The sheer number of patents in the U.S. is fueling frivolous litigation and drastic action is needed to make patents more difficult to obtain and easier to invalidate, U.S. Circuit Judge Richard Posner of the Seventh Circuit said Tuesday. > more ... (0 comments)
I’ve been thinking about this argument by Kevin Drum about the estate tax all day:
I’m not sure what to think of this. It’s possible, of course, that the public has simply been brainwashed by over a decade of focused estate tax propaganda from representatives of the rich. It’s also possible that most people have no idea that the estate tax only hits the extremely wealthy in the first place. But I don’t think that’s the whole story. Like it or not, I think that most people simply have an instinctive feeling that you should be able to bequeath your money to whoever you want. If most bequests went to, say, political parties or yacht harbor upkeep groups, things might be different. But as long as most bequests go to family members, you’re dealing with a very deep, very primitive protective instinct that most people sympathize with no matter how rich you are. After all, I feel that, and I don’t even have kids.
I’ve always supported the estate tax*, because it makes sense from the perspective of finance and as a matter of social justice. I’ve always thought the Republicans’ edge on this was due to inept Democratic framing: dropping the estate tax for means we have to hike taxes elsewhere to pick up the slack, solely to help the wealthy. Taxing the dead means less of a burden on the living. Democrats almost never put it that way, though, because many of them don’t really support the estate tax themselves. But Kevin’s post has stuck with me because I think there’s a real element of truth there. Even in Socialist Old England, eliminating the estate tax has good public support. It is likely the reason David Cameron is the Prime Minister today, instead of having to wait until sometime in 2012. Some might excuse sentiment on this issue as the public thinking they’ll get rich some day to leave behind a huge inheritance to their children, which has some logic, but I think I agree more with Drum’s analysis.
The fundamental assumption of America is that there’s a chance–not a certainty, but a chance–that hard work will be able to be channeled into success. The estate tax is paradoxically both an affirmation and a refutation of that thesis, and an indication of how complicated our cultural identity still is. Polls generally show good support for hiking taxes on the rich (a quick search of my Reader finds this one, among others) to close the deficit, but not on this particular point. Perhaps it’s the altruistic overtone of the act of inheritance that makes the difference here. Something is being given to someone, rather than that person having to work to earn the money. It’s ironic that the public is much more comfortable taxing the money people earn than the money they get handed to them, especially since our culture idolizes work. But it seems to be the case. In fact, this interpretation could lead to the counterintuitive finding that the dearth of support for the estate tax isn’t the result of empathy for the rich but rather the opposite, since it’s easy enough for everyone to visualize getting a big inheritance check from a relative. That doesn’t require putting yourself into someone else’s shoes. Much harder to imagine earning over $250k a year I suspect. But, to be honest, that is supposition.
So that’s the way in which the estate tax opposition refutes “the culture of work.” On the other hand, inheritance can be seen as just a reward for a lifetime of hard work. Being able to pass on that wealth can be construed perhaps as an incentive to work hard as well. Thus, the argument that the tax is a double-tax of earned money, which is not always true if the money was inherited originally. That is a distinction that hasn’t been made and would be hard to form policy around, and it doesn’t seem too germane to the average person. Still, this constitutes the “straightforward” explanation for why untrammeled inheritance would be popular.
I don’t know what all this means, except that America is a young country that is still puzzling out these fundamental questions about work and money. I wouldn’t say that my opinion on the matter has fundamentally changed, but there are a lot of lefty bloggers and pundits who take a reductionist view of the estate tax debate. So do a lot of similar folks on the right. The public might side with them at this point, but the more I think about it, the more it seems like public opinion about the estate tax is a clash of distinct and contradictory values whose underpinnings have yet to be fully understood by either side.
*Of course, I haven’t always supported it. I’m pretty sure I didn’t care at all when I was an infant. That’s an irritating turn of phrase, no? And yet an ubiquitous one.
Let’s talk presidential politics for a minute. Here’s Josh Marshall on Romney’s liabilities:
1st, he changes his ideology about every cycle and his actual policies predilections seem much more moderate than what flies in today’s GOP. In other words, it’s hard for him to shake the perception that he’s a weather vane who doesn’t have any real political principles. 2nd, and more devastating, the terror of ‘Obamacare’ is based on the legislation Mitt pushed through in Massachusetts. It’s his signature piece of legislation. And going into 2012, that’s a big, big problem.
To overcome those liabilities, Mitt has to do everything in his power to avoid a scenario in which he’s the ‘moderate guy’ in the 2012 primary season against some other person who ends up as the Tea Party / hard right standard bearer, whether that’s Palin or maybe Huckabee or whoever else. And so you have him at every point needing to stake out the most hard right position available — in this case, proposing that we get rid of our system of unemployment insurance since, in his telling, unemployment insurance promotes laziness.
What interests me is what happens when the Obama-McConnell compromise passes Congress (as I fully expect it to) and New START gets ratified by the Senate (which I think is likely to happen, as the votes appear to be there). That will be two major Romney-opposed bills getting passed right before he announces a presidential bid–bills passed with substantial Republican support. He’s the GOP’s frontrunner at this point, the closest thing to a Republican Party leader there is, and he will likely be suffering back-to-back defeats on high and medium profile issues. Though, now that I think about it, I wonder if John McCain’s surprising cooperation in passing the treaty is a factor of enduring resentment toward Romney’s 2008 campaign tactics and a desire to undercut Romney. It’s not like McCain isn’t known to try to spite people who make him mad or “best” him in some way. At this point, though, I don’t care. I’ll take it.
The natural question after these votes, if they occur as I predict they will, will be: what influence does Mitt Romney actually have over Republicans in Congress? If the GOP doesn’t give a shit about what he says about the issues and does its thing anyway, does he really have solid standing among Republicans? Can he even be considered their presumptive leader? Republicans usually go for the next guy in line when choosing presidents, but that’s because that’s who the elites usually pick. And they’re not affording Romney the sort of deference you’d expect if they were really behind him.
Which is fine by me, since I agree with Josh’s conclusion: “All that said, while I’d bet against Romney beating President Obama in 2012, he’s probably the only one of the current crop who even stands a serious chance.” I’m genuinely torn between wanting Romney to be the GOP nominee because his mind is the mind of an executive (as is his vanity, which would probably make him do a decent job) and he probably wouldn’t destroy the world if elected, or the admittedly ignoble sentiment of wanting him to waste another $20 million and fail again to buy the nomination, while leaving some easy-to-beat wingnut in his place. But the latter is possibly an unnecessary risk. It looks like those are the possibilities to me, but I personally think that a third option–an Obama-Mitch Daniels election, however unlikely–would be good for the country because they might actually try to have a conversation and move the country forward, instead of rehashing the vituperative culture war crap of 2008 (though, to be honest, I had similar thoughts about McCain back then). Which is why the conservative media-industrial complex will try to absolutely destroy Daniels if he gets in the ring and looks formidable: an actual civil conversation could put them all out of a job. Romney’s prospective campaign would probably be a rehash of his 2008 RNC speech, which would be just fine with Roger Ailes. But Josh is right–he has no other real way to make this work.
To date, three federal judges have ruled on the question of whether recently passed health care legislation is constitutional. Two federal courts (one in Michigan and one in the Western District of Virginia) ruled that HCR (and the individual mandate included in it) is constitutional. Today, however, a conservative federal judge in the Eastern District of Virginia (who was appointed by George W. Bush and hand-picked by ultra-wingnut Virginia Attorney-General Ken Cuccinelli to hear the case) took a “radical” view of the U.S. Constitution’s Commerce Clause and ruled that the individual mandate is unconstitutional.
Definitions of Judicial Activism
Before I get into the relative merits of the various judges’ approaches from a legal perspective, let’s reflect for a moment on the two leading definitions of “judicial activism”:
Most Republicans generally consider judicial activism to mean “judicial rulings that we disagree with”.
Other people that pay attention to this stuff generally consider judicial activism to roughly mean “a decision by a court that ignores or misconstrues prior judicial precedent in order to overturn the will of the people (as expressed by legislation enacted by their elected representatives or otherwise) in order to reach an ideology-driven result.”
Let’s just say that I’m in the latter camp — and find today’s ruling to be a great example of judicial activism.
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