Monday, March 30, 2015

Mike Pence Is Lying Through His Teeth

Indiana Governor Mike Pence went on ABC's This Week in an attempt to "clarify" his state's new "religious freedom" bill which he signed into law. In an interview with George Stephanopoulos, Pence said he was surprised by the reaction to the law. That was the only truthful thing he said in the whole interview. He repeatedly refused to answer the question as to whether the law allowed businesses to discriminate against the LBGT community.

Pence kept citing the federal Religious Freedom Restoration Act to justify the Indiana law.

"Well — well, this — there’s been shameless rhetoric about my state and about this law and about its intention all over the Internet. People are trying to make it about one particular issue. And now you’re doing that, as well. The issue here - the Religious Freedom Restoration Act has been on the books for more than twenty years. It does not apply, George, to disputes between individuals unless government action is involved. And, in point of fact, in more than two decades, the Religious Freedom Restoration Act has never been used to undermine anti-discrimination laws in this country."

There's just one problem with that claim: it isn't true and, furthermore, Pence knows that. Yes, all the above is true with respect to the federal version of the Religious Freedom Restoration Act. But professor Howard Friedman at the Religious Clause Blog compared the Indiana law with the federal statute and found some disturbing distinctions between the two.

The (Indiana) bill is broader than its federal counterpart in several ways. 1. It explicitly protects the exercise of religion by entities as well as individuals. Its enumeration of entities includes "a corporation", without limiting this to closely-held companies. 2. The bill's protections may be invoked when a person's exercise of religion is "likely" to be substantially burdened by government action, not just when it has been burdened. 3. The bill also permits the assertion of free exercise rights as a claim or defense in judicial or administrative proceedings even if the government is not a party to the proceedings. The relevant governmental entity has a right to intervene in such cases to respond to the RFRA claim. A remedy under the bill is only available against the government; suits by employees or applicants invoking the law against private employers are precluded.

Summed up, the Indiana law, contrary to its supporters' claims, does indeed allow a business to deny services to the LBGT community on the grounds of religious freedom. It would permit virtually any business or individual to discriminate against a person or group that went against their religious beliefs. Not only that, the business or individual would only have to claim that they are "likely" to be burdened by said person or group. And, lastly, government involvement is not necessary in order to file a claim under law. The old "the government is forcing me to photograph that gay couple" line doesn't apply here.

Yep, Mike Pence and the Indiana General Assembly really stepped into it on this one. They passed a law that ostensibly gives carte blanche to religious bigots and, to their astonishment, they got called on the carpet for it. Want to know how bad they screwed the pooch on this one? When a similar bill passed the Arizona legislature last year, then governor Jan Brewer vetoed it, citing it was too controversial. That's right, Jan (crazy lady) Brewer thought her state's religious freedom bill was TOO controversial for her tastes.

Pence can dance all he wants around the central issue, but he can't hide from the one undeniable fact. When it comes to discrimination against the gay community, it's open season in the Hoosier state.

Sad, isn't it? Fifty years ago, it was the black community that was denied basic services because it went against certain people's beliefs. I guess it IS true that the more things change, the more they stay the same.

Saturday, March 28, 2015

The Rand Paul Factor

Last week's announcement by Ted Cruz that he is running for president in 2016 should come as no shock to anyone who was paying attention to the first term senator from Texas. He's been building up to this moment from the time he arrived in Washington. His hatred for the establishment is matched only by the enormity of his ego. And he's so obviously transparent, he's the only person I can think of who can make Mitt Romney look genuine.

But while most pundits spent the whole week speculating on his chances for locking up the Republican nomination - I'll spare you the trouble, slim to none - the guy flying under the radar who hasn't gotten nearly enough attention is the one who just might end up squeaking by: Rand Paul.

I'm serious. Rand Paul could well be the random element that takes everyone by surprise. Jeb Bush still has a huge disadvantage to overcome. He's despised by the far Right - I mean REALLY despised by the far Right. How much? If Obama is a 10 on the loathing scale from 1 to 10, Bush is about a 6 or 7. Among the Mark Levin lot, he's about a 9. Embracing immigration reform and Common Core has so badly damaged him within this lot, most have said they would rather stay home than vote for him in 2016, thus securing a Hillary Clinton landslide. I don't really buy this narrative. My gut tells me if Jeb wins the nod, they'll turn out in droves to keep another Clinton administration from taking office.

But that doesn't mean they aren't going to do their damnedest to ensure old Jeb doesn't get the chance to beat Hillary. The movement against him will be formidable. Indeed the only hope he has of winning the nomination is if too many far-right candidates end up canceling themselves out. That might end up happening. If Cruz ends up going up against Mike Huckabee and Rick Santorum, the three of them could slice up the pie so thinly, Bush wins by default.

But if Marco Rubio follows through with his plans to enter the race, he, along with Scott Walker, could equally split the establishment vote, allowing Paul to emerge as the likely benefactor. I know a lot of people don't consider Walker an establishment candidate, but, trust me, compared to Cruz, Huckabee and Santorum, he's practically Dwight Eisenhower.

Paul is well respected by most Republican voters. With the exception of the neocons, he's seen by many in the party as a serious candidate. His message of government bad, private sector good, resonates with the Tea Party.  And he's enough of a social conservative to mollify the Christian Right. While he may not win Iowa - big deal - he could win New Hampshire and a good many other states.

And, unlike Cruz, he isn't nuts. In fact, he's one of the few GOP candidates who crosses several important demographic lines. His stance on the drug war is practically revolutionary and has earned him high praise from liberals who have been advocates for legalizing marijuana. He's also been a huge critic of American foreign policy. Like his father, he's weary of the country's interventionist policies both in the Middle East and throughout the world. That makes him popular among many young voters who also are critical of American foreign policy, not to mention the whole government email spying controversy.

Can you envision a foreign policy debate between Paul and Clinton in which Paul is the dove and Clinton the hawk? I can, and don't think for a moment that there aren't more than a few Democratic leaders who are concerned about that scenario enfolding. The far Left already has its reservations about Hillary. Paul could appeal to them on a visceral level. If he manages to convince say five percent of them to either vote for him or simply stay home, that could spell the difference in the general election.

Scoff if you will, but as of right now, Rand Paul is the best chance the GOP has of winning the White House in 2016. Jeb is damaged goods; Cruz is too crazy even for Republicans; Rubio shot himself in the foot when he sponsored that Senate immigration bill; and Walker reminds me of Tim Pawlenty.

Mark my words, if Rand Paul wins the Republican nomination, he will give Hillary Clinton the run of her life, and is more than capable of beating her.

Saturday, March 21, 2015

Starbucks' Bold, Brave Experiment in Futility

I'll give Howard Schultz an E for effort. His latest attempt at having a "discussion" about race is about as ballsy a move as any CEO has made in this country quite possibly ever. I wish more CEOs would have the courage to follow suit. Maybe if more companies broached the subject, we could inch ever so closer toward reconciling America's original sin: racism.

But while it was bold, brave, daring - pick an adjective - in the end it won't solve a bloody thing. Indeed, given the ethnic and racial makeup of the typical Starbucks customer, it has the very real possibility of blowing up in Schultz's face. I can just see it now: white guy coming in to get his iced coffee, running a bit late for work, and the barista standing behind the counter says something like, "How do you feel about race?" Right about that moment the barista gets informed by said white man that his brother is a cop and he's sick and tired of hearing about race. "You don't want to get shot, don't break the law. How's that?" Franklin Graham couldn't have said it any better.

I'll bet the ranch that those scenarios will play out in droves all across the country. White people getting indignant about being asked about race by a barista making slightly more than minimum wage. For the last six years all they've heard about is race and now they can't even get a friggin' cup of coffee without getting an earful.

This goes down as one of those wonderful, but ultimately, self-defeating moments when that age-old maxim "no good deed goes unpunished" comes front and center. Yes, America still has a race problem. Systemic racism is alive and well and appears to be ratcheting up. The recent report released by the Department of Justice on the Ferguson police department makes that all too clear. And the majority of white people who simply don't want to acknowledge the painful reality, or, worse, conflate the loss of a "deserved" promotion or a child not getting into the college of their choice with a centuries-old problem, proves we have a long way to go before we finally resolve it. Hell, the fact that practically the entire Republican Party chose to skip the 50th anniversary of the March on Selma is a case study in point.

But having this discussion at a local Starbucks isn't the way to go about it. Pissing people off who are on their way to work makes about as much sense as a doctor trying to talk to his patient about the ills of smoking at a red light. In fact, it's worse. At least the doctor has an informed opinion. With all due respect to the local and, I'm sure, well-trained barista, your opinion about race is about as informed as that of the local delicatessen owner who's more concerned, and should be, with how much mustard to put on my ham and swiss sandwich.

This is a serious issue and no matter how well intentioned Schultz's motives may have been, it shouldn't be trivialized in such a manner. You want to have a real discussion about race, start with your friends and family. Write a damn letter to your elected official. Even better, vote for those candidates who best address your concerns. You want a frappuccino, go to a Starbucks.

Sunday, March 8, 2015

How I Think King v. Burwell Will Likely Be Decided

Now that oral arguments are concluded and the nine justices of the Supreme Court have met to discuss their sentiments and, in all likelihood, announce how they will vote, I thought I'd sum up what I think the whole case will come down to.

The challengers position has been from the start that the subsidies in states that did not set up their own exchanges should not be allowed. The words "established by the state" are unambiguous and, if the statute is to be treated in a literal way, the Court must find for them.

The government's position, not surprisingly, is that it was never the intention of Congress to deny subsidies to people in states that did not set up their own exchanges. Indeed, elsewhere in the statute, it clearly says that in cases where states elected not to set up their own exchanges, the Department of Health and Human Services would set up the exchanges for them. Therefore the words "established by the state" are ambiguous and the Court should defer to legislative intent.

There is precedent on the side of the government for this claim.  The Court has long upheld the doctrine of constitutional avoidance which, in a nutshell, says that if there is more than one way of interpreting a standing case, the Court should choose an interpretation that doesn't raise a constitutional problem.

The doctrine stems from another canon called judicial restraint, long held by by conservatives as a litmus test for justices. Ironic, isn't it, that a doctrine lauded by conservatives could well prove to be the life-line of a law despised by those very same conservatives since its inception.

And then there is another issue first raised by Justice Sotomayor and later by Justice Kennedy that centers around the Tenth Amendment and the role of federalism. To paraphrase what both Sotomayor and Kennedy said, if the Court were to find for the challengers and void the subsidies it would be in essence forcing states into setting up their own exchanges to avoid having their citizens pay exorbitant rate hikes. It would mean that Congress deliberately intended to coerce states into compliance with a federal law, a clear violation of the Tenth Amendment.

Like the issue of constitutional avoidance and judicial restraint, the issue of federalism in this case presents its own irony for liberals because it's based on the old states' rights argument, which they historically have abhorred. Wouldn't it be the ultimate kick in the pants if liberals ended up getting the decision they wanted but in a manner they detest?

And yet that's exactly what I think will happen here. I think both Kennedy and Chief Justice Roberts will uphold the subsidies, not based on the language in the statute, which, depending on your view of the law, is either ambiguous or unambiguous, but on the grounds that ruling against the Administration would present a constitutional quagmire that the Court has historically looked to avoid. Voiding the subsidies in the 34 states that elected not to set up their own exchanges would force them into compliance in order to prevent a death spiral of their insurance markets. And that is a clear violation of the Tenth Amendment.

So there you have it: my prediction of how this case will be decided. A 6-3 win for the Administration. Now before you go off breaking out the bubbly, I should warn you that three years ago I predicted that the Court would void the individual mandate. Were it not for a rather unusual and unique reading of tax law by Roberts, Obamacare would've died right then and there. So I'm hardly a guru.

One thing I can predict with certainty: even if the Administration prevails in June, we haven't seen the last of the opposition's attempts to destroy this law. They will never cease. And that you can take to the bank.

Wednesday, March 4, 2015

A Glimmer of Hope for Obamacare?

While it's still too early to tell how King v. Burwell will end up, if the oral arguments are any indication, reports of the Affordable Care Act's demise are, to paraphrase that great Mark Twain line, "greatly exaggerated."

The glimmer of hope came courtesy of Justice Kennedy, who raised several concerns with the challenger's case, chief among them occurred during this exchange with Michael Carvin, the plaintiff's attorney:

"There's something very powerful to the point that if your argument is accepted, it's hard to see how this is not coercion. Court and counsel for both sides should confront the proposition that your argument creates a serious constitutional question."

The constitutional question Kennedy is citing concerns the Tenth Amendment, which says that Congress can't force or coerce a state to follow any regulation or legislation. If the subsidies in states that have a federally set up exchange are ruled invalid, it would mean that those states would be forced to set up their own exchanges to prevent their citizens from facing massive rate hikes.

Jay Michaelson of The Daily Beast writes, "One of the classical canons of judicial interpretation is called the Canon of Constitutional Avoidance. It holds that if a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems."

If that is indeed true, if the argument that the plaintiffs are making - that the words "established by the state" means that subsidies are only allowable in states that set up their own exchanges - is ambiguous, then the only proper thing for the Court to do is find for the government.

Like I said, it's still too early to tell what happens here. The Court could go 5-4 against Obamacare or it could go 5-4 or even 6-3 in favor. It wouldn't surprise me that if Kennedy ends up being the swing vote for, Chief Justice Roberts doesn't go along with him to write the majority opinion. Just like in 2012, we're going to have to sweat this one out. A specious argument that should never have gotten this far is now only a few months away from possibly gutting a law that at present is the only hope for millions of people who heretofore had none.

Ideology run amuck? Yep.  But ever since Bush v. Gore that's pretty much been standard operating procedure with this Court.

Tuesday, March 3, 2015

Bibi Channels His Inner Dubya

Forget for a moment the unprecedented breach of protocol of one head of state showing up another head of state on the latter's native soil; forget also the obvious political duplicity of an ineffectual Speaker who can't even control his own conference, let alone govern. Forget all that.

Here's the question all of Benjamin Netanyahu's supporters need to answer: where is your plan for preventing Iran from developing a nuclear weapon? Since we all agree that a nuclear Iran is not acceptable, how do you propose to stop them?

And by the way, just saying "no" is NOT a viable answer. Seriously, I mean it. This isn't some time out you're giving your kid when he acts up. This is a sovereign country with almost 80 million people. I'm fairly certain telling them "no" will have zero impact.

So, now that no is off the table, let's go one by one through all the plan Bs.

Reinstate sanctions? Go ahead, try. One, it won't stop them from continuing their enrichment program; and two, they'll simply trade with China and Russia. Fancy that, Iran trading with our number one economic rival AND our number one military rival. Two disasters for the price of one.

A preemptive strike? Unfortunately, the centrifuges that Iran has are spread out over a wide area of the country. It would be a practical impossibility to destroy all of them. A military strike would have the effect of strengthening the hold the Mullahs have over the population.

Invade the country? Right, just like we did with Iraq. How'd that turn out? Oh yeah, not very well. More than a trillion dollars was spent over the course of a decade and more than a hundred thousand lives were senselessly sacrificed. Mission accomplished!

No, like it or not, the only option that has any chance of succeeding is the one on the table. It's not only supported by the Obama Administration, but by Europe. It isn't perfect by any means and the Iranians will no doubt try to push the envelope. That's why it's important to monitor them and make sure they comply with any agreement put in place. It won't be easy, but then negotiating never is.

Despite what his supporters would have you believe, Bibi is not his generation's Winston Churchill; what he really is is a Jewish George W. Bush. He's a neocon's wet dream and a nightmare for the rest of the world. Let's not forget that this was the same Benjamin Netanyahu who, in 2003, addressed Congress as a private citizen in support of the Iraq War. He was wrong then and he's wrong now.

If there's one lesson the United States should've learned by now it's that toppling a regime is easy; the hard part is installing a functioning government in its place. Enabling Netanyahu on this fool's errand would be catastrophic. It would place this country into yet another no-win scenario. At a time when the Middle East is already badly destabilized - thanks in no small part to our own meddling - the last thing we should be doing is making things worse.