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Gallup released a new survey suggesting that since the enactment of the ACA, the percentage of Americans who think “the responsibility of the federal government to make sure all Americans have healthcare coverage” has decreased.

Gallup observes:

Compared with today, Americans were more widely inclined to say ensuring healthcare coverage is a federal responsibility between 2000 and 2008, with majorities of 54% to 69% saying this. But as President Barack Obama’s Affordable Care Act was debated and implemented, the issue became politicized, leading to a nearly even division on the question from 2009 to 2011.

By 2012, sentiment against healthcare being a government responsibility swelled to 54%, and it remained the majority view through 2014. But last year’s poll found Americans shifting more toward the view that the government should ensure all have healthcare, and this holds today.

One of the greatest failings of the ACA’s party-line vote was that roughly half the country did not participate in a massive expansion of federal power over healthcare. As I discuss in Unraveled, this same contingency had no problem opposing it, even after it was enacted.  This further polarized critical discussions of public health.

I included this passage from the Epilogue of Unraveled, which is more true today in light of these numbers:

The ACA’s polarized history complicates its future. Going forward, public health discussions will be inextricably interwoven with partisan rancor. University of Chicago health law professor Harold Pollack lamented that “so many promising [health care] delivery reforms are tinged by their association with President Obama’s signature domestic policy achievement.” In 2017, and beyond, any effort to unravel health care and politics will prove unavailing. Future reforms of the ACA will be permanently entrenched along Obamacare’s battle lines.

For these reasons, I have urged Republicans to find a way to make Obamacare’s replacement bipartisan–or else we will be stuck in the same divided posture that the Gallup poll illustrates.

On a related note, Harry Reid predicted that the Senate filibuster is not long for this world.

Reid predicted that the 60-vote filibuster threshold for legislation and for Supreme Court nominees will ultimately disappear altogether — calling it a natural evolution of the chamber.

The rules are “going to erode, it’s just a question of when,” Reid said. “You can’t have a democracy decided by 60 out of 100, and that’s why changing the rules is one of the best things that has happened to America in a long time. It’s good for us, it’s good for them.”

If Republicans go nuclear, it will be for Obamacare.

In October, I recorded a 45-minute long podcast on the “Your Weekly Constitutional,” with airs on WETS 89.5 FM in Johnson City, Tennessee, and syndicated nationally. The show is hosted by Stewart Harris, who teaches at the Appalachian School of Law. The title of the feature was “The Most Dredd-full Chief Justice.” We took a deep dive into Chief Justice Taney, inspired by Frederick, Maryland’s then-recent decision to remove his statute from public grounds. We also take detours to Ex Parte Merryman, the distinction between judgment and precedent, and a host of other fun topics.

Enjoy.

Recently, United announced that passengers will be able to buy discounted tickets, known as “Basic Economy,” but there are two primary conditions: first, you are not assigned a seat until you check in; second, passengers will not be allowed to stow carry-on bags in the overhead compartment–bags must fit below the seat.

On cue, Senator Chuck Schumer found something else he wants to ban.

“The overhead bin is one of the last sacred conveniences of air travel and the fact that United Airlines — and potentially others — plan to take that convenience away unless you pay up is really troubling,” Schumer wrote. “It seems like each year, airlines devise a new, ill-conceived plan to hit consumers and it has simply got to stop.”

My general rule of thumb is that whatever Chuck Schumer wants to ban, I support. Once again, my rule carries the day.

To prove my point, I must flash back to December 16, 2009, in one of my earliest blog posts, when Senator Schumer called a flight attendant a “bitch” because she made him turn off his phone before takeoff. (It is unclear if Billy Bush and Access Hollywood had a secret recording).

Schumer asked if he could finish his conversation. When the flight attendant said “no,” Schumer ended his call but continued to argue his case.

He said he was entitled to keep his phone on until the cabin door was closed. The flight attendant said he was obliged to turn it off whenever a flight attendant asked.

“He argued with her about the rule,” the source said. “She said she doesn’t make the rules, she just follows them.”

When the flight attendant walked away, the witness says Schumer turned to Gillibrand and uttered the B-word.

But moments after the flight attendant had told Schumer to shut it off, the phone rang again.

“It’s Harry Reid calling,” the source quoted Schumer as saying. “I guess health care will have to wait until we land.”

You see, when it comes to passing Obamacare, Senator Schumer is fine with delaying everyone else on the flight. (In hindsight, December 19 was a pivotal date, as the Senate was on the cusp of voting for the ACA).

The primary reason why I support this new option is because it will speed up boarding. If you have taken a United flight in the last few years, you will be familiar with this message: “If you are in Zones 4 or 5, you will not be able to bring you bag on board. Please check it at the gate.” Without fail, on every sold-out flight, roughly 40% of the passengers are not able to check their bag in the overhead. Yet, they attempt to do so anyway. So much time is wasted as passengers go up and down the aisles, often blocking the boarding process, trying to find overhead storage where there is none. Ultimately, all the extra bags are brought to the front of the plane, and they are checked at the gate. This wastes so much time, and adds to the stress of flying. Forcing more people to check their bags–here though offering a discounted ticket–is a smart move.

Also, the bag-check fee is $25. So long as the difference in price between the “Basic Economy” and the “Economy” tickets is more than $25, this will be a worthwhile deal. (If you sign up for a United credit card, you board in Zone 2, and the check-in fees are waived).

The much bigger inconvenience is that you do not have a reserved seat. But if you are travelling alone, and don’t care where you sit, this could be a way to save money.

This term, the Supreme Court will hear arguments in Lee v. Tam, which considers whether the PTO violated the First Amendment through their denial of a trademark for “The Slants,” an Asian-American rock band. Tony Mauro reports that–in what must be a first–The Slants recorded a rock song about their case!

The new song, [Frontman Simon Tam] said, was meant to be “an open letter to the trademark office.”

He added, “For us, this case has always been about civil rights.”

You can buy a copy from Microsoft–if you do, it will be the best $.99 you spend today. The song, titled “From the Heart,” should serve as the Supreme Court’s Free Speech Anthem.

Here are the official lyrics from frontman Simon Tam:

Sorry if our notes are too sharp
Sorry if our voice is too raw
Don’t make the pen a weapon
And censor our intelligence
Until our thoughts mean nothing at all

Sorry if you take offense
You made up rules and played pretend
We know you fear change
It’s something so strange
But nothing’s gonna’ get in our way

There’s no room
For your backward feelings
And your backyard dealings
We’re never gonna settle
We’re never gonna settle

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart

No, we won’t be complacent
know it’s a rock n roll nation
We sing from the heart
We sing from the heart

Sorry if we try too hard
To take some power back for ours
The language of oppression
Will lose to education
Until the words can’t hurt us again

So sorry if you take offense
But silence will not make amends
The system’s all wrong
And it won’t be long
Before the kids are singing our song

There’s no room
For your backward feelings
And your backyard dealings
We’re never gonna settle
We’re never gonna settle

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart

No, we won’t be complacent
know it’s a rock n roll nation
We sing from the heart
We sing from the heart

Or, if you’d like it in legalese, here is the Respondent’s brief in opposition to certiorari:

The Slants are also crowdsourcing money to fund their trip to the Supreme Court. I contributed.

A number of states prohibit employers from taking adverse actions against employees for engaging in lawful off-duty conduct. The National Conference of State Legislatures published a report in 2010 listing the states that offer such protections. For example, California, Colorado, New York, and North Dakota provide protections for employees who engage in “lawful activities.” Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin protect employees who use “lawful products.” Eighteen other states protect employees who use tobacco.

As a libertarian, who generally favors liberty of contract and at-will employment, I do not have any strident objections to employers firing employees for off-duty conduct they disfavor. The rationales behind these laws, however, is that employers should only make adverse decisions based on conduct in the work place. These laws make sense to progressives who want to regulate all manner of employment–such as “banning the box” about past criminal activity. At various times in American history, “black lists” were used to prevent suspected Communists from working in certain industries. Attending a meeting of the Communist Party is not onyl lawful, but constitutoinally protected. In California, firing a private-sector employee for being a suspected Communist would be illegal.

Pennsylvania has no such law, which is relevant in light of the story of “Pistachio Girl.”  Emiy Youcis sells pistachios at Philadelphia Phillies games. She made a number of comments on social media and elsewhere about “white nationalism,” and endorsed the “alt right” movement. Her employer, Aramark, fired her for these statements.

“A core Aramark value is treating everyone with integrity and respect always. That includes respecting our associates’ right to privacy and dealing with personnel matters confidentially. We can only confirm that the individual asked about is no longer employed after publicly connecting our company to views that contradict our values.”

Youcis’s comments were well-within the protections of the First Amendment, so they are lawful conduct. But under Pennsylvania law, it was entirely lawful to terminate her. For Aramark, a private employer, it was likely a business decision–those that patronize or support the team may not like the presence of Youcis in the ballpark.

The ACLU of Pennsylvania offered no defense:

They haven’t been, said Mary Catherine Roper, deputy legal director of ACLU of Pennsylvania.

 “Private employers don’t have to respect your views,” Roper said. “You don’t get to turn somebody else’s company into a platform for something they disagree with.”

Even if you have no sympathy for Youcis, or the alt-right, this story should trouble you–especially if you are a lawyer. As I discuss in Unraveled, a common ploy of the left is to use social pressure to force big law firms to drop conservative causes. Paul Clement had to drop his representation in the DOMA litigation after LGBT groups leaned on his firm. David Rivkin had to drop the case in House of Representatives v. Burwell after liberal groups–and perhaps even the Obama administration–leaned on his firm.

I had to chuckle at today’s press release in the New York Times extolling law firms who are coordinating to support gun control laws. There’s nothing new about law firms supporting causes on the left. The threat, however, is a blacklist for attorneys are law firms that support conservative causes.