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Government Food Guidelines

[ 60 ] February 21, 2015 |

Nina Teicholz challenges government food guidelines as unscientific and unhealthy:

It’s no surprise that longstanding nutritional guidelines are now being challenged.

In 2013, government advice to reduce salt intake (which remains in the current report) was contradicted by an authoritative Institute of Medicine study. And several recent meta-analyses have cast serious doubt on whether saturated fats are linked to heart disease, as the dietary guidelines continue to assert.

Uncertain science should no longer guide our nutrition policy. Indeed, cutting fat and cholesterol, as Americans have conscientiously done, may have even worsened our health. In clearing our plates of meat, eggs and cheese (fat and protein), we ate more grains, pasta and starchy vegetables (carbohydrates). Over the past 50 years, we cut fat intake by 25 percent and increased carbohydrates by more than 30 percent, according to a new analysis of government data. Yet recent science has increasingly shown that a high-carb diet rich in sugar and refined grains increases the risk of obesity, diabetes and heart disease — much more so than a diet high in fat and cholesterol.

It seems to me there are a couple of issues at play here. First is the question of whether the government should be setting food guidelines. The answer is that of course it should–after all, public health is a massively important part of society. That said, government funding for this type of science is not nearly as high as it should be so it’s not surprising that the guidelines might not be based on the best science. Second, science does change. It is not static, nor will it ever be. So the idea that the government is going to create eating guidelines that will then exist for all time is a myth. Third, social and cultural factors affect science and affect society, which will continue to lead then to different standards of health and different ideologies around food production and consumption. Fourth, Teicholz calls for us to eat more meat, more eggs, and more full fat dairy products. But there is also a massive environmental cost to Americans committing to eat more meat, a cost which she evidently considers irrelevant. It is indeed relevant and must be part of the conversation about food consumption. That doesn’t mean I’m thrilled with the eating habits of modern Americans, but people aren’t downing bags of Cheetos for lunch because the government has discouraged the consumption of fats.

The Walmart Raises

[ 16 ] February 21, 2015 |

Walmart has announced a pay raise for its workers.

The company said it would pay even its lowest-level workers at least $9 an hour starting this spring, comfortably above the $7.25 federal minimum wage, and push that to $10 in 2016. The company also said it would strengthen a “department manager” role, giving it a minimum wage of $13 per hour this year and $15 next, thus offering low-wage hourly workers a clearer path to advancement. Including similar bumps at Walmart-owned Sam’s Clubs, the company expects 500,000 workers to receive a raise at a cost of $1 billion a year, executives said in a conference call with reporters.

This is why organizing efforts like the United Food and Commercial Workers’ campaign with the Walmart workers is so important. UFCW is rightfullly taking a good deal of credit for this. The bad publicity the company has received for its poverty wages, for holding food donation drives for its own workers, for making pregnant employees work with dangerous chemicals, and so many other awful corporate behaviors has made a difference. While the Times article linked above suggests this is Walmart responding to a tightening labor market, I am highly dubious that this is the only major reason for these raises. After all, it’s not like the early 2000s when fast food chains were offering signing bonuses for new workers. The labor market is still pretty bad for a lot of workers. Rather, it’s more likely that the fear of losing those workers to slightly better paying jobs combined with the need for Walmart to get some good publicity.

And as Mariya Strauss discusses
, this is very much a publicity move, part of a larger pattern of the company to make cosmetic changes in its business practices whenever the criticism of its practices generate particularly poor publicity. After all, it’s not like $10 an hour is some great shakes. In many states and municipalities, minimum wage law is moving to and above $10.

Being Trolled is Unpleasant

[ 150 ] February 20, 2015 |

I’ve been trolled. Before LGM implemented its registration system, I got trolled occasionally. Very occasionally; I feel silly complaining about it, so I won’t. I’ve been the recipient of sneering, condescending, snarky comments. Someone called me a cunt. (At one point I considered not blogging here anymore.) But when it comes to online trolling, that is bush league stuff. That is smallest of small potatoes. I feel lucky, so, no, I’m not going to complain about the people (person, maybe?) who troll(s) me. I’m going to complain about the people who troll much more prominent feminist writers. They are just the worst.

Being trolled takes a toll on the person receiving the trolling. The remarkably “mild” trolling I experienced had a profound effect on me, mostly because it was “mild.” More prominent online feminists have experienced what I’ve experienced multiplied by a thousand, at least. It’s a remarkably depressing thought.

Imagine being relentlessly snarked and sneered at, being called an idiot, being called dumb. Being called fat and ugly. Being called rapeable. Being called not rapeable enough. Receiving death threats. Being told to kill yourself. Now imagine having that happen with any sort of regularity. Can  you really deny that that wouldn’t take a pretty profound psychic toll?

I know what it was like trying to keep a home and raise a 3-year-old son while dealing with some–by internet standards–pretty mild assholishness. It was difficult. I don’t have the time or energy to care about what some douche on the internet thinks about me. I’ve got family and a million little obligations to think of every day. I simply can’t afford the psychic toll it takes. So I can’t imagine the toll that prominent feminists (or just outspoken women) pay.

How Safe Do Oil Trains Make You Feel?

[ 42 ] February 20, 2015 |

You like oil trains running through your community? You feel safe that they won’t explode? Or leak? Or derail? Probably not.

So it’s just great that the rail companies are seeking to reduce crew size on trains from 2 to 1, relying on GPS for braking systems. Basically every stakeholder other than the rail companies opposes this–labor, environmental groups, safety advocates, community organizations. But the rail companies don’t care. But they can’t enact this unilaterally. Rather, the Obama administration has to approve. One hopes it denies the rail industry this ridiculous request. Imagine this scenario, not with oil but with chemicals:

“Imagine a railcar full of chlorine bursting on the CSX tracks less than mile away from a big public event on the Capitol Mall in Washington, D.C. — an inauguration, say, or a concert,” he wrote. “The resulting cloud could kill 100,000 people. Al Qaeda might do it, but it’s more likely that a $55,000-a-year engineer, in the tenth hour of his shift, would simply nod off at the controls.”

Yeah, not good. A second person working on the train can make a huge difference in keeping the other awake.

Lynching Mexicans

[ 20 ] February 20, 2015 |

When that great study detailing the numbers of African-Americans lynched in the South came out last week, I noted that its weaknesses included that lynching was not confined to the South and that lots of non-blacks were lynched. Those stories are often forgotten about, as is so much about American racial history that is not black-white. I was not the only person to notice this of course and historians William Carrigan and Clive Webb have a New York Times op-ed on the matter:

From 1848 to 1928, mobs murdered thousands of Mexicans, though surviving records allowed us to clearly document only about 547 cases. These lynchings occurred not only in the southwestern states of Arizona, California, New Mexico and Texas, but also in states far from the border, like Nebraska and Wyoming.

Some of these cases did appear in press accounts, when reporters depicted them as violent public spectacles, as they did with many lynchings of African-Americans in the South. For example, on July 5, 1851, a mob of 2,000 in Downieville, Calif., watched the extralegal hanging of a Mexican woman named Juana Loaiza, who had been accused of having murdered a white man named Frank Cannon.

Such episodes were not isolated to the turbulent gold rush period. More than a half-century later, on Nov. 3, 1910, a mob snatched a 20-year-old Mexican laborer, Antonio Rodríguez, from a jail in Rock Springs, Tex. The authorities had arrested him on charges that he had killed a rancher’s wife. Mob leaders bound him to a mesquite tree, doused him with kerosene and burned him alive. The El Paso Herald reported that thousands turned out to witness the event; we found no evidence that anyone was ever arrested.

While there were similarities between the lynchings of blacks and Mexicans, there were also clear differences. One was that local authorities and deputized citizens played particularly conspicuous roles in mob violence against Mexicans.

On Jan. 28, 1918, a band of Texas Rangers and ranchers arrived in the village of Porvenir in Presidio County, Tex. Mexican outlaws had recently attacked a nearby ranch, and the posse presumed that the locals were acting as spies and informants for Mexican raiders on the other side of the border. The group rounded up nearly two dozen men, searched their houses, and marched 15 of them to a rock bluff near the village and executed them. The Porvenir massacre, as it has become known, was the climactic event in what Mexican-Americans remember as the Hora de Sangre (Hour of Blood). It led, the following year, to an investigation by the Texas Legislature and reform of the Rangers.

Especially on the left, it’s really important to reiterate these points. There are good reasons why black-white relations still dominate our conversations about race as the murders of Trayvon Martin, Michael Brown, and Eric Garner remind us. But these same racist murders happen to Latinos as well. And while not in the big eastern cities that dominate the media cycle, Mexicans have been in this nation as long as African-Americans and have been subject to routine and systemic discrimination ever since the U.S. stole the northern half of Mexico to expand slaver in 1848. These stories have to be central to our racial history in order to fight for the rights of Latinos in the U.S. today.

Kristof on Unions

[ 94 ] February 20, 2015 |

I guess I am supposed to care that Nicholas Kristof now supports unions. Or so he says. Kristof usually only supports a cause if he can personally parachute in to save the victims–he loves to rescue Cambodian prostitutes (even if he is being scammed)–but when people take agency to improve their own lives–support Cambodian garment workers? No way–his interest declines significantly. Kristof writes that he now understands that unions actually do good in society, help create the middle class, reduce income inequality, and the like. Who knew! But he can’t resist framing this new position with anti-union stereotype after anti-union stereotype. The $400,000 stagehands! Teachers who can’t be punished! Corruption! Other myths and half-truths!

I’ll believe in Kristof’s conversion to unionism when he actually uses his column to support a specific action of workers–hey Nic, there’s an oil refinery strike going on right now!–or gives support to unions in his own field. Until then, this is just anti-union stereotypes used to cover up his half-apology for a long history of anti-unionism.

Of course one can also ask how a leading columnist at the nation’s paper of record can miss all the obvious evidence that unions are good for an economy–and miss that evidence for years and years. But then Kristof should have been fired over the Somaly Mam incident and it’s hardly news that Times columnists have lifetime sinecures no matter what idiotic columns they write.

See also Isquith.

The Oil Refinery Strike and Green Alliances

[ 11 ] February 20, 2015 |

Trish Kahle has an interesting piece at Jacobin on the potential for alliance between striking United Steelworkers’ refinery workers and environmentalists over safety conditions at the plants. Certainly environmentalists like Bill McKibben are saying all the right things here–greens have indeed learned lessons from the spotted owl debacle of the 1980s and 1990s. What does such alliances lead to? I don’t know. Kahle points out the history of these short-term alliances in the past, using the commonly cited example of the Oil, Chemical, and Atomic Workers (OCAW) under the leadership of Tony Mazzocchi in the 1970s as well as the rank and file of the United Mine Workers of America (UMWA) in the same era, fighting against their own union leadership and the companies for a healthier and more ecologically just workplace. My own book Empire of Timber details how these alliances played out in the timber industry.

Unfortunately, these alliances are very hard to sustain. First, they are almost always top-down, leadership-driven actions. That can work, but the rank and file of *both* movements have to get involved and there’s often been resistance there, often for cultural reasons. I think this is somewhat less of a problem with greens these days because in my experience, young people are often significantly more interested in green issues with an environmental justice angle than pure wilderness and wildlife issues of the past. But as the signs festooning West Virginia and western Pennsylvania lambasting Obama’s “War on Coal” suggest, there can often still be severe cultural suspicion from workers toward environmentalists.

As Kahle points out, the shift in the UMWA away from an ecological agenda had much to do with industry slashing jobs, which is another huge reason for the difficulty of making these alliances last. The corporate-state assault on unions, especially in the private sector, means that workers are extremely nervous about supporting anything that might endanger their jobs and in that fear are easily manipulated by the lies of their employers about environmental protection or even workplace safety. It is when workers have some sort of employment and economic stability that they have been most open to green programs. And that’s very hard in the 21st century American economy with the global race to the bottom and aggressive anti-union tactics undermining good jobs.

As for an ecosocialist agenda, well, I obviously support that, even if it remains fairly undefined. But given that Kahle is writing about refinery workers who labor in an industry contributing to climate change, I guess I need more detail on what role refinery workers can play if the goal is to switch to a green economy without fossil fuels. Obviously supporting solar and wind energy jobs as union jobs can be a piece of that but if the ideal is closing the refineries, I’m not sure that’s going to be a great way to keep an alliance with refinery workers going.

Still, you have to try. What else is there? Any alliance between labor and greens over workplace safety is really positive and I hope this leads to more conversations and more common ground between the two movements. If there’s a picket line around you, go to it. If there’s a speaker around these issues, go hear the person.

More on the troubles at Washington & Lee

[ 91 ] February 20, 2015 |

I noted yesterday that Washington & Lee University has announced a “strategic plan,” intended to get the law school to stop costing it money sooner rather than later.

After crunching some numbers, it’s fairly easy to spitball how much money the law school is currently losing, by comparing its estimated overall revenue with the details of the university plan designed to get the school’s fiscal mind right.

Before getting to those numbers, here are a few facts about the university:

W&L isn’t really a university — it’s a very rich, very highly-ranked, liberal arts college, with a law school somewhat incongruously tacked on to the place.

As for its ranking, I was taken aback to discover that the college keeps company with places like Bates and Middlebury, just below the Amherst/Swarthmore line.

One reason for this lofty position is that the school is flat-out loaded: the endowment was $916 million in FY2013, which probably means it will reach the one billion mark this year if it hasn’t already. A couple of years ago W&L had the 11th-largest endowment on a per capita basis of any college or university in the country, and the fifth largest of any liberal arts college.

The other is that it’s very old, having been saved from financial extinction in the late 18th century by none other than George Washington himself. The college named itself after him, and then added Robert E. Lee’s name after Lee’s five-year presidency following the War of Northern Aggression (Lee is actually responsible for creating the law school, which was an undergraduate degree at the time).

Anyway, the place seems to have been the prime finishing school for well-heeled sons of the Old Confederacy (the college didn’t admit women until 1985, and the law school may have been the last law school in the country with an all-male class, as the first woman wasn’t admitted until 1972), before it started playing the ratings game so successfully, when college ratings started to be a big thing. 80% of undergraduates are in the Greek system, there are a bunch of secret societies of long standing, and in short the whole thing sounds like a setting for a sardonic Tom Wolfe novel.

As for the law school, it too played the ratings game very well. Although it’s not and never will be nearly as elite an institution, comparatively speaking, as the college, the law school almost always showed up in the 20-25 range, even though few of its graduates actually got prestige-oriented legal jobs. (In recent years about 15% of the class has gotten either big firm jobs or federal clerkships, which is a very low figure for a top 25ish law school).

The law school has traditionally had about 390-400 students, with entering classes of around 120-125, supplemented with a couple years’ worth of transfer students. Three years go it ended up admitting a class of 187 for some reason (my guess would be money), but over the last couple years the law school has struggled badly in the context of a cratering applicant pool at both the national and local level.

This last couple of admissions cycles have been a bit of a disaster for the school, as it ended up enrolling a combined total of only 212 students, despite slashing admission standards (the median LSAT fell four points in just two years) and throwing massive amounts of cash in the form of tuition discounts at the applicant pool. The school got only 10% and 11% of its admits to matriculate this year and last, which, along with a sudden plunge in the rankings, from 26th in 2013 to 43rd this year, are no doubt the proximate causes of the university administration’s displeasure (The fall in admissions doesn’t seem to have much if anything to do with the fall in the rankings, as the school’s ranking didn’t slip until this year, while admissions cratered in 2013).

The law school’s financial situation can be sussed out readily enough from its 509 disclosures and the university’s reaction. The school is netting about $9.8 million in tuition this year after discounts, charging an effective tuition of around $26,000, i.e., about 58% of its advertised sticker price of more than $45,000. The endowment is throwing off around $4.5 million, and I’m guessing annual giving is around $750,000, since the school is supposed to increase that figure (how is a good question) to $1.5 million going forward, and a pledge to double annual giving sounds like what harried administrators would most likely do in these circumstances. Thrown in another million bucks for grant money, ancillary income etc., and the law school is probably generating about $16 million from all sources, give or take.

We can also figure on the back of this particular envelope that the law school is being told to cut about two million dollars per year in operating expenses. Six faculty positions add up to around $1.3 million per year (based on an average tenure track compensation package of $215,000 in salary and benefits; in FY2013 three senior faculty were getting around $300K in compensation), while the 2% salary cuts for a few senior types are a few tens of thousands of basically symbolic dollars.

The administrative position cuts probably add up to around 400K to 500K, and cutting operations by 10% will save another 350K or so. All told that adds up to little more than two million per year in cuts, which can be added to around four million per year in increased revenue that is supposed to balance the budget: three million per year from raising the endowment distribution from 4.5% to 7.5%, 750K from sprinkling magic pixie dust on annual giving to double it, and another $300K or so on average from 2% annual tuition tuition hikes. This in turn suggests that the school is currently spending about $20 million, since, per the university’s plan, enrollment is going to decline about 20% from its current level, which adds up to another two million in revenue that needs to be replaced (it’s probably not a coincidence that the mandated spending cuts add up to just about exactly this figure).

A particularly tricky aspect of university accounting is that an estimate of the law school’s expenses includes both the direct expenses the school generates (basically personnel plus operating) and indirect expenses. The latter represents the law school’s share of university operating expenses not directly generated by the various academic units within the institution, i.e., central administration, common facilities, sports — the school has 22 [!] varsity sports teams, which generate millions of dollars per year in operating costs and essentially no revenue — advertising and promotion etc.

Small elite colleges have relatively high indirect costs, because they don’t benefit from economies of scale, and because institutions with access to a lot of money spend a lot of money — they’re “non-profits” after all, which means all revenue is internalized.

This probably means that W&L’s administrators expect the law school to fork over several million dollars per year over and above the school’s direct expenditures, and that this expectation isn’t even a product of trying to use the law school as a cash cow, to cross-subsidize other parts of the institution, but simply a product of the overall cost structure of the university.

In any case Washington & Lee is in one sense a rather special case among law schools. No other elite liberal arts college has a law school attached to it, and W&L’s law school will never be nearly as prestigious an institution, relatively speaking, as the larger institution of which it’s a part (The category of elite law schools is limited to 14, and 14 only, and despite W&L’s success at gaming the rankings no one has ever considered it to be anywhere close to that magic circle). In other words, the only substantial benefit the college was getting from the law school was that at one point the latter actually made money for the former.

At this moment, I suspect the college’s leadership is rather regretting having to manage what is something of an expensive white elephant, and that this regret is taking the form of very concrete financial demands. It will be interesting to see what happens if the law school finds itself unable to meet those demands.

The Three Stages of ACA Trooferism

[ 74 ] February 20, 2015 |

I have a piece up at The Week on the shell game being played by the ACA troofers. The basic idea is that you shuffle between “Card says Moops!,” “the Moops invaded Spain,” and “¯\_(ツ)_/¯” theories quickly enough that it’s harder for people to explain why every individual argument is terrible:

As a sort of way station between the two arguments, then, Ponnuru proceeds to an argument we can label, “Looks like those clowns in Congress did it again. What a bunch of clowns.” In other words, various members of Congress had different intentions, many weren’t really paying careful attention — who can say what Congress was really trying to do? As Ponnuru writes, lawmakers are “generally not detail-oriented people.”

There is a grain of truth to this argument — Congress is a “they,” not an “it,” as social scientists say, and we should be careful in making broad generalizations. Nonetheless, everybody makes reasonable judgments about what Congress is trying to accomplish, not least because it would otherwise be impossible to practice law or interpret history. We can understand why the Wilmot Proviso, for example, broke down on sectional rather than partisan lines without claiming to know the precise subjective intentions of each and every member of Congress.

And in this case, the idea that we can’t reasonably infer what Congress was trying to do is absurd. The amicus brief written by Nicholas Bagley, Thomas Merrill, Gillian Metzger, and Abbe Gluck is particularly strong on this point. Federal backstops are not some mysterious new innovation of the ACA — they’re a bog standard part of cooperative federalism. They’re inserted in statutes when Congress wants to ensure that benefits of programs administered primarily by states will flow to citizens even if the states decline to participate.

Congress did not intend for the federal backstop to fail, and it was universally understood that the insurance exchanges could not work without tax credits and the individual mandate. There’s only a mystery here if you hate the ACA so much that you’ve become willfully blind to what it’s trying to accomplish and how it relates to previous statutes in the New Deal/Great Society tradition.

As such, it makes sense that the ACA’s opponents would develop an alternate history that can actually reconcile their reading of the statute with an explanation of Congress’ intentions. The Supreme Court is much less likely to strip insurance from millions of people based on what the architects of the suit initially identified as a “glitch,” than if it convinces itself that it’s upholding the will of Congress.

Ponnuru doesn’t go quite so far as to say that he’s “100 percent certain” about what the ACA’s drafters were setting out to accomplish, but he does argue that the Adler/Cannon interpretation makes sense. Denying subsidies on federally established exchanges, Ponnuru asserts, is “not at all absurd in principle.” After all, states that don’t comply with the requirements of Medicaid don’t get the money — why shouldn’t we think that the same principle of coercion is at work in the exchanges?

But the contrast with the ACA’s Medicaid expansion destroys Ponnuru’s argument rather than fortifying it…

Much more at the link.  I wrote it before the final Carvin brief came out, but he’s definitely using this particular version of the con.  His first brief was full-on “Moops-invaded-Spain” trooferism, but the latest one is much more “anything’s possible,” not repudiating his bad magic realism but pushing it much less aggressively.  The fiction about what Congress was trying to accomplish doesn’t really have to withstand any empirical, logical or theoretical scrutiny — a good thing, since it can’t.  It just needs to throw up enough of a “shape of the Earth — views differ” fog that 5 justices strongly predisposed to destroying the ACA can tell themselves the law permits it.  The scary thing is that I still think it had a good chance of working.

Labor Reporting

[ 37 ] February 19, 2015 |

The New York Times is replacing the retiring Stephen Greenhouse on its labor beat with…..Noam Scheiber. Who is an OK reporter but when has he had anything interesting to say about unions? Does he even really care about unions per se? Has he walked a picket line? I don’t think he’s ever written about these issues too much. I’m sure Scheiber will be fine on the big economic questions that concern working class people but that’s not the same as covering labor, which requires talking to poor and working people on the ground. Maybe this works out, but I can’t say I’m super excited.

Of course, it’s good to remember Scheiber’s oh so insightful essay complaining that DeBlasio cares about black people getting killed by cops. That’s a reporter who can talk about labor solidarity!

Applying Labor Trafficking Laws to US Companies Operating Outside the U.S.

[ 17 ] February 19, 2015 |

In Out of Sight, I argue for the need of international enforceable labor standards that empower workers to seek redress for their exploitation through the courts of the company who either owns the workplace or who has signed contracts to produce its items there. If you are a Bangladeshi worker making apparel for WalMart and your factory collapses and kills you, your family should be able to sue Walmart in U.S. courts.

I realize that this is not happening overnight. But it’s not like there aren’t useful precedents we can build from. For instance, a U.S. ship repair company sought Indian labor after Hurricane Katrina. There was quite a bit of international labor recruited to rebuild New Orleans and the Gulf. And a lot of it was exploited, including the workers of this ship repair company. But the workers fought back:

A New Orleans jury on Wednesday awarded $14 million to five Indian men who were lured to the United States and forced to work under inhumane conditions after Hurricane Katrina by a U.S. ship repair firm and its codefendants.

After a four-week trial, the U.S. District Court jury ruled that Alabama-based Signal International was guilty of labour trafficking, fraud, racketeering and discrimination and ordered it to pay $12 million. Its co-defendants, a New Orleans lawyer and an India-based recruiter, were also found guilty and ordered to pay an additional $915,000 each.

The trial was the first in more than a dozen related lawsuits with over 200 plaintiffs that together comprise one of the largest labour trafficking cases in U.S. history.

Signal recruited about 500 Indian men as guest workers to repair oil rigs and facilities damaged by Hurricane Katrina in 2005, according to plaintiffs.

The workers paid $10,000 apiece to recruiters and were promised good jobs and permanent U.S. residency for their families, according to the suit. When the men arrived at Signal shipyards in Pascagoula, Mississippi, they discovered that they would not receive promised residency documents.

Signal also charged the men $1,050 per month to live in guarded labour camps where up to 24 men lived in single 1,800-square-foot (167-square-metre) units, according to the suit.

An economist who reviewed Signal’s records for the plaintiffs estimated the company saved more than $8 million by hiring the Indian workers.

“The defendants exploited our clients, put their own profits over the lives of these honourable workers, and tried to deny them their day in court,” plaintiffs’ attorney and Southern Poverty Law Center board chairman Alan Howard said in a statement.

American labor law is violated and the company can be defeated. But the question we don’t ask often enough is why should American labor law be applied only to workers in the United States? Why shouldn’t at least parts of American labor law be applicable to anyone making products for American firms? What has really empowered the global race to the bottom is disconnecting corporations from national law, allowing them to move while law stays static or is even repealed in order to keep them from moving again. Anyone working in a guarded labor, overcrowded labor camp producing goods for American companies should have the right to fight back not only in their own country, where corporate money has even more power and buys even more politicians than in the U.S., but also in American courts. These are the goals for which we must fight if we want to improve global labor standards worldwide.

Carvin Comedy Classics

[ 79 ] February 19, 2015 |

The final reply brief from the ACA troofers has been filed.   The first thing you’ll notice is that — once again — the brief gives off the aura of flop sweat because it italicizes a ludicrous number of words for no obvious reason(Maybe Carvin bills extra for every word he can emphasize.)  The content, alas, deserves no better.

Of the many bad arguments in the brief, this one is already getting attention for good reason:

The Government emphasizes that subsidies help expand the risk pool. If the IRS Rule is vacated, it claims, states served by HHS Exchanges would see increased premiums, reduced enrollment, and ultimately “death spirals.” Even if that were true (but see p.20, infra), these consequences are the result of the IRS Rule, not the statute. Had the IRS from the start made clear that subsidies were limited to state Exchanges, states would not have overwhelmingly refused to establish them. Indeed, Congress had no reason to doubt that all (or virtually all) states would establish Exchanges to ensure citizens’ eligibility for subsidies.”

This is some world-class ass covering — if millions of people lose their insurance, don’t like at us, we didn’t do it! It would have worked without the I.R.S.! (Perhaps it was the I.R.S. paying Michael Cannon to travel all over the country telling states not to establish exchanges too.) The problem, as Ian says, it that this is absolutely absurd. The idea that states that turned down the Medicaid money wouldn’t have refused to establish exchanges doesn’t make any sense. And there’s the additional remaining problem that these “threats” were not communicated to the states by anybody, and nor did any states receive them, even though everyone understood the consequences of refusing the Medicaid expansion.

In addition, Carvin continues to argue that “the Government claims it was “clear” that some States would not establish Exchange, but that is false.” The sole relevant piece of evidence for this is the Robert Pear story we’ve discussed before — in other words, all they have is an unsupported bare assertion that makes no sense on its face and has been disproven repeatedly. (They also mention that the federal exchanges weren’t funded, but explain themselves why this is irrelevant when they note that HHS was able “to turn to a general “administrative expenses” fund.) But, hell, don’t believe me — believe what Carvin wrote in his first brief:

Section 1321 of the Act therefore recognizes that some states may not be “electing State[s],” because they may choose not “to apply therequirements” for an Exchange or otherwise “fai[l] to establish [an] Exchange.” To address that scenario, ACA § 1321(c) directs the Department of Health and Human Services (“HHS”) to “establish and operate such Exchange within the State.”

So Carvin initially acknowledged the obvious — that the federal backstop was established because Congress anticipated that some states would not establish their own exchanges — but handwaved it away by inventing a farcical just-so story in which Ben Nelson demanded that the federal exchanges not be allowed to work. With that bit of magical realism having been foreclosed by Nelson himself, Carvin is reduced to arguing that a federal backstop was established…for no reason whatsoever. Sure.

Also consider this bit of nonsense:

In stark contrast, no member of the ACA Congress identified subsidies as critical to a “three-legged stool” or said that Exchanges absent subsidies would cause “adverse selection” or trigger “death spirals.” Rather, as the Government emphasized in NFIB, the individual mandate was justified on these grounds, “[a]s demonstrated by the experience of States that attempted [insurance] reforms without a minimum coverage provision.”

First of all, as Hogan observes, Jonathan Gruber’s 2012 YouTube videos are considered by Carvin to offer an authoritative interpretation of the statute even though they contradict the interpretations of every other relevant actor (including the non-2012 Gruber.)  But when it comes to what was necessary for the exchanges to work — something far more relevant to Gruber’s expertise than the policy choice of whether the default exchanges should be state or federal — apparently his views are irrelevant.  The only questions he can’t be cited on, apparently, are those respecting the concept he invented.

But let’s say we should ignore Gruber, which I certainly wouldn’t object to. The rather obvious problem is that even if you make the assumption that only the mandate and not the subsidy is necessary to the “three-legged stool” necessary to prevent a death spiral, it’s beside the point given that eliminating the tax credits effectively eliminates the mandate, since the vast majority of people subject to the mandate would have to pay more than 8% of their household incomes without the subsidy. So, in fact, subsidies are crucial to the three-legged stool either way, and it’s absurd to assume that Congress set up a federal backstop that was intended not to work.

I’ll have a longer piece tomorrow about why the ACA’s opponents persist with a narrative about the statute that’s obviously untrue, but their continued (if muted) reliance on the Moops-invaded-Spain theory is profoundly embarrassing.

…so, so hacky:

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