Mader Blog

It's A Go

Wed, 15 Apr 2009 00:16:56 -0500

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Hold That...

Tue, 14 Apr 2009 23:17:01 -0500

Transition postponed while I figure out whether I've just lost five days of blog-design. Fingers crossed...

Service Advisory

Tue, 14 Apr 2009 22:31:09 -0500

Maderblog switches to WordPress overnight tonight. This may affect your Maderblog experience in four ways:

1. RSS (Syndication): If you read Maderblog through an RSS syndicator (such as Google Reader), please update your RSS feed URL to the following: http://www.maderblog.com/index.php/feed/

2. Comments: They'll work.

3. Look & Feel: The new template is... different. You'll see. I'm still tinkering - heck, I've been tinkering with the current template since I adopted it in 2003.

4. Archives: While I've imported all posts, some have been corrupted in the transfer. I'll keep the current archive up, meaning that all current permalinks will continue to work. In time, I hope to integrate the old archives into the new site.

That's all. See you on the flipside.

Speaking of Non-Sequiters

Fri, 03 Apr 2009 17:54:12 -0500

The Times: Michelle Obama meets Carla Bruni and wins on points:

Michelle Obama might have been trying to appeal to a certain English eccentricity when she paired an asymmetrical Junya Watanabe cardigan with a full-skirted dress by Jason Wu and added debutante-style pearls for a photocall earlier this week with Sarah Brown.

It was a relaxed look, fun and informal, yet stylish. But if she was aiming for the quirky English look, it was not an unqualified success. When canvassed, Vivienne Westwood, doyenne of daring British fashion, said: "I don't think either of them dresses very well. I'm completely and utterly focused on the danger we face from global warming."

Ummm... ok?

Galloway

Tue, 31 Mar 2009 11:43:06 -0500

I've just read the Federal Court's decision in the Galloway case. It's as odd and interesting as the controversy itself. Here's why:

Media reports have suggested that Galloway was ruled inadmissible under Section 34(1) of the Immigration and Refugee Protection Act, which allows immigration officers to exclude a foreign national on security grounds if the foreign national, inter alia, engages in terrorism, poses a danger to national security, or is a member of a group that engages in terrorism or poses a threat to national security. While a foreign national who is declared inadmissible under Section 34(1) has no right of administrative appeal, see Section 64(1), he may still be admitted at the direction of the Minister if the Minister is satisfied "that [the foreign national's] presence in Canada would not be detrimental to the national interest." Section 34(2).

If the Minister does not intervene on behalf of the foreign national, the foreigner may seek judicial review of "any matter--a decision, determination or order made, a measure taken or a question raised--under [the] Act." Section 72. The foreign national can then (in certain circumstances) appeal the court's decision to the Federal Court. Section 74.

From the press accounts, you might think (as I did) that Galloway had sought admission to Canada, had been denied admission by a border officer under Section 34(1), and had failed to persuade the Minister to intervene under Section 34(2). Had that been the case, the next step would have been a judicial appeal under Section 72. But that's not what happened. Why? Justice Martineau explained:

[A]n official of the High Commission of Canada [in London], Immigration Section, by letter dated March 20, 2009, has advised [Galloway], apparently as a matter of 'courtesy,' that according to the 'preliminary assessment' of the [Border Security Agency], he is inadmissible to Canada on security grounds.

In other words, media reports to the contrary, Galloway has not been refused entry to Canada; instead, he's been told--by an official of the Department of Foreign Affairs, it seems--that he would be denied entry if he applied. This puts Galloway in an odd position: having not yet been denied entry, he doesn't have a right either to appeal the decision in the courts, or to seek a ministerial exception. So he (and his supporters) have done the next best thing: they've sued the government, seeking a preliminary injunction compelling the border officers to allow Galloway into the country when he does apply.

Now a preliminary injunction is an unusual device. An injunction allows a court to compel a party (backed by the threat of contempt sanctions, up to and including imprisonment) to do or refrain from doing a certain thing. A preliminary injunction is especially unusual because it is granted before the court has had a chance to rule on the merits. With it, a court essentially says: "We don't yet know who should win this dispute; but unless the defendant does X (or stops doing X), the plaintiff's victory will be hollow--so defendant must do X (or stop doing X) until we can work out whether plaintiff should win."

But because a preliminary injunction compels behavior before the court has addressed the merits of the dispute, a party seeking such an injunction has to meet a high standard: he has to show (1) that he has a real claim; (2) that there is a substantial likelihood he'll win on the merits of the claim; (3) that if the injunction isn't granted, he'll suffer a permanent injury; and (4) that if the injunction is granted, the defendant won't suffer a significant injury.

That's what Galloway was seeking here: a preliminary injunction ordering the border agency to admit Galloway unless and until he was actually found to be inadmissible. Justice Martineau declined to issue the requested injunction:

If I were to grant the mandatory interim relief sought today by the applicants, this would, by necessity, imply that the applicants are likely to succeed on the merits. I acknowledge that serious arguments are advanced against the impugned decision. However, a proper factual record and the benefit of full legal argument, (notably on the complex issue of whether or not the grounds of inadmissibility stated in the impugned decision are founded), are lacking at the present time. Therefore, I am not ready today to exempt Mr. Galloway from the application of the provisions in the Act and Regulations respecting entry and examination, or to order the respondents� officials to allow the applicant Galloway to come to Canada between March 30 and April 2, 2009, without any final decision made on his admissibility.

In other words, the judge found that Galloway couldn't establish a substantial likelihood that he'd win on the merits, because there hadn't yet been any merits adjudication--only a letter from the High Commission suggesting that he wouldn't be allowed in. In essence, the judge said that the letter was without force unless and until Galloway was actually refused entry to Canada.

What makes the decision odd, to my mind, is that Justice Martineau seems to go back and forth regarding the power of the letter. On the one hand, he finds that

[w]hile [the] letter of March 20, 2009, is characterized as merely 'informational' by the [government], its content seems to suggest otherwise, as it announces to Mr. Galloway that some sort of 'preliminary assessment' has already taken place.

And because the letter appeared to announce some sort of 'preliminary assessment,' the judge decided that there was a real issue--what the American courts would call a "case or controversy"--that could be decided. In other words, the letter raised enough of an issue that the Federal Court could exercise its jurisdiction over Galloway's lawsuit seeking (in essence) to overturn the letter's impact.

On the other hand, Justice Martineau concluded--as quoted above--that "a proper factual record and the benefit of full legal argument . . . are lacking at the present time." But if the letter constitutes a legal decision of any force, it should provide a basis not only for jurisdiction but for the issuance of an injunction--that is, it should be reviewable on its merits.

Why the mixed-up ruling? Because Galloway is trying to use a preliminary injunction to do an end run around the normal immigration appeals process--but that's because someone (Kenney? DFAIT? PSEP?) seems to be trying to do an end run around the normal immigration adjudication process. Had Galloway been denied entry, he could have appealed, and the courts would have had both jurisdiction and a sufficiently concrete record on which to decide the merits of the case. The letter throws everything into disarray. (In fact, I wonder if a better course would have been for the Federal Court to decline to exercise its jurisdiction on the ground that the letter was without force of law. Galloway could have attempted entry, and if he was denied, he could have appealed through the normal channels, at which point the letter would have been admissible as evidence of... well, of something.)

One other interesting point, buried in the decision: as mentioned, an alien who has been denied entry to Canada can appeal to the Minister for an exception. Which Minister? Says Justice Martineau: "In this case, the Minister of Public Safety and Emergency Preparedness." That's Peter Van Loan to you and me. So how did Kenney get mixed up in all of this? And what prompted that immigration official in London to send Galloway the controversial letter? And are my two questions really the same question, with the same answer?

On Subsidizing the Press

Sat, 28 Mar 2009 00:43:58 -0500

Apropos my previous post, I note that David Akin is highlighting the Conservative Government's decision to subsidize a politically conservative regional news magazine. Says Akin:

This, of course, was the day after CBC announced about 800 layoffs because of a budget shortfall it hoped Canada's government, on behalf of all taxpayers, might cover. For better or worse, CBC is not "Western Canada's Conservative Voice."

For the record, I oppose all bailouts as a matter of principle; to paraphrase that Swedish minister, the Canadian government should not be prepared to own car factories--or news rooms.

But given that bailouts are de rigeur at the moment, I don't think Akin means to suggest that the newsmagazine should be categorically ineligible for a bailout; rather, his point is that there's something incongruous, and politically troubling, about a Conservative government subsidizing a conservative newsmagazine while the CBC--widely perceived to be politically liberal--is shedding jobs. My question is: is this a fair point?

After all, the newsmagazine in question--and, presumably, most private media enterprises in Canada--confront this economic crisis from a very different starting place than does the national public broadcaster. In boom times, private enterprises receive (ideally) no public dollars, while in boom times, the public broadcaster receives hundreds and hundreds of millions of dollars.

When the boom times go bust, many private enterprises face the prospect of total economic failure. Government bailouts are justified on the theory that subsidized survival is better than failure. As noted, I generally dispute this premise--but it's the prevailing one. But does a downturn affect the public broadcaster the same way? Unlike a private enterprise, the public broadcaster never turns a profit--even in boom times. (If it did, it wouldn't need to be a public broadcaster; after all, the core justification for a public broadcaster is to ensure a medium for the dissemination of voices that would not otherwise be disseminated; and if those voices could be disseminated privately, the state would not need to fund and operate its own mechanism for dissemination.) So when boom times go bust, the public broadcaster doesn't face the prospect of failure--unless the state itself threatens to fail. But if government revenues fall during a downturn, it seems natural that expenditures on the public broadcaster would fall in rough proportion, with corrections for the relative importance of a public broadcaster versus other government expenditures during a recession or depression.

To cut to the point: if a government bailout places a subsidized private media enterprise in the position it would have been in had there been no downturn, then it would be fair for the CBC to demand continued funding at pre-downturn levels. But if bailouts are designed only to prevent the absolute failure of private enterprises, and those enterprises must consolidate operations notwithstanding their bailouts, then it becomes hard to make the case that the CBC should be entitled to continue to operate as though there were no economic downturn.

So which is the case?

Sigh

Fri, 27 Mar 2009 15:24:54 -0500

Warren Kinsella, Aug. 3, 2008:

THE NOTIONAL PEST, JUNK BOND MAKER: [I] will continue to remain amused that a newspaper that loses nearly a million bucks a month continues to give the rest of us lectures about fiscal restraint and probity and conservative principles.

Warren Kinsella, Feb. 20, 2009:

CANWEST TURMOIL CONTINUES: Advice to former journalist colleagues there: get the Hell out. The end is nigh.

Warren Kinsella, Feb. 21, 2009:

THE NOTIONAL PEST'S DEEP THINKERS RESPOND: Warren is wondering why the National Post just doesn't die, already.

Warren Kinsella, Feb. 25, 2009:

YOUR MORNING BITS AND PIECES: I�ve been told by a couple people that a full-page display ad can be purchased in the Post for $7,000. If that is true, for advertisers, it�s a bargain; for a daily newspaper � with all the costs associated with being a daily newspaper � that�s a death sentence.

Warren Kinsella, March 2, 2009:

CANWEST HITS 29 CENTS: I very much hope the families of those journalists and editors aren't forgotten in the rush to the exits.

Warren Kinsella, March 7, 2009:

CANWEST HIT 27 CENTS: ...before the market mercifully closed, yesterday.

Warren Kinsella, March 19, 2009:

AN OPEN MEMO TO DAVID: [I] have periodically chronicled the fact that CanWest has been reduced to junk-bond status by mismanagement, thereby putting the livelihoods of hundreds of talented Canadian journalists at risk[.] . . . [T]he CBC (which wins news awards all the time) is getting run into the boards by the Harper Conservatives � while the company that owns the National Post (which never wins news awards) is likely to get a bailout. . . . The NNA nominations came out today. Not one for the National Post. NOT ONE. So, by all means, let's rewrite tax laws for them, and give them big, fat AIG-style handouts!

Warren Kinsella, March 27, 2009:

MEDIA CUTS AND CUTS AND CUTS...: You know, in the future, some bloggers will think it's swell that people are getting political commentary from them, but this is one web log writer who won't.

Rather, he's apparently one web log writer who only celebrates the failure of Canadian businesses whose politics are contrary to his own. Charming.

Dear Ottawa

Fri, 27 Mar 2009 10:53:05 -0500

Wake up:

MOSCOW (AP) - Russia is planning to create a dedicated military force to help protect its interests in the disputed Arctic region.

The presidential Security Council has released a document outlining goverment policy for the Arctic that includes creating a special group of military forces. The report was released this week and reported by Russian media on Friday.

Who Are These Interlopers?

Tue, 17 Mar 2009 15:11:54 -0500

Paul Wells and Adam Radwanski have the temerity to be eminently reasonable in their reactions to the Gary Goodyear thing. Wells:

Gary Goodyear can believe what he wants, as long as there are systems in place that ensure an Andrew Hendry can get a Steacie Fellowship. And apparently there are. If the junior minister for science (whose influence on science policy in a Harper government, incidentally, should be reckoned as comparable to the intergovernmental affairs minister�s influence on federalism, or the health minister�s influence on anything measurable) wants to pray to the Tooth Fairy or Salma Hayek every night, then godspeed.

And as long as science can rise in this country, then I would really rather stay out of the business of interrogating ministers to see whether they�re planning to stay in line with somebody�s idea of acceptable thought.

And Radwanski:

[W]e've got half the Liberal blogs in the country making Flinstones jokes about a guy who tried - extremely clumsily, but still - to explain his efforts to balance his scientific views with his faith. . . . [I]f the leader of your opposition party is already vulnerable to accusations of elitism, you'll want to be careful about inadvertently offending voters who may themselves struggle with the conflict between science and religion."

I spend a lot of time on this blog knocking the commentariat, so it's only right that I give praise where praise is due. Indeed, Wells and Radwanski are fairer to Goodyear than I was initially inclined to be.

(That being said, I'd be interested to know the basis for Wells's aside regarding "Goodyear and Harper['s] claptrap." I take it Wells is referring to Goodyear's assumed creationist beliefs as "claptrap." Assuming Goodyear (a) is in fact a creationist and (b) seeks to have creationism taught in schools, is there any evidence that Harper shares those two characteristics?)

Anyone Else Find This As Creepy As I Do?

Thu, 12 Mar 2009 23:53:20 -0500

Creepy, dude. I don't care if you're about to nominate her for a Nobel-fargin'-Prize. Just c-r-e-e-p-y.

Look, I have no dog in this pissing match. But the participants - all the participants - would do well to pause and try to consider how they look to those not intimately involved in Ottawa baseball. And - from my perch here in New York - this just looks creepy.

At the Risk of Being Labelled a FanBoy...

Wed, 18 Feb 2009 18:25:05 -0500

... I have to say: this guy's good at his job.

By "his job," I mean governing a G7 nation. Two points. First, isn't it fascinating to see Harper interviewed by someone with whom he doesn't have the dysfunctional relationship he has with the Parliamentary press gallery? I'm not laying blame for that relationship; goodness knows there's plenty to go around. And I'm not saying Harper always deserves the softballs Blitzer tossed him. But isn't it a welcome change to hear him interviewed by someone who isn't - or at least who isn't suspected of being - either secretly or openly hostile to Harper's policies? Someone who asks a question, lets Harper answer it, and then follows up with a question that builds on the answer rather than attacking the assumptions on which the answer is based? It's almost like the interview was about what Harper, as opposed to Blitzer, had to say.

Point two is related. The PPG, which spends all its time thinking, writing, and talking about Harper and the national media scene, is understandably focused on the myriad details of the Harper government's administration. Isn't it interesting to see an interview more interested in the forest than the trees? Again, I'm not suggesting that there aren't plenty of trees worthy of attention. But wouldn't a big-picture interview like this be welcome, once in a while?

And finally - call it a bonus point: can you imagine Michael Ignatieff talking as intelligently, and thoughtfully, and with as much apparent authority--and as simply--about the economic and trade issues Harper addresses? Maybe you can. Certainly the Iggy camp is trying to put together a message of competence versus Harper incompetence. But if the Tories are able to showcase this Harper, it's not at all clear to me that Iggy will win the competence debate.

Bonus bonus point: Of course Iggy may be just as capable and competent as Harper. Stop guffawing: that's a very good thing.

About Iggy and those N.L. MPs

Thu, 05 Feb 2009 14:27:08 -0500

The conventional wisdom in newsrooms and among the bien-pensant across the country is that Parliament is dysfunctional and our political class embarrassing. But presented this week with an instance of sophisticated politicking, the commentariat have, almost without exception, cried bloody murder. What is wrong with these people?

The complaints about our dysfunctional Parliament are right, and the cause is obvious. In a parliamentary system, executive power is exercised, for all practical purposes, by the majority leader of the (essentially unicameral) legislative branch. That wouldn't necessarily be a problem, if the majority leader's ability to control the legislative agenda were constrained. But--in part because of his ability to bestow executive favors (like Senate appointments or targeted government spending), and in part because of party rules that allow a leader to give and take away riding nominations--a majority party leader has essentially unconstrained control of the legislative agenda. And, as a result, his executive power is essentially unchecked.

The fix is simpler in theory than in practice. In theory, breaking a leader's control over his caucus would mean recognizing a division between cabinet (or shadow-cabinet) and caucus. The cabinet--and here I include junior ministers and secretaries of state--are always whipped, because they are executive officers, and as such they are bound to support executive policy. (The same, I think, should apply to the shadow-cabinet, inasmuch as it represents an executive-in-waiting.) But caucus members who are not members of the cabinet have no such duty; they can be expected to support the initiatives and positions of their colleagues in cabinet (or shadow-cabinet), for that is what a party in Parliament is--a collection of like-minded parliamentarians. But they have no formal obligation to support the cabinet (or shadow-cabinet).

The practical challenge is to change expectations regarding the behavior of the caucus. Decades ago Pierre Trudeau derisively dismissed his backbench MPs as nobodies, and for some insane reason that attitude has been accepted as gospel truth. That has to change. And change means adjusting the attitudes and expectations of two institutions.

First, the parties themselves have to change. As long as a party leader controls nominations--whether through a party executive or directly--backbench MPs will always act as if whipped. An MP who might be perfectly willing to speak his mind--and the minds of his constituents--at the price of a cabinet appointment will clam up fast when the consequence is to be stripped of a nomination, and therefore (at best!) elected as an independent at the next election. But it's not as simple as amending a party constitution to remove this nomination-interfering power; the problem is a consequence of the leader-centric nature of political parties. The solution? Rather than making MPs beholden to their leader, why not make the leader beholden to MPs? Scrap direct elections, scrap conventions, and do what the Grits have just done to great success: allow MPs to select the leader. All of a sudden the power equation is flipped. MPs no longer rely on the leader for their jobs; now the leader must treat his MPs like MPs again.

But the parties don't operate in isolation; they operate to the incessant bleating of the national news media. And we've seen this week what the received wisdom in the media is: a party leader who allows any of the dozens of MPs in his party to express, publicly or privately, any sentiment at odds in any respect with any of his publicly or privately stated positions is a weak, ineffectual, and doomed leader.

This is nonsense. But as long as it is the prevailing attitude in the press, the parties--and particularly their leaders--will be unwilling to strike a new path. On the other hand, if--like Lawrence Martin in the Globe, and entirely unlike the Globe editorialists--the commentariat see the empowerment of individual MPs as a good thing, leaders will be more likely to take steps to empower their MPs, and thereby restore sophistication and maturity to Commons.

Is it pie in the sky? Maybe. But how about this: until it happens, any commentator who criticizes a party leader for allowing his (non-cabinet) MPs to act like MPs should be barred from complaining about the state of politics in Ottawa--unless he or she frankly concedes that dysfunction is his or her preference.

A Fiscal Churchill

Tue, 27 Jan 2009 23:17:53 -0500

I'm not feeling particularly eloquent right now, so I'll be blunt: Churchill was Churchill for two reasons: (1) he was always Churchill; that is, on the defining issue of his time, he held a consistent position for more than a decade before that position became politically popular; and (2) Munich; that is, Churchill's position only became politically popular because, for a decade, everyone else tried everything else, until only Churchill was left. (And even then he nearly didn't become premier.)

My point is that right now we're going through a period when everyone, but everyone, has subscribed to neo-Keynesean counter-cyclical fiscal principles. As of today, that includes the ostensibly-conservative Harper Tories. I understand the criticism Harper's taking from the right; but the fact is that Harper couldn't take a (deeply) fiscally conservative approach in this political climate, at least not without being flung to the very margins. There simply isn't an appetite for Freidman-esque fiscal policy right now.

But there will be. There will be, that is, if Keynesean policy fails - as a Freidmanian must believe will happen. But for the same reason the British public resisted Churchillian confrontation until every other path had been trod, the Canadian public will, I suggest, resist Freidmanian fiscal conservatism until "stimulus" has been tried and found lacking.

Maybe that day won't come; all but the ideologues can hope that stimulus will work, that we'll come out of this recession sooner than we otherwise would have, and will move forward on surer footing. But if stimulus doesn't work - if, as a fiscal conservative would anticipate, spending shallows but exacerbates the downturn, and expanding the money base triggers significant inflation - if, in the end, Liberal Keyneseanism and Tory Kenyeseanism fail - then there will, finally, ultimately, and if the stars align, be an appetite for conservatism.

But the time to stand for conservatism is not then, at the end; the time to stand is now, and throughout. Canada needs a fiscal Churchill; it needs someone who will speak out for fiscally conservative principles clearly and consistently, someone who's willing to be a political pariah, lampooned on the CBC and exiled by his party - and who, when everything else is tried, and fails, can lead the way out.

So Confused...

Tue, 27 Jan 2009 14:09:05 -0500

For two and a half years we were told that the Tories were bad because they were too ideological. But now we're being told that they're bad because they're not at all ideological. Wh-wh-gaaa!

I mean, either is a fair critique, in the abstract. And you could argue - as I'm sure many a tired media voice will - that the Tories themselves have gone from being ideological to being non-ideological in whiplash fashion.

I just want to know what the Goldilocks option was. What could the Tories have done that their media critics would have given them credit for?

Which is not to say I approve of the budget. I'm just calling a little BS on the predictably predictable coverage.

One of These Things is Not Like the Others

Fri, 16 Jan 2009 00:08:28 -0500

1) "The Star Tribune, saddled with high debt and a sharp decline in print advertising, filed a Chapter 11 bankruptcy petition Thursday night."

2) "The Tribune Company filed for bankruptcy protection in a federal court in Delaware on Monday, as the owner of The Los Angeles Times, The Chicago Tribune and the Chicago Cubs baseball team struggled to cope with mountains of debt and falling ad revenue."

3) "[W]hat if The New York Times goes out of business�like, this May? It�s certainly plausible. Earnings reports released by the New York Times Company in October indicate that drastic measures will have to be taken over the next five months or the paper will default on some $400 million in debt."

4) "Executives from Canwest Global Communications Corp. said yesterday that for the first time in its 10-year history the National Post newspaper turned an operating profit."

The Post isn't out of the woods, of course--no newspaper is, these days. The market was changing even before the slump; the slump has just highlighted and exacerbated this change. Unless and until all newspapers figure out how to be interesting and relevant in the internet age, profits will be elusive.

But those of us who think the Post is a healthy part of the national dialogue will be forgiven if we take a moment to lord the news over those who've been predicting the paper's demise since its inception.