Oh Texas…

In the years before 2016, when I needed an  example of a really stupid policy for my graduate Law and Public Affairs classes, I always could count on Texas. (Of course, once Trump was elected, bad federal policies were so plentiful I didn’t need to look to the states for examples.)

As the Biden Administration moves to reverse many of the damaging, corrupt decisions of its predecessor, Texas legislation is once again filling the “what the shit?” gap. Some bills are just “Texas-sized” versions of current GOP efforts to suppress the vote, while others–like the recent effort to turn citizens into agents of the state authorized to report and punish abortion– are something else altogether.

As Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck recently wrote in the New York Times, Texas’ version of anti-abortion legislation is “especially worrisome.”

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

All of that would be problematic enough, but enlisting private citizens to enforce the restriction makes it very difficult, procedurally, to challenge the bill’s constitutionality in court. A lawsuit filed in federal court in Austin last week tries to get around those roadblocks. We believe that it should succeed. But if it fails, not only would that leave the most restrictive anti-abortion law in the country impervious to constitutional challenge, it would also encourage other states to follow Texas’ lead on abortion, as well as on every other contested question of social policy.

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

The op-ed noted a crucial difference between this legislation and the private attorney general laws that in many states allow people to help enforce certain laws. As they point out, in those situations, citizens are supplementing government enforcement.

The Texas law, by contrast, leaves private enforcement as the only mechanism for enforcing the broad restrictions on abortions after the sixth week of pregnancy. It specifically precludes the state’s attorney general or any other state official from initiating enforcement. Under this new law, private enforcement supplants government enforcement rather than supplements it. If this seems like a strange move, it is. And it appears to be a deeply cynical one, serving no purpose other than to make the abortion ban difficult to challenge in court.

The reason for that difficulty is that, when the state itself is not directly involved in enforcing a law, none of the state’s executive officers are proper defendants to a lawsuit. (What far too many Americans do not understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors.)

That said, I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive covenants in property deeds, in which the Court found that private deed restrictions could only be enforced with the participation of judges, clerks and other state officials. The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

As the essay concludes, success in this effort by the state of Texas would set “an ominous precedent for turning citizens against one another on whatever contentious issue their state legislature chose to insulate from ordinary constitutional review.”

This year, the Supreme Court is scheduled to hear what’s likely to be its most important abortion case since 1992, when it considers Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. But the legal dispute that began in Texas last week is, in our view, the far more important one. Not only is the Texas ban a frontal assault on Roe v. Wade; it’s an assault on our legal system and on the idea that law enforcement is up to the government, not our neighbors.

Texas has often tried to secede from the Union. Failing that, it’s attacking the legal framework that defines us as a union.

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Krugman Nails It

Paul Krugman wants to know how many of their fellow Americans Republicans are willing to kill in order to “own the libs.” In the wake of actions by Governors in  Texas and Mississippi–essentially eliminating anti-COVID requirements– it’s a fair question.

Krugman also points out–graphically–why mask edicts are not an abrogation of American freedom.

Relieving yourself in public is illegal in every state. I assume that few readers are surprised to hear this; I also assume that many readers wonder why I feel the need to bring up this distasteful subject. But bear with me: There’s a moral here, and it’s one that has disturbing implications for our nation’s future.

Although we take these restrictions for granted, they can sometimes be inconvenient, as anyone out and about after having had too many cups of coffee can attest. But the inconvenience is trivial, and the case for such rules is compelling, both in terms of protecting public health and as a way to avoid causing public offense. And as far as I know there aren’t angry political activists, let alone armed protesters, demanding the right to do their business wherever they want.

As Krugman goes on to point out, the dangerous posturing by self-described defenders of “liberty” is the essence of identity politics.  Although Republicans politicians like to accuse Democrats of playing that game, they limit the definition of “identity” to issues of race and religion–it’s their way of reminding their White Supremicist base that Democrats represent   a citizenry that includes “those people.”

What is motivating this rush to unmask isn’t economics–Krugman points out that the costs of mask-wearing are trivial, and that controlling externalities–taking into account  costs being imposed on others–is Econ 101. As he says,  “if potentially exposing those you meet to a deadly disease isn’t an “externality,” I don’t know what is.”

Of course, we know what’s actually going on here: politics. Refusing to wear a mask has become a badge of political identity, a barefaced declaration that you reject liberal values like civic responsibility and belief in science. (Those didn’t used to be liberal values, but that’s what they are in America 2021.)

This medical version of identity politics seems to trump everything, up to and including belief in the sacred rights of property owners. When organizers at the recent Conservative Political Action Conference asked attendees to wear masks — not as a matter of policy, but simply to abide by the rules of the hotel hosting the meeting — they were met by boos and cries of “Freedom!” Do people shriek about rights when they see a shop sign declaring, “No shoes, no shirt, no service”?

But arguably we shouldn’t be surprised. These days conservatives don’t seem to care about anything except identity politics, often expressed over the pettiest of issues.

There are plenty of problems with mischaracterizing mask wearing as a “freedom” issue, and one of those problems ties back into my constant rants about the country’s low levels of civic literacy.

The United States Constitution does not give anti-maskers the “liberty” they claim.

I will readily admit to being a hard-core civil libertarian.  (I ran Indiana’s ACLU for six years and was routinely criticized when our affiliate sued to protect citizens’ rights to pursue their own moral or personal ends.) But as Krugman’s introductory paragraphs illustrate, and the ACLU has always acknowledged, government retains considerable authority to require or prohibit certain behaviors. We can’t urinate (or worse) in public, or  run around our neighborhoods nude. We can be ticketed for failing to buckle our seatbelts. We can be prohibited from exposing others to the passive smoke emitted by our cigarettes. Governments not only have the right but the affirmative obligation to impose quarantines to protect public health, and they have done so historically to control the spread of diseases like smallpox.

I agree with Krugman that the anti-maskers are playing identity politics. I wonder if they realize that the identity they are claiming is “selfish and ignorant.”

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Texas

Early in my academic career, I really came to appreciate Texas. I taught Law and Public Policy, and on those rare occasions when Indiana failed to provide a “teachable moment”– an example of truly awful policy– I could always count on Texas.

I still remember Molly Ivins’ wonderful explanation of the logic of the Texas “lege.” She noted that when gun deaths exceeded highway deaths, Texas lawmakers sprang into action–and raised the speed limit.

Ted Cruz (known around Twitter and Facebook these days as “Fled” Cruz) is a perfect example of the sort of Republican Texas routinely elects–arrogant, bigoted, and thoroughly full of himself. While he took off for Cancun, Beto O’Roark was setting up telephone outreach to elderly citizens who’d lost their power and access to clean drinking water, and AOC, the much-hated “socialist” who doesn’t live anywhere near Texas was raising two million dollars for relief efforts. (I note that, as of yesterday, it was up to five million…)

To be sure, Cruz has lots of company. Former Governor and Energy Secretary Rick Perry (who was Governor in 2011 and ignored experts who recommended winterizing the power grid) insists that Texans prefer an occasional apocalypse to the indignity of federal regulation, and a “compassionate” Republican mayor had to resign after telling freezing people who’d lost power and water to stop whining and get off their lazy asses and take care of themselves.

I don’t think it is at all unfair to claim that these buffoons are perfect representatives of today’s GOP–a party that exhibits absolutely no interest in actual governing. I agree entirely with Ryan Cooper, who wrote in The Week that  the blizzard nightmare is “Republican governance in a nutshell.”

After describing Cruz’s attempted getaway, Cooper wrote that

what Cruz did is emblematic of the Republican Party’s mode of governance. The reason Cruz felt comfortable leaving Texans to freeze solid on the sidewalks of Houston is the same reason the Texas power grid crumpled under the winter storm. Theirs is a party in which catering to the welfare of one’s constituents, or indeed any kind of substantive political agenda, has been supplanted by propaganda, culture war grievance, and media theatrics. Neither he nor anybody else in a leadership position in the party knows or cares about how to build a reliable power grid. They just want to get rich owning the libs….

People have known for decades how to winterize electrical infrastructure — after all, there is still power in Canada and Finland. The reason those investments haven’t been made in Texas is because it would have cost a lot of money, and nobody wanted to pay for it — especially because the deregulated Texas energy grid makes it hard to pay for upgrades or extra capacity.

The reason the Texas grid isn’t connected to the national system is pure GOP ideology; the grid was purposely kept within the state in order to avoid federal regulation. (It’s notable that a couple of small parts of the state that aren’t connected to the Texas-only grid–places that were subject to those hated regulations– have mostly been fine.)

Unfortunately for Texas politicians, it’s hard to blame the “libs” for this debacle, although they’ve tried; after all, Republicans have run the state since 1994–and they’ve pretty much been owned by the state’s fossil fuel companies–especially Governor Abbott.

When the Texas power grid buckled under the strain of worse-than-expected winter cold, Texas Gov. Greg Abbott (R) went on Fox News and blamed frozen wind turbines for what was mostly a problem with natural gas–fueled power supply. Then he savaged the Electric Reliability Council of Texas (ERCOT), which manages the Texas-only power grid. But he has notably “gone easier on another culprit: an oil and gas industry that is the state’s dominant business and his biggest political contributor,” The Associated Press reports.

Abbott, in office since 2015, has raised more than $150 million in campaign contributions — the most of any governor in U.S. history — and “more than $26 million of his contributions have come from the oil and gas industry, more than any other economic sector,” AP reports. In a news conference Thursday, Abbott mostly blamed ERCOT for assuring state leaders Texas could handle the storm.

ERCOT, of course, is managed by people appointed by Abbott…

Today’s Republicans may not be good at–or interested in– governing, but they are absolute masters of shamelessly lying and blaming others when they are threatened with the consequences of an ideology that translates into “let them eat cake.”  

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Texas Tells Heidi To Go Yodel

I do love Texas. Whenever I need examples of really stupid government behavior for classroom use, I can count on the Lone Star State to supply them.

A recent example, courtesy of the AP: Texas has been an enthusiastic participant in the war against Planned Parenthood, and in 2011 it banned the organization from a women’s health program meant to provide low-cost breast exams, contraception and cancer screening. Instead, the state contracted with inexperienced providers, notably the Heidi Group, an evangelical nonprofit started in the 1990s and best known for promoting alternatives to abortion.

The Heidi Group fell well short of serving the 70,000 women it had promised to reach, and for which it had been paid 1.6 million dollars. Its failure to perform under that contract, however, paled in comparison to its failure to meet the goals in a much larger state contract under which it was to provide family planning services.

More than $5 million in taxpayer funds pledged to the Heidi Group was for family planning services. But the small nonprofit hasn’t met their goals and now plans to serve only a fifth of the nearly 18,000 women originally projected, said Carrie Williams, a spokeswoman for the Texas Health and Human Services Commission.

Texas has now reduced the contract from $5 million to $1 million. That will save some tax dollars, but it won’t provide needed health services to Texas’ women.

According to the AP, “The Heidi Group is led by Carol Everett, a prominent anti-abortion activist and influential conservative force in the Texas Legislature.”

Most sentient people have figured out that the unremitting assault on Planned Parenthood is part of a larger war being waged against women’s autonomy–our right to control our own reproduction and make our own moral and medical decisions. That broader assault is usually veiled by rhetoric against abortion (which is a tiny percentage of the services Planned Parenthood provides).

So how is Texas doing? Is the legislature’s willingness to deny poor women life-saving pap smears and breast exams translating into fewer abortions?

Not so much.

With the goal of eliminating abortion, Texas Republicans have stripped Planned Parenthood of funding and steadily obstructed patient access to care over the past few years. Turns out, their ideological, anti-choice crusade is having the opposite effect. A new study shows abortion rates have jumped since Planned Parenthood was blocked.

During the three years after the Texas legislature defunded Planned Parenthood, teen abortions increased 3.1% and teen births spiked by 3.4%  The legislature shuttered more than 80 family planning clinics altogether, action which not only decreased access to preventive women’s health care and low-cost contraception, but led to a spike in unintended pregnancies, especially among teens, and substantial increases in Medicaid expenditures.

Packham reports that 2,200 teens would not have given birth if the Legislature hadn’t cut family planning, slowing the overall progress of a decreasing birth rate. With an average taxpayer cost of $27,000 per birth, the price tag of the cuts total an estimated $80 million, outweighing the funds saved by the drastic cuts – a figure self-avowed fiscal conservative Republicans may want to heed. Other research bolsters Packham’s work: Last year, the UT-based Texas Policy Evaluation Project found that in East Texas’ Gregg County, abortion rose by a whopping 191% in the two years after the county lost 60% of its family planning funding. Similar results appeared in neighboring counties.

Will anyone who thinks Texas legislators learned anything from their Heidi experience please yodel?

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That Social Safety Net

It may be time to re-conceptualize the social safety net.

Most of the people who refer to a social safety net use the term as shorthand for a variety of so-called “welfare” programs, from Social Security, Medicare and Medicaid to TANF and other income-support measures. Defining the social safety net in that way—and focusing, as so many Republican political figures do, on support for needy Americans—facilitates criticisms of measures intended to help the poor.

After all, the comfortable ask, why should the prudent and solvent among us have our hard-earned monies taxed to support “those people”?

It’s easy to see the persistent attacks on income-supports for disadvantaged folks as both dishonest and mean-spirited, and most efforts to rebut them tend to revolve around the realities of social supports: the percentages of recipients who are children, elderly and/or disabled, the overwhelming numbers of impoverished Americans who work forty or more hours a week, etc.

We may be missing the forest for the trees.

A “social safety net,” properly conceived, is the web of institutions and services that benefit all members of a given society while building bonds of community and cross-cultural connection. In this broader understanding, the safety net includes public education, public parks, public transportation and other services and amenities available to and used by citizens of all backgrounds and income categories.

Public education is a prime example. Even granting the challenges—the disproportionate resources available to schools serving richer and poorer neighborhoods, the barriers to learning created by poverty—public schools at their best integrate children from different backgrounds and give poor children tools to escape poverty. Public schools, as Benjamin Barber has written, are constitutive of a public.

Common schools create common cultures, and it is hard to escape the suspicion that attacks on public education have been at least partially motivated by that reality. While supporters of charter schools and voucher programs have promoted them as ways of allowing poor children to escape failing schools, the data suggests that most children—including poor children—are better served by schools that remain part of America’s real social safety net.

This point was recently underscored by Thomas Ratliff, a Republican member of the Texas Board of Education—a board not noted for progressive understandings of the role of education. After setting out the comparative data about costs and outcomes achieved by traditional public schools in Texas and those operating via various “privatization” programs, he concluded

When you hear the unending and unsubstantiated rhetoric about “failing public schools” from those that support vouchers or other “competitive” school models, it is important to have the facts. ISDs aren’t perfect, but they graduate more kids, keep more kids from dropping out and get more kids career and college ready than their politically connected competitors. Any claims to the contrary just simply are not supported by the facts and at the end of the day facts matter because these lives matter.

Recognition that “these lives matter” is the hallmark of a society with a capacious understanding of citizenship—both in the sense of who counts as a citizen, and what constitutes the mutual obligations of citizens to one another.

The actual social safety net is not limited to the (grudging and inadequate) financial assistance given to the most disadvantaged in our society. The true safety net consists of the many institutionalized avenues within which the citizens of a nation encounter each other as civic equals, and benefit from membership in a society built upon the recognition that all their lives matter.

Defining the social safety net that way allows us to see that the portion of our taxes used to assist needy fellow-citizens isn’t “forced charity.” It’s our membership dues.

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