It is a remarkable thing that conservatives that supposedly object to (a) inflexible federal rules on civil rights; (b) telling states how to spend their own money, and (c) second-guessing elected officials with judicial opinion would violate all three principles in the Ricci firefighter case. But then, conservatives have never really objected to judicial activism or federal imposition on local governments, just to most situations where such federal activism benefits poor people or non-white folks.

Somehow don't expect to hear Sotomayor praised for judicial restraint and deference to states rights in her 2nd Circuit ruling in the Ricci decision.

Update Below the Fold

That is the core question of judicial review: why is the Supreme Court a magically wise voting body whose bare minimum five-member majority should be able to override the decisions of every other local, state or federal legislative body. It's obviously not that the law is so clear and compelling -- or else you wouldn't end up with so many 5-4 court decisions.

These are political and philosophical decisions at whatever legislative, executive or judicial level they are made and the most compelling argument should be that courts should pass on overturning elected majority decisions except in extreme and obvious violations of rights.

Notably, when Brown v. Board was decided, Chief Justice Earl Warren went out of his way to get a unanimous decision to make clear that the rights violated were so clear than every judge agreed that the law made such a violation wrong under the Constitution. What conservatives on the present Court lack is any sense of modesty that the Brown v. Board court had that the Court needed more than the raw power of five votes but needed to demonstrate a consensus in the law. Not that liberal activists in the past haven't fallen into the same abuse of majority rule, but given the continued attacks on "judicial activism" by the Right, their hypocrisy is that much more pronounced.

I generally oppose judicial review, but it seems especially ridiculous that it takes supermajorities in the Senate and Presidential agreement (or similar checks and balances at the state and local level) to enact policies, yet the rawest majority power can strike down laws on the Supreme Court. That conservatives now use that legacy roost to give them power to overturn decisions of elected leaders in all the venues they have lost power is an interesting deadend of conservative thought, betraying their rhetoric even as they wield their residual power. If judicial review is going to exist, it would seem that the law and Constitution should be so compelling that at least seven Justices should be needed before a democratically approved policy or law could be overturned by the courts.

For years, California and a number of states had sought to enact car emission standards, yet had been blocked by the Bush Environmental Protection Agency which refused to allow those standards to go into effect. Obama not only embraced those state standards in action this week but affirmed the right of states in the future to enact additional environmental standards beyond any federal minimum standards.

And in that same week, Obama established a sweeping policy for all heads of executive departments and agencies, ordering them to avoid the preemption language routinely included in Bush-era regulatory preamble statements or in codified regulations unless there is "full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption." More below the fold:

The Federal Government's role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.

This memorandum codifies the commitment, highlighted in the auto emissions decision, to move beyond a narrow view that state legislative and regulatory action is in conflict with federal authority.  Instead the new administration is pursuing a collaborative approach where states can enact more aggressive consumer, environmental and worker protections and act as a model for national minimum standards, which will act as a floor while allowing additional protections by individual states. 

Emissions Decisions Shows How State Innovation Drives National Change:  In marked contrast to the Bush administration EPA, President Obama used California's progressive state action, and the adoption of California's standards by at least thirteen other states and the District of Columbia, as a jumping off point for his new national emissions and gas mileage policy. The end result is a plan that was agreed to by the federal government, states and the auto industry.   In fact, it was state action and the threat of multiple standards in different states that helped push the auto industry to accept federal reforms, since a strong national minimum standard, according to David McCurdy of the Alliance of Automobile Manufacturers, would provide "clarity and predictability." 

There are good arguments for the federal government establishing strong minimum standards for consumer, environmental and worker protections, since the stronger the federal standard, the less variation there will be between states, achieving greater standardization for businesses operating across states.  But the Obama administration understands that such federal standards should be a floor, not a ceiling, so that where federal standards begin to lag-- as they have for decades on gas mileage and emissions standards, states should have the ability to establish higher state-specific standards.

Highlighting Right Wing Hypocrisy on "States Rights": That may not be the rightwing version of "states rights" but it's a more respectful view of state authority than the Bush administration or most conservative national leaders establish in practice.  Conservative business groups like the U.S. Chamber of Commerce unambiguously argue for preempting all state regulation in favor of "one set of rules" set by the federal government. And when the GOP has the majority in Congress, they voted over 57 times between 2001 and 2006 to preempt state laws, including action to preempt state limits on air pollution, to preempt state regulation of contaminated food, and to block tougher state regulation of Internet "spam." 

It is hard to overstate how important the new Obama regulatory standard respecting state regulations and arguing against blanket preemption of state laws will be for progressives.  It means that local activism and innovation will actually be effective in holding corporations accountable locally and allow such local legislation to become models for broader federal reforms.    That version of collaborative federalism could be one of the most important legacies of the Obama administration.

Wage theft is illegal. Yet rightwing politicians largely dismiss the problem and most systematically oppose laws to increase enforcement of wage laws. Yet at the same time in recent years, those conservative politicians have been attacking undocumented immigrants as undermining wage standards for native workers. The hypocrisy is palpable, but here's a lesson: state legislators standing up against wage theft have been able to expose that hypocrisy.

At Progressive States Network, we've worked with community groups, advocates and legislators to promote wage enforcement directly as a counterpoint to anti-immigrant rhetoric and promote a policy agenda that builds support for all workers, native and immigrant alike. In states like Kansas, Iowa, and Connecticut, anti-immigrant legislation has been derailed once the issue of the failure to enforce broader wage laws entered the discussion. For example (see below the fold):

If anti-immigrant politicians resist such wage enforcement proposals, it just emphasizes that their supposed concern for wage losses by low-income workers is an empty smokescreen for hatred and nativism.

And let me say that I am more optimistic than Liza about Hilda Solis as Labor Secretary.  She may not have the same grassroots pressure on her as Perkins had, although with tens of millions of undocumented and legal immigrants in sweatshop conditions, there is that potential.   But Solis comes to the position with a deep personal and political understanding of what is at stake.  As the San Francisco Chronicle highlighted in analyzing her history and approach to the issues, "President Obama's pick for secretary of labor, Rep. Hilda Solis, could help shape a new approach to immigration control that emphasizes the robust enforcement of labor laws."

And Solis will be building on new enforcement legislation and executive task forces on wage law enforcement advancing in states around the country.   One of Solis's first staffing decisions was to bring in Patricia Smith as Solicitor for the Labor Department, essentially the chief lawyer in charge of enforcement, who herself embodies those rising state enforcement efforts.  

Patricia Smith for years led enforcement efforts at the New York Attorneys General office and then at the state DOL, where she made protection of immigrant and low-wage workers her priority.  Her NYSDOL bio notes that Smith created a task force that found some 2,000 misclassified workers and more than $19 million dollars in unreported wages, $1.2 million in unpaid unemployment taxes and penalties, and more than $3 million owed to 646 workers in back wages.  And emphasizing the radically different priorities of emphasizing wage enforcement as opposing to attacking immigrants themselves, Smith set up a Bureau of Immigrant Workers' Rights. This new agency has already moved forward to crack down on low-wage law violators, sending an outreach van to churches and community groups to encourage immigrant workers to come forward and report wage law violations. This was both innovative and emphasized that encouraging immigrants to come out of the shadows is the key to raising wage standards for all.

The point is that anti-immigrant resentment smolders across the country, partly because of racism and cultural xenophobia, but also with a greater number of people who recognize the unacceptability of illegal sweatshops, but wrongly have been told to scapegoat immigrants and the immigration system.   When progressives stand up and attack wage theft directly and demand real enforcement of wage and hour laws, the elimination of illegal sweatshops will help blunt the effectiveness of much of the overall anti-immigrant political attack.

The United States has roughly two million people in jail or prison-- and almost none of them are there for stealing wages from their workers, despite the fact that as Kim Bobo highlights in her book, millions of people have wages illegally stolen from them. In fact, customers of businesses go to jail for shoplifting -- 360 people are in jail for life in California for shoplifting under that state's three strikes law -- but low-wage employers steal thousands of dollars from individual poor employees in violation of minimum wage and hour laws with almost zero chance of jail time.

I would ask why a crime involving millions of people and tens of billions of dollars stolen each year is so poorly enforced and so widely ignored in the media. But the answer is unfortunately obvious. Rich people stealing from the poor is just not considered a serious crime. White collar criminals go to jail for stealing from middle class and other rich people, but the working poor may be stolen from pretty much at will, with at most a tiny monetary fine at stake even if wage theft is actually investigated in court. That is the scandal that Bobo's book outlines-- and will never get the same coverage as the crimes of Madoff or others who steal from the middle class and other rich.

In fact, across the country since 2003, half a million workers have formed unions using majority sign-up procedures, either under state law or through voluntary agreements made with employers, and there is no significant evidence of union coercion under the process.  If there was, you can bet the anti-union lobby would be citing those problems every day, yet instead they attempt to ignore the existing success of majority sign-up procedures for workers who have access to them.

Coercion by Employers under Federal NLRB Procedures:  Compare this to the existing National Labor Relations Board process where an estimated one-in-five union organizers or activists can expect to be fired as a result of their activities in a union election campaign.  A 2000 Human Rights Watch report said the failure to protect workers under U.S. election procedures was so profound that the so-called
secret ballot election" process failed to meet international human rights standards.  Just this week, the Center for American Progress Action Fund released an animation illustrating how brutal present NLRB procedures are for workers.

Promoting Freedom to Form Unions: Given the benefits of unionization in raising wages, spreading majority sign-up at both the federal and state level to put more money in household budgets and stimulate the economy should be an imperative for all elected leaders.

State laws allowing majority sign-up for groups of public and private employees have been enacted in California, Connecticut, Illinois, Iowa, Kansas, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, Nevada, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Washington, and Wisconsin.  Examples of these statutes include Oregon Revised Statutes, 243.682 for public employees and New York Chapter 31, Article 20, Section 705covering both public employees and a number of private industries.

So you've got one system -- NLRB elections with a demonstrated history of massive, overwhelming employer abuse -- and another system -- majority signup operating in many states with no evidence of any of the abuses alleged by opponents.  If it works in the states, why not bring its benefits to more employes?

What is remarkable in Ahamed's book are both the parallels and contrasts of the 1920s to the past decade. The most obvious parallel is the amazing ability of smart people to collectively believe such dumb things-- and inflict pain on others justified by those wrong beliefs.

In the 1920s it was the Gold Standard-- the firm faith that price consistency between nations must be maintained at all costs. What is striking is how much the costs of deflation and joblessness imposed by it was understood; as is described on p. 161, Britain in 1920 very consciously went back on the gold standard and "two million men were thrown out of work" and, note a decade before the Great Depression, mass unemployment would persist for the next two decades. Some like Keynes identified the madness but most "smart" people thought such the gold standards and its costs the height of sanity.

Just as "securitization" and deregulation were the obvious financial orthodoxy in recent years, with groups condemning "predatory lending" and demanding more financial regulation treated as cranks.

In the last decade, we saw financial and related markets like the housing industry doing well in the United States, even as the core of manufacturing was collapsing in many places. The fall of the Big Three automakers was not unique; in the Great Lakes region alone, 1.5 million manufacturing jobs were lost since 1998. Yet this was largely seen as a non-problem as long as the financial sector was healthy.

Much as Britain gutted its manufacturing capacity in favor of financial orthodoxy, the United States largely did the same in the name of modern financial orthodoxy.

A core point here is that what smart people among the financial elite believe should be treated with great skepticism, especially when great harm to non-elite actors are justified by those economic arguments. Fumbling, populist France in the 1920s comes off better than other countries following orthodoxy, backing "into the position of the strongest economy in Europe"(p. 376).

What is interesting is that the French central banker, Moreau, most clearly articulated monetary policy as being about "sacrifices demanded of the different social classes in the population."(p 264) i.e. there is no neutral financial policy but deliberate choices to harm some groups in favor of others and that policy that acts as if there is a singular orthodox path to prosperity for all is likely just elite ideology protecting the interests of the elite masking as economic neutrality. Moreau was hardly a left radical but understood that any policy that left large chunks of the population bleeding, especially those at the bottom of the pyramid, was unlikely to end well.

So the question is whether present federal policies are enough, whether we have collectively learned our lessons from the Great Depression, if not in replicating too much trust in the financial elite, at least in quickly moving to throwing money at the problem to fix the damage. The answer will be seen in the coming year or two, but the encouraging part is that helping those harmed by the past decade did grab some focus of the recent recovery plan, with billions for unemployment insurance, food stamps and job training. But relative to the overall economy, those dollars are still rather low, especially compared to the money streamed to the elite in recent decades, so it's reasonable to say that the lessons from that past era have only been partially learned.

But it's early yet and the Obama administration may keep stumbling towards the right policy. And I say stumbling with all deference, since one of the best lessons we can probably learn is that experimentation and an eye towards testing policies, especially when aimed at helping those most in need, is far better than confident financial orthodoxy.

Proxies are essentially the corporate law equivalent of absentee balloting. Shareholders send in a card (called a proxy card) on which they mark their vote. The card authorizes a proxy agent to vote the shareholder's stock as directed on the card. The proxy card may specify how shares are to be voted or may simply give the proxy agent discretion to decide how the shares are to be voted.

So since the GOP is so concerned about protecting majority rule, they should support a campaign to abolish the filibuster

Protectionism is when a national government requires PRIVATE purchasers of any product to buy only domestic versions of a product or pay such a high tariff on foreign products as to obtain the same result. The "Buy American" provisions in the stimulus are quite limited, applying only to purchase of iron, steel and manufacturers goods for about $78 billion in public works. This is hardly enough to undermine the global trading regime, but fears that federal spending would not lead to creating domestic jobs could have undermined support for the overall hundreds of billions needed for the stimulus. Requirements to buy domestically may be the key to convincing enough nations to pass sufficient amounts of stimulus to jumpstart the global economy

What we face is a bit of a global prisoner's dilemma or free riding problem. Globally, all nations would be better off if each would engage in fiscal stimulus, but any individual country doing so might be hurt if they are the only ones doing so-- or could benefit tremendously if everyone else does so, but they don't go in debt.

Domestic buying provisions tied only to the stimulus amounts constituting debt dedicated to stimulus can solve that prisoner's dilemma. Each nation can expect to reap immediate job creation results from that stimulus debt, even as those citizens thereby employed will be free to spend their new salaries on all matter of goods, foreign and domestic, thereby adding to global demand.

If domestic buying requirements tied to stimulus debt encourage nations to engage in greater stimulus, the end result will be greater global spending, greater global demand and expanded global trade -- despite the tut, tutting of the "flat earth" free traders.

"Free trade" is not dedication to global trade. It is an ideology that opposes all the forms of trade regulation that can actually increase global demand, from strategic domestic buying provisions to "fair trade" rules that would raise wage standards around the world and increase the buying power of consumers.

Under the current crisis, "free trade" ideology will lead to less trade, while "buy american" and "fair trade" principles will lead to more trade and greater global wealth. So ignore the critics of "buy america" provisions -- often the same people who celebrated unregulated global financial markets -- and follow a bit of common sense.

• Fully 76% of American voters said creating state level websites to track funds was "important," and 34% said it was "very important." 

• In Massachusetts, Sen. Cynthia Creem and Reps. Antonio Cabral and Jay Kaufman are proposing a bill to create a searchable online database detailing the costs, recipients, and purposes for all appropriations, including contracts, grants, subcontracts, tax expenditures and other subsidies funded by the state government. 
• And a coalition in Oregon are promoting potentially the most effective contracting accountability bill in the country, House Bill 2037, which would collect detailed information on the contract terms, location, hours worked and wages paid for all jobs created under each individual contract, along with aggregating the data for all statewide contracts by contractor and agency and making the data publicly available on the Internet. 

I'll skip the substance of the exec order actions and emphasize that Obama statement as far more significant. We have not had a President that so forthrightly identified the health of the nation with the health of the labor movement in many decades. I'm sure Clinton and Carter never did and I'd be curious if anyone has quotes from LBJ or JFK said so strongly.

Remembering that much of the upsurge in labor organizing in the 1930s came BEFORE the Wagner Act was allowed to go into effect by the Supreme Court in 1937, in many ways the most significant tools of the labor movement that decade was FDR's statement early on that, President Roosevelt declared publicly, "If I were a worker I would join a union." Union leaders used that statement to rally workers across the country. Whether Obama's statement will have the same galvanizing effect is unclear, but it may help significantly -- and may help undercut the anti-union stance of Congressional opponents of the Employee Free Choice Act and other labor bills pending.

One of the reasons our roads and bridges are falling apart is public hostility to tax increases -- gasoline taxes in particular. This attitude, in turn, is largely the product of the generalized distrust of government that conservatives have stoked for decades.  So we've starved the beast for years, and now the utterly predictable consequences have come to pass.

Instead of giving more tax breaks to the financial sector, it would be far better for the feds to increase direct support to the states to fund new transit projects.  And state leaders themselves need to stop looking for political tricks like privatization deals and honestly make the case for the revenue and toll increases in the short-term that can pay for the long-term economic benefits that flow from infrastructure investments.

In New York City this week, teachers at one of the supposedly star charter schools in the city, KIPP AMP Charter School in Brooklyn, informed the co-principals that they were organizing themselves into a union. In a letter to management, the teachers argued why unionization is critical for improving the teaching environment at the school:

There may have been a silver lining for the economy in the horrific December job losses reported Friday by the Labor Department. Companies are cutting back so aggressively that they actually might be increasing their productivity even in the face of a wrenching economic shock...businesses appear to have squeezed more out of the workers they kept on staff, increasing business productivity...

i.e. The remaining workers not only saw large numbers of their collegues fired, they are having to do a lot of the work of those laid off.  And that's good news!

This little tidbit from the WSJ is just celebrating that process as the crisis moves things into fast forward-- some employees see their incomes devastated as they are laid off, the remaining workers have to work harder for little or zero increased pay, and the analysts celebrate the thought that this means that profits for the wealthy may soon be revived.