Balkinization  

Monday, April 22, 2013

Now it's Maureen Dowd who can't connect the dots

Sandy Levinson

Maureen Dowd's column in the Sunday NYTimes castigates President Obama for his failures to procure the votes needed to bring the gun bill to a vote in the Senate.  She thinks he should have played hardball with the holdout Democrats and attempted to recruit more Republican support.  In particular, he shouldn't have left the cajoling up to Joe Biden.  For her, it's always personalities, and never structures, that explain the American political system.  So she's my latest candidate among Times' columnists who simply cannot connect the dots between political outcomes and the structures established in the Constitution. 

As it happens, I published a short piece in the online Times making the familiar argument (at least to Balkinization readers) that the egregious outcome is best explained by our egregious Constitution and the allocation of voting power in the Senate.  A large part of the problem, of course, is the mad-dog nature of the modern Republican Party and its de-facto leader, Texas's new Senator Ted Cruz.  But part of the problem, as well, is the grotesquely excess power given small states to warp national policy.  After all, both the Democratic and Republican senators from Alaska (estimated 2013 population 740,000) voted against allowing the bill coming to a vote, quite literally more than offsetting the two votes of the California senators (estimated 2012 population more than 38 million).  The "more than offset" comes from the premium value of each no vote, given the 60% requirement to get to the floor at all.  There is, in a so-called "democracy," no defense for the Senate.  It doesn't protect "federalism," but, instead, as I've said (too) many times before, simply works as an affirmative action program for the residents of small states, who are therefore able in effect to veto legislation that most Americans (in this case 90%), who by definnition live in larger urban states, believes is desirable. 

It would be so much better if the fiasco last week could simply be explained by failures of Barack Obama's leadership or Ted Cruz's perfidy (even if one stipulates, for sake of argument, that both are true).  But all such analyses blind us to the extnt to which the Constitution is evermore a clear and present danger to the health of the American Republic. 


Comments:

In the April 19 entry in his New Yorker blog, Hendrick Hertzberg writes of "the ballooning population gap between the largest- and smallest-population states (eleven to one in 1789, sixty-six to one today)."
 

First, there's nothing egregious about the outcome. The only egregious thing about it was that it was so close in a body, every member of which took an oath to uphold a Constitution incorporating the 2nd amendment.

Secondly, are you really gullible enough to believe those "90%" polls? Our democracy may have some safeguards built in so that the small states won't be owned in fee simple by the large ones, and it may actually be dysfunctional in some respects, but it's not so dysfunctional that genuine 90% majorities get thwarted. Hell, dictatorships barely dare do that, and only at their peril.

Those 'polls' are just a marketing campaign for gun control. They failed to have their desired effect on Congress because professional politicians have a strong incentive to recognize when they're being lied to about public opinion.
 

Brett, with this:

" ... because professional politicians have a strong incentive to recognize when they're being lied to about public opinion."

displays naivete as he really could not be that stupid to believe it. But then again, he does have an arsenal mentality.

Brett may have forgotten the failure of professional politicians back in the days immediately following 9/11/01 to recognize the force of public opinion, that started the road to two wars fueled by lies of Bush/Cheney.

Perhaps Brett is further naive if he believes that the NRA is NOT conducting a marketing campaign for gun rights reflected by the sale of more guns. If 300 million guns are not enough, how about 500 million or even a billion, especially if the Second Amendment provides absolute rights.
 

"the mad-dog nature of the modern Republican Party and its de-facto leader, Texas's new Senator Ted Cruz"

How about leading by example on the whole snark/inappropriate tone thing?
 

Remember when the pollsters were marketing for the Obama's re-election? I'll bet Gollum wasn't tricked by that.
 

They weren't stupid enough to claim that NINETY PERCENT of the America people intended to vote for Obama.

For God's sake, how broken do you have to believe American democracy to be, to take seriously polls saying 90% of the public are on one side of an issue, and the other side is winning?

I find it easier to believe the polling is broken. Probably deliberately...
 

I have suspected that mls favors "Cruz Control." Cruz is an "out-liar" even on the conservative side, as recognized by some of his conservative colleagues. Maybe Cruz was "controlled" during his stint with Justice Rehnquist (remember the latter's memo as Clerk that Plessy was just "right"). Perhaps it is time to go "snark hunting" at Point of Order, assuming it is still in order.
 

Sandy:

How precisely does the Constitution's geographical allocation of representation in the Senate prevent enactment of the Democrats' constitutionally questionable firearm restrictions? The House offers proportional representation and is far less likely than the Senate to enact these restrictions.


 

Gollum, the polling was right. The angry little trolls like you who thought it was broken were wrong.
 

The House offers proportional representation
# posted by Bart DePalma : 10:54 AM


No, it doesn't. More people voted for Dems.
 

The Democrat media polling in this area is intentionally misleading.

Nearly everyone - including the NRA - supports generic point of sale background checks.

The Issue is how onerous those checks will be.

If the media instead polled whether voters supported a free online instant check system (GOP plan) or paying a fee to have a firearm dealer perform a check that can take hours, days or even weeks (Dem plan), then you will get a far different result.
 

Blankshot, you may not remember how certain you were that the 2012 polling was wrong, but we do.
 

mls,

http://www.amazon.com/Even-Worse-Than-Looks-Constitutional/dp/0465031331

http://www.newyorker.com/online/blogs/comment/2013/02/ted-cruz-sees-red-not-crimson-at-harvard.html

please stop. You're not doing yourself any favors
 

Bill Maher echoes Sandy in this clip: http://www.huffingtonpost.com/2013/04/21/bill-maher-goes-off-on-constitution_n_3127637.html

Senator from Wyoming had as many votes as the number of people in a mall nearby...Constitution was not delivered by Christ...
 

Putting the Constitution aside for the moment, Ms. Dowd does make a legitimate point about Mr. Obama's incompetence at small "d" democratic governance.

LBJ and Reagan provided textbook examples of how a president enacts policy with a divided government. The president continuously works members of Congress on the phone and during public events - stroking, cajoling, compromising, bribing and if necessary arm twisting until he or she has assembled a coalition to enact the policy.

Mr. Obama instead treats governance as a negative political campaign - giving speeches attacking the Congress critters of both parties whose votes he needs and then expecting Congress to fall into line.

When Obama began his political career, he told a Chicago paper that he viewed political office as simply a more powerful platform to conduct community organizing. This explains his preference for negative campaigning over democratic governance.
 

Blaming the Senate doesn't quite work here given that the House of Representatives just as well could have addressed this matter though some argument can be formed by SL what is wrong with that crew.

Dowd is about personalities. She's useful as a means to determine what certain shallow thinking sorts are thinking at the moment. See also Friedman. She serves a certain Millian value there.

Taking time off from this sort of thing, Ted Cruz's name popped up a few times in the book on Supreme Court law clerks co-edited by Todd Peppers. "In Chambers: Stories of United States Supreme Court Law Clerks and Their Justices."

Recommended.
 

My copy of the Constitution doesn't have front groups or campaign cash.

That's why the bill failed. The structures just specified how the failure would be implemented.

It's not the Constitution's fault that we put up with this.
 

Some reading for Shag:

http://www.supremecourt.gov/publicinfo/speeches/JPS_Speech%28Louisville,_KY%29_04-18-13.pdf

As to the last comment, petitioning the government, pressure groups and use of funds to support a cause and so on is part of the First Amendment. How it is applied these days is up to us and not compelled by the document.
 

Brian Tamanaha said..."Bill Maher echoes Sandy in this clip: 'Senator from Wyoming had as many votes as the number of people in a mall nearby...,"

Geographical distribution of representation in the Senate by states works both ways on this issue.

Blue states with an urban majority elect left Democrats who support urban firearm restrictions opposed in the outnumbered suburbs and rural areas in thos states.

If you have proportional representation with distinct rural, suburban and urban districts, you get the House and a more pronounced opposition to urban firearm restrictions.
 

Our yodeler echoes himself as a rural myth, a NOAGN.* Perhaps he believes that the Framers/Ratifiers back in 1789 had in mind the creation via Manifest Destiny of humongous "Little Old Rhode Islands."

*NIT ON A GNAT'S NUT
 

Shag:

The new states were all primarily rural and had nothing like today's blue megalopolises. The Senate was a compromise to keep states with larger populations from running the country regardless of where the populations lived.
 

Our yodeler continues with his simpletonian coloring book constitutionalism that ignores the goal of White Supremacy by means of protecting slavery in the slave states, expanded to territories per Dred Scott AND the treatment of sovereign Indian nations in the expansion to the Pacific, set by the Constitution of 1789, even as amended, including the sleeper constitutional provisions of the Senate.
 

Joe, thanks for the link to Justice Stevens' recent speech. It was a fairly quick read and quite sharp on myths. (Stevens suggests that he may address more myths in the future. Perhaps we might expect a book on Constitutional Mythology.)
 

"If you have proportional representation with distinct rural, suburban and urban districts, you get the House and a more pronounced opposition to urban firearm restrictions."

There is no reason to proportion districts by geographical type, it should be done population. If most people don't live in rural areas there should be few 'rural' seats.

 

I won't argue in favor of the Senate's disproportional representation or de facto supermajority requirement to pass legislation, but I do think that senators opposing gun legislation are basically just responding to their likely electorates. Those up for election in 2014 know that only around 40 percent of the eligible population will turn out in their states (closer to 30% in Texas), and that those who do vote will likely not have views that are representative of the population as a whole. Just because 80-90% of Americans--maybe a smaller majority in some states--are in favor of a policy obviously does not mean the likely electorate will have similar preferences. In any event, ours is not a direct democracy, and there's no reason to assume that majority preferences should swiftly and smoothly be converted into legislation. But if senators are making decisions based on a heavily biased sample of their constituencies, and if a more representative sample would vote them out, then I think we do have a deeper democratic problem.
 

Eli, you realize that for your theory to work, essentially everyone who doesn't vote would have to be in favor of gun control, and essentially everyone against gun control would have to vote? And that's at 70-80% support. At 90%, you can't make it work at all.

You should just admit that the polls are wacked, and the elections are a better measure of public opinion. The sample size is sure larger.
 

Brett, you have a point that the higher the majority support the less likely it becomes that the electorate's preference on the issue will be different. But I don't agree that elections are a better measure of public opinion, given the significant biases in turnout. Polls are at least trying to obtain an unbiased sample. They may be off, sometimes even beyond the margin of error, but I don't think you can seriously argue that less than a majority of Americans would have liked to see background checks passed.
 

Eli:

Elections are the only poll that matters in a representative democracy.

You do not vote, you do not matter.
 

Is Brett really a wigless Andy Borowitz? See The Borowitz Report at The New Yorker: "Senators Stand Up To American People" on the recent gun votes.

Both our Quickdraw McGraws (aka Bert and Brat, our dyslexic duo) concede Obama's election and reelection as President are what matters. (The polls were mere coincidence.)
 

Eli: Sure I can argue that.

Look, polls don't measure opinion. They measure answers to questions, which is a proxy for opinions. Often it's a good proxy, sometimes it's a bad proxy. When is it a bad proxy? When people are embarrassed/afraid to give an honest answer, or where they don't actually have an opinion to measure.

This isn't exactly news. See the Bradley effect, for instance. Professional pollsters know damned well people routinely lie to them on some subjects, or make up opinions where they really have no opinion. They go to considerable lengths to avoid leading questions, for instance, because they know a lot of people will just give the answer they're being led to. Leading questions would be no big deal if everybody had firm opinions on the things they're being asked about.

What's the difference between a leading question, and a poll in a media environment where the media are all on one side of the issue? Both will cause people who don't care about a subject, (And for gun control, that's most people.) to give the answer that's expected of them.

But it won't cause them to vote that way. And that's why I say that voting is a better measure of public opinion than polls. Because protective coloration is stripped away by the secrecy of the ballot box.

Or you could just assume the poll is right, and for some mysterious reason every single non-voter is anti-gun, and every single pro-gun person votes, and even THAT dubious assumption won't square the circle at 90%.

Really, when you've got polls claiming that over 80% of NRA members agree with Chuck Shumer on gun control, don't you get just a little suspicious?
 

"She's useful as a means to determine what certain shallow thinking sorts are thinking at the moment."

That was a great line Joe, made my day!

"when you've got polls claiming that over 80% of NRA members agree with Chuck Shumer on gun control, don't you get just a little suspicious?"

I have to agree here. I wonder if the question was about some generic background check rather than the specific proposed one (as Bart has argued it is not the general idea but the particulars here that invite opposition).
 

Measuring "opinion" can be accomplished in various ways, including polling, as well as voting, especially by the public, with such voting sometimes confirming opinion in public elections. Brett digs deep down in his bowels for this bit of wisdom:

"Because protective coloration is stripped away by the secrecy of the ballot box."

Yes, this applies to public voters in elections (as well as those polled). But in the Senate - and in the House - voting is not by secret ballot (except in perhaps limited situations not relevant here). Representative governance requires transparency so that voters can (with the secret ballot) express their views at election time.

Polling, and other means of attempting to determine public opinion, are not perfect. But imagine a vacuum of public opinion. Would voters be better off? Yes, we have a free press under the 1st Amendment, aka the Fourth Estate, but with Murdochs and others of his ilk (soon the Koch-suckers?) can manipulate their presses (as with the NYPost front page "identifying" the Marathon Bombers). Fortunately, there is ample competition in the media to provide balance (no, not Faux News). And there is competition with the various polls conducted. Then the testing comes with elections (although voters can be wrong, witness Richard Nixon twice). So opinion, via polls and the press and speech, does matter. Just ask Mitt Romney about the 47% - that was his opinion and public opinion reacted to it.

If I were to conduct a poll on gun rights/control, I would ask whether the person polled believes that the Second Amendment gives U.S. citizens - persons - the absolute right to own as many guns as they wish and can afford without regulation of any sort. (Depending on an answer, there would be follow up questions, of course, including whether those who cannot afford an arsenal be subsidized by the government to do so, e.g., gun stamps.)
 

First, i only grudgingly supported more "background checks." Overall I am glad they defeated it because while it feels good to do "something," it would not have actually solved anything.

Second, the debacle in the NY legislature, and Maryland, shows that no matter how strict gun laws are the progressives want them more strict. Now, NY is setting a $500 bounty to turn in your neighbor's "illegal guns" (how would they know) and both NY and CA are confiscating guns sans warrant or due process.

I think that if progressives had not gone all-out for a rifle ban, and not pushed super strict laws in NY or MD - making them even stricter - perhaps there would have been less resistance to federal measures like a background check.

A right that is delayed, heavily taxed, or restricted is not a right at all. Perhaps when there is good precedent that guns cannot be confiscated without due process and that any regulation or restriction of the individual right to bear arms must come under strict scrutiny, then you may see less resistance to things like background checks.

In general if Massachusetts is the end state of liberty then i fear for this country. Complete lockdown of the city, police driving around in tanks with automatic weapons removing you from your house at gun point, looking for one nutjob? What stops them from doing this for a drug dealer who killed 3 people with "foreign ties" to a Mexican cartel? And that Miranda public safety exception for "terrorists" seems like an exception as big as a mack truck.

As far as the 90% support for background checks, 90% of people support puppies too but would not vote to make their neighbors get one. Gun control, like the War on Drugs and prohibition before that, is a failed policy. We have a Bill of Rights precisely because some things should not be up for a vote. I wish the courts would do their job so that we can get on with discussing things that would actually reduce violence.
 

Apparently dwb would answer in the affirmative to my proposed polling question. (But would dwb be willing to subsidize the poor in an effort to equalize the firepower of those who can afford and arsenal, assuming that the latter garner their arsenals for "self-defense" against the former?)

dwb's puppies comparative is an example of the tail wagging the dog. Consider how puppies are regulated. Yes, puppies can kill. That's why there are rabies testing. dwb's puppies analogy neither barks nor bites.
 

@Shag from brookline:
First, i do not think that there is an "absolute" right. But heightened scrutiny is certainly appropriate. Mandatory safety training is a good example, hunter education in Maryland includes live fire and gun safety and costs $10. That a far cry from the $340 pistol permit fee and fingerprints required in NYC. In Massachusetts the firearm ID application costs $100 and takes up to 40 days. None of these laws meets my notion of heightened scrutiny.

As I noted, the problem is one of bad faith. When we see MA and NY (and CT and MD) laws made less restrictive, then perhaps you will see some movement at the national level. bear in mind that reciprocal concealed carry got more votes than background checks.







 

Concealed carry is for some gun nuts a form of speech (like money talks, so does power) in a more subdued manner, of course, than open carry. Residing here in MA (in the Boston area), I sense no significant objections to its gun laws. But imagine if the residents of Watertown (just across the Charles River from my community) were armed to the hilt and went out like a posse to get the one remaining Marathon Bomber. We rely upon our police forces, local and federal, to protect us. These forces are not perfect, but it's better than an armed citizenry that is not well-regulated as a militia.

dwb seems to suggest that a concealed carrier from Utah, say, should be allowed to so carry in MA, NY, CT and MD. A concealed carry permit to a Utahan while in Utah may not carry that much risk to its ciizenry. But the risks would be greater if the Utahan were permitted to carry, including in transit, to MA, NY, CT and MD.

dwb's concerns with costs in certain states suggests that perhaps he might favor subsidizing the poor to give them an equal shot at carrying.

And dwb's concept of "bad faith" on the part of certain states - exerciprinciples of federalism - may heighten personal concerns.
 

I think it would have been great if Brett had showed up in Watertown armed to the teeth to help apprehend the bombers. Most likely it would mean the end of reading his posts in here.
 

dwb seems to suggest that a concealed carrier from Utah, say, should be allowed to so carry in MA, NY, CT and MD

I am not saying that at all. I am merely pointing out that reciprocal concealed carry got more votes than background checks.

The only reason that the background check bill got as many votes as it did is because Gotleib of the SAF weakly supported it. The bill had some pro-gun rights elements like criminal penalties for creating a registry. Schumer's bill was DOA.

If you support federal gun laws that override state ones, be careful what you wish for because it would very likely mean a weakening of laws in MA, NY, MD, NJ, CT, and CA. Shall-issue concealed carry is the law in more than 3/4 of states. Don't be mislead by a poll favorably worded by gun control advocates, the country remains strongly pro gun rights.
 

Heller said there are a range of gun regulations (aka controls) that can be put up to a vote.

I don't know of this NY "debacle" -- what, is some portion of a law problematic? So? Legislatures aren't perfect. The work things out and sometimes things go to the courts.

If Manchin/Toomey and senators from gun friendly states like Montana, Arizona, Vermont etc. is not good enough, what is? I realize some think them turncoats for determining checks, allowed by Heller, or gun trafficking laws or whatever are licit.

This is not about forcing people having puppies and Shag's line about bark/bite is both amusing and on point per regulations. Dogs are pretty precious to many of us too (or cats), but certain regulations are allowed.
 

"Heller said there are a range of gun regulations (aka controls) that can be put up to a vote."

What they said was that there were some forms of gun legislation which were "presumptively" constitutional. All this means is that you'd have to engage in some analysis before you could conclude a specific law in that area was unconstitutional. NOT that laws in those areas where beyond challenge. This is just to contrast with sort of laws, such as bans of firearms in common use, which are open and shut cases of unconstitutionality.
 

Brett, what is the point of saying that? No law is "beyond challenge." The actual regulations alluded to were not at bar. So, the suggestions were dicta. The principle holds:

"We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms."

[McDonald v. Chicago]

Heller lists, for a reason one would think, various ones that should be presumptively be acceptable, including point of sale regulations. Obviously, it would take litigation respecting the specific details, to determine the exact legitimacy.

This is true for any sort of law. As to bans in common use, again, as noted in Heller, presumptively there are various types of people who can be barred from having even those guns.

It is presumptively constitutional to stop underage people or felons etc. from getting a gun. A background check there would logically be acceptable, just as for voting rights the USSC upheld id requirements, though as suggested, the balancing there would amount to different sorts of legitimate regulations.
 

dwb engages in mind-reading with this:

"The only reason that the background check bill got as many votes as it did is because Gotleib of the SAF weakly supported it."

One doesn't have to be a mind-reader to opine that this bill would have gotten more votes but for the lobbying )via cash, political threats) of the NRA.

And dwb with this:

"If you support federal gun laws that override state ones, be careful what you wish for because it would very likely mean a weakening of laws in MA, NY, MD, NJ, CT, and CA."

may not appreciate the role of Congress' powers under the Commerce Clause that might not override state gun laws within a state's borders but weaken the effects, lethal and otherwise, of a state's weak gun laws in the course of protecting those in other states as well as those traveling interstate.

dwb professes not to be a Second Amendment absolutist but he seems to come close to the line.


 

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dwb professes not to be a Second Amendment absolutist but he seems to come close to the line.

Where exactly is the line? Articulate a principle, engage in some analysis, and let me know what survives scrutiny for you. I give strong weight to the 4th circuit which suggested strict scrutiny for law abiding citizens inside the home. Under that, I strongly doubt fingerprints, punitive fees, or a 7 round magazine capacity survive. I also doubt that a NY law survives which makes it a criminal offense to use a gun registered to someone else in the course of self defense. Hey, be sure to check that serial number before you pick it up, just ask the burglar to hold a sec.

Would background checks be ok? Sure, but I doubt you will see anything except fierce resistance until we get more clear guidance from the 9 that beats back the ludicrous laws in NY and MD.
 

It seems that dwb has a lot of fears, at least in the home, such that an arsenal would pass Second Amendment muster for him. Both Heller and McDonald involved a particular type of arms. And dicta in each case suggest some limitations even in the home. But gun nuts think these cases open the door widely for arms in addition to handgun anywhere. In Heller, Justice Scalia surely came up with his limitations dicta to pre-empt "slippery slope" dissents that he has been fond of in the past.

By the way, the 4th Circuit upheld MD's requirement for concealed carry, similar to the 2nd Circuit on NY's strict concealed carry law, both declared ludicrous by dwb despite the dicta in Heller and McDonald. There is of course the 6th Circuit case for which Judge Posner wrote the 2-1 decision rejecting Illinois' similar law. Based on my reading of Posner's opinion, it seems he wanted to create a circuits dispute to toss the ball back to SCOTUS, perhaps because he was critical of the decisions in both Heller and McDonald. In fact dwb comes up with his/her own "slippery slope" by referencing "fierce resistance," presumably by gun nuts. I hope dwb has self control and waits for SCOTUS - but make sure to look under the bed before going to sleep..
 

Getting back to the header for Sandy's post, Maureen is often Dowd-y, and at "Times" rowdy as with her disconnects in Sandy's critique. But in today's column she has found herself "Lost in Space" conjugating twitter, tweet, twat as non-journalamism.
 

Speaking of dicta, I just downloaded for a refresher course David Klein and Neal Devins' "Dicta, Schmicta: Theory Versus Practice in Lower Court Decision Making" available at:

http://ssrn.com/abstract=2253969

(A link is available at Legal Theory Blog.)

I'm hoping it addresses Justice Scalia's pre-emptive "slippery slope" dicta in Heller.
 

I read the "Tough Lough Constitution," which takes about as long as reading a long SSRN law article and itself partially based on Prof. Koppelman's articles including his "bad news for mail robbers" piece.

It was fairly worthwhile. He follows Prof. Balkin's principle that Art. I, sec. 8 is in effect a summary of instructions by the Framers to the Committee of Detail to include things that states did not have the competence to do.

His check is a "subsidiary" principle in which Congress deals with national problems. This is a bit much for me -- I would focus on the enumerated powers, such as interstate commerce, but as Balkin's "Commerce" article shows, you can get to the same place for ACA since it is after all a regulation of interstate commerce AND deals with a national problem.

Koppelman also for some reason doesn't remind us much there is another major check -- numerous textual and some structural (no commandeering states rule) checks on enumerated powers.

Still, as a whole, it is a quick reading summary of the constitutional principles, the background of the law, the oral argument and the opinions overall.

You can get basically the same vibe by reading Koppelman's articles online and he says as much -- the book is meant to appeal to the general public, not to be different as such.
 

"you can get to the same place for ACA since it is after all a regulation of interstate commerce AND deals with a national problem."

Well, a regulation of 'interstate' commerce, as redefined to make all commerce 'interstate'.
 

The "Dicta, Schmicta:" Essay addressed a random selection of Federal Circuits, Trial Courts and state courts decisions during the period 2008 through 2010. No mention is made of either Heller or McDonald with their virtually identical dictas. There were introductory and closing references to the ACA decision and whether the majority on the inapplicability of the commerce clause constituted a holding (Randy Barnett's view) or dicta (Jack Balkin's view). According to Justice Ginsburg, "it was not 'outcome determinative' and therefore unnecessary." The authors do not provide their views on this point.

Still, the Essay was a refresher course for me. Since Heller came dow in 2008 and McDonald in 2010, perhaps a "Dicta, Schmicta?" devoted to Justice Scalia's pre-emptive "slippery slope" dicta in Heller can be expected.

Apparently Brett's case of chronic "Wickburn" is the answer to the question how to keep him down on the farm (with Justice Thomas) on the commerce clause.
 

I do not understand how regulating an interstate market that makes up 1/6 of the national economy and that affects interstate commerce in a myriad of ways redefines all commerce to be interstate.

One line sloganeering of that sort ironically encourages even more of the alleged problem, since even clear interstate commerce is not good enough. So what's the point of even trying?
 

"I do not understand how regulating an interstate market that makes up 1/6 of the national economy and that affects interstate commerce in a myriad of ways redefines all commerce to be interstate."

Simply put, the fact that a market exists in more than one state does not make the commerce in that market "interstate". Particular transactions crossing state bountries makes those particular transactions "interstate".

I have health insurance from an insurer in my state. I go to a hospital or doctor in my state, and the insurer pays. This is NOT "interstate" commerce, even if it's happening in every state, with different companies, people, and hospitals.

A product doesn't have to be unique to a particular state to avoid being interstate commerce.
 

I have health insurance from an insurer in my state. I go to a hospital or doctor in my state, and the insurer pays.
# posted by Brett : 3:08 PM


If you leave your state and get hit by a truck you would probably end up in a hospital not in your state.
 

The market as a whole not "particular transactions" is what "interstate commerce" covers.

I go to a supermarket in my state. This doesn't make the supermarket, which involves goods and employees who in various ways cross state lines "local." This is artificial besides not reflecting reality.

The doctor, insurance company and hospital also continuously works in an interstate market. For instance, does the hospital refuse patients from outside the state? One thinks not, at least if the person is in need of emergency assistance, since that would violate federal law and likely state law regardless.

Do you own buy drugs made locally? Does each state have their own medical supply companies? Are you sure to only use medical personnel from your own state? Do you check their id each time? Does the insurance company not in any way do business out of state?

"A product doesn't have to be unique to a particular state to avoid being interstate commerce."

I don't know what that means. Unless every person, thing and resource used to provide your medical care didn't cross a state line or significantly was involved with something that was, it is part of "interstate" commerce.

Meanwhile, the feds can regulate airport travel, even if the specific flight doesn't cross state lines. They regulate the industry as a whole. Not pinpoint events therein.
 

"If you leave your state and get hit by a truck you would probably end up in a hospital not in your state."

I guess his insurance would refuse to do business with this foriegn entity...
 

While I do not wish Brett to leave South Carolina and his arsenal there unguarded, perhaps if he were injured outside of South Carolina, his South Carolina health insurer might not provide coverage under his policy. Maybe Brett has checked the details of his policy and hunkers down in South Carolina to avoid a handout under federal law that might require he be given emergency medical treatment in a hospital in another state. I assume his chronic case of "Wickburn" would accompany him across South Carolina's borders.
 

The truck bit might not really help. He'll just under his lights still be involved in intrastate commerce, just in North Carolina or something though maybe (who knows) if he was traveling at the time, it would matter or something.

Note that his discussion isn't even what Roberts, the dissent or Randy Barnett was talking about with the whole "active" bit.

 

"He'll just under his lights still be involved in intrastate commerce, just in North Carolina or something though maybe (who knows) if he was traveling at the time, it would matter or something."

It's that kind of logic that got the Court to hilariously hold that Major League Baseball, which is literally an inter-state baseball business/league of teams from various states, is not involved in interstate commerce because the games themselves do not take place on state lines...

 

Federal Baseball Club of Baltimore v. National League
 

A court finally appears to have the gumption to enforce the law and pull the leash on our Caesarist president.

http://www.businessweek.com/news/2013-04-23/obama-deportation-progam-likely-to-be-blocked-judge-says
 

Bart,

Should we rank that one up there with Judge Anna Diggs Taylor's decision finding the Bush wiretapping programs unconstitutional?
 

The link our yodeler provides includes this:

****
"Still, the judge said he can’t decide the case based on the arguments he’s heard so far.

'Accordingly, the court hereby defers ruling on the plaintiffs’ application for preliminary injunction until the parties have submitted additional briefing,' O’Connor said."

****
Our yodeler keeps looking for a pony in a s**tpile to saddle onto. Let's wait and see what that additional briefing reveals [pun intended].

By the Bybee [what's rotten cannot be forgotten, but expletives deleted], our yodeler has instantly converted President Obama from Socialist to Caesarist. Perhaps our yodeler is working on a new work of friction about the salad days of Obama's second term. Alas, the recreational fumes of the Mile High State (of mind) seem to bring out the Glenn Beck influence on his mentee, our very own yodeler.
 

Shag:

Socialists tend to be Caesarists, but the topic of immigration is has nothing to do with socialism, thus the use of the latter term in this case.
 

Mr. W: "Should we rank that one up there with Judge Anna Diggs Taylor's decision finding the Bush wiretapping programs unconstitutional?"

Diggs Taylor ignored the fact that Congress has no power under the Constitution to direct intelligence gathering.

Congress does however have the power to regulate immigration.
 

This comment has been removed by the author.
 

TW, the baseball case [1920s] lingered on because of the weight of precedent. It was clear by the 1950s that it was wrong on the merits & Flood v. Kuhn bluntly said it was interstate commerce but it was special (the paean to baseball was not joined by a majority). The deciding vote agreed with the dissent but thought Congress should deal with the anomaly.
 

In response, our yodeler claims:

"Socialists tend to be Caesarists, ...."

without a supporting cite other than his own personal reputation, for what it's worth. Our yodeler tosses out these terms in streams of "un-conscience-ness" [sick!] in furtherance of his bile.

Note that our yodeler's response fails to address what Judge O'Connor said about being unable to make a decision without further briefing. Maybe that further briefing will disclose the barest of actual facts and law to support the challenge of the plaintiffs.
 

Shag:

Do you actually disagree that Socialists (and progressives) tend to be Caesarists?

We have spent hundreds of hours over the years here discussing how the left abuses to courts and the bureaucracy to ignore or change the law in ways which it never could democratically.

Mr. Obama has taken this outlaw behavior to an entirely new level. Putting Obamacare to the side, among the worst examples was his decree that INS would no longer enforce immigration law for an entire class of illegal immigrants and it would unlawfully provide them with work papers. When law enforcement has to sue the president to be allowed to enforce the law, your president is a Caesarist.
 

We have spent hundreds of hours over the years here discussing how the left abuses to courts and the bureaucracy to ignore or change the law in ways which it never could democratically.

# posted by Bart DePalma : 10:20 AM


Blankshot, the fact that you make all sorts of fucked up nutty claims does not establish these claims as reality.
 

When I'm driving down the road at 70 mph (speed limit is 65) I am often passed by Caesarist state police officers. WHY ARE THEY NOT ENFORCING THE LAW??!
 

Our yodeler with this:

"Do you actually disagree that Socialists (and progressives) tend to be Caesarists?"

now extends socialists to include progressives as segueing into Caesarists. Perhaps he should as least define these terms he tosses out of his derriere mind. This is a guy who practices law, if you call DUI practicing law? Is his mountain community threatened by Socialists or progressives or Caesarists however he defines them? This is the same yodeler who was in lockstep with Bush/Cheney just about all the way to the Bush/Cheney 2008 Great Recession. So maybe our yodeler will provide definitions, especially for Caeserist, to more specifically respond to his asinine question.
 

"Diggs Taylor ignored the fact that Congress has no power under the Constitution to direct intelligence gathering."

My point is that it's not hard to find a district court judge willing to say some administration's program is illegal or unconstitutional.

And while Congress has power to regulate immigration, the executive has discretion in executing those laws, a discretion which various administrations have exercised in regards to immigration (including entire classes of immigrants and granting of work papers).

""Do you actually disagree that Socialists (and progressives) tend to be Caesarists?""

What could be more Caesarists than championing the power of the executive to designate an American citizen on American soil an enemy combatant and lock them up indefintely with little or no review outside of the executive? Yet is was not progressive socialists doing this recently...
 

Shag: "Perhaps he should as least define these terms..."

Fair enough.

A Ceasarist is an executive and sometimes a judge who rules by decree to change or ignore law without the benefits of democratic legislation.

Mr. W: "What could be more Caesarists than championing the power of the executive to designate an American citizen on American soil an enemy combatant and lock them up indefintely with little or no review outside of the executive?"

One of the jobs of a CiC is to detain enemy combatants during a war regardless of nationality. Nothing remotely Caesarist about that.
 

Our yodeler's definition:

"A Ceasarist [now spelled differently] is an executive and sometimes a judge who rules by decree to change or ignore law without the benefits of democratic legislation."

may reflect his Mile High State (of mind) or his skills making fast-food salads with anchovies, since Google apparently does not provide a definition. Perhaps our yodeler was wearing a toga as recreational fumes influenced his creativity in competition with OED and Funk & W.

Wikipedia has a post on "Caesarism" that doesn't quite fit President Obama, although it states that the term is used as a pejorative. Based on our yodeler's comments at this Blog since the beginning of Obama's first term, it seems that is the sense in which he uses his variation of Wikipedia's term. "Et tu, Brat?," who comes " ... not to praise Obama but to "pejor" him. "Socialist" hasn't worked for our yodeler in the past. What next?




 

One of the jobs of a CiC is to detain enemy combatants during a war regardless of nationality. Nothing remotely Caesarist about that.
# posted by Bart DePalma : 2:45 PM


I'm guessing that your opinion on this would change dramatically if you were the one they locked up " indefinitely with little or no review outside of the executive."
 

"One of the jobs of a CiC is to detain enemy combatants during a war regardless of nationality. Nothing remotely Caesarist about that."

Nothing Caesarist about an Executive with unreviewed authority to lock up, detain indefintely and try as they see fit citizens?

This borders on self parody Bart...

This is EXACTLY the kind of unchecked exercise of power that actual Ceasars engaged in, and which horrified our Anglo forerunners (think of the battles over habeas corpus and such) not granting discretionary waivers to classes of offenders in order to focus on others...
 

Mr. W/bb:

What lack of review?

Under the Geneva Conventions, a detainee has the right to a status hearing.

Under our Constitution (putting aside the left field Boumediene decision), an American citizen detainee has a right to a habeas corpus review as well.

Under the Military Commissions Act, a detainee has the right to a comprehensive status hearing.

ALL of our detainees have received this or often far more due process review.

What indefinite detention?

The military may detain enemy members and nationals for the duration of the war.

If enters into a peace treaty with the Taliban, the military will release all Taliban POWs except (actually with Obama probably including) those awaiting trial for war crimes.

When al Qaeda stops warring against the United States, the same law will apply.

NONE of this is remotely Caesarist. This has been the law of war for all or a substantial portion of the history of our Republic.
 

Perhaps 20 years from now our yodeler's "Caesarist" will make it into the OED, providing him a credit for his derriere inspired definition. In anticipation, I shall start referring to our yodeler as our "SALADISTA" for his ability to toss just about anything he wants into his servings of bile.
 

Bart

So I guess you deplored the Bush administration's actions and positions in the Hamdi and Padilla cases, and you applauded the SCOTUS holding in Hamdi?

"The Government contends that Hamdi is an "enemy combatant," and that this status justifies holding him in the United States indefinitely--without formal charges or proceedings--unless and until it makes the determination that access to counsel or further process is warranted."
 

Mr. W:

Re-read my post above. I lay out the law of war for detentions.

I do not recall what the Bush Administration positions were before the Court, nor do I care.
 

"I do not recall what the Bush Administration positions were before the Court, nor do I care."

Well, to the extent they were contrary to what you laid out was Bush being a...Caesarist?
 

Our SALADISTA (FKA our yodeler), Humpty-Dumpty's with this:

"I do not recall what the Bush Administration positions were before the Court, nor do I care."

an example of how the memory is the second thing to go. Recall also Humpty Dumpty's:

"When I use a word, it means what I want it to mean; neither more, nor less"
 

BREAKING NEWS!!! Our SALADISTA (FKA our yodeler) has been vindicated, at least in part, by President Barack Hussein Obama's admission at the recent Washington Correspondents Dinner:

"I'M NOT THE STRAPPING YOUNG MUSLIM SOCIALIST I USED TO BE."

Our SALADISTA will throw in some extra anchovies and capers for an admission by Obama that he is a CAESARIST. Alas, our SALADISTA may just end up with more egg on his face.
 

Mr. W:

Bush followed all the laws of war. EVERY detainee received a status hearing and EVERY detainee was detained during the pendency of a war and not indefinitely. Indeed, Bush released most detainees during the war and 20% of them have returned to fight.

You are free to offer an example of Bush unilaterally changing the law of war and acting like a Caesarist.

Quite the contrary, it was the left attempting to change the law of war to treat enemy combatants as civilian criminal defendants in the United States.
 

Bart,

In your listing of the laws of war you placed the following:

"an American citizen detainee has a right to a habeas corpus review as well"

The Bush administration contested Padilla's and Hamdi's habeas rights, arguing that any habeas petition from one designated by the Executive as an enemy combatant be summarily dismissed based on that designation.

So, Caesarist? Were you denouncing the administration back then for their Caesarist positions regarding the liberty of American citizens?
 

Mr. W: "The Bush administration contested Padilla's and Hamdi's habeas rights"

There was no statute and precedent going both ways (mostly against) on the question of whether American POWs are entitled to HC review.

Bush made a decision and then followed the court orders.
 

"In its brief before this court, the government asserts that "given the constitutionally limited role of the courts in reviewing military decisions, courts may not second-guess the military's determination that an individual is an enemy combatant and should be detained as such." The government thus submits that we may not review at all its designation of an American citizen as an enemy combatant — that its determinations on this score are the first and final word."

Hamdi v. Rumsfeld, 296 F. 3d 278 - Court of Appeals, 4th Circuit 2002

"For almost two years, the Government has denied Mr.
Hamdi any access to legal counsel. The Government
claims that the Executive has unilateral authority to
identify “enemy combatants” and to hold them incommunicado
indefinitely. Because it is physically impossible for
a prisoner to file a writ of habeas corpus in such circumstances,
an attorney must file a “next friend” petition on
the prisoner’s behalf. The Government’s position is that
such petitions must be “properly filed” even though the
attorney has not been able to meet with the prisoner to
discuss the Government’s allegations. The Government
also maintains that properly filed petitions should be
summarily dismissed if the prisoner has been deemed by
the executive authorities to be an “enemy combatant.”"

Amicus Brief of the Cato Institute, Hamdi v. Rumsfeld
 

"There was no statute and precedent going both ways (mostly against) on the question of whether American POWs are entitled to HC review.

Bush made a decision and then followed the court orders."

How is this different than what Obama is doing in regards to immigration? Is there any precedent or statute that denies the Executive the use of discretion in enforcement of immigration law? There is, of course, precedent of Presidents exercising such discretion via Executive Orders in the past, and as the legal memorandum issued on the subject points to there is actually much precedent upholding Executive discretion in enforcement of the laws...

Seems like Obama made a decision in this area which, at best for your argument, seems to have no clear precedent or statute either way, same as Bush in the other example...
 

Mr. W: "In its brief before this court, the government asserts that "given the constitutionally limited role of the courts in reviewing military decisions, courts may not second-guess the military's determination that an individual is an enemy combatant and should be detained as such."

That was the historic practice. See the Civil War.

BD: "There was no statute and precedent going both ways (mostly against) on the question of whether American POWs are entitled to HC review. Bush made a decision and then followed the court orders."

Mr. W: How is this different than what Obama is doing in regards to immigration? Is there any precedent or statute that denies the Executive the use of discretion in enforcement of immigration law?

Discretion is examining a case and finding individual mitigating circumstances that recommend declining to prosecute a technically guilty person.

Obama simply decreed that he would not enforce the immigration statutes against an entire class of illegal immigrants and then himself violated the statute by granting these illegal immigrants work documents.

This is no different from a state governor simply decreeing that he would no longer enforce the speeding laws against and would grant driver's licenses to children starting at age 8 in violation of state statute because he felt it was the right thing to do.

Caesarism.
 

"Discretion is examining a case and finding individual mitigating circumstances that recommend declining to prosecute a technically guilty person."

And the Obama EO has that expressly built into it.

"Obama simply decreed that he would not enforce the immigration statutes against an entire class of illegal immigrants and then himself violated the statute by granting these illegal immigrants work documents."

And this has been done before, most noticeably by the Elder President Bush when he declared by EO following the Tianneman Square that "irrevocable waiver of the 2-year home country residence requirement that may be exercised until January 1, 1994" for Chinese nationals and their dependents (an entire class, no?) and provided that State and the AG provide "authorization for employment of such PRC nationals through January 1, 1994" and that the "the requirement of a valid passport" be waived for that class.

http://www.presidency.ucsb.edu/ws/?pid=23556

"That was the historic practice. See the Civil War."

You mean like ex parte Milligan?
 

A correction, it's a policy memorandum by the Sec. of DHS, not an EO. Here is what it states:

"As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal. No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases."

http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf

"case by case basis," "DHS cannot provide any assurance that relief will be granted in all cases," "the above criteria are to be considered..."

Sounds a lot like "examining a case and finding individual mitigating circumstances that recommend declining to prosecute a technically guilty person" to me...
 

Mr. W: "And this has been done before, most noticeably by the Elder President Bush when he declared by EO following the Tianneman Square..."

Not even close.

An emergency such refugees fleeing persecution falls under discretion.

BD: "That was the historic practice. See the Civil War."

You mean like ex parte Milligan?


No. Milligan was a civilian accused of treason.

Mr. W: "case by case basis," "DHS cannot provide any assurance that relief will be granted in all cases," "the above criteria are to be considered..."

Sounds a lot like "examining a case and finding individual mitigating circumstances that recommend declining to prosecute a technically guilty person" to me...


This is so DHS can exclude politically embarrassing criminals and terrorists from the President's blanket order. The standard is that everyone in this class of illegal immigrants becomes legalized as under the CLASS bill which Congress rejected.

The court reviewing the Obama decree had more than ample grounds to assume at the outset of the case that it was illegal. The idea that this decree is standard prosecutorial discretion is facially ridiculous.

 

"Not even close.

An emergency such refugees fleeing persecution falls under discretion."

Is it not exempting an entire class subject to the law? You're just quibbling about the reason now (which is the heart of discretion, that one person's reason might not be anothers), not the broadness.

"Milligan was a civilian accused of treason."

Who they tried to try entirely in military courts and who the SCOTUS said had to our courts if open. Also, treason was not one of the specific charges. The charges were:

"he was placed on trial before a "military commission," convened at Indianapolis, by order of the said General, upon the following charges, preferred by Major Burnett, Judge Advocate of the Northwestern Military Department, namely:

1. "Conspiracy against the Government of the United States;"

2. "Affording aid and comfort to rebels against the authority of the United States;"

3. "Inciting insurrection;"

4. "Disloyal practices;" and

5. "Violation of the laws of war."
http://supreme.justia.com/cases/federal/us/71/2/case.html

"the President's blanket order"

Blanket order? "case by case basis," "DHS cannot provide any assurance that relief will be granted in all cases," "the above criteria are to be considered", these are not the terms and criteria of a blanket order...



 

It seems our SALADISTA (FKA our yodeler) may be suffering from Napoleonism, a latter day - but distant - Caesarist. In his "Point"/"Counter-Point" (more or less) with Mr. W, our SALADISTA seems to have recovered from his short term memory loss of the Bush/Cheney years, retorting with respect to Mr. W's Hamdi counter-point as follows:

"Bush made a decision and then followed the court orders."

Of course, that court was the Supreme Court, not a federal district court that triggered in our SALADISTA's derriere imagination his claim that Obama has segued from Socialist to Caesarist (with progressive tossed in between). And the single judge of the federal district court did NOT make a decision on the merits, ordered additional briefing by the parties. Thus, our SALADISTA's lame attempt to defend Bush/Cheney from Mr. W's counter-point falls flat. Even if the federal district court judge entered an order in the case against Obama, there would be appellate review available to challenge such a decision, including, perhaps by the Supreme Court as was the case in Hamdi that Bush/Cheney followed.

So our SALADISTA hasn't fully recovered from his short-term memory loss. Perhaps his "salad days" have wilted. Or could it be the effects of recreational Ganja in his Mile High State (of mind)?
 

"Bush was not a Caesarist because the Courts ordered him to stop being a Caesarist"

That pretty much sums up Blankshot's "argument".
 

BD: "Not even close. An emergency such refugees fleeing persecution falls under discretion."

Mr. W: Is it not exempting an entire class subject to the law?


No. Bush temporarily suspended a waiting period for a designated group of refugees during an emergency. This is not a broad class and all the other parts of the law applied.

Once again, discretion is the application of individual mitigating circumstances to decline to prosecute a technically guilty person.

An emergency is a mitigating circumstance. Being an illegal immigrant 30 years or younger is not.

BD: "Milligan was a civilian accused of treason."

Mr. W: " treason was not one of the specific charges"


Because of the two witness burden of proof, the crime of treason itself is rarely tried. However, the facts and the other charges all suggested treason.

Who they tried to try entirely in military courts...

Milligan was not a member of the Confederacy and is thus not comparable to any of the American members of al Qaeda Bush detained.

Next?
 

Our SALADISTA (FKA our yodeler) is running low on "Romaine" history as his Caesarist claim oblivates.
 

The DHS memo states the rationale behind the policy thus: "certain young people who were brought to this country as children and know only this country as home. As a general matter, these individuals lacked the intent to violate the law...Our Nation' s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language"

The Bush administration in its discretion may have seen the unrest in China as a mitigating circumstance for the entire class of individuals who were Chinese nationals in the country at a time but the Obama administration in its discretion can't see the fact that people of a certain age lacked the intent to violate immigration law and are unfamiliar with the language and culture of the nations they would be deported to as a mitigating circumstance for the entire class of individuals this applies too? You seem to simply not agree that one is worthy of deferment while the other is not, and you're free to feel that way, but the Obama administration feeling the other way is what DISCRETION is all about!

"the facts and the other charges all suggested treason."

So you admit you were wrong to say he was tried for the crime of treason.

"Milligan was not a member of the Confederacy and is thus not comparable to any of the American members of al Qaeda Bush detained."

Of course the entire point of meaningful judicial review of the enemy combatant designation is to find out if the second part of your statement is correct (that is, that Padilla and Hamdi, for example, were in fact 'members of al Qaeda').
 

Shaq's post above is also on point here: Bush in Hamdi, and in Padilla for that matter, lost in the district court several times before winning at the Circuit level and then losing at the SCOTUS. According to Bart it was only after this last loss that Bush changed policy and thus is not a Caesarist.

Well, in his own proferred example Obama has only 'lost' (and as Shaq notes the judge has ordered a re-hearing) at the district court level.
 

Mr. W: The DHS memo states the rationale behind the policy thus: "certain young people who were brought to this country as children and know only this country as home."

This is the policy argument for the DREAM Act rejected by Congress.

The president has no power to legislate by decree, even if the policy argument is compelling.

Caesarism, not discretion.

BD: "the facts and the other charges all suggested treason."

Mr. W: So you admit you were wrong to say he was tried for the crime of treason.


I never posted Milligan was tried for treason. Reread the post.

BD: "Milligan was not a member of the Confederacy and is thus not comparable to any of the American members of al Qaeda Bush detained."

Mr. W: Of course the entire point of meaningful judicial review of the enemy combatant designation is to find out if the second part of your statement is correct.


Actually, that is the function of a military status hearing. Courts have demonstrated no particular competence in this area.

Mr. W: Shaq's post above is also on point here: Bush in Hamdi, and in Padilla for that matter, lost in the district court several times before winning at the Circuit level and then losing at the SCOTUS. According to Bart it was only after this last loss that Bush changed policy and thus is not a Caesarist.

I expected more from you than to repeat Shag's errors. Once again...

When Bush detained Padilla and Hamdi, the habeas corpus common law and statute had never extended review to members of a wartime enemy of any nationality. This is the practice that Bush followed until the courts held otherwise.

CiC, not Caesarism.
 

Brett may have forgotten the failure of professional politicians back in the days immediately following 9/11/01 to recognize the force of public opinion, that started the road to two wars fueled by lies of Bush/Cheney.

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