I’m in an absolute haze from a summer cold that popped up yesterday and sent me directly to bed. I’m trying to write and work right now but it’s not easy at all. I want to try to discuss a lot of upcoming things that will be important including the SCOTUS decision on the Texas Trap laws regarding abortion and abortion clinics. These law certainly create an undue burden and they reflect specific religious view rather than medical or biological science. Here’s a few reads to prepare us all because it’s important for all of us to understand this basic constitutional right.
Abortion opponents regularly talk as though no restriction is off the table when it comes to stripping away reproductive rights. And supporters of abortion rights don’t always set them straight. If we don’t know what our established rights are, we can’t defend them. Pro-choicers need to know why abortion is a constitutional right and what boundaries the U.S. Supreme Court has set out to protect it.
1. Abortion is protected by the rights to bodily integrity and to make decisions about family. The Court explained that decades ago.
The 14th Amendment prohibits states from depriving a person of liberty without due process of law. A person has the right to end a pregnancy without undue interference from the government because that right to liberty includes (1) the right to make decisions about family and (2) the right to bodily integrity.
However, in order to portray abortion rights as illegitimate, conservatives like to argue—inaccurately—that the Court legalized abortion in Roe v. Wade by inventing a right to privacy that is not grounded in the Constitution’s actual text.
In the pre-Roe contraception case Griswold v. Connecticut (1965), the Court did hold that “penumbras, formed by emanations” or various interpretations of the First, Third, Fourth, Fifth, and Ninth Amendments protect a right to privacy. But in deciding Roe, the Warren court located the right to privacy in the 14th Amendment’s explicit protection of the right to liberty. Regardless, the Court’s understanding of the rights that protect reproductive freedom expanded beyond just privacy decades ago.
Privacy is barely mentioned in Planned Parenthood v. Casey, which established the current law governing abortion rights more than 20 years ago. “The controlling word in the cases before us is ‘liberty,’” the decision explained. It was settled law prior to Roe that liberty includes “the right to make family decisions and the right to physical autonomy.”
Privacy is also a constitutional right, and it was indeed violated by the laws at issue in Roe and its companion case,Doe v. Bolton. Those laws required a woman seeking an abortion to share her reasons for wanting the procedure with legal or medical authorities to have any hope of receiving legal abortion care. However, the law and discourse around privacy at the time of Roe implied a woman should be permitted to use contraception or end a pregnancy because the state should not interfere in decisions made in secret with the permission of her doctor, husband, father, pastor, or others. Casey instead properly recognized that the 14th Amendment protects a person’s right to control her body and destiny.
So why has the idea persisted that all we’ve got is a privacy right made up out of thin air? A counterintuitive and less textually based right serves abortion opponents, but abortion rights advocates also have a history of telling us abortion restrictions are primarily a threat to privacy. As William Saletan documented in Bearing Right: How Conservatives Won the War on Abortion, in the run-up to Casey, pro-choice leaders emphasized privacy on the advice of pollsters and political consultants to appeal to anti-government, anti-welfare, anti-tax, and anti-integration sentiments. While reproductive rights lawyers argued to the Supreme Court that the Constitution’s protection of autonomy, bodily integrity, and equality protected abortion access, outside of court pro-choice leaders told the public the right at stake was privacy. But, ultimately, the Casey decision provided a much fuller discussion of why abortion is constitutionally protected by rights beyond privacy.
Abortion is protected by the due process clauses of the Fifth Amendment (which restricts the federal government) and the 14th Amendment (which was added to the Constitution to restrict the states). As Casey explained, “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Using the force of law to compel a person to use her body against her will to bring a pregnancy to term is a violation of her physical autonomy and decisional freedom—which the Constitution does not allow.
Follow the link to read about the other two basic rights that include:” 2. Any pre-viability ban is unconstitutional. Period.” and “3. Casey‘s “undue burden” standard is a meaningful protection of abortion rights when courts apply it properly.”
There’s no doubt that the Texas Trap Law creates an “undue” burden. Clinic closures have left the few remaining clinics overwhelmed.
The war on abortion access in Texas has already fundamentally shifted the landscape of women’s lives in the state. Now, the fallout continues: The closure of Planned Parenthood (PP) clinics in the state—which once served as primary sources of reproductive health care for women there—has left the few clinics remaining in west Texas underfunded, understaffed, and overwhelmed by demand.
According to new research, 60 percent of women receiving a low salary who were of reproductive age accessed health care through PP before the cuts and defunding which took place in 2013. The majority of those patients have since been directed to Texas Tech University and Midland County Health Services (MCHS) after PP’s clinics in west Texas closed—increasing demand at an overwhelming rate for their capacity to provide services.
“There are women [who] need these services but can’t afford them and we see as many as we can,” Michael Austin, director of MCHS, told Women’s Health Policy Report. “But the state program to help these folks along has basically evaporated. So I’m afraid there are probably a lot of folks flying under the radar who need care and aren’t getting it.” Austin pointed to the challenges of seeking funding in a state that has “eliminated or severely messed up” many of their programs which provide reproductive health care to women.
In 2011, the Texas State Assembly passed legislation which blocked funding to women’s health clinics, including Planned Parenthood, and cut the state’s family planning budget by two-thirds. Two years later, the draconian anti-abortion bill known as HB2 was signed into law by Governor Rick Perry, putting in place numerous obstacles meant to shutter clinics and restrict women’s access to safe and legal abortion. HB2 requires that abortion providers have admitting privileges at a local hospital and clinics are licensed ambulatory centers. It also bans surgical abortion after 20 weeks and medication abortion after seven. (Medication abortion is the most cost- and time-effective abortion procedure.)
HB2’s impact was immediate and drastic. 82 percent of family planning clinics closed. The number of abortion practitioners decreased by over 75 percent. Over half of the clinics performing abortion closed, which in turn drastically increased the time it would take for women to make an appointment to 28 days— essentially rendering the option of medication abortion moot. When it comes to clinics, Texas is in crisis.
The Supreme Court has declined to hear the Connecticut law banning assault weapon as well as the challenge to other state laws. This leaves the bans in place.
SCOTUS will look at certain key rights of jailed inmates that have illegal immigration status.
The Supreme Court announced Monday that it will take up a case exploring when immigrants detained solely for immigration violations have the right to be released from jail.
The justices agreed to consider a federal appeals court decision that essentially found detained immigrants were entitled to a bond hearing after six months in custody and every six months thereafter.
The high court’s announcement comes as immigrant rights advocates are awaiting a Supreme Court decision on the legality of President Barack Obama’s executive actions granting quasi-legal status and work permits to millions of immigrants who entered or stayed in the U.S. illegally.
In that case, the Obama administration is aligned with most immigrants rights groups. However, in the case the court said Monday that it would take up, the Obama administration is pressing for fewer rights for detained immigrants. In fact, the administration is asking the justices to overturn the 9th Circuit Court of Appeals ruling that found immigrants have the right to regular review of their detention.
The newly-accepted case, Jennings v. Rodriguez, could also explore when immigrants accused of ties to terrorism have to be released if authorities are having difficulty deporting them.
SCOTUS blog has some basic information on the remaining cases in the docket. Here’s a few of the remaining 13.
Between tomorrow morning, when the Justices will take the bench at ten o’clock, and the end of June, the Court is expected to issue thirteen rulings in cases involving everything from tribal-court jurisdiction to abortion, immigration, and the scope of federal laws prohibiting political corruption. Here are summaries of each pending case:
Dollar General Stores v. Mississippi Band of Choctaw Indians (argued December 7, 2015). This case stems from accusations by a thirteen-year-old member of the tribe that a manager at a Dollar General store within the tribe’s reservation had sexually molested him while the boy was interning at the store. The child and his parents filed a lawsuit against the manager and the store in tribal court, arguing that the store was liable for the manager’s conduct. The issue before the Court is whether the tribal court has jurisdiction over tort claims against defendants, like Dollar General, who are not members of the tribe.
Fisher v. University of Texas at Austin (argued December 9, 2015). This case, a challenge to the university’s consideration of race in its undergraduate admissions process, is on its second trip to the Court. In 2013, the Court sent the case back to the lower courts for a more critical look at whether the university really needed to consider race to achieve a diverse student body. After the Fifth Circuit once again upheld the policy, the Court agreed to weigh in. Unlike some of the Court’s other high-profile cases this Term, no one expects the Court to deadlock: Justice Elena Kagan is not participating, which in the wake of Justice Antonin Scalia’s death leaves the Court with just seven Justices to decide the case.
Utah v. Strieff (argued February 22, 2016). When a police officer stops a pedestrian in violation of the law, asks him for identification, discovers that there is a traffic warrant for his arrest, arrests him, and in the process of searching him discovers drug paraphernalia and methamphetamines, can the evidence found in the search of the pedestrian be used against him? Edward Strieff argues that it cannot: because the police officer’s stop was illegal, then anything obtained as a result of the stop is also tainted. The state, on the other hand, contends that the evidence should be admitted because it resulted from the lawful warrant for his arrest, rather than the illegal stop.
Taylor v. United States (argued February 23, 2016). The petitioner in this case, David Taylor, was part of a Virginia gang that robbed drug dealers. The two robberies that led to this case, however, did not yield any drugs – only cellphones, jewelry, and a small amount of money. Taylor was indicted on federal charges that he had violated the Hobbs Act, which punishes robberies and extortion but applies only when the defendant “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.” The question before the Court is whether the federal government is required to prove facts to show that the defendant’s conduct actually affects commerce.
Voisine v. United States (argued February 29, 2016). Stephen Voisine and William Armstrong, the other petitioner in this case, both pleaded guilty in state court to misdemeanor assaults on their respective domestic partners. Several years later, each man was charged with violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence. Voisine and Armstrong contend their state convictions do not automatically qualify as misdemeanor crimes of domestic violence because the state-law provisions can be violated by conduct that is merely reckless, rather than intentional.
Whole Woman’s Health v. Hellerstedt (argued March 2, 2016). This is a challenge to the constitutionality of two provisions of a Texas law regulating abortion in that state. One provision requires doctors who perform abortions to have privileges to admit patients to a local hospital; the other requires abortion clinics to have facilities that are comparable to outpatient surgical centers. Texas contends that these new laws are constitutional because they were intended to protect women’s health, while the challengers argue that the law was actually intended to close most clinics and therefore limit women’s access to abortions.
RJR Nabisco v. The European Community (argued March 21, 2016). The issue in this case is whether and to what extent the Racketeer Influenced and Corrupt Organizations Act (RICO), a 1970 law that was originally enacted to target organized crime, applies outside the United States. The European Community filed a lawsuit in the United States, seeking to hold RJR liable for what it says is the company’s role in an international money-laundering plot that harmed European countries. RJR counters that nothing in the law suggests that Congress intended it to apply to a situation like this. Justice Samuel Alito is almost certainly writing the Court’s opinion in this case, because he is the only Justice who has not yet written for the Court’s March sitting; based on the oral argument, that could bode well for RJR.
United States v. Texas (argued April 18, 2016). This case is a challenge to an Obama administration policy, announced in November 2014, that would allow some undocumented immigrants to apply to stay in the country and work legally for three years. Before the policy could go into effect, Texas and a large group of other states went to court to block its implementation, arguing that the administration lacks the authority to issue a policy like this. But before the Supreme Court can weigh in on that question, it will also have to agree that the states have the legal right, known as “standing,” to challenge the policy at all; the lower courts ruled that they did, because at least Texas would incur additional costs from the undocumented immigrants who would become eligible for driver’s licenses if the policy goes into effect.
Birchfield v. North Dakota (argued April 20, 2016). Twelve states and the National Park Service impose criminal penalties on suspected drunk drivers who refuse to submit to testing to measure their blood-alcohol levels. The question before the Court is whether those penalties violate the Fourth Amendment, which only allows police to “search” someone if they have a warrant or one of a handful of exceptions to the warrant requirement applies. Three drivers from North Dakota and Minnesota argue that neither of those conditions is met, and so the laws must fall.
Encino Motorcars v. Navarro (argued April 20, 2016). This case requires the Court to weigh in on the interpretation of the Fair Labor Standards Act, which generally requires employers to pay overtime to employees who work for more than forty hours in a week but also contains a variety of exceptions – including for a salesman whose primary job is selling or servicing cars. The respondents in this case are service advisors at a car dealership, who argue that they are not included in the exemption and are therefore entitled to overtime.
You can check out the rest on the link to SCOTUS blog. So, there’s a lot of interesting things coming down the pipe. We’ll definitely be following a lot of them.
There’s one piece of SCOTUS gossip that you might be interested in today. Check out this lede by David Badash: “DC Insider Report SCOTUS Justice Clarence Thomas Thinking of Retiring Throws Twitter Into Frenzy.”
The Washington Examiner Sunday afternoon posted a piece by DC insider columnist Paul Bedard that claims uber-conservative Supreme Court Justice Clarence Thomas “is mulling retirement after the presidential election, according to court watchers.” Those “court watchers” of course are unnamed, so the actual source of the claim is unknown.
It could be true, it could be false, but the implications of course are tremendous. Assuming Republicans in the Senate successfully keeps their vow to not confirm any SCOTUS justice nominated by President Obama, and wait until the next president takes office, this would mean the next president would automatically nominate not one but two justices to the nation’s top court, controlling its destiny for decades.
So naturally, Clarence Thomas began trending on Twitter.
Follow the link for the Twitter Frenzy.
What’s on your reading and blogging list today?
h/t to Delphyne
If you’re celebrating St. Patrick’s Day, have a good one!
I’m illustrating this post with portraits of unsmiling women by Amadeo Modigliani. Why, you may ask? It’s just a little symbolic protest of the constant barrage of “instructions” from the media on how Hillary Clinton should behave.
For months we’ve been hearing from various male commentators–and even from her very loud male opponent–that Hillary needs to stop “shouting.” As Lawrence O’Donnell condescendingly explained, with help from Chris Matthews, “the microphone works.” Hillary should speak more softly and modulate her “tone.” She’s not being “ladylike” enough for them.
Tsk tsk tsk
On Tuesday after Hillary swept five Democratic primaries, Howard Kurtz offered this:
Glenn Thrush agreed.
Britt Hume thought she looked angry.
And then there was Joe Scarborough:
Each of these men was resoundingly mocked on Twitter, but not one of them apologized. Instead they were defensive. They complained about being attacked for their helpful advice and provided examples of various negative things they had written about male candidates’ speeches. They refused to listen to women who tried to explain to them why such unsolicited advice is sexist. You can check out their timelines to read more.
Every woman has experienced this kind of “constructive criticism” again again. It’s not helpful, and refusing to listen to women explain why is also sexist. Some examples at Vogue.
Samantha Bee had a great response. She tweeted a photo of herself frowning into the camera and asked for responses. Lots of other women tweeted back unsmiling selfies. Click on the link to go to Mediaite and see some of the responses.
Connie Shultz at The National Memo: Hey, Hillary: Smile, Girl.
You know, the world would be a happier place if a girl would just smile more.
Just ask the guys on Twitter.Now, by “girl,” I mean a former U.S. senator and secretary of state who is likely to be the first female president of these allegedly united states.
As for “the world,” let’s narrow it down. We’re talking mean men who apparently spend much of their day breathing into paper bags because they’re not even allowed to ask a secretary to grab them a cuppa joe anymore without someone from HR signing them up for diversity training.
What? No more office wife? Evidence of hell in a handbasket right there. Just ask them.
So now we’ve got this Hillary woman going all presidential on us. She’s everywhere. Giving speeches. Declaring victories. Starring in one town hall after another. How much suffering must a good ol’ boy endure? ….
Some men hear what they want to hear, and too many men don’t want to hear from women at all. This is an unhappy century for them, and it’s only going to get worse. One grandmother barreling her way toward the presidency is bound to work up all kinds of other women who’ve had it up to here with the catcall mentality of men who measure our worth by our ability to make them feel better about their limited view of us.
Much more at the link.
Of course the advice about smiling and speaking in a softer tone are only the beginning of the unsolicited advice pundits have for Hillary.
Tuesday night, those who were lucky enough to be watching their primary coverage on MSNBC were treated to what may be a record-setter in scorching hot takes, courtesy of, who else, Chris Matthews. “I do think if you could ever find a way to put a ticket together that would actually end some of this mishegoss, to use a Yiddish word,” Matthews spun out before coughing up, and you could feel this coming, that he’d like to see Hillary Clinton pick John Kasich as her running mate“If Hillary Clinton were smart,” Matthews said, with a certainty that is unique to men discrediting the intelligence of women who are, in reality, much smarter than they are, “she’d make herself the alternative” for Republicans who don’t want to vote for Trump by putting Kasich on her ticket.“Of course, this doesn’t happen in American politics,” he added wistfully, “because American politics is so free of wonder anymore. It’s so predictable.”Yes, he said this during the administration of the first black president, during a campaign that pits the first major party female candidate against a reality TV star who is winning his party’s nomination against the party leaders’ wills and while running a fascism-reminiscient campaign. But what we really need to get out of the doldrums is for a liberal Democrat to pick a running mate that stands against everything she and her party stand for.
Read the rest at Salon.
Of course the big news is President Obama’s Supreme Court pick of Merrick Garland. JJ covered it thoroughly yesterday. Today the pundits are speculating about why Obama picked an “old white guy” instead of making a “truly progressive” choice. Of course Merrick is Jewish, so he would add to the diversity of a court that is packed with right win Catholics. Forward.com:
Merrick Garland grew up Jewish in Chicago suburbs of Skokie, worked his way to Harvard Law School and investigated the Oklahoma City bombing as a federal prosecutor.
The “mensch” of a jurist with a most un-Jewish sounding name and a sterling reputation for fairness won a coveted spot on the Washington D.C. court of appeals and rose to lead that prestigious court.
After twice being passed over for the Supreme Court, he is now aiming to become an unprecedented fourth Jew on the nine-member top court.
“He’s a total mensch,” said Jay Michaelson, a Forward columnist who once clerked for Garland. “He really wanted to get the law right.”
Garland’s first cousin, Marty Shukert, an urban designer in Omaha, Nebraska, said it was “almost dreamlike” to see Garland nominated by President Obama.
Garland called the nomination “the greatest honor of my life,” in a carefully scripted roll-out to the nation.
Recounting his Jewish family’s battle with persecution, Garland made an emotional pitch for the job he has coveted for decades.
“My grandparents left the Pale of Settlement…in the early 1900’s, fleeing anti-Semitism and hoping to make a better life for their children in America,” Garland told reporters in the Rose Garden, flanked by President Obama and Vice President Joe Biden.
As the headline of the story says, Garland seems like a real “mensch.”
Josh Lederman at the AP: Analysis: Obama Dares GOP to Let Clinton, Trump Pick Justice.
By nominating an uncontroversial 63-year-old judge, President Barack Obama handed Republicans an unwelcome election-year proposition: Give in or risk letting Hillary Clinton or Donald Trump pick a Supreme Court justice the GOP might like even less.
Obama’s selection of appellate judge Merrick Garland landed with a bang the morning after primaries in Florida, Ohio and other key states made clear that Clinton and Trump will be their parties’ presidential candidates, barring extraordinary circumstances. Obama described Garland as an evenhanded consensus-builder, all but daring Republicans to block him and face uncertain consequences from voters.
Republican leaders dug in on their insistence that the next president get to choose the replacement for the late Antonin Scalia, the influential conservative and high court’s most provocative member. Senate Majority Leader Mitch McConnell called it “an issue where we can’t agree.” ….
Republicans loathe Clinton, but they recognize that if she wins the presidency, she could nominate someone far more liberal than Garland, who’s regarded as a centrist. At the same time, the GOP establishment is extremely wary of the unpredictable Trump and desperate for an alternative.
A Democratic victory at the presidential level could be accompanied by a return of the Senate to Democratic control, further complicating Republicans’ ability to prevent Democrats from getting their way. Republicans are fighting their toughest Senate races this year in states like New Hampshire, Wisconsin and Illinois where Democrats are hoping independent-minded voters will be turned off by the GOP’s hardline position.
Brian Beutler calls Garland an “old white guy” and opines that Obama isn’t playing 11 dimensional chess. He just made a mistake in not choosing someone who would make all the progs happy.
Did you hear about the story that PBS News ran about the Tilly family, first-time voters working for Trump in North Carolina? Please go to the link and watch it. PBS did not notice that a woman they featured prominently while she phone-banked for Trump had white supremacist tattoos all over her arms and hands. Gawker did notice. Here’s a photo of Grace Tilly.
From the Gawker story:
Above, you see Grace phone banking for Donald Trump, with the Celtic Cross tattoo on her right hand. Despite the tattoo being in plain view of PBS’ cameras, the story never acknowledges that it is interviewing a walking white power billboard. The Anti-Defamation League explains that the Celtic Cross is one of the most “commonly used white supremacist symbols.” Mark Pitcavage, senior research fellow at the ADL, tells me:
The Celtic Cross is an ancient and revered Christian symbol typically not associated with extremism at all. However, one particular version of the Celtic Cross—a squarish cross with a thick circle intersecting with it (also known as Odin’s Cross), has become one of the most popular white supremacist symbols around. In the past 20 years, its popularity has done little but grow, thanks to its use as the logo by Stormfront, the largest white supremacist website in the world.
And on her hand, Grace has a large tattoo that reads “88,” which according to ADL is “code for Heil Hitler.” See that photo at Gawker. So far, PBS has reacted to the Gawker story.
On Tuesday night we learned that the Sanders Campaign plans to try to convince superdelegates to vote for him at the Democratic convention. Yesterday they announced plans to poach delegates that are pledged to vote for Clinton. It’s hard to remember now that only a couple of months ago, Sanders was supposedly running a clean, positive campaign. Time reports on a call with reporters hosted by camapaign manager Jeff Weaver, Sanders’ and strategist Tad Devine:
Although the Democratic pledged delegates are bound to a particular candidate based on state Democratic votes, Sanders senior strategist Tad Devine suggested there is some leeway there. Devine pointed to the Carter campaigns 1980 victory and their worry about holding onto pledged delegates. The Carter campaign was “deeply concerned about the defection of pledged delegates” to Ted Kennedy, Devine said.
“My point is that a frontrunner in a process like this needs to continue to win if you want to keep hold of delegates,” Devine continued. When pressed by a reporter, Devine said there was no plan “at the moment” to try to sway pledged delegates.
Weaver said that Sanders is doing Clinton a favor by staying in the race–because Bernie will protect poor fragile Hillary from Donald Trump.
“Were this contest to end, you know, by Secretary Clinton, or us getting out—certainly if the Secretary were still in the race, she could expect months and months and months of immediate, and vicious, and very personal attacks from the Trump people,” Weaver said. “So I don’t know if that’s necessarily healthy for her.”
WTF?! The people who said all along that the superdelegate process is undemocratic now want to win with their votes? And on top of that, they want to usurp the voters’ choices by stealing pledge delegates?
It’s just breathtaking. Here’s a great Greg Sargent interview with Hillary’s chief strategist Joel Benenson as an antidote: Hillary Clinton’s chief strategist: Sanders can’t win, and we’re ready to take down Trump. Read the whole thing at the WaPo.
What stories are you following today? Please post your thoughts and links in the comment thread and enjoy the rest of your Thursday.
There are more Supreme Court decisions out today on all kinds of things.I’m going to give you a brief description of the major ones. It’s hard to top the Marriage Equality ruling and the saving of tax credits for “Obamacare”. However, a few of them are just as important in their own right.
The U.S. Supreme Court refused to consider letting states require evidence of citizenship when people register to vote for federal elections, rejecting an appeal from Arizona and Kansas.
The rebuff is a victory for the Obama administration and voting- and minority-rights groups that battled the two states in court. It leaves intact a decision by a U.S. agency that blocked the states from requiring proof of citizenship for voters in federal elections.
It’s the second high court defeat on the issue for Arizona. The state has a law that requires evidence of citizenship, but the Supreme Court ruled in 2013 that it couldn’t be enforced when people use a standard registration document known as the “federal form” to register to vote for Congress and the president.
That 7-2 ruling left open the possibility that Arizona could impose its requirements through a different avenue. The court said the state could submit a request to the agency that developed the form, the U.S. Election Assistance Commission, asking it to tell Arizona voters they needed to supply proof of citizenship.
SCOTUS also struck down three provision of the various Three Strikes laws that were designed to penalize “career” criminals. Scalia wrote the majority opinion in this case.
While the country was busy celebrating the Supreme Court’s long-awaited marriage equality ruling, the justices issued another ruling in the Johnson v. United States case that dealt a crucial blow to the prison industrial complex. The SCOTUS ruled that a key provision of the Armed Career Criminal Act, which lengthens the sentences of “career criminals,” is unconstitutionally vague. The ruling paves the way for thousands of prisoners to have their sentences reduced and will cause the private prison industry to lose millions of dollars in profits.
In 1984, Congress passed the Armed Career Criminal Act (ACCA), the law required judges to sentence people to 15 years to life if they have three prior convictions for “serious drug offense” or “violent felonies.” However, what exactly qualified as a “violent felony” was frustratingly vague and was used as a sentence enhancer in many non-violent cases. A “residual clause” in the ACCA allowed third time felons to be sent to prison for any crime that ” presents a serious potential risk of physical injury to another.” That potential risk could include drunk driving, fleeing police, failing to report to a parole officer and even attempted burglary. It seemed to be used as a catch-all sentence enhancer for the sole purpose of throwing people in prison for years longer than they deserved to be. This practice has become increasingly more common as more states allow for-profit prisons in their states.
In the Johnson case, the government used the ACCA to enhance Samuel Johnson’s prison sentence because of a prior conviction of possession of a sawed off shotgun. Johnson argued that he shouldn’t be subjected to a harsher sentence, because the definition of what was considered “violent” was unconstitutionally vague. The SCOTUS agreed with Johnson and issued a 7-1 ruling in his favor.
Another finding allows independent panels to redistrict congressional and other political districts. This could be a key step to stopping the practice of gerrymandering. Arizona’s decision to let independent panels redistrict was declared constitutional.
By ruling that Arizona’s Independent Redistricting Commission is constitutional, the Supreme Court of the United States kicked plutocrat-loving Republicans in the gut. Justice Ruth Bader Ginsberg wrote the 5-4 majority opinion, joined by Justices Breyer, Kagan, Kennedy and Sotomayer.
The crux of the majority’s reasoning can be found in last paragraph of the ruling.
Our Declaration of Independence, drew from Locke in stating: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” And our fundamental instrument of government derives its authority from “We the People.” U. S. Const., Preamble. As this Court stated, quoting Hamilton: “[T]he true principle of a republic is, that the people should choose whom they please to govern them.” Powell v. McCormack, 395 U. S. 486, 540-541 (1969) (quoting 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876)). In this light, it would be perverse to interpret the term “Legislature” in the Elections Clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators’ ability to choose the district lines they run in, thereby advancing the prospect that Members of Congress will in fact be “chosen . . . by the People of the several States,”
Even though this case got much less attention from the media compared to the health care and marriage equality cases it is in some ways as important as the aforementioned cases. The reason is it will shape the meaning of vote equality in the years to come. Had the court ruled the other way, frankly, it would have removed the last real hope of stopping the Koch controlled Republicans from rigging elections in their favor.
In one disappointing decision, SCOTUS removed EPA limits on Air Pollution.
The US supreme court struck down new rules for America’s biggest air polluters on Monday, dealing a blow to the Obama administration’s efforts to set limits on the amount of mercury, arsenic and other toxins coal-fired power plants can spew into the air, lakes and rivers.
The 5-4 decision was a major setback to the Environmental Protection Agency (EPA), and could leave the agency more vulnerable to legal challenges from industry and Republican-led states to its other new carbon pollution rules.
The justices embraced the arguments from the industry and 21 Republican-led states that the EPA rules were prohibitively expensive and amounted to government overreach.
But the EPA pointed out that most plants had already either complied or made plans to comply with the ruling.
“EPA is disappointed that the court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance,” the agency said in a statement obtained by Reuters.
The EPA “remains committed to ensuring that appropriate standards are in place to protect the public from the significant amount of toxic emissions from coal and oil-fired electric utilities and continue reducing the toxic pollution from these facilities,” the agency added.
Monday’s decision, written by Justice Antonin Scalia, ruled that the EPA did not reasonably consider the cost factor when drafting the toxic air-pollution regulations.
The Clean Air Act had directed the EPA to create rules to regulate power plants for mercury and other toxic pollutants that were “appropriate and necessary”.
There’s some discussion in legal blogs about a possible softening of the Court in terms of it’s tendency to follow Scalia and Thomas to hard right conclusions. Are Kennedy and Roberts becoming more moderate or showing a bit more judicial restraint and temperament? Here’s some analysis by Tom Goldstein writing for SCOTUSBlog.
There is a lot of commentary about the unusually liberal results of this Term. I thought I would mention a few data points which back up that view of things.
For present purposes, I treat four Justices as sitting to the Court’s left: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. I treat four Justices as sitting to the Court’s right: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. I treat Justice Anthony Kennedy as the Court’s “center.”
I count 26 cases this Term that were both close (5-4 or 6-3) and ideological (in the sense that they broke down principally on ideological lines, with ideology seemingly an important factor).
Of the 26 cases, the left prevailed in 19. Those included the first 9 of the Term. The right prevailed in 7.
In the 26, a Justice on the left voted with the right a total of 3 times. In 2 cases, those votes determined the outcome and produced a more conservative result, because Justice Kennedy or one of the conservatives voted for the more liberal result.
In the 26, a Justice on the right voted with the left 14 times. In 6 cases, those votes determined the outcome and produced a more liberal result, because Justice Kennedy voted for the more conservative result.
I also considered the 10 cases I consider most significant. Of those, the left prevailed in 8. Those included the first 7 of the Term. (I mention the early cases to give a sense of how the results must have appeared inside the Court as the Term went along.) The right prevailed in 2, both in the final sitting of the Term.
In the 10, no Justice on the left voted with the right; the four Justices on the left voted together in every one of those cases. A Justice on the right voted with the left 4 times. Those votes determined the outcome in 2 cases, because Justice Kennedy voted for the more conservative result.
Note that the analysis above is skewed against finding the Term particularly liberal by treating Justice Kennedy as the Court’s “center.” That is true ideologically, but he is certainly a conservative. If he were characterized that way for my analysis, the number of defections to the left would be much higher.
By that measure, a Justice on the right voted with the left 25 times (compared with 3 times the reverse happened). That occurred in all 10 of the 10 major cases (because no Justice on the left voted with the right in any of those cases), and determined the outcome in all of them.
Real Clear Politics also had a take on this. It’s obviously an interesting question to ask given the current hissy fits happening with in movement conservatives who are calling for the essential overthrow of the current court since a few decisions did not go their way.
Conservatives were disheartened by the Court’s rulings Thursday in King v. Burwell and Texas Department of Housing and Community Affairs v. The Inclusive Project. They probably will be disheartened if the Court rules that gay marriage is a constitutional right, which seems likely. I suspect I got the authorship of the Arizona redistricting commission case wrong in my Supreme Court Bingoarticle: the opinion assignments make more sense if Justice Kennedy lost his majority in Din, which would suggest Justice Ginsburg is writing the redistricting commission opinion. That means conservatives may well be disappointed in the outcome of that opinion as well.
Unsurprisingly, conservatives are up in arms about the supposed “selling out” from Chief Justice John Roberts. Their reaction is something along the lines of Obi-Wan’s final words (from Obi-Wan’s point of view) to Anakin Skywalker: “You were the chosen one! It was said that you would destroy the Sith, not join them!”
plenty of today’s “liberal” decisions would have been considered downright reactionary in the 1960s (or 1970s). Consider the NFIB case, which upheld Obamacare in 2012, while finding that the individual mandate could not be supported by the commerce power. Until 1995, many scholars believed that the Commerce Clause had all but given Congress a general police power; the Lopez decision, which placed the first limits on congressional power in 60 years, was on the outer fringes of even conservative legal theory. NFIB actually reinforces, and to a certain extent expands that decision.
This says nothing of the Court’s holding that there are real limits to the spending clause, which garnered the votes of seven justices. I’m not sure there would have been more than one or two votes for this in the 1960s. By the standards of the 1970s, NFIB was a radically conservative decision, even when the substantive outcome is taken into account. By the standards of, say, the 1920s on the other hand, this was a radically liberal opinion, insofar as it accepts the basic New Deal framework (that there is at least one justice who is prepared to jettison that framework entirely shows just how far to the right the Court has gone).
Or consider the opinion validating Obamacare’s subsidies. While the plaintiffs’ theory of the case was perfectly plausible under current statutory interpretation principles (enough so that several Democratic-appointed lower court judges were cautious when ruling against plaintiffs), it also represented something of a reductio ad absurdum of textualism. If we were to have a debate over textualism in, say, the 1970s, one can imagine a purposivist asking, “So what if there is an obvious drafting error in a section that threatens an entire massive statute? What then?” The fact that conservatives expect the Court to go “full textualist” even in that circumstance – and that even liberal scholars like Abbe Gluck accept the basic textualist framework – again shows how far the debate has moved in the past 30 years.
What about the redistricting commission case? Assuming conservatives lose this one, it’s worth remembering that this position on the elections clause only had the support of three members of the Court in 2000 (when a similar argument was raised in Bush v. Gore); Justices Kennedy and O’Connor avoided the issue and may well have been against it. So even a 6-3 ruling against conservatives here would probably reveal no net shift in the positioning of the Court over the past 15 years. It is just that the expectations for conservatives have shifted.
One more case is worth discussing. This one will be in the works. “The Supreme Court on Monday agreed to consider whether the University of Texas’s race-conscious admissions plan is constitutional.”
Two years ago, the court voted 7 to 1 to send the plan back for further judicial view and told the lower court to apply the kind of rigorous evaluation that must accompany any government action that considers race.
“Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice,” Justice Anthony M. Kennedy wrote.
This will be another interesting case to watch.
What’s on your reading and blogging list today?
I hope that everyone is enjoying the last couple of days, the decision is not the final say in the matter of GLBT issues, but it is a damn big deal….There are a few states holding out, and refusing to grant licenses and perform marriages to same sex couples.
The hate filled rhetoric is strong in some areas, like here in Banjoville. Add to this tension, the anger over taking away these right-wing christian racist asshole flags of confederate heritage, with a dose of Obamacare is a-go from last week, and you got yourself a power keg waiting to explode. It is frightening, the hate I am seeing. These people mean business.
I think things are going to get worse, did you see this? Who’s burning black churches? Arsonists hit at least 3 Southern congregations in the last 7 days
ur black churches burned overnight this week, and at least three have been attributed to arson.
Last week’s shooting at Charleston’s Emanuel AME was perhaps the deadliest attackon a black church since the 1963 church bombing by the Klan in Birmingham, Alabama that killed four children. Since then, another specter from America’s violent racist history is again rearing its head – setting black churches ablaze.
At least three have been intentionally set on fire in recent days, according to a surveyof news reports compiled by the Daily Kos.
On Tuesday, God’s Power Church of Christ in Georgia was intentionally set on fire, authorities told ABC News. Electronics and other equipment were also stolen in early morning fire. Authorities told reporters there is “no evidence” of a hate crime.
On Wednesday, Briar Creek Baptist Church in North Carolina burned in the middle of the night, causing $250,000 in damage, NBC News reports. Authorities are investigating whether the blaze was a hate crime. It took 75 firefighters to bring it under control.
On Friday, Glover Grove Missionary Baptist Church in South Carolina, was virtually destroyed in an overnight blaze, the Aiken Standard reports. While the cause of the fire is still under investigation, the FBI has been called in.
Another blaze on Friday morning in Florida at predominantly-black Greater Miracle Apostolic Holiness Church caused $700,000 in damage. The fire is under investigation but fire officials believe it to be accidental, the Tallahassee Democrat reports.
Burning black churches has historical significance that harkens back to the civil rights era, according to the Atlanta Black Star.
“From slavery and the days of Jim Crow through the civil rights movement and beyond, white supremacists have targeted the Black church because of its importance as a pillar of the Black community, the center for leadership and institution building, education, social and political development and organizing to fight oppression,” David Love writes.
The Ku Klux Klan has ramped up recruiting activity in the days since the Charleston shooting. Residents in California, Kansas, Alabama, Mississippi, Florida, and Georgia woke last weekend to find bags in their lawns filled with candy and Klan flyers seeking new members.
Oh and they will find plenty of eager members.
One of the shadowy figures who appears to have influenced alleged Charleston killer Dylann Roof is Harold Covington, the founder of a white separatist movement and, within supremacist circles, an influential sci-fi author. Covington, the latest in a long line of rightwing sci-fi writers, has been linked to racist crimes in the past and this week called the massacre “a preview of coming attractions”.
The racist manifesto and photos apparently posted by Roof makes mention of the Northwest Front, created by Covington, a former member of the American Nazi party who traveled to South Africa and Rhodesia in order to agitate for white power. In the accompanying photos, Roof wore patches with Rhodesian and apartheid-era South African flags on them.
Covington, if you believe his website, runs a growing enclave of white supremacists near Seattle called the Northwest Front. The non-profit group is reflected in a series of sci-fi novels, authored by Covington, about a dystopian future in which a white nation is the only answer to US economic and racial woes.
Days after appearing on CNN and calling efforts to remove the Confederate battle flag from state grounds an act of “cultural genocide,” League of the South state chairman Pat Hines went on Alan Colmes‘ Fox News radio program and celebrated the 150-year-old assassination of President Abraham Lincoln.
Transcript of the exchange below, via:
COLMES: Now the League Of The South in April had an event celebrating the assassination of President Lincoln.
HINES: That’s right.
COLMES: You support that?
HINES: Yes I do.
HINES: He was the most murderous, treasonous President that ever existed.
COLMES: So you honor the actions of John Wilkes Booth?
HINES: John Wilkes Booth was a Confederate agent, who sadly, he didn’t fulfill his mission for almost 2 1/2 years. But he was assigned to kill Lincoln. And it’s too bad that he took as long as he did to do it.
COLMES: You’re upset that it took John Wilkes Booth as long as it did to kill Abraham Lincoln?
COLMES: Why would you favor the assassination of an American President?
HINES: Well he was an United States President. Well, he was Commander-in-Chief, which makes him a legitimate target immediately.
COLMES: Is any Commander-in-Chief a legitimate target?
HINES: Well they are.
But you know that this Council of Conservative Citizens has donated thousands to the campaigns of GOP politicians…‘Supremacist’ Earl Holt III and his donations to Republicans – The Washington Post
News came Monday that Holt had donated about $65,000 over the years to Republican campaign funds. He gave about $25,000 to Republican candidates in 2012 including former senator Rick Santorum (Pa.) and Sens. Ted Cruz (Tex.) and Rand Paul (Ky.).
These people are giving the money away to charity, etc.:
Four presidential hopefuls are among 23 Republicans who have given up more than $36,000 in campaign contributions from the leader of a white nationalist group said to have influenced the Charleston church shooting suspect Dylann Roof.
Scott Walker, Rand Paul, Ted Cruz and Rick Santorum led a GOP group spanning Congress and statehouses who said they would donate to charity or return money from Earl Holt, following the publication of a Guardian article on Sunday.
Many other Republicans who took money from Holt declined to comment on the contributions. Josh Mandel, Ohio’s state treasurer, said he would not return $1,500 Holt gave to his failed 2012 US Senate campaign, as it had been spent. Mandel’s campaign still has almost $50,000 in the bank.
Holt, the president of the Council of Conservative Citizens (CofCC), has contributed more than $74,000 to Republican candidates and committees in recent years, according to public filings, while making dozens of racist statements online.
…the CCC has become the largest white-supremacist group in the nation, according to some observers. Members have donated thousands of dollars to politicians; some national politicians have joined, and dozens have spoken to CCC meetings, often regretting it later. On Monday, Republicans around the country hastened to give back cash they’d received from the CCC’s president, Earl Holt III. Yet despite its size, influence, and unabashed espousal of white separatism, the CCC seems to often go unnoticed, surfacing mostly at times of high racial tension.
The CCC is now, according to the SPLC, the nation’s largest white nationalist group and at its peak boasted 15,000 members. Though the CCC is sometimes described as “thinly veiled” white supremacists or the like, that’s misleading—it makes little secret of its agenda. (Nonetheless, Ann Coulter has previously stepped forward to defend the group from the white-supremacy attack.) In a statement of principles, the group says:
We believe that the United States derives from and is an integral part of European civilization and the European people …. We also oppose all efforts to mix the races of mankind, to promote non-white races over the European-American people through so-called “affirmative action” and similar measures, to destroy or denigrate the European-American heritage, including the heritage of the Southern people, and to force the integration of the races.
New members also receive a pamphlet about Martin Luther King Day co-written by the late racist Senator Jesse Helms. The Anti-Defamation League collects other examples of ties to hate groups and extremists.
The group also maintains ties overseas; in 1998, according to the white supremacist site American Renaissance, a delegation from the group “had the pleasure of presenting Jean-Marie Le Pen with a Confederate flag that had flown over the South Carolina state capitol.” Le Pen founded France’s far-right National Front, but was recently suspended from the party by its current leader—his daughter—for remarks casting doubt on the Holocaust.
The CCC also prominently protested in 2000 when South Carolina lawmakers moved the Confederate battle flag from atop the statehouse—where it had flown since 1961—to a site elsewhere on the capitol grounds in Columbia.
And more cartoons for you.
Now for some other news links:
This is far disturbing to see:
Transit officers working for the Southeastern Pennsylvania Transportation Authority are under investigation after several of them were recorded by a cell phone pushing and shoving an African American man holding onto a baby for reportedly not paying his $2.25 fare.
According to WPVI, SEPTA officials say they are reviewing their policies and procedures after the video — recorded Thursday night — went viral, calling attention to the officer’s actions.
In the video, three transit police can be seen talking to the man as he stays seated in the car holding a very small child. After another officer arrives and handcuffs the man, he is escorted off the rail car and then can be seen being shoved against the wall with the baby still in his arms.
As bystanders attempt to intervene, more than a dozen officers descend upon the platform pushing the crowd back as one man yells , “He still has his daughter in his hands!” as the baby can be heard crying in the background.
Detroit police chasing a fleeing car decided it would be appropriate to continue the chase into a residential neighborhood. Due to their poor decision-making and inability to let a minor offense go, two small children died and three more were seriously injured.
On June 24, police were chasing what eyewitnesses believed to be a red Charger when they “tapped” the car on the rear bumper. That caused the red car to lose control, hitting and instantly killing Makiah Jackson, 3, and her six-year-old brother, Michaelangelo Jackson. Witness Alisha Jackson told the Voice Of Detroit:
“[The police] were right on their rear, the police car bumped their tail a little bit, and the car flew up in the air. There was no need for the police to be that close. I yelled ‘watch out!’ but it was too late. When the car hit them, both of them just looked at me. They screamed. It just keeps re-playing in my head. I ran down there, I yelled out their names, but they were gone. Makiah’s eyes were wide open, they died on impact.”
Police could have — SHOULD have — stopped right then. But even after this horrific scene, the chase continued onto another residential street. There, the red car crashed into a driveway, hitting three children. Darius Andrews, Jr., 3, Isaiah Williams, 5, and Zyaire Gardner, 7, were critically injured and a 22-year-old woman was also injured.
The car police were chasing was driven by a man who is on parole but neglected to report to his Parole Officer. Now, that’s certainly against the law and Lorenzo Harris should be held accountable. But to chase him into a residential neighborhood, where children are playing and families are out in their yards, is so irresponsible as to beggar belief. What the hell were they thinking? And to then continue to chase the car after two children were run down? Outrageous!
Detroit Police Chief James Craig must know that this is inexcusable because he is scrambling. He’s changed his story several times. First he said that the police in the car had suspended the chase after they “lost sight of the car.” Witnesses blew a hole in that lie. Then he said that a supervisor had ordered the chase to end. There is nothing documented to prove this. Then he said that Harris had a gun. Then he said he didn’t. The cops had “made eye contact” with Harris and a passenger and we all know that if a black man makes eye contact with a cop, that’s all she wrote. That cops will have compliance no matter what. Even if it kills small children.
What the hell….
More news stories:
Obama’s new pact provides legal rights to corporations that it does not extend to unions and public interest groups
Now that President Barack Obama’s landmark health care law has twice been upheld by the nation’s highest court, Georgia’s state and federal leaders are coming to the begrudging recognition that the legislation won’t be changed any time soon.
But the well-dug trenches remain unmoved: Most Democrats insist on a Medicaid expansion in the state as the only path forward. Most Republicans are determined to repeal the law.
Meanwhile, a small cadre of lawmakers hope that Georgia’s involvement in a controversial waiver program could provide a new, and less contentious, path forward to bring in more federal funding for health care.
In the wake of Thursday’s U.S. Supreme Court ruling to maintain health insurance tax credits in states such as Georgia that did not create their own exchanges, the political and policy status quo remained unmoved.
Gov. Nathan Deal and House Speaker David Ralston both signaled they don’t intend to step into what they see as a federal matter, and they called on Congress to give states more flexibility to use federal funding.
On the issue of Reproductive Rights:
There’s a little Easter egg in Friday’s marriage equality ruling that could have major repercussions for reproductive rights activists — if and when the Supreme Court takes up the issue of abortion again.
In his opinion for the majority, Justice Anthony Kennedy references the interplay of “personal choice” as it relates to same-sex marriage. But, in doing so, he also acknowledges the way individual autonomy relates to other life decisions, such as the right to use contraception or have a baby:
A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. …Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.
Let’s string some things together here: “choices concerning contraception…procreation, and childrearing…are protected by the Constitution.” It’s a single line, but it’s no throwaway — especially not in a SCOTUS decision that affirms equal access to happiness and control over one’s own life. It could set a precedent that’s invaluable to the fight to secure reproductive rights once and for all.
Oh if this could only be a good sign!
Check that link out…
The group, Women on Waves, flew the aircraft from Germany to highlight Poland’s restrictive laws against terminating pregnancies.
Waiting for the drone on the other side were two Polish women who took the pills, used to induce a miscarriage in the early stages of pregnancy.
Abortion was legal in Poland in the Communist era, but outlawed in most cases in 1993.
It is only permitted in cases of rape or incest, in cases of irreversible foetal malformation, or if the mother’s life is at risk.
On the interest of the mob:
And other newsy stories:
Over 150,000 people have been killed and millions more displaced in the region of Mindanao during the armed rebellion that has shaken up southern Philippines for over four decades.
But there is more to Mindanao than war. Weaving, a centuries-old tradition, has become a refuge for some women in the conflict-ridden community. Weaving has helped these women to heal their wounds as they say that the stories of their land are revealed in their patterns.
But challenges are making it more difficult for these women to continue their work. The skills are not being passed on to the younger generation, and women often lack the financial capacity to continue.
A three-metre long mat takes at least two months to make. The patterns are created individually, no pattern is the same. Made from pineapple and abaca fabrics, they are dyed using tree bark and herbal extracts.
Eugene Strong, from the department of Agriculture, told Al Jazeera that “materials are expensive, there are only a few weavers left, and there are only a few buyers as well”.
“For example, here in Basilan, the fabrics are expensive, so not a lot of people buy. We are now looking at where to market it and luckily we have people who help us in the industry.”
Asdinan Baladji is a weaver who, despite the economic challenges, is teaching her daughter Myazare how to weave. “Life is not great but between household chores and a small income I am happy. We do the best we can.”
Video at the link.
The best link for last:
Considering that they’re known for crawling through the sprawling subterranean networks of the world, it should come as no surprise that rats actually dream about the places they want to go.
That’s according to researchers from University College London – who claimed that when the rodents are shown an inaccessible food treat, they’re likely to dream about how they can get it when they nod off to sleep.
Or as lead researcher Hugo Spiers put it: ‘It’s like looking at a holiday brochure for Greece the day before you go – that night you might dream about the pictures.’
Rats, like humans, have dreams about the future.
When they see a treat they can’t reach, rats’ later dreams depict them walking toward it, researchers have found. The discovery may one day provide some insight into what happens in the human mind during sleep.
Maps in the Brain
Scientists already knew that after a rat has explored an area, certain neurons in the hippocampus called “place cells” replay those patterns while the rat sleeps.
“Place cells” in both rats and humans help us store memories about location and form mental maps. When you’re in one spot, a set of place cells fires; when you move to another spot, a different set of place cells fire to mark the new location. If scientists can record the activity of specific brain cells, then, they can spy on how the mind maps new places. So far, that kind of recording requires implanting tiny electrodes on very thin wires into the brain, which can’t be done with human subjects for ethical reasons, but it’s possible with rats.
This is how the scientist found out:
First, researchers let rats explore a T-shaped track. The rats could run along the center of the T, but the arms were blocked by clear barriers. While the rats watched, researchers put food at the end of one arm. The rats could see the food and the route to it, but they couldn’t get there.
Then, when the rats were curled up in their cages afterwards, scientists measured their neuron firing. Their brain activity seemed to show them imagining a route through a place they hadn’t explored before. To confirm this, researchers then put the rats back into the maze, but this time without the barriers. As they explored the arm where they had previously seen the food, the rats’ place cells fired in the same pattern as they had during sleep.
This mental mapping process made up about 8 percent of the rats’ brain activity during sleep. That may not sound like much, but neuroscientist Hugo Spiers, a co-author on the study published in eLife, says it’s a significant amount of activity for the brain to devote to a single task during rest.
That is something to think about.
The rats’ activity may shed some light on what goes on in the human mind during sleep. Sleeping does seem to improve human performance on memory tasks – a finding which has been used to argue against all-night study sessions. And desire is also a crucial part of that process for people. “People are much better at doing the stuff that they’ll make more money on after they’ve slept,” said Spiers. “Something about sleep is using that desire information: that you do want to do better.”
Rats will also become cannibalistic, sort of like humans will…in a figurative sense.
Sorry this is so damn late….think of it as an open thread.
I’ve got all kinds of personal reasons to hope that when the Supreme Court decides King v. Burwell next month that one just one Republican-appointed justice will consider the complaint trivial and it will be dismissed. That’s because I will be among the millions of people that will lose their health care. Jonathan Chait-writing for New York Magazine--wonders if that’s really what Republicans want in the year running up to a Presidential election.
Next month, the Supreme Court will rule on King v. Burwell. If all five Republican appointees support the plaintiffs (there’s no chance any of the Democrat-appointed justices will take the lawsuit seriously), some 7 million Americans will quickly lose their insurance. The prospect that this will occur has induced a wave of panic — not among the customers at risk of losing their insurance, who seem largely unaware, nor even among Obamacare’s Democratic supporters, but among Republicans. The chaos their lawsuit would unleash might blow back in a way few Republicans had considered until recently, and now, on the eve of a possible triumph, they find themselves scrambling to contain the damage. It is dawning on the Grand Old Party that snatching health insurance away from millions of helpless victims is not quite as rewarding as expected.
Unlike the Obamacare lawsuit that failed three years ago, the latest case is not based on a radical legal theory. Instead it is based on a novel reading of legislative history. The law allows states to set up their own exchanges to sell insurance to those who don’t have it through employer coverage, Medicare, or Medicaid. If states don’t establish an exchange, the federal government sets one up for them and, as it does with the state exchanges, offers customers tax credits. The trouble is that the law authorizing tax credits defines the exchange as “established by the state.” This ambiguity — does “by the state” not also mean the federal government? — was a technical omission. Many other parts of the law indicate its intent to make tax credits available to customers on the federal and the state exchanges alike.
The plaintiffs are led by a Vietnam veteran in Virginia named David King who makes $39,000 a year and objects to having to purchase insurance on a federal exchange. He would be exempt from this requirement were he not eligible for the tax credit — his $275 monthly payment would rise to a disqualifyingly unaffordable $648 — and this exemption, his lawyers argue, was exactly Congress’s intent. Without tax credits, the insurance would be unaffordable to most customers, triggering an actuarial death spiral that would destroy the individual insurance market in any state that attempted it. The plaintiffs insist Congress created the threat of self-destructing federal exchanges to coerce states into creating their own. (Disregard the copious evidence that the law’s drafters, and officials at the state level in both parties, believed federal exchanges would include tax credits.)
The lawsuit works more on the level of an elaborate prank than as a serious reading of the law. And yet it stands at least some chance of success — it only needs to persuade Republican-appointed judges. That prospect has grown suddenly unnerving because, unlike previous Republican efforts to strangle the law, the current one comes as Obamacare is functioning extremely well. Premiums on the exchanges have come in well under projected costs, customers report higher satisfaction with their coverage than those who have employer-sponsored insurance, and overall medical costs have grown far below the projected rate. It is one thing to take away a scheduled future subsidy, of which most intended beneficiaries are unaware. It is quite another to take away a benefit they’re already using.
Can you imagine the optics of people being taken off chemotherapy, dialysis, or insulin shots? So, Republicans are gearing up a way to blame it on Obama or trying to find a way to get the extreme right to compromise and provide a short term extensions of the credits should SCOTUS agree with the plaintiffs.
Senator Ben Sasse of Nebraska has likewise warned that a successful lawsuit would create problems. “Chemotherapy turned off for perhaps 12,000 people, dialysis going dark for 10,000. The horror stories will be real,” he wrote in a Wall Street Journal op-ed. For decades, medical deprivation of this sort used to be a uniquely American fact of life, at least among industrialized countries. Obamacare has turned it into something different: an actual political problem for opponents of universal health insurance.
Neither Johnson nor Sasse has a real plan designed to stop those horrors from taking place. Instead, their aim is to give Republicans a way to divert the blame onto Obama. The party is circulating contingency plans to temporarily restore the tax credits in exchange for crippling the law in other ways. Phil Gramm, the former Republican senator turned conservative-think-tank “visiting scholar” and financial-industry lobbyist, has proposed that Republicans pass a bill to temporarily extend the credits in return for eliminating the law’s regulations prohibiting insurance companies from rejecting old or sick customers. Competing proposals by Johnson and Sasse would likewise weaken Obamacare’s insurance regulations, ultimately destroying the law’s functionality. Gramm evenacknowledges that his plan “would put Obamacare on the path to extinction.” Obviously, Obama is not going to sign a bill that puts Obamacare on the path to extinction. The purpose is simply to give Republicans a talking point — they can say they passed a bill and blame Obama for vetoing it. But odds are that Republicans will fail to unify around a bill that can pass both houses of Congress with only Republican votes, because some will deem even a bill that causes Obamacare’s eventual demise unacceptably conciliatory.
At that point, it will fall to the states to either establish their own exchanges or watch their individual-insurance markets collapse. Neither option is terribly attractive for Republicans. The former means surrender. Doing nothing means sowing chaos, deprivation, and death. Will Republicans let this happen?
Legal Analyst and Lawyer Jeffrey Toobin has a lengthy article in The New Yorker examining the issues.
So that’s the theory: millions will suddenly be uninsured, and will blame Republicans. As Harry Reid, the Democratic leader in the Senate, put it recently, “I don’t think they will [win the case]. If they do, that’s a problem that the Republicans have.”
No, it’s not. If the Obama Administration loses in the Supreme Court, the political pain will fall almost exclusively on the President and his Party. To paraphrase Colin Powell and the Pottery Barn rule, President Obama will have broken health care, so he owns it. To the vast mass of Americans who follow politics casually or not at all, Obamacare and the American system of health care have become virtually synonymous. This may not be exactly right or fair, but it’s a reasonable perception on the part of most people. The scope of the Affordable Care Act is so vast, and its effects so pervasive, that there is scarcely a corner of health care, especially with regard to insurance, that is unaffected by it. So if millions lose insurance, they will hold it against Obamacare, and against Obama. Blaming the President in these circumstances may be unfair, but it’s the way American politics works.
Republicans, of course, will encourage this sentiment. The precise legal claim in King v. Burwell is an esoteric one. It is not based on a claim that Obamacare is unconstitutional. (The Supreme Court upheld the constitutionality of the law three years ago.) Rather, the central assertion by the plaintiffs is that the Obama Administration violated the law itself. In any event, the subtlety of the issue at the heart of the case will surely be lost in its aftermath. The headlines will read, correctly, “Court rules against Obamacare,” and this will be all that matters. The Republicans will argue that the Supreme Court showed that the law was flawed from the start, that the Obama Administration is lawless, that a full repeal of the law is the only appropriate response to the Court’s decision—and that the millions who lose their subsides should blame the sponsor of the law. Watch for references to a “failed Presidency.” There’ll be plenty of them.
Understandably, perhaps, the Administration has courted this kind of reaction. Better than anyone, Administration officials know the scale of the problems that would be created by a loss in the Supreme Court. Advertising this possibility makes sense as a litigation strategy; Obama officials don’t want to make it easy for the Supreme Court to rule against them. In testimony before Congress and elsewhere, Sylvia Burwell, the Secretary of Health and Human Services (and the defendant in the case), said that the Administration has no contingency plan for an adverse ruling in the Supreme Court. But playing chicken with the Justices only works if it works. If the Supreme Court strikes down the subsidies, the Administration will also have to answer for why it didn’t prepare for this possibility.
A few weeks ago, the Heritage Foundation’s Edmund Haislmaier published an “Issue Brief” entitled “King v. Burwell: A Loss of Subsidy Does Not Mean a Loss of Coverage.” That’s a provocative title, considering 87 percent of the 8.8 million enrollees from federal exchanges receive those tax credit subsidies, meaning they have low or moderate incomes.
Haislmaier recently was seen saying it’s “premature” to conclude the huge drop in the uninsured rate since Obamacare passed is the result of Obamacare passing. In this brief, he correctly points out the Affordable Care Act and previous federal and state laws would enable current Obamacare enrollees to switch to some other form of health insurance if the lawsuit he supports succeeds in making their current plans unaffordable. (The brief also chides low-income people for using their subsidies to buy “king-crab-legs-and-steak” insurance rather than take the cheapest possible “powdered-milk-and-frozen-peas” plans.)
“In sum, should the Supreme Court’s eventual ruling in King v. Burwell result in people losing insurance subsidies, the affected individuals will have options for maintaining their coverage or choosing replacement coverage,” Haislmaier wrote. There’s even a chart.
Is that good news for people at risk of losing their health insurance subsidies? Maybe not. “Of course, some might still not be able to afford the unsubsidized premium even if they switched to a less expensive plan,” Haislmaier adds as a disclaimer. Of course.
That seems like it could be a problem, since 83 percent of Obamacare enrollees on the federal exchanges have annual incomes of 250 percent of the federal poverty level or less, which works out to no more than $23,450 for a single person, according to Avalere Health, a consulting firm. In other words, these aren’t Americans with a lot of extra money. And the average value of the tax credits they stand to lose is $263 a month, a substantial amount for people at this income level.
There’s a lot of variation in the price of health insurance, but a look at national average premiums and cost-sharing requirements illustrates what the “Let them eat Bronze plans” line of thinking ignores.
A 40-year-old at the poverty line, which is $11,770 for a single person, would pay $20 a month for a mid-tier Silver plan with tax credits. That amounts to about 2 percent of her annual income. Take away the subsidies, and her premiums jump almost 14-fold to $276 — or about 28 percent of her income.
What about dropping down to a lesser Bronze policy with higher out-of-pocket costs like deductibles?
That would cost almost 11 times as much as the subsidized Silver plan, at $213 a month, or about 22 percent of her income. Another person making twice as much money as her would see his premiums for the same Silver policy rise by 80 percent, which would eat up 14 percent of his income. His premiums would rise by 39 percent if he switched to a Bronze plan, which would cost him 11 percent of his yearly earnings.
Even opting for a slimmer policy might not make sense for lower-income people, considering how much more Bronze policyholders have to spend before their coverage kicks in. For example, the average deductible for an individual Bronze plan is $5,181, compared to $2,927 for a Silver plan, according to Health Pocket.
And this doesn’t even factor in the effects of a second type of subsidy only available to people earning up to 250 percent of poverty, which reduces their out-of-pocket health care expenses, and which also would go away in the high court rules for the plaintiffs.
But what may eventually prove to be the key line of questioning may have been kicked off by Justice Sonia Sotomayor, who expressed concern about the consequences of a ruling for the challengers. If a state’s residents don’t receive subsidies, she told Carvin, it will lead to a “death spiral”: because a large group of people in those states will no longer be required to buy health insurance, but insurers will still be required to offer insurance to everyone, only sick people will buy health insurance. And that will cause everyone’s insurance costs to rise, leading more people to drop out of the insurance market. States will then feel like they have no choice other than to establish their own exchanges to ward off the “death spiral” – a scenario that is so coercive that it violates the Constitution.
Perhaps critically for the government, Justice Anthony Kennedy – who is often regarded as a strong supporter of states’ rights – also expressed concern about the possibly coercive effect of a ruling for Carvin’s clients. There is, he told Carvin, “something very powerful to the point” that if the challengers prevail, the states have to choose between the death spiral and creating an exchange. “There’s a serious constitutional problem,” he concluded. (Carvin tried to downplay this concern by telling Kennedy that the government had not raised this issue, but Kennedy quickly retorted that “we sometimes think of things the government doesn’t argue.”)
Like Carvin, Solicitor General Don Verrilli – the government’s top lawyer at the Supreme Court – also faced questions about the challengers’ right to sue. But between his acknowledgement that, as Carvin had asserted, a veteran who had only served a short time would not be eligible for free health care and the lack of certainty about the plaintiffs’ 2014 annual incomes (which would determine whether they would be required to buy health insurance at all), the issue didn’t seem to have much traction with the Justices.
On the merits of the challenge to the subsidies, Verrilli faced repeated questions from Justices Scalia and Alito, who were both obviously skeptical of the government’s arguments. Scalia pushed back against Verrilli’s argument that the challengers’ reading simply doesn’t work, while – by contrast – the government’s interpretation accounts for the ACA’s structure and design. The question, Scalia admonished Verrilli, is not what Congress intended; the question is what it actually wrote in the statute. But in any event, Scalia queried a few minutes later, if the Court were to rule for the challengers, did Verrilli and the government actually expect Congress to “really just sit there while disaster ensues?” (Based on Verrilli’s response – a dubious “This Congress?” – the answer appeared to be yes.)
Justices Alito and Scalia also contested Verrilli’s assertion that, had Congress actually intended to force states to choose between setting up their own exchanges and depriving their residents of subsidies, it would have done so more clearly. Scalia asked rhetorically why, because the ACA is “not the most elegantly drafted statute,” would it “be so surprising” if Congress didn’t make the states’ obligations obvious? Alito added that, if Congress didn’t want to limit the subsidies to the residents of states that had set up their own exchanges, it could have used more precise language to do so – as it did, for example, in making clear that the District of Columbia (which is not a state) nonetheless qualifies as a “state” for purposes of the ACA.
So, we’re down to brass tacks again. Will the ACA go down on a technicality which, essentially, is what the law is all about?
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