Stimulus, Response

As the stimulus package works its way through Congress, many of you faithful readers are no doubt recalling the last time Congress gave us a "tax rebate" as part of an effort to pump up the economy, in 2001. There was a lot of discussion at the time about whether the rebate was actually a lowering of taxes or merely an "advance" of one's tax refund for that year. The proper characterization of the $300 or $600 check many people received that year was actually somewhat complicated. That was the year of the Bush tax cuts. Congress lowered tax rates and the IRS sent us checks in advance that recognized some of the lower rates to which we would be subject that year.

But however you looked at the 2001 checks, the checks proposed for this year seem to be real tax reductions. Of course nothing has passed Congress yet and anything could happen, but the language in the House-passed bill seems pretty clear: "there shall be allowed as a credit against the tax imposed by subtitle A for the first taxable year beginning in 2008 an amount equal to the lesser of— (1) net income tax liability, or (2) $600 ($1,200 in the case of a joint return)." So assuming you get the money (another section phases it out if you earn more than $75,000), it really would lower your taxes. This isn't just an advance, it's a rebate.

Under Some Murky Water

Attorney General Michael Mukasey can't say whether waterboarding constitutes torture, because "Any answer I give could have the effect of articulating publicly -- and to our adversaries -- the limits and contours of generally worded laws that define the limits of a highly classified interrogation program." However, he did say that waterboarding is not currently being used by the CIA to interrogate suspected al Qaeda members.

OK, let me get this straight. We would be tipping off the enemy and breaching security if we got a legal opinion from the Attorney General about the lawfulness of waterboarding. But publicly stating whether or not we're actually using waterboarding -- now that's just fine.

There really seems to be no limit to the duplicity of the administration.

Those Hidden Earmarks

Here's an interesting tidbit that may not have sprung out at you as you dutifully watched President Bush's State of the Union address last night: the President said that he will, today, issue an executive order instructing federal agencies to ignore earmarks that aren't actually included in legislation.

The sound you hear is wailing, gnashing of teeth, and hell generally breaking loose on capitol hill. If the President gets away with this, it will be a big change in how things get done.

Of course, the real mystery is how earmarks have survived so long without being legislated. The way things have traditionally worked, it often happens that the actual text of appropriations legislation just specifies a lump sum for a general activity, and the "earmark" of a particular amount for something like a bridge to nowhere is included, not in the text of the law, but in a committee report accompanying the law.

Committee reports are not actually binding. The law is binding. Why do agencies follow committee reports at all? Presumably, they're afraid of what will happen to them the following year if they don't do what the committee wanted. But the executive officially answers to the law, not to a committee.

So I would say the President is on solid legal ground on this one. But politically, he's asking for more trouble than Bill Clinton could cause in a whole room full of White House interns. Considering what a low political ebb Bush is at, I'm surprised he's taking it on.

A Year to Go

President Bush makes his last State of the Union address tonight. We have one year left -- actually a bit less, 358 days -- before we finally get someone, anyone, other than this Bush as our President.

Look at our military. It's hard to believe now that Bush ran for office on a campaign that claimed that President Clinton had destroyed the military at that he would rebuild it. What's happened over the last seven years? Even Bush's most ardent supporters would have to agree that the military has been stretched to the breaking point by Bush's military adventures.

Look at our international standing. The day after 9/11, Le Monde captured world sentiment by proclaiming "we are all Americans." The President had a unique opportunity to build on international good will. Today, the world looks at America with apprehension and suspicion.

Look at our pocketbooks. After seven years of Bush's "pro-business", "ownership society" policies, the S&P 500 Index is slightly lower than it was the day he took office. Remember, the typical growth of the index is about 10% per year. Over seven years, it should be up about 95%. In eight years of the Clinton presidency, it was up 208.5%. Instead, our retirement portfolios are unchanged over seven years and we can look forward to working longer before we can retire.

The list could go on. But boy, I am sure ready for a different President. A year to wait.

More Tiresome Textualism

Imagine that you're a judge deciding a case brought by a federal prisoner. The prisoner complains that, while he was being transferred from one prison to another, the prison system lost some of his property. He claims $177 as the value of the lost property.

Seems reasonable enough, and, fortunately, Congress, over 60 years ago, passed the Federal Tort Claims Act to make the United States as liable as any private party for torts such as losing someone's property.

But wait! The government (probably spending $50,000 to avoid paying this $177) points out that an exception to the FTCA provides that the United States is not liable for:

"Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer."

Here's the key question: does this statute have anything to do with the case?

If you said, "Gee, this exception seems to be all about customs and excise matters. It doesn't seem to have anything to do with property getting lost in the Bureau of Prisons. It's hard to imagine that Congress would write a statute covering the Bureau of Prisons in this roundabout way," give yourself four points out of a possible nine.

If you said, "The exception covers 'any claim arising in respect of . . . the detention of any . . . property by . . . any other law enforcement officer,' so the clear text of the statute covers the case and that's the end of the matter," you get five points and win.

That is, five out of nine Supreme Court Justices ruled against the prisoner on Tuesday.

Once again, our illustrious Supreme Court gets itself so caught up in parsing text finely that it loses sight of what interpretation is all about.

I don't want to be unfair to the Justices. If you look at the full opinion, you'll see that they gave this one a pretty good try -- recognizing that there were some arguments cutting in the prisoner's favor. And, again, to be fair, there is one more thing I haven't mentioned that makes this a tough case: the statute includes an exception to the exception (passed much more recently) that seems broader in scope.

But the critical point, best expressed in Justice Breyer's dissenting opinion, is that "Congress does not hide elephants in mouseholes." If Congress meant to cover all losses of property by any government law enforcement officer doing anything, that's a pretty big category -- probably bigger by far than the category of officers engaging in customs and excise tasks. It's just not plausible to think that Congress would express its desire in a way that's so focused on customs and excise. The tail would be wagging the dog.

This is not the easiest case. The language does permit the Court's broad interpretation. I'm not saying it's a slam dunk the other way. But the Court should give more consideration to which is the better interpretation, and which interpretation better comports with the evident function that the statute is supposed to play.

In the meantime, hang on to your property when the feds come around. Apparently, if some FBI officer takes a liking to your laptop, there's nothing you can do about it.

Another Movie Star

Are movie stars and other celebrities especially likely to die in their youth of a drug overdose?

My snap judgment, based on absolutely no research, is no.

Sure, it's easy to name any number of Hollywood celebrities who've died prematurely after involvement with drugs (River Phoenix, John Belushi, and Chris Farley come to my mind immediately). But what you have to remember is that movie star deaths are reported. That makes it difficult to judge whether they are more likely to die young from a drug overdose than anyone else.

Doubtless there are hundreds, probably thousands, of drug overdose deaths that we never hear about. Movie star deaths have high salience.

The moral is to be careful about judging frequencies based on casual knowledge. It takes a real study to make a judgment about something like this.

Literary Dilemma

A lot going on in the news today, but the piece that most caught my attention was this article in Slate about the choice faced by Dmitri Nabakov, son of novelist Vladimir Nabakov: whether to publish his father's last, hitherto-unpublished manuscript, or to destroy it -- as his father wished.

I think it depends mainly on why his father wanted it destroyed. There seem to be various possibilities. But let me just focus on one, which is at least suggested by some of the linked article: Nabakov senior wanted the manuscript destroyed because he didn't regard it as good enough to constitute a finished, publishable work.

If that's the reason, I say burn it. Just imagine what would happen if the manuscript got published. Nabakov devotees everywhere would turn to it with tremendous expectation and probably be disappointed. No harm, you say? I think there is harm: in my experience, reading an inferior work is not only disappointing in itself but can retroactively diminish the pleasure of reading the same author's good works.

Consider The Cunning Man by Robertson Davies, published shortly before his death. It's a disappointing mishmash -- it reads as though Davies was hauling out all his pet literary devices one last time, but didn't know what to do with them any more. It's all tricks and no substance. Having read it, one sees more clearly the influence of the same tricks in Davies's previous, excellent novels, and the pleasure of having read them is somewhat diminished.

Obviously, I don't know anything about the quality of Nabakov's unpublished manuscript, but I think it's appropriate for authors to want the public to know them only by their good works, not the ones they never finished, either because they just didn't get around to it or because they abandoned them as inferior. So if (note the if) the reason Nabakov didn't want this manuscript published was his feeling that it wasn't up to snuff, I say snuff it.

My only hesitation is that this rule would probably have denied us the opportunity to read Franz Kafka's The Trial, which Kafka desired to send to the fire and which was saved only by his literary executor Max Brod's decision not to respect Kafka's wishes. But at least Brod explained that he had told Kafka in advance that he wouldn't burn works that Kafka left in his care, and also that Brod thought the works in question (also including The Castle) were in fact Kafka's best.

So perhaps Dmitri should temper the rule a little by reaching his own, independent judgment about the quality of the unpublished manuscript. If it's the master's final masterpiece, maybe that would be grounds for disregarding the master's wishes. But given that the whole thing apparently amounts to only thirty manuscript pages, I have a suscipion that it's probably not Nabakov's greatest work, but something more like an idea that he never really pursued. We're all better off not reading it.

Pwned by Paul

I know that Rudy Giuliani's primary strategy doesn't involve running in any place where voters are actually casting votes, but still, it must be rather disappointing to end up with less than half as many votes as Ron Paul. Bad enough to be beaten by Fred Thompson, who got 3.7% of the Michigan votes to Giuliani's 2.8, but Ron Paul got almost as many votes as the two of them put together (6.3%).

Ah, Rudy, where is your front runner status now? Better get a big win in Florida.

Onward to Vista

I finally made the big switch to a new computer with Microsoft's Windows Vista. "It's all about the wow," said the campaign slogan. Frankly, "wow" is not the term that comes to mind when I use Vista -- it's not that different from XP, when you get right down to it.

But one difference, aptly spoofed by Apple in its "security" ad, is Vista's habit of asking you to confirm that you actually want to do what you just asked for. This is to prevent some evil worm from taking over your computer and doing nasty things.

But my question is this: if a worm can sneak in and tell your computer to reset your modem (say), how long will it take before the worm learns how to simulate the "confirm" approval? I'm guessing this is a lot of bother for not that much actual security.

Wall Street Review

Sorry for the lack of blogging last week; I was away at the AALS Conference of law professors.

As the trading year begins for 2008, I thought I'd do a brief check-in on Wall Street. Our illustrious president, you will recall, has spent years promoting the "ownership society," featuring, among other things, "Expanding Ownership of Retirement Assets." The message, I take it, is that we're all supposed to keep an eye on our investment portfolios and thank the Republicans for their business-friendly policies that will pump up our returns.

The result? Well, as I write, the S&P 500 index is at 1414 and the Nasdaq Composite index is at 2498. On the day President Bush took office, they were at 1342 and 2770, respectively. Thus, under our business-friendly, owernship-society, Republican President, the S&P is up 5.3% over seven years and the Nasdaq is down 9.8%.

Meanwhile, under the presidency of those left-wing, business-hating, over-regulating, squash-the-economy Democrats, the S&P 500 went up 208.5% and the Nasdaq went up 297.6%, from 1993-2001. And yes, there was some tech bubble in those figures, but, if you will recall, the bubble burst in March 2000, so those are really the post-bubble totals.

Sheesh. All that work by Republicans to make the rich richer, and those of us in S&P 500 index funds would have done far better with T-bills. And that's over seven years. Seven years of investments going nowhere, and we haven't even seen the full fallout of the housing bubble burst. Could we bring back the Democrats, please?

Pro Forma Redux

Once again the Senate is engaging in pro forma sessions every three days, in order to thwart President Bush's ability to make recess appointments. Apparently Senator Jim Webb of Virginia, who's now presided over such sessions several times, has the thing down to 10 seconds.

As I mentioned before, there's a reasonable argument that the President's recess appointment power doesn't apply during intrasession recesses anyway: the Constitution says that the President can make a recess appointment during "the recess" of the Senate, not during "a recess" of the Senate. The definite article "the" suggests that the Framers were thinking about the recess that occurs between Senate sessions, not just any old recess, such as the one that occurs every day when the Senate goes to lunch. Indeed, that was the understanding of the Recess Appointment Clause explicitly announced by Attorney General Philander Knox in 1901.

But this point inevitably makes one think about the upcoming intersession recess. At some point, the Senate has to end its current session and start its new session. That's currently scheduled to occur on January 22. Even assuming the Senate holds one last pro forma meeting as part of its current session on that very day, there will have to be at least a moment when the Senate is between the two sessions.

Not enough time for mischief, you say? You underestimate the mischievous minds of Presidents. On December 7, 1903, when Teddy Roosevelt was President (and when the recess appointment power was understood to apply only during intercession recesses), the Senate was in a special session called by the President on November 9. At some point on December 7, the Presiding officer banged the gavel to end the special session and then immediately banged it again to start the new, regular session. And President Roosevelt later announced that in the instant between the two gavel bangs, when the Senate was in a genuine, bona fide, but very brief intercession recess, he had made 160 recess appointments!

If President Teddy Roosevelt was ready to play games like that, just imagine what President Bush would do.