Many regular readers know that I work for a small nonprofit up here in Vermont, and we made a decision a long time ago that even if we had to make sacrifices in salary to support the important work we do, we would try to make sure all our employees have good health coverage. It costs a lot of money, but our employees get to go to the doctor when they need to and people with serious health issues are able to get the care they need.

What I have in front of me right now is a memo from our executive director explaining the rebate our organization has received from Connecticut General (CIGNA) because they overcharged us for health insurance last year.

One of the benefits of the Affordable Care Act (I don't like to call it Obamacare, although President Obama now says he's okay with it) is a provision sponsored by Al Franken, the newest senator from Minnesota. It's based on the radical notion that health insurance payments should go to pay for–guess what–health care. According to this idea, any health insurance company that doesn't spend enough of the premiums it collects on health care must be spending too much money on marketing, fat executive salaries, and other things that you and I and our employers shouldn't be paying for. Therefore, unless the company pays out at least 85% of its premiums on health care they owe a refund back to the people who paid the premiums.

I got my rebate in my paycheck last week. It was about $300. In addition, we have almost $70,000 that they refunded to our employer that we can save to help reduce what we have to pay for health insurance next year.

Maybe you got one of these checks, but maybe you didn't realize why you got it. My $300, and even my employer's $66,000 isn't going to make anybody rich, but it adds up. Across the country it adds up to a billion dollars paid out to over twelve million Americans.That's all money that didn't go to buy health care for anyone: didn't cure any infections, buy any bandages or tests, and didn't make anyone healthier, but the insurance companies would have been able to just pocket all that cash without the Affordable Care Act.

The average rebate per family in Vermont was $807.00, the highest in the nation. You could say that we made out pretty well this year, or you could say that we got ripped off more than other states, and now we're getting it back. There's a map to see what the families in your state got back in rebates.

So this is a good thing to know. The next time one of your conservative friends starts whining about how we didn't need or want the Affordable Care Act, and how it's not helping anybody, remind them of the rebate that you and the other people in your neighborhood are getting.

And also remind them that if Mitt Romney gets his way the insurance companies are going to get to keep that money.

Rotten timing for Wendy Wilton, eh?

First off, it turns out those new Super PAC ads for Vince Illuzzi and Wendy Wilton are not just ugly, they're downright illegal! So they have to be taken down.

Second, not a half hour later Paul Heintz at Seven Days reported that Vermont's own liberal Super PAC has released a commercial for Beth Pearce, who is actually qualified to be State Treasurer. The ad goes up Thursday but you can watch it right here:

 As I say, tough timing, huh? 

For the first time in recent memory the State Treasurer's race has gotten more attention than anything else on the Vermont ballot, and voters are faced with a clear choice: a finance professional with almost thirty-five years of experience in state and municipal finance, and a right-wing demagogue.

Just a couple of weeks ago Wilton trotted out her first line of attack: a bogus argument based on overtime pay at the Treasurer's office. In fact, even after paying overtime to one retired employee, Beth Pearce saved over half a million dollars in her first two years in office. She's reduced payroll by 7.5%, has held the line at 12 employees, and has asked Governor Shumlin to reassign over $100,000 to the Emergency Personnel fund which pays out money to the family of emergency personnel who are killed in the line of duty. 

In other words, when you look closely at Wilton's claims of mismanagement what you find instead is a record of high performance and fiscal management in the Treasurer's office.

So what's next? How about attacking the Treasurer for renting instead of buying?

That's right, to hear Wendy Wilton tell it, apparently the 30% of Vermonters who rent their homes are by that fact alone disqualified from holding public office. Somehow it indicates that they “lack commitment” to the state.

Is this really a smart move? I guess if Mitt Romney can feel free to disregard the “47%” there isn't anything odd about Wendy Wilton tossing the 30% of Vermonters who rent under the bus, is there?

 Then, finally, on this weekend's You Can Quote Me, which I encourage you to watch (and by the way, who would have thought Beth would be debating circles around Barack Obama?),  Wilton went off on a tirade about transparency for a state web page that the Treasurer has nothing to do with, leading Pearce to wonder, with ample justification, if Wendy Wilton understands what the Treasurer does.

We know that Wendy Wilton has been bringing in the Super PAC money that's buying all those TV spots, but when it comes down to the substance of the race I'm starting to sense the smell of desperation in the Wilton campaign. 

I've spent my entire career providing legal representation to poor people, and anyone who works for poor people knows that limited or no access to dental care is one of the biggest health care problems facing the poor. As the AMA has noted:

 The first signs of some diseases such as osteoporosis or HIV infection can show up in the mouth, but poor oral health can also cause damage to the rest of the body. Over the past decade, published studies have linked tooth loss to dementia and associated it with poor pregnancy outcomes. Dental plaque can be a source of ventilator-associated pneumonia among intensive care patients. Tooth decay may increase the risk of heart disease. Diabetes can increase the risk of gum disease, and, conversely, leaving this problem untreated can make blood sugar control next to impossible.

 Poor dental health is also a severe occupational handicap. Twenty years ago the Vermont Supreme Court held that if a lawyer refuses advancement to employees who suffer from tooth loss it is liable for employment discrimination.

In recent weeks health care advocates have been pushing for the Green Mountain Care Board to include adult dental health care in the package of services required to be offered by the health insurance exchange, and they got thousands of Vermonters to submit comments favoring adult dental care.

This morning on VPR Bob Kinzel is reporting that the GMC Board has rejected adult dental care. According to Kinzel's reporting, board chair Anya Rader Wallach said the exchange was intended to “really mirror the current insurance marketplace and create as little disruption and additional cost as possible while offering some improvement in terms of how the marketplace is organized.“

 Health care advocates know that the current insurance marketplace has failed people who need health care. What Wallach calls disruption would be what anyone else would call a humane provision of basic health care.

Dental care is not a luxury, but a basic necessity. It is a gross failure on the part of the Green Mountain Care Board to refuse to require this coverage. 

Okay, I'm glad I didn't write this last night because I've gone through at least three sets of reactions to the debate. I'm still not prepared to say definitively who “won”, but I just have a series of thoughts.

My first thought, while I was watching, was a mix of recognizing that Obama was better on substance and Romney was better on style. Overall Romney had better control of the situation, and even the atmospherics were in his favor. For instance, I noticed a number of times that Obama was nodding his head while Romney was talking. Just a tic or pattern that many of us have while we're listening to somebody, but it still seemed almost like a submissive gesture of agreement.

Plus, there was one question where Romney seriously gave a better answer. It was the question about the role of the federal government. Don't bother going to look for the transcript: the substance doesn't matter. What matters was that Romney had a prepared statement that was arguably related to the question, pumped up some right-wing talking points, and tied it to the Constitution. Obama had nothing, and it was a softball for him. As in:

One thing I know about the role of the federal government is that it is the government of all the people, not just those who are fortunate enough to have material success. I know that it includes doing for people what they can't do for themselves, protecting the environment, investing in the future of our young people, and protecting consumers and home purchasers from unregulated and unscrupulous businesses who would exploit them. The federal government must encompass and advance the vision of America that is faithful to the vision of our Founders, and also keeps faith with the generations since who have built America into the strongest, freest nation on earth. [and so on].

He could have said something like that, but he kind of rambled and lost that question.

Still, the other part of my immediate reaction was that there was more substance in Obama's answers than in Romney's. This was not, though, inconsistent with the idea that Romney may have won.

From there, my second reaction while watching one of the fact-check stories right after the debate, was to think that people will feel pretty stupid when they wake up the morning after and realize how much of what Romney said just wasn't true.

 This was followed quickly by two counterreactions:

1. Who ever said the winner of a debate was determined by comparing the ratios of accurate and inaccurate factual claims of the two debaters? and

2. Okay, if Obama was right and all those claims by Romney were false, would it have been so bad to say so during the debate?

For instance, Obama probably said five times that Romney's plan calls for five trillion dollars in tax cuts, and every time he said it Romney said that just wasn't true. Wouldn't it have been better if somewhere along the way, instead of repeating “five trillion dollars”, Obama had said, “Look, the plan Romney has been touting for a year and a half calls for reinstating all of the Bush tax cuts, totally eliminating the estate tax, slashing the corporate income tax from 45% to 25% (or whatever the numbers are) and cutting individual tax rates across the board by 20%. That adds up to five trillion dollars and he won't even tell us one deduction he wants to get rid of to make up that five trillion dollar hole.”

 Of course, there could have been a strategy at work. The Obama people could have decided in advance that whenever Obama was responding to Romney's points he was talking about what Romney wanted to talk about, so they would stay away from that. Unfortunately, if that was there strategy I think it sucked.

 Finally, I got some good news tonight. I saw the diary from the DailyKos staff discussing the first poll after the debate, and apparently Obama actually did pretty well. Specifically, he didn't lose support overall and he gained a lot in favorability among independents.

 Finally. For an electoral debate, gaining support is the actual measure of success. You probably know this already, but when Kennedy debated Nixon the people who listened to it on the radio thought Nixon had won, but the people who watched it on television thought Kennedy won it, and Kennedy's win is the story we remember.

 We don't know what story we're going to remember yet. As a friend observed at lunch today, there are too many hands to know the final answer. On the other hand, I've said this before: I wish I saw some more fight in the guy.

I don't ask for much, but this would be so nice.

Orly Taitz, when you're done in Kansas, please come to Vermont to help out in Paige v. State of Vermont.

Okay, I sort of promised I would do this, and I got the guy to send me his pleadings and everything, so here it is.

Brooke, if you're reading, here's the true analysis of your case. And, readers, feel free to just skip it if your head starts to hurt. 

The case name is H. Brooke Paige v. State of Vermont, et al., and it's pending in Washington Superior Court, Civil Division, Docket No. 611-8-12 Wncv. Two of the defendants, the State of Vermont and Jim Condos, have been served. President Obama has still not been served.

THE PLAINTIFF'S CLAIM

This case is what could be called second-order birtherism. It is based not on the disproven claim that President Obama was not born in the United States, but that he is not a natural born citizen because there is some additional requirement to establish natural born citizenship for purposes of eligibility to be President.

As you know, the Constitution provides that in order to be eligible to be President you must be a “natural born citizen”. This is the only office for which that is a requirement, and “natural born citizen” is nowhere defined in the Constitution.

The claim that Paige makes is that when the Constitution uses the term “natural born citizen” it means “a child born in the country to `citizen' parents”. This is because the term and meaning was invented by Emer de Vattel in his book The Law of Nations, which Paige tells us was in the possession of a number of the members of the Constitutional Convention when they adopted the Constitution.

That's pretty much it. That's the basic claim.

HOLES IN THE THEORY

As you might guess, there are a few holes in this theory.

First off, if the Constitutional Convention had wanted to say what Paige claims, why didn't they just say it, or define “natural born citizen”?  No answer has been given to this fundamental question.

Second, as GMD regular ntoddpax points out in his own blog, Vattel doesn't say what Paige claims he says. Rather, Vattel's definition of natural born citizen is a citizen born in a country whose father is also a citizen of the country.  The citizenship of the mother doesn't enter into it. Thus, not only is this argument inherently bogus, but he even has to make stuff up to make this argument fit. 

Third, as originally written the Constitution contained no definition or criteria for citizenship, vesting in Congress the power to establish “an uniform rule of naturalization”. It was not until after the Civil War, in the Fourteenth Amendment, that the Constitution was amended to provide that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

At least since that time all credible and objective commentators have reasoned that every person born in the United States, having been citizens from birth, are natural born citizens.

Paige's response is that the Fourteenth Amendment doesn't change the definition of natural born citizen, and that no statutory or constitutional amendments adopted after the adoption of the Constitution change the original meaning of natural born citizen.

This in itself creates an internal contradiction, because Paige also says in his complaint that subsequent legislation, such as the Naturalization Act of 1790, establish the definition of natural born citizen. (Query: How can a statute establish or create the meaning of a provision of the Constitution?)

Funnily enough, the only use of the phrase “natural born citizen” in the 1790 Act is here:  And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens“. The pertinent language, which I have highlighted, is instructive: this language doesn't say anything about persons born in the United States, it just says that someone born outside of the United States to citizen parents is entitled to be considered a natural born citizen. Since it would be absurd to argue that the only persons entitled to be considered natural born citizens are those born outside of the country to citizen parents, the only logical reading of this sentence is that it is a means of conveying natural born citizen status to these people in addition to those who already have it, those born in the United States.

Many cases have applied the citizenship clause of the Fourteenth Amendment, including the famous Supreme Court decision of Wong Kim Ark. Birthers are fond of arguing that none of these cases, including Wong Kim Ark, establish the definition of “natural born citizen” because none of them had to do with eligibility for President, which is the only application for that status. The problem with this argument is that it is entirely negative: even if it did prove that Wong Kim Ark did not establish the definition of “natural born citizen”, it still provides no evidence that their pet definition is correct.

Fourth (I think that's what I'm up to), not a single court that has reviewed a challenge to President Obama's eligibility, and I think we're up in the neighborhood of 150 cases now,, has ruled in favor of the claim that Paige is making here. Is it possible that all those state and federal judges are wrong and Brooke Paige is right? I suppose anything is possible, but  the odds are pretty heavily stacked against it.

Fifth, President Obama is the seventh President born to at least one non-citizen parent. If he's ineligible then so were  Woodrow Wilson, Herbert Hoover, and Vermont's own Chester Alan Arthur, among others. Granted, maybe we would have been better off without James Buchanan or Herbert Hoover, but wishing won't make it so.

In short, there is no basis in law for the claim that President Obama is not a natural born citizen and therefore ineligible to serve as president. No court has ever ruled otherwise, and no court ever will. The chance that a Vermont trial court judge, or the Vermont Supreme Court, will rule that he is ineligible is precisely zero. 

 A FEW BIZARRE TIDBITS 

I know this has gone on for some time (you were warned), but I thought I'd just throw out a couple of other things you might have missed.

First, Paige's buddy, consultant, drafter, or whatever you want to call him in this case is notorious New Jersey birther attorney Mario Apuzzo. You can see some of his antics caught on video here.

Second, following Paige/Apuzzo's kitchen sink approach, the complaint sets forth a number of other areas that they think will incline the court in their favor, including a statement that their definition of “natural born citizen” “was again confirmed by Justice Daniels in Dred Scott v. Sandford, 60 U.S. 393 (1857).” Disregarding the misspelling of Justice Daniel's name (no s), it is most striking that anyone would try to bolster his argument by citing one of the most notorious  decisions in Supreme Court history.

I think I've found the language in Daniel's concurrence that Paige is talking about:

From the views here expressed, and they seem to be unexceptionable, it must follow that, with the slave, with one devoid of rights or capacities, civil or political, there could be no pact that one thus situated could be no party to or actor in, the association of those possessing free will, power, discretion. He could form no part of the design, no constituent ingredient or portion of a society based upon common, that is, upon equal interests and powers. He could not at the same time be the sovereign and the slave.

But it has been insisted in argument that the emancipation of a slave, effected either by the direct act and assent of the master or by causes operating in contravention of his will, produces a change in the status or capacities of the slave such as will transform him from a mere subject of property into a being possessing a social, civil, and political equality with a citizen. In other words, will make him a citizen of the State within which he was, previously to his emancipation, a slave.

It is difficult to conceive by what magic the mere surcease or renunciation of an interest in a subject of property, by an individual possessing that interest, can alter the essential character of that property with respect to persons or communities unconnected with such renunciation. Can it be pretended that an individual in any State, by his single act, though voluntarily or designedly performed, yet without the co-operation or warrant of the Government, perhaps in opposition to its policy or its guaranties, can create a citizen of that State? Much more emphatically may it be asked how such a result could be accomplished by means wholly extraneous and entirely foreign to the Government of the State? The argument thus urged must lead to these extraordinary conclusions. It is regarded at once as wholly untenable, and as unsustained by the direct authority or by the analogies of history.

. . .

 That, in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person. He was regarded and owned in every State in the Union as property merely, and as such was not and could not be a party or an actor, much less a peer in any compact or form of government established by the States or the United States. That if, since the adoption of the State Governments, he has been or could have been elevated to the possession of political rights or powers, this result could have been effected by no authority less potent than that of the sovereignty — the State — exerted [p482] to that end, either in the form of legislation or in some other mode of operation. It could certainly never have been accomplished by the will of an individual operating independently of the sovereign power, and even contravening and controlling that power. That, so far as rights and immunities appertaining to citizens have been defined and secured by the Constitution and laws of the United States, the African race is not and never was recognised either by the language or purposes of the former, and it has been expressly excluded by every act of Congress providing for the creation of citizens by naturalization, these laws, as has already been remarked, being restricted to free white aliens exclusively.

  Finally, birtherism does not seem to be the fringiest of Paige's fringe positions. Other equally wacky, if not more so, positions of his include:  

Tax Reform based on the elimination of Federal Taxation of Wages, the Restoration of the Constitutional Authority of the U.S. Treasury (by devolving the illegal Federal Reserve System back under government control), repeal of the Seventeenth Amendment as the best way to resolve the issue of term limits and the current voilation of the voting rights act of 1963 by our continued selection of U.S. Senators by popular vote – I could continue but you get the point. 

I won't spend much time arguing the point, but the evidence for President Obama's eligibility is so clear, and the support for the claims against him are so clearly spurious, requiring heroic efforts to sustain, that the only reasonable explanation is that birthers are motivated by a view that President Obama embodies a unique and unresolvable otherness that renders him unfit to ever serve as President of this great nation. That otherness, of course, is his race. 

Cross posted at Rational Resistance:

Part of our regular radio diet is On the Media, a public radio program produced by WNYC that examines various aspects of the mass media. It's valuable for people who are interested in the news, how the news gets to them, and what forces are at work influencing the content we hear.

Last week's program examined the relentless right-wing claims that National Public Radio has a liberal bias. I don't think it does, and I think the evidence shows that I'm right, but you can certainly listen to the podcast and make your own decision.

I thought it was ironic when I was listening to All Things Considered just yesterday, the day after hearing “On the Media” report on claims of NPR liberal bias, and I heard what struck me as a clear illustration of the opposite of liberal bias.

 The story was about President Obama announcing at a campaign stop in Ohio that his administration had filed another unfair trade complaint against China. It was a dialogue between Audie Cornish in the studio and Scott Horsley on the road with the campaign, and at about 2:00 into the story the following exchange occurs:

CORNISH: Now, Mitt Romney has dismissed the president's latest enforcement action as too little, too late. And, I mean, are these the first enforcement actions the White House has taken against China?

HORSLEY: No. The White House boasted it has actually filed trade cases against China at more than twice the rate of the Bush administration.

The question asked by Cornish was a factual question of how many trade complaints have been filed by the Obama administration. The true answer appears to be that the Obama administration has filed complaints at twice the rate of the Bush administration, and after providing a one-word factual answer Horsley replies with a comment of “boasts” by the Obama campaign.

Nothing would have been lost in the report if Horsley's answer had been, “No, the Obama administration has actually filed trade cases against China at more than twice the rate of the Bush administration.” That would have been a factual and complete answer to a factual question.

By adding the phrase, “the White House boasted . . .” to his answer, Scott Horsley implicitly indicated that the answer was one of opinion or political posturing, rather than one of fact. By doing this, and by characterizing the statement as a boast, Horsley's answer undermined the credibility of the Obama administration's statement and gave President Obama's opponents reason to reject the answer, since it was not a factual statement but merely a campaign boast.

There are many situations in which the facts are more favorable to one side of a debate or the other, but the media, especially NPR and other media aiming for credibility and impartiality, still have the obligation to report the facts.

Just a few thoughts about the embassy violence this week.

It appears that the reason that some Islamic extremists are mad at the United States is this stupid anti-Islam movie that some guy made. You see, based on what they've been told of the way the world works, or at least the way the world they're familiar with works, it would be impossible for some anti-Islam extremists in the United States to make such a movie unless it was supported by the United States government. It's really just inconceivable to them that the intolerance of a few extremists is not typical of everyone in the United States and our government.

In response, conservatives in the United States are arguing, as they have argued before, that the actions of the people who attacked and burned our embassies and killed our ambassador represent the actions and beliefs of all Muslims. You see, based on what they've been told of the nature of Islam, it would be impossible for some anti-American extremists to take such actions unless those actions were supported by Islam around the world. It's really just inconceivable to them that the intolerance of a few extremists is not typical of all Muslims.

Wait, what?

Cross posted from Rational Resistance. 

Over my legal career one of the cases I am most proud of involved a federal drug forfeiture case I worked on. The victims of the forfeiture were a husband and wife and their four children. The federal prosecution, facilitated by a paid informant, landed both parents in federal prison for years and tore them away from their children. Then the federal government tried to take their home.

When [the parents] were faced with both prison sentences and the loss of their Vermont home, some had very little sympathy for their efforts to keep their four children together in the only home they had ever known. Their response when asked, “But what about the children?” was “Well, they should have thought about that before they got involved with drugs.” Fighting negative public opinion, the [parents] persisted in bringing their concerns to the press and their legislators. Their efforts were instrumental in raising awareness of the plight of child victims of forfeiture, and resulted in a debate on the rights of children in such cases, as well as front-page coverage in Vermont papers and on TV, and a piece in the New York Times law section, picture and all (“When a Forfeiture Means Uprooting the Innocent,” 5/15/92).

In this article, Jessica, the . . . oldest child, then 15 said, “I haven't done anything for the past two years. I can't go on vacation because I don't want to come back and find the house boarded up. My parents should serve time for what they did, but the government shouldn't take our house. I've lived here since I was three. It's punishing us kids a lot.” (In this case, the . . . two oldest children were actually part owners of their home under the terms of a divorce settlement between Patricia and their father — a fact the government wished to ignore).

I was able to represent two of the children, obtain representation for the other two, and work with the lawyers for the two parents to save the home for the children. At the time I had not heard of any similar case in which a family home was preserved for the children, so aside from the suffering and deprivation the family had to endure during the imprisonment it was a good result, and I'm happy to say that the family is still strong.

At the time I considered, and still consider, the paid informant to be lower than whale shit, abusing the trust of people who thought he was their friend for his own benefit. I wonder if he has ever felt remorse for what he did.

There are cases, though, in which the informant is as much a victim as anyone else. A recent New Yorker has an excellent article about confidential informants in drug cases, documenting a number of cases in which people arrested for minor drug charges were forced to become undercover informants. Sometimes, as happened to three young people profiled in the article, things go badly wrong (what could go wrong when you send an unsophisticated kid into a drug buy with cash, hard drugs, and guns, right?) and the undercover informant winds up getting murdered by the people the police sent them to gather evidence from.

You should read the whole article, but the gist of it is clear. The War on Drugs depends for its very existence on the coerced use of informants, some of whom are minors; informants are involved in up to eighty percent of all drug prosecutions. The informants are sent into dangerous situations with little or no training and inadequate supervision and backup. Their efforts not only enable drug prosecutions, they also provide support for the forfeiture industry, in which local, state, and federal agencies cash in on drug prosecutions by seizing the assets of the defendants in a system of “guilty until proven innocent” cases filed not against the person but against the property itself. (The case I was involved in was officially called The United States of America v. Eleven Acres of Land, More or Less.) These forfeiture cases enable them to buy guns, fancy cars (think Don Johnson's Ferrari on Miami Vice) and other equipment. Finally, the system of mandatory minimum sentences not only imposes harsh sentences on minor offenses, increases the terrible incentive to become an informant, and includes rewards for acceptance of responsibility and cooperation with other prosecutions.

We have seen over the years that the War on Drugs has shredded our constitutional rights. It has inflicted terrible devastation on individuals, families, and communities. Now, we now see that for people unfortunate enough to be trapped into working for the government, the War on Drugs can be fatal.

Certainly there are reforms that could be introduced in the system of confidential informants and asset forfeiture, but the real problem is the War on Drugs itself. As long as we continue this pointless and futile effort we can expect that the battleground will be covered by the bodies of its casualties.