“Historically in Native communities, formalized Western education was used as a tool of cultural genocide, a tool of assimilation. With the whole government-run boarding school system—a system that my own grandmother and my aunties went through as well—where the professed model was to kill the Indian and save the man. For so many decades and generations, this idea of going off to school meant losing your Native culture. It meant that part of you was forcibly erased. You weren’t allowed to speak your language. You weren’t allowed to practice your culture. That is a legacy that occurred up until the 1960s and ’70s, so this isn’t ancient history…[we are re-framing] this idea—going to college is not about losing your identity as a Native person. It’s a way for you to give back to your community. It’s a way for you to build up your nation. It’s a way for to gain the skills and knowledge that your nation needs.”—Adrienne Keene, in How is the Native College Experience Different? (via nitanahkohe)
So my father who is the biggest abusive asshole I’ve ever met is apparently moving out of the country in two months?? He seems to think he can sell the house in that time, okay. But anyway, he’s willing to LEAVE THE COUNTRY to avoid supporting me.
I have an open SSI (disability) case but it’s going to take awhile longer to get the INITIAL decision, which is almost always no for anyone, because the US government sucks. but I’m really, really mentally ill and working is difficult to impossible, not even considering how shitty the economy is and how hard getting a job is in the first place.
Anyway I really, really, really need help like short term money and/or a place to stay in Virginia and I just….really, really need help. I’m trying not to panic but I’m losing all support and I don’t even know where I would stay so I don’t know where to even start applying for jobs.
If you could signal boost this in hopes of getting suggestions, donations, or ideas of where to get help with living, I’d appreciate it so much.
“The big lie about capitalism is that everyone can be rich. That’s impossible. Capitalism works only if the vast majority of the population are kept poor enough to never quit working, are kept poor enough to accept distasteful jobs society cannot function without. If everyone were a millionaire, who would empty the trash or repair the sewers? It follows that the poorer the general population is made, the greater the worth of the money held by the wealthy, in terms of the lives which may be bought and sold with it.”—Michael Rivero (via america-wakiewakie)
Johnnie Phelps, a woman sergeant in the army, thought, “There was a tolerance for lesbianism if they needed you. The battalion I was in was probably about ninety-seven percent lesbian.”
Sergeant Phelps worked for General Eisenhower. Four decades after Eisenhower had defeated the Axis powers, Phelps recalled an extraordinary event. One day, the general told her, “I’m giving you an order to ferret those lesbians out. We’re going to get rid of them.”
“I looked at him and then I looked at his secretary who was standing next to me, and I said, ‘Well, sir, if the general pleases, sir, I’ll be happy to do this investigation for you. But you have to know that the first name on the list will be mine.’ “
“And he was kind of taken aback a bit. And then this women standing next to me said, ‘Sir, if the General pleases, you must be aware that Sergeant Phelp’s name may be second, but mine will be first.”
“Then I looked at him, and said, ‘Sir, you’re right. They’re lesbians in the WAC battalion. And if the general is prepared to replace all the file clerks, all the section commanders, all the drivers-every woman in the WAC detachment-and there were about nine hundred and eighty something of us-then I’ll be happy to make that list. But I think the general should be aware that among those women are the most highly decorated women in the war. There have been no cases of illegal pregnancy. There have been no cases of AWOL. There have been no cases of misconduct. And as a matter of fact, every six months since we’ve been here, the general has awarded us a commendation for meritorious conduct.”
Phelps tells this story herself in the excellent 1984 documentary Before Stonewall, which you can watch in its entirety on YouTube (she’s at 19:30, but really, watch the whole thing): https://www.youtube.com/watch?v=kX7AxQd82H8
Dedication to diversity can be a liability in the workplace, according to a new study.
Researchers at the University of Colorado found that women and non-whites executives who push for women and non-whites to be hired and promoted suffer when it comes to their own performance reviews. A woman who shepherds women up the ranks, for example, is perceived as less warm, while a non-white who promotes diversity is perceived as less competent. Both end up being rated less highly by their bosses, according to the paper, which is set to be presented at an Academy of Management conference next month.
“Women can lean in and try to bridge the confidence gap all they want, but they’re going to be penalized for advocating for other women, just like non-whites are,” said David Hekman, an author of the study and an assistant professor of management at the University of Colorado’s Leeds School of Business.
Often, having women or minorities atop a company is perceived as a marker of progress for diversity efforts, but Hekman’s research suggests their presence might not have a large impact on the rest of the organization. If they believe it’s too risky to advocate for their own groups, it makes sense that successful women and non-white leaders would end up surrounded by white males in the executive suite, he said.
Before the explanation part of this post, I need to say this so it will be in posts that are shortened by a reblog: More than anything I ask that you reblog this post so that kind millionaires more people will see it and more support can be given. All the Amazon wishlists and blogs are linked below the read more link!
As the new school year approaches, we are obviously in denial teachers are mentally figuring out what materials we need for the school year, what will be provided by the school or families, and what we will buy with our own money as we shop sales (if it is in our budget). Several members of our #education community on tumblr dealt with unexpected family deaths, weather disasters, or more happy (but expensive) life achievements like getting married or having a baby. Our pockets have been hit hard, and I think you’d be surprised how much of our own money we spend on classrooms each year.
Many of us teach in areas where our students’ families cannot help with school supplies. In fact, as I began working on this project, every teacher I contacted to include that came from a more affluent community declined being included so that classrooms in greater need could be helped. I am in awe of the teachers in this community. After the jump is a list of teachers and their classroom wish lists for the upcoming year. If you are able to, please consider supporting a teacher via their wishlist. If you’d rather make a donation to their supply fund or send a gift card, I’m sure you could contact them and they wouldn’t turn you down.
So after the jump are the blogs and corresponding wishlists from Tumblr’s teachers — most of the educators on this list I have personally interacted with and know them to be dedicated to their students.
“And how hard is it to land even a minimum-wage job? This year, the Ivy League college admissions acceptance rate was 8.9%. Last year, when Walmart opened its first store in Washington, D.C., there were more than 23,000 applications for 600 jobs, which resulted in an acceptance rate of 2.6%, making the big box store about twice as selective as Harvard and five times as choosy as Cornell. Telling unemployed people to get off their couches (or out of the cars they live in or the shelters where they sleep) and get a job makes as much sense as telling them to go study at Harvard.”—"Why Don’t the Unemployed Get Off Their Couches?" and Eight Other Critical Questions for Americans (via seriouslyamerica)
[In Canada,] indigenous people make up just four percent of the general population, according to a report released by Correctional Investigator of Canada Howard Sapers last year, but they comprise nearly one quarter of all inmates, he told CBC News.
Similar statistics would appear to hold true in parts of the U.S. According to the Montana Department of Corrections 2013 Biennial Report, American Indians make up 20 percent of the state’s male prison population. “One out of every five incarcerated male offenders is Native American,” the report stated. “That is almost three times higher than the rate at which natives are represented in the general Montana population”…North Dakota, Nebraska, Wyoming, Idaho and South Dakota also send disproportionate numbers of American Indians to prison, according to a 2009 report in the The Bismarck Tribune.
”—and this is why it’s important to talk about anti-Indian racism when we talk about racism on the Plains [source] (via nitanahkohe)
“Some nationalities were deemed to be unworthy of membership in the new Soviet family. As early as 1923, the new regime had built high-security, fourteen-mile deep “frontier zones” along the new Soviet borders. But certain national groups living near the borders were still suspected of harboring sympathies for foreign powers. This was the official justification for a program of mass deportations of almost all ethnic groups with a Turkic connection, among them Crimean Tatars; North Caucasian Karachais, Balkars, and Kalmyks from the Caspian Sea; and Georgia’s Meskhetian Turks. In the Caucasus, they also deported Kurds, Armenian Hemshins, Chechens, Ingush, and Pontic Greeks. The execution of this policy virtually amounted to genocide. Soviet secret police troops closed off an entire region, rounded up hundreds of thousands of people—women and children as well as men, Red Army soldiers included—evicted them from their homes, crammed them into disease-ridden cattle-trucks, and sent them into permanent exile in Kazakhstan or Siberia. Their homelands were abolished, their cemeteries dug up, and their culture erased from the official record. As many as a quarter of the deportees died en route or never returned.”—
U.S. lawmakers said on Tuesday that the federal government may have to take a stronger role to stop parents from transferring custody of their adopted children to strangers they meet on the Internet.
At a subcommittee hearing in the U.S. Senate, lawmakers took their first look at the practice known as “private re-homing,” which bypasses the government’s child welfare system to leave boys and girls in the custody of strangers, often with little more than a notarized power of attorney.
The hearing came in response to a Reuters investigation that found online forums where desperate parents solicited new families for children they no longer wanted. Testimony shed light on the potential need for federal action to strengthen protections for children and support state efforts to help parents with post-adoption challenges.
"(It) certainly makes sense to the extent that re-homing is happening over the Internet, that it’s crossing state borders, that that necessitates – even requires – a federal response," said Sen. Christopher Murphy, a Connecticut Democrat.
Joo Yeun Chang, the Obama administration official’s top official for foster care and adoption assistance programs, said the federal government needs to provide guidance for states on what she described as a new issue. But she called for an approach that would protect all children rather than risk singling out adoptive families.
"There’s a lot of confusion about what legal custody of power of attorney documents even mean, what kind of responsibility that confers and what responsibilities parents have to maintain," she said during testimony.
"State laws need to be clear about what the parent’s responsibility is even if they do transfer legal custody."
No state or federal laws specifically prohibit re-homing. State laws that restrict the advertising and custody transfers of children rarely prescribe criminal sanctions and are frequently ignored.
After the news agency published its findings in September, at least four states passed new restrictions on advertising children, transferring custody, or both. Lawmakers in those states noted that the absence of government safeguards can result in children ending up in the hands of abusers.
Some child advocates say that congressional action is needed to limit re-homing by placing uniform restrictions on the advertising of children and requiring all custody transfers to non-relatives to be approved by a court.
But others say the need to seek court approval could be prohibitive for many families, in cases where custody of children is taken on by grandmothers or trusted family friends.
In a report issued last year, the Congressional Research Service said the interstate aspect of re-homing and the role of the Internet in facilitating the practice gave Congress opportunities to act. “Although there appears to be no federal criminal law implicated by the general process of ‘re-homing,’ this does not preclude Congress from enacting laws to protect children that may be harmed by this practice,” the report said. The Government Accountability Office will begin studying state and federal policies related to re-homing this summer.
No government agencies track re-homing, but Reuters identified eight Internet groups in which members discussed, facilitated or engaged in the practice. In a single Yahoo group, a child was offered to strangers on average once a week during a five-year period. At least 70 percent of those children were listed as having been adopted from overseas; many were described as suffering emotional or behavioral problems. Yahoo has taken down the group.
Some re-homed children endured severe abuse, and the adults who used the online network to obtain children were not properly vetted, Reuters found. In one case, a man now serving prison time for child pornography took home a 10-year-old boy whom he and a friend found online hours earlier. They picked up the boy in a hotel parking lot.
At the request of U.S. Sen. Ron Wyden, D-Ore., officials from the federal departments of State, Justice, Health and Human Services and Homeland security have been discussing ways to address re-homing. In May, Health and Human Services officials warned states about the dangers of the practice and encouraged them to use existing federal funding to support struggling adoptive families.
Over the past two years, I’ve shared a lot of space with cisgender feminists who are seeking to add a trans voice to their panel, event, or conference. I can often sense that these feminists’ hearts are in the right place with regards to trans issues. They’re trying and their effort is real but they’re still struggling to work past some conceptual issues that might affect their language.
So let’s start with the language and work backwards. Trans-inclusive cisgender feminists still have some pretty pernicious habits of language that stubbornly persist in their vocabulary.
Many friends and colleagues have written or tweeted about this problematic language but, much like I did in this frequently shared post on the sex/gender distinction, I wanted to compose a handy reference for cisgender feminists who know they want to be trans-inclusive and have learned some basic vocabulary, but want to learn “how to talk about it” without setting off any alarm bells.
1) Please remove the phrases “female-identified,” “male-identified,””female-bodied,” and “male-bodied” from your vocabulary.
These phrases are my number one pet peeve. Often the people using them think that they’re being really good by using these phrases instead of saying “women” and “men.” What they don’t know is that these phrases have a troubled, transphobic history and carry a lot of conceptual baggage. In their current instantiation, people who use these phrases are often just hypercorrecting, using language that is technically incorrect because it “sounds good.”
But why are they bad? “Female-identified” is a phrase that needlessly divides women with different body types from one another. When combined with language like “female-bodied,” “female-identified” carries with it the suggestion that women without vaginas are not really women, that they only identify as such in spite of their “male” bodies.
Bodies, furthermore, are not inherently male or female. Sex assignment is a social process governed largely by more-or-less arbitrary medical conventions surrounding ideal, normative genital appearance and heterosexual reproductive viability. The rigidity of our society’s two-sex system is by no means a natural outgrowth of our bodily characteristics: it’s our commitment to a two-gender system mapped in reverse onto our bodies.
“But chromsomes!” you might say. Nope. The things that you have learned and internalized about the sex of the human body are so affected by our social ideologies that they cannot be separated from them.
Even if distinctions like male/female-bodied vs. male/female identified were non-invasive or politically expedient (they’re neither), they also are semantically meaningless when we consider the full range of bodies that the category women includes. An intersex woman, for example, might not have a body that correlates with the full connotations of the phrase “female-bodied,” but may not have born with a penis, either.
Transgender women who have undergone genital reassignment surgery also frustrate the way in which “female-bodied” is used as a distinction between cisgender and transgender women: they have breasts, they have vaginas, and their bodies do not natively produce substantial quantities of testosterone. They don’t have a uterus, sure, but many cisgender women are born without a uterus as well.
By conventional and socially dominant methods of visible measurement, these bodies are female. But I’m pretty sure that people who use the phrase “female-bodied” are intending to exclude these bodies when they deploy that language.
What’s the solution to all this confusion? It’s easier than you might think. “Women” is a category that includes a variety of gender expressions and bodies. It will do just fine when you want to talk about women. “Men” is a category that includes a variety of gender expressions and bodies. It will do just fine when you want to talk about men.
You might not think it’s that simple, however. Feminism and other progressive political movements rightly engage with bodies in their political activism. Feminism, for example, focuses on reproductive justice and healthcare. How can we talk about sex, bodies, and reproduction without drawing lines between transgender women and cisgender women’s bodies?
Easy. When you want to talk about gender, talk about gender. When you want to talk about body politics, talk about bodies. If you want to talk about issues that affect people with vaginas, for example, you’re talking about both men and women.
And, as Katherine Cross observes on Feministing, feminism should fully integrate a focus on transgender women’s reproductive rights and healthcare with a focus on issues like abortion and birth control. Trans women’s bodies are women’s bodies and they deserve a place in the mainstream of feminist body politics and reproductive justice efforts.
To summarize, then, phrases like “female-identified” and “female-bodied” are biologically reductionist, needlessly divisive, and functionally meaningless. If you feel like they are necessary to engage in your form of feminist body politics, it’s time to shake up your body politics. EIther way, please quit using these phrases.
2) Please do not list “women” and “trans women” as different categories when listing marginalized groups or talking about oppression.
Separating out “trans women” from “women” carries with it the suggestion that a “trans woman” is not a woman unmodified, that she is a different kind of person entirely. “Women” is allowed to stand alone as an unquestioned and unmarked category while “trans women” are marked as the Other to a de facto group of cisgender women.
This linguistic habit also runs the risk of suggesting that trans women do not experience the same marginalization that women do. I most recently heard it used in the context of “I know what it’s like to be a woman but I don’t know what it’s like to be a trans woman.”
While there are forms of oppression that are unique to transgender people, transgender women share in cisgender women’s oppression. Sexual and domestic violence, street harassment, employment discrimination, body image issues, lack of access to reproductive health care, eating disorders, self-harm, the list goes on; if it affects cisgender women, it affects transgender women, too.
Furthermore, if you utter the word “women,” you are already including transgender women by definition. At that point, it’s up to you to be sure that your feminist politics also includes issues that acutely affect transgender women in particular such as police harassment, stop and frisk laws, gender identity inclusion in civil rights legislation, access to trans-inclusive healthcare, etc.
In some contexts where it’s necessary to highlight your own privilege, it might be worthwhile to note that you are unaware of the added layers of marginalization that transgender women experience. But do not do this at the expense of disavowing the common struggles of women, unmarked, unmodified, transgender and cisgender alike.
When you must speak to the specific issues that affect cisgender women and transgender women respectively, don’t leave your own womanhood unmarked while marking a transgender woman’s womanhood.
Transgender women’s particular struggles are yours too as a fellow woman; they’re not mythical, comprehension-defying.forms of oppression. If you’re a cisgender woman, you don’t get to speak from experience about transgender women’s specific oppression, true, nor do you have the authority to prescribe directions for transfeminist politics, but you also don’t get to mark transgender issues as a very important special interest compartment of feminism. They’re your issues, too.
3) Please do not self-label as “cisgender” unless you are directly commenting on your own privilege.
There are moments when one’s cisgender status needs to be acknowledged. When making claims about transgender people or speaking about transfeminist politics, it’s probably useful to let your audience know the location from which you’re speaking.
But don’t drop your “cisgender” status so much that it becomes an empty disclaimer. You do need to consider issues of authority and perspective, but please be aware that constantly reminding everyone that you’re cisgender is a way of highlighting differences between women rather than building community among them.
This is why I generally advise other women not to disclose their cisgender status on Facebook now that gender options have expanded unless they primarily use their Facebook as a political platform and feel it necessary to disclose their position of privilege.
4) Don’t make distinctions between sex and gender or use phrases like “biological woman” or “biowoman.”
I have written about this before: here and here. The justification for removing these phrases from your vocabulary follows point #1 in this piece as well.
The general lesson across all these points is: don’t draw distinctions between cisgender and transgender women unless you have to. When you do need to draw these distinctions, don’t use language that ties specific genders to specific kinds of bodies.
While I generally give most cisgender feminists who use this language the benefit of a doubt, I do want to mark a troubling mindset that often lurks behind these phrases and linguistic habits. If you’ve read through this article, clearly see what’s been happening with your language, and you’re ready to change it, congratulations! My work here is done.
If you were still encountering some internal resistance as you scrolled through this piece, read on:
Some cisgender feminists want to practice trans-inclusive politics, they know how to repeat the mantra “trans women are women” like it’s their job, but somewhere in their heart of hearts, they still approach a transgender woman on an interpersonal level as a different kind of woman. Somewhere, it still matters to them what kind of genitals another woman has. Somewhere, they don’t feel a transgender woman as their sister, they see her as an asterisk.
If this is you, you’ve got some internal work to do that goes beyond your use of language. You have to ask yourself what womanhood means to you, you have to internalize what it means for you personally that the category of “woman” includes people without vaginas or people who did not have them since birth, you have to examine and challenge your own cisnormative feelings of entitlement to know the intimate details of other women’s bodies. You have to figure out a way not just to say that transgender women are women, but to embrace transgender women as such in a way that is not tokenistic, condescending, or hollow. If this describes your position, start with the language and let your heart follow.
UN News Centre – The United Nations agency assisting Palestinian refugees has issued an emergency appeal for $60 million to respond to the urgent humanitarian needs of the people of Gaza, including tens of thousands who have fled their homes in the wake of the current Israeli military offensive.
The UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) alsonoted today the number of displaced people seeking safety in its facilities exceeds 84,000and may soon reach 100,000.
On Tuesday, two Republican judges voted to rewrite this history. Under Halbig v. Burwell, a decision handed down by Judge Raymond Randolph, a Bush I appointee, and Judge Thomas Griffith, a Bush II appointee, millions of Americans will lose the federal health insurance subsidies provided to them under the Affordable Care Act — or, at least, they will lose these subsidies if Randolph and Griffith’s decision is ultimately upheld on appeal.
Ted Cruz is undoubtedly smiling today. Two unelected Republicans just voted to erase his most embarrassing and most public defeat, and they voted to take away millions of Americans health care in the process.
Meet The Republicans
It’s important to understand just who these two Republicans are. Judge Randolph is a staunchly conservative judge who spent much of the oral argument in this case acting as an advocate for the anti-Obamacare side. Randolph complained, just a few weeks before President Obama would announce that the Affordable Care Act had overshot its enrollment goal, that the launch of the Affordable Care Act was “an unmitigated disaster” and that its costs “have gone sky-high.” At one point, Randolph also cut off Judge Harry Edwards, the sole Democratic appointee on the panel, to cite an editorial published by the conservativeInvestor’s Business Daily to prove the argument that Obamacare should be defunded.
The Investor’s Business Daily is not known as a particularly reliable source on health policy. In 2009, for example, it published an editorial arguing that Stephen Hawking, the British physicist who is an Englishman from the United Kingdom, “wouldn’t have a chance in the U.K., where the National Health Service would say the life of this brilliant man, because of his physical handicaps, is essentially worthless.”
Judge Griffith has a reputation as a more moderate judge, but it is not clear that this reputation is deserved. In 2012, Griffith’s colleague, Judge Janice Rogers Brown, published a concurring opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect. “America’s cowboy capitalism,” Brown claimed, “was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.” Later in her opinion, Brown suggested that the Court went off the rails when it “decided economic liberty was not a fundamental constitutional right.” In the early Twentieth Century, conservative justices relied on ideas of “economic liberty” that were discarded in the 1930s in order to strike down laws protecting workers’ right to organize, laws ensuring a minimum wage and laws prohibiting employers from overworking their employees.
Griffith did not join Brown’s opinion, but his explanation for why he did not do so is instructive — “[a]lthough by no means unsympathetic to [Brown’s] criticism nor critical of [her] choice to express [her] perspective, I am reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.” So Griffith is “sympathetic” to Brown’s argument that much of the Twentieth Century is unconstitutional, but he did not want to join her opinion because the arguments she made were not raised by the parties in that case. Halbig, by contrast, presented Griffith with a much more direct attack on supposedly “burdensome regulation” brought by the forces of “cowboy capitalism.”
Punishing Millions For A Proofreading Error
The two Republicans’ decision rests on a glorified typo in the Affordable Care Act itself. Obamacare gives states a choice. They can either run their own health insurance exchangewhere their residents may buy health insurance, and receive subsidies to help them pay for that insurance if they qualify, or they can allow the federal government to run that exchange for them. Yet the plaintiffs’ in this case uncovered a drafting error in the statute where it appears to limit the subsidies to individuals who obtain insurance through “an Exchange established by the State.” Randolph and Griffith’s opinion concludes that this drafting error is the only thing that matters. In their words, “a federal Exchange is not an ‘Exchange established by the State,’” and that’s it. The upshot of this opinion is that 6.5 million Americans will lose their ability to afford health insurance, according to one estimate.
The Supreme Court of the United States, however, has long recognized that a law’s clear purpose should not be defeated due to an error in proofreading. As the Court explained in 2007, “a reviewing court should not confine itself to examining a particular statutory provision in isolation” as the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” It is indeed true that a single phrase of the Affordable Care Act, if read in isolation, suggests that Congress intended only state-run exchanges — as opposed to federal exchanges — to offer subsidies, but this provision is contradicted by numerous other provisions of the law.
One provision of the Affordable Care Act, for example, indicates that any “exchange” shall be an “entity that is established by a State” — language which indicates that federally run exchanges will be deemed to be “established by a state.” This may seem counter-intuitive, but Congress has the power to define the words that it uses in any way that it wants, even if those words are defined in ways that are unusual. Another provision of the law provides that, when a state elects not to run an exchange, the Secretary of Health and Human Services “shall … establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.” Thus, the law not only authorizes the Secretary to stand in the state’s shoes when it runs an exchange, it also empowers her to implement the law’s “other requirements.”
Nor is this is the full extent of the problems with Randolph and Griffith’s conclusion. Indeed, in order to accept their decision, a person reading the Affordable Care Act must ignore the following facts:
The subtitle of the Affordable Care Act which contains the provisions at issue in this case is titled “Affordable Coverage Choices for All Americans.” If Randolph and Griffith are correct, Congress would have named that subtitle “Affordable Coverage Choices for All Americans Except For Those Americans Who Live In States With Federally-Run Exchanges.”
The Affordable Care Act says that it will “achieve near-universal coverage.” If Randolph and Griffith are correct, Congress would have said that Obamacare “achieves near-universal coverage except in states with federally-run exchanges.”
An amendment to the Affordable Care Act requires the federally-run exchanges to report various information that they would only be able to report if they were providing subsidies, such as whether taxpayers received an “advance payment of such credit”; information needed to determine individuals’ “eligibility for, and the amount of, such credit”; and “[i]nformation necessary to determine whether a taxpayer has received excess advance payments.” Congress would not have imposed this reporting requirements if they thought that the federal exchanges would not offer subsidies.
The Affordable Care Act also provides that the only people who are qualified to purchase insurance at all on a federally-run exchange are people who “reside in the State that established the Exchange.” Thus, if federally-run exchanges are not deemed to be “established by the State,” that means that no one at all is allowed to purchase health insurance on the federally-run exchanges, and there would be no purpose whatsoever to their existence. As the trial court explained in this very case, this interpretation makes no sense, because “courts presume that Congress has used its scarce legislative time to enact statutes that have some legal consequence.”
Virtually no one, apparently including at least one of the plaintiffs who brought this lawsuit, actually believes that these propositions are true. Indeed, as the government points out in its brief, one of the plaintiffs who brought this lawsuit also was a plaintiff in the last lawsuit seeking to gut Obamacare, the challenge to the individual mandate that was rejected by the Supreme Court. In that lawsuit, this plaintiff argued that the subsidies were an integral part of every exchange’s’ very design — “[w]ithout the subsidies driving demand within the exchanges, insurance companies would have absolutely no reason to offer their products through exchanges, where they are subject to far greater restrictions.” Now, however, he expects the courts to believe that these subsidies were entirely optional, and that Congress intended federally-run exchanges to get along without them. Notably, the exact same lawyer represented this plaintiff when he made both of these mutually exclusive claims.
To get around this fact, Randolph and Griffith spin an alternative history of the Affordable Care Act’s passage. A major prong of this alternative history claims that Congress wanted to deny subsidies to people in states with federally-run exchanges because that that would provide states with an incentive to start their own exchange — in Randolph and Griffith’s words, Congress “us[ed] subsidies as an incentive to gain states’ cooperation.” Thus, in this narrative, Congress viewed getting states to run exchanges as an all-encompassing goal, trumping even the law’s stated goals of providing “Affordable Coverage Choices for AllAmericans” and achieving “near-universal coverage.” Needless to say, there is absolutely no evidence whatsoever that Congress actually viewed the administrative question of which set of government bureaucrats would run a particular state’s exchange as a question of such superseding importance that they were willing to deny health coverage to millions of people in order to ensure that the right set of bureaucrats run the exchanges in each state.
An Opinion That Kills
Should Randolph and Griffith’s decision be upheld on appeal, which, for reasons explained below, is unlikely, it would send destructive shockwaves through much of the American health care system. As ThinkProgress previously explained, suddenly removing federal subsidies from insurance markets that expect them to continue being paid would force health insurers to jack up their premiums in order to cover their costs. Higher premiums, however, would cause many healthy individuals to drop their coverage. Which will force insurers to raise their premiums even more, which will cause even more individuals to lose their coverage. Indeed, according to a brief filed by several economists, the resulting death spiral would render insurance “unaffordable for more than 99 percent of the families and individuals eligible for subsidies” within the federal exchanges.
This economic problem exposes yet another flaw in Randolph and Griffith’s opinion. In order to accept their reasoning, one has to believe that Congress buried a hidden time bomb within the arcane provisions of the Affordable Care Act that, when it detonated, would render much of the act a nullity. As the economists explain in their brief, Randolph and Griffith’s decision presumes that “Congress sought to legislate into existence a massive new social program that it understood would immediately fail.”
So Randolph and Griffith’s opinion would be comic if its result were not so tragic. And make no mistake, if this opinion is upheld on appeal, it will be a tragedy. According to one Harvard study, nearly 45,000 Americans between the ages of 18 and 64 died in a single year because they lacked health insurance. Randolph and Griffith’s decision would ensure that many of these deaths resume. That’s tens of thousands of wives who will never hold their husbands again, and tens of thousands of fathers who will never kiss their daughters again, all because two unelected Republicans hunted through an ocean of language indicating that Congress intended to end these needless deaths in order to find a single piece of flotsam suggesting that the law should be defunded.
This is not how judges typically behave in a democracy. And it is not a decision that is rooted either in Congress’ intentions or in Supreme Court precedent.
An Opinion That Is Unlikely To Survive
We live in interesting times. And we live in times where judges and justices can no longer be expected to rely on established law, especially when they are presented to an opportunity toundermineObamacare. Nevertheless, there are several reasons to be optimistic that Randolph and Griffith attempt to defund Obamacare will not survive contact with a higher authority.
For starters, under the Supreme Court’s Chevron Doctrine, courts typically defer to a federal agency’s reading of a law so long as “the agency’s answer is based on a permissible construction of the statute.” Randolph and Griffith get around this doctrine by claiming that the law “the ACA unambiguously restricts the section 36B subsidy to insurance” purchased on state-run exchanges.
If you truly believe that the only possible interpretation of the Affordable Care Act’s language is the one adopted by Randolph and Griffith on Tuesday, then you may want to go back to the top of this article and start reading it all over again. In any event, two federal judges previously concluded that Obamacare is unambiguous in the other direction — that is, it unambiguously offers subsidies to people who purchase insurance through federal exchanges. That alone demonstrates that, even if the law isn’t completely clear, its meaning is at least uncertain enough that the courts should defer to the agency’s reading underChevron.
More importantly, Randolph and Griffith’s own colleagues are unlikely to allow this opinion to stand for long. The federal government may now appeal this decision to the full United States Court of Appeals for the District of Columbia Circuit, where Democrats enjoy a 7-4 majority among the court’s active judges. It is unlikely, to say the least, that a Democratic bench will strike down President Obama’s primary legislative accomplishment based on the highly doubtful reasoning contained in Randolph and Griffith’s opinion.
Should the full DC Circuit intervene, of course, their decision can ultimately be appealed to the GOP-controlled Supreme Court. But we’ve already seen this story play out once before. The last time conservative lawyers brought a case to the Supreme Court seeking to gut Obamacare, Chief Justice John Roberts voted to uphold the bulk of the law.
Roberts cast this vote a year-and-a-half before much of the law would actually be implemented, meaning that, if he had chosen to struck down the law then, he would have been able to do so at a time when the constituency for upholding the law was relatively small. Now, however, millions of Americans stand to lose their health insurance if Roberts signs on to Randolph and Griffith’s reasoning — and Roberts would be personally responsible for the subsequent loss of health coverage and needless deaths that would result. If Roberts was unwilling to trash the law at a time when the impact would have been relatively small, it is unlikely that he will do so under circumstances that are likely to inspire the masses to storm his castle while wielding pitchforks.
The 4th Circuit just handed down it’s decision in a similar case challenging Obamacare subsidies in the federal exchanges. It reached the opposite conclusion and upheld the subsidies.
I don’t care if nobody likes this status, or thinks I’m standing on a soap box. I need to speak out about this so people know the truth. I work with a lot of patients who are on GA or TANF. Growing up in a conservative household, I always heard about it being a waste of tax dollars, and a corrupt system that people abuse because they are lazy and don’t want to work. THAT COULD NOT BE ANY MORE WRONG. Also, if you are on TANF (welfare for families) and have another child, YOU DON’T RECEIVE ANY MORE MONEY FOR THAT CHILD, THAT CONCEPT IS A MYTH. First of all, if you are single, without child, or not a veteran, the cash benefits you will receive are so minimal, when I see the numbers on my patients charts, I want to cry. I could not imagine living off of $100 a month, and maybe MAYBE $50 in food stamps! That $150 comes with a lot of responsibility as well, like meeting with your CSW face to face twice a month, working as a volunteer, being in school, or working if you are in a homeless shelter doing dirty difficult jobs for $5 a week. Now before you start with your “but why don’t they get a job then!” or “stop doing drugs and being lazy”, I’d like to let you know that a majority of people WHO CAN WORK get off of welfare extremely quickly. There is also a 68 month time limit for your entire lifetime, unless you meet certain standards, and have worked enough in your life to receive SS. The other HUGE portion of these people are sent to me, because there are neurological barriers keeping them from a job. The thing is, though programs like ours exist, NOBODY GIVES A HOOT ABOUT THE PEOPLE WHO I TRY TO HELP, WHICH MAKES MY JOB A MILLION TIMES MORE DIFFICULT. Homeless shelters have long long long long long waiting lists, and if you are a single female, FORGET ABOUT IT, they won’t let you in. Women shelters try so hard with so little, they have maybe 100 beds in the ENTIRE tri state area. If you know Northern New Jersey, and the Boroughs of New York City, this SHOULD shock you. I had a patient today who came into my facility unexpected, she was extremely suicidal, her mother (who is also mentally ill and living on next to nothing) kicked her out of the house because she found out her daughter was a lesbian, told her “if you come back I will kill you”. This woman also had a suicide attempt a few months back, she has severe learning disabilities, as well as a psychotic form of bipolar type II. Her father is dead, and her CSW informed me that no matter how many times she called the family she did have, they would hang up. I spent my entire day trying to find somewhere for her to go, nobody would take her, either because they had no space, they don’t take single women, or they were shut down all together. I also called PESP which is a crisis hotline, they didn’t consider it a “crisis” situation….after I told them my patient was hispanic, in her thirties, and on GA. I also told them every single aspect of her barriers, which meant NOTHING to them. The woman was completely disgusting over the phone, could absolutely care less. The hospital wouldn’t do intake because her medicaid didn’t support it. It was hell for me, having to tell this woman who is in the room with me crying to me. She’s my responsibility, and I could do nothing. I had to let her go on the streets tonight in downtown Paterson, in the rain, with suicidal thoughts and nobody to talk to/turn to. I can’t put into words how much pain my heart is in. Please donate to homeless shelters, women’s crisis centers, and actual social programs that will help women like this, who cannot help that they were born into hell, with not only their own brain working against them, but the society they were innocently born into.
This is a beautiful rant. A beautiful, justified rant.
I just have one tiny nitpick: It varies state to state whether or not a recipient gets an increase in TANF benefits for having a child. Here in CA you can’t; in PA you can.