Putin’s Uninvited Guest

Julia Ioffe doubts the Russians are interested in providing Snowden with a quick exit now that he’s stuck in Moscow:

I’m going to make a prediction here: Snowden isn’t going to Ecuador. He’s staying in Russia. Why? Because that’s what “free men” with troves of valuable data—just look at how hard the White House is fighting to get him back—and even more valuable revenge potential do when they take a strange detour to South America through Moscow and, mysteriously, get stuck. …

Putin said that Russian security services—which, again, are swarming the airport—”have not and are not working” with Snowden. Feels like there’s a missing word there, like, oh, I don’t know, “yet.” I’m going to call bullshit on that one, but if you don’t believe me, listen to Ellen Barry, the Pulitzer Prize-winning Moscow Bureau Chief for the Times. “If #Snowden’s been at Sheremetyevo all this time but FSB did not approach, it’s like a hungry man looking at a hamburger and not touching it,” she tweeted. (A Russian security source told a Reuters reporter that “he is a tasty morsel for any, any, secret service, also for ours.”)

I promise you, dear reader, that that hamburger—or tasty morsel—will get eaten, if it hasn’t been devoured already.

Michael Hirsh suspects Putin is having a field day:

Whatever Putin may be saying now about not wanting to harm ”the business-like character of our relations with the U.S.,” it is evident that Russia’s foreign policy is largely shaped by its leader’s desire to meddle with America and its designs around the world. That is true whether the issue is Syria (with Putin backing Bashar al-Assad against the U.S.-aided rebels); Iran (where Moscow opposes too-stringent sanctions and is building a reactor); or missile defense (where Putin pressured President Obama to retreat from a missile-defense system, angering the Poles and the Czech Republic). Above all, Putin was incensed by the Magnitsky Act, a 2012 law named after a murdered Russian lawyer under which the U.S. government can penalize Russian human-rights abuses. And he has built his entire rise to power on the idea of resurrecting the prestige and geopolitical impact of his former employer–the USSR — if not exactly its communist system.

Fred Weir, on the other hand, interviews a Russian analyst who thinks Putin more likely views Snowden as a risk:

[Professor Andrei] Konovalov suggests there could be a reason closer to home for Russian authorities to hold Snowden at arms length. It’s one thing for the Kremlin’s English-language satellite news network Russia Today, known as RT, to lionize information leakers such as Assange and Snowden, and quite another for domestic Russian audiences to see Putin openly embracing an idealist bent on ripping the lid off government secrets.

The Sum Of The Constitution’s Parts

Eric Posner analyzes the DOMA decision:

Kennedy’s opinion reminds me of two cases, both heavily criticized by constitutional scholars (for their reasoning, not necessarily their result). The first is 1965’s Griswold v. Connecticut, where the Supreme Court struck down a statute that prohibited the use of contraceptives, based on what Justice William O. Douglas called “emanations” from and “penumbras” of other constitutional provisions that said nothing about sex or contraception but did endorse other liberty interests. The second is 1990’s Employment Division v. Smith, where Justice Scalia, in the course of putting limits on the free exercise of religion doctrine of the first amendment, explained away some old cases on the grounds that they involved “hybrid rights”: The statutes in question were struck down not because they violated the religion clause per se, but because they burdened both the practice of religion and other constitutionally protected activities.

So there is this vague idea that certain constitutional interests standing alone may not invalidate statutes, but may suffice when combined together. Something like this idea might ultimately be the basis of Kennedy’s opinion. Gay people do not form a suspect class, but they almost do. Same-sex marriage is not a longstanding tradition, but same-sex relationships are. Federalism principles are not broken but they are eroded. Put together three almost violations, and you have a real violation.

Bazelon replies to Posner:

I think the groundwork Kennedy laid in the Colorado case (Romer v. Evans) and in Lawrence v. Texas is more solid than you do. The purpose of DOMA was about stigma and what the court has called “animus” against one group, for no reason other than dislike (which, really, amounts to prejudice). In my favorite moment of the argument in March, Justice Elena Kagan pointed out that DOMA “does something that’s really never been done before,” continuing, “I’m going to quote from the House report here: ‘Congress decided to reflect and honor collective moral judgment and to express moral disapproval of homosexuality.’ ”

She took the lawyer arguing to uphold DOMA, Bush Solicitor General Paul Clement, by surprise. “Does the House report say that?” Clement asked, before catching himself: “Of course the House report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute.” He called it right there.

Doing The Legislature’s Job For It

Douthat views yesterday’s ruling on the Voting Rights Act as “updating a successful law to reflect contemporary realities, which under our system is supposed to be the role of the legislature rather than the courts.”

[A] Republican-controlled Congress showed absolutely no interest in fulfilling that obligation when the V.R.A. was actually up for legislative review in 2006. On one level, that year’s 98-0 Senate vote, which extended the act by another quarter century, makes the case for judicial deference on the issue even stronger, since it suggests that a broad democratic consensus exists in support of the existing provisions. On another level, though, it’s an example of how Congress can effectively invite the judicial usurpation of politics, because that’s what many of the Republicans who voted to reauthorize the V.R.A. in 2006 were kind-of sort-of doing: They favored revisions to the act, but saw no political percentage in picking a fight on such a highly-charged, historically-freighted issue when it could be litigated through the courts at a lower political cost instead. So the Court’s intervention here isn’t just an example of judicial activism; it’s an example of judicial activism in a sphere where many members of Congress clearly preferred such activism to the exercise of their own constitutional prerogatives.

His larger point:

In some of these cases, Congress is ceding power out of incapacity, but just as often it’s ceding it by choice — deferring to the imperial presidency, welcoming the encroachments of the administrative state, looking to the juristocracy for refuge and support on difficult and polarizing issues. So while it’s worth criticizing judges for their immodesty and our presidents for their power grabs, it’s also important to recognize the role played by legislators whose abdications have enabled both: Politics abhors a vacuum, and our elected representatives are often far to happy to have someone else step in and fill it …

Throwing The Kitchen Sink At Climate Change, Ctd

Jonathan Chait believes that Congress forced Obama’s hand on climate:

There is a very fortunate irony about President Obama’s second term. He has to deal with a Congress barely capable of keeping the government’s lights on, let alone crafting rational laws, and totally unable to handle any number of policy crises. Yet, on the single most urgent issue facing the country (and the world), climate change, Obama doesn’t need Congress at all. …

It is true that, in the long run, Congress will have to act. Obama can meet environmentalists’ near-term goal of reducing carbon emissions 17 percent by 2020 on his own. In the decades afterward, deeper cuts will be needed — humans have simply pumped too much carbon into the atmosphere to sustain any continuation of the old practices. Perhaps a functional Congress will one day emerge. In the meantime, the only way to understand the issue is that Congress, for all intents and purposes, does not exist.

Yglesias sees “one right response to Obama’s climate plan” for Republicans:

The right solution here is still what it was when Obama was first elected. Republicans ought to suck it up and recognize that a real legislative framework for tackling climate change is better than an ad hoc, executive-branch response. All the interests, regions, and industries harmed by a carbon tax or cap-and-trade system are going to be harmed even more by an all-regulation effort—you get the costs of reduced fossil-fuel use without the revenue that can mitigate those costs. The upside to sticking with the Clean Air Act framework is that it gives Republicans an issue: People will feel pain if electricity becomes more expensive, and they can point the finger at Obama and the Democrats. But while this sort of partisan war may have made some sense in the president’s first term, by now it’s surely time to give up the ghost.

Brad Plumer is more optimistic about the regulatory approach:

A better approach,  [economists will] typically say, would be for Congress to set a price on carbon that required polluters to pay for the damage caused by their emissions. People would then decide how best to adjust to the new price of fossil fuels on their own. That would be cheaper and more efficient. Again, that’s the conventional wisdom. But in an interesting recent paper (pdf) for Resources for the Future, Nathan Richardson and Arthur G. Fraas look at this comparison in much greater detail. Their conclusion? It actually depends how each is designed. EPA regulations might even be more effective than a carbon tax in a few cases.

McArdle, meanwhile, predicts that the costs of climate regulation will prevent any action, regulatory or legislative, without major changes in the energy landscape:

[T]his will not be painless for anyone.  Unless we get really cheap solar, it will be painful for everyone–so painful, I submit, that it probably isn’t going to happen.  Let’s return to Obama’s plan.  Final standards will be released in 2015 and phased in slowly.  (You will observe that the president has cleverly timed things so that he is out of office when the cuts begin to bite).  If they are toothy enough to really hurt–produce a measurable increase in electric bills that really changes behavior, other than causing manufacturers to shift production to Chinese facilities where energy-efficiency is lower, but so are energy prices–then I predict that President Obama’s successor will roll the rules back even more swiftly than they were unrolled.

If said successor does not, but digs in and stands on environmental principle, then Congress will step in and amend the law to remove EPA oversight over carbon emissions.  This will happen whether Democrats or Republicans control the House, for the same reason that European parliaments keep weaseling out of strengthening the EU carbon trading regime.

A Victory For Equality, And Deficit Hawks

Yglesias explains what today’s DOMA ruling means for the budget:

This is obviously not the main issue driving anyone’s thinking about marriage equality, but throwing out the Defense of Marriage Act as the Supreme Court did today should have some meaningful implications for the federal budget. The research that exists on this is a little sketchy and uncertain, but the main conclusion is that it will likely have a small positive impact on deficits. The ur-text here is a 2004 Congressional Budget Office analysis that was done at the behest of Ohio Republican Steve Chabot, who I think was hoping for the opposite conclusion.

Neil Irwin goes into more detail:

On the spending side, one of the biggest impacts is on Social Security and other federal programs. As the 2004 CBO report notes, “As a general rule, married people fare better under Social Security than single people do, and married couples with one earner fare better than two-earner couples do.” At the simplest level, more married couples means a more generous Social Security system, due to survivor benefits that allow a widow or widower to continue receiving benefits after their spouse dies. The CBO reckoned those numbers would be relatively modest, however, because gay couples are more likely to both be wage earners than straight couples, and because they are the same gender, it is less likely that one will dramatically outlive the other. The CBO estimated the increased federal spending due to same-sex marriage at about $200 million a year from 2010 to 2014, a pittance in the context of the federal budget.

State-level analyses have fit the same pattern. As Suzy Khimm notes here, studies in Maine and Rhode Island both pointed to small but measurable improvements to those states’ fiscal pictures from the legalization of gay marriage.

The Strangeness On Standing

Linda Hirshman thinks SCOTUS contradicted itself on the issue of standing:

Maybe Hollingsworth was an honest commitment to the niceties of federal standing. But denying the Prop 8 advocates standing while extending it to the Congressional Republicans in Windsor is a little awkward. The policy argument the Court articulated to grant standing in Windsor—that the Court did not want the president to usurp their role of deciding constitutional cases by refusing to defend a law and destroying standing—applies with equal force to the California government in Hollingsworth. The Court’s role in deciding the constitutionality of state laws is as great, and almost as old, as its role in federal cases. Yet the Court just turned over to the governor of California the ability to destroy its jurisdiction to decide the constitutionality of Prop 8.

The incoherence of the two standing opinions, taken together, makes it more likely Hollingsworth was simply a decision to duck for a little while longer: There are a bunch of other direct challenges in the pipeline that don’t involve a standing problem. But the language of Windsor foretells that when the court does poke its heads over the trench it will be to make the final charge toward victory.

To Which States Will Today’s Decision Apply?

Marriage States

Lyle Denniston attempts to answer the question:

With the demise of the Defense of Marriage Act’s benefits ban in Section 3, for legally married gays and lesbians, the Court immediately — even if inadvertently — gave rise to a situation in which couples living in states that will not allow them to marry because they are homosexuals will still be able to qualify for federal benefits, many of which are handed out or managed by state governments.

But the ruling did not do anything explicitly about another section of DOMA — Section 2, which gives the states the right to refuse to recognize gay marriages performed in other states.  That thus raised the prospect that a same-sex couple married in one of the states now allowing such unions could face obstacles to their marital rights when they moved into states that still do not recognize their unions.  This might be a particular problem for already-married gay couples serving in the military, who often have to move from state to state.

Ilya Somin examines the situation in California:

As Marty Lederman explained in this January post, it is not entirely clear whether Judge Walker’s district court opinion striking down Proposition 8 is binding with respect to gay marriages other than those of the plaintiffs in the case. As Lederman points out, both sides in the litigation agree that he intended it to be so binding. But they differ on whether he had the power to do so. The Supreme Court’s opinion in Hollingsworth does not address this question, which could end up being settled by lower court litigation. Lederman also notes that the governor (who opposes Prop 8 and refused to defend it in court) could simply choose not to enforce Proposition 8 in the aftermath of the Supreme Court’s ruling. In practice, therefore, it is quite likely that Proposition 8 will no longer be enforced even if Judge Walker’s ruling isn’t binding beyond the parties to the immediate case.

In a press release California Governor Jerry Brown writes that he has “directed the California Department of Public Health to advise the state’s counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the Ninth Circuit confirms the stay is lifted.”

(Map of states with full marriage equality from The New Yorker)

DOMA Struck Down: Your Thoughts

U.S. Supreme Court Issues Orders On DOMA And Prop 8 Cases

A reader writes:

I am so glad to be alive to appreciate this moment.  And to carry the memory of people who didn’t survive, whose deaths and whose battles for acceptance and love, whether private and within their families, or public, whether gentle or fierce, helped bring this to be.  As you note, timing mattered so much in determining who lived and who died.  But the survivors, like you, carried on the fight.  My best friend’s older brother died of AIDS in 1994.  He had come out as a teenager, in the late 1970s.  He was never able to have a spouse, but his little brother – also gay, but much younger – was spared from the plague, and can now marry his sweetheart of 25+ years.  Free at last.

Another:

I’m a young straight white man in the USA, and this feels like a victory for me, and for the open-heartedness and dignity and simple wisdom of the world I live in. I can only imagine how it must feel for those millions of you who have been openly disparaged and oppressed for so long. I can only imagine how it must feel to have seen and felt the culture shifting as dramatically as it has these last few decades, and yet to have remained imprisoned by idiotic and hateful bureaucracy. But even though this victory is less mine than yours – not least because you took up this fight long before it seemed plausible – I am nevertheless not shy in declaring victory and expressing my gratitude to you and everyone who has fought for this. The collapse of DOMA and the blossoming of equality and freedom – our becoming a more perfect union – is a gift to us all.

Of course it’s not over, but the light is shining clearly now. Congratulations for this day, and, hey, for the federal benefits you are now rightly entitled to! Fuck yeah.

Another:

Like you, I was elated and relieved to see DOMA struck down this morning. A few hours later, that elation has ebbed. As I read the reactions and commentary, specifically as I read about the federal rights that are still residency-based, I am selfishly saddened. Because my partner, my son, and I live in Texas, and we still can’t get legally married in our home, in front of our closest family and friends. You have repeatedly stated on your blog that you support states’ rights to make the marriage decision individually and independently, but as I (and many of your other readers, I’m sure) have said time and time again, that’s easy to say when you live in a state that recognizes your marriage, or you have the means to move to elsewhere. If you live in one of those states that doesn’t, you still feel a bit like a second-class citizen today.

Another:

You wrote: “Immigration equality is here. Again: after two decades of extreme anxiety, history wipes it away. You have no idea how much relief so many bi-national couples are now feeling.”

That’s likely not quite accurate.

The opinion appears to create a “dual federalist” system in that the federal government must defer to a state’s law to define marriage. Thus, a bi-national couple that wanted to reside in, say, Texas, which has a law on the books expressly forbidding recognition of gay marriage from other jurisdictions, would not be recognized under federal law even if actually married in a foreign jurisdiction. Thus, immigration equality appears to only exist in state’s recognizing gay marriage.  We need a Section 2 challenge to wrap this thing up.

Another:

Just wanted to direct your attention to this petition. Because of the patchwork of different regulations used by federal agencies, many couples who are legally married in a US state still won’t be eligible for benefits in that state if it doesn’t recognize same-sex marriage. The reason for this is that some agencies use a “place of celebration” standard while others use a “place of residence” standard. This leads to perverse consequences like a same-sex couple married in Maryland but residing in Virginia being eligible for benefits through the DOD but not Veterans’ Affairs. President Obama can immediately correct this by issuing an executive order instructing federal agencies to adopt a uniform place-of-celebration standard. More people need to know about this.

Another:

I’ve never understood the whole “Scalia is so brilliant” thing.  I’ve been hearing it for years and years, particularly from certain law school profs (who were raging unreconstructed old school liberals, but who loved to let us all know that they found “Nino” quite charming at cocktail parties).  I’m a corporate lawyer, but my father was a federal appellate civil rights lawyer with the NAACP Legal Defense & Educational Fund for almost 40 years.  He argued cases in front of SCOTUS including after Scalia was appointed.  My father’s impression of him based on appearing before him seems totally consistent with my read of Scalia’s claptrap opinions – he’s a somewhat intelligent but extraordinarally belligerent narcissist.  Reading his stuff, for me, provokes revulsion at his immaturity – which brings disrepute to the institution – and whiplash at his rampant inconsistency.

Live-blog coverage of the ruling here. More of my thoughts here. Blogger reax here and tweet reax here.

(Photo: Chase Hardin (2nd L) hugs friend Kai Neander (L) on the steps of the Supreme Court after favorable rulings were issued in same sex marriage cases June 26, 2013 in Washington, DC. By Win McNamee/Getty Images)