Supreme Court

Jeb Bush’s Favorite Author Rejects Democracy, Says The Hyper-Rich Should Seize Power

Colonial British monarchs would find a lot to like in Charles Murray's new book against democracy

Pre-Revolutionary kings would find a lot to like in Charles Murray’s new book against democracy | CREDIT: PUBLIC DOMAIN VIA WIKIPEDIA

THINK PROGRESS

At the height of 2011’s debt ceiling crisis, then-Senate Minority Leader Mitch McConnell (R-KY) offered a candid explanation of why his party was willing to threaten permanent harm to the U.S. economy unless Congress agreed to change our founding document. “The Constitution must be amended to keep the government in check,” McConnell alleged. “We’ve tried persuasion. We’ve tried negotiations. We’ve tried elections. Nothing has worked.”

The amendment McConnell and his fellow Republicans sought was misleadingly named the “Balanced Budget Amendment” — a name that was misleading not because it was inaccurate, but because it was incomplete. The amendment wouldn’t have simply forced a balanced budget at the federal level, it would have forced spending cuts that were so severe that they would have cost 15 million people their jobs and caused “the economy to shrink by about 17 percent instead of growing by an expected 2 percent,” according to the Center for Budget and Policy Priorities. It was, in essence, an effort to permanently impose Tea Party economics on the nation, and to use a manufactured crisis to do so.

Few politicians are willing to admit what McConnell admitted when he confessed that elections have not “worked” to bring about the policy Republicans tried to impose on the nation in 2011. Elected officials, after all, only hold their jobs at the sufferance of the voters, and a politician who openly admits that they only believe in democracy insofar as it achieves their desired ends gives the middle finger to those voters and to the very process that allows those voters to have a say in how they are governed.

Charles Murray, an author who GOP presidential candidate Jeb Bush recently named first when he was asked which books have had a big impact upon him, is not an elected official, so he is free to rail against democracy to his heart’s content. And that is exactly what he does in his new book, By The People: Rebuilding Liberty Without Permission.

Pay no attention to the title. Government “by the people” is the last thing Murray cares to see. Murray admits that the kind of government he seeks, a libertarian fantasy where much of our nation’s regulatory and welfare state has been dismantled, is “beyond the reach of the electoral process and the legislative process.” He also thinks it beyond the branch of government that is appointed by elected officials. The Supreme Court, Murray claims, “destroyed” constitutional “limits on the federal government’s spending authority” when it upheld Social Security in 1937. Since then, the federal government has violated a “tacit compact” establishing that it would not “unilaterally impose a position on the moral disputes that divided America” (Murray traces the voiding of this compact to 1964, the year that Congress banned whites-only lunch counters).

King George’s Revenge

Murray is probably best known for co-authoring 1994’s The Bell Curve, a quasi-eugenic tract which argued that black people are genetically disposed to be less intelligent that white people. Yet, while The Bell Curvepractically spawned an entire field of scholarship devoted to debunking it,” Murray remains one of the most influential conservative thinkers in America today.

Dr. Murray’s pre-Bell Curve work shaped the welfare reforms enacted in the 1990s. Former Republican vice presidential candidate Paul Ryan cited Murray in 2014 to claim that there is a culture of laziness “in our inner cities in particular.” Last April, when Jeb Bush was asked what he liked to read, he replied “I like Charles Murray books to be honest with you, which means I’m a total nerd I guess.”

So when Murray speaks, powerful and influential men (and his acolytes are, almost invariably, men) listen, including men who shape our nation’s fiscal policy and men who could be president someday.

By The People, however, rejects outright the idea that Murray’s vision for a less generous and well-regulated society can be achieved through appeals to elected officials — or even through appeals to unelected judges. The government Murray seeks is “not going to happen by winning presidential elections and getting the right people appointed to the Supreme Court.” Rather, By The People, is a call for people sympathetic to Murray’s goals — and most importantly, for fantastically rich people sympathetic to those goals — to subvert the legitimate constitutional process entirely.

“The emergence of many billion-dollar-plus private fortunes over the last three decades,” Murray writes, “has enabled the private sector to take on ambitious national or even international tasks that formerly could be done only by nation-states.” Murray’s most ambitious proposal is a legal defense fund, which “could get started if just one wealthy American cared enough to contribute, say, a few hundred million dollars,” that would essentially give that wealthy American veto power over much of U.S. law.

Murray, in other words, would rather transfer much of our sovereign nation’s power to govern itself to a single privileged individual than continue to live under the government America’s voters have chosen. It’s possible that no American has done more to advance the cause of monarchy since Benedict Arnold.

Madison’s Ghost

One of the heroes of By The People is James Madison, or, at least, a somewhat ahistoric depiction of Madison favored by Murray. Madison, as Murray correctly notes, favored an interpretation of the Constitution that would have made much of the modern regulatory and welfare state impossible (other members of the founding generation, including George Washington, interpreted the Constitution much more expansively than Madison). Thus, Murray states in his introduction, “[i]f we could restore limited government as Madison understood it, all of our agendas would be largely fulfilled.” Murray even names his proposal for a billionaire-funded organization intended to thwart governance the “Madison Fund.”

In Murray’s narrative, Madison becomes a Lovecraftian deity — dead, but not entirely dead, and still capable of working ill in American society. In his house at Montpelier, dead James Madison waits dreaming.

The real James Madison would be shocked by this suggestion that his dead-but-dreaming tentacle could reach into the future and re-instigate long-settled battles over the Constitution. Needless to say, the view Murray attributes to Madison — the view that, among other things, would lead to Social Security being declared unconstitutional — did not prevail in American history. And Madison, unlike Murray, was reluctant to displace well-settled constitutional law. As a congressman, Madison opposed the creation of the First Bank of the United States on constitutional grounds. Yet, as president, Madison signed the law creating a Second Bank. He explained that the nation had accepted the First Bank, and he viewed this acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”

Madison, it should also be noted, admitted late in life that his reading of the Constitution was not consistent with the document’s text. Nevertheless, he argued that “[t]o take [the Constitution’s words] in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

To his credit, Murray acknowledges that undoing the entire post-New Deal state is not a realistic goal. The Supreme Court, he laments, “never overturns a decision like Helvering,” the 1937 case upholding Social Security, “because such a ruling would not be obeyed and the Court’s legitimacy would be shattered.” Yet the limits Murray would impose on the federal government are simply breathtaking. All employment law, according to Murray, must be subject to the strictest level of constitutional scrutiny. So must all land use regulation, and all laws that fall into vague categories Murray describes as regulations that “prescribe best practice in a craft or profession” or that “prevent people from taking voluntary risks.”

If these limits were actually imposed on the federal government, the minimum wage, overtime laws, most environmental protections and financial reforms, many worker safety laws and even, potentially, anti-discrimination laws would all fall by the wayside.

The Koch Veto

To impose these limits on society, Murray claims that his Madison Fund can essentially harass the government into compliance. The federal government, Murray claims, cannot enforce the entirety of federal law “without voluntary public compliance.” Federal resources are limited, and only a small fraction of these limited resources have been directed towards enforcement. Thus, Murray argues, by simply refusing to comply with the law and contesting every enforcement action in court, regulated entities can effectively drain the government’s resources and prevent it from engaging in meaningful enforcement.

The Madison Fund would spearhead this campaign of harassment, defending “people who are technically guilty of violating regulations that should not exist, drawing out that litigation as long as possible, making enforcement of the regulations more expensive to the regulatory agency than they’re worth, and reimbursing fines that are levied.”

There are, of course, a number of practical obstacles to this plan. One, as Murray acknowledges, is the need to find enough people with “billion-dollar-plus private fortune[s]” who are willing to contribute to such a campaign. Another is the need to find lawyers willing to risk their law licenses in order to become pawns in Murray’s game. Rule 11 of the Federal Rules of Civil Procedure requires attorneys to certify that they are not filing court documents “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” The American Bar Association’s (ABA) Model Rules of Processional Conduct provide that a “lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” Admittedly, lawyers have more leeway in criminal cases, but the legal profession generally frowns upon attorneys who engage in the kind of legally meritless harassment Murray proposes.

Nevertheless, Murray’s proposal cannot be dismissed out of hand simply because it is built upon a foundation of frivolous litigation. The first Supreme Court case attacking Obamacare was widely derided as meritless — an ABA poll of legal experts found that 85 percent believed that the law would be upheld. And yet the justices came within a hair of repealing the entire law. The lawyers behind a more recent attack on the Affordable Care Act, King v. Burwell, make demonstrably false claims about the history of the law, and they rely upon a completely unworkable method of interpreting statutes. But that hasn’t stopped at least some members of the Supreme Court from taking this lawsuit seriously. Conservatives simply have more leeway to assert meritless legal arguments than they once did.

Continue reading here…

The Supreme Court Will Hear An Almost Comically Egregious Case Of Race Discrimination

Civil Rights Not Over | (Credit: Shutterstock)

THINK PROGRESS

If a man’s life was not potentially at stake in Foster v. Humphrey, a case the Supreme Court announced that it will hear on Tuesday, and if the case did not involve what appears to be complete and utter disregard of the Constitution’s prohibitions on race discrimination, then the facts of this case would almost be humorous. The prosecution created detailed records suggesting that they engaged in unconstitutional race discrimination. Short of publishing a book entitled “Violating The Supreme Court’s Holding In Batson v. Kentucky Is Our Bag, Baby,” it’s hard to imagine anything more the prosecutors in this case could have done to demonstrate that they disregarded the Constitution.

Timothy Tyrone Foster was convicted of murder and sentenced to die by an entirely white jury after prosecutors struck all four members of the jury pool who were African American. Some time after the trial, Foster’s attorneys obtained the prosecution’s notes on jury selection, and, as his attorneys explain, the notes provide compelling evidence indicating that the black jury pool members were struck because of their race:

The notes reflect that the prosecution (1) marked the name of each black prospective juror in green highlighter on four different copies of the jury list; (2) circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors;” and (5) created strike lists that contradict the “race-neutral” explanation provided by the prosecution for its strike of one of the black prospective jurors.

In most jurisdictions, lawyers in criminal cases are permitted to make a certain number of “peremptory challenges” to potential jury members. As a general rule, these challenges permit a lawyer to remove a juror for any reason they want. In Batson v. Kentucky, however, the Supreme Court held that peremptory challenges may not be used to engage in “purposeful racial discrimination.”

As a practical matter, however, Batson challenges are extraordinarily difficult to win. That’s because Batson permits prosecutors to “articulate a neutral explanation” for why they struck a juror of color when they are accused of engaging in race discrimination, and then leaves the question of whether the prosecutor had racist intent largely up to the trial judge. In nearly every case, the prosecutor will be able to come up with somereason other than race that could ostensibly justify removing a black juror — they claim that one juror in this case, for example, was removed largely because she had a son who was convicted of a felony; another was removed, they claim, in part because she “appeared confused, was very easily swayed, irrational, bewildered, and incoherent.” Unless the trial judge is a mind-reader, it will be difficult for them to assess what the real reason for removing the juror may be.

Which is why the documents uncovered by Foster’s legal team — a team that includes the Southern Center for Human Rights’ Stephen Bright, a giant of the capital defense bar — are so significant. They paint the prosecution in this case as the Keystone Cops of race discrimination, meticulously documenting the one thing that would allow Foster to prove that he actually was a victim of such discrimination. The fact that these records even exist is either a stunning act of incompetence or, more likely, a testament to just how little prosecutors fear a Batson challenge.

Notably, the Georgia court system refused to grant Foster relief even after they were presented by the documents obtained by Bright and the rest of Foster’s legal team.

The Supreme Court rarely takes cases such as this one, where the primary dispute is over the facts of a case and not some abstract legal principle. The fact that they chose to take this case is probably a good sign for Foster, as it suggests that at least four justices were so bothered by the evidence in this case that they were willing to depart from the Court’s normal procedures.

It takes only four justices to agree to hear a case, however, and five justices to rule in Foster’s favor. If Foster cannot find a fifth vote on this Court, a decision against him could destroy what remains of the prohibition on race discrimination in jury selection. After all, if a set of documents documenting the prosecutor’s efforts to identify black members of the jury pool — combined with notes such as “if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining” — aren’t enough to prove race discrimination, then it is unlikely that anything will suffice.

IAN MILLHISER

Supreme Court’s grand ruse ends: Finally, Americans see the justices for the political hacks they are

Supreme Court's grand ruse ends: Finally, Americans see the justices for the political hacks they are

John Roberts at his confirmation hearing on Capitol Hill, Sept. 13, 2005 (Credit: Reuters/Kevin Lamarque)

SALON

It’s great that we’re no longer pretending the Supreme Court is immune to politics

Cue up the sad David Brooks violin playing softly in the corner of a dark alley at 3 a.m., because Americans have no faith in powerful institutions anymore. One of those institutions would be the marbled shrine atop our third branch of American government, the Supreme Court. A new Associated Press poll shows that “only 1 person in 10 is highly confident that the justices will rely on objective interpretations of the [Affordable Care Act] rather than their personal opinions” in the Court’s impending King v. Burwell decision.

To us, that 10 percent figure seems way too high. As far as we can tell, it’s not 1 in 10 Americans who view our Supreme Court as a neutral collection of jurists who just want to call “balls and strikes,” but 1 American total: Chief Justice John Roberts. And maybe even not him?

The American people, the always trusty American people, have the Supreme Court’s number here. As with so many cases about why the American people have lost trust in a powerful institution, we can look to some of the powerful institution’s recent actions, going back at least to Bush v. Gore through Citizens United and Hobby Lobby and whatever primetime hit job comes next.

That next hit job may come soon in King v. Burwell, which, if ruled for the plaintiffs, would invalidate premium subsidies for those who’ve purchased individual health insurance plans on federally facilitated exchanges. The expected decision based on tea-leaf readings coming out of oral arguments was 5-4 or 6-3 in favor of upholding the subsidies, which tells you a lot about how weak the case is. But there is another possible outcome: 5-4 to strike down the subsidies, because the Supreme Court is ruled by a five-member majority of conservative justices who think that the Affordable Care Act is dumb.

The last time a legal challenge to Obamacare of this breadth made it to the Supreme Court, four justices voted not just to strike down the individual mandate but the entire law as well, because they believed that the law was dumb. They didn’t like it! Get rid of it! John Roberts originally sided with them but then, to the consternation of his conservative colleagues, switched his vote because such a hackish decision would have made the Supreme Court look too hackish. Roberts contented himself merely to gut the hell out of the Medicaid expansion and force the Obama administration to acknowledge that the individual mandate is a tax.

Very few Court watchers are basing their predictions of the King decision on the merits of the case, and rightly so. If it was being decided on the merits of the case, everyone would be betting that it would be upheld 9-0. Does anyone think that’s going to happen? No. It will all come down to how John Roberts, and perhaps Anthony Kennedy, feel about managing the politics. They want to screw over Obamacare but yeeeesh, would that backfire on the Court and conservatives? Would that make life more difficult for the Republican party heading into 2016? On the other hand: Would John Roberts ever eat lunch in Conservative This Town again if he sided with The Libruls to uphold a core component of Obamacare? It’s all about finding the right balance of these competing political considerations. The Democratic and Republican parties rightly recognize the nature of the situation here and have spent months trying to get inside John Roberts’ head. It is what it is.

Let’s consider a more generous version of what’s happened to the Supreme Court of late: that it’s merely followed the broader trend in American politics towards polarization. Antonin Scalia and Ruth Bader Ginsburg might be looking at the same piece of legislation before them but seeing something completely different, so divergent have the liberal and conservative worldviews become. And these are justices who were appointed a generation ago. The next round of justices will have made their careers during this time of high-stakes judicial polarization.

That next round of justices may come very soon, since several Supreme Court justices are approximately one million years old. As Ian Millhiser writes at Think Progress, Rick Perry correctly emphasized the importance of the next presidential election in a speech this weekend:

“Something I want you all to think about is that the next president of the United States, whoever that individual may be, could choose up to three, maybe even four members of the Supreme Court,” Perry told the South Carolina audience. So this election “isn’t about who’s going to be the president of the United States for just the next four years. This could be about individuals who have an impact on you, your children, and even our grandchildren. That’s the weight of what this election is really about.”

I hate the “you have to vote in the next election because of the Supreme Court!” argument. I hate it because it lets the candidates off the hook: they can offer nothing whatsoever to voters and then rely on SCOTUS fearmongering to get out the vote. I also hate it because it’s a very credible argument. There is never going to be another David Souter, or a justice who gets confirmed and then has an ideological shift on the bench. This next presidential election will also be an election for the next generation of the Supreme Court, and it’s no tragedy that most Americans understand this cynical reality.

This Is Why The Supreme Court Is Going To Rule In Favor Of Marriage Equality

Reuters

Addicting Info

With the Supreme Court set to hear arguments for and against making marriage equality the law of the land, there’s been a lot of analysis, most of it legal, all of it pointless:

Constitutional lawyers, however, are confident enough in the imminent future of nationwide marriage equality to insist that anything less would require an extraordinarily complex – even unprecedented – reading in stark contrast with the court’s recent history and occasionally overt political leanings.

Between the clever way the cases have been set up and the overwhelming pressure to answer to public demand, the end of state gay marriage bans is not just inevitable, court watchers say – the nine justices may be left with no other choice.

The idea here is that ruling against same-sex marriage would require the conservative justices (who else would it be?) to rule against state-sanctioned marriage in general and/or deny that the LGBT community is protected by the 14th Amendment.

But if John Roberts and the other right-wing lunatics on the SCOTUS want to rule against marriage equality while claiming it doesn’t affect gays or marriage, they will. This is the same court that handed down a ludicrously narrow ruling in order to give George W. Bush the presidency. This is the same five conservative “champions” of state’s rights that overruled the laws of Florida for the express purpose of stopping a perfectly legal and completely reasonable recount. Legal precedent means absolutely nothing to them. Logic and reality mean absolutely nothing to them. This is possibly the most partisan and politically motivated court in American history. (Emphasis are mine: KS)

And that is why the Supreme Court will vote to make marriage equality the law of the land.

That might seem counter-intuitive at first. Wouldn’t the conservatives on the bench support Republican legislative efforts to make bigotry and hatred into law? Sure, if they thought that would be in the best interest of the Republican Party. Had this case gone to the Court in 2004, they would have leapt at the chance to codify discrimination against the LGBT community with a smile on their faces and a song in their hearts.

But that was then and this is now.

As always, conservatives were on the wrong side of history. Right now, over 60 percent of the country supports gay rights. Staking your ground as the one who hates homosexuals the most, a necessary strategy for GOP primaries, is becoming a crippling blow in general elections. Just like the average American recoiled from open racism against blacks, they’re now recoiling from open anti-gay bigotry. Even Corporate America has decided that bigotry is bad for business as Indiana’s Republican governor, Mike Pence, found out when he tried to make it legal to discriminate against homosexuals.

Any and every Republican not in a blood-red gerrymandered district that openly espouses anti-gay views is putting himself at risk. Marriage equality has become a cudgel for liberals and Democrats to bash Republicans with. But at the same time, if Republicans drop the crusade against The Gay, their hate-filled base will destroy them. If the Supreme Court rules against marriage equality, Republicans MUST keep fighting that battle and it will cost them in the general elections.

If, on the other hand, the SCOTUS makes marriage equality and LGBT rights the law of the land, Republicans can drop the issue and blame the Court. It’s that simple. Scalia will put up the token stink about it and that will be it. Republicans will still make some noise for an election or two but they’ll quietly drop it in purple states because the issue is a loser.

It’s also worth noting that the Court will not strike down the subsidies for Obamacare for the exact same reason: It would be a disaster for Republicans. The fix to the bill would be simple but Republicans won’t be able to do it because their base would, again, flay them alive. Millions of people would lose their insurance and everyone would blame Republicans for not passing the simple fix. Rock, meet hard place. It would be an electoral disaster going into the 2016 election cycle. There is no chance of the conservatives on the Court handing such a potent weapon to Democrats.

Usually, we can rely on the conservative wing of the Supreme Court to against the best interests of the American public but in these two instances, they really don’t have a choice but to do what’s best for the country. Oh, how that must sting their egos.

James Dobson: Gay Marriage Will Lead To Civil War

attribution: Erichaus.com

Probably not, Mr. Dobson…

 Right Wing Watch

James Dobson, the founder of the Religious Right behemoth Focus on the Family, warned in a recent conference call with fellow anti-gay activists that a Supreme Court ruling in favor of marriage equality could lead to a full-blown civil war.

After Janet Porter, the creator of a new “documentary” about how the gay rights movement will outlaw Christianity, discussed her “restraining order” campaign to convince Congress to strip the Supreme Court of its authority to rule on marriage cases, Dobson said that his fellow activists “need to be realistic about what we’re up against here.”

He said that the gay rights issue has reached an unprecedented “level of intensity” and put the country on the brink of conflict: “Talk about a Civil War, we could have another one over this.”

Dobson also claimed that marriage equality will lead to the collapse of the nation: “The country can be no stronger than its families. I really believe if what the Supreme Court is about to do is carried through with, and it looks like it will be, then we’re going to see a general collapse in the next decade or two. I just am convinced of that. So we need to do everything we can to try to hold it back and to preserve the institution of marriage.”

He added that a “discouraged” congressman — whom he later identified as Kansas Republican Tim Huelskamp — told him that his colleagues in Congress are “scared to death” about coming out against marriage equality. “We don’t have support really anywhere in government,” Dobson lamented.

“I agree with [Home School Legal Defense Association founder] Michael Farris that the only thing we can do is to have a state constitutional convention to re-examine the Constitution,” Dobson said. “I wish I could say I believe pouring a lot of opposition, which may not even be there now, onto the Supreme Court is going to make a big difference.”

Other activists appearing on the conference call included Mat Staver of Liberty Counsel, Rick Scarborough of Vision America and Peter LaBarbera of Americans For Truth About Homosexuality.

Supreme Court Rejects Challenge To Wisconsin Voter ID Law

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AP Photo/ Evan Vucci

TPM LiveWire

The justices’ action means the state is free to impose the voter ID requirement in future elections, and is further evidence that the court put the law on hold last year only because the election was close at hand and absentee ballots already had been mailed with no notification of the need to present photo IDs.

The court did not comment on its order.

Wisconsin was one of four states in which a dispute over voting rules reached the Supreme Court last fall. The other states were North Carolina, Ohio and Texas. Of the four states, only Wisconsin’s new rules were blocked.

Wisconsin’s photo ID law has been a political flashpoint since Republican legislators passed it in 2011. The GOP argues the mandate is a common sense step toward reducing election fraud. Democrats maintain no widespread fraud exists and that the law is really an attempt to keep Democratic constituents who may lack ID, such as the poor, minorities and the elderly, from voting.

The law was in effect for the February 2012 primary but subsequent legal challenges put it on hold and it hasn’t been in place for any election since.

The ACLU and allied groups persuaded a federal judge in Milwaukee to declare the law unconstitutional last year. But the 7th U.S. Circuit Court of Appeals in Chicago later ruled that the law did not violate the Constitution.

The Supreme Court refused to disturb that ruling on Monday.

Copyright 2015 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

For some, a Supreme Court case is a matter of life or death

"Obamacare"  supporter Margot Smith (L) of California pleads her case with legislation opponents Judy Burel (2nd R) and Janis Haddon, both of Georgia, at the U.S. Supreme Court in Washington, March 28, 2012.

“Obamacare” supporter Margot Smith (L) of California pleads her case with legislation opponents Judy Burel (2nd R) and Janis Haddon, both of Georgia, at the U.S. Supreme Court in Washington, March 28, 2012. Jonathan Ernst/Reuters

The Rachel Maddow Show – Steve Benen

The Supreme Court heard oral arguments in King v. Burwell this morning, and by most accounts, it’s not at all clear how the justices intend to rule. The four center-left justices seemed unmoved by the plaintiffs’ ridiculous argument; Scalia and Alito seemed eager to destroy “Obamacare”; Roberts said almost nothing; and Kennedy hinted he might back the ACA on federalism grounds.
We probably won’t know for sure until June, when the ruling is issued. But in the interim, it’s worth taking some time to think about families that will experience some sleepless nights between now and then.
Robert Schlesinger noted yesterday that a far-right ruling would produce “real human misery,” and it’s an important point. We’re not just talking about numbers on a page; this is about whether real-world families have access to medical care.
Sarah Kliff recently highlighted the story of a woman named Marilyn Schramm, who’s wondering whether King v. Burwell should cause her to move to a blue state.
She is a 63-year-old retiree who lives in Texas, and since November 2013 she’s purchased health insurance through Healthcare.gov. She has a policy that costs about $800 per month. Schramm, who earns $28,000 from her pension, pays about half the cost, and the federal government covers the rest with a subsidy.
Schramm has colon cancer. Doctors diagnosed it this fall, after she started feeling stomach pains during an RV trip through Tennessee. Doctors there removed the tumor, and she’s now in Austin receiving chemotherapy, which should continue through this summer.
There’s nothing academic about this case for Schramm and her loved ones. Under the Affordable Care Act, she can receive chemotherapy. If Republicans gut the Affordable Care Act, she’ll likely lose her coverage and the treatment she needs.
This is obviously one person, but the point is that she’s emblematic of millions more. The Huffington Post ran a powerful piece the other day shining a spotlight on real people who’ll face dire straits if GOP justices rule the wrong way in this ludicrous case. Yahoo News ran a similar article, as did the Christian Science Monitor.
There was a point in late 2013 when Republicans ran a series of attack ads featuring “Obamacare victims,” who were allegedly harmed by the ACA. Upon further inspection, nearly all of these anecdotes were completely discredited – and most of the alleged victims were actually far better off under the Affordable Care Act than they were before.
What we’re dealing with now is the exact opposite: real people for whom the Supreme Court may become a death panel.
The anxiety for them and their families between now and June will probably be pretty brutal.

10 things you need to know today: March 4, 2015

Win McNamee/Getty Images

The Week

1.Netanyahu warns of “bad deal” with Iran
Israeli Prime Minister told a joint session of Congress on Tuesday that President Obama was negotiating a “bad deal” with Iran to curb its nuclear program, which Tehran insists is peaceful but Netanyahu and other critics say is close to developing a nuclear weapon. Netanyahu said that Obama’s efforts would “all but guarantee” that Iran would obtain nuclear weapons, and could “threaten the survival of my country.” Obama said Netanyahu had said “nothing new” and offered no credible alternative strategy.

Source: The New York Times

2.House passes Homeland Security funding bill
The House approved a measure Tuesday funding the Department of Homeland Security for the rest of the fiscal year, ending a three-month battle that had threatened to shut down the agency after funds ran out at the beginning of March. Conservatives opposed the funding bill because it had been stripped of provisions dismantling President Obama’s executive actions delaying the deportations of millions of undocumented immigrants. Obama has said he would sign the bill into law.

Source: Reuters

3.High court hears ObamaCare challenge
The Supreme Court on Wednesday will hear a challenge to ObamaCare that could strip subsidies from millions of Americans who purchased health coverage in the 37 states that declined to set up their own insurance exchanges. The plaintiffs argue that the text of the law, which allows for subsidies on exchanges “established by the state,” does not cover the federal exchange. ObamaCare supporters say if the challengers win millions could lose insurance and premiums could rise for others.

Source: The Hill

4.Justice Department says Ferguson police discriminated against African Americans
The Justice Department released a report Tuesday accusing the Ferguson, Missouri, police department of using tactics that discriminated against African Americans. The conclusion renewed the anger of the department’s critics, who have demanded reforms since the fatal shooting of unarmed black teen Michael Brown by a white officer last year. The federal investigation found that blacks accounted for 93 percent of the city’s arrests from 2012 to 2014, although they make up 67 percent of the population.

Source: The Washington Post

5.Ex-CIA chief Petraeus to plead guilty to leaking secrets
David Petraeus will reportedly plead guilty as part of a deal with the Justice Department, The New York Times reports. The plea deal will allow Petraeus, a retired four-star general, to avoid an “embarrassing” trial over whether he gave classified information to his mistress and biographer, Paula Broadwell, while he was director of the CIA. Petraeus, who has denied criminal wrongdoing, will plead guilty to a misdemeanor charge for mishandling classified information.

Source: The New York Times, ABC News

6.Alabama high court halts same-sex marriages in the state
The Alabama Supreme Court on Tuesday ordered a halt to gay marriages in the state. The move directly violated rulings by a federal judge in Mobile who told the local probate to start issuing same-sex couples marriage licenses last month. The state Supreme Court order said the U.S. Constitution could not override Alabama law, which “allows for ‘marriage’ between only one man and one woman.” The state high court gave probate judges five days to submit responses arguing they should be allowed to continue granting same-sex couples licenses.

Source: AL.com

7.Indonesia moves condemned foreign inmates to execution site
A group of death-row inmates known as the Bali nine were transferred under heavy military guard Tuesday to the island in Java where they are to be executed by firing squad. The condemned inmates include Andrew Chan and Myuran Sukumaran of Australia. The Indonesian government has rejected pleas from international human rights activists and the Australian government to spare the prisoners, who were convicted of drug trafficking in 2005.

Source: Sydney Morning Herald

8.Jury seated in Boston Marathon bombing case
After an arduous two-month selection process that included a request to move the case out of Boston, a 12-member jury was seated Tuesday in the trial of alleged Boston Marathon bomber Dzhokhar Tsarnaev. The 21-year-old Tsarnaev faces 30 charges and a potential death sentence for allegedly detonating two bombs during the 2013 marathon that killed three people and injured more than 260 others. Tsarnaev pleaded not guilty to the charges against him. Opening statements in the trial are scheduled for Wednesday.

Source: The Associated Press, The Boston Globe

9. Snowden’s lawyer says he is considering returning to face charges for leaks
Edward Snowden’s lawyer says the former National Security Agency contractor is prepared to return to the United States from Russia to face trial for allegedly leaking secret documents. Anatoly Kucherena, Snowden’s Russian lawyer, said Snowden “is thinking about it,” but will only go home if he believes he will get a fair trial. State Department spokeswoman Marie Harf said Snowden “absolutely can and should return” to face the charges, and that he would be treated fairly.

Source: CNN

10.Thousands evacuate as volcano erupts in Chile
The Villarrica volcano in southern Chile erupted on Tuesday, spewing lava and ash hundreds of yards into the air and sending rivers of lava down the 9,000-foot volcano’s sides. Authorities evacuated thousands of people. The heat melted snow, raising the danger of mudslides. “It was the most amazing thing I’ve ever seen,” Australian tourist Travis Armstrong, 29, said in a telephone interview from Pucon. “Lightning was striking down at the volcano from the ash cloud that formed from the eruption.”

Source: The Associated Press

Morning Plum: Republicans won’t have any contingency plan if Court guts subsidies for millions

The Washington Post – Plum Line

With the Supreme Court set to hear oral arguments this week in the lawsuit that could do severe damage to the Affordable Care Act, some Republican lawmakers are working hard to convey the impression that they have a contingency plan for the millions who will likely lose subsidies — and coverage — if the Court rules with the challengers. Senators Orrin Hatch, Lamar Alexander, and John Barrasso have published a Washington Post op ed with an oh-so-reassuring title: “We have a plan for fixing health care.”

The good Senators, amusingly, cast their “plan” as something that will protect people from “the administration’s” actions and from Obamacare itself, not from the consequences of the legal challenge or a Court decision siding with it. The plan vows to “provide financial assistance” for a “transitional period” to those who lose subsidies, while Republicans create a “bridge away from Obamacare.” Of course, anyone who watched last week’s chaos in the House knows Congressional Republicans are unlikely to coalesce around any “transitional” relief for those who lose subsidies (that would require spending federal money to cover people) or any permanent long-term alternative. This chatter appears transparently designed to make it easier for conservative Justices to side with the challengers.

Yet even if this game works on the Justices in the short term, any eventual failure to come through with any  contingency plan could saddle Republicans with a political problem, perhaps even among GOP voters.

A poll taken by Independent Women’s Voice — a group that favors repealing Obamacare in the name of individual liberty — found that in the nearly three dozen states on the federal exchange, 75 percent of respondents think it’s very (54) or somewhat (21) important to restore subsidies to those who lose them. In the dozen main presidential swing states, 75 percent of respondents say the same.

And guess what: Large majorities of Republican voters agree. A spokesperson for the group tells me that in both those groups of states taken together, 62 percent of Republican respondents say its very (31) or somewhat (31) important to restore the subsidies. Only 31 percent of Republicans in those states think doing this is unimportant.

This raises the possibility that a lot of Republican voters would be harmed by an anti-ACA decision, too. As Politico puts it today: “The people who would be affected by a Supreme Court decision against the Obama administration live disproportionately in GOP-governed states, and an Urban Institute study found that many people fall into a demographic crucial to the GOP base — white, Southern and employed.”

Now, none of this means Republicans will be more likely to step forward with a solution. As Avik Roy (who hopes the Court rules against the ACA) acknowledges, Republicans are so divided that uniting on any response is unlikely:

Republicans are being pulled in two directions. On the one hand, you have dozens of House members from highly ideological districts, for whom a primary challenge is a far bigger political risk than a general election. Many members of this group think that continuing Obamacare’s subsidies, in any form, is problematic.

On the other hand, there is a large group of Republican senators in blue and purple states up for reelection in 2016. These include Mark Kirk (Ill.), Ron Johnson (Wisc.), Pat Toomey (Penn.), Kelly Ayotte (N.H.), Richard Burr (N.C.), Marco Rubio (Fla.), and Rob Portman (Ohio). These senators are much more aligned with Hatch, Alexander, and Barrasso.

Meanwhile, Republican state lawmakers, who could keep the subsidies flowing to their constituents by setting up state exchanges, are all over the place on what might come next, with some already ruling out such a fix. Indeed, in the end, it probably won’t matter that large majorities of Americans — or even large majorities of Republicans — support restoring the subsidies. On this, as on so many other things, GOP lawmakers will probably take their cues from the more conservative minority of Republicans, whatever the political or policy consequences.

*****************************************************************************************

* WHY JUSTICES SHOULD WEIGH CONSEQUENCES OF ANTI-ACA RULING: Law professor Nicholas Bagley has a terrific piece explaining why the Supreme Court Justices should factor in the fact that siding with the challengers would take health care from millions: This eventuality shows the challengers are misreading the law.

It’s not irrelevant that a ruling in their favor would inflict such damage. To the contrary, that fact helps us correctly interpret the statute’s text. Indeed, it shows that the plaintiffs’ understanding of that text is wrong. As the Supreme Court has said time and again, no provision of a statute should be read in isolation. Laws must be read as a whole, with an eye to harmonizing their interdependent parts. That means the court is reluctant to read a stray passage here or there in a way that would destabilize an entire statutory scheme.

It’s also possible that the real-world implications of an anti-ACA ruling might have legal relevance because they bolster the states’ argument that siding with the challengers would impose unfair retroactive consequences on them without clear warning. Read the whole thing.

* LEGAL CHALLENGE TO THE ACA IS ‘PROVABLE FICTION’:Steven Brill has a must-read in which he documents his close reporting on the creation of the Affordable Care Act, and why that led him to the conclusion that the idea that Congress intended to deny subsidies to those on the federal exchange is nothing but “fiction” and a “fairytale”:

Congressional intent is a fact-based inquiry, not a matter of opinion. Given the unambiguous mountain of facts arrayed for the defense (and well-presented in the briefs submitted by the defense side), it is hard enough to see how the lawyers on the plaintiffs’ side could actually believe in their case…if a majority of supposedly objective justices decide to ignore the facts and buy their argument, they will have engaged in a breathtaking act of political activism.

The Justices, however, could simply conclude that the disputed phrase is not ambiguous enough to warrant Chevron deference to the IRS’ interpretation of the law, despite all the evidence of Congressional intent, not to mention the law’s overall structure and purpose.

* DEMOCRATS ANGRY ABOUT NETANYAHU SPEECH: Benjamin Netanyahu is set to address Congress tomorrow, and the New York Times reports that anger and unease are widespread among Congressional Democrats. The latest tally on who will skip the speech:

So far, 30 Democrats — four senators and 26 representatives — have said they will not attend the speech. Nearly half are African-Americans, who say they feel deeply that Mr. Netanyahu is disrespecting the president by challenging his foreign policy. But a half-dozen of those Democrats planning to stay away are Jewish, and represent 21 percent of Congress’s Jewish members.

Given the historic skittishness among Democrats about appearing even slightly out of sync with what Israel wants, that actually represents something new.

* PARTISAN DIVIDE ON VIEWS OF NETANYAHU: A new NBC News poll finds that  66 percent of Democrats say GOP leaders shouldn’t have invited Netanyahu to speak without notifying the president first, while only 28 percent of Republicans say the same. And only 12 percent of Democrats view Netanyahu favorably, versus 49 percent of Republicans. It bears repeating that when it comes to Israel and diplomacy with Iran, Congressional Democrats are well to the right of their base.

* SCOTT WALKER FLIP-FLOPS ON IMMIGRATION: After previously supporting legalization for the 11 million, Scott Walker tried to get right with conservatives on Fox News Sunday:

“I don’t believe in amnesty…my view has changed. I’m flat out saying it…we need to secure the border. We ultimately need to put in place a system that works. A legal immigration system that works.”

However, Walker also said that “there’s a way” to legalize the 11 million if border security is accomplished first. This puts Walker pretty much where Jeb Bush and Marco Rubio have come down on the issue.

* TOP CONSERVATIVE: BOEHNER’S JOB IS SAFE: GOP Rep. Jim Jordan, the chairman of the Freedom Caucus, flatly tells CNN that there won’t be any conservative coup to oust Speaker John Boehner: “That’s not gonna happen.”

Duly noted. So what is stopping Boehner from passing long term funding of the Department of Homeland Security with the help of a lot of Democrats? We were repeatedly told during past showdowns that Boehner couldn’t avert crises with Dem help, because he’d lose his Speakership, and each of those ended in the same way.

10 things you need to know today: February 20, 2015

The Week

1.Pentagon lays out plans, dates to retake Mosul from ISIS
In a briefing on Thursday, a U.S. Central Command official detailed how and when up to 25,000 Iraqi troops plan to retake Mosul, Iraq’s second-largest city, from Islamic State control, starting in April or May. Twelve brigades will be involved, the official said: five that will lead the attack, three acting as backup, three Kurdish peshmerga brigades to keep ISIS boxed in, and a force of former Mosul police and other leaders tasked with keeping control of the city once ISIS is pushed out. It is unusual for military officials to detail plans for an attack beforehand.

Source: The Associated Press

2.Record cold hits the East
A blast of Arctic air brought East Coast temperatures to record lows on Thursday, with still colder weather expected in some areas on Friday. In parts of the upper Midwest, Thursday temperatures plunged to minus 35 early Thursday. Sub-zero temperatures hit a broad area stretching from North Dakota south to Kentucky and east to New York. Chicago hit a record low for Feb. 19 at eight degrees below zero. All-time February lows are forecast from Ohio to Virginia early Friday.

Source: The Washington Post

3.Walmart promises to lift wages for 500,000 employees
Walmart pledged Thursday to raise the wages of a half million U.S. employees, boosting them to at least $9 an hour this year, and to $10 an hour by next February. Economists said the move by the giant retailer could signal that wage growth is finally picking up six years into the recovery from the Great Recession. The raises will affect about 500,000 of the company’s 1.4 million U.S. workers at Walmart and Sam’s Club stores.

Source: The Wall Street Journal

4.Caracas mayor arrested, accused of planning a coup
Venezuelan intelligence police on Thursday arrested Caracas Mayor Antonio Ledezma, an outspoken critic of President Nicolas Maduro and his handling of the economy. In a televised statement, Maduro said Ledezma was detained on the public prosecutor’s orders for instigating a coup. “Enough already of vampires conspiring against the peace,” he said. Maduro also claimed the U.S. was attempting to destabilize his government, allegations the U.S. State Department called “baseless and false.”

Source: Bloomberg

5.Germany turns down Greece’s initial bailout extension terms
Germany rejected Greece’s proposal to extend its European bailout package for six months, saying Thursday that the new Greek government’s proposal was “not a substantial solution” because it did not stick to the austerity measures required under the original loan terms. Some analysts interpreted the rejection as a sign that Greece and its new anti-austerity government were destined to exit the eurozone. A senior Greek official said, however, that the two sides were near a deal heading into a Friday meeting.

Source: Reuters

6.Texas high court halts gay marriages
The Texas Supreme Court on Thursday halted gay marriages after a lesbian couple became the first same-sex partners to wed in the state. The Texas high court stayed two court rulings calling the state’s gay marriage ban unconstitutional. Texas Attorney General Ken Paxton declared the marriage of the couple — Sarah Goodfriend and Suzanne Bryant — to be “void” after the Supreme Court decision. A county clerk in Austin had issued Goodfriend and Bryant a license because one had “severe and immediate health concerns.”

Source: NBC News

7.Bill O’Reilly accused of having his own “Brian Williams problem”
Mother Jones published an article Thursday accusing Fox News star Bill O’Reilly of claiming he was in the Falkland Islands during Argentina’s 1982 war with Britain, even though no U.S. reporters are believed to have made it to the islands. O’Reilly, who worked for CBS at the time, called the magazine’s assertion that he had a “Brian Williams problem” “a piece of garbage,” saying he never said he was in the islands. “I was in Buenos Aires,” O’Reilly said. “In Buenos Aires we were in a combat situation after the Argentines surrendered.”

Source: Mother Jones, Politico

8.Man arrested in connection with Las Vegas road-rage killing
Las Vegas police on Thursday arrested a 19-year-old man, Erich Nowsch, on suspicion of killing a Las Vegas woman, Tammy Meyers, after a road rage incident. Meyers was giving her 15-year-old daughter a driving lesson when the girl honked the horn at a car speeding by. The driver of the other vehicle stopped in front of the women and threatened them. Nowsch lives a block away from the Meyers’ house. Tammy Meyers’ husband said she knew Nowsch, and had given money and mentored him.

Source: CNN, The Associated Press

9. Giuliani defends controversial remarks about Obama
Former New York mayor Rudy Giuliani (R) defended Thursday remarks he made about President Obama’s patriotism at a fundraiser Wednesdaynight for Wisconsin Gov. Scott Walker (R). During the event, he said, “I do not believe that the president loves America.” Giuliani told The New York Times on Thursday that he was not being prejudiced when he made the statement. “Some people thought it was racist — I thought that was a joke, since he was brought up by a white mother, a white grandfather, went to white schools, and most of this he learned from white people,” he said. “This isn’t racism. This is socialism or possibly anti-colonialism.”

Source: The New York Times

10.Parks and Recreation exec Harris Wittels, 30, found dead
Parks and Recreation co-executive producer Harris Wittels was found dead Thursday at his Los Angeles home. He was 30. Police said they suspected a drug overdose, although the coroner’s office will have to perform an autopsy to confirm it. Amy Poehler, star of the NBC sitcom, mourned Wittels as a “dear, young friend in my life who was struggling with addiction.” Wittels also co-wrote the series and occasionally appeared as an animal control staffer. The show’s final season concludes Feb. 24.

Source: Los Angeles Times, Variety