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Did Republicans Ever Think They Really Had a Chance of Winning King v. Burwell?

| Tue Jun. 30, 2015 2:08 PM EDT

Today, Harold Pollack wins the award for....um, something. Best geek-obsessive amateur polling and chartmaking of 2015? Whatever, it's really impressive. Man, I wish I had done this.

So here's what he did: Last week, before the Supreme Court's Obamacare decision was announced, Pollack asked an "elite group of health policy and legal experts" to give their predictions. Who would win? The plaintiffs or the government? He got replies from over 40 people, about three-quarters of them Democrats. With the obvious caveat that this is a nonrandom, nonscientific sample etc. etc., here's what he found:

Although Democrats and Republicans had wildly different views of who should win, the distribution of predicted probabilities of a plaintiff victory was surprisingly similar between the two groups. Amazingly, Cato’s Michael Cannon and I offered identical prior predictions—20% probability of plaintiff victory.

Among Democrats, the median predicted probability of plaintiff victory was 40%. Among Republicans, the median was 37.5%.

Pollack has a different takeaway from some of this than I do, and you should read his post for more. But I have a different point to make. Before the decision was handed down, I noticed that in public an awful lot of experts seemed to be assuming a plaintiff victory. Conservatives were adamant that they had a slam-dunk winning case. Liberals, for their part, increasingly seemed to be in tacit agreement thanks to their pessimism about the cynicism of the Roberts court. At a guess, if you were a visitor from Mars perusing blogs and op-ed columns, you'd assume that most people thought the plaintiffs were going to win.

And yet, behind the scenes that wasn't the case. In private, even Republicans thought victory for the plaintiffs was unlikely.

So here's what we have in this case. In public, Republicans were sticking with confident assertions that the case was a winner on plain textual grounds. Democrats, in public, were becoming more and more resigned to a conservative victory.

And what does the public take away from all this? All we can do is guess, but I'd say most of them figured the plaintiffs had the better case. After all, both sides seemed to think so. This makes it pretty easy to generate a serious sense of outrage when, in the end, the plaintiffs lost after all.

The lesson conservatives taught us here is simple: Never let them see you sweat. Insist to the bitter end that you obviously have the better case. That's good politics. For one thing, it might actually give you a better chance of winning. And even if it doesn't, it makes it easier to maintain public outrage when you lose. In this case, conservatives did a pretty good job of wringing every possible advantage they could out of King v. Burwell.

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Gov. Jerry Brown Signs Landmark Bill Requiring Childhood Vaccinations

| Tue Jun. 30, 2015 1:50 PM EDT

Amid heavy pushback from anti-vaccine groups, California Governor Jerry Brown signed legislation today officially putting an end to the personal belief exemptions that let parents opt out of vaccinating their kids for reasons of philosophy or conscience. California is now just one of just three states that does not allow nonmedical exemptions.

The bill, introduced in February by Sen. Sen. Richard Pan (a pediatrician), came in response to the Disneyland outbreak, which infected more than 100 people across the US and Mexico at the beginning of this year. Measles, a preventable but dangerous disease, has been on the rise in recent years due in large part to the increase in people claiming the exemption. Many of those infected were too young, or medically unable to get the vaccine. Public health officials expressed concerns that measles could become endemic again—putting everyone at risk—if vaccination coverage continued to fall.

The new law should close those vaccination gaps by requiring that all children enrolled in school be up to date on shots against 10 childhood diseases, unless a doctor determines they are medically unable to receive vaccines. Parents who decide against these mandatory vaccines would be forced to homeschool.

Vaccines are extremely effective at preventing illness and are championed across all health agencies, from the Centers for Disease Control and Prevention to the World Health Organization. Still, there's still a large contingent of anti-vaxxers, and the legislation was hotly contested. The LA Times reports that Sen. Pan has received death threats and his foes have even filed for his recall.

Gov. Brown acknowledged how divisive the issue has become, but stressed how important vaccination is to keeping people healthy: "The science is clear that vaccines dramatically protect children against a number of infectious and dangerous diseases. While it's true that no medical intervention is without risk, the evidence shows that immunization powerfully benefits and protects the community."

Here's his full statement:

 

Managers of America, Unite! You Have Nothing to Lose Except Straight Time for 60 Hours of Work a Week

| Tue Jun. 30, 2015 12:21 PM EDT

If you're paid 12 bucks an hour, you're not making much. But hey—at least you're eligible for overtime. Hooray! Federal law dictates that you be paid time-and-a-half for working more than 40 hours in a week.

But wait. You work at McDonald's and you're a "supervisor." Under the current opaque and complicated rules adopted a decade ago by the Bush administration, that means you're management. No overtime for you. Sorry.

That wage amounts to about $23,000 per year, and if that seems a little stingy for a manager, you're right. Way back in 1975, the Ford administration set the wage level to qualify as management at $6.25/hour, and if you adjust for inflation that amounts to about $28/hour today, or $56,000 per year. For most of us, that's intuitively a little closer to the wage we think a real manager makes.

Well, good news. Today, after years of arguing and rulemaking, the Obama administration raised the wage level at which the "management exemption" comes into play. It's a little less than the inflation-adjusted figure from the Ford administration, but it's close. The new level is $970 per week, or about $50,000 per year. Anyone paid less than that, even if they have supervisory duties, qualifies for overtime pay. What's more, future increases are pegged to the level of inflation, so the rules will keep up with reality even when Republicans are in office.

Naturally, the folks who benefit from the old rules are threatening havoc. Check this out:

The National Retail Federation, a business group, says its members would probably respond by converting many salaried workers to hourly status, which could cost them benefits such as paid vacation. Other salaried workers would have their hours cut and wouldn’t receive higher pay. Businesses might hire additional workers to avoid paying overtime or extend the hours they give part-timers. Yet supporters of extending overtime coverage say they would welcome those changes.

Charming. Of course, we've heard this before in other contexts—remember all those millions of workers who were supposedly going to be cut from 30 hours a week to 29 to avoid giving them health insurance under Obamacare?—and most companies aren't likely to follow through on this threat. But it's the thought that counts. And surely there will be a few who decide that screwing their managers is good business, and I expect we'll hear about every last one of them.

Don't listen. In this case, anecdotes are just propaganda tools. In a year or so the Department of Labor will provide us all with comprehensive statistics on what happened, and then we'll know. Until then, just enjoy the good news.

UPDATE: This post originally said federal law required overtime pay for working more than 8 hours in a day. That's true in some states, including California, where I live, but it's not federal law. The post has been corrected.

Health Update Update

| Mon Jun. 29, 2015 11:49 PM EDT

As you may recall, the key thing my doctor—and I—would like to see on the multiple myeloma front is a big drop in my M protein level, a marker for cancerous plasma cells. Today we got the latest results, and it's up to 0.9. Since the first round of chemotherapy had already gotten it down to 1.0, what this means is that the entire second round of chemotherapy at City of Hope was basically useless. I didn't respond to it at all.

We went ahead with the biopsy today anyway, for reasons that are a little vague to me. Apparently it will give us some indication of where the cancerous cells are, but the results won't have any impact on my treatment plan. In a couple of days I'll start on a low daily dose of Revlimid, in hopes that it will get my M protein level down to zero. If it doesn't, then we'll try a higher dose.

Revlimid is a highly controlled substance because it's in the same family as thalidomide and can cause serious birth defects. You cannot just pick it up at your local pharmacy. First, you have to fill out a lengthy form, and the medication is then mailed from a central location, presumably in a plain brown wrapper or something. As near as I could tell, pretty much every question on the form was some variation of me promising not to even think about getting anyone pregnant while I'm taking it. As you can imagine, this is not really an issue, so the form turned out not to be too much of a chore after all. It was just OK, OK, OK, OK, etc. I promise.

So that's it for now. Not exactly cheery news, but the buildup of cancerous cells in my bone marrow is not actually that heavy (about 5 percent or so), which means there's a decent chance the Revlimid will be enough to keep it under control. We'll know in a couple of months or so.

Bree Newsome Explains Why She Tore Down the Confederate Flag in South Carolina

| Mon Jun. 29, 2015 6:29 PM EDT

On Monday afternoon, Bree Newsome, the woman who scaled the flagpole at the South Carolina statehouse on Saturday and took down the Confederate flag, made her first public comments since her arrest, which were published on the progressive website Blue Nation Review. She detailed her recent history of activism and described her motivation:

The night of the Charleston Massacre, I had a crisis of faith. The people who gathered for Bible study in Emmanuel AME Church that night—Cynthia Marie Graham Hurd, Susie Jackson, Ethel Lee Lance, Depayne Middleton-Doctor, Tywanza Sanders, Daniel Simmons, Sharonda Coleman-Singleton, Myra Thompson and Rev. Clementa Pinckney (rest in peace)—were only doing what Christians are called to do when anyone knocks on the door of the church: invite them into fellowship and worship.

The day after the massacre I was asked what the next step was and I said I didn’t know. We’ve been here before and here we are again: black people slain simply for being black; an attack on the black church as a place of spiritual refuge and community organization.
I refuse to be ruled by fear. How can America be free and be ruled by fear? How can anyone be?

So, earlier this week I gathered with a small group of concerned citizens, both black and white, who represented various walks of life, spiritual beliefs, gender identities and sexual orientations. Like millions of others in America and around the world, including South Carolina Governor Nikki Haley and President Barack Obama, we felt (and still feel) that the confederate battle flag in South Carolina, hung in 1962 at the height of the Civil Rights Movement, must come down. (Of course, we are not the first to demand the flag’s removal. Civil rights groups in South Carolina and nationwide have been calling for the flag’s removal since the moment it was raised, and I acknowledge their efforts in working to remove the flag over the years via the legislative process.)

We discussed it and decided to remove the flag immediately, both as an act of civil disobedience and as a demonstration of the power people have when we work together.

Explaining why she worked together with fellow activist James Ian Tyson, she continued:

Achieving this would require many roles, including someone who must volunteer to scale the pole and remove the flag. It was decided that this role should go to a black woman and that a white man should be the one to help her over the fence as a sign that our alliance transcended both racial and gender divides. We made this decision because for us, this is not simply about a flag, but rather it is about abolishing the spirit of hatred and oppression in all its forms.

Read Newsome's whole statement here.

The Supreme Court Just Stopped Texas From Closing Almost All Of Its Abortion Clinics

| Mon Jun. 29, 2015 4:13 PM EDT

The Supreme Court on Monday halted key portions of Texas's anti-abortion law from going into effect that would have shutdown all but nine abortion clinics in the state. The stay will remain in place while abortion rights advocates prepare to take their case seeking to overturn portions of the Texas law to the Supreme Court.

The court's four most conservative justices, Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito, and Clarence Thomas, dissented from the order, indicating they would have let the clinics close.

From the New York Times:

The case concerns two parts of a state law that imposes strict requirements on abortion providers. One requires all abortion clinics in the state to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

Other parts of the law took effect in 2013, causing about half of the state’s 41 abortion clinics to close.

Read the order:

 

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NBC Finally Dumps Donald Trump

| Mon Jun. 29, 2015 2:32 PM EDT

On Monday, NBC released a statement announcing it was severing its business ties with Donald Trump following his recent remarks stating Mexican immigrants were "rapists" who carry drugs into the United States.

The network will no longer be airing the real estate mogul's Miss USA and Miss Universe pageants. Trump, who earlier this month descended from an escalator and announced he was making a bid for the White House, stepped down as host from the reality show in order to run for president.

Just last week, the Spanish-language television network Univision also announced it was cutting ties with Trump due to the "insulting remarks." Since then, Trump has threatened to sue the company. On Friday, he even publicly posted a Univision reporter's personal phone number in retaliation to the network's announcement.

Health Update

| Mon Jun. 29, 2015 1:30 PM EDT

This is probably it for blogging today. It's biopsy day for me, and unfortunately this is up in LA, so it's going to wipe out most of the day. The good news is that this is the last of the tests for now, and in a week or two we'll know for sure how well I responded to the second-round chemo up at City of Hope. Whether that turns out to be good news or bad is the million-dollar question.

In the meantime, I'm feeling pretty good. I bought myself a Surface 3 yesterday as part of my tablet collection hobby. It's my fourth in four years. I now have an iPad, an Android tab, and two Windows tabs. Since I don't spend a lot of money on anything else, I figure it's actually a fairly harmless and cheap hobby.

Seems to be OK so far with a few odd quirks. But I've not yet been able to answer my key question: how well does Firefox work? Their servers appear to have been down for maintenance since last night, so I'm unable to sync the new tablet. Until then, it's basically a brick since Firefox is about half of what I do with it. Maybe the Mozilla folks will have their servers back up and running by the time I get home.

Court Rules EPA Must Consider Cost in Regulation of Power Plants

| Mon Jun. 29, 2015 11:51 AM EDT

In today's EPA case, the question at hand was whether EPA has to consider both costs and benefits when it makes the decision to regulate power plants. EPA says it has to consider only benefits during the initial decision, and can consider costs later when it writes the actual regulations themselves.

The conservative majority on the Supreme Court disagreed. Although the Clean Air Act generally requires EPA to regulate sources that  “presen[t] a threat of adverse effects to human health or the environment," the requirements for regulating power plants are different. EPA can only regulate power plants if it finds regulation "appropriate and necessary."

So what does that mean? "There are undoubtedly settings in which the phrase 'appropriate and necessary' does not encompass cost," the majority opinion says, "But this is not one of them." Then this:

EPA points out that other parts of the Clean Air Act expressly mention cost, while [the power plant clause] does not. But this observation shows only that [the power plant clause's] broad reference to appropriateness encompasses multiple relevant factors (which include but are not limited to cost); other provisions’ specific references to cost encompass just cost. It is unreasonable to infer that, by expressly making cost relevant to other decisions, the Act implicitly makes cost irrelevant to the appropriateness of regulating power plants....Other parts of the Clean Air Act also expressly mention environmental effects, while [the power plant clause] does not. Yet that did not stop EPA from deeming environmental effects relevant to the appropriateness of regulating power plants.

As it happens, this is not entirely clear. The origin of the phrase "the exception proves the rule" applies to this. If I say that parking is not allowed on 4th Avenue on weekdays, this implicitly means that parking is allowed on weekends. The fact that I made a specific rule and deliberately failed to include certain cases in that rule, means that the rule doesn't apply to the excepted cases.

In this case, cost is specifically mentioned elsewhere in the Clean Air Act, but not here. So power plants appear to be an exception to the general rule that cost has to be considered from the very start. This means that the question is whether "appropriate and necessary" encompasses cost, or whether Congress would have specifically mentioned cost if it wanted it considered.

The conservative majority decided cost was inherently part of that phrase. The liberal dissenters disagreed. The conservatives won.

John Oliver: Quit Asking Transgender People About Their Genitals

| Mon Jun. 29, 2015 11:08 AM EDT

Friday's historic Supreme Court ruling invalidating gay marriage bans across the country was a major step for equal rights in America. But when it comes to equal rights and protection for the transgender community, the country still has a long way to go.

"For all the strides transgender people have made lately, let's not get too complacent about how far we've come because they still face a host of obstacles," John Oliver reminded on Sunday's Last Week Tonight. "Even when the news media are trying to be supportive they can make dumb mistakes.

It's true—just listen to how the media discusses the "wrong genitalia" and continues to ask invasive questions about a trans person's body.

"It is no more okay to ask transgender people about their sex organs than it would be to ask Jimmy Carter whether or not he's circumcised," Oliver said. "Which by the way he is—smooth like a boiled carrot."

Of course, the challenges facing the transgender community go much farther than how issues are discussed. As Oliver noted on Sunday, it's the practical, everyday changes such as simply allowing transgender people to use the bathroom of their choice, many parts of the country are still fighting against.

"This is a civil rights issue. If you're not willing to support transgender people for their sake, at least do it for your own. Because we've been through this before; we know how this thing ends. If you take the anti-civil rights side and deny people something they're entitled to, history is not going to be kind to you."

Watch below: