The Health Care Ruling Does Not Vindicate the Roberts Court

One of the early reactions I am seeing in comments to liberal blogs is that the 5-4 decision of the US Supreme Court to uphold the Affordable Care Act is some kind of reassuring sign that the conservative justices still have some respect for the legal principles that judges are supposed to operate under.

I'm far from convinced this is the case.

First:  The decision was 5-4.  The only surprising vote is that the 5th vote to uphold was from Roberts instead of say, Kennedy who is the usual "swing" vote these days (he's actually one of the top 10 most conservative justices since political scientists started tracking this in the 30s, but on the most conservative court in generations, he is the centre).  But that still means there were four justices perpared to throw out decades of Commerce Clause interpretation, and that's just on the mandate.  Were the other four prepared to declare the entire act unconstitutional?  We'll see when the rulings hit the web, but I expect so.  Remember, 19 out of 21 legal scholars contacted by Bloomberg news agreed it was Constitutional.  When you have that level of legal consensus, you should expect an 8-1 or 7-2 ruling, not a 5-4.  I'd also note here the predictions that Scalia wouldn't overturn himself from Gonzales v Raich didn't bear true.  Consistency is not a hobgoblin haunting his particular mind.

Second:  The ruling details I am seeing reported at SCOTUSBlog say that Roberts actually agrees the mandate is unconstitutional under the Commerce Clause power, but found it constitutional under Congress' taxation powers.  So in fact we do have 5 Supreme Court justices voting to overturn 75 years or so of Commerce Clause jurisprudence. 

Third:  That also means there were four justices who don't even agree that Congress can impose a $500 tax on all Americans and then allow that tax to be waived if certain conditions are met (like say, providing proof of health insurance).  This is remarkable legal hackery.  Are these justices (Kennedy, Thomas, Scalia, Alito) also prepared to find the 16th Amendment unconstitutional? 

There are various cynical ways to interpret why Roberts provided that fifth vote to uphold, and I find those much more plausible than that he suddenly found his legal conscience.  Taking this as any kind of sign that the Roberts court puts legal principles first and foremost in its decisions would be a mistake. 

More Sun News Blatant Bias

Researching the piece yesterday on Sun News Network's evident complicity in knowingly airing a false and misleading story to Canadians, I came across this, by QMI's Mark Dunn, carried by Sun News:

OTTAWA -- Finance Minister Jim Flaherty opened the door Monday to new stimulus spending to help the economy weather what many economists fear is a looming global recession.

Ok, as far as it goes.  In fact, I'd call this mild good news, Flaherty is surprisingly Keynesian and willing to eschew conservative economic nonsense in understanding that some kind of European economic collapse might necessitate further stimulus.  Go down a few paragraphs:

The official Opposition NDP did not mention the worsening economic picture during question period Monday, nor has it raised the potential loss of union jobs in Oshawa. It was more concerned with smoke stack monitoring and a budget implementation bill it opposes.

Wait, what?  This is an ostensible news piece, and by what evidence do we conclude that the NDP is "more concerned with smoke stack monitoring" than job losses or economic conditions?  Based on their questions on one day's QP?  Even the bit noting the NDP "did not mention" the economy or job losses in Oshawa is of course highly dubious.  Is it normal journalistic practice to list arbitary things that politicians or political parties don't discuss on some particular day's QP?  I bet the NDP also didn't mention that they disapprove of child pornography and slavery.  Better get on that scoop, Sun.

It should go without saying that the NDP has made a stink over the job losses in Oshawa and the poor economic conditions. Just not today.  If Sun News wants to run some kind of statistical analysis of topics the NDP raise in a long series of Question Periods, and make hay of that, that at least might indicate some legitimate preference of certain topics to others on the part of the NDP. 

But wait, there's more:

In its most recent budget, the government announced controversial changes to old age security, employment insurance and other measures to sustain the economy in the long run and prevent the kind of budget problems many European countries are experiencing.

Behold the perils of the passive voice.  Is the author stating that the controversial measures actually do sustain the economy and prevent European budget problems?  Or just noting that the government claims they do?  Hard to say, but that's where honest journalism would require a more explicit note that these are the government's claimed justifications for these things, but really this is stated as if it is fact (it's not even close to true that European debt crises are generally about pensions and employment insurance anyway, mostly it's completely about their collapsing economies not supporting sufficient tax revenue.  Spain was running government budget surpluses prior to the crisis)

It also makes a part of the paragraph above quite ridiculous, where he describes the NDP as opposing "a" budget implementation bill.  There's only one.  It's "the" budget implementation bill, and the NDP's opposition is about the controversial matters like changes to OAS he is describing in such factually glowing terms.  It's not some strange arcane matter that has journalists scratching their heads, it is in fact the sort of thing the opposition is supposed to focus on, and frankly, to oppose.

I often challenge conservatives complaining about CBC's supposed liberal bias to provide examples and they never do.  They usually get sputtering mad or feign amusement over the notion that anyone challenges such an "obvious" truth.  Well, here's a pretty good example of the reverse.  I found it just reading Sun News' front page, picking an article I found interesting for its own sake.  If that's par for the course there, I may have to revise my view of them as a pale shadow of Fox.  They seem right in the running in the competition for most egregious bias.

Bureaucrats and Media: Getting the Truth Out

I've never been in the civil service, so maybe this is well understood there, but it seems to me that the story of Sun News and the staged citizenship swearing event highlights the ability for muzzled bureaucrats to get the real story out when the government blames them for its poor behaviour or performance.  As long as a few media organizations are willing to spend the time making Access to Information Act requests, the bureaucrats just have to make sure they've emailed one another the real details of the events in question, and let the media do the rest.  I hope these employees are protected from retribution, when this sort of thing happens. 

In a government that has taken to muzzling scientists, bureaucrats, diplomats and in some cases even its own cabinet ministers, the Access to Information act provides a vital outlet for information the government doesn't want out. 

In that vein, I would look out for the goverment amending (gutting) the act.  I'm sure they could concoct some kind of cost-cutting justification for doing so, and get their loyalists all enraged about the biased liberal media engaging in costly witch-hunts.

You heard it here first. 

Will Sun News Investigate the Staged Citizenship Ceremony? Will the CRTC?

Last October, Canada's Sun News Network, filmed and broadcast a story on what was portrayed as a regular swearing in ceremony for new Canadian citizens taking their oath of Citizenship.  Turns out, the participants were all already citizens and the ceremony was a "reaffirmation" ceremony.  Worse, most of the participants were actually civil servants working for the Ministry of Citizenship and Immigration Canada.  This came out because the Canadian Press obtained emails through access to information showing the event was essentially staged for the benefit of the cameras.  At the time, Immigration Minister Jason Kenney blamed the civil servants for staging the event, and apologized to the network that had covered it, Sun News Network.  Kudos to the Canadian Press for staying with the story and requesting more documents because, well:

Kenney had criticized civil servants when it was revealed six bureaucrats reaffirmed their oath of citizenship alongside three or four bona fide new Canadians during a televised ceremony last October.

But he was striking a decidedly different tone Tuesday after The Canadian Press published the bureaucrats’ version of events — that the network was actively involved in the decision to use civil servants as stand-ins.

During the Sun News broadcast, the hosts referred to the group as new Canadians that had “finally” received their citizenship.

Now of course the minister lied both when he blamed lowly civil servants for the staged event and in claiming Sun News was unaware that the event was staged.  Also unsurprising that once again, civil servants were blamed for a political screw up.  This government has a track record of blaming staffers, underlings and bureaucrats whenever anything goes wrong.

But what about Sun News?  Back in February we were supposed to believe the Sun News didn't know the swearing event was staged.  Now we have documents credibly alleging that Sun News employees knew the event was fake and even participated in the last minute decision to throw the bureaucrats into the event when too few of the government's hand-picked participants showed up. 

It seems to me we have a prima facie case of Sun News knowingly airing "false or misleading news" in contravention of the Canadian Broadcast Act.  Will the CRTC investigate?

Even aside from that, from a simple journalistic credibility perspective, Sun blithely accepted Kenney's February apology to them for his department "misleading" them.  Will they investigate internally to find out who at Sun News knew all along?  They're not even carrying the story today.

It's pretty hard to avoid the conclusion that Sun News is just "Fox News North," operating under a still functional sort of "fairness doctrine" set of regulations up here which prevent it from going the full Murdoch, but still working in as much pro-Conservative bias as they can.  I know the substance of this event is pretty small bore in the grand scheme of things.  A citizenship swearing event staged for an ideologically friendly news network to run a soft story is hardly the most imporant issue, but at heart the issue is about truth in news and the government's ability to lie to the public without consequence.  If this sort of thing is allowed, much greater and more consequential propaganda could easily follow.  It mostly appears this one was put together by bungling amateurs in Kenney's political operation likely thinking that no one would look into such a minor event.  But letting this slide will teach other politicians what they can get away with.

It's also a good moment for uncovering what Sun News is really about.  A chance for the upstart network to show its quality.  Conservatives have been complaining for years about CBC's pre-supposed bias and poor journalism.  Yet, given the chance to show up the "state broadcaster", Sun News is hardly shining. 

And even if you want to still believe the Sun News didn't know the event was staged, that's hardly the greatest endorsement of their journalistic acumen:  A bunch of cubicle dwelling career bureaucrats managed to pull one over on the network that prides itself on "hard news."  A few quick interviews with the event participants would have quickly uncovered the lack of bona fide new citizens.  Even a better soft news outfit would have done these interviews just for the sake of having some human interest footage.  So, Sun News:  Complicit in a journalistic fraud, or merely gullible and incompetent, which are you?

Krugman v. Austerity

This BBC debate between Paul Krugman and two British austerity advocating conservatives is the best airing of the relevant issues I've yet seen on a regular TV segment.  I certainly think Krugman came out on top, as his opponents spent the entire debate avoiding his initial (factual) statements that austerity had resulted in weaker economic performance in Britain and especially mainland Europe, and had actually weakened the government budgetary situation leaving austerity without even a plausible claim to some kind of policy success.  It gets kind of darkly humourous at the end when one of his opponents ends up saying "well, austerity has some successes doesn't it?" and actually brings up Estonia as his example of austerity policy success.  The host intervenes that there isn't time to get into Estonia, but regular readers of Krugman's site know he's dealt with the Baltic states before, and well, if this is "success", I don't want to know what failure would look like:



I note of course that even the publicly funded BBC felt it was necessary to pair Krugman up against two conservatives.  Now, given that this is Krugman, it's possible this is just because he's such a towering figure that it really isn't fair to put him up against ideological opponents at a 1:1 ratio.  On the other hand, if this debate was held on US tv, Krugman would have been given an "ally" who was some DC centrist who would end up agreeing with most of the right wing position on austerity but with some trivial caveat like making the rich lose mortgage interest tax deductions on their summer homes.  So it's probably for the best that Krugman took that fight alone.  Some allies are worse than no help.

The other thing that would have happened on US tv, particularly Sunday morning shows, is that the host would not have let the debate go that long (8 whole minutes!) without intervening at a key moment (when austerians are clearly on the run) to change the subject to some trivial sideshow issue and save good Villagers from being public embarrassed.

Well worth the 8 minutes to watch.

Canada: 40% liberal, 30% conservative

One thing I've found difficult to find for Canada is polling on the underlying ideological beliefs of Canadians, as opposed to party preference.  Our pollsters just don't seem to ask the question very often, perhaps because it's probably viewed as a confusing mess to voters where our traditional two big-tent parties are named after the very ideologies they're supposed to represent.  I don't have empirical data to back it, but based on the confusion over the subject I see online every day, I don't think many people have a clear understanding of the distinction between ideology and party preference.  In Canada-ese we say "small l liberal" and "small c conservative" when we're talking about the ideology, but even that really only makes the distinction clear to people who are clear about the disctinction.

Hell, even highly politically active people have very deep differences of understanding over the meaning of the term "ideology" - just go back to the silly claims of many of the strongest Obama supporters shortly after his election about Obama lacking an ideology and instead being about "what works" as if pragmatism isn't itself a question of ideology. 

Still, any oasis in the polling desert so I'm glad to see pollster Ekos ran a poll on the subject of Canadian ideology not so long ago.  Top line results are that 40% of Canadians self-identify as liberal, 30% as conservative, 26% as neither and 5% as don't know or refused.  Ekos calls this "starkly divided" but I'd call it a clear lead for liberalism.  I'm really glad they resisted providing "moderate" as an option too, though I think I would have preferred to ask on a 7 point scale to reflect on strength of belief. 

Further, if you look at page 6 of the PDF, this is a high for liberalism as far back as the graph goes, to 1997, and the gains clearly come from the "neither" group which has declined to third place for its first time. 

The chart on page 11 with some demographic break downs is also fascinating:

• Saskatchwan/Manitoba (combined probably for sample size reasons) are more conservative at 54% than Alberta at 41%
• Men are barely more liberal than conservative (within MOE) but women are almost 2:1 (42% to 23%) more liberal
• The only age group that is more conservative than liberal are over 65's and it's fairly modest (and within that subsample's margin of error)
• the effect of university appears profound with 53% of university educated identifying as liberal
• Liberal party supporters are more liberal than NDP party supporters 72% vs 61% (more on this below)
• Green supporters are barely more liberal than conservative and the only party to have their leading group be the "neithers" at 38%
• 11% of Conservative party supporters identify as liberal, which really has to be an appealing target for NDP and Liberal strategists:  These should be highly persuadable voters.

liberal Liberals versus liberal New Democrats

On the higher number of liberals supporting the Liberals than the NDP, there's lots of ways to interpret that.  One possibility is that NDP supporters dislike the term "liberal" for its association with the party of that name, even if they are left-of-centre ideologically and hold views most would identify as being mainline liberal/progressive as usually understood in Canada and the US.  Or they may be people who feel they are left of liberalism itself, bona fide socialists or even communists.  Another aspect is the NDP's roots in the praries as the predecessor party, the CCF and its relatively greater strength in places like Northern Ontario where voters may support the NDP but somehow not consider themselves liberal or even left-wing.  It's unfortunate that the poll's regional breakdown combined Manitoba and Saskatchewan because I can buy a right shift in Saskatchewan, but Manitiba's provincial NDP government has been going strong for a very long time.  I realize the provincial NDP in Manitoba are closer to the Liberals federally, but hard to believe they would appeal much to conservatives even then. 

On the Liberal party supporters specifically, the very low number of "neithers" and conservatives tells me that fears of a Liberal collapse entailing half the party's remaining supporters going to Harper are unlikely to come to fruition.  Basically the blue Liberals have mostly left already and what's left are people who are genuinely left-of-centre and just have issues supporting the NDP or abandoning the party of Laurier, Trudeau and Pearson. 

Greens

The Green numbers really back my suspicion that the Green party is a protest vote for a lot of disaffected voters of other parties.  Having "neithers" as their top group seems likely to be akin to the situation in the US where self-identified moderates and "independents" tend to be the least politically aware/informed and most prone to decide "they're all crooks!" and so a party like the Greens becomes an attractive place to park your vote.  I'm somewhat surprised at the high number of conservatives supporting the Greens.  I know the NDP line on the Greens I often hear is that they're a "crypto" conservative party.  There's some truth to that in their policies and platform, but I don't think that matters a whit to most voters, for whom the Green party is literally about the association to environmentalism.  It may be that this is where conservatives who accept the reality of climate change go, since they just can't stand the NDP or Liberals and yet want to register their support for some kind of market friendly action to rein in greenhouse gas emissions.

It also tells me it's probably not worth the NDP or Liberals' time trying to woo Green voters.  Numerically there's just not that many liberals there and they're probably pretty dedicated environmentalists who have real issues with the Liberals and NDP.  I'm doubtful the neithers supporting the Greens are easy to reach either.  If the left-of-centre vote does solidify on the NDP, and some of the existing liberal support for the Conservatives can be pulled back, the NDP can forge a winning coalition.  Chretien managed to find majority coalitions (over 40% support in '93 and 2000) even with the NDP and BQ taking substantial numbers of votes in the 90s and early 2000s.  Even after the right wing parties merged, a badly scandal wounded Martin did eke out a minority in 2004 all the same. 

Canada may just be liberal enough to put a left-of-centre party into government even with four of them vying for that pool of votes.  In fact, if the NDP dominance of the BQ in Quebec continues, we're back down to three effective parties, which isn't much different from the Chretien/Martin days.

It's Time to Update the Ontario Condominium Act

Don't know what chances it has, but I'm for this, from Trinity-Spadina Ontario NDP MPP Rosario Marchese:

Dear Friends,

Did you know the law that governs your condo hasn’t been changed in 14 years?

On May 10, I will be introducing legislation to improve Ontario’s Condominium Act.  If my bill is passed, Ontario’s laws will finally reflect the interests of condo owners. My proposals include the following:  

• The creation of a Condo Review Board to settle disputes between condo owners, boards, property managers and developers. (Currently, disputes must be settled through the courts at great financial cost.)
• Establishes better building and soundproofing standards.
• Prevents developers from asking owners to move into unfinished buildings.
• Extends developer responsibility for condo fees from one to three years.  
• Improves Tarion warranty protections on new condos and provides warranty coverage for conversion condos such as lofts.
• Requires developers to use good faith language in contracts and to disclose any business names they have used in the past.
• Requires property managers to be licensed by the Province.

I will be speaking at information sessions about my condo bill on the following dates:

CityPlace Residents’ Association Town Hall Meeting
Date: Sunday, May 6.
Time: 3-5 PM.
Location: Renaissance Hotel (next to the Rogers Centre).
Map:

King West Community Meeting
Date: Wednesday, May 9.
Time: 7-9 PM.
Location: Thomson Hotel, Wellington Room (550 Wellington Street West, south of King and Bathurst).

My wife and I both bought new condos off plans in the early 2000s before we met.  Mine went okay as far as these things go, but hers was a debacle with a developer who clearly was not playing in good faith, and took advantage of every loophole and a few that aren't even loopholes but that they know they can get away with.  Almost every item on that list would have been a tremendous help to her, and Tarion proved to be toothless or captured by the developers based on how it handled her complaints.  There was a litany of ridiculous things the developer did, but the most egregious was how they rushed to get the occupancy permit, then cancelled it at the last minute (after she had already booked movers) and even when she did get legal occupancy, she only had power to one item in the whole unit, a light by the entrance, clearly done to fool the inspector that the unit had power (no stove, fridge, lights anywhere else, etc).  That had to be illegal.

As a first time homebuyer you really only have the option to sue over stuff like this, and the reality is that isn't likely to happen over a collection of small stuff, your instinct is always to just get through it.

I know this is mostly an upper-middle class problem and all, but still no reason to let these scumbag fly-by-night developers bilk people.  This is all part of the decline of the middle class as you get fleeced at every opportunity and the law is always on the side of the powerful.  The bit about forcing disclosure of other names the developer has operated under is a pretty good idea.  Some of the bigger developers with established reputations to protect are generally pretty good for that reason, but currently that's really the only worthwhile consumer protection there is when it comes to new condo purchases, and you definitely pay a premium for the big name builders.  Even that is no surety, as established brands have been known to decide to cash in on their residual good will at times and churn out some junk for a quick profit.

There's no social advantage I can see to letting shoddy developers put up crap buildings that their owners hate and take a loss selling off.  Condo buildings are going to be there for decades, they should be built well and if a few shoddy developers stop doing business, in an overheated real estate market I can't see how that's a negative.  Ontario has a minority government right now so it's a chance for the age-old formula of the NDP pulling the Liberals left to work again.  My wife and I are unlikely to ever buy a new condo again, but no reason anyone else should go through what she did.

I wrote the Premier and Margarett Best, the Minister of Consumer Services.  Private Members bills rarely make it to law, but this is a good idea and I hope this one does.