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The Supreme Court Is a Threat to Democracy |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=43875"><span class="small">Branko Marcetic, Jacobin</span></a>
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Monday, 30 August 2021 13:11 |
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Marcetic writes: "Last week's Supreme Court decision striking down the national eviction moratorium was a lawless power grab by an increasingly out-of-control institution."
Rally in support of the eviction moratorium. (photo: Getty Images)
The Supreme Court Is a Threat to Democracy
By Branko Marcetic, Jacobin
30 August 21
Last week’s Supreme Court decision striking down the national eviction moratorium was a lawless power grab by an increasingly out-of-control institution.
 t’s great to be a Supreme Court justice in the United States. In theory, your job is to decide if government actions, whether laws passed or actions taken by executive order, are permitted by the bounds of existing law and the US Constitution. In reality, if you want, you can repeal, change, or even make government policy based on your own personal beliefs, provided you have enough like-minded colleagues to vote with you, and as long as you use your legal skills to creatively interpret a legal text in whatever way you need to justify your decision.
The tug-of-war over the federal eviction moratorium, finally settled Thursday in a 6-3 decision by the Supreme Court, is an ideal example. Here is the part of the 1944 Public Health Service Act that Donald Trump, and then Joe Biden, used to order a nationwide pause on evictions during the pandemic:
The [CDC], with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.
The text is pretty clear. The law says the CDC can put in place and enforce regulations that prevent infectious diseases from spreading from state to state, examples of which include inspection, pest extermination, and other measures the CDC decides are necessary — a broad mandate that gives the agency wide latitude to act to contain a killer pandemic.
So is the government’s reasoning. Given the highly infectious nature of this coronavirus, especially the Delta variant ravaging the country right now — and given the fact that homelessness is a major risk factor for getting COVID, which would only get worse if millions of people were abruptly forced to move in with family or seek emergency shelter — temporarily stopping people from being evicted would fall into the broad remit the law gives the CDC to stop a disease from spreading through the country. This is exactly why judges in several lower courts left the ban in place, including one Trump appointee in Georgia, who wrote that “in the situation we have here — an unprecedented pandemic with widespread contagion — this court finds that the CDC’s response is reasonably calibrated to the seriousness of the disease it is combatting.”
Luckily for the Wall Street housing barons and realtors’ associations of the world, that’s nothing a little bit of creative reading can’t fix. When a different Trump-appointed US district court judge struck down the original moratorium back in May, her reasoning was that the CDC’s clear authority to decide on regulations needed to halt an infectious disease in its tracks was somehow “tethered to — and narrowed by — the second sentence” of the law, namely the list of examples given: inspection, fumigation, disinfection, sanitation, pest extermination, and the “destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings.”
The fact that this list ended with a mandate for unspecified “other measures” didn’t matter either, according to the judge: because they were named last, they had to be “similar in nature to those listed” right before, and specifically
they must be directed toward “animals or articles,” and second, those “animals or articles” must be “found to be so infected or contaminated as to be sources of dangerous infection to human beings.”
Needless to say, this is not how any normal human being with a decent grasp of English syntax would read that paragraph, and no evidence was offered that the 1944 law’s drafters meant it that way. But once you’re a judge for life, the rules of language fly out the window, if that’s what you want them to do.
The Supreme Court’s invalidation of Biden’s latest version of the order, which had been amended to target only the parts of the country hardest hit by the virus, relies partly on this same wordplay. But what really makes it interesting is the nakedly ideological terms on which the court’s right-wing supermajority rests its decision in the rest of the opinion.
Charging that the CDC set up the eviction pause “in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination” — a misleading description of the law before you even ask yourself why it matters how old it is — the unsigned opinion goes on to fret about what kinds of harrowing measures the government could compel the private sector to carry out if the moratorium was allowed to stand:
Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?
Such horrors aren’t worth even thinking about.
The opinion also dwells at some length on the plight of landlords. “The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery,” it states. “Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means.” It alludes to the “financial burden on landlords” and charges that “vaccine and rental-assistance distribution had improved since the stay was entered, while the harm to landlords has continued to increase.”
“And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership — the right to exclude,” it concludes. A long-standing part of its view of private property rights, the court most recently used that same right to bar California unions from being able to go onto business premises for three hours a day, 120 days a year to recruit members.
Tenants are mentioned only a handful of times in the opinion, once to dismiss out of hand the idea evicted renters could end up spreading the virus across state lines (even though research suggests that’s exactly what would happen), and several times only in relation to the burden they put on landlords. Somehow, though their task was purely to judge whether the CDC was acting within the letter of the law when it paused evictions as a pandemic-control measure, the court’s “textualists” and “originalists” were mostly preoccupied with whether or not the measure is fair to landlords.
It’s worth noting the remarkable similarity between the rhetoric of the justices’ argument and the arguments voiced last year by ex–Wall Street banker and senator Pat Toomey (R-PA), the former head of the right-wing plutocrats group the Club for Growth, who warned last year that “if the CDC has the authority to force landlords to effectively give away their product for free,” then General Motors could “be forced to give people cars unless they otherwise crowd into subways.” It’s also worth noting that the CDC powers in question are not really limitless: this authority only exists in relation to the pandemic, and few measures are as directly connected to stopping the spread of COVID as stopping evictions.
How absurd is the right-wing justices’ reasoning here? In his dissent, Justice Steven Breyer not only pointed out that were eviction moratoriums used in the past by public health authorities during a pandemic, but even quotes one of the law’s drafters directly refuting the right-wing justices’ contorted reading of the law’s language. In a 1944 hearing on the bill, Alanson Wilcox explicitly told a congressional subcommittee that disposing of “animals and articles” is only mentioned because he wanted “more clearly to provide for it.”
The court’s “textualists” and “originalists” didn’t bother to determine the original spirit behind the language they ruled on, and they didn’t take a plain, commonsense reading of the unambiguous text. They made a brazenly ideological argument with the sole objective of defending property rights, whether that means landlords being able to kick people out of their houses or companies being free from legal mandates forcing them to make deliveries in a pandemic, public health be damned.
Though some have tried to paint this Supreme Court as surprisingly moderate, this is yet another major ruling from what’s already proving to be an extremely right-wing court. In place for life, these partisan justices will for decades be free to keep on deciding cases first and figuring out the legal reasoning later, making decisions based on their ideological convictions that will have vast reverberations for the rest of the country — an unelected “council of elders,” in the words of legal expert Samuel Moyn, who shape law on a whim, with no accountability or oversight. Today, it’s millions of struggling renters who lose out; tomorrow, the world.
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FOCUS: The Media Is Lambasting Biden Over Afghanistan. He Should Stand Firm |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=49998"><span class="small">Bhaskar Sunkara, Guardian UK</span></a>
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Monday, 30 August 2021 10:32 |
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Sunkara writes: "The president was right to withdraw the US from Afghanistan - and he's being skewered for it."
President Joe Biden at the White House. (photo: Win McNamee/Getty Images)
The Media Is Lambasting Biden Over Afghanistan. He Should Stand Firm
By Bhaskar Sunkara, Guardian UK
30 August 21
The president was right to withdraw the US from Afghanistan – and he’s being skewered for it
 hen Joe Biden, a conventional politician if there ever was one, said he was concluding the withdrawal of US troops from Afghanistan this month, in line with plans set in motion by the Trump administration, the response from the mainstream press was hostile. Following the Taliban takeover of the country, the tenor has only grown more hyperbolic.
During the Trump years, publications like the New York Times and Washington Post presented themselves as the last defenses of freedom against creeping authoritarianism. The latter adopted a new slogan, “Democracy dies in darkness”, and spent millions on a Super Bowl ad featuring Tom Hanks extolling the importance of journalism as a profession.
But for all this talk of “defending freedom”, the mainstream media has a history of reflexively defending militarism, foreign interventions and occupations. Biden – who dared fulfil a campaign promise and end America’s longest war – is learning this the hard way.
As Eric Levitz recounts in New York Magazine, the media has created a public backlash against Biden, with outlets like the Times calling the withdrawal a humiliating fiasco. For the New York Times Editorial Board, the two-decade occupation of Afghanistan is described as a “nation-building project” that reflected “the enduring American faith in the values of freedom and democracy”.
Key to the media narrative is the echoing of “experts” on Afghanistan like former ambassador Ryan C Crocker, who wishes in another Times op-ed that instead of bolting after a couple of decades, US troops might have remained in Afghanistan for more than a half-century, as we’ve done on the Korean peninsula. Crocker regrets that “Mr Biden’s decision to withdraw all US forces destroyed an affordable status quo that could have lasted indefinitely at a minimum cost in blood and treasure”.
But as the writer Jeet Heer points out, the status quo was far from “affordable” for ordinary Afghans. The tragic figure of more than 2,000 dead US troops pales in comparison to the more than 200,000 Afghans killed since 2001. Indeed, prolonged civil war has put this year on pace to be the bloodiest for civilians as a failed US client state has overseen plummeting social indicators, widespread corruption and a total breakdown in public safety.
The media had ignored the mounting chaos for years, only to laser-focus on it as a means to criticize Biden. They’ve ignored their own role in cheerleading a misguided “War on Terror” and pinned the blame for two decades of imperial hubris on the president who finally made good on promises to leave the country against the wishes of even some in his own party.
What’s underlying much of the approach is a mainstream media fidelity to “expert” consensus. Many who presented themselves as fierce truth-tellers in the face of Trump hold the opinions of former intelligence and military officials in higher regard than that of a president democratically elected by 81.3 million people and pursuing a policy supported by 70% of Americans.
Not only are corporate media pundits and talking heads wrong to advocate staying in Afghanistan, they’ve been wrong about generations of conflicts that ordinary people have opposed. Contrary to the popular imagination, opposition to wars from Vietnam to Iraq were spearheaded by workers, not the rich and the professional classes that serve them. It’s this general aversion to costly overseas conflict that the president should confidently embrace.
Biden has never been a very good populist. For all his “Amtrak Joe” pretenses, he’s a creature of the Beltway, the ultimate establishment politician. It’s no surprise that his administration appears paralyzed in the face of criticism from its erstwhile elite allies. But unless he manages to push back against the narratives mounting against his administration, he’ll risk undermining his popular domestic agenda as well.
Joe Biden did something good – and the media want to kill him for it. He should embrace their scorn and defend his actions to the American people.
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Vaccine Refusers Don't Get to Dictate Terms Anymore |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=60674"><span class="small">Juliette Kayyem, The Atlantic</span></a>
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Monday, 30 August 2021 08:26 |
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Kayyem writes: "People who opt out of shots shouldn't expect their employers, health insurers, and fellow citizens to accommodate them."
An anti-vaccine march. (photo: John Lamparski/NurPhoto/AP)
Vaccine Refusers Don't Get to Dictate Terms Anymore
By Juliette Kayyem, The Atlantic
30 August 21
People who opt out of shots shouldn’t expect their employers, health insurers, and fellow citizens to accommodate them.
 or months, institutions and companies have been drafting plans to aggressively promote vaccination or require it outright, and last week the FDA gave them license to click the “send” button. The same day the agency granted full approval to the Pfizer COVID-19 vaccine, New York City’s public school system announced that its teachers and other employees will be required to get shots. The next day, Louisiana State University made a similar demand of its students and faculty. Within about 24 hours of the FDA move, other major employers, such as Chevron and Goldman Sachs, rolled out new vaccine mandates. In a novel twist, Delta Air Lines announced that it would impose a $200-a-month health-insurance surcharge on unvaccinated employees. Regardless of the reasons for their hesitancy, unvaccinated employees will literally have to pay for it.
What all of these decisions show is that the adults running major institutions in our society want to move forward, and they are done waiting around for vaccine refusers to change their mind. Outside of executive suites and human-resources offices, plenty of other Americans are also craving more certainty. Bars and restaurants that want to stay open are beginning to check vaccination cards—at least in states where supposedly freedom-loving lawmakers haven’t forbidden private businesses from keeping their own customers and employees safe. Couples throwing weddings are demanding that their guests upload proof of vaccination. These people disinviting their anti-vaxxer relatives are saying something important: Getting a shot to protect yourself and others from COVID-19 is both a social responsibility and the best way to hasten the end of the pandemic, and if you don’t believe that, we’re not waiting around for you to step up.
More than 70 percent of eligible Americans have now received at least one dose. Since January, public-health researchers, news reporters, and pollsters have all tried to unearth the reasons that a significant fraction of American adults have not yet gotten a shot. Some are broadly misinformed; others are afraid of needles or potential side effects; still others are deeply suspicious of the medical system; some have had COVID-19 already and believe that the level of natural immunity they have developed is enough. Some refusers say they definitely won’t get vaccinated; others say they haven’t yet gotten to it. But the specific feelings and concerns of vaccine refusers should be largely irrelevant to vaccinated people who are eager to move on with their lives. Americans are entitled to make their own decisions, but their employers, health insurers, and fellow citizens are not required to accommodate them.
The vaccinated have for too long carried the burden of the pandemic. In theory, unvaccinated people should be taking greater precautions. A recent poll conducted for the Associated Press found that vaccinated adults have been more likely than unvaccinated ones to wear masks in public settings, refrain from unnecessary travel, and avoid large group settings.
Public-health officials can keep trying to figure out ways to persuade the unvaccinated to get shots, and maybe at this late point they can still discover some new message that succeeds where all others have failed. If so, that would be fantastic. But begging is not a strategy. It is not a coincidence that many of the entities pushing hardest for mandatory vaccination are in industries—higher education, travel, entertainment—that have been badly disrupted by unpredictable waves of infection and are existentially threatened by a pandemic that goes on without end.
People in the crisis-management field have made peace with blanket one-size-fits-all policies that some individuals don’t like. When a ship is going down, passengers aren’t given the luxury of quibbling with the color or design of the life vest, and they can’t dither forever about whether to put one on or not. Emergencies invariably force people to make some choices that they might not consider ideal, but asking everyone to get vaccinated against a potentially lethal virus is not a big imposition. Ironically, by talking as if everyone, given enough time, will eventually choose the shot, public-health agencies may have understated the urgency of the matter and invited the vaccine-hesitant to dwell on the decision indefinitely.
Sorry. Time’s up.
The Biden administration could do even more to assist the communities and businesses that are trying to nudge unvaccinated people along. In 2021, paper cards that can easily be lost, damaged, or falsified are an outmoded way to keep track of who has gotten a shot. Even establishments that check their patrons’ vaccination status are doing so in makeshift ways—for instance, by asking patrons to show a driver’s license alongside a picture of their vaccination card on their phone. Some states are moving forward with their own vaccination-verification apps, but the failure to plan a national system will be viewed, in time, as a costly concession to a vocal minority.
Employers are being creative with some of their requirements, creating so-called leaky mandates. Rather than fire noncompliant employees, for example, Delta Air Lines opted for a financial penalty. This approach may make particular sense in industries where a rapid round of terminations will hurt a business’s ability to function. It also acknowledges the free will of vaccine refusers: They can keep rejecting the shot, as long as they accept the consequences.
Up to this point, many employers and medical providers—wary of offending anyone—have been careful to describe vaccination as a deeply personal decision. Vaccination mandates are essentially a recognition that vaccinated people have feelings too, and that the burden of fighting the pandemic shouldn’t be on them alone.
I know, I know: I should try harder to understand the feelings of unvaccinated Americans. Being more patient and empathetic would make me sound nicer. But do you know what’s really nice? Going back to school safely. Traveling without feeling vulnerable. Seeing a nation come back to life.
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Apple Has Changed Its App Store Rules, and Apple's Critics Aren't Satisfied |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=51543"><span class="small">Peter Kafka, Vox</span></a>
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Monday, 30 August 2021 08:20 |
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Kafka writes: "Spotify and Epic Games are still pressing their legal campaigns. Don't expect regulators scrutinizing Big Tech to relax, either."
Apple CEO Tim Cook at the Sun Valley Conference, July 2021. (photo: Kevin Dietsch/Getty Images)
Apple Has Changed Its App Store Rules, and Apple's Critics Aren't Satisfied
By Peter Kafka, Vox
30 August 21
Spotify and Epic Games are still pressing their legal campaigns. Don’t expect regulators scrutinizing Big Tech to relax, either.
 pple, under fire from developers and regulators about the way it runs its powerful App Store, is changing some of its rules, via a proposed lawsuit settlement.
Is that a big deal or a nothingburger?
Depends on who you ask. Apple says it’s giving companies like Spotify and Epic Games, the developer behind Fortnite, something they have always asked for. Those companies and other tech critics say it’s not nearly enough.
And some of the early press coverage of the news is all over the place. “Apple will let developers accept payment outside App Store, in major concession amid antitrust pressure,” the Washington Post incorrectly reported last night. New headline today: “Apple loosens rules for developers in major concession amid antitrust pressure.”
And the real answer is ... this is somewhere in between a big deal and a nothingburger.
But the real story is that scrutiny over the way Apple runs its store, and whether it is preventing companies from offering real competition to both the App Store and Apple-owned services like Apple Music, isn’t going away. If you’re an Apple user who only cares about how much you have to pay for something like Spotify, this might be of interest to you.
And if you’re someone who cares about the power of Big Tech companies to set rules that affect millions of people around the world, it’s also worth watching.
Here’s a quick version of the news: Late Thursday night, Apple announced an agreement with attorneys in a class action lawsuit filed by software developers, promising to “make the App Store an even better business opportunity for developers, while maintaining the safe and trusted marketplace users love.”
There are several elements to the proposed deal — which still needs to be approved by a federal judge — but the most important one is that Apple is giving developers the ability to email customers who use their apps on Apple’s iOS devices, and tell them that they can save money by paying for stuff somewhere other than Apple apps.
The reason that’s meaningful is that up until now Apple, which takes a cut of up to 30 percent of any money developers generate when they sell something via an Apple app, hasn’t allowed developers to tell customers about cheaper alternatives. Now they can.
So Spotify, for instance, could sell a monthly subscription to its streaming service for $13 via an Apple app — but could then immediately email someone who signed up for that service to tell them they could get the same thing for $10 a month if they signed up on Spotify.com.
So now Spotify, which has lodged an antitrust complaint against Apple with the European Union, and Epic, which has sued Apple for antitrust violations in the US, are getting some of what they want: the ability to tell their own customers they can go somewhere else.
But this settlement doesn’t mollify either company. They are pressing forward with their legal campaigns, for multiple reasons: Both of them, for instance, want to be much more direct about how they tell customers they can go somewhere else, by telling them in the app.
Right now, for instance, if you’re an iPhone user who wants to upgrade your free Spotify service to a paid one, Spotify simply tells you that you can’t do that on your app, without any other instructions about how to actually accomplish it. “We know. It’s not ideal,” the service shrugs.
But Spotify’s beef with Apple goes beyond how it can advertise. A major portion of the music service’s complaint is that it has to compete at a significant disadvantage with Apple’s own streaming music service because Apple doesn’t have to pay an App Store tax on its own services.
Epic, meanwhile, wants much more than the ability to steer customers to its own site. It says it wants to run its own app store within Apple’s App Store - and then, eventually, to run its own, competing app store. And Apple wants no part of that.
Meanwhile, other critics argue that even Apple’s email concession may not be that meaningful since it requires developers and users to take a lot of extra steps. Just getting someone to open up a promotional email requires a lot of effort these days; think of your inbox and how much clutter you routinely ignore.
If you’re an Apple advocate, meanwhile, you can argue that developers should be happy with any concession Apple offers because it’s Apple’s store and Apple’s devices and Apple should be able to do what it wants on its own property. If you go to a Walmart, for instance, you won’t find signs saying you can buy Tide for less at Target or Amazon.
Or, more charitably: You can argue that Apple’s App Store has provided developers with a huge market of iPhone and iPad users — “an economic miracle,” as Apple executive Phil Schiller puts it in the Apple press release — and letting Apple set up rules around its own store seems like a reasonable trade.
All of this debate underscores just how much pressure Apple is now under from both developers and regulators, which is quite new. Apple’s App Store was a literal afterthought — it didn’t show up until a year after the iPhone’s 2007 debut — but has evolved over the years into a major distribution funnel for developers, and a real profit center for Apple, likely generating $15 billion in revenue last year. And developers have complained about App store rules for at least a decade.
But Apple didn’t feel any pressure to move on any of this until very recently. Now, though, as regulators and politicians talk about reining in Big Tech in general, they’ve spent some of their time focused on Apple and its store, and whether the company’s rules are too rigid and anticompetitive.
EU regulators have already said they think Apple is violating antitrust rules, though they haven’t made a final ruling. Sen. Amy Klobuchar has made Apple a prime target in her antitrust arguments — she’s co-sponsored a bill that would limit the way both Apple and Google run their app stores. Via her press office, she says last night’s changes won’t be enough:
“As mobile technologies have become essential to our daily lives, it has become clear that Apple, along with another few gatekeepers, have immense control over the app marketplace. This power raises serious competition concerns and impacts consumers and app developers alike. This new action by Apple is a small first step towards addressing some of these competition concerns, but more must be done to ensure an open, competitive mobile app marketplace, including commonsense legislation to set rules of the road for dominant app stores.”
State lawmakers, meanwhile, are ramping up their own challenges to Apple’s rules, and the Biden White House seems very interested in pushing back on Big Tech’s power in general.
Which means this is unlikely to be the last App Store concession Apple has to make. Whether it continues to make incremental changes or makes big sweeping ones will tell us a lot about how motivated and effective Big Tech critics are going to be.
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