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Undue Burden

[ 2 ] July 29, 2014 |

5CA holds what should be obvious – Mississippi’s most recent anti-abortion statutes violate a woman’s reproductive rights:

Mississippi’s last abortion clinic won a major victory at the conservative 5th Circuit of Appeals, which said a law intended to make the state “abortion-free” and close the clinic was unconstitutional.

“Pre-viability, a woman has the constitutional right to end her pregnancy by abortion,” wrote E. Grady Jolly, a Reagan appointee, for the panel. The law requiring that abortion providers have admitting privileges to local hospitals, which Mississippi’s Jackson Women’s Health Organization had been unable to obtain, “effectively extinguishes that right within Mississippi’s borders.”

The judges’ hands were tied by the fact that a separate 5th Circuit panel had already said an identical law in Texas, where it has closed about half of the state’s abortion clinics, was constitutional even if it had no basis in medical necessity. Today’s ruling, which is on the preliminary injunction, says the law is only unconstitutional as it has been applied to the Jackson clinic, citing a principle that states can’t violate their citizen’s rights by claiming they can go out-of-state.

The admitting privileges law was scheduled to take effect in July 2012, but was blocked by a lower court, which said if the state got its way, the result would be “a patchwork system where constitutional rights are available in some states but not in others.”

Whether Anthony Kennedy is willing to ascribe any content to the “undue burden” standard, even in such an extreme case, is unclear.

Meanwhile, America’s most trusted news source has a sneak preview of Mississippi’s next legislative session.

 

WWI Nutshell!

[ 17 ] July 29, 2014 |

Your World War I graphic of the day:

A couple thoughts:

  • The Western Front and the Isonzo Front give an incomplete understanding of the static nature of World War I warfare; there was considerably more movement in the east than in the west.
  • Nevertheless, the ability of a country like Serbia to hold its own for as long as it did does suggest important differences in military tactics and technology between 1914 and 1940.
  • It’s easy to appreciate the potentially decisive impact of the Ludendorff Offensive, especially in the wake of successful Central Power offensives in 1917.

Chait on Israel

[ 26 ] July 29, 2014 |

Count Jonathan Chait among the long-time supporters of Israel depressed about the nation’s dead-end stance toward Gaza:

The story further reveals that Netanyahu appeared on several occasions to approach the brink of agreement, but pulled back in the face of right-wing pressure within his coalition. Numerous figures in the story attempt to plumb the Israeli Prime Minister’s psychology — does he truly have it in him to go over the brink and make peace, or is he merely bluffing? — but the exercise turns out to be ultimately futile. Either Israeli politics or Netanyahu’s own preferences kept Netanyahu from striking a deal. And since that failure, the most moderate leadership the Palestinians ever had, and probably ever will have, has been marginalized.

Viewed in this context, the campaign of Israeli air strikes in Gaza becomes a horrifying indictment. It is not just that the unintended deaths of Palestinians is so disproportionate to any corresponding increase in security for the Israeli targets of Hamas’s air strikes. It is not just that Netanyahu is able to identify Hamas’s strategy — to create “telegenically dead Palestinians” — yet still proceeds to give Hamas exactly what it is after. It is that Netanyahu and his coalition have no strategy of their own except endless counterinsurgency against the backdrop of a steadily deteriorating diplomatic position within the world and an inexorable demographic decline. The operation in Gaza is not Netanyahu’s strategy in excess; it is Netanyahu’s strategy in its entirety. The liberal Zionist, two-state vision with which I identify, which once commanded a mainstream position within Israeli political life, has been relegated to a left-wing rump within it.

Couple of points. First, going forward into the future, I have no idea how this turns out well toward Israel. Netanyahu seems to count on only ally as necessary–the Republican Party in the United States. Yes, there are still many many Democrats who are 100% on the side of Israel as well and AIPAC’s power in U.S. politics can’t be overestimated. But as they insult Democratic presidents and blow off John Kerry, they are going to lose support. And if Israel is starting to lose people like Jonathan Chait, then it’s support in the U.S. is showing real signs of eroding. Yes, Chait is still holding on to wrong ideas on this issue–such as his claim that the Palestinians are to blame for the decline of the Israeli left. But still, it’s a remarkable essay.

Within their own land, the demographic crisis is inevitable, leading to the nation needing to choose between inclusion and going full apartheid. It’s pretty clear that the Israeli public is moving toward the latter choice, not only in Gaza but in right-wing intimidation and violence against left-wing Israeli critics of the violence. Netanyahu is doing nothing but strengthening Hamas. If anyone can point out some way these attacks help Israel in the long run, let me know because I can’t think of any.

McDonald’s Ruled a “Joint Employer”

[ 22 ] July 29, 2014 |

Big news for workers’ rights today. The National Labor Relations Board has ruled McDonald’s a “joint employer.” This basically invalidates the claim used by fast food corporations that franchise out the stores that they are not responsible for what happens to the workers. Of course this is going to be challenged, but it opens up an attack on one of the ways corporations protect themselves from liability while undermining workers’ rights. The ability of workers to, say, sue McDonald’s for the bad working conditions of their stores would be a major gains in labor rights.

Lydia DePillis wrote on the potential of this decision a couple of weeks ago
:

That may be true of some franchise models. In the case of McDonald’s, though, advocates argue that the fast-food giant’s franchise agreement and actual business practices are so restrictive and pervasive that franchise owners have little latitude with their staffing arrangements and no choice but to keep labor costs as low as possible. In a somewhat unusual arrangement, McDonald’s even controls its own real estate and extracts exorbitant rents from its franchisees, who are on the hook for expensive renovations. All that has driven profit margins down to the point where former McDonald’s executive Richard Adams, now a consultant, estimates that about a quarter of franchises don’t even generate positive cash flow for the owner. That doesn’t give them many options.

….

It’s not just fast food, though: The Browning-Ferris decision could impact janitors, nurses, assembly-line techs, clerical workers, you name it. But what does having a joint employer look like in practice? How do you bargain with two bosses at once?

For the closest example of how this might work, look to show business, says Catherine Fisk, a law professor at the University of California at Irvine.

The big movie studios, after all, haven’t directly employed the people they depend on — like writers, set designers and lighting techs — since the 1940s. But they all know they have to deal with the unions that represent them, which set standard rates for their services. “You get access to all that labor, but you’re going to pay minimum terms,” says Fisk. “People who work in Hollywood recognize that if they all start working for half as much, writers won’t be able to pay their mortgages.”

Things could work similarly in other types of service industries, if it were clear that a large employer couldn’t just pick the contractor that agreed to provide labor for cheap.

Your Huddled Masses Yearning to Breathe Free

[ 80 ] July 29, 2014 |

What is life like inside the immigrant detention centers the U.S. has set up to house the thousands of migrants fleeing Central American gang and drug violence?

I went down to Artesia, New Mexico last week to see for myself what has become of these vulnerable families. What I found brought me to tears. Mothers and their children are being hidden away, held in inappropriate detention facilities without access to adequate services, medical care, or legal counsel. And they are being deported in the middle of the night without warning and without the opportunity to a fair hearing.

I was able to speak first-hand with several of the moms, all who shared their feelings of anxiety and hopelessness. I could see the fear and desperation in their eyes. Many of the moms are young and some have been recently widowed, with painful stories of domestic abuse and wide-spread violence driven by drug cartels and gangs. Their stories reflect what the research has consistently documented: increasing rates of gender-based violence in Central America, where rape is now a common fate for women and girls as young as 8-years-old. In fact, in Honduras, gender-based violence is now the second highest cause of death for women of reproductive age. And yes, while these mothers themselves were targets of violence in their home communities, what ultimately drove these mothers to flee was not their own safety. They were fleeing for the sake of their children, many of whom were just too little to make the journey on their own.

One mother, Carla, told me her story while weeping, her two-year old daughter wiping her mother’s tears with visible concern on her round face. Carla fled Guatemala City after her husband was murdered. Once apprehended by Border Patrol, she and her daughter were held in a freezing, crowded cell and she was denied a blanket for her daughter. Carla had to remove her own t-shirt just to try to keep her daughter warm. She suffered the same conditions when she was transferred to Arizona, where officers laughed and insulted both her and her daughter, calling them “poor” and other names. When we met, Carla told me that her daughter had been suffering from severe diarrhea for more than five days, and that the doctor insisted she just keep giving her more water. In fact, all of the mothers I spoke to informed me that their children were suffering from some sort of dietary issue, whether it was diarrhea, not eating, or losing weight. I was told over and over again, “there is no medicine here, just water.” Carla said she had to beg for more than 24 hours just to get a diaper for her daughter.

These are basically inhuman conditions and are the official American response to a refugee crisis. If we aren’t going to allow people into our nation escaping horrifying violence, then what do our values mean? And then even if we aren’t sure we are going to allow them into our nation, is it that hard for a nation this wealthy to provide humane conditions while we figure out what to do? The answer to that question of course is no, it is not that hard. We could obviously provide diapers for babies. And we don’t.

….On how U.S. policies have made the Central American crisis much worse.

Unlike Its Opponents, People Who Supported the ACA Wanted it to Work

[ 27 ] July 29, 2014 |

Josh Blackman offers another attempt to argue that Congress actually intended the federal exchanges the ACA established not to work. Inevitably, it’s transparently wrong because like many ideological opponents of the ACA he appears to be incapable of understanding what proponents of the ACA were actually trying to accomplish.

Any such argument, as we know, starts with the nearly insurmountable hurdle of ascribing an intent to the drafters and enacters of the ACA that (aside from some stray comments from one consultant that 1)do not suggest that a denial of subsidies would be permanent and 2)are inconsistent with what the consultant assumed in 2010 and explicitly argues in 2014) is wholly rejected by said drafters and enacters and is held only by the most fanatical opponents of the ACA. Blackman, needless to say, cannot adduce any actual supporter of the ACA who agrees with his interpretation, a rather serious problem since the bill was written and enacted by supporters, not opponents. Instead, he tries to infer an intent to create federal exchanges that wouldn’t work from the structure of the Medicaid expansion:

As further evidence of legislators’ state of mind, we could take the fact that the Affordable Care Act’s Medicaid expansion worked exactly on this theory of carrots and sticks. Uncooperative states, and their residents, would be punished.

In 2010, Arizona inquired about what would happen if it declined to expand its Medicaid coverage under Obamacare. The federal government replied that it would eliminate its contribution to the state’s Medicaid budget entirely. The Department of Health and Human Services sent Arizona Governor Jan Brewer an ominous and pointed letter: “In order to retain the current level of existing funding, the state would need to comply with the new conditions under the ACA.” This observation was followed by a stark warning: “We want you to be aware that it appears that your request…would result in a loss of [all] Medicaid funding for Arizona.”

This argument fails on multiple levels:

  • It completely fails to understand the point of cooperative federalism.  The legislators who voted for the ACA were not trying to “punish” states or their citizens — they were trying to offer a good enough deal that states would agree to expand Medicaid coverage.  The didn’t think that the citizens of Arizona would be punished; they assumed Arizona would take the money, just like it takes the money to establish a state drinking age.
  • The original structure of the Medicaid expansion also makes clear how nonsensical the Halbig interpretation of the ACA is.  Asserting that the ACA intended the federal exchanges not to work suggests that the legislators assumed that the vast majority of states would establish exchanges and were surprised by the scope of the opposition at the state level.  But the fact that Congress made all Medicaid funding contingent on accepting the expansion indicates that Congress fully anticipated substantial state resistance.  If Congress didn’t think that offering a huge pool of money funding more than 90% of the expansion was sufficient incentive for some states to take it, why on earth would it think that the mild disincentives inherent to not setting up state exchanges (citizens do not get subsidies…but are also therefore exempt from the mandate) would be sufficient?  The answer, of course, is that it didn’t.  It assumed that some states would be unwilling and/or unable to establish exchanges.
  • Which brings is to the final crucial point: Blackman cannot explain why Congress bothered to authorize the federal government to establish the state exchanges at all.  If the federal backstop was absent, then the Blackman/Halbig interpretation would be plausible.  But Congress did create a backstop, because it assumed that some states wouldn’t establish exchanges, but wanted the exchanges to be operative in all 50 states.  Blackman is asking us to believe that Congress correctly anticipated that some states wouldn’t establish exchanges, created a mechanism that would correct this problem, but then intended for the solution not to work.  To restate this argument is to refute it; it’s an absurd reading of the statute.  Which is why (one very ambuguous and repudiated coming and going exception aside) no supporter of the statute agrees with it.

I’ve said it before and I’ll probably have to say it again: reading people who are fundamentally hostile to the ACA in principle trying to explain its objectives is like watching an elephant trying to play a toy piano.  Projection is a poor means to determine legislative intent.

…see also.  And definitely read Beutler on Halbig troofers.

Today’s Frivolous Anti-ACA Lawsuit

[ 56 ] July 29, 2014 |

One of the endless series of ad hoc legal challenges to the ACA is an argument (touted by, among others, syndicated columnist William F. George) that the ACA is unconstitutional because it violated the Origination Clause (which requires “Bills for raising Revenue” to originate in the House.) A unanimous D.C. Circuit panel has properly rejected this argument:

The purposive approach embodied in Supreme Court precedent necessarily leads to the conclusion that Section 5000A of the Affordable Care Act is not a “Bill[] for raising Revenue” under the Origination Clause. The Supreme Court’s repeated focus on the statutory provision’s “object,” and “primary purpose,” makes clear, contrary to Sissel’s position, that the purpose of a bill is critical to the Origination Clause inquiry. And after the Supreme Court’s decision in NFIB, it is beyond dispute that the paramount aim of the Affordable Care Act is “to increase the number of Americans covered by health insurance and decrease the cost of health care,” not to raise revenue by means of the shared responsibility payment.

Will Executions By Torture Threaten the Death Penalty?

[ 77 ] July 29, 2014 |

You’ve probably heard about the latest horribly botched execution:

Wood’s execution dragged on for so long that at the midpoint, his lawyers filed an emergency appeal to stop the procedure and called on Justice Anthony M. Kennedy to intervene. Wood died before the federal court could respond, and Kennedy turned down the lawyers’ request. After Wood was pronounced dead, the Arizona Supreme Court ordered that the state “preserve any drug labels and unused drugs pertaining to the execution of Mr. Wood.”

The two-hour execution was just the latest debacle made possible by an ever more familiar combination of state secrecy, untried protocols being tested for the first time on live human beings, and a judicial system that can’t quite make up its mind about how much gasping and coughing is reasonable in a state-sanctioned killing. The new wrinkle is that this time we must endure the spectacle of witnesses to the execution fighting over how much suffering they saw.

Another exhibit Kozinski can use in his campaign to bring back the firing squad.

The optimistic take is that given the choice between a more visibly brutal death penalty and abolition, the public will choose the latter. I’m not sure. Most states have either abolished the death penalty or almost never use it. In the relatively small minority of states that are responsible for the vast majority of executions…I’m not sure that explicit brutality or botched executions will matter. I hope I’m wrong.

Nixon on Panda Sex

[ 18 ] July 28, 2014 |

I’m not saying this is on the level of LBJ ordering pants, but Richard Nixon talking about panda mating patterns is not something you expected to hear when you woke up this morning. And look, he got his information from Bob Haldeman, so you know it’s reliable!

Open Comment on Comment Registration

[ 198 ] July 28, 2014 |

All,

We’ve now completed a week-long comment registration trial.  This post should serve as an open thread for how this week has gone.  Note that I’m still processing a few password requests, so if you can’t register (and note that WordPress registration is different than LGM registration) please let me know (address on far right sidebar).  With respect to metrics, no noticeable change in traffic/usage, commenting down by about 30%.

Best,

Management

Virginia Is For Lovers

[ 66 ] July 28, 2014 |

Another domino falls.

The Hillary Juggernaut

[ 174 ] July 28, 2014 |

The fundamentals in 2016 are unbelievably in favor of a Hillary blowout.

Obviously things can change of course.

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