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Moops, He Did It Again

[ 252 ] June 25, 2015 |

A major and surprisingly unequivocal victory. Roberts and Kennedy aren’t heroes for rejecting what should have been laughed out of court, but in the political universe we do live in I give then due credit. And unlike Roberts’s Sebelius opinion there are no arbitrary bones thrown to the challengers or federalism nonsense, just the lucid opinion carefully explaining that the statute means what everyone involved always thought it meant.

The protesting-too-much purple prose in Scalia’s dissent has been well picked-over, but I do want to highlight his continuing daydream believing about Republican legislators:

As he did at oral argument, Scalia also showed himself as embarrassingly out of touch with American politics circa 2015. “The Court predicts that making tax credits unavailable in States that do not set up their own Exchanges would cause disastrous economic consequences there,” wrote Scalia. “If that is so, however, wouldn’t one expect States to react by setting up their own Exchanges?” Apparently, Scalia intends this question to be rhetorical; but the actual answer is Of course we would not. We’ve already seen more than 20 Republican-governed states turn down large amounts of free federal money that could be used to expand Medicaid, inflicting significant human as well as economic costs on their states. The idea that these states would act to cooperate – or simply in the best interests of their citizens – this time is absurd. And whatever Scalia thinks, Congress didn’t think they would, either, and established a federal backstop exactly for that contingency.


As Greg Sargent said earlier today, I think that the work that he and other journalists and scholars — a non-exhaustive list would also include Nick Bagley, Abbe Gluck, Jon Cohn, Stephen Brill, Michael Hiltzik, and Eric Segall — was very important, particularly given that at least Kennedy probably changed his mind after the cert vote. A strict “card says Moops!” argument was always going to be a tough sell for Roberts and Kennedy, which is why Adler and Cannon invented their ridiculous theories about congressional intent in the first place. The relentless accumulation of evidence that Congress absolutely did not intend to establish a federal backstop that didn’t work…certainly didn’t hurt. Optimism of the will.

Thoughts on the Lions winning the Super Bowl

[ 38 ] June 25, 2015 |


You read it here first.

Blogging is About Trust

[ 296 ] June 25, 2015 |

6amfI, for one, will never trust Lemieux again.

The Supreme Court cemented President Barack Obama’s signature achievement on Thursday by affirming that the Affordable Care Act intended to help all Americans who need help paying for their insurance.
In their 6-3 majority in King v. Burwell, the justices ruled that Americans are eligible for subsidies regardless of whether their state set up its own exchange. The result preserves premium assistance for 6.4 million customers in the 34 states that rely on the federal marketplace. On a practical level, it also preserves the mandate, at the center of the law and of its controversy, that every American buy health insurance.

[SL] …hey, my prediction could have been worse:

More soon, of course. I’m not shocked that Roberts voted for the government, but I am pretty shocked by how unambiguous the win was.

Guess How Much Qatar Cares About the Workers Dying in the Country?

[ 17 ] June 25, 2015 |


It cares not one whit!

A senior governmental body in Qatar met on Monday and voted against ratifying proposed changes to the country’s much criticised labour laws.

The Advisory Council, which can approve legislation that must be signed off by the emir, agreed to send proposed reforms of employment law back to a committee for further review, the state news agency QNA reported, rather than approve them.

Doha has come under severe pressure to change its controversial kafala sponsorship system of employment, which restricts the rights and freedoms of foreign workers. The wealthy Gulf state, which is due to host the FIFA World Cup in 2022, has been criticised by rights groups for failing to provide adequate working conditions for those constructing football stadia.

New employment legislation was supposed to make it easier for foreign workers to change their jobs and gain entry and exit visas, however, local media reported that the Advisory Council has gone against this and proposed giving employers more control over their staff.

“If an expatriate worker deliberately creates problems for the employer and does not comply with the contract to force the latter to end the contract or transfer his sponsorship to another employer, he should not be allowed to change jobs even if he runs away,” the committee recommended, according to Peninsula news site.

In other words, the World Cup should clearly stay in this workers’ paradise.

Supreme Court Politburo Watching

[ 80 ] June 25, 2015 |

supreme court

While those interested do some #waitingforLyle, why not some pointless predictions?  Sean Trende has a good roundup of the justices most likely to write the remaining opinions, so we’ll use him as a baseline.

The FHA case: Almost certainly an opinion authored by Kennedy, probably finding the FHA does not allow for a disparate impact claim.

Sadly, yes. Eliminating disparate impact claims is virtually tantamount to repealing the statute, which of course to the Roberts Court is a feature, not a bug. I’ll believe Scalia will save the FHA when I see it.

The Arizona redistricting case: Most likely Roberts or Kennedy, probably striking down the commission. The chances that Ginsburg writes this opinion, however, are not insubstantial.

Agreed. And he may be overrating the chances of an RBG opinion.

The Obamacare subsidies case: Either Roberts or Kennedy. This is a “pick ’em” on the outcome. If they do find for the government, expect federalism concerns to play a large role.

Basically right, although I’m agnostic on whether federalism would play a major role if the Court votes for the government. Forced to choose, I’ll stick with the Court going Moops. I can definitely see a classic Roberts faux-minimalist opinion a la Shelby County, with plenty of earnest-sounding lies about how Congress can easily fix the bad effects of the Court’s modest decision.

The EPA case: Scalia seems like the most likely author, which would almost certainly be a setback for the EPA. Kennedy could be writing this, however, especially if Ginsburg writes the Arizona redistricting case.

Alas, also probably right. The hidden time bomb of the remaining cases.

The ACCA case: This is probably Ginsburg, unless she has the Arizona redistricting case. If she does not write this opinion, anyone other than Breyer (or Scalia, if he does author the EPA case) is a likely candidate.


The Oklahoma death penalty case: This seems likely to go to a conservative justice. Under our rubric, Alito and Thomas are the only conservative justices who don’t have an opinion for this sitting (and who haven’t written eight opinions). But again, oral argument isn’t always clearly indicative of how things turn out, and we might be incorrect in our assumptions about how things play out in the other cases.

Perhaps the most mortal lock of the likely conservative victories.

Marriage equality: This opinion will probably be authored by Kennedy. The real question is just how far he is willing to go.

I actually don’t foresee anything cute here — I think the opinion will create a federal right to same-sex marriage. Kennedy being Kennedy, my guess is that the status of sexual orientation under the equal protection clause will remain a shambles. A lot of people think that Roberts will make this 6-3; I’m not one of them.

Nostalgia for the Clinton Years

[ 73 ] June 25, 2015 |


Remember when Bill Clinton thought it was a good idea to write laudatory letters to the Daughters of the Confederacy? That was in the long ago epoch of 1994. And those were good times.

“For 100 years, the United Daughters of the Confederacy has maintained and built upon the wonderful legacy of your founders. The strength of your organization today is a testament of the vision of your founders and to your commitment to your shared goals.”

“I congratulate you on your achievement, and I extend best wishes for many years of continuing success,” he concluded.

I suppose at some point we can bring in the argument of not reading too much of our current values into the past. Except that in 1994, it should have been anathema for anyone to say anything nice to a neo-Confederate organization except upon its disbanding and donation of the group’s assets to civil rights organizations. So I can’t give Clinton a pass here.

How Not to Talk About Sweatshops

[ 35 ] June 25, 2015 |


Active defenders of sweatshops really get under my skin because they combine a celebration of labor exploitation with cherry picking historical examples in order to create a false narrative of sweatshops leading to future national economic success.

Not so, says Benjamin Powell, a professor of economics and business at Texas Tech University who, controversially, argues that sweatshops are economically and socially beneficial to the countries they’re in.

“If you care about the consequences for the lives of developing nations workers I believe it is ethical to buy products made with sweatshop labor,” he says. Powell argues that sweatshops are not exclusive to poor countries in our modern, globalized world.

“My ancestors worked in the mills in Massachusetts. For the United Kingdom and the US, the process of development took more than 100 years to move through the sweatshop phase,” in which women and children worked in cotton mills, factories and manufacturing, he says.

Powell doesn’t suggest that sweatshops should be permanent fixtures but a stage in the development of developing nations, and they “often pay far above the levels of extreme poverty that exist in these countries and often even better than the countries’ average incomes. In 1960, Hong Kong, Singapore, Taiwan and South Korea all had sweatshops,” he says, but “in a generation they jumped from a pre-industrial standard of living to first world status.”

Major eyeroll here. First, sweatshops are not beneficial for these countries. They are rank exploitation. The sweatshops themselves did not lead to the economic explosion of South Korea and Taiwan. It’s not like those sweatshop workers were gaining skills that led to an information economy in Korea. And it’s not like the long-term sweatshops of Mexico, Honduras, El Salvador, and Guatemala has led to those nations rising economically. Rather, they have just been a next stage in a century of post-colonialist exploitation by American corporations. Note that the people making these arguments that sweatshops are great never reckon with the Latin American examples. They only focus on the Asian Tigers. But those nations have alternative reasons for their economic rise that include a) being close Cold War allies of the United States that led to massive economic growth as part of US foreign policy and b) steel and other heavy industries building huge new factories that out-competed the outdated US steel mills of the 1970s and 1980s, eventually forcing them to close. The heavy industry of China is a big reason why that nation has risen economically. Neither of those factors are likely to repeat themselves in the low-wage sweatshop economy of Bangladesh, Vietnam, and Cambodia. In other words,

And Lowell and the Triangle Fire were not necessary moments in the history of the rise of the American economy. The idea that the heavy exploitation of women workers in apparel factories is somehow required to have economic growth is completely absurd. Rather, these are highly avoidable situations where modern companies could still take advantage of relatively cheap labor while also not killing these workers, forcing them to undergo sexual harassment, pregnancy tests in order to work, stolen wages, etc. These are false choice offered by the defenders of the global race to the bottom. Back to the linked article:

“About 4 million people in Pakistan work in the textile industry and 95% of them never get the paperwork to prove it,” says Nasir Mansoor, deputy director of Pakistan’s Nation Trade Union Federation. “This means there’s no way for them to fight for their rights if something isn’t right.” The garment sector, he says, has some of the worst conditions for workers in the country.

“All garment factories, by law, have to register with the Pakistani government, but we estimate that 90% fail to do so and the government doesn’t enforce the law. It wasn’t too long ago that even inspecting the factories that were registered became outlawed in some provinces so there was no way to know what was happening in them either.”

It was only after the Karachi garment factory fire of 2012 that killed nearly 300 people and injured a similar number that the inspection ban was lifted.

Sajida Khanum, a 45-year-old, has only ever worked in sweatshops. She doesn’t want to disclose which factory she’s working in now for fear of losing her job and being blacklisted from working in factories again.

She says there is no security in her job, and that sometimes, when there is not enough work to do, she has to beg her contractor for work. Khanum gets paid about 40 cents per item she makes. “We have to work fast because we get paid per dozen garments.”

Khanum has been working in garment factories for 15 years. She says most workers live the contradictions of working in sweatshops. “We all do it because its necessary, what else are we to do? I’m uneducated, all I know is this job.”

It might be a hard pill to swallow, but what Pakistani garment industry workers Ahmad and Khanum say reflects what Powell has found in his research.

“When workers choose to take employment in a sweatshop, it demonstrates that they believe it is the least bad option available to them,” he says. “That means that, relative to their previous situation, these sweatshops improve their lives.”

Despite the rather specious reasoning over worker choice offered above (what other choice do these workers have, starvation? prostitution?), I do agree that we should not shut down these factories if we aren’t going to replace them with something else for these workers. After all, Kalpona Akter, head of the Bangladeshi workers’ movement, urges developed world consumers not to boycott these clothes because these workers need jobs.

So how do we fix these conditions while also empowering women workers and helping the world’s poor increase their economic status? As I’ve said in Out of Sight (now available for a Madison presidential election price of $18.08!), we have to create international standards that allow the poor of the world to live dignified lives and create middle classes of their own in ways that do not accept rampant exploitation. That must place power in the hands of workers to sue these corporations like Walmart and Gap if they or their contractors violate international standards of wages, working conditions, and pollution. This is how you create middle classes in nations like Bangladesh while taking away the incentive for these multinational corporations to move to the next nation as soon as these workers succeed in forming a union or enforcing a minimum wage. This is how you work toward international labor solidarity and it’s how you push back against defenders of the exploitation and murder of poor workers on the job.

The Harper’s Story on the ACA is a Disgrace

[ 73 ] June 24, 2015 |


You can pretty much discern the quality of Trudy Lieberman’s would-be takedown of the ACA from the ostensible left from the one paragraph that isn’t behind the paywall:

In July 2009, as the Affordable Care Act moved through Congress, Steny Hoyer, the second-ranking Democrat in the House of Representatives, laughed at the idea that any legislator would actually read the bill before voting on it. If such full-body immersion were necessary to support the A.C.A., he said, “I think we would have very few votes.” In March 2010, just before the law passed, speaker of the House Nancy Pelosi made a similar point. Addressing a national conference of county officials, she declared, “We have to pass the bill so that you can find out what is in it, away from the fog of the controversy.”

Durrr, a bill restructuring the American health care industry had a lot of words in it! We’ll pretend not to know how the contemporary legislative process works! We’ll take Nancy Pelosi egregiously out of context! (Although, in fairness, Lieberman does at least include the full sentence, which if you look carefully means that she’s not arguing anything like what it’s being implied she’s arguing.)

It is, I suppose, theoretically possible that an article that leads off with talking points that have been Fox News staples for many years could still be good. I didn’t take the hint and actually read the thing, and in this case the smart money is right. Some of the argument is reasonable, if banal — health care in the U.S. remains too expensive for many individuals and is too costly in general. Inevitably, Lieberman suggests that the real winner from the ACA are health insurers, although she doesn’t explain why they spent so much money to oppose the bill that is a massive windfall. (It’s true that the ACA provides more customers for insurers; it also has regulations that make many of these customers unprofitable.) Her discussion of employer-provided insurance is replete with post hoc ergo propter hoc problems.

Since there’s a limit to how many words I’m willing to type out, though, I wanted to focus on one particularly egregious part of the article, her treatment of the Medicaid expansion. It’s obviously not a surprise that this kind of attack on the ACA would yadda-yadda the Medicaid expansion. But the way Lieberman deals with Medicaid is considerably worse than had she ignored it altogether. Here is pretty much everything she has to say:

To its credit, the law also allowed sick people to buy insurance and more of the neediest Americans to qualify for Medicaid. But in the 21 states that chose not to expand their Medicaid programs, the poorest of the poor are ineligible for ACA subsidies and, in many cases, receive no help from the regular Medicaid program.

That’s it — the next paragraph moves onto another point, with both the Medicaid expansion and guaranteed issue consigned to a two-sentence “to be sure” graf in a lengthy article. The first problem is that the description doesn’t remotely convey the magnitude of the change involved in changing Medicaid to a program that was required only to cover a fraction of the very poorest to a an entitlement for everyone within 133% of the poverty line. But even worse is that she points out the states that have not taken the Medicaid expansion while failing to mention the Supreme Court re-writing the program. Her language effectively blames Congress for not creating a backstop to the version of the bill written after the fact by John Roberts, which is remarkably dishonest. Later, she cherry-picks Tennessee as a case study for how the ACA has worked for the poor, and after describing a state in which Republican officials refused to implement the ACA’s Medicaid expansion concludes that the ACA — not the Supreme Court, not the state officials — “failed a substantial part of the population it was actually designed to help.”

This shoddy analysis leads to other problems:

Perhaps these would have been reasonable tradeoffs for truly universal coverage. But the Congressional Budget Office estimates that even under the A.C.A there will be 35 million Americans without health insurance, down from about 52 million when the law was passed…Shoshanna Sofaer of the American Institutes For Research suggested that the ACA should be held to the highest possible standard. In three to five years, she said, we would know whether the law “led to anything remotely resembling universal coverage.” But this gets to the root of the problem. Whatever the slogans suggested, the ACA was never meant to include everyone.

The reader is likely to infer that 35 million is something like the ceiling of the ACA (she doesn’t mention, for example, that the CBO data expects the number of uninsured to go down to 27 million by 2017.) But even a ceiling of 27 million uninsured assumes, inter alia, that not a single other state will take the Medicaid expansion — not even Maine or Wisconsin or Virginia. And, obviously, an ACA that worked as intended with a full expansion would, in fact, be well down the road to universal coverage.  In the kindest construction, this is a fuzzy discussion of the issue that gives the reader very little idea how many Americans will have insurance in 10 years should the the ACA survive, and the one fact it selects leaves a highly misleading impression.

There are a lot of problems with American health care despite the major improvements of the ACA, and there’s certainly a good article waiting to be written about them, putting the accomplishments and limitations of the ACA in fair perspective. Lieberman’s relentlessly tendentious assessment is not even close to being that article.


[ 122 ] June 24, 2015 |


Paul Butler of Georgetown Law:

I have no respect for your ancestors. As far as your ancestors are concerned, I shouldn’t be a law professor at Georgetown. I should be a slave. That’s why they fought that war. I don’t understand what it means to be proud of a legacy of terrorism and violence. Last week at this time, I was in Israel. The idea that a German would say, you know, that thing we did called the Holocaust, that was wrong, but I respect the courage of my Nazi ancestors. That wouldn’t happen. The reason people can say what you said in the United States, is because, again, black life just doesn’t matter to a lot of people.


Explains World War II…

[ 76 ] June 24, 2015 |

Hanging on in quiet desperation is, quite literally, the English way:

The education minister, Najat Vallaud-Belkacem, quickly rejected the students’ pleas, saying: “In truth, I was quite surprised by the petition. Because ‘to cope with’ is part of the things one learns — and I am not fluent.”

But the students have their defenders. “This word ‘to cope’ is unusually hard to translate into French,” wrote Carol Just, a teacher of English in France, on the website, “and the English notion is difficult to understand even for experienced adult learners because there is no real equivalent in the French language and in the French mind.”

Confirmation of My Existence From a Reliable Source

[ 12 ] June 24, 2015 |

The New York Times Magazine is doing a special mental health issue this weekend, and the project I work on — we’re researching the neural correlates of transference — is prominently featured. They even mention my name, though I am but a lowly R.A.! Extry, extry, read all about it.

Grifting: There’s a Lot of Money to be Made Here

[ 211 ] June 24, 2015 |

Crackpot myths about gluten edition.

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