Just out of curiosity, can we who are homosexually challenged claim mental rape for all that is being shoved & crammed down our throats? Perhaps even religiously raped? As it goes against our beliefs…hmmmmmmmmm…
Just out of curiosity, can we who are homosexually challenged claim mental rape for all that is being shoved & crammed down our throats? Perhaps even religiously raped? As it goes against our beliefs…hmmmmmmmmm…
By July 4, the Supreme Court will have decided King v. Burwell. (Those of us who write about the most recent cases sometimes do not have a work-free July 4th weekend, but the Justices always do. The justices like a summer vacation longer than just a few weeks, so I can confidently predict we will know the answer before July 4, and most likely before the end of June.)
King v. Burwell involves the Patient Protection and Affordable Care Act [Pub. L. No. 111-148]—popularly called either the “ACA,” or “Obamacare” by both its opponents and its proponents. The litigation now before the Supreme Court is, on the surface, a simple issue of statutory interpretation. Only millimeters beneath the surface is a broader issue—how far will the courts go in allowing administrators to change the law by simply redefining terms that are not vague at all. This issue is peculiarly significant because the agency doing the redefining is the Internal Revenue Service. The first named defendant is Sylvia Burwell, the Secretary of Health and Human Services, but another defendant is the IRS, and it is the agency doing the redefining. No case has ever held that Congress could delegate to the IRS the power to raise or lower taxes.
The ACA, in Section 1311 [42 U.S.C. § 18031], provides that states shall create Health Benefit Exchange (“Health Exchanges”). If they meet certain criteria, they are “Qualified Health Exchanges.” The qualified Exchanges qualify for federal subsidies. Nonqualified exchanges do not.
The Court has consistently held that Congress does not have the constitutional power to order or commandeer states to enact particular laws. New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997). While Congress cannot force a state to enact a qualified Health Exchange, it can use its taxing and spending power to “bribe” states by offering various incentives to states that enact and implement the kind of laws that Congress wants. That is what the ACA does.
It provides that if a state creates a qualified Health Exchange by January 1, 2014, then another section of the law—26 U.S.C. § 36B, in the Internal Revenue Code —offers generous subsidies. The subsidies are in the form of ‘‘premium assistance tax credits” and “refundable tax credits.” They not only reduce tax liability but also provide for federal money paid to private insurance companies.
Congress also created a fallback position: if a state refuses to set up a State Health Exchange, a different section of the ACA [42 U.S.C. § 18041(c)] authorizes the Secretary of Health and Human Services (HHS) to set up Federal Exchanges in those states that refuse to set up a State Exchange.
No provision of the ACA offers any tax subsidies or payments for federally created (as opposed to state created) Health Exchanges. That supports the carrot-and-stick approach to encourage states to create, implement, and maintain state Health Exchanges. In other words, if the state creates a Health Exchange, its citizens secure valuable tax benefits in addition to acquiring health insurance. If the state refuses to create, implement, and maintain a Health Exchange, that state’s citizens do not receive the financial benefits, but they will have to pay federal taxes that finance the subsidies that residents in other states (those with state-created Exchanges) will receive.
Besides to the financial incentives (carrots), the ACA has disincentives (sticks) to prod states to set up Health Exchanges. For example, the law penalizes states that do not create Exchanges by barring them from narrowing their state Medicaid programs until “an Exchange established by the State . . . is fully operational.” [42 U.S.C. § 1396a(gg)]
[I]f you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So, you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country.
Congress expected that all or most states would take this “bribe” because it gave an offer that was hard to refuse.
Nonetheless, some states—actually a lot of states, 34 of them — did not pick up the free federal subsidies (the carrots) and were willing to put up with the disincentives (the sticks). They simply refused to establish State Exchanges. It turned out that the ACA has not been as popular as its proponents believed it would be. Indeed, polls show that the more people learn about the law, the less favorably they view it. Moreover, many individuals have concluded that it is quite rational to not pay for health insurance until they get sick, because the fines are often not very much and the ACA does not allow insurance companies to refuse coverage because of preexisting medical conditions.
itwbennett writes For years, RadioShack made a habit of collecting customers’ contact information at checkout. Now, the bankrupt retailer is putting that data on the auction block. A list of RadioShack assets for sale includes more than 65 million customer names and physical addresses, and 13 million email addresses. Bloomberg reports that the asset sale may include phone numbers and information on shopping habits as well. New York’s Attorney General says his office will take ‘appropriate action’ if the data is handed over.
March 9, 2015., by Joseph Margulie
“Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” So began the report written by the Civil Rights Division of the Justice Department, a 100-page indictment of the Ferguson Police Department. The entire document repays careful study, but at its core, the report describes a department—and municipality—beset by two overlapping problems.
First, the City uses its police to close gaps in the city budget rather than deter or investigate crime. As a result, the police in Ferguson are fee- and fine-producers instead of peace officers, which has predictably led to chronic over-policing. “Many officers,” the report found, seem to view Ferguson’s residents “less as constituents to be protected than as potential offenders and sources of revenue.”
Second, the Ferguson Police Department has developed an adversarial culture that routinely trumps the restraints imposed by the Constitution. “Officers expect and demand compliance even when they lack legal authority.” As symbols of authority so often do, Ferguson police apparently confuse disagreement with disobedience, and mistake a legitimate exercise of constitutional rights with an unpardonable display of disrespect.
The report implies that the second condition follows from the first, but in this regard it is mistaken. The fact that the police are misused as revenue agents need not make them hostile to the community they ostensibly serve. One can imagine, in other words, an officer handing yet another ticket to a Ferguson resident for some trivial or non-existent offense with an apology instead of a snarl.
The problem of an adversarial police culture—in which the police view themselves as operating in hostile territory and treat the community as the dangerous enemy—has been recognized for decades. It was immortalized in the movie, Ft. Apache, the Bronx, and helps account for the too-quick decision to acquire and deploy the latest and most advanced weapons of war on neighborhood streets. I hope to address this problem in future columns, since it is almost impossible to imagine meaningful reform of the criminal justice system so long as it persists.
But today, I want to address the first problem identified by DOJ—viz., the distorting influence of money. More than anything, the DOJ report confirms the familiar insight that financial incentives can have a profound, if not always dispositive, influence on behavior. Implicit in this insight, and similarly confirmed by the lesson of common experience, is that if you alter the incentives, you can influence the behavior.
Ironically, this was a key insight in the earliest years of the punitive turn in American life. In 1975, conservative political scientist James Q. Wilson published, Thinking About Crime, where he argued that offenders were fundamentally rational actors who assessed the relevant incentives and chose crime because the anticipated balance of risk and reward favored lawlessness. Change the balance and you will alter the behavior, or so he thought. His work was exceptionally important in advancing the view that punishment should be far more swift, certain, and severe, a view which many legislators and criminal justice policymakers quickly endorsed.
Tinkering with incentives is also an essential component of the neoliberal approach to crime control, which relies on, among other things, the management and control of physical space to corral and redirect would-be offenders. Have you ever noticed that newer park benches use metal armrests to divide the bench into two or three distinct seats? That’s not for comfort. It prevents the bench from being used as a bed, and therefore deters the homeless from mixing with the good people of the city.
To date, proposals to redirect the flow of money have not played a prominent part in the discussion of criminal justice reform, which has focused instead on statutory changes, mostly at the state level. But there is some evidence this may be changing. Recently, the MacArthur Foundation announced a $75 million grant to develop programs aimed at reducing jail populations. Last week I spoke with Nancy Fishman, the Project Director of the Center on Sentencing and Corrections at the VERA Institute, a major player in criminal justice reform and one of four groups charged with administering the MacArthur grant.
As Fishman explained, the idea of the grant is to create incentives for municipalities to think systemically about how to eliminate what has become a reflexive over-reliance on jail. Over the past two decades, violent crime has fallen by nearly 50 percent and property crime by 44 percent. Yet annual admissions to jails in the United States have almost doubled, from six million to nearly 12 million. The great majority of these people, perhaps as many as three-quarters, are held for nonviolent traffic, property, drug, or public order offenses. Many are mentally ill or have alcohol or drug dependencies but are warehoused in jail for want of alternatives. Finally, to compound the crisis, pretrial detainees are held far longer than in the past: over the past three decades, the average stay has increased from 14 to 23 days. (VERA’s report is available here).
MacArthur, VERA, and its partners hope to identify and fund creative proposals from municipalities that will reward alternative strategies. Backed by MacArthur’s resources and tied to VERA’s technical expertise, these alternatives will—one hopes—change the incentives in a way that encourages police, sheriffs, prosecutors, judges, and legislators to think of jail as the last resort rather than the first. This, after all, is the intended purpose of pretrial detention, which should be limited to those very few who cannot safely be returned to the community. All evidence shows that jails long ago took on a far different role.
One lesson of the DOJ report is that if you reward municipalities to think and behave differently, they will. If cash-strapped cities are paid to reserve jail for the appropriate population, they will, and the message will gradually spread from the mayor in city hall to the cop on the street, and all the actors in between. Prosecutors will learn not to seek pretrial detention for those who should be diverted elsewhere, judges will no longer impose bail that sounds reasonable to a middle class sensibility but is far beyond the reach of a poor man or woman, and legislators will think twice before creating yet another category of crime that calls for presumptive pretrial detention.
No one remotely thinks that the MacArthur grant will solve the problem of distorted incentives and misallocated money in the criminal justice system. After all, $75 million is almost literally nothing compared to the tens of billions of dollars awarded by the federal government to states and local municipalities across the country over the past 50 years to shape and expand their criminal justice system. But all of this money represents an extraordinarily powerful resource, if only it can be harnessed in the service of a new vision of criminal justice. Ferguson points the way, and MacArthur is taking the first step.
February 16, 2015
Je Suis Charlie Hebdo
by Ronald D. Rotunda
Censored SpeechFree speech is under renewed attack after the Charlie Hebdo murders that claimed 12 lives earlier this year. Around the world, some Muslims protested—not to defend the right of free speech but to attack those who, in their view, insulted Islam. For example, in late January, protestors killed five people and set fire to eight Christian Churches in Niger. French President Francois Hollande responded that France was committed to “freedom of expression,” and that commitment is “non-negotiable.”
A month before the Charlie Hebdo violence, a French appellate court overturned the conviction of Christine Tasin, a retired schoolteacher of Classics. In 2013, she had publicly criticized Islam’s Eid-ul-Adha (“Festival of the Sacrifice”), as unsanitary and cruel to animals. The trial court sentenced her to a €3,000 fine (half of which it suspended) and a three month prison sentence, also suspended. Earlier, a Muslim man threatened her with death. The court fined that man only €800. The judge apparently decided that objecting to cruelty to animals is five times more offensive than threatening a retired schoolteacher with death.
Tasin rejoiced in the overturning of her conviction. “Last Thursday was a great day for freedom of expression in France,” she said. She added:
The [appeal] court in Besançon has now acknowledged that one has the right to express opinions and I did not encourage hatred against Muslims, and I can think and say that Islam is a threat to France, that it is a freedom of expression. [Those who] fear that freedom of expression is disappearing, and that blasphemy has become a crime again are relieved. Yes, I am an Islamophobe, so what? It’s Normal! . . . I don’t find it normal to torture animals; I don’t find it normal to veil women. I’m talking about a serious problem.
Others take away a different lesson and encourage self-censorship—be careful what you say. On January 21, Stevie Wonder advised, “we should make laws against people criticizing religion,” a most in-apropos comment (it was part of his eulogy of André Crouch). In 2012, the President’s Press Secretary, Jay Carney, in the course of a press conference, said, “We are aware that a French magazine [referring to Charlie Hebdo] published cartoons featuring a figure resembling the prophet Muhammad, and obviously we have questions about the judgment of publishing something like this.”
After the 2015 murders of the Charlie Hebdo staff, Carney reaffirmed his view that Charlie Hebdo should have pulled back with its satire. Carney, of course, made clear that he did not justify violence. Yet, as Washington Post columnist Charles Lane advised, “mixed messages unavoidably implied that the rioters had a valid point, which is never something you want to imply—at least not if you understand how dangerous it is to give violent extremists a veto over what your citizens can and cannot say.”
Carney’s successor as White House Press Secretary, Josh Earnest, speaking shortly after the Charlie Hebdo attack, embraced that mixed message. The violence is terrible, of course, yet, when a reporter asked Josh Earnest, “Does the White House stand by that questioning [in 2012] of the judgment of the publication of that cartoon in light of recent events?”—Earnest’s response was yes, after long, convoluted remarks. He reaffirmed that Charlie Hebdo exercised poor judgment; however, satire “could put Americans abroad at risk,” so the President “will not now be shy about expressing a view or taking the steps that are necessary to try to advocate for the safety and security of our men and women in uniform.”
This response appeared to be a non sequitur so the reporter said that protecting “American service personnel is different than criticizing or raising questions about the judgment underlying any satirical expression, be it to mock Islam or Christianity or Judaism, or anything else.” Consequently, the reporter asked, “Where do you draw the line?” Earnest’s answer, “I think it depends on the scenario.” What does that mean? Don’t mock Islam but Episcopalians are fair game?
It is difficult for you to support free speech if you simultaneously express reservations about what the speaker is saying and then warn that you will “not now be shy” about “taking steps” to discourage the speaker from speaking because that is exercising “poor judgment.”
Jonathan Chait, a commentator for New York Magazine and former senior editor at the New Republic, saw right through this decidedly ambiguous message. What the White House Press Secretary is saying, Chait says, is, “They do not believe religious extremists should be able to impose censorship by issuing threats, but given the existence of those threats, the rest of us should have the good sense not to risk triggering them.” That is not a defense of free speech but rather a call for self-censorship:
“The line separating these two positions is perilously thin. . . . The right to blaspheme religion is one of the most elemental exercises of political liberalism. One cannot defend the right without defending the practice.”
The Washington Post republished the Charlie Hebdo cartoon cover circulated after the attack, but the New York Times did not, noting, “most Muslims consider any depiction of their prophet to be blasphemous.” That certainly appears like self-censorship. (It also shows that the editor of that article does not travel much, at least not to Istanbul, where one could tour the famous Topkapi Palace Museum, which displays many images of Mohammed. That’s another problem with self-censorship; it leads to over-self-censorship, if you are scared enough.)
In December 2004, I gave a speech at the University in Nijmegen, The Netherlands about America and the Gulf War. A month earlier, a 26-year-old Dutch-born Muslim murdered Theo van Gogh, while cycling to work. My speech was public and a Muslim woman spoke up in the back of the room before I began. She was accompanied by several large men and videotaping equipment. She wanted to videotape my speech. I asked the audience if they objected and they did. The audience was obviously scared and I asked her if she had any reaction to that. She refused to speak.
I told her that the audience was scared of her because of the murder of Theo van Gogh and that ought to concern her. She just stared at me in utter silence. I said she could condemn the murder of Theo van Gogh; that might make the audience less frightened. Again, nothing. I finally told her that she could videotape me but the camera must focus only on me. She could not make any record of anyone in the audience. She agreed, and the audience felt better. Then I began my speech by saying that it is important that we not be afraid to speak. After I finished the presentation and answered questions, she and her entourage left. At that moment, I did not need the White House Press Secretary to tell me to exercise “better judgment,” i.e., self-censorship.
Each generation must learn and relearn the lessons of free speech. Those who say we can speak, but should not be rude or offensive do not understand that inoffensive speech has no need of protection. The White House Press Secretary should not be telling us to censor ourselves; he should be telling the world that the cure for speech we do not like is more speech, contrary speech, not violence or self-censorship. If you disagree, respond with words, not force.
Those who worry about inciting those Muslims who preach and act out hate think that appeasement will stop the terrorist attacks. Sadly, appeasement in the past has been about as effective as throwing some blood in the water to appease sharks.
Listen to an Egyptian cleric, Muhammad Hussein Yaqub, speaking in 2009, on Egyptian Television. He told his viewers:
If the Jews left Palestine to us, would we start loving them? Of course not. We will never love them…They are enemies not because they occupied Palestine. They would have been enemies even if they did not occupy a thing…You must believe that we will fight, defeat and annihilate them until not a single Jew remains on the face of the earth.
The Quran tells us that if God had wanted one community, He would have made one community. Instead, we are many communities so that we can compete with each other in good works (Quran verse 5:480). The murderers of Charlie Hebdo worry about sacrilege, but they are the ones who are sacrilegious, because they actually think that Almighty God needs those puny men to effectuate His will.