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These Things I Believe

[ 30 ] February 26, 2015 |

Dutch beer available in North America is indeed the worst.

And while we’re dealing with arbitrary Deadspin lists, this is very solid. Craig might be the most irritating and least funny recurring character on a first-rate sitcom ever. I would put Chris Traeger at #30, and maybe move Anne Perkins and especially Dr. Saperstein up a notch, but otherwise it seems about right.

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The War Against Rahm

[ 89 ] February 25, 2015 |

Excellent analysis from Weigel. One of the many interesting takeaways is Emmanuel’s failure on the city council races:

Emanuel’s weakness was felt all across the ballot. He’d created a super-PAC, Chicago Forward, to bail out 17 of his allies on the council and to beat progressive incumbents. Only seven of them won outright: Will Burns, Mike Zalweski, Danny Solis, Robert Maldonado, Margaret Laurino, Pat O’Connor, and Debra Silverstein. The rest were forced into runoffs, including Deb Mell, the sister-in-law of disgraced former Governor Rod Blagojevich. Meanwhile, Chicago Forward had lobbed mailers at two aldermen–Scott Waguespack and John Arena–who’d asked the SEC to investigate the legality of donations to Emanuel from the executives of companies managing the city’s pension funds. Arena narrowly missed a win and will head to a runoff; Waguespack won outright.

It was not all progressives wanted, but it was not what the super-PAC had wanted either. The progressive bloc was expected to expand to 12 of the council’s 50 seats.

“The good guys won Round One,” said Working Families Party national director Dan Cantor in a statement. “Forcing Mayor 1% into a run-off is a remarkable achievement. Along with the run-off, the progressive caucus on the Council is poised to make gains.”

Perlstein explains how Emmanuel was forced into a runoff:

Perhaps what turned some voters against Rahm at the last minute—or motivated them to go to the polls in the first place on a cold Chicago day that started out in the single digits—was an Election Day exposé that appeared in the British paper the Guardian by investigate reporter Spencer Ackerman. “The Disappeared” revealed the existence of Homan Square, a forlorn “black site” that the Chicago Police operate on the West Side.

There, Chicagoans learned—many for the first time—arrestees are locked up for days at a time without access to lawyers. One victim was 15 years old; he was released without being charged with anything. Another, a 44-year-old named John Hubbard, never left—he died in custody. One of the “NATO 3” defendants, later acquitted on most charges of alleged terror plans during a 2012 Chicago protest, was shackled to a bench there for 17 hours.

It “struck legal experts as a throwback to the worst excesses of Chicago police abuse, with a post-9/11 feel to it,” the Guardian reported. And for a candidate, Rahm Emanuel, who ran on a message he was turning the page on the old, malodorous “Chicago way,” the piece contributed to a narrative that proved devastating.

Indeed, the mayor faced a drumbeat of outstanding journalistic exposés all throughout the campaign. The Chicago Sun-Times reported on Deborah Quazzo, an Emanuel school board appointee who runs an investment fund for companies that privatize school functions. They discovered that five companies in which she had an ownership stake have more than tripled their business with the Chicago Public Schools since she joined the board, many of them for contracts drawn up in the suspicious amount of $24,999—one dollar below the amount that required central office approval. (Chicago is the only municipality in Illinois whose school board is appointed by a mayor. But activists succeeded—in an arduous accomplishment against the obstruction attempts of Emanuel backers on the city council—to get an advisory referendum on the ballot in a majority of the city’s wards calling for an elected representative school board. Approximately 90 percent of the voters who could vote for the measure did.)

The Chicago Tribune reported that of Emanuel’s top 106 contributors, 60 of them received favors from the city. Another in-depth investigation discovered that City Hall had lied repeatedly about a signature initiative of the Emanuel years, automated cameras that issue tickets for the running of red lights. The administration insisted the cameras led to a 47 percent decline in “T-bone” crashes, when the true number was 15 percent—and they also caused a corresponding 22 percent increase in rear-end collisions. That reinforced suspicions that the cameras weren’t installed for the safety of “the children,” as Emanuel sanctimoniously insists, but are a revenue grab, a regressive tax that falls disproportionately on the poor.

I have no idea if the anti-Rahm movement can finish the job — evidently, Garcia is a significant underdog — but I hope so. Moral victories are nice but victory victories are better.

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Transit/urbanism links

[ 116 ] February 25, 2015 |

that I might be blogging about if I had time to blog at the moment.

It’s somewhat shocking that even in the one American city where it’s generally widely acknowledged a car is not necessary, we still have such absurd parking requirements. So this is very good news. Good for DeBlasio and the planning department; when it comes to housing costs parking minimums matter.

Speaking of housing costs: significant construction of new units and rent increases often occur simultaneously, providing a handy cum hoc ergo propter hoc for people who’d like their anti-development preferences to fit more comfortably with their broader political views and/or stated preference for the availability of less expensive housing. But the dodge doesn’t work; supply and demand matters. Even in San Francisco.

Although it relies on a single study from Australia a bit more than I’d prefer, this is a thoughtful reflection on the issue of ‘mode bias’ in public transportation. That riders prefer trains to buses is clear. What we should do with that information isn’t. The worst public transit fad of the last couple of decades, the return of the (toy) streetcars–expensive and shiny but stuck in traffic, and slower than buses–is a good example of overcompensating for perceived mode bias.  I would be curious to hear any SoCal readers thoughts on the characterization of the Orange Line–and its local perception–presented here.

On the urban planning consequences of children mapping slums in India.

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Game of Thrones podcast: Season 2, Episode 1 — “The North Remembers”

[ 5 ] February 25, 2015 |

We have now arrived at Season 2 of the Game of Thrones podcast and — if you can believe it — we’re now recording them in real time. No longer will be ignorant of what happened later in Season 4, as we’ve now seen all this episodes.

Now our ignorance will be limited to what’s going to happen in Season 5, but still! Progress!

Works Attewell discusses (warning all these posts contain spoilers for all five books):

  • Sansa I (deconstructing knighthood and Sansa the survivor)
  • Tyrion I (Tyrion and the Small Council, Tyrion and Cersei)
  • Bran I and II (Bran’s wolf dreams and the Northern political story)
  • Dany I (Dany in the desert, the prophet narrative)
  • Jon I, II, III (the Great Ranging from the Wall to Craster’s Keep)
  • Prologue (Doomed Maester Cressen)
  • Davos I (the Burning of the Gods, Stannis’ letter)
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[ 44 ] February 25, 2015 |

As always, the NCAA is standing up for what is right and good in the world:

Baylor walk-on running back Silas Nacita announced he has been ruled ineligible by the NCAA for accepting impermissible benefits while he was homeless last summer.

Nacita, a backup who rushed for three touchdowns last season, walked on to the Baylor program in the summer of 2014 after being homeless for a year.

“A few months before enrolling, a close family friend approached me and said they didn’t want me sleeping on floors and wondering how I was going to eat the next meal,” Nacita wrote on his @Salsa_Nacho Twitter account, “so they insisted on putting me in an apartment and helping out with those living expenses.

“Because I accepted that offer instead of choosing to be homeless, I am no longer eligible to play football and pursue my dream. I had no idea I was breaking any rules, but I respect the decision of the NCAA.”

Can we somehow get rid of this organization?

[PC]: The NCAA is a tax-exempt charitable non-profit organization, which means that its leaders are engaged in public service. Here’s how certain “key employees” were compensated for serving the public interest in fiscal year 2013 (these numbers are no doubt quite a bit higher now, with the advent of the non-profit football playoff):

Mark Emmert, President: $1,707,966

James Isch, Chief Operating Officer: $1,013,063

Donald Remy, Executive Vice President: $619,663

Bernard Franklin, Executive Vice President: $566,121

On the other hand, Roger Goodell got paid $44 million to do no one is sure exactly what for the NFL last year, so I guess these guys are practically giving away their public service, all things considered.

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Today In Statutory Interpretation

[ 38 ] February 25, 2015 |

I’m agnostic about the outcome in today’s other case, Yates v. U.S.  But two passages from Kagan’s dissent are worth quoting.  This is the one that will get the attention:

While the plurality starts its analysis with §1519’s heading, see ante, at 10 (“We note first §1519’s caption”), I would begin with §1519’s text. When Congress has not supplied a definition, we generally give a statutory term its ordinary meaning. As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that possesses physical form.” A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in §1519, as noone here disputes, covers fish (including too-small red grouper).

But with respect to a certain other case the Supreme Court will be hearing next month, this paragraph is more relevant:

That is not necessarily the end of the matter; I agree with the plurality (really, who does not?) that context matters in interpreting statutes. We do not “construe the meaning of statutory terms in a vacuum.” Tyler v. Cain, 533 U. S. 656, 662 (2001) . Rather, we interpret particular words “in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989) . And sometimes that means, as the plurality says, that the dictionary definition of a disputed term cannot control. See, e.g., Bloate v. United States, 559 U. S. 196, n. 9 (2010). But this is not such an occasion, for here the text and its context point the same way. Stepping back from the words “tangible object” provides only further evidence that Congress said what it meant and meant what it said.

This a concise explanation for why the ACA’s opponents needed to invent a fantasy alternate history of the statute. Nobody really disputes that statutory language has to be read in the context of the structure and purpose of the statute as a whole, and doing so yields a clear answer.  Even if the isolated phrase “Exchange established by the State” represents a “glitch” — as the troofers themselves thought before their constitutional challenge failed and they needed another straw to grasp at — then the case is over; the I.R.S was doing exactly what it’s supposed to do, interpreting the statute as not being at war with itself. Hence “the Moops invaded Spain,” only that reading makes no sense on its face and is inconsistent with the understanding of all relevant actors. (And while we are of course bound by what Congress enacted, not by what by what members of Congress subjectively intended, the actual views of the people who drafted and voted for the legislation are certainly relevant evidence when determining the purpose of the statutory scheme.)

…I should be clear that I’m just quoting Kagan to illustrate a point.  In terms of whether this reveals anything about how King v. Burwell will actually be decided, I’m definitely on Team Bagenstos:

I should note, however, that Brianne Gorod sees reason for optimism.

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Today Among Our Benevolent Local Overlords

[ 30 ] February 25, 2015 |

From the statement of facts in Kennedy’s opinion for the Court today in North Carolina Board of Dental Examiners v. Federal Trade Commission:

In the 1990’s, dentists in North Carolina started whiten­ing teeth. Many of those who did so, including 8 of the Board’s 10 members during the period at issue in this case, earned substantial fees for that service. By 2003, nondentists arrived on the scene. They charged lower prices for their services than the dentists did. Dentists soon began to complain to the Board about their new competitors. Few complaints warned of possible harm to consumers. Most expressed a principal concern with the low prices charged by nondentists.

Responding to these filings, the Board opened an inves­tigation into nondentist teeth whitening. A dentist mem­ber was placed in charge of the inquiry. Neither the Board’s hygienist member nor its consumermember par­ticipated in this undertaking. The Board’s chief opera­tions officer remarked that the Board was “going forth to do battle” with nondentists. The Board’s concern did not result in a formal rule or regulation reviewable by the independent Rules Review Commission, even though the Act does not, by its terms, specify that teeth whitening is “the practice of dentistry.” Starting in 2006, the Board issued at least 47 cease-and­-desist letters on its official letterhead to nondentist teeth whitening service providers and product manufacturers.


These actions had the intended result. Nondentists ceased offering teeth whitening services in North Carolina.

Some local regulations of business are, of course, valuable protections of the public interest. Some are straightforward protection rackets. The one at issue here is pretty clearly one of the latter, and one appropriate remedy for this kind of regulation is the application federal antitrust law.

Today’s case held that the Board of Dental Examiners was not exempt from the Sherman Act. While state actors are exempt from federal antitrust law, nominal state entities in which the state delegates to business interests with minimal supervision don’t qualify for the state action exemption. The four Democratic nominees and Chief Justice Roberts sided with the majority. Alito (for Scalia and Thomas) sided with the sovereign dignitude of the states over the interests of consumers.

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Thank you for your service?

[ 146 ] February 25, 2015 |

On Sunday the Times had a piece about how some (many?) military veterans don’t like to be “thanked” for their service by civilians:

To some recent vets — by no stretch all of them — the thanks comes across as shallow, disconnected, a reflexive offering from people who, while meaning well, have no clue what soldiers did over there or what motivated them to go, and who would never have gone themselves nor sent their own sons and daughters.

To these vets, thanking soldiers for their service symbolizes the ease of sending a volunteer army to wage war at great distance — physically, spiritually, economically. It raises questions of the meaning of patriotism, shared purpose and, pointedly, what you’re supposed to say to those who put their lives on the line and are uncomfortable about being thanked for it.

Mr. Garth, 26, said that when he gets thanked it can feel self-serving for the thankers, suggesting that he did it for them, and that they somehow understand the sacrifice, night terrors, feelings of loss and bewilderment. Or don’t think about it at all.

“I pulled the trigger,” he said. “You didn’t. Don’t take that away from me.”

It’s an interesting piece, which raises implicitly various tangential issues:

(1) I have the impression that in post-9/11 America the public glorification of the military has intensified quite a bit. Obviously there’s always been a lot of this, but it seems much more pervasive today. A trivial but symptomatic example: at PGA golf tournaments, there’s now always one hole tended by a member of the military. The flag on the pin, which normally merely marks the hole number, is a US flag, and the competitors are obviously expected to engage in a public display of thanking the service member. Readers can no doubt think of many similar semi-compulsory rituals. Needless to say this sort officious celebration of the military’s role in American life ought to raise the awkward question of what exactly what that role has been in recent decades. Yet the politically fraught character of this ritualized gratitude isn’t something the piece acknowledges. (The piece also uncritically reprints the urban legend that Vietnam veterans were spit on after returning home from the war).

(2) These sorts of rituals raise a number of other awkward questions. For one thing, the Times’ piece treats military service as if the typical experience of a service member is something akin to the experience of the veteran profiled in the article, who nearly died in a muddy ditch in Afghanistan, down to his last bullet, with he and his comrades being raked by Taliban machine guns. But the vast majority — according to this article 85% — of military veterans never see combat of any sort, let alone the kind of horrifying experience described in the Times’ piece.

For that 85%, military service ends up being a fairly ordinary job, featuring generally low pay but excellent fringe benefits. In other words, the 85% are in many ways typical government workers, and needless to say nobody is thanking the typical government worker for his or her service — they’re more likely to be complaining about that worker’s supposedly easy work schedule, and the inherent unfairness of those sweet, sweet benefits (They have real pensions!).

(3) The larger issue here is what the concept of “public service” ought to entail. For example, the federal government’s Public Service Loan Forgiveness program has, comparatively speaking, very generous provisions, relative to its standard loan forgiveness programs, requiring only ten rather than 20 or 25 years of repayment, and, crucially, not treating the debt forgiven as income at the end of the repayment period. This seems more than justifiable if, for instance, a law graduate benefiting from PSLF is choosing to represent indigent defendants for a $45,000 salary as opposed to getting paid many times that to work for a big law firm, but framing the matter that way creates an unrealistically easy case. (For one thing, only a very small percentage of law graduates could be faced with such a choice, even in theory).

A wide variety of jobs constitute performing “public service,” technically speaking. For example, Nora Demlietner, who announced yesterday — no doubt in the wake of a friendly chat with the university’s president — that she was “stepping down” as Washington & Lee’s law school dean, two and half years after taking that job, is a public servant, and would be eligible for PSLF loan forgiveness, if she should find herself in need of the program’s provisions.

This seems unlikely, as she’s been paid more than three million dollars since 2007 to “serve” as dean of Hofstra’s and W&L’s law schools. I doubt that the members of Hofstra’s 2011 graduating class, who were trying, mostly unsuccessfully, to get any sort of legal employment at all at the same time Detlietner was interviewing for her new gig at W&L, are inclined to thank her for her service.

To be fair, Detlietner’s “public service” seems the epitome of altruism in comparison to the sacrifices being made by her bosses at Hofstra and W&L, both of whom were or are currently pulling down seven figures annually to “serve” the public interest.

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Linkin’ Around on Wednesday

[ 43 ] February 25, 2015 |
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[ 75 ] February 25, 2015 |


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[ 223 ] February 24, 2015 |

A lot of the commentary on Graeme Wood’s long article on ISIS has focused on the relatively uninteresting question of whether ISIS is “Islamic.”  This question has become a minefield, bound up not only in politics but also in turf fights between journalists and scholars of religion, on the one hand, and specialists in conflict on the other.

Some of the responses have been quite thoughtful; the distance between the headline of this H.A. Hellyer article and its content is one reason why few people will mourn the apparently inevitable demise of Salon. Elizabeth Breunig’s article on how we define religious belief is also helpful.   Ross Douthat made a surprisingly useful contribution, taking care to put some limits on the implications of calling something “Islamic,” or “Christian.” Other responses have been much weaker, with the authors focusing more on the building and burning of straw men than on engagement with the material.

I suppose my thinking is that every permutation of the religions of the Book require specific believers and communities of believers to make decisions about what practices to adopt and what to reject, and that these decisions only rarely have anything to do with sophisticated theological debates. This sort of thing is useful, but if you’re reading it as the final word on what Islam is or isn’t, rather than as part of a pointed conversation between different Islamic communities, then you’re reading it wrong. Mainstream religious authorities are pretty bad at identifying heretics, which is to say that they’ve very good at claiming that any divergence from mainstream tradition represents heresy and should be excluded from an understanding of the faith. This is especially true when the mainstream views the heresy as a public embarrassment to the faith.

Saying that ISIS is well outside the mainstream of Islamic religious belief can simultaneously be true and irrelevant as to whether it can make intelligible claims to have the “correct” interpretation of the Islamic tradition. For my part, the repeated tendency of Christian sects to locate divine favor in a particular state entity (tendencies that run across Orthodox, Protestant, and even Catholic communities) are far less intelligible, based on the foundational text, than anything ISIS has done. Yet simply arguing that these beliefs are “wrong” misses the point.

The history of Protestantism is, literally, littered with examples of sects that begin when laymen reject broader Christian traditions in preference for ahistorical readings of foundational texts. To use just a recent, convenient example, Jehovah’s Witnesses reject most of what we understand as Christian tradition in order to focus on what they believe are the core, ancient elements of the faith. JWs have a millenarian perspective on the world that, effectively, denies the legitimacy of most other Christian sects.  While I’m not attuned with the fine details of the theological debate, I’d be very hesitant to suggest that JWs represent are “wrong” about Christianity, or that the represent a “perversion” of the faith, especially in context of the wild variance in practice among Protestant communities. But (and this is particularly important) Catholic and established Protestant sects are not at all hesitant to make this argument. This is why, in brief, we don’t trust the Pope to serve as the final arbiter on whether someone is or isn’t Christian.

And so as a veteran of high-school-era wars over whether Jehovah’s Witnesses and Mormons count as “Christian,” I’m generally inclined to say that self-identification counts for a lot, a plausible degree of connection with foundational texts or traditions counts for a lot, and a recruiting strategy that focuses on existing believers (ISIS recruits mostly, although not solely, among Muslims, and these Muslims presumably do not believe that they cease being Muslim when they join ISIS) counts for a lot. For groups that these metrics would exclude, I’d be inclined to think Lord’s Resistance Army or the Taipings.

As an aside, I think that people inclined to suggest that Wood is treating ISIS as “authentic” are making a predictable error that comes more from how we talk about religious enthusiasm and authenticity than from anything associated with the question at hand.  I’m annoyed by the tendency to grant more radical forms of religious belief an unearned sense of authenticity, but it’s a tendency that runs across religions. As an interested outsider, it seems to me that reform and conservative Jews are often willing to grant far too much to their Orthodox and ultra-orthodox counterparts in terms of “authentic” belief and practice, even as they bitterly disagree with them on a variety of social and political questions. I think you find same confusion between enthusiasm and authenticity in intra-Christian (and probably even intra-Atheist) conversations, and this kind of thinking seems to infect our assessment of ISIS.  Douthat, cited above, is quite good on this point.

Now to back up a bit, it’s true that evaluation of this debate inevitably involves some assessment of the political stakes.  People are fighting over whether or not ISIS can be called “Islamic” because this determination has potential implications for the pointy end of the state, both domestically and internationally. The concern of many commentators that granting ISIS some claim on “true” Islam plays into the hands of right-wing critics is not unreasonable. This is undoubtedly true, although clearly right wing cranks don’t need Wood’s help in making atrocious arguments about the nature of Islam.

I think Wood could have been a touch more careful in not lending authenticity to ISIS, but his relevant point was that claims running as “ISIS is wrong about Islam” are problematic as statements of fact and not very useful as political rhetoric.  And Wood made it very clear that the vast majority of Muslims reject not only the theology of ISIS, but also its method and politics; he makes this point repeatedly across the article.  Finally, as a general rule, I’m of the view that ” to what use could a right wing asshole put this argument?” isn’t a terribly helpful heuristic for approaching complicated questions.

But whether or not ISIS is “Islamic,” it’s surely also a number of other things. And this is where things get more interesting for me. Wood suggests that ISIS’ conception of the state is in variance both with the understanding of state sovereignty that holds in international society, and with other jihadist organizations.  ISIS has displayed reluctance to assert its own sovereignty, in part because such an assertion would place it among the family of nations, with a necessary degree of respect for the sovereignty and borders of other countries.  As Wood describes, this is anathema to ISIS’ vision of the relationship between theology and territorial control.  And it’s this vision that sets ISIS apart from organizations like Al Qaeda, which don’t seem to place the same degree of (short term) value on territorial control.

And so in short, Wood presents an ISIS that views territorial control as a key value, but that denies traditional norms of sovereignty.  This is an unusual combination, but not an impossible one; it echoes a few revolutionary movements through history.  The Bolsheviks had a famously dim appraisal for foreign policy, built around early expectations that it would be easy to export the Revolution into Europe and Asia. The Soviet Union adjusted to reality pretty quickly, however. To my recollection violation of sovereignty was a key element of the political case for the Iranian Revolution (although it was interpreted differently by the various actors), and so the Islamic Republic also settled, fairly quickly, into a quasi-normal stance on foreign relations. The People’s Republic of China went through a phase in the Cultural Revolution when it rejected “normal” foreign relations, but this didn’t last long and didn’t seem to have much of an effect beyond the recall of most of the PRC’s ambassadors.  The Taliban is an interesting case; it was very slow to come around to the extant understanding of norms of sovereignty, but seemed to be moving in a conventional direction prior to 2001.  I should hasten to add that acceptance of general norms of sovereignty doesn’t imply that any of these countries were good international citizens, merely that they eventually acknowledged that international citizenship was a thing.

ISIS’ critique of sovereignty (and the term “critique” might go a step too far; “dismissal” may be a better word) seems the farthest ranging since the Bolsheviks. And so it’s interesting, in this context, to think about how an ISIS that somehow managed to retain a degree of territorial integrity would try to manage its relations with the outside world.  It would seem very difficult for ISIS to accept any degree of legitimacy on the part of its neighbors; none are good ideological candidates on the basic terms that ISIS has set. IR theory suggests that revolutionary states and state-like entities eventually (if grudgingly) follow the Bolshevik path, accepting the necessity of “revolution in one country” and adopting something that looks like a standard apparatus of foreign relations.  Whether ISIS would be capable of making those sorts of compromises is a question that I hope we won’t ever see answered.

Another interesting implication of ISIS’ preoccupation with territory (one that Wood, along with many others, points out) is that the fixation on territorial control makes ISIS unusually vulnerable to traditional military action.  If ISIS’ central theological, political, and public relations claims rest on the physical control of territory, then reducing the extent of that control could have a huge impact on degrading the organization.  Al Qaeda isn’t indifferent to territory, but doesn’t seem to worry overmuch about being forced to pick up stakes and move along.  If we are to believe ISIS’ propaganda, pushing the group out of the territory it controls would have a more far-reaching impact on the organizations’ survival.

This suggests some hope that future Iraqi and Kurdish military offensives may enjoy more than tactical and operational success (assuming, of course, that they enjoy tactical and operational success). The loss of territorial control may make it harder for ISIS to recruit, and may lead it to shed members (I’m guessing, without much foundation, that many of the “returned” fighters that leave ISIS are less interested in pursuing its aims in Europe and the US than in getting as far away from the organization as they can). And while it’s never, ever right to say “things can’t get any worse” when we’re talking about Syria and Iraq, ISIS does seem committed to pushing the limits of that proposition.

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Why Court-Packing Wouldn’t Work

[ 68 ] February 24, 2015 |

Ian Millhiser has an interesting piece for Slate, putting the potential for a Supreme Court ruling gutting the ACA in the context of the constitutional struggle that led to FDR’s (legal but not normative) proposal to pack the Court.

Despite the title, it should be emphasized that Ian concludes that the failure of FDR’s proposal “was for the best.” Leaving aside the normative question of judicial independence — which, when dealing with an high appellate court that issues constitutional rulings but is not limited to constitutional rulings, is a complicated one — I agree, and I think it’s worth addressing another reason. Court-packing would not have been an effective long-term response to the Four Horsemen + the sporadic winger version of Owen Roberts. This is true for the same reason that the idea briefly beloved of Romney- and/or Paul-curious lefties that a Republican president is no big deal because a 40+ Democrats in Congress could just serially reject all of a Republican president’s judicial and executive branch nominees was really dumb. Once court-packing was established as an acceptable norm, Republicans certainly wouldn’t abjure using it. So perhaps Congress would have added some Supreme Court seats in 2009 and gotten Obama nominees confirmed, only it probably wouldn’t have helped much because they would have been dealing with a Court where the justice at the 25% quartile of conservatism had to turn to his metaphorical left to see Sam Alito. The more ideologically homogenous Republican Party conference in the Senate would be better advantaged in the long-run to take advantage of court-packing, so on balance Republicans would almost certainly get a disproportionate share of nominees confirmed and this nominees would be more ideologically consistent and radical. And, in addition, the disequilibria produced by constitutional hardball generally favors conservative interests over liberal ones in the long run.

The real point of bringing up court-packing is to remind the public that the Supreme Court is a fundamentally political institution. If this exercise in making law out of nothing at all being taken seriously by the Supreme Court doesn’t convince you, nothing will.

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