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NRA Children’s Propaganda

[ 50 ] March 26, 2016 |

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What are our very nice friends at the National Rifle Association up to these days?

The world of make-believe can be a scary place, but never fear: Thanks to a series of reimagined fairy tales published online by the National Rifle Association, classic characters like Hansel and Gretel are now packing heat.

The group has published two of the updated tales on its N.R.A. Family website in recent months, entitled “Little Red Riding Hood (Has a Gun)” and “Hansel and Gretel (Have Guns).” The stories have outraged advocates of gun control, but their author, Amelia Hamilton, a conservative blogger, has called them lessons in gun safety.

“The stories are really also for adults, and it’s all about safety,” Ms. Hamilton said in an interview on “CBS This Morning” on Friday. “It’s for parents to start those conversations.”

N.R.A. Family asked its readers in an editor’s note if the dark overtones of the original fairy tales — an old woman eaten by a wolf and children cooked by a witch — ever made them “uneasy.” It said the new versions are meant to make the Grimm brothers’ tales less grim.

In Ms. Hamilton’s stories, each of the young protagonists (and one grandmother) is transformed from a victim into a hero with the help of a gun.

In the N.R.A. version, Little Red Riding Hood set off through the forest to visit her grandmother, just like in the original. But the Big Bad Wolf did not scare her this time, because she “felt the reassuring weight of the rifle on her shoulder.”

When the wolf approached her, “she shifted her rifle so that it was in her hands and at the ready.” He fled in fear.

Grandma, too, was saved by a gun. While distracting the wolf with compliments about the size of his eyes and ears, she slowly reached for her weapon.

“The wolf leaned in, jaws open wide, then stopped suddenly,” Ms. Hamilton wrote. “Those big ears heard the unmistakable sound of a shotgun’s safety being clicked off. Those big eyes looked down and saw that grandma had a scattergun aimed right at him.”

I don’t think I can make any useful comment about this. It speaks for itself. I guess this is how 4 year olds shoot their Jessi Colter circa 1975 look-a-like gun advocate mothers.

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Conservative Lies about the Spotted Owl

[ 30 ] March 26, 2016 |

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Bill Clinton enacted the Northwest Forest Plan in 1993. This marked the logical ending point for the Northwest Timber Wars between environmentalists and the timber industry that had riven the region for the previous 20 years. This closed most national forest land with old-growth timber to logging in order to save this sensitive species from extinction and to save the last ancient forests. During this whole period, the timber industry claimed protecting the owls would decimate timber employment. Meanwhile, employers themselves were destroying timber employment through a combination of automation, overharvesting and resultant need to find new forests to exploit, and log export policy that created fast profits by selling unprocessed logs to Japan instead of paying American workers to process the wood before exporting it. Long before 1993, timber employment plummeted. In 1978, the timber industry employed 136,000 people in Oregon and Washington. Four years later, that number declined to 95,000. Very little of that was from environmental protection. Weyerhaeuser invested $400 million to modernize its mills in Everett and reduced its work force from 900 to 500. The number of workers needed to produce one million board feet of lumber fell by approximately twenty percent, from 9.1 between 1976 and 1982 to 7.4 between 1982 and 1991. By 1970, over 2.5 billion board feet of timber was exported from west coast ports, a number up 16.6 percent from the previous year. 96.2 percent of that timber went to Japan. Exports exploded during the Reagan years, peaking in 1989 at 1.944 billion board feet of timber, twice their peak during the Carter administration. Between 1979 and 1989, lumber production in the Northwest increased by 11 percent while employment dropped by 24,500 jobs. All of this information comes from my book Empire of Timber: Labor Unions and the Pacific Northwest Forests, which amazingly is actually on sale for $25 on Amazon right now. Considering it is usually listed at $100, buy it now!

But for loggers facing the end of a work tradition, it became easier to blame greens than their own employers or complex export policy. Companies successfully shifted blame to a minor cause of unemployment. Between 1983 and 1988, average timber employment in Oregon and Washington was 105,000. By 1994, it was still 91,000, even though old-growth logging had fallen to near zero because of the spotted owl lawsuits. Yet these lies about why jobs disappeared remain tremendously powerful in conservative communities, including the logging towns decimated by corporate and political choices about forest policy in the second half of the twentieth century. If you want to read the lies told by conservatives about these issues, you can read this. I won’t embed any of it because it’s garbage, but the only facts provided are the spurious claims of a CEO. But these arguments make me really angry because they are outright lies that cover up corporate malfeasance and greed.

Yes, It’s A War on Women

[ 75 ] March 26, 2016 |

Florida Gov. Rick Scott Attends Hurricane Conference

I mean, if you’re going to turn down the Medicaid expansion, why not go all the way:

Gov. Rick Scott of Florida signed a law on Friday that cut state funding to clinics that perform abortions.

State funding of abortion was already prohibited in Florida, but the law signed by the Republican governor also cut off funding for preventive services at clinics that also provide abortions.

The law appeared to be aimed at Planned Parenthood, which said on Friday that it could mean the end of birth control, cancer screenings, tests for diseases and other services for thousands of low-income women in Florida.

The organization said in a statement that it serves more than 67,000 patients in the state each year, and that many of them rely on public funding to pay for their health care.

Cecile Richards, the president of Planned Parenthood Federation of America, said in a statement that the new law seemed “designed to rip health care away from those most at risk.”

Mr. Scott signed the law along with 67 other bills addressing a variety of topics, including medical marijuana and the composition of a highway commission in Miami-Dade County.

But he did not specifically comment on the abortion law, which has been controversial. In a news release, his office tersely said it “revises regulations for licensed abortion clinics.” The law also requires doctors who perform abortions to have admitting privileges at a nearby hospital or for the clinic to have a transfer agreement there.

In Alabama, a law requiring such privileges was struck down on Friday by Judge Myron H. Thompson of Federal District Court, who said it “unconstitutionally restricts the rights of women seeking abortions in Alabama.” His decision comes three weeks after the Supreme Court heard arguments in a case challenging similar restrictions in Texas.

“Poor women choosing to exercise their constitutional right to choose an abortion don’t know their place. We’d better cut their preventative health care just to be sure. DON’T CALL THIS A WAR ON WOMEN.”

…and the war is happening in Indiana, too.

The age of innocence

[ 219 ] March 26, 2016 |

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Here is this week’s top reader comment, as chosen by New York Times’ readers and journalists:

As someone who was in Tower 2 in the 9/11 attacks, I know all too well what it feels like to live in a city under siege, always fearing the next attack.

I am saddened that we are in a world that creates people who see no alternative for their lives than to die violently, taking as many innocent people with them as their crude homemade devices will allow.

What we all are losing in this battle is our ability to live our lives devoid of fear. There is a lot to be said for being able to go to a park or a concert or the subway and not worry about the potential for violence and bloodshed.

I miss the innocence of a pre-9/11 world where that was the norm. My heart of course goes out to the victims of this latest attack. I hope we find our way through this violence someday, but I see no immediate answers or a clear path back to those innocent days.

lgt525 in Ann Arbor, Mich., reacting to the terrorist bombings in Brussels on Tuesday.

If you live in Ann Arbor — as opposed to say, the general vicinity of Baghdad — fear of terrorism is almost completely irrational, although I suppose one should make allowances for someone who was at the WTC on 9/11.

It’s well known that driving from Ann Arbor to Chicago is 10,000 (or whatever) times more dangerous than the dangers posed to Americans or Europeans by ISIS. This statistical truth seems to have little effect on peoples’ psychology. As for “innocence,” 9/11 took place a few months after the end of a century that featured mass slaughter of both combatants and civilians on an unprecedented scale, so it’s not as if lgt525 has to think back to the 30 Years War to find historical examples of a less innocent time than the present.

Fear of terrorism is created by terrorists, of course, but their efforts would be fruitless if not for the continual cooperation of the mass media, most especially including elite media such as the Times, whose editors ought to know better than to amplify social panics that they themselves help create.

But fear sells, and that’s the only thing that counts (any more, or is that just more ahistorical nostalgia for an age of a more responsible press?).

More Shandling

[ 17 ] March 26, 2016 |

A few more Garry Shandling related links.

One might forget how great the writing on The Larry Sanders Show was. So great. So hilarious. Thanks to Tom Till for the link.

Conan O’Brien’s remembrance of Shandling was rather touching.


And Zoller Seitz:

The Larry Sanders Show — which holds the personal distinction of being the series that made me order cable for the first time — felt in some ways like an inversion of his Showtime classic, or maybe a Cubist splintering of it. Shandling played the title character, a Johnny Carson–like talk-show legend who was perpetually terrified that he wasn’t getting the best guests, that his “best friends” in showbiz didn’t even like him and only hung around him because he was a star, and that his co-workers only put up with his crap because he was paying them. On some level, all of these fears proved accurate, and on another they weren’t true at all. All the other recurring characters and guest stars on the show were just as screwed up as Larry — they just didn’t usually have his wealth and power, so they had to suffer indignities without recourse. The “backstage” scenes were shot on film, in the graceful yet spontaneous manner of a low-budget indie comedy, while the talk-show segments were represented by cutting between brighter, grainier videotape (representing what the camera sees, and what the audience at home experiences) and filmed images of his staff and crew and backstage acquaintances reacting to his performance. That these textural (and textual) distinctions immediately started to seem arbitrary was part of the show’s point, and part of its philosophical richness. Life was all one big show here, and nobody had the script.

Few lead characters in TV comedies were as pathetic and needy and sleazy and manipulative as Larry. He took his wife for granted until she finally divorced him. He hit on every halfway-attractive woman who crossed his path (and a few of them went home with him, not because they really liked him, but because he was Larry). He’d bring dates home with him from dinner and then make them watch the broadcast of that day’s show with him, solicit compliments on his excellent work, and feel genuinely hurt when he had to coax the praise out of them. Larry was a great performer, and it’s a testament to Shandling’s physical and verbal skill as a performer that you could watch Larry interact spontaneously with guests in barely scripted “segments” and think, Carson could not have done that any better. But he was a terrible boss, petty and entitled, casually sexist and racist and homophobic, though often not as crude about it as some other people in Hollywood, which allowed him to congratulate himself on being oh-so-very liberal. (Except for Albert Brooks, few filmmakers skewered this aspect of showbiz delusion with such precision.) We should have hated him, but we couldn’t because, like The Office’s David Brent and his counterpart on the American Office, Michael Scott, we saw how lonely he was, how miserable he was in his own skin, and thought: That poor bastard. I’m glad I’m not him.

But you were, though. Shandling knew it, and you knew it. And that’s what gave The Larry Sanders Show and It’s Garry Shandling’s Show their slow-motion, train-wreck fascination.

What a huge loss. At least Shandling is being properly remembered at the genius and good person that he was.

Silicosis Rule

[ 69 ] March 25, 2016 |

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Another day, another great move by Obama’s Department of Labor.

The Department of Labor is issuing a long-awaited and controversial rule Thursday aimed at better protecting workers from inhaling silica dust.

The new rule dramatically reduces the allowed exposure limits for workers in a slew of industries, from construction to manufacturing to fracking.

About 2.3 million people in the U. S. are exposed to fine grains of silica on the job; inhaling the dust is one of the oldest known workplace hazards. Silica, which is basically sand, scars the lungs, causing diseases like silicosis and cancer.

Secretary of Labor Tom Perez says the existing rule that limits a worker’s exposure to silica dust hasn’t been changed since the early 1970s. And even back then, he adds, research showed the exposure limit didn’t offer adequate protection.

“We’ve known for over 40 years that it needed to be strengthened, and it has taken 40 years to strengthen it,” says Perez. “Many people who are going to work right now and breathing unacceptable levels of silica dust are in for a brighter future.”

He says the current rule for construction sites caps exposure at 250 micrograms of silica per cubic meter of air.

“And the science says we need to be at 50,” says Perez. “So that’s what the final rule will say.” That same updated exposure limit will apply to general industry as well, he adds, which will cut the current exposure limit in half.

Of course, we know there really isn’t any difference between the two parties and voting is a consumer choice anyway, so why even bother if Bernie Sanders isn’t the nominee, unless you think that we can heighten the contradictions with a Trump presidency……

Incidentally, I love this trial balloon of Hillary naming Secretary of Labor Tom Perez as her VP candidate. I think that would be great. No, he’s never been elected to office. But that never hurt Chester Arthur! He’s tremendously competent, is a really strong progressive, is Dominican-American and speaks fluent Spanish, and has a lot more concrete accomplishments than Julian Castro. My wife, a historian of Latin America with very deep roots in Mexican immigrant communities and therefore who knows far more about these things than I do, assures me that Latinos won’t really care that Castro can’t speak Spanish and that’s it would be an aspirational assimiliationist story more than a liability. But it certainly isn’t going to hurt that Perez is fluent in Spanish. We all know that barring naming someone who turns into a huge liability like Tom Eagleton or Sarah Palin, VP candidates don’t really shift elections. But given the likely significant increase in Latino voting because of the open Republican war against them, reinforcing that Democrats are the party of Latinos by naming a very skilled Dominican to the ticket is certainly not going to hurt. Plus it would be nice if organized labor actually got a big prize for all its support for once.

The Jobless White Working Class

[ 96 ] March 25, 2016 |

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It would be nice to not have to talk about a white working class in the United States. I would love to just talk about the working class, where it wouldn’t really matter if they were white, black, or Latino because they would have interests in common. But of course that is never going to happen. Even assuming that racial animosity could decrease, the histories and geographies of different races are simply too different. And thus we have a white working class problem, especially as many of them are finding Donald Trump appealing because he voices their frustrations and their hatreds. Of course some of those hatreds are openly racist, but the frustrations of not having any economic opportunities or any future is real too. Yet neither party has even started thinking of a jobs program for working-class people that is even marginally based in reality. Telling people to go to college or get retrained for largely nonexistent jobs is simply not a jobs policy. Yet even Bernie Sanders’ campaign, as useful as it has been on economic inequality, is very quiet on this sort of thing. These people are struggling, and the economic consequences are seen in growing educational disparities and health disparities. We need to pay attention to their stories and act upon them.

When you go into these communities and leave the small bubbles of success –Manhattan, Los Angeles, northern Virginia, Cambridge – and listen to people who work with their hands, you hear a uniform frustration and a constant anxiety. In a country of such amazing wealth, a large percentage of people are trying not to sink.

In Blossburg, Pennsylvania, Arnie Knapp walks five miles into town every morning, trying to keep his body in shape and not succumb to the various injuries he suffered working the mills. He started working at 14 and once they closed, he worked a series of lower-paying jobs. Unlike the characters profiled in the National Review article, he isn’t looking for a handout: “I haven’t asked for anything but work from anyone. Problem is, there aren’t a lot of jobs around here any more.”

In Appleton, Wisconsin, Tom Lawless, who has been driving long-haul trucks all his life and measures his success in millions of miles safely driven, is frustrated: “I am getting squeezed, my pay gets lower, and my costs go higher.”

In Ohatchee, Alabama, Larry, taking a day off work to take his son fishing, is gracious but frustrated: “I have worked in foundries all my life, since I was 15. Hard work, and I don’t got a lot of money to show for it.”

The frustration isn’t just misplaced nostalgia – the economic statistics show the same thing.

It’s hardly surprising that Kevin Williamson would turn on the very people he needs to vote in his political agenda. There’s never been anything but contempt from the rich toward poor whites. Now that those poor whites are voting Trump instead of Jeb or Walker or even Cruz, there’s no reason to even hide the hate anymore. And while we would like to think that these voters would “vote their interests” and support Democrats, and of course some do, the reality is that they see their own interests in a variety of ways. Some prioritize their white identity, some their evangelicalism or Catholicism, some their love of shooting things, some their economic class. Without leftist organizing in these towns and cities, there’s little reason to expect the white working class to organize to see themselves as workers primarily. That’s especially true when they barely know anyone with jobs to begin with. But regardless of this, if we want to blunt the force of Trumpism and fight to prevent future Trumps from demagoguing the frustrations of the white working class into scary political violence and eliminationist rhetoric, we need to give the white working class (as well as the other working classes) a reason to believe in this nation. The answer has to be jobs. We need a jobs program for people who do not graduate from college. People need to be able to live dignified lives with hope for the future. But with Carrier moving 1400 jobs from Indiana to Mexico, to use one of thousands of examples of the flight of good jobs from working people (not to mention their automation), the reason for working class people to have hope in this nation is declining, not increasing. Until we have a real answer to this–until we have a solid program or at least a solid set of demands for a comprehensive jobs program–we can expect more white working class support of racist and fascist candidates.

The Privilege of the Sanders Die-Hard

[ 288 ] March 25, 2016 |

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As it becomes increasingly clear that Bernie Sanders will not be the Democratic nominee for president in 2016, his most die-hard supporters are trying to figure out what to do. They have worked themselves into such a fever that Hillary Clinton is Evil Incarnate that the idea of voting for her is not something they can consider. What they will do when Sanders not only endorses Clinton but works hard for her on the campaign trail, trying to get his supporters to vote for her, will be interesting. Maybe they will say he’s not sincere, maybe they will call him a sellout. But what do HA Goodman, Walker Bragman, and Brogan Morris have in common, other than having names that sound made up by a bad author writing a terrible novel about a boarding school? They are all rich white dudes who are able to say that they will never vote for Hillary because they will not have to personally face the consequences of a Republican president.

If Donald Trump gets elected, how many vulnerable people will be hurt, how many programs cut, how bad will the the economy get under conservative policies? How much damage will be done if Trump, an open racist and misogynist, is empowered to command our military, veto bills, and nominate people to the Supreme Court, impacting life in the US for decades to come?

Trump exhorts his followers to attack protestors at his rallies (“The next time we see him, we might have to kill him,” a follower said after punching a black protestor at a rally.) Trump excuses his followers who attack a homeless Hispanic man on the street, claims that Mexican immigrants are rapists, refused to distance himself from the Ku Klux Klan, supports banning Muslims from entering the US, advocates killing the families of terrorists, and is openly sexist. Trump is the worst America has to offer.

How privileged do you need to be to imagine that it’s a good idea to risk the actual lives of vulnerable Americans because you “hate” Clinton so much that you vow to stay home if Sanders doesn’t get the nomination? How protected from the consequences of a Trump presidency do you need to be to think your hatred of Clinton constitutes, as I saw someone say earlier this week, an “inviolable principle,” meaning that it’s more important than the lives of vulnerable Americans? That all applies equally to any Clinton supporters saying the same about Sanders. (We have yet to see the full weight of American anti-Semitism aimed at Sanders, and if he wins the nomination, we most certainly will.)

Vote for whoever you like in the primary. But let’s step away from vicious attacks and hatred. Let’s step away from buying into debunked conservative propaganda about Clinton’s trustworthiness. Let’s look at the candidates’ actual proposals and weigh those proposals’ actual strengths and weaknesses. Let’s respect each other’s choices in the primaries.

And whoever becomes the Democratic nominee, the stakes are far, far too high for us to selfishly stay home because we didn’t get our first choice. I will happily, proudly vote for either Clinton or Sanders, and I hope you will do the right thing and join me.

This of course should be self-evident to anyone who is not an utter narcissist. But alas, the idea of voting as a consumer choice that defines you as a moral individual is a cult that will not go away. In November, you are going to have a choice. One choice will be a Lesser Evil candidate with a lot of problems but who will also do a lot of good things. The other will be a fascist. The choice is yours. There is no other choice. Not voting because the Democratic Party candidate is not your primary preference does not mean you are above the fray or not morally responsible for what happens in this nation over the next four years (or much longer). It just means you are a preening individualist who privileges his (and let’s face it, it will usually be his) own self-regard over the community of people around you–women, unionists, environmentalists, GLBT, immigrants, African-Americans who still want the right to vote, etc. I don’t particularly care for Hillary Clinton. But there is no possible way I will not vote for her in November against Donald Trump or Ted Cruz.

By the way, it was Noon who created the above image.

On Peeps

[ 109 ] March 25, 2016 |

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It’s always good to have a union-based holiday. So here’s a list of union-made candy, usefully provided by UFCW.

However, I want to be clear on something. Don’t blame unions for Peeps. Peeps are candy bought by parents who don’t love their children, but feel social pressure to buy candy for them anyway. People often blame unions for the terrible U.S. cars of the 1970s and 1980s. This is ridiculous. It’s not like the UAW was involved in the design process. Similarly, it’s not like UFCW is involved in the decision to continue to make the worst candy in known human history. They are just making sure said terrible candy supports a middle-class household.

Obama’s Legacy

[ 168 ] March 25, 2016 |

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Dylan Matthews:

[The ACA] is, to quote Harvard political scientist Theda Skocpol, “a century-defining accomplishment in the last industrial democracy to resist using national government to ensure access to health coverage for most citizens.” FDR failed, Truman failed, Nixon failed, Carter failed, Clinton failed — and Obama succeeded. He filled in the one big remaining gap in the American welfare state when all his forerunners couldn’t.

But Obama’s domestic achievements were not just limited to health care.

The Affordable Care Act was hardly Obama’s only accomplishment. He passed a stimulus bill that included major reforms to the nation’s education system, big spending on clean energy, and significant expansions of antipoverty programs. He shepherded through the Dodd-Frank Act, the first significant crackdown on Wall Street’s power in a generation, which has been far more successful than commonly acknowledged.

He used executive action to enact bold regulations to curb greenhouse gas emissions, and to protect nearly 6 million undocumented immigrants from deportation. He ended the ban on gay and lesbian service in the military, made it easier for women and minorities to fight wage discrimination, cut out wasteful private sector involvement in student loans, and hiked the top income tax rate. He reprofessionalized the Department of Justice and refashioned the National Labor Relations Board and the Wage and Hour Division of the Labor Department into highly effective forces for workers’ rights.

His presidency holds massive symbolic value as proof that the reign of white men over American government can be halted and America as a whole can be represented. And while he was too slow in announcing support for same-sex marriage, he appointed two of the justices behind the Supreme Court’s historic decision that legalized it nationwide, and enlisted his Justice Department on the side of the plaintiffs.

There are obviously places Obama fell short. I think he didn’t take monetary policy nearly seriously enough, that he’s fallen short on combating HIV/AIDS and other public health scourges abroad, that his early push to deport millions of unauthorized immigrants was indefensible, and that perpetrators of torture and other war crimes from the Bush administration should have been criminally prosecuted. But while Obama could have accomplished more, it could never be said that he accomplished little.

“When you add the ACA to the reforms in the stimulus package, Dodd-Frank, and his various climate initiatives,” Pierson says, “I don’t think there is any doubt: On domestic issues Obama is the most consequential and successful Democratic president since LBJ. It isn’t close.”

[…]

And on foreign issues, Obama’s record is perhaps the most successful of any Democratic president since Truman. He has reestablished productive diplomacy as the central task of a progressive foreign policy, and as a viable alternative approach to dealing with countries the GOP foreign policy establishment would rather bomb.

[…]

You can generally divide American presidents into two camps: the mildly good or bad but ultimately forgettable (Clinton, Carter, Taft, Harrison), and the hugely consequential for good or ill (FDR, Lincoln, Nixon, Andrew Johnson). Whether you love or hate his record, there’s no question Obama’s domestic and foreign achievements place him firmly in the latter camp.

This, of course, isn’t just about Obama — where the statutory achievements are concerned, it’s about Reid and Pelosi as well, just as the large Democratic majorities and moderate/liberal Republican allies were crucial to the New Deal and Great Society. But it’s true that there have been a handful of American presidencies under which there were major shifts in American policy in a clearly progressive direction — Lincoln, FDR, LBJ — and Obama is the fourth. (You can argue for Wilson, but Obama’s record even in historical context is much more consistently progressive.) It’s true that the major achievements under Obama are all flawed, but as Erik said recently the New Deal in particular was very heavily compromised — sometimes by the need for segregationist votes, sometimes because FDR himself had bad ideas. The high-veto-point institutional structure of American politics doesn’t lend itself to unambiguous wins for the left; it’s just that it’s easier to forget the compromises of the past than those of the present. The idea that has graced so many Harper’s cover stories (and, apparently, Tom Frank’s new book) that the Obama presidency was a minor blip signifying the further drift of the Democratic Party to the right is absurd now and will look even more absurd in 20 years. Among other issues, it’s just a massively ahistorical argument.

Friday Linkage

[ 55 ] March 25, 2016 |

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By Bill Dickinson (websites [2][3]) – [1], CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=14815966

Tomorrow I’ll be on my way to Orlando, the Happiest Place in the World if you’re on heavy drugs. Blogging will be even more intermittent than normal.  To tide you over, some links:

The Latest Conservative Challenge to the Contraceptive Mandate is an Embarrassment

[ 103 ] March 25, 2016 |

Chief-Justice-John-Roberts

Marty Lederman has two excellent posts about the oral arguments in Zubik v. Burwell earlier this week. The first deals with why the use of the “hikacking” metaphor to try to explain why the latest accommodation to employers with religious objections constitute a “substantial burden” is inapt.

Even if one assumes arguendo that these employers still face a “substantial burden” — and Kennedy’s position, like that of the other Republican nominees, seems to be that the word “substantial” should for all intents and purposes be read out of the statute — the government can still prevail if it can show that the new accommodation is the least restrictive means of advancing the compelling state objectives of the ACA. And here’s where the conservative arguments stop being merely implausible and become something worse. The proposed less restrictive choice available to the government posited by Alito and Roberts shows either egregious bad faith or nearly comprehensive ignorance of the relevant policy details:

The oral argument focused on one of the petitioners’ proposed alternatives, raised by Justice Alito–namely, offering women who work for an objecting employer the option of “obtain[ing] a contraceptive-­only policy free of charge on one of the Exchanges.” Because such contraception-only plans would not really be insurance plans in the typical sense–they would simply be a means of payment for preventive services that the women in question will purchase–such an option would have to be fully subsidized by Congress (for otherwise the insurance companies would have no incentive to offer such stand-alone “coverage”).

Such a “subsidized contraception-only Exchange plan” option would not be a less restrictive means of advancing the government’s compelling interests, for purposes of RFRA. Most obviously, it would, quite simply, result in fewer women having access to effective contraception–and thus more unplanned pregnancies–by creating (in the SG’s words) “precisely the kinds of barriers” to access “that Congress was trying to eliminate.” Part III-A-1-a of the Health Experts’ amicus brief (pp. 12-14), filed by Marcy Wilder and Hogan Lovells, offers a compelling explanation of why that’s the case: I set out that explanation below.

Before turning to that reason, however, there is an even more fundamental objection: A “subsidized contraception-only exchange plan” option cannot be a less restrictive means for purposes of RFRA because it would require a new legislative enactment, including a new appropriation (or some other financial mechanism, such as tax credits) to pay — in full — for the costs of the hypothetical contraception-only plans.

It’s worth clicking through to read the elaboration of the argument, which is definitive. I just wish I was equally optimistic about whether it will persuade Kennedy.

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