Token Dissonance

Black & gay, young & conservative. A Southern gentleman writes about life and politics after Yale


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The Tyranny of Social Justice

“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.” ―C.S. Lewis

airbnb_flickr

Capitalism: The motivating fear that something, somewhere, could be more convenient

New York Gov. Andrew Cuomo recently signed into law a broad salvo for powerful special interests against the less privileged New Yorkers he purports to champion. I’m referring, of course, to the latest instance of grotesque regulatory capture that is the Empire State’s new anti-Airbnb legislation. Put mildly, it has the insidious effect of protecting politically connected businesses—i.e., the hotel industry—from the healthy, consumer-friendly pressures of free-market competition.

To be clear, the chairman of the Hotel Association of New York City, Vijay Dandapani, admits this openly:

“This smart and innovative legislation will allow law enforcement agencies to better target, track, and penalize lawbreakers, while also protecting one of New York’s most vital economic contributors—the hotel and hospitality industry.”

Famed New York hotelier Donald Trump would be pleased.

The usual term for such manipulation of government power to serve special interests is cronyism. New York has a well-documented hostility to the kind of policies that encourage innovation by forcing companies to sink or swim on the strength of the comparative value they provide consumers, rather than the elasticity of their government connections. So, as my college friend Jay Schweikert once said of the 2016 cycle, this development is hardly surprising but freshly disappointing.

But, as C.S. Lewis notes of the worst tyrannies, Cuomo and the New York cronyists social justice warriors don’t just satisfy themselves with the mere fact of regulating away opportunities for the politically disadvantaged. As they seem always compelled to do, these elites invoked the eternal progressive shibboleth of looking out for ordinary people while actually screwing them over.

Democratic Assemblywoman and bill sponsor Linda B. Rosenthal of Manhattan described it to The New York Times as follows:

“New York is taking a bold step that will hopefully set a standard for the rest of the country and other countries in the world that are struggling with the impact of Airbnb on affordable housing.”

 The same article included this telling contextualization of a statement from Cuomo spokesman Rich Azzopardi:

Regulators and affordable housing advocates around the world worry that Airbnb is making it easier to illegally rent out apartment units for short stints to travelers, taking units off the market for full-time residents and driving housing costs higher. Mr. Azzopardi said that illegal rentals “compromise efforts to maintain and promote affordable housing by allowing those units to be used as unregulated hotels.”

If you simply took the Times reporting and New York officials’ statements at face value, you might be inclined to think state leaders had scored a victory of some merit against rapacious corporate powers. But this willful legerdemain disguises two severely inconvenient but highly relevant truths. First, the new law imposes steep fines, not on Airbnb, but instead on ordinary people, like you and me, who advertise openings through the service. (A federal lawsuit argues this is illegal and unconstitutional.) So if you want to fill some empty beds in your place to help pay your rent, you could get slapped with a $7,500 bill from a government that ostentatiously pretends to fret that your cost of living is too expensive. Second and relatedly, Airbnb, unlike the hotel industry, provides flexible income and economic opportunity to people who can’t afford lobbyists:

The politicians are responding to hoteliers and unions that claim that mini-Donald Trumps are buying up properties and renting them as “illegal hotels.” This doesn’t check out: More than 95% of New York Airbnb hosts sharing their entire home post only one property, and the company last year yanked roughly 3,000 illegal listings out of some 44,000 in New York. The hotel industry also riled up some affordable housing groups to say that Airbnb is driving up the cost of rent. One irony is that more than three-quarters of hosts say that sharing their space helps them pay rent.

The real complaint is that Airbnb is unwelcome competition, and here’s how you know: The company already offered Empire State regulators everything they claimed to want. Airbnb said it would ban New York hosts from renting more than one property; require online registration for hosts; ban users who break policies three times; and collect state taxes so that hosts couldn’t cheat. That’s right: Airbnb wanted to help New York dig up more revenue.[…]

This is a classic restraint of trade, and all the more odious that it will hurt the people Democrats claim to champion. Airbnb points out that hosts in zip codes with the highest percentage of black New Yorkers earned $43 million from rentals in 2015, and that more than 21,000 millennials host an Airbnb property.

The astute observer will note that progressives imposed exorbitant housing and hotel prices on Airbnb users, many of them lower-income minorities, from New York to San Francisco, long before modern technology made Airbnb possible. The progenitors and supporters of these regulatory labyrinths almost certainly had the best intentions in maintaining policies that keep rents high and undercutting innovation, like Airbnb, that helps people pay those rents. But as famed paleontologist Dr. Alan Grant reminds us, some of the worst things imaginable have been done with the best intentions.

A similar dynamic played out with the curious story of ridesharing services in the notoriously progressive metropolis of Austin, Texas earlier this year. The taxi industry in the Lone Star capital pushed through a package of onerous regulations, including fingerprinting requirements for drivers (who are already subject to background checks), in the guise of promoting “consumer safety,” a “level playing field,” and other anodyne lies. In reality, the rules undercut Uber and Lyft’s ability to operate efficiently and compete with taxi companies in the city. Incidentally, the new security requirements were about as conducive to safety as the TSA, with comparable downsides for minorities. Brishen Rogers sums up the point well in a white paper for the UChicago Law Review:

[Background] checks are no panacea. As the Equal Employment Opportunity Commission (EEOC) has emphasized, background checks have limited predictive value and can have a disparate impact on minority drivers. More generally, however, there is no indication that criminal law will not deter assaults just as well in Uber cars as it does in taxis. In fact, criminal law may work far better, since any passenger who suffers an assault by an Uber driver will actually be able to identify their driver. Not so in a street-hailed cab.

Rogers goes on to note, among other things, that ridesharing companies’ transparent ability to track data on driver and passenger interactions afford Uber and its peers the ability to combat the rampant racial discrimination for which taxis are notorious. But notwithstanding all that, the taxi industry succeeded in chasing Uber and Lyft from Austin, and 10,000 drivers  who benefited from flexible schedules and supplemental income, as even famed Obama loyalists acknowledge, were effectively pink-slipped.

For those keeping score: progressives who claim to value consumer safety, non-racism, accountability, economic security, and equal opportunity directly favored an allegedly racist industry with weaker mechanisms for accountability by reducing economic security for thousands of people through diminished opportunity without making anybody safer. The taxi industry’s expulsion of ridesharing from the second-largest state capital in the country is primarily a blow against the members of and aspirants to the city’s middle class who benefited from a boon in transportation choices.

That cronyism for progressive donors (in this case, Big Taxi) made for effective manipulation of progressive voters’ obsession with good, social justice intentions (to drive out competition for those donors) to achieve harmful results (see above) is how the game works.

great-white-to-the-rescue

“I shop at Whole Foods, and I’m here to help!”

The treacherous campaigns against the sharing economy are reminiscent of Obamacare springing from its Trojan fact checks and administrative lies to torch Medicare recipients and the besieged middle class with catastrophic deductibles and coercive spikes in costs. Obamacare, the exclusive product of “economic justice” warriors and the progressive donor class, saved its worst for the little guys who can’t afford progressive elite’s sanguine abstractions about a poor product and growing suffering. But, as with everything else, we are to believe this cratering fiasco is good for the people it mobs. Apropos, Matthew Yglesias at Vox (because, of course) argues the solution to Obamacare’s rising premiums is stiffer penalties on cash-strapped folks who lost their former plans and can’t afford the mandated new ones.

As technology improves and ambitious entrepreneurs develop more disruptively valuable products and services, the friction between legacy industries and innovative market paradigms will only increase. Desperate but well-connected benefactors of obsolescing fiefdoms will ever more rapaciously seek to restrain the economic progress that would subdue them. They will always claim to champion the interests of the very constituents they ravage for their misbegotten sustenance, as taxis and hotels cannibalizing the income of their once-emancipated subjects. But either progress will devour the dependents of cronyism, or the restraints will nibble away at the powers that impose them.

Someday, perhaps, New York, Austin, Washington, and other locales will have leaders who understand this—and make the right call.

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A Ballad of Fallen Choices

“O thou man of God, there is death in the pot.” –2 Kings 4:40

“But as for you, ye thought evil against me; but God meant it unto good, to bring to pass, as it is this day, to save much people alive.” –Genesis 50:20

"Whether they're a disposable clump of cells or viable human life with intrinsic human rights, what difference, at this point, does it make?"

“Whether they’re a disposable clump of cells or viable human life with intrinsic human rights, what difference, at this point, does it make?”

Long ago, in another era of acrimonious government, there was something of a moral (or at least political) consensus in America that held the willful destruction of a human life, whether developing in the womb or already bequeathed into the world, to be a terrible act. Among conservatives and a great many liberals and independents, this conviction manifested in the pro-life movement. For Bill Clinton’s Democratic Party, the homage that abortion advocacy paid to life, even as the once and would-be future First Family barred a prominent Pennsylvania Democrat from that party’s convention for his pro-life views, was the now tatterdemalion campaign facade of, “Safe, Legal, and Rare.” Even Barack Obama echoed that throwback mantra as recently as 2010.

Whether 2016 presidential candidate Hillary Clinton will maintain the old formulation or condemn it with the extreme prejudice she has shown so many of her husband’s political stances remains unclear. After all, it has been absent from the Democratic Party platform since the Obama era, to the bemusement even of Democrats who consider themselves “pro-choice but not pro-abortion.” Yet it seems that pro-choice and pro-abortion activists are marching “forward” and taking public offense at the once quotidian supposition that abortions should be rare.

Whether the formerly bipartisan moral consensus among the officeholders, activists, and Very Serious People of those antediluvian, “fewer abortions, please” days was genuine or an instrumental facsimile maintained and then terminated for political expediency is anybody’s guess. But in any case, though public opinion on abortion has not changed much in decades, the ancient consensus has gone the way of the nephilim.

Nowadays, the strident champions of unfettered abortion access cannot even, as my home-state lawmakers discovered recently in Tallahassee, acknowledge that a child who survives a botched abortion should receive medical care rather than be killed should either mother or doctor wish it. The Chairwoman of the Democratic National Committee even went so far as to fein insult at the contention that a fully-formed, almost-born baby should not be dismembered. Somehow, it seems that defending the notion that unborn children who could survive outside the womb should not be summarily killed is enough to trigger liberals to cry havoc and beckon the dogs of the so-called “war on women.”

This all brings us to my friend Josh Hammer, who is a law student and Federalist Society member at the University of Chicago. We do not agree on everything (well, actually, we agree on most things, but all that philosophical concordance is less interesting to talk about), but I have always found his impressively bookish legerity to be rivaled only by his assertive passion for conservative values. As any self-respecting citizen (and academic) ought to be, Josh is intellectually curious and eager to engage with people who disagree with him. So he went to a campus event featuring a late-term abortion provider to discuss that provider’s contention that his Christianity inspired his peculiar line of work.

To summarize what transpired: Josh refused to shake the man’s hand before engaging in respectful if heated conversation, was chastised by pro-choice activists, and then found that a heated argument he had with another attendee over his presence had been publicly broadcast in a naked attempt to shame him and potentially assault his employability. Because, apparently, it is a newsworthy horror that a Jewish law student would argue the case of the majority of Americans who oppose late-term abortion (likely out of a general opposition to killing innocent children) to a late-term abortionist speaking on campus.

It is understandable that some would tut-tut Josh’s refusal to shake the hand of the late-term abortionist—after all, Winston Churchill (one of Josh and my heroes) famously said of his decision to employ full diplomatic courtesies in conveying a declaration of war to the Japanese ambassador in December 1941, “When you have to kill a man, it costs nothing to be polite.” Of course, Josh is not the killer in this situation, and it is far more impolite to attempt to professionally ruin a disagreeing interlocutor than it is to spite a hand that exalts in the abolition of the unborn with claims of divine inspiration.

It is likewise rather indecent to prestidigitate away the gruesomely rational line from late-term abortion to “after-birth abortion” (otherwise known as infanticide) when pro-choice extremists and their Democrat enablers (like Barack Obama) are, as mentioned earlier, assailing laws that would protect infant survivors of abortion. One almost wonders how long it will be until these enlightened advocates of “reproductive freedom” push to reclassify Sudden Infant Death Syndrome as “after-birth miscarriage.”

But since we are being polite, it costs little to charitably posit that Josh may have done something or other worse in more than a quarter century of life than refuse to shake the hand of man he believes, not unreasonably, to be a murderous religious fanatic—and many of those worse things would probably still not merit public spectacle or professional ruin. To be certain, any opponent of religious extremists killing with impunity because “God said so” should give pause before condoning, let alone celebrating, the work of a man convinced that his God of Life has called him to the grotesqueries of destroying any unwanted human children right up until—or even after—emergence from a uterus.

What skeptics and opponents of unfettered abortion should take from Josh’s ordeal is that where extreme pro-choice activists cannot avail their fanaticism against public opinion, the federal Capitol, or in most state houses, they will endeavor to overwhelm their opposition through the sociocultural cache of the Democratic Party and the elite forces—from major media outlets to law offices—that can be cowed into obeisance.

They cannot be allowed to succeed. The lives, rights, and integrity of future generations may well depend on it.


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A (Borrowed) Time to Build

“Because every time you see them happy you remember how sad they’re going to be. And it breaks your heart. Because what’s the point in them being happy now if they’re going to be sad later. The answer is, of course, because they are going to be sad later.” –The Eleventh Doctor

"Don't you know? The sun's setting fast!"

“Don’t you know? The sun’s setting fast!”

I was happy on Election Day. I’ve been positively elated all week, in fact, as it’s been a good time to be a Florida Republican. After all, the Gators devoured the playoff hopes of Georgia in a cathartically stunning upset on Saturday, and then our governor rallied to defeat Alcibiades Charlie Crist in a race that many suggested was lost. As a Republican in general, our candidates won the “War on Women” from Texas to Colorado, and we’ve grown and diversified our bench so enormously in the blue and purple states as to allow, as several have put it, for the GOP to essentially be America’s governing party (in the literal sense that Republicans will be doing most of the governing).

But amid all the anguish and mythomane ire arising from the emaciated dreaming of the other side, a progressive friend demanded perspective via a Yahoo article posted on Facebook. To be sure, the author’s liberal 2016 analysis is rather bullish on Democratic chances; it’s not particularly likely, for example, that a depleted Florida Democratic bench will knock off a popular GOP incumbent in a state Obama barely won. And his point about minorities skipping the midterm is belied by the evidence that 2014 featured the second-most diverse electorate in American history (ahead of 2008), and Republicans from Virginia to Nevada simply did better among various segments of minority voters.

Still, the author’s basic point, that Republicans will face daunting odds in 2016, is well taken. Indeed, I have been talking about that very concern with my tea-partying boyfriend and our conservative cohorts since Heidi Heitkamp kept the Big Sky blue in 2012. It was a reason why it was so essential for Republicans to run up the Senate score this cycle, so as to allow for as much cushion as possible ahead of the next one. (For this reason, the collapse of Terri Lynn Land in Michigan and ultimate failure of Scott Brown and Ed Gillespie to add a 55th seat makes already for bitter reflection.) Yet, oddly enough, acknowledging and contemplating the presidential-year challenges in the offing can and should afford us a curious sense of peace.

We are living on borrowed time. Every Christian—and probably many a Jew or Muslim—hears permutations of this truth from the pulpit with urgent frequency. Such grounding Solomonic perspective—that none of this will last—is an essential understanding for seeking proper order in life, and it is likewise vital a perspective for seeking proper order in politics. As former Indiana congressman and current Club for Growth president Chris Chocola noted, Democrats have poignantly demonstrated a capacity for this perspective. They made the conscientious decision that healthcare reform, among other things, was worth sacrificing their majority to the cleansing tsunami of public indignation, and we are all suffering the consequences of that fanatical conviction today.

If there is anything Republicans should learn from progressives like Nancy Pelosi (and there isn’t much), it’s that at some point you have to stop running for the next election and resolve to actually enact an agenda. Obviously, the Democratic Party will retain the White House through the duration of this Congress, and the number of moderate Democrats who can be relied upon to seek compromise has taken a hit. But for the governing party, those ought to be challenges to be met, not excuses to be doled out ahead of a perpetual chase for the next election.

That 2016 is a probable no-win game for Republican candidates is all the more reason to change the game. Conservatives have two years to develop and refine a robust governing agenda that we can take to voters for consideration. We have promising goals we can seek with President Obama on broad-based, revenue-neutral tax reform, trade negotiations, and mitigating the worst excesses of Obamacare. We also have places where Democrats will refuse to support better policy proposals that might enrage the far Left; some will be useful to enact in the many states we control, ahead of a national referendum on our functional ideas.

Over at National Review, Yuval Levin puts it this way:

“To do that well, Republicans will need to understand and to describe their efforts in these terms—to be clear that they are working to set the right agenda rather than that they are trying either to ‘prove they can govern’ from Congress alone or to ‘sketch clear contrasts’ with a president who will never be on the ballot again. Understanding their role as putting forward an agenda and pursuing it would help Republicans do both of those things while helping them avoid unrealistic expectations about either.

The key difference between the divided congress we have had and the divided government we will now have is that Republicans can now set the agenda, require Democrats to vote on the best of their ideas, and see which of them Democrats might agree with enough (or find painful enough to oppose) to actually bring them to fruition. That doesn’t mean that lots of Republican ideas get enacted, or even reach the president. The filibuster will prevent that. It means, rather, that those ideas get killed in Senate votes instead of getting killed by the Senate’s unwillingness to vote. And that’s a significant difference, because it puts both Republicans and (for the first time) Democrats on the record in a meaningful way.”

Ed Gillespie took this mindset to heart when he combined aggressive organizing and campaign discipline with the critical decision to present voters an intelligible vision of better leadership. Facing a daunting challenge that many in his own party (me included, though I did make sure to vote for him) considered essentially stillborn, the Virginia Republican was one of the few candidates on either side to present a detailed healthcare proposal that would offer better outcomes than Obamacare, along with a five-point economic plan for growth. For all this, the grossly underfunded challenger came within a point of slaying a Goliath in a race he was supposed to lose by a double-digit margin.

Whether or not we’re able to hold the Senate in 2016, our focus should be highlighting, selling, and, achieving the conservative victories that we can while we can. The conservative movement has no use for majorities that exist in perpetual obeisance to the continual, pusillanimous pursuit of electoral power for its own sake. Even if we do everything right, we might well encounter a measure of defeat in two years, because the map is simply not in our favor. But rather than fretting over what we cannot change, we should thoroughly embrace the challenge before us for the opportunity that it is. It is with such a spirit that conservative leaders like Scott Walker, Rick Scott, and Rick Snyder fought the odds for worthwhile reforms that would endure even if their tenures in office were cut short. That such leaders survived to fight another day should not undercut the key lesson of their examples—fight for conservative governance, and leave something valuable that will politically outlive you.

For the next two years, we can either play to win big or fade into the reclining opposition-party battles of the Obama years. I, for one, am happy now because we may again know frustration, disappointment and presidential petulance later. But if this cycle has shown us anything, it’s that nothing is inevitable or settled until all the votes are cast.


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The Talents of Christian Vocation

“Wherefore by their fruits ye shall know them.” –Matthew 7:20

Mene, Mene, Tekel, Upharsin…

Mene, Mene, Tekel, Upharsin…

In the wake of the Hobby Lobby case, which has been decided by the U.S. Supreme Court narrowly affirming the codified rights of people who lead closely-held corporations, the once steadfast commitment on the Left for religious freedom appears to have all but collapsed. My friend Yishai Schwartz in the New Republic blames this liberal apostasy on the excesses of conservative opposition to Obamacare.

Commentary Magazine’s Seth Mandel dutifully addresses the undercurrent of victim-blaming that transmogrifies Schwartz’s insightful observation into a distressing bit of progressive apologia—after all, what were the owners of Hobby Lobby, their peers, and supporters to do? Void their actual conscience in the name of abstract “conscience protections”? Aggressively police the partisan media narrative of a case they could never hope to control?

Among many avowed progressives, Ruth Bader Ginsburg’s acerbic dissent (the core of which was joined only by Justice Sotomayor) is something of a new Gospel of slippery slopes that the majority has now unleashed in the name of God. Of course, Ginsburg’s parade of horribles is exceedingly disingenuous and painstakingly countered in the very ruling she contests, but we’ll come back to that point soon.

Like many of Ginsburg’s dissenting fans, Jonathan Merritt, who has profited handsomely from his public Christianity, shores up the rising progressive consensus against religious liberty by attacking the notion of Christian businesses. He has made the following point repeatedly, in famously hostile faith-friendly media like MSNBC, before and since the Hobby Lobby decision:

“Additionally, conservative evangelicals believe that a Christian is a person who is actively engaged sanctification, the process of becoming more holy. They accept that this process is accomplished by the work of Christ through the indwelling of the Holy Spirit. But a corporation can neither accept Christ nor be indwelt by the Holy Spirit.

So if someone (or something) can claim the label “Christian” without repentance, belief, salvation, or sanctification, what is left? Or put a finer point on it, what makes a corporation “Christian” exactly?”

It almost goes without saying among the faithful that this liberally secular misconception of how many Christians view their work is precisely backward. Ironically, Merritt touches on the reason behind this truth in his attempt to deny it:

“If the Bible is your ultimate guide, the only organization one might rightly term “Christian” is a church. And this is only because a church in the New Testament is not a building or a business, but a collection of Christian individuals who have repented, believed on Christ, and are pursuing a life of holiness.”

For Christians who have “repented, believed in Christ, and are pursuing a life of holiness,” obedience to God permeates every aspect of life, from the rearing of children to the vocations by which we serve our neighbors, promote the Gospel, and support our families and communities. It is profoundly unchristian to suggest that born-again believers ought to abandon the Word at the precise point at which they gain the ability to minister to the unbaptized world at large.

This very point is arguably at the heart of the parable of the talents in Chapter 25 of the Gospel according to St. Matthew. To start with the obvious, the Lord pointedly rewards the servants who turned a profit on the talents he invested in them for the fact that they turned a profit in his honor. As for the non-profit(able) servant, the Lord also had a lesson (Matthew 25: 26-28, NJKV):

“But his lord answered and said to him, ‘You wicked and lazy servant, you knew that I reap where I have not sown, and gather where I have not scattered seed. So you ought to have deposited my money with the bankers, and at my coming I would have received back my own with interest. Therefore take the talent from him, and give it to him who has ten talents.’”

Before we go any further, let me be clear that I am not not engaging in a theological debate on New Testament hermeneutics. This parable, like any other, is open to all manner of interpretation and moralizing, and individuals in different denominations reach different conclusions for divergent reasons. I bring this parable up only to shore up what many a conservative (or liberal) Christian already knows—one’s vocation (whether in a closely-held for-profit company or otherwise) is often an extension of the ministry of one’s faith, and the economic and political compartmentalization that seems so natural to some (particularly secular) folks strikes many a true believer as a Petrine exercise in denying Christ.

Put simply, it is useless and unproductive to dismiss the faithful to an extraneous audience by progressively “mansplaining” their own beliefs to them. The real issue in this case is whether we, as a nation, will value and protect religious freedom, or not.

Here we should note that, contrary to what some might like to pretend for partisan—or perhaps ingenuously obtuse—reasons, Antonin Scalia’s Employment Division v. Smith decision profoundly limiting the prerogative of religious objection to generally applicable laws remains binding constitutional precedent. That precedent is not abrogated because the Court has now acknowledged the current government’s actions run afoul of a duly enacted law of Congress (the Religious Freedom Restoration Act) long understood—and demonstrated, even under the Obama administration—to protect religious rights beyond the point of incorporation.

For the proof, let us go to the ruling. In the first place, there is a test for how religious freedom claims are to be evaluated for exemption:

“The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicabil- ity” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.””

And lest you get caught up, as is fashionable, one the term “person,” the majority notes (my emphasis):

“HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as corporations. RFRA’s text shows that Congress designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,” but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them. Pp. 16–19”

In case your objection, like Merritt, is over whether a corporation is for- or non-profit (and here let us remember, as Schwartz notes, that churches, newspapers, schools, and other charities are all corporations), the justices also have an answer:

“HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby, and Mardel because they cannot “exercise . . . religion.” They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofit corporations. And the profit-making objective of the corporations cannot explain it because the Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown, 366 U. S. 599. Business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understanding of the “exercise of religion” that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877. Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners’ religious principles. Pp. 20–25.”

But, Smith! you (and Ginsburg) say, noting its appearance in the prior passage:

“Also flawed is the claim that RFRA offers no protection because it only codified pre-Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit corporations. First, nothing in RFRA as originally enacted suggested that its definition of “exercise of religion” was meant to be tied to pre-Smith interpretations of the First Amendment. Second, if RFRA’s original text were not clear enough, the RLUIPA amendment surely dispels any doubt that Congress intended to separate the definition of the phrase from that in First Amendment case law. Third, the pre-Smith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, suggests, if anything, that for-profit corporations can exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide very broad protection for religious liberty, merely restored this Court’s pre-Smith decisions in ossified form and restricted RFRA claims to plaintiffs who fell within a category of plaintiffs whose claims the Court had recognized before Smith. Pp. 25–28.”

The majority even goes so far as to assume the prerogative of the government to mandate cost-free contraception:

“The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA. Pp. 39–40.

(2)The Government has failed to satisfy RFRA’s least-restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests. Pp. 40–45.”

Taking into account all of Ginsburg’s objections faithfully, the majority nonetheless observes that existing U.S. law—not the Constitution, mind you—requires more accommodation of the religious beliefs motivating closely-held corporations, whatever the profit motive, than Obamacare’s unelected regulators allowed. (Here we should note that Justices Kagan and Breyer pointedly renounced Ginsburg’s musings against RFRA’s protections for profit-making corporations.)

And let’s be clear, as the President would say, that the Obama administration essentially argued that closely-held corporations should be forced to fund everything from non-kosher products (whether Jewish or Muslim) to late-term abortions to assisted suicide were government bureaucrats to mandate it. If opponents of this ruling are fine with that reasoning, they should say so openly and clearly.

As for the supposedly slippery slope, the majority notes the slide is actually quite sticky (my emphasis):

“The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

… HHS analogizes the contraceptive mandate to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer… We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” 455 U. S., at 260. Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” Ibid. We observed that “[t]he tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.” Ibid.; see O Centro, 546 U. S., at 435.

Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes.”

So contrary to what you may have heard, contraception is and will be no less accessible now than it was just two years ago. Corporations, like individuals, will still generally and broadly be compelled to follow laws. Women, gay people, nonbelievers, and so on will be no more oppressed tomorrow than they were the day before yesterday. And the Supreme Court is not in the business of legislating the hyperbolic political grievances of the Left (or the Right). The only legitimate grounds for opposing this ruling is either because one believes, as Breyer and Kagan do, that the contraception mandate passes the RFRA test (an understandable disagreement) or because one outright opposes RFRA.

If Democrats honestly now believe the once bipartisan consensus for protecting religious freedom—forcefully promoted by such disparate voices as Orrin Hatch and Ted Kennedy (who explicitly endorsed the two-part RFRA test Justice Alito quotes in the majority decision)—is analogous to Apartheid and Jim Crow, or comparable to slavery and segregation, then they should act accordingly. As New Jersey Republican Gov. Chris Christie helpfully noted in his principled  evasion of a response to the Hobby Lobby ruling:

“When…your Supreme Court makes a ruling [you] gotta live with it, unless you can get the legislative body to change the law or change the Constitution.”

If liberals and progressives are willing to admit their opposition to RFRA and campaign accordingly, then I, like many a conservative, welcome the opportunity for honest debate about American values and sound policy in the modern era. Otherwise, all this Ginsburg-fueled partisan mendacity is little more than a tale told by an idiot, full of sound and fury, signifying hackery nothing.


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Our Neighbors’ Keepers

“We look at clouds. We dream of machines.” –Kevin Williamson

xkcd honest_1146

“How about we go back to that ‘madder than hell‘ line? That work?”

Back in college, I used to spend a few evenings a week with a set of philosophically or politically inclined peers in the constituent parties of the Yale Political Union. With wooden gavels, pedantic snark, and occasionally insightful wit, we would debate questions big and small about the nature of rights, duties, citizenship, morality, education, faith, reason, and an innumerable host of ideas about the world, its foundations, and our place in it all. While those bright college nights are long behind me, I had the recent pleasure of attending a facsimile of the old debates, when a number of my friends in the D.C. area opted to borrow from that format to explore our ongoing disagreements out in the “real world” for the edification of all involved.

The debate topic, “Every dollar spent on dog food is taken directly from the mouths of the poor,” allowed for vigorous dispute and concurrence on, among other things, the nature of ethics, duty, charity, and love, wherein even those on the same “side” of the resolution found many thoughtful occasions for profound disagreement on underlying principles. By the end, we even had some attendees rethinking their outlook on life and resources, as one should expect from a good conversation.

One particularly resounding strain of thought dealt with how profoundly difficult it is to sincerely help people. Many who fall upon hardship have not fully grasped how they stumbled into their peculiar circumstances, nor are they always aware how to identify or resolve the weight of their own affliction. Indeed, the best means to support those in need—whether the economically destitute or damaged souls in the bodies of the well-to-do—are often realized through an ongoing engagement built on persistent humility through trial and error.

Providing the love or innovation that rebuilds broken lives is, in short, an intensely personal and organic engagement, rather than a bureaucratic and mechanical one.

The value of such constructive familiarity is the ability to deliberately understand and influence the individuals and communities affected by your actions and be deliberately understood and influenced in turn. It is this dynamic rapport that allows for, as my friend (and debate attendee) Leah Libresco puts it, neighbors (in the metaphorical sense) who understand what to offer each other beyond whatever initial attempts at charity may awe or falter. Likewise, it is the inevitable lack of such rapport that consigns distant, centralized administration to its trademark unresponsiveness—i.e., the inability to adequately identify, learn from, and remedy mistakes before they become disastrous.

We can see the gangrenous limbs of this truth rotting throughout the impermeable labyrinth of ambitious public policy. The old liberal conception of the welfare state, a degraded simulacrum of communal investment in the most vulnerable of us, ravages communities unabated and still facilitates entrenched social dysfunction. The ongoing scandal with the Department of Veterans Affairs has shown that, despite the best laid schemes of donkeys and elephants, the federal government of the United States cannot even, as Kevin Williamson notes in National Review, “ensure that its own employees and contractors do not negligently kill its other employees and former employees.” This dark realization about the VA’s grotesque inadequacy is all the more unsettling against the backdrop of state governments’ inability to manage even the presumably simpler task of operating Obamacare’s online exchanges.

And lest we forget, liberals once held up the VA as an exemplar of “actually socialized medicine” to be instructive for Obamacare In the words of Vox founder and progressive “wunderkind” Ezra Klein:

“If you crudely ordered America’s different health-care systems from least government control to most, it would look something like this: individual insurance market, employer-based insurance market, Medicare, Veterans Health Administration (Medicare is single-payer, but VA is actually socialized medicine, where the government owns the hospitals and employs the doctors).

If you ordered America’s different health systems worst-functioning to best, it would look like this: individual insurance market, employer-based insurance market, Medicare, Veterans Health Administration.

That symmetry should get more attention in the health-care discussion than it does.”

Given the kinship of government control between “the healthcare discussion” that produced Obamacare and the “socialized medicine” of the VA, we should certainly have that discussion Klein wants. To start, let’s glance at the federal-run healthcare exchanges in my native Florida, where Obamacare-compliant plans are facing complaints with the Office of Civil Rights at the Department of Health and Human Services for discriminating against customers with HIV. In Klein’s triumphant ranking of “America’s different health systems [from] worst-functioning to best,” where do these results fall?

Not that along ago, the critics of Obamacare pithily expressed their Big-Government skepticism by asking, “Do you want to put the folks who run the DMV in charge of your health care?” Now, in Florida and elsewhere, the more sobering realization is that the folks at the DMV may be among the best of a system that, at its worst-functioning, enables fecklessly homicidal bureaucracy in a Cabinet-level department.

(Sadly and predictably enough, the homicidal healthcare bureaucracies of “actually socialized medicine” are not unique to the United States).

Whatever your opinion of President Obama—and it is hardly a secret that I’m not a fan—the problems plaguing the VA are less about his failings (which are legion) than the flaws inherent to so vast and impersonal a would-be “neighbor” as the federal government. It is inestimably difficult to help people, especially in ways that will meaningfully better the trajectory of their lives and ennoble the good neighbors in their interdependent networks. While the recent failings of government “beneficence” naturally call to mind one of President Reagan’s more famous lines, I will instead note another insightful observation from the aforementioned (and –quoted) Kevin Williamson (emphasis his):

“It will not occur to very many of the people with a strong emotional stake in that debate that it does not matter whether we choose x or y if that is the beginning and end of the conversation. There is a prior conversation that must take precedence, one in which we answer a more fundamental question: How confident should we be that our policies will produce the desired outcomes?

[…]

Not every regulation or government program is doomed to fail. But we might consider the slightly terrifying possibility that when government does get something right, it does so by accident, temporarily, and for reasons that it cannot understand or replicate. This may be why the sheer volume of law and regulation has been climbing so rapidly: Intuiting its own inefficacy, Washington is throwing everything at the wall and seeing what sticks… We’d be far better off paying veterans’ medical bills out of the Treasury than trying to operate a network of hospitals and clinics. And no matter what Washington promises to do to solve this problem, it is a good bet that the policy enacted will not produce the result intended. Reform is a random walk.”

As much as we might like to believe otherwise, the government cannot and will not respond to us as one with a stake in our well-being. Whatever the dreams and competence of its necessarily ephemeral leaders, the Leviathan is simply too distant, labyrinthine, and self-involved to evolve with the self-interested rapidity of a private business, or the soulful agape of a longsuffering neighbor.

Thus is the eternal life of government programs.


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Winners & Losers

“The problem with socialism is that eventually you run out of other people’s money.” –Margaret Thatcher

But I'll settle for laws that ruin yours instead.  Somebody wins!

But I’ll settle for laws that ruin yours instead. Everybody wins (except you)!

If you’ve read This Town or one of its many reviews, or—heaven help you—you live inside the Capital Beltway, you’re comically and/or intimately familiar with the ethanol-rich flow of our capital’s lifeblood: the parties (here defined as social gatherings lubricated with intoxicating refreshments). We throw them for any and every possible occasion—holidays, birthdays, Thursdays, candidate debates, vote counts, the State of the Union, the Response to the State of the Union, federal government shutdowns, federal government re-openings, days that aren’t Thursday, etc. I’ve been to many an event that started because somebody found a bottle of wine in or around the fridge. (Protip: There is always a bottle of wine or spirits in the vicinity of a D.C. fridge.)

A recurring topic at recent parties has been the incredible rollout of Obamacare, which has been so remarkable as to warrant a mellifluous shout out from none other than Brad Paisley (a recurring feature in Obama’s White House) and Carrie Underwood at the Country Music Awards. Beyond the usual allegations of racism against anybody who criticizes anything Democrat-related, one of the recurring themes of reaction to the unaffordability of the Affordable healthcare has been to impugn the intelligence, morality, or priorities of those complaining about losing their plans.

One element of this approach is the classic Nanny-State offense: people are upset because they don’t know what’s good for them. President Obama pioneered this argument in early attempts to retcon “context” into his lie malleable promise that we could keep our health plans if we wanted them. The New York Times (D-Acela) caught the Hail Mary and ran with it, backed up by other liberal media. A number of my liberal friends have taken up this talking point by, among other things, somewhat-rhetorically asking what government-determined minimum provisions our pre-Obamacare plans lack. (They have generally avoided the awkward fact that many of these “better” plans actually offer worse coverage.)

The obvious rejoinder to this contemptible rebuke is that we dissatisfied taxpayers are grown men and women who are perfectly capable of deciding whether or not our current health plans suit our needs for prices we’re willing to pay. Nobody feels sorry for millionaires like Dylan Ratigan having to pay a few thousand dollars more for anything. Reasonable people do take umbrage at the idea of 60-year-old women paying out the nose for worse care they didn’t want. If I happen to be wrong about that, I eagerly await the Escalating Costs Affordable Household Act, in which the government will let us keep kick us out of our cars and houses because they don’t have 360-degree cameras or come with income-determined subsidized children cared for by live-in vegan housekeepers provided by the IRS.

A second element is one championed with didactic persistence by the likes of Greg Sargent, Ezra Klein, and other liberals: lots of not-remotely-rich people have to pay profoundly more for (worse) coverage because it helps the poor and elderly, and that’s worth the inconvenience suffered by those who were promised no inconvenience. When I bemoaned the fact that the cheapest ACA-compliant plan my insurer could offer me—a very not-rich twentysomething just a couple years out of college—would nearly double my premiums and hike up my deductibles (while offering me “benefits” I could never use), a number of my liberal friends echoed pro-ACA media in talking up the reasons why the higher costs for people like our friends (of all and no political persuasions) and me were necessary.

The rejoinder here became obvious through a question I publicly asked one of the defenders: “Are you paying for your own healthcare?” The answer, if it isn’t predictable, was: No.

And there’s the rub.

Many fine soliloquys and ostensibly thoughtful discussions of the many sacrificing for the few, the “better-off” investing in the “worse-off,” the “haves” doing their duty by the “have-nots” spring from the mouths and fingers of people who will not themselves have to sacrifice anything. It’s all well and good for New York Times editors, Washington Post columnists, MSNBC program hosts, or young liberals on plans provided by large employers (whose mandate was delayed) or their parents to wax poetic about the need to appreciate the “success stories” of Obamacare and accept the “tradeoffs” of the beleaguered middle as a regrettable price for progress because they—liberal professionals and professional liberals—are not (yet) paying that price.

It’s great that the president finally apologized for making losers out of millions of people through his not-so-Affordable Care Act and lying about it. But his contrition, even if sincere, is not terribly reassuring. It will not resolve the financial struggles to which he has consigned us “losers,” nor does it even suggest a commitment to concrete reforms that will alleviate the price the professional Left knows only in allegory. The liberal, pro-Obamacare people who are paying that price are largely shocked and appalled, as I noted in an earlier post.

Perhaps those liberal “losers” will now appreciate the tongue-in-cheek descriptor on my friend Ryan Fazio’s Twitter account: “One day I hope I’m rich enough to be a Democrat.”

Unfortunately for us, most of the government is run by people who are more than rich enough to be Democrats or more than well enough connected to avoid the consequences of Democratic “tradeoffs.” And unfortunately for us, those people still think they know better than us about what we need to know—or be lied to about—and what we need to have (or not have). Hence, we should read reports like the recent one in the New York Times with a heavy dose of cynicism:

“Senator Mary L. Landrieu, Democrat of Louisiana, introduced legislation this week to force insurance companies to reissue the health plans they have been canceling by the thousands. And officials in several states have sought assurances from insurance companies that people will not be dropped until the federal health insurance website is working.

The president did not endorse those specific efforts and did not elaborate on how he intended to help people who were faced with paying higher premiums for a new insurance plan. Mr. Obama said the White House was looking at a “range of options” to help people whose policies had been canceled.”

Not to put too fine a point on it, but the best way to help people keep the coverage they want is to let people keep the coverage they want.

But it is unlikely the administration has any intention of allowing a proposal like Landrieu’s to become law since it would undermine the entire structure of the law. For this reason, as Avik Roy observes, “President Obama didn’t express any regret for the policies that caused people to lose their existing coverage.” To the contrary, as Roy explains in detail, Obama continued to lie about the effects of his signature law even while apologizing for those effects. The administration knew back in 2010 that number of people losing plans would be closer to $93 million (quite probably more) than “5 percent of the population.” The very design of the law ensures that mandated options for most people will be more expensive. And, perhaps most damningly, the aforementioned Nanny-State offense to protect people from their own autonomy has been the public position of the administration for years.

It is to this very Nanny-State offense—and to those who defend the law by rightfully attacking the previous awful healthcare regime—that Roy offers a succinct summation of the core problem with Obamacare as intended, passed, and effected against the Middle America:

“Any serious health reform program—left, right, or center—would involve some disruption of our existing health-coverage arrangements. What makes Obamacare such a deeply flawed piece of work is not that it disrupts our existing arrangements, but that it disrupts those arrangements by forcing people to buy costlier coverage.

And not only does Obamacare force people to buy costlier coverage, it most significantly punishes a population that is already disadvantaged in our current system: people of average income who buy coverage on their own, and don’t benefit from the heavy subsidies enjoyed by people with government- or employer-sponsored insurance.”

If I may state the obvious: the Affordable Care Act would never have passed in the first place if Democrats and the media were honest about these cancellations in 2009. If they had presented the “tradeoffs” for Obamacare’s winners and losers clearly and intelligibly, Democrats might have been forced to pursue more conservative, market-oriented proposals of the sort Republicans had been advocating at the time. But Obamacare’s proponents opted for misdirection, the law passed over prescient objections, and so here we are.

When the chips are down, and it comes to choosing between us and the healthcare law, the progressives in our government and their enablers in the media have made their choice abundantly clear: the law won.