Activist Courts And Unintended Consequences

The Supreme Court recently heard oral arguments in the case of Janus v. American Federation of State, County and Municipal Employees. As a recent op-ed in the New York Times put it, unlike other cases that find their way to the country’s highest court, we already know how this one is going to be decided.

The Supreme Court is widely expected to rule in favor of Janus on a party line 5-to-4 basis and overturn a 1977 precedent, Abood v. Detroit Board of Education. Abood permitted fair-share fees, which cover only organizing and collective bargaining and do not include social or political activities in the public sector.

Why are we so sure about the Janus outcome? The court heard a similar case in 2016, and it split 4-4 after Justice Antonin Scalia’s sudden death. Neil Gorsuch has proved himself more conservative than Justice Scalia on most issues, so there is little hope that labor will win this time around.

I will, for purposes of this post, omit my diatribe about stolen Supreme Court seats and the erosion of time-honored democratic norms.

The  plaintiff in this case is asserting a First Amendment right not to be compelled to support unions, even when that “support” is limited to payment for services from which he benefits. The op-ed to which I link focuses on the unintended consequences of his likely victory–consequences that would give pause to justices less ideologically rigid than those currently serving.

The popular understanding of the case is limited to recognizing that, if the court bans fair-share fees, it will hurt unions. It will deprive them of funds and (more insidiously) encourage “free riding”–non-contributing workers’ ability to benefit from the contributions of others. Those are intended consequences of what has been a concerted, well-funded effort to destroy workers’ ability to bargain collectively.

But fewer people have considered what conservatives are risking: Union fair-share fees do not exist in an employment vacuum; the same logic and legal framework that permits the government to mandate these fees allows the government to conduct itself as an employer. Janus is largely being discussed as a case that is likely to defund and disrupt labor unions, but the case cannot simply injure unions and leave everything else intact.

At last count, federal, state and local governments employed over 21 million workers, so the courts have had to develop a framework for governments to be able to manage their work forces without constantly confronting the Constitution. Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her desk drawer for a text book, or else risk violating the Fourth Amendment. Or imagine if a police sergeant who tells an officer that he didn’t have time to listen to a complaint about the break room now has to worry that he violated the First Amendment.

Over the years, the Court has carefully balanced the government’s legitimate needs as an employer against the equally compelling need to protect public employees when they exercise their constitutional rights in the workplace. A “victory” for Janus in this case threatens to turn every workplace dispute into a constitutional issue.

The prominent conservative legal scholars Eugene Volokh and William Baude went further and filed a brief supporting the unions. They argue that the government compels subsidies of others’ speech all the time and that there is nothing constitutionally suspect about that. Mr. Volokh and Mr. Baude point to the fact that we don’t have a right to opt out of paying a portion of our taxes for issues we disagree with.

Furthermore, the government regularly requires people to purchase speech related to services that they may not want, such as doctors and lawyers having to enroll in continuing education courses. Or even the general requirements that people purchase car insurance or vaccinations, despite the fact that some may disagree with that mandate. To recognize a general First Amendment right to not fund things that one may disagree with, despite the government’s interests in mandating such payments, would completely upend many areas of life that are necessary for our society to function.

The Court used to be wary of decisions that would “unleash a floodgate of litigation.”  The likely Janus victory will be evidence that it no longer cares.

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Rerun

Facebook has a feature dubbed “your memories.” A couple of days ago, it reminded me of a blog I posted a year ago about voter turnout. I have never repeated a post before, but as we count down to critically important May and November elections, I think this one is worth re-running. (It was titled, “It’s The Turnout, Stupid!”)

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Do references to “President” Trump make you wonder how we ended up with a Congress and an Administration so wildly at odds with what survey research tells us the majority of Americans want?

This paragraph from a recent Vox article really says it all:

A general poll doesn’t reflect voters very much anymore. A general poll would have had Donald Trump losing substantially and the Democrats winning the House. About 45 percent of people in general polls don’t vote at all. What you saw in the election was that Republican voters came out at a very high rate. They got high turnout from non-minority people from small towns.

There are multiple reasons people fail to vote. There is, of course, deliberate suppression via “Voter ID” laws , restrictions of early voting periods and purposely inconvenient placement of polling places.

Gerrymandering, as I have pointed out numerous times before, is a major disincentive; why go to the polls when the overwhelming  number of contests aren’t really contested?

And of course, there are the holdover mechanisms from days when transportation and communication technologies were very different–state, rather than national control of everything from registration to the hours the polls are open, voting on a Tuesday, when most of us have to work, rather than on a weekend or a day designated as a national holiday, etc.

The Vox paragraph illustrates the repeated and frustrating phenomenon of widespread public antagonism to proposed legislation that nevertheless passes easily, or support for measures that repeatedly fail. If vote totals equaled poll results–that is, if everyone who responded to an opinion survey voted–our political environment would be dramatically different.

Americans being who we are, we are extremely unlikely to require voting, as they do in Australia. (Those who fail to cast a ballot pay a fine.) We can’t even pass measures to make voting easier. I personally favor “vote by mail” systems like the ones in Oregon and Washington State; thay save taxpayer dollars, deter (already minuscule) voter fraud, and increase turnout. They also give voters time to research ballot issues in order to cast informed votes. (Informed votes! What a thought….)

If the millions of Americans who have been energized (okay, enraged) by Trump’s election want to really turn things around, the single most important thing they can do is register people who have not previously voted, and follow up by doing whatever it takes to get them to cast ballots.

Voter ID laws a problem? Be sure everyone you register has ID. Polls and times inconvenient? Help them vote early or drive them to their polling place.

Gerrymandering a disincentive? First make sure that someone is opposing every incumbent, no matter how lopsided the district, and then help people who haven’t previously voted get to the polls. Those gerrymandered district lines are based upon prior turnout statistics; on how people who voted in that district previously cast their ballots. If even half of those who have been non-voters started going to the polls, a lot of so-called “safe” districts wouldn’t be so safe.

Not voting, it turns out, is a vote for the status quo. There are a lot of Americans who are cynical and dissatisfied with the status quo who don’t realize that the plutocrats and autocrats they criticize are enabled by–and counting on– their continued lack of involvement.

If everyone who has found his or her inner activist would pledge to find and register three to five people who haven’t previously voted, and do what it takes to get them to the polls, it would change America.

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Trump’s Economic Ignorance

One of the reasons I was a Republican back when that party actually existed was my belief in markets. I certainly understood that there are areas of the economy where markets don’t work–health care, for example–and I also understood the need for an “umpire”–regulations to ensure that competition occurs on that all-important level playing field. But with those caveats, I was–and remain– decidedly pro-market.

So was the GOP that used to be.

Last Thursday, Trump announced that he intends to impose tariffs on imported steel and aluminum; he evidently thinks that such tariffs fulfill his half-baked “America First” approach to trade.

Speaking at the White House, the president said he had decided to levy tariffs of 25 percent on foreign-made steel and 10 percent on aluminum.

The move prompted an immediate slide in the stock market, uniform condemnation by economists (you know, the people who actually understand how these things work–or more accurately–don’t), and threats of retaliation from the EU and Canada, among others.

The Washington Post reported that Trump had ignored warnings from members of his administration:

The president went ahead with the unexpected announcement even after Gary Cohn, his top economic adviser, reportedly threatened to resign. Treasury Secretary Steven Mnuchin told Trump that the stock market gains he loves to boast about would reverse themselves. Defense Secretary James Mattis, who he’s normally inclined to defer to, warned that this would hurt U.S. relationships with allies.

Companies that use steel and aluminum, including automakers, account for vastly more jobs than producers of the metals, and they argued that as many as 200,000 jobs were lost when George W. Bush imposed steel tariffs in 2002 that were later ruled to be illegal by the World Trade Organization.

Trump’s move, under a little-used national security provision of U.S. trade law, is expected to trigger legal challenges by China, the European Union and Brazil at the World Trade Organization. It also prompted predictions that it will backfire on American farmers and other exporters.

“It’s pretty much our worst fears,” said Rufus Yerxa, president of the National Foreign Trade Council, which represents multinationals such as Microsoft and Caterpillar. “This is a pretty clear indication that the Trump administration cares more about the old economy than it does the new economy.”

This wasn’t Trump’s first effort at protectionism; the announcement follows an earlier round of tariffs on solar panels and washing machines. Economic history tells us that all of these moves will lead to higher prices for consumers.  The recent ones will raise costs for manufacturers who use steel and aluminum (automobiles and beer in cans come to mind), and they will pass those increased costs to consumers.

The tariffs will also cost American jobs; the earlier ones have already caused at least one U.S. company that imports solar panels to announce layoffs.

Trump’s anti-competitive moves aren’t the only reason columnist Catherine Rampell now dismisses the GOP’s long-professed support for markets.

Republicans say they favor free markets. They’re not like those pinko-commie Democrats, who prefer “picking winners and losers.”

Oh, come off it already.

Republicans love picking winners and losers, too. They just choose different winners and different losers than Democrats do. In the case of today’s Republican officials, the winners are mostly donors, incumbents, culture-war favorites and cheats.

Rampell points to Trump’s efforts to prop up the coal industry, and the “carve-outs” and other favorable treatment given to donors and Republican governors. And she is especially scathing in her criticism of the Georgia legislature.

Republican officials there vowed to punish Delta Air Lines, one of the state’s largest employers, for canceling discounted prices for National Rifle Association members.

Lt. Gov. Casey Cagle, who is running for governor, gave Delta an ultimatum: restore the NRA discount, or forget the $50 million sales-tax exemption on jet fuel that Republican lawmakers had been considering. In other words, restore our special discount, or we won’t give you your own special discount. Delta didn’t budge, so lawmakers axed the tax break Thursday afternoon.

It takes a funny formulation of free markets to punish a private company for not giving your favored political group a good price.

It is also a perversion of market economics–not to mention a blatant violation of the rule of law–to tip off your advisor and good friend Carl Icahn about your intentions, so that he can unload nearly $31.3 million in a steel-related stock company before the news hits.

The GOP to which I once belonged no longer exists. What goes under that name today is an unholy merger between a cult and the mafia.

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As The Bullets Find Their Mark..

I will never understand the GOP obsession with repealing Obamacare.

I could certainly understand efforts to improve it, or even replace it with a different mechanism (not the smoke and mirrors sort of replacement that Trump yammered about but was unable to describe, but a different way to deliver actual healthcare).

It is hard for me to accept that there are people who genuinely believe poor folks aren’t entitled to medical care, that being unable to afford a doctor means you don’t deserve one. On the other hand, I recall that telling–and chilling– moment in a GOP debate when Ron Paul was asked what should be done with people who don’t have insurance, and the audience members yelled “let them die.”

So there’s that…

Even though Paul Ryan and his cronies couldn’t manage a complete repeal of the Affordable Care Act, they did manage to make it less workable. They didn’t kill it–they just made it more incoherent and costly.

According to Michael Hiltzik in the L.A. Times,

Those fiscal geniuses in the White House and Republican-controlled Congress have managed to do the impossible: Their sabotage of the Affordable Care Act will lead to 6.4 million fewer Americans with health insurance, while the federal bill for coverage rises by some $33 billion per year.

Also, by the way, premiums in the individual market will rise by an average of more than 18%.

These figures come from the Urban Institute, which on Monday released the first estimate of the impact of two GOP initiatives. The first is the elimination of the individual mandate, which is an offshoot of the GOP tax-cut measure signed by President Trump in December. The measure reduced the penalty for not carrying insurance to zero as of next Jan. 1.

The second is Trump’s plan to expand short-term insurance plans, which don’t comply with many of the ACA’s essential benefits requirements and allow insurers to reject or surcharge people with preexisting medical conditions or histories.

Both of these provisions siphon younger, healthier people out of the insurance pool–an entirely foreseeable (and indeed, widely foreseen) consequence. When the pool of insured individuals contains older, sicker participants not offset by as many young healthy ones, insurers must raise premiums.

Because government premium subsidies rise in tandem with premium increases, the cost of subsidies borne by the government will rise by $33.3 billion next year, or 9.3% — to $391.4 billion from $358.1 billion under existing law.

It isn’t only taxpayers who will get hosed by the changes Trump is so proud of. The article goes through a variety of ways in which people needing health insurance will get screwed over, and I encourage you to click through and read the whole analysis.

It’s hard to disagree with Hiltzik’s conclusion:

The damage estimate can’t be restricted to the immediate impact on individuals and families, the researchers observed. “As healthier enrollees exit for short-term plans, insurers will by necessity reexamine the profitability of remaining in the compliant markets. This may well lead to more insurer exits from the compliant markets in the next years, reducing choice for the people remaining and ultimately making the markets difficult to maintain.”

In other words, the Republican sabotage will continue to undermine health coverage in the U.S. The only alternative, it becomes clearer with every day, is some form of single-payer, Medicare-for-all coverage. That’s increasingly becoming part of Democratic Party orthodoxy, and it’s about time.

One more reason why we need a wave election in November.

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It’s Going To Get Uglier

Last weekend, my husband and I attended the Phoenix Theatre’s presentation of Sweat, a prize-winning play based upon an episode of union-busting and outsourcing that took place some years ago in Reading, Pennsylvania. As with all Phoenix productions, the acting was superb, and the set evocative. But it was the play’s message that really resonated.

As workers in the local factories lost their jobs, social bonds frayed. Self-esteem suffered. Longstanding interracial friendships surrendered to suspicions that promotions had been awarded on the basis of “diversity” rather than merit. As with all powerful art, the play illuminated a human truth: in times of economic and/or social uncertainty–especially when  livelihoods are threatened– people turn on each other.

Political scientists have varying explanations for the election of Donald Trump, but those explanations all include, to varying degrees, economic insecurity and racial resentment. A significant number of Americans are struggling to put food on the table. Automation is threatening the jobs of many others. The pace of social and technological change can seem dizzying. And rather than working to tackle these and other problems, the President and his henchmen are telling us to blame the Other: immigrants, Muslims, minorities.

A recent headline from the Guardian tells us that anti-Semitic incidents soared in 2017.

Antisemitic incidents in the US surged 57% in 2017, the Anti-Defamation League said on Tuesday, the largest year-on-year increase since the Jewish civil rights group began collecting data in 1979.

Close to 2,000 cases of harassment, vandalism and physical assault were recorded,

Another report tells us that we are in danger of reversing the civil rights advances of the last fifty years.

Civil rights gains of the past half-century have stalled or in some areas gone into reverse, according to a report marking the 50th anniversary of the landmark Kerner Commission.

Child poverty has increased, schools have become resegregated and white supremacists are becoming emboldened and more violent, the study says…..

Fred Harris, the last surviving member of the Kerner Commission, told Tuesday’s conference at George Washington University: “We made progress on virtually every aspect of race and poverty for nearly a decade after the Kerner report and then that progress slowed, then stopped and in many ways was reversed, so that today racial and ethnic discrimination is again worsening. We are resegregating our cities and our schools, condemning millions of kids to inferior education and taking away their real possibility of getting out of poverty.”

Harris, a former Democratic senator from Oklahoma and co-editor of the new report, added: “There are millions more poor people today than there were then. There’s greater child poverty; poverty’s harder to get out of. More poor people are in deep poverty than was true 50 years ago and income inequality is worse now and worsening.”

Last week, the Supreme Court heard a case that is very likely to eviscerate public-sector unions–the culmination of a decades-long, largely successful effort by the Koch brothers and their allies in the GOP to destroy workers’ ability to bargain. It is an effort that has gone hand-in-hand with their consistent and very effective attack on government programs that help needy Americans.

As Sweat vividly illustrated, poverty and powerlessness beget bigotry and social discord.

If voters don’t turn this country around in November, America will illustrate something else–Hobbes’ description of life outside society: solitary, poor, nasty, brutish, and short.

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