Diabolical Persistence

Errare humanum est, sed perseverare diabolicum. (To err is human; to persist is diabolical.)

— Seneca (quoted Friday by Paul Krugman)

This week everybody was talking about the Supreme Court

Like freshmen research papers, the Court’s biggest decisions always get finished on the last day of the term … which is today. So this is when the Hobby Lobby case will be decided, and we’ll find out whether a bizarre reading of the First Amendment’s free exercise clause will allow employers to control their employees’ health care options. There’s no time for me to process the decision, so I’ll put off that commentary until next week.

But other important decisions have been trickling out during finals week.

Police need a warrant to search your cell phone. The Court was unanimous in this ruling, which kind of obvious when you think about it. Police need a warrant to search the photo albums on your shelf, so why not the photo collection on your iPhone? My only regret is that Justice Scalia didn’t write a separate opinion. I would have loved to hear him explain the Founders’ “original intent” regarding cell phones.

The Court severely cut back the President’s power to make recess appointments. Before the Senate changed its filibuster rules, Republicans in the Senate had been using the Senate’s constitutional power to “advise and consent” on presidential appointments to nullify certain laws, by refusing to approve the appointment of anyone to enforce them. In particular, the refusal to approve any appointments to the National Labor Relations Board would have left that Board without a quorum, essentially invalidating all the nation’s labor laws. Continuing a struggle that the Bush administration had with a Democratic Senate in its final two years, President Obama filled the vacancies by making “recess appointments”, using his constitutional power to fill jobs when the Senate is out of session. The Senate then had “pro forma” sessions with virtually no one there to prevent a recess from taking place, which the President refused to recognize.

The Court ruled 9-0 that the Senate is in session whenever it says it is, as long as those present are able to exercise the powers of the Senate. (In theory they could pass something by unanimous consent during a pro forma session, though this almost never happens.) The point matters far less, now that filibusters on presidential appointments are no longer allowed. But it underlines the importance of Democrats retaining control of the Senate in the fall, which is currently rated a toss-up.

They invalidated a Massachusetts law creating a protester-free buffer zone around abortion clinics. Again 9-0, they ruled that the ability to buttonhole strangers on the street and try to change their minds about something is a freedom-of-speech issue. Slate‘s Dahlia Lithwick disagrees:

more than anything it seems to reflect a continued pattern of “free speech for me but not for thee” or, at least, “free speech for people who think like me,” that pervades recent First Amendment decisions at the court. More importantly, I don’t know where to locate this ruling in the burgeoning doctrine of “the right to be let alone” that Justices Alito and Thomas and Breyer have espoused, nor do I know how to reconcile it with the court’s persistent second-rate treatment of any speech that threatens to harass the justices themselves. … In a gorgeously un-self-aware way, the same Supreme Court that severely limits speech and protest in a buffer zone all around its own building, extolls the unique and wonderful properties of the American boulevard

But Lawrence Tribe thinks the Court got it right:

Thursday’s opinion in no way restricts the right to choose whether or not to terminate a pregnancy guaranteed by Roe v. Wade, in 1973, and reaffirmed, in 1992, in Planned Parenthood v. Casey. Nor does recognizing a duty to protect freedom of speech in this setting ask us to deny the genuine anguish suffered even by women who are confronted by quiet protesters rather than noisy agitators on their way to use reproductive health services. But neither empathy for their anguish, nor the need to protect the safety of women seeking such services, nor the clear need to guard against the rising tide of state laws designed to restrict access to abortions, can justify far-reaching measures that restrict peaceful conversation in public spaces.

and the World Cup

Like many Americans, I’m watching the World Cup seriously for the first time — even a few games between non-American teams. I wasn’t aware this was a political issue until Ann Coulter and a handful of other conservatives started getting upset about it. But it is political, sort of. The Atlantic‘s Peter Beinart explains:

The willingness of growing numbers of Americans to embrace soccer bespeaks their willingness to imagine a different relationship with the world. Historically, conservative foreign policy has oscillated between isolationism and imperialism. America must either retreat from the world or master it. It cannot be one among equals, bound by the same rules as everyone else. Exceptionalists view sports the same way. Coulter likes football, baseball, and basketball because America either plays them by itself, or—when other countries play against us—we dominate them.

and the Mississippi Senate primary runoff

Republican Senator Thad Cochran barely hung on against Tea Party challenger Chris McDaniel, who had run ahead Cochran in the original primary (but failed to get a majority) and had been leading in polls just a few days before. And he did it in an unusual way: Under Mississippi law, anybody who didn’t already vote in the Democratic primary is eligible to vote in the Republican runoff. So Cochran appealed to Democrats, especially African-American Democrats, to help him beat back the McDaniel challenge.

It’s worth pointing out that Democrats were not monkey-wrenching (voting in the other party’s primary for the candidate who will be easy to beat; probably Cochran is harder to beat in the general election, though few really imagine Mississippi electing a Democratic senator under any circumstances). McDaniel has done just about everything he can to alienate blacks, probably figuring they don’t vote in his primary and aren’t a big enough bloc to defeat him in November. He’s spoken at a Neo-Confederate event, retweeted a white supremacist, and started talking about fraud as soon as Cochran began reaching out to the black community, as if black votes were somehow inherently fraudulent. McDaniel invited True the Vote — a notorious voter suppression group — to send poll watchers. Slate‘s Jamelle Bouie summed up:

If McDaniel resembles anything, it’s not a libertarian—although he swims in the current of right-wing libertarianism—as much as it’s a Southern reactionary whose appeal is built on resentment of assorted others, which in Mississippi, inevitably includes black Americans.

So Mississippi blacks saw a run-of-the-mill conservative — Cochran has an 88% rating from the American Conservative Union and National Journal ranks him as the 41st most conservative senator, just ahead of Lindsey Graham — running against someone who may or may not be racist himself, but certainly courts racists and repeats racist tropes. So some black Democrats, probably enough to sway the outcome, decided to vote for the lesser evil in the Republican runoff.

If you expected McDaniel or his supporters to take their defeat gracefully — to say, “Well played, Republican establishment. You out-maneuvered us fair and square.” — you haven’t been paying attention. Tea Partiers, particularly in the South, have a massive sense of entitlement. They aren’t just entitled to play, they’re entitled to win; if they don’t win, somebody must have cheated. They are the only real Americans, so if they lose, this isn’t America any more. They need to “take it back”, by force of arms if necessary.

So the McDaniel loss has lots of Tea Party voices talking about a third party. Right now it’s just talk meant to whip the Republican establishment into line. (The Tea Party has far more power as a faction within the Republican Party than it would as a third party, something I wish was better understood on the Left.) And it seems to be working. Witness the next note.

and John Boehner’s lawsuit

One popular talking point on the Right is that President Obama is ruling tyrannically, ignoring Congress and issuing his own decrees that circumvent the laws. There’s really no way to make that case consistently without indicting all recent presidents, maybe as far back as FDR, but right-wing talking points are not known for their consistency. (It’s like “czars“, a practice started by FDR, continued by Reagan, and expanded by George W. Bush that suddenly became tyranny when Obama did it. It’s almost like Obama is different from all other presidents in some way. I wonder what that difference could be?)

I haven’t discussed this in the Sift, but in online comments I leave on news sites my position has consistently been: If you think he’s doing something illegal, don’t just talk about it, take him to court. I think it would be amusing to watch Republicans state and defend an actual case, rather than just make vague accusations.

Well, apparently that’s going to happen. Maybe. Speaker Boehner says he is preparing a lawsuit accusing President Obama of failing to “faithfully execute the laws” as the Constitution demands. However, Boehner’s memo does not specify exactly which executive actions he’s talking about, and when asked he said “When I make that decision, I’ll let you know.

Pundits are split over whether the lawsuit is a prelude to impeachment or a way to placate extremists who want impeachment. In any case, specifying the details of the lawsuit will be politically dangerous, because in almost every case — not deporting DREAMers, say, or increasing the minimum wage, or regulating the carbon output of power plants — it’s been Obama representing the popular majority and Boehner’s caucus standing in the way. A list of Obama’s “power grabs” would also be a list of issues where Congress has been dysfunctional.

By all means, Speaker Boehner, raise those issues. Focus everybody’s attention on them as we go into the fall elections. Better yet, shut down the government to defend polluters. That’s a sure winner.

but the continuing good news about ObamaCare still isn’t getting attention

If only there were a liberal media that could call as much attention to ObamaCare’s successes as our actual media focused on the (now clearly false) predictions of its impending doom.

Friday, Paul Krugman listed six doom-saying forecasts that have proved to be totally wrong — all without apparent damage to the reputations of the doom-sayers.

  • Not enough people will sign up. Actually, the program’s sign-up estimates were too low.
  • The apparent sign-ups will turn out to be an illusion when people don’t pay their first premium. Since the actual policies are written by private companies rather than the government (i.e., ObamaCare was never a “government takeover”), the exact numbers are scattered in privately-held databases. But the available numbers suggest the sign-up-but-don’t-pay percentage is about the usual insurance-industry rate.
  • The number of uninsured will go up, because more policies will be cancelled (because they don’t meet ObamaCare’s minimum standards) than new policies written. Gallup tracks the number of uninsured people; it’s going down sharply. And that doesn’t count the number of people who replaced bogus insurance with real insurance. The two big tests will be whether the number of bankruptcies caused by medical bills goes down, as I predict it will; and whether the death rate among the newly insured goes down, as it has in Massachusetts, where RomneyCare might be regarded as an ObamaCare pilot program.
  • ObamaCare’s premiums will be unaffordable. Nope. Not everyone paid less, but the great majority did.
  • Young people won’t sign up. Since young people cost less to insure, not getting enough of them could doom the whole program. But they have been signing up.
  • Health care spending will soar. A short-term increase was planned for, as people who have been doing without insurance start going to the doctor. (In some cases, this saved their lives.) Long-term, the program was supposed to create efficiencies that would cut costs. The recent numbers indicate the the initial surge is ending and costs are rising more slowly, as predicted.

You have to wonder how successful ObamaCare would be if Congress and Republican governors hadn’t tried to sabotage it at every turn.

Krugman added a blog post with supporting links, but he left out a seventh failed prediction of doom: That in the second year insurers would flee the ObamaCare exchanges. In fact, the exact opposite is happening.

Let me head off a comment: Naturally, ObamaCare critics will never admit they were wrong — that’s Seneca’s diabolical persistence — so the American Enterprise Institute’s Chris Conover has a column rebutting Krugman. (A certain amount is just nit-picking, like pointing out that sign-ups just barely beat predictions until the sign-up deadline was extended two weeks, as if the original doom-saying hinged on those two weeks. I don’t recall any ObamaCare critic saying, “Nobody will sign up, unless the deadline is extended two weeks.”) Charles Gaba counters Conover here and here. He also links to Jonathan Cohn’s larger collection of bad ObamaCare predictions.

and you also might be interested in …

Apropos of nothing: Segway Maximus

Thursday, “#YesAllWomen and the Continuum of Aggression“became the 9th Weekly Sift post to go over 5,000 hits.

Rick Perlstein believes the Cliven Bundy showdown marked an ominous “watershed moment”:

When legitimately constituted state authority stands down in the face of armed threats, the very foundation of the republic is in danger.

And while we’re talking guns, Robert Evans at Cracked has an amusing-but-serious “5 Things to Know About the Armed Men in Your Local Chipotle“.

New word: When white people suddenly “discover” something that non-whites have known about for a long time, it’s columbusing. As in: “Columbus columbused America” or “Miley Cyrus columbused twerking.” College Humor illustrates in a hilarious video sketch.

A Republican finally proved voter fraud exists: Scott Walker donor Robert Monroe just got arrested for voting five times in Walker’s recall election. I think I understand what happened.

Hardly anyone gets prosecuted for voter fraud, probably because hardly anyone commits voter fraud. (Election fraud exists, but it’s party bosses and corrupt election officials who cheat, not voters.) Voting expert Richard Hasen explains that stealing votes one-by-one is a lot of work for not much benefit:

It’s no surprise that the numbers are so low, because voter impersonation fraud is an exceedingly dumb way to try to steal an election.

Federal Judge Lynn Adelman has spelled it out:

The potential costs of perpetrating the fraud, which include a $10,000 fine and three years of imprisonment, are extremely high in comparison to the potential benefits, which would be nothing more than one additional vote for a preferred candidate (or one fewer vote for an opposing candidate), a vote which is unlikely to change the election’s outcome.

Still, Republicans often claim voter fraud is rampant, to the point that some even think Obama’s two massive victories are suspect. If you believe that, then you must conclude that not only do lots of people vote multiple times, but that they almost all get away with it. After a while, a true believer might start to feel stupid for just voting once when everyone else must be cheating.

Monroe made the classic mistake of believing his own side’s propaganda. No, Bob, that voter-fraud stuff is for conning other people and justifying crap your side wants to do for other reasons, not for applying in your own life. Like they say on Mythbusters: “Do not try this at home.”

If you’ve been reading about massive voter fraud in North Carolina, it’s a story of the same type I described last year in South Carolina: a computer check yields a large number of “possibly” fraudulent votes — more than 35K in NC — but after an enormous waste of election-official time, all but a handful of cases — 3 in SC — have reasonable explanations and none lead to prosecutions. That’s how the story has played out all over the country, and that’s what will happen here.

The Washington football team continues to take heat for calling itself the Redskins. The federal Patent and Trademark office revoked the Redskin trademark, which will have major financial implications if it takes effect. But the team’s appeal to federal court will at least delay things for years.

The main immediate impact is that it keeps the issue in the headlines, which is the kind of publicity no business wants. For now, polls show that most people either support the team or don’t care about the issue. But I think that changes if the discussion goes on long enough. I think most of us would like to dismiss the whole issue as ridiculous, but if we can’t do that, we’ll eventually have to admit that there’s no justification for keeping the name. That’s the conclusion John Oliver came to.

TPM’s Josh Marshall wrote an insightful article.

I imagine I’m like many my age who at one level just intuitively think about the Redskins and the Cleveland Indians and the Atlanta Braves as just part of the natural landscape of American culture. Even now, when I think about the Redskins, part of me is like, ‘We’ve been saying this forever.’

For a football fan, the Redskin name evokes history: Sammy Baugh, Billy Kilmer, Joe Theisman, the Hogs and Smurfs. But Marshall explores a different history, the history of “mascotization”, which didn’t begin until whites stopped seeing Indians as a real threat. (It started in New England, where the threat disappeared first.) He concludes:

The simple fact is we shouldn’t be using whole peoples as mascots for sports teams. Whether or not Indians in America today find it offensive is almost beside the point. The fact that most do is just an extra reason to do away with the practice.

With all I’ve said, there’s a part of me who feels like, ‘We really can’t have the Cleveland Indians anymore?’ It feels like a loss – part of the landscape of American sports I’m attached to. But it’s time.

The New Yorker‘s profile of Ted Cruz (who I think will be the 2016 Republican nominee) contains this quote from former Solicitor General Walter Dellinger:

Ted is able to use erudite constitutional analysis with politically appealing slogans—that’s a rare talent. The only problem is that Ted’s view of the Constitution—based on states’ rights and a narrow scope of federal power—was rejected at the Constitutional Convention in Philadelphia, and then was resurrected by John C. Calhoun, and the Confederates during the Civil War, when it failed again. It’s still around now. I think it’s wrong, but Ted does a very sophisticated version of that view.

I’ve been in a year-long reading project about the Confederacy and Reconstruction, and that’s the same conclusion I had come to: When Tea Partiers talk about “the Founders”, they’re really talking about Calhoun’s misrepresentation of the Founders. The key document in this tradition is not the Constitution or The Federalist, but Calhoun’s A Discourse on the Constitution and Government of the United States published posthumously in 1851.

Daily Kos’ Dante Atkins has been forced to give up on the theory of Peak Wingnut — that there is some limit to how crazy the Right can get.

and let’s end with something amazing

OK Go’s new video “The Writing’s on the Wall” presents a series of illusions, not with CGI, but with old-fashioned perspective. And all in one continuous take. (Watch them make it.)


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  • dp  On June 30, 2014 at 11:54 am

    I think that Ted Cruz will have trouble being the nominee, he was a citizen of Canada until recently. If you believe the birthers he is the same as Obama. There is no clause in US law that allows that Ted Cruz is a natural born citizen.

    • weeklysift  On July 4, 2014 at 7:05 am

      I don’t think Birtherism had anything to do with the merits of President Obama’s citizenship; they just didn’t like him, so they made up a bunch of BS to claim he wasn’t really president. Most of the same people like Cruz, so he’ll be fine.

      Personally, I don’t like Cruz, but I don’t have any problems with his claim to be a natural born citizen. He was born in Canada, but at least one of his parents was an American citizen at the time, which to my mind makes him an American from birth.

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