PolicyMic

Mark Kogan They were wrong then and Obama is wrong now. It has nothing to do with skin color and everything to do with attacking our system of government to score political points. It was crap when FDR did it. It was crap when Gingrich did it. It's crap wh...

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• 2 months ago

Mark Kogan Absolutely true but that doesn't make it ok. When a President does it, I'm going to call them on it. The separation of powers exists for a reason and letting one of the branches try to bully the other leads down a dangerous path eventually....

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Mark Kogan Well, A) he (theoretically) doesn't know what the vote in conference was and B) conference votes are non-binding and not final. Votes can and do change in the opinion writing process. Nothing is final until the Justices sign on to opinions and t...

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Mark Kogan Well, as the Wall Street Journal pointed out, even FDR usually waited until AFTER they decided something to do so (ala the Citizens United quip at the SOTU). Personally, I don't care if he takes shots at the Court - the problem is mis-charact...

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• 2 months ago

Mark Kogan The facial challenge addresses whether Congress has the power to mandate participation in commerce in order to regulate it - that is the up/down, yes/no constitutional question. The "limiting principle" discussion is not outside the scop...

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Mark Kogan "Because it is not up to the court to suppose a negative." This is demonstrably false. The Court does this all the time. Congressional failure to include specific provisions is almost always read as a conscious decision to preclude the a...

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Mark Kogan But why would it be activism? The question before the Court is whether the PPACA goes beyond Congress' constitutionally limited Commerce Power - that is hardly an activist question. As for severability - the law included a severability claus...

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Mark Kogan Here are some thoughts from Kennedy's former clerk, Orin Kerr: http://volokh.com/2012/03/27/kennedys-heavy-burden-of-justification-approach-and-whether-the-nature-of-the-health-care-insurance-market-can-satisfy-it/

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Mark Kogan The first question out of his mouth was quite aggressive but I think he was pressing the government for limiting principles, which could suggest a desire to find said principles to build a coalition. It's important to note that the two biggest s...

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Mark Kogan This is the big difference between a tax and a penalty. Again, if the ACA had called it a "tax," it would almost certainly be covered under Congress' taxing power much like the taxes Cohn references. It may seem like semantics but,...

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Mark Kogan Gary is spot on here. Electoral checks are just one of many checks on the federal government - the other big ones being the directly competitive nature of the three branches and the limitations on federal power via the Ninth Amendment, Tenth Amendmen...

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Mark Kogan Congress' taxing power is FAR broader than Congress' commerce power. If the individual mandate was a tax, it would be much more difficult to overturn. The problem is, if its a tax, SCOTUS doesn't get to hear it until 2015. The major...

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Mark Kogan Right you are on the distinction between health insurance and health care. That is an important distinction and I think its fair to say the government is trying to blur the line on the difference. As to severability, this was simply a sloppily pas...

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• 2 months ago

Mark Kogan While I'm inclined to agree with you, keep in mind that the Tax Anti-Injunction Act only applies to the individual mandate. The Medicare question can and will be decided independent of the individual mandate question and, were the Medicare exten...

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• 2 months ago

Mark Kogan That phrase means nothing in the current context. Point me to where Jefferson advocated for removing problematic judges and where that idea made it into our Constitution? Legislative remedies exist. Legislatures can pass laws that do not violate t...

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Mark Kogan Partially correct. The districts are not sacrosanct. The judges who sit on them are. You can't close a district until the judge in it retires - you don't get to move a judge without his/her consent. This also does nothing to address any...

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Mark Kogan The system of checks and balances, as envisioned by the Founders, is not at all how you described. Re: the purpose of the judiciary: "[i]t not only serves to moderate the immediate mischiefs of those which may have been passed, but it operate...

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Mark Kogan The statistics I cite are pulled from peer-reviewed studies and publications. If you would like to contest them, I welcome your input. Calling a law that makes it possible for employers to violate multiple federal laws unconstitutional is not pol...

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• 2 months ago

Mark Kogan That's a different debate. This isn't an issue about hiring or firing, this is an issue about medical privacy and its invasion for employers to make a decision of remuneration (in the form of coverage) based on said privacy violation. I...

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Mark Kogan Supremacy and preemption are procedural issues, meaning the courts would review them before turning to questions of constitutional rights. If a case can be decided on procedural grounds, it is. Judges are not allowed to reach the merits if there are ...

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• 2 months ago

Mark Kogan Could they? Yes, the Supreme Court could do whatever it wanted. Will they? Probably not. Some of the justices seemed to be leaning in that direction at oral arguments. I'm not sure there are enough to win a majority. This is a case that could...

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Mark Kogan Alvarez is the pinnacle of the kind of scumbag that this law was targeted to punish. Unfortunately, the law threw so wide a net that it negated its legitimacy. I hope Alvarez gets his comeuppance, but it cannot be by way of finding this law constitut...

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• 2 months ago

Mark Kogan Spot on on both counts.

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Mark Kogan Yes, I think fraud completely covers anyone knowingly lying about military service for personal gain. This law was intended to get more people than just fraudsters because fraud can sometimes be a heavy burden to meet, the test in the United States ...

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Mark Kogan Re: Activist Judges - you didn't read my link. It points out that the argument you are making is the fault of judges not doing enough, not doing too much. Read it the report, I think it lines up fairly well with your worldview (independent/liber...

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• 3 months ago

Mark Kogan I wish I had more mics to give.

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• 3 months ago

Mark Kogan First off, if you're worried that you might convey an imprimatur of state sponsorship, you're probably right. The standard is strict and appropriately so. As for activist judges, that talking point is nonsense. If anything, judicial abdi...

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• 3 months ago

Mark Kogan You're mixing concepts. First - The Tebow hullabaloo, and situations like it, do not involve the government. Secular individuals can make the case for keeping religion out of their home all they want. That is a debate between citizens; the fa...

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• 3 months ago

Mark Kogan The Supreme Court has repeatedly said that quotas are unconstitutional, so that's a non-starter.

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• 3 months ago

Mark Kogan Responding to a violation of constitutional rights by encouraging that same violation be targeted against another group of citizens does not solve any problems, nor does it improve our system. Past suffering does not justify present discrimination...

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• 3 months ago

Mark Kogan I agree that there is more than simple academic achievement that goes into admission consideration. However, the state cannot apply laws differently to different people based on constitutionally mandated classifications (race, sex, national origin, a...

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• 3 months ago

Mark Kogan Re: Lawrence and SCOTUS cases concerning Native Americans Does a past injustice mean that the Court is never just? Does a series of incorrect decisions in an unrelated area of law dictate that the Supreme Court can never rule correctly under the C...

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• 3 months ago

Mark Kogan Legacy? Yes, although I think winning a constitutional argument is much more difficult since "familial attendance at a university" is not a protected class, legally speaking. As for the weighing of diversity and integration - I personall...

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Mark Kogan "AA is the only way to rectify a long long period of maltreatment." So how do you explain the success of Texas' merit-based, race-neutral program linked in the article? The whole point is that AA is NOT the only way to rectify dispa...

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Mark Kogan "AA is the only way to rectify a long long period of maltreatment." So how do you explain the success of Texas' merit-based, race-neutral program linked in the article? The whole point is that AA is NOT the only way to rectify dispa...

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Mark Kogan That assertion is demonstrably false. The question of whether AA violates our 'constitutional rights' will be determined by legal analysis under the equal protection framework. Was it decided along party lines when Grutter was authored by a...

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Mark Kogan "Isn't having a quality education a constitutional right?" No, it's not. While it may be good legislative policy or an appropriate goal, it is not a constitutional right. Individual states may have education added as a state ...

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• 3 months ago

Mark Kogan Well, the answer IS to throw out what's flawed when it violates constitutionally protected rights. Moreover, the Texas Top-10% system is doing a nearly identical job of minimizing the disparity in our educational system - why does Texas need ...

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Mark Kogan The whole point of Fisher's claim is that the race-neutral policy achieves nearly identical results without using race as a factor. I am a refugee immigrant to the United States. My family and I came with little more than suitcases as we fled...

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Mark Kogan I doubt the Court will evaluate the interest of the state in facilitating diversity. THat is a political question appropriately left to the legislature. Instead, the Court will likely look at programs that are race-neutral in determining whether they...

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• 3 months ago

Mark Kogan The clash between that line from the Grutter opinion and the jurisprudence of the Roberts Court is exactly what makes me think Grutter is going to get overturned explicitly. However, it really is going to come down to the votes. If those seeking t...

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Mark Kogan Interestingly, Texas' top 10% automatic race-neutral program has given pretty good results in terms of diversity and integration of minorities into higher education. From the LA Times Article: "By 2004, 21% of the entering students at t...

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• 3 months ago

Mark Kogan Unfortunately, barring congressional action on judicial ethics, this is unlikely to happen. See an earlier piece of mine on Justice Thomas's ethics problems here: http://www.policymic.com/articles/861/justice-fails-to-disclose-income-for-20-year...

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Mark Kogan Re: Nicholas Well, they are already exempted from many of them through a backdoor known as the "ministerial exception." They can ignore Title VII and the ADA pretty brazenly so long as they couch their reasoning in the ministerial exce...

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• 3 months ago

Mark Kogan The Southern Strategy was never meant to survive long-term. It's inherently prone to failure due to evolving societal standards. Goldwater warned about this in the 60's and he is being proven right with each passing election cycle. Sma...

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• 3 months ago

Mark Kogan Incorrect Ben, the Supreme Court has already looked at this issue and re-affirmed a modern standard: neutral laws of general applicability do not violate religious rights. http://en.wikipedia.org/wiki/Employment_Division_v._Smith They've a...

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• 3 months ago

Mark Kogan This argument is a strawman. We, as a country (both elected and professional bodies), have deemed contraceptive availability to be an overwhelming positive for society, both in terms of providing women control over their reproductive health and minim...

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• 3 months ago

Mark Kogan Bingo.

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Mark Kogan Agreed - we've seen that before, just look at the drinking age and highway funding under Reagan. That said, I don't think there will be any particular fallout. As Gary mentioned below, the ACA mandates that ALL health insurers offer con...

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Mark Kogan Obama caved because he suffers from the problem every Democrat suffers from - horrible messaging control. As for the ACA - correct me if I'm wrong, but I was under the impression that the ACA standardized what INSURANCE must offer, come a c...

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• 3 months ago

Mark Kogan I'm against the idea. Governing by electoral "mandate" leads to tit for tat exchanges that cause great instability as power switches between parties. Elections are rarely won by landslides and a 51% mandate is no mandate at all. Geo...

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• 4 months ago

Mark Kogan I agree with you. The "flip flop" brigade too often criticizes a politician who pragmatically changes his views based on new data. However, the problem with Romney (in my eyes) isn't his "flip flopping" on business or eco...

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• 4 months ago

Mark Kogan I agree that the narrative will change after the primaries, it always does Romney candidacy won't be an exception. However, my primary fear about Romney's narrative is his economic approach. The fact is that this country desperately need...

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• 4 months ago

Mark Kogan They'd need a super-majority in the Senate and a Republican President. That's quite the hedge.

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• 6 months ago

Mark Kogan While we'll have to agree to disagree on the importance of the committee vote, I am completely in agreement with you that student loan reform should have been kept distinct from healthcare reform. Muddying waters to secure votes, while apparentl...

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• 7 months ago

Mark Kogan Update with research. The law was originally proposed in 2009 and passed the House with (admiteddly minimal) bi-partisan support and was sidelined in the Senate. Law: http://thomas.loc.gov/cgi-bin/bdquery/z?d111:HR03221:@@@P Vote: http://cler...

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• 7 months ago

Mark Kogan Ken, context matters here. The vote you cite was a vote on the Affordable Care Act, ie. healthcare reform. The vote does not accurately represent the opinions of Congress on the education provision. I hate the fact that this vote got smashed in wi...

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• 7 months ago

Mark Kogan The shaving of years and lowering of rates IS the plan passed by Congress. He is merely implementing it two years ahead of schedule. He's literally doing nothing but taking the law originally to be implemented in 2014 and implementing it in 2012...

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• 7 months ago

Mark Kogan Again, this is a plan passed by Congress. Obama did not write, create, or pass this law, he is merely implementing it. I get attacking him on the Jobs bill (kind of) but this is a completely different animal, what am I missing here?

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• 7 months ago

Mark Kogan I think we're saying the same thing with different definitions. My understanding of complete forgiveness would be the forgiveness of the entirety of the loan upon graduation. In reality, this is partial forgiveness. If you meet certain requi...

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• 7 months ago

Mark Kogan Again, to clarify, Obama's plan does nothing but accelerate the implementation of a plan written and passed by Congress. While the acceleration may be (probably) politically minded, the plan itself is a bi-partisan policy decision, not an Obama ...

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• 7 months ago

Mark Kogan I think you hit on it earlier Gary by pointing out that the problem of tuition is a demand issue. The modern demand for college is an artificial construct. The way to address it is two-fold: restrict government funding (I'm against full eliminat...

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• 7 months ago

Mark Kogan Let me try and draw a clearer distinction between the two. We should not have a short term solution (Obama's plan) without a long-term systemic overhaul, however, as I pointed out in the article and a number of comments have picked up on, t...

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• 7 months ago

Mark Kogan To clarify, this isn't complete forgiveness. IBR simply decreases your monthly payment as scaled to income. If you start making more money, your payment increases and the interest continues to accumulate regardless of how much you pay a month. F...

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• 7 months ago

Mark Kogan I agree with the general idea and I think that is exactly why public schools and community colleges are so heavily subsidized. The problem is that, in a recession, how do you maintain the subsidy? The larger elephant in the room is private school ...

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• 7 months ago

Mark Kogan The use of endowment dollars by tax-exempt institutions has certainly been a hot topic over the last few years. I know the big endowment schools (Harvard, Princeton, Stanford) moved to providing free tuition to anyone whose family makes less than $10...

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• 7 months ago

Mark Kogan I think that's right. I think Obama's (and actually, Congress') efforts to ease the burden of student debt is the short term step towards a potential longer term solution of restructuring the system. You don't just drop people cur...

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• 7 months ago

Mark Kogan While you may be right about bigotry knowing no partisan calling, there is an important distinction to be made here. While Democratic voters may not like Romney as a Mormon, they are unlikely to be mobilized for or against him based on that fact alon...

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• 7 months ago

Mark Kogan The question won't be Romney or Obama, it will be Romney or staying home. I believe Romney will be the nominee so I'm looking forward to seeing how much evangelicals revolt over having a Mormon candidate.

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• 7 months ago

Mark Kogan Sure, the race to the right in the primary is certainly taking top billing right now. That said, come general election time, you'll see the same deference to evangelicals in an effort to mobilize them. This will come in direct conflict with the ...

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• 7 months ago

Mark Kogan I don't think that's the case. Being mad at the "establishment" is exactly what led the Tea Party to promote and elect its own candidates - to shake up the establishment. If OWS wants candidates that will better look out for th...

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• 7 months ago

Mark Kogan I don't think they're fighting for the same thing at all. As I mentioned to Jake, the Tea Party comes from the old American tradition of being "anti-government." OWS is more anti-corporation, which is far less embedded in our n...

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• 7 months ago

Mark Kogan Has the tea party reached its specific aims? No. Has it had a fair deal of political success? Yes. Look at the number of spending cuts it has forced Obama to concede by hollering and threatening default. Look at the chilling effect it has had on talk...

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• 7 months ago

Mark Kogan They absolutely do. Big banks are massive donors to Democrats and Republicans alike.

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• 7 months ago

Mark Kogan Gabriel, do you have a cite for the 94% number? Not disputing, just would love to see the methodology behind it. It seems an impossible conclusion to draw due to the anonymity of most donations, particularly in soft money PACs and other 501(c)(3) org...

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• 7 months ago

Mark Kogan In fairness, the "Occupy" movement is moving towards D.C. - http://occupydc.org/ Steps in the right direction!

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• 7 months ago

Mark Kogan It's a mixed bag - if you'll forgive the simplistic turn of phrase: Oil and Gas have "lobbyists," the American Heart Association has "advocates." The balance of capture v. influence is a delicate one but it all depend...

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• 8 months ago

Mark Kogan Certainly there is wiggle room Jon, but an outright ban? That means taking the metro to a cocktail event hosted by a trade organization would be illegal. That seems like overkill to me.

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• 8 months ago

Mark Kogan My alternative is reform of procedural rules to protect the minority while dic-incentivizing obstructionism. Simple reforms such as only allowing one filibuster per bill (on bringing it to a vote, rather than both on bringing it to the floor and to t...

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• 8 months ago

Mark Kogan My alternative is reform of procedural rules to protect the minority while dic-incentivizing obstructionism. Simple reforms such as only allowing one filibuster per bill (on bringing it to a vote, rather than both on bringing it to the floor and to t...

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• 8 months ago

Mark Kogan Unfortunately this is true. Reforming the filibuster COULD be bi-partisan, but eliminating it all together effectively requires unilateral disarmament by the minority party. The most vehement opponent to filibuster reform in the mid-2000s was Harr...

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• 8 months ago

Mark Kogan Built for gridlock is a relative term. Yes, our Congress is built to be slow and deliberative, particularly on the Senate side. However, when EVERY SINGLE NOMINATION is filibustered for NO MERITORIOUS REASON, that is no longer pragmatic deliberation,...

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• 8 months ago

Mark Kogan Saying it has always been like this is not accurate or intellectually honest. First off, Newt was speaker of the House, a body that sets its own rules and has no procedural roadblocks like a filibuster by design. Second, only 1/3 of the Senate is re-...

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• 8 months ago

Mark Kogan Thanks Darwin. I am 100% in agreement with you. I fully believe those allowed to wield the ultimate power of the state should suffer heightened consequences to act as a check on abuse of a potentially irreversible use of power.

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• 9 months ago

Mark Kogan Yep (http://boingboing.net/2011/06/24/rochester-police-use.html). Not only should we demand accountability "even if" it's from the police, we should go above and beyond because of their very nature. Police retain the highest po...

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• 9 months ago

Mark Kogan Gary, the process of opposition is just as bad, allow me to explain. Senate time is a valuable commodity. A filibuster that is pursued, even when cloture is invoked, can eat up roughly four full days of Senate time PER FILIBUSTER. One can filibust...

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• 9 months ago

Mark Kogan The House majority gets to set its own rules on how bills will be voted on. There is a great deal more discipline and legislation commonly clears the House with ease (thousands of bills in the last Congress). The problem is the strategic abuse of Sen...

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• 9 months ago

Mark Kogan As ridiculous as it sounds, that is completely possible. No Congress may bind another Congress and, therefore, the 113th Congress can easily repeal all the cuts ordered. There are reasons cuts are done over the long term (5-10 years). First, and most...

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• 9 months ago

Mark Kogan Direct democracy, while sounding nice, is not the answer. A sampling of direct democracy is responsible for the stand-still on the debt deal. It was the freshman congress-members that stubbornly refused to give, causing near-default, particularly in ...

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• 9 months ago

Mark Kogan I'm not sure I'd characterize it as "designed to fail." To the contrary, I think it was designed to work. What comes out of the committee? That I can't speak for. Only time will tell.

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• 9 months ago

Mark Kogan Unethical and showing what draws viewers is a pretty grey line. Is it unethical to ignore certain candidates because you know your viewers don't care, thereby increasing your ad revenue and bottom line? In the eyes of a journalist? Hopefully. In...

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• 9 months ago

Mark Kogan Well, I'm happy to engage in the discussion piece by piece! We all have to start somewhere. I think you're absolutely right, even 1% of the population being misinformed adds up to millions of individuals. That said, how exactly do we reg...

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• 9 months ago

Mark Kogan I understand this fear but our media is open and free. There is nothing stopping people from airing opposing points of view. Freedom of speech does not guarantee the freedom to be heard. Put another way, simply because more powerful media organiz...

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• 9 months ago

Mark Kogan Stating that its the candidates fault for not generating headlines when the media refuses to run those headlines despite newsworthy action by the candidate is completely backwards. The whole point of this article is to point to the fact that he DI...

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• 9 months ago

Mark Kogan Well, yes and no. Romney, Santorum, and Perry didn't win the poll (Perry wasn't even in it), yet they got a lot of press time following Ames. It's not a question of limited resources, its a question of conscious decisions to not report...

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• 9 months ago

Mark Kogan There's no denying that the advent of the internet has increased access to information that previously went unreported. This is both a good and a bad thing. Overall, I think the difference between the public's reaction to how the media ...

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• 9 months ago

Mark Kogan I think there is merit to this argument, but the problem becomes with what each individual considers negotiation and conciliatory action. I believe that he's done a good job of moving forward with damage control from a purely objective/pragmatic...

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• 9 months ago

Mark Kogan The problem is that this retreat, in and of itself, offends his potential reelection voters. That said, it's probably the safer bet since his voters won't exactly vote for the other guy/gal. The risk he takes is that they won't show up...

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• 9 months ago

Mark Kogan I hope you're right, but only the 2012 elections will tell. He doesn't really need to shore up his base, they're still going to vote for him. The question is whether his efforts at compromise will pull in the moderates. I think attempt...

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• 9 months ago

Mark Kogan I completely agree. The problem is he hasn't called them to task over it (not effectively). Reagan threatened to go to their constituents and campaign against them if they didn't play ball, Obama just surrenders and calls it compromise. I w...

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• 9 months ago

Mark Kogan Cheers Jake! Thanks for the kind words!

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• 9 months ago

Mark Kogan Why would I, as an independent, vote for a guy who fails to deliver on his "reasonable" voice? I'm not saying swing to the left, I'm saying fight for your position. Obama's positions are well right of center on many issues. T...

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• 9 months ago

Mark Kogan The problem with getting rid of the filibuster is that you have to have a filibuster proof majority to amend the rules of the Senate. The rules are re-written every Congress and, generally, just accepted on a unanimous vote. If you wanted to carry ou...

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• 10 months ago

Mark Kogan From that article: "$1 trillion in cuts ... in exchange for $1.2 trillion in new revenues without increasing individual tax rates." So it IS the elimination of loopholes and subsidies. Why is this such a bad thing and how is it a raise in t...

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• 10 months ago

Mark Kogan Where are the $1.2 trillion increases coming from? Are you sure they aren't just the elimination of subsidies/tax credits? Are they actually increases in marginal rates or line item changes? Up to this point, Obama has lowered taxes across the b...

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• 10 months ago

Mark Kogan Thank you all for the feedback and insightful debate! Please share and keep commenting!

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• 10 months ago

Mark Kogan 100% in agreement. The tax code is long due for an overhaul, or at the very least a public revision. Unfortunately, that's asking the foxes guarding the hen-house to give up their post. If some sort of commission is set up to review and suggest ...

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• 10 months ago

Mark Kogan The President isn't a legislator. He presented a budget, that's about as far as he can/should go. Congressional Democrats are the ones who continue to confuse me. They had two years in which they kicked the can down the road. Granted, there...

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• 10 months ago

Mark Kogan This is a very good point. It was VP Dick Cheney that very blatantly said "deficits don't matter" when pressed on the issue of the debt. However, simply because there isn't a Norquist-like figure among the left doesn't mean t...

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• 10 months ago

Mark Kogan What's good for the country isn't always the job of the elected representative. It's a thin line to walk. If voting for the good of the country will decimate your constituent's employment or access to public services, you should p...

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• 10 months ago

Mark Kogan Yep, it's one of those strange truths about our system - the folks who make the final sign-off on all the rules (SCOTUS) get to ignore them at will.

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• 11 months ago

Mark Kogan Well, yes and no. Walmart wasn't denying that discrimination occurred, it was arguing that, under Rule 23 (class action certification), the operative facts were too dissimilar to allow the case to reach the merits. True, the argument isn't ...

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• 11 months ago

Mark Kogan While class actions certainly benefit the lawyers that bring them, they also serve as an effective deterrent against large entities. Even if every single one of these women filed a claim against Walmart, they would settle out before making it to cour...

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• 11 months ago

Mark Kogan To be fair, the legal justification used by the majority is defensible, albeit terribly shortsighted in my opinion. Class certification, as a legal rule, requires a common operative set of facts. Are there matching facts across 1.6 million women? May...

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• 11 months ago

Mark Kogan Honestly, my biggest concern is that Congress will use LulzSec as an excuse to enact some atrocious internet-limiting legislation.

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• 11 months ago

Mark Kogan So yes and no on that point. Generally, the point that hackers point out flaws, allowing them to be subsequently patched, is true. However, the code of ethics among recreational hackers (as much as one can call it that) is that you notify the company...

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• 11 months ago

Mark Kogan I think that's almost a chicken/egg question. Would Americans care more if we did a better job of educating them about the importance of government and our system of checks and balances? I know the only reason I care is because I was interes...

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• 11 months ago