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

[ 49 ] July 30, 2014 |

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

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

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

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

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

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

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

No Labels, Mo’ Money

[ 22 ] July 29, 2014 |

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

Undue Burden

[ 19 ] July 29, 2014 |

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

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

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

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

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

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

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

 

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

[ 32 ] July 29, 2014 |

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

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

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

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

This argument fails on multiple levels:

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

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

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

Today’s Frivolous Anti-ACA Lawsuit

[ 56 ] July 29, 2014 |

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

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

Will Executions By Torture Threaten the Death Penalty?

[ 86 ] July 29, 2014 |

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

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

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

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

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

Virginia Is For Lovers

[ 68 ] July 28, 2014 |

Another domino falls.

Public Disagreement Is Not Intimidation

[ 82 ] July 28, 2014 |

godfather-horse-scene-40308“This blog post made me look ridiculous!  And a Chief Justice of the United States cannot afford to be made to look ridiculous!”

Not that I can blame Halbig defenders from wanting to create diversions from the argument on the merits, but really:

Little did I know that within hours of the D.C. Circuit’s decision, Ezra Klein voxsplained how the Chief Justice would not rule in Halbig’s favor because horrible things would happen. Or did Ezra voxtimidate the Chief Justice Justice not to rule in Halbig’s favor because horrible things would happen…

There is a blurred line between voxsplaining and voxtimidating, that pundits walked delicately in the runup to NFIB v. Sebelius. Now, it is a well-worn path. And there is one key difference. We know the Chief blinked in 2012. Why should we think he will act any differently in 2015. Whether the full court press on the Chief  worked in 2012, it is certainly worth a shot again.

McArdle has tried a similar technique of preemption (“This is the Washington equivalent of the old lady in the movies who puffs out her bosom, settles her pince-nez higher up on her nose, and huffs, ‘You wouldn’t DARE!’”)   And we saw similar arguments in the run up to Sebelius.

But this is all silly, and is also irritating because it implies bad faith on the part of people making both predictive and normative arguments that do not conform to the preferences of the 25% of federal judges who have so far bought the most recent ad hoc challenge to the ACA.  As it happens, I disagree with Ezra about the likelihood that the Supreme Court will uphold Halbig (or, more likely, reverses the D.C. Circuit once it hears the case en banc and laughs the argument out of court.)  I think Trende and Yglesias have a much more accurate read on the chances that the Court would destroy the private exchanges in a majority of states.  Nonetheless, I see no reason to believe that Ezra isn’t arguing what he really thinks, and his expressing his views on the matter does not constitute “intimidation” or “Voxtimidation” or even “Kleintimidation.”   Fatally absent from such arguments are identifications of what precise form of leverage pundits have over Supreme Court decision-making.  (There’s the additional problem that the theory fails to explain the vast majority of Roberts’s jurisprudence.)

I suppose another implication here is that some critics of Hilbig have been a bit shrill.  (I certainly plead guilty.)  But this isn’t “intimidation”; it’s “people who strongly disagree for obvious reasons.”  The consequences of Halbig, as the majority conceded, would be serious and dire if it is upheld.  The IRS, which is by law owed deference over reasonable judgments, has interpreted the law as making the subsidies available on federally-established state exchanges.  The majority had a high burden of proof to overcome, and yet Halbig‘s reading of the statute is nonsensical on its face.

And, again, there’s the striking absence of people involved in the legislation who agree with the court’s ruling.  The fact that no supporters of the law were persuaded by the commerce clause arguments against the ACA doesn’t mean much in itself; supporters of the ACA didn’t write or ratify the relevant constitutional provision, and it was theoretically possible that they were construing it too broadly.  But Halbig is a statutory interpretation case — the text in question was written and enacted exclusively by supporters of the law. It was by people who wanted it to work, not by the people inventing one legal argument after another to try to make it fail.  If the statute unambiguously denied subsidies to people obtaining insurance on the federally-established exchanges — and this is the standard Chevron requires — don’t you think this reading would have, at a minimum, a substantial constituency among those involved in drafting and ratifying the ACA?  But, once, again, here is an exhaustive list of this highly relevant group who have ever expressed anything that could be construed as agreeing with the Halbig reading:

  • Jonathan Gruber in two YouTube clips from 2010 2012.

Here is everyone in that category who disagrees:

  • Jonathan Gruber in his contemporaneous data calculations
  • Jonathan Gruber in 2014
  • Everyone else

Given this context, it is not exactly surprising that the assertion that the ACA unambiguously established a federal fallback that was designed to fail has met with strong resistance.  This intense disagreement is not strategic; it’s genuine, and it’s not some kind of bad form to express it.  If supporters of this lawsuit think that they can attempt to deny health insurance to millions of people with a remarkably feeble argument and have it treated as a clever legal puzzle, they’re going to be very disappointed.

Among the Dead-Enders

[ 171 ] July 27, 2014 |

Shorter Ann Althouse: We must maintain a horribly costly, arbitrary, racially discriminatory drug prohibition regime…for the children!!!!!!  And…science!!!  If the case of tobacco has proven anything, there is no way of regulating second-hand smoke and access to minors without throwing lots of people in prison.  Hopefully you will all be able to think rationally rather than being consumed by random emotional impulses like me.  And if you don’t like these non-sequiturs, I have more!

It’s A Fine Line Between Lazy Hackery And Outright Plagiarism

[ 18 ] July 26, 2014 |

On Benny Johnson, I will turn things over to the prescient Alex Pareene:

Is it still plagiarism when no one at either end of the act is using their grown-up words anymore?

 

Today In Republican Minority Outreach

[ 34 ] July 25, 2014 |

In case you were wondering, parody is still dead.

If I Can Squint I Can See One Cherry In This Cornfield — It Must Be A Cherry Tree!

[ 36 ] July 25, 2014 |

Nicholas Bagley is excellent on the egregious cherrypicking by supporters of the latest ad hoc legal challenge to the ACA:

But if you think what Gruber said is some evidence about what the ACA means, you can’t ignore other, similar evidence. That’s cherry-picking. So go ask John McDonough, who was intimately involved in drafting the ACA and is as straight a shooter as there is: “There is not a scintilla of evidence that the Democratic lawmakers who designed the law intended to deny subsidies to any state, regardless of exchange status.” Or ask Senator Max Baucus’s chief health adviser, Liz Fowler. She says the same thing. Or ask Doug Elmendorf, the current CBO Director: “To the best of our recollection, the possibility that those subsidies would only be available in states that created their own exchanges did not arise during the discussions CBO staff had with a wide range of Congressional staff when the legislation was being considered.” Or ask Peter Orszag, then-OMB Director: “[A]s someone who was there, [there is] zero chance this was the intent (as opposed to typo/poor drafting).”

Or ask Jonathan Cohn or Ezra Klein, both of whom followed the deliberations over the ACA closely. Neither heard a whisper about any supposed threat. Or ask Abbe Gluck, a law professor at Yale who details how “a basic understanding of the ACA’s legislative process makes clear that Congress intended for the subsidies to be available on the federal exchanges.” Or ask Aaron, who wonders, if this threat was so clear, why TIE never mentioned it. “Do you think we would have ignored this? We wouldn’t have been concerned?”

Better still, ask the states, which were on the receiving end of the supposed threat. According to a report from the Georgetown University Health Policy Institute, there’s no contemporaneous evidence that the states feared that declining to set up an exchange might lead to a loss of tax credits. How can it be that Congress unambiguously threatened the states with the possible loss of tax credits if the states never understood that threat?

This argument is unanswerable.

Conservatives are fond of quoting Scalia’s quotation of Harold Leventhal, describing the judicial use of legislative history as “as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.”  (The problem with this argument isn’t so much that it’s wrong as that it applies to any source of evidence that judges might use to determine the meaning of an ambiguous statutory phrase, originalism and textualism most certainly included.)   Any conservative who 1)opposes the use of legislative history on these grounds and 2)cites Gruber 2012 (but not Gruber 2010 or Gruber 2014!) as definitive evidence for the intent of the ACA should be responded to solely with hails of derisive laughter.

…Also:  “The opponents of Obamacare have from the beginning found themselves driven by the logic of their position to make arguments that are increasingly morally repulsive.”

…And, yes, the Halbig argument also requires the assumption that Congress was emulating Alexi de Sadesky.

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