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The Reformicon Defense of ACA Trooferism

[ 87 ] March 6, 2015 |


He wouldn’t dream of allowing anyone to lose their health insurance, Scout’s Honor!

Negotiating the various perils of the “card says Moops!” and “Moops invaded Spain” arguments, Ross Douthat ends starts off in the ¯\_(ツ)_/¯ camp. On the way, he throws out a major howler:

1) Having gone back and forth over the evidence presented, I’m not convinced by the plaintiffs’ argument that the people responsible for drafting for Obamacare consciously intended to limit subsidies in order to induce states to set up their own exchanges. The famous comments suggesting that they did, from Jonathan Gruber and others, make me suspect that this possibility floated somewhere in the Obamacare hive mind, and the much-discussed path that different versions of the bill took through the Senate allows room for the possibility that somebody involved with the process had that idea in mind, and that this person’s sense of how the law ought to work played some role in why the language that we have ended up in there.

The problem with the “Jonathan Gruber and others” assertion is that if you click the link, you will find that there are in fact no “others.” Not only that, everybody quoted explicitly rejects the fantasy version of the ACA reverse-engineered by Adler and Cannon. So President, Speaker of the House, Senate Majority Leader, Secretary of State, Prime Minster and embattled mayor of Chicago Jonathan Gruber remains only person in any way associated with the Affordable Care Act who has ever suggested that subsidies would not be universally available, and not only has Gruber repudiated this interpretation of his comments his calculations always assumed that the subsidies would be available on both state and federal exchanges. Given the mountain of evidence to the contrary, citing Gruber (2012) is like throwing a bucket of sand in the Pacific Ocean and calling it a beach, which is presumably why Douthat can’t quite go there even if he can’t quite repudiate the theory either.

He then moves onto the “card says Moops!” theory with problematic results:

At the same time, a serious blunder in legislative drafting is just not the same thing as a Moors/Moops “typo”. It was a legislative accident, to take a famous example, when in the process of reforming its prostitution laws Rhode Island created a loophole legalizing prostitution so long as it happened indoors. But that didn’t license the state police to just enforce the law as if the accident hadn’t happened and the law still banned houses of ill repute; instead, the legislature had to pass a revised version of the law and the governor had to sign it to make prostitution illegal once again.

There are two problems, each of them fatal, that render this analogy null:

  • It’s well-settled, and for good reason, that ambiguities in criminal laws be resolved against the state. You don’t read them the same way you read regulatory statutes.
  • Unless the Rhode Island provision was embedded in a 900-page legislative scheme that contained many other provisions that don’t make any sense if you read an isolated subclause literally and with no attention to its context, it’s neither here nor there as far as this case is concerned.

Douthat continues:

And after going round and round reading analyses of King v. Burwell, I still can’t see a good reason why, if this were a lower-stakes piece of legislation and a less polarizing issue, the same principle would not apply. On a plain-meaning-of-words reading of the law, it only seems to authorize federal subsidies for state exchanges, and so the constitutionally-appropriate way to make those subsidies available on the federal exchange is for Congress to correct the accident and authorize that spending in the actual legislative text. Here I agree with Sean Trende, who writes that “if this were some obscure statute — say, the Uranium Mill Tailings Radiation Control Act … the plaintiffs could be reasonably confident of victory.”

The counterfactual can’t be proven either way, but as a commenter here observed yesterday I think this stands reality on its head. I think that if in a politically non-salient case the administration that signed a recently passed bill issued a regulation to resolve what appears to be a minor technical anomaly in the statute, without the objection of a single member of Congress who voted for the bill, there probably wouldn’t be any legal challenge to the regulation at all, and if there was it wouldn’t have gotten past the District Court level. (Indeed, I would love to hear of another example of another statutory interpretation case involving a recently passed law in which there was literally no support for the plaintiff’s reading from any member of Congress who voted for the statute either contemporaneously or after the fact.)

Again, Adler and Cannon didn’t write their fairy tale, and even try to manufacture evidence for it, for no reason. The “card says Moops!” argument is a loser — if there was a “glitch” that created a self-defeating result, the appropriate course of action is to allow the relevant executive agency to resolve the anomaly.

I will have a longer piece about the next subject next week, but quickly:

The textual problem with the law exists in the first place because the Obama White House didn’t want to scale back its policy ambitions after Scott Brown’s shocking victory, and pushed a creative end-around that avoided the necessity of more congressional votes but also precluded some necessary edits.

Well, that’s one way of looking at it. The better way of looking at it is that “the textual problem with the law exists because the Republican minority in the Senate refused to allow another vote on legislation that had the support of a substantial majority.” Allowing the obstructionists to benefit from this by having their allies in the courts destroy a regulatory scheme created by Congress makes the “constitutional decadence” problem worse, not better.

And, finally, we have the inevitable imagining of a Republican Party that doesn’t exist:

In this case, unless he or Kennedy comes up with a clever constitutional move, the court would be deferring to the executive branch and the administrative state while essentially enabling congressional abdication and dysfunction. From my vantage point, that seems like a much worse outcome for our political system than the previous rescue of Obamacare. And that in turn is why, without being particularly happy about it, and while expecting a more politically-expedient ruling, I find myself hoping that the court rules for the plaintiffs — and that Congressional Republicans are then forced, through pressure from the voting public, to do what our system asks of them and actually legislate when legislation is required.

To re-state what should be obvious, if the Supreme Court willfully misreads the law and wrecks the exchanges it won’t force Republicans in Congress to do a damned thing. Their plan for dealing with the uninsured has always been a briefcase full of Styrofoam pellets — why would that change now? It seems worth noting that Ted Cruz’s plan — the most detailed of the Potemkin Republican plans being discussed to reassure the Court — would “solve” the problem of subsidies being denied on the federally established exchanges by ending them for everyone. Oh, and this would be combined with by deregulating the state insurance markets, so in the unlikely event that you could afford insurance it would probably be worthless. Congressional Republicans are not politically suicidal enough to actually enact this plan, but Cruz and his allies will veto anything that isn’t like this plan, and hence the Republican Congress won’t do anything. The idea that reversing King v. Burwell would be a solution to legislative dysfunction is deeply strange.

You Can’t Spell “Reformicon” Without “Con”

[ 34 ] March 5, 2015 |

Remember when Republicans were totally going to be the Party of Ideas (TM) because a small group of conservative intellectuals with little discernible influence on Republican legislators thought that George W. Bush-style supply side politics should be supplemented by some feints towards the middle class?

Well, funny thing about that. Reformocon darlings Mike Lee and Marco Rubio have taken their massive regressive tax cut and made it…much, more more regressive, eliminating taxes on investment and inherited income entirely. So are reformocons upset about the betrayal? Is the Pope a Seventh Day Adventist?

Perhaps the fullest measure of the supply-siders’ triumph can be seen in the acquiescence of many of the reformicons themselves. Ramesh Ponnuru and Yuval Levin, both reform conservatives featured prominently in the Times story, responded to the new Lee-Rubio plan with fawning praise. James Pethokoukis, a reformist conservative, calls the plan “a big step toward persuading middle-income America that Republicans care about more than just the richest 1 percent.” (If this is a big step toward persuading America that Republicans care about more than the rich, what would the next step be? Legalizing servant-flogging?)

Perhaps the reform conservatives have capitulated completely in the name of party unity. Or maybe they were misunderstood from the beginning and never proposed to deviate in any substantive way from the traditional platform of massively regressive, debt-financed tax-cutting. Either way, the movement has, for now, accomplished less than nothing.

But, gee, I can’t wait to hear their alternative health care proposal!

The Best Case For Televised Hearings

[ 42 ] March 5, 2015 |

Were yesterday’s oral arguments. When people say that having cameras in the courtroom would undermine the solemn seriousity of Supreme Court oral arguments I never have any idea what the hell they’re talking about. Oh noes, if we have cameras in the Supreme Court Antonin Scalia might start ranting like a third-tier winger talk radio host! Stephen Breyer might start asking lengthy law school hypotheticals that sometimes don’t really go much of anyplace! Michael Carvin might come off like a sexist bully!

I don’t actually think that cameras in the Supreme Court would change much of anything. But even if they did, so what? The justices already play to an audience; there’s no neutral form of oral argument that televised proceedings would undermine.

Strict Deconstructionism: Republican Legal and Political Values in 2015

[ 109 ] March 5, 2015 |


My take on yesterday’s oral argument is up.

The first main point is that unlike many smart observers I’m not really much more optimistic than I was yesterday.  And second, it’s like how much more hackish could Scalia be?  And the answer is none.  None more hackish:

Particularly remarkable, however, was this exchange:

SCALIA: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue? I mean, how often have we come out with a decision such as the ­­ you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?

VERRILLI: Well, this Congress? [laughter]

VERRILLI: You know, I mean, of course, theoretically — of course, theoretically they could.

SCALIA: I don’t care what Congress you’re talking about. If the consequences are as disastrous as you say, so many million people ­­ without insurance and whatnot — yes, I think this Congress would act.

Scalia’s argument, of course, came straight from a land of willful fantasy. It’s tempting to dismiss Scalia’s comments as politically naïve, but I think it’s more pernicious than that. Scalia has long shown an affinity for the most witless Fox News talking points. Republicans have been making a conscious effort to reassure the court that they have a plan should the court gut the ACA. Needless to say, they don’t actually have any plan — pretending to have a plan is their only plan. Indeed, Republicans in Congress are so dysfunctional that they can barely even pretend to have a serious alternative, and any attempt to fix the law would assuredly be stillborn.

The Republican alternative should the court willfully misread the law and ruin the federally established exchanges is a con somewhat less sophisticated than selling oceanfront property in Wyoming — but it’s good enough for Scalia! That tells you all you need to know about the extent of his fidelity to judicial ideals.

There are two additional examples of hackery and cynicism I didn’t have space to get to but are also relevant:

  • There is an additional element of disingenuousness in Carvin citing the relatively low number of states that have undergone the “thankless task” of creating their own exchanges after the IRS ruled that subsidies would be universally available. One reason so many states declined to establish exchanges is that Michael Cannon spent a great deal of time flying around the country and urging states not to do so.  The architects of the suit obviously thought that even with the subsidies offered through federal changes many states would establish their own exchanges – and, indeed, even with this organized campaign 17 did. States had a reasonable opportunity to create their own exchanges and that’s all Congress wanted.  But it’s yet another new level of bad faith for the troofers to actively thwart the creation of state exchanges and then use this as a reason to wreck the federal exchanges after projecting their own views about federal power onto legislators who don’t share them.
  • Let’s consider another of Scalia’s talk radio soundbites: “This is not the most elegantly drafted statute.  It was ­­ it was pushed through on expedited procedures and didn’t have the kind of consideration by a conference committee, for example, that ­­ that statutes usually do.”  The “expedited procedures” claim is just erroneous; both the Senate and then the House passed the ACA using ordinary procedures, and then there was a set of amendments passed through reconciliation.  The implicit claim that the ACA was passed in unseemly haste is a joke to anyone who actually remembers the interminable process.   It is true that the bill did not have the usual benefit of being harmonized through a conference committee. But the reason that this didn’t happen is that the Republican minority in the Senate would not have permitted a vote on a new bill.  It’s a neat scam: A Republican minority prevents Congress from functioning properly, and then their political allies on the Supreme Court use this as an excuse to willfully misread the resulting statute, with disastrous consequences for many people.  When the same Supreme Court justice to then assert that congressional Republicans would never, ever dream of seeing large numbers of people go without health insurance it just completes the shameless hack cycle.

The grand theory of Republican politics and constitutionalism in 2015 would seem to be “stop hitting yourself.”  Stripping health insurance from millions of people based on a legal theory that would be laughed out of any courtroom not dominated by partisan Republicans is a logical endpoint.

The War On Worker’s Comp

[ 30 ] March 5, 2015 |

The new Gilded Age:

It was exactly the sort of accident that workers’ compensation was designed for. Until recently, America’s workers could rely on a compact struck at the dawn of the Industrial Age: They would give up their right to sue. In exchange, if they were injured on the job, their employers would pay their medical bills and enough of their wages to help them get by while they recovered.

No longer.

Over the past decade, state after state has been dismantling America’s workers’ comp system with disastrous consequences for many of the hundreds of thousands of people who suffer serious injuries at work each year, a ProPublica and NPR investigation has found.

The cutbacks have been so drastic in some places that they virtually guarantee injured workers will plummet into poverty. Workers often battle insurance companies for years to get the surgeries, prescriptions and basic help their doctors recommend.

Two-and-a-half years after he lost his arm, Whedbee is still fighting with North Dakota’s insurance agency for the prosthesis that his doctor says would give him a semblance of his former life.


Bobo: The Midlife Crisis Years

[ 47 ] March 4, 2015 |

Some thoughts should be shared on the op-ed page, and others are probably better confined to scotches at the 19th hole.  And you may want to consider the possibility that if you were less sexist you wouldn’t be thinking these things at all.

…Bobo, the movie!

Deep Thoughts From Movement Conservative Superstars

[ 69 ] March 4, 2015 |

Shorter Verbatim Ben Carson: “Because a lot of people who go into prison go into prison straight — and when they come out, they’re gay. So, did something happen while they were in there? Ask yourself that question.”

But remember, according to the man who invented the concept of same-sex marriage he’s only a homophobe by today’s unforgiving standards!

For King v. Burwell Day

[ 194 ] March 4, 2015 |

I have an explainer about the case up at Gawker.  (Immense credit to them for the awesome graphic at the top.)  For the record, without benefit of oral argument I remained a pessimist:

To oversimplify, the political science literature on judicial behavior suggests that the votes of Supreme Court justices in politically controversial cases tend to be largely determined by the policy views of the justices. When it comes to predicting close cases, however, that “largely” can be confounding, since the justices with the median votes in a given case tend to have the least predictable views. Assuming that all of the Democratic nominees would have voted for the ACA and all of the Republican nominees would have voted against it if they were members of Congress, the “attitudinal model” got 8 of the 9 votes in the last ACA case right–and Pete Carroll was having a great postseason until his last offensive play.

As Ian Millhiser explains, the majority of the Court’s votes can be predicted with near-absolute certainty: the four Democratic nominees will vote with the government, and Justice Alito is “more likely to be struck by lightning while committing in-person voter fraud” than to vote to uphold the IRS regulation. I would put Thomas and Scalia in the latter group as well, and given Kennedy’s hostility to the ACA he’s only marginally more likely to side with the government.

So this case essentially comes down to the Chief Justice. If I was one of those compulsive types who just has to bet, I would say that Roberts is more likely than not to side with the troofers. If you bet that justices will follow their political views, you won’t always be right but the odds are in your favor. But that’s really just a guess, since his vote will depend on factors – how strongly he substantively he opposes the ACA, how he perceives how a particular decision will affect the legacy of his Court, etc. – that are unknowable to outsiders.


If you want to allow yourself any optimism about how Roberts will vote, the horrible consequences of the Court siding with the challengers could be a factor. Republicans, certainly, are going out of their way to reassure the Court that denying the subsidies to federally established exchanges is no big deal. The funniest and most pathetic example of this was seen earlier this week, as House Republicans demanded that Health and Human Services Secretary Sylvia Burwell explain her top-secret plan to magically stop all of the bad effects should the latest Republican challenge to the ACA succeed. In related news, House Republicans plan to steal Burwell’s car and then demand to know her strategy for getting them off if they crash it into a school bus after a 7-martini lunch.

Initial reports from oral arguments suggest that I may have been a tad too pessimistic; in particular, the federalism argument seemed to have substantial appeal to Kennedy. I’ll have more when I have a chance to read the transcript.

Radio Silence

[ 101 ] March 4, 2015 |

still-of-kevin-costner-and-wayne-knight-in-jfk-(1991)-large-pictureAbove: Michael Carvin prepares for oral arguments. Jonathan Gruber was spotted on the grassy knoll.

Today is oral arguments day in King v. Burwell.  My question: is there any good reason why they’re not streamed live, rather than being held until Friday?  I know I have a professional self-interest here, but when a literal life-or-death matter is before the nation’s highest tribunal it seems as if the public should be able to listen in real time.

I also don’t think there are any good arguments against televising Supreme Court proceedings, but baby steps.

While you wait for the transcript to go up, if you’re into that kind of thing, Beutler is excellent once again:

As exercises in bad faith go, Barnett’s double standard is trivial, perhaps even unintentional. By contrast, the crucial elements of the King casethe political theatrics, the enlistment of plaintiffs, the historical revisions, the legal arguments themselvesare all breathtaking in their duplicity. The current challenge offends the sensibilities of its detractors more than the constitutional challenge that nearly voided the law three years ago, because the law’s opponents have enlisted such indefensible tactics. And the horrible thing about it is, they might very well succeed.


You have to be delusional or dishonest to claim that Congress imposed a huge condition on the subsidies, or that we can’t know what Congress was trying to accomplish. Yet a swing justice could decide that “by the State” does not equate to “by the federal government on behalf of the State”to ignore the fuller contextand thus that the law doesn’t do what Congress wanted when Congress wrote it. That would be a huge coup for diction scolds and people who get angry at the thought of poor people going to the doctor. It would also reflect a conscious decision to ignore the clarity of the law’s purpose. If that’s the thin reed on which the Supreme Court interprets Obamacare, in defiance of the democratic process that brought it into existence, something will have gone very, very wrong.

…my longer preview piece is up here.  

Today In Post-Racial America

[ 27 ] March 4, 2015 |

Who would have thunk it?

The Justice Department will issue findings Wednesday that accuse the police department in Ferguson, Mo., of racial bias and routinely violating the constitutional rights of black citizens by stopping drivers without reasonable suspicion, making arrests without probable cause and using excessive force, officials said.


The findings come as Justice Department officials negotiate a settlement with the police department to change its practices. If they are unable to reach an agreement, the Justice Department could bring a lawsuit, as it has done against law enforcement agencies in other jurisdictions in recent years. A U.S. official said that Ferguson officials have been cooperating.

As part of its findings, the Justice Department concluded that African Americans accounted for 85 percent of all drivers stopped by Ferguson police officers and 90 percent of all citations issued.

The Justice Department also plans to release evidence this week of racial bias found in e-mails written by Ferguson police and municipal court officials. A November 2008 e-mail, for instance, stated that President Obama could not be president for very long because “what black man holds a steady job for four years.”

As I said in November, real federal supervision of this department is very much necessary.

An Attica Horror Story

[ 30 ] March 3, 2015 |

A horrible atrocity:

Mr. Williams was wondering why a sergeant would be doing the grunt work of conducting an impromptu drug test when, he said, a fist hammered him hard on the right side of his rib cage. He doubled up, collapsing to the floor. More blows rained down. Mr. Williams tried to curl up to protect himself from the pummeling of batons, fists and kicks. Someone jumped on his ankle. He screamed in pain. He opened his eyes to see a guard aiming a kick at his head, as though punting a football. I’m going to die here, he thought.

Inmates in cells across from the dayroom watched the attack, among them a convict named Charles Bisesi, 67, who saw Mr. Williams pitched face-first onto the floor. He saw guards kick Mr. Williams in the head and face, and strike him with their heavy wooden batons. Mr. Bisesi estimated that Mr. Williams had been kicked up to 50 times, and struck with a dozen more blows from nightsticks, thwacks delivered with such force that Mr. Bisesi could hear the thud as wood hit flesh. He also heard Mr. Williams begging for his life, cries loud enough that prisoners two floors below heard them as well.

A couple of minutes after the beating began, one of the guards loudly rapped his baton on the floor. At the signal, more guards rushed upstairs and into the dayroom. Witnesses differed on the number. Some said that as many as 12 officers had plunged into the scrum. Others recalled seeing two or three. All agreed that when they were finished, Mr. Williams could not walk.


After the beating ended, an inmate who was across from the dayroom, Maurice Mayfield, watched as an officer stepped on a plastic safety razor and pried out the blade. “We got the weapon,” Mr. Mayfield heard the guard yell.

Mr. Williams was handcuffed and pulled to the top of a staircase. “Walk down or we’ll push you down,” he heard someone say. He could not walk, he answered. His ankle was broken. As he spoke, he was shoved from behind. He plunged down the stairs, crashing onto his shoulder at the bottom. When guards picked him up again, he said, one of them grabbed his head and smashed his face into the wall. He was left there, staring at the splatter of his own blood on the wall in front of him.

That’s an excerpt from an essential piece of investigative reporting that will absolutely reward your attention.

The officers responsible have agreed to a plea bargain that can’t be called justice:

Three guards accused of beating an inmate at the Attica Correctional Facility so severely that doctors had to insert a plate and six pins into his leg, each pleaded guilty here on Monday to a single misdemeanor charge of misconduct. The last-minute plea deal spared them any jail time in exchange for quitting their jobs.

And, yet, as the first story makes clear, the surprise is not that the sanctions are so light but that they were prosecuted at all. The system is completely broken.

I assume most of you are aware of Attica’s history. I can’t wait for Heather Thompson’s forthcoming book on the 1971 uprising and its aftermath to come out, but here’s a good summary of the cover-up of the crimes committed by the guards.

Today in the World’s Most Farcical Legislative Body

[ 60 ] March 3, 2015 |


House Republicans reiterate their demands for the administration’s TOP-SECRET PLAN to mitigate the damage should the judicial arm of the Republican Party decide to wreck a majority of the country’s health insurance exchanges:

A Republican House subcommittee chairman is accusing the Obama administration of secretly preparing a fallback strategy if the Supreme Court strikes down a major piece of its healthcare reform law later this year, even as officials publicly maintain that no plan exists.

Rep. Joe Pitts (R-Pa.), chairman of the House Energy and Commerce Health Subcommittee, says federal officials are hiding a roughly 100-page document on the looming court case. The case, King v. Burwell, could cut off ObamaCare subsidies in three-quarters of states and potentially collapse the national marketplace.

Pitts confronted the head of the Department of Health and Human Services (HHS) about the plan, which he says is being circulated among senior officials, for the first time on Wednesday.

HHS Secretary Sylvia Mathews Burwell said she does not know of a planning document.

“This is a document I’m not aware of,” she said in response to Pitts’s questions, before moving on to outlining the negative affects of a ruling against the law. 

”We believe we do not have any administrative actions,” she reiterated.

Rep. Joe Barton (R-Texas) pressed Burwell further.

“I take you at your word that you haven’t seen the plan, but don’t you think it’s prudent that there should be a plan?” he said. “I hope I don’t have a primary opponent, I hope I don’t have a general election opponent, but I have a plan in case I do.”

Burwell held her line.

“We don’t have an administrative action that we could take so the question of having a plan, we don’t have any administrative action that we believe could undo the damage,” Burwell replied.

“The administration is just going to hold up your hands and say we surrender?” Barton added.

“We believe the law as it stands is how it should be implemented,” Burwell replied.

Rep. Leonard Lance (R-N.J.) repeatedly also pressed Burwell on whether she knew of the planning document. Burwell did not categorically deny its existence, saying only that she does not know of it.

“If there is this document, and you know it, I would certainly like to know about a document, because I don’t have knowledge of a 100-page document,” Burwell said.

When Burwell again dove into the negative affects of a Supreme Court ruling against the law, Lance interrupted, “That’s filibustering.”

“I’m not familiar with the document you’re referring to,” Burwell replied.

Democratic Rep. Eliot Engel (D-N.Y.) came to Burwell’s defense, noting that Republicans are supporting the high court challenge.

“It’s somewhat ironic that my Republican friends are demanding that the administration fix problems that they themselves created,” Engel said.


In fairness, the idea that House Republicans would have their own contingency plan is even more ridiculous than this, so why not.


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