CIA - The Reshuffle

"Will reshuffling the CIA help the agency meet 21st century challenges?" PBS NewsHour 3/8/2015

Excerpt

SUMMARY:  The director of the CIA is ordering sweeping reforms designed to dramatically change the agency starting at the top.  Associated Press reporter Ken Dilanian joins Hari Sreenivasan to discuss what is changing and why.

HARI SREENIVASAN (NewsHour):  CIA Director John Brennan announced Friday that he is ordering sweeping reforms designed to dramatically change the agency, starting at the top.

But exactly what is changing and why?

Yesterday, I spoke with Associated Press intelligence reporter Ken Dilanian.

Why did the CIA director feel these changes were necessary in the first place?

KEN DILANIAN, Associated Press:  Well, I’m not sure he’s going to be completely leveling with us about that.

But I can say that it comes amid the backdrop of a series of intelligence failures, where the CIA has not — has not predicted major global developments, whether you want to talk about weapons of mass destruction in Iraq or the movement of Russian troops in the Ukraine or the rapid rise of the Islamic State.

So, there is a feeling out there that, while the CIA has done some things incredibly well since 9/11, there are also some gaffes.  And the world is changing a lot.  So — so, Director Brennan assembled a group of experts and internal people and looked for three months intensively at the agency’s functions and came up with this plan.

HARI SREENIVASAN:  So, one of the suggestions was to break down the wall that exists between the analysts and the operators.  And to most of us, we — I didn’t realize that there was that wall in the first place.

KEN DILANIAN:  Right.  And that is fundamental.  That is the biggest change Brennan is implementing here.  And that is fundamental to the agency’s character since it was created in 1947.

You know, the operators are people who recruit spies, who run covert operations.  And they have their own bosses.  They work in their own offices for the most part.  And the analysts are different.  They’re more like college professors.  They take the intelligence collected by the operators, and they interpret it, and they write papers that are presented to the President.

Now, there are parts of the CIA where those two are connected now, including the Counterterrorism Center that has been pursuing al-Qaida since 9/11, but, for the most part, they don’t work together.  And under this change, they would begin working together in 10 so-called centers, which would sort of either be geographic areas of the world or in some cases subject areas, like counterproliferation.

OPINION - Shields and Gerson 3/6/2015

"Shields and Gerson on Netanyahu’s timing, DOJ’s Ferguson findings" PBS NewsHour 3/6/2015

Excerpts

SUMMARY:  Syndicated columnist Mark Shields and Washington Post columnist Michael Gerson join Judy Woodruff to discuss the week’s news, including Prime Minister Benjamin Netanyahu’s speech to Congress on Iran, whether Hillary Clinton’s personal email use will hurt her in the long run and the implications of the Justice Department’s report on biased policing in Ferguson, Missouri.

JUDY WOODRUFF (NewsHour):  And to the analysis of Shields and Gerson.  That’s syndicated columnist Mark Shields and Washington Post columnist Michael Gerson.

We welcome you both.  David Brooks is off tonight.

So, a national leader, gentlemen, came to Washington this week and spoke before a joint session of Congress, got a rousing reception, Mark.  It wasn’t the President.  It was Israeli Prime Minister Benjamin Netanyahu.  He roundly criticized any deal with Iran on its nuclear program.

What is — what are we left with after this?  What are the repercussions?

MARK SHIELDS, Syndicated columnist:  Well, Judy, when you feel it’s necessary to say at the outset what I’m about to say or do is not political, you can be sure of one thing.  It’s political.

And this was a political event.  This was — Prime Minister Netanyahu could have given the speech two weeks from now, except that there’s an election 11 days from now in Israel.  He traveled 6,000 miles to make a very important campaign spot, appearance, under the auspices of the Republican speaker of the House, further partisanizing what had been a bipartisan support for the state of Israel.

And he made a very impassioned, I would say, eloquent indictment, criticism of the president’s policy.  The Republicans were rapturous.  They were adulatory.

(LAUGHTER)

MARK SHIELDS:  Even, they were post-orgasmic, to the degree…

JUDY WOODRUFF:  On, my goodness.

MARK SHIELDS:  They passed, in the afterglow, the Homeland Security, which they hadn’t been able to do.

So, they would have nominated him on the spot, the Republicans, if they could have.  And he made a case which has been made repeatedly in this country by other American commentators, politicians, public figures.  And he put the administration on the defensive.

Now, they’re going to have to — whatever they do come up with, if they do come up with an agreement, they’re going to have to counter the arguments that he made.  And we will find out if it helped him on March 17 at home in Israel.

JUDY WOODRUFF:  Yes, what — what — and what about the Iran — any potential Iran deal?  Did this advance the case, hurt the case?  What do you think?

MICHAEL GERSON, Washington Post:  Well, I do — I want to agree that it’s a bad precedent for a foreign leader to come and make the case before Congress in the place where the President speaks.

George W. Bush wouldn’t have wanted this from Jacques Chirac in the middle of the Iraq…

MARK SHIELDS:  … against the war.

MICHAEL GERSON:  Right.  But — so, I think there are problems there.

But the problem is not just the protocol.  It’s the argument.  And the argument here is that the nuclear file that’s all this — the emphasis, justifiably, is not the only problem here.  Iran is actually on an aggressive march from Beirut to Baghdad.  They have proxies with missiles aimed at Israel.

They have proxies that are committing mass atrocities in Syria.  They have proxies that are taking over the security sector, even the oil sector, in Iraq.  And these are the real challenges here.  As the U.S. is making this case on nuclear arms, a vacuum is being filled across the region.

And it’s not just Netanyahu that believes this.  It’s also the Arab states that are making this complaint.  That case, as you said, is going to have to be answered, is the United States abdicating its role in this region, which I think is part of the question.
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JUDY WOODRUFF:  Last thing I want to ask both of you about.  On the eve of the anniversary, the 50th anniversary on the march on Selma, Alabama, the Justice Department this week issued a report.

And essentially what they did was, they cleared the police officer who killed Michael Brown, Ferguson, Missouri, teenager, but they said the police department in Ferguson was guilty bias, it was driven by a push to raise a lot of money, and had just essentially, in example after example after example, treated African-Americans in the community far worse than their numbers would warrant.

Michael, is there — what do we take away from this?  But the President today said today, this speaks about something bigger than just Ferguson, Missouri, 20,000 people.

MICHAEL GERSON:  Yes.

No, I think it does.  The indictment, particularly on the Ferguson police force that relates to using the police as a fund-raising tool municipalities, and then having an unrepresentative police force, which then introduces an element of bias and discrimination, but the thing that disturbed me most reading the stories today was how — how much confirmation bias we see in a story like this.

Everybody looks at the report and finds some support for what they think, OK?  Instead of analyzing, you have to approach this from an element of empathy.  If you were a young African-American man in America today, you would see a system that’s deeply biased against you.  You wouldn’t trust the justice of that system.

I think we need to be able to go in one another’s shoes when we read a report like this.  Empathy is the real basis for eventual reform of these types of abuses.

JUDY WOODRUFF:  Mark.

MARK SHIELDS:  I do believe and I want to believe that Ferguson is the exception.  I mean, the report on the Ferguson police and the pervasive racism of their practices is — cries to heaven for vengeance.

It’s the arrests.  It’s the only people upon whom dogs were loosed were African-Americans.  And if there’s anybody who needs policing, good, effective, honest policing, it’s people in lower-income communities in the United States, especially people of color, where the crime rate is, tragically, higher.

I would say that — you mentioned Selma.  Judy, it is a political travesty that today — this weekend, we spend the 50th anniversary of Selma, the march across the Edmund Pettus Bridge.  Dozens and dozens of Republicans, including President George W. Bush, are going to be there — not a single member of the House Republican leadership, and least of all Steve Scalise, the Republican whip, who needs a — or deputy whip — who needs most of all to get right with people after his David Duke association was revealed.

I don’t understand it.

SEE:  FACTCHECK - Netanyahu

WAR ON ISIS - Iran's Strategy

"What does Iran’s strategy against Islamic State mean for us?" PBS NewsHour 3/6/2015

Excerpt

SUMMARY:  What role is Iran playing in Iraq’s fight against the Islamic State?  Jeffrey Brown discusses why that country has joined the fight with Laith Kubba of the National Endowment for Democracy and what it means for the future of Iraq.

JEFFREY BROWN (NewsHour):  Joining me now is Laith Kubba, senior director for the Middle East and North Africa at the National Endowment for Democracy.

Let’s clarify a little bit about what we mean by Iranian influence over these Shiite militia groups.

LAITH KUBBA, National Endowment for Democracy:  Well, I need to start with, they are currently armed directly by a flow of ammunition, arms coming to them from Iran, not from the Iraqi army, not from the Iraqi government.

The Iraqi government is paying their salaries, but their commanders in the field, the network itself that really runs it are people who were formerly with another brigade called the Badr Brigade, who are now a political organization.

The current minister of interior was part of that brigade.  The general commander of these forces was a former leader of the Badr Brigade.  So, the Badr Brigade was born out of the Revolutionary Guards and trained by the Revolutionary Guards.

ECONOMY - Jobs Up, Wages Stagnant

"Job gains continue, so why are wages stubbornly stagnant?" PBS NewsHour 3/6/2015

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SUMMARY:  February’s labor report came in with stronger growth than expected, with 295,000 jobs added last month and the lowest unemployment rate since the 2008 financial crisis.  But wage growth continues to lag, with hourly earning rising just one tenth of a percent.  Secretary of Labor Thomas Perez analyzes the numbers with Judy Woodruff.

JUDY WOODRUFF (NewsHour):  The February jobs report came in stronger than expected, with more than 200,000 jobs a month being added for the past year, the best pace since 1995.  The unemployment rate has fallen to its lowest point since the financial crisis of 2008.

Still, it has not translated at some levels.  Wage growth remains sluggish.  Hourly earnings were up just a 10th-of-a-percent last month.  And the civilian labor force, people who are working or actively looking for work, shrank in February.

Thomas Perez is the U.S. secretary of labor, and he joins us now.

Welcome to the program.

THOMAS PEREZ, Secretary of Labor:  It’s always a pleasure to be with you.

JUDY WOODRUFF:  So, break these numbers down for us.  Who is creating these jobs?  Who’s getting them?

THOMAS PEREZ:  Sure.

Well, as you correctly said, this is the best 12-month period we have had in decades.  We haven’t seen 200,000 or more jobs for 12 months in a row literally in decades.  And the nice thing about this report and the nice thing about this about what we have seen over the last year, Judy, is it is broad-based growth.

The biggest job creator is business and professional services.  Those are well-paying jobs and consultants, accountants, things of that nature.  Then we have health care, which has really been recession-proof.  Construction is doing very well.  The average person in manufacturing is working 42 hours a week.

So, not only are the quantity of jobs increasing, but the quality of jobs over the last year has been much better.

Another Excerpt:

THOMAS PEREZ:  Well, the issue of real wage growth is one of the most important pieces of unfinished business from the great recession.

I mean, our — we have a wind at our back, but what we have to do — and the difference between now and the late ’90s was that the growth we saw in the late ’90s resulted in greater shared prosperity.  The rising tide lifted more boats.  And what we have to do now is make sure that our tailwind results in shared prosperity.

Republican actions show they want to lift MORE yachts, and to hell with our rowboats.

SCIENCE - Life in Our Solar System

"What two discoveries suggest about life in the solar system" PBS NewsHour 3/6/2015

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SUMMARY:  Science correspondent Miles O’Brien joins Judy Woodruff to discuss two space stories that center around the search for life and how it began.  NASA’s Dawn spacecraft arrived in orbit around the dwarf planet Ceres, which scientists believe shows signs of life-sustaining water.  Meanwhile, new research found that Mars once had enough water to cover 20 percent of the planet.

JUDY WOODRUFF (NewsHour):  Let’s close out our Friday with the continuing search, not just for life, but for a better understanding of how life began.

There’s a connection in two space stories today.  This morning, NASA said its Dawn spacecraft arrived in orbit around the dwarf planet Ceres, a journey of more than 300 million miles that lasted more than seven years.  Ceres lies in an asteroid belt between Mars and Jupiter.

And, yesterday, new research found that Mars once had even more water than we realized, enough to cover 20 percent of the planet and larger than our Arctic Ocean.

We’re joined by science correspondent Miles O’Brien.

So, Miles, tell us, what are they looking for on this tiny planet?

MILES O’BRIEN (NewsHour):  Well, wherever you look in the world on our world and you see liquid water, you will find life.  It doesn’t matter where.  You can be in the hot acidic springs of Yellowstone or deep below the ocean in the darkest places.  If there’s liquid water and an energy source, there is life.

And so this is what ties these two stories together.  Dawn is arriving at Ceres.  And there is lots of evidence that Ceres has quite a bit of water, perhaps an ice crust, perhaps even water geysers.  A dwarf planet, Judy, has a molten core.  And so there is reason to believe that there’s heat beneath the surface, which means there could be liquid water, which means there could be things alive there which date back 4.5 billion years.

It’s kind of mind-boggling, but this is like a snowball that’s been in the deep freeze, but it has a liquid core.  And so understanding what’s going on there will tell us a lot about the origins of life here and maybe elsewhere.

POLITICS - States Cutting Workers' Comp

"State cuts mean workers’ comp isn’t working for many who need it" PBS NewsHour 3/5/2015

Money before people, Republican 1st Commandment.  It is not coincidence that the states doing this are Republican controlled.

Excerpt

SUMMARY:  Workers’ compensation benefits have played a critical role in the American labor market by allowing businesses to pay for medical costs and wages if an employee is injured on the job.  But a new investigation has found that more than 30 states have passed laws reducing these benefits.  Judy Woodruff learns more about the impact from Michael Grabell of ProPublica and Howard Berkes of NPR.

JUDY WOODRUFF (NewsHour):  Workers’ compensation benefits have long played a critical role in the American labor market.  Simply put, businesses pay insurance for claims if a worker is injured on the job.  The employee gives up the right to sue, but the employer pays medical costs and part of the wages while the worker recovers.

But a new investigation by ProPublica and NPR finds workers’ comp is being substantially eroded.  Over the past couple decades, legislators in more than 30 states have passed laws reducing benefits or making it more difficult in many cases to qualify for them.  States have also cut off benefits after arbitrary time limits.

Let’s hear from one of the workers who was profiled.

Joel Ramirez was paralyzed in a warehouse accident after a 900-pound crate fell on him in 2009.  Last June, his home health aide was taken away after the state of California passed a new law.

His wife, Lupita, gave up her job to help him, including with his personal hygiene.

LUPITA RAMIREZ:  When he was walking before, he’s a very, very strong man.  Even — I said, I can’t imagine.  When I saw him like this, it just destroyed my soul, you know?

JOEL RAMIREZ:  There was my mom here, but she’s 75 years old.  Oh, my God, I was trying to clean up.  My God, I couldn’t finish cleaning.  So, I can’t even do it right now.  How am I going to do it when I get older?

JUDY WOODRUFF:  Let’s look more closely at the impact of all this.

Michael Grabell was the lead reporter on this for ProPublica.  And reporter Howard Berkes of NPR collaborated with him.

SEE:  INSULT TO INJURY - Demolition of Worker's Comp

POLICING - How Ferguson Got There

"How tickets, fines and fees undermined police focus on community in Ferguson" PBS NewsHour 3/5/2015

Excerpt

SUMMARY:  A U.S. Justice Department investigation into law enforcement in Ferguson discovered many disturbing incidents that helped drive distrust and hostility between the community and police.  Gwen Ifill discusses the report’s findings with Rev. Starsky Wilson and Kevin Ahlbrand of the Missouri Fraternal Order of Police, two members of an independent commission set up by the state of Missouri.

GWEN IFILL (NewsHour):  We turn now to two members of the independent commission set up by the state of Missouri to look into the events in Ferguson.  Starsky Wilson chairs the commission and is pastor of Saint John’s Church in Saint Louis, and Kevin Ahlbrand is a police detective in Saint Louis and president of the Missouri Fraternal Order of Police.  Tonight, he’s in San Diego.

Reverend Wilson, that was just scraping the surface of the findings in that Department of Justice report.  What surprised you the most about what you read?

REV. STARSKY WILSON, Co-Chair, Ferguson Commission:  Quite frankly, while the report was disheartening, the overall findings were not surprising.

We knew, based on the testimony we have heard from people not only in the streets, but through our commission’s work over the first 100 days, that people experience racialized policing, that they believed in their truth that this was driven by profit.  We now see the evidence of that.

The things that surprised me, quite frankly, were the kind of salacious narrative of the fact that we have an e-mail from the finance director of the city directly to the chief of police suggesting that revenues be raised through direct policing practices.  These are the kinds of things that should never be in public — in the public administration of justice, quite frankly, and they’re the kind of things that undermine the trust in governance that we need for the project of inclusive democracy to work.

GWEN IFILL:  Kevin Ahlbrand, what struck you, especially this part about policing for profit that Reverend Wilson just brought up?  What struck you the most about that report?

KEVIN AHLBRAND, Ferguson Commission:  Well, and — basically that, the whole municipal court system.

We have known for a long time that it’s been a problem.  We have never condoned ticket quotas.  We are vehemently opposed to them.  We are supporting a bill that is currently making the way through the Missouri legislature which would reduce the percentage that cities could use fees and fines for their budget.  And we have always been opposed to that.

Part of the big problem is, if the police officer has to write X-number of tickets, that’s time that he can’t be out there in the community doing community-oriented policing.  And that’s what we have gotten away from, and I think really that is what we need to get back to.

"‘Searing’ Ferguson report claims revenue came before public safety" PBS NewsHour 3/5/2015

Excerpt

SUMMARY:  An extensive federal investigation into police practices in Ferguson, Missouri, uncovered new details about the department's racially based and profit-driven enforcement and prosecution.  While the U.S. Justice Department declined to bring a civil rights case against former policeman Darren Wilson for killing Michael Brown, Brown’s family to filed a wrongful death suit Thursday.  Gwen Ifill reports.

ECONOMY - Foreclosures

Greed Files

"Get ready for another round of the foreclosure crisis" PBS NewsHour 3/5/2015

Excerpt

SUMMARY:  Despite what you might have heard, the foreclosure crisis is far from over.  Economics correspondent Paul Solman talks to people in Florida who have lost their homes, and considers whether a wave of new foreclosures is on the horizon.

JUDY WOODRUFF (NewsHour):  One of the gaping wounds of the housing crisis and the great recession that immediately followed it was a huge jump in the number of foreclosures in cities and regions around the country.

In many ways, the housing market today is healthier.

But, as our economics correspondent Paul Solman tells us, that painful wound still stings in a number of communities.  His story is part of our ongoing reporting Making Sense, which airs every Thursday on the NewsHour.

MARC JOSEPH, Real Estate Agent:  What I need to do with you now is, I need to walk through the house to make sure it’s broom-swept condition.

PAUL SOLMAN (NewsHour):  Despite what you may have heard, the foreclosure crisis is far from over, especially in Florida, which leads the nation, more than 300,000 cases still pending, another half-a-million homeowners delinquent, hundreds of thousands of modified loans about to balloon in payments.

Ten days ago, David — we have been asked not to use his last name — was in the final stage of the process, cash for keys.  He’d bought this house on a quiet street in Fort Myers in 2007 for $139,000 to live in with his brother and parents.  His father died soon after.

MARC JOSEPH:  By signing this, you are hereby releasing all claims.  If you come back to this property, it’s considered trespassing.

PAUL SOLMAN:  For a while, brothers and mother pooled their incomes from low-level jobs and her widow’s pension to make the monthly payment.  Then, one day in 2010, David came home to find that his mother, in her late 50s, had had a near-fatal heart attack.

DAVID, Florida:  I had to take care of her. My brother works.  I couldn’t work.  I had to take care of her.

PAUL SOLMAN:  With no health insurance — this was pre-Obamacare — the family fell behind.  Their original mortgage servicing company, Litton, agreed to modify the loan, reducing the interest rate, but not the principal, to cut payments by a third.

Two months later, though, Litton transferred the loan to Green Tree.

DAVID:  Green Tree took over.  The mortgage just started going up.  And my 401(k), my bank account, my car that — the only car that I bought myself, an ’03 Monte Carlo, brand-new, I had to get rid of that to pay for the mortgage.

POLITICS - The Divided GOP

"G.O.P. Is Divided as Budget Bills Start Piling Up" by ASHLEY PARKER, New York Times 3/8/2015

In their first major test of governing this year, Republicans stumbled, faltered — and nearly shut down the Department of Homeland Security.

And that vote may have been the easy one.

In April, physicians who treat Medicare patients face a drastic cut in pay.  In May, the Highway Trust Fund runs dry.  In June, the charter for the federal Export-Import Bank ceases to exist.  Then in October, across-the-board spending cuts return, the government runs out of money — and the Treasury bumps up against its borrowing limit.

All will require congressional action, and while many of these measures used to be pushed through in an almost unthinking bipartisan ritual, there is no such thing as simple in Congress anymore.

“We really don’t have 218 votes to determine a bathroom break over here on our side,” said Representative Charlie Dent, a Pennsylvania Republican.  “So how are we going to get 218 votes on transportation, or trade, or whatever the issue?  We might as well face the political reality of our circumstances and then act accordingly

The Republican leadership team, he added, “has not done a good job of managing expectations.  There are too many folks with unrealistic expectations.”

Republicans emphatically regained power with the midterm election, but those victories also masked pronounced divisions within the party.  That friction was on display during the fight to fund Homeland Security, with more conservative members forcing Speaker John A. Boehner into a strategy in which he had to win passage in the House with Democratic votes.

Even many congressional Republicans have started to say they need an approach beyond a reflexive “no” to prove their ability to function effectively as a majority.

Representative Tom Cole, Republican of Oklahoma and a close ally of Mr. Boehner, said he hoped his colleagues had learned to “stop making the perfect the enemy of the good.”

“You make the progress and the deals you can,” Mr. Cole said.  “You’re going to have to bargain, and that means the other side has to get something, and in this House, you have to understand that beating on the table and yelling doesn’t turn 54 into 60.”

Senator Mitch McConnell of Kentucky, the majority leader, is six votes short of overcoming a Democratic filibuster.  And Mr. Boehner, of Ohio, is struggling to maintain his already tenuous grip on his caucus, in which roughly three-dozen members consistently refuse to support almost any leadership plan.

The Republican turmoil has, in turn, empowered congressional Democrats, who found that by standing unified, they can wield significant power from the minority, something Republicans in the Senate had done to great effect in the last Congress.

Senator Harry Reid of Nevada, the minority leader, held Senate Democrats together to prevent Republicans from even opening debate on a House-passed bill that would have funded the Homeland Security agency but also gutted President Obama’s recent executive actions on immigration.

Representative Nancy Pelosi of California, the minority leader, kept her members together on the funding fight as well so they did not vote for any Republican measure that did not ultimately result in a long-term “clean” spending bill for the agency.

On the morning that she first held Democrats back from supporting a short-term measure to fund the agency, Ms. Pelosi said her members were skeptical about voting against a bill that would have kept the agency open, albeit briefly.  “And by the end of caucus, they were saying we have to stay together to make sure that we will keep government open until the end of the year,” she said, with a delighted laugh.  “But you have to show them a path.”

In an interview in her office, Ms. Pelosi said she expected Democrats to stay united in the face of other fights.  Passing bills with a majority of Democratic votes, after all, often helps pull the legislation to the left.

“Part of our strength springs from:  They need our votes to pass something,” she said.  “But part of it is, it’s no use for you going down this path, because the President’s going to veto it and we’re going to sustain his veto.  And that gives the President leverage, and that gives us leverage.”

Ms. Pelosi added:  “I see the strength that I have here, because we have a Democratic president in the White House.”

In recent years, Democrats were critical in helping Mr. Boehner on crucial legislation — averting a fiscal showdown, passing the Violence Against Women Act and providing relief for Hurricane Sandy victims — when he did not have enough Republican votes.  A similar situation is likely to occur this year, much to the frustration of conservative lawmakers.

The Highway Trust Fund becomes insolvent on May 31, threatening to halt many federally funded infrastructure projects.  Congress will need to increase the nation’s debt limit by late summer or early fall, as well as pass a new appropriations bill by the end of September to fund the government through the next fiscal year.

On CBS’s “Face the Nation” on Sunday, Mr. McConnell sought to reassure voters that under new Republican leadership, Congress would not spend the year lurching from crisis to crisis.  “I made it very clear after the November election, we’re certainly not going to shut down the government or default on the national debt,” he said.  “We’ll figure some way to handle that.”

Lawmakers were also hoping to address at least a modest overhaul of the nation’s tax code, as well as take on trade — one of the areas where Democrats may provide more of an impediment to Mr. Obama than Republicans.

The next major deadline, to prevent cuts in Medicare payments to doctors, comes at the end of this month.  Under the current law, if Congress does nothing, payment rates for doctors’ services will be reduced by 21 percent on April 1.

Since 2003, lawmakers have enacted 17 temporary patches to stop such cuts.  But in some years they froze payment rates or provided very small increases.

Doctors descended on Washington in late February, urging lawmakers to repeal the Medicare payment formula, which they say creates great uncertainty and cash flow problems.

The coming fights are already causing agita among House Republicans.  “What we’re going to have to do is help do a better job of selling why things have to be done,” said Representative Pete Sessions, a Republican from Texas and chairman of the House Rules Committee.  “We’ve got to sell it to the American people to make our ideas popular.”

Moderate Republicans said they hoped their more conservative colleagues would internalize the lessons of the Homeland Security fight and be willing to make compromises.

“We have to straighten that out,” said Representative Peter T. King of New York.  “Otherwise, it’s going to be a rough two years.”

But Mr. King represents a quieter faction within the Republican majority.  Many more hard-line members said they planned to double down on their strategy of opposing their leadership when they did not think the Republican proposal was sufficiently conservative.

“Sometimes it only takes a couple of these battles, though, to act as a catalyst for major change,” said Representative Matt Salmon, an Arizona Republican.  “I think that right now the powers that be are already on a very slippery slope.  They understand that, they know that.  You lose one battle, but I don’t think you necessarily lose the war.”

Representative Walter B. Jones, Republican of North Carolina, similarly said Mr. Boehner and his leadership team could face retribution if they turned to Democratic votes to help send major legislation to the president’s desk.  “If the leadership continues to reach out to Democrats and forgets that the Republican Party has certain core principles as a party,” he said, “it will create more and more animosity.”

Ms. Pelosi said she had a candid but good rapport with Mr. Boehner, whom she often calls as he finds himself stuck, to ask:  “How can I respectfully help?  How can we get this done?”

But does she ever feel just a little sorry for him?  “He’s the speaker of the House,” she said, considering the question.  “The speaker of the House has awesome power, and I think that the more that power is used to find solutions, the stronger the speaker is.”

FACTCHECK - Netanyahu

"Netanyahu Takes Kerry Out of Context" by Eugene Kiely, FactCheck.org 3/3/2015

Israeli Prime Minister Benjamin Netanyahu’s highly anticipated speech to Congress contained a curious statement.  He claimed Secretary of State John Kerry “confirmed last week that Iran could legitimately possess” 190,000 centrifuges enriching uranium by the end of a long-term nuclear agreement that the U.S. is negotiating with Iran.  That, Netanyahu warned, could put Iran “weeks away” from an “arsenal of nuclear weapons.”

But that’s not what Kerry said.

In House testimony on Feb. 25, Kerry was asked about reports that the U.S. is seeking a deal that would reduce Iran’s centrifuges from 19,000 to between 6,000 and 7,000.   Kerry responded by saying a “peaceful program” can have a lot of centrifuges, and the purpose of the negotiations is to make sure Iran’s nuclear program is peaceful.

“[I]f you have a civilian power plant that’s producing power legitimately and not a threat to proliferation, you could have as many as 190,000 or more centrifuges,” Kerry told the committee.

Netanyahu addressed Congress at the invitation of House Speaker John Boehner at a time when the U.S. is leading negotiations on a new nuclear agreement with Iran.  The U.S. and five other countries in November 2013 reached an accord with Iran called the Joint Plan of Action, or JPA, that was designed to temporarily freeze Iran’s nuclear program to give negotiators time to work out a long-term agreement on an inspection and verification plan that would allow Iran to maintain a peaceful nuclear program and prevent it from building nuclear weapons.  In exchange, the U.S. and its allies have agreed to ease sanctions imposed on Iran’s assets.

The U.S. and Iran have been operating under a March 31 deadline for a long-term pact, and Israel has been highly critical of details of the plan that have emerged so far.

In his speech, Netanyahu warned that Iran could not be trusted and its “quest for nuclear weapons” threatened his country’s survival.

At one point, the Israeli prime minister spoke about Iran’s centrifuges, which are the machines used to enrich uranium. Iran currently has “9,400 operating centrifuges and another 10,000 that are installed but not in operation,” as reported by the Los Angeles Times.  The existing JPA allows Iran only to replace failed centrifuges, and the U.S. has been negotiating a reduction.  During negotiations, the target number of proposed centrifuges has changed from 1,300 to 4,000 and most recently to 6,500 or more.

Netanyahu recalled that Iran’s Supreme Leader Ayatollah Ali Khamenei said in 2014 that Iran needed 190,000 centrifuges.  But in doing so Netanyahu misrepresented what Kerry had said about Iran’s centrifuges.

Netanyahu, March 3:  Iran’s supreme leader says that openly.  He says, Iran plans to have 190,000 centrifuges, not 6,000 [discussed in negotiations] or even the 19,000 that Iran has today, but 10 times that amount — 190,000 centrifuges enriching uranium.  With this massive capacity, Iran could make the fuel for an entire nuclear arsenal and this in a matter of weeks, once it makes that decision.  My longtime friend, John Kerry, secretary of state, confirmed last week that Iran could legitimately possess that massive centrifuge capacity when the deal expires.  Now I want you to think about that.  The foremost sponsor of global terrorism could be weeks away from having enough enriched uranium for an entire arsenal of nuclear weapons and this with full international legitimacy.

Kerry did not confirm “that Iran could legitimately possess” 190,000 centrifuges.

At a Feb. 25 hearing of the House Committee on Foreign Affairs, Rep. Ted Deutch of Florida asked Kerry about reports that the deal being negotiated would allow Iran to have 6,000 or 7,000 centrifuges.  Deutch asked “why Iran would need that many since currently there is one reactor.”

Kerry, Feb. 25:  [T]he purpose of the negotiations we’re in now with Iran is to ensure that their nuclear program is exclusively for civilian purposes.  That’s the key here.  They can have a civilian peaceful program.  So when you get into the number of centrifuges and this and that, if — if you have a civilian power plant that’s producing power legitimately and not a threat to proliferation, you could have as many as 190,000 or more centrifuges.  And there are millions of centrifuges involved, ultimately, power plants that are producing power.  So the key here is, is this a peaceful program, and are the measures in place capable of making sure you know it’s peaceful?  That’s the standard we’re trying to apply.

Kerry wasn’t saying that “Iran could legitimately possess” 190,000 centrifuges.  He was saying that “a civilian power plant that’s producing power legitimately” could have 190,000 or more centrifuges.

In fact, when Khamenei said Iran needed 190,000 centrifuges, Kerry at that time said that even 19,000 was too many.

“We have made it crystal clear that the 19,000 that are currently part of their program is too many, and that we need to deal with the question of enrichment,” Kerry told reporters at a July 15, 2014, press availability.  “And so all I will say to you is that we will continue to press.”

State Department spokeswoman Marie Harf told us in an email that Kerry’s reference to 190,000 centrifuges at the House hearing wasn’t about Iran or the number of centrifuges that it could possess “under or after a deal.”

“Secretary Kerry was not speaking to what Iran could or would have under or after a deal — he wasn’t talking specifically about Iran at all,” Harf said.  “He was arguing that ensuring the nuclear program is peaceful through measures like transparency and monitoring can be as important [as] the number of centrifuges, which can get quite high even in countries that peacefully enrich uranium only to produce electrical power.”

DOJ - Reforming Police Departments

"How the DOJ Reforms a Police Department Like Ferguson" by Sarah Childress, Frontline 4/4/2015

Ferguson, Mo., police officers regularly discriminate against black residents, subjecting them to illegal stops, excessive force and arrests for petty offenses like “manner of walking in roadway,” according to a Department of Justice (DOJ) investigation released on Wednesday.

The DOJ opened a probe into the department in September 2014, one month after police officer Darren Wilson shot and killed Michael Brown, an unarmed black 18 year old.  No criminal charges were brought against the officer, who has resigned from the department.  A civil-rights investigation into Wilson yielded no charges, the DOJ said Wednesday.

The broader DOJ investigation examined whether the Ferguson police department fostered a culture of bias against African-Americans that could have contributed to the circumstances surrounding Brown’s death.

“Of course, violence is never justified,” Attorney General Eric Holder said at a press conference following the report’s release.  “But seen in this context – amid a highly toxic environment, defined by mistrust and resentment, stoked by years of bad feelings, and spurred by illegal and misguided practices – it is not difficult to imagine how a single tragic incident set off the city of Ferguson like a powder keg.”

The investigation also began amid nationwide protests that erupted over a series of police killings of unarmed black males last year, including Eric Garner, who was choked to death by a New York (NYPD) police officer in July; John Crawford III, gunned down by police in an Ohio Wal-Mart in August; Brown, who was killed a few days later; Akai Gurley, shot to death in a housing project stairwell on Nov. 20 by a NYPD officer; and Tamir Rice, a 12-year-old boy shot dead in a park by Cleveland police on Nov. 22. Rice had been holding a toy gun.

Their deaths have led to widespread calls for police reform and brought to the surface longstanding sentiments in the African-American community that they are treated with more suspicion and hostility by police.

Policing the Police

The investigation of the Ferguson police department is one outcome of a federal law, passed in the wake of a notorious incident of police violence, the 1991 case of Rodney King, a black man who was beaten by Los Angeles police after being stopped for speeding.  Three years later, Congress passed the Violent Crime Control and Law Enforcement Act, which included a provision that gave the Justice Department unprecedented power to investigate law enforcement agencies for systemic problems — such as use of excessive force, or racial profiling — and force them to implement reforms.

The law is the only tool that exists to compel widespread change within a police department.  The Justice Department can threaten to sue a department for constitutional violations, forcing it to enter into a negotiated settlement, such as a consent decree.

“It’s often hard to reform police departments without external intervention,” said Erwin Chemerinsky, dean of the University of California-Irvine law school, and an expert on constitutional policing.  “Institutions are resistant to change.  None of us like to have somebody outside telling us what to do.  And police departments are especially that way.  They have their own internal culture.”

In the past 20 years, the Justice Department has launched at least 65 so-called “pattern or practice” investigations of law enforcement agencies, 32 of which have led to agreements to reform, according to an analysis of DOJ data by Stephen Rushin, a professor at the University of Illinois Law School who studies police misconduct.

That’s a small number compared to the nearly 18,000 law enforcement agencies nationwide.

Still, the reforms have had an impact: today, nearly one in five Americans is served by a law enforcement agency that has been subject to a DOJ investigation under this law, according to Rushin’s analysis.

Most investigations zero in on whether, when and how officers are allowed to use force, including deadly force.  Also atop the list: a focus on discriminatory policing of minorities — specifically, blacks and Latinos.  The DOJ has also examined allegations of gender discrimination, the treatment of people in the LGBT community, and how officers handle people who are mentally ill.

A New Push for Civil-Rights Investigations

The Obama administration has used its power aggressively to take on widespread problems of police brutality, discrimination and other abuse in local jurisdictions, negotiating more settlement agreements than either the Clinton or George W. Bush administrations.

“In case you haven’t heard, the Civil Rights Division is once again open for business,” said Thomas Perez, the assistant attorney general tapped to lead the division, in a 2010 speech.  Combating police misconduct, he said, had become an important priority — and pattern or practice investigations were a “critical tool” for bringing change.

Under Attorney General Eric Holder, the Justice Department has opened 20 investigations and negotiated agreements to implement reforms in 15 departments, including major cities like New Orleans, La., Portland, Ore., and Newark, N.J.  It currently has nine open investigations.

Even the Justice Department admits flaws in the process.  It’s expensive and can take years to fulfill an agreement.  In Los Angeles, which is widely considered the most successful test case, it took more than a decade for the police to complete the required reforms, at a cost of $15 million.  And the DOJ’s process for choosing departments to investigate, often sparked by a combination of news reports and complaints from local civil-rights groups or public officials, can make the law feel haphazardly applied.

The DOJ assessed its process in 2010, noting that some police chiefs said that federal investigations create a negative stigma that’s difficult to dispel.  They urged a more collaborative approach.

But in some departments, it may be the only way to bring about significant change.  Charles Ramsey was the chief of the Metropolitan Police Department in Washington, D.C. when he asked the Justice Department to investigate in 1999, following a series of stories in The Washington Post that said that the department killed more residents per capita than police in any other major city.  The resulting agreement led to major reforms, significantly reducing the number of police shootings and boosting the department’s credibility in the community, Ramsey said.

“We would not have been able to make the changes we made without the consent decree,” he said at a 2013 conference.  “We would have encountered push back from the union, and we would not have obtained the funding.”

What the Justice Department Found in Ferguson

In its Ferguson investigation, the DOJ was looking for a pattern or practice of discriminatory policing, and examining the department’s use of force.

What it found included routine violations of black residents’ civil rights.  For example, the DOJ found that black drivers were more than twice as likely as white drivers to be searched during traffic stops, but 26 percent less likely to be found with contraband.  Even so, black drivers were more likely to be cited and arrested during a traffic stop.

The report also found that 88 percent of documented police use-of-force cases involved blacks, and in particular juveniles and people with mental health problems or cognitive disabilities.

Some petty offenses appear to be reserved largely for African-Americans.  From 2011 to 2013, a full 95 percent of people charged with a crime called “Manner of Walking in Roadway” were black, as were 94 percent of those charged with “Failure to Comply.”

“Many FPD uses of force appear entirely punitive,” the report concluded.

The city used these kinds of citations to generate revenue, the DOJ found.  In 2015, the city anticipated raising more than $3 million in fines and fees — more than double the total from five years earlier.

“Many officers appear to see some residents, especially those who live in Ferguson’s predominantly African-American neighborhoods, less as constituents to be protected than as potential offenders and sources of revenue,” the report said.

Next Steps for Ferguson

The Justice Department made 26 recommendations for reform in Ferguson and will insist on a court-enforced agreement to make those changes.  The next step for Ferguson will be to decide whether to negotiate or fight federal officials in court.  That process can take months, or even years.

Some departments, like Newark, have cooperated with federal authorities.  In July 2014, the Justice Department found that Newark police had a pattern or practice of disproportionately stopping and arresting black residents and using excessive force against them.  It found that 75 percent of the stops by NPD officers had no justifiable basis, and that some officers stole citizens’ property and money.

The city moved quickly to cooperate with the DOJ, announcing that it would enter into an agreement on the same day federal investigators released their findings.

Others have fought back.  In North Carolina’s Alamance County, Justice Department officials found a pattern or practice of discriminatory treatment by police — in targeting, stops, searches and arrests — of Latino residents.  The department refused to cooperate during the investigation, and has refuted the charges.

The DOJ is now suing Alamance County Sheriff Terry Johnson in his official capacity for fostering a culture of discriminatory policing.  In the complaint, federal officials said that Johnson told his deputies to “Go out there and catch me some Mexicans,” encouraging them to arrest Latinos, but not others, for minor infractions.  Johnson’s attorney has described the charges as baseless.

Ferguson city officials said in a statement on their website that they were reviewing the findings and would hold a press conference later on Wednesday.  On the website, the city also outlined steps it has taken to improve relations with the community since Brown’s death.  In October, it set up a citizen review board to make recommendations to the mayor.  It also began installing body and dashboard cameras for police officers and launched an effort to recruit officers from more diverse backgrounds.

Next Steps for the Nation

In December, President Barack Obama convened a task force on 21st century policing.  Its preliminary report, released this week, recommended compiling data on officer-involved shootings and establishing independent investigations of such incidents.  It also recommended reducing police use of military equipment during protests, though it stopped short of recommending the widespread use of body cameras for officers, citing privacy concerns.

The task force also recommended that departments work to build trust in communities of color.  A survey it conducted found that 72 percent of whites said they were confident officers would treat people of other races the same way; only 46 percent of Hispanics and 36 percent of blacks agreed.

INSULT TO INJURY - Demolition of Worker's Comp

"The Demolition of Workers’ Comp" by Michael Grabell, ProPublica, and Howard Berkes NPR 3/4/2015

Excerpt

Over the past decade, states have slashed workers’ compensation benefits, denying injured workers help when they need it most and shifting the costs of workplace accidents to taxpayers.

Dennis Whedbee’s crew was rushing to prepare an oil well for pumping on the Sweet Grass Woman lease site, a speck of dusty plains rich with crude in Mandaree, North Dakota.

It was getting late that September afternoon in 2012. Whedbee, a 50-year-old derrickhand, was helping another worker remove a pipe fitting on top of the well when it suddenly blew.

Oil and sludge pressurized at more than 700 pounds per square inch tore into Whedbee’s body, ripping his left arm off just below the elbow.  Coworkers jerry-rigged a tourniquet from a sweatshirt and a ratchet strap to stanch his bleeding and got his wife on the phone.

“Babe,’’ he said, “tell everyone I love them.”

It was exactly the sort of accident that workers’ compensation was designed for.  Until recently, America’s workers could rely on a compact struck at the dawn of the Industrial Age:  They would give up their right to sue.  In exchange, if they were injured on the job, their employers would pay their medical bills and enough of their wages to help them get by while they recovered.

No longer.

Over the past decade, state after state has been dismantling America’s workers’ comp system with disastrous consequences for many of the hundreds of thousands of people who suffer serious injuries at work each year, a ProPublica and NPR investigation has found.

The cutbacks have been so drastic in some places that they virtually guarantee injured workers will plummet into poverty.  Workers often battle insurance companies for years to get the surgeries, prescriptions and basic help their doctors recommend.

Two-and-a-half years after he lost his arm, Whedbee is still fighting with North Dakota’s insurance agency for the prosthesis that his doctor says would give him a semblance of his former life.

The changes, often passed under the banner of “reform,” have been pushed by big businesses and insurance companies on the false premise that costs are out of control.

In fact, employers are paying the lowest rates for workers’ comp insurance since the 1970s.  And in 2013, insurers had their most profitable year in over a decade, bringing in a hefty 18 percent return.

All the while, employers have found someone else to foot the bill for workplace accidents:  American taxpayers, who shell out tens of billions of dollars a year through Social Security Disability Insurance, Medicare and Medicaid for lost wages and medical costs not covered by workers’ comp.

ProPublica analyzed reams of insurance industry data, studied arcane state laws and obtained often confidential medical and court records to provide an unprecedented look at the unwinding of workers’ comp laws across the country.

Among the findings:

• Since 2003, legislators in 33 states have passed workers’ comp laws that reduce benefits or make it more difficult for those with certain injuries and diseases to qualify for them.  Florida has cut benefits to its most severely disabled workers by 65 percent since 1994.
• Where a worker gets hurt matters.  Because each state has developed its own system, an amputated arm can literally be worth two or three times as much on one side of a state line than the other.  The maximum compensation for the loss of an eye is $27,280 in Alabama, but $261,525 in Pennsylvania.
• Many states have not only shrunk the payments to injured workers, they’ve also cut them off after an arbitrary time limit — even if workers haven’t recovered.  After John Coffell hurt his back at an Oklahoma tire plant last year, his wages dropped so dramatically that he and his family were evicted from their home.
• Employers and insurers increasingly control medical decisions, such as whether an injured worker needs surgery.  In 37 states, workers can’t pick their own doctor or are restricted to a list provided by their employers.
• In California, insurers can now reopen old cases and deny medical care based on the opinions of doctors who never see the patient and don’t even have to be licensed in the state.  Joel Ramirez, who was paralyzed in a warehouse accident, had his home health aide taken away, leaving him to sit in his own feces for up to eight hours.

The scope of the changes, and the extent to which taxpayers are paying the costs of workplace accidents, has attracted almost no national attention, in part because the federal government stopped monitoring state workers’ comp laws more than a decade ago.

The cuts have gone so deep in some states that judges who hear workers’ comp cases, top defense attorneys for companies and even the father of the modern workers’ comp system say they are inhumane.

Presented with ProPublica and NPR’s findings, Sen. Bob Casey, D-Pa., one of the leading worker advocates in Congress, said the changes undermine the basic protections for injured workers.

The rollback “would be bad if it were happening in one state,” he said.  “But the fact that a number of states have moved in this direction is disturbing and it should be unacceptable to people in both political parties.”

“They call them reforms,” Casey added.  “That’s a real insult to workers.”

Legislators who pushed through cuts in their states, however, insist they are necessary to keep and attract business.

“That was always the No. 1 issue,” said state Sen. Brian Bingman, the Republican president protem of the Oklahoma Senate.  “Your workers’ comp rates are way too high.”

The state’s 2013 reform law provided tremendous cost savings, he said, and its supporters proudly acknowledge it was written primarily by a young lawyer at a drilling company and a lobbyist for the state chamber of commerce.

While the vast majority of injured workers need only minor medical care and experience little friction in getting it, the changes often affect those who need the system the most.

After Whedbee lost his arm, his doctor said he’d be an ideal candidate for a modern prosthesis with a movable hand.

But North Dakota’s workers’ comp insurer sent him to another doctor — not in North Dakota or his home state of Pennsylvania — but in Minnesota.  After seeing him once, that doctor recommended a cheaper prosthesis with a metal hook.

“I lost a hand,” Whedbee pleaded with the insurer to no avail.  “I didn’t lose a hook.”

The Industrial Revolution and the Nixon Commission

Workers’ comp was born in the early 1900s as a “grand bargain” forged by business and labor as awareness grew about the grisly workplace accidents that came with industrialization.

“As the work is done for the employer, and therefore ultimately for the public,” President Theodore Roosevelt said in 1907, “it is a bitter injustice that it should be the wage-worker himself and his wife and children who bear the whole penalty.”

In return for a measure of a security, workers gave up their right to sue their employers — even in cases of gross negligence — protecting businesses from lawsuit judgments that could bankrupt them.  By 1920, nearly every state had enacted workers’ comp laws.

The systems differed in their particulars but aimed to answer the same questions:  Is an injury work-related?  What’s the appropriate medical care?   How much compensation should injured workers receive and for how long?  Each decision affected employers’ costs as well as workers’ solvency and well-being.

The first national assessment of workers’ comp protections came in the early 1970s when Congress established a commission to study state laws as part of the Occupational Safety and Health Act.

Convened by President Richard Nixon and led by John Burton, a Republican economist and law professor, the commission unanimously concluded that state laws were “inadequate and inequitable.”

The commission made dozens of recommendations that laid the foundation for modern workers’ comp systems:  Nearly every employee should be covered.  Workers should be able to pick their own doctors.  If employees couldn’t work, they should get two-thirds of their wages up to at least the state’s average wage.  Compensation should last as long as the person is disabled, with no arbitrary caps.  Spouses should receive death benefits until they remarry, children until they graduate college.

In 1972, the commission advised Congress to mandate 19 of these recommendations as minimum federal standards if states didn’t enact the provisions on their own.  States quickly did.  But over time the political winds shifted.  A wave of cutbacks began in the 1990s, swelled in the mid-2000s and, after slowing during the recession, picked up again.

The U.S. Labor Department used to keep track of how states complied with the presidential commission’s recommendations, but stopped after budget cuts in 2004.

A ProPublica analysis of state laws done in consultation with Burton found that only seven states now follow at least 15 of the recommendations made during the Nixon administration.  Four states comply with less than half of them.

The recent changes are “unprecedented in the history of workers’ comp,” Burton said in an interview.  “I think we’re in a pretty vicious period right now of racing to the bottom.”
Saving Companies Money, Forcing Workers Into Poverty

Sitting at a table on the 10th floor of a Tulsa office building, Mark Schell, senior vice president and general counsel of the Unit Corporation drilling company, argued that Oklahoma’s old workers’ comp system was bad for employers and workers alike.

Lawyers had clogged the workers’ comp courts while doctors approved costly, unnecessary medical care.  Oklahoma cut benefits three times between 2005 and 2011, resulting in a 10 percent drop in employers’ insurance rates.  But other states experienced even steeper drops in costs, leaving Oklahoma comparatively expensive, he said, especially against neighbors like Texas and Arkansas.

So, in 2012 and 2013, the state chamber of commerce and a group led by retailer Hobby Lobby and Unit Corp. spearheaded an effort to rebuild the workers’ comp system from scratch.

“I’m proud of what we did,” Schell said.  Nodding to his firm’s associate general counsel, Drew Harding, across the table, he noted, “Drew was one of the main authors of the bill.”

Buried among a number of changes, from altering how disputes are heard to letting employers opt out of workers’ comp entirely, the reform cut the maximum wage-replacement benefits for injured workers from $801 a week to $561 a week.  The new rate was the third lowest in the country.

The chamber’s lobbyist, Jonathan Buxton, rationalized the cuts as tough love for Oklahoma workers.  “Getting them healed and back to work is the goal of our system, and it’s better incentivized now,” he said.

ProPublica’s review of workers’ comp changes nationwide found that many were steered by big business, aided by the recent Republican takeovers of state legislatures.

While rising medical expenses have long concerned insurers, the reforms were mostly driven by the recessions of 2001 and 2007-2009, which pitted states in a seemingly endless competition to lure business with lower costs.  Even in states dominated by Democrats, worker advocates have been forced to make major concessions to achieve slight increases in benefits — sometimes just to keep up with inflation.

Florida, New York and Tennessee have chopped compensation for workers with permanent partial disabilities — such as debilitating back injuries — by at least 20 percent.

In California, West Virginia, North Dakota and Oklahoma, lawmakers have placed time limits on wages for temporarily disabled workers, limiting such benefits to two years even for those who can’t go back to work or need more medical care.

Few of the cuts were driven by concerns about fraud, which is estimated to account for only a small percentage of the $60 billion spent on workers’ comp each year.  And studies show most of the money lost to fraud results not from workers making false claims but from employers misclassifying workers and underreporting payroll to get cheaper insurance rates.

Recently, some judges have questioned whether states have cut too deeply in the name of saving employers money.

In August, a Florida circuit court judge ruled that the state’s workers’ comp law was unconstitutional, saying benefits had been “decimated” and the law “fails miserably” as to safety, health, welfare and morals.  If the ruling is upheld, workers in Florida would be able to sue their employers, and the legislature would have to rewrite the law.

But in many states, few people — even the lawmakers who sponsored bills paring back benefits — seem to fully understand the bills’ impact on workers.

Before his injury, John Coffell, 30, was solidly part of the nation’s blue-collar rank and file.

He made $17.42 an hour as a tread booker at a Goodyear Tire & Rubber plant in Lawton, Oklahoma.  With overtime and bonuses, he was earning close to $1,000 a week.  It still wasn’t easy for a family with three kids, but he and his wife were managing.

Then, on a graveyard shift last July, Coffell was winding long strips of rubber compound onto heavy metal spools and loading them onto a truck when he felt a pinch and burning sensation in his lower back.

“As time went on throughout the night, it got worse and worse and worse,” he said.  “It hurt when I walked.  It hurt when I stood up. It hurt when I sat down.”

When the pain didn’t go away, he was prescribed physical therapy and placed on temporary disability.

If Coffell had been hurt a few months earlier, workers’ comp would have provided close to his take-home pay.  But under the new law that took effect in early 2014, his disability check was capped at $561 a week — just above the poverty line for a family of five.

A high summer electricity bill and some unexpected fees from the credit union had already put the family behind.  With less money coming in, things slid downhill quickly.  The utilities went first, followed by Coffell’s truck, which was repossessed.  Then the family received a letter from their landlord evicting them from their rental home.

Because none of their relatives had room for them all, the family had to split up.

Coffell’s wife, Justine, helped look after him.  They alternated between his grandmother’s small home and her father’s camper.  The kids, ages 5, 7 and 9, moved in with John’s mother 40 miles away.

John and Justine had only enough gas money to see them on weekends.

“I’m one of those families, we lived paycheck to paycheck,” John said.  “I didn’t have all the bills caught up, but I had plans to get them caught up with being able to work and get overtime.  My dominoes were stacked and they got knocked over — all for getting hurt.”

Since John went on workers’ comp, the Coffells have had to fill the gap by filing for food stamps.  Such cost-shifting has become common.  Dozens of injured workers said in interviews they’ve been forced to seek help from government programs because workers’ comp fell short.

A study by J. Paul Leigh, a health economist at the University of California, Davis, estimated that workers’ comp covered less than a third of injured workers’ medical costs and lost earnings in 2007 and that government programs like Social Security, Medicare and Medicaid had shelled out about $30 billion to fill part of the gap.

The rest came from regular health and disability insurance or out of workers’ pockets, Leigh said.

“We’re talking about taxpayers picking up the bill of something that should have been paid for by workers’ compensation insurers,” Leigh said.

Bingman, the Oklahoma state senator who sponsored the 2013 workers’ comp cutbacks, said he couldn’t speak to the particulars of Coffell’s plight and wasn’t aware of similar complaints from other injured workers.

But if such hardships were “a pattern,” Bingman said, it would be “something we need to look at.”

Coffell, like most workers, had no idea his benefits were shrinking until he got hurt.

SAN DIEGO - Abuse of Law, Guilt by Association

"Guilt by Association:  Facebook Pics Could Help Send a Young Man to Prison for Life" by Sara Libby, Voice of San Diego 3/4/2015

SUMMARY:  District Attorney Bonnie Dumanis is using an obscure criminal statute to prosecute a group of San Diego men.  The DA has admitted that some of the men had nothing to do with the underlying crimes at the heart of the case – a series of shootings by Lincoln Park gang members in 2013.  Rather, they’re charged with conspiracy for belonging to the same gang as the shooters.

Aaron Harvey was leaving his Las Vegas apartment to get some food one day in July 2014, when, suddenly, “man, Seal Team 6 came out of nowhere, pretty much.  Guns drawn, dogs, helicopters.”

It was the U.S. Marshals, who’d come to take Harvey back to San Diego.

“They told me that I was wanted for murders in the state of California,” Harvey said.  “I laughed.  I started laughing.  I told ‘em, ‘You’ve got the wrong guy.'”

Harvey isn’t charged with murder, though.  That’s precisely why his case is so controversial.

District Attorney Bonnie Dumanis is using an obscure criminal statute, Penal Code section 182.5, for what appears to be the first time ever in California to prosecute a group of 15 San Diego men, including Harvey.  The DA has admitted that some of the men had nothing to do with the underlying crimes at the heart of the case – a series of shootings by Lincoln Park gang members in 2013.  Rather, they’re charged with conspiracy for belonging to the same gang as the shooters.  For that, they could go to prison for life.

It’s guilt by association, basically, and if federal law is any guide, it’s perfectly constitutional.

The law says a person who “willfully promotes, furthers, assists, or benefits” from a gang crime can be charged with conspiracy.  The benefit Harvey received out of the shootings, according to the DA, is street cred.  If someone in the gang commits a crime, the reasoning goes, the whole gang gets a boost to its reputation.

“They’re saying I benefited because my stature, my respect, went up.  I didn’t even know I had any stature.  I don’t understand how someone can benefit from something they don’t even know exists,” said Harvey.  “It’s not a quantifiable thing, there’s no measure for stature.  They’re the ones quantifying it.”

Most of the attention on the case so far has centered on the rapper Tiny Doo, whose real name is Brandon Duncan.  Because some of the evidence tying Duncan to the Lincoln Park gang includes his own lyrics, his case has pulled at the heartstrings of everyone from music critics to legal scholars – “Rapper Tiny Doo facing long prison sentence over lyrics” reads one typical headline.

Harvey’s case has none of those sexy First Amendment issues.  Much of the evidence being presented against him isn’t rap lyrics but Facebook posts that prosecutors say link him unmistakably to the Lincoln Park gang.  But he, like Duncan, has no criminal record and is facing up to life in prison if convicted.

Harvey insists he’s no gang member – just a victim of living in a gang-heavy neighborhood, and thus, falling into the state’s gang database by virtue of having been seen in gang territory and socializing with other gang members, i.e., his friends and neighbors.

Being documented as a gang member isn’t a crime on its own.  But if Dumanis is successful, she’d effectively make it one – because anyone documented as a gang member could be held responsible for the crimes of any other member, so long as the crime benefited the gang somehow.

“This is not the American justice system.  We attach personal liability to things.  You’re not guilty by mere association or mere membership,” said Edward Kinsey, Harvey’s lawyer.  “It’s just wrong.  If they can get away with this, I fear for our future as free citizens.”

“This is as draconian a conspiracy law as you’ll see anywhere in the United States,” said Robert Weisberg, a professor at Stanford Law School and co-director of the Stanford Criminal Justice Center.  “It exploits it to the absolute maximum, but it’s not unconstitutional.  It’s just unbelievably tough.”

Harvey’s trial is set for April 20.

=====
Harvey moved to Las Vegas in 2013, he said, after one encounter with San Diego police became the last straw.  He was stopped outside his home and searched.  An officer found his EMT card in his wallet, Harvey said, and told him they’d have to call his boss and tell him he was a gang member.

He said he was so spooked by the encounter, he decided to move to Nevada, where two of his sisters live.  He made money as a club promoter while he studied to become a Realtor.  He said he’d passed the required classes and was studying for the real estate exam when he was arrested – forfeiting the money he’d spent on books and courses.

Harvey says San Diego police stopped and questioned him more than 50 times while he was growing up in Lincoln Park, and that he was routinely handcuffed, or placed in the back of a police patrol car in many of those instances, then released without being charged with a crime.

“In the process of those stops, there were never any crimes being committed,” Harvey said.  “Nobody called in, saying, ‘Oh there’s a disturbance.’  They’re just stops.  Stops of me in front of my grandmother’s house, walking through the neighborhood, to the store, whatever.”

To hear Harvey and his supporters tell it, his case is at best a misunderstanding.  At worst, it’s the product of a system that’s stacked against young men in poor, gang-ridden neighborhoods.

Harvey says his classification as a gang member was cemented just after he turned 18, largely because of information collected during those police stops, including photos of him outside his family’s home and his grandmother’s home, also in Lincoln Park.

To Harvey and his parents, Aaron’s inclusion in the gang database paints a wildly misleading picture of their family.  Once people hear “gang member,” they won’t see that Aaron comes from a two-parent family, that Kelly, his mother, and Dwayne, his father, have been married for about 30 years.  They won’t see that Aaron finished high school and attended college at Washburn University on a football scholarship until one too many shoulder injuries forced him off the team (“He washed out of Washburn,” Dwayne says with a chuckle).  They won’t see that Aaron’s grandparents moved to Lincoln Park in the 1950s, establishing a legacy in the neighborhood that the family is proud of.

“Aaron’s no angel.  I’ve been up at the school a bunch of times before when they’d call me because of stuff he was doing,” Dwayne Harvey said.  “But it was always for ‘Dennis the Menace’-type stuff.”

According to the state, a person can be entered into the CALGANG database if he or she meets any two criteria from a list that includes:  Admitting to being a gang member,  being arrested alongside known gang members, being ID’d as a gang member by a reliable source, being seen affiliating with documented gang members, displaying hand gestures affiliated with a gang, frequenting gang areas, wearing gang dress, or having gang tattoos.

It’s easy to see, then, why advocates and community leaders think a young person could be condemned by circumstance — entered into the database, and made to suffer all the consequences that come with it, simply for living in a certain neighborhood and for socializing with other people who live there.

The fact that Harvey has no criminal record has attracted advocates and local leaders to his cause.  His case has crossed Assemblywoman Shirley Weber’s radar, and the lawmaker plans to meet with Dumanis to express concern about her office’s use of Section 182.5.

Dana Greisen, head of the district attorney’s gang prosecution unit, says the idea that someone could make it into the database simply for being in the wrong place at the wrong time, or for something vague like wearing a red shirt, is absurd.

Much of the evidence tying Harvey to the Lincoln Park gang was gathered from social media.

“In every type of crime that gang members involve themselves, they’re using the internet,” said Greisen.  “So, they’re posting pics of themselves with firearms, recruiting and advertising girls for prostitution, making statements in posts, songs, etc. that are threatening real neighborhoods, real people, so that when they walk into those neighborhoods, they can do whatever they want.  It’s kind of the Wild West on the internet right now.”

The district attorney’s office said it has included “numerous Facebook posts” in its case against Harvey, in which he’s “throwing up gang signs representing the Lincoln Park Bloods.  Also numerous pictures with Aaron Harvey and numerous Lincoln Park Gang members who are throwing signs for ‘Crip Killer’ and ‘Lynch Mob’ a subset of Lincoln Park Bloods, and numerous references and posts related to the Lincoln Park Gang.”

“It’s not a guessing game.  They’ve made it as obvious as they possibly could.  The social media stuff is in our face, in their rivals’ faces in no uncertain terms,” Greisen said.  “People talk to their girlfriends and the media and say they’ve never been a gang member, that this is all just a big misunderstanding.  And then you look at the evidence, and it’s not a close call.”

While it’s true Harvey has no criminal convictions to his name, it’s hard to believe, as he contends, that he had no idea police had documented him as a gang member until he was charged in this case.

Harvey was tried on of a single count of drug possession in 2010.  In that case, prosecutors were allowed to present evidence tying Harvey to the Lincoln Park gang.  The exhibit list from the trial includes things like “Waist belt with ‘Lincoln Park’ written on one side” and “Red polo shirt with the defendant’s known street moniker written on the front.”

A jury took just over an hour to find Harvey not guilty.

=====
Like any criminal case, the district attorney’s office and Harvey couldn’t be further apart in their versions of reality.  Either Harvey is a hardcore gang member who was helped terrorize a community, or he’s a young man who just wants the police to leave him alone to get his real estate license.

But both sides seem to agree on at least one thing:  Using the law in this way is new, and it could have big consequences if it works.

Section 182.5 was created as part of Proposition 21, a 2000 voter-approved package of criminal justice reforms.  Pushed by former Gov. Pete Wilson, most of the reforms targeted juvenile offenders, and made them eligible in some cases to be tried as adults.

Harvey’s case marks the first time Section 182.5 has been used in San Diego, according to the district attorney’s office, and possibly the entire state.

“It’s the first time this statute has been used at any significant level,” said Greisen.  “We’ve spent many hours in regard to what this law says and what evidence we need in order to prove it.  Literally thousands and thousands of docs retrieved, numerous witnesses involved in the case, years of documentation, wiretaps, etc., has gone into this.”

The California penal code is both gratuitously complicated and extremely harsh, said Weisberg, the Stanford law professor.  “Prosecutors are situated to take advantage of those things more than any other participants in the system.  They know how to work the penal code,” he said.

Greisen said the DA’s office believes a higher court will ultimately have to weigh in on the law.  But federal law has a similar version of the statute, RICO, which has been used to criminalize gang membership.

Even if a jury takes prosecutors at their absolute word, and believes Harvey is a member of the Lincoln Park gang, the conspiracy charge could still be a tough sell without evidence he knew about the shootings.

“There’s always the risk a jury will nullify a charge even when it’s legally sound because they think it’s too draconian,” said Weisberg.  “Or if they’re bothered by the vagueness of the statute they’re being asked to enforce, they may just acquit.  It’s a huge gamble.”

As you might imagine, Harvey doesn’t care much for being part of a trial balloon that could land him in prison for life.  He’s spoken to the City Council’s public safety committee and to a class at San Diego City College, warning against what he says are the dangerous implications of the law.  The last time I met with him, he was about to meet with a group that’s organizing an effort to repeal Prop. 21.

“This is about a penal code that is so unjust, that if we are convicted, we will be used as a model throughout the state that will have the capabilities of annihilating and eliminating communities,” Harvey said at a press conference last week.

Though he says he moved to Las Vegas to escape the constant questioning by San Diego police, his arrest, counterintuitively, has convinced him to stay in San Diego for good.

“They have created a young activist now,” Harvey said.  “I am going to be actively involved in my community.  Not just in my community that I grew up in, but hopefully all communities across the state.  I even plan on going to law school.”

He pauses for a moment, then corrects himself.  “Not planning.  I am going to law school.”

PS:  Could Harvey be 'guilty' because he's black..... NAA....

BEHIND THE CURTAIN - Federalist Society Pulls Strings on Supreme Court

"Behind Supreme Court’s Obamacare Case, A Secretive Society’s Hidden Hand" by Nina Martin, ProPublica 3/3/2015

For more than 30 years, the Federalist Society has worked behind the scenes to shape Supreme Court outcomes to a conservative agenda.  In King v. Burwell, its influence could eliminate health insurance subsidies for millions of people.

The Supreme Court has no shortage of potentially precedent-shattering cases on its docket this term.  But the one the justices are hearing tomorrow, King v. Burwell, could be the most consequential.

King focuses on the issue of whether low-income people who get insurance under the Affordable Care Act’s federal exchanges are entitled to tax subsidies.  Much has been said (and written) about what could happen if the justices rule “no”:  Millions of people in as many as 37 states could lose their health coverage.  The political earthquake could be cataclysmic.

Yet, few reports have highlighted the role of the Federalist Society, the conservative law group whose ideas are at the intellectual heart of the King v. Burwell challenge.  That’s not surprising, given that the group’s members have played a mostly behind-the-scenes part in King — and in many of the most significant conservative legal victories of the last 30 years.

In a new book, “Ideas with Consequences:  The Federalist Society and the Conservative Counterrevolution,” Pomona College political scientist Amanda Hollis-Brusky channels her inner investigative journalist to trace the group’s influence on the courts, and especially, the Supreme Court.

Note:  This interview has been edited for clarity and length.

Q.  What is the Federalist Society?  What did it grow out of?

A.  The Federalist Society was founded in 1982 by a small group of conservative and libertarian law students at Yale and the University of Chicago.  Many of the founders had worked on the Reagan presidential campaign, and when they arrived in their elite law schools, they noticed a profound mismatch between the ideas that were achieving political ascendancy — about limited government and free markets and states’ rights — and a liberal orthodoxy that was embedded in almost all major legal institutions of the time.

Flash forward 30 years:  The Federalist Society has matured into a self-professed “society of ideas” that claims 40,000 to 60,000 members.  These include every Republican-appointed attorney general and solicitor general since the 1980s, dozens of federal judges, and four sitting U.S. Supreme Court justices:  Antonin Scalia, who was one of the organization’s original mentors at the University of Chicago; Clarence Thomas, Samuel Alito and John Roberts.

Q.  How does it operate?

A.  The Federalist Society doesn’t exhibit its power in a way that is easily recognizable.  It doesn’t bring court cases, or lobby, or publish position papers, or officially endorse political or judicial candidates.  Instead, it trains and socializes its members through thousands of events every year.  It promotes collaboration.  Members are encouraged to draw on their training and networks as they go about their work as judges, policy makers, litigators and academics.  In this way, the Federalist Society’s influence is one step removed from the policy process.  Yet that influence is profound.

Q.  The Federalist Society doesn’t even make public its membership rosters.  How did you trace its impact on policy and the courts?

A.  I used speaker agendas from Federalist Society national student conferences and lawyer conferences from 1982 to 2012 to construct a database of everyone who’s ever participated in one of these meetings:  1,190 individuals in all.  These are the thought leaders — the Mick Jaggers of the movement.  If you are invited to speak at a national conference, it signals true believership.

Then I tracked their movements:  What Supreme Court cases were they participating in?  Were they consistently promoting a certain kind of scholarship or set of beliefs?

I identified the key areas of law that have taken a significant conservative turn over the past 30 years.  And by reviewing transcripts from meetings and conferences, I was able to show how those ideas were gestated within the Federalist Society network for decades before being accepted by the Supreme Court.

Q.  What kind of ideas?

A.  The organization’s statement of principles provides a useful frame.  The first part says:  We believe the state exists to preserve freedom.  Two key areas where this principle has played out are the Second Amendment — there has been a radical reframing of the right to bear arms as a right on par with speech and religious freedom — and campaign finance, culminating in Citizens United and the idea that corporations and individuals both have free speech rights.

A second Federalist principle holds that the separation of governmental powers is central to the Constitution.  There’s been a very, very concerted effort to narrow the federal power over interstate commerce, to restrict the ability of Congress to regulate, and to dramatically expand states’ rights.

The third principle is the idea that it is the role of the judicial branch to say what the law is and not what it ought to be.  That is the key issue in King v. Burwell.

Q.  Let’s talk about the Supreme Court’s first Obamacare decision in 2012.  Conservatives greeted that ruling with shock, outrage, disappointment.  They lost — the Affordable Care Act (ACA) was upheld.  But in your view, that ruling was actually an important Federalist Society victory.  Why?

A.  For one thing, they won on the Medicaid expansion issue.  Conservatives and libertarians had fought that expansion, arguing that it was a coercive policy that infringed on states’ rights.  The proposed expansion was a keystone of the ACA, so that part of the ruling was a huge blow to health care reform.

The Federalist Society also prevailed on the issue of the constitution’s Commerce Clause.  Congress had argued that the Commerce Clause gave it the power to regulate health care, but a majority of the justices disagreed.  That precedent has further contributed to the narrowing of the federal commerce powers.

It’s true, Chief Justice Roberts found a way to salvage the ACA’s individual mandate based on the power of Congress to impose taxes.  That made many conservatives very unhappy.  But the Federalist Society didn’t just get half a loaf, it got 80 percent of the loaf.

Q.  King v. Burwell is a very different type of case.  How does the issue at the center of it reflect Federalist Society thinking?

A.  Unlike the 2012 challenge to the ACA, King v. Burwell is not a constitutional case.  It’s a statutory case.  At issue is whether people in states with federally facilitated health insurance exchanges are entitled to receive the tax benefits that make insurance affordable.  The parties in this case are asking the Supreme Court to interpret just five words:  what is meant by an “exchange established by the State.”

There are two very different ways to look at the issue of statutory interpretation.  For many years, the dominant view was:  If the meaning of that language is not immediately apparent, judges should look to legislative history – what was Congress’s intent when they wrote those words?  In the case of Obamacare, the legislative intent is pretty clear:  Congress’s aim was to provide tax benefits to lower income Americans to help underwrite the cost of insurance.

But since the 1980s, there’s been a quiet revolution in statutory interpretation by the courts.  Instead of taking into consideration legislative history and intent, there’s been a shift to just looking at the plain meaning of the text and ignoring everything else because supposedly things like legislative history are too subjective.  This revolution began with a core group of Federalist Society members centered in the Reagan Justice Department. Justice Scalia has been a major proponent.

If the plaintiffs in King v. Burwell prevail, the Federalist Society will have two victories.  The obvious one is that Obamacare will suffer another major setback.  The other will be to more firmly entrench this idea of statutory interpretation – we shouldn’t look at legislative history; we shouldn’t look at consequences; we should just look at the plain meaning of the words, and our inquiry ends there.  The Supreme Court majority’s approach could well be:  The ACA says what it says — let Congress fix it.  But they know full well that this Congress will not pass that fix.

Q.  This idea of ignoring Congressional intent, and just reading the plain text of a statute, comes up in another important Supreme Court case this year, Young v. UPS, which focuses on pregnancy discrimination in the workplace.  How has Federalist Society thinking shaped the Supreme Court’s rulings on sex discrimination?

A.  Young v. UPS is another case of statutory interpretation — in this instance, the question centers on the Pregnancy Discrimination Act of 1978.  The Act prohibits employers from treating pregnant women differently from other employees who are “similar in their ability, or inability, to work.”  But what does that mean?  Women’s rights advocates say it’s obvious:  Pregnant women must not be discriminated against in the workplace.  But many employers said it means that pregnant women can’t be treated any differently than “similarly situated” male employees — otherwise women are getting preferential treatment.  Never mind that men can’t be similarly situated because men can’t get pregnant.

One of the ways the Federalist Society has been effective is in changing the debate.  Twenty or 30 years ago, if you were going to hear oral arguments in a case about the Pregnancy Discrimination Act, much of the discussion would have focused on statutory intent — the fact that the entire purpose of this Act, regardless of how the language is phrased, was to prevent discrimination on account of pregnancy.  That is virtually not talked about now.

In the Young oral arguments last December, almost the entire focus was on the meaning of “similarly situated” and “similar in their ability or inability to work.”  There was a lot of discussion about semicolons.  And when you limit the conversation in this way, the effect almost always is to limit protections, to restrict rights.

Q.  There’s another huge discrimination case before the Supreme Court this term, involving the Fair Housing Act (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.)  Does the Federalist Society’s approach to sex discrimination extend to race?

A.  There’s a trope you hear over and over in the Federalist Society network, the idea of the “color-blind Constitution.”  The implication is, to treat people equally, you treat them the same and it will all shake out in the end.  The government shouldn’t try to equalize resources or equalize opportunity — that’s not its role.  As long as discrimination isn’t intentional, it doesn’t matter whether a law or policy has a disparate impact on minorities.

But there’s another way of understanding equality, which is that if you want to treat some people equally, you have to treat some people — like pregnant women, or certain homeowners, or black voters in historically segregated states — differently.  That is a line of thinking that Federalist Society members have absolutely rejected.

As we’ve seen, this Supreme Court has been pretty opposed to race-conscious remedies.  It has seemed pretty bent on limiting, if not declaring unconstitutional altogether, affirmative action policies.  In the Shelby v. Holder voting rights decision from a couple of years ago, it repudiated the idea that certain states should have to appeal to the federal government or courts before they make changes to their electoral voting procedures.  That case, of course, also touched on another issue important to the Federalist Society network, states’ rights.

Q.  I’ve been reading a lot about the pressures on Roberts in King v. Burwell.

A.  Yes, there is a very active campaign, mostly by the left, to remind Chief Justice Roberts that the integrity of the Supreme Court as an institution is once again at stake and to argue that there are alternative paths he could take to uphold this provision of the ACA and still keep his conservative credentials.  On the right, there’s been very quiet and subtle but potentially very effective counter-pressure.  People say, we’re not worried about losing any of the conservatives on this, Roberts will follow the rule of law.

One important function of the Federalist Society has been to provide a counterweight to the so-called liberal media.  There was a very conscious effort to build a counter-elite to counteract this effect.

Q.  What do you think the outcome of King v. Burwell will be?

A.  Because of this 30-year revolution in statutory interpretation, the justices have a shield.  My sense is that conservatives have enough cover that if five of them want to strike down the law, they will.

Q.  But unlike in 2012, the ACA has already gone into effect.  Millions of people would have their subsidies and their health coverage taken away.  The real-world consequences would be very different.

A.  Yeah, but you’d have to believe that the justices are in touch enough with real people to believe that they’re going to take that into consideration.

Anthony Kennedy has demonstrated enough antipathy to the ACA that you would not normally count on him to be the one to save it.  But he is the one who, in the marriage equality cases, for example, would bring up the fact that there are children who want their parents to be able to get married.  So there are times that he will actually look outside the court and try to work in the real-world impact of potential decisions.

I don’t know if this is one such case.  I don’t know how bent he is on disposing of Obamacare at any cost.  But who knows — maybe he’ll be the John Roberts of King v. Burwell.