Kavanaugh Continues Trump’s Attack on Workers

(Note: I had one of my most-trafficked days yesterday thanks to a Yemen post. So let’s follow that up by talking about OSHA!)

Image result for orca

A popular fish-based* entertainment park, let’s call it “Ocean World”, or “Sea Land”, has a show employing killer whales. A killer whale attacks and kills a trainer. It’s found that the entertainment park, which has a whole host of other problems, was found to have had safety lapses that led to the death of the trainer.

You’re asked to rule on whether OSHA, which by statute protects “all employees”, can fine the company a whopping $70,000 for violations. The case comes to your court. Do you rule:

  1. Oh, jesus, of course
  2. I find that while the death was tragic, WaterHeaven was not in violation of the statutes regarding safety, which I nevertheless find to be very important and Good.
  3. OSHA sucks.

If you’re Brett Kavanaugh, you’ve picked #3. Steven Greenhouse at The American Prospect explains more.

For Kavanaugh, the issue wasn’t what should SeaWorld have done to prevent Brancheau’s death or how could federal regulation have best helped prevent her death. Instead, the overriding issue for Kavanaugh was whether OSHA should even be regulating a company like SeaWorld. Kavanaugh asserted that OSHA should not be regulating sports or entertainment activities, saying it would be foolish, for instance, for OSHA to seek to limit injuries in professional football or NASCAR racing.

Although Kavanaugh describes himself as a “textualist” who follows the text of statues, he sought to create out of whole cloth an exemption from safety regulation for “entertainment activities” even though the Occupational Safety and Health Act of 1970—passed by a bipartisan majority and signed by Richard Nixon, a Republican—states that the law applies to “each employer.” The act calls on every employer to “furnish to each of [its] employees” work that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Writing that OSHA would never regulate football or NASCAR racing, Kavanaugh argued that since OSHA can’t explain why it wouldn’t regulate those “sports and entertainment activities,” but had opted to regulate SeaWorld, it was arbitrary and capricious and therefore illegal for OSHA to regulate SeaWorld. Kavanaugh glosses over the fact that Brancheau’s work at SeaWorld was not a competitive sport, like football or hockey, where injuries are inevitable.

Now, you could say this is a one-off type of case, as whale-training falls into a strange category of work. There are very few lines of business where it is even possible to get eaten by an orca, much less have that be a hazard of the job. I don’t know how he’s ruled on OSHA overall, if cases have come up.

But there are some key phrases here which give us hints. “aribtrary and capricious” are guiding lights in movement conservativism which can be used for any regulation which gets in the way of profit or protects workers at all. For a man to look at this case and feel that the real issue here is government overreach sort of distracts from his self-painted image of being an impartial jurist.

We know this, of course: he’s a mediocre flack, a rich fratty sex pest who has carried water for the conservative movement from the jump. Putting a man like him on the court has been the goal of the movement for 40 years; they’ve meticulously groomed and promoted his type.

There are a few end goals here. One, of course, being the end of Roe and Griswold.  The goal is to end any environmental protections that stop capitalists from doing whatever they want. The goal is to destroy any labor movements that get in the way of overwhelming profits. The goal, at its essence, is to remove the protections that recognize works as more than just tools of the boss class, to be used and disused as they please. It’s to stop recognizing that workers are human beings.

Kavanaugh isn’t alone. Neil Gorsuch famously believed that a worker has no right to protect her or his own life if it meant hurting the company at all. When a truck driver stranded in sub-zero conditions unhitched his trailer, whose brakes had failed, and drove to safety, he was fired for abandoning his cargo. Six judges said he had every right to do that. Gorsuch?

Maddin “wasn’t fired for refusing to operate his vehicle,” Gorsuch wrote last year in his dissent. He was fired for operating — that is, driving — his vehicle in a way contrary to company policy. So the company had a right to fire him.

Maddin had a simple choice, Gorsuch concluded: Freeze to death or lose your job. Maybe the company was not wise or kind, he added, “but it’s not our job to answer questions like that.” We judges just apply the law to the case at hand.

Now, obviously, there is a bit of a dodge here. He is sighing from above, wishing the company had policies that were better. But, alas, in this fallen world, what can one do? One can only “apply the law”.

The translation here is that if a company has a policy, no matter how dangerous or deadly or cruel it is, that must be followed. Men of goodwill like Neil Gorsuch can wish to heaven above that it were different, but if a company makes a decision, and you agree to work for them, your life is forfeit. Literally, your life belongs to company policy, which can’t be changed by regulation or judicial decree.

Kavanaugh might not make it through. But the next Heritage-clone who does will believe the same things. They are making it so that workers have no rights at all. They are making it so that if you sign a contract, you aren’t selling your labor to the highest bidder, but that the company is buying you.

This will be one of the primary legacies of Trump. He likes to talk about the working class, but his whole life has been marked by seething contempt for them. From screwing over contractors to dismantling every regulation possible, he’s punished those he’s seen as weak while empowering the already-powerful. He thinks that states should race to the bottom to compete for dangerous, unprotected jobs in which they can despoil the air workers breathe and the water they drink. There hasn’t been a bigger foe to workers since Calvin Coolidge.

And we have a Supreme Court poised to make that a generational reality, enshrined by a President elected with a minority of votes, the aid of a foreign power, and a vast campaign of voter suppression. If you ask if America remains a democracy, you have your answer right there.

 

*Melville concluded whales were fishes. Who am I to argue?

 

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Monday Quick Hits: Robots, Water, and Keystone

 

robot-1

“So I says to Mabel, I says…”

 

Did everyone have a good weekend? I had a great weekend. Lots of family, and lots of toast to Trump’s and Ryan’s failure to devastate the lives of millions of people. But this victory is, I think, just a pause. The battle will be to pressure Republicans, who seem to be a bit nervous about ruining the lives of their constituents, to make positive changes to the ACA, rather than repeal it.

Admittedly, they’re in a bind. The Times reported some anecdotes about people in GOP districts shocked that their reps would even think about such a thing, and might not vote Republican again. But then, there are also lots of GOP voters who, having been told that Obamacare was basically the forward thrust of creeping Bolshevism, are mad that it wasn’t repealed. So they are caught in a dilemma, namely: how do we do the things we’ve been saying we were going to do now that people have learned exactly what it is?

So now the question for Democrats is: how much should they work with Republicans? They are, thankfully, not eager to make some kind of “grand bargain” in order to help out the Republicans. The goal should be to fix Obamacare, working where you can to lower costs and make sure that insurance companies stay in. The talk of the “death spiral”, always exaggerated, is made possible by the threat of repeal. With that out of the way, for now at least, it could be possible to woo nervous Republicans to fix the bill at the margins, essentially working around Paul Ryan. That’s why the continued pressure from the outside is the only way to heighten their fear, and maybe force their hand to do the right and sensible thing and fix Obamacare.

Or, you could be like the President, who seems eager to watch the whole thing spiral out of control.

The “do not worry” is an especially nice touch.  He’s got a plan!

-Re/Code had a little story today about how PwC estimates, offhand, that the US could lose 40% of its jobs over the next 15 years thanks to automation. While there would of course be jobs created by automation (engineer, repair, etc) most of these will be high-skill jobs for people with advanced education. This is more than an unemployment trend; even if PwC’s numbers aren’t strictly accurate, this is economic devastation. This is something that can fundamentally alter society.

Massive unemployment of that sort needs to be ameliorated with something like a Universal Basic Income, or, failing that, an effort to create new work around infrastructure, tourism, or more. But there needs to be a collective effort grouped around the ideas that 1) the common good actually exists; and 2) that self-government is a good thing.

This isn’t something private markets can fix alone; indeed, it is the private market that will be at fault. There needs to be collective action to help the less educated and more vulnerable people in the new economy–the same ones who have been hurt for decades by market forces. That many of these are your stereotypical Trump voters (though they will be joined by millions of white collar types as well) represents an opportunity to convince them that the government is not the enemy, and that, in fact, this kind of intervention is the heart of the American experiment.

Of course, we’re debating whether or not it is ok if people just, you know, die because they don’t have employer-based insurance, so consensus on this seems a long way off.

-But we do have an answer on Keystone! That answer, of course, is “yes”. Trump signed off on Keystone on Friday, saying in a signing ceremony that:

It’s a great day for American jobs and a historic moment for North American and energy independence.  This announcement is part of a new era of American energy policy that will lower costs for American families — and very significantly — reduce our dependence on foreign oil, and create thousands of jobs right here in America.

It’s important to note, in the interest of being strictly accurate, that none of this is true. And it is just weird to talk about reducing “our dependence on foreign oil” right before you introduce the President of TransCanada, above and beyond the fact that this isn’t how the oil markets work. The sludge pumped over the largest underground aquifer isn’t going to be shuttled to your car. It goes into the global markets. I honestly don’t know if Trump understands this. I also wonder how he would reconcile the “lower costs” with the fact that, while Keystone was blocked, gas prices plummeted.

It is also good to note that this isn’t a done deal. As the TransCanada President reminded the United States President, they face resistance and lawsuits in Nebraska, where people don’t want a Canadian pipeline bringing dangerous material across their lands and into their water. That led to this exchange.

Trump: So we put a lot of people to work, a lot of great workers to work, and they did appreciate it.  And they appreciated it, Russ, very much at the polls, as you probably noticed.  And so we’re very happy about it.

So the bottom line — Keystone finished.  They’re going to start construction when?

MR. GIRLING:  Well, we’ve got some work to do in Nebraska to get our permits there —

THE PRESIDENT:  Nebraska.

MR. GIRLING:  — so we’re looking forward to working through that local —

THE PRESIDENT:  I’ll call Nebraska.  (Laughter.)  You know why?  Nebraska has a great governor.  They have a great governor.

MR. GIRLING:  We’ve been working there for some time, and I do believe that we’ll get through that process.  But obviously have to engage with local landowners, communities.  So we’ll be reaching out to those over the coming months to get the other necessary permits that we need, and then we’d look forward to start construction.

THE PRESIDENT:  Okay.  I’m sure Nebraska will be good.  Peter is a fantastic governor who’s done a great job, and I’ll call him today.

Remember that the head of an oil company is talking about working with local communities and landowners, and the President of the US is saying he’ll call the governor to get it done. That’s a true populist man of the people right there.

Overtime Regulations and Health Care: GOP Demonstrates the Measure of Human Existence

 

Image result for industrial revolution workers conditions

Pictured: GOP Nostalgia

 

In the daily brief of the New York Times, there’s a link-filled sentence that gives away the entire universe.

Party leaders worked into the night on Wednesday to secure the support of rank-and-file members, who our writer says face a dilemma: Vote for a bill that could harm their constituents, or undermine President Trump’s agenda.

While admitting that the Morning Brief writer may have put their thumb on the scale a little bit, it’s also impossible to deny that this is their real choice: go against Trump and mainstream GOP wishes, or hurt their constituents by throwing them into poverty and turmoil in order to pass a massive tax cut. That is to say, more bluntly: President Trump’s agenda will hurt their constituents (and, of course, his constituents, but the entire career of Donald Trump has been to leave other people holding the bag, so who is really surprised?).

And, meanwhile, while the Gorsuch hearings and Comey testimony have understandably taken up much of the oxygen, the hearing for new Labor Secretary Alexander Acosta has been kicking off. Elizabeth Warren, as is her habit, got things off by saying the exact right thing.

“I’ll be honest, I’m glad it’s not his first choice, Andrew Puzder, who is sitting here today. That said, the test for secretary of Labor is not, ‘Are you better than Andrew Puzder?’ The test is, ‘Will you stand up for American workers?’ ” she added.

The thing is, that’s not really what the GOP believes should be the role of labor secretary, since they don’t at all respect labor, except as a way to garner votes. They truly believe that unions should be destroyed (something Judge Gorsuch seems to agree with), and while Donald Trump makes protectionist noise, it is clear he is against minimum wages and encourages states to compete with each other in a race to the bottom. While that might, in a way, be pro-make-stuff-in-America, it is very far from being pro-worker.

Indeed, the driving philosophy is that workers exist to make money for the bosses. That’s always been the main philosophy behind capitalism, and it has only been tempered by the progressive movement (which inarguably saved capitalism from itself). We saw this again when Barack Obama moved to change overtime rules, saying that people who make a certain percentage above the poverty line should be compensated for working overtime.

Think about that. The rule is literally saying that you should be paid for the hours you work. For years, businesses, especially low-wage ones that hire younger people, minorities, and other vulnerable populations, have skirted overtime rules by “promoting” low-wage workers to “management” positions, which are often exempt from overtime. Because, you know, if you have this high-paying responsibility, you should be willing to work the extra hours.

Of course, the management positions didn’t come with any actual extra money. They only came with the overtime exemption. That’s because, as per current guidelines, the overtime rules only protect workers making less than $23,660 per year. Think about that. If you make $24,000 a year, and I’m guessing most of my readers make considerably more, you are considered too well off to make money for working overtime.

The Obama update moved that to a far more reasonable $47,476, and that set of screams from the right, that they are killing small businesses, overregulating, sticking the bearish claw of big government into the sweet honeycombs of mom and pop businesses like Arby’s, etc. Because, as always, the priority for the right is to maximize profit by grinding down workers. By converting them into capital while paying the absolute least and investing the bare minimum into the community.

Anyway, Acosta, to his credit, seemed to realize that pegging the overtime rules to 2004 standards was absurd, and sugessted that it could be raised along with inflation, which would put it around $33,000. That’s better, but still seems pretty low. But still, even that modest hedge is greatly qualified by his appeal to a worker-hating down-the-line Republican.

In addition to the overtime increase, unions scored major victories when the Obama administration issued one rule limiting workplace exposure to silica, a cancer-causing substance, and a second rule requiring investment advisers to act in the best interests of their clients.

The Labor nominee indicated he would follow Trump’s direction on the three rules, which means the agency could go through the rulemaking process again to repeal them.

Which means: none of these are going to go through. The Trump administration, fulfilling Heritage Foundation fantasies, has been working hand-in-glove with Congress to destroy worker safety regulations on federal and state levels. What makes you think they are going to protect overtime rules?

The fiduciary rule, where investment advisors have to work in the best interests of their clients, and not themselves, is another obvious tell. (Imagine if, say, medicine had the same lack of standards. “It’s his right to just practice an appendectomy if he wants!”) Profit for the very few isn’t the main goal: it’s the only belief.

I’m going to finish this with another little story I think is telling, which I came across doing research for another article for my day job.

Tim Cook, was asked at the annual shareholder meeting by the NCPPR, the conservative finance group, to disclose the costs of Apple’s energy sustainability programs, and make a commitment to doing only those things that were profitable.

Mr. Cook replied –with an uncharacteristic display of emotion–that a return on investment (ROI) was not the primary consideration on such issues. “When we work on making our devices accessible by the blind,” he said, “I don’t consider the bloody ROI.”

Now, obviously, I’m not praising Apple in an article talking about worker rights and such. But think of the mentality of the NCPPR: they literally are offended by the idea that a company could do anything that wouldn’t immediately increase “shareholder profit”, which includes such squish nonsense as protecting the environment.

The whole goal, the whole mentality, is that of a shareholder/boss dominion. Workers, and indeed the entire earth, is means toward profit. They are mere tools. That’s all they are, and that’s all they ever should be. That’s why I think the health care plan still has a chance at passing. If they can make it cruel enough, and it looks like they’re trying to do so, they can get the Freedom Caucus, for whom other people’s life and liberty are the cheap prices to be paid for the pursuit of profit.