Month: January 2015

A reader quotes me:

You have here a Burkean defense of federalism – something that will very much appeal to Anthony Kennedy, it seems to me. The problem, however, is that the pace of change has quickened so much after Windsor that Sutton is already out-dated. It’s now 36 states, not 19, representing 70 percent of the population, not 45. So his analogy to sodomy laws rather evaporates. If sodomy was upheld as a legitimate zone of privacy, when only 13 states retained such laws, why could not marriage for all couples be upheld as a constitutional right, when only 14 states ban it?

However, you ignore the critical qualifier in Sutton’s formulation: “Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way.”  The nineteen states got to marriage equality through actions of their citizens, their legislatures, their state courts or some combination of those bodies. As for the “change after Windsor,” the 17 other states that now observe marriage equality do so because federal courts have imposed it on them by extrapolating (primarily from Windsor) to determine what they thought SCOTUS would say. Now, apparently, SCOTUS will speak for itself, and we will find out how heavily Kennedy weighs the concept of federalism in relation to the other factors involved.

Agreed. But civil marriages have already occurred in those seventeen other states, facts on the ground that will be impossible to move. That’s a tough one to suddenly reverse. Several other readers lend their commentary:

I have to chime in here and go back to first principles.

I am well aware that the cultural shift in attitudes about gay marriage is going to be a huge factor in how the Court thinks about this issue, but it really is irrelevant.  If a majority of states are already on board, it certainly makes it easier for the Court, but it’s not properly part of the analysis.  This is a straight-forward equal protection issue.

The whole idea that States have historically defined marriage and so it’s an issue that properly belongs to the States to regulate misses the entire point.  The fact is, States don’t need to be issuing marriage licenses at all.  But if a State is going to regulate marriage (and it doesn’t have to), it must do so in accordance with the Equal Protection Clause.  Full stop.

What other states are doing, how popular the issue now is, how Americans in general feel about it is all irrelevant.  When two Americans walk into a government office and ask the State to issue them a license, they must be treated the same as all others who might walk in and ask for the same license.  There are relatively few legitimate bases to make Equal Protection distinctions built on gender, and so far, no court that has actually addressed that issue has found that those distinctions are justified here.  “We’ve been doing it this way forever” is simply not a legitimate excuse. (I’m looking at you, slavery.)

I say it goes 6-3 (although it should be unanimous).  Scalia is just an intellectually dishonest fraud and always has been and won’t vote for this based on a ludicrous originalist analysis.  And Alito won’t vote for it because his personal commitment to conservative positions simply won’t allow him to exercise proper judicial independence.  And Thomas?  Pffft.  I say Kennedy and Roberts are on board, and Roberts authors it because he knows full well history will judge it as one of the most important cases to come out of the Roberts Court, if not the most important.

And if Roberts is smart, it will be a crisp 7-10 page opinion that will make Scalia’s unhinged, caterwauling, 40-page dissent look like the deranged drivel that it is. If there is anything to be worried about here, it’s the little nuggets Roberts tucks into the opinion that actually restrict Equal Protection that he and the conservatives will plan to rely on in future cases.  I fully expect some of that here.  It’s just part of the judicial backroom deal making that goes on in any appellate court.

I sure hope our reader is right. Another quote of mine:

But what about the states’ rights argument? If public opinion is moving so fast, why not let federalism take its course? That’s my worry. Could Kennedy fashion a ruling that keeps marriage equality in those states that already have it, allow the minority to retain bans, but insist that any valid civil gay marriage in one state be recognized in any other? I don’t know how constitutionally you could do this – but I don’t doubt figuring out a balance between federalism and civil rights is what Kennedy (and maybe Roberts) will be assessing. A non-Fourteenth Amendment decision that nonetheless insisted on recognition, if not celebration, of same-sex marriages in every state might be a tempting middle way.

There is ample precedent for this “middle way” (this is not an endorsement, BTW).  The different states have long had different laws concerning age of consent, degree of kinship, and amount of formality needed to enter into or dissolve marriages.  Some states permit first cousins to marry, others do not.  Some states allow minors to marry, others make you wait until you are 18.  In some states you need a blood test, others have far less paperwork, and some still recognize common-law marriages.

But once you get married in one state (assuming an opposite sex relationship), you’re considered married in all; Oregon would not tell a pair of first cousins who married in California that their marriage is no longer valid when they cross Siskiyou Pass.

Divorce has been handled in the same way.  No matter how much New York State despised divorce during the mid 20th century, they were powerless to prevent their residents from travelling to Nevada (the first state with no-fault divorce laws) and getting their marriages dissolved, and then returning to the Empire State as two single persons.

This has long been the default position with marital law, and a big reason why the Defense of Marriage Act was passed in the first place: to nullify the effect of Full Faith and Credit Clause (which Congress has the power to regulate) when it comes to same-sex marriages.  Much as Windsor threw out the other half of DOMA (barring federal recognition of same sex marriages in states where it is legal), I could see the Court striking the rest of it, even if it lets states decline to perform such marriages directly.  The Court has already held that Congress was acting with animus to gays when it passed DOMA, and the Act is pretty explicit in targeting gays, so for the Court to preserve it in the face of a direct challenge would be a big surprise.  And could be done without attacking “federalism”, any more so than the Full Faith and Credit Clause already burdens states rights.

Well, we’ll see soon enough.

[youtube https://www.youtube.com/watch?v=IbU2rW37zKU&start=6&end=132]

Yesterday the Yemeni government resigned after essentially being under siege by the Houthi rebel group. Jamie Dettmer catches us up:

The straw that broke the camel’s back was the rebels’ failure to hand over one of the president’s senior aides, who had been snatched over the weekend and whose release was a key provision in the deal. The collective resignation came after days of turmoil in the Yemeni capital, Sana’a, where rebels stormed the presidential palace and then bombarded and surrounded the house [President Abdu Rabu Mansour] Hadi had taken refuge in. …

The stage now seems set for the outbreak of full-fledged sectarian civil war, one that al Qaeda in the Arabian Peninsula, the terror network’s most dangerous and capable affiliate, is likely to exploit for its advantage.

Adam Baron delves further into the chaos:

In the formerly independent South, longstanding calls for secession have grown even louder. Across the country, frustration seems mounting – both at the country’s power brokers and at the international actors that, until recently, had hailed the country’s political process as a model transition to democracy.

The next few days will unquestionably be crucial.  At writing time, Houthi fighters reportedly have the homes of many members of the now-resigned cabinet under siege. All eyes are set on Sunday’s meeting of the two houses of the Yemeni parliament, which could very well reject the president’s resignation, sending the country into further uncertainty. Indeed, little remains clear at the moment, except for the fact that the country is likely facing its most crucial juncture since the overthrow of the Mutawakkilite Monarchy on 26 September, 1962.

Nader Udowski points at Iran:

[I]t is not clear if the Huthis can be regarded as an Iranian proxy in the same way as Shia militias in Iraq and Syria. But they now depend on Iran to solidify their position in the country’s capital.

Events in Sanaa could most likely send the country into a full-fledged civil war, threatening a Syria-like disintegration of Yemen with different sects, tribes and groups fighting each other. The Zaydis, now in power in Sanaa, constitute only a third of Yemen’s population of 24 million, which is majority Sunni Muslim, in a predominantly tribal society. The Quds Force is expected to implement its successful Syrian and Iraqi tactics in Yemen: significant arms shipment; financial assistance; deployment of advisers and senior officers; providing training and strategic planning; and transforming some 50,000-strong Huthi fighting force into semi-official Shia militia to take the lead in military and security operations in the coming civil war.

But Bruce Riedel points out “the Zaydis are not Iranian pawns nor partners like Hezbollah. They are an independent force”, and Jeremy Scahill and Casey L. Coombs remind that Iran is a routine boogeyman in the region:

For years, the Yemeni government attempted to inflate Iran’s influence over the Houthis in the hopes of winning U.S. permission to use counterterrorism funds and assistance to fight the Houthis. According to diplomatic cables released by WikiLeaks, senior Bush administration officials consistently rebuffed such requests from the Yemeni government, saying the U.S. government saw the battle against the Houthis as a domestic issue.

Complicating things further, Adam Taylor argues that the conflict isn’t so easily defined along sectarian lines:

Analysts say that the popular appeal of the Houthi insurgency can’t entirely be put down to sectarian factors. In a 2010 RAND Corporation report, the authors noted that “it is a conflict in which local material discontent and Zaydi identity claims have intersected with the state center’s methods of rule and self-legitimation.” That analysis was echoed by Silvana Toska, a Middle East researcher, last year, who noted that the Houthis were supported by “vast numbers of Yemenis who view them as a real opposition to the elites that is untainted by corruption.”

Unsurprisingly, Max Boot believes Obama should have done more to prevent the crisis:

The administration’s policy can be characterized as general lethargy and disengagement punctuated by periodic outbursts of carefully targeted violence. This is a policy that cannot possibly work, and it hasn’t. The administration hasn’t created the chaos that is gripping the Middle East — chaos that is a Petri dish for extremism — but it certainly hasn’t done much to stop it.

But Barbara Slavin reports the US might already be adapting:

[Senior US intelligence official Michael] Vickers, in response to a question from Al-Monitor, stated, “The Houthis are anti al-Qaeda, and we’ve been able to continue some of our counterterrorism operations against al-Qaeda in the past months.” Asked after the public event whether that included lines of intelligence ​to the Houthis, Vickers said, “That’s a safe assumption.”

She also spoke with Yemen expert Charles Schmitz, who elaborated on the potential for US-Houthi cooperation:

Many observers of the Houthis have been taken aback by their Iranian-style anti-US and anti-Israel slogans, which Schmitz rattled off: “Death to America, Death to Israel, Curse the Jews and Long Live Islam.” He said the slogans as voiced by the Houthis date to the 2003 US invasion of Iraq and their efforts to embarrass then-President Saleh by tarring him as an agent of the United States and Saudi Arabia. In fact, Schmitz said, the Houthis have generally not attacked Americans, although State Department spokeswoman Jen Psaki confirmed reports that Houthi gunmen at a checkpoint in Sanaa had fired on a US diplomatic vehicle Jan. 19. There were no injuries, she said.

“They are not terrorists,” Schmitz said. He called the Houthis’ backing of US attacks on AQAP “an alliance of convenience.”

Matt O’Brien describes the European Central Bank’s new $1.3 trillion quantitative easing program:

[T]he ECB will buy €60 billion, or $69 billion, of assets a month—including government, institutional and private sector bonds—and will do so until at least September 2016, or until there’s a “sustained adjustment in the path of inflation” toward their close-to-but-below 2 percent goal. To give you an idea how far away that is, prices are actually falling in Europe—a seriously worrisome sign—with euro-zone inflation currently at -0.2 percent. It’s no wonder that Europe’s economy still has 11.5 percent unemployment and is growing so slowly that it’s not clear whether it’s even gotten out of its last recession.

Cassidy has FAQ on the plan. Why it might not work:

Pessimists say that the E.C.B. has waited too long and allowed the deflationary mindset to become too heavily entrenched. They also point out that interest rates in Europe are already very low, and that, even with the E.C.B. spending sixty billion euros a month on bond purchases, there isn’t much room for rates to drop lower. Given these problems, some analysts think that even Q.E. infinity won’t have much impact. Speaking in Davos on Thursday, Larry Summers, the former Treasury Secretary, said, “It is a mistake to suppose that Q.E. is a panacea in Europe, or that it will be sufficient.”

But he still supports this action:

In the past few months, investors were predicting this move, and they bid down the value of the euro. On Thursday, it dipped under $1.15, and it is likely to fall further. Parity with the dollar is perfectly conceivable. The fall will raise prices inside Europe, which is what is needed when deflation has taken hold, and it will give a boost to European exports, which should help stimulate growth.

Raoul Ruparel doesn’t think it’ll be enough:

The ECB has now used the last tool in its toolbox. For all intents and purposes it has limited wiggle room. There is likely to be some pick up inflation over the next two years – maybe 0.5% to 0.7% (bringing overall inflation to around 1% annually), though some of this was due anyway. But to a large extent the QE programme will do little to boost growth in the Eurozone and may not help those countries most in need of it. The ball is firmly back in the court of Eurozone leaders to implement the serious reform as well as the institutional changes which the eurozone has always needed.

And Paul Wallace has concerns about the way this QE is being implemented:

The council’s decision on QE reflects a compromise. The scale of the programme is bigger than expected. But the trade-off for that is an important breach in the ECB’s usual risk-sharing arrangements, which creates within the very heart of the monetary union the fragmentation it has been seeking to fight. That is a worrying augury for a programme on which so many economic hopes now rest.

Mark Gilbert applauds the ECB’s actions. But he worries that “the initiative risks delivering too little, too late”:

[I]t’s been six long years since the Federal Reserve started QE in the U.S., and almost as long since the Bank of England hooked the U.K. onto life support. Those economies (and their consumers) are only now seeing the benefits. Euro voters may yet live to regret the ECB’s delays.