Monday, December 11, 2017

Republicans' Vapid Defenses of Reverse-Robin Hood Policies

[Note: This column was revised and edited for clarity at 8:05pm on December 11, 2017.]

by Neil H. Buchanan

As the Republicans in Congress try to drag their highly unpopular tax bill across the finish line, they have become ever more brazen in admitting what they really think about non-rich people who dare to complain about the feed-the-rich shamelessness of the Republicans' plan.  In case anyone had forgotten, Republicans are again making it clear that they think that non-rich people are lazy, shiftless leeches.

An op-ed by two analysts at the New America Foundation cuts through the nonsense and points out the fundamental reality: "Republicans Are Bringing ‘Welfare Queen’ Politics to the Tax Cut Fight."  Senator Orrin Hatch's recent complaint about "people who won’t help themselves, won’t lift a finger and expect the federal government to do everything" merely reminds us of Speaker of the House Paul Ryan's "makers and takers" meme and especially of Ryan's former running mate's infamous "47 percent" comments.  These, in turn, were mere updates of Ronald Reagan's infamous (and completely imaginary) "welfare queen" in 1976 who supposedly worked the system to the tune of millions of dollars of undeserved benefits.

Republicans also make arguments that, if taken seriously (which they should not be), would ultimately prove that all taxation (even regressive taxation) is immoral.  Although some Republicans might be willing to own up to that claim, a party that is obsessed with Pentagon spending and spending money to keep brown- and black-skinned people in their places -- which often means out of the country entirely -- needs to have some way of separating acceptable forms of taxation from unacceptable forms.

Republicans are stuck, because they have no way to justify tax cuts for the rich without insulting everyone else, and they cannot make choices among taxes because they are committed to the belief that all taxes are inherently bad.  What we end up with is the current mess of a tax bill and the shockingly bad salesmanship on display from the Republicans.

Saturday, December 09, 2017

The Year of the Terrible

By Eric Segall

The Year of the Terrible started on January 20th when the newly elected President of the United States gave his inauguration speech to the largest, most devoted crowd in the history of inauguration speeches. During that speech, he made clear what kind of role model and world leader he was going to be by proudly proclaiming “From this moment on, it's going to be America First…. We will follow two simple rules: buy American and hire American.” Of course, while Trump was speaking, his National Security Advisor Michael Flynn was allegedly on the phone texting a comrade that a joint nuclear power project with Russia was “good to go.” The melding of the Kremlin and the White House was off to a very good start.

Friday, December 08, 2017

The Other Kind of Sexual Harassment

by Sherry F. Colb

In my column this week, I discuss what I take to be at least one reason for the longstanding reluctance (by men and women) to believe women who say they have been raped or sexually harassed by seemingly normal, ordinary men. The reason has to do with the disturbing implications of acknowledging that such conduct has occurred. Disbelief in individual cases then functions as a form of denial across the board. In this post, I want to talk about a type of sexual harassment that has not been on the national radar lately but that is nonetheless a significant impediment to women's equality and to their sense of safety and wellbeing in the workplace.

Thursday, December 07, 2017

Estates, Death, and Relentless Republican Lies

by Neil H. Buchanan

The repeal (or near-repeal) of the estate tax is by no means the largest part of the Republicans' tax plans, but it is at the philosophical core of their anti-tax efforts.  Understanding how and why Republicans insistently lie about the estate tax provides a window into their longstanding effort to reward the wealthy simply for being wealthy and to punish everyone else for not being virtuous enough to be rich.

Untroubled by evidence and unencumbered by logic, the Republicans have been telling tall tales about the estate tax literally for decades.  Shamefully, many Democrats have bought into those lies, with the result that the estate tax is now a husk of what it should be.  Rather than full repeal, I suspect that the current political mess will leave an even smaller and less effective estate tax in place, thus allowing Republicans to continue to campaign against it -- and to continue to use it to raise funds from wealthy donors.

No matter whether my prediction turns out to be true, perhaps the most interesting and depressing aspect of the Republicans' anti-estate tax howling is that it shows how completely they are willing to put ideology before reality.  And they have been doing so for decades, long before Donald Trump's garish reality show allowed other Republicans to pretend to occupy a somewhat higher ground.

After briefly summarizing how the estate tax works, I will use Senator Chuck Grassley's recent arguments (and I use that term loosely) against the estate tax to illustrate the rank dishonesty and elitism of the Republicans' anti-tax crusade.

Tuesday, December 05, 2017

Three Problems With the SG's Klan Hypo in the Masterpiece Cakeshop Oral Argument

by Michael Dorf

During the oral argument in the Masterpiece Cakeshop case, Solicitor General Noel Francisco repeatedly used the following hypothetical example to make the point that a baker's creation of a custom cake (regardless of whether it contains an articulate message) is speech: Could the government "compel an African American sculptor to sculpt a cross for a Klan service?", the SG asked. And if not, doesn't that show that sculpting for a ceremony to which one objects--whether the medium is wood for a cross or dough for a cake and whether the ceremony is a wedding or a cross-burning--is expression to which the compelled speech doctrine applies?

The argument in the case was wide-ranging, with various outcomes possible. For at least some justices the case poses difficult line-drawing problems. But the SG's cross example does not do the work that he seems to think it does. Here I'll highlight three objections to it. One of them was offered during the oral argument itself by the lawyers opposing the baker, but went by quickly enough that it might not be sufficiently appreciated. The other two objections are my own contribution.

Originalism and Textualism in Action: Not Constraining and Not Neutral (Part 2)

by Joseph Kimble

      Several readers made thoughtful comments on my original post. They deserve equally thoughtful responses, which I’ll try to provide below.

     The short references are to the two articles I cited in the original post, one in The Scribes Journal of Legal Writing and the other in the Wayne Law Review.

     Most of the comments centered on the Wayne article about overrulings by the Michigan Supreme Court. (Reminder: the 81 overrulings by the Republican majority were 96.3% ideologically conservative.) Few readers addressed the evidence about Justice Scalia’s opinions in the Scribes article: 6 empirical studies (pp. 30–35) and 11 scholarly examinations (p. 35, note 96) that seriously militate against any claim that his textualism was nonideological, politically neutral, objective — the simple product of rule-of-law judging. How much evidence does it take to confirm what (in Prof. Dorf’s words) is “blindingly obvious” to anyone familiar with the tilt of those opinions?

Monday, December 04, 2017

Dialing the Shamelessness and Dishonesty Up to Eleven .. Twelve ... Thirteen ...

by Neil H. Buchanan

I am not the only observer who was surprised that the Republicans managed to get out of their own way and actually pass two versions of a relatively large change to the U.S. tax system.  (What will happen as they try to agree on a final version is, of course, anyone's guess.)  I was not, however, especially surprised by the added degrees of shamelessness and dishonesty that the Republicans were willing to bring to their effort.

After all, anyone who has been paying attention -- and who is not either a partisan Republican or a diehard believer that both parties are always equally to blame -- has seen this coming.  Each time a big policy debate has erupted over the past generation, the Republicans have outdone themselves and degraded our political system in ways that were once unthinkable.

Friday, December 01, 2017

Capitalists Against Capitalism

by Neil H. Buchanan

I have no idea why it still surprises me, but I am always amazed when conservatives who present themselves as the brave defenders of capitalism inadvertently reveal that they have absolutely no idea what capitalism is or how it works.  A serial offender is Donald Trump's budget director, Mick Mulvaney, who is now in the midst of a fight to take over the Consumer Financial Protection Bureau (CFPB).

As part of his public relations campaign, Mulvaney announced several days ago that Trump "wants me to get [the CFPB] back to the point where it can protect people without trampling on capitalism."  This is more than a bit odd, because Mulvaney has made it clear that he never thought the CFPB was at the point where it was not trampling on capitalism, and he and Trump clearly want to destroy the agency, not bring it back to some golden age of capitalism-friendly consumer protection.

The big point that Trump and Mulvaney are making, after all, is that the agency that has aggressively enforced anti-fraud laws to the benefit of American citizens must be stopped because its efforts to force Wall Street banks to obey the law are an affront to capitalism itself.  Notice that this is not even a statement that the underlying laws that the CFPB enforces are anti-capitalist (although I am sure that conservatives oppose those laws as well).  Mulvaney and Trump apparently believe that forcing banks not to break the law is itself a problem.

This is what we might call the Dumb Guy's Version of Capitalism.  A not-very-bright man hears that rich guys with lots of power say that they like capitalism and that they hate anything that limits their power, especially governments and labor unions.  Therefore, anything that rich, powerful guys like must be what capitalism is, and everything they hate must be an assault on baseball, hot dogs, apple pie, and (especially) Chevrolet.

It just so happens that that is completely wrong.  It was never true that what's good for General Motors is automatically good for America, and it is now even more important to understand the difference between being in favor of capitalism and being slavishly in favor of everything that business leaders say they want.

Importantly, this applies not just to the relatively small debate over the future of the CFPB but to every aspect of the Republicans' agenda.  Trickle-down tax cuts, gutted environmental regulations, weakened consumer and worker protections might lead to record-setting stock prices, but they are bad for capitalism and bad for America.