Tag: Premium

Jeff Shesol spots a fascinating detail in Bruce Allen Murphy’s new biography, Scalia: A Court of One – his obsession with dictionaries, especially those from the 18th and 19th centuries. Scalia’s penchant for parsing the meaning of words “is apparent—often ostentatiously so—in nearly every opinion that Scalia has put on paper over the past three decades”:

Sometimes, this has yielded a comical result, as in Scalia’s dissent in Edwards v. Aguillard, a 1987 decision overturning a pretty plainly labelled Louisiana law called the Balanced Treatment for Creation-Science and Evolution-Science Act on the grounds that it advanced a particular religious belief.  Scalia, having considered very carefully the phrase in question, insisted, presumably with a straight face, that the term “creation science” had no religious meaning whatsoever. “The Act’s reference to ‘creation,’” he wrote, “is not convincing evidence of religious purpose…. We have no basis on the record to conclude that creation science need be anything other than a collection of scientific data supporting the theory that life abruptly appeared on earth.”

In other instances, Scalia’s word games have had profound, societal implications, leading to—in at least one case—a dramatic shift in constitutional law.

In District of Columbia v. Heller, which Scalia considers his greatest achievement, he relied not on one but on three eighteenth-century dictionaries to “clarify” the Second Amendment, which reads, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” By the time that Scalia had finished his exegesis, the “prefatory clause” about a militia had been clarified into irrelevance, and “bear arms” had been so scrutinized and squinted at and worked over that Americans awoke to find that they had a new, individual right to carry a handgun—a right that cannot be found in the language, plain or otherwise, of the Constitution. Michael Waldman, who has just published a book on the Second Amendment, observes that Scalia, in his opinion, “has the feel of an ambitious Scrabble player trying too hard to prove that triple word score really does exist.”

(Photo: Supreme Court Associate Justice Antonin Scalia testifies before the House Judiciary Committee’s Commercial and Administrative Law Subcommittee on Capitol Hill May 20, 2010 in Washington, DC, by Stephen Masker via Wikimedia Commons)

In a lengthy report, Emily Badger explores what the rise of Uber and Lyft means for taxi medallions, whose value has risen astronomically in recent years:

In New York, taxi medallions have topped $1 million. In Boston, $700,000. In Philadelphia, $400,000. In Miami, $300,000. Where medallions exist, they have outperformed even the Standard & Poor’s 500-stock index. In Chicago, their value has doubled since 2009.

Now, however, a market built on restricted supply is showing cracks with the arrival of start-ups that turn anyone with a car into a driver for hire. In Chicago, those cracks have triggered fears that medallion values are tottering. They have given rise to a high-stakes lawsuit, tentative new regulation and a glimpse of how this same clash between old power and new technology could play out in other cities. Throw open the market — to amateurs, part-timers and the underemployed (and whatever they drive) — and medallions lose their exclusivity. Without which, they lose their value, too. …

That, Uber says, is precisely the point. The five-year-old San Francisco tech company — and the envy of Silicon Valley — has rapidly and strategically infiltrated taxi strongholds by enabling consumers to hail rides electronically from their smartphones. Uber and companies like it argue that regulations intended for taxis don’t apply to a service no one could have envisioned when the laws were written. And consumers don’t seem to care what those laws say. They are piling in and leaving cities to chase after a fast-expanding business.

Meanwhile, Eric Goldwyn considers the conflict between traditionally trained drivers and disruptive tech:

Startups like Uber argue that technology can transform the casual driver into a professional. With G.P.S., anyone can navigate efficiently. Real-time passenger feedback means that drivers who consistently receive low ratings can be dropped from the service. “Tech tools have changed the whole environment,” Josh Mohrer, the general manager of Uber’s New York office, told me. The upstarts can provide a range of ride options at different price points, improve driver efficiency by matching drivers with rides more quickly, and weed out bad drivers. …

There is now talk within the taxi community of developing mobile applications to compete with the T.N.C.s. [transportation network companies like Uber]. [Taxi union leader Bhairavi] Desai sees this as a viable strategy, one that could stitch together the obvious benefits of technology and professionalism. “In cities where ride-share has grown, it’s because professional taxi drivers have switched to the other side,” Desai explained. “The Uber model isn’t sustainable without professional drivers.”

Previous Dish on Uber here and here.

Jeremy Bentham’s utopian prison design appears to have been a big mistake – and its consequences are still being felt after more than two centuries:

Though many scholars focusing on penitentiaries suspect that staff-prisoner relations are molded by institutional architecture, little empirical work has been completed on the topic. Now, a new study led by [researcher Karin] Beijersbergen and published in Crime & Delinquency has concluded that building styles, floor plans, and other design features do indeed have a significant impact on the way Dutch prisoners perceive their relationships with prison staff. …

After controlling for age, ethnicity, intimate relationships at the time of arrest, education level, personality traits, criminal histories, and officer-to-inmate ratios, the authors discovered that their hunch was correct. If the prisoners were housed in leaky dungeon-like panopticons, they tended to feel more estranged from guards. But if they were enjoying campus-style living arrangements or apartment-style high-rises, they perceived the relationships as more supportive.

On a similar note, architect Raphael Sperry – who is working to get the American Institute of Architects’ to change its code to “prohibit the design of spaces that inherently violate human rights” – discusses the business of designing prisons:

A lot of large firms have a unit that designs prisons. Sometimes that expertise overlaps with other high-security business types – military facilities and some other government facilities – but prisons are pretty specialized. The group within a large firm might be five percent of their business, in some cases maybe 15 percent. There are some firms that specialize in prisons and those ones that I’ve encountered really try to be progressive. They are the most forward-thinking, and [are] using evidence-based best practices. …

We are not advocating that we put the firms that do prisons out of business; we would just like if they would foreground human rights in the work that they do, and I think it’s better if they do that collectively. That’s what the code is about. If one or two companies say, ‘We are not going to design prisons that violate human rights,’ those guys are going to go out of business and the product will still be built. It’s important to take a collective stance.

(Photo by Paolo Trabattoni)

Yesterday, SCOTUS issued a ruling on the EPA’s powers to regulate greenhouse gas emissions under the Clean Air Act, but nobody could seem to decide whether it was good or bad news for the agency:

The cases, led by Utility Air Regulatory Group v. the EPA, challenged the EPA’s authority to regulate greenhouse gasses from stationary sources (like coal plants.) The 5-4 decision — split along several lines — will effectively limit the EPA’s ability to regulate those gasses in some instances. However, it seems likely that the EPA will be able to find a way of maintaining those regulations even with today’s decision.

The mixed, complicated opinion is producing split results from the media, too. The New York Times’s quick take on the opinion proclaimed it a “victory” for “President Obama’s Environmental Protection Agency,” because it preserves most of the EPA’s tools and programs for regulating greenhouse gasses in stationary sources. However, because the court’s opinion rejects the way in which the EPA imposed those regulations in some instances, the decision produced a different lede over at Fox News: “the Supreme Court delivered a setback to the Environmental Protection Agency,” it begins. As experts comb through the details of the opinion, its likely that the reality lies somewhere in the middle.

Essentially, the court ruled that the law does not give the agency carte blanche to regulate greenhouse gas emissions but left it with a workaround that would allow it to continue doing so in most cases:

The high court ruled 5-4 that EPA may only require newly built or modified industrial pollution sources—such as power plants, refineries, and factories—to limit greenhouse gases if those same sources must already obtain permits for their so-called conventional pollutants. In practice, that means only a slight change in the number of big industrial polluters that would be captured by the existing, case-by-case greenhouse-gas permitting program at issue in the case decided Monday. The permitting program itself was not struck down.

The permitting program requires polluters to use so-called best available control technology, which for greenhouse gases has largely meant increased energy efficiency thus far, the Obama administration noted when defending the program before the Court in February. Limiting the program to facilities that must already get permits for their conventional pollutants (such as emissions that cause smog) addresses the sources of 83 percent of U.S. greenhouse-gas emissions from industrial polluters, compared with 86 percent without that restriction, according to the Obama administration.

At issue was whether the agency had overreached in “tailoring” the Clean Air Act to regulate CO2:

The statute calls for the EPA to regulate any source that emits more than 250 tons of the pollutant; most major sources of CO2 emit far more than that. In fact, under a strict regulatory approach, the EPA would have to issue permits to 6.1 million facilities (it currently regulates 15,000 under this provision). The administrative costs alone would jump by $21 billion. Since the EPA recognized this as unworkable, it set a much higher limit of 100,000 tons per year of carbon dioxide or an equivalently potent amount of another greenhouse gas. This “tailoring” approach to the distinct issue of greenhouse gases was then challenged in court by a variety of groups, from industry organizations to individual states.

Writing for the majority, Justice Antonin Scalia struck down the tailoring approach. The general argument is that if a statute produces absurd results—and even the EPA recognizes that the Clean Air Act does in this case—then an agency doesn’t gain the right to rework the statute in order to produce saner results. Left on its own, this portion of the ruling would be enough to throw out the EPA’s regulations.

Doug Kendall and Mei-Wah Lee call it “a 97% victory for the environment.” Their caveats:

First, the court’s willingness to find the Clean Air Act’s text of “any air pollutant” ambiguous — despite both the term’s capacious definition and its acceptance in Massachusetts v. EPA — will be cited by industry challengers as evidence that EPA’s authority is limited when it comes to regulating greenhouse gases. In effect, that would be an argument that greenhouse gases are somehow separate and unequal pollutants for purposes of the Clean Air Act. Massachusetts v. EPA makes it clear that this isn’t true, but some of the language in Scalia’s opinion may inspire other last-ditch efforts by industry groups to undermine the government’s authority to address the gravest environmental challenge of our time.

Second, in rejecting EPA’s attempt to keep faith with the act’s text and underlying purpose by adjusting the PSD program’s numerical threshold requirements, Scalia appears to define “reasonable” merely in terms of how much the interpretation would increase EPA’s regulatory authority — the more authority for the EPA, the less reasonable the interpretation (or, at least, so some challengers may argue). Again, industry will take heart in the limits drawn by Scalia’s decision and emphasize them in future cases.

For Jonathan Adler, the bottom line is that the “EPA can regulate, but it does not have free rein”:

The court made clear that it was not addressing any potential objections as to how the EPA decides to regulate stationary source emissions of GHGs going forward. On this the Court was explicit: “our decision should not be taken as an endorsement of all aspects of EPA’s current approach, nor as a free rein for any future regulatory application of BACT in this distinct context.”

In upholding the EPA’ authority to require facilities already subject to regulation under the PSD program, the court seemed aware that regulating GHG emissions, and carbon dioxide emissions in particular, is different from regulating traditional pollutants and that the EPA may not have a free hand in controlling GHG emissions however it sees fit.  So, for instance, the EPA may be limited in its ability to force facilities to adopt energy efficiency improvements as a means of reducing GHG emissions.

Daniel Gross shrugs off the ruling, noting that the tide is already turning against carbon:

In Drum’s view, the real story here is about how the court views the power of executive agencies to interpret the law:

[T]oday’s ruling is a demonstration of something I’ve mentioned before: When an executive agency modifies the way it interprets a law, it’s a fairly routine affair. Interpretations of federal statutes, especially complex regulatory constructions, are notoriously difficult, and agencies do it all the time. There’s no presidential “lawlessness” or “tyranny” involved, and disputes over these interpretations are routinely resolved by courts. In this case, it was obviously a close call, since the decision was 5-4 and the opinion was long and dense. This is what’s likely to happen in other cases where the Obama administration has interpreted a law in ways that his critics don’t like. If the critics are serious, they’ll go to court, and in some cases they’ll win. In others, they’ll lose. Welcome to the 21st century.

Also picking up on that theme, Andrew Grossman looks ahead:

The Court’s decision may be a prelude of more to come. Since the Obama Administration issued its first round of greenhouse gas regulations, it has become even more aggressive in wielding executive power so as to circumvent the need to work with Congress on legislation. That includes recent actions on such issues as immigration, welfare reform, and drug enforcement. It also includes new regulations for greenhouse gas emissions by power plants, proposed just this month, that go beyond traditional plant-level controls to include regulation of electricity usage and demand—that is, to convert EPA into a nationwide electricity regulator.

Today’s decision—as well as one last month by the D.C. Circuit rejecting a nearly identical regulatory gambit by the Federal Energy Regulatory Commission—suggests that this won’t be the last court decision throwing out Obama Administration actions as incompatible with the law.

David Barron’s Office of Legal Counsel memo making the case for the drone strike that killed Anwar al-Awlaki in 2011 has been released, with lots of redactions of course. The memo touches on the major controversies surrounding the operation, including Awlaki’s due process rights, the risk of killing innocent civilians, and the CIA’s involvement. Scott Shackford provides the tl;dr version of what the release does and doesn’t tell us:

The Authorization to Use Military Force (AUMF) that gave us wars in Iraq and Afghanistan gave the administration permission to pursue and capture or kill members of Al Qaeda; Al-Awlaki was a member of Al Qaeda; therefore, killing was legal. Al-Awlaki’s Fourth Amendment right to due process is brought up toward the end. The Justice Department argues here that capturing Al-Awlaki was infeasible, yet he presented a threat to the United States as “continued” and “imminent,” therefore lethal force was justified.

What sort of continued and imminent threat did Al-Awlaki present from Yemen? Don’t know. That part is all redacted. The justification of why the CIA pursued this course of action is also almost entirely redacted. Even with the memo, we actually don’t learn anything new from a leak of a similar memo NBC published last year. We don’t know why Al-Awlaki was considered to be an imminent threat and why this drone strike was the only way the Obama administration believed it needed to deal with him.

Benjamin Wittes combs through the argument in more detail, but the redactions, as Wittes observes and as Serwer highlights here, leave some key points to the imagination:

The portion of the memo dealing with potential Fifth Amendment objections to targeting al-Awlaki remains heavily redacted, though the portion dealing with the Fourth Amendment is largely readable. Attorney General Eric Holder has argued publicly that ”The Constitution guarantees due process, not judicial process,” an argument later mocked by comedian Stephen Colbert, who deadpanned in response, “due process just means there’s a process that you do.”

“To my mind, the most controversial argument we’ve heard from the Administration was Attorney General Holder’s suggestion that due process is not a requirement of judicial process,” said Stephen Vladeck, a professor at American University’s Washington College of Law. “Presumably, that argument turns on the rigor and thoroughness of the internal Executive Branch decision-making that goes into ensuring that the target may legally be attacked, and that we’re absolutely sure the target is who we think it is. But the version of the memo disclosed today offers vanishingly little insight into these critical questions–leaving most of the presumably critical analysis blacked out behind redactions.”

Conor is particularly spooked at Barron’s contention that “a decision-maker could reasonably decide that the threat posed by al-Awlaki’s activities to United States persons is ‘continued’ and ‘imminent.’”:

This passage is alarming for two reasons:

1) It asserts that the executive branch can kill Americans in secret under the standard, “a decision-maker could reasonably decide…” Dick Cheney was “a decision-maker.” So was J. Edgar Hoover. Are we prepared to accept that 5th Amendment protections are null based on a relativistic standard as interpreted in secret by men like them?

2) The memo treats the representation that al-Awlaki posed an “imminent” threat as important. But unless it is hidden in a redaction, the memo does not address how “imminent” is defined, and there is good reason to believe that the Obama Administration has defined it so dubiously as to render the term meaningless. I explored this problem at greater length back on February 5, 2013, when Michael Isikoff published another memo that dealt with extrajudicial killings. It set, as a precondition of such killings, “an imminent threat of violent attack.”

David Kravets focuses on how the memo addresses the question of collateral damage:

“DoD has represented to us that it would make every effort to minimize civilian casualties and that the officer who launches the ordnance would be required to abort a strike if he or she concludes that civilian casualties would be disproportionate or that such a strike will in any other respect violate the laws of war,” according to the “memorandum for the attorney general.”

But that didn’t sit well with [Pardiss] Kebriaei. In a telephone interview, the Center For Constitutional Rights attorney said that “if you accept the idea of a global war and you can follow a target wherever he goes, there is a significant risk of harm to civilians in the area precisely because the laws of war do allow some collateral harm. It’s basically a huge risk of harm to ordinary people and civilians if you accept this premise which can be invoked by other countries.”

And Kevin Jon Heller picks apart the justification for letting the CIA carry out the assassination:

Is it really the case that the CIA is no less entitled to invoke the [public authority justification] than the DoD? There is at least one obvious difference between the two: because international law entitles only the members of a state’s regular armed forces to participate in hostilities, the CIA had no authority under international law to use armed force against al-Awlaki. The CIA is not part of the US’s regular armed forces. …

[T]he AUMF specifically authorizes the President to use the “United States Armed Forces” against AQ; it says nothing about the CIA using force. And, of course, the War Powers Resolution, which the AUMF specifically references, applies only to “the introduction of United States Armed Forces into hostilities.” How, then, can the AUMF provide the domestic authorization necessary for the PAJ to apply to the CIA? Nor is that all. The memo’s own cites strongly suggest that the PAJ applies only to the “lawful conduct of war” by the US’s regular armed forces

This doesn’t quite settle the matter for Drum, whose beef with the Awlaki affair was never the strike itself, “but with the fact that the targeting was based on such a flimsy legal pretext”. He blames Congress for not fixing the AUMF:

The AUMF is now more than a dozen years old, and it’s long past time for Congress to emerge from its fetal crouch and write a new law specifically designed for our present circumstances. Among other things, it should address the president’s ability to target American citizens for killing. If Congress wants to give the president that power, it should debate and pass a law and the courts should rule on its constitutionality. That’s the rule of law. And regardless of whether I liked the law, I’d accept it if Congress passed it, the president signed it, and the Supreme Court declared it constitutional. Instead, as usual, Congress prefers to do nothing. This leaves them free to kibitz if they don’t like what the president is doing, or to simply avoid having to take a stand at all. It’s shameful.

On that, I think, we can all agree. And not just on this question either.

(Photo: Anwar Al-Awlaki at Dar al Hijrah Mosque on October 4 2001 in Falls Church, VA. By Tracy Woodward/The Washington Post via Getty Images.)

Sunday’s World Cup match between the US and Portugal ended with a last-second goal from Portugal’s Silvestre Varela that turned a 2-1 comeback victory for the US into a disappointing draw. John Cassidy describes the match as a teachable moment for American World Cup fans, evoking soccer’s peculiar mix of pride and deflation:

In the chichi French café where I had been watching the second half with my two young daughters, there were groans and howls of astonishment. Fifteen minutes earlier, when Dempsey scored, the joint had been rocking to chants of “U.S.A., U.S.A.” Now there was a dejected silence. I explained to my elder daughter, who earlier had colored in her own U.S. flag, that, no, Team U.S.A. hadn’t lost; and, no, it hadn’t been knocked out of the tournament. To the contrary, it had performed magnificently, and it still had a very good chance of qualifying for the final stages.

I didn’t bother explaining that the World Cup is like that: it builds you up and lets you down, warping your judgment.

Now that America has finally embraced this quadrennial exercise in fanatical but largely peaceful nationalism, our kids and their friends will have plenty of chances to experience it for themselves: the highs, the lows, and the bits in between. For that, surely, is the lasting message of Sunday’s game. Americans, like practically everybody else, have gone a little World Cup crazy.

Sophie Gilbert has a similar view, using the match to make the case that such sudden, unjust twists are part of what makes the sport exciting to watch:

Take a moment to consider the possibility that it might be more fun this way.

This might sound like the twistiest pretzel logic ever spun (and bear in mind that it’s coming from an England fan), but soccer wouldn’t be half as enjoyable without its extravagant pendulum shifts between beer-soaked elation and crushing agony. It’s profoundly, messily (or Messi-ly, depending on which team you root for) unfair. The U.S. side played with real fortitude in Manaus, not only proving itself to be eminently capable, but actually showing up the depleted Portuguese team. They should have won the game; thanks to some early sloppiness from Geoff Cameron and last minute fumbling from Bradley, they left it with one point instead of three. But doesn’t that make it more exciting?

As thrilled as Cassidy is that Americans are finally getting into the World Cup, Derek Thompson observes that this enthusiasm doesn’t extend to Major League Soccer:

The soccer evangelist says: The World Cup is nearly as popular as the World Series on television. The soccer skeptic says: … and in the 1,400 days between World Cup matches, everybody goes back to not watching soccer on TV.

There is good news for MLS investors and soccer fans. Average stadium attendance is way up in the last few years. Networks are desperate to break out soccer, because the audiences are young, the Hispanic population is growing, and the exclusive rights are dirt cheap compared to the NFL and NBA. But the reality is that nobody is watching American soccer outside the stadium (and few Americans are watching world-class matches in the Premier League on NBC). …

The World Cup is essentially a single-sport Summer Olympics introducing tens of millions of viewers to a thrilling contest in a sport they typically don’t care about. Unfortunately for America’s soccer fans, the vast majority of yesterday’s domestic viewers won’t watch another soccer game between August and 2018.

Previous Dish on Americans and soccer here, here, and here.

(Photo: The scene at Lonestar Bar and Grill, where Varela’s goal left U.S. fans stunned. By Alyssa Tanchajja.)