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Today’s Reminder That the Pulitzer Prize For Commentary Makes the Record of the Year Grammy Look Reliable

[ 60 ] April 19, 2015 |

813YCom4yVLI dunno, but remainder tables certainly are

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.”

Republican Legislators in Training

[ 29 ] April 18, 2015 |

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.

Today in the Ad Hoc Legal War Against the ACA, Mr. Plow Conservatism Edition

[ 26 ] April 17, 2015 |

Florida Gov. Rick Scott Attends Hurricane Conference

“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.

Past Results Do Not Etc.

[ 74 ] April 17, 2015 |
Above: still deceased.

Above: still deceased.

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.

Over-criminalization and the Atlanta Cheating Scandal

[ 45 ] April 17, 2015 |

The idea that the Atlanta educators who distorted standardized test results should be brought up on racketeering charges is absurd:

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.

Today in the Ad Hoc Legal War Against the ACA

[ 54 ] April 17, 2015 |

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.

Is Laurence Tribe Right That Liberals Should Like His Bad Conservative Arguments? (SPOILER: No.)

[ 35 ] April 16, 2015 |


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!”

“What Did That Exercise Equipment Say…’I’m Just A Patsy?’ You’d Better Believe It!”

[ 17 ] April 16, 2015 |

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.

Throw out the hardware, let’s do it right: NHL Playoff Preview 2015

[ 45 ] April 15, 2015 |

It’s NHL playoff time: if you can’t fly, you’ll have to move in with the rhythm section. Last year the dreary architecture of my soul compelled me to immerse in the analytic literature, and coincidentally or not I went 13-2 pretty much going with the numbers, so I have every intention of doing that again. But first, let’s turn things over to Grand Poohbah of English Literatoor Emeritus Michael Berube, who in our annual tradition will pick the Eastern Conference. Back when his day gig was stacking cutouts at the Strand, Michael acquired a rooting interest in the Rangers, so he has an emotional stake in a contender. We’ll turn to him first:

It is that time of year again, when Scott asks me for my picks in the NHL playoffs, Eastern Conference edition, and I reply with a bunch of predictions salted liberally with Steely Dan lyrics. So let’s break out the hats and hooters, and get to it! You should know how all the pros play the game. Scott gets the West, with its angry race of fallen Kings.

# 1 Rangers v. # 8 Penguins Oh, this is tempting. Just when I say boy we can’t miss, you are golden, I get a matchup like this– just the one I wanted, and that worries me. I was hoping the Rangers would not have to face Boston in round one, because the powerful Bruins insignia makes the Rangers cough up the puck; and I was hoping my guys would not have to face Ottawa, because the Sens have lost only four games in regulation since February 10. But now I wonder: even though the Pens look like they can’t wait to make their tee times in May, might they be motivated enough to make the Rangers pay for all the severe damage they did to the Penguins franchise last year? Maybe. But then again, the Penguins don’t have any defensemen left. They got a name for the winners in the world: Rangers in 5.

# 2 Canadiens v. # 7 Senators Did I mention that the Senators are hot? I mean, crazy hot and scary hot? Then again, Carey Price. It’s nice to see some kind of rivalry crop up between a team from Québec and a team from Ontario, at least until we wait to see whether professional hockey will return to Toronto. But if the Sens really imagine that their little wild time has just begun, I got the news: Carey Price. Habs in 6.

# 3 Lightning v. # 6 Red Wings It is so weird seeing Detroit in the Eastern Conference. I’m not one to look behind, I know that times must change, but has anyone stopped to think that if you have 14 teams in the West and 16 in the East, and eight playoff spots in each, uh, imbalance? Not that it matters to the Red Wings, who are in the playoffs for the 24th consecutive year. I have been betting against the boys from Hockeytown for years, believing that I was feeling a change in the guard, but they are always dangerous, even when they’re not sure they have a real NHL goalie behind them, ahem. Then again, they’re facing the killer line of forwards Johnson, Palat, and Stamkos– and a team that does not lose at home (32-8-1). Oh yeah, and the Lightning GM is a guy named Yzerman, so there’s that angle. So the question for me, finally, is whether Zetterberg and Datsyuk will turn out to be shadows of the men that I once knew. Lightning in 6.

# 4 Capitals v. # 5 Islanders The Isles are thinking that the danger on the rocks is surely past. They are legitimate contenders for the first time in thirty years, and no one can say they aren’t leaving the hideous Nassau Coliseum in style. As for me, I’ve been around the world and I’ve been in the Washington Zoo, and I can tell you that home ice advantage (which the Islanders managed to squander in the final minutes of their season) will mean nothing to the Capitals. DC is like whatever the opposite of Hockeytown would be. But will this be a short series? Only a fool would say that. It will go the distance, it might even involve a 4-OT finish like in ’87, and I’m saying Caps only because I want to see a Caps-Rangers matchup in the second round. Next year when the Islanders move, I feel sure they will make the playoffs again, and I will be able to say something about Brooklyn owing the charmer under me, if I can manage to figure out what that means. Caps in 7.

And now, I will tackle the West:

#1 Anaheim (51.5 Fenwick even strength and close, 14th in NHL) v. #7 Winnipeg (54.1 FF%, 2nd) That’s right — what looks like the quintessential plucky underdog is actually one of the best possession teams in the league. (My Jack Adams vote would go to Paul Maurice without a second’s hesitation.) That doesn’t mean that I think this is an easy series to predict or that I would put a lot of money on the Jets should I find myself in Vegas with a handle in my hand. Anaheim has been outperforming their possession numbers for long enough to make me wonder if there’s something about Boudreau’s coaching or the Ducks’ frontline talent that doesn’t show up in what after all are pretty crude metrics. But what the hell, I want to see the Jets shine in your Brandon and sparkle in your Flin Flon, so I’ll go with the numbers and hope Winnipeg’s goaltending hold up. JETS IN 7.

#2 St. Louis (52.3 FF%, 9th) v. # 6 Minnesota (52.0 FF%, 11th) With the Western Conference playoffs having seen the last of Good King Thornton for now, the Blues are poised to take over the mantle of “excellent regular season team that can’t get over the hump.” The divisional alignment doesn’t do them any favors, as they face a talented Minnesota team that comes into the playoffs sizzling like an isotope. One key variable is Devyn Dubnyk, who played like Dominik Hasek (.936 SP%!) since coming over in midseason. I like Dubnyk and the Oilers selling him low is the kind of thing that makes me hope Kevin Lowe is in charge of the Oilers in perpetuity (which apparently he is), but on the other hand nothing in his record suggests he’s that good and Yeo rode him like Secretariat down the stretch; I can see a regression to the mean coming. Since Good King Ken is a superb coach but also a hardass with a short shelf life, this is a crucial year for the Blues, and I think their superb defensive corps will allow them to get through what should be a great series. BLUES IN 7.

#3 Nashville (53.6 FF%, 5th) v. #4 Chicago (53.0 FF%, 7th) Another great matchup. Nashville is a very, very good team, a little light on offense but a tremendous top 4 on the blueline and (unlike St. Louis) first-rate goaltending to go with it. Chicago needs no introduction; they’re not quite as formidable as they were 2 years ago but we’ve seen their iron and seen their brass and they have as good a chance of getting out of the conference as anyone. The Preds did tail off a bit in the second half, and with Kane apparently ready to go I’m not quite feelin’ the change of the guard here. BLACKHAWKS in 7.

#5 Vancouver (50.7 FF%, 18th v. #8 Calgary 46.2 FF%, 26th The existential question for people in my position: is it better to lose to the Canucks than not to have made the playoffs at all? Despite the possession troubles the Flames have had, a surprising number of people are picking them. But while I’ve already been accused of one correspondent of expectations management, like a castle in his corner in a medieval game I foresee a terrible trouble. Admittedly, if Giordono was healthy this wouldn’t be a mismatch; despite the perception of improvement Vancouver has also become below-average possession team, and if the Flames can continue to stay out of the box they can be competitive. But the injury to the captain really is crucial. There’s obviously no non-devastating way to lose the presumptive Norris frontrunner, but it attacks Calgary where it’s most vulnerable: defensive depth. Brodie is great, but he’s paired with Deryk Engelland, who’s not even an acceptable bottom-pairing guy, leaving the Flames with zero defensive pairs you’d feel comfortable putting out against another team’s top line. On the other hand, even though Bieksa never really developed Vancouver still has an underrated defensive core with Tanev, Edler and Hamhuis. The Hudler/Monahan/Gaudreau line can go toe-to-toe with the Sedins, but while I’ll be praying like a Roman with her eyes on fire for the opposite, I just don’t think Calgary will be able to keep the Canucks off the scoresheet well enough to win. CANUCKS in 5.

In the East, I will dissent from Michael only on the Islanders. They’re never going back to their old dump after the playoffs, but I think Nassau County will get at least 2 series this year.

Clinton and Campaign Finance

[ 40 ] April 15, 2015 |


I have some thoughts at the Guardian on Hillary Clinton’s call for a constitutional amendment for campaign finance. The amendment itself is a non-starter, but having Clinton replace Scalia and/or Kennedy would help enormously in the long run.

“We Are Proud to Announce Bull Connor Will Serve Vegan Meals to All Imprisoned Freedom Riders.”

[ 147 ] April 15, 2015 |


PETA is horrible, part the innumerable:

A controversial, anti-immigrant Arizona sheriff and a former Baywatch star will join together at a press conference Wednesday to promote an all-vegetarian diet for prisoners nationwide. Since 2013, the Maricopa County jail system, run by the self-proclaimed “America’s Toughest Sheriff” Joe Arpaio, became the first in the nation to serve meat-free meals to prisoners. Pamela Anderson is an animal-rights activist representing People for the Ethical Treatment of Animals (PETA) as a spokeswoman.


Still, Anderson’s appearance with Arpaio is the latest in a string of tactics by PETA that seem inconsistent with their humanitarian values. Last year, the organization offered to pay one month’s water bill for Detroit, Michigan residents, who had their water shut off because of outstanding payments. PETA stipulated that residents had to agree to go vegan for one month. But for Detroit residents who live in food deserts, where it’s difficult to find fresh fruits and vegetables, going vegan was described as tone deaf. The group has used other kinds of gimmicks to promote a vegan lifestyle, often using graphic images or using naked women covered in “blood” and trapped in cages for PETA promotional materials.

Despite Arpaio’s assurance that he’s saving taxpayer money with the meat-free meals, taxpayers still have to help pay at least $21.9 million to implement changes recommended by a court order to combat his department’s systemic racial profiling of Latinos. Those changes include improving training and technology equipment, to show that the sheriff’s office will no longer systemically single out Latinos during traffic and immigration stops.

Trolling: not an effective activist strategy.

Hernandez Guilty

[ 22 ] April 15, 2015 |

Of first degree murder.

In fairness, it all started with a very serious grievance, so you can see why three people needed to be killed.

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