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Concern Trolling on Immigration I

[ 43 ] November 21, 2014 |

Via Edroso, we have warnings of TYRANNY coming from Damon Linker:

The rule of law is far more about how things are done than about what is done. If Obama does what he appears poised to do, I won’t be the least bit troubled about the government breaking up fewer families and deporting fewer immigrants. But I will be deeply troubled about how the president went about achieving this goal — by violating the letter and the spirit of federal law.

To grasp precisely what’s so galling about Obama’s proposed actions, it’s necessary to reflect on the nature of executive power and its permanent potential to become despotic.

The main problem with this argument is that Obama is not, in fact, violating the letter of the law. He just isn’t. The Ross Douthat posts that Linker links to have a lot about alleged violations of norms and slippery slopes, but as far as I can tell no argument that Obama is violating the text of the statue, because he isn’t. Nor are his actions even unprecedented. The arguments that his actions are unconstitutional are so weak that one-note anti-immigration crank Mickey Kaus concedes that for the Court to so rule would be analogous to Bush v. Gore.

All of this is standard issue. But what’s unique is that Linker goes on to defend George W. Bush’s actual violations of the U.S. Code and specific provisions of the U.S. Constitution by comparing them to Lincoln’s actions during an actual ongoing military insurrection. That’s how you concern troll, ladies and gentlemen.

Obama’s Immigration Order: Good Policy, Legal, And Doesn’t Establish A New Precedent

[ 31 ] November 21, 2014 |

I have a piece up on Obama’s immigration order. It’s formally legal, it’s good policy for the reasons Erik explains below, and while it’s not the ideal means of establishing the policy it’s the only game in town. In particular, I reject the idea that this establishes some kind of dangerous new precedent:

If the Republican party was at all interested in actual governance, a mediocre immigration reform proposal passed by Congress would be preferable to an executive order, which can be undone with the stroke of a pen after the next election (which will not have Barack Obama on the ballot). But that also undermines claims that Obama’s executive order represents “tyranny”.

Does using executive privilege to achieve immigration reform set a dangerous precedent? Well, long before Obama even ran for elected office – as Erwin Chemerinsky and Samuel Kleiner observed at the New Republic – Ronald Reagan “took executive action to limit deportations for 200,000 Nicaraguan exiles” and the first President Bush did the same for some Chinese and Kuwaiti citizens. At most, Obama’s actions differ only in degree, not kind.

In a more general sense, presidents have been pushing the limits of their constitutional authority since the beginning of the republic. If you had asked Thomas Jefferson in 1799 if the Louisiana Purchase was constitutional, he would almost certainly have said no – but we aren’t giving the land back. (Admittedly, sometimes I’m tempted to say that the US should look for the receipt and return some of those now-red states to France in exchange for a few dozen cases of Châteauneuf-du-Pape.)

It’s understandable for liberals to worry that just because Obama used his executive authority in this way, some future Republican president – like Rand Paul the Terrible, or Emperor Marco Rubio, or His Highness Ted Cruz – might push the limits of the law over the edge. But it’s pretty unhelpful, too.

Both the second Bush administration and the actions of Republicans in Congress make it abundantly clear that the next Republican in the Oval Office is going to push toward – and probably beyond – the limits of his legal authority, no matter what Obama does. (For instance, George W Bush’s warrantless wiretapping program, established by executive order, contradicted a statute outright, which Obama’s order does not.) If hypothetical president Rand Paul wants to refuse to enforce the Civil Rights Act, he’s not going to be dissuaded because Obama refused to act on immigration.

But read the whole etc. and discuss.

The Republican Health Care Pathology

[ 124 ] November 20, 2014 |

Reihan Salam has a long Slate article explaining why Republicans generally want to repeal the ACA, conceding that have no actual alternative to the ACA with any possibility of generating consensus with the party, and…not really dealing with the implications of the latter. The article does serve one useful purpose in explaining why there’s nothing “conservative” about the ACA. The section on Paul Ryan wanting to end Medicare is particularly useful in illustrating why assertions that the ACA is “neoliberal” are so nonsensical. If the status quo ante had been single-payer, it might make sense, but in the actual context calling the ACA “neoliberal” makes about as much sense as calling the Clean Air Act or Civil Rights Act “neoliberal.”

The key to Republicans on health care lies in Salam’s assertion that “[c]onservatives tend not to be enthusiastic about redistribution.” Brian Butler has a good response, and DeLong really gets to the heart of the issue:

As I see it, there are three possibilities:

1. Poor people don’t get to go to the doctor–and die in ditches.
2. Poor people get to go to the doctor, but the doctors who don’t treat them don’t get paid and have to scramble to charge somebody else via various forms of cost-shifting.
3. The government subsidizes insurance coverage for people of modest means by raising taxes on people of less modest means.

In my view, Slate’s editors seriously fell down on the job in not requiring that Salam say whether he thinks it is better to go for (2)–imposes in-kind taxes on doctors–or (1) rather than (3). The view on the left and in the center is that (1) is a non-starter. As Margaret Thatcher said back in 1993 when she visited Washington, DC: “Of course we want to have universal health care! We aren’t barbarians!” The view on the left and in the center and on the not-insane right is that (2) is profoundly dysfunctional and would prove extraordinarily inefficient. If Salam prefers (1), he should explain why Margaret Thatcher was a squishy leftist. If Salam prefers (2), he should explain why he disagrees with every single technocrat who knows about the health-care financing system.

Exactly right. If you don’t believe that non-affluent people should simply be left to die needlessly from illnesses and injuries, you have have to believe in redistribution. The only question is whether it will be relatively efficient and equitable or grossly inefficient and inequitable. (Given that Salam implicitly favors the latter, his assertion that conservatives are “particularly skeptical about redistribution that isn’t transparent” can only be seen as black comedy.)

The other striking thing about Salam’s article is how blind all the hand-waving about “markets” is to both theoretical and empirical objections. The cliches about how markets will control health care costs seem to be unaware that Ken Arrow ever existed. And more importantly, you would think from Salam’s article that health care policy was uncharted territory, that the problems presented by the American health care system in 2009 had never been addressed anywhere. In fact, every other liberal democracy has addressed them in ways that provide universal coverage for less and often much less money per capita than the American system. The burden of proof evidently lies squarely on those who would “solve” the problems of American health care by taking us further away from systems that produce better outcomes for less money. For obvious reasons, Salam just omits the discussion entirely.

Texas v. Justice

[ 44 ] November 20, 2014 |

Is Texas still going to execute a man who acted as his own counsel “dressed as a cowboy in a purple suit and a hat [and] attempt[ed] to call more than 200 witnesses, including John F. Kennedy, the pope, Anne Bancroft, and Jesus Christ?” Sadly, you probably know the answer to this question.

Here’s another telling detail:

Sonja Alvarado, his estranged second wife, tries to have him committed after Panetti comes after her with a knife. She takes his guns to the local police, but they return them, saying they have no legal right to prevent Panetti from having them.

For the record, at this point he had been hospitalized 14 times for mental health issues, and had buried his furniture in the backyard because it was possessed. Hard to see what harm would come from allowing him to possess firearms!

Why Affirmative Action Should Not Be Categorically Eliminated

[ 74 ] November 19, 2014 |

I have a piece up about the latest effort to get the Supreme Court to rule affirmative action unconstitutional in all cases.

To expand on one of the points I make there, the litigants have adopted the “grand bargain” justification for ending affirmative action — i.e. that schools who can’t consider race at all will attempt to achieve diversity through such means as eliminating legacy admissions and increasing scholarships to poorer students. The problem, as with most “grand bargains,” is that eliminating affirmative action will not in fact compel most universities to eliminate legacy admissions or increase need-based aid (and, indeed, most will not have the resources to do so.)

And even if I thought the policy arguments were more credible, I just don’t believe that either the Fourteenth Amendment or the Civil Rights Act makes affirmative action the equivalent of racial classifications intended to uphold a caste system.

NSA Bill Killed By Fillibuster

[ 58 ] November 19, 2014 |

This was probably unsurprising. Also unsurprising to anyone paying attention is that 41 of the 42 no votes were Republican. Including, natch, America’s foremost champion of civil liberties and the true progressive alternative in 2016, Mr. Rand Paul.

Now, yes, yes, unlike most of his Republican colleagues, Paul ostensibly opposed the bill because it wasn’t robust enough. But this makes about as much sense as most heighten-the-contradictions arguments (i.e. none.) This was, to be clear, far from a great bill. But it’s also quite clearly better than anything that’s going to be passed by the next Congress. As Savage and Peters observe:

One possibility would be a bill that is scaled back enough to win over more hawkish Republicans, while relying on the votes of some Democrats, like Senator Dianne Feinstein of California, who were more skeptical of broad-based reform.


But resistance from inside the Republican Party has been unrelenting. Before Tuesday’s vote, two top former officials from the Bush administration — Michael B. Mukasey, the former attorney general, and Michael V. Hayden, the former N.S.A. and C.I.A. director, essentially called the bill a gift to terrorists in an op-ed article in The Wall Street Journal that carried the headline “N.S.A. Reform That Only ISIS Could Love.”

Senator Marco Rubio of Florida, another possible 2016 presidential candidate, has staked out a position consistent with more hawkish Republicans. On Tuesday he called the bill “a reaction to misinformation and alarmism.”

McConnell strongly opposed this legislation as doing too much to rein in the NSA, and especially with Udall losing the chances of a better bill emerging next year can be safely estimated at 0%. So Paul’s motives for opposing the legislation are irrelevant; he’s a cat’s paw for the Mukasey/Hayden team when the rubber hits the road, and all the showoff filibusters in the world won’t change the fact that he voted for this one too.

By the way, in case you had any doubts about whether this is a bad outcome, I note that it’s been endorsed by the man who thinks there isn’t a dime’s worth of difference between Sonia Sotomayor and Sam Alito and that John McCain totally would have signed the Affordable Care Act, Mr. Matt Stoller. Right, Rand Paul isn’t a self-aggrandizing blowhard but a Machiavellian mastermind who’s going to outwit Mitch McConnell. Now that Obama can’t pull the wool over people’s eyes and sellouts like Mark Udall are out of Congress, the people will rise up and a unified Republican Congress will pass real NSA reform! Just you wait!

UPDATE: Rand Paul does “feel bad” about being a complete fraud, which is certainly worth nothing.

Tales From the Dark Ages of the Internets

[ 51 ] November 18, 2014 |

People with long memories for trivia may remember beloved HIV troofer and advocate for executing journalists insufficiently deferential to George W. Bush, Mr. Dean Esmay. He’s apparently found a new gig as a men’s rights crank. Hopefully he’s thrown some work to Kim Du Toit and Stephen Den Beste!


[ 56 ] November 18, 2014 |

The Senate bill was filibustered to death. The effect of this on Mary Landrieu’s re-election chances will be essentially nothing, as the effect of any other outcome would be.

Based on this vote, the next Senate would not have the votes to override a veto.

“Or We Could Try To Appeal to a Broader Group of Voters.” [pause] “HAHAHAHAHAHAHAHAHA!”

[ 124 ] November 18, 2014 |

Simpsons 1

Just in case vote suppression isn’t enough, some Republicans are proposing to take the United States even further from democracy:

Last week, Michigan state Rep. Pete Lund (R) revealed a plan that would rig the Electoral College to ensure Republican victories in 2016 and beyond if it were enacted in a sufficient number of states. Like similar proposals from GOP lawmakers who proposed rigging the Electoral College in the past, Lund’s proposal takes advantage of the fact that there are several large states that tend to support Democrats in presidential election years but that are currently controlled by Republicans.

Right now, nearly every state allocates 100 percent of its electoral votes to the candidate who wins the popular vote in the state as a whole. Lund’s proposal would change that calculation in the blue state of Michigan, however, while continuing to award each red state’s full slate of electoral votes to the Republican candidate for president. If this plan had been in effect in 2012, for example, Mitt Romney would have won a quarter of Michigan’s electoral votes despite losing the state to President Obama by nearly 10 points…

The electoral college is a horrible, indefensible anachronism.  You can tell this not only because it has no international influence, but because the states that otherwise slavishly followed the federal model in designing their political institutions don’t use it.  But norms like electors following the will of the voters and winner-take-all allocation in almost every state have allowed it to work tolerably well in most cases.  For the electoral college to subvert the popular vote, you now generally need an unusual confluence of circumstances — a razor-close vote and voter purges and administrative incompetence and a mendaciously narcissistic vanity candidate and a nakedly partisan Supreme Court.  But the problem is that the electoral college and the fact that the states are given the discretion to unilaterally change the way they allocate the votes just lies around like a loaded weapon, waiting for a party to just say the hell with it, if it’s formally legal and might allow our candidate who gets drubbed in the popular vote to take office, let’s do it.  I suspect it will happen sooner rather than later.

Today In People Insulting Your Intelligence

[ 124 ] November 18, 2014 |
  • Shorter David Brooks: “If Obama takes unilateral action on immigration, congressional Republicans will stop cooperating with his initiatives!”
  • Shorter Lambert Strether: “We would totally have had single-payer if it wasn’t for the meddling of President, Speaker of the House, Senate Majority Leader, Secretary of State, Chief Justice of the United States, and longtime don of the Gambino crime family Jonathan Gruber.  Also, I have no idea what was actually in the Heritage health care proposal, and think that governors rule Massachusetts like kings.”
  • Shorter Verbatim Megan McArdle: “So what would I have done, when Obamacare was tanking in the polls and Scott Brown was elected to the Senate on an anti-Obamacare platform? I would have passed something more modest that still significantly expanded coverage, expanding Medicaid to 150 to 200 percent of the poverty line and creating a national high-risk pool to insure anyone who’d been turned down for coverage more than twice in the past 12 months, at prices comparable to what a healthy person of their age would pay in the insurance market. Again, much cheaper, much less intrusive, no blowback from people who lost their policies, and very unlikely to have been tampered with by the Supreme Court.“  Oh, yes, the Supreme Court tampering with an expansion of Medicaid — that’s unpossible!

“No, no, I mean He Should Have Passed A Bipartisan Affordable Care Act.”

[ 57 ] November 18, 2014 |

Ron Fournier makes himself look ridiculous. Because a man in Ron Fournier’s position can apparently afford to be made to look ridiculous:

On health care, we needed a market-driven plan that decreases the percentage of uninsured Americans without convoluting the U.S. health care system. Just such a plan sprang out of conservative think tanks and was tested by a GOP governor in Massachusetts, Mitt Romney.

Instead of a bipartisan agreement to bring that plan to scale, we got more partisan warfare. The GOP resisted, Obama surrendered his mantle of bipartisanship, and Democrats muscled through a one-sided law that has never been popular with a majority of the public.

Even leaving aside the “conservative think tanks” issue (please!), what aspect of Travaglinicare did Fournier see missing in the ACA? Was it that the ACA “convoluted” the American health care system because it expanded Medicaid? Well, it’s hard to know because this is a word that does not mean anything in this context. But it would be a strange argument, given that Travaglinicare provided free insurance to a greater percentage of the population than the Medicaid expansion did.

What the argument this, then — see also Krugman on this point — is that Obama should have passed the ACA, but in a way that was…bipartisan. The fact that Republicans had an explicit strategy of not voting for anything that would give Obama a major policy achievement, and hence requiring bipartisanship would mean that the United States would not get the health care reform that Fournier concedes the country needs, it to Fournier beside the point. Anachronistically identifying the Massachusetts health care reform exclusively with Mitt Romney helps to make this sound a little less ridiculous — he was the Republican candidate for president! He supported something like the ACA! — but when you bring the massive supermajorities of Democrats in the Massachusetts legislature back into the picture, the fact that Romney signed the bill the legislature put on his desk (after some overridden vetoes) makes the ridiculousness comes back into focus.  The Massachusetts health care reform tells us less than nothing about what congressional Republicans could support.

But when you believe that whether a law is “bipartisan” is more important than its content, and believe that bipartisanship is something the president can conjure out of thin air, you’re going to push Both-Sides-Do-Itism to a point at which the word “parody” seems grossly inadequate again and again.

Hacktacular! #GruberGate Edition

[ 20 ] November 17, 2014 |

A former Bush factorum has some policy arguments about the ACA, which I’m sure are being offered in good faith and are not at all opportunistic:

Jonathan Gruber’s candid video commentaries have unleashed the latest in a never-ending round of conservative denunciations of Obamacare, the evilest, sneakiest, failing-est, and most unconstitutional assault of freedom ever. Getting in his licks today is Tevi Troy, former Bush administration health official, who takes to the Wall Street Journal editorial page to denounce Obamacare’s “Cadillac tax.” This insidious levy, writes Troy, has a “creeping reach” and a “deceptive design.”

What kind of monster could favor any kind of tax on particular employer-provided health insurance plans?

Troy’s column does not mention that the Cadillac tax — or, usually, even more stringent versions of it — have been a mainstay of Republican health-care plans as well. As a presidential candidate in 2008, John McCain proposed not merely to cap the employer health-care deduction but to eliminate it entirely. (Obama attacked his plan as a tax hike.)

Troy’s op-ed also fails to mention that he himself used to oppose the tax break for employer-sponsored health insurance.

I could do without Gruber’s condescension myself, but when it comes to insulting people’s intelligence he’s got nothing on the parade of hacks attacking him.

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