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[ 34 ] July 24, 2014 |

It’s not a market; it’s a racket.

The Halbig Argument Is Terrible, Results-Driven Hackwork. Just Ask Its Supporters!

[ 164 ] July 24, 2014 |

In the midst of her palpable excitement over the possibility that an asinine legal argument may be used to deny tens of millions of people health care, Megan McArdle inadvertently demonstrates another reason why the argument of the Halbig majority is asinine:

On the other hand, that outcome is hardly inevitable. Law professor Jonathan Adler pointed out in a conference call yesterday that Ohio would have to amend its constitution to allow the government to establish a state exchange, and barriers in some other states are high as well. State exchanges cost millions to build and to run. States can still apply for federal money to build exchanges, Adler said, but the annual operating costs have to come out of either user fees or tax revenue. In lower population states, or poor states, that might be enough to keep legislators on the sidelines. So might the fear of primary challenges, even if the administration comes up with some easy administrative workarounds to lower the cost. [My emphasis]

This is a point I discussed with Seder yesterday. One reason that the ACA empowered the federal government to set up state exchanges was because they anticipated opposition from Republican statehouses. (So much for the other terrible conservative argument-like rhetorical gesture floating around, “Congress wasn’t worried because it expected the states to go along!”) But another was that for low-population states — including those with public officials supportive of law — the administrative costs made it more logical for the federal government to establish the exchanges. So McArdle wants us to believe that Congress expected to federal government to establish state exchanges for multiple reasons…but wanted them not to work? That’s an absurd reading of the law. And statutory construction that leads to absurd results is inept.

It’s also important to keep in mind the burden of proof here. The Fourth Circuit unanimous opinion (as opposed to the Davis concurrence) was overly timorous, but it does do a good job on this point. Under Chevron, if a statute is ambiguous the courts have to defer to administrative judgments of statutory meaning as long as the reading is reasonable. And, at a minimum, the IRS reading is reasonable; administrative agencies are not required to use bad parodies of “textualism” to read statutes. The fact that nobody responsible for the statute thinks that the Halbig interpretation is correct should also be dispositive on this point. If a construction is plainly wrong, the contrary construction really should have at least some support from the architects of the statute. And if you don’t believe me, ask the authors of the neoconfederate joint opinion in Sebelius, who also assumed that subsidies would be available on the federally-established state exchanges, because this is utterly obvious.

While we’re here, consider this:

A lot depends on the 2016 election, of course: Do voters turn out for Hillary Clinton, to protest the loss of their subsidies, or do they turn out for the Republican, to protest this unpopular, unworkable clunker of a law?

Let’s leave aside the fact that while the ACA remains unpopular, voters like the Republican alternative (i.e. get rid of the ACA either tout court or piecemeal, and after that nothing) even less and hence if healthcare is a salient issue in the 2016 elections this is excellent news for Democrats. First of all, this “unworkable clunker” has led to millions of people getting health insurance, a figure that would be substantially higher had the statute not been ineptly re-written by John Roberts to enable Republican statehouses to reject the Medicaid expansion. Which brings us to the remarkable chutzpah on display here: conservatives inventing ad hoc legal arguments of varying degree of absurdity to prevent the law from working as intended then complaining that the law is “unworkable.” Republicans are thugs with wrecking balls asserting that building construction is unworkable.

As Cohn says, “these lawsuits are simply one more attempt to cripple Obamacare and yank insurance away from millions of people, no matter what it takes.” Just so, and if Adler tries to pretend his arguments about the Rule of Law (TM) his supporters feel no need to conceal the real agenda.

They Criticize What They Can’t Understand

[ 88 ] July 23, 2014 |

To the extent that there’s an argument against reading the ACA to include subsidies on the federal exchanges, it has to be that while Congress intended the subsidies to be available on both, reading the literal language of an isolated provision it says that the subsidies are only available on state exchanges, so tough luck.  This is, to be clear, a terrible argument, but it’s the best one available.  To my amazement, as I first saw on Twitter yesterday, some conservatives are arguing that Congress actually intended for the federal exchanges not to include subsidies.  For example, Ramesh Ponnuru:

Supporters of Obamacare have been lamenting that the law shouldn’t be crippled by a mere “drafting error.” But it’s not at all clear that restricting tax credits to state-established exchanges was a drafting error. If Obamacare had proven more popular, or resistance to it weaker, then most states would have established exchanges. And if the law were put in place as written — with the restriction on tax credits — then the few holdouts would be under pressure to establish exchanges to get credits for their residents. Other health-care legislation before Congress at the same time as Obamacare had the same restriction.

It’s wrong, then, to say that Congress obviously didn’t intend to include this restriction.

This argument is…amazing.  It may be true that many members of Congress were too optimistic about states creating their own exchanges.  But we also know that Congress anticipated that some states would not create their own exchanges…because the statute gave the federal government the power to create exchanges when states wouldn’t.  Ponnuru’s reading of the statute can’t explain why they bothered to do this at all.  The actually existing Congress assumed that some states would not participate but wanted the exchanges available in all 50 states.  So Ponnuru’s explanation is plainly wrong, and we’re left with an implicit assumption that Congress established the power to have the federal government to create exchanges but wanted them not to work, which is absurd.

In addition, we know that Congress anticipated significant state resistance because of the way it structured the Medicaid expansion.  If Congress thought that all but a few states would establish exchanges with little direct incentive to do so, then surely the huge gobs of federal money that comes with accepting the Medicaid expansion would be more than enough for states to buy in.  But Congress didn’t think that, and until the statute was ineptly re-written by John Roberts all existing Medicaid money was contingent on accepting the expansion.  Ponnuru’s explanation cannot account for this either.

But there’s a more fundamental problem with the arguments made by the majority of the D.C. Circuit panel and the Republicans cheering them on.  The ACA was not written by Republicans — it was written by public officials who wanted to substantially increase access to medical care.  The central function of the subsidies wasn’t to create incentives for state governments; it was to ensure that the non-affluent uninsured who didn’t qualify for Medicaid could purchase insurance on the exchanges.  To not provide subsidies on the federal exchanges would defeat the very purpose for which they were constructed.  If you understand the ACA from the standpoint of those who passed it, this couldn’t be more obvious.  Conservatives trying to evaluate the goals of the ACA are like elephants trying to play a toy piano.

And, needless to say, this is why as a first approximation zero supporters of the ACA either inside or outside Congress are persuaded by this latest ad hoc attack on the law.  In addition to the other ways in which it’s silly it’s premised on not comprehending what the ACA was trying to accomplish.

What Will the Supremes Do About the Latest D.C. Circuit Atrocity?

[ 85 ] July 23, 2014 |

For those that missed it yesterday, I have a piece up about Halbig v. Burwell. The bottom line:

The sole dissenting judge, Harry Edwards, in his tour de force dissent, made clear his distaste for appointed judges making new law – and pointed out that the majority opinion requires the courts to ignore all the sound principles of statutory construction.

Congress clearly thought the subsidies were essential to the functioning of the exchanges, and it permitted the federal government to establish exchanges in order to prevent states from thwarting the aims of the ACA – which is to help people buy more affordable health insurance.

The majority’s reading, however, would allow hostile states to do exactly what the law was designed to prevent: by refusing to establish a state exchanges, they could effectively stop the exchanges from working properly in their states.

As Edwards observes, the majority’s interpretation “is implausible because it would destroy the fundamental policy structure and goals of the ACA that are apparent when the statute is read as a whole”. Plus, not a single state government – even those hostile to the law – believed that the statute demands what the majority says it does. Nobody is confused about what the law intended, but some people who oppose the ACA on political grounds are opportunistically pretending to be.

To be clear, the position taken by 4 of the 6 judges to have ruled on the question yesterday (see the 4CA opinion here) does not entail “re-writing the law” or binding the public to the subjective intent of the legislators rather than what they wrote. Statutes have to be read as a whole, not in isolated phrases. When one reads the statute properly, that Congress intended to make the subsidies available is not merely plausible but blindingly obvious. As Judge Davis noted in his concurrence:

I am not persuaded and for a simple reason: “[E]stablished by the State” indeed means established by the state – except when it does not, i.e., except when a state has failed to establish an Exchange and when the Secretary, charged with acting pursuant to a contingency for which Congress planned, establishes and operates the Exchange in place of the state. When a state elects not to establish an Exchange, the contingency provision authorizes federal officials to establish and operate “such Exchange” and to take any action adjunct to doing so. When a state elects not to establish an Exchange, the contingency provision authorizes federal officials to establish and operate “such Exchange” and to take any action adjunct to doing so.

That disposes of the Appellants’ contention. This is not a case that calls up the decades-long clashes between textualists, purposivists, and other schools of statutory interpretation. The case can be resolved through a contextual reading of a few different subsections of the statute. If there were any remaining doubt over this construction, the bill’s structure dispels it: The contingency provision at § 1321(c)(1) is set forth in “Part III” of the bill, titled “State Flexibility Relating to Exchanges,” a section that appears after the section that creates the Exchanges and mandates that they be operated by state governments, ACA § 1311(b). What’s more, the contingency provision does not create two-tiers of Exchanges; there is no indication that Congress intended the federally-operated Exchanges to be lesser Exchanges and for consumers who utilize them to be less entitled to important benefits. Thus, I conclude that a holistic reading of the Act’s text and proper attention to its structure lead to only one sensible conclusion: The premium tax credits must be available to consumers who purchase health insurance coverage through their designated Exchange regardless of whether the Exchange is state- or federally operated.

I might have more on this in another post, but the idea that Congress intended for the federal exchanges not to work is transparently absurd, which hasn’t stopped some people from trying to make the argument.

The Supreme Court may not hear this case, since it’s overwhelmingly likely that the D.C. Cicuit en banc will end the silliness, upholding the proper reading of the statute and eliminating the circuit split. If they do hear it, some commentators — for example, Goldtsein and Klein, — are confident that the Supreme Court would side with the 4th Circuit. In a rational universe, we could indeed expect that “[t]he Supreme Court simply isn’t going to rip insurance from tens of millions of people in order to teach Congress a lesson about grammar.” But I’m less sure. After all, in their gratingly disingenuous attempt to claim that their gutting of the ACA was an act of judicial restraint, the D.C. Circuit majority acknowledged the terrible consequences of their decision — but didn’t care. Republican statehouses know that turning down the Medicaid expansion will cause many people to go without coverage — they don’t care. I don’t put anything past a Supreme Court controlled by the contemporary Republican Party.

“Do Everything You Can To Attack the ACA” Is A Kind of Principle

[ 136 ] July 22, 2014 |

I will have more on this, but two Republican hacks at the D.C. Circuit have embarrassed themselves by accepting a particularly bad statutory argument that would throw the exchanges into chaos.

my piece is here. More imminently.

The Teleological Fallacy

[ 73 ] July 22, 2014 |

K-Drum makes a good point about the recent Thomas Frank Salon article that I neglected to:

But if it’s so easy to see this conservative delusion for what it is, why isn’t it equally easy to recognize the same brand of liberal delusion? Back in 2009, was Obama really the only thing that stood between bankers and the howling mob? Don’t be silly. Americans were barely even upset, let alone ready for revolution. Those pathetic demonstrations outside the headquarters of AIG were about a hundredth the size that even a half-ass political organization can muster for a routine anti-abortion rally. After a few days the AIG protestors got bored and went home without so much as throwing a few bottles at cops. Even the Greeks managed that much.

Fearless navigator of our new comment system JeremyW puts it well:

[W]hat strikes me about this article is that he seems to have replaced the institutional status quo bias of our current political system with something that works the opposite way. Rather than a system where actual progressive change is difficult to win support for and subject to several veto points, he seems to think we have one where radical changes are constantly on the cusp of occurring and the whole neoliberal enterprise must be held together by a dastardly sellout president who can subvert the will of the people.

The most crucial underlying premise of Frank’s argument is that the American political economy was on the verge of a radical transformation in 2008, and this was prevented from happening because Barack Obama saved neoliberalism’s bacon. This is a rather problematic for his argument given its transparent falsity. It’s simply not true that most Americans drew the same conclusions from the financial meltdown that Frank did, and even they did the elites who control or strongly influence many key veto points in the American system certainly didn’t. As someone capable of being elected president of the United States Barack Obama is not a radical critic of capitalism, but in terms of whether American capitalism was going to be “put out of business” this is neither here nor there anyway.

Similar premises are also generally seen on attacks on the ACA from the left. To argue that the ACA isn’t better than the status quo ante from a progressive standpoint would be ridiculous, so the strategy is to change the baseline and compare the ACA to another alternative. In policy terms, this isn’t challenging, since you could throw a dart at a map of Western Europe and get a health care system preferable to the ACA. But it’s also completely irrelevant, because the choice wasn’t between the ACA and the French health care system but the ACA and nothing or almost nothing. To get around the obvious political reality, left ACA critics smart enough not to argue that Barack Obama could have forced the Senate to pass single payer through such brilliant strategery as promising senators that he would campaign for them in states where he’s enormously unpopular turn to assertions that the American insurance industry was on the verge of collapse before Barack Obama saved it. And, again, this is sheer lunacy. The American health care system circa 2008 was grossly inefficient and disastrous for many Americans, but for the most politically powerful vested interests — insurance companies and their executives, medical professionals, affluent customers, people over 65 — it works perfectly well or better. (To people who confuse American politics with the Oxford debating society, the success of Medicare should make Medicare for all highly popular. In reality, the overwhelmingly conservative white beneficiaries of Medicare are much more likely to take the lesson of “I’ve got mine and to hell with you.”) The American health insurance industry wasn’t going anywhere had the ACA not passed.

And what’s going on with Republican statehouses and the Medicaid expansion should draw a line under that. The typical Republican state politician is willing to turn down huge pots of free money from the federal government to validate the principle that if the working poor get sick it should be left to the Great Market in the Sky to sort things out. To believe in this context that the collapse of the private American health insurance industry was inevitable absent the ACA is to enter a land of fantasia.

Dan Markel

[ 21 ] July 21, 2014 |

Absolutely horrible news about one of the most valuable legal writers in the known blogosphere. R.I.P. and condolences to his friends and family.

Why Didn’t Obama Use the Power of the BULLY PULPIT to Cause the Republican Party to Spontaneously Combust? A Great Historical Puzzle

[ 142 ] July 21, 2014 |

Embedded in a gag about the Obama presidential library that is, how shall I put this, not funny, Thomas Frank has some penetrating questions:

Why, the visitors to his library will wonder, did the president do so little about rising inequality, the subject on which he gave so many rousing speeches?

Well, he accomplished at least one very important thing on this score, but we’ll return to it.

Why did he do nothing, or next to nothing, about the crazy high price of a college education, the Great Good Thing that he has said, time and again, determines our personal as well as national success?

What, precisely? And how?

Why didn’t he propose a proper healthcare program instead of the confusing jumble we got?

Um, because he wanted to pass comprehensive health care reform rather than attempt to impress a minority of pundits, and he understands the elementary point that opening proposals far outside the expected negotiating space are guaranteed to fail? And isn’t this a particularly sound choice, since when the “proper” proposal failed said critics would not give him credit for fighting but accuse him of “making soaring speeches” while doing nothing, which you just did?

Why not a proper stimulus package?

Well, he did — the stimulus package that passed was far larger than those passed by European countries that didn’t have Madisonian institutional constraints or a major party controlled by nihilist fanatics to deal with. I would also observe that while it’s fair to say that Obama had an excessive faith in bipartisanship and the possibility of consensus, his faith pales next to Frank’s, since Frank apparently thinks there were multiple Republican votes in the Senate for a trillion-dollar stimulus.

Why didn’t he break up the banks? Or the agribusiness giants, for that matter?

This is a real puzzle to anyone whose first day paying attention to American politics was today.

Well, duh, his museum will answer: he couldn’t do any of those things because of the crazy right-wingers running wild in the land. He couldn’t reason with them—their brains don’t work like ours! He couldn’t defeat them at the polls—they’d gerrymandered so many states that they couldn’t be dislodged!

The layers of sarcasm in the second sentence act to cancel out any discernible meaning, although I can understand Frank not wanting to come out and say that Republican control of the House is imaginary and/or irrelevant in so many words. On the third sentence, 1)dismissing gerrymandering as a thing would be more persuasive had the Republicans not just retained control of the House while receiving fewer votes, and 2)right, the first Democratic candidate to carry Indiana since Lyndon Johnson has no capacity to defeat right-wingers at the polls.

The Labyrinth of the Grand Bargain, it might be called, and it will teach how the president bravely put the fundamental achievements of his party—Social Security and Medicare—on the bargaining table in exchange for higher taxes and a smaller deficit.

We finally have something that Obama can be fairly criticized for, although suggesting that Obama put Social Security and Medicare “on the table” is highly misleading — Chained CPI is bad policy but it’s not a proposal to end Social Security, as the language seems to imply. Still, the proposed Grand Bargain was a terrible idea and Obama should indeed be criticized for it. I must observe, however, that according to Frank’s logic as there are no real constraints on Obama’s power and the failure of something to pass Congress is evidence that Obama didn’t want it, he couldn’t have really favored it. (Green Lantern critiques are inevitably selective, and proposals that go nowhere are part of Obama’s record only when the proposals are bad.)

There is, however, one core Great Society program that Frank doesn’t mention — Medicaid. If it weren’t retroactively written out of liberalism one might have to conclude that massively expanding the American single-payer program for the poor was a “proper” health care reform policy that addressed a major element of American economic inequality. One might also have to notice statehouses and courts controlled by Republicans and conclude that the constraints they put on federal policy are not figments of Barack Obama’s imagination.

And now, going back a little, the punchline:

In point of fact, there were plenty of things Obama’s Democrats could have done that might have put the right out of business once and for all

Yes, Obama could have caused American conservatism to vanish entirely using his fearsome ability to Bully Pulpit the Overton Window on Steroids, but he didn’t. even. try. That’s the kind of hard-hitting truth the Obama presidential library won’t tell you! In conclusion, Obama is just too naive about American politics and thinks that you can just wish political conflict away.

…more from Kilgore, Boo Man, and No More Mr. Nice Steve.

Dept. Of Corrections, Franklin Pierce Was Horrible Edition

[ 40 ] July 21, 2014 |

Chait:

The last few weeks, I’ve read What Hath God Wrought by Daniel Walker Howe, an engrossing history of the United States from 1815 through 1848. This is a period known — to the extent that Americans remember much about it at all — as “the Age of Jackson,” but Howe argues that this label is a mistake. America was not so much unified by Jackson as it was polarized in a way (this is my view superimposed on Howe’s history) we would find highly recognizable today. America was split, geographically and sociologically: Red America favored militaristic foreign policy, the maintenance of existing racial and social hierarchy, and fiercely opposed big government; Blue America favored a more restrained foreign policy, a more amicable treatment of racial minorities, and activist government support for economic growth.

The Jacksonians favored the gold standard and believed the Constitution prohibited the federal government from any program not specifically delineated. “I cannot find any authority in the Constitution for making the Federal Government the great almoner of public charity,” declared Zachary Taylor, in terms reminiscent of modern conservative objections to the individual mandate. Blue America was more culturally effete and enamored of public education; Red America suspicious of centralization and steeped in a culture of violence.

As longtime readers know, I agree with Howe and Chait that the Jacksonian Democrats have far more in common with today’s Republicans than today’s Democrats. To this end, I should note that the “great almoner” line was not uttered by the inevitably doomed Spinal Tap drummer Whig president, but Franklin “Kansas-Nebraska” Pierce. I think my list of presidents who were worse than Pierce would include “Andrew Johnson” and “there is no number 2.”

Great Moments In Post-Accountability

[ 46 ] July 20, 2014 |

120713-graham-spanier-jerry-sandusky-2pm.photoblog600There is a passage towards the end of Michael Sokolove’s NYT Magazine cover story about Graham Spanier that is darkly comic if you’ve read the entire article:

Graham Spanier was eager to be interviewed for this article and persuaded his lawyers it was a good idea (or at least won their acquiescence). He wants to tell his story and clear his name. On the first day we were together, he said: “In all of my sleepless nights, really every night for a couple of years, when I was lying in bed, all I was doing was imagining being on the witness stand. I was telling the truth and laying it out there.”

Sokolove implies that it’s unusual that Spanier is enthusiastic about talking to him. For those who have already read Sokolove applying somewhat less of a critical eye to Spanier’s story than Richard Cohen applied to Colin Powell’s UN speech, the mystery will vanish.

Spanier, as most of you know, was indicted on eight counts related to Jerry Sandusky’s serial child molestation. Is it possible that this indictment of a very powerful figure was a baseless product of prosecutorial overreach? Sure, but it should also be clear that the bare assertions of the person under indictment are not very compelling evidence of this. Which is unfortunate, because that’s pretty much all Sokolove has.

It’s frankly a disgrace that this article was published, let alone made a cover story. Much of it is irrelevant padding inserted to bring an article with maybe 500 words of relevant content up to feature length. There’s a lot of material about how tough the indictment has been on poor Graham. There are multiple paragraphs about how Penn State is awesome at doing the things that impress people who issue arbitrary rankings of universities (especially using money to build stuff rather than keeping tuition affordable.) There is the inevitable reminder that whatever else you want to say about the program Penn State football was above average at ensuring that players were exploited according to NCAA specifications. There is a lengthy discussion of whether the NCAA had the legitimate authority to levy sanctions that you may or may not find convincing but is fundamentally irrelevant to whether the indictment of Spanier has a legitimate basis. The space the article devotes to his central thesis — Spanier is the victim of a witch hunt and should be left alone — is instructively small. This is pretty much it:

“This approach is acceptable to me,” Spanier wrote in response. “The only downside for us is if the message isn’t ‘heard’ and acted upon, and we then become vulnerable for not having reported it. But that can be assessed down the road. The approach you outline is humane and a reasonable way to proceed.”

Spanier told me that his meetings about Sandusky were brief, came amid the crush of other university business and coincided with another troubling issue — allegations that a Penn State employee had embezzled money.

“The life of a university president is you have things coming at you all day long,” he said. “It’s one crisis after another, one issue after another.”

[...]

Shouldn’t this background have made him more alert to Sandusky even if the reports he heard were nonspecific or couched in euphemism? Shouldn’t he have at least pressed for more information? He said he would have if he had been told more to begin with. “I’m an intervener,” he said. “If I see something going on in the street, in the community, I intervene. . . . If Gary Schultz or Tim Curley had said to me anything about child abuse, sexual abuse, anything criminal, even had hinted about that possibility, of course we would have said something.” The encounter in the shower, he said, was described to him as “horseplay,” which he believes came from Paterno, relating what he heard from McQueary. “I can hear Joe Paterno using that word,” he said. “I don’t think Tim and Gary made that word up. I think Joe used it.”

He said he had no memory of writing the email in response to Curley in 2001, but now regrets that he used the word “vulnerable,” which many have taken to mean that he already knew that something inappropriate or criminal had occurred. “I didn’t,” he said. “I think what it meant was that if he didn’t get the message and stop bringing boys into the locker rooms, we could be open to criticism. Obviously, in retrospect, using the word was a bad choice. But who would think that 13 years later someone would focus in on that one word?”

The shower took place in a coaches’ locker room; Spanier said he was told that it had occurred in one of Penn State’s more public locker rooms. Even so, he said: “We decided we don’t want him bringing kids into the shower again. It doesn’t look good. It doesn’t feel right.”

Spanier is still incredulous that he has been charged criminally. “What does this have to do with me?” he said at one point. “I never saw anything. I never spoke to a kid, a witness, a parent, Sandusky, McQueary, Paterno.”

As Sokolove grudgingly concedes towards the end of the article, the final point is hardly a defense of Spanier’s actions. He was at a minimum informed that Sandusky had not only showered with a young boy he was not related to on a weekend at the university but had engaged in “horseplay.” By his own admission, even under the most innocent explanation Sandusky’s actions were highly unusual and highly inappropriate. And the consequences if the explanation turned out not to be innocent — i.e. that there was a pedophile running a foundation for children at large in the community — were horrifying. And Sandusky, as Spanier seems to have known, had already been investigated once. For Spanier not to have made any effort to follow up with McQueary under these circumstances was certainly morally reprehensible, and it’s entirely possible it was also inconsistent with his legal obligations.

Spanier’s arguments about the word “vulnerable,” which Sokolove seems to buy, are similarly feeble. I’m reminded of a student who complained to a fellow TA after his answer of “Lochner v. NY” to the question of “name a case where the Supreme Court upheld a use of the state police power” was marked wrong — “how can credit for an answer be based on just one word?” A lot is being made of the word because the use of the word is highly damning. How could failing to report Sandusky make one “vulnerable” unless it was wrong?

Sokolove’s other line of defense is windy philosophizing via third parties:

Prosecutors make decisions all the time on whether to bring charges. Some are obvious — body on the street, a man standing over it with a gun. The Spanier case seems less so. He did not ask questions or show any curiosity, and only he knows why. No one went looking for the boy in the shower in 2001 or even tried to find out his name. Maybe Spanier, Schultz and Curley were as squeamish as McQueary and just as afraid to look more closely. Whatever the reasons, they did not cover themselves in glory. Whether that equates to criminal behavior is yet to be determined.

Wes Oliver, a law-school professor at Duquesne, in Pittsburgh, provided television commentary on the Sandusky trial and has been following the proceedings against Spanier. “I don’t even know what guilt means in this case,” he told me. “What exactly does it mean to fail to supervise a former coach who you happen to know brings kids to your campus? What kind of duty exists there? If anything, it’s a sin of omission. There are sins of omission for which people are punished, but I don’t know if that will happen here or if it should happen.”

First of all, Spanier is not just accused of sins of omission. Perjury is a sin of commission, and Spanier is accused of “blatant mischaracterizations to employees, board of trustee members and eventually a grand jury about his knowledge of the situation, most of it refuted by testimony from his own university attorney.” Sokolove has nothing but Spanier’s own word to refute these charges. And second, when it comes to the welfare of children some “acts of omission” are in fact clear violations of Pennsylvania law. Whether Spanier is guilty of violating these requirements has yet to be determined, but it is clearly possible for him to be guilty of a “sin of omission” and to be criminally liable, and I have no idea why it shouldn’t be.

The one serious potential argument raised by Sokolove is the delay in the proceedings against Spanier. This may be a real issue, but it depends on some factors — is the delay unusual by standards of the relevant court? Could it have been caused at least in part by defense motions? Sokolove, although he has time to write the umpteenth paragraph about the bucolic isolation of State College, can’t be bothered to actually address these questions, so it’s impossible to know whether the claim has merit or not. As he does consistently, Sokolove leaves an implication out there but doesn’t do the work to justify it.

Let’s conclude with this:

When I was in State College, Sandra Spanier was just back from Cuba, where she has been involved in restoring Hemingway’s house. “In some ways, my life is still good,” she said. “But you wake up in the morning and you look outside and think, It’s a beautiful day. And then it hits you. It’s still here. This is all still happening. You can’t get away from it.”

And how! Another figure Sokolove doesn’t mention — the 3 million smackers Spanier walked out the door with on top of his many years of high compensation. That will ease the pain. You’d think that this pay should entail more accountability — but for America’s broken elites, that’s somehow never how things work.

JFK Stole the Election But Dick Nixon Let It Go For the Good of the Country!

[ 162 ] July 20, 2014 |

The only problem with this well-worn myth, which is not just advanced by those on the right, is that every underlying premise is false.

The Radio Raheem Award For Deadly Excessive Force

[ 68 ] July 18, 2014 |

Summary execution for suspected cigarette sale would seem to qualify.

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