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Immorality and Delusion: Two Bad Tastes That Are Particularly Bad Together

[ 135 ] July 31, 2014 |

This, from Benny Morris, is amazing:

What should we do next time? The answer is clear and well known. All that’s needed is the courage to start down this path and the determination to finish the job. It won’t be either easy or quick. We’re talking about reoccupying the entire Gaza Strip and destroying Hamas as a military organization, and perhaps also as a political one (it’s reasonable to think that destroying Hamas’ army will badly weaken Hamas as a political movement).

This will require months of combat, during which the Strip will be cleansed, neighborhood by neighborhood, of Hamas and Islamic Jihad operatives and armaments. It will exact a serious price in lives from both Israel Defense Forces soldiers and Palestinian civilians. But that’s the price required of a nation like ours, which wants to live on its own land in a neighborhood like ours. After gaining control of Gaza, it must be hoped that some moderate Arab power, perhaps the Palestinian Authority, will take over the reins of government.

Advocating the re-occupation of Gaza is bad enough (surely the “cleansing” language gives away the show here.) But what’s worse the the pragmatic punchline. After an incredibly bloody and destructive occupation of the Gaza strip by the IDF, we could reasonably expect…a more moderate Palestinian government? Can anyone possibly believe that? In fairness, he did say “hope for”; I guess we could “hope” that if Roe v. Wade is overturned congressional Republicans would vote en masse to repeal the Hyde Amendment and a constitutional amendment guaranteeing a woman’s right to choose, a result that is similarly likely to what Morris is asking us to consider.

Beaned

[ 62 ] July 31, 2014 |

Whoa — I didn’t see this coming.

I agree that it’s a good trade for both teams. The A’s get an ace starter not only for the postseason but for the push to avoid the one-game playoff, and the Red Sox get a very good hitter for two (meaningless) months of Letser, who they can re-sign anyway.

The More Effective Evil

[ 9 ] July 31, 2014 |

A good contrast to Mississippi is the lovely bluegrass state. Kentucky’s governor is Steve Beshear, who is not particularly progressive but is nonetheless a Democrat. As a result, the state has accepted the Medicaid expansion and is actually trying to ensure that as many eligible citizens as possible are enrolling. The result is a substantial reduction in the rate of uninsured in the state, a huge success story.

Of course, since not everyone in the state has precisely the same form of health care coverage, I can’t see a dime’s worth of difference between Kentucky and Mississippi.

Leftier-Than-Thouism, Defined

[ 219 ] July 31, 2014 |

Krugman draws some conclusions from California, where the ACA was permitted to work as intended:

So it now appears that most of California’s uninsured — 58 percent of the total, or well over 60 percent of those eligible (because undocumented immigrants aren’t covered) have gained insurance in the first year. Considering the complexity of the scheme, that’s really impressive, and it strongly suggests that next year, once those who missed out have had a chance to learn via word of mouth, California will have gotten much of the way toward universal coverage for legal residents.

But there’s something else the Kaiser report drives home: most of those gaining coverage are doing so not via the exchanges (although those are important too) but via Medicaid. And that’s important as an answer to critics of Obamacare from the left.

There have always been critics complaining that what we really should have is single-payer, and angry that subsidies were being funneled through the insurance companies. And in principle they’re right; the trouble was that cutting the insurers out of the loop would have made the plan politically impossible, both because of the industry’s power and because of the unwillingness of people with good coverage to take a leap into a completely new system. So we got this awkward public-private hybrid, which I supported because it was what we could get and despite its impurity it dramatically improves many people’s lives.

But it turns out that many of the newly insured are in fact being covered under a single-payer system — Medicaid.

All of which functions as a good intro to this shorter verbatim Lambert Strether:

I believe there should be equal access to health care for all, and so the fact that ObamaCare helps some people is just proof that it doesn’t help all, equally. Why is the random delivery of government services considered praiseworthy?

If a government policy cannot provide everything, we should not care if it helps anyone. Got it.

At this point, it’s probably superfluous to note that Lambert also refuses to criticize the irrational and immoral Halbig decision, while implicitly defending it with idiotic Republican talking points. Why shouldn’t he? His critique is for all intents and purposes incidental to the Republican one. Both would happily strip millions of people of health coverage to demonstrate their obsessive opposition to Obama. To both, no legal argument that could damage the ACA and strip people of insurance could possibly be too specious. Both would rather have a Republican in the White House (Obama, says Lambert, is the “more effective evil” because some people will purchase private insurance, and of course the whole industry would have spontaneously combusted without the ACA, and better millions of people go uninsured than any rentier make a profit.) That one side tries to cover up their cruelty by theoretically supporting bad alternatives they have no intention of enacting and the other tries to cover up their cruelty by theoretically supporting good alternatives that have no chance of being enacted is a distinction without a difference.

The Halbig Troofers

[ 13 ] July 30, 2014 |

For those interested in the subject, Beutler, Sargent, and Kliff all offer essential reading on Halbig trooferism. The question of whether the subsidies would be available on the federally established state exchanges isn’t some obscure point that was never considered during the legislative process. It was crucial to the operation of the legislation, it was widely considered, and as the structure of the legislation indicates there was universal contemporaneous agreement that the subsidies would be available on the exchanges irrespective of whether they were established by states or the feds. There was no dissent on this point. The argument that Congress intended to deny subsidies on the federal exchanges is quite simply absurd.

I know I’ve been writing a lot about this, but it really is critically important. It’s 21st century American conservatism in a nutshell: using arguments of increasingly staggering bad faith to pursue exceedingly unattractive normative ends. As Chait says, this argument has morphed from an argument that millions of people should be denied health insurance because the card says “Moops” to an argument that the tribe that invaded Spain was actually called the “Moops.” (I think Chait is also right about the reason for making the argument substantially more absurd. It’s hard to deny your responsibility for kicking people off of their health insurance when it’s the result of your opportunistically idiotic theories of statutory interpretation, but invent a congressional intent to do so and it’s easier to play “don’t look at me, I didn’t do it.”

Related to all this, Drum offers a reward:

But maybe I’m wrong! So here’s my offer: I will send a crisp, new ten-dollar bill to anyone who can point out a conservative who so much as suspected that subsidies were limited to state exchanges prior to March 2010. Surely that’s incentive enough? Let’s start digging up evidence, people.

My 10 bucks says that Drum’s total payout will be “nothing.” Indeed, I’m quite confident he could offer the winner a shiny new Thermomix without any substantial risk. I wish I thought this would stop the troofers, but they really don’t care.

Only One Thing The Poor Did Wrong, Stayed In Mississippi a Day Too Long

[ 57 ] July 30, 2014 |

Apropos my skepticism over giving more policy discretion to our glorious laboratories of democracy, a commenter notes an example of chutzpah that would be funny were it not for the grotesque immorality involved:

Mississippi Gov. Phil Bryant (R) blamed President Barack Obama for a reported increase in uninsured Mississipians. The problem is, Bryant didn’t acknowledge that he’s been a staunch opponent of expanding Medicaid under Obamacare and refused to encourage enrolling in private coverage through Healthcare.gov.

Bryant directed his blame at Obama in response to a question about a WalletHub study that showed an increase in the percentage of uninsured Mississippians. The study found that the uninsured rate increased by 3.34 percentage points to 21.46 percent of Mississippi’s population, according to the Northeast Mississippi Daily Journal.

“If statistics show that the ill-conceived and so-called Affordable Care Act is resulting in higher rates of uninsured people in Mississippi, I’d say that’s yet another example of a broken promise from Barack Obama,” Bryant said.

An estimated 137,800 people in Mississippi were left uncovered by health insurance because the state did not expand Medicaid.

What can you say at this point? Republican politics circa 2014 seems to consist exclusively of pissing in someone else’s punchbowl and then blaming the host for inviting them.

“Hahaha Congress Thought the States Were Competent to Do Anything. What a Bunch of Clowns. In Conclusion, Let’s Give More Power to the States.”

[ 49 ] July 30, 2014 |

Paul Ryan, as you may have heard, has yet another “let them eat states’ rights” anti-poverty plan out.  I note that this very old and very terrible idea is a source of grim amusement, given the latest conservative legal theory being used against the ACA:

The notion that “let them eat states’ rights” is a new and exciting idea is particularly perverse given some other recent developments. To the widespread applause of Republicans, a panel on the D.C. Circuit Court of Appeals read the Affordable Care Act as not providing subsidies to people purchasing health insurance on federally established exchanges. According to defenders of the decision, this was not a drafting mistake; they say Congress intended to only make the subsidies available on state-established exchanges, but were surprised by how few states went along.

As a reading of the ACA, this argument is absurd — clearly Congress anticipated that some states would not establish exchanges, which is why the federal backstop was created. Virtually nobody involved in creating the ACA believes that the law was designed to create federal exchanges that wouldn’t work. It is fair to say, however, that some Democrats were surprised by how many states proved unwilling or unable to establish their own exchanges.

But consider the implications of this. The latest conservative legal argument against the ACA boils down to: “you screwed up — you thought the states actually wanted to provide people with health care!” And the Supreme Court re-writing the ACA in 2012 to make it easier for states to reject the Medicaid expansion has also been a catastrophe, with Republican statehouses inflicting easily avoidable pain and suffering on millions of people to prove their anti-Obama bona fides.

So — why is devolving anti-poverty policy to the states supposed to be a great idea again?

The ACA has given us a very powerful lesson: “coercive federalism” is far more effective than “cooperative federalism.” The vastly improved Medicaid would have been much more vastly improved had it just been a federal program like Medicare. Hopefully we’ve learned something.

I give the concluding line to Charlie Pierce: “[B]lock grants to the states suck. They always have and they always will, and Paul Ryan knows this, which is why he gave them a pretty new name in the first place.”

No Labels, Mo’ Money

[ 22 ] July 29, 2014 |

It might be a laughable and inevitable failure at influencing American politics, but in terms of separating suckers from their money NoLabelsAmericansElectUnityFriedmanForever is working out perfectly well.    I’m pretty sure Sarah Palin looks at these grifters with wistful admiration.

Undue Burden

[ 19 ] July 29, 2014 |

5CA holds what should be obvious – Mississippi’s most recent anti-abortion statutes violate a woman’s reproductive rights:

Mississippi’s last abortion clinic won a major victory at the conservative 5th Circuit of Appeals, which said a law intended to make the state “abortion-free” and close the clinic was unconstitutional.

“Pre-viability, a woman has the constitutional right to end her pregnancy by abortion,” wrote E. Grady Jolly, a Reagan appointee, for the panel. The law requiring that abortion providers have admitting privileges to local hospitals, which Mississippi’s Jackson Women’s Health Organization had been unable to obtain, “effectively extinguishes that right within Mississippi’s borders.”

The judges’ hands were tied by the fact that a separate 5th Circuit panel had already said an identical law in Texas, where it has closed about half of the state’s abortion clinics, was constitutional even if it had no basis in medical necessity. Today’s ruling, which is on the preliminary injunction, says the law is only unconstitutional as it has been applied to the Jackson clinic, citing a principle that states can’t violate their citizen’s rights by claiming they can go out-of-state.

The admitting privileges law was scheduled to take effect in July 2012, but was blocked by a lower court, which said if the state got its way, the result would be “a patchwork system where constitutional rights are available in some states but not in others.”

Whether Anthony Kennedy is willing to ascribe any content to the “undue burden” standard, even in such an extreme case, is unclear.

Meanwhile, America’s most trusted news source has a sneak preview of Mississippi’s next legislative session.

 

Unlike Its Opponents, People Who Supported the ACA Wanted it to Work

[ 31 ] July 29, 2014 |

Josh Blackman offers another attempt to argue that Congress actually intended the federal exchanges the ACA established not to work. Inevitably, it’s transparently wrong because like many ideological opponents of the ACA he appears to be incapable of understanding what proponents of the ACA were actually trying to accomplish.

Any such argument, as we know, starts with the nearly insurmountable hurdle of ascribing an intent to the drafters and enacters of the ACA that (aside from some stray comments from one consultant that 1)do not suggest that a denial of subsidies would be permanent and 2)are inconsistent with what the consultant assumed in 2010 and explicitly argues in 2014) is wholly rejected by said drafters and enacters and is held only by the most fanatical opponents of the ACA. Blackman, needless to say, cannot adduce any actual supporter of the ACA who agrees with his interpretation, a rather serious problem since the bill was written and enacted by supporters, not opponents. Instead, he tries to infer an intent to create federal exchanges that wouldn’t work from the structure of the Medicaid expansion:

As further evidence of legislators’ state of mind, we could take the fact that the Affordable Care Act’s Medicaid expansion worked exactly on this theory of carrots and sticks. Uncooperative states, and their residents, would be punished.

In 2010, Arizona inquired about what would happen if it declined to expand its Medicaid coverage under Obamacare. The federal government replied that it would eliminate its contribution to the state’s Medicaid budget entirely. The Department of Health and Human Services sent Arizona Governor Jan Brewer an ominous and pointed letter: “In order to retain the current level of existing funding, the state would need to comply with the new conditions under the ACA.” This observation was followed by a stark warning: “We want you to be aware that it appears that your request…would result in a loss of [all] Medicaid funding for Arizona.”

This argument fails on multiple levels:

  • It completely fails to understand the point of cooperative federalism.  The legislators who voted for the ACA were not trying to “punish” states or their citizens — they were trying to offer a good enough deal that states would agree to expand Medicaid coverage.  The didn’t think that the citizens of Arizona would be punished; they assumed Arizona would take the money, just like it takes the money to establish a state drinking age.
  • The original structure of the Medicaid expansion also makes clear how nonsensical the Halbig interpretation of the ACA is.  Asserting that the ACA intended the federal exchanges not to work suggests that the legislators assumed that the vast majority of states would establish exchanges and were surprised by the scope of the opposition at the state level.  But the fact that Congress made all Medicaid funding contingent on accepting the expansion indicates that Congress fully anticipated substantial state resistance.  If Congress didn’t think that offering a huge pool of money funding more than 90% of the expansion was sufficient incentive for some states to take it, why on earth would it think that the mild disincentives inherent to not setting up state exchanges (citizens do not get subsidies…but are also therefore exempt from the mandate) would be sufficient?  The answer, of course, is that it didn’t.  It assumed that some states would be unwilling and/or unable to establish exchanges.
  • Which brings is to the final crucial point: Blackman cannot explain why Congress bothered to authorize the federal government to establish the state exchanges at all.  If the federal backstop was absent, then the Blackman/Halbig interpretation would be plausible.  But Congress did create a backstop, because it assumed that some states wouldn’t establish exchanges, but wanted the exchanges to be operative in all 50 states.  Blackman is asking us to believe that Congress correctly anticipated that some states wouldn’t establish exchanges, created a mechanism that would correct this problem, but then intended for the solution not to work.  To restate this argument is to refute it; it’s an absurd reading of the statute.  Which is why (one very ambuguous and repudiated coming and going exception aside) no supporter of the statute agrees with it.

I’ve said it before and I’ll probably have to say it again: reading people who are fundamentally hostile to the ACA in principle trying to explain its objectives is like watching an elephant trying to play a toy piano.  Projection is a poor means to determine legislative intent.

…see also.  And definitely read Beutler on Halbig troofers.

Today’s Frivolous Anti-ACA Lawsuit

[ 56 ] July 29, 2014 |

One of the endless series of ad hoc legal challenges to the ACA is an argument (touted by, among others, syndicated columnist William F. George) that the ACA is unconstitutional because it violated the Origination Clause (which requires “Bills for raising Revenue” to originate in the House.) A unanimous D.C. Circuit panel has properly rejected this argument:

The purposive approach embodied in Supreme Court precedent necessarily leads to the conclusion that Section 5000A of the Affordable Care Act is not a “Bill[] for raising Revenue” under the Origination Clause. The Supreme Court’s repeated focus on the statutory provision’s “object,” and “primary purpose,” makes clear, contrary to Sissel’s position, that the purpose of a bill is critical to the Origination Clause inquiry. And after the Supreme Court’s decision in NFIB, it is beyond dispute that the paramount aim of the Affordable Care Act is “to increase the number of Americans covered by health insurance and decrease the cost of health care,” not to raise revenue by means of the shared responsibility payment.

Will Executions By Torture Threaten the Death Penalty?

[ 85 ] July 29, 2014 |

You’ve probably heard about the latest horribly botched execution:

Wood’s execution dragged on for so long that at the midpoint, his lawyers filed an emergency appeal to stop the procedure and called on Justice Anthony M. Kennedy to intervene. Wood died before the federal court could respond, and Kennedy turned down the lawyers’ request. After Wood was pronounced dead, the Arizona Supreme Court ordered that the state “preserve any drug labels and unused drugs pertaining to the execution of Mr. Wood.”

The two-hour execution was just the latest debacle made possible by an ever more familiar combination of state secrecy, untried protocols being tested for the first time on live human beings, and a judicial system that can’t quite make up its mind about how much gasping and coughing is reasonable in a state-sanctioned killing. The new wrinkle is that this time we must endure the spectacle of witnesses to the execution fighting over how much suffering they saw.

Another exhibit Kozinski can use in his campaign to bring back the firing squad.

The optimistic take is that given the choice between a more visibly brutal death penalty and abolition, the public will choose the latter. I’m not sure. Most states have either abolished the death penalty or almost never use it. In the relatively small minority of states that are responsible for the vast majority of executions…I’m not sure that explicit brutality or botched executions will matter. I hope I’m wrong.

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