Jul 11, 2022

COVID-19 Update


WaPo: (pay wall)

As the BA.5 variant spreads, the risk of coronavirus reinfection grows

America has decided the pandemic is over. The coronavirus has other ideas.

The latest omicron offshoot, BA.5, has quickly become dominant in the United States, and thanks to its elusiveness when encountering the human immune system, is driving a wave of cases across the country.

The size of that wave is unclear because most people are testing at home or not testing at all. The Centers for Disease Control and Prevention in the past week has reported a little more than 100,000 new cases a day on average. But infectious-disease experts know that wildly underestimates the true number, which may be as many as a million, said Eric Topol, a professor at Scripps Research who closely tracks pandemic trends.

Antibodies from vaccines and previous covid infections offer limited protection against BA.5, leading Topol to call it “the worst version of the virus that we’ve seen.”

Other experts point out that, despite being hit by multiple rounds of ever-more-contagious omicron subvariants, the country has not yet seen a dramatic spike in hospitalizations. About 38,000 people were hospitalized nationally with covid as of Friday, according to data compiled by The Washington Post. That figure has been steadily rising since early March, but remains far below the record 162,000 patients hospitalized with covid in mid-January. The average daily death toll on Friday stood at 329 and has not changed significantly over the past two months.

There is widespread agreement among infectious-disease experts that this remains a dangerous virus that causes illnesses of unpredictable severity — and they say the country is not doing enough to limit transmission.

Restrictions and mandates are long gone. Air travel is nearly back to pre-pandemic levels. Political leaders aren’t talking about the virus — it’s virtually a nonissue on the campaign trail. Most people are done with masking, social distancing, and the pandemic generally. They’re taking their chances with the virus.

“It’s the wild west out there,” said Ziyad Al-Aly, an epidemiologist at Washington University in St. Louis. “There are no public health measures at all. We’re in a very peculiar spot, where the risk is vivid and it’s out there, but we’ve let our guard down and we’ve chosen, deliberately, to expose ourselves and make ourselves more vulnerable.”

Angela Rasmussen, a virologist at the University of Saskatchewan, would like to see more money for testing and vaccine development, as well as stronger messaging from the Biden administration and top health officials. She was dismayed recently on a trip to southern California, where she saw few people wearing masks in the airport. “This is what happens when you don’t have politicians and leaders taking a strong stand on this,” she said.

The CDC said it has urged people to monitor community transmission, “stay up to date on vaccines, and take appropriate precautions to protect themselves and others.”



Nearly one-third of the U.S. population lives in counties rated as having “high” transmission levels by the CDC. Cases are rising especially in the South and West.

Many people now see the pandemic as part of the fabric of modern life rather than an urgent health emergency. Some of that is simply a widespread recalibration of risk. This is not the spring of 2020 anymore. Few people remain immunologically naive to the virus. They may still get infected, but the immune system — primed by vaccines or previous bouts with the virus — generally has deeper layers of defense that prevent severe disease.

But the death rate from covid-19 is still much higher than the mortality from influenza or other contagious diseases. Officials have warned of a possible fall or winter wave — perhaps as many as 100 million infections in the United States — that could flood hospitals with covid patients. Beyond the direct suffering of such a massive outbreak, there could be economic disruptions as tens of millions of people become too sick to work.

Travelers wade through long lines at security checkpoints in Denver International Airport on July 5, 2022. (David Zalubowski/AP)

“It feels as though everyone has given up,” said Mercedes Carnethon, an epidemiologist at the Northwestern University Feinberg School of Medicine.

Carnethon said she also isn’t as cautious as she used to be. She wears a high-quality mask on airplanes, but doesn’t wear a mask at the gym. She is worried that she’ll contract covid again — she caught it during the omicron wave last winter. But she doesn’t think a “zero covid” strategy is plausible.

“I feel there is a very limited amount that I can do individually, short of stopping my life,” Carnethon said. “It’s risky. I’ll be catching covid at an inconvenient time. I can hope it is milder than the first time I caught it.”

Many experts concerned about ongoing transmission have also pushed back against online fearmongering and apocalyptic warnings about the virus; people are not routinely getting infected every two or three weeks, Rasmussen said.

Population-level immunity is one reason the virus remains in mutational overdrive. The risk of reinfections has increased because newly emergent subvariants are better able to evade the front line defense of the immune system, and there is essentially no effort at the community level to limit transmission.

Al-Aly, who is also chief of research and development at Veterans Affairs St. Louis Health Care System, has scoured the VA’s vast database to see what happened to the nearly 39,000 patients infected with the coronavirus for a second or third time. What he found was sobering. In a paper posted online last month, but not yet peer-reviewed or published in a journal, Al-Aly and his co-authors reported that people with multiple infections have a higher cumulative risk of a severe illness or death.

It’s not that the later illnesses are worse than, or even as bad as, earlier cases. But any coronavirus infection carries risk, and the risk of a really bad outcome — a heart attack, for example — builds cumulatively, like a plaque, as infections multiply.

“Reinfection adds risk,” he said. “You’re rolling the dice again. You’re playing Russian roulette.”

Vaccination remains an important, if still underused, weapon against the virus — even if it’s not that effective at stopping new infections.

Omicron blew through the largely vaccinated population last winter with stunning ease, and since then the subvariants have arrived in rapid succession, starting with BA.2 and BA.2.12.1 in the spring, and now BA.5 and its nearly identical relative BA.4.

Vaccines are based on the original strain of the virus that emerged in Wuhan, China in late 2019. The Food and Drug Administration has asked vaccine makers to come up with new formulas that target BA.5 and BA.4. Those boosters could be ready this fall.

But there is no guarantee that these latest subvariants will still be dominant four or five months from now. The virus is not only evolving, it’s doing so with remarkable speed. The virus may continually outrace the vaccines.

“I worry that by the time we have a vaccine for BA.5 we’ll have a BA.6 or a BA.7. This virus keeps outsmarting us,” Al-Aly said.


“We are in a very difficult position with regard to the choice of vaccine for the fall because we’re dealing with a notoriously moving target,” Anthony S. Fauci, President Biden’s top adviser for the pandemic, told The Post in June, a few days before he, too, announced that he was sick with the virus.

Already there’s another omicron subvariant that has caught the attention of virologists: BA.2.75. First seen last month in India, it has been identified in a smattering of other countries, including the United States. But it’s too soon to know whether it will overtake BA.5 as the dominant variant.

There is no evidence that the new forms of the virus result in different symptoms or severity of disease. Omicron and its many offshoots — including BA.5 — typically replicate higher in the respiratory tract than earlier forms of the virus. That is one theory for why omicron has seemed less likely to cause severe illness.

It’s also unclear if these new variants will alter the risk of a person contracting the long-duration symptoms generally known as “long covid.” The percentage of people with severely debilitating symptoms is likely between 1 and 5 percent — amounting to millions of people in this country, according to Harlan Krumholz, a Yale University professor of medicine.

His colleague, Akiko Iwasaki, a professor of immunology and expert on long covid, said in an email that she believes the world is not sufficiently vigilant about the disease anymore. She is often the only person masking in a crowd, she said.

“I understand the pandemic fatigue, but the virus is not done with us,” she said. “I fear that the current human behavior is leading to more people getting infected and acquiring long covid. I fear that this situation can lead to a large number of people with disability and chronic health problems in the future.”

The precocious nature of the virus has made infectious-disease experts wary of predicting the next phase of the pandemic. Topol warns that a new batch of variants could come out of the blue, the same way omicron emerged unexpectedly last November with a stunning collection of mutations already packaged together. Omicron’s precise origin is unknown, but a leading theory is that it evolved in an immunocompromised patient with a persistent infection.

“Inevitably we could see a new Greek letter family like omicron,” Topol said. “There’s still room for this virus to evolve. It has evolved in an accelerated way for months now. So we should count on it.”


Podcast

First off - if you're going to bitch about 
"Democrats don't know how to do messaging" -
stop.
Just fucking stop.

At this point, when you complain about the Dems, you're doing the GOP's work for them. I'm not saying you should grab your pom-poms and blindly cheer for everything every Democrat does - I'm saying get your head outa your ass and understand the fucking problem.

There are literally hundreds of right wing think tanks and incubators funded by Charlie Koch and a cadre of obscenely wealthy donors.

American Enterprise Institute
The Federalist Society
Freedom Partners
Cato Institute
The US Chamber Of Commerce
Americans For Prosperity
The Heritage Foundation
Independent Women's Federation
Citizens United
ALEC
The Hoover Institute
Club For Growth
NRA


Plus, there's a shitload of media outlets that comprise a propaganda network that would make Joe Goebbels blush.

The Atlas Network
Wall Street Journal
NY Post
DumFux News
OANN
RT
Newsmax

See Open Secrets for more

We have to take upon ourselves to be
The Progressive Network
For Progressively Progressive Progressiveness
and other stuff that might be generally considered liberal

Gaslit Nation - Andrea Chalupa and Sarah Kendzior, with Nancy MacLean - author of Democracy In Chains

Among the many shitty things: they're coming for Social Security and Medicare.


Part 2:



Jul 10, 2022

Overheard


Funny how it's not funny.

Almost 80% of Americans consistently say abortion should be kept as an option for every woman. Three SCOTUS justices lied under oath about agreeing with those 250,000,000 Americans, and about Roe being "precedent upon precedent" - stare decisis. They lied under oath to get the job so they could overturn a fundamental principle of our experiment in democratic self-government.

Not fuckin' funny at all.

Jan6 Stuff


It just keeps getting worse.


Oath Keeper brought explosives to D.C. ahead of Jan. 6 riot, DOJ says

A member of the far-right Oath Keepers militia brought explosives to Washington, D.C. ahead of the Jan. 6 deadly insurrection, according to court documents from the Justice Department.

Driving the news:
The DOJ said that the government seized explosives from Jeremy Brown, an Oath Keeper member from Florida, including "military ordinance grenades" in his vehicle.

Details:
  • DOJ prosecutors plan to present this in the September trial of several Oath Keepers. Brown is not part of that trial.They will argue that this evidence shows that the members charged with seditious conspiracy had the "manner and means" to "advance the goals of the charged conspiracy."
  • "Indeed, possessing, transporting, and storing various weapons around the Washington, D.C., area was part and parcel to organizing and executing" the riot.
Catch up fast:
Stewart Rhodes, a founder and leader of the Oath Keepers, and eight other militia members were arrested and charged for their role in organizing the Jan. 6 insurrection.An indictment amended this week says that "Rhodes and certain conspirators ... coordinated travel across the country to enter Washington, D.C., equipped themselves with a variety of weapons, donned combat and tactical gear, and were prepared to answer Rhodes' call to take up arms at Rhodes' direction."

Jul 9, 2022

Alarm Bells


SCOTUS may well be in the process of overturning the rule of law itself.


The post-legal Supreme Court

What happens if the Court rejects the rule of law?


The highest Court in the most powerful nation in the world appears to have decided that it only needs to follow the law when it feels like it.

Last December, for example, the Supreme Court handed down a decision that fundamentally alters the Union — giving states sweeping authority to restrict their residents’ constitutional rights.

At least, that’s what happened if you take the Court’s 5-4 decision in Whole Woman’s Health v. Jackson seriously. Jackson involved Texas’s anti-abortion law SB 8, which allowed “any person” who is not employed by the state to sue anyone they suspect of performing an abortion after the sixth week of pregnancy, and to collect a bounty of at least $10,000 from that abortion provider. The Court allowed that law to take effect, even though abortion was still considered a constitutional right at the time.

If you apply the logic from Jackson more broadly, any state could pass a law unleashing such litigious bounty hunters upon people who exercise any constitutional right. Perhaps a state wants to make it illegal to own a gun, or maybe it wants to allow bounty hunters to sue any Black family that sends its child to a predominantly white school — and the federal judiciary will simply stand back and let it happen. Realistically, the Court is unlikely to allow these sorts of attacks. But to spite abortion, the conservative majority was willing to open the door to them.

Jackson, moreover, was only the beginning of a Rumspringa of conservative excess led by the Court’s Republican-appointed majority.

In its just-completed term, the Supreme Court overruled Roe v. Wade, permitting states to ban abortions without having to resort to SB 8-style chicanery. It also overruled a seminal 1971 decision prohibiting the government from advancing one religious belief at the expense of others. It all but neutralized another half-century-old precedent permitting federal law enforcement officers who violate the Constitution to be sued. And the Court’s Republican majority dismantled two decisions protecting criminal defendants who were convicted or sentenced without adequate defense counsel, most likely condemning an innocent man to die in the process.

The Court endangered huge swaths of long-existing gun laws, striking down a New York state law that has been on the books for 109 years. And it did so in an opinion that simultaneously fetishizes the “Second Amendment’s plain text,” while ignoring the first thirteen words of that amendment.

The same Court that attacked Roe as “remarkably loose in its treatment of the constitutional text” saw no problem with ignoring half of the text of the Second Amendment.

In what may be the most consequential environmental case in decades, the Court relied on something called the “major questions doctrine” — a fairly new legal doctrine that is never mentioned in the Constitution or in any statute and that was invented entirely by judges — to strip the Environmental Protection Agency of much of its authority to fight climate change.

The Court even abandoned any pretense that it must be honest about the facts of the cases it decides, claiming that a public school football coach who ostentatiously prayed on the 50-yard line after games — while surrounded by players, spectators, and members of the press — was merely engaged in a “short, private, personal prayer.”

It was a singularly alarming Supreme Court term. The Court didn’t simply abandon longstanding legal rules, at times it seemed to abandon the rule of law altogether.

What is “the rule of law”?

I make a strong claim in this essay, arguing that the Supreme Court of the United States is no longer deciding many major cases in a way that is recognizably “legal.” So let’s start by establishing a baseline definition of what constitutes the rule of law and what it means for a judge to act consistently with this principle.

Societies that adhere to the rule of law must apply the same binding rules to all persons and institutions, including the state itself. According to the United Nations, these rules must be “publicly promulgated, equally enforced and independently adjudicated,” and the rule of law demands “equality before the law,” “legal certainty,” and “avoidance of arbitrariness.”

The late Justice Antonin Scalia offered one of the best explanations of how a judge can act consistently with the rule of law in a 1989 essay. “When, in writing for the majority of the Court, I adopt a general rule,” Scalia explained, “I not only constrain lower courts, I constrain myself as well.” Because “if the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences.”

Scalia’s formulation captures the rule of equality before the law. If a judge applies a certain rule to Republicans, they must be comfortable applying it to Democrats as well. If they apply one rule to people who oppose abortion, they must apply the same rule to people who support abortion.

Similarly, Scalia’s formulation advances the values of legal certainty and non-arbitrariness. While there are extraordinary circumstances when the Supreme Court should overrule one of its previous precedents, lawyers and lawmakers should typically be able to look at the Court’s past decisions and be able to predict how the law will apply moving forward. When possible, the Supreme Court should hand down clear legal rules which enhance this predictability and that cannot easily be manipulated to hand down arbitrary decisions that favor some groups over others.

With these principles of equality, clarity, and non-arbitrariness in mind, let’s take a look at some of the Court’s recent decisions.

Whole Woman’s Health v. Jackson is one of the worst decisions in the Supreme Court’s history

There are a handful of Supreme Court decisions that legal scholars refer to as the “anti-canon,” decisions that were so poorly reasoned and monstrous in their consequences that they are taught to law students as examples of how judges should never behave. The anti-canon includes cases like the pro-slavery decision in Dred Scott v. Sandford (1857), the segregationist decision in Plessy v. Ferguson (1896), the anti-worker decision in Lochner v. New York (1905), and the Japanese-American internment decision in Korematsu v. United States (1944).

Whole Woman’s Health v. Jackson belongs on this list. It is, as Chief Justice John Roberts wrote in dissent, so thoroughly inconsistent with the idea that the Constitution binds every state government that it threatens to transform that document into a “solemn mockery.” Jackson introduces an intolerable amount of unpredictability and arbitrariness into US law, transforming the constitutional rights that every American should reasonably be able to rely upon into dust that can be blown away by a sufficiently clever state legislature.

So long as Jackson remains good law, no constitutional right is safe.

To understand why Jackson is so troubling and why it threatens literally all constitutional rights, it’s helpful to understand why Texas wrote this law to rely on private bounty hunters.

As a general rule, someone who believes that a state law violates their constitutional rights cannot sue that state directly in federal court. Under the Court’s decision in Ex parte Young (1908), however, they may sue the state officer tasked with enforcing an allegedly unconstitutional law. Thus, for example, if a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state police to block that law.

But SB 8, the anti-abortion law at issue in Jackson, attempts to cut state officers out of the enforcement process altogether. SB 8 provides that it “shall be enforced exclusively through ... private civil actions” that can be filed by anyone who is not a state employee.

It should be noted that Texas lawmakers did not actually succeed in writing a law that no Texas state official plays a role in enforcing. The plaintiffs in Jackson sued a Texas state judge who would hear lawsuits brought under SB 8, as well as the clerk of a Texas court charged with moving these cases through the courts. If Young means anything, these plaintiffs should have been allowed to move forward with their federal lawsuit.

But Gorsuch’s majority opinion in Jackson holds that these suits against Texas state judges and clerks may not proceed. That means there’s no way to obtain a federal court order halting SB 8.

In fairness, an abortion provider could have conceivably waited until they were sued in Texas state court for violating SB 8, and then argued that SB 8 violates Roe v. Wade in state court. But even if Roe were still good law, this defense is not adequate to protect abortion providers’ rights.

That’s because SB 8 doesn’t simply allow any person who is not employed by the state of Texas to sue an alleged abortion provider, it also permits a victorious plaintiff to collect a bounty of at least $10,000 from the provider. There is no upper limit to this bounty, and an alleged abortion provider who successfully defends against an SB 8 lawsuit can still be sued by other individuals hoping to collect the bounty.

Anyone suspected of performing an abortion that violates SB 8 could be hit by hundreds or even thousands of lawsuits. And they would either have to hire an army of lawyers to defend against these lawsuits or risk being ordered to pay a bounty that has no upper limit. Either option risks bankruptcy.

If taken seriously, moreover, Jackson permits states to use an SB 8-like structure to attack any constitutional right. A state might allow private bounty hunters to sue any journalist who publishes a news article that paints a Republican elected official in a negative light, or it might prohibit private citizens from criticizing the state’s governor. Shortly after Jackson was handed down, Democratic California Gov. Gavin Newsom threatened to sign a law permitting private bounty hunters to sue anyone who “manufactures, distributes, or sells an assault weapon.”

It remains to be seen whether this Court would apply its Jackson decision to a state law attacking the Second Amendment or other constitutional freedoms. But if the Court winds up applying Jackson only to constitutional rights that a majority of its members do not like, that’s an even worse outcome for the rule of law than if it applies Jackson’s anti-constitutional rule to every SB 8-style law that makes it through any state legislature.

The rule of law is the rule of equality; it means that the same rules must apply to liberal litigants as apply to conservatives.

The Supreme Court placed itself at the head of much of the executive branch of government

In its late June decision in West Virginia v. EPA, the Court effectively placed itself at the head of multiple executive branch agencies — above President Joe Biden — giving itself veto power over any regulation handed down by these agencies. In doing so, it fundamentally reshaped the US’s separation of powers.

Many federal laws lay out a broad overarching policy, then give an executive branch agency authority to implement that policy through binding regulations. West Virginia concerned a provision of the Clean Air Act, which requires certain power plants to use the “best system of emission reduction” that can be achieved with currently available technology, and then tasks the EPA with determining what the “best system” to reduce emissions may be at any given moment.

This way, as technology evolves to allow cleaner energy production, the EPA can issue new regulations requiring the energy industry to adopt these cleaner technologies, without Congress having to pass a whole new law.

West Virginia imposed an arbitrary new limit on EPA’s congressionally given authority, which appears nowhere in the Clean Air Act or in any other federal law. Under West Virginia, the EPA may not use its authority to encourage “generation shifting” — that is, requiring the energy industry to shift from particularly dirty methods of energy production, such as coal, and toward cleaner methods such as solar or natural gas. Instead, the EPA may only use its authority to require existing coal plants to install new devices or otherwise alter how they burn coal to produce energy.

To justify its policy judgment that generation shifting is not allowed, the Court’s six Republican appointees relied on something called the “major questions doctrine.” Under this doctrine, the Court explained in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.

But the Court has never fully articulated what causes a regulation to be so significant that it runs afoul of this doctrine, and, in any event, the doctrine comes from nowhere.

The Constitution does not mention this doctrine. Nor does any federal law. The Court has, in effect, given itself the power to veto any regulation issued by the executive branch of government, even when Congress broadly authorized an executive branch agency to regulate.

Until very recently, the justices avoided such encroachments upon the executive’s domain. As the Court explained in Mistretta v. United States (1989), “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Until a few years ago, the Court’s decisions urged judges to defer to federal agencies on nearly all policy-related questions.

The reasons for this deference were twofold. As the Court explained in Chevron v. Natural Resources Defense Council (1984), agencies typically have much greater expertise in the areas that they regulate than the judiciary. And federal agencies also have far more democratic legitimacy than unelected judges who serve for life. “While agencies are not directly accountable to the people,” the Court said in Chevron, agencies answer to a president who is accountable to the voters. And so “it is entirely appropriate for this political branch of the Government to make such policy choices.”

But now the Court has given itself the power to declare any regulation that it does not like to be a sin against the “major questions doctrine,” and in so doing to veto that regulation. That doesn’t just introduce far too much arbitrariness into federal law. It’s also an extraordinary transfer of power away from an elected branch of government and toward a judiciary staffed by unaccountable judges.

The Court does not behave as though it is bound by legal texts

The Second Amendment is unusual in that it states explicitly what purpose it is supposed to advance. It provides that “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.” As the Supreme Court held in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias, and the amendment must be “interpreted and applied with that end in view.”

Nevertheless, the Supreme Court held last month, in New York State Rifle & Pistol Association v. Bruen, that “individual self-defense is ‘the central component’ of the Second Amendment right,” and that gun regulations must be judged according to whether they undercut this atextual purpose.

I don’t think much more needs to be said about Bruen (although if you want to read a longer critique of Justice Clarence Thomas’s majority opinion in this case, I wrote that piece here). The Second Amendment’s text is crystal clear about why that amendment exists. But six Republican appointees on the Supreme Court believe the Second Amendment should have a different purpose. So they decided that the text of the Constitution does not matter. That is the very hallmark of an arbitrary decision.

And it’s not the first time this Court has disregarded legal text to reach a certain end.

About a year ago, in Brnovich v. DNC (2021), the Supreme Court invented a bunch of new limits on the Voting Rights Act — the landmark law prohibiting race discrimination in elections — that appear nowhere in the law’s text. As Justice Elena Kagan wrote in dissent, Justice Samuel Alito’s majority opinion in Brnovich “mostly inhabits a law-free zone.” No lawyer could have read the text of the Voting Rights Act and predicted the specific limits the Court placed on voting rights in Brnovich.

Similar things could be said about most of the Court’s recent voting rights decisions. In Shelby County v. Holder (2013), for example, the Court neutralized a provision of the Voting Rights Act that requires states with a history of racist election practices to “preclear” any new voting rules with federal officials before those practices can take effect. Shelby County rested on a so-called “‘fundamental principle of equal sovereignty’ among the States” that appears nowhere in the Constitution,

Indeed, the Constitution’s text indicates that Congress has broad power to decide how to protect voting rights. Its 15th Amendment provides that states may not deny or abridge the right to vote “on account of race, color, or previous condition of servitude,” and it gives Congress the power “to enforce this article by appropriate legislation.”

This year, the Court took similar liberties with voting rights law, handing down at least three “shadow docket” decisions that abridged the right of Black Americans to cast a vote that actually matters. In Merrill v. Milligan and Ardoin v. Robinson, the Court reinstated racially gerrymandered maps in Alabama and Louisiana that effectively cut Black voters’ electoral power in those states in half. And in Wisconsin Legislature v. Wisconsin Elections Commission, the Court struck down state legislative maps due to concerns that they may give too much electoral power to Black voters.

The Court provided little or no explanation for why it reached these decisions, but the common theme is that a majority of the justices voted to reduce Black electoral power in all three cases. And the Court plans to hear the Merrill case again in October — most likely so that it can permanently weaken the Voting Rights Act’s safeguards against racial gerrymandering.

The Court claims the power to decide what happened in the past

One other theme from this recent term is worth mentioning. In three major constitutional cases involving three very different provisions of the Constitution, the Court ruled that judges must look to historical practice when interpreting the nation’s founding document.

In the Bruen guns case, the Court held that “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation” if it wishes to defend a gun law against a Second Amendment challenge. In Dobbs v. Jackson Women’s Health Organization, the case overruling Roe, the Court declared that rights that are not specifically mentioned in the Constitution may only be protected by courts if they are “deeply rooted in this Nation’s history and tradition.” And, in Kennedy v. Bremerton School District, the praying coach case, the Court decreed that the provision of the First Amendment requiring separation of church and state “must be interpreted by ‘reference to historical practices and understandings.’”

One glaring problem with this approach to constitutional law is that history is contested, and even expert historians frequently disagree about the right way to interpret historical events. So this new historicism inevitably invites arbitrary and unpredictable decision-making by judges.

In the Bruen case, for example, both Thomas’s majority opinion and Justice Stephen Breyer’s dissent waste a simply mind-numbing amount of ink recounting centuries of gun laws stretching at least as far back as a 1328 law providing that Englishmen may not “ride armed by night nor by day, in Fairs, Markets.” In the end, the six Republican appointees conclude that this multi-century tour of English and American gun laws supports the policy outcome preferred by the Republican Party; and the three Democratic appointees look at the exact same history and conclude that it supports the policy outcome preferred by the Democratic Party.

Similarly, while Alito’s Dobbs opinion concludes that a right to abortion was “entirely unknown in American law” before the latter part of the 20th century, the Roe opinion reached the opposite conclusion, concluding that the historical practice was to allow abortions prior to “quickening” — “the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy.” At least some actual historians have argued that Alito is wrong and Roe was correct about this point.

In any event, I, like Samuel Alito, am a lawyer and not a historian. I, like Clarence Thomas, do not have a doctorate in history or any formal training in how professional historians resolve historical debates. I do not claim any ability to resolve what people in 1789 might have thought about laws banning assault rifles that didn’t yet exist, or whether the generation that ratified the 14th Amendment would have believed that mifepristone should be legal.

I will note, however, that the entire judiciary is staffed by lawyers and not historians, and that judges typically decide cases based on briefs authored by lawyers who are not historians. So the Court’s penchant for turning constitutional cases into debates over history is likely to produce a lot of bad history and a lot of bad law. It’s a bit like demanding that the nation’s public health policy be determined by a panel made up entirely of physicists.

And that’s assuming that these amateur historians, now tasked with determining whether the 17th-century jurist Sir Matthew Hale would have supported a ban on machine guns, are acting in good faith. Which brings us back to the Court’s factually challenged decision in Kennedy.

Recall that, in Kennedy, six of the justices couldn’t tell the difference between a “short, private, personal prayer” and a public spectacle even after they were confronted with photographic proof that Coach Kennedy decided to make a public spectacle of himself. If these judges are so loose with the facts of a well-documented event that occurred in 2015, imagine the liberties they may take with truly contested events that occurred nearly 250 years ago.

This Court has no sense of humility

Not so long ago, the Court had a very good solution to the problem that the meaning of legal texts — not to mention historical events — is often contested even by subject-matter experts operating in good faith.

Cases like Mistretta and Chevron counseled judicial deference to federal agencies because it is better for agencies accountable to a democratic president to resolve contested policy questions than to leave these questions to the one unelected branch of government. Other cases, such as United States v. Carolene Products (1938), warned that courts should typically defer to Congress when it was unclear whether the Constitution permits a particular law to stand. The advantage of this approach is that the people can always vote out a Congress that passed a bad law, but if the Court hands down a bad decision, there is often no solution other than a constitutional amendment.

The current Court hasn’t simply abandoned these doctrines of deference, it appears to be replacing them with new doctrines that don’t so much constrain judicial power as require judges to rely on historical sources when striking down laws that those judges don’t like. In cases involving federal agencies, that can mean the new doctrines require judges to use the magic words “major question” whenever they want to veto a regulation.

And this new era of judicial self-empowerment is only just beginning.




Another Beau For Today

Justin King - Beau Of The Fifth Column

Moore v Harper - for all the marbles.

Summertime


Wapo: (pay wall)

Summer in America is becoming hotter, longer and more dangerous

Wildfires had been burning for weeks, shrouding Reno, Nev., in harmful smoke, when Jillian Abney and her eight-year-old daughter Izi drove into the Sierras last year in search of cleaner air. The eerie yellow haze that filled the sky had brought summer to an abrupt halt, canceling all of the season’s usual delights.

Abney headed for Donner Lake, hoping the higher elevation would put them above the smoke. But instead of the blue skies that had greeted her on countless trips throughout her life, she arrived to find smoke hanging in the sky and creeping through the valleys below. It smelled like a campfire, but those had been banned for the season.

“If it’s like that again this August, we are escaping,” she said.

Summer temperatures in Reno have risen 10.9 degrees Fahrenheit, on average, since 1970, making it the fastest warming city in the nation during the hottest months, according to an analysis by the nonprofit research group Climate Central. For two consecutive summers, smoke from blazes burning in California has choked the region, sending residents to the emergency room, closing schools and threatening the tourism industry.

It is among the sharpest examples of how climate change is fundamentally altering the summer months — turning what for many Americans is a time of joy into stretches of extreme heat, dangerously polluted air, anxiety, and lost traditions.

Though the summer season of 2022 is young, parts of the nation already have experienced punishingly high temperatures, extreme drought, wildfires, severe storms, flooding or some combination. Projections from federal agencies suggest more abnormally hot weather, an expansion of drought and well above average wildfire and hurricane activity in the months ahead.

Scientists say the recent spate of severe summers is a clear change from previous generations. The average summer temperature in the past five years has been 1.7 degrees (0.94 Celsius) warmer than it was from 1971 through 2000, according to a Washington Post analysis of data from the National Oceanic and Atmospheric Administration. But some parts of the country have been much harder hit, with the West showing a 2.7 degrees (1.5 Celsius) increase.

“The past few summers, we’ve just seen such a constant parade of one climate-related event after another,” said Kristina Dahl, principal climate scientist at the Union of Concerned Scientists, an environmental advocacy group. “This really does strike us as a point where we need to be shifting our thinking about summer and how we are approaching it.”

Summer has always been a turbulent season, a time of checking weather forecasts and watching the skies. And despite the major shifts that have taken place, many people still relish the season. Vacationers still flock to places that now face some degree of wildfire or flood risk. But climate change is increasingly pushing summer to extremes, creating inhospitable conditions and endangering lives.

While these climatic shifts are occurring year-round nationwide — in fact, in many areas, it’s getting warmer faster during other seasons — the summer is often when the effects cascade. The temperatures are higher, so any increase may be felt even more strongly. And people are more likely to spend extended time outside, exposed to the elements.

Across the country, heat waves are arriving more frequently, more intensely and earlier in the year. Nights are warming at a slightly higher rate than days in most parts of the United States, according to the most recent National Climate Assessment, harming people’s ability to cool down after hot days. A Climate Central study found that in just more than half of cities analyzed, high-heat days arrived at least a week earlier, on average, than 50 years ago. Three-fourths of places had more “extremely hot” days.

In the West and Southwest, the wildfire season is lengthening, and a historic drought is emptying reservoirs. On the East Coast, hotter-than-usual temperatures are contributing to more severe flooding and heavy downpours. As hot weather arrives, the nation’s electric grid is under growing strain, with regulators from the Midwest to the Southwest warning of rolling power outages this summer.

This year, the National Weather Service’s Climate Prediction Center’s three-month outlook through September suggests there will be hotter-than-normal temperatures throughout much of the country, with a punishing heat dome building over the western and central U.S. in coming days.

As heat bakes the country, drought is expected to grip parts of the nation’s Corn Belt and the Middle Mississippi Valley. The country is also facing the likelihood of another active wildfire season and the seventh straight above-average Atlantic hurricane season.

Global warming is driving the shift to hotter summers, experts say, but urban growth is also to blame. The three fastest-warming cities — Reno, Las Vegas and Boise — are expanding outward. As new homes are built and more asphalt is poured, these cities are absorbing and retaining more heat than the undeveloped land around them, said Nevada state climatologist Stephanie McAfee. Scientists call this the urban heat island effect.

“Increasingly, Las Vegas is seeing nights where it’s only cooling into the upper 80s,” McAfee said. “There are people in Southern Nevada who are doing the calculus of keeping the air conditioning on versus making budget cuts.”

The consequences of scorching daytime temperatures and nights without relief were on vivid display last year, when a historic heat wave in the Pacific Northwest sent temperatures climbing more than 30 degrees higher than average. Portland broke records three days in a row, peaking at 116 degrees. According to official estimates, the heat wave killed nearly 200 people in Oregon and Washington.

Understanding the science of heat domes and how drought and climate change make them worse

“Our imagination for what the impact could be has been completely changed,” said Steven Mitchell, medical director of the emergency department at Harborview Medical Center in Seattle.

“So many of us saw a career’s worth of heat stroke and heat illness in a matter of hours,” Mitchell said. “We began to treat it like a multi-casualty event.”

Those hit hardest, he said, were the most vulnerable — the very old, the very young and low-income residents who had the least access to cooling.

“On the hottest day, we had more calls to our 911 system than at any time in the history of the 911 program,” Mitchell said. “A huge portion of those were for heat-related impacts.”

These days, the hospital and others in the area are working to prepare for the next severe heat wave. Mitchell said he attends a weekly check-in call with hospitals in the region to make sure they have a plan to prevent any one facility from getting overwhelmed. And he said hospitals are working more closely with emergency responders to improve monitoring for a rise in heat-related cases.

Summertime in the Pacific Northwest has always been referred to as “trauma season” by hospital staffers, Mitchell said, because more people are on vacation, outdoors and more likely to get injured. But the prospect of extreme heat has added another dimension of worry.

“It just strains our system more than it already is,” Mitchell said. “There is a certain amount of trepidation as we move into the summer months.”

Researchers have found that some heat waves in recent years, including the one that struck the Pacific Northwest last year, would have been virtually impossible without human-caused global warming.

“We can start saying people are dying because of climate change,” said Kristie Ebi, a professor of global health at the University of Washington. “This is really shifting the kinds of statements we can make.”

In other parts of the Southwest, communities are bracing for the prospect of flash floods.

In Flagstaff, Ariz., a gateway to the Grand Canyon and other local attractions, summer signals the arrival of the monsoon season.

But the rains, which would typically be welcome in a region suffering from drought, have lately inspired anxiety and fear. Last year, heavy rainfall over recent wildfire burn scars sent torrents of water, mud and debris into the city, damaging homes and forcing residents to evacuate.

This year, the Tunnel Fire, a fast moving wildfire, swept through the Coconino National Forest in April, fueled by high winds and a years-long drought. More than 700 homes were evacuated. Another wildfire burned about 26,500 acres just six miles north of the city last month.

“It’s a totally different environment out there these days, and it’s not like it’s going to get back to normal anytime soon,” said Flagstaff City Manager Greg Clifton. “This community is remarkably resilient, but you have to wonder how far that resiliency can go.”

As he spoke late last month, Clifton was driving through a neighborhood fortified with piles of sandbags. City officials had issued a news release urging people living near the recent wildfires to immediately buy flood insurance. Once again, Flagstaff was preparing for an unpredictable wet season, not knowing if the rains would be gentle or would wash away the roads.

For the last several years, some cities in the West have replaced their Fourth of July fireworks displays with shows put on by drones equipped with color-changing lights over concerns about fires. Flagstaff is switching to a laser light show this year. Elsewhere, fire officials are urging people not to set off fireworks at home.

Barbeque restrictions have also become commonplace, as have summertime bans on campfires in national forests during dry, breezy weather.

The cascading effects of climate change have also left their mark on summer camp, a cherished ritual for millions of Americans.

In the Northeast and parts of the Midwest, rising summer-time temperatures and increasing rainfall have caused camp directors and summer youth program organizers to worry about heat stress, higher utility bills and flooding, in addition to the usual scrapes and bruises.

Stephanie Koch, CEO of the Boys & Girls Club of Atlantic City, said increasingly volatile weather is stretching her organization’s budget. In the last two years, the club has purchased flood insurance for two of its three buildings for the first time — it couldn’t afford to insure the third.

It is seeking donations to cover the cost of water bottles for about 300 campers, as well as soaring electricity bills from energy price spikes and having to run the air conditioning more often. Training for camp staff now includes conversations about flexibility and patience with schedule changes.

“I’m third generation to this area and I’ve seen incredible changes,” Koch said. “When you live on a barrier island, you’re focused on weather all of the time. But now it’s a matter of asking: Where are you going to be located? What buildings do you need flood insurance on? My own house was damaged by Hurricane Sandy and is now 12 feet off the ground.”

On the shore of Lake Tahoe, the University of Nevada, Reno offers a sleep-away 4-H camp that has embraced a sense of cautiousness. Last year, the Caldor Fire, a huge blaze that became the 15th largest in California’s recorded history, burned more than 200,000 acres near the lake. The group had to cancel one program and reschedule another.

Kenny Haack-Damon, the state’s 4-H Camp education program coordinator, said campfires have become a thing of the past. Instead, campers build solar ovens, using cardboard boxes lined with tin foil to cook their s’mores. He said the biggest challenge is to figure out which outdoor activities can still be done safely, and which lessons might best be taught indoors.

“The point of camp is to be outside as much as possible,” Haack-Damon said. “It’s hard to think about what that’s going to look like as things get warmer or wildfires become more of a threat.”

On Medicare Improvement

In today's thrilling episode of "Why Won't The Democrats Do Anything?", we see the ever-earnest Chuck Schumer having to go begging hat in hand to get the dastardly Joe Manchin to consider not being such an asshole all the fucking time.



Dems try again on drug prices

Democrats are trying again to enact government price negotiations for prescription drugs, with a revised plan that would be wrapped into a broader reconciliation bill.

State of play:
  • Senate Majority Leader Chuck Schumer on Wednesday released updated drug pricing language for review by the chamber’s rules referee, with a goal of passing it through the partisan reconciliation process, which wouldn't need any Republican votes.Schumer has been engaged in talks with Sen. Joe Manchin (D-W.Va.) on a package that would let Medicare negotiate directly with drugmakers over the price of prescription drugs
  • While there's no agreement on other components in the package, Schumer has told Senate Democrats that if a deal can be reached, a bill could reach the Senate floor before August recess, per a source familiar.
The big picture:
The specifics of the new plan "appear ever so slightly more favorable to industry," said Raymond James analyst Chris Meekins.

Details:
  • According to a summary of drug pricing provisions obtained by Axios, negotiations would begin next year. The new negotiated prices would take effect in 2026.The deal would overhaul Medicare's Part D drug benefit starting in 2025 and cap annual premium growth at 6% through 2029.
  • Drug companies would have to rebate back the difference if they raise Medicare Part D prices higher than inflation, starting in October.
The revised draft would require Medicare to use its new negotiating power for as many drugs as possible — a change from earlier drafts, which gave the department some flexibility to back off. Price negotiations for biological drugs, however, could be delayed up to two years if a functionally equivalent biosimilar is likely to hit the market before the negotiated price takes effect.

The latest language doesn't specifically address price negotiations for insulin.

What they're saying:
"This reform would help make sure when companies profit they do it because they are innovating and serving their customers, not hiring the best lawyers and lobbyists," said Frederick Isasi, executive director of Families USA.


The other side:
  • Drugmakers decried the plan as misguided.
  • "The prescription drug bill released today went from bad to worse for patients," said Debra DeShong of PhRMA, the big Washington drug lobby. "Democrats weakened protections for patient costs included in previous versions, while doubling down on sweeping government price-setting policies that will threaten patient access and future innovations."
  • "As we've previously warned, 'negotiation' is simply a euphemism for a government takeover of a sector that, on its own, has been historically successful in saving millions of lives," said Michelle McMurry-Heath, CEO of the Biotechnology Innovation Organization.
The intrigue:
Democrats are eager to show voters they've acted to lower drug prices before the November midterms, and progressive groups are prodding them to use all the legislative and administrative tools they can to do so.But taking on pharma could exhaust a lot of political capital, and opponents say the substance of the proposal could have a chilling effect on innovation.

What we're watching:
Manchin's involvement doesn't ensure a smooth ride for the rest of the reconciliation package, and the parliamentarian could still decide some of the drug pricing provisions don't comply with Senate rules.

Today's Beau

Justin King - Beau Of The Fifth Column

An excellent brief on Commercial Journalism and the kind of manufactured tension that keeps people frozen in place, thinking they're being righteously civic-minded while buying your dick pills and panty liners.

Do what you can
with what you've got
where you are

Jul 8, 2022

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