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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.

Oh, Who Will Defend Andrew Jackson?

[ 101 ] June 17, 2015 |


David Greenberg of course!* Author of noted redbaiting hack job against Howard Zinn and many other hackeries over the years, Greenberg comes to the rescue of the very mean people who don’t want a symbol of racist white settler colonialism and the genocide it caused on American money.

As always for Greenberg, the real enemies of American society are leftist historians:

The anti-Jackson campaign represents the overripe fruit of two generations of anti-Jackson scholarship. A century ago, progressive historians like Charles Beard saw Old Hickory as the champion of the frontier farmers and workers, fighting the Eastern moneyed classes; decades later Arthur M. Schlesinger Jr. focused on Jackson’s fiercely democratic politics, his class appeal rather than his sectional appeal. But in the 1970s New Left historians such as Michael Paul Rogin, awakening to problems his predecessors had ignored, placed Indian removal at the core of Jackson’s legacy and racism at the heart of his vision. More recently Jackson’s warlike nature and contempt for modern notions of civil liberties and due process have stained his reputation even more deeply. For years now, this unforgiving picture has been a staple of high-school lesson plans and popular culture.

Yes, imagine newer historians who care about race and genocide perhaps not lauding Jackson like Arthur Schlesinger, when the latter was not busy advising right-wing Bolivian governments on how to bust leftist unions.

As a historian living in 2015, what’s even worse than this is Greenberg trying to revive the old version of Jackson as the hero of the antbellum era, the man who brought white male democracy to the masses:

But the real problem with today’s anti-Jacksonism isn’t that it oversimplifies his defects; it’s that it tends to omit his signal virtues—most importantly his role in promoting a radically more egalitarian political culture than the United States had previously enjoyed.

Biography can be overrated in explaining a politician’s values, but it’s surely significant that Jackson was the first truly low-born president, the first chief executive not to hail from an established family or boast a selective education. Born in the mountains of Carolina, he lost both of his parents by his teenage years; his mother died during the Revolutionary War, contracting cholera as she tried to rescue two nephews from a British prison ship. (A brother also died in the war.) Andrew, though just in his early teens, also saw combat, engaging in the rough guerrilla-style warfare of the Carolina backcountry, which instilled, or maybe just reinforced, the courage and mettle, as well as the belligerence, that would mark his political career.

First, very little of this is significant in any meaningful way. Second, it’s not as if Jackson somehow created this new world of universal white male suffrage and democracy through his toughness and Old Hickory nature. He might have been a symbol of this movement, but it was happening anyway and people like Martin Van Buren and other Democratic Party founders had at least as much to do with it as Jackson. And to then go on to discuss the spoils system as a good thing?!?!?! Really? If firing every postal worker when political parties change hands is radical democracy, count me as a Whig.

But whatever, the fact that personality characteristics and his coming to power at the moment when white male suffrage swept the nation is weak beer, which is why historians rejected this view of the period anyway. This is hardly a convincing rejoinder to those who note the many horrible things that Jackson did. Whether you want him on the $20 or not, Greenberg provides no compelling reason why we should think fondly on the man, yet he seems to believe “courage and mettle” (and the spoils system!) is a rejoinder to “genocide” and “contempt for modern notions of civil liberties.” OK. Instead, he hacks away at ideas and historians he sees to his left, evidently a major crime in his mind.

Also, Jackson’s bank veto is pretty much not read in high school and college classrooms today. Except for David Greenberg’s classroom I guess. I’ve certainly never read it.

*And of course such defense would be in Politico.

Obama’s Next Move on the TPP

[ 93 ] June 16, 2015 |


President Obama, now openly working with the Republican Party to pass the Trans-Pacific Partnership, has very few short-term options on the Trans Pacific Partnership. So he and his new trade friend John Boehner decided to cancel a proposed vote scheduled for Tuesday on the issue, with the caveat that Boehner could bring the bill up anytime before July 30. What we can then expect is that Obama hopes that the labor-green-community alliance against the TPP will be letting its guard down and he can have another 6 weeks to pressure Democrats. Labor has been publicly lauding members of Congress for standing up to the president. With Hillary Clinton seeing how unpopular the TPP has become with the Democratic Party base and therefore unwilling to press for it, it’s a bit unclear how he picks up over 100 votes in the House, even if Boehner also pressures Republicans into voting for Trade Adjustment Assistance. And if the TPP passes without the TAA, there’s no way it survives the Senate. I still feel it will probably happen, I’ve never felt more confident that it won’t than I do now.

And if this goes until 2016 without fast track being passed, it is a dead deal until 2017 at the earliest. That’s a great thing for those opposed to the Investor State Dispute Settlement courts, aggressive corporate intellectual property laws, high drug prices and extended patents for pharmaceutical companies, polluted environments, the decline middle class jobs in the United States, and the continued exploitation of labor around the Pacific Rim. If you support those things, by all means support the TPP!

One other thing: Given the gerrymandered districts of 2015, I’d like to see the AFL-CIO, Sierra Club, and other leaders of the anti-TPP movement look to primary the Democrats who continue to support the TPP.

Out of Sight Excerpt

[ 15 ] June 16, 2015 |


In These Times published an excerpt of Out of Sight. If you’ve been wondering what it’s about it, you can read a chunk of it at the link. A bit of it:

Women make up the vast majority of the workforce, but men make up the supervisors. Sexual harassment is endemic. A 2006 report by Mexican labor and feminist organizations detailed massive sexual harassment in maquiladoras. Labor authorities ignore or downplay this harassment, not wanting to anger the corporations who could move again at a moment’s notice. A Human Rights Watch survey from 2002 found widespread unreported sexual harassment and intimidation at Guatemalan maquiladoras, where women made up 80 percent of the eighty thousand workers. Forty-six percent of these factory workers had experienced mistreatment from their boss, and five percent had been subjected to sexual advances. Analysts consider these numbers underestimates, arguing that many women naturalize sexual harassment and refuse to report it or admit that it is happening to them.

Employers also discriminate against pregnant women. This has a long history: RCA fired pregnant electronics workers in its Bloomington, Indiana, plant in the 1940s. Preemployment pregnancy examinations are common today, as contractors do not want to give pregnant workers paid leave. Kimberly Estrada, a worker at a Dong Bang Fashions factory in Chimaltenango, reported that she had to undergo a gynecological exam by a company doctor at the factory before she could work. If workers became pregnant while employed, their bosses would not give them time off to go to the doctor nor the maternity leave mandated by the Guatemalan labor code. Women have miscarried at work, unable to get the medical treatment they needed to save their babies.

Human rights groups in the United States and Mexico filed a complaint in 1997 over what they called “state-tolerated sex discrimination against prospective and actual female workers in the maquiladora sector along the U.S.-Mexico border,” focusing on pregnancy testing and discrimination against pregnant workers. This pressure led to American companies announcing the end of pregnancy testing in the maquiladoras and Mexico issuing new directives to labor officials to stop it. Members of Congress introduced legislation to make pregnancy testing in American-owned factories illegal, suggesting that in fact American politicians could do much more to regulate the conditions of work overseas than they usually claim. But the textile companies found Mexican wages too high anyway, and they simply moved the jobs to Central America and Southeast Asia, forcing the struggle to start anew.

Low wages, sexual harassment, and poor working conditions continue to plague women in the garment industry. Today, women in Bangladesh toil in apparel factories for the national minimum wage of $37 a month. In one factory, women were forced to work 100 hours a week during peak production periods, and supervisors punched and slapped them. The victims included pregnant women, and at least one miscarried because of the treatment. Other pregnant women were forced to quit or denied their legally mandated maternity leave. Women in Cambodia and Indonesia fare little better, making $75 a month in the former and as low as $80 a month in the latter. In all these countries, women are fighting back through labor unions. In Indonesia, Nike had to pay 4,500 workers a $1 million settlement after having not paid them for more than 600,000 hours of overtime over a two-year period—a decision that came only after Indonesia’s labor federation pressed a lawsuit.

Unfortunately, the U.S. government contributes to these problems through its purchasing practices. The U.S. Marine Corps contracts its shirt production with DK Knitwear in Bangladesh. A 2010 report showed that one-third of DK workers were children, mostly young girls, and that the plant had no fire alarms despite previous fires in the facility. Women at Zongtex Garment Manufacturing in Cambodia soiled themselves at machines making clothes for the U.S. Army and Air Force. The Transportation Security Administration (TSA) signed a contract with a Mexican company in February 2013; the same company had previously treated uniforms with chemicals that caused rashes in TSA agents. Yet Republicans attacked TSA for paying too much to the Mexican workers. Like the rest of the apparel industry, the government relies on subcontractors, pays no attention to the working conditions in plants, and pushes for the cheapest price regardless of the social cost.

Does the President Criticizing the Court Threaten Judicial Independence? (SPOILER: No.)

[ 63 ] June 16, 2015 |


Maybe the person who orders the pizza for meetings of the Spokane Democratic Party is out of town, because I’ve been promoted to the Very Face of the Left Today:

If you do what McLaughlin obviously didn’t do and give at least a cursory look at the text of the article in question, you will see that in fact my argument is that the assertion that Obama is “bullying the Court” is asinine. But even if you don’t, the scare quotes around bully should probably tell you something.

To move on to a marginally more serious argument, the Good Cop of the legal war against the ACA joins the chorus criticizing Obama for his remarks. He points us to this discussion by Jess Bravin of a recent study about presidential rhetoric and the Court. One thing that is clear Obama’s actions are not unprecedented. George H.W. Bush apparently already destroyed judicial indpendence (sic) by uring the Court to overrule Roe before both Webster and Casey. Obama does seem to have mentioned pending cases more often than any other president since Eisenhower, but since none of these presidents have seen the centerpiece legislation face the kind of sustained legal attack that the ACA has faced I don’t think this tells us much of anything.

Adler argues that the only problem is with the precise timing of Obama’s comments:

To me, Presidential reticence about discussing pending cases during judicial deliberations is a sensible convention, and I see no go reason to violate it. Increasing public awareness about the Court and its decisions does not require the President to comment during judicial deliberations, and Rick never even suggests otherwise. There is plenty of time for the President to comment when a case is brought, when briefs are filed, and once it is decided. No one, to my knowledge, has ever questioned the propriety of such comments. The question is not whether the President should talk about cases, but whether the President should talk about cases while the Court is deliberating, and I’ve seen no serious argument that comments during pending judicial deliberations serve much public purpose.

The prosciutto is getting to be nearly translucent. There’s nothing wrong with presidents making their views about the merits of a case clear ex ante, there’s nothing wrong with them making their views clear after a decision is being handed down, but there is something wrong with reiterating their views between oral argument and the decision being handed down.  One of the authors of the study asserts to Bravin that Obama was violating a “very strong norm of judicial independence,” Unless the president says that he won’t obey an unfavorable decision — Nixon’s comment that he would only obey a “definitive” decision in the tapes case being a classic example — I frankly have no idea. Aware that his attempt to confine his critique to the specific timing of Obama’s comments may seem awfully convenient, Adler attempts an analogy to Bush and Boumediene. I don’t think a case involving an individual being detained is the best analogy to King, but even so I don’t think there would be anything procedurally illegitimate about Bush saying that the Court shouldn’t have taken the case between oral argument and the decision being handed down. After all, we knew that was his position anyway.

I do think one mistake the study makes is to assume that is the president speaks between oral argument and the handing down of the opinion, then the justices must be the intended audience. But at least in this case, I think this is almost certainly wrong. The conference vote in this case was three months ago. The chances that Obama’s remarks would cause a justice to switch their vote a couple weeks before the end of term are nil, and Obama knows this (indeed, if he thought they would have a chance of affecting the outcome he probably would have known better than to say anything.) His audience was the media and the public, not the Court.

And I think Adler knows this:

Harvard’s Larry Tribe, for instance, told The Post that “Presidents should generally refrain from commenting on pending cases during the process of judicial deliberation.” According to Tribe, who was one of the president’s professors in law school and briefly served in the administration, “Even if such comments won’t affect the justices a bit, they can contribute to an atmosphere of public cynicism that I know this president laments.”

Let me get this straight. Someone who is not only an architect of the King litigation but has advanced a particularly implausible and ahistorical interpretation of the statute is citing eventheliberal Laurence Tribe on behalf of the proposition that Obama is “contribut[ing] to an atmosphere of public cynicism.” I can’t even. But I think that’s the real issue here. Evidently, it’s in the interest of the ACA’s opponents to portray this as a technical legal dispute, with the public hopefully ignoring the fact that this litigation is the product of political opposition to the statute. Obama’s comments help to dispel this illusion, which is why the ACA’s opponents don’t want him to talk about it.

The Magna Carta and Marbury

[ 79 ] June 16, 2015 |


Tom Ginsburg:

MAGNA CARTA, on which King John placed his seal 800 years ago today, is synonymous in the English-speaking world with fundamental rights and the rule of law. It’s been celebrated, and appropriated, by everyone from Tea Party members to Jay Z, who called his latest album “Magna Carta Holy Grail.”

But its fame rests on several myths. First, it wasn’t effective. In fact, it was a failure. John was a weak king who had squandered the royal fortune on a fruitless war with France. Continually raising taxes to pay for his European adventures, he provoked a revolt by his barons, who forced him to sign the charter. But John repudiated the document immediately, and the barons sought to replace him. John avoided that fate by dying.

The next year, his young son reissued Magna Carta, without some of the clauses. It was reissued several times more in the 13th century — the 1297 version is the one on display in the National Archives and embodied in English law. But the original version hardly constrained the monarch.

A second myth is that it was the first document of its type. Writing in 1908, Woodrow Wilson called it the beginning of constitutional government. But in fact, it was only one of many documents from the period, in England and elsewhere, codifying limitations on government power.

It’s not a precise comparison, of course, but I would say that roughly the Magna Carta is to the development of constitutional government as Marbury v. Madison is to the development of judicial review. That is, it’s a relatively trivial episode that ended up being used well after the fact to justify changes that were happening for independent reasons, and its symbolic importance is sometimes mistaken for actual causal significance. The symbolic use of the Magna Carta is of greater historical importance, but if advocates of constitutionalism didn’t have the Magna Carta they would have used something else.

I assume it’s unintentional, but I also like this:

Magna Carta has everything going for it to be venerated in the United States: It is old, it is English and, because no one has actually read the text, it is easy to invoke to fit current needs. A century ago, Samuel Gompers referred to the Clayton Act as a Magna Carta for labor…

Since, as George Lovell put it, the immediate substantive value of the Clayton Act to the labor movement was worth less than the souvenir pen Wilson used to sign it, Gompers had a point!

Ethnic Cleansing in the Dominican Republic

[ 27 ] June 16, 2015 |


The long time Dominican Republic treatment of Haitian migrants has been an abomination. Now it is getting worse with the DR seeking to strip descendants of Haitians of their citizenship.

…Link is fixed. This is what happens when you set up material for the next day because you are going to be at a conference and then you screw it up. Thanks to Origami Isopod for the link. Also, thanks to the LGMers who came out for my DC booktalk last night. Working on scheduling a couple more events and will let you all know. I can say that those in New York should plan on being at Local 61 in Brooklyn on July 29 for drinks and me.

Good Art is Not A Self-Help Manual

[ 167 ] June 16, 2015 |


There is a familiar kind of inept criticism, sometimes covered here, which assumes that when bad behavior is portrayed with insufficient didacticism that the creators must endorse it. Noah Berlatsky’s critique of GoodFellas flirts with this argument, but lands at a different, more original kind of terrible argument:

And that’s precisely why Smith’s callow reading can’t be dismissed. Goodfellas shows the ugly, stupid, humiliating consequences of the manliness Smith touts, but it has nothing to offer in its place. If you’re not the guy screwing people over, then you’re the guy being screwed. Goodfellas’ gendered imagination allows for no other positions.

So Berlatsky concedes that GoodFellas is not presenting us with role models, even if Scorsese assumes that the audience can draw the conclusion that robbing and killing people for a living is immoral on its own. He even seems to concede that Scorsese sees this conception of masculinity and the horrible behavior of the characters as being linked. But where is the constructive alternative? Why can’t this movie about Brooklyn mobsters tell us how to live?

I’m curious how Scorsese could have made the movie less of a “chore” for Berlatsky to sit through by showing modes of masculinity other than those practiced by the characters the film was about. Perhaps Henry Hill and his friends could have been urbane, feminist intellectuals who made sure to get home in time from the hijacking to ensure that they took an equal share of the domestic work? Or maybe he could have had lengthy coda from Hill’s witness protection period, in which Hill explains in lots of expository dialogue over some egg noodles and ketchup how the particular form of masculinity he was embedded in was a trap, and dammit a man is a man when he can offer his hand, he don’t have to perform like John Wayne in some B feature flick. Perhaps we should consider the possibility that Western art peaked with After School specials and The Newsroom.

Or maybe Scorsese could tell the story he wanted to tell and assume that his job is to make the best movies he can, not to tell people how to live ethically. I’m still inclined to think he chose the right course. Glenn Kenny’s remarks about The Wolf of Wall Street are also relevant here.

Today in the New Gilded Age

[ 95 ] June 15, 2015 |


The hard times of the uber wealthy:

Billionaire hedge fund manager Dan Loeb and Lightyear Capital Chairman Don Marron are among the collectors who will head to the Swiss city of Basel to check out the world’s largest modern and contemporary art fair.

Art Basel opens to invited guests on June 16 in the quiet Swiss city on the Rhine River. The fair’s 46th edition includes 284 galleries from 33 countries showing works by 4,000 artists. Insurer AXA Art estimates there’s 3 billion euros ($3.4 billion) of art on view, about the same as last year.

Last month’s New York auctions set new records as $2.7 billion of art changed hands — up 23 percent from a year earlier — and a Picasso painting fetched $179.4 million.

“Interest rates are so low that people have so much money they don’t know what to do with it,” said Robert Landau, owner of Landau Fine Art, which is offering a $30 million Pablo Picasso painting. He said one of his clients is a 37-year-old man who retired after earning a fortune and is “sailing around the world and buying paintings to put on the boat.”

Warren Buffett’s NetJets Inc., a sponsor of the fair for the 12th year, said it has booked about 110 private flights in and out of Basel, a 10 percent increase from a year ago.

Rain Barrels

[ 77 ] June 15, 2015 |


That collecting rainwater on your own property in barrels remains illegal in Colorado is a great entry point into the complex and extraordinarily contentious water politics of the West, where every drop can lead to a legal action.

Another Trip to the Appelbee’s Salad Bar

[ 47 ] June 15, 2015 |

David Brooks and facts — so often a distant relationship.

Of course, pointing this out presumably makes you guilty of “correct politicalness.” Brooks is also a fan of the defense that Ferguson hung such a maladroit label on:

I went through some of the other instances where he made declarations that appeared insupportable. He accused me of being “too pedantic,” of “taking all of this too literally,” of “taking a joke and distorting it.” “That’s totally unethical,” he said.

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