I shut down my blogroll a while ago, because I discovered that all the blogs on it had either shut down or gone inactive. Blogrolls are wonderful tools for sharing and building up blogs that would otherwise remain obscure, but it wasn’t working well for De Civitate.
But now a blog I enjoy — full disclosure, run by a friend of mine — has survived and stayed active for a year (yay), so I have an excuse to bring back the blogroll. It’s in the right sidebar. I’m even adding pictures this time.
That’s a very lonely little blogroll. Just one item. It needs more. So: if you have a blog, and it’s a reasonably interesting blog, and it’s not about to roll over and die, and you’re willing to link back to De Civitate from your blog, thenget in touch with me (firstname.lastname@example.org) and we’ll talk about getting you onto my blogroll.
It is no surprise, of course, that Planned Parenthood brutally dismembers living human children. And the casual inhumanity with which their doctors commit and profit from murder can only be mildly surprising. After all, we have all read (or, perhaps, pretended to read) Hannah Arendt’s Eichmann in Jeruslaem. Yet the citizen journalist videos recently released by the Center for Medical Progress (watch them if you don’t know what I’m talking about) have thrown the sheer shocking evil of the abortion industry into sharp relief. I didn’t live in Harriet Beecher Stowe’s time, but I have always imagined the moral awakening that followed Uncle Tom’s Cabin felt something like what we’re feeling now.
The first, immediate, obvious, necessary, and urgent step to be taken, in light of the videos, is to eliminate Planned Parenthood’s federal funding. The need for this is obvious to any remotely ethical human being, but, sadly, we live in a world where people generally think of themselves as much more ethical than they are. So there are objections. And objections to the replies to the objections.
These are, for the most part, morally monstrous objections in the first place: we do not cooperate with profound moral crimes that violate inalienable human rights, not even if we hope to reduce the rate or evil of those crimes by our cooperation. Imagine if we’d waited for society — for the “alternatives to be reasonable” while we made certain that “the culture is ready” — for the end of chattel slavery. We’d still be waiting today. Year after year, generation after bloody generation, tens of millions of families destroyed, hundreds of thousands of people involved in supporting the institution, billions of dollars invested in it, uncountable suffering. What a terrible fate we’d be condemning the slaves to: we’d promise to free them, one day, or maybe their children, or their children’s children — but each day they would have to get up before dawn, underfed, under guard, and start picking cotton, or plowing streets, or whatever their owners wanted them to do. The promise of some future relief for some future individual would serve only to taunt the victim of today. A government that cooperates with an outfit like the Royal Africa Company or Planned Parenthood is no better than a government that funds child pornographers. It’s just not an ethical option, even if it were for the sake of some greater good.
But people get very utilitarian about dead babies they don’t have to look at, whose deaths aren’t mentioned on the evening news, and so they raise all sorts of utilitarian objections to defunding Planned Parenthood, and it is politically important for us to refute those objections. Fortunately, that’s pretty easy: the objections are uniformly terrible. Let’s take a look:
Objection 1: Defunding Planned Parenthood will reduce the availability of contraceptives and pap smears to women.
No, it will not. The Defund Planned Parenthood bill, which you can read here, explicitly redirects Planned Parenthood’s funding to other eligible health centers.
Objection 2: Women who rely on the Planned Parenthoods in their communities will be stranded far from contraceptive access. If they do not have the ability to drive, they will be entirely deprived.
No. In reality, other government-funded contraception providers outnumber Planned Parenthood by vast margins. Let’s look at just one such option, Federally Qualified Health Centers (FQHCs for short). There are 700 Planned Parenthoods in the United States, serving 2.8 million patients annually. By contrast, there are 9,170 FQHCs in the United States, serving 21.1 million patients annually (source).
In other words, FQHCs outnumber Planned Parenthood a dozen to one.
And, with rare exceptions, they serve the same communities. Take Louisiana. Somebody last night asked me to look up the impact of all the Planned Parenthoods in Louisiana closing down, so I did some research. Turns out, Planned Parenthood only has two centers in Louisiana, in the urban centers of Baton Rouge and New Orleans. Then I went to the federal government’s FQHC locator tool (which you can use for yourself here). Within 5 miles of the Baton Rouge address, there are 8 FQHC’s. Within 5 miles of the New Orleans address, there are 22.
Today, I ran a few similar searches up here in the Midwest, where Planned Parenthood has more of a rural presence. Fargo has a Planned Parenthood… and 7 FQHCs. Moorhead has a Planned Parenthood… and 7 more FQHCs. The Twin Cities are bursting with Planned Parenthood’s (8 of them, which fits Planned Parenthood’s urban strategy)… but they’re still vastly outnumbered by 58 FQHCs.
The country is crawling with FQHCs. Look at this map. Very, very few Planned Parenthoods exist in areas without an FQHC. Indeed: very, very few people live in areas without an FQHC.
There are a few cases, all in deep rural areas, where closing a Planned Parenthood inconveniences some of its clients. For example, if the Planned Parenthood in Alexandria, MN closed down, a low-income resident of Fergus Falls, MN would have to drive 55 minutes to Moorhead to reach the nearest FQHC. Of course, she already would have had to drive 50 minutes to get to Alexandria (“Alec,” as we call it), so the closure of Planned Parenthood would add 5 minutes to her drive.
Of course, a Fergus Falls resident could also walk to the nearby Mahube-Otwa Center, located in gorgeous downtown Fergus Falls. It’s not an FQHC, but it does provide birth control regardless of ability to pay, and it’s a lot closer than Alec’s Planned Parenthood. (It has locations in four neighboring counties, as well.) You wouldn’t know it from the Google Search Results, because Planned Parenthood dominates the search results, but Fergus Falls residents have several nearby birth control clinics. Why does Planned Parenthood do so much better than these local clinics? Because a good chunk of that federal money we give Planned Parenthood goes back into or offsets their enormous marketing budget. The point is: even outside the FQHC network, which is pretty amazing to begin with, there are a huge number of other ways for low-income people to get birth control.
There would be even more ways if we took that money away from Planned Parenthood and redirected it to actual doctors — which is what the Republicans are proposing to do.
Objection 3: But Planned Parenthood serves people regardless of their ability to pay. These other clinics with federal funding don’t.
No, that’s not true. FQHCs are required, by law, to serve all clients in their area, regardless of their ability to pay. (42 U.S. Code § 254b)
The very reason the FQHC program exists, actually, is to serve “a population that is medically underserved, or a special medically underserved population comprised of migratory and seasonal agricultural workers, the homeless, and residents of public housing” (though they are open to others as well). So, just like Planned Parenthood, FQHCs use a sliding fee scale to ensure that all their clients are served.
Objection 4: But not all of these FQHCs provide contraceptives.
Actually, they do. Again, they are required by law to do this. All FQHCs are required, as a condition of receiving their FQHC grant, to provide “basic health services,” including “preventative health services,” including “voluntary family planning services,” to their patients, regardless of their ability to pay. (42 U.S. Code § 254b(b)(1)(A)(i)(III)(gg))
Objection 5: But some FQHCs are religious, and use exemptions to avoid giving out contraceptives.
Not true. There is no religious exemption in the law.
No exemption is required by the First Amendment (even as interpreted by the Religious Freedom Restoration Act), because no one has a right to federal grant money if they aren’t willing to carry out the services for which the grant is given.
If you are a religious organization that refuses to provide contraceptives, that’s great, and you can open up a health clinic if you like, but it is not an FQHC, and will not receive FQHC funding.
There is one exemption in the law, but it has nothing to do with religion: clinics whose sole purpose is to serve migrant farm workers may have some of their care requirements waived, on a case-by-case basis, by the Department of Health and Human Services, at HHS’s discretion.
Objection 6: Well, these FQHCs sound great, but I’ll bet some of them provide abortions, so redirecting money to them from Planned Parenthood doesn’t really get you anything but a token victory.
Nope! FactCheck points out (in the course of criticizing a pro-life talking point) that FQHCs “do not provide abortions to any of their patients,” and have never done so.
Objection 7: It’s not fair to destroy Planned Parenthood when abortion is only 3% of what they do.
There are so many conclusive rebuttals to this. Let’s try three:
(1) Was it fair to destroy Bill Cosby even though rape was less than 3% of what he did? I sure thought so.
(2) As I’ve shown before, it’s more like 20% of what Planned Parenthood does. 50% if you exclude “taking donations and government money” and just focus on what their money does in the clinics.
(3) The 3% line is premised on some really, really silly accounting that counts “spending five seconds giving someone a $10 box of pregnancy tests” as a service exactly equal to “spending five hours performing invasive surgery.” Rich Lowry points out how cynical this is, and he does it better than I ever have.
Fun fact: when you slice the data another (more honest) way, abortion makes up 94% of the services Planned Parenthood provides to pregnant women. Their abortion-to-adoption-referral ratio? 149:1.
Objection 8: Reducing funding for contraceptives will only increase the number of abortions.
Well… everything we’ve been discussing up to now shows that defunding Planned Parenthood wouldnot reduce contraception access or funding. So this objection doesn’t even apply here.
Objection 9: Planned Parenthood is already barred (by the Hyde Amendment) from using federal funds for abortion, so this doesn’t help anyone.
This is a cheesy, almost meaningless accounting trick. Money given to Planned Parenthood that is not spent on abortions must by definition offset the money they do spend on abortions. Progressives recognize this (when it’s applied to religious schools they loath rather than the abortion clinics they love), and U.S. case law reflects it.
Planned Parenthood knows it, too. When Ronald Reagan tried to tighten regulations separating Planned Parenthood’s “family planning” business from its “abortion” business, they went to war, suing all the way to the Supreme Court (they lost) and tying up the law in litigation until Bill Clinton won the presidency and undid it.
Heck, if Planned Parenthood’s abortion business were so incidental and such a tiny part of what they do, why don’t they just stop doing abortions? That would instantly get them out from under all this political pressure.
It’s because abortion isn’t an afterthought for Planned Parenthood. It’s the center of a highly successful business model, which draws in customers with loss-leader contraceptives, which lead to a certain percentage of those customers coming back for abortions (all contraceptives fail sometimes), which provide raw material for Planned Parenthood’s side business in the dead-baby body-parts biz.
Long story short, the only possible reason you could have for wanting to maintain federal funding of abortion is if you want to protect and promote the practice of abortion. Anyone who says otherwise is either ignorant of the evidence, hasn’t thought it through yet, or lying.
EDITOR’S NOTE: I didn’t have as much time as usual to check this for typos or links, so please note any mistakes in the comments. Thanks!
Every time I see a presidential candidate, there’s a little voice in my head that asks, “Sure, that’s what they’re saying. But what are they really thinking?” This is a cynical voice, and it’s often quite wrong, but, in politics, it’s still healthy to consult the cynic from time to time.
There’s another voice in my head that believes everything everyone says about themselves, all the time. This trusting voice is no less important in politics than the cynical, and should also be consulted from time to time… but, if you want to read “Flattering Assessments of Presidential Candidates,” go read their campaign websites. Here are the unflattering ones. Some are certainly accurate, others may not be, but consider them my worst fears for each candidate:
Used to have the desire, skill, and ambition to be a leader, but, as the America he envisions recedes into the past, is content to vent his spleen and be warmly applauded for it by crowds that miss his America as much as he does.
A “compassionate conservative” who still kinda knows how to talk to Republicans, but is secretly seething that they have abandoned so much of what “his” party stood for. Sort of the Mike Huckabee of establishment Republicans.
A once-rising star who let the plaudits go to his head and will now burn like Icarus.
An intensely ambitious, furious man, with no particular principles beyond a vague affection for balanced budgets and low taxes, who’s willing to say anything to win… as long as it fits the elaborate superhero character he’s woven for himself, the Bombastic Budget-Cutter. Willing to play dirty in a state where dirty is part of the tradition.
The opportunist’s opportunist. While an intense progressive at heart — a soulmate for Sanders — she has sold out so many times and so hard (even standing by a husband she secretly despises) it’s impossible not to see her as Claire from House of Cards every time she opens her mouth. The real tragedy of Hillary Clinton is that, unlike her husband, she’s no good at selling out. Her many betrayals have bought her nothing but a truckload of distrust from all sides; her resume has lots of glitzy titles but none of the accomplishments she sacrificed her principles for.
The embodiment of conservatism’s worst instinct: the overwhelming desire to rend the flesh of insufficiently conservative conservatives, even at the cost of ceding power to progressives. Justifies this with an elaborate mythology wherein “energizing the base” matters more than persuading persuadables. The scariest thing is he might be right.
An articulate, believing, even inspiring conservative who keeps looking at her resume and can’t understand why she never wins any elections or runs any successful businesses. Has not yet realized that a good chunk of it is not about belief, but managerial talent and luck, neither of which she has enough of.
Half-Chafee, half-troll, Graham is running to ensure that an increasingly anti-establishment GOP stands for the same values he has stood for his entire career: corporate welfare and the military-industrial complex. Vain enough to think he might make a difference.
Infinitely frustrated by the fact that his political career was torpedoed by bad timing, bad luck, and a single bad State of the Union rebuttal, Jindal refuses to give up, and is thrashing out, looking for the attention he desperately needs wherever he can get it.
John Kasich Smuggy McSmugSmug.
George Pataki, Lincoln Chaffee, Martin O’Malley
Vain, highly insulated men with no sense of proportion. Just astonishingly vain.
A man of principle who made a conscious decision to compromise a little of what he believed in for the sake of attaining power, but, when that didn’t seem to be enough, kept going, and got lost somewhere along the way.
I can’t bring myself anymore to care about Rick Perry enough to write something mean about him. (Never mind, I just did.)
Drastically inexperienced (no more experienced than Sen. Obama was!) young’un who is so scared of making missteps that he makes missteps by trying to avoid making missteps.
A principled, intelligent, and consistent conservative, who has genuinely synthesized the social, economic, and foreign policy legs of late-20th-century conservatism into a single, cohesive, plausible platform… which is precisely what makes him so scary to so many. The Bernie Sanders of the Right.
A principled, intelligent, and consistent progressive, who has genuinely synthesized the social, economic, and foreign policy legs of late-20th-century progressivism into a single, cohesive, plausible platform… which is precisely what makes him so scary to so many. The Rick Santorum of the Left.
If you need me to explain the problems with Donald Trump, you are one of the problems.
An intensely ambitious man with an attachment to conservatism that runs deep only because he has lived with it for so long that its convenience has become conviction, not because he has any particularly clear basis for it, intellectual or otherwise. Fortunately for him, he has learned expertly the art of following The Conservative Script and only answering questions when it serves his purposes, so it’s easy not to notice.
The Lindsey Graham of the Democrats, with perhaps a little bit of the Jeb Bush “why can’t my party believe in all the things it believed in the ’90s?” to go along with it… with the important difference that establishment Democrats (unlike establishment Republicans) do not actually miss the days when economic conservatism and social moderation reigned supreme in Washington, leaving Webb without an audience.
Well, that was grim. I think I’m going to go back to deciding who to vote for based on who has the best 404 page.
I have long maintained that the Confederate flag should not fly over state capitols. It is the symbol of an enemy power, opposed to the United States. It has no business there. It is starting to come down in the few states that still honor it in that way. Good.
But it is wrong — simply, morally wrong — for the Democrats to try to strip the Confederate flag from the graves of Confederate soldiers. They are dead. They made the ultimate sacrifice for their cause, and their cause still failed.
They were wrong. They were rebels. They fought for an evil cause — indeed, for an evil empire, no less cruel at its heart than the Soviet Union or the Third Reich — whose destruction we rightly celebrate, and whose symbols we rightly abhor.
Yet they were also our brothers. They died in horrifying conditions by the hundreds of thousands, of bullets, untreated wounds, exposure, amputation, starvation, disease, moaning in wheat fields for their mamas as their lifeblood seeped out of them into the morning fog. To deny their very gravestones the right to say what they fought for is no less serious — in some ways, far more serious — than censoring a newspaper or banning a book. The living can still fight on against the censors to speak their piece; the dead are powerless. I don’t agree with what Confederate soldiers died for, but I’ll defend to the utmost their right to be remembered for it.
A couple years ago, I was trying to figure out how best to deal with rape cases. Rape is simultaneously one of the worst crimes that can be perpetrated against an individual and one of the hardest to punish or prevent. As I wrote at the time:
Our legal system, like every legal system, struggles with the problem of proving non-consent in rape cases. A rapist will often admit that sexual activity occurred, but will insist that it was consensual. The burden of proof falls on the victim. That is as it must be, since the defendant is innocent until proven guilty, but, under current law, it is very, very difficult to obtain that level of proof. If it turns into a case of “he-said/she-said”, the rapist gets away with it. Few rape cases that lead to an arrest end in conviction and prison time. Partly because of how difficult they are to prosecute, few rape reports lead to an arrest in the first place. And, given the high costs and low chance of success offered by the justice system, relatively few rapes are reported at all. RAINN estimates that only 3% of bona fide rapists are sent to prison for their crime. This is a tragic injustice.
At the same time, I was thinking about premarital and non-marital sex, which are bigger social problems than most people realize. While fornication used to against the law in all 50 states, those laws are now considered unconstitutional (because — one of this blog’s main themes — Anthony Kennedy is both a moron and a tyrant), and fornication has become socially acceptable:
The results have been predictable: premarital sex is more prevalent than it has been in millennia — perhaps in all history — while solitary motherhood has become both the curse of the poor and the luxury of the very rich. 41% of American children are born out of wedlock, and the number rises to an astounding 73% for black American children. Social pathology follows, as night follows day. I will not bother enumerating the harms inflicted on children by mass unmarried parenthood, because I no longer believe this is novel or controversial information, but here are a couple links to recent op-eds and research discussing the threat non-marital parenting poses to the next generation, from larger disciplinary issues to less successful careers. As it stands, there’s not much we can do about this. Even if there isn’t a constitutional right to sleep around, do we really have the desire or police resources to do anything about it?
At the time, I failed to note that fornication is also a key driver of the abortion rate (more than half of American reproductive-aged women are married, yet 85% of abortions are performed on the unmarried). I really want to discourage fornication.
One day, while making dinner and thinking alternately about these things, it occurred to me that rising rape rates are in many ways related to rising fornication rates, because the lack of a wedding vow prior to sexual intercourse makes consent much cloudier, and, in a culture where non-marital sex is widely embraced and even supported, it become much easier for a rape case to degenerate into “he said/she said” reasonable doubt. So I started to consider them together, and, within a few minutes, I had come up with an amazing idea which (I was pretty sure) nobody had ever heard before:
I have an idea that could make it easier to apprehend rapists without short-circuiting their due process rights, while simultaneously forcing people to think more carefully about fornication, reducing the number of abortions and increasing the rate of births that take place in wedlock — or at least within a truly committed relationship.
I propose that we add the following language to all sexual assault statutes:
“There shall be a rebuttable presumption that sexual contact between the actor and the complainant was non-consensual, if the actor is not married to the complainant.”
Here is what this says, in plain language: if you report to the police that you were raped, and the person you accused says, in defense, that you did have sex, but it was consensual, then it is no longer your responsibility to prove that you were violated against your will. It is the other person’s responsibility to prove that you did agree to have sex. The court would not presume that you gave consent, as it does today. Instead, it would presume that you are telling the truth — that you were raped. The only cases where the law would continue to presume that the sex was consensual are cases where the accused and the accuser are married to one another. There is a very good reason to make that exception: a married couple has publicly given sexual consent to one another, and has specifically requested that their sexual relationship be formally recognized under the law. Although marital rape can and does occur, it is right for a court to give the benefit of the doubt to the marriage.
Much of the rest of my post was dedicated to explaining what a rebuttable presumption was, and defending the fact that rebuttable presumptions (in a sense) invert the “innocent until proven guilty” standard of Anglo-American justice. (They do this for good reason, and they’re really quite common: example 1, example 2.)
My ultimate vision was that young people, in order to protect themselves from rape allegations under the new law, would start using what I called a “consent contract” before fornicating with anyone. This would establish consent and be sufficient to rebut the presumption of non-consent. (A contract would not be the only way to establish consent; they could also film themselves on their phones just before sex, verbally agreeing to it for the record.)
My first hope was that this new law would make it much easier to convict rapists. Rapists would not have signed a consent contract with their victims, and any cell phone footage would clearly establish rape, so they would have no way of rebutting the presumption of non-consent. Rape conviction rates would skyrocket — an obvious blow for justice
My second hope was that this new culture would turn fornication into such a social and legal minefield that it would effectively deter it in many cases. It is not easy to interrupt sex to sign a quick contract, and — don’t forget — you would have to sign one of these every single time you hooked up, even if it was with your steady girlfriend or live-in partner of five years. And you’d have to keep the records — written contracts and cell phone videos documenting every single sexual act you perform with any other person — for approximately ten years (the statute of limitations on rape in Minnesota is nine years). Until you married, sex would never be presumptively consensual. Those who refused to get and keep documentation would find themselves vulnerable to a rape allegation if their relationship ever went south. If some fornicators ended up unjustly convicted of rape, I wasn’t too concerned about it, since I already wanted them prosecuted and convicted under the old fornication laws. Affirmative consent would have effectively brought fornication laws back through the back door. Bwahahahaha! My evil plan to ruin and criminalize the campus hook-up scene would finally be complete! No doubt my shadowy overlords at the National Organization for Marriage would reward me richly for my guile!
I had two major problems with my proposal, though, and it languished in drafts and re-drafts for years and years as I tried to fix them.
The first big problem was selling it. Fornication, as we’ve established, is super-popular, and the Left — which simultaneously opposes marriage and supports people of any sort having sex at any time for any reason with no possible consequences — seemed particularly unlikely to support a proposal whose second prong would turn the hook-up paradise they’ve established on college campuses into a wasteland. The anti-rape provisions were nice, but would they be enough to make an ally of the cartoonishly villainous Erin Gloria Ryan? But this is just politics, and, deep down, I think most people know that fornication is bad, so I was confident that, in the long run, this proposal could make it over the finish line if packaged well.
The second big problem was far more fundamental. In the end, it was fatal. This legal standard makes it so that the best defense to a rape accusation is not “it was consensual”. It makes it so the best defense to a rape accusation is a counter-accusation: “I didn’t rape her; she raped me.” Assuming there’s no documentation — which there wouldn’t be, because it was a rape! — the situation would still be a he-said/she-said, much like it is today… with the important difference that the loser of the he-said/she-said would end up in prison for 25 to life. Think of how hard it is to come forward with a rape allegation today, and then imagine how hard it would be if you knew that coming forward carried a real risk that you’d be the one sent to prison instead of your rapist!
I tried to pooh-pooh this to myself, but, the more I thought about it, the worse it seemed. Serial rapists, knowing that creating simple doubt is no longer be enough to get them off the hook, would start trying to frame their victims for rape, Gone Girl-style. In order to get the drop, rapists could even start accusing their victims first, reaping the benefits of making the first accusation.
And the new affirmative consent regime would incentivize all this.
It seemed to me that the new rape regime would become, if anything, even worse than it is today, both for victims and for the falsely accused. The only people who wouldn’t be negatively impacted by the new rape laws would be the rapists. My proposal would still have the desired effect of completely ruining (and partially criminalizing) the consensual non-marital sex scene, which was great, but, if it meant worse outcomes for rape victims — who have a hard enough row to hoe as it is — I didn’t think it was worth it, so I put the whole thing on the shelf. I intermittently pulled it off the shelf and played with ways to fix it, but the only idea I ever had was, “Believe the woman is telling the truth and the man is lying.” Unfortunately, aside from being an obviously sexist and unjust rule of construction, it is simply a fact that men can be both raped and falsely accused, and both happen at low but non-trivial rates, so it wouldn’t be remotely effective. The proposal remained on the shelf. My post, quoted above, was never published.
This was 2012. Fast-forward to today.
As it turns out, I was not the first person to think of this. Tiny Antioch College tried something similar (only without the marital exceptions) in 1991. Everyone made fun of it, but, twenty-odd years later, about two years after I started working on this idea, California suddenly came out of nowhere and passed an affirmative consent law that applies to all college codes of conduct. California. Home of the Left. And the Left… cheered? Seriously, that link is Ezra Klein celebrating the fact that “men [will] feel a cold spike of fear when they begin a sexual encounter.” I’m happy about ruining fornication for everyone, but why are you? This link is Erin Gloria Ryan, whom I expected to be the foremost opponent of these laws, angrily denouncing the law’s detractors in her trademark, savagely ad hominem, style.
Libertarians freaked out, correctly pointing out that this law would not help stop rapes, but would only hurt casual fornicators. Conor Friedersdorf, a proud Leftie who nevertheless frequently engages in thinking, mentioned the counter-accusation problem I had foreseen. The mainstream Right noted the same things, but spent most of its energy mocking the law. (However, Heather MacDonald had a must-read piece dissecting the “neo-Victorianism” that this law represents, to which David Brooks had a must-read response.) The Right also continued arguing (correctly) that campus rape tribunals are kangaroo courts, farces of justice injuring both accusers and accused more or less at random (though they are increasingly stacked against the accused). These tribunals — mandatory under Title IX and dramatically expanded by the Obama Administration — have no business existing in the first place, because the proper venue to try a rape charge is in court, and affirmative consent policies only empower them to ever greater injustices.
(On that note, I thought it instructive that California applied the “affirmative consent” standard only to college codes of conduct, not to the California criminal code. Perhaps they recognize what a catastrophe it would be for all concerned if the affirmative consent standard weren’t just a tool to help college administrators persecute accused rapists, and were applied in a system that actually has due process of law.)
This all happened last year, and I figured the affirmative consent was doomed, so I made no comment. California passes all sorts of weird bills, and presumably the Left — given a little time — would realize that “affirmative consent” standards hurt rape victims and (worse!) undermine the Left’s pièce de résistance, the Sexual Revolution, leading them to withdraw support for the idea. I mean, once Jonathan Chait gives up on your feminist crusade, it’s all over. (I’m pretty sure that’s a Rule of Acquisition.)
But I was wrong. This has not happened. Affirmative consent has only grown more prevalent, although, even now, nobody has legislated it into criminal law. This week, I learned that my own local state university, the University of Minnesota, is on the verge of imposing an affirmative consent policy of its own.
What actually prompted me to finally post about this, though, after so many years thinking about it, was a tidbit I picked up on social media today: a group styling itself the “affirmative consent project” has started actually circulating a sexual consent contract. I laughed very hard. All my predictions are coming true! They are actually going to make kids sign a contract before they have sex, and save it for years! Every time they do it! My only mistake was in thinking that the Left would need some prompting from the Right to so radically violate their “stay out of other people’s bedrooms” principle they’ve spent so many years pretending to care about.
This is certainly amusing, and, in some ways, the first wave of affirmative consent is useful. But my next round of predictions suggests that increasingly savvy rapists will (easily) exploit the new rules, leading to an unraveling of justice for both rape victims and falsely accused rape perpetrators. I don’t want that. Even the destruction of the college hook-up scene isn’t worth causing more harm to rape survivors… and the lack of a marital exception to these policies means the damage could eventually extend far beyond fornication, harming all sexual relationships of any kind. We should repeal these policies before we get anywhere close to that.
I recognized these problems after only a couple hours thinking about the idea, and my concerns led me to shelve the idea for more than two years. But the State of California, and now the U of M board of regents, have now gone ahead and passed actual laws, affecting millions of people, apparently without bothering to think about it as much as I did for a blog post. Once these policies are repealed, everyone in California and on the U of M board of regents needs to sit down for a very long think about passing real, very powerful laws without bothering to consider their unintended consequences.
I wrote a version of this post on reddit about nearly two years ago. I finally got sick of digging out the link, so I am finally getting it up on De Civ.
On July 2, 2013, Assistant Secretary of the Treasury Mark Mazur announced that the Treasury Department is suspending two related provisions of the Affordable Care Act (popularly known as “Obamacare”) for a period of one year. (Chief-of-Staff Valerie Jarrett elaborated slightly in a post that same day.)
The first suspended provision, Section 6055 /6056, requires employers and insurance providers to periodically report health insurance coverage information to the Treasury Department. It is being suspended in order to allow more time to “consider ways to simplify the new reporting requirements” and for employers to “adapt health coverage and reporting systems.” This is reportedly legalese for “we’re not ready with the regulations, and you’re not ready with the reporting technology, so let’s try again next year.”
The second suspended provision, 4980H, generally known as the “Employer Mandate” or “Shared Responsibility Payment,” requires all large employers (defined by the ACA as, basically, anyone with 50 or more employees) to either provide Obamacare-compliant “minimal health insurance” to all full-time and some part-time employees or suffer substantial penalties (which were clarified as a tax penalty by the Supreme Court last year). The reason given for the Mandate’s suspension was simply that suspending the reporting requirements would render enforcement of the Employer Mandate somewhat impractical. Some Republicans have suggested that the real motivation is to protect the Democrats during the midterm elections.
However, this post is not about the motivations behind the suspensions, nor about the political and practical fallout. Those topics are discussed at considerable length elsewhere. This post is concerned strictly with the legality of the Administration’s administrative action.
The suspension of the reporting requirements is probably kosher, legally speaking. The ACA explicitly gives the Secretary of the Treasury vast discretion over when and how these reporting requirements are to be implemented. (Just read both suspended sections and highlight all the sentences that include the phrase “as the Secretary may prescribe” or “as the Secretary may require”.) Therefore, although it was certainly not directly intended by the legislators who crafted the law, and even though the ACA itself states (at Section 1514(d)) that the reporting requirements come into effect on January 1st, 2014, it is absolutely within the Secretary’s ambit to announce, “Yeah, sure, this technically comes into effect in 2014, but we’ve decided that the first due date for this section is May 1, 2015. See you then.” This legal evasion of a law’s official start date is almost routine procedure in Washington, especially when a piece of legislation turns out to be much broader than anticipated and needs a lot more rulemaking than Congress planned for. In fact, it is a fairly regular occurrence for the Executive branch to simply miss rulemaking deadlines that are set by statute, even though they have no legal authority to miss said deadlines. That’s unfortunate, but it’s not criminal so long as the Executive was making a good-faith effort to complete the rulemaking on time. Heck, sometimes Congress sets impossible deadlines; the Executive does its best.
To be sure, there are still questions about the legality of suspending the reporting requirements. Namely, while the Secretary may indefinitely delay the due date for the reporting, it seems that he may not suspend the reporting requirement itself, so, on whatever due date is eventually picked, employers will have to submit reporting for the entire period from 1 January 2014 up until that date. From the Treasury announcement (and subsequent IRS guidance), it’s not clear that that’s their understanding of the law. But, for all that, on my reading, there’s no obvious violation of the law in the decision to suspend the employer reporting requirements.
However, the suspension of the Employer Mandate itself is, pretty obviously, quite illegal. The ACA contains a mandatory “effective date” requirement at Section 1513(d), which reads, “The amendments made by this section shall apply to months beginning after December 31, 2013.” This is less ambiguous than Section 1514(d) (which uses “periods” instead of “months”). More importantly, the Secretary of the Treasury is simply not empowered to waive these requirements or the resultant penalties. The statute gives him a lot of power to do that with reporting requirements, but not with the taxes themselves. Now, Treasury may delay collection of the required penalties (§4980H(d)(1)), but the “assessable payment” itself is imposed directly by Congress on employers (§4980H(a)), is effective January 2014 (§1514(d)), with specific dollar-amount penalties imposed for specifically 2014 (§4980H(c)(1) and §4980H(c)(5)) which may be suspended only in conjunction with a much broader state-specific “innovation waiver” as described under §1332.
In short, the Affordable Care Act – currently the law of the land – says that this new tax penalty goes into effect in January 2014, and, apparently, the Department of the Treasury is, independently of Congress and the Constitution, cancelling that tax penalty for Tax Year 2014. Right-wingers like Michael McConnell and Michael Cannon are not alone in considering this action illegal; some on the Left, like Sen. Tom Harkin, and Jonathan Chait, as well as some in the Center, like legendary constitutional lawyer Ronald Rotunda, all seem to agree that this isn’t legal, and (as of July 2013) no prominent voices on the Left are speaking up to defend the action as lawful.
Two weeks after Obama Administration suspended the Employer Mandate, J. Mark Iwry, a senior Treasury Advisor, presented, for the first time, the Administration’s legal justification for this action in his testimony to the House Ways and Means Committee. He argued that this is a routine exercise of Treasury’s authority under §7805(a) , which grants the Secretary of the Treasury broad authority to make rules and regulations in order to enforce the Internal Revenue Code (which includes these penalties). But the obvious rebuttal is that this suspension action, and the rules associated with it, don’t enforce the Internal Revenue Code, but specifically and directly prevent enforcement.
Mr. Iwry cited half a dozen instances during the Clinton and Bush Administrations where, he argued, Section 7805(a) had been used to effect similar delays and suspensions, and if it was okay then, why shouldn’t it be okay now? This is perhaps not the strongest defense that can be imagined – “Bush did it first” does not exactly prove that “it” was actually legal – but it is something.
Nevertheless, Mr. Iwry’s examples are deeply unpersuasive. In some of his examples, the statutes in question granted the Secretary broad authority to suspend or even amend portions of the law Congress had passed in order to make it work. The ACA, as we have discussed, grants no such authority with respect to the Mandate.
In other examples, existing rules were deemed adequate to address the necessary provisions of new law as temporary rules while new rules were still under consideration. In other examples, reporting and tax collection were temporarily delayed… but in no case were tax penalties simply cancelled without authorization in the statute to cancel them. You can check for yourself: the authorities Mr. Iwry cited were Treasury Notices 2007-54, 2000-5, 2005-29, 2006-2, 2007-4, 2005-94, 2006-100, 2007-89, 2008-115, 96-64, 99-40, and Announcement 95-48. None of these cases bears even a plausible similarity to the case of the Employer Mandate suspension. Even though, in Mr. Iwry’s example cases, the IRS and Treasury did do a great deal of juggling with reporting requirements and the calendar, they always made certain, in the end, that the government was paid all the taxes that Congress had imposed. The suspension of the Employer Mandate (officially codified in Notice 2013-45) is not pushing off the due dates for the penalties until all the regulations and technology are in place, as it could (and should); it is cancelling the penalties outright – refusing to collect taxes that Congress has imposed. As it states, “no employer shared responsibility payments will be assessed for 2014.” This is illegal – blatantly so.
Mr. Iwry also listed as authorities several actions from during the Obama Presidency. Since the Obama White House is what’s under examination here, I have declined to confer precedential value on them, and I am not including them in my analysis. If the only legal leg the Administration has to stand on is that this very Administration has already broken the law in this way before, that’d be less of a defense and more of an admission of broad unlawfulness!
If the President can, on his own authority, suspend a duly passed, concededly constitutional law, indefinitely, despite the express orders of Congress as expressed by the statute in question, then we no longer live in a democratic republic, but a democratic monarchy, with the President being the ultimate arbiter of law and order and Congress being merely an advisory body. President Mitt Romney could simply suspend all of Obamacare permanently, effectively repealing it without ever getting a vote through Congress to do so. President Ted Cruz could announce that he is suspending indefinitely all the Obama-era tax hikes on high-earners and capital gains, returning to Bush-era taxation by fiat – or, heck, he could just suspend laws hither and thither until he’s effectively abolished the progressive income tax and imposed a flat tax in its place. President Hilary Clinton could announce that Congress is moving too slow on immigration reform and simply legalize everyone by suspending all statutes to the contrary. [Ed. Note: In the years since I wrote this, President Obama pretty much just went ahead and did this.]
Some of these policies would be good; some of them would be bad. But none of them, imposed by presidential fiat, would be constitutional, nor in any way compatible with our system of broad, consensus-based representative democracy. This is precisely why the Constitution requires the President to swear, on taking office, to “take care that the laws be faithfully executed.”
What legal remedies are available to restrict the president back within his Constitutional limits?
The normal answer is “lawsuit,” but it turns out that, in all likelihood, nobody has standing to sue the President over this, so, under Article III of the Constitution, the courts can’t adjudicate it, even if they agree that the President is violating the Constitution.
For its part, shortly after the President announced his lawbreaking, Congress did something quite unexpected to try to fix the situation: the Republicans actually decided, “Hey, we hate the employer mandate, so we are all for suspending it,” and they actually passed a bill, HR 2667 that gave the President statutory authority to make this change. Shockingly, rather than accept the legal fig leaf this bill would have provided, the White House issued a veto threat (presumably for political reasons; the GOP was exploiting the issue for political points) and HR2667 is died in the Democrat-controlled Senate.
This seems to leave us between a rock and a hard place. The courts can’t force the President’s hand unless someone can find standing to challenge the action, so the judicial branch is out of the game; Congress has already attempted to make peace by means of a statutory remedy and been rebuffed; and the President himself is doggedly refusing to change course even as he fails to provide even a plausible case for the legality of his action. The only remedy I can still see on the table is impeachment.
It seems like a very strange thing for Congress to impeach the President for suspending a law that a majority of Congress aggressively opposes to begin with, and ironic in the extreme to impeach the President for violating a law that he himself considers his signature achievement… but there is also the larger principle at stake: we have to protect the bedrock American principle that we follow the rule of law, not the rule of men.
I don’t like the idea of impeaching somebody over an issue that is closely tied to broader questions of health care reform, the most politically polarized issue of the past several years. I’d feel much more comfortable impeaching someone for something clearly apolitical, like murdering a prostitute or being constantly drunk all the time. I also (personal note) hate the idea of President Joe Biden. But the President takes an oath to “take care that all the laws be faithfully executed,” and clearly refusing to do so has to carry a price, or our democracy fails. “Repealing Obamacare” is not the most important issue to me, or even a Top 3 issue. But “maintaining the Republic” is. Especially in these days of judicial lawlessness, with hope for the Constitution being swept away by sheer zeitgeist, it is important to stand on our nation’s bedrock legal principles, even if those legal principles make no political sense.
The whole modern world has divided itself into Conservatives and Progressives. The business of Progressives is to go on making mistakes. The business of the Conservatives is to prevent the mistakes being corrected. Even when the revolutionist might himself repent of his revolution, the traditionalist is already defending it as part of his tradition. Thus we have two great types — the advanced person who rushes us into ruin, and the retrospective person who admires the ruins. He admires them especially by moonlight, not to say moonshine. Each new blunder of the progressive or prig becomes instantly a legend of immemorial antiquity for the snob. This is called the balance, or mutual check, in our Constitution.
A couple of years ago, I published a long piece for De Civitate in support of civil marriage. The “purpose of civil marriage,” I wrote, “is to promote positive procreation, which includes bearing and raising children, insofar as possible, within their intact families, so that they become productive, responsible, adult members of society… [I]t is a wise and prudent public policy.” I also argued against redefining civil marriage to include other loving, consensual, adult sexual relationships, on the grounds that doing so would undermine its public policy objectives while (paradoxically) opening the institution to charges of indefensible discrimination. I concluded, “A vote to redefine civil marriage is, in the final analysis, a vote to end civil marriage.”
Having said all that, I added in a postscript: “It is not unreasonable to want to abolish civil marriage entirely, on the basis that government interference in marriage does far more harm for children and the culture than it does good. I don’t think that’s true, but I’ve heard some good arguments (or at least starts-of-arguments) that make me suspect I could be wrong.”
In the years since I wrote that, those “starts-of-arguments” have blossomed, and I’ve come around to their position: civil marriage should cease to exist.
A friend asks, “How do I know what news sources are legit? Like, ThinkProgress, for example? Do they suck? I know many sites, but I have no idea which ones are regarded as actually having good information.”
This is a good question, and I wish more people would ask it. The growing ideological segregation of Americans is shutting down the immune system of the body politic, driving us further and further apart, and sending us (slowly) down the path that led (in the 19th century) to civil war. One of the biggest contributors to ideological segregation is the fact that many of us – especially the most politically passionate – get all or most of our news from sources which are strongly aligned with our own ideology. Progressives do not get news from FOX. Conservatives do not get news from Salon. (We even have competing, parallel entities, Media Matters and NewsBusters, dedicated to categorically discrediting the other sides’ sources. The mind-virus now has its own antibodies.)
This is the text of a talk I recently gave at the monthly meeting of Twin Cities Catholic I.T. Professionals, Inc.. It is aimed at computer professionals who want to get a deeper understanding of net neutrality, and goes into much more technical detail than a general audience would want. Also, there are no helpful pictures or links in this one. For a less technical overview, aimed at my fellow political conservatives, see my original blog post, Why Free Marketeers Want To Regulate The Internet. Otherwise, please enjoy!
Thanks everyone for coming. I am James Heaney, and my talk is on network neutrality. I can’t claim any particular credentials on this topic, the way our past speakers have been able to. I did write a blog post about the economics of net neutrality that got picked up by TechDirt and retweeted by Vint Cerf, which was maybe the coolest thing that ever happened to me, but my interest in it is amateur: net neutrality sits at the crossroads between technology, economics, law, and public policy, which rings pretty much all my chimes. My presentation will start with tech, where you’ll probably know most of what I’m talking about, and move toward policy, which hopefully is a little more educational. Net neutrality a hugely complicated issue, and – while I do have an opinion – I think this is one of the few policy issues where this is no single right answer.
That said, let’s see how the room shakes out. Based on whatever it is you know – no matter how vague – do you think the FCC’s proposed regulations on network neutrality go too far, don’t go far enough, or are just right? And, yes, you have to decide, no matter how irresponsible your opinion. Don’t worry: I won’t tell the FCC.
Cool. And, just out of curiosity, do you think your opinion is fairly well-informed, or not?
So, let’s start with the basics. Net neutrality is about how data traffic is handled on the internet. What’s the internet?
(TED STEVENS IMPRESSION) “It’s… it’s… it’s a series of tubes!”
Heh heh. I love that one.
But, seriously, Senator Ted Stevens was basically right. The Internet is a bunch of computers stuck together with tubes. All of them want to send data over the tubes to everybody else.
When a home user connects to the Internet, he typically connects to an Internet Service Provider, or ISP. This ISP – let’s say Comcast – owns what is called a Tier-2 network. You give them money, they let you connect to every other computer in their network. Right now, Comcast will sell you “unlimited” access, which is actually 250 gigabytes per month, with 20 megabit-per-second-service, for around $80.
But Comcast isn’t connected to everyone on the Internet. In fact, it’s not really connected to very many people at all besides other Comcast customers, which is just a subset of other people in the United States. And they call it the Internet, not ComcastAmericaNet, so they must be doing something to get their users connected to the rest of the world.
I am Catholic, and I care a lot about the intricacies of Catholic teaching, so, from time to time, I am forced to look up very old, not very prominent Church documents, from papal allocutions to Decrees of the Holy Office. These documents are almost always found somewhere in the great compilation Enchiridion Symbolorum, by Denzinger, but, as the Vatican Printing Office continues its near-criminal profit-mongering with the Deposit of Faith, large chunks of Denzinger’s great work are not actually online — at least, not in English. (If you are a wealthy person, feel free to send Ignatius Press $65 for their up-to-date translation of Denzinger.)
So, not infrequently, I find myself reading a Vatican document, encountering a citation that records nothing but a Denzinger number, and then spending an hour searching the internet for an English translation of that number. When that fails (and it usually does), I have to go to the Latin text (which is online, albeit illegally) and translate it for myself. This can take hours.
From now on, as my contribution to the Internet, whenever I translate one of these obscure documents, I am going to post the Latin text and the translation to this blog. Those of you who are regular readers will find these posts disjointed and deadly dull. But those of you who are finding this blog because you’ve been wandering around Google for an hour trying to find a reliable translation of Denzinger 2795… you’ve come to the right place! The translations are not literal, and I can make no guarantee that my Latin is accurate; I only studied it for five years, and never became fluent. (I would welcome corrections.)