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“I’ll go in and rob everyone blind and don’t need to move to Argentina cause the supply of suckers never ends.”

[ 56 ] August 22, 2014 |

Tea Party organizations are an purposively inefficient mechanism for relieving rubes from their money:

And then you get a direct mail piece, or an email, or see an ad on the web that promises change by supporting candidates who embrace your ideals.

Hopeful and excited to learn that there are organizations willing to fight for what you think will “fix this country,” you grab your credit card and fire off a donation, confident you have contributed to a worthwhile cause. If only it were so!

The reality may well be far from what you believe, and have a right to expect; in fact, you may be sickened to learn the truth about how little of your money actually goes to directly or indirectly supporting candidates and their campaigns.

I can I assure you, however, that if you respond to a solicitation with money Mitch and Murray will be intensely interested in your contact info.

And as with everything else to do with the Tea Party, none of this is remotely new.


Your Friday Links

[ 58 ] August 22, 2014 |

Greenhouse on Halbig Trooferism

[ 69 ] August 21, 2014 |

As you would expect, an excellent analysis.  Particularly worth emphasis:

Flash back to December 2010, when the Commerce Clause challenges to the new law were beginning to fill the legal pipeline en route to the Supreme Court. At a conference held at the American Enterprise Institute, a conservative research organization in Washington, Michael S. Greve, an A.E.I. scholar and chairman of the Competitive Enterprise Institute, had this to say in reference to the Affordable Care Act:

“This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it. I don’t care who does it, whether it’s some court some place, or the United States Congress. Any which way, any dollar spent on that goal is worth spending, any brief filed toward that end is worth filing, any speech or panel contribution toward that end is of service to the United States.” Mr. Greve went on to urge a litigating strategy that looked beyond the mandate to “concentrate on bits and pieces of this law.”

Meanwhile, more reviews of the latest troofer brief and the pathetic attempts to defend it are in, and they are appropriately scathing. The final point, on Adler’s egregiously bad faith defense of the “Moops invaded Spain” version of ACA trooferism, is especially good.

As a couple commenters noted, underscoring the risible quality of the arguments in the brief is the bizarre amount of italicization, which gives off a stronger whiff of desperation than a high school boy’s second application of Axe Body Spray before his first date. As elm accurately summarizes their stylistic choices:

Firstly, they use it for emphasis on rather random verbs. They italicize roughly one out of every three verbs. Secondly, they italicize adjectives and adverbs that are, by themselves, solely used for emphasis. Thirdly, they italicize every usage of an enumerating clause. Fourthly, they seem to italicize nouns at random throughout the entire brief.

I’ve never seen anything like it in a 21st century text, and I’ve been grading undergraduate mock case briefs the whole time. Still, after the D.C. Circuit en banc nukes the Halbig panel’s opinion from orbit, I feel that in subsequent litigation the troofers will have to up their game on their use of the typographic arts to express their self-refuting arguments. I offer this sample for their use free of charge:

There is a good reason why Congress, expressing its unambiguous intent to deny credits to people purchasing insurance on federal exchanges to coerce the states, went to the trouble of creating a worthless federal backstop rather than just not having a federal backstop altogether. Namely, look, it’s Halley’s Comet!

You’re welcome!

Ferguson and the First Amendment

[ 34 ] August 21, 2014 |

Too true:

If all the narratives coming out of Ferguson, Missouri—the militarization of local cops, the racial disparities in the criminal justice system, the acceptable uses of force—the constitutional story that has most captured our attention is that of the police persistently violating the First Amendment rights of both the protesters and the press. When we talk about constitutional violations there, we do so primarily with respect to our freedom of speech and assembly.

Now it is beyond dispute that what the media is doing in Ferguson is vitally important and that the arrest and incarceration of reporters is a scandal. And there is no denying that we learn something important about the scale of police lawlessness when they cross the line into arresting journalists, who are traditionally off-limits. It is also indisputable that the right of protesters to peaceably assemble and speak is being undermined by mass arrests, curfews, and attempted news blackouts. But search for the words unconstitutional and amendment in Ferguson coverage on Google, and the extent to which our outrage seems to begin and end at the First Amendment is quite striking. Searching Google News (admittedly not a scientific method, but pretty good), we got six times as many results on Ferguson coverage that mentioned the First Amendment as mentioned the 14th Amendment, which is the amendment that covers a wide range of police abuses having nothing to do with freedom of speech.


Ferguson and Our Benevolent Local Overlords

[ 127 ] August 20, 2014 |

Paul Waldman is making sense:

So the local government, the one that’s supposed to be in touch with the people, is not only out of touch, it’s making their lives miserable. The events in Ferguson have also shown us a case of inept local government that has made the situation worse at every turn. First the Ferguson police responded to protesting residents like they were retaking Fallujah. Then when state troopers succeeded in calming things down for a night — a higher level of government trying to correct the failures of a lower level — the Ferguson police released the surveillance video from that convenience store, as though trying to make the case that Michael Brown had it coming, which enraged local residents and started a new cycle of unrest.

It’ll be great if this situation leads to liberals and conservatives joining together to do something about the over-militarization of law enforcement. And yes, that over-militarization is something that the federal government and local governments cooperated to create. But the next time you hear someone say that power should be devolved as far as possible to the state and local level, remember that those lower levels of government are often where the worst problems are.

“Textualists” Decline to Cite Inconvenient Text

[ 83 ] August 20, 2014 |

The premise of the Halbig majority is that if close attention to isolated textual clauses produces an outcome that will cause millions of people to lose health care coverage, “with reluctance*” these people must be sacrificed to the sacred principles of “textualism.” Never mind that your theory of textualism is a terrible one, and this case is a particularly good illustration of this since the theory produces an absurd result inconsistent with what everyone understood the statute to mean at the time — the text must be honored no matter what the costs! We must revere (isolated passages) of the text (neatly severed from the structure and purpose of the statute)!

[*As Matt W. says in comments, mentally read the "with reluctance" passage in exactly the same tone George Costanza says "Oh noooooo -- I'm so sorry, it's "The Moops."]

Needless to say, this theory has less than no chance of convincing anybody who doesn’t share the fanatical opposition to the ACA of the people who developed it. Fortunately, there’s a remedy for terrible decisions reached by randomly selected panels of appellate judges — the en banc rehearing. And since the D.C. Circuit no longer has a majority of fanatical ideological opponents of the ACA, the outcome an en banc review will result in Halbig being rendered inoperative. The architects of the Halbig litigation are desperate to avoid this outcome, particularly since if there’s no circuit split to resolve the Supreme Court may well decline to intervene. An obvious problem for these “textualists,” however, is that not only do the consequences of Halbig being affirmed mark it as a case of “exceptional importance,” the relevant textual passage of the Federal Rules of Appellate Procedure specifically cites circuit splits as an example of what can constitute the “exceptional importance” that merits en banc review.

So how do the Halbig architects in their deep reverence for textual language deal with this? Brianne Gorod explains:

And there’s a good reason the D.C. Circuit should rehear Halbig en banc, although you wouldn’t know it from reading the brief the law’s challengers filed yesterday.  Funnily enough, these ostensible textualists declined to cite—even once—the text of the rule that actually governs the issue: Federal Appellate Rule 35, which says that rehearing en banc is appropriate when a “proceeding involves a question of exceptional importance.”  The Rule further explains that a proceeding is “of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.”  Sure sounds like the situation here.

In their brief, the law’s challengers try to distract from the governing Rule by pointing to a number of cases in which the D.C. Circuit (and other courts) declined to grant en banc review.  But almost all of the cases they cite are inapplicable, either because they predate the 1998 amendment to the Federal Appellate Rules that explicitly identifies a circuit split as a reason for rehearing en banc, or because they did not involve a situation—like this one—in which the court considering en banc review could have resolved such a split if the full court came out the other way, or both.  The Notes of the Advisory Committee on the Rules—which the law’s challengers also decline to cite—make clear that en banc review is particularly appropriate when it can resolve a circuit split: “If a panel decision simply joins one side of an already existing conflict, a rehearing en banc may not be as important because it cannot avoid the conflict.”  Here, of course, the full D.C. Circuit can resolve the conflict if it agrees with the Fourth Circuit.

Parody is killed again. Now, you might say that this is flagrantly unprincipled. But, to borrow Mark Tushnet’s line, it is simultaneously 0% and 100% principled. Obviously, they don’t really care about their particularly unattractive and unworkable version of “textualism.” The principle of “we must pursue any ad hoc legal theory that has a chance of sabotaging the Affordable Care Act,” though — they’re deeply committed to that one.

The Worst Non-ISIS Person in the World

[ 106 ] August 19, 2014 |


Charles C. Johnson.

My mind cannot fully grasp the fact that a comically inept (although AWARD WINNING!) blogger safely in California feels compelled to inform you that he’s morally superior to an extraordinarily brave reporter humiliated and brutally killed by some of the world’s worst terrorist thugs. What the hell is wrong with some people?

Advice From Your Mortal Enemies: Clinton Counterfactual Edition

[ 140 ] August 19, 2014 |

Megan McArdle argues that it would have been better for everyone, including Democrats, had Hillary Clinton won the Democratic nomination in 2008. Why? Because she would have bailed on comprehensive health care reform. Let’s start with the easier, normative question first:

I’m actually going to disagree a bit here. I think that Hillary Clinton would have been more cautious when dealing with Republicans, and therefore ultimately more successful in some ways. At the very least, she would not be facing the same level of vehement opposition in Congress.

I think liberals really do not understand emotionally the extent to which the Tea Party was created by the Affordable Care Act and the feeling that its government was simply steamrolling it. From the Tea Party’s perspective, you had an unpopular program that should have died in the same way, and for the same reasons, that Social Security privatization did: because sensible politicians saw that, no matter how ardently they and their base might desire it, this was out of step with what the majority of the country wanted (and no, you cannot rescue the polls by claiming that the only problem with the law was that it wasn’t liberal enough; when you dig down into what people mean when they say that, the idea that there was ever a majority or a plurality that was secretly in favor of Obamacare collapses).

A few points:

  • The idea that abandoning health care reform would have significantly moderated conservative opposition is highly implausible.  The Tea Party would have just focused on the stimulus plan rather than the ACA.  Congressional Republicans had already decided to uniformly oppose Obama’s major initiatives before the ACA.  The ACA wasn’t the reason for the mania ostensibly about the deficit that led to the various crises created by congressional Republicans.
  • In addition, while it I suppose it’s possible that Obama would have maintained higher approval ratings had he never even tried health care reform, it’s extremely implausible that trying and failing to pass comprehensive health care reform would have been a net political positive.  Republicans would still be mobilizing against the greatest threat to freedom in known human history, while most Democrats would (correctly) feel betrayed.  Incidentally, this is where the analogy to Bush’s Social Security privatization scheme collapses.  Ending Social Security as a public program was a purely an elite-driven enterprise; most Republican voters don’t even favor benefit cuts, let alone privatization.  But comprehensive health care reform has been a major liberal priority for many decades.
  • And even if you assume an attenuation of conservative mobilization that isn’t balanced out by liberal demobilization, again, so what?  There was no way the Democrats were hanging on to the House of Representatives in 2010.  You would have to be dreaming in technicolor to think that contemporary House Republicans were going to pass major progressive legislation. Obama won re-election and held the Senate despite the unpopularity of the ACA.  So what would materially change had the ACA not been passed? The Democrats would have a few more House backbenchers?  There’s no positive legislative achievement trivial enough to be worth trading for that.
  • On the public opinion question, it’s worth noting that repealing the ACA is even less popular than the ACA. Combined with the fact that the individual components of the ACA are generally more popular than the whole, we shouldn’t assume that its unpopularity is permanent.
  • And, finally, even if you think the political cost is greater than I do, ultimately the point of winning elections is to do things.  The argument that Obama should have abandoned comprehensive health care reform in favor of…something else is analogous to the argument that it would be better for the reproductive rights of women to be held hostage for political purposes than to protect them.  There’s not much value in maintaining power for its own sake, and while you can sometimes attenuate opposition by not winning that’s not much of an argument to therefore never win.

McArdle’s argument that Democrats should have wanted Obama to abandon health care reform fails for the same reason her Halbig trooferism fails: it fails to comprehend how much the issue means to most Democrats.

Now, let’s turn to the more difficult empirical part of the counterfactual:

I think that Hillary Clinton would have pulled back when Rahm Emanuel (or his counterfactual Clinton administration counterpart) told her that this was a political loser and she should drop it. I’ve written before about how my Twitter feed filled up with comparisons to 1932 the night that Obama took the presidency, and it’s quite clear to me that the Obama administration shared what you might call delusions of FDR. It thought that it was in a transformative, historical moment where the normal rules of political caution didn’t apply. The administration was wrong, and the country paid for that.


Of course, in my counterfactual, Hillary also probably wouldn’t have proposed ambitious health-care reform; she’d have done something more modest, like a Medicaid expansion. Progressives might well say that they’d rather have the first two years of the Obama administration, followed by gridlock, than steadier but more modest achievements by a Hillary Clinton administration.

Even leaving aside the fact that there was going to be gridlock after 2010 no matter what, I’m very confident that the second counterfactual is wrong. Any Democrat who took office in 2009 was going to propose the consensus health care reform of the primaries. To argue that Hillary Clinton wouldn’t have proposed her signature domestic policy proposal when Barack Obama proposed it (in a form closer to hers than his) is implausible in the extreme. I also note that the behavior of Republican statehouses makes it pretty clear that Tea Partiers would not have perceived a major expansion of America’s largely single payer health care system for the poor as “modest” — that’s a job for progressives who are too good for your mere politics! — a rather major problem for her other core argument.

The only serious question is whether Clinton would have bailed after Scott Brown’s victory. In a general sense, there’s some reason to believe that Clinton would have been receptive to the Rahm narrative. While Clinton’s primary supporters see her as someone who would be tougher on Republicans, I see someone who was paying Mark Penn millions of dollars, suggesting that she hadn’t fully abandoned the tendency to political risk-aversion that major Democrats learned in the 80s.

That said, on this specific issue I think it’s enormously unlikely that she would have jumped ship when the going got tough. Do you think that Clinton would want to be remembered as someone who twice screwed up comprehensive health care reform? I think that’s enormously unlikely. It’s possible, I suppose, that she could have tried and failed, but again I doubt it; she would know better than anyone that the “just shove it down Congress’s throat” strategy preferred by the ACA’s left critics is a massive fail.

So not only do I not buy that it would have been good for Democrats had Clinton won and abandoned health care reform, I see no reason to believe that she would have.

And For Reasons We Cannot Fully Explain, the Use of Eye-Searing Chemicals Offends American Traditions of Honor

[ 33 ] August 19, 2014 |

This is well-executed:

Though Missouri is infamous abroad for its simmering sectarian tensions and brutal regime crackdowns, foreign visitors here are greeted warmly and with hospitality. A lawless expanse of dogwood trees and beer breweries, Missouri is located in a central United States region that Americans refer to, curiously, as the “MidWest” though it is nearer to the country’s east.

It is known among Americans as the home of Mark Twain, a provincial writer from the country’s small but cherished literary culture, and as the originator of Budweiser, a traditional American alcoholic beverage. Budweiser itself is now owned by a Belgian firm, in a sign of how globalization is transforming even this remote area of the United States. Analysts say some american communities have struggled as globalization has pulled jobs into more developed countries, worsening instability here.

Locals here eat a regional delicacy known as barbecue, made from the rib bones of pigs, and subsist on traditional crafts such as agriculture and aerospace engineering. The regional center of commerce is known locally as Saint Louis, named for a 13th century French king, a legacy of Missouri’s history as a remote and violent corner of the French Empire.

Credit Where Credit Is Due

[ 15 ] August 19, 2014 |

I first saw it in non-Twitter form here, but Simon Maloy apparently deserves the credit for inventing the “Moops” analogy to describe the Halbig litigation. And not only was his post the original, it might also be the best:

“That’s not ‘Moops,’ you jerk. It’s Moors. It’s a misprint,” the Bubble Boy explains, accurately presenting the game manufacturer’s intent in spite of the minor technical error.

“I’m sorry, the card says ‘Moops,’” Costanza replies, adopting an absurdly narrow and nonsensical interpretation of the rules that furthers his own interests. It’s a pretty good match on the logic, and the happy coincidence that the situation pits a whiny, lying jerk against a person in need of substantial medical care only bolsters its relevance.

Indeed. The look of self-satisfaction on Costanza’s face when he says “sorry” is the perfect metaphor for anti-ACA litigation, and the fact that it sets of a chain of events resulting in serious harm if not death to a third party makes the analogy even more perfect. (I assume the first person to come up with the equal protection rationale for Bush v. Gore had the same look.) Only the contemporary Republican Party might have transcended the nihilism of Larry David’s greatest creation. I’m not sure even George Costanza is shameless enough to argue that Spain really was invaded by the Moops. And the harm that his technicality caused the Bubble Boy, unlike the harm that will come to many people were the Supreme Court to uphold Halbig, was not easily foreseeable.

Zombie Self-Serving Bullshit

[ 15 ] August 18, 2014 |

I see the Seattle Times op-ed page is still pushing abject nonsense about the estate tax.


Right Target, Wrong Tools

[ 54 ] August 18, 2014 |

Rick Perry is awful, but the indictment against him is a joke.

In the file marked “the real scandal is what’s legal,” here’s an excellent primer on Perry’s cronyism.

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