This list of links is very Murcan. There is no list of links more Murcan.
- Here’s a thing Andrew Klavan actually wrote. It’s about how Obama is the worst president ever so even pretty girls can do his job. And since women are interchangeable, better a pretty woman than that hideous Hitlery, amirite?
- This is a book I actually found while browsing Amazon.
- Hey, have you ever wondered how Murca would react to seeing Hillary do yoga? No? Well, Paula Bolyard has and actually wrote this thing about this thrilling hypothetical.
- Here’s a thing I actually found in my twitter feed. I won’t spoil the surprise for you but Ben Shapiro’s father wrote an anti-choice ditty and put it on youtube.
- Gamergaters and Mangy Puppies brigade comment threads on authors’ blogs. It’s just so…reactionary, so Murcan.
- I’m gettin’ misty thinking about how Murcan this story is.
The Ohio legislative decided to stick a measure in a funding bill that would redefine all faculty as supervisors since they play some role in university governance. This would make them ineligible to have a union. I’m not at all confident that John Kasich won’t sign this.
“We’ll take your LIP money, but we won’t plow your driveway — that would be tyranny.”
As a principled defender of States’s Rights (sic), Gov. Lex Luthor is demanding the federal money he does want in perpetuity:
Florida Gov. Rick Scott announced Thursday that his administration will file a lawsuit against the federal government for threatening to withhold more than $1 billion in funding for hospitals if the state fails to expand Medicaid.
“It is appalling that President Obama would cut off federal health care dollars to Florida in an effort to force our state further into Obamacare,” Scott said, citing a 2012 Supreme Court ruling that said the federal government couldn’t put a “gun to the head” of states to force them to expand Medicaid under the health care law.
The Obama administration quickly accused Scott of misconstruing that court decision because the state is not being forced to do anything. And White House spokesman Josh Earnest blasted the governor for putting politics above people.
CMS countered Thursday afternoon that the state is not being forced to do anything. The LIP program is optional and “has long been scheduled to expire June 30,” agency spokesman Aaron Albright said in a statement. Nor is CMS threatening to withhold the billions in federal dollars that help to fund Medicaid in Florida, Albright added.
“Florida, like all states, is free to implement Medicaid expansion or not,” he wrote. “Florida is requesting an additional optional extension, which raises a different question: whether it promotes the objectives of the Medicaid statute to use demonstration authority when the state has statutory options that would better serve the low-income population.”
Florida’s Republican Senate president, Andy Gardiner, sides with CMS. “The federal government has no obligation to provide LIP funding, or to work within our timeframe,” Gardiner said in a written statement.
This is a novel argument: not only does Florida have a vested right to existing Medicaid funding even if it doesn’t accept the Medicaid expansion, it has a vested right to non-Medicaid federal spending even if it doesn’t accept the Medicaid expansion and even if that funding is set to expire. Even for people with a high enough tolerance for incoherence and illogic to defend the Sebelius Medicaid holding, this should be a neoconfederacy too far.
And yet, while I think Scott’s argument goes beyond even Sebelius, it does have enough in common with it to illustrate a fundamental problem with its reasoning. Roberts’s assertion that there’s some arbitrary limit on how much the content of a program can be changed beyond which categorical funding conditions become unconstitutionally “coercive” seems to imply that states have some sort of entitlement to existing Medicaid funds. The rather obvious problem with the argument is that states don’t have any entitlement to existent federal funds. And yet, without the assumption the argument collapses into a heap — if states aren’t entitled to their Medicaid funding, then Congress can change the content of Medicaid however it wants and still make taking the funds an all-or-nothing proposition. By holding otherwise, the Court created a rabbit hole, which would be more defensible if the consequences of this adventure in doctrinal wonderland* didn’t also produce catastrophic results.
*Thanks to Justice Stevens for the phrase.
Deadwood is probably my favorite show of all time. That’s for many reasons–the story, the amazing acting of Ian McShane and Brad Dourif among many others, the language. But among the reasons is the way the show gets at the filth and nastiness of the late 19th century. Some people didn’t like it because the show seemed so over the top in language, violence, and the general portrayal of that society. But while people didn’t exactly speak like the characters of Deadwood, the overall brutality was actually quite accurate, especially considering this is a wild frontier town.
I was reminded of this when recently reading Sharon Wood’s The Freedom of the Streets: Work, Citizenship, and Sexuality in a Gilded Age City. This book is about prostitution and gendered conceptions of the streets in late 19th and early 20th century Davenport, Iowa. Wood put together the lives of women who get called prostitutes (regardless of whether they were by modern standards or not). Remember how in Deadwood women like Trixie and Joanie Stubbs were sold to pimps? That was not uncommon at all.
Josie Mitchell was a downwardly mobile woman who ended up opening a brothel. Her daughter Sevilla married a man at the age of 15. He was soon selling her out as a prostitute and living on the proceeds. Minnie Hagan was homeless at the age of 13 and working as a prostitute to eat. She came from a broken home. She remained a prostitute during her marriage, which was to a pretty violent man. He eventually shot her in the head, but she survived.
Moreover, the age of consent in Iowa until the 1890s was 10. That’s right. 10. As it was in most states. This meant that if a girl came from a house not considered “respectable,” she was open game for sexual exploitation by men without legal means to punish them. It also meant that statutory rape charges could not be issued against men who had sex with young girls. In September 1891, a 10 year old Davenport girl named Ada Ammerman disappeared from her home. After three days she and two other young girls named Dolly Hamerly and Mamie Woods were discovered. Their clothes were soaked with semen. Three men were soon arrested and charged with 8 counts of rape. But they were found not guilty. While reformers wanted to end this practice and save these girls, men, including the entire political establishment of the city, defended the sporting men’s right to sexually use women they found on the streets. Rather, the defense successfully used the argument that these girls’ families had failed the city by allowing their girls on the street where they would be irresistible to men. The girls were already prostitutes by coming from poor families and being on the street. These girls were publicly tainted with this definition of them. Soon after this, Dolly Hamerly was sold to a brothel by her family. Eventually, this trial and other similar events led Iowa to raise the age of consent. To the ripe old age of 13.
In other words, Deadwood‘s portrayal of its prostitutes was not inaccurate. Unfortunately because in knowing that you also know the brutal real stories of women in the 1890s who lacked economic options to do much of anything outside of prostitution if they were poor and who were considered open game on the streets if they did not come from respectable families.
On April 17, 1905, the Supreme Court, led by Chief Justice Melville Fuller, decided the Lochner v. New York case, overturning a New York law limiting the hours bakers could work to sixty a week. This landmark case gave official SCOTUS sanction to the idea of free contract between employer and employee. Calling such laws, “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract,” the Court effectively ruled that corporations have full rights to set any conditions of employment they chose. This classic statement of the Gilded Age has inspired conservatives and outraged liberals ever since.
By 1900, the rise of the Progressive movement and an increasingly aggressive American working class that ranged from conservative organizations like the American Federation to Labor to radicals like the Industrial Workers of the World led to a growing amount of state and local laws to regulate labor. The rank exploitation of Gilded Age capitalism had increasingly moved large swaths of Americans, including a growing number in the middle and upper classes, to understand that basic protections must be granted if the nation was to remain socially stable and if future generations would grow up to be good moral Americans.
And this attitude, while often paternalistic toward workers, had its benefits as workers really struggled to live lives of basic dignity in the Gilded Age. The combination of extremely low wages, very dangerous work, strikes met with state violence, and an economy constantly in turmoil thanks to the corruption of politicians and illegal machinations of capitalists meant that the American workforce had few options to improve their lives. They tried but usually failed because of the combination of overwhelming combined state and corporate resistance, something Lochner would reinforce. Accessing middle-class support for basic rights was necessary in order to achieve even the most rudimentary improvements in workers’ lives.
New York was one of these states with a strong Progressive movement. In 1895, the state passed the Bakeshop Act. This law regulated the sanitary conditions of bakeries (a prelude to the national Pure Food and Drug Act that would become law in 1906) and read “no employee shall be … permitted to work in a biscuit, bread, or cake bakery or confectionery establishment more than sixty hours in any one week,” as well as more than ten hours in a day. In 1899, Joseph Lochner, a baker in Utica, was indicted for violating the act by requiring employees to labor for more than 60 hours. He drew a $25 fine. Not learning his lesson, he was charged again in 1901; this time the state fined him $50 ($1400 in 2014 dollars) and sentenced him to up to fifty days in jail if he did not pay the fine.
Joseph Lochner, standing on right
Lochner appealed this second fine, attempting to overturn the law. The Appellate Division of the New York Supreme Court upheld the law by a 3-2 vote and then the New York Court of Appeals, where he lost 4-3. The Supreme Court was divided on this law. But by a 5-4 decision, the Court ruled in favor of Lochner and overturned the Bakeshop Act.
John Marshall Harlan, the best justice of the era and often the only one with the welfare of the average citizen in mind, wrote one of his classic dissensions. He wrote that it was “plain that this statute was enacted to protect the physical well-being of those who work in bakery and confectionery establishments.” He went on, “If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere.” Oliver Wendell Holmes also dissented, using his ideology of limited court activism to accuse the majority of asserting their own economic preferences into the Constitution where they did not belong.
The majority in fact did that, but didn’t care. Rufus Peckham wrote the majority opinion. He countered the argument of New York that “has a right to safeguard a citizen against his own lack of knowledge” by stating that citizens “are … able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action.” And this really sums up the doctrine of free contract. Theoretically this sounds like the language of freedom because it places control over one’s life in his or her own hands. But of course such an analysis, which libertarians love today, completely ignores power relations. No baker could assert his own rights because it was the employers who constricted those rights. When the option is a) work 65 hours or b) don’t eat, that’s not a freedom of choice.
Moreover, Peckham went into the health of working in a bakery, writing the law was unnecessary because “To the common understanding, the trade of a baker has never been regarded as an unhealthy one.” Of course, such a judgment from a judge should not matter when deciding the constitutionality of the law–the question is whether it is constitutional, not whether the judge personally agrees on the merits of the law. But of course the Supreme Court has long operated as little more than the assertion of personal political position as constitutional principle, a problem which plagues the Court today. Moreover, the question of health and work in the Gilded Age was one of huge importance because work was so starkly unhealthy. It’s entirely possible that compared to paint workers having their brains disintegrated through unbelievable levels of lead poisoning and radium workers dying from horrendous cancers that bakers didn’t have it so bad, but that doesn’t mean that working in unsanitary conditions for long hours did not have an effect on their health. Even when employers and states decided to something about workers dying or suffering grievous injuries on the job, it would take until the establishment of OSHA in 1970 before workplace health per se was really taken that seriously in the United States.
However, Lochner was also the peak of corporate rights superseding that of workers and the public. The Muller v. Oregon decision three years later carved out room in the freedom of contract ideology for hours limitations on women workers, which began to slowly build toward the principle of government regulating the workforce. From 1905 on, Lochner became the case that progressive labor activists such as Louis Brandeis sought to overturn. Yet this would be a long fight lasting until the New Deal, with the Court reviving the Lochner doctrine in the 1923 case Adkins v. Children’s Hospital, declaring a Washington DC law setting minimum wages for women and children unconstitutional.
Conservatives would like to return to a Lochner-era America today and are working hard to make sure that happens.
This is the 142nd post in this series. Previous posts are archived here.
One argument for why Democrats should be relatively pessimistic about 2016 is that voters get fatigued about the incumbent party, so getting the third term is generally a grind at best. And there is a historical pattern of these elections being toss-ups even in decent economic circumstances. One problem with inferring things from these patterns is the small n. But the even bigger problem, as Chait says, is most of these elections took place in a context of heterogeneous parties that no longer exists:
The logic that predicts a toss-up election is rooted in the perfectly sound assumption that the historical models give us the best guide to the future. A third straight term from a party whose president has middling approval ratings sits right on the probability fault line, historically. As Nate Silver writes, “these cases default to being toss-ups.”
The trouble is that almost all those cases are drawn from a historic period that is very different from the current one. During the 20th century, the two parties were extremely heterogeneous. The Republican Party had a moderate wing that dominated its presidential elections for most of the postwar years until Ronald Reagan. Democrats had a powerful southern conservative wing. In that environment, the old folk wisdom, “Vote the man, not the party,” made a great deal of sense. In that environment, large chunks of the electorate swung easily from one party to the other depending on transient factors, like the current state of peace and prosperity, rather than deeper values.
The splitting of American politics into two coherent ideological parties with very little programmatic overlap changes things. Voters who are fundamentally attached to one party or the other are not going to abandon their team merely because their party has held onto office for too many terms, or because the other party’s president is presiding over a nice recovery. Those factors are not meaningless because some swing voters do still exist. And performance can change voter perceptions to a degree; a deep recession might make some Democrats doubt their party’s economic program. But these temporal effects are muted.
Incumbent fatigue is a plausibly significant factor in a context in which most of the electoral map was theoretically in play. 45+ state landslides used to occur with some frequency. In 1988, George H.W. Bush — winning a third consecutive Republican term! — won California, Maine, Vermont, Maryland, and New Jersey, and lost New York by only 4 points. Those days are gone. It’s hard for people to internalize the consequences of realignment and entrenched partisanship — my favorite dumb argument about the 2000 election, “Durr, Al Gore was so bad he couldn’t even win his own state, durr [drools],” reflects among other things a failure to grasp what really should be obvious about the contemporary electoral map.
I don’t know what the structural context of the 2016 elections will be. But I don’t think that superficial patterns derived from a pattern of partisan norms that is deader than John Lindsay tell us much of anything.
My view that the loss of livelihood was sufficient punishment is far from idiosyncratic. As Dana Goldstein has demonstrated in an essential piece for The Marshall Project, it is extraordinarily unusual for criminal charges of anything like this severity to be brought in such cases, even though “adult tampering with student testing is depressingly widespread.” To provide some context, non-token jail terms have generally been reserved for teachers who are sexual predators.
The legal context of the testing should also serve to mitigate the offense. In theory, standardized testing can be a useful tool in evaluating teachers and schools, but the regime established by the No Child Left Behind Act does not use it well. The statute sets up very rigid standards derived from single high-stakes tests. The unrealistic performance targets ensure that even competent teachers run the risk of being branded failures and getting sacked, while decent schools are in danger of being declared failures and closed.
Given the structure created by NCLB, widespread cheating by desperate educators was inevitable. That doesn’t excuse their actions, but it’s also a factor that should be taken into account when determining whether a group of educators should be singled out for extraordinary punishment.
One potential defense of the prosecutors and the judge in this case is that the teachers and administrators who are being sent to prison have only themselves to blame, since they refused to cop a plea. The educators who did so were given parole, and before sentencing Judge Baxter urged convicted defendants to take a deal that would have involved shorter sentences served only on weekends. “We didn’t start out with the goal of putting educators in jail,” asserted District Attorney Paul Howard.
This is still a lousy justification for the state’s behavior, one that reveals another major problem with the American criminal justice system. Prosecutors with almost unlimited discretion can use threats of absurdly disproportionate maximum sentences to essentially punish the accused for exercising their rights to a fair trial. The defendants may have been unwise not to take a deal (and waive their right to appeal) before sentencing, but if Judge Baxter thought the terms of the deal were fair, nothing was stopping him from imposing that sentence himself.
The arguments don’t get any better:
That leaves a lawsuit entitled Johnson vs. U.S. Office of Payroll Management holding the crown. On Tuesday, however, the Chicago-based U.S. Court of Appeals for the 7th Circuit tossed the case with a horselaugh, so its reign may be ending.
The lead plaintiff in the case is Sen. Ron Johnson (R-Wis.), a fierce opponent of the ACA. His novel argument is that the law denies him his constitutional right to equal protection because it offers him a benefit — to wit, the same insurance subsidy enjoyed by most other Americans who get health coverage from their employer — that would cause him “reputational and electoral injury” if he accepts it.
Judge Joel M. Flaum, writing for a unanimous three-judge panel of the court, rightly considered the argument, which is that Johnson is injured by this benefit, bizarre. If he’s so concerned about taking a benefit that he attacked while running for office, Flaum wrote, why doesn’t he just turn it down? “We do not see how Sen. Johnson’s reputation could be sullied … by being offered, against his will, a benefit that he then decided to refuse.”
Once the Supreme Court denies cert, maybe Johnson can hire Larry Tribe to argue that the ACA violates the takings clause and nondelegation doctrine. If I understand Tribe’s most recent arguments it’s hard to identify parts of the U.S. Code that don’t, so why not? And if that doesn’t work, three words: liberty of contract.
So the historian of hermaphroditism and intersex Alice Dreger has a son in East Lansing, Michigan public schools. His class received an abstinence-only school presentation in his sex class. Dreger attended and live tweeted and storified it. It’s epic. A couple of highlights.
Paper babies are being handed out to EVERYONE. They have ALL HAD CONDOM FAILURE AND THE WHOLE CLASS IS PREGNANT.
— Alice Dreger (@AliceDreger) April 15, 2015
"You have to have a baby!" There are apparently no scissors in the room for paper abortions.
— Alice Dreger (@AliceDreger) April 15, 2015
My favorite is the last:
The mate: What did they say to the girls? Me: Nothing. Girls don't want sex. Why would you bother to address them in sex ed?
— Alice Dreger (@AliceDreger) April 15, 2015
I see Laurence Tribe is trying to argue that if you buy the argument that the willful misreading of the ACA by the King v. Burwell plaintiffs would produce an unconstitutionally coercive scheme then you’re also bound to buy his nutty, radical theories about the Clean Power Plan. You will be unsurprised to know that this argument doesn’t make any sense:
King challengers’ interpretation of Obamacare is exceedingly strange, which in turn makes it difficult to weaponize against other regulatory programs in an honest way. King posits that Congress sought to create universal health care programs on a state-by-state basis by threatening to ruin insurance markets—to frustrate their ultimate universal health care goal—in non-capitulating states.
The Clean Power Plan is nothing like that. It encourages states to implement plans to reduce greenhouse gas emissions, and says the federal government will step in and implement a different plan toward the same end in states that decline. Tribe describes the federal fallback derisively when he says, “EPA claims the power to impose severe sanctions, including the loss of highway and Clean Air Act funds, as well as the imposition of a centrally planned and administered federal scheme that could harm not simply the State but also its citizens and economy.”
But even on his own terms, this is nothing like the coercive scheme at issue in King. For the parallel to hold, the EPA would have to be encouraging states to implement their own clean power plans by threatening to exacerbate pollution in states that don’t, or something similarly counterproductive.
“If the Clean Power Plan example looked like King vs. Burwell,” University of Michigan law professor Nicholas Bagley told me, “what you’d have is a federal scheme that didn’t provide power to people, didn’t reduce emissions, and torched the energy market in each state.”
Boston University law professor Abby Moncrieff is of a similar view. In a detailed post on Harvard Law School’s website, she explains why King and the Clean Air Act, from which EPA derives its authority to implement the Clean Power Plan, are nothing alike.
And, of course, this is additional problem with Tribe’s attempted neener-neener. The correct answer in King v. Burwell is not “Congress set up a federal backstop that was designed to fail, which is unconstitutionally coercive.” The correct answer is “Congress established a federal backstop that was intended to work, and hence makes tax credits available to purchasers of health insurance on federally established exchanges.” That the former argument may be the only way of getting Kennedy and/or Roberts not to wreck the exchanges still doesn’t put liberals in much of a bind, and even if the Court does so rule it still would say less than nothing about the constitutionality of the Clean Power Plan.
Incidentally, Tribe tried the same kind of routine to defend the Medicaid expansion holding in Sebelius: “the spending power can be used to threaten the First Amendment rights of individuals, so liberals should approve of arbitrary, nonsensical limits on the federal spending power than have nothing to do with the First Amendment rights of individuals.”
I believe that the primary influence on Tribe’s new theory of “inventing non-existent contradictions to bootstrap terrible neoconfederate arguments” was Homer Simpson:
“First you didn’t want me to get the pony. Now you want me to take it back. Make up your mind!”
The Pawtucket Red Sox (or PawSox as they are known) is Boston’s AAA baseball team. The stadium is, frankly, a dump. Historic but not a great place to see a game. So the team’s owners want to move the stadium to Providence. It’s only 5 miles away, but in Rhode Island terms, it’s a whole other world. Of course, they want to bilk Rhode Island taxpayers out of millions for it. The park is estimated to cost $85 million. The owners want the state to pay $120 million over 30 years for it. This is a state with a serious unemployment problem, terrible roads, massive pension payment problems, declining funding for higher education, etc. I hope Rhode Islanders flat out refuse this. Of course, since our politics are so incredibly corrupt, I’m sure a few bribes will take care of any meaningful opposition.