Well, no. But if the facts don’t fit the theory so much worse for the facts…
Author Page for Scott Lemieux
Via Sean McElwee, this is remarkable:
Sure, this is the most conservative court since 1937, and sure its decisions tip well to the right. But if you are the most common type of Republican in 2015, if not literally every politically salient decision produces a conservative result than the court is liberal.
It’s official! If the thinking is to make Sam Bradford look like much less of a first-round bust in comparison, I’d have to say mission accomplished:
Tebow now will join a crowded Eagles’ quarterback roster that includes Sam Bradford, Mark Sanchez and Barkley, giving Philadelphia three former first-round picks at the quarterback position in addition to another decorated college player. And it also will reunite Tebow and Sanchez, who were teammates with the New York Jets.
That is one impressive parade of stiffs, although I feel it could use a little E.J. Manuel or Brandon Weeden for seasoning.
I also loved this detail:
Before signing Tebow, the Eagles first wanted to try to trade backup quarterback Matt Barkley. But when the team could not get enough in return…
Unless the return they were seeking was “howls of derisive laughter from the GM on the other line,” I can’t say I find this stunning. One of what would appear to be the multiple problems with putting Chip Kelly in charge of your team’s personnel decisions is that he can’t trade with Chip Kelly.
Today’s Reminder That the Pulitzer Prize For Commentary Makes the Record of the Year Grammy Look Reliable
Shorter Maureen Dowd: “I have a brand new, entirely original SCORCHING HOT TAKE: all Democratic women are men, and all Democratic men are women. I am not a crackpot.”
If this student government president were permitted to choose his own Chief of Staff, it would be a dark day at the University of Alabama. Black skies would truly be overhead. The Senate has no choice but prevent such a thing from happening.
“We’ll take your LIP money, but we won’t plow your driveway — that would be tyranny.”
As a principled defender of States’s Rights (sic), Gov. Lex Luthor is demanding the federal money he does want in perpetuity:
Florida Gov. Rick Scott announced Thursday that his administration will file a lawsuit against the federal government for threatening to withhold more than $1 billion in funding for hospitals if the state fails to expand Medicaid.
“It is appalling that President Obama would cut off federal health care dollars to Florida in an effort to force our state further into Obamacare,” Scott said, citing a 2012 Supreme Court ruling that said the federal government couldn’t put a “gun to the head” of states to force them to expand Medicaid under the health care law.
The Obama administration quickly accused Scott of misconstruing that court decision because the state is not being forced to do anything. And White House spokesman Josh Earnest blasted the governor for putting politics above people.
CMS countered Thursday afternoon that the state is not being forced to do anything. The LIP program is optional and “has long been scheduled to expire June 30,” agency spokesman Aaron Albright said in a statement. Nor is CMS threatening to withhold the billions in federal dollars that help to fund Medicaid in Florida, Albright added.
“Florida, like all states, is free to implement Medicaid expansion or not,” he wrote. “Florida is requesting an additional optional extension, which raises a different question: whether it promotes the objectives of the Medicaid statute to use demonstration authority when the state has statutory options that would better serve the low-income population.”
Florida’s Republican Senate president, Andy Gardiner, sides with CMS. “The federal government has no obligation to provide LIP funding, or to work within our timeframe,” Gardiner said in a written statement.
This is a novel argument: not only does Florida have a vested right to existing Medicaid funding even if it doesn’t accept the Medicaid expansion, it has a vested right to non-Medicaid federal spending even if it doesn’t accept the Medicaid expansion and even if that funding is set to expire. Even for people with a high enough tolerance for incoherence and illogic to defend the Sebelius Medicaid holding, this should be a neoconfederacy too far.
And yet, while I think Scott’s argument goes beyond even Sebelius, it does have enough in common with it to illustrate a fundamental problem with its reasoning. Roberts’s assertion that there’s some arbitrary limit on how much the content of a program can be changed beyond which categorical funding conditions become unconstitutionally “coercive” seems to imply that states have some sort of entitlement to existing Medicaid funds. The rather obvious problem with the argument is that states don’t have any entitlement to existent federal funds. And yet, without the assumption the argument collapses into a heap — if states aren’t entitled to their Medicaid funding, then Congress can change the content of Medicaid however it wants and still make taking the funds an all-or-nothing proposition. By holding otherwise, the Court created a rabbit hole, which would be more defensible if the consequences of this adventure in doctrinal wonderland* didn’t also produce catastrophic results.
*Thanks to Justice Stevens for the phrase.
One argument for why Democrats should be relatively pessimistic about 2016 is that voters get fatigued about the incumbent party, so getting the third term is generally a grind at best. And there is a historical pattern of these elections being toss-ups even in decent economic circumstances. One problem with inferring things from these patterns is the small n. But the even bigger problem, as Chait says, is most of these elections took place in a context of heterogeneous parties that no longer exists:
The logic that predicts a toss-up election is rooted in the perfectly sound assumption that the historical models give us the best guide to the future. A third straight term from a party whose president has middling approval ratings sits right on the probability fault line, historically. As Nate Silver writes, “these cases default to being toss-ups.”
The trouble is that almost all those cases are drawn from a historic period that is very different from the current one. During the 20th century, the two parties were extremely heterogeneous. The Republican Party had a moderate wing that dominated its presidential elections for most of the postwar years until Ronald Reagan. Democrats had a powerful southern conservative wing. In that environment, the old folk wisdom, “Vote the man, not the party,” made a great deal of sense. In that environment, large chunks of the electorate swung easily from one party to the other depending on transient factors, like the current state of peace and prosperity, rather than deeper values.
The splitting of American politics into two coherent ideological parties with very little programmatic overlap changes things. Voters who are fundamentally attached to one party or the other are not going to abandon their team merely because their party has held onto office for too many terms, or because the other party’s president is presiding over a nice recovery. Those factors are not meaningless because some swing voters do still exist. And performance can change voter perceptions to a degree; a deep recession might make some Democrats doubt their party’s economic program. But these temporal effects are muted.
Incumbent fatigue is a plausibly significant factor in a context in which most of the electoral map was theoretically in play. 45+ state landslides used to occur with some frequency. In 1988, George H.W. Bush — winning a third consecutive Republican term! — won California, Maine, Vermont, Maryland, and New Jersey, and lost New York by only 4 points. Those days are gone. It’s hard for people to internalize the consequences of realignment and entrenched partisanship — my favorite dumb argument about the 2000 election, “Durr, Al Gore was so bad he couldn’t even win his own state, durr [drools],” reflects among other things a failure to grasp what really should be obvious about the contemporary electoral map.
I don’t know what the structural context of the 2016 elections will be. But I don’t think that superficial patterns derived from a pattern of partisan norms that is deader than John Lindsay tell us much of anything.
My view that the loss of livelihood was sufficient punishment is far from idiosyncratic. As Dana Goldstein has demonstrated in an essential piece for The Marshall Project, it is extraordinarily unusual for criminal charges of anything like this severity to be brought in such cases, even though “adult tampering with student testing is depressingly widespread.” To provide some context, non-token jail terms have generally been reserved for teachers who are sexual predators.
The legal context of the testing should also serve to mitigate the offense. In theory, standardized testing can be a useful tool in evaluating teachers and schools, but the regime established by the No Child Left Behind Act does not use it well. The statute sets up very rigid standards derived from single high-stakes tests. The unrealistic performance targets ensure that even competent teachers run the risk of being branded failures and getting sacked, while decent schools are in danger of being declared failures and closed.
Given the structure created by NCLB, widespread cheating by desperate educators was inevitable. That doesn’t excuse their actions, but it’s also a factor that should be taken into account when determining whether a group of educators should be singled out for extraordinary punishment.
One potential defense of the prosecutors and the judge in this case is that the teachers and administrators who are being sent to prison have only themselves to blame, since they refused to cop a plea. The educators who did so were given parole, and before sentencing Judge Baxter urged convicted defendants to take a deal that would have involved shorter sentences served only on weekends. “We didn’t start out with the goal of putting educators in jail,” asserted District Attorney Paul Howard.
This is still a lousy justification for the state’s behavior, one that reveals another major problem with the American criminal justice system. Prosecutors with almost unlimited discretion can use threats of absurdly disproportionate maximum sentences to essentially punish the accused for exercising their rights to a fair trial. The defendants may have been unwise not to take a deal (and waive their right to appeal) before sentencing, but if Judge Baxter thought the terms of the deal were fair, nothing was stopping him from imposing that sentence himself.
The arguments don’t get any better:
That leaves a lawsuit entitled Johnson vs. U.S. Office of Payroll Management holding the crown. On Tuesday, however, the Chicago-based U.S. Court of Appeals for the 7th Circuit tossed the case with a horselaugh, so its reign may be ending.
The lead plaintiff in the case is Sen. Ron Johnson (R-Wis.), a fierce opponent of the ACA. His novel argument is that the law denies him his constitutional right to equal protection because it offers him a benefit — to wit, the same insurance subsidy enjoyed by most other Americans who get health coverage from their employer — that would cause him “reputational and electoral injury” if he accepts it.
Judge Joel M. Flaum, writing for a unanimous three-judge panel of the court, rightly considered the argument, which is that Johnson is injured by this benefit, bizarre. If he’s so concerned about taking a benefit that he attacked while running for office, Flaum wrote, why doesn’t he just turn it down? “We do not see how Sen. Johnson’s reputation could be sullied … by being offered, against his will, a benefit that he then decided to refuse.”
Once the Supreme Court denies cert, maybe Johnson can hire Larry Tribe to argue that the ACA violates the takings clause and nondelegation doctrine. If I understand Tribe’s most recent arguments it’s hard to identify parts of the U.S. Code that don’t, so why not? And if that doesn’t work, three words: liberty of contract.
I see Laurence Tribe is trying to argue that if you buy the argument that the willful misreading of the ACA by the King v. Burwell plaintiffs would produce an unconstitutionally coercive scheme then you’re also bound to buy his nutty, radical theories about the Clean Power Plan. You will be unsurprised to know that this argument doesn’t make any sense:
King challengers’ interpretation of Obamacare is exceedingly strange, which in turn makes it difficult to weaponize against other regulatory programs in an honest way. King posits that Congress sought to create universal health care programs on a state-by-state basis by threatening to ruin insurance markets—to frustrate their ultimate universal health care goal—in non-capitulating states.
The Clean Power Plan is nothing like that. It encourages states to implement plans to reduce greenhouse gas emissions, and says the federal government will step in and implement a different plan toward the same end in states that decline. Tribe describes the federal fallback derisively when he says, “EPA claims the power to impose severe sanctions, including the loss of highway and Clean Air Act funds, as well as the imposition of a centrally planned and administered federal scheme that could harm not simply the State but also its citizens and economy.”
But even on his own terms, this is nothing like the coercive scheme at issue in King. For the parallel to hold, the EPA would have to be encouraging states to implement their own clean power plans by threatening to exacerbate pollution in states that don’t, or something similarly counterproductive.
“If the Clean Power Plan example looked like King vs. Burwell,” University of Michigan law professor Nicholas Bagley told me, “what you’d have is a federal scheme that didn’t provide power to people, didn’t reduce emissions, and torched the energy market in each state.”
Boston University law professor Abby Moncrieff is of a similar view. In a detailed post on Harvard Law School’s website, she explains why King and the Clean Air Act, from which EPA derives its authority to implement the Clean Power Plan, are nothing alike.
And, of course, this is additional problem with Tribe’s attempted neener-neener. The correct answer in King v. Burwell is not “Congress set up a federal backstop that was designed to fail, which is unconstitutionally coercive.” The correct answer is “Congress established a federal backstop that was intended to work, and hence makes tax credits available to purchasers of health insurance on federally established exchanges.” That the former argument may be the only way of getting Kennedy and/or Roberts not to wreck the exchanges still doesn’t put liberals in much of a bind, and even if the Court does so rule it still would say less than nothing about the constitutionality of the Clean Power Plan.
Incidentally, Tribe tried the same kind of routine to defend the Medicaid expansion holding in Sebelius: “the spending power can be used to threaten the First Amendment rights of individuals, so liberals should approve of arbitrary, nonsensical limits on the federal spending power than have nothing to do with the First Amendment rights of individuals.”
I believe that the primary influence on Tribe’s new theory of “inventing non-existent contradictions to bootstrap terrible neoconfederate arguments” was Homer Simpson:
“First you didn’t want me to get the pony. Now you want me to take it back. Make up your mind!”
Harry Reid is still covering up for the mafia and Moops Resistance Army goons who roughed him up. But good luck getting the lamestream media to get to the bottom of it.