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“Illogical And Irresponsible”: GOP Response To Supreme Court Nomination Makes No Sense And Could Have Big Consequences

We are just beginning to see the consequences of the Senate Republicans’ refusal to consider President Barack Obama’s nominee for the Supreme Court. On Tuesday, the court deadlocked 4-4 on a case involving public sector unions. The tied decision left current law in place, a victory for the unions, but not necessarily a victory for our system of government.

The decision is the second deadlock to come out of the court since the death of Justice Antonin Scalia in February. Last week, the court was evenly split on a case regarding possible bank discrimination.

How long can an evenly split court continue to function? Even in the face of the recent deadlocked decisions, Senate Republicans still refuse to consider the nomination of Merrick Garland for the seat left vacant by Scalia. Their refusal to move forward promises to render an entire branch of our government completely moot.

In a piece for Politico this week, University of Michigan Law School Professor Richard Primus sounds the alarm about the consequences of an incomplete court. He wrote: “A court with eight justices will often deadlock in contested cases, and therefore fail to execute the court’s major function: providing resolution on constitutional issues where the lower courts disagree.” A court that can’t function effectively is dangerous to the delicate balance of power our democracy is built upon. It disables an entire branch of government, removing an important check on the other two. Republicans’ refusal to consider Obama’s nominee means the U.S. Senate is failing in its duty to ensure the continuity of our government and move the country forward. They should reverse course immediately.

Consideration of the nominee does not equate to confirmation. If, after thoroughly vetting Garland, Senate Republicans still find him objectionable, they can vote him down and invite Obama to submit another nominee. This process can continue until both sides arrive at a mutually agreeable result. But to insist that because Obama is in his last year of office the province of filling the Supreme Court vacancy belongs to someone else is irresponsible.

Following that line of thought, all of the House and one-third of the Senate should refrain from voting on anything during election years in case their potential successors might decide something differently. Office holders do not vacate their powers and responsibilities until they are out of office. Obama is still the president. He can take us to war, sign bills into law and nominate Supreme Court Justices. The logic behind the Senate Republicans’ actions is flawed and can have far-reaching consequences.

For over 200 years now, this country has been blessed with peaceful transitions of power that have ensured the survival of our democracy. Administrations have come and gone and political parties have won and lost without creating the instability that is rampant in other parts of the world. This has happened, for the most part, because everyone involved has respected the system enough to let it work. Senate Republicans should let the system work and consider Obama’s choice for the Supreme Court. Any other course of action starts to put our stability at risk.

 

By: Cary Gibson, Thomas Jefferson Street Blog, U. S. News and World Report, April 1, 2016

April 3, 2016 Posted by | Democracy, Senate Republicans, U. S. Constitution, U. S. Supreme Court Nominees | , , , , , | 2 Comments

“An Economic Self-Kneecapping”: How Michigan Literally Poisoned An Entire City To Save A Few Bucks

You know what’s bad? Brain damage.

Flint, Michigan, is finding this out after it accidentally gave its entire population at least a little bit of lead poisoning when it switched up their water supply. In an attempt to save money for a cash-strapped city, Flint started drinking water from the Flint River — but ended up contaminating children with a poisonous heavy metal. Governor Rick Snyder has declared a state of emergency, and the federal government is investigating.

Why on Earth did they do this? Austerity. Aside from the obvious humanitarian disaster, this is a stark demonstration of austerity’s false economy. Trying to be cheap on Flint’s water supply will end up costing the state of Michigan (and probably the country as a whole) a ton more money than it would have to fix it properly in the first place.

Flint, as you may have heard, has been an economic disaster zone for decades now. What was once a key part of the great Midwest industrial powerhouse — General Motors was founded there over a century ago — has been troubled since the 1970s, beset by deindustrialization, population loss, a collapsing tax base, and the inevitable concomitant spike in crime and poverty.

Of course such a situation is going to require some painful downsizing of local services, which has been partially accomplished under a succession of emergency managers imposed by the Michigan state government with a tremendous amount of legal scuffling. While some cuts or tax increases are surely necessary, in such a situation it’s critical to lay out a trajectory to future fiscal sustainability to avoid a death spiral.

Ideally, this is where the state or federal government would step in, making sure that pain is spread around equitably — particularly to bondholders, who probably knew exactly who they were lending to — and the city doesn’t get stuck in legal limbo for years on end.

But emergency managers, particularly the ones appointed by Governor Snyder (a Republican) have been far more focused on cuts for their own sake, particularly crushing unionized public sector workers. The idea to temporarily use Flint River water while another pipeline was being constructed was one of those cost-saving measures.

It was immediately obvious that the water was filthy, and residents loudly protested that it was cloudy, smelled bad, and tasted worse. General Motors stopped using the water because it was literally corroding their machinery. But Snyder and his handpicked head environmental official Dan Wyant studiously ignored the problem — despite internal warnings of lead poisoning as early as July of last year — until an outside scientific study demonstrated extreme levels of lead in Flint children. In late December — over a year after the water switch — Snyder finally apologized and Wyant quietly resigned.

Lead poisoning is one of the lesser-known great evils of the 20th century. Most notably it may have even caused a great crime wave, as basically the entire population was subjected to minor aerosol lead poisoning from leaded gasoline, resulting in lower IQs and poorer impulse control across the population — and therefore higher crime.

Things have improved since lead was removed from gasoline, but it’s still a gigantic problem for many impoverished communities, who can’t afford to replace their lead pipes or properly remove flaking lead paint. The threat is greatest for small children, who are most vulnerable to lead poisoning and most likely to eat lead paint (which often has a sweet taste). Freddie Gray, the Baltimore resident whose death in police custody sparked major unrest last year — was just so brain damaged.

Now Snyder has already been forced to pony up over $10 million to switch the Flint water system back to the way it was before (hooked up to Detroit, basically), and the city is asking for some $50 million more to replace lead pipes. But that’s very likely only the beginning. Flint’s population is roughly 100,000, and several families have already sued state and local officials over the lead issue. It’s unclear so far how badly the city’s children have been poisoned, but it’s a pretty safe bet the state will end up spending tens or perhaps even hundreds of millions on settlements.

And that’s where a moral atrocity becomes an economic self-kneecapping. Aside from the cost of settlements, children are the major portion of the future’s economic capacity, which depends critically on their ability to function normally. Destroying their brains with heavy metals will rather impede their ability to get the jobs and pay the taxes that will get Flint on a sound fiscal footing.

Being a cheapskate can be expensive indeed.

 

By: Ryan Cooper, The Week, January 7, 2016

January 10, 2016 Posted by | Austerity, Flint Michigan, Lead Poisoining, Rick Snyder | , , , , , , , , | 3 Comments

“Scott Walker’s Race To The Bottom”: His Plan Is As Pure An Expression Of Supply-Side, Trickle-Down Economics As You’ll Find

Scott Walker wants to take his fight against organized labor national. Today he released a plan for a new war not just on union representation, but on worker rights in general.

It’s quite a document, one we might call Scott Walker’s Race to the Bottom.

I have no doubt that Walker is sincere in his desire to see every labor union crushed and every vestige of workers’ power banished — or, in his lingo, “flexibility.” I’d also be surprised if any of the other candidates objected to any part of it. So the plan is worth understanding if you want to grasp what today’s GOP is offering today’s workers.

While he doesn’t say so explicitly, what Walker seems to hope for is really a world without any labor unions at all, or at the very least a world where unions are so weakened that they are unable to advocate for anyone. Here are the major parts of his plan:

Eliminate the National Labor Relations Board. Walker says the NLRB is “a one-sided advocate for big-labor special interests,” but the truth is that Democrats appoint pro-labor members to the board, while Republicans appoint anti-labor members to the board. Transferring the NLRB’s authority to adjudicate labor disputes to the courts would probably be a mixed bag in terms of worker rights.

“Eliminate big-government unions.” This is pretty straightforward. You don’t like unions? Get rid of ’em. Today there are around seven million Americans represented by a public sector union, and around one million of those are employed by the federal government (including the Postal Service). If Walker got his way, the latter group could kiss their representation goodbye — and given his record, it’s pretty clear he wouldn’t mind getting rid of the state and local public-sector unions as well.

Institute a national “right to work” law. The phrase “right to work” is a triumph of conservative PR, because how could anyone object to a right to work? What it means in practice, however, is that in places where unions negotiate salaries and benefits for workers, those workers can’t be required to contribute to the union that got them those salaries and benefits (no one can be required to join a union, but where there are no right to work laws, you can be required to contribute when the union negotiates on your behalf). Whenever a right to work law is being debated in a particular state, Republicans argue that because the law would weaken unions, it will draw employers who don’t want to have to bother with the high wages and good benefits those unions can negotiate.

Which, the evidence suggests, is probably true. But such laws have another effect: they pull down wages and benefits. So that’s the bargain a state makes when it passes a right to work law:  more jobs, but worse jobs.

Think about what would happen if you took this policy national. On a state level, it’s possible for a right to work law to draw a factory from one state to another. But if every state was a right to work state, then that incentive to move is eliminated. The decrease in union representation would spread, which drives down wages and benefits for everyone. Whether you think that’s a good thing depends on whether you are concerned with the interests of large business owners or the interests of workers.

There are a number of smaller ideas in Walker’s plan, like eliminating the requirement that federal contractors pay the “prevailing wage” (i.e. union wage) for construction projects, further reinforcing what seems to be Walker’s belief that the problem with unions is that they let workers earn too much money. And I have to highlight this bit:

“The Obama administration’s government-knows-best proposed rules will require employers to pay overtime rates to greater numbers of salaried works and require federal contractors to provide paid sick leave. Unfortunately, these rules will only reduce wages and deprive workers of the flexibility to balance work and life commitments.

“On Day One of my administration, I will repeal any regulation that reduces employee flexibility, as well as work for changes to federal law to allow time off for overtime hours worked. My changes will protect workplace flexibility by ensuring that misguided big-government mandates do not stand in the way of individuals and families.”

So Walker will roll back the Obama administration’s efforts to make more workers eligible for overtime pay and sick leave, because that would mean more “employee flexibility.” Indeed, just imagine the worker making $7.50 an hour saying to herself, “Boy, now that I have the flu I sure am glad I have to choose between dragging myself into work or staying home and losing my pay. Thanks for the flexibility, President Walker!”

Though Walker’s plan is couched in all kinds of pro-worker rhetoric like that (and endless repetition of the phrase “union bosses”), in truth it’s about as pure an expression of supply-side, trickle-down economics as you’ll find. Its basic principle is that once we eliminate workers’ ability to bargain collectively, everything will turn out great for everyone.

But here’s what we know: union membership has been declining for decades, while incomes have been stagnant and Americans have felt increasingly at the mercy of employers who treat them like interchangeable cogs who can be manipulated, surveilled, and tossed aside at the employer’s whim. There’s no question that Scott Walker succeeded in creating a politically beneficial showdown with public sector unions in Wisconsin. But how many Americans think that the problem with our economy is that too much power in the workplace lies in the hands of workers?

 

By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line, The Washington Post, September 14, 2015

September 16, 2015 Posted by | Organized Labor, Scott Walker, Workers Rights | , , , , , , , | Leave a comment

“Emerging From The Ferment”: The Real Irony Of Scott Walker’s Messy Personal Finances

The finances of Wisconsin Gov. Scott Walker got a rather stern once-over from National Journal on Monday.

“Walker has two credit-card debts of more than $10,000 apiece on separate cards and is paying an eye-popping 27.24 percent interest rate on one of them,” the Journal harrumphed, before quickly lasering in on the irony. “The Republican presidential candidate has cast himself as both a fiscal conservative leader and a penny-pinching everyman on the campaign trail, often touting his love of Kohl’s, the discount department store.”

Walker isn’t the first Republican presidential hopeful to get this treatment either. Back in June, The New York Times took Sen. Marco Rubio of Florida to task for a “strikingly low savings rate” and some household purchases of questionable wisdom.

This is a deeply silly genre of journalism. It treats troubles the vast majority of Americans grapple with as vaguely scandalous. And it implicitly assumes the same rules of thumb that should guide household budgets should also guide the federal budget, which is catastrophically wrong.

More to the point, other details in the Journal piece offer a brief look at a presidential candidate of relatively modest means.

“Walker listed only six investments worth between $1,000 and $15,000, a whole life insurance plan worth between $15,000 and $50,000, and a deferred compensation plan from Milwaukee County worth between $15,000 and $50,000,” the Journal continued. Walker received a $45,000 advance for a book in the last year, and it looks like his annual salary since assuming the governorship in 2011 has been around $140,000. That’s certainly a lot of income compared to most Americans — it puts Walker just below the threshold for the top 10 percent — but it’s obviously nothing compared to the fortunes Jeb Bush and Hillary Clinton have amassed.

This gets at something poignant about Walker the politician, and by extension Walker the man. While most all presidential candidates and politicians have a significant amount of socioeconomic distance from the median American, Walker has less than most. Besides his income and wealth, Walker came from modest beginnings as a preacher’s kid in a small Wisconsin manufacturing town. He attended Marquette University in Milwaukee, but didn’t finish his degree — passing on one of the key status symbols that American elites use to separate themselves from the pack.

And yet few Republicans, and certainly no other Republican presidential candidate, has been so ferociously focused on grinding everyday workers into the ground.

Like any good conservative, Walker pushed massive tax cuts for the well-to-do through Wisconsin’s state budget, creating a hole he’s now trying to fill by slicing education spending. But he also drove a blistering and brutally successful push to crush Wisconsin’s public-sector unions, followed by “right to work” laws that will likely cripple the state’s private unions as well.

Nor does it look like Walker did this because Republican and business interests were demanding it — he did it because he wanted to, as a matter of ideology.

An explanation probably lies in the unique and poisonous way the history of race and class intersected in the Milwaukee political milieu Walker came from. In the early 20th century, large numbers of black Americans migrated from the South to northern urban centers. But no sooner had they put down roots than the mid-century collapse of manufacturing arrived, sucking away jobs and bringing poverty to the cities.

Black Americans had never been permitted to build up the wealth that white Americans had: Along with the aftereffects of slavery and the social consequences of segregation, they were initially excluded from policies like Social Security and the G.I. Bill, which helped build the white middle class. And racist policies like redlining and the construction of the highway system destroyed many of their neighborhoods and prevented them from accessing areas of economic vibrancy.

So when the white middle class fled to the suburbs, the poorer black populations could not follow. That set up Reaganite white suburbs, which surrounded and disdained the urban interiors of impoverished African-Americans, and all the vicious politics that followed. The funny thing, as Alec MacGillis laid out in a 2014 profile of Walker, was that this process came a few decades late to Milwaukee. The future governor cut his political teeth as a member of Milwaukee’s fleeing white upper-middle class, just as this conflict was reaching its apex.

So it should come as no surprise that those public-sector jobs Walker helped crush have also been one of the great economic havens where black Americans can actually earn a decent living.

For decades, American macroeconomic policy has done a terrible job providing enough work to keep everyone employed. That’s introduced a bottom-up desperation that’s trickled higher and higher over the years. On top of that, while America has a hidden welfare state for the rich and the upper-middle class, its explicit social safety net is skimpy and targeted at the poorest Americans. This creates a perverse circumstance in which many Americans in the middle of the pack feel left behind, while they see people with different skin colors and alien cultural habits — habits often shaped by poverty — receiving aid (however grossly inadequate).

More and more, American society is becoming a brute contest, in which the groups of varying power must trample one another for the scraps that fall from the elite table. This sort of divide-and-conquer effect, in populations that should be uniting over common interests and common foes, has a long history in U.S. labor struggles.

When people find themselves outside the elite inner circle, and see themselves as in a zero-sum economic game with impoverished subcultures that look and act different from them, the likes of Scott Walker is often what emerges from the ferment.

 

By: Jeff Spross, The Week, August 5, 2015

August 7, 2015 Posted by | GOP Presidential Candidates, GOP Primaries, Scott Walker | , , , , , , , , | Leave a comment

“Radical Libertarianism Reshaping The Bench”: John Roberts’ Supreme Court Is The Most Meddlesome In U.S. History

For the third straight July, the Supreme Court left court-watchers scratching their heads about whether the Court lived up to its reputation as the “most conservative” in generations, if not ever. In the New York Times, former Obama Acting Solicitor General Neal Katyal hailed “The Supreme Court’s Powerful New Consensus.” Liberal experts tended to echo Slate’s Emily Bazelon in dismissing such revisionists as hoodwinked by “the devastating, sneaky genius of John Roberts’ [superficially anodyne but right-tilting] opinions.”

What strikes me is a libertarian streak in the justices’ opinions. On civil liberties, where right- and left-leaning libertarians concur—in particular, Fourth Amendment protection for smartphones—the Court moved the law to the left. But, likewise reflecting libertarian ascendance, the Court continues to veer sharply right on issues touching on corporate autonomy and regulation of business. Most importantly, this term’s cases confirm a critical but generally overlooked facet of twenty-first century libertarian jurisprudence. It is not just about reclaiming what Randy Barnett famously called the “lost Constitution.” Less visibly but often more consequentially, libertarian academics, advocates, and judges have long advocated thrusting the courts into much more aggressive roles in resolving the details of messy non-constitutional disputes—in interpreting statutes, and, in particular, in scrutinizing and micro-managing executive and regulatory agencies’ applications of the laws they administer. Here, the not-always-tacit agenda has been to gum up the works of progressive programs that, realistically, cannot be repealed or invalidated outright.

A window onto this Court’s reactionary drift opened during a testy exchange at an oral argument six months ago on January 21. The case was Harris v. Quinn, which involved a challenge to the authority of state governments to permit public employee unions to collect fees covering the costs of negotiating on behalf of non-members they are legally required to represent. Choosing her words pointedly, Justice Elena Kagan questioned the challenging non-members’ counsel:

Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State, and people have disagreed. … And is it fair to say that you’re suggesting here … that, for 64 years, people have been debating the wrong question …  because, in fact, a right-to-work law is constitutionally compelled? (emphasis added)

The challengers’ counsel, a staff attorney for the National Right to Work Legal Defense Foundation, did not flinch. “In the public sector,” he responded, “Yes, … compulsory fees are illegal under the First Amendment.”

When the Court finally released its decision, on the final day of the term, June 30, it did not exactly dial back those 64 years, at least not for all public workers and workplaces nationwide. Justice Alito’s 5-4 majority decision barred the imposition of union fees on non-members, but only with regard to a novel category he created—“personal homecare assistants,” or nurses and other providers paid by state governments with Medicaid funds, to treat disabled and poor elderly patients in their homes.

But what matters about this case is not the answer the conservative majority gave on its particular facts, but the question they chose to answer. As Justice Kagan noted, that question—whether state (or federal) law can authorize public employee unions to distribute the costs of representation across all employees in a bargaining unit, while requiring the union to represent non-union members as well as members—had for generations been completely off the table. The conservative majority has put that fundamental understanding in play, by transmuting the First Amendment—heretofore understood as a safeguard for civil liberties—into a functional regulator of economic relations, and de-stabilizing nearly three quarters of a century of constitutional precedents. These precedents are not technicalities. On the contrary, were the case-law otherwise, all employees, union members as well as non-members, would have every incentive to “free-ride,” and reap the benefits of union representation without sharing in the costs. Public employee unionism would be weakened, if not crippled.

The doctrinal counter-revolution is not confined to labor-management relations. Prior to the New Deal, the Supreme Court pushed an anti-regulatory agenda in the name of safeguarding individuals’ economic liberty. The FDR Court repudiated this tradition in a 1938 decision about milk regulation, United States v. Carolene Products. Carolene Products laid down a landmark a rule: Economic regulatory legislation “is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Harris v. Quinn flagrantly violates that rule. States surely have a “rational basis” for ensuring fair-share contributions from non-union public employees.

After 1938, through the balance of the twentieth century, and, indeed, well into the twenty-first, Supreme Court majorities never overtly and, only rarely, departed from or implicitly challenged the hands-off economic regulation mandate of rational basis deference. Of course, during those decades, there were recurrent, fiery right-left battles on and about the Supreme Court. But those battles were about the extent to which the Court should actively protect individual civil and political rights, not economic rights. Only a small cadre of libertarian academics and think tanks disputed the consensus confining economic liberty to second-class constituitonal status. No more. No longer marginalized, libertarian-inspired legal ideas are now a force to be reckoned with. That tectonic shift was first proclaimed two years ago in the Court’s opinions in the challenge to the Affordable Care Act’s individual mandate and expansion of Medicaid, even though Chief Justice John Roberts’ controlling opinion largely upheld the law. This term’s decisions reinforce that trend.

Although Harris v. Quinn invoked the Constitution to trump an incontestably rational regulatory law, other important decisions about regulation and the economy this term involved ordinarily below-the-radar questions of statutory interpretation and judicial deference to agency decisions. And libertarian academics’ and advocates’ enthusiasm for replacing Carolene Products-style rational basis deference with active judicial micro-management left an imprint in nearly all of them. For example, reviewing the first tranche of President Obama’s global warming program, Justice Scalia, writing for a seven-member majority, struck down the regulation at issue, and castigated EPA for reading an exception into an assertedly “unambiguous” statutory provision. But the Court then read a similar exception into another statutory term, that yielded 97 percent of the on-the-ground results the agency’s version would have achieved. How could EPA’s version have no defensibly rational basis, and why would the justices not simply defer, if it differed so immaterially from theirs?The answer seems to be that Scalia and his colleagues felt it important to assert their power to substitute their judgment for the agency’s—EPA or any other agency—almost for the sake of doing so.

Similarly, in its two decisions reviewing Affordable Care Act contraception regulations, the conservative majority second-guessed extraordinarily granular Executive Branch policy and factual determinations, substituting their own ideas for configuring a compromise to mesh competing policy goals attributed to two statutes, the ACA and the Religious Freedom Restoration Act. The majority suggested that alternative administrative solutions were readily available, that would, consistent with the Court’s orders, permit employees and students, in institutions averse to including contraception coverage in their health insurance plans, “to obtain, without cost, the full range of FDA approved contraceptives.” Dissenting Justice Sonia Sotomayor, and many health experts, vehemently disagreed. The lasting lesson from these cases is not which side is right, but that the conservative justices are so eager to reach to tackle these policy and factual kerfuffles at all. Such judicial intrusions, into the nitty-gritty of implementing complex, often conflicting statutory provisions, mock landmark decisions—by the Rehnquist Court no less than its more liberal predecessors—that long enforced and repeatedly reaffirmed the post-New Deal consensus mandating judicial restraint and deference to Congressional and Executive legislative and policy judgments.

Looking to the future, most of the battles over preserving the progressive jurisprudence that kept hostile judges from crippling the New Deal, the Great Society, and—so far—the major products of President Barack Obama’s tenure, could well be fought on these non-constitutional fronts. Already, some observers have noted that in several end-of-term opinions, justices on both sides of the Court’s ideological divide have sparred elaborately about methodologies for interpreting statutes and reviewing agency actions. Could these academic-seeming debates constitute “shadow-boxing” over potential high-voltage controversies that could wind up on next year’s docket and beyond? A particular target for speculation in this vein, especially on the right, is a brace of pending cases currently poised for decision in two courts of appeal, in which ACA opponents hope to shut down Healthcare.gov. They claim that a four-word phrase in the Act must be read in isolation, to permit only state-run exchanges, not federally run exchanges in the 36 states that have opted out of setting up exchanges of their own, to provide tax credits and subsidies for low and moderate income applicants for health insurance. So far, that claim has been rejected by the two district courts yet to rule, as contrary to what even Justice Scalia, in his Clean Air Act global warming decision opinion this June, acknowledged as the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Much could depend on whether Justice Scalia and the rest of his conservative colleagues choose to take that “fundamental canon” seriously, if and when the fate of Obamacare is once again on their griddle.

 

By: Simon Lazarus, The New Republic, July 10, 2014

July 13, 2014 Posted by | John Roberts, Libertarians, U. S. Supreme Court | , , , , , , , | Leave a comment