• Hobby Lobby Wasn’t About Religious Freedom. It Was About Abortion.


    Elsewhere at Mother Jones, Dana Liebelson collects the eight best lines from Ruth Bader Ginsburg’s dissent in the Hobby Lobby case. Here’s what I consider the most telling passage from Samuel Alito’s majority opinion:

    Kinda reminds you of Bush v. Gore, doesn’t it? Alito takes pains to make it clear that his opinion shouldn’t be considered precedent for anything except the narrowly specific issue at hand: whether contraceptives that some people consider abortifacients can be excluded from health plans.

    I think it’s important to recognize what Alito is saying here. Basically, he’s making the case that abortion is unique as a religious issue. If you object to anything else on a religious basis, you’re probably out of luck. But if you object to abortion on religious grounds, you will be given every possible consideration. Even if your objection is only related to abortion in the most tenuous imaginable way—as it is here, where IUDs are considered to be abortifacients for highly idiosyncratic doctrinal reasons—it will be treated with the utmost deference.

    This is not a ruling that upholds religious liberty. It is a ruling that specifically enshrines opposition to abortion as the most important religious liberty in America.

  • Hobby Lobby Case Adds Yet Another Log to the “War on Women” Bonfire


    Steve Benen thinks the Hobby Lobby case may be an electoral problem for Republicans this November:

    GOP lawmakers and their allies are clearly delighted today, basking in the glow of victory….The trouble is, the American mainstream and GOP policymakers really aren’t on the same page. The latest national polling reinforces the fact that most of the country wanted today’s ruling to go the other way.

    ….Watching Republican-appointed justices to limit contraception access, while Republican lawmakers cheer them on, may be just what Democratic campaign officials needed.

    This is based on the latest Reuters/Ipsos poll, which does indeed show a majority of Americans opposed to the prospect of employers deciding which contraceptives their health plan covers:

    Unfortunately, I don’t think this poll demonstrates much immediate danger for Republicans. Sure, the liberal position has majority approval, but 53-35 percent isn’t a huge margin in these kinds of polls. You really need to see upwards of a 70 percent consensus before the danger lights start to flash, and in some cases (such as gun control) even that’s not enough. What’s more, there’s also the question of intensity. The Reuters poll doesn’t get at this (polls rarely do), but if I had to guess, I’d say the 53 percent who take the liberal position don’t feel all that strongly about it. Their votes won’t swing based on this issue, whereas many of the 35 percent who take the conservative position will indeed vote based on it.

    Still, although this specific case may not really pose much of an electoral threat to Republicans, it does add another log to the “war on women” bonfire. Conservatives are desperate to argue that this is a myth; that it doesn’t matter; that it’s really liberals who hate women; etc. etc. But I think the evidence is pretty strong that, in fact, this really is a growing problem for Republicans. At the moment, it’s more a national problem than a local one, but that could change as the bonfire grows. And the Hobby Lobby case will add some fuel to the fire.

  • Kansas Disproves Supply-Side Magic Yet Again


    Paul Krugman writes today about what’s the matter with Kansas:

    Two years ago Kansas embarked on a remarkable fiscal experiment: It sharply slashed income taxes without any clear idea of what would replace the lost revenue. Sam Brownback, the governor, proposed the legislation — in percentage terms, the largest tax cut in one year any state has ever enacted — in close consultation with the economist Arthur Laffer. And Mr. Brownback predicted that the cuts would jump-start an economic boom — “Look out, Texas,” he proclaimed.

    But Kansas isn’t booming — in fact, its economy is lagging both neighboring states and America as a whole. Meanwhile, the state’s budget has plunged deep into deficit, provoking a Moody’s downgrade of its debt.

    There’s an important lesson here — but it’s not what you think.

    As Krugman goes on to say, the lesson is not that supply-side tax cuts don’t supercharge the economy. We already knew that. The lesson is that this was never really about supply-side theories in the first place: “Faith in tax-cut magic isn’t about evidence; it’s about finding reasons to give powerful interests what they want.”

    This is true. Corporations and rich people want low taxes, but even in post-Reagan America they’re a bit reluctant to just come out and say that the reason they want lower taxes is because they want to keep more of their money. As near as I can tell, they aren’t reticent about this because it embarrasses them, they’re reticent because they understand that it’s wildly unpersuasive to anyone who’s not rich. So they need some plausibly altruistic excuse for supporting tax cuts on themselves. Enter supply-side economics.

    Still, we’re all capable of astonishing feats of convincing ourselves of things that we want to believe. So here’s what I wonder: do today’s rich really believe this stuff anymore? The fact is that it really was a plausible theory in the early 80s, when it was being applied to income tax rates of 70 percent. Today, when it’s being applied to federal rates of under 40 percent and state rates of well under 10 percent, there’s not even the slightest hint of plausibility. It’s as close to a completely bankrupt theory as it’s possible to have in a field like economics.

    And yet, most of them must still believe it, right? The alternative is that we have a large class of people who are consciously lying about all this and don’t feel a twinge of remorse. It’s nice to think about your ideological opponents that way, but aside from the occasional sociopath here and there, that’s really not the way most people operate. That want lower taxes, and they also want to believe that they themselves are good people. So they continue to believe in a theory that’s been about as conclusively disproven as phlogiston.

    But how? It’s easy: you just cherry pick your evidence. Look at Texas! Low taxes and great growth. Look at California! High taxes and lousy growth. (And pay no attention when those trends reverse course.) As for Kansas, eventually they’ll slash spending on the poor enough to balance their budget, and eventually their economy will recover. Economies always do. And then, it will be: See? We told you that tax cuts would supercharge the economy!

  • The Good Guys Are 0-2 in Supreme Court Today


    The Supreme Court could have obliterated public sector unions today by ruling that workers can’t be required to pay representation fees if they disagree with the union’s political stands. It’s been longstanding practice that such workers don’t have to pay full union dues—which include money used for political activity—but do have to pay fees that are used to support collective bargaining activities that benefit everyone.

    But the court stepped back from the brink today, ruling in favor of workers who objected to the fees, but then saying their ruling was limited solely to home health care workers:

    The ruling was limited to this particular segment of workers — not private sector unions — and it stopped short of overturning decades of practice that has generally allowed public sector unions to pass through their representation costs to nonmembers.

    Writing for the court, Justice Samuel Alito said home care workers are different from other types of government employees because they work primarily for their disabled or elderly customers and do not have most of the rights and benefits of state employees.

    ….The workers had urged the justices to overturn a 1977 Supreme Court decision which held that public employees who choose not to join a union can still be required to pay representation fees, as long as those fees don’t go toward political purposes. They say the union is not merely seeking higher wages, but making a political push for expansion of Medicaid payments.

    Alito said the court was not overturning that case, Abood v. Detroit Board of Education. That case, he said, is confined “to full-fledged state employees.”

    So public sector unions live to fight another day. At this point, the question is whether a majority on the court is truly unwilling to overturn Abood, or whether they want to do it slowly and today’s case is just an opening volley.

    In other news, the good guys lost in the Hobby Lobby case:

    The U.S. Supreme Court dealt a setback to President Obama’s healthcare law Monday and ruled that Christian business owners with religious objections to certain forms of birth control may refuse to provide their employees with insurance coverage for contraceptives.

    In a major 5-4 ruling on religious freedom, the justices decided the religious rights of these company owners trump the rights of female employees to receive the full contraceptive coverage promised by the law.

    Alito wrote the Hobby Lobby opinion too, and he was careful to say that this case doesn’t apply to much of anything else that a religious employer might object to. Only things related to abortion, apparently. Because….um, that’s plainly more important than any other religious objection on the planet. Or something.

    In the end, I suppose that’s good news. A narrow ruling is better than a broad one. Today’s holding applies only to closely-held corporations (those in which a small number of people have majority control of the company), and Kennedy’s concurrence apparently says the government can pay directly for contraception coverage if it want to. It could have been worse.

  • Seriously, What Accounts for the Right-Wing Obsession With Military Tribunals?


    From the Guardian today:

    Mike Rogers, the chair of the House of Representatives intelligence committee, told CNN Khattala had been “compliant but not cooperative” through 10 days of interrogation on a navy ship before being transferred to Washington for a civilian trial. Rogers said Khattala should be classified as an enemy combatant and held at Guantánamo Bay.

    ….“We have a military tribunal process and I do believe in it. We’ve used it in the past, in World War II and subsequent to that. We have a process where they get a trial and their guilt or innocence is established.

    This has become such a knee-jerk reaction from right-wing politicos that I almost don’t even notice it anymore. But seriously, what is it that accounts for the conservative obsession with military tribunals? Abu Khattala would get a taxpayer-paid defense attorney either way. He’ll be held securely either way. He’s got about the same chance of being convicted either way. And if he is convicted, he’ll be shipped off to an appropriately grim prison cell either way.

    So what’s the deal? Is this really just code for we should ship him to Gitmo and interrogate him in, um, an enhanced way? Is it code for Obama is doing this so we’re against it? Or is there something more to it? There’s a mountain of evidence suggesting that civilian courts are more effective at prosecuting terrorism than military tribunals, so that’s not it. Unless torture and abusive treatment are their goals, it’s a mystery why folks like Rogers keep banging away endlessly on their infatuation with military tribunals.

  • Did the White House Create a Bunch of Fake Lois Lerner Emails?


    Howard Kurtz thinks Jon Stewart is going too damn easy on our current president:

    When it comes to Obama, the humor is gentle. I do recall Stewart pummeling the president over the botched ObamaCare rollout. But on the IRS scandal this week, he mocked the tax agency for almost criminal stupidity in losing all those emails—but never questioned whether the Obama administration is engaged in a coverup.

    Yes, Kurtz actually wrote that. He thinks Jon Stewart should have entertained the possibility that someone in the White House invented a time machine and wrote a bunch of emails in 2011 asking the IT department at the IRS to fix Lois Lerner’s crashed hard drive. Maybe it was the same time machine that inserted Obama’s birth record in the Honolulu Advertiser in 1961. Or, perhaps, Mission Impossible-like, a crack team of forgers ginned up a bunch of fake emails that just looked like they were from 2011.

    Look, I’m not saying that’s what’s happened. I’m just asking the question. It’s what any responsible journalist would do.

  • Friday Cat Blogging – 27 June 2014


    Here is Domino peeking out from under one of Marian’s sweatshirts. I guess cats just like caves. It’s not like it’s been chilly around here these days.

    And now, I’m off to the dentist to see if we can finally install a crown. The first two didn’t fit properly, so we’re hoping third time’s the charm. It will be nice to be able to chew on both sides of my mouth again.

  • Are Tea Partiers Really Less Willing to Compromise Than Extreme Lefties?


    Ezra Klein writes today:

    Hardcore conservatives agree with liberals on a lot. They just don’t want to compromise.

    This is based on the Pew typology survey, which finds that “steadfast conservatives” oppose compromise by a 2:1 margin, while every other group favors compromise by at least a little bit. At the far left end of the spectrum, “solid liberals” favor compromise by 84-11 percent.

    This is the same result that we’ve seen in lots of other surveys, and I sure wish someone would dig deeper into this. I can think of several questions:

    • Are folks on the far left really in favor of compromise? Or by “compromise” do they actually mean “the other side should back down in exchange for a few bones”?
    • Do extreme conservatives have good reason to be suspicious of compromise? A feeling of being sold out is a common trope on the right, but is it justified?
    • Are liberals in favor of compromise because they believe—correctly—that change is always incremental, which makes it sensible to accept an increment now in the sound belief that it will encourage a slippery slope toward further increments? (And likewise, are conservatives perfectly rational to oppose compromise for the same reason?)
    • In practice, when various real-world compromise positions are polled, are extreme liberals truly more willing to accept them than extreme conservatives?

    You can probably guess that I’m a little skeptical of the entire notion that liberals are all sweetly willing to compromise. They certainly talk in a more conciliatory manner than tea partiers, and maybe in the end they really are more willing to swallow half a loaf. But I have my doubts. More research, please.

  • Most Americans Think Racial Discrimination Doesn’t Matter Much Anymore


    On Thursday Pew released its latest “typology report,” which breaks down Americans into seven different groups. I’m a little skeptical of these kinds of clustering exercises, but I suppose they have their place. And one result in particular has gotten a lot of play: the finding that more than 80 percent of conservatives believe that blacks who can’t get ahead are responsible for their own condition.

    But I think that misstates the real finding of Pew’s survey: everyone thinks blacks who can’t get ahead are mostly responsible for their own condition. With the single exception of solid liberals, majorities in every other group believe this by a 2:1 margin or more. That’s the takeaway here.

    The other takeaway is that the news was a little different on the other questions Pew asked about race. The country is split about evenly on whether further racial progress is necessary, and large majorities in nearly every group continue to support affirmative action on college campuses. A sizeable majority of Americans may not believe that discrimination is the main reason blacks can’t get ahead, but apparently they still believe it’s enough of a problem to justify continuing efforts to help out.

    Overall, though, this is not good news. It’s obvious that most Americans don’t really think discrimination is a continuing problem, and even their support for affirmative action is only on college campuses, where it doesn’t really affect them. If that question were about affirmative action in their own workplaces, I suspect support would plummet.

    I don’t have any keen insights to offer about this. But like it or not, it’s the base on which we all have to work. Further racial progress is going to be very slow and very hard unless and until these attitudes soften up.

  • President Obama Has Finally Learned the Limits of American Military Power


    I’ve been meaning to make note of something about Iraq for a while, and a story today in the LA Times provides the perfect hook:

    A group of U.S. diplomats arrived in Libya three years ago to a memorable reception: a throng of cheering men and women who pressed in on the startled group “just to touch us and thank us,” recalled Susan Rice, President Obama’s national security advisor….But in three years Libya has turned into the kind of place U.S. officials most fear: a lawless land that attracts terrorists, pumps out illegal arms and drugs and destabilizes its neighbors.

    ….Now, as Obama considers a limited military intervention in Iraq, the Libya experience is seen by many as a cautionary tale of the unintended damage big powers can inflict when they aim for a limited involvement in an unpredictable conflict….Though they succeeded in their military effort, the United States and its North Atlantic Treaty Organization allies fell short in the broader goal of putting Libya on a path toward democracy and stability. Exhausted after a decade of war and mindful of the failures in Iraq, U.S. officials didn’t want to embark on another nation-building effort in an oil-rich country that seemed to pose no threat to Western security.

    But by limiting efforts to help the new Libyan government gain control over the country, critics say, the U.S. and its allies have inadvertently helped turn Libya into a higher security threat than it was before the military intervention.

    The view of the critics in this piece is pretty predictable: no matter what happens in the world, their answer is “more.” And whenever military intervention fails, it’s always because we didn’t do enough.

    But I don’t think Obama believes this anymore. He mounted a surge in Afghanistan, and it’s pretty plain that it’s accomplished very little in the way of prompting reconciliation with the Taliban or setting the stage for genuine peace. Even lasting stability seems unlikely at this point. That experience made him reluctant to intervene in Libya, but he eventually got talked into it and within a couple of years that turned to shit too. Next up was Syria, and this time his reluctance was much more acute. There would be some minor steps to arm the anti-Assad rebels, but that was it. There was a brief moment when he considered upping our involvement over Syria’s use of chemical weapons, but then he backed off via the expedient of asking for congressional approval. Congress, as Obama probably suspected from the start, was unwilling to do more than whine. When it came time to actually voting for the kind of action they kept demanding, they refused.

    By now, I suspect that Obama’s reluctance to support military intervention overseas is bone deep. The saber rattlers and jingoists will never change, but he never really cared about them. More recently, though, I think he’s had the same epiphany that JFK had at one time: the mainstream national security establishment—in the Pentagon, in Congress, in the CIA, and in the think tanks—simply can’t be trusted. Their words are more measured, but in the end they aren’t much different from the perma-hawks. They always want more, and deep in their hearts the only thing they really respect is military force. In the end, they’ll always push for it, and they’ll always insist that this time it will work.

    But I don’t think Obama believes that anymore, and I think he’s far more willing to stand up to establishment pressure these days. This is why I’m not too worried about the 300 advisors he’s sent to Iraq. A few years ago, this might very well have been the start of a Vietnam-like slippery slope into a serious recommitment of forces. Today, I doubt it. Obama will provide some limited support, but he simply won’t be badgered into doing more. Deep in his heart, he now understands that Iraq’s problem is fundamentally political. Until there’s some chance of forging a genuine political consensus, American troops just can’t accomplish much.

  • Immigration Reform: It’s Finally Officially Dead


    I’ve had a friendly argument with Greg Sargent for some months about whether immigration reform was dead, or was merely on life support and still stood a chance of resuscitation. But in a way, it may turn out we disagreed a little less than we thought. He points me today to this Politico story:

    Last summer, House Speaker John Boehner (R-Ohio) privately told the National Hispanic Christian Leadership Conference that if reformers won the August recess, then Republicans would move a bill in the fall. But the Syria crisis, the government shutdown and the botched rollout of HealthCare.gov consumed attention through the end of 2013.

    ….As recently as this month, however, there was more movement in the House than previously known….But then Majority Leader Eric Cantor (R-Va.) lost his Republican primary election. And young children from Central America crossed illegally over the southwestern border in record numbers. Those two unforeseen events killed any remaining chance for action this year.

    ….For their part, reformers underestimated how impervious most House Republicans would be to persuasion from evangelicals, law enforcement and big business, and how the GOP’s animus toward Obama over health care and executive actions would bleed into immigration reform.

    Before last summer I didn’t think immigration reform was irretrievably dead. I thought it was damn close, but it wasn’t until fall that I was pretty sure it was, indeed, completely dead. And that’s pretty much my read of what Politico says. (Though, as it happens, I wouldn’t actually put much stock in John Boehner’s promise to the NHCLC, since it sounds mostly like something he said merely to avoid gratuitously pissing off a constituency, even though he knew perfectly well the reformers weren’t going to win the August recess.)

    I’d say the last paragraph of the excerpt is key. The reformers may have kept up their hopes, but for some reason they simply didn’t understand just how hellbent the tea partiers were against any kind of serious immigration reform. I, on the other hand, being a cynical liberal, understood this perfectly. They were never going to bend—not no how, not no way—and Boehner was never going to move a bill without them.

    The canary in the coal mine was always Marco Rubio. He genuinely wanted reform; he genuinely worked hard to persuade his fellow conservatives; and he genuinely had credibility with the tea party wing of the GOP. But by the end of summer, he understood the truth: it wasn’t gonna happen. At that point, he backed away from his own bill, and that was the death knell. No base, no bill. And by the end of summer, it was finally and definitively clear that the base just wasn’t persuadable.

    In any case, Republicans have now abandoned even the pretense of working on immigration reform, and Sargent says they’ll come to regret this:

    The current crisis is actually an argument for comprehensive immigration reform. But [Rep. Bob] Goodlatte — who once cried about the breakup of families — is now reduced to arguing that the crisis is the fault of Obama’s failure to enforce the law. Goodlatte’s demand (which is being echoed by other, dumber Republicans) that Obama stop de-prioritizing the deportation of the DREAMers really means: Deport more children. When journalist Jorge Ramos confronted Goodlatte directly on whether this is really what he wants, the Republican refused to answer directly.

    ….This is the course Republicans have chosen — they’ve opted to be the party of maximum deportations. Now Democrats and advocates will increase the pressure on Obama to do something ambitious to ease deportations in any way he can. Whatever he does end up doing will almost certainly fall well short of what they want. But determining the true limits on what can be done to mitigate this crisis is now on him.

    I don’t know what Obama is going to do. For years, he followed a strategy of beefing up enforcement in hopes of gaining goodwill among conservatives. In the end, all that accomplished was to anger his own Hispanic supporters without producing anything of substance. At this point, there’s no downside to taking maximal executive action, so he might very well do that. But will he do it before or after the midterms? Or just give up and move on to other things? Hard to say.

  • No, Obamacare Didn’t Tank the Economy Last Quarter


    For some reason, there’s been a fair amount of attention paid to the impact of Q1’s decline in health care growth on the latest GDP numbers, which were pretty dismal. The Wall Street Journal even figured out a way to blame it all on Obamacare. This is nonsensical, and in any case, the question of what happened is almost certainly pretty simple. Here’s Dean Baker:

    The NYT noted that a sharp drop in health care spending reduced the first quarter growth rate by 0.16 percentage points. It is important to recognize that this drop followed a surge in health care spending reported for the fourth quarter of 2013 that added 0.62 percentage points to growth in quarter….It is likely that the data overstated the actual increase in spending in the fourth quarter and therefore also overstated the drop in the first quarter. The average impact of health care spending on growth for the two quarters taken together is almost the same as over the prior four quarters.

    Yep. I’ve illustrated this with a gigantic diagram showing raw health care expenditure figures below. In short, the Q1 decline is almost certainly just statistical noise. Pay no attention to the hyperventilating.

  • Maybe Congress Will Now Move to Protect Email From Warrantless Searches


    Brian Fung reports that yesterday’s Supreme Court ruling protecting smartphones from warrantless searches may be having a ripple effect:

    Members of Congress who back stronger protections for e-mail and other electronic communications have begun citing the Court’s landmark privacy endorsement, in an attempt to add momentum to their own privacy legislation.

    The push to reform the Electronic Communications Privacy Act, a decades-old law that allows cops to read your e-mails if they’ve lain dormant for more than 180 days, has the support of the Justice Department and 220 cosponsors of a House bill known as the Email Privacy Act. The proposal would force police to get a warrant if they want to look at a suspect’s e-mail. Today, that type of inspection requires little more than a subpoena.

    Remarkably enough, 138 of these cosponsors are Republicans and 82 are Democrats. This means it not only has majority support within the House as a whole, but it also has the support of considerably more than half the Republican caucus. That doesn’t mean it can get by House Judiciary Committee chairman Bob Goodlatte, but maybe if another hundred Democrats sign on, even Goodlatte will crumble in the face of a bill supported by three-quarters of the House.

  • Another Geopolitical Triumph For Vladimir Putin!


    From the Guardian:

    It was the document that started a revolution and ended up bringing Europe to the brink of war. Ukraine’s association agreement with the European Union, a mainly economic document setting up a free trade area that nevertheless has political and strategic ramifications, will finally be signed on Friday.

    Along with Georgia and Moldova, two other post-Soviet countries keen to move out of Moscow’s orbit, Kiev will sign the deal with Brussels to establish a free-trade area and introduce a raft of measures designed to synchronise economies with EU nations, as well as improve rule of law and human rights.

    Yep, that Putin is a geopolitical strategic mastermind, isn’t he? Every country on Russia’s border is now hellbent on better economic and military ties with the West. Nice work.

  • No, the Aereo Case Doesn’t Endanger Cloud Computing Services


    I’m puzzled by much of the commentary on the Aereo case. Much of it echoes a point in Scalia’s dissent, namely that ruling against Aereo puts all sorts of cloud computing services at risk. After all, if it’s a copyright infringement for Aereo to rent you an antenna and some hard disk space, then why shouldn’t it be an infringement for, say, Google to rent you cloud storage that allows you to copy—and potentially share—copyrighted music?

    I think David Post has the answer right:

    The majority is at pains, in several places, to say that the case is just about broadcast television and the re-transmission of broadcast signals. Not about cloud storage, or streaming services, or gaming platforms, or anything else. Just broadcast TV, and what you may or may not do with over-the-air broadcast signals. Congress has made a choice about those signals; anyone who re-transmits them (like the cable companies do) has to pay royalties to the broadcasters. If that’s what it means … the decision has nothing to say about any other content-delivery or content-storage platforms that deal with the vast array of non-broadcast-TV content.

    The Aereo case turns almost entirely on the fact that Aereo was retransmitting TV signals, which are covered by a very specific statute. Despite Scalia’s huffing and puffing, I simply don’t see how this applies to cloud storage platforms.

    Beyond that, there’s another crucial distinction: Aereo was explicitly in the business of retransmitting content that was almost 100 percent copyrighted. That’s fundamentally different from a third-party service—email, cloud storage, etc.—that can be used for infringing purposes but has a generally legitimate intent. The Supreme Court has ruled in cases like this before, and it’s why VCRs and Gmail are still around even though people sometimes use them to copy and share copyrighted material with each other, while Napster is dead.

    It’s hard not to conclude that much of the opposition to the Aereo decision is based on a simple libertarian dislike of enforcing copyright law at all. But like it or not, commercial TV is almost entirely copyrighted content, and the stations that produce it have every right to control how it’s distributed. The fact that current copyright law is overly expansive doesn’t really affect that.

    POSTSCRIPT: It’s interesting that we’ve seen back-to-back decisions that, to my mind, were confirmed in diametrically opposite ways. In the Aereo case, Aereo thought it had discovered a clever loophole in copyright law, but the court ruled against them. The general intent of the law was more important. In the recess appointment case, Senate Republicans found a clever loophole to stay technically in session, and the court ruled that this was perfectly fine. The fact that it was a hypertechnical sham didn’t move them.

  • Digital Privacy Is Fundamentally Different From Physical Privacy


    Tim Lee argues—or perhaps merely hopes—that yesterday’s decision protecting cell phones from warrantless searches might signal a turning point for the Supreme Court’s attitude toward digital information in general:

    The government has typically pursued a simple legal strategy when faced with digital technologies. First, find a precedent that gave the government access to information in the physical world. Second, argue that the same principle should apply in the digital world, ignoring the fact that this will vastly expand the government’s snooping power while eroding Americans’ privacy.

    ….The government hoped the Supreme Court would take this same narrow, formalistic approach in this week’s cell phone privacy case. It wanted the justices to pretend that rifling through the vast quantity of personal information on a suspect’s cell phone is no different from inspecting other objects that happen to be in suspects’ pockets. But the Supreme Court didn’t buy it.

    ….The Supreme Court clearly recognizes that in the transition from information stored on paper to information stored in computer chips, differences of degree can become differences of kind. If the police get access to one letter or photograph you happen to have in your pocket, that might not be a great privacy invasion. If the police get access to every email you’ve received and every photograph you’ve taken in the last two years, that’s a huge invasion of privacy.

    This is a problem that’s been getting more acute for years. The basic question is whether courts should recognize the fact that digital access to information removes practical barriers that are important for privacy. For example, the state of California keeps lots of records about me that are legally public: DMV records, property records, birth and marriage records, etc. In the past, practically speaking, the mere fact that they were physical records provided me with a degree of privacy. It took a lot of time and money to dig through them all, and this meant that neither the government nor a private citizen would do it except in rare and urgent cases.

    In the digital world, that all changes. If a police officer has even a hint of curiosity about me, it takes only seconds to compile all this information and more. In a technical sense, they don’t have access to anything they didn’t before, but in a practical sense I’ve lost a vast amount of privacy.

    In the past, the Supreme Court has rarely (never?) acknowledged this. In yesterday’s cell phone case, they not only acknowledged it, they acknowledged it unanimously. Is it possible that this means they’ll be applying a more skeptical view to similar cases in the future? Or even revisiting some of their past decisions in light of the continuing march of technology? We don’t know yet, but it’s certainly possible. Maybe the Supreme Court has finally entered the 21st century.

  • Supreme Court Rules That Even a Sham Recess is Still a Recess


    See? If you take President Obama to court over an issue of executive overreach, you might win:

    The Supreme Court on Wednesday limited the president’s power to fill high-level vacancies with temporary appointments, ruling in favor of Senate Republicans in their partisan clash with President Barack Obama.

    The court’s first-ever case involving the Constitution’s recess appointments clause ended in a unanimous decision holding that Obama’s appointments to the National Labor Relations Board in 2012 without Senate confirmation were illegal.

    Republicans had argued that the Senate wasn’t really in recess when Obama made those appointments. Obama argued that, in practice, the Senate was indeed in recess, and simply gaveling open a few pro forma “sessions” during the break didn’t change that. In this case, the justices decided to go with the letter of the law, and Obama lost.

    This result doesn’t bother me much. I actually agree with Obama that these pro forma sessions are shams, but sometimes the law allows you to get away with technicalities like this. In any case, it’s good that we have a definitive ruling here.

    On the other hand, the related ruling on a tea party hobbyhorse—that virtually all recess appointments are illegal anyway because the only real recess is the annual end-of-year break—is more problematic. This one struck me as completely ridiculous and contrary to 200 years of precedent, but the court rejected it only by a 5-4 margin. That’s four votes for an entirely invented bit of nonsense, and that’s not a good sign.

  • Boehner Plans Lawsuit to Rein in King Barack I


    House Speaker John Boehner, apparently responding to tea party anger over President Obama’s continued “lawlessness,” plans to take Obama to court:

    On one matter after another during his presidency, President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce — at times even boasting about his willingness to do it, as if daring the America people to stop him. On matters ranging from health care and energy to foreign policy and education, President Obama has repeatedly run an end-around on the American people and their elected legislators, straining the boundaries of the solemn oath he took on Inauguration Day.

    ….Everywhere I go in America outside of Washington, D.C., I’m asked: when will the House stand up on behalf of the people to stop the encroachment of executive power under President Obama? We elected a president, Americans note; we didn’t elect a monarch or king.

    ….Under our system of government, the Judicial Branch has the power to resolve disputes between the Executive and Legislative Branches. When there is a failure on the part of the president to faithfully execute the law, the House has the authority to challenge this failure in the Judicial Branch by filing suit in Federal Court….

    Good for Boehner. If he truly believes that Obama has overstepped his authority, this is exactly what he should do: stop whining, and instead step up to the plate and take his cases to court. My guess is that he might even be able to win a few of them. A couple of the Obamacare delays, in particular, seem legally pretty dodgy.

    None of this will be easy for Boehner. The tea partyish nature of Boehner’s language is pretty obvious, so this should go over well with the base—but only if he plays his cards wisely. He’ll need to choose his cases carefully, and he’s between a rock and a hard place there. Pick too many fights and he’ll end up embarrassing himself with a string of losses. Pick too few and the tea party will think he’s a wuss. Plus he needs money for all this stuff, and there are almost certain to be some fairly serious standing issues related to many of them.

    Still, I hope he goes through with this. Let’s find out what he’s really serious about, and then see what the Supreme Court thinks about it. That’s how this stuff should be resolved.

    POSTSCRIPT: This might not mean anything, but I’m a little surprised that Boehner’s bill of particulars didn’t include immigration. This is one of the tea party’s biggest hot buttons when it comes to Obama allegedly refusing to enforce the law. Was it just an oversight? Or a sign that it’s not on his list of presidential transgressions? Wait and see.

  • Supreme Court: Aereo Looks Just Like Cable TV, So It Has to Follow the Same Laws as Cable TV


    I’ve been reading the Supreme Court’s opinion in the Aereo case, and it’s kind of fascinating. As you may know, Aereo is a company that installs thousands of tiny antennnas in a warehouse and then lets users “rent” one of the antennas, as well as some storage space. Users connect to their antenna via the internet, and can either watch broadcast TV in real time or set up times for shows to be recorded.

    Broadcast networks claim that Aereo is retransmitting their content to the public, which is a violation of copyright law. Aereo, naturally, disagrees. The court’s decision appears to hinge on a single key question: can Aereo be said to be an active infringer when it’s merely a passive conduit for users, who are the ones who choose what to watch and record?

    The majority said yes, because Aereo is essentially just like a cable TV operator, and the Copyright Act of 1976 specifically says that cable TV operators are retransmitting content. Antonin Scalia, writing in dissent, calls this specious:

    The Court’s reasoning fails on its own terms because there are material differences between the cable systems at issue in [Teleprompter and other decisions] on the one hand and Aereo on the other. The former (which were then known as community-antenna television systems) captured the full range of broadcast signals and forwarded them to all subscribers at all times, whereas Aereo transmits only specific programs selected by the user, at specific times selected by the user. The Court acknowledges this distinction but blithely concludes that it “does not make a critical difference.”

    ….Even if that were true, the Court fails to account for other salient differences between the two technologies….At the time of our Teleprompter decision, cable companies “perform[ed] the same functions as ‘broadcasters’ by deliberately selecting and importing distant signals, originating programs, [and] selling commercials,”, thus making them curators of content—more akin to video-on-demand services than copy shops. So far as the record reveals, Aereo does none of those things.

    The key distinction here is that Aereo doesn’t actively “curate” its content or retransmit everything at all times. It just makes everything available and users then choose what to watch. “Some of those broadcasts are copyrighted; others are in the public domain. The key point is that subscribers call all the shots.”

    I can’t say that I find this very persuasive. For one thing, cable operators don’t forward everything to all subscribers at all times. You have to turn on your cable box and then set your tuner to pick up a particular station. More substantively, I suppose it’s true that there are bits and pieces of broadcast television that are in the public domain, but come on. Virtually everything Aereo makes available is copyrighted material and they know it. Scalia says Aereo is a lot like a copy shop, which isn’t held liable for the occasional customer who infringes copyright because, in practice, most of their customers aren’t infringing. But if a shop ran a service where they copied entire books from their library, they’d be held liable—even if a few of their books were in the public domain and even if their users had to physically press a button to start up the copying process.

    In any case, as near as I can tell this case is based almost entirely on extremely fine points like this. Is Aereo essentially the same as a cable TV operator, and thus something that Congress intended to regulate in the Copyright Act of 1976? Can Aereo be held liable for infringement even though it’s users who make the decisions about what to watch and what to record? Are Aereo’s transmissions “public” even though each individual antenna is rented out to only a single individual person?

    I could have seen this case going either way, but in the end the majority decided the case based on their conclusions about (a) the intent of Congress and (b) whether Aereo is so similar to a cable TV operator that it falls under the same laws. In the end, they decided that if it looks like a duck and quacks like a duck, it’s a duck. And Aereo lost.

  • Race and Republicans in Mississippi’s Senate Primary


    In yesterday’s primary election in Mississippi, incumbent Thad Cochran appealed to black voters in his race against Chris McDaniel. This is from a New York Times companion piece to their main reporting on the election:

    The former mayor [of Belzoni, an early focal point of the civil rights movement] was not surprised by African-Americans’ enthusiasm for Mr. Cochran. The returns showed that Humphreys County, a predominantly African-American area, went for the senator, 811 to 214. “Cochran has been very responsive to the community, to the constituency and the state regardless of race,” he said.

    ….Race relations have improved over the last 45 years, and African-Americans made a coordinated effort to keep Mr. Cochran in office out of concern that his challenger, Chris McDaniel, a Tea Party favorite, would be less inclusive.

    McDaniel is crying foul because he thinks Cochran won with the help of liberal Democratic voters—as he’s allowed to do in Mississippi’s open primary system. Ed Kilgore is unimpressed:

    The kvetching from the Right last night sounded an awful lot like southern seggies during the civil rights era complaning about “The Bloc Vote”….For all the talk last night of “liberal Democrats” being allowed to determine a Republican primary, there’s actually no way to know the partisan or ideological identity of voters in a state with no party registration (as David Nir pointedly asked this morning, why hasn’t Chris McDaniel sponsored a bill to change that in his years in the state legislature?). So what these birds are really complaining about is black participation in a “white primary.” This is certainly not an argument consistent with broadening the appeal of the GOP or the conservative movement.

    I don’t doubt for a second that race played a role here, but I think this is a mite unfair. In 2012, Mississippi blacks voted for Barack Obama over Mitt Romney by 96-4 percent. In 2008, they voted for Democrat Ronnie Musgrove over Republican Roger Wicker 92-8 percent and for Democrat Erik Fleming over Thad Cochran 94-6 percent. (Mississippi had two senate races that year.)

    Cochran did nothing wrong in yesterday’s election, and if blacks showed up to support him because they disliked McDaniel’s racially-charged past, that’s democracy for you. Still, I think it’s pretty clear that most of these voters really were Democrats. Race may be an underlying motivation for the complaints from McDaniel’s supporters, but conservative dislike of Democrats voting in a Republican primary is also a motivation. (And, in my view, a legitimate one. I’m not a fan of open primaries.)

    That said, if tea party types want to avoid accusations of racism, they should steer clear of things like loudly announcing an Election Day program to send teams of “poll watchers” to majority black precincts. Especially in a state with a history like Mississippi’s, it’s pretty hard to interpret that as anything other than a deliberate racial provocation.