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Today, Aaron Carroll tells us the story of TriCor, aka fenofibrate, a cholesterol drug licensed by Abbott Labs in 1998. Unfortunately, TriCor's patent was due to run out in 2000 and a maker of generic drugs was all set to produce a generic version. So Abbott sued, which delayed the generic version by 30 months:

In the interim, Abbott sought and obtained FDA approval for Tricor-2. That drug was nothing more than a branded reformulation of Tricor-1. Tricor-1 came in 67-mg, 134-mg, and 200-mg capsules; Tricor-2 came in 54-mg and 160-mg tablets. No new trials involving Tricor-2 were submitted to the FDA. But Tricor-2 came out while the generic company was still waiting to make Tricor-1, and thus Tricor-2 began selling with no direct competition.

Six months later, Tricor-2 evidently accounted for 97% of all fenofibrate prescriptions. By the time the generic copies of Tricor-1 came out, no one was taking it anymore, and they couldn’t penetrate the market.

Wash, rinse, repeat. The generic companies petitioned to make generic Tricor-2. Abbott filed a patent infringement suit buying them a 30 month delay. They got to work on Tricor-3. That tablet came in 48-mg and 145-mg doses. No new studies. They got approval. Evidently, 70 days after Tricor-3 was introduced, 70% of users were switched to the new branded drug. By the time the other companies got generic Tricor-2 out, Tricor-3 had 96% of the market.

I swear I’m not making this up. Wash, rinse repeat.

The cost to American consumers of not having access to a generic version of TriCor is on the order of $700 million per year, money that (presumably) accrues to Abbott Labs instead. All of which goes to show that America's pharmaceutical companies are still the most innovative in the world, no matter what the naysayers claim. Unfortunately, their innovation seems to reside mostly in their legal and packaging departments, not their R&D departments.

POSTSCRIPT: Although Abbott Labs is the main culprit here, fairness dictates that blame be shared. Aaron abstracted this account from a journal article in Archives of Internal Medicine, and he notes that one of the authors of the article takes doctors to task too: "Why didn’t we prescribe the bioequivalent generics for our patients? What was the advantage to our patients of the more expensive proprietary drug? Did we let down our patients and society?" Fair enough. Abbott did everything it could to keep everyone confused, but generics were still available. So why didn't physicians prescribe them?

    

This is interesting:

One of the auto industry's most closely guarded secrets—the enormous cost of batteries for electric cars—has spilled out.

Speaking at a forum on green technology on Monday, Ford Motor Co. Chief Executive Alan Mulally indicated battery packs for the company's Focus electric car costs between $12,000 and $15,000 apiece. "When you move into an all-electric vehicle, the battery size moves up to around 23 kilowatt hours, [and] it weighs around 600 to 700 pounds," Mr. Mulally said at Fortune magazine's Brainstorm Green conference in California.

"They're around $12,000 to $15,000 [a battery]" for a type of car that normally sells for about $22,000, he continued, referring to the price of a gasoline-powered Focus. "So, you can see why the economics are what they are."

What's interesting isn't the fact that the batteries cost so much. What's interesting is that this was apparently such a closely guarded secret. I had no idea. And I still have no idea why this was such a closely guarded secret. It's hardly big news that batteries are a huge part of the cost of electric cars, is it?

    

Duke University released a study on Tuesday that examined the impact of race in jury polls in Florida, and there's good news and bad news. The bad news is that, according to the study, which looked at 700 cases between 2000 and 2010, all-white juries are significantly more likely to convict black defendants than white ones. The good news is that a single black juror can alter that dynamic.

Two particularly salient points from Duke's summary of the study:

-- In cases with no blacks in the jury pool, blacks were convicted 81 percent of the time, and whites were convicted 66 percent of the time. The estimated difference in conviction rates rises to 16 percent when the authors controlled for the age and gender of the jury and the year and county in which the trial took place.

-- When the jury pool included at least one black person, the conviction rates were nearly identical: 71 percent for black defendants, 73 percent for whites.

Eliminating jurors on the basis of race is of course illegal, but based on this data, the racial makeup of a jury can have a significant impact on whether or not a black defendant is convicted. I'd bet prosecutors and defense attorneys instinctively understood that dynamic even before the Duke researchers released their study. Race and criminal justice, and the politics of both, have been intertwined throughout American history, often for the worse.  

    

Sea Surface Temperature (SST) Anomaly color scale.

Vegetation Anomaly percent color scale.

This map from the NASA/Goddard Space Flight Center Scientific Visualization Studio shows a snapshot of the relationship between environmental extremes and a deadly disease outbreak in Africa in January 2007. (Click here for larger image.) Specifically:

1. Unusually high sea surface in the equatorial waters of the Indian and Pacific Oceans (red)
2. Which fueled persistent, heavy rains over East Africa
3. Which caused an anomalous burst of plant growth in East Africa (magenta)
4. Which created a perfect storm of conditions for the emergence of mosquitoes that spread Rift Valley fever

Rift Valley Fever is passed by mosquitoes from viral reservoirs in bats to livestock and people. The 2006-2007 Rift Valley Fever outbreak spread through Kenya and Somalia, killing 148 people and infecting many more, causing costly closures of livestock markets and costing the Kenyan government $2.5 million for vaccine deployment.

Click for larger image: NOAA/NCDC 

The cascade of factors that ended in the death of many emerged from the record-breaking climate extremes of 2007. The map above from NOAA's National Climatic Data Center shows a few of them. Click it for a larger image.

    

This story first appeared on the TomDispatch website.

The following ingredients should go a long way to produce a political thriller. Mr. M, a jihadist in an Asian state, has emerged as the mastermind of a terrorist attack in a neighboring country, which killed six Americans. After sifting through a vast cache of intelligence and obtaining a legal clearance, the State Department announces a $10 million bounty for information leading to his arrest and conviction. Mr. M promptly appears at a press conference and says, "I am here. America should give that reward money to me."

A State Department spokesperson explains lamely that the reward is meant for incriminating evidence against Mr. M that would stand up in court. The prime minister of M's home state condemns foreign interference in his country's internal affairs. In the midst of this imbroglio, the United States decides to release $1.18 billion in aid to the cash-strapped government of the defiant prime minister to persuade him to reopen supply lines for US and NATO forces bogged down in the hapless neighboring Islamic Republic of Afghanistan.

Alarmingly, this is anything but fiction or a plot for an upcoming international sitcom. It is a brief summary of the latest development in the fraught relations between the United States and Pakistan, two countries locked into an uneasy embrace since September 12, 2001.

Continue Reading »

    

Barney Frank says the only structural reform he cares about is getting rid of the filibuster in the Senate. Ed Kilgore comments:

I'm among those who really get upset when people sort of internalize the recent routine use of the filibuster by Republicans to create a de facto 60-vote requirement for doing business in the Senate, as though it came down from Mount Sinai on stone tablets. It didn't. It's a revolutionary development in the empowerment of congressional minorities, of special utility to those who wish to obstruct progress. And it has a huge ripple effect on what happens in the House (as Frank indicates), the White House, and the country. We should never get used to it until it's modified or gone.

Agreed. And yet, in a way, it seems to me that Ed is wrong: we have to internalize the recent routine use of the filibuster first in order to have any chance of getting rid of it. As long as the public continues to hear about "filibusters," they'll continue to think that this is just Mr. Smith Goes to Washington, something that happens now and again when the minority party opposes a bill especially strongly. It's only when everyone starts to realize that the Senate is a 60-vote body — not a place where filibusters take place periodically, but a 60-vote body — that we might finally get some public pushback on this.

Or maybe not. The sad truth is that no matter what we call it, filibusters will probably retain strong support pretty much forever. In general, fear of what your opponents could do in a majoritarian Congress seems to be a much stronger motivation than passion for what your own party could do. That's more true of conservatives than liberals, but it's true of a lot of liberals too. When you sit down and start to think about what, say, Paul Ryan might be able to do in a filibuster-less Senate, it makes your blood run cold. Suddenly 60 votes doesn't sound so bad, even if it does mean there's stuff of our own that will never see the light of day either.

Fear is stronger than hope. Every once in a great while that reverses, but not often and not for long. Most of the time, fear is stronger than hope.

    

By now most people have heard about Hilary Rosen’s terrible choice of words in reference to Ann Romney on CNN Wednesday night. Rosen is a White House adviser and a PR consultant which makes her choice of words all the more impactful. If you didn’t, here’s the clip. CNN has a complete transcript here. When [...]

Today I want to tell you a little economic fable. My tale is about a family with two members: Dad and Junior. Dad earns $100 per month in the lucrative field of political blogging. Junior earns $10 per month from his lemonade stand. He uses his money to buy comic books, and if he has any money left over at the end of the month he gives it to Dad, who gives him an IOU in return. Over time, Junior has built up $25 in IOUs from Dad. Needless to say, Dad has long since spent the money that Junior gave him.

Our story opens in January. Junior has discovered some new comic books that he likes, so he starts spending $15 per month on comics. His lemonade income isn't enough to cover this, so he finances his habit by cashing in $5 worth of IOUs each month. This goes on for three months, and during that time Dad has $95 to spend on food, clothing, and other necessities of life.

In March, Junior realizes that he only has $10 worth of IOUs left. At his current rate of comic consumption, he'll run out by the end of May! So he decides to cut back: from now on, he'll buy only $12 worth of comics per month. This means he has to cash in only $2 per month in IOUs.

There are two consequences of Junior's decision to cut back:

• Dad has $98 to spend instead of $95. This is no mirage. It's real money that he can spend on additional stuff.
• Junior's stock of IOUs will now last longer. Instead of running dry in May, it will last through August. Again, this is no mirage. His IOUs really will last longer.

Do you see what this means? Both of these things are true. Dad really does have more money to spend, and Junior's stockpile of IOUs really will last longer. There's no effect on total family spending, and no effect on total family debt.

In essence, this is the story of Obamacare and the great "double counting" flap, which has gotten a new lease on life following the release of a new report from Charles Blahous, a Republican trustee for Medicare. Blahous is retailing a conservative story of long standing, namely that Obamacare double counts its planned savings from Medicare.

But it doesn't. In the story above, Dad is the federal government, Junior is Medicare, and the IOUs are treasury bills. When Medicare spending is cut back — as it is under Obamacare — it cashes in fewer treasuries. This means that the federal government has more money to spend on other healthcare needs and that the Medicare trust fund will last longer. Both these things are true. And there's no net effect on either spending or the deficit. Other actions of the federal government, which has unlimited taxing and borrowing power, might increase both spending and the deficit, but this particular mechanism doesn't.

Now, there are other things you can say about all this. You might be skeptical that Obamacare's spending cuts will actually pan out. You might want to re-run the deficit numbers now that HHS has given up on the CLASS Act. You might believe that Obamacare is likely to cost more than anyone estimates right now. That's all fine. Beyond that, you might, as Blahous does, worry that extending the life of the Medicare trust fund will lull everyone into complacency and delay an all-out effort to rein in Medicare spending. Or you could go further, as Blahous also does, and assume that without Obamacare we'd already be feverishly at work cutting back Medicare benefits. The fact that we aren't therefore counts as additional spending and bigger deficits.

That seems to me like an eccentric way of looking at things, but Blahous certainly has the right to do so. What he can't do, however, is pretend that there's double counting here. There just isn't.

UPDATE: Ezra Klein tackles this issue in a more conventional way here.

    

On Monday, President Barack Obama's re-election team circulated this photo of volunteers and staffers at the campaign's Chicago headquarters:

This is not what a Young Republicans meeting looks like. Obama for America

All those people look really excited for the new M. Ward album! But this being the Internet and it being an election year, a seemingly innocuous picture of youthful volunteers turned into something else—evidence of President Obama's growing race problem. Wait, what?

Over at the Daily Beast, Mansfield Frazier writes that the candid photo of a bunch of college-aged kids looks like a "Photoshopped dirty trick." He explains:

"[I]t looks like a young Republican gathering," he writes, adding, "all of those selected could not have just happened to be white absent racism on someone's part."

First things first. This is what a Young Republicans gathering looks like:

This is what a Young Republicans meeting looks like. Jerry Lara/San Antonio Express-News/ZumaPress.comNote the absence of artsy sweaters and flannel. 

As for the thesis of the piece, that the Obama campaign is deliberately "stiff-arming citizens of color" in order to make some larger point: Frazier offers no evidence to support this except to note that Cornel West is upset. Obama's approval-rating among African-Americans is still in the high '80s, and the campaign has made clear that massive participation by minorities and young people is key to his re-election effort. In this case Team Obama is clearly making an appeal to young voters—the picture might as well be captioned "phone-banking is fun!" (Without getting into a "guess the ethnicity" game with a low-res photo, it's also quite clearly more diverse than he posits.) Is there anything to suggest these kids are any different from the residents of Michigan Avenue in 2008?

The reality is that any bias in weeding out volunteers is likely more of a means-test: Volunteers for political campaigns are necessarily college-age kids with enough financial backing to allow them to work full- or part-time (and overtime, in some cases) without pay and with little if any opportunity for advancement. That gives well-off white kids a boost, I suppose.

    

The farm bill—that vast, byzantine, twice-a-decade plan for federal food, ag, and hunger policy—expires on Sept. 30, just weeks before what promises to be an epically contested presidential election.

Under normal circumstances, getting Congress to agree on such complex and expensive legislation at a politically charged juncture would be daunting. This year, with both parties touting fiscal austerity and with the GOP-dominated House having recently approved a draconian budget proposal, getting a farm bill through the legislative process will be nearly impossible.

But none of that will likely stop Big Agribusiness from getting what it wants, which is programs that underwrite environmentally ruinous, nutritionally vapid corn/soy agriculture. Take Big Ag's lobbying power and add a big pinch of fiscal hysteria and what you get is thin gruel for everything else in the farm bill, which could could choke off the USDA's progressive-ag programs and even result in sharp cuts to hunger programs at a time of high un- and underemployment.

Continue Reading »

    

March 2012 temperatures—departure from average: 

March was a whole new breed of insane for the record books according to NOAA's State of the Climate report for the month.

First up, the mega tornado outbreak early in the month spawned 2012's first billion-dollar disaster, as warmer-than-average conditions created a juicy environment for severe weather. There were 223 preliminary tornado reports in March, a month that averages 80 tornadoes. The majority occurred during the 2-3 March outbreak across the Ohio Valley and the Southeast. Forty people died and damages exceeded $1.5 billion.

Other March *highlights:*

• It was the warmest March on record for the contiguous United States, a record that dates back to 1895.
• The average temperature of 51.1 degrees F was 8.6 degrees F above the 20th century average for March and 0.5 degrees F warmer than the previous warmest March in 1910.
• Of the more than 1,400 months that have passed since the U.S. record began, only one month, January 2006, saw a larger departure from its average temperature than March 2012.

Surface wind flow for 21 March 2012. Click for animation: NOAA. 

The March craziness was due to a persistent weather pattern that put a kink in the jet stream and kept cold away from the eastern two-thirds of the Lower 48. In the wind map above (click for amazing animation), you can see how this pattern formed a cut-off low: an atmospheric eddy, like an oxbow in a river, visible in the swirl of winds around Dallas.

Here's how Martin Hoerling of NOAA's Earth System Research Laboratory describes the results of that kinky pattern:

Nature's exuberant smashing of daily high temperature records in recent weeks can only be described as "Meteorological March Madness". Conditions more fitting of June than March prevailed east of the Rocky Mountains since the start of the month. The numbers are stunning. Take, for example, the nine consecutive record high temperatures in Chicago from 14-22 March, eight of which saw the mercury eclipse 80°F. For those unfamiliar with the area's climatology, high temperatures do not normally begin exceeding 80°F until after commencement of the Summer solstice. NOAA's National Climate Data Center reported that over 7000 daily record high temperatures were broken over the U.S. from 1 March thru 27 March. With beachgoers flocking to the balmy shores of Hampton Beach, New Hampshire this week, one wonders if a new normal is emerging for the preferred destination of Spring-break revelers.

NOAA National Climatic Data Center

The same pattern brought cooler-than-average conditions to the West Coast states of Washington, Oregon, and California. Nevertheless:

• Every state in the nation experienced a record warm daily temperature during March.
• Preliminary data show 15,272 warm temperature records broken (7,755 daytime records, 7,517 nighttime records).
• Hundreds of locations across the country broke their all-time March records.
• There were an unbelievable 21 instances of nighttime temperatures being as warm, or warmer, than the existing record daytime temperature for that date.

March precipitation departures from 1981-2010 average: NOAA

It wasn't only about temperature either. Precipitation was anomalous throughout much of the country too, as you can see in the map above... really wet or really dry compared to the 1981-2010 average, with not a whole lot in between. 

In fact the entirety of the so-called cold season that spanned October 2011 to March 2012 was whack. According to NOAA's US Climate Extremes Index (USCEI)—which tracks the highest and lowest 10 percent of extremes in temperature, precipitation, drought, and tropical cyclones across the contiguous US—38 percent of the contiguous US racked up the second highest USCEI rank on record:

• A record 100 percent of the Northeast and Upper Midwest regions were walloped by extremes in both warm maximum and warm minimum temperatures.  
• Between 90 and 100 percent of the Ohio Valley and the Southeast experience record extreme temperatures between October 2011 and March 2102.

    

This story first appeared on the TomDispatch website.

Take off your hat. Taps is playing. Almost four decades late, the Vietnam War and its post-war spawn, the Vietnam Syndrome, are finally heading for their American grave. It may qualify as the longest attempted burial in history. Last words—both eulogies and curses— have been offered too many times to mention, and yet no American administration found the silver bullet that would put that war away for keeps.

Richard Nixon tried to get rid of it while it was still going on by "Vietnamizing" it. Seven years after it ended, Ronald Reagan tried to praise it into the dustbin of history, hailing it as "a noble cause." Instead, it morphed from a defeat in the imperium into a "syndrome," an unhealthy aversion to war-making believed to afflict the American people to their core.

A decade later, after the US military smashed Saddam Hussein's army in Kuwait in the First Gulf War, George H.W. Bush exulted that the country had finally "kicked the Vietnam Syndrome once and for all." As it turned out, despite the organization of massive "victory parades" at home to prove that this hadn't been Vietnam redux, that war kicked back. Another decade passed and there were H.W.'s son W. and his advisors planning the invasion of Iraq through a haze of Vietnam-constrained obsessions.

Continue Reading »

    

One of the evergreen arguments in the debate over rising income inequality is that what really matters isn't income, it's consumption. And consumption inequality hasn't been rising all that fast. If you measure what people are actually buying, it turns out that the middle class is doing OK.

To the extent that this was true, it was partly thanks to the fact that the middle class was borrowing ever greater amounts in order to support its consumption habits. But that couldn't last forever. In 2008 all that borrowing came crashing to the ground — taking consumption along with it — and we learned once again that income matters after all. But yesterday Matt Yglesias pointed to a recent paper that adds a whole new dimension to this dispute: the authors (Orazio Attanasio, Erik Hurst, and Luigi Pistaferriargue) contend that when you correct for well-known problems in the consumption data, consumption inequality has been rising about as fast as income inequality. All the old arguments were just based on faulty data.

The charts below tell the story. They rely on survey data from the Panel Study of Income Dynamics, and for each year from 1980 through 2010 they measure the standard deviation of log income and log consumption. (Why use logs? Beats me, but apparently it's standard practice for this kind of thing.) Standard deviation, of course, is just a measure of dispersion. The bigger the number, the farther apart the highs and lows are from the mean.

The top chart shows the growth of income inequality: it's gone up from about .75 to .95, an increase of .2 units. The bottom chart shows the growth of various corrected measures of consumption inequality. The broadest measures are the two top ones, which have gone up from about .8 to 1.05, an increase of .25 units. Or, as the authors put it, "Taken together, the results from the PSID data [] is that consumption inequality and income inequality tracked each other nearly identically during this time period."

If this is all true, it means that consumption tracks income pretty well, and both have become steadily more unequal over the past three decades. Surprised?

    

Rick Santorum and Foster Friess, the silver-haired, crocodile-hunting, born again financier who made his fortune in mutual funds, go way back. Friess helped raise money for Santorum as early as 1994, when Santorum first ran for US Senate in Pennsylvania. During Santorum's surprisingly successful presidential campaign, Friess poured $1.6 million into a super-PAC called the Red, White, and Blue Fund that was devoted to helping Santorum win the GOP nomination. The money helped keep Santorum competitive in multiple primary states. But after Santorum dropped out of the race on Tuesday, it didn't take long for Friess to jump on the Mitt Romney bandwagon.

"I'm obviously going to be of help [to Romney] in whatever way I can," Friess told Politico's Ken Vogel, who broke the news. Friess continued: "I've got some plans as to how I might be able to be of help. The bottom line is, I'm going to be very supportive and I'll probably have plans to share with you a little later on."

If Friess does decide to go all-in for Romney, he could give a max of $2,500 to Romney's campaign. But there's no limit on what Friess can give to the pro-Romney super-PAC Restore Our Future. (An official with Restore Our Future did not respond to a request for comment about reaching out to Friess since Santorum's departure.) Friess could also give to Karl Rove's American Crossroads, a Republican super-PAC that plans to spend up to $300 million blitzing President Obama and supporting Republicans. Or he could donate to Crossroads GPS, a 501(c)(4) non-profit that doesn't disclose its donors and runs a mix of so-called issue advocacy ads and pure political ads. In other words, there's no shortage of Romney-friendly political players eager to take Foster Friess' money.

    

For the last year or two, the standard MO in Europe has been pretty straightforward: a crisis of some kind every five or six months, followed by a solution that everyone claims will finally fix things, followed by yet another crisis. It's about time for the next one, and Spain appears to be the most likely source this time around:

Spain has set off further alarm bells among bond investors and its crisis-hit eurozone neighbours by conceding that its debts will balloon this year to their highest level for two decades....Despite announcing its most austere budget for more than 30 years last week, Spain's government admitted on Tuesday that the debt-to-GDP ratio will jump to 79.8% in 2012 from 68.5% last year.

....Nerves around Spain's creditworthiness — whose economy is twice the size of that of Greece, Ireland and Portugal combined — had settled somewhat since the depths of the eurozone debt crisis last year. But recent days have brought renewed fears in financial markets and among fellow eurozone members that Spain could be the biggest threat to their future.

Yep, that's a shocker. Spain's most austere budget in three decades has produced a terrible economy, which in turn is producing even bigger deficits. Who could have predicted it?

As usual, it's not as if there are any easy solutions here, so I suppose excessive snark isn't really justified. Still, it's not as if no one saw this coming. And it's inevitable that these crises will continue popping up every few months until, one way or another, Europe solves its fundamental problems. That still doesn't seem to be anywhere on the horizon. In the meantime, keep your seatbelts fastened.

    

David Corn joined host Al Sharpton on MSNBC's Politics Nation to discuss President Obama's recent criticism of Paul Ryan's budget, what Romney's support of the budget means for his candidacy, and how the budget would hurt America's poor.

David Corn is Mother Jones' Washington bureau chief. For more of his stories, click here. He's also on Twitter.

    

In a recession, you'd expect average pay to adjust to a lower level. As unemployment rises, workers should be willing to accept lower wages, and as wages drop employers should become more willing to hire new workers. If this doesn't happen, the recession is likely to persist. One of the current problems in Greece and Spain, for example, is that their workers became increasingly uncompetitive over the past decade. One way to correct this is by devaluing their currency, which would effectively reduce wages countrywide compared to the rest of Europe, but because they're both on the euro they can't do this.

Another way to effectively reduce wages countrywide is keep compensation constant but allow a higher inflation rate. If inflation is running at, say, 4%, and you get no pay increase this year, your wages have effectively gone down 4%.

But what if inflation is low? Then the only way to reduce wages is to actually reduce wages. For a variety of reasons, however, employers generally aren't willing to do that. It just pisses off their workers too much. At least, that's the theory. And the chart on the right, from a San Francisco Fed letter, demonstrates that it seems to be true. It tracks wage changes during 2011, and there's a huge spike at zero. Employers don't have a big problem handing out tiny raises and letting inflation do their dirty work for them, but they don't like to directly reduce wages themselves:

This is supported by the large gap to the left of zero between the actual distribution of wage changes and the dashed black line representing the normal distribution. This gap suggests that the spike at zero is made up mostly of workers whose wages otherwise would have been cut.

The moral of this story is that tolerating high inflation during a recession is a helpful thing. The faster wages adjust, the faster the recession will be over, and a high inflation rate allows wages to adjust downward even if employers simply keep nominal pay flat. It's probably too late for this to make much of a difference anymore, but an inflation target of 4% starting back in 2008 probably would have produced a stronger and faster recovery than the one we're finally getting now.

    

This is beyond bizarre. A three-judge panel of the 5th Circuit Court is hearing a challenge to Obamacare, but when a Justice Department lawyer began arguments this morning she was stopped short:

Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law. The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists....Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

Despite the fact that Kaersvang immediately acknowledged that courts can indeed strike down laws, the panel ordered her to "submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power."

Seriously? These judges are acting like a middle school teacher handing out punishment to a student because of something her father said at a city council meeting the night before. I'm a little hard pressed to finish up this post on quite the right note of jaw-droppitude, but luckily an attorney friend from the South just emailed me about this. Here's his take:

This is meant to embarrass the President. Full stop. Jesus, this is getting scary. It just seems like all out partisan war brought by the Republicans from all corners of the Government. They want to push it as far as they can. And then further. It's incredibly destructive.

Somebody on the right needs to speak up about this. It's an outrageous abuse of judicial power.

UPDATE: Allahpundit speaks up. Judge Smith, he says, was "honked off" at Obama's Rose Garden suggestion that overturning ACA would be "unprecedented":

No true-blue Warren-Court-loving lefty like The One would ever seriously impugn judicial review. And the Fifth Circuit knows it. What they’re doing here is humiliating him as a way of getting him to stop the demagoguery, with the letter acting as the equivalent of a kid writing on the blackboard as punishment after class. “I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question...”

Just what we need. Conservative judges getting "honked off" at a presidential speech and deciding to dish out a little extrajudicial humiliation just to make their honked-offitude clear.

    

This story first appeared on the TomDispatch website.

I was out of the country only nine days, hardly a blink in time, but time enough, as it happened, for another small, airless room to be added to the American national security labyrinth. On March 22nd, Attorney General Eric Holder and Director of National Intelligence James Clapper, Jr. signed off on new guidelines allowing the National Counterterrorism Center (NCTC), a post-9/11 creation, to hold on to information about Americans in no way known to be connected to terrorism—about you and me, that is—for up to five years. (Its previous outer limit was 180 days.) This, Clapper claimed, "will enable NCTC to accomplish its mission more practically and effectively."

Joseph K., that icon of single-lettered anonymity from Franz Kafka's novel The Trial, would undoubtedly have felt right at home in Clapper's Washington. George Orwell would surely have had a few pungent words to say about those anodyne words "practically and effectively," not to speak of "mission."

For most Americans, though, it was just life as we've known it since September 11, 2001, since we scared ourselves to death and accepted that just about anything goes, as long as it supposedly involves protecting us from terrorists. Basic information or misinformation, possibly about you, is to be stored away for five years—or until some other attorney general and director of national intelligence think it's even more practical and effective to keep you on file for 10 years, 20 years, or until death do us part—and it hardly made a ripple.

Continue Reading »

    

Moral equivalency often exerts a gravitational pull for political reporters and pundits. When assessing what's wrong with Washington (or other elements of the political system) it's easy to accuse all, casting a pox on each side. Matt Bai's deeply reported epic account in The New York Times Magazine of the collapse of the Grand Bargain—the debt-reduction deal attempted by President Barack Obama and House Speaker John Boehner last summer—cannot resist this overpowering tug.

Here's the bottom-line of the article: "Obama and Boehner have clung to their separate realities not just because it's useful to blame each other for the political dysfunction in Washington, but because neither wants to talk about just how far he was willing to go."

Relying on the Rashomon cliché, Bai gives the impression that each of the key players is locked within his own perspective—and, consequently, no one is right or wrong. Boehner and his GOP comrades huff that Obama tried to change the terms of the deal and overturned the possible accord; Obama and his aides claim that Boehner couldn't cut a deal because of opposition within his Tea Party ranks. And this clash of realities is what's wrong with Washington.

Interest declared: My new book, Showdown: The Inside Story of How Obama Fought Back Against Boehner, Cantor, and the Tea Party, covers the clash over the Grand Bargain, and much of Bai's in-depth account overlaps with mine. But Bai doesn't emphasize what is the bottom-line point: Obama and his crew are right to say that Boehner could not deliver—and that is what was most responsible for the deal's collapse.

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Dan Malouff reports that enclosed malls are shutting down all over the Washington DC metro area. Atrios comments:

There's an absolutely absurd amount of retail floor space in this country, so this isn't all that surprising.

But there are two things going on here. First, as the chart on the right shows, there was a big spike in construction of retail space between 2004 and 2007 that was unsustainable, and the Great Recession unsustained that spike with extreme prejudice. So in one sense, no, it's not that surprising that a bunch of retail space has shut down recently.

At the same time, the long-term trend is up, up, up, and the recent bursting of the retail bubble, which was part of the wider commercial real estate bubble, seems to have run its course. (Knock wood.) But despite that, enclosed malls are still shutting down, part of a trend that's been going on for years. Here in my neck of the woods, for example, I don't think a new enclosed mall has been built in the past 20 years. But that doesn't mean retail is dead. During that same period, three gigantic open-air retail centers have opened within five miles of my house, each with over a million square feet of retail space. For some reason, enclosed malls are out and open-air "power centers" (or "lifestyle centers" or whatever they're calling them these days) are in.

I actually find this a little inexplicable. Here in Southern California it makes at least a bit of sense, since the weather is generally pretty good. Outside the sunbelt, though, not so much. What's more, these outdoor malls are a pain to navigate. In a typical enclosed mall, parking forms a ring around the structure itself, which is fairly compact and walkable. But the outdoor malls are often just the opposite: a gigantic parking lot with stores in an outer ring. This means that it's a long walk if you want to visit more than one store.

So why are enclosed malls on the outs? They're good in all weather, and they're convenient if you want to shop at a bunch of different stores. Open air malls are neither. On the other hand, if you want to shop at one store, and park close to it, they're a better option. And they're outdoors. If you like walking around in the fresh air, they're pretty appealing.

In any case, I've never entirely understood this trend. But it's been going on for a long time, so it's more than just a short-term fad. Enclosed malls are dead. Long live the outdoor mall.

    

The Environmental Protection Agency made a huge step forward on Tuesday with the announcement of rules limiting greenhouse gas emissions from new power plants—the first rules for power plants, ever. The rules are the beginning of the end of conventional coal-fired power plants, and have been cheered by environmental and public health groups.

Here's what the proposed rule states, from the National Journal:

The agency is proposing that new fossil-fuel power plants — namely those fired by coal and natural gas — emit no more than 1,000 pounds of carbon per megawatt-hour of energy produced. That’s about the same amount of carbon emissions produced by today’s natural gas-plants and about half the amount of produced by coal plants.

This basically means that going forward, anyone proposing new power plants two options: build a natural-gas powered plant, or build a coal plant that has carbon-capture-and-sequestration (CCS) technology to significantly reduce the emissions from that plant.

The rules make it likely that there won't be any new coal plants built in the US—or at least not anytime soon. While there are currently demonstration plants in the works that feature CCS technology, they aren't to the scale of a new full-sized plant, nor are they cost effective. What's more, plants powered by natural gas, which is pretty cheap at the moment, can meet the new, lower-emission requirements pretty easily.

But here's why environmentalists aren't celebrating quite as much as you'd think they would: The rule doesn't apply to power plants that have already received permits to begin construction. Nor does it apply to plants that are already in operation—meaning that the approximately 300 older, dirtier coal plants that currently provide 39 percent of our energy will still be allowed to release CO2 unfettered. "We have no plans to address existing plants," said EPA administrator Lisa Jackson. She noted that "in the future if we were to," that would require an additional and thorough rule-making process.

Jackson noted that she believes coal "will remain an important part of America's electricity generation mix for foreseeable future," and that the rule "is meant to provide a path forward for those new coal-fired power plants that choose to minimize their carbon emissions."

Even before the new rules, environmentalists and local activists had already stopped quite a few new coal-fired power plants. Since 2001, they've blocked the construction of 166 plants around the country. The EPA said that there are 15 plants currently pursuing permits that would beimpacted by the new rule. 

As the chart to the left shows, the cutting emissions by only stopping new coal plants isn't as effective at reducing US emissions as an economy-wide cap-and-trade law passed by Congress would have been, because in this scenario old plants are still emitting with abandon. But stopping plants—either by EPA action like today's or by blocking them from being built—does eliminate a chunk of potential future emissions.

As one might imagine, the coal industry isn't a big fan of the new rules. The National Mining Association told the New York Times that the rule is a "big mistake," one "virtually calculated to drive coal, a very, very affordable generator of electricity, out of the U.S. electricity."

Here's a map drawn from Sierra Club's anti-coal campaign showing plants that have already been defeated around the country even before today's new rule announcement, as well as those that are currently in the works:

    

This story first appeared on the TomDispatch website.

[Note: I became politically active and committed on the day 20 years ago when I realized I could stand on the front porch of my house and point to three homes where children were in wheelchairs, to a home where a child had just died of leukemia, to another where a child was born missing a kidney, and yet another where a child suffered from spina bifida. All my parental alarms went off at once and I asked the obvious question: What's going on here? Did I inadvertently move my three children into harm's way when we settled in this high desert valley in Utah? A quest to find answers in Utah's nuclear history and then seek solutions followed. Politics for me was never motivated by ideology. It was always about parenting.

Today my three kids are, thankfully, healthy adults. But now that grandchildren are being added to our family, my blood runs cold whenever I project out 50 years and imagine what their world will be like at middle age—assuming they get that far and that there is still a recognizable "world" to be part of. I wrote the following letter to my granddaughter, Madeline, who is almost four years old. Although she cannot read it today, I hope she will read it in a future that proves so much better than the one that is probable, and so terribly unfair. I'm sharing this letter with other parents and grandparents in the hope that it may move them to embrace their roles as citizens and commit to the hard work of making the planet viable, the economy equitable, and our culture democratic for the many Madelines to come.]

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Virtually everyone agrees that today's arguments before the Supreme Court were a disaster for the Obama administration. Adam Serwer tells us why:

Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.

Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism's biggest domestic accomplishment since the 1960s—and one that may well have doubled as its eulogy.

This is just bizarre. Verrilli is an experienced guy. He's been involved in loads of Supreme Court cases and has personally argued more than a dozen. So what on earth happened? So far I haven't seen anyone even take a stab at trying to figure it out. How could Verrilli possibly be unprepared for the questions he got, given that the conservative arguments against Obamacare have been extremely public and obvious for well over a year? Everyone in the world knew what to expect. Everyone except Verrilli, apparently.

This is just mind-boggling.

    

On Dec. 22, the FDA quietly delivered what I called at the time a "Christmas present for factory farms": It announced it was ending a process it had begun 35 years earlier to determine whether routine antibiotic use on factory-scale kivestock farms posed a public health threat. Instead of pursuing regulation, the agency declared, it would rely on a "voluntary" approach to persuading livestock operations to reduce antibiotic abuse.

This, even though the agency itelf has conceded that that the practice of giving animals raised in tight quarters daily antibiotic doses of generates antibiotic-resistant pathogens that threaten people; and even though the meat industry has shown no appetite to end the practice on its own.

Just three months later, the industry's gift has been unceremoniously snatched back by a federal judge, responding to a lawsuit brought by a coalition of consumer and enviro groups including the Natural Resources Defense Council, the Center for Science in the Public Interest, Food Animal Concerns Trust, Public Citizen, and the Union of Concerned Scientists.  

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