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“Don’t Look At Us. We Didn’t Do it.”

[ 96 ] February 26, 2015 |

You can accuse the co-ACA Troofer-in-Chief of many things, but having shame is not one of them:

“If they’re not looking at some kind of contingency plan, I think that’s irresponsible. It’s kind of like hostage-taking,” said Jonathan Adler, a law professor at Case Western Reserve University and one of the architects of the legal challenge.

I can’t even. The problem with the argument is that Adler and Cannon are both taking and shooting the metaphorical hostages, and they’re asking Obama to tell the public that everyone is fine while the hostage-takers look for a getaway car.

And what Adler is asking is for the Obama administration to lie to further his campaign to willfully misread the ACA to strip insurance from millions of people. There is no meaningful contingency plan the administration can put into action. They cannot force Republicans in Congress to pass anything (let alone anything that would make the problem better rather than worse.) They cannot make states establish exchanges. They cannot repeal basic economic facts. The fate of the newly uninsured will be mostly beyond their control, unless Adler thinks that the administration’s response should be “John Roberts has made his decision, now let him enforce it.”

If the troofers can eke out a bare Supreme Court majority for their argument, then the health insurance markets in a majority of states will thrown into chaos. This situation will not change in many of the states anytime soon, and the result will be plenty of unnecessary suffering and death. That’s not a threat; it’s a fact. Adler should own it, not join his political allies in pretending that there’s some magic fix Obama will pull out if his hat after it happens.

These Things I Believe

[ 26 ] February 26, 2015 |

Dutch beer available in North America is indeed the worst.

And while we’re dealing with arbitrary Deadspin lists, this is very solid. Craig might be the most irritating and least funny recurring character on a first-rate sitcom ever. I would put Chris Traeger at #30, and maybe move Anne Perkins and especially Dr. Saperstein up a notch, but otherwise it seems about right.

The War Against Rahm

[ 85 ] February 25, 2015 |

Excellent analysis from Weigel. One of the many interesting takeaways is Emmanuel’s failure on the city council races:

Emanuel’s weakness was felt all across the ballot. He’d created a super-PAC, Chicago Forward, to bail out 17 of his allies on the council and to beat progressive incumbents. Only seven of them won outright: Will Burns, Mike Zalweski, Danny Solis, Robert Maldonado, Margaret Laurino, Pat O’Connor, and Debra Silverstein. The rest were forced into runoffs, including Deb Mell, the sister-in-law of disgraced former Governor Rod Blagojevich. Meanwhile, Chicago Forward had lobbed mailers at two aldermen–Scott Waguespack and John Arena–who’d asked the SEC to investigate the legality of donations to Emanuel from the executives of companies managing the city’s pension funds. Arena narrowly missed a win and will head to a runoff; Waguespack won outright.

It was not all progressives wanted, but it was not what the super-PAC had wanted either. The progressive bloc was expected to expand to 12 of the council’s 50 seats.

“The good guys won Round One,” said Working Families Party national director Dan Cantor in a statement. “Forcing Mayor 1% into a run-off is a remarkable achievement. Along with the run-off, the progressive caucus on the Council is poised to make gains.”

Perlstein explains how Emmanuel was forced into a runoff:

Perhaps what turned some voters against Rahm at the last minute—or motivated them to go to the polls in the first place on a cold Chicago day that started out in the single digits—was an Election Day exposé that appeared in the British paper the Guardian by investigate reporter Spencer Ackerman. “The Disappeared” revealed the existence of Homan Square, a forlorn “black site” that the Chicago Police operate on the West Side.

There, Chicagoans learned—many for the first time—arrestees are locked up for days at a time without access to lawyers. One victim was 15 years old; he was released without being charged with anything. Another, a 44-year-old named John Hubbard, never left—he died in custody. One of the “NATO 3” defendants, later acquitted on most charges of alleged terror plans during a 2012 Chicago protest, was shackled to a bench there for 17 hours.

It “struck legal experts as a throwback to the worst excesses of Chicago police abuse, with a post-9/11 feel to it,” the Guardian reported. And for a candidate, Rahm Emanuel, who ran on a message he was turning the page on the old, malodorous “Chicago way,” the piece contributed to a narrative that proved devastating.

Indeed, the mayor faced a drumbeat of outstanding journalistic exposés all throughout the campaign. The Chicago Sun-Times reported on Deborah Quazzo, an Emanuel school board appointee who runs an investment fund for companies that privatize school functions. They discovered that five companies in which she had an ownership stake have more than tripled their business with the Chicago Public Schools since she joined the board, many of them for contracts drawn up in the suspicious amount of $24,999—one dollar below the amount that required central office approval. (Chicago is the only municipality in Illinois whose school board is appointed by a mayor. But activists succeeded—in an arduous accomplishment against the obstruction attempts of Emanuel backers on the city council—to get an advisory referendum on the ballot in a majority of the city’s wards calling for an elected representative school board. Approximately 90 percent of the voters who could vote for the measure did.)

The Chicago Tribune reported that of Emanuel’s top 106 contributors, 60 of them received favors from the city. Another in-depth investigation discovered that City Hall had lied repeatedly about a signature initiative of the Emanuel years, automated cameras that issue tickets for the running of red lights. The administration insisted the cameras led to a 47 percent decline in “T-bone” crashes, when the true number was 15 percent—and they also caused a corresponding 22 percent increase in rear-end collisions. That reinforced suspicions that the cameras weren’t installed for the safety of “the children,” as Emanuel sanctimoniously insists, but are a revenue grab, a regressive tax that falls disproportionately on the poor.

I have no idea if the anti-Rahm movement can finish the job — evidently, Garcia is a significant underdog — but I hope so. Moral victories are nice but victory victories are better.

Today In Statutory Interpretation

[ 38 ] February 25, 2015 |

I’m agnostic about the outcome in today’s other case, Yates v. U.S.  But two passages from Kagan’s dissent are worth quoting.  This is the one that will get the attention:

While the plurality starts its analysis with §1519’s heading, see ante, at 10 (“We note first §1519’s caption”), I would begin with §1519’s text. When Congress has not supplied a definition, we generally give a statutory term its ordinary meaning. As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that possesses physical form.” A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in §1519, as noone here disputes, covers fish (including too-small red grouper).

But with respect to a certain other case the Supreme Court will be hearing next month, this paragraph is more relevant:

That is not necessarily the end of the matter; I agree with the plurality (really, who does not?) that context matters in interpreting statutes. We do not “construe the meaning of statutory terms in a vacuum.” Tyler v. Cain, 533 U. S. 656, 662 (2001) . Rather, we interpret particular words “in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989) . And sometimes that means, as the plurality says, that the dictionary definition of a disputed term cannot control. See, e.g., Bloate v. United States, 559 U. S. 196, n. 9 (2010). But this is not such an occasion, for here the text and its context point the same way. Stepping back from the words “tangible object” provides only further evidence that Congress said what it meant and meant what it said.

This a concise explanation for why the ACA’s opponents needed to invent a fantasy alternate history of the statute. Nobody really disputes that statutory language has to be read in the context of the structure and purpose of the statute as a whole, and doing so yields a clear answer.  Even if the isolated phrase “Exchange established by the State” represents a “glitch” — as the troofers themselves thought before their constitutional challenge failed and they needed another straw to grasp at — then the case is over; the I.R.S was doing exactly what it’s supposed to do, interpreting the statute as not being at war with itself. Hence “the Moops invaded Spain,” only that reading makes no sense on its face and is inconsistent with the understanding of all relevant actors. (And while we are of course bound by what Congress enacted, not by what by what members of Congress subjectively intended, the actual views of the people who drafted and voted for the legislation are certainly relevant evidence when determining the purpose of the statutory scheme.)

…I should be clear that I’m just quoting Kagan to illustrate a point.  In terms of whether this reveals anything about how King v. Burwell will actually be decided, I’m definitely on Team Bagenstos:

I should note, however, that Brianne Gorod sees reason for optimism.

Today Among Our Benevolent Local Overlords

[ 30 ] February 25, 2015 |

From the statement of facts in Kennedy’s opinion for the Court today in North Carolina Board of Dental Examiners v. Federal Trade Commission:

In the 1990’s, dentists in North Carolina started whiten­ing teeth. Many of those who did so, including 8 of the Board’s 10 members during the period at issue in this case, earned substantial fees for that service. By 2003, nondentists arrived on the scene. They charged lower prices for their services than the dentists did. Dentists soon began to complain to the Board about their new competitors. Few complaints warned of possible harm to consumers. Most expressed a principal concern with the low prices charged by nondentists.

Responding to these filings, the Board opened an inves­tigation into nondentist teeth whitening. A dentist mem­ber was placed in charge of the inquiry. Neither the Board’s hygienist member nor its consumermember par­ticipated in this undertaking. The Board’s chief opera­tions officer remarked that the Board was “going forth to do battle” with nondentists. The Board’s concern did not result in a formal rule or regulation reviewable by the independent Rules Review Commission, even though the Act does not, by its terms, specify that teeth whitening is “the practice of dentistry.” Starting in 2006, the Board issued at least 47 cease-and­-desist letters on its official letterhead to nondentist teeth whitening service providers and product manufacturers.


These actions had the intended result. Nondentists ceased offering teeth whitening services in North Carolina.

Some local regulations of business are, of course, valuable protections of the public interest. Some are straightforward protection rackets. The one at issue here is pretty clearly one of the latter, and one appropriate remedy for this kind of regulation is the application federal antitrust law.

Today’s case held that the Board of Dental Examiners was not exempt from the Sherman Act. While state actors are exempt from federal antitrust law, nominal state entities in which the state delegates to business interests with minimal supervision don’t qualify for the state action exemption. The four Democratic nominees and Chief Justice Roberts sided with the majority. Alito (for Scalia and Thomas) sided with the sovereign dignitude of the states over the interests of consumers.


[ 75 ] February 25, 2015 |


Why Court-Packing Wouldn’t Work

[ 68 ] February 24, 2015 |

Ian Millhiser has an interesting piece for Slate, putting the potential for a Supreme Court ruling gutting the ACA in the context of the constitutional struggle that led to FDR’s (legal but not normative) proposal to pack the Court.

Despite the title, it should be emphasized that Ian concludes that the failure of FDR’s proposal “was for the best.” Leaving aside the normative question of judicial independence — which, when dealing with an high appellate court that issues constitutional rulings but is not limited to constitutional rulings, is a complicated one — I agree, and I think it’s worth addressing another reason. Court-packing would not have been an effective long-term response to the Four Horsemen + the sporadic winger version of Owen Roberts. This is true for the same reason that the idea briefly beloved of Romney- and/or Paul-curious lefties that a Republican president is no big deal because a 40+ Democrats in Congress could just serially reject all of a Republican president’s judicial and executive branch nominees was really dumb. Once court-packing was established as an acceptable norm, Republicans certainly wouldn’t abjure using it. So perhaps Congress would have added some Supreme Court seats in 2009 and gotten Obama nominees confirmed, only it probably wouldn’t have helped much because they would have been dealing with a Court where the justice at the 25% quartile of conservatism had to turn to his metaphorical left to see Sam Alito. The more ideologically homogenous Republican Party conference in the Senate would be better advantaged in the long-run to take advantage of court-packing, so on balance Republicans would almost certainly get a disproportionate share of nominees confirmed and this nominees would be more ideologically consistent and radical. And, in addition, the disequilibria produced by constitutional hardball generally favors conservative interests over liberal ones in the long run.

The real point of bringing up court-packing is to remind the public that the Supreme Court is a fundamentally political institution. If this exercise in making law out of nothing at all being taken seriously by the Supreme Court doesn’t convince you, nothing will.

Windy City Gulag

[ 176 ] February 24, 2015 |

Remarkable reporting by Spencer Ackerman that you should read:

The Chicago police department operates an off-the-books interrogation compound, rendering Americans unable to be found by family or attorneys while locked inside what lawyers say is the domestic equivalent of a CIA black site.

The facility, a nondescript warehouse on Chicago’s west side known as Homan Square, has long been the scene of secretive work by special police units. Interviews with local attorneys and one protester who spent the better part of a day shackled in Homan Square describe operations that deny access to basic constitutional rights.

Alleged police practices at Homan Square, according to those familiar with the facility who spoke out to the Guardian after its investigation into Chicago police abuse, include:

  • Keeping arrestees out of official booking databases.
  • Beating by police, resulting in head wounds.
  • Shackling for prolonged periods.
  • Denying attorneys access to the “secure” facility.
  • Holding people without legal counsel for between 12 and 24 hours, including people as young as 15.

At least one man was found unresponsive in a Homan Square “interview room” and later pronounced dead.


ACA Trooferism Roundup

[ 21 ] February 24, 2015 |

The IRS Issued Tax Credits to Cover Up BENGHAZI!!!!!!!

[ 13 ] February 24, 2015 |

If the facts are on your side, pound the facts into the table. If the law is on your side, pound the law into the table. If neither the facts nor the law are on your side, pound the Fox News talking points into the ground:

That Cannon is defending his case by nodding like a Fox News bobblehead to an unrelated pseudo scandal is not anomalous. In both the media and in their briefs to the Supreme Court, the law’s challengers have papered over weaknesses in their historical and legal arguments with conservative bromides familiar to talk radio consumers, Fox News viewers, and recipients of anti-Obamacare talking points.

This kind of conservative argumentum ad reptilis, has a successful track record with at least one conservative justice on the Supreme Court. During oral arguments in the constitutional challenge to the Affordable Care Act three years ago, Antonin Scalia made reference sua sponte to the “Cornhusker Kickback”a short-lived special deal for Nebraska in the Senate health care bill that became a metaphor on Fox News for the ACA’s corrupted legislative process, and was thus made national.

But to those of us outside the conservative information bubble, it speaks to two themes that define challenge itself: that it is built on a fabricated history, and that it poses a de facto test to the cohesiveness of conservative movement infrastructure. Can a case built on an informational foundation that’s rejected everywhere outside the movement stand on the strength of the right’s intellectual and professional networks? Is the apparent internal consistency of a story and argument that only conservatives believe enough to carry the day in the Supreme Court, when the stakes are this high?

Cannon’s argument use of Pelosi’s argument that passing the bill will show that conservative descriptions of it were a lie in order to defend making up additional lies about it is my favorite example.

Ongoing Notes On the Death of Satire

[ 71 ] February 23, 2015 |

Today’s reminder that if we were living in a satirical novel, Aaron Sorkin would consider the Republican public officials in it to be a little on-the-nose:

An Idaho lawmaker received a brief lesson on female anatomy after asking if a woman can swallow a small camera for doctors to conduct a remote gynecological exam.

The question Monday from Republican state Rep. Vito Barbieri came as the House State Affairs Committee heard nearly three hours of testimony on a bill that would ban doctors from prescribing abortion-inducing medication through telemedicine.

Dr. Julie Madsen was testifying in opposition to the bill when Barbieri asked the question. Madsen replied that would be impossible because swallowed pills do not end up in the vagina.

“Fascinating. That makes sense,” Barbieri said, amid the crowd’s laughter.

Women — the eternal mystery. The only certainty to Republicans is that their reproductive freedom needs to be curtailed to the maximum extent possible.

For a Bigger, Better Mezzanine [GUEST POST BY CARRIE SHANAFELT]

[ 62 ] February 23, 2015 |

As part of our ongoing discussion of issues of equity in contemporary academia, LGM is proud to present this guest post from longtime friend of the blog Carrie Shanafelt, a scholar of 18th century literature currently teaching at Grinnell College. Enjoy!

I began teaching college courses 14 years ago, which, considering I’m only 35, might sound impressive to anyone unfamiliar with 21st-century academic employment practices. Those first classes were a supervised part of my MA. But in 2003, when I moved to New York City for a doctoral program (in which fellowships were at that time reserved for second-years and above), I found employment as a genuine adjunct instructor, making $2500 per course. I was 23 years old, without a day of PhD coursework, and little more than a 100-page thesis to my name. The hiring process consisted of a walking conversation with an associate professor as she grabbed a coffee between classes. While many of the people who are hired this way might be perfectly qualified to teach college, I certainly wasn’t.

Compare this to the process by which tenure-track hires are made. Hundreds of applicants, most with PhD in hand and many with multiple publications, send extensive dossiers to committees who agonize for months over long lists and short lists, interviewing and re-interviewing at conferences and on campus, making offers, negotiating terms, and, finally, hopefully, creating a professional home for this person in whom they have already invested a year of work and imagination. Committees and applicants alike keep Tums in business as they make and announce heartbreaking, life-altering decisions.

For the freshman composition student, though, the outcome of both of these methods is the same. Her transcript will not indicate which of her instructors is finishing a third book, and which one scavenges for food on the way home. She will go from one classroom to the next mostly unaware of the difference, calling everyone “professor” no matter how they introduce themselves. Instructors are distinguishable to her because they are boring, funny, intimidating, helpful, or demanding—not because of the conditions under which they were hired.

It is tempting to chalk the adjunctification of college and university faculty up to money alone. That is, of course, what administrations always offer as the reason, so there can be no more discussion about it. Since that first adjunct position of mine in 2003, I began to feel that something didn’t add up. None of my new colleagues spoke to me as if I were a junior professional working my way through the tough lean days of youth. Most of them spoke to me, if at all, like I was a dog.

It wasn’t true at every college, or in the same amount from every colleague, but the harassment I experienced as an adjunct wouldn’t have been tolerated in any other workplace. I was mocked for my lack of familiarity with upper-class New York life, quizzed about my sexuality, sneered at that I must be wasting my students’ time. I learned to regret reporting academic dishonesty or threats of violence. My students called me “professor” out of habit, though I begged them to call me “Carrie,” because I knew how much it irritated my colleagues to hear that title conferred on someone like me.

The first possibility I considered, in tears on the subway, was that I was obviously and unusually stupid. I asked around, and discovered that other first-year adjuncts at certain schools were enduring similar harassment from senior colleagues. I heard about blatant racism, sexism, and transphobia, but mostly just a fog of contempt that seemed to follow adjuncts everywhere. If we’re so underqualified to participate in this glorious career for elegant intellectuals, I thought, then why did they hire us? You could throw a rock in Park Slope and hit five PhDs with publications. Why hire starving MAs and then mock them for being hungry?

Whenever one encounters a pack of sadists, it’s a good idea to back up and look at the institution that encases them. There they always are, right in the middle, squeezed by increasing demands from above, shoved sweatily down onto an underclass of hopeless, helpless, undignified workers. That underclass is not just the product of administrative corner-cutting or fiscal belt-tightening; it’s a management strategy to keep the faculty divided against one another.

When I was an adjunct, I had to suppress my rage whenever an assistant professor complained about assembling a tenure file, revising an article, or applying for conference reimbursement. I was sick to my stomach to hear associate professors complain about having to serve on curriculum committee or meet with advisees. My academic aspirations were not limited to mere survival. I was desperately jealous of my senior colleagues’ worst problems.

I didn’t realize at the time that their joylessness wasn’t just bourgeois ennui; it was as surprisingly bitter to them as it was to me. They really had once been young, and had fantasized about how great it would be to one day do the job of a college professor. But, at colleges and universities that heavily depend on adjunct labor for long-term teaching needs, the job of the tenure-track or tenured professor becomes ridiculously hard. Someone has to advise all of the students, sit on committees, chair the departments, review the curriculum, report to administrators, and—most time-consuming of all—hire, train, and supervise those always-already-fired adjuncts, some of whom are bumptious naifs (just me?) who seem to think an MA qualifies them to the same title as a career scholar. But what scholarship can get done with all those adjuncts to supervise?

I don’t want to excuse or explain away unprofessional sadism in academia. What I’m arguing is that sadism is not an accident or a byproduct; it is what perpetuates the two-tier system that is destroying colleges and universities. In this excellent Chronicle essay, Jordan Schneider urges tenured and tenure-track faculty to join adjuncts in the fight for bigger, longer contracts—not out of altruism or even solidarity, but out of self-interest. A larger, more secure, better-fed faculty has more power in shared governance. They attract more qualified colleagues who don’t require constant supervision. They confidently share advisement responsibilities and collaborate on research and teaching. And best of all, they might, on good days, wake up feeling glad to be professors.

Currently, I’m in what might be considered the growing middle tier of academic employment, something like the role Schneider suggests for non-tenure-track faculty. I was hired in an open, national call, and gave a formal talk on my current research during a campus visit. My contract is renewed, with review, a few years at a time, as the need is not predictable or permanent, but I have a decent salary with benefits, the same course load as my tenure-track colleagues, and support for my conference travel and research. I don’t have advisory responsibilities, but I also don’t get a research leave. I sit on committees and support extracurricular activities as I have time and interest. But most importantly, I have a vote and I have dignity, because my colleagues see me as a peer.

The creation of the vast academic underclass is so often blamed on too many people going to graduate school, as if we are expected to reenact the climax of Jude the Obscure, and leave a note behind: “Done because we are too menny.” It is absurd to declare that there is no demand for college instruction when we have 23-year-old MAs teaching ten huge courses in a year. The problem is that many colleges and universities have ceased to treat the instruction of college courses as a profession worth supporting with a living wage. Fixing that might even help senior colleagues to remember who they dreamed of becoming when they applied to graduate school.

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