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Today In Landmark First Amendment Cases

[ 40 ] March 13, 2012 | Scott Lemieux

A set of facts some readers may find amusing:

After he had obtained the signature page from his committee, Plaintiff inserted an additional, two-page section into his thesis without the knowledge or consent of his committee members. That section, entitled “Disacknowledgements,” began: “I would like to offer special Fuck You’s to the following degenerates for of being an ever-present hindrance during my graduate career….” It then identified the Dean and staff of the UCSB graduate school, the managers of Davidson Library, former California Governor Wilson, the Regents of the University of California, and “Science” as having been particularly obstructive to Plaintiff’s progress toward his graduate degree. Plaintiff later explained that he had not revealed the section to the members of his committee because he feared that they would not approve it.

[via Jacob]

Take the Substance, Leave the Tentherism

[ 63 ] March 13, 2012 | Scott Lemieux

To expand on the arguments made by Erik and a couple commenters, I had a schizophrenic reaction to Diane Ravitch’s essay on Arne Duncan. I’m inclined to think that her harsh critiques of the Obama administration’s education policies are right. What I don’t understand is why she decided to partially advance this persuasive critique using a bad legal argument and an actively dangerous argument about federalism.

First, Ravitch gives Duncan an “F” on whether he has “followed the law,” but I’m afraid it’s Ravitch who fails to understand how the contemporary administrative state actually works. Duncan is violating the rule of law, Ravitch asserts, because “Duncan has issued waivers to states that want to be relieved from NCLB’s impossible mandate of reaching 100 percent proficiency by 2014.” This violates Ravitch’s bad-junior-high-civics-textbook understanding of how the federal government should operarate: “cabinet members are not allowed to change the laws.”

But, of course, Duncan is not violating the law. Part D of NCLB explicitly authorizes the Secretary of Education to issue waivers, and placing conditions on such waivers is well within the authority of the Secretary. The extreme form of nondelegation Ravitch is applying here is almost comically anachronistic and unworkable; I would invite her to take a quick stroll through the Code of Federal Regulations. The executive branch makes policy in all kinds of ways that don’t usurp congressional lawmaking prerogatives. Ravitch may well be right that the waivers constitute bad policy, but she’s obviously wrong in arguing that they’re illegal, and she undermines her better arguments by doing so.

This mistake isn’t that big a deal in the broad scheme of things, since even under the current federal judiciary I’m not worried about the entire modern regulatory state being ruled unconstitutional. Given the current political circumstances, even worse is the bad argument with which she inexplicably decides to start her article. Duncan, she begins, gets an “F” in states’ rights:

No. Duncan has expanded the role of the federal government in unprecedented ways. He seems not to know that education is the responsibility of state and local governments, as defined by the Tenth amendment to our Constitution.

And Ravitch seems not to know (or, more likely, is pretending not to know because she’d like to give Duncan “Fs” in an artificially wide variety of categories), it’s well-established that if the federal government provides funding to states it can attach conditions to that spending. Any state can that doesn’t want to adhere to the federal standards doesn’t have to take the money. To all but the most extreme libertarian Ravitch’s argument proves too much. “President Johnson seems not to know that health care is the responsibility of state and local governments, as defined by the Tenth amendment to our Constitution. Medicare and Medicaid are violations of the precious autonomy of the states and their sacred power to allow the poor to die of treatable illnesses.” Either both of these arguments are right, or they’re both wrong and we should actually talk about the merits rather than bringing up constitutional arguments I would like to think had been permanently discredited decades ago.

And this kind of argument is particularly dangerous in the context of education, where a (usually selective and opportunistic) fetish for “local control” has been crucial to the resegregation of America’s schools. (For that matter, using Ravitch’s logic the use of the federal spending power to advance nondiscrimination violates the Tenth Amendment just as NCLB does, and must have been illegitimate when first used because it was “unprecedented.” Should the relevant sections of civil rights law be repealed?)

To reiterate, Ravitch’s substantive critiques of the Obama administration’s education policy are powerful and persuasive. The trend towards high-stakes standardized tests as a magic bullet is terrible policy. I just wish Ravitch would make the substantive case, rather than undermining it with procedural arguments that are clearly wrong and/or come from the school of Ron Paul. At a time when conservatives are using specious arguments about federalism to try to reverse the most important progressive legislation passed by Congress in several decades, to argue with the problem with bad federal education policy is that it’s federal rather than that it’s bad is to play into the hands of the most reactionary forces in American politics.

Defining “Honesty” Down Out of Existence

[ 30 ] March 13, 2012 | Scott Lemieux

Kaus’s attempt to defend Breitbart is indeed a classic example of how speculation about motives is usually not a very productive way of proceeding. Breitbart’s reckless disregard for the truth is so pervasive that it’s hard to believe that his disgusting smear of Shirley Sherrod was done in good faith. But, for all I know, Breitbart may well have convinced himself that he had a “legit point.” The more important issue is that it doesn’t really matter. Breitbart’s smear of Shirley Sherrod was dishonest, and whether the smear was willful or just a result of not properly finding out what the facts are is beside the point. She lost her job either way.

Let’s Get Some Cloture

[ 26 ] March 13, 2012 | Scott Lemieux

It’s a start.

But What About Her Countertops? Does She Own a Color TV?

[ 2 ] March 12, 2012 | Scott Lemieux

The idiocy never stops.

It Can Always Get Worse

[ 163 ] March 10, 2012 | Scott Lemieux

You would have thought than Steven Landsburg’s argument couldn’t possibly get any worse. Alas, as his follow-up strawman burning indicates, he is unable to clear the extremely low bar set by his initial foray into the debate. He starts by repeating his most fundamental error:

Over the last week, we’ve heard a lot from the people who (with a hat tip to one Joker), I now call “contraceptive sponges” — people who want others to pay for their contraception because — well, just because they don’t want to pay for it themselves.

It’s just amazing that Landsburg continues to write about this subject without bothering to familiarize himself with the most basic facts about the subject so he could stop embarrassing himself. Anyway, Sandra Fluke is not asking anybody else to pay for anything. Students at Georgetown law are required to purchase medical insurance if they don’t have it already. She is not asking other to pay for their contraception “because they don’t want to pay for it themselves.” This fundamental error makes the points that follow from it a non-sequitur:

Th[e argument that covering contraception is cheaper because insurance also has to cover childbirth, which is much more expensive] is might be true (though I haven’t seen any actual estimates of the number of childbirths prevented per dollar spent on contraceptive subsidies) but (and I am embarrassed to even have to point this out), so what? If we’re going to start making choices strictly on the basis of what’s cheapest, we should all stop eating.

[...]

First, it’s by no means clear that the externalities from childbirth are in fact on balance negative. Second, and more fundamentally, if you’re out to discourage childbirth, the best way to do it is to tax childbirth, not to subsidize contraception.

I…wow. First of all, the point of covering contraception is not to “discourage childbirth”; it’s to ensure that medical insurance covers basic medical expenses. More importantly, Landsburg’s entire attack on Fluke is premised on the idea that she’s asking “other people to buy her something.” This is not true directly because Fluke is, in fact, paying for insurance, and more broadly people who get insurance from employers are paying for it by getting medical insurance instead of wages as compensation. So the only argument available to Landsburg is that Fluke is indirectly “asking people to pay for contraception” because she’s getting a cross-subsidy from other insurance holders that don’t use contraception. This would still be a remarkably feeble argument, because it proves too much: it’s just an argument against the concept of insurance altogether. By Landsburg’s logic, people who expect their insurance to cover the medical care necessary to heal a broken leg are moochers asking other people to pay for it. People who use car insurance to repair the car are asking other people to pay for their repairs. People with fire insurance who file a claim to get compensation after their house burns down are just asking other people to pay them to get a new house, and so on. It’s a silly, self-refuting argument even granting Landsburg’s premise.

But it’s worse than this. As he remarkably fails to realize, if covering contraception is cheaper for the insurer, there’s no additional expense for anyone. There’s no subsidy, direct or indirect. Not only are Landsburg and Limbaugh not being asked to pay for anything, neither the insurance company nor other people getting the health care plan required by Georgetown Law. That he completely feels to grasp this obvious point and its implications and instead starts getting into irrelevant nonsense about how we can best discourage childbirth is incredible.

Both the original and follow-up arguments Landsburg makes are just jaw-dropping stuff. If it wasn’t for my previous familiarity with his punditry, I would have pegged them as a funny and vicious (if a little over-the-top) parody of libertarian economists, sort of a new Sokal hoax. Instead, we have someone making transparently dumb and ignorant — but sincere — arguments asserting that other people who are actually making rational arguments with some basic understanding of the issues involved are not fit to share the same public space and deserve some witless consideration of whether they are “sluts,” “prostitutes,” or “extortionists.” Without the attacks on Fluke Landsburg’s argument would be merely pathetic; with them, they’re utterly contemptible.

Free Ridin’

[ 87 ] March 10, 2012 | Scott Lemieux

One of the plaintiffs challenging the constitutionality of the Affordable Care Act doesn’t the government has the authority to compel her to purchase health insurance. Rather, she would prefer that the taxpayers pay her medical bills:

Mary Brown, a 56-year-old Florida woman who owned a small auto repair shop but had no health insurance, became the lead plaintiff challenging President Obama’s healthcare law because she was passionate about the issue.

Brown “doesn’t have insurance. She doesn’t want to pay for it. And she doesn’t want the government to tell her she has to have it,” said Karen Harned, a lawyer for the National Federation of Independent Business. Brown is a plaintiff in the federation’s case, which the Supreme Court plans to hear later this month.

But court records reveal that Brown and her husband filed for bankruptcy last fall with $4,500 in unpaid medical bills. Those bills could change Brown from a symbol of proud independence into an example of exactly the problem the healthcare law was intended to address.

[...]

Obama administration lawyers argue that the requirement is justified because everyone, sooner or later, needs healthcare. Those who fail to have insurance are at high risk of running up bills they cannot pay, sticking the rest of society with the cost, they argue. Brown’s situation, they say, is a perfect example of exactly that kind of “uncompensated care that will ultimately be paid by others.”

Exactly correct. This is precisely why the argument that the mandate in the ACA represents some kind of unprecedented violation of freedom by “forcing” people to join the health care market would, in a rational universe, be laughed out of court. Nobody in the actually existing health care market can “choose” not to enter the relevant market, because we don’t live in a conververtarian dystopia in which the non-wealthy have to go without emergency medical care. And this is precisely the kind of collective action problem the commerce clause was designed to allow the federal government to address.

There is Trouble With the Trees

[ 5 ] March 10, 2012 | Scott Lemieux

Rush v. Rush!

Getting Something for Your Wages (or Tuition) is Theft

[ 77 ] March 9, 2012 | Scott Lemieux

One of the reasons Slate has improved greatly over the years is that it not longer publishes the inadvertently self-paradoic ramblings of Steven Landsburg. (I particularly enjoyed his argument that you can’t tax the wealthy because other people will ultimately spend the money. Oh.) So when stalwart commenter gmack noted that Mr. Landsburg had weighed in on the Sandra Fluke story, I braced myself. Landsburg does not, at least, quite call Fluke a “slut.” But he does go all-asshole in defending Limbaugh’s particularly offensive analogy:

If the rest of us are to share in the costs of Ms. Fluke’s sex life, says Rush, we should also share in the benefits, via the magic of online video. For this, Rush is accused of denying Ms. Fluke her due respect.

But while Ms. Fluke herself deserves the same basic respect we owe to any human being, her position — which is what’s at issue here — deserves none whatseover. It deserves only to be ridiculed, mocked and jeered. To treat it with respect would be a travesty.

If you’re going to assert that someone’s position deserves no respect whatsoever, you’d better have a good argument to back it up. Alas, Landsburg’s counter to Fluke — or, more precisely, what he erroneously imagines Fluke’s argument to be — is not merely offensive but baldly stupid, and almost farcical in its comprehensive ignorance of the issues involved. Landsburg:

I expect there are respectable arguments for subsidizing contraception (though I am skeptical that there are arguments sufficiently respectable to win me over), but Ms. Fluke made no such argument. All she said, in effect, was that she and others want contraception and they don’t want to pay for it.

To his credit, Rush stepped in to provide the requisite mockery. To his far greater credit, he did so with a spot-on analogy: If I can reasonably be required to pay for someone else’s sex life (absent any argument about externalities or other market failures), then I can reasonably demand to share in the benefits. His dense and humorless critics notwithstanding, I am 99% sure that Rush doesn’t actually advocate mandatory on-line sex videos. What he advocates is logical consistency and an appreciation for ethical symmetry. So do I. Color me jealous for not having thought of this analogy myself.

There’s one place where I part company with Rush, though: He wants to brand Ms. Fluke a “slut” because, he says, she’s demanding to be paid for sex. There are two things wrong here. First, the word “slut” connotes (to me at least) precisely the sort of joyous enthusiasm that would render payment superfluous. A far better word might have been “prostitute” (or a five-letter synonym therefor), but that’s still wrong because Ms. Fluke is not in fact demanding to be paid for sex. (Not that there’s anything wrong with that.) She will, as I understand it, be having sex whether she gets paid or not. Her demand is to be paid. The right word for that is something much closer to “extortionist”. Or better yet, “extortionist with an overweening sense of entitlement”. Is there a single word for that?

But whether or not he chose the right word, what I just don’t get is why the pro-respect crowd is aiming all its fire at Rush. Which is more disrespectful — his harsh language or Sandra Fluke’s attempt to pick your pocket? That seems like a pretty clear call to me.

Let’s go through at least some of the more transparently idiotic aspects of Landsburg’s argument:

To start with the most glaring flaw, of course neither Landsburg nor Limbaugh will be “paying” for anything. The insurer that provides the health plan for students at Georgetown Law would be paying for it. Leaving aside books, room and board, and opportunity costs, Georgetown law costs about $47 grand a year, so this is not “picking anybody’s pocket” — Georgetown Law students receive health coverage as one condition of paying exorbitant tuition. The new requirement to cover contraception, similarly, is not giving something for nothing to ordinary employees, who get health insurance in lieu of wages in large part because employers receive substantial tax benefits to pay workers with health insurance rather than cash. UPDATE: Hogan notes in comments that I’m actually being too generous too Landsburg here: Georgetown law students are actually required to purchase the school-provided insurance package if they don’t already have it. Georgetown law students are actually paying directly for what Landsburg claims he’s paying for.
Even if Landsburg and Limbaugh wouldn’t be paying for Sandra Fluke’s contraception — hence destroying their entire argument in one fell swoop — could we at least say that other Georgetown students who don’t use contraception are paying for it? Not necessarily. After all, an unintended pregnancy would be far more expensive for an insurer than the modest cost involved in contraception. It’s far from obvious that not covering contraception would allow Georgetown to get a cheaper health plan, and Landsburg cites no evidence for his assertion.
I note here that we don’t know anything about Sandra Fluke’s sex life and nothing in her testimony said anything about it. Women may, for a variety of reasons, use the pill during periods of celibacy. The only people bringing Sandra Fluke’s “sex life” into the discussion are reactionary thigh-rubbers. Her actual testimony says absolutely nothing about whether she will have sex with or without Georgetown offering contraceptive coverage as part of its health plan.
In a gentlemanly concession, Landsburg argues that Fluke is not a “slut” — too joyless! — and only sort of a whore. Rather, she is an “extortionist.” Alas, Landsburg, in addition to being offensive, doesn’t seem to understand what an “extortionist” is. What, exactly, is Fluke threatening to do to Georgetown Law if its health care package doesn’t cover insurance? Fluke is not in a position to make any “demands.”
The larger problem is that, as is his trademark, Landsburg’s abstractions are completely divorced from the actual policy context. Perhaps Landsburg would prefer a conservertarian dystopia in which people are simply denied health care if they can’t pay cash, and in the interim would settle for employers being able to get tax breaks for providing wages in the form of “insurance” that isn’t required to actually cover anything more than three aspirins a month. But under our actually existing system, in which health insurance is primarily employer-based and employers get tax advantages for paying wages in the form of insurance, it’s obviously necessary to require that this insurance actually cover basic medical care. Requiring that contraception be covered is no more “picking someone’s pocket” than requiring that, say, knee surgeries be covered.
Once we consider the actually existing policy universe, the grotesque sexism of the arguments being made by Landsburg and Limbaugh becomes readily apparent. Have either of them freaked out because men are “picking the pockets” of mythical taxpayers because they use their insurance to get a prostrate exam? If getting blood pressure meds partially covered by insurance allowed a man to resume sexual activity, would it ever occur to Landsburg or Limbaugh that a “logical consistency and an appreciation for ethical symmetry” requires that man to send them sex tapes? Of course not.

Someone’s arguments here are certainly not entitled to the slightest respect, but it’s not Fluke’s.

UPDATE: More good commentary here.

UPDATE II: More here.

Yoo Have to be Kidding

[ 40 ] March 9, 2012 | Scott Lemieux

~~Shorter~~ Verbatim John Yoo and John Bolton: “Constitutional principles seem to be mere inconveniences to Mr. Obama, however.”

They, however, have a very principled argument. Admittedly, in this case Obama is doing something plainly within the power of the executive branch — directing military and intelligence agencies how to act in ways that contravene no act of Congress — while Yoo and Bolton believed that the president could actually ignore legislation passed by Congress. However, Obama is doing this to advance policy goals that John Yoo and John Bolton don’t support. See the crucial difference?

I conclude with an obligatory link to Stephen Holmes on Yoo.

How To Speak Wingnut: Some New Definitions

[ 100 ] March 9, 2012 | Scott Lemieux

Puzzled about this new language spoken by Republicans, which involves English words used in a way that produces sentences that make no sense? I’m here to help! In collaboration with the with Critical Race Theorist and man who once saw a book by Derrick Bell in the library without immediately burning it Jesse Taylor, allow me to fill in a couple of gaps.

Radicalism (n.) 1. Remembering that all of American history through 1964 happened. (Credit: entirely to Jesse.)

2. Believing that multiple centuries of slavery and apartheid might have effects after January 1, 1965. “Derrick Bell is such a radical he believed that freedom of choice plans and Milliken v. Bradley did not lead to integrated schools.”

Alinskyite (adj.) 1. Any Democrat to the left of Zell Miller who wins an election.

2. Any random thing a wingnut doesn’t like. “Derrick Bell is so radical he holds the Alinskyite idea that law is a social construct. Alinsky was so influential he invented legal realism even before he was born.”*

*Actual example!

Slut (n.) 1. A woman who has sexual relations without getting the prior approval of Ross Douthat, Rush Limbaugh, and a supermajority of the United States Conference of Catholic Bishops. “If that slut thinks the insurance her employer is getting a huge tax break to provide her instead of wages should cover basic medical care, she should at least send me some sex tapes.”

Judicial activist (n.) 1. Any jurist who fails to recognize that the Constitution enacted the most recent platform of the Texas Republican Party. “Ruth Bader Ginsburg is such a radical judicial activist that she doesn’t acknowledge that the Fourteenth Amendment prevents different counties from using different vote counting methods if it might result in Al Gore being elected, and not in any other case.”

Hopefully this helps!

Still Hack of the Century

[ 16 ] March 9, 2012 | Scott Lemieux

Glenn Reynolds.

It’s continuing to pile on one conspiracy theory laden update after another to “explain” a story that’s 120-proof bullshit that makes it extra special.