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“Boehner’s Imaginary Allegations”: Speaker Still Struggling To Explain Anti-Obama Lawsuit

No one seems quite as happy about House Speaker John Boehner’s (R-Ohio) anti-Obama lawsuit as President Obama himself. For the West Wing, the Republican litigation helps prove to the public, in a rather definitive way, that Obama’s governing while GOP lawmakers in Congress sit around and complain. Indeed, the frivolous case is effectively a bold announcement that the Republican-led House wants the federal government to be paralyzed indefinitely – which is hardly a winning message in an election year.

And so the president has ended up talking more about Boehner’s prospective lawsuit than Boehner has. “I told [the House Speaker], ‘I’d rather do things with you, pass some laws, make sure the Highway Trust Fund is funded so we don’t lay off hundreds of thousands of workers.’ It’s not that hard,” Obama said last week. “Middle-class families can’t wait for Republicans in Congress to do stuff. So sue me. As long as they’re doing nothing, I’m not going to apologize for trying to do something.”

Yesterday, Boehner responded with a CNN op-ed, defending the litigation he has not yet filed. It’s worth scrutinizing in detail.

[T]oo often over the past five years, the President has circumvented the American people and their elected representatives through executive action, changing and creating his own laws.

First, the Speaker needs to understand, in a “Schoolhouse Rock” sort of way, that the White House cannot create its own laws. That’s gibberish. Obama can create policies through executive orders and executive actions, but those aren’t literally new laws. Second, to help bolster his case about Obama abuses, Boehner referenced exactly zero specific examples.

What’s disappointing is the President’s flippant dismissal of the Constitution we are both sworn to defend.

No, holding the debt ceiling hostage, vowing to crash the global economy on purpose while ignoring the “Full Faith and Credit” of the United States is a “flippant dismissal of the Constitution.” Obama’s use of executive authority, on the other hand, is fairly routine.

I know the President is frustrated. I’m frustrated. The American people are frustrated, too. After years of slow economic growth and high unemployment under President Obama, they are still asking, ‘where are the jobs?’

Boehner may not remember this – 2008 seems like a long time ago – but Obama inherited the worst economic conditions since the Great Depression. The president proceeded to turn the economy around, no thanks to Boehner, who demanded a five-year spending freeze at the height of the crisis, and has fought ever since for fewer investments, less capital, less demand, and higher unemployment through laid off public-sector workers.

As for where the jobs are, the United States is currently on track for the best year for job creation since the 1990s and June was the 52nd consecutive month in which we’ve seen private-sector job growth – the longest streak on record. Why didn’t Boehner read the jobs report?

The House has passed more than 40 jobs bills that would help.

No, not really.

Washington taxes and regulations always make it harder for private sector employers to meet payrolls, invest in new initiatives and create jobs – but how can those employers plan, invest and grow when the laws are changing on the President’s whim at any moment?

First, if presidential whims periodically change American law outside the constitutional system, then Congress would have a responsibility to impeach the president. Since this allegation is imaginary, however, there’s no need. Second, if Boehner is concerned about employers’ confidence in economic stability, the Speaker can approve resources for the Highway Trust Fund and stop playing games with the economy (again).

If House Republicans have a legitimate complaint, shouldn’t it be easier for Boehner to make his case?

 

By: Steve Benen, The Maddow Blog, July 7, 2014

July 8, 2014 Posted by | House Republicans, John Boehner | , , , , , , , | Leave a comment

“The Default Setting”: Why Your Employer Can’t Cut Off Your Contraception Coverage

On the Fourth of July, while you were stuffing your face with patriotic burgers and watching patriotic fireworks, the Supreme Court handed down an emergency injunction in a case involving Wheaton College’s objection to the Affordable Care Act’s contraception benefit, a decision that acted as an addendum to the Hobby Lobby decision. As I ranted over here, this is the decision that could really open the floodgates to thousands of claims from all kinds of organizations and companies that don’t want to let their employees get contraception. But after thinking and reading about it for a while, there’s something I think everyone seems to be missing, and it could mean that no one is actually going to lose their coverage, even temporarily.

I should say that it’s entirely possible that I’m completely wrong about this, and there’s some bureaucratic detail deep within the ACA that I’ve overlooked. But the first thing to remember is that the ACA requires that insurance plans cover a variety of kinds of preventive care, including contraception; this issue is about what exactly a company or organization has to do when they have an objection to contraception coverage. The Obama administration constructed an alternative arrangement, which until now was supposed to be used only for religiously affiliated non-profits but, after the Hobby Lobby decision, may have to be used for basically anyone, including for-profit companies. The way it works is that if your group doesn’t want to be tainted by the sin of contraception, there’s a form you file with the government stating your objection. You send a copy to your insurer or third-party administrator (TPA), and the insurer/TPA (I’m just going to say insurer from this point on) arranges for the coverage with the government, by getting reimbursed out of other funds.

The problem is that Wheaton College, along with dozens of other organizations that have filed suit, believes that just filling out this form and sending it to their insurer makes them complicit in sin, because doing so triggers the arrangement under which their employees will get coverage. Let’s leave aside the merit of this belief, but by granting the emergency injunction the Court’s majority essentially accepted that filling out the form and sending a copy to their insurer was indeed a burden on Wheaton’s religious freedom. This made Sonia Sotomayor absolutely livid, since just four days before the Court had used the existence of that very form as proof that there was a less restrictive alternative than the contraception mandate available.

So what Wheaton would prefer is that they not fill out the form and send it to the insurer. Instead, they want to send a letter to the government just stating their objection—a letter which wouldn’t have to inform the government of who their insurer is. In her dissent, Sotomayor warned that this could become a bureaucratic nightmare, because now the government has to figure out who the insurer is for every company that sends a letter, so they can get in touch with the insurer and arrange the alternate payment procedure for contraceptive coverage.

And this is where I’m puzzled. Because under the ACA, ordinary insurance coverage has to provide prescription contraception with no cost-sharing (meaning without copayment or deductable). That’s the default setting. So let’s say I’ve started a new non-profit aimed at educating America’s youth about the important cultural contributions of 1980s hair metal bands. I get health insurance for my employees, and because of the requirement in the ACA, it includes coverage for contraception. Then after spending an extended period listening to Stryper, I realize that contraception is sinful and try to deprive my employees of it.

Depending on the outcome of these cases, I may have a couple of options. I can file the original form with the government and send a copy to my insurer, in which case those two will arrange for my employees’ contraception coverage to continue. If I object to the form, as Wheaton College does, I’ll just send a letter to the government saying “I’ll have none of this!”

But since I don’t want to inform my insurer and thus trigger the alternate arrangement, my insurer has no idea that I object to contraception coverage. That means they’ll continue to provide it to my employees, as the law requires. If because of ordinary bureaucratic slowness it takes the government a while to find my insurer and inform them of my objection, my employees will still have contraception coverage in the meantime. Whether I’m active or passive the coverage continues, either because the alternate arrangement has been triggered, or because the insurer keeps doing what they’ve been doing because they don’t know of my objection.

To repeat, there may be something I’m missing here. But it seems that even if the Hobby Lobby and Wheaton cases impose more bureaucracy and make things more cumbersome for the government and insurers, as long as contraception coverage without cost-sharing is the default setting for insurance plans, people won’t actually have their coverage interrupted, no matter what the preferences of their employer.

 

By: Paul Waldman, Contributing Editor, The American Prospect, July 7, 2014

July 8, 2014 Posted by | Affordable Care Act, Contraception, Health Insurance | , , , , , | Leave a comment

“Fundamentalist Constitutionalism”: Punctuation Marks, Antonin Scalia, And The Farce Of “Originalism”

I have no idea whether Supreme Court Justice Antonin Scalia is heading to the beach this summer now that he has made America safe for religious employers to discriminate against their female employees. Nor do I have any idea whether Danielle Allen’s new book “Our Declaration: A Reading of the Declaration of Independence in Defense of Equality” is on his beach-reading list. But it should be.

You have probably heard about the book and its assertion that there is a significant typo smack in the middle of the Declaration’s most famous part. We read the phrase “life, liberty and the pursuit of happiness” with a “.” at the end. It’s not there in the original, according to Prof. Allen. It was added in later versions, as a mistake or perhaps even as a small spot of errant ink. The result, Allen asserts, is a dramatically different meaning to the entire document.

Historians will debate the conclusions Allen has drawn from her detective work, but those conclusions aren’t the reason Scalia ought to read the book. Rather, it is that starting premise about the punctuation that should give him pause (I know, it won’t) because it succinctly puts the lie to the entire enterprise of Constitutional “originalism” upon which Scalia has built his career.

Originalism, briefly put, is a jurisprudence resting on the following wobbly assumptions: the Constitution only has one meaning; that meaning can be known without ambiguity (by those smart enough to read it); all laws ought to be judged against that singular, unchanging meaning. Not too long ago originalism resided on the lunatic fringe of legal thinking, sort of like Ayn Randian economics. Over the last generation it has entered the mainstream, sort of like Ayn Randian economics, and no one has been more responsible for that than Antonin Scalia.

Opponents of originalism have often argued instead that the Constitution needs to be a “living” document, adaptable to a changing society. That view became prominent a century ago as legal thinkers, among them Woodrow Wilson and Oliver Wendell Holmes, tried to reckon with a rapidly changing industrial society. And to these Scalia and his comrades have said that the Constitution is resolutely dead and should be read historically, not in light of contemporary society.

But as the business of the pesky punctuation in the Declaration of Independence reminds us, words can mean different things and can be read in different ways. and even small changes in a sentence can yield different ideas. We know what Hamlet’s “To be or not to be” soliloquy says, but any high school junior can tell you that it might have any of several meanings. Or all of them. Or none of them.

Pretending that reading a document like the Constitution is a simple, transparent and an entirely objective and neutral task is naïve at best, intellectually dishonest at worst. All acts of reading are necessarily acts of interpretation, and as a consequence there are no objective truths nor single meanings. The most we can do is achieve a best consensus, recognizing that it might change in the future.

Scalia knows all of this, I suspect. I don’t think even in his extraordinary arrogance and self-regard he believes he can know exactly and perfectly what was in the minds of all the delegates who wrote the Constitution. And indeed, whatever one thinks of Scalia as a jurist, his track-record as a historian is shoddy, filled with cherry-picked examples, incomplete understandings and downright risible conclusions. The history Scalia presented as part of his majority opinion in District of Columbia v. Heller wouldn’t pass muster in my undergraduate seminar.

Scalia’s real goal in promoting “originalism” is to remove Constitutional issues from the realm of political debate altogether and treat them instead as theological dogma.

“Originalists” like Scalia read the Constitution in much the same way that fundamentalist Christians read the Bible. In the world of those conservative Christians, the Bible says what it says, there is no room for any interpretation of it, and the Bible is inerrant. In fact, we might coin a new term, “fundamentalist Constitutionalists,” since there is now a small but growing number of people convinced that the Constitution, like the Bible, may have been written by men but was actually inspired by God.

While this kind of reading may be intellectually indefensible – or downright silly – it does have the advantage of bestowing extraordinary power on those who can claim to possess The Truth, whether huckstering evangelical, tyrannical bishop, or snarky Supreme Court justice.

Ironically, of course, we will look back on “originalism,” or “fundamentalist Constitutionalism,” as being entirely of its political and cultural moment. One hundred years from now, we will see it as engineered by revanchists like Scalia who recoiled at the dramatic social changes of the recent past – civil rights, feminism, gay rights, and more – and thought they could use the Constitution to retreat into a past largely of their own invention. Future scholars might even debate what, exactly, Antonin Scalia meant as they parse his body of writing, and might find that his very words could be subject to multiple readings. That would be the final, most delicious and fitting irony for “originalism.”

 

By: Steven Conn, Author/Professor, Ohio State; The Huffington Post Blog, July 7, 2014

 

 

July 8, 2014 Posted by | Antonin Scalia, Constitution, Declaration Of Independence | , , , , , , | Leave a comment

“The Alleged Socialists Are Saving Capitalism”: Why You Don’t Know Obama Has Created 4.5 Million Jobs

The terrific June jobs report may be the signal we’ve been waiting for that we’re finally turning the psychic corner. The overall jobs number was great at 288,000, and the unemployment rate was down to 6.1 percent. But the most important number was that the employment-to-population ratio, which many economists think of as the truest measure of the jobs market, was up a bit to 59 percent, a high for the recovery, indicating that maybe more people are finally out looking for work than staying home.

A lot of liberals puzzle over why the Obama administration isn’t getting more credit, or doesn’t do a better job of making sure it gets credit, for such good economic news. There are a lot of theories, and most of them hold varying amounts of water. But the main reason to me is fairly obvious: Liberals don’t speak as one big fat propagandistic voice on this subject in remotely the same way conservatives do when a Republican president is in power.

Before I get into all that, I want to review some numbers with you, because unless you’re a hyper-informed political junkie, I doubt you know them. How many net jobs has the economy created during Barack Obama’s presidency, and how many did it create during George W. Bush’s tenure? Notice first that I wrote “has the economy created” rather than “did Obama create/did Bush create.” I think it’s a better description of reality.

I also should note that I just measured the numbers under each president—I gave Bush the numbers from January 2001 to December 2008, and Obama the numbers from January 2009 to the present, with the following asterisk. January 2009 was when Obama became president, but he didn’t start until the 20th, of course. That was a particularly awful month, with 798,000 jobs lost. So I think it’s reasonable to give Bush, whose policies helped cause the meltdown anyway, two-thirds of that 798,000. (January 2001, by the way, was a tiny number, 30,000 jobs lost, but just to be consistent, I assigned only 10,000 of those to Bush.)

Here are Bush’s numbers: It’s 8.657 million jobs gained, and 7.121 million jobs lost, for a net job-creation number of 1.536 million. Pathetic. It’s interesting to look back over the numbers from 2001. The economy stank. The month of 9/11, we lost 242,000 jobs. Want to ascribe that just to the attacks? In August, we’d lost 158,000. The decent Bush years were 2004, 2005, 2006, and part of 2007, but even then the numbers were hoppy and inconsistent: 307,000 jobs added in May 2004 and just 74,000 in June, for instance.

And what about Obama’s numbers? I’d bet that even if you’re an Obama partisan, you think they’re not all that different from Bush’s. After all, 2009 was miserable: minus 798,000, minus 701,000, minus 826,000, and so on. The numbers went into the black in early 2010, but dipped back into the red in the summer. But remember, since October 2010, every report has been positive—the now 45 straight months of job growth that the president and his team, to little avail, crow about.

But they’ve added up, because under Obama, the economy has added 9.425 million jobs and lost 4.887, for a net gain of 4.538 million jobs. That’s a 3 million advantage over Bush. Now, 6.5 million jobs doesn’t put Obama up there in Clinton (22 million) and Reagan (around 16 million) territory. But remember—he has 30 months to go yet. Let’s say we average a gain of 250,000 a month the rest of the way. That’s another 7.5 million. And that would edge him up toward Reagan territory. And that seems conservative, if anything. If the recovery gets genuinely humming, we could start seeing months between 300,000 and 400,000 next year. It seems unlikely to happen, but God would it be hilarious if Obama, with everything the Republicans in Congress have done to keep the economy in a state of contraction, ended up surpassing Reagan.

[UPDATE: I rechecked my math this morning, and it’s a good thing I did. I had originally given Obama nearly 2 million more jobs created than the actual numbers reflect. Obviously, I want to be accurate here. I added and re-added these three times.]

But all that’s speculative. After all, there could be a recession coming, too, though most experts don’t seem to fear that much. So let’s just talk about the up to now, the 6.5 million net jobs. As I said before, I bet you didn’t know that. Why?

Two main reasons. One, the administration doesn’t go a great job of trumpeting it, and I think for good reason. Officials may feel constrained from doing too much boasting because a lot of people’s perception and experience is still worse than that. A lot of these aren’t great jobs, and the economy is still only doing real well for the top 5 or 10 percent.

The second reason is that figures on the broad left simply aren’t superficial cheerleaders. The two men who are probably the most influential economic voices on the left, Paul Krugman and Robert Reich, have both been pretty harsh critics of the administration’s economic policies, as have other liberal economists. They, and less well-known but still prominent people such as Dean Baker, look at the numbers and report the truth as they see it. Democratic politicians are cheerleaders in varying degree—there’s Debbie Wasserman Schultz on the rah-rah end, but most Democrats don’t brag too much for the same reason the White House doesn’t.

And the media voices on the left—the folks on MSNBC, say—try to accentuate the positive in political terms, but they don’t ignore the bad news by any stretch of the imagination. MSNBC talks a lot about obstreperous Republicans, a theme to which I certainly contribute on air, but the network also offers a consistent diet of news features on and interviews with people stuck in the dead-end economy and having a hard time of it, segments that usually demand the government do more.

Now, imagine that a Republican president produced 45 straight months of job growth coming off the worst financial crisis since the Depression. Lord, we’d never hear the end of it from Fox and Limbaugh and even from CNBC. They wouldn’t care about the reality that a lot of the jobs are low wage. They’d just trumpet the bottom-line numbers as evidence of their president’s Churchillian greatness.

That’s how they are, and nothing’s going to change them. The important question now, as I said up top, is whether we’re really turning the psychic corner. Corporations have been hoarding record profits, banks still aren’t lending they way they should be, businesses have been skittish about large-scale hiring. It’s a big game of economic chicken, and it certainly has a political element. Most of these corporate titans and bankers and business leaders are Republicans. I don’t think most of them would intentionally hold the economy back because they don’t like the president, but I do think they take their cues from elected Republicans more than from Obama. When the Republicans stand up and say repeatedly that the president’s policies are failing, failing, failing, these private-sector titans hear them, and it influences what they do.

It may be that we’re finally working our way through all that. Happy days aren’t yet here again, but, once again, Democrats, the alleged socialists, are saving capitalism from the supposed lovers of capitalism who almost destroyed it.

 

By: Michael Tomasky, The Daily Beast, July 7, 2014

July 8, 2014 Posted by | Economic Recovery, Economy, Jobs | , , , , , , | 1 Comment

“It Will Be Ugly, And It Will Escalate”: Buffer Zones, Clinic Escorting, And The Myth Of The Quiet Sidewalk Counselors

The Supreme Court struck down the Massachusetts “buffer zone” law — which barred antiabortion protests immediately outside clinics. Justice Scalia portrayed the law as hindering ‘sidewalk counselors’ who lovingly entreated women to consider alternatives. This portrayal, embodied by the grandmotherly petitioner, allowed some to view the decision as protecting gentle civility. Referencing one particular Planned Parenthood clinic in Boston, this “quiet counseling” was seen as well-intentioned, and, more importantly, constitutional.

It is also a myth — or at least a dramatic euphemism that applies to very few at the Boston site. I should know. I was there.

For four years, I volunteered as an escort on Saturday mornings. The scene described in the court — like a delusional game of telephone — was drastically different from reality.

Our mornings were mostly spent scanning the streets, attempting to spot patients before they approached the zealous spectacle. We’d tactfully ask if they were looking for the clinic, and walk them through the crowd.

Saturdays were favored by protesters, so escorts arrived in the early morning. Wearing identifying vests, we flanked the entrance and greeted patients outside the zone. Two would rotate to the back to watch the garage entrance, where only the more tenacious protestors wandered. We’d accompany patients up the long walk to the front, usually trailed by someone asking if Satan sent us. (He didn’t.)

During the freezing New England winters, we would briefly warm up inside, but were mostly left to stomp our feet and count how many toes we could feel. Once a month, a Christian band would show up, surreally, and hold a concert.

We knew the “quiet counseling” well. “Just like Auschwitz,” one would say, “you’re delivering them right into the furnace.” This particular protester would speak right into her ear — until he approached the painted line on the ground.

Sometimes, a male accompanying a patient would lose his cool. He could have been her boyfriend or brother. We didn’t know and never asked. Once they entered, the doors could burst back open and he would charge whichever protestor called his companion a whore. We would intervene.

Justice Alito felt the law represented “viewpoint discrimination” — constitutionally, one message can’t be favored over another. But as an escort, I never talked about abortion, even outside the zone. When guiding patients, I would detail what they could expect. I didn’t offer my perspective, or even criticize the protestors. My goal was to provide a calming presence seconds before what would be one of the more trying moments of their lives. I explained how to access the clinic, and maintained a low patter to distract them from strangers calling them beasts and murderers. If they were confused by the protestors’ Boston Police hats, we cleared that up too.

If the patient was African-American, the protestors said they were “lynching” their child. If the protestor was crying, they said the tears would never stop, even in hell. If a patient was with her mother, they thanked the mother — for not killing her own baby.

Surprisingly, those Saturdays were not without their lighter moments. For a group dedicated to attacking Planned Parenthood — a multi-purpose clinic — they seemed stunned when someone wasn’t seeking an abortion. “You’ll never be the same. You’ll always be a dirty killer,” one would say. A startled patient would respond, “Why would a Pap smear make me a dirty killer?” Many others sought birth control — though they didn’t approve of that either.

This is not to paint all protesters as unhinged. I still remember one young priest who didn’t condemn me and chose instead to make small talk — which we continued periodically. Another time, upon news of the Columbia shuttle deteriorating upon reentry, we all shared a collective moment of humanity.

Being in a college area, there were counter-protestors (also kept out of the buffer zone) — who promoted pro-choice politics through direct and shocking slogans. Many of us didn’t care for them either. We just wanted calm in an atmosphere of invective and hysteria.

The desire for calm stemmed, in part, from the 1994 Brookline shootings. The victims were known by some of my fellow volunteers. This very real risk led the police to call for a buffer zone. One of the victims, a 25-year-old receptionist, was not just in the wrong place at the wrong time. The murder was premeditated; her killer focused on her.

Even when I was there, clinic staff driving up would be greeted with protestors filming them and, not so subtly, stating the staffer’s home address. Those were the more chilling moments.

It is difficult (though not impossible) to argue that a unanimous Supreme Court case was wrongly decided. After all, it is a broad law. But that is not my goal. Instead, I’m writing to dispel the myth painted of Good Samaritans softly offering a helping hand. In the public relations war over whether the affected individuals were compassionate counselors or marauding bullies, many justices seemed to accept the former characterization.

The law was overturned as an overreaching infringement on free speech. Is this a free speech issue? Yes, of course it is. But as others have pointed out, buffer zones exist elsewhere, including outside the Supreme Court. Favoring free speech, the Court famously allowed Nazis to march in Illinois and, more recently, the Phelps church to picket funerals (at a distance). But parades and funerals eventually end. Here, the Court risks turning clinic entrances into permanently hostile environments — inciting those who have spent weeks agonizing over their decision. They overturned the express wishes of an elected legislature — including pro-life lawmakers who supported the measure in the interest of public safety.

Similar zones were upheld by the court in 2000, a ruling which was not overturned. Clinic entrances still cannot be blocked, and injunctions are allowed against particularly worrisome parties. Chief Justice Roberts even suggested other mechanisms the state can use in lieu of the zone. But it’s an ever-changing landscape, and those remaining precautions have become the next targets of these quiet counselors. Because, to those that brought the case, speech alone is not the goal.

The grueling decision of whether to have an abortion should never be taken lightly, and there is no shortage of advocates for either side that fill our collective eardrums. But that debate stops a few feet outside the clinic. Just like politicking outside voting booths, these last ditch efforts lose the veneer of debate and become akin to intimidation — which can easily morph into confrontation or devastating anguish. Anyone who wants to stop and chat can do so. But once patients decide to cross the line, they should be left alone. The Court noted that the environment is currently more peaceful than it once was. There’s a reason for that.

None of this is to say that this isn’t a legitimate debate. It is. But those who favor stripping the buffer zone away — what small help it is — shouldn’t kid themselves into thinking that a flood of polite conversation will follow. It will be ugly, and it will escalate.

 

By: Brian Giacometti, Field-based NGO Program Manager for Governance and Rule of Law; The Huffington Post Blog, July 7, 2014

 

 

July 8, 2014 Posted by | Buffer Zones, Public Safety, SCOTUS, Uncategorized, Women's Health | , , , , , , | Leave a comment

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