Life's a Little Messy

Justice Ginsburg DID Dissent

There’s a lot of debating going on about whether or not Chief Justice Roberts changed his vote in NFIB v. Sebelius (the ACA decision). I have no idea whether he did or not. Many people are citing as evidence a statement in the joint dissent that is widely misunderstood. The joint dissent’s reference to Justice Ginsburg’s dissent is not an error. At that point the joint dissent is discussing the Commerce Clause. The section of Justice Ginsburg’s opinion that addresses the Commerce Clause is a dissent.

In NFIB v. Sebelius the Supreme Court decided three questions:

1. Is the individual mandate in Title I of the ACA constitutional under the Commerce Clause?
2. Is the individual mandate in Title I of the ACA a constitutional exercise of Congress’ taxing power?
3. Would withholding all Federal funds for Medicaid from states that refuse to implement the expansion of Medicaid contained in Tittle II of the ACA be an unconstitutional abuse of Congress’ spending power?

The Court’s decision gave these answers:

1. Yes, the mandate is unconstitutional under the Commerce Clause.
2. No, the mandate does not exceed Congress’ taxing power.
3. Yes, it would be an unconstitutional abuse of Congress’ spending power if Secretary Sebelius withheld all Medicaid funds from states that refuse to implement the expansion. BUT that defect can be cured by forbidding Secretary Sebelius from applying 42 U.S.C. section 1396c to withhold funding for existing Medicaid services from states that do not comply with Title II.

Justice Ginsburg answered the questions this way:

1. No, the individual mandate is not unconstitutional under the Commerce Clause. (This is a dissent. She rejects the Court’s answer to this question.)
2. No, the mandate does not exceed Congress’ taxing power. The Court’s opinion explains the reasons why it does not exceed that power. (This is a concurrence. Justice Ginsburg agrees with both the answer the Court gave and way the Court explained its answer.)
3. No, it would not be unconstitutional under the Spending Clause for the Secretary to withhold all funding for existing Medicaid in order to induce states to comply with Title II. However, since the Chief Justice has solved what he sees as a constitutional problem without striking down 42 U.S.C. section 1396c I can live with the result he reaches. All the Chief Justice has done is limit the way the Secretary can apply section 1396c to the ACA. I can accept that result. (This is a concurrence in the result. Justice Ginsburg takes a different route but she ends up at the same destination. She doesn’t agree the Chief Justice’s explanation but she agrees with his final answer.)

With respect to the Court’s opinion, Justice Ginsburg’s opinion concurred in part (Q.2), concurred in the result in part (Q.3), and dissented in part (Q.1). Both the sentence describing Justice Ginsburg’s opinion on p. 1 of her opinion and the reference to her dissent on the Commerce Clause issue on p. 13 of the joint dissent accurately describe her opinion.

Anonymous asked: That was fun! Thanks. Is this your first post? Are we suppose to guess who you are?

I’m glad you enjoyed it. It’s not my first post, you should be able to see the other ones. There’s nothing to guess with respect to who I am. If you read my other posts you may notice a pattern. I usually write about a contribution to a public discussion that I think is unclear or confusing. One of my pet peeves is news providers (newspapers, TV news shows, etc.) and professional journalists who do inadequate fact checking. I think it’s become a serious problem in the American news business. I ignore it most of the time though because I’m busy living my life. Once in a while I write a tumblr post about something. I’ve never met any of the people I wrote about in the Mike Daisey/NYT post. I’m not connected to Apple.

Mike Daisey and the Lazy NYT Journalist

Mike Daisey got relativity favorable press coverage about his attack on Kara Swisher and Walt Mossberg, the co-producers of the AllThingsD conference, for allegedly not asking Apple CEO Tim Cook tough questions about Apple’s subcontractors in China. The labor practices of those subcontractors were the topic of Daisey’s one-man show The Agony and the Ecstasy of Steve Jobs. In March journalists exposed key sections of Daisey’s purportedly true show as fictional or greatly exaggerated.

On Tuesday, May 29, 2012, the Opening Session of the tenth AllThingsD conference was a public Q & A of Tim Cook with Swisher and Mossberg doing the questioning. The event was live-blogged but not live-streamed and ended at about 8:00 pm. Mike Daisey read the live-blog and based upon it wrote a post on his blog criticizing Swisher and Mossberg harshly. Daisey claimed he was outraged because they had asked Cook “easy” questions about what Apple is doing to protect the employees of its Chinese subcontractors. The only question he actually quoted, however, was one that referred to his history of passing fiction off as truth.

At 11:11 pm Daisey sent Swisher and Mossberg an insulting tweet that included a link to his blog post. “An open letter to AllThingsD. Short version: you hacks. http://goo.gl/u1EFH  ‪#allthingsd‬ @allthingsd @karaswisher @waltmossberg” Why did Daisey ensure he would antagonize Swisher and Mossberg by calling them hacks? Twitter made him do it.

Shortly before midnight AllThingsD announced that video highlights of the Cook event were posted on the AllThingsD website. One highlight was the full exchange about Apple’s involvement with manufacturing in China. This video contains significant information that wasn’t caught in the live-blog, including Cook’s reference to extensive documentation about Apple’s oversight of its suppliers posted on Apple.com.

As any rational person would expect, Swisher and Mossberg refused to engage with someone who called them hacks. Instead they responded in kind. Swisher tweeted: “well, you’re a professional at being a hack” and Mossberg replied: “Hmm…being attacked by an admitted liar is sort of a badge of honor.”

Daisey announced to his twitter followers (some of whom are very gullible indeed) that Swisher had ceded the high ground. The implication he held the high ground was accepted as fact by many of his lazy followers who didn’t bother to check where the name calling began.

The next morning Daisey could have looked at the AllThingsD website and watched the video clips of Cook. Instead he wrote a new blog post vilifying Swisher and Mossberg. Daisey quoted Swisher’s tweet to show how “Kara Swisher chose to respond to these serious allegations.” But there had been no serious allegations in Daisey’s tweet to Swisher, just “Short version: you hacks.” Perhaps Swisher’s tweet was simply a response to being called a hack? Impossible. As far as Daisey is concerned reading links contained in a tweet is mandatory. (Now you know how to get Daisey to read something you’ve written.)

What about Mossberg’s comment that Daisey is an admitted liar? Daisey treated it as a badge of honor. “[E]veryone lies. What’s notable is that I’ve actually admitted it.” Not quite. What’s notable about Daisey is that he got caught telling lies for a living. Daisey tweeted a link to his new blog post at 7:30 am: “Kara Swisher and Walt Mossberg respond. Short version: nyah nyah nyah, can’t hear you! http://goo.gl/pwrL7  #allthingsd”

At this point something truly remarkable happened. Noam Cohen of the New York Times wrote about this conflict for the NYT’s Media Decoder blog using Daisey’s two blog posts as his primary source. Cohen ignored the video clips of Cook on the AllThingsD website and the wealth of information on the Apple website. Instead he repeated what Daisey had written, casting Daisey in the role of hero in the process. According to Cohen, Daisey “has not given up the cause” of exposing working conditions in China. Unfortunately Daisey’s “past gave Mr. Mossberg and Ms. Swisher all the ammunition they needed.” Cohen didn’t decode anything, he just rehashed Daisey’s version.

Once Daisey’s semi-accurate tale got the stamp of approval from the New York Times it spread quickly throughout the journalistic Twittersphere. Poynter chimed in with a lament (based on the live-blog not the video) that Swisher and Mossberg hadn’t followed up on a January NYT article about conditions at Apple’s Chinese supplier’s factories. Andrew Beaujon would like to know more about them. He just doesn’t want to have to personally go to the trouble of checking to see what information is available at AllThingsD.com and Apple.com.

Kony2012: The Very Short Non-expert Version

Kony2012 has started an important discussion about a complex tragedy. Experts have written about it brilliantly. But what if you are a time-starved, emotionally overwhelmed American who needs to decide how to react right now? Here’s a one paragraph analysis you don’t need expertise to evaluate.

I saw the #stopkony hashtag trending on Twitter on March 7 and watched the film. My reaction was cynical for a number of reasons. The film does not make sense. I first heard of the LRA years ago. If someone like me, who has no connection to Uganda, had heard of them, then obviously millions of other people had too. If Kony was still free, there was a reason why, one the film did not explain. Either he could not be found or the law enforcement authorities were choosing not to arrest him. How was putting up posters around the world going to solve either of those problems? The film presented a heartbreaking situation and then offered me a painless way to feel that I had done my part to fix it. Life isn’t that simple. Making someone famous doesn’t get them arrested. People are arrested when the legal authorities have both the resources and motivation to arrest them. If there’s a shortage of either of those some odd world-wide party is an incredibly inefficient (and perhaps completely ineffective) to supply what’s needed. Playing on people’s compassion to get them to direct energy and money that could be used to do good, into something useless isn’t “making a start.” It’s making the world worse. Maybe just a little bit worse, but worse nevertheless.

That’s the core of the issue. Will doing A cause B? 

If that was too short and you want to learn more about Invisible Children or Kony or Uganda, Siena Anstis’ excellent blog post is a great place to start.

tumblrbot asked: WHAT MAKES YOU FEEL BETTER WHEN YOU ARE IN A BAD MOOD?

Talking to a friend.

False Alarm About Distribution of Health Care Costs

Mother Jones published a piece about the unequal distribution of health care costs in the US.  The purpose of the piece was to present the numbers. It did not claim to analyze them and acknowledged that the current popular political response was inadequate.

My comment is a supplement to the piece. I point out why this kind of unequal distribution is normal and should be treated as such in the public policy debate about health care. Here it is:

Protect Your Direct Deposits

Direct deposit is a loyalty program on steroids. There’s a reason some bank account benefits are only available to people who have paychecks directly deposited into that account.

I’m all for people switching to a credit union or a local bank but those who get direct deposits should protect themselves during the transition period. Getting regular payments that go into your current bank account sent to a different one can take time. You will get your money eventually but you may not have it when you need it. Never forget the money is much more important to you than it is to the company or agency paying you. Your instructions to send the money to a new account may take a few weeks, or even months, to process. 

If you receive direct deposits and want to change banks I urge you to protect yourself from any delay in receiving your money. Open an account in the new financial institution and move as much of the money currently in your old account into it as you want. But don’t close the old account until your direct deposits show up in the new account. That’s the only way you can ensure you get your money on time every time.

Under normal circumstances changing the account that gets direct deposits can take a little while. Large organizations move at a slower pace than individuals. If there is a sudden surge in demands for changes of direct deposit recipient accounts, it could cause logjams at paying institutions and banks even if they act with the utmost good faith.

If getting your money on time is of urgent importance it’s worth taking this precaution despite its price of temporarily postponing severing all your ties with a financial institution you want to stop doing business with.

Support Occupy Wall Street, Dye Your Hair

This photo shocked me: 

I read a Facebook comment underneath this photo: “I’m going to dye my hair red in solidarity.” At first glance that struck me as well-intentioned but silly. The commenter may have been joking. But I’m not. I think it’s a good idea.

The photo is unsettling. What’s happening when a girl as young as this is arrested for participating in a peaceful demonstration? 

How does this photo make dying our hair red a good idea? The vanguard of this movement is occupying cities across the country. They are there to make the 99% visible. Most of the 99% can’t join one of the occupations. We have jobs, families or other responsibilities/limitations that prevent it. But if we dye our hair red we will become visible. Dying our hair would be in harmony with the methods of the movement as I understand them. It is visible but non-confrontational and it takes the message to those who need to hear it. It’s not an easy, purely symbolic gesture like tinting a Twitter avatar. It’s a commitment. You have to live with both the new color and the attention it attracts in real life for weeks. It would have an impact on the lives of those who did it without seriously disrupting them. 

It’s also a statement that’s hard to repress. I’m not suggesting everyone dye their hair the color of the girl in the photo’s. Many shades of red are appropriate for work and other conservative surroundings. Hair color is a personal choice. It would be very hard for an employer or anyone else (outside immediate family) to object to the change. Imagine what it would be like if red hair started spreading across the land as a constant but silent reminder of how many of us there are.

Hair is a very personal thing. Not everyone can dye their hair red. Not all who can will want to. But if just a small fraction of the 99% do it we will make a powerful statement.