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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.

Legalistic Environmentalism

[ 34 ] March 26, 2014 |

Two recent pioneers of environmental law–David Sive and Joseph Sax–died recently. Both of these deaths reminded me of the complex legacy of legalistic environmentalism. By this, I mean the reliance by environmentalists on the courts to enforce environmental law as the primary means of effective advocacy, as opposed to grassroots organizing. This strategy began in the early 1970s but really took off in the late 70s as the political system became increasingly hostile to environmentalism with the growth of conservatism and the organization of the business lobby after the Powell Memo.

By the early 1970s, environmental organizations found the legal requirements of newly passed environmental legislation useful tools to force corporations and government to rethink their impact and policies. These laws passed with widespread support, sometimes unanimous voice votes in the Senate and nearly unanimous votes in the House. The overwhelming support for these laws is why Richard Nixon deserves no liberal credit for them, but that’s another issue. The laws themselves came out of grassroots demands and an overwhelming sense by Americans before 1973 that they could have both jobs and a clean environment. The mess of the American environment before 1970 profoundly moved citizens, as air and water pollution, the decline of wildlife, and other environmental hazards were manifested every day before people’s eyes (and noses and ears).

Of course, just because legislation passed didn’t mean that polluters and natural resource managers immediately stopped what they were doing and changed course. It required lawsuits to make that happen. The Izaak Walton League for instance sued the United States Forest Service to stop clearcutting on the Monongahela National Forest, noting that the Organic Act of 1897 allowed for logging only “dead, matured or large growths of trees” that had been “marked or designated.” Clearcutting definitely doesn’t qualify under that language. When the courts found in favor of the plaintiffs, Congress came back with the National Forest Management Act of 1976, a law that explicitly allowed clearcutting, but also created public comment periods and environmental impact statements for each national forest unit. These requirements gave environmentalists the ability to challenge the USFS and BLM on all sorts of entirely legitimate grounds, especially the Endangered Species Act after the NFMA required federal agencies to manage for wildlife.

And who can blame environmentalists for using these great tools. By the 1980s, they became all the more important because the hostility of the Reagan Administration and the rising conservative movement, personified in the Sagebrush Rebellion but really affecting environmentalism everywhere, slowly closed the legislative doors to environmentalists. What’s more, economic crises, job blackmail, and capital mobility went a long ways to undermining the popular environmentalism of the 60s and early 70s. When workers fear their employers are going to move to Mexico or Taiwan if they have to put that scrubber on the smokestack or stop dumping the PCBs, they are going to be too scared to push their employer on it (even though the employer was already planning to shift operations anyway). Consolidating gains and forcing the hands of reluctant government through lawsuits became the most important strategy for environmentalists. People live Sive and Sax played important roles in this process.

So the strategy totally made sense and I don’t want to criticize it per se. Taking companies to court made a lot of sense. But it’s also worth noting that the reliance upon court cases by the 80s and 90s basically meant that there wasn’t much of an effort to mobilize people on the ground. The big green organizations focused on fundraising for their legal operations and political lobbying. The focus of environmentalism turned from the nature you and I experience every day to charismatic animals like polar bears or the Amazon rainforest, things most of us will never see. Mobilizing the populace was becoming less important. Grassroots environmentalism became politically marginalized, although locally important. By the time of the spotted owl situation in the late 80s, the ground for environmentalists to talk to working class people had already slipped away. Some environmentalists understood that their own strategy shifts exacerbated this problem, although it’s of course complicated. More to the point, what the lack of a grassroots environmentalism has done is make the movement so overly reliant upon legal and political strategies that at a time of conservative domination, where courts increasingly don’t find for greens and even Democrats in statehouses and Congress increasingly ignore them, there is no real ability for mobilization.

Of course, this is perhaps an overly simplified narrative of shifting environmentalism and one can always question the extent to which big green organizations ever could truly call out the troops. And again, they didn’t make the wrong choices by using the courts. But it’s worth noting that the shift to legal strategies as the primary arena of fighting was both entirely justifiable from a strategy perspective and also had negative repercussions that environmentalists’ struggle to deal with today.

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.

Taking “Religious Freedom” seriously

[ 107 ] March 25, 2014 |

Shorter Patrick Deneen: A soulless, disembedded, fully globalized 21st capitalist corporation like Hobby Lobby claiming ‘religious freedoms’ is fundamentally absurd, and makes a mockery of the very concept. I sincerely hope they are successful.

That Term “Poor and Rural,” I Do Not Think…

[ 65 ] March 25, 2014 |

The man who considers Cinderella Man one of the peaks of Western Civilization has yet more Deep Thoughts about culture to share:

What does a poor or lower-middle-class white person, especially one from the South or Southwest, have to do to get a break from fancy high-end TV producers? It is a remarkable fact about this new Golden Age of television, which began with The Sopranos in 1999, that its primary focus of attention is the population cohort known (with the exquisite cultural sensitivity we have all learned in the era of political correctness) as “white trash.”

[...]

Still, rich Hollywood folk making mincemeat out of poor rural folk is another element of the ongoing American culture war that should not go unremarked.

As Scocca notes, J-Pod’s examples of “poor rural folk” include:

  • Tony Soprano, a millionaire who lives in a mansion in New Jersey.
  • Walter White, a middle-class schoolteacher.
  • Don Draper, a prosperous advertising executive who works in New York City.

And also Bill Henrickson, a wealthy suburbanite who ultimately becomes a state senator. Although at least he is from the southwest, so as with Walter White at least one out of three on that one!

You have probably already guessed that the punchline is something about how Democrats, unlike rich white Manhattan Republicans, are clueless about the rural poor. There is nobody who can refute himself like J-Pod.

The Palisades and Privatized Nature

[ 58 ] March 25, 2014 |

I think one of the most telling environmental issues of the decade will be the question of whether LG will be allowed to build an office building in the Palisades, the area of New Jersey just north of New York and an unspoiled viewshed for millions of people driving across the George Washington Bridge. Four New Jersey governors, including 2 Republicans, are opposing the project.

In The Rise of Silas Lapham, one way William Dean Howells paints Lapham as both a man of his Gilded Age times and something of a uncouth newcomer is his attitude toward nature. Lapham believes the natural world is for any man to use for his own personal gain, particularly when it is Lapham’s personal gain. So he paints rocks with his paint, advertising himself in places of great natural beauty.

In effect, LG’s plans to build the office tower, openly articulated by the company as claiming the view for itself and its employees, is the New Gilded Age version of Lapham’s world view. Beginning in the Progressive Era, government began claiming the natural world for the public. Even if the actual people were often ignored in land management over the years, it became much harder for private companies to engage in simple land grabs for private benefit.

Today, we are moving into the New Gilded Age with aplomb. As part of this, conservative forces are articulating their true beliefs about labor and nature, beliefs often subsumed behind socially responsible rhetoric for decades. Will LG be allowed to engage in a Lapham-esque appropriation of the natural world for its own business purposes? This is a very important question that may go a long ways to determine the future of public lands in the U.S.

I’m Sure This Will Be the Technological Solution That Will Finally Allow Us to Conquer Nature

[ 96 ] March 25, 2014 |

Agriculture has spent over half a century fully committed to better living through chemistry, using massive applications of industrial fertilizers, herbicides, and pesticides to produce enormous harvests. In the short term, it has worked, but the long-term success of this plan is far from assured. The biggest problem is that humans may try to control nature, but they can’t control nature. To borrow a central theoretical term from my professional field of environmental history, nature has agency and it pushes back against human domination. Specifically in this case, plants develop resistance to chemicals, forcing agribusiness to create ever more powerful poisons that weeds will soon again resist.

So the new strategy is biological engineering, creating a sort of Weed Genome Project to eventually create more effective herbicides. Which I am sure will not work in the long term, but I suppose at this point agribusiness will keep doubling down on profitable chemical applications until the entire system collapses under the weight of declining petroleum supplies.

Nino’s Comedy Classics

[ 86 ] March 25, 2014 |

Antonin Scalia, today at oral argument, pressing Solicitor General Verrilli on whether the government could pay for contraceptives in cases where secular for-profit corporations act to deny the statutory rights of their employees:

You’re talking about, what, three or four birth controls, not all of them, just those that are abortifacient. That’s not terribly expensive stuff, is it?

Classic Scalia. Let’s see:

  • As Verrilli pointed out, IUDs –  one of the forms of birth control Hobby Lobby doesn’t believe that the insurance that they get tax benefits to provide their employees instead of wages should cover — are both very effective and quite expensive.
  • As Justice Ginsburg observed, If one accepts the argument that any bare assertion of a religious conflict on the part of an employer justifies burdening the rights and interests of employees in this way, it will obviously have applications well beyond the specifics of what Hobby Lobby is asking for, and will result in any number of cases in which the government would be required to pay for any form of contraception.
  • No form of contraception is an “abortifacient.” This is true even if one takes the utterly bizarre view that the failure of a fertilized egg to implant constitutes an “abortion.”

But, you know, I’m sure Scalia’s political views aren’t the reason he’s already revised his purported legal views in light of the Affordable Care Act once.

Terrible Arguments Against the Contraception Non-Mandate: Ladies Against Women Edition

[ 294 ] March 25, 2014 |

I’m still making my way through the Hobby Lobby oral arguments. In the meantime, let’s look at the Independent [sic] Women’s Forum’s inadvertently instructive arguments against the contraception non-mandate. Let’s throw out the first non-sequitur:

“These cases do not represent a conflict between religious employers and female employees. Women have been and will continue to be free to seek out and purchase the contraceptives of their choice,” IWF Health Policy Director Hadley Heath said.

It is true that granting an exemption would not result in the literal banning of health care. It does not follow, however, that the IWF position does not represent a conflict “religious employers and female employees.” Female employees will be denied a statutory right if the Court accepts the arguments made by the IWF. (A burden that does not just affect the interests of women, either, unless men no longer have any legal or moral responsibility for raising children.) The denial that’s there’s any conflict is particularly rich given that Hobby Lobby et al. are asserting that a “substantial burden” has been created by provision that doesn’t require them to do anything.

Instead, these cases illustrate the inevitable conflicts that result from too much government involvement in health care. The contraception mandate works contrary to women’s interests.

Ah, and once again, we have the show given away. These legal arguments aren’t really about religious freedom; there’s just the latest in a series of ad hoc assaults on the ACA by conservatives who simply oppose the non-affluent having access to health care in principle. The dash of Orewellian nonsense on top is a nice touch, though.

So how does the employer non-mandate work contrary to the interests of women?

Personal health care decisions should be in the hands of free patients and doctors, not prescribed by one-size-fits-all mandates.

Well, fortunately, the requirement that insurance plan cover contraception leaves health care decisions in the hands of patients or doctors. This is one of the many things that makes it preferable to the IWF’s position, which would involve interposing the religious beliefs of employers between patients and doctors.

As for the silliness about “one-size-fits-all” mandates, once again it proves too much. If taken seriously, it would apply equally to any requirements that insurance cover specific things. According to the IWF, employers should get tax benefits for paying employees in health care instead of wages, but requiring that this insurance actually cover things is bad because FREEDOM! They’re welcome to this nutty argument, but neither RFRA nor the First Amendment enacted a free-floating consevertarian opposition to the concept of regulating health insurers.

“This case is about much more than contraception. It is about the principles of liberty that animate our Constitution.” Indeed! Which is why the IWF’s arguments should be rejected.

Our New Overlords Make Their Move, Show They Hate America

[ 69 ] March 25, 2014 |

The jellyfish are on the march:

But CSIRO Wealth from Oceans research scientist Lisa-Ann Gershwin says more research needs

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to be done around potentially deadly jellyfish becoming even more toxic.

She says this is more of an immediate problem than jellyfish migrating south from tropical waters.

“For a population to migrate, its whole habitat has to migrate with it, so we’re talking some time.

“We do know that warmer water does trigger some species of Irukandji to be more active and more toxic.

“It’s highly likely that smaller increase in temperature will trigger resident jellyfish to become more pesky, than to trigger far away jellyfish to migrate down.”

Great, climate change will not only make jellyfish the dominant animal in the oceans, but it will make them even more deadly, no doubt just part of a process of preparing for land-based invasions where they will unite with the robots to enslave all humans. Or maybe they will just turn their powers against America:

In 2006 jellyfish were sucked into the intakes of the nuclear-powered USS Ronald Reagan in Brisbane during its maiden voyage.

Whoa, they attacked Reagan? I knew jellyfish were Democrats! You’d think this alone would get McConnell and Boehner on board for some climate change legislation. Oh well, let’s just all have some nightmares tonight:

One bloom of sea tomato jellyfish travelled from Broome in August 2012 to Exmouth in May 2013 in Western Australia.

“They were so huge you could see them from space,” Dr Gershwin says.

Some jellyfish have hundreds of mouths.

Curling up in corner, weeping.

Soylent Green is Industrialists!

[ 142 ] March 25, 2014 |

Hi. Do you feel like something is missing from your life? Of course you do, and it’s this: A mashup of “Soylent Green” and characters that were rejected by the show “Portlandia” for being “a little too over-the-top.”

Well, don’t look into it or anything, but Liberty Island is pretty much the best thing on the internet, perhaps surpassing in awesomeness even this little boy arguing about cupcakes with his mother. Why is it so awesome? Because it’s like Conservapedia except with art. Or “art.” Your mileage may vary.

If you’re too chicken to click, here’s are a couple of paragraphs from the Soylent Green-Portlandia mashup:

To the general amusement of the old gang, Allison over the years had introduced a series of increasingly eccentric boyfriends as her enthusiasms meandered from eastern medicine to preserving the Amazon to vegan cooking. The last had coincided with the introduction of a painfully thin, bearded fellow the group quickly dubbed Ashram Anton, as much for his fiercely-spiced vegetarian curries as his appetite for recreational drugs.

Anton ran a vegetarian restaurant on Hawthorne Boulevard. The Sacred Cow was a narrow cavern of a joint wedged between a non-profit women’s interest bookstore and a used-CD shop. A cramped cluster of tables overlooked by hemp wall hangings and yellowed Robert Crumb posters fronted a lengthy kitchen, hidden behind a beaded curtain, where Anton concocted his leafy delights.

I know I’m always saying this to you, but this time I really mean it: YOU’RE WELCOME.

Dan Snyder’s Trolling

[ 58 ] March 25, 2014 |

Dan Snyder may be America’s biggest troll:

The owner of the Washington Redskins, who adamantly refuses to change the team’s controversial name that many believe to be a racial slur, announced Monday he was starting a new foundation to aid Native Americans called the “Washington Redskins Original Americans Foundation.”

“The mission of the Original Americans Foundation is to provide meaningful and measurable resources that provide genuine opportunities for Tribal communities,” Dan Snyder said in a statement. “With open arms and determined minds, we will work as partners to begin to tackle the troubling realities facing so many tribes across our country. Our efforts will address the urgent challenges plaguing Indian country based on what Tribal leaders tell us they need most.”

Snyder said he reached the decision to create the foundation after visiting 26 reservations where he learned “first-hand about the views, attitudes, and experiences of the Tribes.” The initiative has already begun providing coats and shoes to poverty stricken communities.

“The Washington Redskins Original Americans Foundation will serve as a living, breathing legacy – and an ongoing reminder – of the heritage and tradition that is the Washington Redskins,” he added.

This is precisely what Native Americans need–a rich white guy donating a few coats to charity. This totally makes up for centuries of racism against Native Americans that said rich white guy openly continues.

Also, “Original Americans?” He couldn’t just say Native Americans? Borrowing First Peoples from Canada would have been fine too. Or “indigenous.”

…..Yesterday was also the 175th anniversary of the arrival of the last group of Cherokees to Oklahoma on the Trail of Tears. Makes Snyder’s announcement extra special.

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