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Not Getting the Memo

[ 117 ] July 3, 2015 |

I pretty much agree with Stern on this:

Following the Supreme Court’s ruling that every state in America must grant marriage licenses to gay couples, at least two clerks tasked with issuing such licenses have resigned—one in Mississippi, one in Arkansas. Both will undoubtedly be chastised by the LGBTQ community for their blatant display of homophobia. But I think these clerks should be praised for their integrity. In other states, clerks are begging for a special right to discriminate against gays. At least these two had the courage to admit that their prejudice prevented them from honoring their oath of office.

I obviously strongly disagree with the underlying reason for the resignations. But I can certainly respect their actions more than the Mr. Plow conservatism that tends to be advanced in these cases — i.e. “I don’t want to do my job but I want to be paid anyway.” And when it comes to public officials, as in this case, treating citizens impartially is a core part of your job.


The Majoritarian Difficulty, ACA Trooferism Edition

[ 33 ] July 3, 2015 |

I don’t think the impeachment campaign is going to go well:

For the second time this week, we have polling confirmation that about 3 out of 5 Americans approve of the Supreme Court’s decision in King v. Burwell last week. In findings that closely echo those of an earlier CNN/ORC survey, the Kaiser Family Foundation’s tracking poll on health issues showed approval by a 62/32 margin, with a nearly identical 61/34 margin among self-identified independents. Unlike the CNN/ORC poll, KFF’s also breaks down the reaction by general opinion on Obamacare, showing that 30% of ACA opponents still think it makes sense to offer the same assistance to people buying insurance under the law whether or not a state purchasing exchange was established.

This is one of the oddities of Ted Cruz calling for retention elections as a remedy to judgifying he doesn’t like. It’s a quite terrible idea in itself. But in this case, it’s funny that conservatives think that retention elections fought in the issues at the end of the term would work out in their favor. Obergefell is the even stronger case. As is often the case, the Court was siding with national public opinion majorities against regional outliers. In some cases, this means national public opinion trumping local public opinion; in other cases it means national and local public opinion trumping state legislators. But whatever one wants to say about the two decisions that have eroded the saliva supply of the nation’s conservatives, they’re not “countermajoritarian” when it comes to the national population.


[ 43 ] July 2, 2015 |

I just watched Marjoe, the 1972 documentary about an ex-child preacher turned hippie who supported himself by going back out on the preacher circuit even though he believed none of it. It’s pretty great. If you want to understand why the current wingnut world is a giant grift, this is a good place to start as he gives out all the secrets. This film won Best Documentary at the Academy Awards. He then went on to appear in 17 episodes of Falcon Crest in the 80s. Here’s an excerpt.


[ 43 ] July 2, 2015 |

Whew, for a second I was worried that the “neoconfederate apologist in 2015” niche in the Democratic primaries would go unfilled. And, fortunately, he also takes care of the “people who would have a 0% chance of winning the nomination even if every other candidate were to get killed in a blimp accident today” niche in case Linc Chaffee drops out.

Antonin Scalia’s Fraudulent “Textualism”

[ 54 ] July 2, 2015 |

Scalia gesture

Patterico argues that federal judges not abiding by the tenets of ACA tooferism is not merely wrong, it’s an impeachable offense:

I would support all manner of reactions that the GOP will lack the guts to try — and that, if they did try, would cause them to get shellacked in the elections. For example, I would support impeachment of any and all of the Justices that voted in the majority of either King v. Burwell or Obergefell. That, in my view, is a proper constitutional reaction to lawless decisions (notwithstanding the disastrous precedent established by the Samuel Chase impeachment proceedings).

There are countless ways of demonstrating that this argument is being made in bad faith. But let’s go with my favorite one, the Rehnquist Court’s “sovereign immunity” jurisprudence. The Eleventh Amendment reads, in its entirety:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Despite what people who think that disagreeing with their interpretations of the 14th Amendment is an impeachable offense will tell you, most of the constitutional provisions whose interpretation leads to frequent Supreme Court cases are so broadly worded that the text does not yield technically “correct” or “incorrect” answers in a case of any interest. Reasonable people can disagree with what constitutes a “cruel and unusual punishment” or a denial of the “equal protection of the laws.” (This broad wording is necessary: an 8th Amendment that listed specific punishments rather than enacting a general principle against “cruel and unusual punishment” would essentially be a roadmap for how to get away with torture, in addition to becoming instantly obsolete.)

The 11th Amendment is an exception: it enacts a clear and specific restriction, not a general principle. It forbids a state from being sued in federal court without its consent by any citizen of another state or a foreign state. By implication, the amendment also answers another question: a state can be sued in federal court by a citizen of the state. The amendment could have been easily worded to ban any federal suit against a state; the fact that it didn’t logically requires the conclusion — absent another constitutional provision or act of Congress saying so — that citizens retain the right to sue their state government in federal court.

As it happens, in 1991 the author of the spittle-drenched dissent in King v. Burwell had the opportunity to address this very question. And:

Despite the narrowness of its terms, since Hans v. Louisiana, we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty.

If the Eleventh Amendment forbids citizens of a state from suing their state government, one might say, words have no meaning. But that’s what the Court ruled.

At this point, I might be accused of committing a tu quoque fallacy. Since I’ve been consistently critical of the ridiculous line of “sovereign immunity” cases, am I therefore required to declare that the card says “Moops”? Of course not. In the ACA case, the “Exchange established by the State” language is embedded within a statute that takes up 1,000 pages of the U.S. Code. It is an elementary principle of statutory construction that statutory language must be read in the context of the statute as a whole. In this case, reading the isolated phrase as denying tax credits on exchanges established by the federal government on the state’s behalf produces an absurd result that contradicts both other specific provisions of the law and the general purpose of the statute. Which is why 6 members if the Supreme Court, including one justice who believes the law to be unconstitutional, refused to bite this particular lemon.

With the 11th Amendment, conversely, there is no other text — it says what it says in one sentence and that’s it. The text read properly does not produce an absurd result; it is perfectly logical to make state governments accountable in federal court to their own citizens but not to those in of other states or nations. As Justice Souter explains in his dissent in Seminole Tribe Congress considered but rejected language that would bar suits against a citizen’s own state. Conversely, no legislator involved with the ACA ever suggested the preposterous idea of going to the trouble of establishing a federal backstop that wouldn’t work; that idea is solely an ex post facto invention of the statute’s most fanatical opponents.

Justice Scalia attempts to get around all this by making a structuralist argument about the meaning of the Constitution as a whole. I don’t think there’s anything wrong with this method of interpretation (although Scalia’s King dissent would rule it out.) But in this case, the argument is lousy. It’s true that states retain their “sovereignty,” but the idea that royalist assumptions of immunity for states that violates the rights of citizens upon whose consent the legitimacy of the government rests is an essential element of sovereignty in a democratic state is the purest question-begging, and perverse question-begging at that. If anything, the presumption created by a Constitution that “guarantee[s] to every State in this Union a Republican Form of Government” should be the opposite. There’s certainly not nearly enough there to overcome the very strong presumption created by the specific wording of the Eleventh Amendment.

And yet, I can find nothing in Patterico’s archives calling for the impeachment of Scalia and Thomas (or Alito, who also shares this misreading of the Eleventh Amendment.) Indeed, as a first approximation the group of people fulminating against King who have anything critical to say about the “sovereign immunity” cases is a null set. I wonder what could possibly explain this?

Oh, and as for the idea that the Obergefell majority should be impeached, I have a certain equal protection case to discuss…

Does It Violate the Constitution to Not Admit Students Who Wouldn’t Be Admitted Anyway?

[ 103 ] July 2, 2015 |

The Supreme Court seems poised to rule all public affirmative action programs unconstitutional, although Anthony Kennedy might step in with another one of his “affirmative action might be permissible in theory although it never is in practice” specials. This would be regrettable, as well as revealing the “originalism” of Thomas and Scalia for what it is. Jamelle Bouie reminds us of an instructive fact about this particular plaintiff:

What’s striking about this case—and what makes it frustrating to some observers—is the curious question of Fisher’s academic record. Put simply, as Nikole Hannah-Jones documented for ProPublica, affirmative action wasn’t her problem.


Neither special circumstances nor grades were determinative. Of the 841 students admitted under these criteria, 47 had worse grades than Fisher, and 42 of them were white. On the other end, UT rejected 168 black and Latino students with scores equal to or better than Fisher’s.

To call this discrimination is to say that Fisher was entitled to a space at the UT Austin, despite grades that didn’t make the cut. It’s worth pointing out that the university gave her the choice of transferring from a satellite school, which she rejected.

Despite the “taking slots from people who deserve them” narrative so beloved by opponents of affirmative action, the “victims” are highly likely to be these kinds of very marginal cases, coming from the part of the applications process where distinctions are essentially arbitrary. Using diversity is a criteria in making these otherwise arbitrary distinctions isn’t bad policy and doesn’t violate the Constitution.


[ 107 ] July 2, 2015 |
Soccer ball.svg

“Soccer ball”. Licensed under GFDL via Wikipedia.

The end of last night’s England-Japan WWC match was about as devastating as anything I can imagine. I’m thinking through the classic catastrophic sports moments; Chris Webber’s timeout is the only thing that seems comparably decisive on such a large stage. I hope that the next thing is better for Laura Bassett; watching the team comfort her in the aftermath was the only thing that partially redeemed the moment.

[SL] A commenter beat me to it, but although its effectively one country big stage is a smaller one than Webber, an otherwise even better comparison is Steve Smith, the rookie defenseman who celebrated his birthday by eliminating his own team, the greatest regular season version of the Gretzky/Messier/Kurri/Coffey/Fuhr Oilers:

Was this moment of sheer misery one of the best days of my life? Well, yes. But Laura Bassett take note, and heart: the also-UK born Smith played 14 more years in the NHL and is now an assistant coach in Carolina.

Today in Racist History

[ 76 ] July 2, 2015 |


This month is the 50th anniversary of the Moynihan Report. Stephen Steinberg:

A few weeks after Moynihan’s report was leaked to the press, the Watts neighborhood in Los Angeles exploded in violence, triggered by an incident with police that rapidly escalated into five days of disorder and left thirty-four people dead. Pundits and politicians seized upon the report to cast blame for the “riot” on the deterioration of “the Negro family.” The report warned, “The family structure of lower class Negroes is highly unstable, and in many urban centers is approaching complete breakdown.”

Critics condemned the report for pathologizing female-headed households and black families in particular. The most trenchant criticism, however, was that the preoccupation with black families shifted blame away from institutionalized inequalities and heaped it on the very groups that were victims of those inequalities. As James Farmer, cofounder and national director of the Congress of Racial Equality, wrote with blunt eloquence, “We are sick unto death of being analyzed, mesmerized, bought, sold, and slobbered over while the same evils that are the ingredients of our oppression go unattended.”

Today, in the wake of Ferguson and Baltimore, family dysfunction is again cited by politicians, pundits, and scholars as the root of the problem. Rand Paul publicly twaddles about “the breakdown of the family structure, the lack of fathers, the lack of sort of a moral code in our society.” David Brooks opines in the New York Times, “The real barriers to mobility are matters of social psychology, the quality of relationships in a home and a neighborhood that either encourage or discourage responsibility, future-oriented thinking, and practical ambition.” And sociologist Orlando Patterson asserts that “fundamental change” can come only from “within the black community: a reduction in the number of kids born to single, usually poor, women.”

Steinberg goes on to break down the intellectual sources for the Moynihan Report, particularly Nathan Glazer. Intellectual racism that blames people of color for their own poverty has not diminished in the last half-century. Any number of racist sites refer back to Moynihan today; meanwhile this paragon of institutionalized racism became a respected Democratic senator without ever questioning his blaming of black people for their own poverty and ending his career as a big supporter of slashing welfare. Among other great things in this man’s life was ensuring the UN did nothing to stop the Indonesian slaughter in East Timor when he was UN Ambassador during the Ford administration and opposed the Clinton health care plan.

This Day in Labor History: July 2, 1980

[ 11 ] July 2, 2015 |


On July 2, 1980, the Supreme Court ruled in Industrial Union Department AFL-CIO v. American Petroleum Institute that the Occupational Safety and Health Administration must take economic considerations into account when issuing regulations. This 5-4 decision severely impacted the ability of the government to take an aggressive and preemptive stand against workplace health problems.

One thing that often gets left behind in discussions of OSHA is the health part of the agency’s mission. We focus on safety. That’s because those issues are easier to take care of. You put proper protection around a saw and it becomes a lot less dangerous. But health is a whole other issue. You have a couple of issues making it so. First is the long term impact of work upon health, which means that occupational illness can take decades to become apparent. Second is that remaking worksites so that workers aren’t exposed is a lot more expensive than the saw guard. Protecting workers from benzene, toxic gases, or dust has real challenges. And those solutions can be expensive.

The Occupational Safety and Health Act of 1970 charged the federal government with protecting workers on the job from industrial hazards. OSHAct stated, “no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.” It built on the “Precautionary Principle” that was in favor during these years for dealing with workplace safety and health issues, addressing environmental uncertainties in the regulatory process before they became problems. That means in the case of workplace health trying to figure out what substances might cause health problems and preemptively eliminating them. That requires action even if scientific data doesn’t exist that suggests there is a problem, but only that there could be in theory. This principle drove the move toward environmental and workplace regulation during the 1970s in both the United States and Europe. But the political implications of this were not worked out in the legislation and Congress gave OSHA a lot of leeway in figuring out how the agency would actually operate.

OSHAct tasked the Secretary of Labor is bound to set out rules for substances like benzene, even if only one worker might become unhealthy due to exposure. It was benzene at play in Industrial Union Department. OSHA sought to regulate benzene, an carcinogen, but without really nailing down how many workers’ lives would be saved in doing so.

The American Petroleum Institute decided to fight this, even though the petroleum industry clearly had the money to protect its workers from benzene exposure (it didn’t even bother arguing otherwise). Industry had engaged in a court campaign to slow down OSHA from its beginning, challenging the agency at every turn. On the other hand, the AFL-CIO led the charge to save the Precautionary Principle, building on its significant progress in fighting for workplace health in the 1970s. OSHA finally was up and running at full capacity by the late 1970s with Jimmy Carter naming Eula Bingham as the agency’s head. Bingham, the first OSHA director who really supported the agency’s mission, sought to remake workplace environments around the nation, often with the active support of those unions who saw the agency as a way to empower workers on the shop floor to protect themselves and express workplace power at the same time. So defending the Precautionary Principle became a top OSHA priority after 1977. Bingham’s OSHA created standards for acrylonitrile, cotton dust, lead, arsenic, and benzene.

Yet for organized labor, this was very slow progress. By 1981, the National Institute on Occupational Safety and Health (NIOSH) had recommended 250 standards but OSHA had only implemented 21 of those. Only 4 of these standards dealt with cancer-causing agents. In my forthcoming book on timber unions, I discuss in some detail how the International Woodworkers of America (IWA) was frustrated that their concerns on a wood dust standard was not taken seriously enough by OSHA. So for corporations, these standards were outrageous and for workers, they were too little and usually too late. The Precautionary Principle was a great idea but workers in the 1970s were impatient and wanted immediate remediation of the problems of work.

In the case itself, more popularly known as the benzene case, the Court had two primary objections. First was to rule on the benzene standard itself, specifically the reduction of benzene at the workplace from 10 parts per million to 1 ppm. Second was whether OSHA needed to have a “reasonable relationship” between the costs and benefits of new standards. The Court’s majority (John Paul Stevens wrote the opinion with Burger and Stewart in the majority while Rehnquist and Powell wrote concurring opinions) decided to read Congress’ mind in interpreting the Occupational Safety and Health Act, assuming Congress couldn’t have meant to protect all workers from all health risks without cost consideration. Effectively, the Court rejected the Precautionary Principle as an unreasonable standard with which to hold business. A plurality tried to create a standard for workplace health that would activate OSHA action, rather unhelpfully noting that it should lie somewhere between a 1 x 1000 chance of illness and a 1 x 1,000,000 chance. What this did was allow the Reagan administration to effectively avoid health regulations on the job at all after it took power in 1981 by adhering to the 1 in a million standard. Thurgood Marshall wrote a blistering dissent (Brennan, White, and Blackmun making up the rest of the minority) saying the decision placed “the burden of medical uncertainty squarely on the shoulders of the American worker.”

Despite Industrial Union Department, American work is much safer and healthier today than it was decades ago. Unfortunately, a lot of the reason for that is the outsourcing of such work to Latin American and Asian nations where workers labor in health-destroying conditions making products for American consumption.

While researching this case, I ran across a celebratory essay about the decision by one Antonin Scalia in an American Enterprise Institute publication.

The roots of this week’s decision in Michigan v. Environmental Protection Agency
can be seen in Industrial Union Department, as Scalia’s opinion relied heavily on the same cost-benefit analysis as that case.

I don’t think there is a single book that really deals with this case effectively, but it is mentioned in Gerald Markowitz and David Rosner’s Deceit and Denial: The Deadly Politics of Industrial Pollution, which is a very good book on the larger issue of workplace health. I also consulted Albert Matheny and Bruce Williams, “Regulation, Risk Assessment, and the Supreme Court: The Case of OSHA’s Cancer Policy,” in Law and Policy, October 1984.

This is the 149th post in this series. Previous posts are archived here.

The Neo-Confederate Response

[ 49 ] July 1, 2015 |


The racists have burned 8 black churches in 10 days.

Movie scene bleg

[ 25 ] July 1, 2015 |

Help out here all-knowing LGM collective consciousness.

I have a vague memory of a fairly recent film (like in the last 10-12 years) in which police interrogators try to intimidate a suspect they’re interviewing by pulling their guns and laying them on the table in front of the witnesssuspect. I think this might have been a Ben Affleck movie (The Town?) (Gone Baby Gone?).

Does this ring a bell? Also, extra kudos to anyone who can find a Youtube clip.

. . . actually I’m interested in any film (or TV show episode) that features this scenario, not just the one I sort of remember.

The Subway

[ 77 ] July 1, 2015 |


It’s amazing the New York subway system works at all.

But the fundamental reason the MTA is so hard to fix, say transit experts both inside and outside the authority, goes back to those antediluvian switches. The MTA runs one of the largest transit systems in the world on a budget that’s dependent on the whims of elected officials in City Hall and Albany. It’s the equivalent of trying to change the engine and tires on a 1930 Studebaker while driving cross-country at top speed and hoping you can find enough spare change between the seat cushions to buy parts.

“We’re trying to address three or four decades’ worth of disrepair and disinvestment,” says MTA planning director Bill Wheeler. “The last time people sunk money seriously into the subway system was before World War II. It’s taken us a long, long time to come back, and that’s why much of the capital program is about rebuilding.”

“New York started off behind a lot of other places, because most other places haven’t let their physical plant deteriorate to the extent that New York has,” agrees Richard Barone, director of transportation programs for the Regional Plan Association (RPA), one of the local groups that has pushed hardest for improved transit infrastructure. It’s a problem that started in the 1950s and 1960s, when local budgets got tight and subway service for a shrinking (and increasingly nonwhite) city populace no longer seemed like a priority.

“New York really just ignored investing in its infrastructure,” says Barone. “So it took decades to rebuild what we had lost because of neglect.” And while the MTA has spent more than $100 billion on improvements since its first capital plan in 1982 — almost every subway car has been replaced in that time, for starters — Barone says the agency remains in “catch-up” mode.

And of course there’s huge parts of the city the system does not touch. Yet it’s still reasonably reliable. In my limited experience, it seems more functional than that of Washington. I’ll find out more about that in the next few weeks as I’ll be in the nation’s capital for most of July researching a new project and enjoying that sweet, sweet DC weather.

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