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SCOTUS Rules Again . . .

As found on our Open Thread of June 28, 2013, jurisdebtor decided to leave a gem behind. Juris debtor can be found on his Blog J.URIS D.EBTOR, My Own Meanderings Through Economics, Law, and Policy Having been in the courts for the last decade, I find this to be a good interpretation of what one might expect from the courts. It is never what you believe it to be coming from the gods dressed in black sitting behind their pulpit looking down at you (there is distinct reason for this). The days of Gideon are forever past (happy fiftiest Gideon in 2013). Try writing SCOTUS yourself today.

Don’t Let DOMA Fool You — the Supreme Court is Restricting Your Rights By David Cole, Washington Post, 6/28/2013. As taken from the Open Thread, jurisdebtor posts David Cole’s appraisal of SCOTUS decisions as rendered by the Kennedy Court (my interpretation).

The Supreme Court’s 5 to 4 decision to strike down a key part of the Defense of Marriage Act was undeniably historic, a victory not just for gay rights advocates but for anyone committed to advancing equal rights in America.

It was also an anomaly.

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Poetic Justice for Justice Alito. Maybe.

U.C.-Berkeley law professor Goodwin Liu’s nomination to the Ninth Circuit Court of appeals was killed a couple years ago by Senate Republicans upon the pretext that Lui had trashed Alito to the Senate Judiciary Committee in testimony during Alito’s confirmation hearing.  Lui predicted that Alito as a justice would be exactly what Alito as a justice is.  Now that Lui’s prediction has proven spot-on*, Obama should nominate him, not for the Ninth Circuit but for Supreme Court upon Ginsburg’s retirement in a year or two.

It would be at least some small poetic justice for this justice.

But Alito’s demeaning, denigrating treatment of litigants and counsel is emblematic of a veritable hallmark of the Federalist Society-affiliated appellate judges.  Certainly not all of them do that, but also certainly, several high-profile Reagan/H.W. Bush-era appellate appointees have made that type of conduct a mark of peer prestige, and others, who don’t naturally have that personality—including some appointed by Clinton—emulate it.  Something about being in with the in-crowd.  It is, or at least for a long time was, the cool thing for them to do.

*The link is to a terrific article in Slate today by Mark Joseph Stern.  But credit also must be given to the Washington Post’s Dana Milbank, who in a column published earlier this week was, I believe, the first of the now-several commentators to report on this. 

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UPDATE: I posted a similar comment to Stern’s article in the article’s Comments thread on Slate.  In response, a commenter called Bigmouth wrote:

While I’d love to see Liu on the Supreme Court, I’d like to see the President pick fights he can actually win lol.

To which I responded:

This is one he would win if he chose to pick that fight. The high profile of the matter, coupled with the under-recognized importance of the generational change among voters–particularly the growing importance of the Millennials–and the overdue, very public highlighting of Alito’s votes and his conduct on and off the bench, would win it for Obama.

Not that I expect that lackluster, gutless wonder to actually pick this fight. But if he does, he’ll win it.

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The DOMA Opinion

Now the shoe is on the other foot, and it is time for the court to strike down a federal statute in order to advance a liberal policy goal rather than a conservative policy goal. Justice Scalia’s paean to the democratic process* in his dissent sounds a little hollow, coming in the wake of his votes to strike down affirmative action programs and Section 4 of the Voting Rights Act—both of them the result of the democratic process, as much as DOMA was. Meanwhile, none of the liberals pipe in to explain how to reconcile the outcome of this case with the concerns about democracy that they expressed in dissenting opinions in the other cases. (Ginsburg, in Shelby County: “That determination of the body empowered to enforce the Civil War Amendments ‘by appropriate legislation’ merits this Court’s utmost respect.”)

But this is a trite point, and never mind. The problem faced by opponents of DOMA is that there was no clear constitutional hook for striking it down. The Equal Protection Clause does not seem to apply because gay people (unlike, say, African-Americans) have not been regarded as politically weak enough to be a “suspect class,” justifying heightened review. That means that only a rational basis is necessary to uphold DOMA and a rational basis is easy to find (uniformity, efficiency, blah, blah, blah). The Due Process Clause does not seem to apply because that clause protects only rights that are rooted in history and tradition, and the right of same-sex marriage, however compelling a moral issue it may seem today, is not such a right. Federalism says that (under ill-defined conditions) the U.S. government cannot trump state law, especially in an area like family law, but in fact there are plenty of federal laws that regulate marriage, at least along the margins.

— Eric Posner, There was no clear constitutional reason to strike down DOMA, but the court did it anyway. Slate, today

I don’t understand why Posner thinks there is a conflict between the liberals’ position in Shelby County (yesterday’s 5-4 opinion gutting the Voting Rights Act) and their position in joining Kennedy in Windsor without reconciling the two.  Why does he think Ginsburg’s statement in Shelby County—“That determination of the body empowered to enforce the Civil War Amendments ‘by appropriate legislation’ merits this Court’s utmost respect.”—conflicts with Kennedy’s use of equal protection in Windsor?  DOMA surely was not intended to provide equal protection to same-sex couples.  And the liberals surely did not say in their dissent in Shelby County that democratically enacted laws are fine even if they violate constitutional equal protection guarantees.

And I’m not sure why Posner and many other commentators today complain that Kennedy’s opinion doesn’t identify the specific level of equal protection scrutiny that gay people are entitled to.  He establishes a separate, new class of people, including but not limited to gays, who are entitled to heightened equal protection: people targeted by laws or policies whose very intent and whose effect is to disadvantage them. “Discriminations of an unusual character especially require careful consideration” of the motive and effect–in other words, heightened equal protection scrutiny by the courts–he says.   That’s new, and not all that specific, but it’s certainly a level of scrutiny that’s different, and higher, than the rational-basis level of scrutiny. Kennedy clearly was saying that under this new type of scrutiny, there very much is a constitutional reason to strike down DOMA.

And I think it will play a role in next term’s affirmation action case challenging the constitutionality of 2006 successful Michigan ballot initiative that amended the state constitution to prohibit state-sponsored race-based affirmative action in employment and college admissions.  The Sixth Circuit Court of Appeals struck it down on the basis that, for equal protection purposes, constitutional amendments were different than ordinary legislation because the targeted groups can’t simply lobby the legislature to change the law; they must instead go through the lengthy, difficult and expensive ballot-initiative process.  The Supreme Court agreed to hear the case.  The case is Schuette v. Coalition to Defend Affirmative Action.  Linda Greenhouse had some interesting comments about it in the NYT a couple weeks ag0.

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*Scalia’s paean comes at the opening of his dissent.  He says, stupifyingly:

We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

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The Solution to the Economy: Raise Social Standards and Social Efficiency

Guest post by Edward Lambert as taken from his Blog Effective Demand

Yes, the economy is a concern. There are problems to sort out. The problems run deep. What is the solution?

The solution to the problems of the economy will be found through “Social Efficiency” and raising the social standards that have been declining through the years. I will present 3 examples of lowered social efficiency, grade inflation in schools, the minimum wage and finally low interest rates. My purpose is to show that nominal interest rates need to rise, but that real wages must rise in unison too. 

Grade Inflation at Yale University

Let’s go to Yale University and see an example. Yale is currently working on a solution to its grade inflation. Grade inflation is when more students get A’s than before.

“…a full 62 percent — nearly two-thirds — of grades awarded in Yale College, the university’s undergraduate school, are A or A-. (That wasn’t case four decades ago, when just 1 out of 10 grades awarded fell in the A range.)”

Grade Inflationb

This quote is taken from an article about the problem of grade inflation at Yale. There is a comment below that article by Adam Glover. . .

“What do they call the person who graduates first in their medical class? Doctor
What do they call the person who graduates last in their medical class? Doctor
Rather than worrying about grades, I’m more concerned that students are sacrificing real learning for a better GPA.”

The problem is that standards, and more importantly, Social Standards of quality have been lowered. The issue of grade inflation at Yale is just one isolated example of declining Social Standards around the world. Just this week we see cheating in the schools of China is rampant, even as parents try to bribe teachers so their children get better grades.

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My take on the NSA, Privacy and Protection

Let me just say, I’m no lawyer and what follows is not legal scholarship.

Of all the reading and listening I have done regarding the spying by our government via electronic data collection and storage, I have found nothing that specifically gets at the issue for me as to why it’s not a good thing.  This is mostly because the common response to defending such activity by our government falls into a couple of very broad moral concepts that are part of our cultural upbringing.  One is trust in the source of your protection. The other is self acknowledgment as being a morally conscious person.

Trust in the source of your protection is simply an aspect of experiencing parenting that is then extended to relationships external to the parent relationship as we mature.  The other, self acknowledgment as being morally conscious is culturally learned.

Thus we get “trust the government with protecting us” such that the data collection is not a problem and “don’t worry if you are not doing anything wrong” as simple answers to why this entire NSA issues is a none issue.   These answers have settled nothing.

Lack of trust creates all sorts of problems individually and for society. I’m not going to go there in this post.  I’m not going to go there because it seems this nation does not respond anymore to lists of harms and dangers and thus make corrective policy to preserve our sanity.  Just consider that we are continuing to pollute ourselves into extinction.  Or consider that there has been very little mentioned of the new directive that turns all government employees into untrusted co-workers as a means to stop the government secretes from becoming known.  Do we really think that the motivation for turning someone in will always be altruistic and not be for other selfish motives?  Here is a tip, racism is not dead, selfishness has become the dominate personality of a large swath of US citizens and greed is simply one expression of selfishness.  Oh yeah, we’re the government so why can I not know?

The trust your government issue has been discussed mostly by noting that one’s representative of their own ideology will not be in power at all times.  It is the idea that you can not trust your source of protection if it is not of you. This is quite the conundrum for all the ideological identities to resolve such that all can trust their source of protection, in this instance: government.  That source being the same for all ideological parties which have been taught to trust this source.

For me the real issue and concern is found in the morally conscious person argument.  It is the argument that suggest you have nothing to fear if you are doing nothing wrong.

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The Fundamental Principle That States Are People, My Friend

OH. WOW.  I actually called this exactly right in my post yesterdaythis being, well, this.  [Inadvertently-omitted link to court opinion inserted.  H/T Dan Crawford.]  Specifically: Roberts’ 5-4 opinion today in Shelby County, Ala. v. Holder, the Voting Rights Act case that I discussed, and predicted the outcome of, in that post yesterday.

Regular AB readers might recall a recent post of mine excoriating an article on Slate by University of Chicago law professor Eric Posner concerning a Fourth Amendment search issue.  But Posner, who along with his father, prominent federal appellate judge Richard Posner and two others, is blogging on Slate this week in its annual final-week-of-the-Supreme-Court-term discussion, and he’s posted this spot-on analysis and bald criticism of the Roberts opinion in Shelby County:

Chief Justice Roberts’ opinion in Shelby County v. Holder, the Voting Rights Act case, is a pretty lame piece of work. There is a longstanding constitutional norm of judges deferring to Congress. Courts strike down laws when they violate rights or exceed Congress’ power. But Section 5 of the Voting Rights Act, which requires nine states in the South (and other scattered places) to get approval from the Justice Department before changing their election laws, doesn’t violate anyone’s rights. It’s the type of legislation specifically authorized by the 15th Amendment of the Constitution, which says the right to vote “shall not be abridged” because of race or color. Roberts says that the singling out of Old South states, for what’s called “preclearance” by DoJ, makes little sense now that blacks are as likely to register to vote as whites in those states, or nearly so. But Congress passes hundreds of statutes that are based on weak evidence, and courts routinely uphold them. Roberts doesn’t even try to argue that the costs imposed on states by the preclearance part of the Voting Rights Act exceed the benefits for people who would otherwise be deprived of the vote, which is what would be minimally necessary to show that the law does not advance the public good.

Roberts focuses on the offense to the sovereignty of states and a newly invented idea he calls the “fundamental principle of equal sovereignty.” State sovereignty means that the federal government should not intrude on political decision-making of states, including, Roberts says, their election laws; equal sovereignty means that when it does, it should intrude equally—on all of the states to the same degree.

But neither of these principles can explain where Roberts ends up. The idea of state sovereignty is riddled with exceptions and is largely a joke these days. The federal government calls the shots, and the states obey, in the area of elections as much as in any other. Roberts accepts the constitutionality of Section 2 of the Voting Rights Act, which forbids states to discriminate against minority voters and in this way also intrudes on state control over their elections. (Section 2 wasn’t at issue in the case the court decided Tuesday, so it’s alive and well. But it relies on lawsuits, not preapproval by the Justice Department, to ensure the rights of minority voters.) If Section 2 does not violate the Constitution, then what is special about Section 5—which also forbids discrimination? From the standpoint of state autonomy, Roberts’ argument does not wash.

That leaves the “fundamental principle of equal sovereignty,” the idea that Congress may not single out certain states for special burdens. Yet Roberts is able to cite only the weakest support for this principle—a handful of very old cases that address entirely different matters. None of the usual impressive array of founding authorities show up in his analysis, even though the founding generation took state sovereignty much more seriously than we do today.

Posner follows that with this priceless deconstruction:

Still, it is worth looking at this principle. What exactly is wrong with the singling out of states by the federal government? Is the idea that when Alabama is on the playground with the other states, they’re going to make fun of it because it had to ask its mama for permission before going out to play? In fact, the federal government doesn’t treat states equally and couldn’t possibly. Nearly all laws affect different states differently. Disaster-relief laws benefit disaster-prone states at the expense of disaster-free states. Pollution-control laws burden industrial states. Progressive taxes burden states where the rich are concentrated. Thanks to Congress, the Environmental Protection Agency can single out states with serious pollution problems, the Justice Department can keep an eye on states with serious corruption problems, and immigration authorities can single out border states for surveillance. Indeed, Section 2 of the Voting Rights Act will continue to burden states with substantial minority populations relative to other states, just because you can’t discriminate against a minority population that doesn’t exist. Many more Section 2 claims will be brought in Alabama than in Montana, and so even under Section 2, Alabama has vastly less control over its election law than Montana has over its election law. Yes, Section 5 places an incremental burden on Alabama—but on top of an already unequal burden that Roberts cheerfully tolerates. So whatever explains the court’s decision today, the putative principle of equal sovereignty can’t be it.

Posner raises a point that occurred to me after the oral argument in Shelby County, concerning what appeared (as I said yesterday), accurately, to be the intention of the Fab Five to create a new constitutional doctrine by which states, just like people, are entitled to the equal protection of the law.  It occurred to me that under this new states-are-people-and-therefore-entitled-to-equal-protection doctrine, states (most of them Democratic-leaning) that pay more to the federal government than the state and its residences receive in federal funds could challenge the constitutionality of the laws that provide states (most of them Republican-leaning) and their residents with more federal funds than the state’s residents pay in federal taxes.

But Roberts gets around this—or tries to—by effectively saying that the Tenth Amendment, which he says grants states the right to do whatever they want unless one of the Constitution’s “enumerated powers” (the powers that the Constitution expressly grants to the federal government, and which were central in last year’s Obamacare litigation) provides otherwise.  Thus, he says, the Tenth Amendment trumps the Fifteenth Amendment, notwithstanding that the Fifteenth Amendment was added to the Constitution after the Tenth Amendment was.

Roberts, no numerologist, does nonetheless superficially finesse this by claiming that, well, yah, sure, maybe the Fifteenth Amendment’s Section 5 could be considered an enumerated power— although he doesn’t actually call it an enumerated power, because rightwing mantra dictates that only the powers enumerated in the Constitution’s Article I (which creates the Congress) qualify as authentic enumerated powers.  But, y’know, the real purpose of the section of the Fifteenth Amendment, which authorizes exactly the type of legislation that section 4 of the VRA is, is prospective—that is, to make this a better country going forward.  And, well, how can you make the country a better place when you’ve based your law authorized by the Fifteenth Amendment on outdated evidence, for heaven’s sake?!

The fundamental principal of equal sovereignty is nowhere, even arguably, in the Constitution.  But now, well, states are people, my friend.

Of course, as Posner suggests, and as I point out, if states are entitled to equal protection of federal law, then hopefully New York, Massachusetts, Washington state, Illinois, Connecticut and Vermont will join together to challenge the constitutionality of the federal laws that serve as a financial funnel to Louisiana, Texas, Mississippi, Florida, and Alabama—including Shelby County.  Roberts’ opinion notwithstanding, it is itself a violation of equal protection to limit this new equal-protection-of-person-states (state personhood) to state “sovereignty” prerogatives. Even though that’s what serves the interest of the Republican Party.

This is an outrageous new doctrine and it is part and parcel of the Reagan-era legal cabal’s really wacky, really aggressive states-are-people jurisprudence juggernaut, which conveniently trumps both federal and individuals’ (actual humans’) rights to the extent, but only to the extent, that it matches these folks’ political or ideological preference.  The Tenth Amendment, not incidentally, reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

A hallmark of their brand of states’-rights jurisprudence, filled with downright bizarre Court-created doctrines, as it is, is that the post-Civil War era Reconstruction amendments—the Thirteenth, Fourteenth and Fifteenth amendments—are part of the Constitution and its delegation of federal authority only when state or local legislatures or administrative agencies or government bodies infringe upon, say, the right of an upper-middle-class high school senior to be admitted to her state college of choice on the basis of her grades and SAT score.  Or upon the rights of a real estate property owner to do whatever with, or on, his property.  Or upon gun-ownership rights.

You get the idea.  We all do.

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UPDATE: I’m grateful to a Slate front-page editor for his or her decision to feature Eric Posner’s post at the top of Slate’s opening page—and to caption the post to highlight Posner’s point that the opinion is based on a flawed and outright made-up legal concept, a newly fabricated, wacky legal doctrine that has no conceivable actual basis in the Constitution.  None whatsoever.

The opinion is as blatant a political artifice as was Bush v. Gore.

 

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Wages falling

Real wages decline by Kenneth Thomas

Speaking of inequality by Kenneth Thomas

Wage stickiness coming unglued.

And an op ed by David Cay Johnston this last week:

Breaking news alert! Wages fell at the fastest rate ever recorded during the first quarter of this year, the government’s Bureau of Labor Statistics reported.

Hourly wages fell 3.8 percent in the first quarter, the biggest drop since the BLS began tracking compensation in 1947. Productivity rose half a percentage point. The result was that what economists call “labor unit costs” fell 4.3 percent.

In plain English, that means paychecks overall shrank, but work output grew. If you are a business owner, that is news worthy of a toast with a bottle of the finest Cristal champagne, which at $595 is more than the $518 that a median-wage worker earns in a week.

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Obamacare – Fear – Mongers Poison Minds; Hatred Blinds

Maggie Mahar at Health Beat Blog Obamacare – Fear – Mongers Poison Minds; Hatred Blinds” writes about the confusion about, the anger at, and the mischaracterization of the PPACA by every day people, medical workers, and politicians. Having myself presented the facts to rebut assumptions and fallacies, I find her comments interesting and on the money. Most who nit-pick on the PPACA have no obtainable and immediate alternatives in hand to replace the PPACA leaving a return to what was in place previous to its passage. The healthcare industry and Congress has done nothing to improve the situation pre-PPACA. There is no evidence they would move forward with a better alternative to the PPACA if it was repealed.

Maggie’s words:

Judith Mayer Lynn, uninsured and battling breast cancer, should be a fan of the Affordable Care Act1. Instead, Bloomberg reports, she know little about it. When Bloomberg interviewed the 56-year-old she was unaware of subsidies in the law that will help people like her buy coverage in 2014,. “Lynn didn’t know the Affordable Care Act requires insurers to pay for prescription drugs, hospital stays and other services she has spent the last two years scrimping to afford. Nor did she realize she can no longer be denied a policy due to her illness”.

When told of the benefits, “Lynn remained unconvinced, skeptical of insurers and government alike. ‘It’s a joke,’ she said. ‘There’s going to be loopholes in all of these provisions.1’”

If you showed Lynn the list of “essential benefits” that insurers will have to include in the policies they sell to people like her, could you persuade her to read the list—and explain where she saw the holes? Probably not, as her mind is closed to a discussion. In an interview at an Access to Healthcare office in Las Vegas, Lynn said she was unaware of those benefits — and didn’t trust Obama to produce them anyway.

The Poison: Hatred

Perhaps, I should not be surprised. We live in a nation where in 2009, a U.S. Congressman felt free to shout out “You Lie” during a televised presidential speech to a joint session of Congress2. (President Obama had just said that the legislation would not mandate coverage for undocumented immigrants. This is, of course, correct. South Carolina Rep. Joe Wilson (R) later apologized.)

Yet that did not stop another Congressional Republican from calling out the President earlier this month. In a scathing speech on the floor of the House3, Rep. Jim Bridenstine (R-OK) derided President Obama as a “dishonest, incompetent, vengeful liar” who lacks a “moral compass.” Bridenstine cited HHS Secretary Kathleen Sebelius’ efforts to promote enrollment in the Affordable Care Act as one reason President Obama is “not fit to lead.” Bridenstine did not apologize. Instead the next day, he told a talk show host that he had “gotten great encouragement” for his remarks from fellow Republicans. I have followed U.S. politics for many years. Never have I seen a president so hated — not Nixon, not LBJ at the height of the War in Vietnam.

Politicians Are Not Alone in Teaching Americans Not to Trust Obamacare

Lynn recalls one of her surgeons telling her that he was leaving the business because the health-care law dictates what he can charge patients1. This the Bloomberg article notes is “something the legislation doesn’t do.“ Why would a surgeon claim that the Affordable Care Act will be setting his rates? Presumably, he reads newspapers. How could he be so uninformed?

“There is a lot of distrust,” Sherri Rice, chief executive officer at Access to Healthcare explains. When her nonprofit group began asking members about the ACA last month, about half knew little about its provisions and another quarter were “furious” about it, she told Bloomberg. Such anger makes it difficult to think clearly—or take in information. This may explain why Lynn’s surgeon thinks that under the ACA he will be told what he can charge patients. Perhaps he too is so “furious” that the facts don’t register. Hatred blinds.

Educating the Public

The Brookings Institute’s Henry J. Aaron is one of many who blames the Obama administration for not doing a better job of educating the public. “We haven’t seen a lot of energy from the administration on public education. They ceded the field to those who were largely hostile to the bill to frame it in the public’s mind1.”

“Framing”

Aaron is right that Obamacare’s opponents have “framed” the issue. They have outspent supporters by 5-to-1 on TV ads, according to advertising analyst Kantar Media1. But their idea of “framing” is to define an idea with a catchphrase. If some facts do not fit into the frame, they are ignored explains linguistics professor George Lakoff. The “frame” becomes a lens through which conservatives invite us to see policy issues. For example, Laskoff observes, the phrase “tax relief” creates a context, signaling that taxes are bad and this is why we need “relief.” “Obamacare” is, itself a frame, which suggests that the Affordable Care Act will create a “nanny-state,” with the president becoming a national nanny who will tell us what we must do.

When you are lying, repetition is important. (Goebbels used this technique to his advantage) Laskoff points to a speech by Rick Santorum where he repeatedly refers to the President “not listening to the voice of the American people” (14 times) “because he knows better than you” (5 times)4, and is using the Government to run your lives by taking away your “rights” (10 times), and “freedoms.”(12 times “Death panel” became one of the most successful frames. Conservatives favor sound bites that are short, snappy and click shut like a box. Like advertising slogans, they are designed to make people stop thinking.

More, progressive formulations encourage thought. Often, they raise questions5: is health care a “right”, a “privilege”, or a “moral responsibility”—something that, we as a civilized society, we owe to each other? “Individual responsibility” is a phrase that conservatives favor. Each of us is responsible for ourselves, period. By contrast, “shared responsibility” opens the mind to consider the possibility5 that employers, employees, government, and the health care industry itself should share in funding universal healthcare.

Television Ads

It is difficult to explain Obamacare in a one-minute TV ad because health care reform turns on the details–thousands of details. And often, these are interlocking details: you cannot understand one without understanding the next paragraph in the legislation. For example: If you are self-employed, unemployed or work for an employer who does not offer benefits you will be able to purchase your own coverage in the Exchanges — marketplaces where insures will be regulated and will not be able to charge you more if you suffer from a pre-existing condition. If you earn less than $46000, you will be eligible for a government subsidy in the form of a tax credit that will help you pay the premium.

That is just one fact—and it I took me a full paragraph to convey a fairly accurate basic description of who will be eligible for a tax credit.

The definition also raises questions. For example, a reader might well ask; If I have to wait until I get a tax credit (when I pay my 2014 taxes in April of 2015) how will I pay the premiums on my insurance at the beginning of 2014? The answer is that the IRS will forward the money to your insurer in 2014, estimating how large your subsidy should be based on your 2013 income. Then when you file your 2013 taxes in 2014, you and the government will settle. If your 2014 income turned out to be lower than expected, the government may have underestimated your subsidy, and will owe you money. If, on the other hand, you earned more than expected, the subsidy may have been larger than it should have been, and you will owe the government money. To me this sounds fair; but, it doesn’t fit into a sound bite. I spent two paragraphs explaining it.

If a reader were skimming a newspaper story he might not take in those two paragraphs — especially if he already had heard conservatives “frame” the idea that you might own the government money as a “tax credit trap.” The phrase suggests that the tax credit is a trick leaving many Americans with what redstate.com calls “surprise tax bills5” in the spring of 2015.

Suddenly the tax credit does not sound like such a good deal – unless you took the time to read the full explanation.

In October, the Public Will Need a Crash Course in Obamacare

Let us return to the idea to the idea that the Obama administration has done a poor job of educating the public. “For the last couple of years, the Obama administration has done too little to explain what was in the law, and to mobilize support,1” says Henry Aaron. Bloomberg observes that in April of 2013 U.S. health secretary Kathleen Sebelius “offered a different take on timing: “’It didn’t make sense for the U.S. to contact the uninsured long before they can actually sign up for coverage1.’”

I think Sebelius may well be right. Americans are not interested in poring over the many details of Obamacare when it seems a distant possibility. (Polls show that Conservative diatribes have convinced many that the law already was repealed.) People will be much more interested in listening to the facts about the ACA in October, when it is becomes clear that the law is a reality, and that they are faced with a decision. Should I sign up for insurance? Right now Republicans are telling them that, under reform coverage will be unaffordable. Often they throw out numbers like “30% increases.” Here the fear-mongers are speculating about the cost of insurance premiums in the Exchanges where individuals buy their own insurance. But keep in mind, only a small minority of Americans will purchase coverage in these Exchanges

The majority of Americans work for large companies and are offered tax benefits at work. The Congressional Budget Office tells us that Obamacare will have a “negligible” effect on their premiums6.

As for premiums in the individual Exchanges, today Democrats cannot tell you exactly how much your coverage will cost if you buy your own insurance in 2014. This makes it difficult to rebut claims that costs will skyrocket. Everything will depend on your age, your sex, your income, where you live—and how insurers decide to price their products. They will be competing for market share, and will be trying to calculate how to price their product to attract young, healthy customers.

Premiums in the Exchanges: Much Will Depend On Where You Live

In states like New York, insurers now have to follow rules that are very similar to the regulations in the Affordable Care Act. As a result, it is unlikely that individuals buying their own insurance will have to pay more than they do today. In fact, they will probably pay less because in the Insurance Exchanges they will be part of a large group, and thus the insurer’s administrative costs will be lower. In addition, if an individual earns less than $46,000 he will be eligible for a government subsidy, which will slash his premiums.

On the other hand if the customer is a healthy 30-year-old male who lives in a state where insurers are allowed to charge women three times as much as they would charge a man for exactly the same policy and where they charge someone suffering from a pre-existing condition four times as much; the 30-year old man who is purchasing insurance in the Exchange may well be asked to shell out significantly more than he does today. This is because, under reform, he, his sister, and his mother (who suffers from diabetes) will find themselves on a level playing field: Insurers will not be able to gouge his sister or his mother.

(Put that way, reform doesn’t sound so bad does it? Even a progressive can use words such as “gouge” and “level playing field” to “frame” the issue.) Then again, consider how many words I needed to explain the variables that will determine whether your premiums will go up or down in the Exchanges.
It is much, much easier just to scream “sticker shock.”

In October, the Administration Will be Able to Offer Specifics

In the fall, progressives will have an easier task. They will be able to say: “Here in North Carolina an individual will be able to choose from a menu of five plans that range in price from $____to $____a year. Here are the details on the co-pays and deductibles. You will notice that in the plans where premiums are lower, co-pays are higher. In all of these plans your total out-of-pocket spending will be- capped at $6500 a year — no matter which plan you choose, or how much care you need.”

Armed with this information, reform’s supporters will be able to answer the false claims that you are hearing today. (This is why the fear mongers are now becoming louder and more hysterical—as we approach October they know their days are numbered.) “Enroll America” also will point out that: “different plans use different provider networks—you will find a list of their networks here. Some plans charge more because they think that you will pay more for their networks of hospitals and doctors. But they may be wrong: some customers will choose one of the less expensive plans.”

In October, progressives will put premiums in the contexct of subsidies, explaining that “If you are single and earn X, you will receive a government subsidy of $______ . If you are a 40-year-old couple with one child earning Z, you will receive a tax credit of $_____.” When Obamacare’s supporters have hard numbers, and can spell out what reform will mean for YOU and your family, uninsured, self-employed and unemployed Americans will be much more eager to learn about the details of healthcare reform. This is when they will be ready for a crash course in Obamacare.

Educating the Public: Reaching Out at the Right Time

As Joanne Peters, an HHS spokeswoman told Bloomberg: “Our outreach will kick into high gear this summer leading into the fall1, when we’ll be talking to Americans across the country to prepare them to enroll in coverage beginning October 1. Our deliberative tactics build on the lessons we’ve learned, including reaching people with the right message at the right time, when it’s time for them to act.”

“You want outreach and communications with real intensity in the six months when people can go online and sign up1,” adds Tara McGuinness a White House spokeswoman, referring to the open enrollment period that begins in October 2013 and runs through March 2014. In six months, “Enroll America” should be able to get the facts out there to most of the people who, at that point, will want to hear more about how “Obamacare” might help them. Granted, reformers still will have to contend with the conservative crusade to poison our minds by planting seeds of suspicion. This campaign has been going on since 2009. That’s four years of misinformation and outright lies.

Nevertheless in October of 2014, when “Enroll America” has the facts on pricing, I am hopeful that mainstream journalists will at last feel able and willing to call misinformation what it is: “a lie.”

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Justice Kennedy Reads Angry Bear! Yup. There’s No Other Plausible Explanation for His Affirmative Action Opinion Today.

A longer-than-planned post on today’s Supreme Court opinion on state-college-admissions affirmative action programs.  (I’m up in Michigan’s Thumb region, sans cable and regular web service, and using my phone as a Wi Fi hotspot via the PdaNet app. I can attest that PdaNet is awesome.)  Here it is:

The headline on Politico reads, “SCOTUS passes on big affirmative action decision.”  That headline does not really sum up the opinion,* but I’m not surprised at the ruling—either its result or that it took an unusually long time for the issuance of the opinion; the case was argued in the first week of the Court’s term in early October.  It’s a (very) safe bet that neither the result nor the delay in deciding the case was the result that the Fab Five had planned on when they agreed to hear the case and when the case was argued there.

But, well, stuff happens.  And, first things first.  And first—and foremost—for these folks, I believe, is the gutting of two key, interdependent sections, Sections 4 and 5**, of the Voting Rights Act (VRA), because that is the way to help Republicans in national elections.  And the stuff that happened in this instance was the oral argument at the Court back in March (I think) in Shelby County, Alabama v. Holder, the case that the 5-4 crowd has planned to use as its “vehicle”—a military tank—to gut that section of the VRA.

As I wrote in AB back then, comments that Kennedy made during the argument would, if adopted by him (he will be the author of the opinion in Shelby County; bet on it, quickly, tonight, before the opinion is released tomorrow!) would inescapably conflict, in two respects, with the ruling that Kennedy planned to write in Fisher.  And, yes, although absolutely everyone but me said Roberts would write the opinion in Fisher, Kennedy was the author of the Fisher opinion.  (Okay, one of his law clerks was, but without attribution, of course.)

During the argument in Shelby County, Kennedy made two things clear: First, that states are people, too (just like corporations!), and therefore are protected by the Fourteenth Amendment’s equal protection clause.  Funny, but who knew that the Fourteenth Amendment, whose express and sole historic purpose was to protect individuals (i.e., people) from denial of due process of law and the equal protection of the law by states.  Violation of constitutional rights by states, not by the federal government against states, which heretofore had no constitutional due process or equal protection rights.  Originalism and textualism only matter sometimes.

Second—and this is, I think, as I said in my post last spring, the real key to the conflict between what these five wanted to do in Fisher and what they want to, and almost certainly will, do in Shelby County—is that Kennedy and Scalia think that now that African Americans have real political power, they aren’t entitled to special protections.  Hey, Obama won, didn’t he?!  They can just use their political power to ensure that there are no improper barriers to voting and to having their vote not be improperly and deliberately diluted into meaninglessness in federal, state and local legislative elections.  Hey, Obama won, didn’t he?!

Which, as I said in my earlier post, raises the obvious question in Fisher of why the white UT applicants can’t just use their political power to have the legislature change the college-admissions statute.  Unless, of course, the parents of white upper-middle-class high school students (which is what plaintiff Abigail Fisher was) have less political power in Texas than African Americans do.

Kennedy suggested during the Shelby County argument that states and localities could honor the fact of their history of racial discrimination by, say, erecting a statue of a pre-civil-rights-era black citizen who was known to have been improperly denied access to the polls.  I suggested in my AB post that that could work as the solution in Fisher, too: a statue of Abigail Fisher, along with an explanatory metal placard, in the UT’s quad.

I said at the time that I thought it was poetic justice that Fisher and Shelby County were being decided in the same Court term.  The poetry, if not the justice, will become apparent, I’m pretty darn sure, when the opinion in Shelby County is released.  Probably tomorrow, probably along with the two same-sex-marriage opinions, probably to be drowned in news coverage by the tsunami of reportage and commentary on the latter cases.

Will I be humbly eating some of these words tomorrow?  We’ll see.  I mean, you never know.  Maybe Kennedy doesn’t read Angry Bear, after all.

UPDATE: SCOTUSblog’s Lyle Denniston just posted an indepth summary and analysis of Fisher, here.

*Originally, this sentence read, “That about sums it up, and I’m not surprised, either at the result or that it took an unusually long time for the issuance of the opinion; the case was argued in the first week of the Court’s term in early October.”  I have not yet read the opinion (and probably won’t do so today), and was relying on the very early reports about it.  But I’ve amended that sentence in light of Lyle Denniston’s detailed article.  The bottom line, I think, is that the likely substance of the  impending 5-4 opinion in Shelby County saved affirmative action, for now, to the extent that Fisher did save affirmative action.

SECOND UPDATE: Here’s NYT Supreme Court correspondent Adam Liptak’s take on Fisher. He points out that the opinion is brief.  Just think of all that time these folks wasted in writing the original, pre-Shelby-County-argument, drafts of the opinion, the concurrences and dissents.  Time that the justices could have used instead to give a few more speeches at law schools and nonprofit organizations during their many, many, many fall, winter and spring breaks, some of them several weeks’ duration.  Their part-time job is exhausting, I realize, and they could have used the additional diversion (and speaking fees and junkets).  Oh, well.  Maybe next year, when there’s another affirmative action case on the Court’s docket.

THIRD UPDATE: **Originally, that sentence said that one key section, Section 5, of the VRA was at issue, and did not mention Section 4.  The Court issued its 5-4 opinion, written by Roberts, a few minutes ago, and SCOTUSblog says the opinion strikes down Section 4 but says the court makes no ruling on Section 5, and that Ginsburg says in her dissent that the striking down of Section 4 renders Section 5 dormant.  Section 5 is the section that requires certain states, counties and localities to first “pre-clearance” from a federal court or from the Justice Dept. before altering voting districts or other access-to-the-polls and weight-of-a-vote matters.  Section 4 is the section that creates the formula for determining which states, counties and localities are subject to the Section 5 pre-clearance requirement.

The effect of striking down Section 4 is to nullify Section 5 until Congress enacts a new formula to replace the now-void Section 4 one. Or until hell freezes over.  Whichever comes first.

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