The roadmap for comparative effectiveness research has become much clearer and detailed these past few days with the release of two new reports. One comes from the Institute of Medicine at the National Academies and the other comes from HHS’s Federal Coordinating Committee for Comparative Effectiveness Research. The IOM released a list of 100 health topics for the Obama administration to prioritize as it spends $1.1 billion in stimulus funds dedicated to CER. More importantly, the Federal Coordinating Committee itself has stated in its report to the President and the Congress that CER should “complement the trend in medicine to develop personalized medicine,” and that it will be “an important partner in helping to bring about this new level of medical effectiveness, personalization, and innovation.” This bold vision of personalized medical innovation based on “patient-centered, pragmatic, ‘real world’ research,” clearly dwarfs the feeble criticisms of CER aired by conservatives in last week’s HELP Committee markup of the “Affordable Health Choices Act.”

While the act incorporates CER as part of its health reform agenda, there is another piece of legislation that will establish a dedicated, rigorously-organized federal Institute for CER.

Formerly known as the “Patient-Centered Outcomes Research Institute,” the creation of this federal body depends on the passage of the “Patient-Centered Outcomes Research Act,” (S. 1213) sponsored by Senators Baucus and Conrad. Upon a close reading of the bill, it is evident that the Patient-Centered Outcomes Research Institute will not just be another meaningless chunk of bureaucracy as its critics claim. The Institute’s goal will not be to simply spit out generic guidelines that your doctor must follow “or else.” Rather, the Institute has been designed to ramp up medical innovation for the common good by championing a new era of personalized medicine.

Taking a close look at the bill there is plenty of language about “evaluating and comparing the clinical effectiveness, risks, and benefits” of various tests, treatments, and devices. More importantly, the bill upholds a commitment to doing the best kind of comparative effectiveness research by making it personalized and reaching out to subpopulations. The bill charges the Institute with conducting “research and evidence synthesis that considers variations in patient subpopulations.” The bill builds upon this by later explaining what “subpopulations” means specifically:

“racial and ethnic minorities, women, age, and groups of individuals with different comorbidities, genetic and molecular subtypes, or quality of life preferences.” This also means that the institute will “include members of such subpopulations as subjects in the research as feasible and appropriate.”

Even more impressively, the bill kicks biomedical innovation into high gear by explicitly infusing its research with personalized, real-world considerations. The bill stipulates that CER take into account “treatment modalities that may affect research outcomes, such as the phase of the treatment modality in the innovation cycle and the impact of the skill of the operator of the treatment modality.” This basically means that the research will look at how far along a treatment is in the product development process and the skill-level of those administering the treatment. Again, these are real-world considerations that other forms of research like clinical trials often miss.

Additionally, subpopulations will not just be part of the subject pool; they will be part of the implementation process. Their representatives will be incorporated into the advisory group that will set the agenda of the Institute’s primary research. Another advisory group will devise research methodologies by including members who are experts on personalized medicine technologies like biostatisitcs and genomics. The dissemination of research findings will also “discuss findings and other considerations specific to certain subpopulations, risk factors, and comorbidities, as appropriate.”

Finally, for those who might be concerned about the intrusiveness of such an Institute, the bill also stipulates that the dissemination of research findings discuss “limitations of research;” “shall not include practice guidelines, coverage recommendations, or policy recommendations;” and would not “violate the privacy of research participants or violate any confidentiality agreements.” Indeed, far from assuming that scientific data is the infallible final word, the Institute knows its limitations, admits them, and stays within them.

Perhaps one of the most astute and intellectually honest provisions of the bill involves the usage of research findings by the Secretary of Health and Human Services. Many have feared that CER will be used to deny coverage or to tell your doctor what to do. It won’t — this is made explicit multiple times in the bill. Of course, it would not make sense to just let CER research sit there when it comes time for HHS to make Medicare coverage decisions. Thus, there are concerns that CER will be used to justify the enforcement of one-size-fits-all treatments. Once again, it won’t, and the bill states this explicitly by requiring the Secretary of HHS to consider:

“evidence and research that demonstrates or suggests a benefit of coverage with respect to a specific subpopulation of individuals, even if the evidence and findings from the comparative effectiveness research demonstrates or suggests that, on average, with respect to the general population the benefits of coverage do not exceed the harm.”

On the whole, this bill is a prime example of robust, evidence-based, scientific policymaking. In incorporates the best attributes of the scientific method and the democratic process right into the implementation of public policy. The Institute will constantly update its research in light of new methodologies and treatments, its research will be transparent, it will seek input from the public and a broad range of stakeholders like patient advocates, it will build upon existing research efforts to avoid redundancy, and submit its research to peer review. Most importantly, the Institute will respect the rights of the individual person by taking a personalized approach to CER. As Alan Garber of Stanford and Sean Tunis of the Center for Medical Technology Policy put in a recent NEJM article, “far from impeding personalized medicine, CER offers a way to hasten the discovery of the best approaches to personalization, providing more and better information with which to craft a management strategy for each individual patient.”

Sen. Mark Warner (D-VA)

“Is this going to be some kind of poor cousin, located across town, that will always be struggling to have the resources, personnel and expertise?” Warner, a Democrat on the Senate Banking Committee, said…Another concern is that the agency, “divorced from the reality of the market and the reality of the financial institution, becomes so focused on a gotcha mentality that it overdoes,” Warner said. He said he may be “convinced” to back the agency.

Warner’s concern about the agency being a “poor cousin” is incredibly valid, and highlights one of the problems inherent in our current regulatory system. At the moment, many regulatory agencies are tasked with policing both the safety and soundness of financial institutions and consumer protection. But as Adam Levitan pointed out, “a bank cannot be safe and sound without being profitable, and abusive and exploitative lending practices are frequently quite profitable (there’s no other reason to engage in them). If a regulator cracks down on an abusive lending practice, it might endanger its regulatory charge’s safety and soundness.”

Thus, consumer protection becomes a secondary thought, if it’s considered at all. If the new agency does not have the resources or clout to be anything more than the bank regulators’ annoying little brother, it simply won’t be effective.

The second part of Warner’s concern holds less water. The “reality of the market” is that predatory lending can be a highly profitable business, especially when its encouraged and abetted by Wall Street investment banks. For instance, originating subprime mortgages was a $600 billion business in 2005. No one is balancing the concerns of the consumer against the banks’ charge for profits.

The new agency will have to be intimately familiar with the various markets for financial products, but from a consumer perspective, with consumer protection the foremost objective. It’s purpose is to write rules and issue guidelines ensuring that the “reality” that banks and mortgage lenders have crafted doesn’t consistently put consumers on the short end of the stick. I hope Warner doesn’t find that too objectionable.

The main goal of protecting the population is to create time and space to build effective Afghan government institutions and deliver public goods to the people. This effort at improving governance and economic development is the linchpin of the administration’s new strategy. As National Security Adviser Jim Jones put it in a recent interview with Bob Woodward, “The piece of the strategy that has to work in the next year is economic development. If that is not done right, there are not enough troops in the world to succeed.”

But, as Rajiv Chandrasekaran reports today, U.S. civilian agencies haven’t been able to increase their numbers on the ground to help with reconstruction and governance. Only two additional State Department officials have deployed to Helmand thus far, and another dozen are not expected to be on the ground until the end of the summer. Despite the Obama administration’s emphasis on a civilian surge in Afghanistan, the military is still having to make up for the lack of civilian capacity –- 50 Marines, most of them reservists with experience in local government here in the U.S., are attached to the Marine unit now deploying in Helmand.

The failure of civilian foreign policy agencies to deploy significantly for the first big push of the new Afghanistan strategy shouldn’t come as a surprise. Since at least the end of the Cold War, more and more of the heavy lifting of U.S. foreign policy has been handed to the military. As counterinsurgency guru David Kilcullen has noted, “there are substantially more people employed as musicians in Defense [Department] bands than in the entire foreign service.” This problem isn’t one we’re all just becoming aware of now -– nearly two years ago, Secretary of Defense Robert Gates pointed out just this problem in a speech at Kansas State University. Despite a general, bipartisan recognition over the past several years that the United States lacks the civilian capacity to conduct foreign policy properly, little has been done to rectify this problem.

Acting now probably won’t help us in Afghanistan -– it will take years to build up civilian capacity to the levels needed there. And on top of the demand for civilian expertise in Afghanistan, U.S. involvement in Iraq will continue to demand diplomatic and development resources. Add to those two conflicts increased assistance to Pakistan, and demand for civilian personnel and resources will continue to grow faster than budgets or training allow. There will likely be further reliance on the military to get the job done in Afghanistan: even after General Jones effectively told commanders there that they were not going to receive any more troops, Joint Chiefs Chairman Admiral Michael Mullen told reporters there were “no intended limits” on future troop strength.

Part of the resourcing problem is structural: there’s no diplomatic-industrial complex that can bring jobs and federal dollars home to Congressional districts the way defense contracts can. And, let’s face it, diplomacy and development simply aren’t as sexy as F-22 fighters or DDG-1000 destroyers. But they may be just as important in both preventing conflict and winning those that the United States finds itself in in the future. While improving America’s civilian foreign policy apparatus may not happen in time to help the effort in Afghanistan, the long-term benefits of doing so are just too great to continue deferring. More speeches bemoaning the lack of civilian capacity aren’t what’s needed -– action is.

Company records for 2008 show that ExxonMobil gave $75,000 (£45,500) to the National Center for Policy Analysis (NCPA) in Dallas, Texas and $50,000 (£30,551) to the Heritage Foundation in Washington. It also gave $245,000 (£149,702) to the American Enterprise Institute for Public Policy Research in Washington. The list of donations in the company’s 2008 Worldwide Contributions and Community investments is likely to trigger further anger from environmental activists, who have accused ExxonMobil of giving tens of millions to climate change sceptics in the past decade.

Exxon’s continued duplicity should come as no surprise. Just as ExxonMobil makes public promises to end funding to groups that work to deny climate change, it also has devoted millions to ad campaigns touting clean energy without actually investing significantly in renewable energy. In 2007, Exxon-Mobil spent $100 million on advertising and “green-washing” campaigns in an attempt to exaggerate their commitment to renewable energy, producing ads that focused on global warming, efficiency, and alternative energy. That’s despite the fact that ExxonMobil spent more on CEO Rex Tillerson’s salary than on renewable energy in 2007. While Tillerson took in $21.7 million, Exxon invested only $10 million or so in renewable energy – just a tenth of the amount they spent talking about investing in clean energy.

Exxon is staffed by and supports those who deny the most basic facts of climate change and global warming. In June 2005, White House official Philip Cooney had to resign from Bush’s Council on Environmental Quality after being caught altering documents to hide links between fossil fuels and global warming. ExxonMobil waited only three days to hire him. In fact, ExxonMobil didn’t admit that global warming is occurring until 2007.

This latest evidence of Exxon’s continued opposition to clean energy comes less than a month after the American Petroleum Institute released a report revealing just how little the top Big Oil companies invest in renewable energy – and how far they’ll go to try and say otherwise.

Here is a partial comparison of how the committee reduced the price tag (all numbers are over a ten-year period):

The most interesting saving came from the reduction in subsidies. The original language allowed for $1,279 billion in subsidies, but the new bill scored a $723 billion price tag with the CBO, a 40 percent reduction. What happened? Well, the CBO concluded that by implementing an employer mandate more Americans would retain their work-place insurance and fewer would have to purchase coverage from the Exchange. As a result, the government would have to spend less money subsidizing coverage (since the employer contribution would be preserved); employers who don’t offer coverage would pay a penalty of $750 per full-time employee, $375 for each part-time employee, that would bring in an extra $52 billion for health care reform!

The bill also saves money by reducing the subsidy eligibility from 500% FPL to 400% FPL. Now, American families of four with incomes between 400% FPL ($88,000) and 150% FPL ($33,000) would receive government assistance when purchasing insurance, but the subsidies do not kick in for a family of four at $400% FPL until they have spent more than 12.5% (or $11,000) of their gross adjusted income on health insurance — a percentage that’s substantially higher than the 6% threshold most affordability experts recommend.

The bill also finds approximately $59 billion in new revenues from premiums collected for long term care paid by individuals purchasing disability insurance through the Community Living Assistance Services and Supports (CLASS) Act, legislation currently under consideration that would create an insurance program for adults who become functionally disabled. The CLASS Act establishes “a national insurance program to be financed by voluntary payroll deductions to provide benefits to adults who become severely functionally impaired.” All working adults will be automatically enrolled in the program, unless they choose not to be.

I was not able to get a question, but if I did I probably would have asked about “normal life” in Silwan, a Palestinian neighborhood in Jerusalem where the Israeli authorities have been evicting families and demolishing homes as part of a larger plan to put areas of Jerusalem’s Old City under the control of settler groups. It seems to me that getting kicked out of your house and then having your house destroyed is not conducive to “normal life.”

CAP’s Brian Katulis recently returned from a trip to Israel and the Palestinian Territories. He published this photo essay and wrote this post about how the settlements are complicating a two-state solution.

The report itself is written by FAIR’s Director of Special Projects, Jack Martin, a former U.S. Consular Diplomat with no environmental, scientific, or academic credentials to speak of. In the report Martin uses anecdotes and inferences to connect rising U.S.energy consumption to immigration levels. Without a single citation other than three endnotes included in the back of the report, Martin spends nine pages arguing that energy consumption has little do with how energy is being used and everything to do with the immigrants who are using it. FAIR’s corresponding press release claims:

[The report] addresses America’s stifled immigration policy debate: it finds that America’s massive immigration-fueled population growth was the single largest contributing factor to the nation’s increased energy consumption and carbon emissions over the past 35 years. Even without a massive amnesty for illegal aliens supported by President Obama and congressional leaders, immigration will be the driving factor as U.S. population approaches the half billion mark by mid-century.

King’s argument also invokes xenophobic panic by referencing the fertility rates of Hispanic women. His whole thesis is ultimately based on the dim-witted idea that the entire energy problem would be resolved if immigrants go away, not taking into account that they will also be consuming energy in their home countries.

Aside from basing his findings on flawed logic, King has his facts wrong. When complaining about the unfairness associated with the stringent Kyoto Protocal standards, King claims that immigration is the main reason that the rate of population growth is so much higher in the U.S. compared to Europe and therefore curbing immigration is the only way to reduce greenhouse gas emissions. However, according to the World Resources Institute, the U.S. is home to 23% fewer people than the European nations of the EU-15, yet still produces 70% more greenhouse gases.

Scapegoating immigrants is easy, actually solving our environmental problems is a lot more complicated. FAIR fails to recognize that energy consumption is driven by a host of factors totally unrelated to population size, such as societal dependence on polluting and non-renewable fossil fuels; utilization of energy-efficient technologies; and the development of mass transit systems that minimize individual automobile use. Along those lines, the McKinsey Global Institute offers a more viable solution to residential energy consumption levels: promoting policies that boost energy productivity — the level of output achieved from the energy consumed — such as building shells, compact fluorescent lighting, and high-efficiency water heating.

FAIR isn’t the only group to blame immigrants for environmental problems — they join the ranks of hate and restrictionist groups like the American Immigration Control Foundation, the Social Contract Press, and the Center for Immigration Studies (CIS), which last month released a report entitled “The Environmental Argument for Reducing Immigration to the United States.”

Based on analysts’ earnings forecasts for 2009, Goldman Sachs Group Inc. is on track to pay out as much as $20 billion this year, or about $700,000 per employee. That would be nearly double the firm’s $363,000 average last year, and slightly higher than the $661,000 for the average Goldman employee in fiscal 2007…Morgan Stanley, the only other huge U.S. securities firm left as an independent company, will likely pay out $11 billion to $14 billion in compensation and benefits this year. [...] [T]he comeback in compensation so far this year shows how hard it is for Wall Street to break its old habits.

Meanwhile, over at Tech Ticker, House of Cards author and former investment banker William Cohan said “there’s been a lot of talk” from the Obama administration about compensation, “but little or no action.” “There’s a lot of nice words in the 85-page re-regulation proposal…[about] making sure compensation is tied to behavior and accountability,” he said. “But there’s not much action going on.”

There may not have been much action yet, but the administration has taken some steps toward altering compensation practices. Yesterday, the Securities and Exchange Commission proposed rule changes that would “require companies to disclose more about their use of compensation consultants and bolster reporting of stock and option awards.” And ultimately, I think the real problem is not with the administration’s lack of action, but with Congress’.

The administration has explicitly called for legislation that would enact “say on pay,” giving shareholders the ability to vote on their company’s compensation packages. The SEC is already putting this in place for companies receiving TARP money, but it would take an act of Congress to make it the law of the land.

Say on pay would not be a panacea for all that is wrong with Wall Street’s compensation practices, but it seems to have had a positive effect on CEO pay in both Great Britain and Australia. And as Cohan and Nouriel Roubini have suggested, more needs to be done to align compensation with long-term corporate outcomes. But if Congress isn’t willing to move — and most signs point to financial regulation taking a back seat to other legislative matters — there’s little that the administration can do.

Several landmark civil rights laws, including ban on age discrimination, the ban on covert employment discrimination, and two essential provisions of the Voting Rights Act were cut back this Supreme Court Term, some of them drastically.  Worse, several of these decisions suggest that the Court’s most conservative members are eager to rip out the backbone of American anti-discrimination law.

• Thumbing Their Noses At Precedent

As the Wonk Room previously reported, the Court in Gross v. FBL Financial Services dramatically cut back on the right of older workers who are victims of employment discrimination to hold their employers accountable for such mistreatment.  Moreover, as Justice Stevens explained in his dissent, Justice Thomas’ 5-4 decision in Gross showed “utter disregard for . . . precedent and Congress’ intent,” because it flat out refused to follow a 1989 decision that interpreted the exact same legal language at issue in Gross and reached the opposite result.

For his part, Thomas didn’t even try to justify his disregard for precedent, stating simply that “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.”  Apparently, precedents no longer apply whenever the Court’s five conservative members disagree with them.

• Standing At The Brink

In slight contrast to Gross, the Court also rolled several other landmark civil rights provisions, but it handed down significantly narrower opinions than the Court’s most conservative members would have liked.

The Voting Rights Act’s ban on “vote dilution” prevents states from drawing voting districts that divide minority population centers into multiple districts in order to prevent racial minorities from electing the candidate of their choice. Bartlett v. Strickland, however, drastically cuts back on this ban by holding that it only applies when a minority population center is sufficiently large that a compact voting district could be drawn in which minorities make up a majority of the voters. Where the minority population falls under this threshold, the ban now does not exist.

Similarly, Section 5 of the VRA requires voting districts who have historically engaged in discrimination to “preclear” any new voting rules with a federal court or the Department of Justice. Under the Court’s decision in NAMUDNO v. Holder, however, it is now much easier for districts to “bail out” of Section 5’s requirements if they can show that they have not recently engaged in race discrimination.

Federal law prohibits both overt discrimination in employment and hidden race discrimination such as a hiring test that screens out minority applicants based on reasons unrelated to their job qualifications. In Ricci v. DeStefano, however, the Court made the novel claim that the ban on hidden race discrimination may itself be a form of discrimination because it requires employers to think in terms of race. However one feels about the admittedly sympathetic case of Frank Ricci, the conservative justices went much further than they needed to in order to decide in his favor.  Apparently, even acknowledging the simple existence of race offends the Court’s conservatives.

Each of these three decisions cut back on progressive legislation, some of them drastically, but Bartlett rejected Justices Thomas’ urging to simply eliminate vote dilution claims altogether, and NAMUDNO and Ricci both expressly declined to consider conservative claims that Section Five and the ban on disparate impact discrimination are unconstitutional—despite pointed questions during the NAMUDNO arguments suggesting that a majority of the Court is prepared to invalidate Section Five.

Because NAMUDNO and Ricci avoided these constitutional questions, they remain unresolved. In light of Gross’ audacity, however, it is unlikely that the Court simply stayed its hand because of a principled decision to exercise judicial restraint—and far more likely that conservatives are still unable to find the fifth vote to strike down Section Five and the ban on disparate impact.

The HELP committee does not have jursidiction over Medicaid expansion or financing of reform. Thus, its bill only covers an additional 20 million Americans and costs approximately $600 billion. However, if we assume Medicaid expansion to about 150% FPL we expand coverage, but we also add to cost, bringing the final bill to somewhere around $1 trillion over 10 years. Cohn runs the numbers for what the final results may look like:

- 20 million: Number of uninsured in 2019, compared to 54 million without reform.

- 95 percent: Percentage of Americans with coverage in 2019.

- 21 million by 2019: Additional people covered through Exchange and employer mandate.

- 20 million by 2019: Additional people covered through Medicaid expansion of up to 150% FPL.

The preliminary CBO score of the early and incomplete HELP legislation placed the cost at $1 trillion and this latest analysis suggests that the committee has been able to find savings of some $400 billion ($1 trillion - $600 billion = $400 billion). Some of that new revenue will come from the employer mandate (an AP story suggests that the mandate will generate $52 billion over 10 years), but where do we get the rest? Lower subsidies (the original version may have provided subsides at 500% FPL, now it looks like it’s down to 400% FPL)? The public option? Only the yet-to-be released CBO score can provide those answers.

But the HELP Committee’s chairman’s mark - which, for the first time includes language on the public plan and the employer mandate - does offer some new details for how the mandate and the public plan could be structured:

- Employer mandate: Large employers would have to provide coverage to their workers or pay $750 per full-time employee, $375 for each part-time employee. Businesses with less than 25 employees will receive a tax credit, on a sliding scale, based on the number of workers. Ezra Klein points out, “the CBO estimates that “a mere 150,000 will lose their coverage. That’s nothing. And it means that a lot more Americans end up insured and the government spends a lot less in subsidies.”

An employer mandate is meant to strengthen the employer-based system of coverage and reduce crowd-out into the Gateway. Crowd out (and this is what critics latch on to when they claim that Obama overstated his promise to allow Americans to keep their present coverage) is less likely if employers are required to contribute a meaningful amount “to the cost of covering their uninsured workers,” because the cost of allowing their workers to be covered through other options is not much lower.

The dear colleague letter that accompanied the new mark stated that “the completed bill virtually eliminates the dropping of currently covered employees from employer-sponsored health plans,” but some may be surprised that a modest flat fee is a sufficient deterrent to dropping coverage. The decision to charge every firm the same penalty — instead of charging firms on a sliding scale based on payroll — does not account for firm size or profitability and smaller firms and firms with lower-wage workers, could be disadvantaged.

However, it should also be noted that Massachusetts requires employers with more than ten employees to either offer a “fair and reasonable” contribution for their employees’ coverage, or “pay an annual ‘fair share’ contribution of $295 per employee.” In Massachusetts, few firms reported making changes as a result of health reform, firms reported making few changes in cost sharing or in offering more plans are a result of the mandate.

- Community Health Insurance Option: Will have to compete on a level playing field with private providers and offer competitive rates and premiums. Presumably, the plan will be able to use its administrative efficiency and its market power (assuming it is able to attract a significant number of applicants and providers) to lower premiums:

- Health care providers and individuals are NOT required to participate in the new plan, it is entirely voluntary.

- The Secretary of Health and Human Services will establish the public option in every single Gateway (whether it is regional or national) and provide the national plan with start-up funds that will have to be repaid in 10 years.

- The new plan provide coverage only for the essential health benefits, but states may offer additional benefits if they choose

- Premium rates should cover the expected costs of the plan

- The rates negotiated with providers shall not be higher, in aggregate, than the average reimbursement rates paid by health insurance issuers offering qualified health plans through the Gateway.

Police chiefs from cities around the nation are calling on Congress to reform immigration laws and bring undocumented immigrants out of the shadows, claiming that it is in interest of public safety.

In an effort to build its credibility on immigration enforcement and pave the the way for immigration reform, Immigration and Customs Enforcement has launched a crackdown on employers who hire undocumented immigrants through I-9 audits.

Yesterday, a Border Patrol agent, “fearing for his life,” reportedly shot an undocumented immigrant who resisted detainment.

This Term featured a handful of contentious criminal cases which showcased both the justices’ unwillingness to recognize the challenges presented by new technologies, and their complete willingness to disregard longstanding precedents.  Moveover, taken together, these cases may foreshadow a sweeping assault on the rights of the accused.

• Turning Their Backs On The Twenty-First Century

As the Wonk Room recently reported, the Court’s 5-4 decision in District Attorney v. Osborne held that a potentially innocent man has no right to access DNA evidence that could exonerate him of a 1993 rape and kidnapping, even though he offered to pay for DNA testing himself–so it will cost the state literally nothing to let him do so.  According to Chief Justice Roberts’ opinion, the government can’t even be required to take cost-free measures to ensure that innocent people go free.

In Herring v. United States, another 5-to-4 decision, Roberts similarly disregarded the risks presented by poorly-maintained databases tracking arrest warrants and similar information. Since its 1961 decision in Mapp v. Ohio, the Court has understood that the Constitution’s safeguards against illegal searches and seizures mean nothing unless police suffer a consequence for their unlawful actions. Recognizing that virtually no jury would sanction a cop who unconstitutionally uncovers evidence of a crime, the Court endorsed the “exclusionary rule,” which requires illegally obtained evidence to be excluded from criminal trials. Herring, however, creates a new exception to this rule; when a police database falsely indicates that a person is the subject of an arrest warrant, the exclusionary rule does not apply to any evidence gained from an unconstitutional arrest of that person.

As Justice Ginsburg explains in dissent, failure to accurately maintain such databases could lead to countless innocent Americans being falsely arrested or detained. “Police today can access databases that include not only the updated National Crime Information Center (NCIC), but also terrorist watchlists, the Federal Government’s employee eligibility system, and various commercial databases.” In one of the most absurd recent examples of what can happen when those databases are poorly maintained, Senator Edward Kennedy (D-MA) was once detained in an airport because his name appeared on an anti-terrorist “no-fly” list.

• Disregard for Precedent

The Court’s dismissive attitude towards the exclusionary rule is particularly disturbing in light of two decisions overruling precedents governing the rights of the accused. An unusually pro-defendant decision in Arizona v. Gant significantly rolled back a 28 year-old decision which held that police may always search the passenger component of a vehicle when they constitutionally arrest the vehicle’s occupant. And in Montejo v. Louisiana, the Court expressly overruled a 23 year-old precedent holding that police cannot initiate interrogation of a defendant after the defendant requests counsel at arraignment.

Viewed in light of the Court’s apparent willingness to abandon precedent, the new limitation on the exclusionary rule in Herring may portend significant future incursions on that rule. During Justice Samuel Alito’s first term on the Supreme Court, he cast the key fifth vote in favor of an opinion which ominously claimed that the exclusionary rule “has always been our last resort, not our first impulse.”  Herring is now the second case in four years to place substantial new limits on the exclusionary rule. Although it remains to be seen whether this pattern is merely a coincidence, these two cases could be the beginning of a much larger assault on the exclusionary rule. If they are, the most potent means of ensuring that police comply with the Constitution could cease to exist.

The anticipated value of warrants for 10 of the largest banks that repaid their Troubled Asset Relief Plan funds is $3.3 billion using the Treasury’s valuation process, compared with $3.82 billion with a more conventional method, Linus Wilson, a finance professor in Lafayette, Louisiana, said in an interview. Investors are debating whether taxpayers will be fairly compensated for the risk they took by providing rescue funds for the banking industry.

Treasury’s approach to offloading the warrants is to have each individual bank suggest a price for its warrants. Treasury can accept the bank’s offer, or reject it and propose its own price. If the bank then rejects Treasury’s proposal, three arbitrators decide the final price “based on an average of the appraisers.”

But since Treasury is using a lowball determination of the warrants’ value, and the banks “have a solid incentive to bid extremely low,” it’s almost certain that the average will favor the banks, at taxpayer expense. At DealBook, Steve Davidoff made some suggestions for how Treasury can fix this:

First, make the banks’ initial repurchase offer public. They should be subject to public inspection — and shaming — if they try and take advantage of the government. Second, the government should toll the strict time limitations on the proceedings to allow time for it to respond adequately. Finally, to avoid this issue altogether the government should sell as many of the warrants it can now on the open market, before a repurchase request is submitted.

Davidoff’s first point about transparency is important. This is a transaction with taxpayers that we are talking about here, not a private business deal. The more we know about how the banks are conducting themselves in this regard, the better. Hopefully, transparent offers will also keep Treasury honest, as the public will know if Treasury accepts too low a price.

In the end, I think Simon Johnson is correct in that “the only sensible way to dispose of these options is for Treasury to set a floor price, and then hold an auction that permits anyone to buy any part – e.g., people could submit sealed bids and the highest price wins.” (Felix Salmon suggested then giving the banks “the right to match the winning price, if they’re so inclined.”) This approach would both produce a fairer result and ensure that the banks don’t get one final shot in at taxpayers as they wriggle free from TARP.

Aside from failing to reference their data source, NumbersUSA’s claim that their map somehow reflects the negative“effects” of U.S. immigration policy is based entirely on inference. The map itself doesn’t convey anything about immigration levels to support NumberUSA’s vague assumption that areas with high population growth have also experienced high levels of immigration, or that any of those factors have had a direct impact on the “quality of life” of certain regions. Another map, which is meant to illustrate the percentage of “foreign-born,” contains only a few splashes of color, the majority green (less than 2%).

Census Bureau figures which were also released today show the fastest-growing U.S. city to be New Orleans — which, according to NumbersUSA data, has a foreign-born population of only 2-5%. Most people are attributing changes in population trends as evidenced by the Census Bureau’s findings to the U.S. real estate crash and the global economic recession which is driving people out of the suburbs and into the nation’s historical population centers. According to William Frey, a Brookings Institution demographer, “The housing bubble caused a migration bubble and it has burst.” In fact, the international economic slowdown has decreased migration levels worldwide, meaning that fewer immigrants are coming to the U.S. in the first place.

Frank Sharry, Executive Director of the immigrant advocacy organization, America’s Voice, described NumbersUSA leader Roy Beck as someone who:

“…takes people who are upset about illegal immigration for different reasons, including hostility to Latino immigrants, and disciplines them so their message is based on policy rather than race-based arguments or xenophobia.”

NumbersUSA has blamed immigrants for everything from urban sprawl to air pollution and traffic jams. Dr. Walter Ewing of the Immigration Policy Center (IPC) describes NumberUSA’s newest project as “a map telling white people where to go to avoid dark people.”

Media Matters Action has noted that both of these claims are patently false. According to a study by the Center for American Progress, clean energy economy legislation will create 1.7 million American jobs while simultaneously addressing climate change by capping carbon dioxide emissions. The $1,800 figure used by NRCC is also made of whole cloth. The Congressional Budget Office has scored the bill and found that by 2020, the annual cost would be about $175 per household — about a postage stamp a day.

Not only does the NRCC stand in defiance of reality, it is going against the tide of public opinion. A new Pew poll found that a super majority of 78% of Americans want the U.S. to reduce its emissions of carbon dioxide that cause global warming and 72% of Americans support the core principles underlying clean energy legislation. The same poll found that even 66% of Republicans want the U.S. to curb carbon emissions.

One of the targets of the NRCC ad campaign is freshman Rep. Tom Perriello (D-VA). Perriello’s district already contains at least ten businesses in either the clean energy or energy efficiency industry. Not only would clean energy economy legislation realign market incentives to help these businesses expand, it will new spur investments and bring more jobs to the area. Virginia is projected to gain at least 45,000 jobs and a net increase of $3.9 billion in clean energy investments.

While NRCC strategists assume they can dupe Perriello’s constituents with fear mongering ads laced with lies, the right-wing base is harnessing the same NRCC misinformation to demonize Republicans who also voted for the bill. A recent post on the popular right-wing blog Red State calls upon readers to burn Rep. Mary Bono Mack (R-CA), one of the 8 House Republicans to support clean energy legislation, in effigy. Organizers of the anti-Obama tea party protests are also coordinating a harassment strategy — in similar fashion to their treatment of Sen. Arlen Specter (D-PA) — against the 8 House Republicans.

As the NRCC suppresses the truth in a vain attempt to elect more Republicans, they could be fueling more defections from the party.

McCaughey, who has long characterized herself as a “consumer advocate,” helped topple President Clinton’s reform effort by claiming that it “will prevent you from going outside the system to buy basic health coverage you think is better…The doctor can be paid only by the plan, not by you,” she wrote. The false charge ricocheted across the media and helped drown Clinton’s efforts. It wasn’t until 1995 that James Fallows explained that McCaughey completely misinterpreted the Clinton legislation and ignored language protecting patient choice.

Sixteen-years later, McCaughey is still positioning herself as unbiased interpreter of legislative language. In a rash of recent media appearances, McCaughey has argued that “for people who are currently get their insurance from their employer because this [HELP] bill and the House bill both force employers to move their employees into low grade HMOs within five years.” Watch a compilation:

McCaughey, who claims to have read the 610 page HELP bill three times, cites passage 3101 of the HELP bill as proof of the supposed requirement. The section, which is titled AFFORDABLE HEALTH CHOICES FOR ALL AMERICANS outlines the choices of coverage. Lower income Americans could enroll in Medicaid and SCHIP, the currently uninsured could find affordable coverage from a menu of different plans offered through the health insurance exchange; Americans with employer-based coverage could continue in their current plans or, after a period of time, also buy coverage through the exchange (or ‘Gateway,’ as the HELP bill calls it).

Nothing in the section McCaughey cites — or the bill — requires employers to move their employees into HMO plans. To the contrary, the passage on employers stresses that employers will have the choice to enroll their employees in a plan through the exchange. Under section (g), PORTALS TO STATE GATEWAY, the bill states, “A qualified employer may select to provide support for coverage of employees under a qualified health plan at any tier of cost sharing described 2 in section 3111(a)(1).”

Reading and re-reading the bill may have caused McCaughey’s eyes to also glaze over page 55 of the HELP bill, which explicitly protects Americans’ right to choose their own coverage:

On June 26th, Today, Media Matters for America wrote an open letter to cable news networks pointing out that “as the debate over health care reform proceeds, it is crucial that discussions and reports on the subject are accurate and fair. If the networks insist on hosting Ms. McCaughey to discuss health care, they have an obligation to their viewers to challenge and debunk her falsehoods.” Read the full letter here.

However, while claiming that he didn’t want to be invited anyway, King has spent the last week attacking Obama for not inviting more representatives that oppose “amnesty”:

KING: The White House stacked the deck and packed today’s summit with amnesty advocates. President Obama wants an amnesty bill, and while cynically creating a false perception of inclusiveness and bipartisanship, brought in a group that, almost without exception, supports his vision of rewarding law breakers…By not engaging with those who disagree with his pro-amnesty views, President Obama is holding an immigration summit that gives a cold shoulder to millions of Americans. As for me, I would much rather be on the outside of the White House speaking up for the Rule of Law than on the inside going through the motions.

Obama has indicated that he wants to start a productive dialogue on immigration reform and his meeting last week was aimed at uniting “problem-solvers.” A closer look at King’s record reveals that there’s probably a good reason why he did not fit the White House’s criteria. The Anti-Defamation League writes of King:

Congressman Steve King has characterized immigrants — both legal and undocumented — as criminals and disease-carriers. He has spoken alongside leaders of border vigilante groups and advocated a border “wall” topped with electrified wire to stop what he has called a “slow motion Holocaust” of undocumented immigration into the United States. King addressed the House of Representatives and asserted that undocumented immigration is “a slow-rolling, slow-motion terrorist attack on the United States.”

King’s views have won him the the wide support of several anti-immigrant organizations, some of which are identified hate groups. Restrictionist groups such as the Federation for American Immigration Reform (FAIR), Numbers USA, and VDare have all praised King’s efforts and he has been a featured speaker at many of their events. King has also reportedly accepted thousands of dollars in campaign contributions from the nativist Minuteman PAC and the U.S. Immigration Reform (USIR) PAC, of which the wife of eugenacist John Tanton is the president.

King may have also been excluded from last week’s meeting because he is generally out of touch with most of the American public. King claimed that:

KING: The American people want this Administration to enforce existing immigration laws and secure our borders…The balance of the views inside the room at today’s White House immigration summit does not reflect the views of the American public.

However, a poll released today shows that 89% of King’s own GOP base of voters support comprehensive immigration reform that requires undocumented immigrants to register for legal status, pay back taxes, and learn English in order to be eligible for U.S. citizenship.

The two-page article (pp-18-19) is written by the Saudi sheikh Abd al-Aziz al-Julayyil and is actually taken from the latter’s website, which says the text was written on 17 May 2009.

Al-Julayyil starts off by saying he was motivated to write this article after observing a lot of optimism among Muslims over the arrival of the new US administration. He says he realises many will react to the headline (”Obama is more Dangerous than Bush”), for how can the Satanic Bush, who invaded Muslim countries and whose planes and tanks killed Muslim children, be less dangerous than Obama, who has declared he is not at war with Islam? [...]

[Al-Julayyil writes] that Bush’s follies actually benefited Muslims by inflicting significant damage to America. The most important fruit of Bush’s policies was the wake-up call it produced among Muslims in terms of realising the true nature of their enemy, reviving the creed of loyalty toward Muslims and dissociation from infidels, and raising the flag of jihad in several battlefields. Another benefit of the Bush era was the infamy suffered by America on the world stage and the demise of its false discourse on human rights; in the world’s eyes America itself became a proponent of oppression and a threat to human rights. Add to this the American economic and military decline.

In other words, and has been pointed out numerous times by numerous analysts, President Bush’s war on terror played right into Al Qaeda’s hands (conservatives called this “showing strength”.)

But, according to Heghammer, Al-Julayyil writes that now comes Obama “with his sly policies and his attempts to deceive the world, especially the Muslim world, with his professed love for peace and criticism of the policies of his predecessor.”

And many Muslims were duped by his sweet-talk and pinned their hopes on this man to lift the oppression from them.

This is extremely dangerous, al-Julayyil argues, because it is weakening their enmity toward America and makes them more positively inclined toward her future policies. It is numbing them, reducing their hatred toward infidels, and making them stop fighting.[...]

Al-Julayyil concludes: So beware of this cunning Satan, for he is more dangerous than the foolish Satan.

We saw some evidence of this recognition of the danger Obama posed to the extremists’ agenda last fall, when an Al Qaeda-affiliated website posted a message insisting that “Al Qaeda will have to support McCain in the coming election” because he would be more likely to continue the “failing march of his predecessor,” President Bush. Whereas Obama, they suspected, would be much less likely to spend trillions of dollars affirming Al Qaeda’s propaganda by treating them as the enemy in a “transcendental” apocalyptic struggle. This turns out to have been right.

Conservatives can bash Obama’s outreach to the Muslim world all they want, but the fact is that he is reaching many of the young Muslims who Bush alienated. And the extremists know it, and they’re scared. That’s what happens when you have a president who doesn’t confuse strength with macho grandstanding and counterproductive military intervention.

The lender is in no way forced to find a workable solution with the borrower, but the simple act of putting all the parties together in a room has produced some encouraging results:

A program to avert residential mortgage foreclosures has saved almost 60 percent of its participants from losing their homes in a sheriff’s sale, officials said on Tuesday. Philadelphia’s Mortgage Foreclosure Diversion Pilot Program…resulted in 2,776 properties permanently or temporarily saved from sale between its inception in June 2008 and May 31 this year out of 4,690 that were referred to the program.

A statewide program in Connecticut has produced similar numbers, with 57 percent of borrowers able to stay in their homes. But despite the effectiveness of mediation meetings, as of the end of last year, about 80 percent of homeowners at risk of losing their homes had not engaged in any efforts to make a deal with their lender.

Sen. Arlen Specter (D-PA) is reportedly putting together legislation to replicate the Philadelphia program at the national level. Conveniently, CAP’s Andrew Jakabovics and Alon Cohen have some suggestions for the sort of steps that the federal government can take to promote such an effort:

– Congress should fund state and local mandatory mediation programs just as it provides neighborhood stabilization funds to alleviate the housing crisis.

– The Department of Housing and Urban Development should issue guidance that explicitly permits community development block grants to be used to fund mandatory mediation programs.

– The government should require mediation for all federally insured home mortgages.

Bloomberg reported yesterday that delinquencies on prime mortgages more than doubled in the first quarter of 2009, compared to a year earlier, “as U.S. efforts to help homeowners failed to keep pace with job losses.” The foreclosure problem is simply not going to abate any time soon, so any reasonable steps that can keep borrowers in their homes — including mandatory mediation — can, and should, be taken.

No one fared worse before the Supreme Court this Term than the Earth.  The justices heard five environmental cases, and they sided against defenders of the environment in every single one.  Among these cases, the Court upheld a Bush-era regulation that placed costs to power plants above destruction of aquatic life; it absolved from liability a chemical company that allowed pesticides to spill into the environment for years; it erected new obstacles to environmental organizations challenging federal environmental policy; and it upheld a mining company’s plans to dump literally millions of tons of mining waste into a pristine lake.

Two of these cases in particular highlight the Court’s disregard for laws intended to protect the environment:

• A New Loophole For Polluters (Coeur Alaska v. Southeast Alaska Conservation Council)

Using a technique known as “froth-floatation,” a mining company in Alaska plans to extract new gold from a mine that has been closed for decades, but this technique would produce approximately 4.5 million tons of “slurry,” thick waste-product laced with toxic elements such as lead and mercury. Even worse, the mining company’s intends to dispose of this waste by dumping it into a nearby lake, a plan which would eventually kill all the lake’s fish and nearly all of its other aquatic life, decrease the depth of the lake by fifty feet, and flood the surrounding 40 acres of land with contaminated water.

Although federal law forbids “[t]he use of any river, lake, stream or ocean as a waste treatment system,” the Supreme Court created a massive new exception to this law. Under Justice Kennedy’s decision in Coeur Alaska, pollutants are exempt from this law so long as they have “the effect of . . . changing the bottom elevation of water.” In other words, polluters now have a free hand to dump whatever they want into pristine waters, so long as their waste products are solid and significant enough to reduce the depth of the lake, river or stream. As Justice Ginsburg wrote in dissent, such a reading of federal law “strains credulity” because it allows “[w]hole categories of regulated industries” to “gain immunity from a variety of pollution-control standards.”

• Placing Profits Before The Law (Entergy v. Riverkeeper)
  

Power plants’ cooling systems collectively remove more than 214 billion gallons of water from the nation’s waterways every day, in the process killing over 3.4 billion aquatic organisms per year. The Clean Water Act requires that EPA regulate these cooling systems based on “the best technology available for minimizing adverse environmental impact.” During the Bush administration, however, EPA ignored this direction and instead employed a skewed cost-benefit analysis in deciding how to regulate. As a result, power plants were allowed to forgo the advanced technology required by the plain language of the law in favor of cheaper but far less protective measures.

Ignoring the law’s plain language, Justice Scalia’s decision in Riverkeeper upheld the Bush administration’s action.  As Justice Stevens explained in dissent, Congress determined that the costs of requiring power plants to pay for environmentally friendly technology “are outweighed by the benefits of minimizing adverse environmental impact” when it enacted the Clean Water Act, but the Court substituted the Bush Administration’s judgment for that of the law.

Notably, Riverkeeper reversed a Second Circuit decision by Judge Sonia Sotomayor, a hopeful sign that President Obama’s nominee for the high Court does not share her future colleagues’ willingness to rewrite environmental legislation to benefit big industry.