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Category: General

Confederate License Plates and the First Amendment

[ 53 ] June 18, 2015 |


Today was probably not the ideal day for four members of the Shelby County majority to find that Texas was constitutionally required to issue a specialty license plate with the Confederate flag. Unlike Shelby County, Alito’s dissent is not unreasonable.  But I think the majority (the 4 Democratic nominees + Thomas) drew the line in the right place. 

Essentially, the question in this case is whether specialty plates are private speech or government speech.  If the former, then Texas’s refusal to print the Treason In Defense of Slavery plate is plainly unconstitutional viewpoint discrimination.  If the latter, refusing to endorse white supremacist symbols is certainly within the state’s discretion.  There’s a companion pending case about whether North Carolina can offer a “Choose Life” plate but not a pro-choice one that allows one to focus on the speech issue rather than the flag per se.  I remain inclined to think that the Court is right that this is government speech and while states can celebrate lawlessness in defense of apartheid on government IDs if they choose to, I don’t think they are required to.

Alas, this does mean I won’t be able to start a campaign arguing that Virginia is constitutionally obligated to issue a license plate featuring Sherman and Grant burning the Confederate flag.

The Horror in South Carolina

[ 290 ] June 18, 2015 |

EP-141009948.jpg&MaxW=520&q=85Above: a state capitol. In 2015.


I don’t think I have anything to tell you about the killings in South Carolina that you don’t already know. I can tell you that the Charleston Post and Courier has been doing absolutely remarkable work, and that Jamelle Bouie’s piece on Emanuel African Methodist Episcopal Church is essential.

How the Obama-McConnell-Boehner Coalition Moves Forward

[ 48 ] June 18, 2015 |


This how Obama and his Republican trade friends are going to try and pass fast track.

The process is likely to begin in the House Thursday, when the chamber plans to vote to give Obama fast-track trade authority to negotiate the Trans-Pacific Partnership, the largest trade agreement in history. If it passes, McConnell would then take up the measure next week, hoping to win the support of at least a dozen Senate Democrats to send it to the president’s desk. The Senate would then amend a separate trade bill with Trade Adjustment Assistance, a program to aid workers who lose their jobs due to trade deals.

The convoluted process is needed to surmount opposition from House Democrats, who last week blocked a program they support — TAA — in order to stop the larger trade package from getting to Obama’s desk. The Senate had passed a bill last month that included both the worker aid and negotiating authority, but further changes in the House have forced senators to take up the proposal again, prompting a whole new round of negotiating and posturing ahead of decisive votes in the coming days.

The entire process hinges on support from Senate and House Democrats who support free trade but insist that the government also provide aid and job training to help workers hurt by foreign trade. House Democrats, led by veteran Wisconsin Rep. Ron Kind, were eager to get the trade deal done, and were looking for assurances from their Senate counterparts. Senate Democrats, meanwhile, wanted a pledge from McConnell that he would clear TAA before they commit to voting for the fast-track bill.

In a joint statement Wednesday afternoon, McConnell and Boehner began to provide some of those assurances.

“We are committed to ensuring both TPA and TAA get votes in the House and Senate and are sent to the President for signature,” the leaders said in a joint statement. “And it is our intent to have a conference on the customs bill and complete that in a timely manner so that the President can sign it into law.”

At the White House Wednesday, pro-trade Democrats and Obama discussed the possibility of sticking together as a bloc so they can get TPA, TAA, a customs enforcement and perhaps an extension of the Export-Import Bank charter, which lapses at the end of the month.

“I and all the other members there are looking for a guarantee … for a deal to be good it’s got to have enforcement, TAA, I think it’s got to have Ex-Im reauthorization,” said Sen. Tim Kaine (D-Va.). “A lot of [the meeting] was to talk about that very question of: What is a sufficient assurance?”

Yes, there’s a lot of votes that need to be delivered and yes a lot of Democrats don’t trust Republicans. But this feels like a familiar script, where Republicans are able to bring just enough votes with Democrats who really do want to support the president’s position and are more comfortable with supporting their corporate funders than American workers. I do have trouble seeing this many votes flipping today though.

The best move the anti-TPP coalition has is rewarding its friends and punishing its enemies. It’s considered the latter, by seeking to primary Democratic congressman Jim Costa, who comes from a district that should support workers but instead he is a pro-corporate and pro-TPP. If labor and greens want to express political power, punishing enemies who can be defeated is an important way to do it. Let’s see how it goes.

This Day in Labor History: June 18, 1954

[ 27 ] June 18, 2015 |

On June 18, 1954, the CIA-trained coup against democratically elected Guatemalan president Jacobo Árbenz began, an event that crushed Guatemalan labor, happened with the complicity of the American labor movement, and significantly destabilized Guatemala, helping to create the violence that afflicts that nation and the large-scale undocumented migration to the United States today.

Born in 1913, Jacobo Árbenz became a top military officer under the leadership of the United Fruit (and thus U.S.) supported dictator Jorge Ubico. Árbenz was forced to escort chain-gangs of prisoners, which disgusted and radicalized him. In 1944, he assisted in a coup against Ubico and was offered the position of Minister of Defense from the democratically elected new president of the nation, Juan José Arévalo. After Arévalo died in 1950, Árbenz won the election to replace him.

United Fruit had a significant presence in Guatemala from the first decade of the twentieth century, using its power over that poor nation to suppress any labor activity on its banana plantations. For example, in 1923, UFCO had the strong support of the current military dictatorship to violently repress a strike; said dictatorship had come to power with the company’s support after a government opposed its interests. In 1928, Guatemala nearly went to war with Honduras on UFCO’s orders over a disputed region on the Honduran border, with the latter nation doing the bidding of UFCO rival Cuyamel Fruit. By the mid-1940s, Guatemala had around one-fourth of the company’s Latin American operations. United Fruit had been major supporters of Ubico, who effectively followed its orders. Ubico and other presidents gave significant concessions to United Fruit, robbing the nation of both its land and tax revenues that could have built infrastructure and social programs for the nation’s poor. In fact, Ubico actually asked UFCO to lower its wages to 50 cents a day as to not cause other employers to have to pay workers more. You can guess UFCO’s response to that request.


United Fruit plantation in Central America

Árbenz’s primary goal was modernizing Guatemala. To do so, he needed to wrest control of his nation’s future from the single corporation that controlled it: United Fruit. So Árbenz made his number one priority land reform, which through much of Latin American history has been the major goal of left-leaning movements against the church, conservatives, and outside corporations. He issued Decree 900, giving the government the right to expropriate unused land from agricultural corporations, compensating the owners. That included United Fruit, which had a lot of land now out of production thanks to banana monocultures leading to diseases that kill trees. During the 18 months of the program’s existence, 1.5 million acres were distributed to 100,000 families.


Jacobo Árbenz

Árbenz had significant support from labor unions in Guatemala for his reforms. He had started forging links to the Guatemalan labor movement early in his rise. The Guatemalan labor movement had significant ties to the Communist Party and the CP supported Árbenz, thus helping to deliver that rank and file labor support. With United Fruit and conservative elements of the Guatemalan industry shouting that Árbenz was a communist, even though he was just a nationalist, he embraced the idea of it since the policies the U.S. supported in his nation were so awful that being a communist could not be all bad.

United Fruit had urged the U.S. to overthrow what it claimed were communist-led governments in Guatemala going back to 1945. Those calls were heard when the Eisenhower administration took power in 1953. United Fruit had very close connections to Eisenhower’s foreign policy team, especially Secretary of State John Foster Dulles and CIA head Allen Dulles. The Dulles brothers had both done legal work for United Fruit before joining the administration. They and Eisenhower were aggressive about using the CIA to undermine left-wing movements in the developing world and quickly moved to eliminate Arbenz. The CIA went so far as to personally select his replacement, Carlos Castillo Armas. The initial CIA-funded invasion was pathetic and made little impact, but Árbenz was afraid that an overwhelming victory over these forces would provoke direct American action. That happened anyway through airpower and the use of napalm against ships exporting goods out of the nation. By June 27, the CIA won through creating a crisis of confidence against Árbenz in the military, who forced him to resign.


Castllo Armas entering Guatemala City. CIA agent at wheel.

Always vociferously anti-communist at home, the American Federation Labor happily worked with the CIA during the Cold War to undermine left-leaning labor unions in the developing world and foster politically conservative unionism that would promote the goals of American foreign policy. Shortly before the coup, the AFL’s Latin American Inter-American Regional Organization of Workers (ORIT) established an organization in Mexico called Guatemalan Workers in Exile. Effectively, it was an operation to create a right-wing labor movement for the post-coup government. Ten days after the coup, Serafino Romualdi, the AFL’s ambassador to Latin America, was in Guatemala City with the figurehead of ORIT and the leader of the right-wing labor movement in Batista’s Cuba to take over the former Guatemalan trade union building and reestablish the labor movement on lines friendly to the U.S. government and United Fruit. This attempt to create a moderate anti-communist trade union that would be a respected member of a U.S.-friendly government failed completely as the new military regime didn’t care less about the roots of unions and sought to crush all organized labor.

Guatemala suffered under decades of military dictatorships supported by the United States and its corporations, culminating in the rule of Efraín Ríos Montt, the Reagan supported military leader in the early 1980s who engaged in a genocidal campaign against the nation’s indigenous population, defining them as communists for being indigenous.

For years, Árbenz floated around Europe, trying to find a place to live. The CIA muscled western European nations to deny him. The Czechs didn’t want him because they were nervous he would seek financial remuneration for the shoddy guns they sold him before the coup. The Soviets took him for awhile but he wanted to return to Latin America. He eventually ended up in Cuba after the Revolution. Later he moved to Mexico. Over all this time, he sunk into desperation and alcoholism before drowning in a bathtub in 1971.

Today, Guatemala is one of the world’s most violent and dangerous nations thanks in no small part to the destabilization caused in 1954. The U.S. continues to engage in a post-colonial relationship with Guatemala and its workers, including the exploitation of the poor by apparel industry sweatshops who will just jump 20 miles to Honduras or El Salvador if the nation enforces labor regulations or allows its workers to form strong unions. Repression of labor has been the hallmark of Guatemala governments in the 21st century.

I borrowed from Deborah Levenson-Estrada, Trade Unionists Against Terror: Guatemala City, 1954-85 and Stephen Schlesinger, Stephen Kinzer, and John Coatsworth, Bitter Fruit: The Story of the American Coup in Guatemala in writing this post.

This is the 147th post in this series. Previous posts are archived here.

Today in the American Meritocracy

[ 58 ] June 17, 2015 |


Mark Penn apparently brought the same quality of ideas to Microsoft that he did to the Clinton campaign:

Another key departure sees Mark Penn leave Microsoft in September. Penn was the main driving force behind Microsoft’s highly criticized Scroogled campaign. Penn says he is leaving Microsoft to form a private equity fund, but his departure could see him rejoin the political world ahead of the the upcoming presidential campaigns.

1)The list of investors willing to invest in Mark Penn’s equity fund would be one of the most valuable collections of leads in sales history. 2)If he goes the “rejoin the political world” route, I recommend that he try his more natural ideological allies in the Republican Party.

Billy Possum

[ 51 ] June 17, 2015 |


You all are familiar with the Teddy Bear, designing after Theodore Roosevelt’s love of shooting animals. It was a big hit during his administration. You can imagine how toy owners would want to capitalize on this. You can imagine the troubles TR’s utterly uncharismatic successor William Howard Taft would provide in said capitalization.

But that doesn’t mean they didn’t try. And that leads us to Billy Possum:

That story starts, unsurprisingly, with Taft at the dinner table.

In January 1909, the president-elect was honored at a banquet in Atlanta. At Taft’s request, the main course was “possum and taters”—a toasty pile of sweet potatoes topped with an 18-pound whole cooked opossum. (Taft gobbled up the roasted marsupial so quickly that a nearby doctor advised him to slow down.) When Taft’s belly was stuffed, local boosters presented the president-to-be with a small plush opossum. The toy, they told Taft, was destined to be the next big thing—it was going to replace the teddy bear.

They dubbed it “Billy Possum.”

The gift pleased Taft—as did the dinner. The next day, he told reporters, “Well, I certainly like possum … I ate very heartily of it last night, and it did not disturb in the slightest my digestion or my sleep.” But what Taft saw as food, his supporters saw as money. The teddy bear boom had been profitable, and Taft’s supporters were confident the new toy could become the next fuzzy fad. They imagined America’s children tossing away their teddies, flocking to the closest storefront to get their hands on a plush opossum.

It failed miserably. But lord knows the toy companies tried:

The market flooded with Billy Possum postcards, pins, and posters. Marketers introduced Jimmie Possum—Billy’s running mate—named after Vice President James Sherman. Supporters could join a group called the “Possum Club.” Composer J. B. Cohen and lyricist G. A. Scofield even wrote a ragtime tune called “Possum: The Latest Craze,” whose last verse goes:

Ole Teddy Bar’s a dead one now
Sence Bill Possum’s come to town.
An’it taint no use to make excuse
Or raise a fuus an’frown.

Jes get in touch wit’de President
Eat possum when you dine.
Den ask a Job of de Government
An’ you’ll cert’ly be in line.

Feminist Language and the Exploitation of Women Workers

[ 9 ] June 17, 2015 |


I go into this a bit in Out of Sight, but Hester Eisenstein goes into much greater detail into how the global export industries have engaged in the widespread exploitation of women, often using the language of feminism to justify them doing so. Eisenstein also notes how many scholars have fallen into this trap, assuming that the limited gains women might make from a job in an apparel factory is a real path to women’s liberation. That’s not because work, even low paid work, can’t play a role in women’s liberation, but because the global economy simply does not provide a path for most of the world’s workers to improve their lives anymore.

There is no doubt that working in EPZ factories, which provide young women with an independent income, can have a liberating effect. These women are following the path prescribed by Karl Marx and Friedrich Engels: instead of doing unpaid and exhausting work on a farm, subject to feudal and patriarchal controls, seek employment in factories, which can bring economic autonomy and a consciousness of one’s capacities. But what may be true in theory is often less so in practice, especially given the harsh conditions under which most women in EPZs work.

Conditions in EPZs vary from country to country, but nearly all are exempt from national labor laws, and as a 2004 report by the International Confederation of Free Trade Unions shows, employers are ruthless in crushing unionizing attempts and in going after labor organizers.

Even if they don’t try to unionize, female EPZ workers face constant harassment. At CODEVI, a company located in Haiti’s Ouanaminth free-trade zone, workers producing Levi’s jeans for the clothing group Grupo M have experienced “abductions, beatings, arbitrary dismissals, verbal abuse, unpaid overtime, intimidation with firearms, and interrogations.”

In Mexico, workers are usually on short-term contracts, with no job security. Women applying for jobs can be subjected to health tests, including pregnancy testing, which can involve being examined naked and “asked intrusive personal questions such as, “‘Do you have a boyfriend?’ ‘How often do you have sex?’ and ‘Do you have children?’”

Jeremy Seabrook, who has also observed factories in Bangladesh, agrees with Kabeer that the women workers of Dhaka, Bangladesh go through epic struggles to get factory jobs, having to overcome the obstacles placed in their path by patriarchal families and communities. But he argues that the women have no power to decide which industries settle in Bangladesh to take advantage of them.

They work fourteen-hour days, with wages often delayed, and endure brutal overseers and extremely dangerous working conditions; he witnessed a fire in Dhaka on August 27, 2000, that killed a dozen people and in recent years, more than two hundred factory workers have died in fires. More recently, the 2013 Rana Plaza factory collapse outside Dhaka killed more than one thousand workers. As Seabrook remarks, “This is scarcely a model of self-determination.”

Any reasonable definition of feminism must support the right of women to organize unions, to not be sexually abused on the job, to not have employment hinged on pregnancy tests, to make a living wage. Certainly we must be willing to read through how corporations co-opt the language of feminism (feministwashing???) in order to justify and even promote how they exploit women. Walmart, Gap, Target, and the many other western corporations operating in Asia and Latin America absolutely could ensure that the women their contractors hire do use those jobs to live a better life that not only emancipates them from reliance on men for income but also allows them to have dignified lives at work and home. They choose not to do that. We should recognize that and call out those who use feminist language to justify the exploitation of women.

Are poor and middle class people unable to afford lawyers because law graduates have too much debt?

[ 46 ] June 17, 2015 |

atticus finch

The thesis that non-rich people would have more access to legal representation if law school graduates didn’t have so much debt is put forth regularly by critics of the American legal system. Today’s New York Times features a representative example of this line of argument, from Theresa Amato:

To create the entire sector of sustainable, affordable legal service providers that the legal profession needs will take much more entrepreneurship. There’s no shortage of lawyers to bridge the justice gap. For the last four years, less than 60 percent of law-school graduates have found full-time jobs requiring a bar qualification.

The problem is twofold. First, school fees have consistently outpaced inflation over the last 30 years, and on average, 86 percent of law students graduate with six-figure debt. Without help, the drag of this debt makes it near-impossible for willing graduates to take lower-paying legal services jobs.

Second, even for those graduates who are able to serve those who lack affordable legal representation, the jobs are few and much fought-for — despite the often less than chic locales. Recent graduates rarely have the training or resources to create jobs for themselves.

I would like this argument to be true, since it would provide yet one more reason to argue against what has become the absurdly high cost of legal education in this country, but unfortunately it doesn’t make much sense.

The claim that otherwise willing graduates don’t take public interest jobs because of high debt loads is no doubt true in some individual cases. But from a structural perspective, this would only be relevant to the availability of low-cost and/or subsidized legal services if public interest lawyer jobs had become difficult to fill as a result. But as Amato herself acknowledges, the competition for such jobs is usually quite fierce. (As for the claim that new graduates don’t have the training to set up shop for themselves, this is true, but again irrelevant to the more fundamental problem, which is the dearth of clients who can actually pay for the price of legal services — a price that isn’t related to the relative debt levels of the lawyers who provide them).

This competition is a result of at least three factors:

(1) “Cause” lawyers, such as Amato herself, are obviously not entering the legal profession for the money. Salaries for public interest lawyers, and indeed for many government lawyers, are generally very low, relative to the cost in time and money of a legal education (In the two cities — Denver and New York — in which I’m familiar with the relative pay structure of district attorney and public defender offices on the one hand, and police officers on the other, it’s clear that the average cop makes more than the average DA or PD). Debt to salary ratios are just another factor that people who are clearly getting what economists call large non-pecuniary benefits from their jobs will tend to ignore.

(2) The federal government’s Public Service Loan Forgiveness program is, relatively speaking, a huge economic benefit to public interest and government lawyers. PSLF limits the debt service obligation of such lawyers, in regard to federal loans (at this point almost all law school loans are federal), to 10% of that portion of the debtor’s AGI that is 150% above the poverty line. After ten years of payments, the principal debt and all accumulated interest is forgiven, and the forgiven sum isn’t considered taxable income. Of course this benefit structure makes competition for PSLF-eligible jobs even more intense.

(3) Only around 55% of current law graduates are getting legal jobs of any kind. This means there are literally thousands of new law graduates every year who would gladly take even the lowest-paying public interest jobs.

In sum, poor, working class, and even many middle class people can’t afford lawyers, because with the partial exception of the criminal defense system, legal services in the United States are basically unsubsidized. People with little or no discretionary income can’t spend that non-existent income on legal services, which in comparison to food, shelter, transportation, health care, and some other things, will continue to be considered luxuries. Lawyers who aren’t independently wealthy can’t work for free, or for (what amounts to the same thing) wages that don’t allow them to do much more than cover the operating costs of practicing law. And levels of law school debt — sunk costs, in other words — have almost nothing to do with this dynamic.

Uber Drivers Ruled Employees

[ 114 ] June 17, 2015 |

Uber drivers protest against working conditions outside the company's office in Santa Monica

This is a huge decision.

In what could be an explosive decision, the California Labor Commission has found that a driver for Uber in San Francisco is an employee of the company. That’s from a ruling filed in state court on Tuesday and first reported by Reuters. It’s pretty damning. “Defendants hold themselves out as nothing more than a neutral technological platform, designed simply to enable drivers and passengers to transact the business of transportation,” the commission writes. “The reality, however, is that Defendants are involved in every aspect of the operation.”

Why so huge?

Just as importantly, drivers who are contractors, and not employees, also aren’t required to get benefits and other labor protections that employees are traditionally awarded. For Uber and all its peers in the so-called 1099 economy, this is another key thing that helps to keep costs low, rides cheap, and thin margins viable.

Determining whether workers should be classified as contractors or employees is rarely a simple matter. Uber points to its drivers’ abilities to set their own schedules as evidence that they operate independently and shouldn’t be considered traditional employees. Drivers, on the other hand, argue that Uber sets strict standards for how many rides they need to accept while on the road, and how they ought to interact with passengers—and reserves the right to deactivate their accounts (basically, the equivalent of firing) if they don’t comply. In California, where the issue of whether drivers for Uber and its main rival Lyft are employees is headed to trial, U.S. district judges have in two separate rulings declined to make a final decision. “The test the California courts have developed over the 20th Century for classifying workers isn’t very helpful in addressing this 21st Century problem,” one wrote.

So until now, the big, scary question—the one that could decimate Uber, and Lyft, and all the 1099 companies like them—has basically remained a hypothetical. Which is why it’s so important that the California Labor Commission has finally stepped in to say yes, this Uber driver is an employee, and she’s owed $4,000 in expenses. Imagine if Uber suddenly had to pay $4,000 back to all of its drivers in California, much less across the U.S. Even its $5.9 billion in funding would presumably wilt at the thought. It’s undeniable that Uber drivers becoming employees would be a huge blow to Uber’s business model. What we still don’t know is: How huge?

Effectively this entire industry is developed around a principle of labor exploitation. By forcing all of the costs of being an employee onto the worker, defining a worker as an independent contractor is part of the corporate toolkit to control workers’ lives without taking responsibility for them or having to pay into the social welfare net. Other tools include temp work (which today often means permanent work without benefits and multiple employees on the same Toyota shop floor in Kentucky working for different “employers.”), subcontracting, franchising, and outsourcing. Industries around the country have attempted to classify workers as independent contractors to avoid labor law and now we have seen new industries develop where this is the fundamental model. In all of these circumstances, the corporation at the top actually dictates terms of employment, often including hours and wages, or in the case of Uber, how many rides the drivers can accept. Moreover, Uber has full firing rights.

In other words, “disruption” actually means “finding new ways to exploit the working class.” Good for California for cracking down. Given the power of the Silicon Valley people in that state, we’ll have to see where this goes from here, but it’s a very promising decision.

Republicans know this too, which is why Grover Norquist thinks Uber is key for Republicans retaking the cities.

Another Out of Sight Excerpt

[ 1 ] June 17, 2015 |


Truthout has published an excerpt of Out of Sight, on toxicity and environmental justice.

The potential for a strong labor-green coalition to fight for healthy workplaces and ecosystems clean enough for people to enjoy in their free time was a threat to corporations. Companies responded to environmentalism’s rise by taking advantage of a road the American government had already opened to them—moving their operations away from the people with the power to complain about pollution. They did this in two ways. Some industries scoured the nation, seeking the poorest communities to place the most toxic industries. They assumed those communities, usually dominated by people of color, would not or could not complain. The companies would work with corrupt local politicians to push through highly polluting projects before citizens knew what was entering their communities. Other industries went overseas, seeking to repeat their polluting ways in nations that lacked the ability or desire to enforce environmental legislation. Capital mobility moved toxicity from the middle class to the world’s poor.

In 1978, Chemical Waste Management, a company that specialized in handling toxic waste, chose the community of Emelle, in Sumter County, Alabama, as the site of its new toxic waste dump. Corporations contracted with Chem Waste to handle their toxic waste. Sumter County was over two-thirds African American and over one-third of the county’s residents lived in poverty, but whites made up the county political elite approving the decision. In Emelle, more than 90 percent of the residents were black. This is why Chem Waste chose Emelle. They worked with a local company led by the son-in-law of segregationist Alabama governor George Wallace to acquire the site. No one told local residents what was to be built there. Local rumors suggested a brickmaking facility. The company dumped polychlorinated biphenyls (PCBs) and other toxic materials at the site. Despite claiming it was safe, the company racked up hundreds of thousands of dollars in fines. Such activities were common for Chem Waste. It always chose communities like this to site its dumps—Port Arthur, Texas, in a neighborhood that was 80 percent people of color; Chicago’s South Side in a neighborhood 79 percent people of color; and Saguet, Illinois, a 95 percent African American area.

The racist actions of companies like Chemical Waste Management led to the environmental justice movement. By fighting for the environments where we live, work, and play, environmental justice has redefined environmentalism and connected capital mobility with environmentalism by focusing on how corporations make decisions about where to locate toxic exposure. Through the environmental justice movement, people of color began adapting the language of environmentalism to their struggles with toxicity and pollution. Scholars usually date the movement to an incident in 1982 when the state of North Carolina wanted to dump six thousand truckloads of toxic soil contaminated with PCBs in a predominantly African American section of Warren County. More than five hundred protesters were arrested. Civil rights leaders and community members began tying racism to environmentalism, noting how the Environmental Protection Agency in the Southeast had targeted African American communities for toxic waste dumping. A new social movement was born. Alabamians for a Clean Environment formed to fight the Emelle toxic waste site.

Chemical Waste Management had built a toxic waste dump in Kettleman City, California, a 95 percent Latino town in a white majority county. When the company planned to add a toxic waste incinerator, residents fought back, forcing Chem Waste to withdraw its application in 1993. Residents and the company still battle over environmental justice there today. African Americans in Anniston, Alabama, won a lawsuit against the chemical company Monsanto, which paid $390 million in 2003 for contaminating their neighborhood with PCBs, while residents of Norco, Louisiana, defeated Shell Oil in court, forcing it to pay for them to move away from the neighborhood the oil giant contaminated.

The Aftermath if King Is Decided Correctly

[ 50 ] June 17, 2015 |


We’ve discussed the politics of the Supreme Court announcing that the card says “Moops!” extensively.  But what if the Court correctly interprets the statute?  Here, I agree with Brian Beutler that things will get very messy for Republicans:

But it is also quite conceivable that the whole effort will boomerang on the GOP  even if the government wins in King, and the federal subsidies survive for those states using federally facilitated exchanges. A number of persuasive legal arguments point to a victory for the government. But one of the most likely paths begins with the Court concluding that the Affordable Care Act statute is ambiguous—that both parties’ readings of the law are plausible—and that deference should go to the government.

As Chief Justice John Roberts suggested with his one and only question at oral arguments, this would leave the door ajar for a future presidential administration to reinterpret the statute, and discontinue the subsidies.

It’s difficult to fathom that any Republican president would turn off the subsidies quite as abruptly as the challengers want the Court to do. But if the government wins in this way—on what’s known as the second step of the Chevron deference standard—it will create a new conservative litmus test for Republican presidential candidates. If elected, will you shut down the subsidies? I suspect most of the candidates will yield to pressure from the right and promise to do precisely that. Most immediately, this promise becomes a general election liability for the Republican primary winner. If that person becomes president, it will turn into an administrative and political nightmare, forcing states and the U.S. Congress to grapple with a completely elective policy fiasco.

I would guess that if the government wins in King — not what I’d bet on, but certainly possible — it will indeed be on Chevron deference grounds.  (Let me pause here to concur with Stephenson and Vermeule that for all intents and purposes Chevron is a one-step test.)  Roberts is right that this would allow President Trump to order the IRS to stop issuing the subsidies to free up money for his proposed solid gold toilet tax credit.  My guess is that whatever they say during the primaries, a Republican president would not unilaterally stop the subsidies.  I wouldn’t put anything past a contemporary Republican, but I think it’s more likely that the president won’t act without congressional collaboration.

But, certainly, the politics of this are genuinely bad for the Republicans.  Clinton should by all rights be able to make a big deal of this in the debates, and any candidate who survives the Republican primaries will presumably have had to make some kind of promise to wreck the federally established exchanges.  And while the Court upholding King on Chevron grounds won’t make the federally established exchanges invulnerable to future interference from a Republican president, it would at least pretty much ensure that political responsibility is apportioned correctly.  The Republicans might be able to evade accountability if the Court does their dirty work, but a Republican president unilaterally ending the subsidies is a different story.  They would own it fully.

I’m skeptical of the idea that the Republican Party would lose for winning King.  But they would definitely lose big by losing, barring the unlikely event that five justices find that the ACA unambiguously provides tax credits for the federal exchanges.

They should emerge onstage in the dead silence to which they’ll inevitably return

[ 193 ] June 17, 2015 |

Having just written a brief history — since 2008 — of conservatives being sued by musicians for using their work at campaign rallies, I’m thinking of doing them a favor and maybe writing up a list of songs by artists who might allow conservatives to use their work. Currently, I’ve got Kid Rock, Ted Nugent, and Pitbull. Suggestions?

UPDATE: Thanks for all the suggestions! Here’s what I ended up going with.

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