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“Or We Could Try Appealing To More Voters.” [Pause] Hearty Laughter Breaks Out All Around.

[ 52 ] March 30, 2014 |

Today in Republican vote suppression:

Pivotal swing states under Republican control are embracing significant new electoral restrictions on registering and voting that go beyond the voter identification requirements that have caused fierce partisan brawls.

The bills, laws and administrative rules — some of them tried before — shake up fundamental components of state election systems, including the days and times polls are open and the locations where people vote.

Republicans in Ohio and Wisconsin this winter pushed through measures limiting the time polls are open, in particular cutting into weekend voting favored by low-income voters and blacks, who sometimes caravan from churches to polls on the Sunday before election.

Note the Republican focus on reducing voting hours. There’s not even a theoretical relationship between these laws and addressing the zero consequential cases of voter fraud that have ever existed. The laws are openly and explicitly about making it harder to vote, period, because the more people vote the worse it is for Republicans. This, in its entirety, is what the wave of vote suppression in Republican statehouses is about.

America’s Wrongest Pundit, Evidence File

[ 88 ] March 29, 2014 |

I don’t know if it would be possible for Chuck Lane to compete with such prodigious opponents as William Galston or Bill Kristol in the contest to determine America’s most consistently erroneous pundit. But as the case is being compiled against Lane, two things to add:

Pundit’s Fallacy of the Day

[ 368 ] March 28, 2014 |

Ah, Nick

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Gillespie, always trying to pretend that libertarianism is anything but insanely unpopular.

It’s also worth noting the additional fallacy here. If there’s a contradiction between libertarianism and bog-standard Republican cultural conservatism, it’s a safe bet that Rand Paul will favor the latter.

5CA Upholds Texas’s War on Roe v. Wade

[ 78 ] March 28, 2014 |

As you may recall, Republicans have convinced themselves that neutral regulations that don’t actually require companies or their managers to do anything represent a “substantial burden” on the Deeply Held Religious Principles of said secular for-profit coroporations and/or their managers, even when these Deeply Held Religious Principles were re-defined two years ago to become to compliant with the Republican war on the Affordable Care Act. On the other hand, for most Republicans non-neutral regulations that have demonstrably achieved their goal of causing many safe abortion clinics to close and in so doing make it enormously difficult or impossible for many women to obtain abortions do not constitute an “undue burden” on a woman’s right to choose to have an abortion:

The Fifth Circuit Court of Appeals ruled Thursday that two provisions of a Texas abortion law are constitutional, including one that has closed a third of the state’s clinics. The unanimous panel, made up of three women appointed by Republicans, had already allowed the full brunt of the law – the same one now-gubernatorial candidate Wendy Davis tried to block – to go into effect.


The Fifth Circuit wasn’t impressed at how much harder it has become for Texas women to have abortions, both because clinics whose providers have been rejected for privileges have closed outright and because clinics with doctors that have been able to get privileges are operating at reduced capacity. According to a map by RH Reality Check’s Andrea Grimes, “As of March 6, there are 25 open abortion clinics, six of which are ambulatory surgical centers, in Texas.” There were 36 abortion clinics in Texas at the time the law was passed, meaning that the dire prediction that a third of the clinics would close has come true. When requirements that abortions be provided in ambulatory surgical clinics go into effect in September, that will leave only six clinics, plus another one Planned Parenthood is building in San Antonio. In 2011, there were 73,200 abortions in Texas.

All three members of the 5CA panel were appointed by Reagan or George W. Bush. Odd — I was told by Real Progressives that the typical Republican nominee these days is like Earl Warren and William Brennan. More on this Monday, but the ruling is an (all-too-predictable) disaster.

Michigan Same-Sex Marriages To Receive Federal Recognition

[ 19 ] March 28, 2014 |

Good news, both directly for 300 people and for what the action represents:

Attorney General Eric H. Holder Jr. on Friday intervened in another state legal battle over gay marriage, announcing that the federal government would recognize same-sex marriages that were recently held in Michigan.

Three-hundred same-sex couples married in Michigan over the weekend before a federal appeals court granted a stay to stop the weddings from being performed. Democrats in Michigan’s congressional delegation, led by Rep. Dan Kildee, had called on Holder to recognize the marriages as legal under federal law.


Last month, Holder instructed all Justice Department employees across the country to give lawful same-sex marriages equal protection under the law in every program the department administered.

“Last June’s decision by the Supreme Court was . . . a victory for equal protection under the law and a historic step toward equality for all American families,” Holder said Friday. “The Department of Justice continues to work with its federal partners to implement this decision across the government.”

I Don’t Think Igorance Is Their Problem

[ 189 ] March 28, 2014 |

Another exhibit in my case for judicial term limits.

The Ad Hoc Legal Challenge to the ACA You Might Have Missed

[ 78 ] March 27, 2014 |

The legal attack on the ACA that’s gotten less attention but would blow up the system if the Supreme Court bought the argument. My guess is that after the two wingnuts on the panel that initially heard the case vote to destroy the American health insurance system based on a willful misreading of the statute, the D.C. Circuit en banc will read the statute properly and the Supreme Court won’t take the case. But I’m not as confident, especially of the latter, as I’d like to be. We can also see here why blowing up the filibuster for circuit court appointments was so important.

One thing to add to the initial piece is that the nihilists making this silly argument, realizing that a hyperliteralism that ignores both other specific provisions of the statute as well as its overall structure and purpose might not be be enough, have developed a darkly comic theory asserting that Congress really intended to deny subsidies to people getting insurance from the federal exchanges. According to the theory, Congress wanted it this way because they assumed that no state could possibly want significant numbers of its citizens denied practical access to health insurance, and hence would have no choice to set up their own exchanges if the federal ones didn’t work. In other words, the Democrats who voted for the legislation would have had to be so delusional as to see Republicans at the state level as collaborators interested in working to achieve the goals of the ACA. Now, there are some individual Democrats who are a little slow on the uptake about what the Republican Party has become, and some dupes who erroneously consider themselves tough-minded leftists who at least pretend to think that Republicans secretly support the ACA model. But, as both the Medicaid funding mechanism and the provisions that allowed the federal government to establish exchanges (crucial detail!) “on behalf” of the states makes clear, the architects of the ACA were perfectly well aware of what the Republican Party circa 2010 is, and contrary to this lunatic theory knew very well that Republican statehouses would gleefully shoot the hostages generated by non-subsidized federal exchanges.

I’m also reminded of a point made by Ginsburg in her Sebelius opinion. (Because some of the neoconfederate barbarians were kept from the gates, it gets less attention than her instant classic Shelby County dissent, but it’s equally good.) The Supreme Court was able to arbitrarily deny millions of people Medicaid because Congress left too much autonomy to the states:

Finally, any fair appraisal of Medicaid would require acknowledgment of the considerable autonomy States enjoy under the Act. Far from “conscript[ing] state agencies into the national bureaucratic army,” Medicaid “is designed to advance cooperative federalism.” Subject to its basic requirements, the Medicaid Act empowers States to “select dramatically different levels of funding and coverage,alter and experiment with different financing and delivery modes, and opt to cover (or not to cover) a range of particular procedures and therapies. States have leveraged this policy discretion to generate a myriad of dramatically different Medicaid programs over the past several decades.” The ACA does not jettison this approach. States, as first-line administrators, will continue to guide the distribution of substantial resources among their needy populations.

The alternative to conditional federal spending, it bears emphasis, is not state autonomy but state marginalization. In 1965, Congress elected to nationalize health coverage for seniors through Medicare. It could similarly have established Medicaid as an exclusively federal program. Instead, Congress gave the States the opportunity to partner in the program’s administration and development.

There’s a lesson here should more and better Democrats get a national governing majority. Trying to accommodate neoconfederates and their sympathizers can’t work, because as always conservative interest in the Equal Sovereign Dignitude of the States begins and ends with cases in which “federalism” can advance substantive conservative policy goals. Collaborating with states rather than just federalizing programs doesn’t accomplish anything but give Republicans another lever to sabotage.

Rand Paul Has Extremely Reactionary Positions on Social as Well As Economic Issues

[ 97 ] March 26, 2014 |

The fraudulent presentation of America’s Greatest Champion of Civil Liberties is remarkable.  On “social” issues as well as reactionary ones, Rand Paul is an absolutely standard issue conservative Republican, steadfastly opposed to civil rights and equality for women, African-Americans, and gays and lesbians.

At least when it comes to same-sex marriage, the basis for this bad faith evasion seems to be some boilerplate language about “leaving the issue to the states.”  I mean, really, this is the same con that the right has been running for years on abortion — not only is it not any kind of progressive position, since nobody actually cares about federalism virtually everyone who allegedly wants abortion “left to the states” supports every piece of federal abortion regulation to ever come down the pike.  Can we stop pretending that this language means anything, please?


How To Read RFRA

[ 113 ] March 26, 2014 |

Given that the religious freedom claim being advanced by Hobby Lobby seems to be a combination of scientific ignorance and political opportunism, it’s tempting to conclude that their claim should be dismissed as not being based on a sincere religious belief at all. Tempting, but I think wrong. The courts have been reluctant to question the sincerity of religious beliefs (and opposed to making determinations about the centrality of religious belief) when addressing free exercise claims for good reason. Granting that Hobby Lobby is close to the line, this deference is correct.

The better question is whether, assuming arguendo that there is a religious conflict, whether the burden placed on these beliefs is sufficient to trigger heightened scrutiny. The free exercise framework established by RFRA has two parts. The first states that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” This establishes a threshold test; litigants must show that their exercise of religion has been “substantially burdened.” If this threshold is passed, the burden switches to the government to show that the law is in “furtherance of a compelling government interest” and “is the least restrictive means of furthering that compelling governmental interest.” Many of you will recognize this as analogous to the strict scrutiny test the federal courts use to evaluate racial classifications under the Fifth and Fourteenth Amendments.  Applied properly, this is an enormously difficult test to pass.

As you can see from Paul Clement at the oral argument, the strategy of the litigants has been to for all practical purposes read the threshold test out of RFRA. Under Clement’s theory, almost any bare assertion of any degree of conflict with religious practice is sufficiently “substantial” to trigger strict scrutiny. For reasons I’ve discussed already, this would be a bad and unworkable way to read the statute.

As Justice Kagan noted:

But, again, Mr. Clement as Justice Ginsburg said, this was a very uncontroversial law. Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative.

This is correct. RFRA passed with almost no opposition from either house of Congress, both of which were controlled by Democrats. The idea that not only did Congress mean to say “trivial” when they enacted “substantial” but that they expected the entire U.S. Code and Code of Federal Regulations to be subject to strict scrutiny based solely on a nearly irrefutable bare assertion of any religious conflict is implausible in the extreme. The alternative proposed by the Solicitor General is a much more sensible and workable reading of the statute:

And so we think the substantial burden analysis has got to be more strenuous than that. It’s got to incorporate principles of attenuation and proximate cause, and that when you think about this case where the requirement is to purchase insurance which enables actions by others, that you’re really closer to the tax situation than to imposing a direct obligation to act.

And, of course, Clement wants an exceptionally undemanding “substantial burden” standard because the burden in this case is so attenuated Hobby Lobby’s claim would have no chance otherwise. A provision that doesn’t force employers to do anything and places the burden for not complying with the law on third parties should not meet the RFRA threshold. The fact that the Hobby Lobby didn’t believe that it was complicit in providing contraception through its insurance until 2012 just draws a line under how insubstantial this burden is. The Court should read RFRA to mean what it says, and if it does so would reject the claim against the contraceptive coverage provision easily.

Hobby Lobby: The Derp Never Stops

[ 205 ] March 26, 2014 |

Darleen Click, I’m sure your brief post on the challenge to the ACA’s employer contraception non-mandate will be all too representative!

Seven words to the Left Feminist Fascists

I think we can all agree that if there was anything central to fascism, it was that the insurance that women pay for or receive in lieu of wages actually cover things that are important to the health of women. If you don’t understand this, you probably haven’t spent much time at the Evil Sluts and Their Minimum Coverage Requirements Museum in D.C..

their “bosses” won’t pay for their birth control

It’s the insurance that employees earn as compensation, not their employers per se, that will pay for birth control when companies provide insurance that meets the minimum requirements. But I’m having trouble focusing on this particular terrible argument because I’m fascinated by the scare quotes around “bosses.” Clearly, when Hobby Lobby employees think that the Greens set policy for their chain, they’re just imagining things! You’re the boss, if you want it. I don’t know if this is a thing on the right, but either way I’ve rarely seen anything that captures the particular mix of servility and authoritarianism that characterizes contemporary Republican ideology this well.

– including abortifacients –

The idea that any form of contraception is an “abortifacient” doesn’t even rise to the level of junk science. But you knew that, so read this about the origins of this particular bit of lunacy from Jamelle Bouie.

it constitutes denial of access &

Again, nobody thinks that carving out exemptions to minimum coverage requirements will represent a total denial of access to contraception, although it would certainly make contraception less accessible for some less affluent women.

“rights” to free stuff

Again with the scare quotes. First, the insurance your employers gets tax benefits for compensating you with instead of wages isn’t “free”; the employee earns it. Second, the minimum coverage is an actual statutory right, not a “right.” What’s amazing about this particular line of argument — that statutory rights aren’t “real” rights — is that the Hobby Lobby’s challenge is based on a statutory right. If the rights created by Congress are just meaningless fake “rights,” then we can all go home because RFRA is just symbolic legislation that confers no legal rights, and so nobody has standing to bring a suit. (There is also a constitutional right to the free exercise of religion, but based on current 1st Amendment law a challenge to the contraception coverage requirement would be frivolous, and properly so.)

And now, the punchline:

Pay for your own damn coat hanger.

Hahaha, remember when women who didn’t have the wealth or connections to get abortions on the grey market used to get maimed and killed when they got abortions? Hiiiii-larious, I tell you! I laughed like I was watching the Half-Hour News Hour! In the meantime, make sure to let Click know how she should spend her salary, since according to her she didn’t earn it…

Hobby Lobby’s Political Attack on the ACA

[ 82 ] March 26, 2014 |

The fact that the IWF’s attacks on the ACA’s contraception non-mandate were just consevertarian attacks on the ACA with no particular religious freedom content was no coincidence.  As Stephanie Mencimer notes in her brilliant piece, the particular ad hoc challenge to the ACA advanced by the Hobby Lobby’s lawsuit makes the political roots of the challenge particularly clear:

On many levels, the Hobby Lobby case is a mess of bad facts, political opportunism, and questionable legal theories that might be laughable had some federal courts not taken them seriously. Take for instance Hobby Lobby’s argument that providing coverage for Plan B and Ella substantially limits its religious freedom. The company admits in its complaint that until it considered filing the suit in 2012, its generous health insurance plan actually covered Plan B and Ella (though not IUDs). The burden of this coverage was apparently so insignificant that God, and Hobby Lobby executives, never noticed it until the mandate became a political issue.

I’ll return to the issue of how the court should interpret RFRA later today. But the fact that the managers of the Hobby Lobby never noticed that the contraceptive coverage in the insurance they offered to their employees intolerably contradicted their Deeply Held Religious Principles until the Republican Party decided that the  Affordable Care Act was the greatest threat to freedom in known human history tells you what you need to know about how seriously we should take these legal arguments.

Today In the Party of Calhoun

[ 24 ] March 25, 2014 |

Republican political hack and confederate nostalgist with  no particular scholarly credentials selected to be president of the College of Charleston.

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