Giving Offense

Took a second stab at apartment hunting today, with considerably more success than the first go-around. With luck, we may have a place to live next year.

Meanwhile, I haven't been able to get this Alyssa Rosenberg post on "offense" off my browser, so now's as good a time as any.

I think that one of the common defenses whipped out by people who make art—or hell, say things in any forum—that’s sexist or racist or transphobic is to say that they’re brave, speaking truths others dare not utter. The thing this, these people rarely speak these so-called truths to unfriendly audiences. And the easiest thing you can do with any audience is to confirm the beliefs they already hold. Sometimes, that can be a useful thing to do. Confirming that people aren’t alone in their beliefs or reactions to things can be a powerful way to bring marginalized people together. And telling people that their beliefs matter and are actionable in the world is a major mobilizing tool. But there’s a difference between those kinds of conversations and affirming people’s fears, prejudices, and need to be superior to someone. If you view giving offense as a sign of courage, it’s much more courageous to poke at your allies rather than the people weaker that you’ve determined to keep that way, to take a broad view, really see what the conventional wisdom is, and then challenge that. There are pieties in every movement, be it left, right, or center. But if you want to skewer them, you have to do better than “bitches be crazy” or “trans people are gross.” Smashing things and causing pain are not the same things as making a point.

What one believes to be unsaid, rarely is.

(Im)Proper Constitutionalism: Roberts' Revenge?

Now that the original frenzy over the ACA ruling has died done (a little), folks are starting to dig a little deeper into the opinions (particularly Roberts') to figure out what it means for the next case (incidentally, you can read the opinions here). Chief Justice Roberts' formulation is that the individual mandate does not lie within Congress' commerce clause power (nor the necessary and proper clause), but functions effectively as a tax and thus is part of Congress' taxing power. Now that I've quickly read over the commerce/N&P parts of the opinions (well, Roberts, Ginsburg, and the joint dissent), I have a few thoughts on them as well.

First thing is first -- I'm not sure I've ever seen as vicious a spanking as Justice Ginsburg delivers to Chief Justice Roberts on the commerce clause question. It is an utter smackdown of epic proportions. She clearly demonstrates that, under existing precedent, the ACA should have been by all rights a slam dunk, and that the parade of horribles Roberts and others have trotted out are more or less fanciful. So you go Justice Ginsburg. Keep on keepin' on.

Some folks are speculating that Chief Justice Roberts is pulling a Marbury -- issuing an opinion that on face is a victory for the President while actually sharply moving doctrine in a new direction undesired by the Chief Justice's political opponents (in Marbury, establishing judicial review, here, sharply circumscribing the Commerce Clause).

Chief Justice Roberts' attempt to atomize the discussion (is this individual person "in the health insurance market"?) is reminiscent of the style of commerce clause analysis the Court rejected in Jones & Laughlin. There, the Court rejected older decisions which looked individually at particular segments of the steel production process and asked if, individually, they were exhibiting a substantial effect on interstate commerce. The Court instead said we should look at the "steel industry" as a whole (which clearly does significantly impact ISC), and then Congress can issue regulations of the steel industry as part of regulating ISC. Similarly, the "health insurance market" is clearly a huge part of interstate commerce, so the question is whether regulating persons who do not possess health insurance substantially effects that market -- which of course it does (Justice Ginsburg's arguments about these persons "proximity" to the market were particularly on target).

But the part of the opinion that is more eyebrow raising to me is not the Commerce Clause analysis, but rather the decision to give the "proper" in "necessary and proper" independent weight. Given McCulloch (and Raich), that the individual mandate satisfies the necessary and proper clause would seem to be obvious -- it is an essential part of Congress' attempts to regulate the health insurance market as a whole. The rhetoric in McCulloch focused particularly on the word "necessary" -- to wit, does it mean "absolutely indispensable", or just convenient or useful? The Court found it meant the latter, reasoning that an alternate interpretation would render the Courts an effective super-legislature judging for themselves what was the single best way of regulating health care policy (this did not stop the joint dissent from explicitly doing just that, saying that the individual mandate was not necessary because the dissent could conceive of alternative health care regulations). This means, as Chief Justice Roberts acknowledges, that courts are very deferential about what legislative policies are "necessary".

Still, with "necessary" seemingly a bust, what about "proper"? It was the claim that the individual mandate was not a "proper" way of exercising the commerce clause authority that was Chief Justice Roberts' ultimate hinge. Here, Chief Justice Roberts accords no such deference, and that's especially worrisome given that the only constraining text he's using is the word "proper". As much as we might worry about courts imposing their own policy preferences when they utilize relatively open-ended language like "due process of law" or "cruel and unusual punishment", that risk has to be tripled when the alleged constitutional infirmity is that the law isn't "proper". I don't even know what that could conceivably mean other than raw imposition of judicial preference.

And the Chief Justice's opinion hardly inspires confidence that "proper" will mean anything more than "personally distasteful". What makes a law not "proper"? All Chief Justice Roberts can give us is that the legislation isn't "proper" where it would "undermine the structure of government established by the Constitution" or is "not consist[ent] with the letter and spirit of the constitution." There is almost no constraining bite to that "doctrine" at all -- it is an open invitation to simply strike down whatever it is a given Justice finds distasteful. Which is more or less how it was used here: The individual mandate is not "proper" because ... mandates, ew, scary. There just isn't a workable argument in there -- particularly when, as Justice Ginsburg (again!) notes, it is far from clear that the mechanism of a penalty payable as a tax is more far-reaching than Chief Justice Roberts' own example of admittedly "proper" congressional exercises (such as, say, keeping someone in jail). Nor is it clear why, if the form of a mandate is so repugnant to the constitutional order, it becomes okay when it is viewed as a tax regulation rather than a commerce regulation. The answer is that programs like this aren't actually that scary, but using constitutional language as vague as "is it proper" is an invitation to disaster.

Now, on the "proper" end of things, it is possible that this is meant to be a ticket good for this ride only -- that the Court will not in fact start using questions of "is the law proper" to strike down legislation left and right (well, most likely left). But maybe not -- if it was meant to be just a tool for this case, Roberts would have joined his conservative colleagues and struck the thing down. If we do see a revitalization of Lochner-era due process jurisprudence under the new guise of "proper", that would be nothing short of a catastrophe.

Why Roberts Why?

That must be the question conservatives are asking themselves today. After all, the prevailing wisdom (one I signed onto) was that this was a 5-4 decision one way or the other, with Kennedy holding the swing vote. Now, I thought maybe if Justice Kennedy bit, Roberts might come along -- both to keep the decision from being yet another 5-4 ruling and to keep the opinion for himself. But Justice Kennedy voted to strike down the ACA -- indeed, by signing on to a far-right joint dissent for himself, Alito, Scalia, and Thomas, it indicates that it wasn't even a close call for the usually swingy justice. Which means that it was Chief Justice Roberts serving as the middle vote. So what prompted him to (switch his?) vote to uphold President Obama's signature law?

I have two potential explanations floating around right now. The first is legalistic. Chief Justice Roberts has always been a big government conservative. In fact, that's why he was appointed to the Court in the first place -- President Bush wanted someone he could count on to affirm his vast expansions of executive power in the War on Terror. One of the ways I teach my students that judges can exercise some independence from politics is that the political motivations which put them on the Court may not turn out to track the same sets of concerns as their careers progress. The classic example is Justice Frankfurter. Frankfurter was appointed to the Court as a fierce advocate of judicial restraint, which, with the Four Horsemen running roughshod over any and all state and federal economic regulation, was a defining progressive value at the time. And Frankfurter did turn out to be a reliable vote to uphold the New Deal. But as his career continued, the defining controversies for the Supreme Court started to become civil and criminal rights cases. And there, Frankfurter's deference to legislatures led to a far more conservative voting record. I'm not saying Chief Justice Roberts always is going to vote in favor of enhanced government power, only that the particular ideological profile he cuts -- the one that put him on the bench in the first place -- might have made him more sympathetic to the ACA than one might expect from a run-of-the-mill conservative judge.

Second, there are institutionalist concerns that may well have played a role. When he was first appointed Chief Justice, Roberts made clear that he wanted a more unified, less ideologically polarized Court. Whatever else one thinks of his tenure, it is clear that in that respect his has been a colossal failure. The Roberts Court has been bitterly fractured along partisan lines, and more and more (particularly with Citizens United) has been gaining a reputation as an ideologically conservative activist court. It's not that liberals are suddenly going to start singing the praises of the Roberts Court, but had the ACA been struck down, that train would have left the station for good. Basically, Chief Justice Roberts saw in this case that a vote to strike down the ACA was a vote to permanently remake his Court's image into one adjunct to the Republican Party. And he blinked.

ACA Upheld!

What, you didn't hear? (Oh, by the way, the Stolen Valor Act was struck down too).

Now, I haven't read the opinions yet. But it's not like that's stopping anyone else from opining. And I know the basics: The 4 liberal justices vote to uphold on commerce clause grounds, Alito, Thomas, Scalia, and Kennedy vote to strike down the entire law, and Roberts votes to uphold the law as an exercise of the tax power (there's a minor hiccup regarding how medicare funding is allocated that I'll ignore for now). Scattered thoughts below:

* I agree that the dissent's simultaneous assertions that the whole of the ACA must be struck down because the mandate and funding conditions are unconstitutional, and that the mandate is not "necessary and proper" to Congress commerce clause authority, are completely inconsistent with each other.

* I also agree that Justice Ginsburg repeatedly citing Justice Scalia's Raich opinion is a thing of beauty.

* Revenge of the tax power! That was the issue that everyone kind of forgot was an issue, even though that's really what the mandate most closely simulates. I don't know enough about tax law to understand why it isn't a tax for the purposes of the Anti-Injunction Act, though.

* Conservatives might claim a minor victory in that the opinion may further cabin the commerce clause power a bit, but ultimately I don't think that changes that much.

* People who say they're moving to Canada after this really need to rethink their strategy.

* UPDATE: I separately give my thoughts on why Chief Justice Roberts voted the way he did.

Anti-Semites Lose in New York

Well, it looks like a lot of worrying was for naught. The semi-credible attempts of two anti-Semitic nuts to make it to New York's congressional ended tonight, both by sizable margins. With 69% reporting, Hakeem Jeffries is blowing out Charles Barron 74.5/25.5 in NY-8 Democratic primary. Jim Russell did a little better in the NY-17 Republican primary, but only reached 35% against Joe Carvin (94% reporting).

Jeffries crushing victory over Barron ratifies something we should have already known: Black voters can indeed be trusted to hear the concerns of their Jewish colleagues, and are not swayed by racialized and anti-Semitic appeals. The belief that Blacks are more prone to conspiracy theories and other harbingers of extremism has never been true, and this is just one more data point for that.

Of course, fringe candidates can sometimes gain more traction than they should -- in both parties (as Russell demonstrates further upstate). But for whatever reason, there is a mythology that Black voters are more prone to this sort of nuttery. And it's just not true. It's consistently not true, and they're proving it time and again.

New York Primaries: Home of the Anti-Semite?

Daily Kos Elections has a good rundown of today's primary races (in New York, Colorado, Oklahoma, Oregon, South Carolina, and Utah). Most notable (and disturbing) is the possibility that not one but two raging bigots could score major party nominations in New York house races.

We've already talked about David Duke-endorsed Charles Barron in NY-08, where he's running to replace retiring Rep. Ed Towns (D). State Assm. Hakeem Jeffries is the establishment choice here and has vastly outraised Barron, but Barron has scored a few union endorsements as well as that of Towns (who was unhappy at lackluster establishment support for him back when Jeffries was mounting a primary challenge to him). I've seen no polling on the race, but there are reports that New York Dems are "panicking" about a potential Barron victory. Even if Barron does pull off the upset, though, it isn't over -- Jeffries is also on the Working Families Party line and will thus be on the general election ballot regardless.

Meanwhile, over in the NY-17, two Republicans are looking to challenge Rep. Nita Lowey (D). The establishment choice is hedge fund manager and Rye town supervisor Joe Carvin. But he's facing a surprisingly stern test from White supremacist and anti-Semite Jim Russell, who scored 38% of the vote when he was the Republican nominee for this seat in 2010 (despite official GOP disavowals of his candidacy after his racist views became known). With relatively high name recognition from his previous run, Republicans too are a bit nervous about what election night might bring.

Oh, the Empire State. What will you bring us next?

UPDATE: This is a stellar short profile piece on Barron, explaining where he gets his support. It's a mix of an old core of 60s-style pan-African radicals (who love that he does things like speak out in favor of Mugabe), coupled with an indefatigable focus on local issues -- combating drug gangs, cleaning up neighborhoods, attending local labor protests -- that has made him a respected figured amongst his constituents who couldn't care less about international pan-African liberation.

Lots of radicals with global visions flameout because they don't actually care about the community's they purport to represent. Barron appears to have enough energy to keep an eye on both prizes, and together it makes for a potent and dangerous combination.

Iraq Cuts Arts Ties to the US over Jewish Artifacts

America's refusal to turn over Jewish artifacts recovered from Iraqi archives has caused that country to cut archaeological cooperation with the United States. I wrote about the dispute in more detail here, but basically there are three major elements:

First, the possibility that Jewish artifacts in Iraq won't be safe due to anti-Semitic pressure in Iraq. Second, the possibility that preserving and displaying such artifacts in Iraq will play an important role in humanizing Jews to Iraqis and reminding Iraqis of the long and vibrant Jewish history there prior to their effective expulsion in the wake of Israel's Independence. And third, the interests of the Iraqi Jewish community itself, many of whom live in Israel and thus would likely not be able to access their own history if it was hosted in Iraq (which refuses to admit Jewish visitors).

Late is Not Never: JFed Cancels Anti-Muslim and Anti-Semitic Speaker

I saw the other day (while I was traveling to Chicago) that the Jewish Federation of Greater Los Angeles was hosting a speech by notorious bigot Pamela Geller (sponsored by the Zionist Organization of America, which I'll return to in a moment). Geller's rabid hatred of Muslims has been noted by groups ranging from the Anti-Defamation League to the Southern Poverty Law Center. But beyond her hatred of all Muslims, Geller is also equally incensed by most Jews ("liberal Jews", which is another way of saying "most Jews"). She refers to us as "kapos" and "Nazis" who yearn for Israel's destruction and the genocide of Jews. She is a repulsive speaker and it was shocking to see her gaining a platform at a mainstream (albeit regional) Jewish organization.

Well, say goodbye to the platform. Little Green Footballs has informed us that the federation has canceled her speech (to Geller's spit-flecked rage). This is a victory for decency, yes, humanity, yes, religious equality, yes, and also the Jewish people -- not just because it shames the holy name to associate ourselves with such hate, but because Geller hates most Jews too. She is nothing more than a disgrace.

I haven't seen a statement from the LA Jewish Federation on their decision yet. I did visit their contact page to drop a note thanking them on making the right call, which I encourage you to do as well (you can also tweet them @JFedLA). The event was scheduled for today, and almost all the outraged coverage occurred yesterday, so this was very fast motion by the organization.

Meanwhile, let's talk about ZOA again. They weren't involved in the cancellation -- Geller thanks them for finding an alternate venue after the JFed cancellation -- and they were the one's who sponsored the event in the first place. ZOA, of course, has already revealed itself as an anti-Israel organization with its push for a one-state solution (which needless to say Geller supports), and its support of anti-Muslim and anti-Semitic speakers alike is nothing new. But -- if only by age alone -- they maintain some clout in the Jewish community. It is an excellent thing that the LA JFed stood up to them, and their endorsement of Geller should render them as far beyond the pale of Jewish communal life as any other extremist, racist group.

UPDATE: Here is ZOA's statement on the cancellation. They pointedly do not blame "security threats" but rather acknowledge it was political pressure (they say by extremist Jewish and Muslim groups -- because we all know how beholden Jewish Federations are to JVP!) that caused the federation to back down. So more kudos to the Jewish Federation, and tally up another instance of ZOA being a disgrace to Jews and pro-Israeli Americans alike.

UPDATE x2: I've read accounts -- unconfirmed, but it seems plausible -- that the Jewish Federation did not invite Geller to speak. Rather, it was ZOA's doing, and they just reserved space at the Federation, which they could do since they were a member of a group. Once the Federation was informed of the nature of who was speaking, they cancelled the event.

Now, it's implausible that they weren't aware that Geller was coming -- the event was announced on their webpage, after all -- but it is possible that they did not know who she was beyond ZOA's white-washed biography. In any event, that would be much better than the alternative -- that the Federation knowingly was going to have someone like Geller speak, but caved under pressure.

UPDATE x3: JTA picks up the story. They weren't able to get a comment from the Jewish Federation prior to press time though.