pay back the subsidy. This makes it risky for a fair number of people to participate fully in the program and get the best insurance available to them. What you end up doing is buying the cheapest policy regardless of the subsidy, because you are afraid of how much will owe the government if you make a mistake or do better financially than you expected to do.

I can easily see why the wily Republicans wanted to do this. It’s a little bit more mysterious as to why the Democrats did. Stupid or dishonest? You decide.

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“A nation of infantilized yahoos”

by digby

This piece about the Patriots and their balls is why I’ve always thought Charles Pierce is one of the best writers in America. He never, ever, ever falls for the bullshit.

I’m so glad the whole nation is in an uproar over the integrity of the NFL and the sport of football. If we burn someone at the stake over this monumental scandal perhaps they will show some concern about the epidemic of head injuries and domestic abuse. Baby steps …

*And no, I’m not a Patriots fan making excuses. I’m a 49ers fan. (So shoot me ..;)

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Laying it on a little thick don’t you think?

by digby

Of course the Saudi government has only beheaded 15 people so far in 2015, so I guess all the plaudits are appropriate:

The US government isn’t the only allegedly civilized Western nation to be lugubriously eulogizing the King of Saudi Arabia today. They all are.

Think about that the next time somebody lectures you about failing to understand the threat of Islamic fundamentalism.

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Are we not Ubermen?
by Tom Sullivan

Those using the Gregorian calendar count the years since the birth of Christ as Anno Domini, A.D. Bullshit is probably a lot older. But given that it’s a new millennium, maybe it’s time we started counting the years in A.B. “One of the most salient features of our culture,” as Aaron Hanlon quotes philosopher Harry Frankfurt at Salon, “is that there is so much bullshit.”

Case in point. In its obsession with turning everything on this planet into the Precious (other planets will come later), the Midas cult has turned its sights on sleep because “sleep is the enemy of capital.” Thus, sleep must be abolished. From caffeine-laced Red Bull to topical sprays to marshmallows, “perky jerky,” and military experiments with transcranial direct current stimulation (tDCS), Newsweek  looks at how we are waging the war on sleep:

For those looking to sleep less without drugs or military tech, there’s the “Uberman” sleep schedule: 20 minute naps taken every four hours. That’s just two hours of sleep in every 24 hours. Uberman is based on the theory that while humans experience two types of sleep, we only need one of those to stay alive. Rapid eye movement (REM) sleep is the stage in which we dream, and it also has been shown in lab tests to be critical to survival: Rodents deprived of REM sleep die after just five weeks. Then there is non-REM sleep, which itself is broken down into four separate stages. One of those is short wave sleep (or SWS). Scientists aren’t really sure what function SWS serves, and Uberman advocates argue that it may not be critical to survival at all.

We spend only 20 percent of our sleeping time in REM sleep, and, usually, we need to work our way up to it, going through non-REM sleep first. But according to the Polyphasic Society, a segmented-sleep advocacy group, that’s a waste. They say the Uberman and sleep schedules like it can force the brain to reconfigure its sleep cycle to avoid the non-REM sleep and jump straight into REM, saving a handful of precious, precious hours every day. The disadvantage? Physical stress, even to the point of lifting heavy objects, can cause Uberman sleepers to unexpectedly “black out.”

That’s nice.

In service to the Midas cult, Americans are working over a month more per year than they did in 1970, Newsweek  reports, “137 hours longer than the Japanese, 260 hours longer than the British and 446 hours longer than the Germans, according to a report put out by the United Nations’ International Labor Organization.” And looking for ways to work even longer hours with even less sleep. Because, Betsy Isaacson writes, “Sleep is perceived to be the enemy of efficiency…”

And why? Because any human inefficiency, anything not critical to (some humans’) survival, anything that stands in the way of converting every human relationship, every human emotion, every waking hour (or unconscious hour, if that can be arranged) into the Precious must be eradicated.

Can you say pathological? Sure, I knew you could.

The grown ups are definitely back in charge. Unfortunately they’re morons.

by digby

I apologize to future generations for this irresponsible circus. There’s just no excuse for this:

Addressing his Senate colleagues before the vote, Inhofe once again cited the Bible to argue that the climate does indeed change but that humans aren’t the cause. “Climate is changing, and climate has always changed,” said Inhofe, who chairs the Senate’s Environment and Public Works Committee. “There’s archeological evidence of that. There’s biblical evidence of that. There’s historic evidence of that.” He continued: “The hoax is that there are some people who are so arrogant to think that they are so powerful, they can change climate. Man can’t change climate.” You can watch the back-and-forth above.

And with that, every Republican except Roger Wicker (R-Miss.), voted “aye.” The amendment passed 98-1, and the Senate was on record agreeing to the obvious fact that climate change sometimes occurs.

But they weren’t done. Next, Republicans brought up their own climate amendment, which stated that climate change is indeed “real” and that human activity “contributes” to it. This amendment got 59 votes (one short of the 60-vote threshold for passage), but just 15 of the chamber’s 54 Republicans supported it.

And of course, the scientific consensus isn’t merely that human activity “contributes” to climate change. Rather, scientists say that humans are the “dominant cause” of the recent warming. That was the subject of a third amendment, from Democrat Brian Schatz (Hawaii), which stated that human activity “significantly contributes” to climate change. That was too much for Sen. Lisa Murkowski, who objected specifically to the word “significantly.” Murkowski, an Alaska Republican who chairs the Senate Committee on Energy and Natural Resources, urged her colleagues to vote no. In the end, Schatz’s amendment received just 50 votes, and only five of those came from Republicans.

This is an embarrassing. Humiliating really. The leaders of the free world are cretinous imbeciles.

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Scary

by digby

This was essentially a political trial designed to scare the bezeejuz out of anyone who goes anywhere near Anonymous.

A court in Dallas has sentenced Barrett Brown to 63 months in federal prison, minus 28 months already served. For count one in the case, he receives 48 months. For count 2, he receives 12 months. And for count 3, he receives 3 months. He is also ordered to pay $890,000 in restitution.

The government’s charges against the intelligence and security reporter stemmed from his relationship with sources close to the hacker group Anonymous, and the fact that Brown published a link to publicly-available copies of leaked Stratfor documents.

Brown read a statement to the court during the sentencing hearing, and you can read that statement in entirety here.

“Journalists are especially vulnerable right now, Your Honor, and they become more so when the FBI feels comfortable making false claims about them,” Brown wrote:

Deny being a spokesperson for Anonymous hundreds of times, and you’re still a spokesperson for Anonymous. Deny being a journalist once or twice, and you’re not a journalist. What conclusion can one draw from this sort of reasoning other than that you are whatever the FBI finds it convenient for you to be at any given moment. This is not the “rule of law”, Your Honor, it is the “rule of law enforcement”, and it is very dangerous.

From our earlier coverage:
[…]
Among the secrets exposed were collaborative efforts between the government and private contractors to monitor social networks, and to develop online surveillance systems.

Brown, 33, was arrested in 2012 after his and his mothers’ homes were raided and he used “threatening” language toward FBI officers in a response posted to YouTube. He was subsequently accused of working with the hackers whose efforts yielded a huge tranche of embarrassing and revealing information concerning misbehavior and sleaze at U.S. government contractors.

Among the charges was the claim that merely linking to the leaked information was illegal—an alleged crime for which prosecutors sought decades in prison and which roused the interest of press freedom groups.

Hacking is one thing. It’s not the same a linking to publicly available documents. And yet he was convicted of doing that.

In case you don’t recall what that “collaborative effort” was, Lee Fang’s story in the Nation hits the highlights of the plan. And this story, also in the Nation spells out Brown’s role in exposing it. (Read the beginning of it to get a sense of who Brown was — a satirist/journalist in the Hunter S Thompson mold.)

This is the story in a nutshell:

In February 2011, a year after Brown penned his defense of Anonymous, and against the background of its actions during the Arab Spring, Aaron Barr, CEO of the private intelligence company HBGary, claimed to have identified the leadership of the hacktivist collective. (In fact, he only had screen names of a few members). Barr’s boasting provoked a brutal hack of HBGary by a related group called Internet Feds (it would soon change its name to “LulzSec”). Splashy enough to attract the attention of The Colbert Report, the hack defaced and destroyed servers and websites belonging to HBGary. Some 70,000 company e-mails were downloaded and posted online. As a final insult to injury, even the contents of Aaron Barr’s iPad were remotely wiped.

The HBGary hack may have been designed to humiliate the company, but it had the collateral effect of dropping a gold mine of information into Brown’s lap. One of the first things he discovered was a plan to neutralize Glenn Greenwald’s defense of Wikileaks by undermining them both. (“Without the support of people like Glenn, wikileaks would fold,” read one slide.) The plan called for “disinformation,” exploiting strife within the organization and fomenting external rivalries—“creating messages around actions to sabotage or discredit the opposing organization,” as well as a plan to submit fake documents and then call out the error.” Greenwald, it was argued, “if pushed,” would “choose professional preservation over cause.”

Other plans targeted social organizations and advocacy groups. Separate from the plan to target Greenwald and WikiLeaks, HBGary was part of a consortia that submitted a proposal to develop a “persona management” system for the United States Air Force, that would allow one user to control multiple online identities for commenting in social media spaces, thus giving the appearance of grassroots support or opposition to certain policies.

The data dump from the HBGary hack was so vast that no one person could sort through it alone. So Brown decided to crowdsource the effort. He created a wiki page, called it ProjectPM, and invited other investigative journalists to join in. Under Brown’s leadership, the initiative began to slowly untangle a web of connections between the US government, corporations, lobbyists and a shadowy group of private military and information security consultants.

One connection was between Bank of America and the Chamber of Commerce. WikiLeaks had claimed to possess a large cache of documents belonging to Bank of America. Concerned about this, Bank of America approached the United States Department of Justice. The DOJ directed it to the law and lobbying firm Hunton and Williams, which does legal work for Wells Fargo and General Dynamics and also lobbies for Koch Industries, Americans for Affordable Climate Policy, Gas Processors Association, Entergy among many other firms. The DoJ recommended that Bank of America hire Hunton and Williams, explicitly suggesting Richard Wyatt as the person to work with. Wyatt, famously, was the lead attorney in the Chamber of Commerce’s lawsuit against the Yes Men.

In November 2010, Hunton and Williams organized a number of private intelligence, technology development and security contractors—HBGary, plus Palantir Technologies, Berico Technologies and, according to Brown, a secretive corporation with the ominous name Endgame Systems—to form “Team Themis”—‘themis’ being a Greek word meaning “divine law.” Its main objective was to discredit critics of the Chamber of Commerce, like Chamber Watch, using such tactics as creating a “false document, perhaps highlighting periodical financial information,” giving it to a progressive group opposing the Chamber, and then subsequently exposing the document as a fake to “prove that US Chamber Watch cannot be trusted with information and/or tell the truth.” In addition, the group proposed creating a “fake insider persona” to infiltrate Chamber Watch. They would “create two fake insider personas, using one as leverage to discredit the other while confirming the legitimacy of the second.” The leaked e-mails showed that similar disinformation campaigns were being planned against WikiLeaks and Glenn Greenwald.

It was clear to Brown that these were actions of questionable legality, but beyond that, government contractors were attempting to undermine Americans’ free speech—with the apparent blessing of the DOJ. A group of Democratic congressmen asked for an investigation into this arrangement, to no avail.

By June 2011, the plot had thickened further. The FBI had the goods on the leader of LulzSec, one Hector Xavier Monsegur, who went under the nom de guerre Sabu. The FBI arrested him on June 7, 2011, and (according to court documents) turned him into an informant the following day. Just three days before his arrest, Sabu had been central to the formation of a new group called AntiSec, which comprised his former LulzSec crew members, as well as members as Anonymous. In early December AntiSec hacked the website of a private security company called Stratfor Global Intelligence. On Christmas Eve, it released a trove of some 5 million internal company e-mails. AntiSec member and Chicago activist Jeremy Hammond has pled guilty to the attack and is currently facing ten years in prison for it.

The contents of the Stratfor leak were even more outrageous than those of the HBGary hack. They included discussion of opportunities for renditions and assassinations. For example, in one video, Statfor’s vice president of intelligence, Fred Burton, suggested taking advantage of the chaos in Libya to render Lockerbie bomber Abdelbaset al-Megrahi, who had been released from prison on compassionate grounds due to his terminal illness. Burton said that the case “was personal.” When someone pointed out in an e-mail that such a move would almost certainly be illegal—“This man has already been tried, found guilty, sentenced…and served time”—another Stratfor employee responded that this was just an argument for a more efficient solution: “One more reason to just bugzap him with a hellfire. :-)”

(Stratfor employees also seemed to take a keen interest in Jeremy Scahill’s writings about Blackwater in The Nation, copying and circulating entire articles, with comments suggesting a principle interest was in the question of whether Blackwater was setting up a competing intelligence operation. E-mails also showed grudging respect for Scahill: “Like or dislike Scahill’s position (or what comes of his work), he does an amazing job outing [Blackwater].”)

When the contents of the Stratfor leak became available, Brown decided to put ProjectPM on it. A link to the Stratfor dump appeared in an Anonymous chat channel; Brown copied it and pasted it into the private chat channel for ProjectPM, bringing the dump to the attention of the editors.

Brown began looking into Endgame Systems, an information security firm that seemed particularly concerned about staying in the shadows. “Please let HBGary know we don’t ever want to see our name in a press release,” one leaked e-mail read. One of its products, available for a $2.5 million annual subscription, gave customers access to “zero-day exploits”—security vulnerabilities unknown to software companies—for computer systems all over the world. Business Week published a story on Endgame in 2011, reporting that “Endgame executives will bring up maps of airports, parliament buildings, and corporate offices. The executives then create a list of the computers running inside the facilities, including what software the computers run, and a menu of attacks that could work against those particular systems.” For Brown, this raised the question of whether Endgame was selling these exploits to foreign actors and whether they would be used against computer systems in the United States. Shortly thereafter, the hammer came down.

The FBI acquired a warrant for Brown’s laptop, gaining the authority to seize any information related to HBGary, Endgame Systems, Anonymous and, most ominously, “email, email contacts, ‘chat’, instant messaging logs, photographs, and correspondence.” In other words, the FBI wanted his sources.

At that point the FBI put the squeeze on Brown’s mother and Brown “snapped” going on youtube and making a stupid video that threatened the FBI and that was that. (Another episode of “When smart people do dumb things” …)

But what’s most interesting to me about this story is that nobody cares about what was revealed in the HBGary documents. I doubt that more than a handful of people are even aware of them. I find that a bit mind-boggling.

Meanwhile Barrett Brown has been in jail already for years awaiting trial. And he’s going to stay in for quite a lot longer.

I hope I live long enough to see how this is treated in historical terms. It certainly looks like injustice at the moment.

Here’s Barret Brown’s statement at his sentencing.

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QOTD: You didn’t build that edition

by digby

Via Right Wing Watch

By now we all know that President Obama wants universal community college: free tuition for every person in America. But I’m having a hard time finding where the Constitution mandates that every American is entitled to an associate’s degree. We are now six years into the Obama presidency and they have a reputation for being less than truthful. Take for example this notion of free community college.

It turns out that free education is going to cost American taxpayers $60 billion over the next decade, and that doesn’t even include all of the free condoms and cell phones and medicinal marijuana bongs. You know, back when I was growing up, college kids were expect to work their way through school, it was considered shameful to ask for a handout. But this is Obama’s America and the entitlement crowd thinks that they are entitled to our money.

Wow. They’re giving away free condoms and medicinal marijuana bongs in college? I think that’s great. Good public health is good for all of us. And if everyone had cell phones we’d all be safer. These strike me as excellent, low cost benefits.

But I take issue with Starnes’ assertion that nobody got a handout back in the day when he went to college:

Starnes went to Georgia State University. Let’s just say it’s not a private school. It appears that tarnes felt he was entitled to quite a bit of the Georgia taxpayers money.

And in the 1980s when Starnes went to college, tuition was far less than it is today and the government picked up much more of it:

Judicial Activism for me but not for thee

by digby

I wrote a piece for Salon today on the subject of “judicial activism” and the history of the use of the term on the right going back to the 1950s. Here’s an excerpt:

Back in 2002, Phyllis Schlafly’s Eagle Forum sent out this warning declaring that the judicial activism was “the biggest issue of the 2002 election.” Think about that. It was one year after 9/11 and Schlafly didn’t miss a beat. By 2005, at the height of their power controlling both houses of congress and the White House, conservative legal scholars held a meeting in Washington at which Tom Delay, then the powerful House majority whip declared:

“The sanctity of the Constitution is under assault from many different directions. “The branch of government charged with maintaining the sanctity of the Constitution no longer feels bound by the constraints of that same Constitution. The courts today recognize no limits on their authority. They legislate with reckless abandon. They overturn the will of the people as expressed through their legislative representatives. What we’re left with is an imperial judiciary that knows no bounds to its power or its tenure. This is a recipe for tyranny!

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He then brought the crowd full circle to be met with energetic applause from the room full of conservative lawyers:

“America’s founders believed that impeachment could be an effective way to keep the judiciary within its proper bounds. When judges exercise power not delegated to them by the Constitution, I think impeachment is a very proper tool.”

The 2008 GOP Platform had this to say about it:

“[J]udicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public.”

Even today, National Review has a recurring feature on their web-site called “This Day in Liberal Judicial Activism.” It has a part of GOP dogma for so long that all a candidate has to do is utter the words in a stump speech and the well primed crowd will cheer and hoot as if he’d just declared the end of World War II. Nothing has been more fundamental to modern conservatism than the notion that the federal judiciary must be restrained from any decision that overturned precedent (or Scalia’s time travelling mind-meld with Alexander Hamilton) lest they betray our most cherished constitutional principles.

So what are we to make of Republican Senator Rand Paul who just last week stood before the Heritage Foundation and declared, “I am a judicial activist”? (They didn’t escort him out of the building.) This piece by Ian Millhiser at Think Progress explains what Paul meant by it, which also explains why a room full of conservative activists didn’t explode in anger:

Lest there be any doubt that Senator Paul, himself an elected official, believes that the problem with American government is that it gives the people too much say over how they are governed, Paul endorses the Supreme Court’s long-ago overruled decision in Lochner v. New York. Lochner, which Paul has also praised on the Senate floor, invented a so-called “right to contract” that employers could use to resist laws protecting their workers. The idea was that the Constitution places strict limits on any laws that interfere with people’s ability to enter into contracts. So if an employer wants their employees to work 18 hours days, or if it wants them to sign away their right to unionize, or if it wants to pay them just a few pennies an hour, then the workers who agree to do so cannot seek refuge in the law even though they were forced into these jobs by desperate circumstances.

For decades, the Supreme Court wielded Lochner to strike down minimum wage laws, laws protecting the right to organize, and similar protections for workers. Lochner is now taught in many law schools as an example of how judges should never, ever behave.

Read on …

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