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The Harper’s Story on the ACA is a Disgrace

[ 74 ] June 24, 2015 |

supreme-court-king-v-burwell-rally

You can pretty much discern the quality of Trudy Lieberman’s would-be takedown of the ACA from the ostensible left from the one paragraph that isn’t behind the paywall:

In July 2009, as the Affordable Care Act moved through Congress, Steny Hoyer, the second-ranking Democrat in the House of Representatives, laughed at the idea that any legislator would actually read the bill before voting on it. If such full-body immersion were necessary to support the A.C.A., he said, “I think we would have very few votes.” In March 2010, just before the law passed, speaker of the House Nancy Pelosi made a similar point. Addressing a national conference of county officials, she declared, “We have to pass the bill so that you can find out what is in it, away from the fog of the controversy.”

Durrr, a bill restructuring the American health care industry had a lot of words in it! We’ll pretend not to know how the contemporary legislative process works! We’ll take Nancy Pelosi egregiously out of context! (Although, in fairness, Lieberman does at least include the full sentence, which if you look carefully means that she’s not arguing anything like what it’s being implied she’s arguing.)

It is, I suppose, theoretically possible that an article that leads off with talking points that have been Fox News staples for many years could still be good. I didn’t take the hint and actually read the thing, and in this case the smart money is right. Some of the argument is reasonable, if banal — health care in the U.S. remains too expensive for many individuals and is too costly in general. Inevitably, Lieberman suggests that the real winner from the ACA are health insurers, although she doesn’t explain why they spent so much money to oppose the bill that is a massive windfall. (It’s true that the ACA provides more customers for insurers; it also has regulations that make many of these customers unprofitable.) Her discussion of employer-provided insurance is replete with post hoc ergo propter hoc problems.

Since there’s a limit to how many words I’m willing to type out, though, I wanted to focus on one particularly egregious part of the article, her treatment of the Medicaid expansion. It’s obviously not a surprise that this kind of attack on the ACA would yadda-yadda the Medicaid expansion. But the way Lieberman deals with Medicaid is considerably worse than had she ignored it altogether. Here is pretty much everything she has to say:

To its credit, the law also allowed sick people to buy insurance and more of the neediest Americans to qualify for Medicaid. But in the 21 states that chose not to expand their Medicaid programs, the poorest of the poor are ineligible for ACA subsidies and, in many cases, receive no help from the regular Medicaid program.

That’s it — the next paragraph moves onto another point, with both the Medicaid expansion and guaranteed issue consigned to a two-sentence “to be sure” graf in a lengthy article. The first problem is that the description doesn’t remotely convey the magnitude of the change involved in changing Medicaid to a program that was required only to cover a fraction of the very poorest to a an entitlement for everyone within 133% of the poverty line. But even worse is that she points out the states that have not taken the Medicaid expansion while failing to mention the Supreme Court re-writing the program. Her language effectively blames Congress for not creating a backstop to the version of the bill written after the fact by John Roberts, which is remarkably dishonest. Later, she cherry-picks Tennessee as a case study for how the ACA has worked for the poor, and after describing a state in which Republican officials refused to implement the ACA’s Medicaid expansion concludes that the ACA — not the Supreme Court, not the state officials — “failed a substantial part of the population it was actually designed to help.”

This shoddy analysis leads to other problems:

Perhaps these would have been reasonable tradeoffs for truly universal coverage. But the Congressional Budget Office estimates that even under the A.C.A there will be 35 million Americans without health insurance, down from about 52 million when the law was passed…Shoshanna Sofaer of the American Institutes For Research suggested that the ACA should be held to the highest possible standard. In three to five years, she said, we would know whether the law “led to anything remotely resembling universal coverage.” But this gets to the root of the problem. Whatever the slogans suggested, the ACA was never meant to include everyone.

The reader is likely to infer that 35 million is something like the ceiling of the ACA (she doesn’t mention, for example, that the CBO data expects the number of uninsured to go down to 27 million by 2017.) But even a ceiling of 27 million uninsured assumes, inter alia, that not a single other state will take the Medicaid expansion — not even Maine or Wisconsin or Virginia. And, obviously, an ACA that worked as intended with a full expansion would, in fact, be well down the road to universal coverage.  In the kindest construction, this is a fuzzy discussion of the issue that gives the reader very little idea how many Americans will have insurance in 10 years should the the ACA survive, and the one fact it selects leaves a highly misleading impression.

There are a lot of problems with American health care despite the major improvements of the ACA, and there’s certainly a good article waiting to be written about them, putting the accomplishments and limitations of the ACA in fair perspective. Lieberman’s relentlessly tendentious assessment is not even close to being that article.

QOTD

[ 122 ] June 24, 2015 |

President-Jefferson-Davis

Paul Butler of Georgetown Law:

I have no respect for your ancestors. As far as your ancestors are concerned, I shouldn’t be a law professor at Georgetown. I should be a slave. That’s why they fought that war. I don’t understand what it means to be proud of a legacy of terrorism and violence. Last week at this time, I was in Israel. The idea that a German would say, you know, that thing we did called the Holocaust, that was wrong, but I respect the courage of my Nazi ancestors. That wouldn’t happen. The reason people can say what you said in the United States, is because, again, black life just doesn’t matter to a lot of people.

[HT]

Grifting: There’s a Lot of Money to be Made Here

[ 211 ] June 24, 2015 |

Crackpot myths about gluten edition.

Webbmentum!

[ 60 ] June 23, 2015 |

Potential Democratic primaries vanity candidate gets to the right of Republican South Carolina governor on treason flag. Well done! This and running against the ACA are a good start — now he just needs to hire pending free agent Mark Penn to hit the trifecta.

I’m actually now hoping he runs so we can see how far he’d finish behind Bernie Sanders in New Hampshire.

Nino Scalia’s Motel Blues

[ 2 ] June 23, 2015 |

1

Lithwick has an entertaining account of Monday’s major 4th Amendment ruling. It’s somewhat unusual for Kennedy, rather than Scalia or Thomas, to be the swing vote in a 4th Amendment case with a positive outcome. But on another level it’s not surprising, since Scalia is most receptive to Fourth Amendment claims that involve individuals and their personal property. Particularly given that the kinds of hotels he would stay at are much less likely to be subject to warrantless searches, his vote was pretty much inevitable. The bigger surprise is Kennedy, whose record in Fourth Amendment cases is pretty lousy.

Friedersdorf’s piece on the case is also good.

Solitary Confinement And White Juries

[ 29 ] June 23, 2015 |

1-12-angry-men-not-guilty

I have a piece up on Anthony Kennedy’s concurrence drawing attention to solitary confinement, contrasting it with Clarence Thomas’s opinions from last Thursday, which were apparently a collage of Michael Savage transcripts and Harry Callahan quotes.

I discuss it briefly, but another of the underlying issues in Davis v. Ayala — the use of peremptory challenges by prosecutors to systematically remove people of color from the jury pool — is also extremely important. The latest in Mark Graber’s recent series on equality and American constitutional law in 2015 is excellent on this point:

The bottom line is that ensuring white-only juries is getting easier and easier. First, you claim trial strategy and exclude defense counsel from the Batson hearing. Then you point to a difference between the answers given by a potential juror of color and a potential white juror. You detected more hesitation when the potential juror of color stated he or she would impose capital punishment. You felt the potential white juror more willing to look you in the eye. If your trial judge believes you, you are home free.

One of my most distinguished colleagues recently said that criminal justice will be the civil rights issue of the future. With all due respect, she is wrong. As the lack of response to the substance of Davis v. Ayala demonstrates, no one cares if the United States is slowly moving back to the days of all-white juries. A Supreme Court that declares a right to same-sex marriage will be lionized and free to do what they want in the criminal justice system. The civil rights issue of the future will concern the concerns of the upper-middle class, not the fate of the Hector Ayala’s of the world.

My only quibble is that I don’t see the causal connection implied in the “free to do what they want in the criminal justice system.” Since all that is required in this case is for them to do nothing, the Court doesn’t need any legitimacy points from a decision legalizing same-sex marriage to (as the casino manager in Owning Mahony instructed his clerk after he told him he “didn’t do nothing” to keep a whale happy) don’t do nothing again. Irrespective of the Court’s general popularity, it’s not going to face a backlash by being too deferential on criminal procedure issues. In addition — as I’m sure Graber would agree — the failure of the Court to stop racially discriminatory jury selection isn’t inherent to its power but is the consequence of the Court’s long-term control by Republicans. It’s worth noting that the most moderate justice appointed by a Democratic president has suggested that because they provide such an easy cover for discrimination peremptory challenges violate the Fourteenth Amendment. Ayala was 5-4, and the dissent written by Sonia Sotomayor, who is assembling a significant body of work on equality issues. Change on this particular issue may be a long time coming, or it may be “just” a change in the median vote away.

Heritage or Hate?

[ 27 ] June 22, 2015 |

Both, of course.

On the Haley Speech

[ 116 ] June 22, 2015 |

NIKKI-HALEY

  • I think Haley merits praise for this action.  People called for South Carolina to take down the flag.  She called for it to be taken down.  I, myself, take yes for an answer.  (And while she’s not running again, plenty of public officials in the South who have safe seats or aren’t running again haven’t done the right thing.)
  • Yes, she had to be pushed by a horrible event.  But as Coates says, when it comes to politicians this is very nearly a tautology.  (You think  LBJ would have had a major record of accomplishment on civil rights had he been elected president in 1952?)  Politicians, up to and including Lincoln, act in politically expedient ways, and doing so is integral to progressive success.
  • It should also be obvious that politicians doing good things doesn’t follow from public pressure as night follows day.  There are many, many public officials  who don’t do the right thing in the face of bad events and public pressure.  (Seven Southern states don’t have Confederate symbols on their flags because of a lack of racist violence or because of a lack of opposition from civil rights groups.)  Cf. also the Republican Party and the Affordable Care Act passim.
  • Yes, it’s only symbolism.  You know what?  Sometimes symbols matter.  When a state-sanctioned symbol of treason in defense of slavery and lawlessness in defense of apartheid flies on the state capitol grounds, informing the state’s citizens that they’re second-class citizens, that matters.  When Republican presidential candidates feel the need to defend the practice every four years that matter.  When a Republican governor who may well have national political ambitions says nuts to this, wrong is wrong, that matters.   Yes, this does not singlehandedly transform South Carolina’s politics and the South Carolina Republican Party is not going to be a reliable vehicle for racial justice, news at 11.  To the zero liberals who will argue that this makes Haley a progressive hero, I will disagree in advance.  Sometimes, politicians who aren’t admirable from a progressive point of view do good things.  This is one of them.

Knowing Your Audience Is Mostly NERDS

[ 47 ] June 22, 2015 |

spiderman1967

Scalia’s decision to give Kimble v. Marvel Entertainment to Kagan was inspired:

  • “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).”
  • “Patents endow their holders with certain superpowers, but only for a limited time.”
  • “To the contrary, the decision’s close relation to a whole web of precedents means that reversing it could threaten others.”
  • “What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “SpiderMan,” p. 13 (1962) (“[I]n this world, with great power there must also come — great responsibility”).”

Substantively, the case is another example of the disagreement between Scalia and Thomas about the value of stare decisis. While I’m dubious about the idea of “superpowered” precedents in general, in this case — involving statutory interpretation in an area of law in which Congress has been very active and contract law — it makes a certain amount of sense. I also thought Kagan’s discussion of the implications of stare decisis was interesting:

Respecting stare decisis means sticking to some wrong decisions. The doctrine rests on the idea, as Justice Brandeis famously wrote, that it is usually “more important that the applicable rule of law be settled than that it be settled right.” Indeed, stare decisis has consequence only to the extent it sustains incorrect decisions; correct judgments have no need for that principle to prop them up.

I don’t think this is strictly accurate. Stare decisis could also have value in preserving rules that in the first instance could have been reasonably decided either way in the interests of stability. But courts generally prefer not to be explicit about how much discretion they have — “correct” and “incorrect” sound more authoritative than “a decision in a case that could have plausibly come out either way.”

Monday Morning Coming Down Links

[ 72 ] June 22, 2015 |

The Silver Bullet That Will Create A Progressive South Doesn’t Exist

[ 228 ] June 21, 2015 |

SC-Capitol

There are a couple comments to Paul’s post about Rick Hills’s “don’t talk about the racist flag” argument that bear citing.

First, from Tyro:

The entirety of post-Civil War history in the USA has been about the idea that letting the south hold on to their “heritage” and looking the other way regarding the consequences, instead of “naming and shaming” would be better for everyone. And after 150 years, the problems persist. Time to find another solution.

And second, from Abagail Nussbaum:

It is surely trivially, obviously true that you will not change hearts and minds by telling people “your culture is bad and you should feel bad.” Especially in a culture that already so coddles white people’s self-image, the possibility of this message being seen as anything other than an attack to be defended against is nonexistent. I have to say, looking at it from the outside, I’ve found the focus on the Confederate flag, understandable as it is, rather self-defeating. It seems to be more about self-gratification and taking out some amount of the terrible anger aroused by this massacre than any actual progress towards ensuring that nothing like it ever happens again.

Having said all that, is there any reason to believe that changing hearts and minds is even on the menu? It would be comforting to think that the one good thing to come out of this horror would be some real change, but I actually think the lesson from it is going to be that the political and social will to make that change doesn’t exist. (I saw someone online make the same point about Sandy Hook – if the murders of first-graders made no difference to the US’s commitment to arming itself to death, nothing ever will.) So why not burn flags and wave bloody shirts in the faces of people who would like to believe that they’re the real victims of a system that benefits them disproportionately? You won’t change their minds, but you might make some of the more open-minded people listening realize just what sort of world they’re living in.

There are a variety of reasons why I don’t like persistent arguments that if there was only some way of declaring a “truce” in the culture war then a natural progressive coalition on economic issues would finally emerge throughout the country. First of all — although, to be clear, I don’t think this is what Hillis means — issues like “silly women and their trivial reproductive rights” have a tendency to get subsumed in the “culture war” issues liberals are urged to abandon.

But Tyro really gets to the heart of the matter. The brutal truth is that most of American political history is an experiment in seeing what will happen if national political elites agree not to offend white supremacist Southern white men. The New Deal coalition agreed to take civil rights off the table from FDR until briefly Truman and then JFK, and the result was after a brief period of supporting (threadbare) national welfare state policies (that largely excluded African-Americans) during a period of particularly acute deprivation, Southern Democrats happily joined with Republicans to thwart economic reforms and pass Taft-Hartley with a veto-proof majority. Republicans took civil rights off the table by 1891, and in the resulting context Albama’s constitution was basically written by timber companies. The Jacksonian party system was essentially organized to take slavery off the table, and during this period the Southern Democrats who dominated the federal government largely had reactionary economic views.

I dunno, maybe at some point we have to consider the possibility that a lot of non-super-affluent white Americans, particularly outside of the northern coasts and upper midwest, have conservative economic views, or at least persistently vote for people with conservative economic policies for reasons that can’t be easily boiled down to culture war distractions. 1.2% of Kansas’s population is African-American,* and yet a majority of its electorate liked draconian spending cuts and tax increases on the poor to fund huge tax cuts for the wealthy so much they voted for more. I’m not saying that we should despair of this ever changing. But by the same token, the idea that “a cross-racial rural coalition rooted in church and guns” will emerge if we can only find the right kind of clever false-consciousness destroying rhetorical strategy is, at this late date, implausible in the extreme.

Does this mean that I think that drawing attention to the ugly history of the Confederate flag will lead to progressive economic outcomes in South Carolina either? No, but the history is true, and I think the burden of proof is always on those who want to deny the truth. And nor am I inclined to tell the multiracial coalition in South Carolina protesting against the Confederate flag that they should stop paying attention to mere white supremacist symbolism and focus on Real Issues.

*xq in comments is correct: I misread the chart.  The correct figure is 6.2%.  Since this is well below the national average I don’t think this materially affects my point, although on this narrow point Idaho or Utah would be better examples.

But the broader point about Kansas, and the reason I cited it, is that I don’t think anyone can reasonably say that the 2014 election came out the way it did because of “culture war” “distractions.”  Economic policy was the focus of Brownback’s first term.  It was the salient issue in the elections.  He signed legislation representing an extreme form of conservative Republicanism, it couldn’t have worked out any worse, and he won anyway.  It’s just very difficult to square this election with the idea that if some issues arbitrarily designated as “culture war” issues are boiled off a natural liberal majority would emerge.

 

Wherever Someone Needs to Defend White Supremacy, the National Review Will be There

[ 162 ] June 19, 2015 |

174_2317_1_lgHeritage, Not Hate

Edward Baptist, author of the superb The Half Has Never Been Told, had a series of tweets yesterday (usefully compiled here) laying out the history of the Confederacy and the Confederate flag. As I said yesterday, the Confederate flag “originated as a symbol of treason in defense of slavery that was repurposed as a defense of apartheid during the massive resistance to Brown v Board of Education.” It’s really not terribly complicated.

Which won’t stop people from trying! Given its history, you will not be surprised that the National Review stepped up to the plate, with Ian Tuttle sniffing that “It’s not a straightforward topic, whatever Vox may say.” So what, exactly, is the difficulty?

But with respect to Ms. Kendall, this hateful man’s use of a slogan is no proof that the slogan itself is hateful. Elected leaders make this distinction constantly when it comes to Islamic terrorism, after all: The teachings of Muhammad, the Koran, the black flag with the Shahada (the flag of ISIS) — they have been “hijacked” and “perverted.” Why hasn’t Dylann Roof merely “hijacked” or “perverted” the main symbol of the Confederacy?

Well, yes, in itself the fact a white supremacist killer found the Confederacy an attractive symbol does not prove that the Confederate flag is a white supremacist symbol. What makes the Confederate a white supremacist symbol is that the Confederacy was explicitly founded to protect slavery, and the Confederate flag was then revived as a symbol supporting private and state violence to maintain white supremacy in the South during the Civil Rights era. It’s pretty hard to argue that someone engaging in white supremacist violence is “hijacking” or “perverting” the “main symbol of the Confederacy” when white supremacist violence is what the Confederacy and its main symbol are all about. (This defense is made even more ridiculous when you find out that Tuttle is willing to suggest that Muslims do bear responsibility for Islamic terrorism.)

To that the obvious answer would be, Because the flag in question is the symbol of a cause rooted in hatred and racial oppression. But it is exactly that point on which persons of good faith can — and do — disagree. One does not need to think the Civil War was the “War of Northern Aggression” to think that the “Blood-Stained Banner” represents something more than visceral racial hatred.

At this point, one might expect some kind of argument for what the Confederate flag represents other than a commitment to white supremacy defended through violence, given its unambiguous history of association with white supremacy defended through violence.  But there isn’t one.  Tuttle doesn’t explain what the Confederacy stands for other than white supremacy; he has no explanation for why the Confederate flag was revived as a symbol when it was.  There’s nothing but bare assertion.

Amazingly, it gets worse:

Yet much of the reason the Confederate flag is so contentious is because objections to it are not raised in good faith. Many opponents of Confederate symbols demonstrate not to promote the reduction of racial tensions and the advancement of a shared good, but out of a desire to impose their own moral outlook on dissenters — because it suits their present-day interests. Racial identity and the interests of one’s own racial group are of outsize importance in leftwing politics. Those interests are furthered when history can be invoked in one’s favor; thus today’s “racial activists” are keen to cast the the Civil War as a simple contest of Good-versus-Evil — even though it is obvious that, pace Ta-Nehisi Coates, the American South was not analogous to Nazi Germany, and the Confederate flag is not the Third Reich’s swastika. Arguments to the contrary have in mind not a proper interpretation of past events, but the manipulation of those events to bolster a present-day agenda.

So we have some vacuous blah-blah-blahing about “identity politics” — something certainly not practiced by White Southerners who proudly display white supremacist symbols, but only by people who opposed them. And then we have a bare assertion, making not the slightest attempt to engage with the historical record, that the Confederate flag is not analogous to the swasitka, with no argument beyond “it is obvious.” It is not!

Presumably, they’re drawing straws at the NRO to determine who will get to argue that Roof is an agent provocateur acting on behalf of ACORN and the Black Panthers.

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