Subscribe via RSS Feed

Author Page for Scott Lemieux

rss feed

Minimizing Civilian Casualties

[ 136 ] August 4, 2014 |

Paging William Saletan:

An examination of an Israeli barrage that put a line of at least 10 shells through a United Nations school sheltering displaced Palestinians here last week suggests that Israeli troops paid little heed to warnings to safeguard such sites and may have unleashed weapons inappropriate for urban areas despite rising alarm over civilian deaths.

Inspection of the damage, a preliminary United Nations review that collected 30 pieces of shrapnel, and interviews with two dozen witnesses indicate that the predawn strikes on Wednesday, July 30, that killed 21 people at the school, in the crowded Jabaliya refugee camp, were likely to have come from heavy artillery not designed for precision use.

High Broderite Halbig Trooferism

[ 88 ] August 2, 2014 |

I didn’t know this until Josh Marshall tweeted it while linking to his site’s devastating rebuttal to Halbig trooferism, but Johnathan Turley is one of the troofers.  He presents us with a particularly irritating variant, which one might call “High Broderite Schoolmarm trooferism.”  He thinks that millions of people (but not him!) should be kicked off their health insurance and the market for non-employer based health insurance be made to collapse to teach Congress a stupid lesson about statutory construction, but the most important is that we should discuss this question civilly and never, ever question the motives of hack Republican judges.  Let’s start with the outright dissembling:

While I agree with the merits of the change ordered by the Administration, I am highly uncomfortable with treating language in a statute as a “typo” or some oversight. Indeed, as we recently discussed, even key players who are now calling the D.C. Circuit interpretation “nutty” previously appeared to subscribe to that interpretation. For that reason, I favor the D.C. Circuit opinion out of concern over limiting the role of the courts and reinforcing the separation of powers.

Turley uses the phrase “key players,” suggesting that there are multiple people involved in the crafting of the legislation who thought that the tax credits would not be available on the federally established exchanges. But he in fact cites exactly one, Jonathan Gruber, and in that cite fails to note that Gruber repudiated this position not merely after the fact but before the fact. And the idea that Gruber’s extemporaneous and ambiguous remarks are sufficient to establish a genuine controversy when his interpretation is rejected by everyone else involved is farcical.

Note also that he joins the Fourth D.C. Circuit in asserting that willfully misreading a statute with devastating consequences to the health and financial security of millions of people represents judicial restraint. I assume that to restate this argument is to refute it. And there’s plenty more where this came from, alas. He is, for obvious reasons, not particularly interested in defending his position, but he is very interested in asserting that those who take his position should be exempt from criticism:

The Halbig and King decisions had little to do with health care or contemporary politics. The courts rendered decisions on an arcane area called legisprudence, the study and interpretation of legislation. For legisprudence geeks like me, the decisions were the World Cup of statutory interpretation theory. The D.C. Circuit followed a long-standing approach that closely tracks the text to avoid large alterations in federal law through judicial decision-making. The Fourth Circuit followed an equally well recognized approach that resolves conflicts in laws according to more “holistic” readings of the law.

I view the D.C. Circuit as correct in its interpretation. However, I find it deeply offensive to see people attack the democratically appointed judges in the Fourth Circuit as ideologues. (The author of the opinion, Judge Roger Gregory, is actually a hybrid — having been given a recess appointment by President Clinton but permanently put on the bench under President George W. Bush.)

The King decision is well-reasoned and, more important, consistent with a common, if not dominant, view of statutory interpretation that looks to the overall intent of a law from both the text and legislative history to resolve conflicts.

Likewise, the portrayal by Reid and others of Judges Thomas Griffith and Raymond Randolph as Republican robots is equally unfair. These judges came to the bench with a defined view of judicial interpretation that seeks to avoid encroachment into legislative authority.

At issue in the cases was the law’s Section 1401 that expressly links tax credits to insurance plans purchased “through an exchange established by the state.” For a textualist, that line clearly limits tax credits to states that created their own exchanges. Conversely, it means that citizens in 36 states without such state exchanges (where citizens must use “federal exchanges”) would not be able to claim such credits. For an intentionalist, however, the overall law seems to favor such tax credits, and the Fourth Circuit found that the IRS was reasonable in extending credits to people in states with only federal exchanges.

The conflict could have involved chicken subsidies, and the result would have been the same.

First of all, the idea that one should read phrases in statutes in splendid isolation from the structure of the law, which Turley treats as the dominant, common-sense position, is in fact a terrible method of statutory construction. In addition, the fact that it’s embraced almost exclusively by contemporary Republicans is not a coincidence; as we can see vividly in this case, the point is to keep government from functioning. In a parliamentary system, the courts playing schoolmarm might have less devastating consequences, because the legislature can more easily correct errors. But in the Madisonian system, it’s imperative for the courts to interpret statutory phrases in the proper context, and also that it not read them to produce absurd results. And the reading that Congress established a federal backstop but intended for it not to work is absurd.

Turley’s High Broderism is inconsistent with the relevant legal standard. Under Chevron, the courts have to defer to a reasonable executive interpretation. If the Fourth Circuit argument is even reasonable, then the IRS rule must be upheld. If Halbig is correct, then the 4th Circuit interpretation is not reasonable. Turley can’t have it both ways. And when a legal theory advancing an interpretation that nobody shared at the time is advanced after the fact as part of a war conducted by people who oppose the ACA in principle, it’s cheap partisan politics.

For another argument in the High Broderite family, see Megan McArdle. Like Turley, she does not explicitly endorse but also does not repudiate the theory that the Moops invaded Spain. Unlike Turley, she tries to cite more than one person in her attempt to sell the idea that this dispute transcends ideological divides. But this addition person is Jon Cohn, who made an inaccurate prediction but was explicitly not making a definitive claim about what was in the statute (“this is not something I’ve looked into that closely.”) So, again, were left with Jonathan Gruber in 2012 vs. everyone else involved in drafting and enacting the statute including Johnathan Gruber 2010 and 2014.

One can understand why Halbig troofers want to throw up a “teach the controversy” fog. But Halbig trooferism is strictly a Republican production. And it’s also a terrible argument on the merits, in both its “the card says “Moops!” and “the Moops invaded Spain” variants, granting that the latter is even less defensible.

Today’s Undue Burden

[ 28 ] August 2, 2014 |

Bad news for women in Texas:

Today, Whole Woman’s Health in Austin, Texas, was forced to close because of H.B. 2, the Texas law that erected a series of barriers to providing abortion care in the state. On September 1, a provision of H.B. 2 that requires all abortions be performed in ambulatory surgical centers (ASCs) will go into effect. Whole Woman’s Health of Austin, which has been serving Texas women for more than a decade, is not an ASC, and its lease was up July 31. Its annual license, which costs $5,000, was also up for renewal. But according to Whole Woman’s Health CEO Amy Hagstrom Miller, investing $5,000 for the renewal fee and signing a yearlong lease to stay open for a month simply did not make financial sense.


Everyone’s Looking Forward to the Weekend Links

[ 121 ] August 1, 2014 |
  • Yes, Bloody Andy needs to be removed from the $20.  Rosa Parks and Elizabeth Cady Stanton seem like excellent candidates to replace him.  Alas, if done by a Republican Congress presumably the new bill would have Reagan on the front and John Calhoun on the back.
  • “Reading the column is like listening to Dick Cheney mutter in his sleep.”  I particularly enjoyed the assertion that the “forgotten part” of the Chamberlain story is the “peace in our time” comment.  Similarly, what NOBODY REMEMBERS about Game 6 of the 1986 World Series is that Bill Buckner muffed a ground ball, leading to the winning run.  And now you know the rest of the story.
  • deglar watched some terrible pro-Confederate Civil War movies so you don’t have to.   (Gods and Generals, I note as a connoisseur of aesthetic Stalinism, made Michael Medved’s 10 best list.)
  • Krugman on Geithner.
  • Definitely agree that the new Jenny Lewis is a welcome return to form from one of the best songwriters in this great land of ours.
  • John Brennan really needs to resign.

Today Among the Halbig Troofers

[ 58 ] August 1, 2014 |

Sean Davis believes he has actual new evidence to support the particularly wingnutty theory that millions of people should be denied health care coverage not merely because the card says “Moops,” but because the Moops actually invaded Spain. You will be shocked that he does not.

In defense of the theory that Congress actually intended for subsidies not to be available on the federal exchanges, Davis uses many words to cite two people. The first of these we’re familiar with: Jonathan Gruber. Which gets Davis nowhere, since privileging two stray and ambiguous comments by Gruber in 2012 over absolutely everyone else on all parts of the ideological spectrum at the time (particularly when the latter group includes not only the unambiguous statements of Gruber in 2014 but Gruber’s analysis in 2010) raises hackery to a farcical level. So, what’s his second source? He cites statements made by the superb liberal health care analyst Jon Cohn:

There is some kind of opt out, and I’ll be honest. This is not something I’ve looked into that closely because I don’t think it’s going to end up in the bill. But you know, basically this I believe was part of the Ben Nelson compromise.

Basically, where a state could opt out of the exchanges, I find it hard to believe a state would actually do that. You know, it’s – if you think about the history of these sorts of things, Medicaid was set up and is, remains, an optional program for states. States can opt out of Medicaid if they want to.

Cohn explains himself here. To be clear — proving that it can happen to the best of us — Cohn’s analysis on this point, as I’m sure he would concede, was mistaken. It should have been clear that at least some states would have refused to create exchanges in 2010. It’s true that no states were turning down Medicaid funds at the time, but 1)the block of Medicaid money is a stronger incentive than “your citizens won’t get tax credits but will also be therefore exempt from the individual mandate” and 2)not all states accepted the Medicaid immediately — Arizona held out until 1982. Given the original Medicaid holdouts despite an era of less partisan polarization and its stronger incentives, the history of Medicaid in fact made it pretty evident that some states would not establish exchanges.

But, of course, Congress (of which Cohn was not in fact a member) did anticipate this problem — which is why it created a federal backstop in cases where states did not establish exchanges. And Cohn does not say otherwise — note that he starts out by saying that “this is not something I’ve looked into that closely.” So Cohn’s excessive optimism in an off-the-cuff statement is neither here nor there; Congress didn’t share it, and the troofer argument requires the belief that Congress created a federal backstop but wanted it not to work, which is a transparently absurd reading of the statute.

So, Cohn’s statements aren’t actually new evidence at all. We’re left where we started — the troofer argument is that a single cherry skin on the ground makes an apple orchard a cherry tree. There is never going to be a threat to Drum’s 10 bucks.

see this too. Oddly, the CBO never even considered the scenario that Halbig troofers consider the statute to have unambiguously established. Please revise your views of Senate Majority Leader Gruber accordingly.

…Abbe Gluck has more.

The Accommodation Shell Game

[ 21 ] August 1, 2014 |

For some organizations in the wake of Hobby Lobby, the only acceptable answer is “no contraceptive coverage for you.” The Supreme Court may well go along.

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

[ 142 ] 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.


[ 66 ] 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

[ 221 ] 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

[ 15 ] 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

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.

Page 10 of 719« First...89101112203040...Last »