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Things Are Not Becoming More Hinged

[ 98 ] February 11, 2017 |

Democracy has its faults, but I’m beginning to think it’s preferable to “letting a slave power anachronism and the director of the FBI pick the president”:

Trump obviously won the election, but he narrowly lost New Hampshire to Hillary Clinton. He told senators Thursday that was because of the “thousands” of people “brought in on buses” from Massachusetts to “illegally vote” in New Hampshire. The room reportedly responded with an “uncomfortable silence.”

Trump indicated that this voter fraud, of which there is no evidence, had also affected Ayotte, though he suggested her loss might have also had something to do with her decision to distance herself from him after he criticized the parents of a Muslim Gold Star soldier. “He told her, ‘You’d have won if you’d been on my train,” a participant told Politico.

Then, as the cherry on top of that crumbling cake, Trump told Democrats he was glad “Pocahontas” — his chosen nickname for Sen. Elizabeth Warren (D-Mass.) — was “becoming the face of ‘your party,'” Politico reported.

Fewer than 1440 days to go!

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When Intent Matters

[ 35 ] February 10, 2017 |

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gocart mozart believes that Republicans may not be entirely principled in determining when the statements of public officials or consultants to public officials are relevant to legal questions:

Only off the cuff comments of MIT healthcare economic consultants are relevant (mandatory even) and no take backsies.

Yes, but clearly the situations are totally different. When Prof. Gruber secretly agreed to serve in the offices of President, Speaker of the House, Senate Majority Leader, Secretary of Health and Services, Chief Justice of the United States, and Head Coach of the New England Patriots, he did not take an oath. Based on extensive, well-settled precedent*, taking an oath immediately renders all previous statements inoperative when determining intent.  Since Gruber didn’t take an oath, his extemporaneous comments about the ACA are absolutely dispositive evidence that the federal exchanges were designed to fail. Conversely, since every legislator involved in the passage of the ACA was bound to uphold the Constitution, their statements are completely worthless. Hence, Antonin Scalia’s BLISTERING dissent holding that the federal exchanges established by the ACA were secretly designed not to insure anybody was right, and arguments to the contrary are pure applesauce-pokery, QED.  Hopefully, that clears things up.

*See “IOKIYAR” [unpublished and unwritten memo], Roberts, C.J., 2/9/2017.

Their dreams, they are in fact as empty as their consciences seem to be

[ 264 ] February 10, 2017 |

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Some people have argued that House Republicans do not have a plan to replace the Affordable Care Act. Scurrilous lies! Here is their very detailed public plan, which I present in its entirety:

The House Republican Healthcare Plan lowers costs, provides more control and more choices to pick a plan that meets our needs, not a plan that Washington mandates.

The failure to add “and a pony” shows a rather disturbing lack of familiarity with all internet traditions.

Via Chait, who finds Mike Lee essentially admitting that the public would hate any Republican replacement plan if they found out about it:

The Republican Party, faced with the catastrophic real-world consequences of repealing the Affordable Care Act, is divided over how to proceed. Some nervous Republicans want to figure out what they want to put in place of Obamacare. Senator Mike Lee insists that Republicans repeal Obamacare first, before they decide on an alternative. And his reason is straightforward: If people saw the Republican alternative, they might not like it! “There is a lot less agreement about what comes next,” he tells Julie Rovner. “If we load down the repeal bill with what comes next, it’s harder to get both of them passed.”

That is very true. If people see what Republicans would put in place of Obamacare, they would probably rather keep the status quo. Lee is right that the best way to eliminate Obamacare is to remain vague about the alternative. It’s a little odd for him to come out and admit this, though.

On a related point, Beulter observes that the ACA’s approval ratings are finally above water, in part because “its progressive skeptics—supporters of single-payer insurance or a public option—have come home.” One obvious limitation of approval/disapproval polling about specific laws is that there’s generally no baseline comparison. It’s one thing to disapprove of the ACA because it’s much better than the status quo ante but still worse than the systems of other liberal democracies, or because you would prefer to think that Trump’s plan to give everybody better insurance for free was serious. When people are actually forced to compare the ACA to a Republican plan that will inevitably take health care away from millions of people and make insurance worse and/or more expensive for many of those who retain it, it will be a lot more popular — and Republican leaders understand this perfectly well. This doesn’t make saving the ACA inevitable, but it is a powerful weapon in the fight to save it.

Are Trump’s Discriminatory Statements Relevant to the Challenge to His Muslim Ban? (SPOILER: Yes)

[ 116 ] February 10, 2017 |

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I have some thoughts about the unanimous holding by a bipartisan 9th circuit panel allowing the suspension of Trump’s Muslim ban to stay in place. It doesn’t guarantee success on the merits going forward, far from it, but certainly this challenge has a better chance than the typical such challenge would.

However, when it comes to the shape of the Earth, views will differ! Eugene Kontorovich is very offended that 9CA used Trump’s own words against him:

There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive.

Let’s assume arguendo that it is unprecedented for a court to use a president’s campaign statements when judging whether an executive action had discriminatory intent. So what? For that matter, it’s highly unusual for a president to have announced ex ante that he planned to engage in discriminatory actions. The only question is whether a presidential candidate’s statements about his intentions are relevant to the question of question of whether an executive action was motivated by discriminatory intent, and the answer is obviously “yes.”

You almost have to admire the brazenness of the shell game here, though. The typical approach of conservatives who would prefer to have the equal protection clause apply only to affirmative action programs and to vote counts that might cause Al Gore to get more votes in Florida than George W. Bush is to create evidentiary standards for showing that formally neutral texts are discriminatory and/or are being applied in a discriminatory manner that make it nearly impossible to prove, because most public officials aren’t dumb enough to explicitly acknowledge their intent to discriminate ex ante. But when a public official does say the quiet parts loud, the court can’t consider it, because this would be unprecedented! It’s a nice racket, one that I will assume prove useful when Gorsuch provides the fifth vote to uphold North Carolina’s vote suppression statute.

The formalist mock-nativite doesn’t end there:

More broadly, constitutional structure supports examining only executive statements to interpret executive action. When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it.

Actually, I’m afraid I do not share this presumption. I cite as evidence “the entirety of the tenure of President Donald J. Trump” passim, with particular attention to how Trump was affected by his sworn oath to uphold the emoluments clause. I would also cite the quarter-assed process that led to Trump’s travel ban, and the fact that it was apparently driven largely by a white nationalist newspaper published with no national security experience.

But what about the slippery slope!

This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers, not because of his actions as president, but because of who he is — that is, how he won the presidency.

At oral argument, the judges asked if Trump could ban travel from all majority-Muslim countries. The question should be reversed. If the plaintiffs cast Trump’s views of immigration as impermissible, by this reasoning he cannot take the otherwise clearly legal action of restricting immigration from any of the world’s 50-odd majority-Muslim countries.

Of course not. Trump’s language is evidence of discriminatory intent, but not dispositive evidence. If after a careful process Trump issued an travel ban tailored to evidence of a terrorist threat from a particular country, this might be constitutional despite Trump’s statements. The travel ban at issue here was not that, giving Trump’s announcement of discriminatory intent more relevance.

This would mean that immigration system as created by Congress — which depends on broad executive discretion — will have essentially been destroyed.

First of all, while the system created by Congress might depend on “broad” executive discretion, it certainly did not create the system of unfettered executive discretion Kontorovich seems to want to replace it with — the authorizing statute explicitly forbids religious and racial discrimination, and intent of religious and/or racial discrimination is therefore always relevant. And no matter how broad the discretion Congress wanted to delegate to the executive, it cannot empower the president to violate the Constitution, and evidence of discriminatory intent is also relevant to whether the travel ban violates the 1st and 5th Amendments.

Reasonable people can disagree about how much weight to put on Trump’s statements, but the idea that courts shouldn’t even consider them is absurd.

The Price is Wrong

[ 22 ] February 10, 2017 |

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In February 2009, Tom Daschle withdrew from his nomination as Secretary for Health and Human Services because he improperly failed to claim a tax benefit. This may have had very real potential consequences: it’s possible that the ACA would have been better and even more possible it would have passed more quickly with the former Senate leader on board to help with the process.

The world has, to put it mildly, changed:

Last March, Price announced his opposition to a sensible Medicare proposal to limit the money doctors could make from drugs they prescribe their patients. The proposal was meant to reduce doctors’ financial incentives to prescribe expensive drugs. (And, yes, if you’re bothered that your doctor has any stake in choosing one drug over another, you should be.)

One week after Price came out against the proposal, he bought stocks in six pharmaceutical companies that would benefit from its defeat, as Time magazine reported. At the time, those same companies were lobbying Congress to block the change. They succeeded.

It’s a pattern, too. Price has put the interests of drug companies above those of taxpayers and patients — and invested in those drug companies on the side.

Last year, he also bought shares in Zimmer Biomet, a maker of hip and knee implants. Six days later, according to CNN, he introduced a bill that would that have directly helped Zimmer.

In his defense, a spokesman for Price has said that his broker bought the Zimmer stock and Price didn’t find out until later. That’s certainly possible, but still not acceptable. Members of Congress bear responsibility for their personal stock transactions, period.

A third episode may be the worst. Price accepted a special offer from an Australian drug company to buy discounted shares, as The Wall Street Journal and Kaiser Health News reported.

He told the Senate that the offer was open to all investors, although fewer than 20 Americans actually received an invitation to buy at the discounted price. The stock has since jumped in value, and Price underreported the worth of his investment in his nomination filings. It was a “clerical error,” he says.

Even without any larger context, his actions are disqualifying. He’s repeatedly placed personal enrichment above the credibility of Congress. The behavior is substantially worse than giving money to an illegal immigrant (which defeated a George W. Bush nominee) or failing to pay nanny taxes (which scuttled a Bill Clinton nominee).

But of course there is a larger context. Price has devoted much of his political career opposing expansion of health insurance. His preferred replacement of Obamacare would reduce health care benefits for sicker, poorer and older Americans.

Trump’s first HHS Secretary is both massively corrupt and has substantively horrible policy views. But, of course, on the former IOKOIAR, and the latter is obviously a feature for the Senate majority. The GOP may not succeed in destroying the ACA, but if they don’t it will be in spite of Price. At least he received the appropriate number of Democratic votes.

Huckleberry

[ 150 ] February 9, 2017 |

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Moderate, reasonable, thinking man’s conservative Lindsey Graham defends Mitch McConnell’s neoconfederate gag order:

Republican Sen. Lindsey Graham says the silencing of Sen. Elizabeth Warren on the Senate floor Tuesday was “long overdue.”

The South Carolina senator appeared on the Mike Gallagher Show Wednesday, where he said Warren reading the letter from Coretta Scott King — in which she expressed opposition to Jeff Sessions’ nomination to the federal bench in 1986 — was defamatory to Sessions, now an Alabama senator. The Massachusetts Democrat was ruled to be in violation of Senate rules for impugning another senator.

“The bottom line is, it was long overdue with her,” he said. “I mean, she is clearly running for the nomination in 2020.”

The fact that a misogynist white nationalist could capture the Republican nomination is truly mysterious.

Republicans Need Safe Spaces to Protect Them From Women

[ 128 ] February 8, 2017 |

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It’s not an accident that Mitch McConnell’s selective application of a gag order to defend his party’s neoconfederate nominee to be attorney general was targeted at a woman:

Institutional misogyny is so ingrained in the fiber of American culture that people of every stripe often fail to see in such attacks on women leaders the particular markers of that disease. But in our hearts, women know. Elizabeth Warren was effectively told, in the words of Politico’s Seung Min Kim, to “sit down—and shut up.” Any domestic violence expert will tell you that those are the sort of words that often precede the connection of a male fist to a female face.

Never mind that Warren wasn’t reading the King letter to comment on Sessions’s motives or conduct in his role as U.S. senator; she was speaking against his nomination to one of the most important jobs in the executive branch—a job that is, among other things, charged with enforcement of the citizens’ franchise of the vote. Never mind that King’s letter spoke directly to that concern. Never mind that over the course of the last two years, as The New York Times reports, both Ted Cruz of Texas and Tom Cotton of Arkansas appear to have violated the rule according to its true intent, without having it invoked against them. Cruz’s 2015 impugning of a fellow senator’s conduct motives was a critique of McConnell himself, described by Cruz as a liar. They’re men, and white men at that (and Republican).

Senate Republicans may not all love Donald Trump, but a significant aspect of their agenda dovetails nicely with Trump’s base-stoking, and that is the revival of a white male patriarchy that sees itself as threatened by a multicultural population and the changing roles of women in society. Trump’s courtship of the religious right speaks to this, as does his chief strategist’s courtship of white nationalists and supremacists, whose ideological misogyny is often overlooked.

Meanwhile, you can always count on the Heritage Foundation to make the text even bolder text:

Look this afternoon for the Heritage tweet calling the statement of the Congressional Black Caucus “uppity.”

Against the Muslim Ban

[ 16 ] February 8, 2017 |
TOPSHOT - People rally as they take part in a protest against Republican presidential front-runner Donald Trump in New York on March 19,2016. / AFP / KENA BETANCUR        (Photo credit should read KENA BETANCUR/AFP/Getty Images)

TOPSHOT – People rally as they take part in a protest against Republican presidential front-runner Donald Trump in New York on March 19,2016. / AFP / KENA BETANCUR (Photo credit should read KENA BETANCUR/AFP/Getty Images)

For those interested, I have a piece summarizing the three strongest arguments against Trump’s travel ban. It’s always an uphill struggle to win a challenge against this kind of order, but the technical sloppiness and lack of process behind it and the insistence on the Trump administration on saying the quiet parts loud give this challenge a better shot than usual.

Will Elizabeth Warren Get Attacked With A Cane?

[ 97 ] February 8, 2017 |

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The antebellum slave power was, for obvious reasons, a big fan of suppressing debate. So it’s not surprising that the contemporary party of Calhoun would use similar tactics to try to protect a neoconfederate nominated to be Attorney General of the United States:

Senate Majority Leader Mitch McConnell (R-Ky.) rose on Tuesday and objected to a speech Sen. Elizabeth Warren (D-Mass.) was giving in opposition to the nomination of Sen. Jeff Sessions (R-Ala.) as attorney general.

McConnell took particular issue with Warren as she quoted a letter written by Coretta Scott King, Martin Luther King Jr.’s widow, when Sessions was under consideration for a federal judgeship in 1986.

McConnell invoked the little-used Rule XIX, which says that “No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.” King’s letter argues that, during Sessions’ time as a prosecutor in Alabama, “Mr. Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens.” It was that portion of the letter that McConnell read back to the presiding officer, arguing that it was over the line.

The Republican presiding in the chair, Sen. Steve Daines of Montana, agreed with McConnell, ruling her in violation of the order and forcing her to sit down.

“I am surprised that the words of Coretta Scott King are not suitable for debate in the United States Senate,” Warren replied.

Here’s the letter Mitch McConnell doesn’t want discussed, because he is strongly determined to get someone who was deemed too racist to be a District Court judge by a Republican Senate confirmed as the nation’s top law enforcement officer.

Next from McConnell: “Hey, Roger Taney was confirmed as Attorney General, so there’s binding precedent QED.”

BREAKING! EXCLUSIVE WORLD PREMIERE!

[ 183 ] February 7, 2017 |

Lawyers, Guns, and Money is proud to announce that Dr. Jill Stein, MD., has agreed to allow our web log to debut her comprehensive strategy for producing socialist governing majorities that will finally stick it to BIG VAXX and BIG WIRELESS:

Remember, the best way of stopping Trump is to elect Trump, so things are right on schedule!

Glendon? Mary Ann Glendon? Where Did You Get This From, a Morgue?”

[ 122 ] February 7, 2017 |

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Megan McArdle reaches into her nostalgia file for a 90s classic: “there is only opposition to abortion rights because of Roe v. Wade.”

What do I mean by that? Well, consider the Judicial Wars. Of course, different people will have different dates for the start of that long conflict, but there’s a plausible argument that it began with the sweeping decision in Roe v. Wade.

Hmm, that seems plausible. All those “Impeach Earl Warren” signs were probably motivated by the Burger Court’s abortion decision. It also seems safe to conclude that LBJ’s attempt to replace Warren was filibustered to death in 1968 because of the Supreme Court’s 1973 decision that bans on pre-viability abortion were unconstitutional. Quite frankly, I am unable to identify any Warren Court decisions that filibustering senators like Strom Thurmond would have found objectionable.

There has been a long-running argument about whether public opinion on abortion would have continued to liberalize after Roe v. Wade, rather than hardening into a remarkably stable equilibrium. I tend to think that it would have, because Roe turned what had been a local political battle into a national one, and thereby galvanized social conservatives in (future) red states who would have otherwise been content not to think much about the issue.

This claim is, in fact, about as clearly wrong as such a counterfactual can be. Social conservatives (not just in) (future) red states were plenty galvanized by attempts to appeal abortion bans through the political process, so much so that the legalization process was pretty much dead in its tracks by 1973. And even in states were abortion was largely decriminalized, opponents of abortion rights hardly went away — Rockefeller had to veto a bill to re-criminialize abortion that passed the New York assembly. The idea that opposition to Roe was driven by procedural rather than substantive opposition is implausible in theory and supported by no evidence in practice.

I’ll also note that McArdle made exactly the same argument about same-sex marriage litigation; she tastefully omits this here presumably because it turned out to be massively wrong.

But perhaps more importantly, Roe made the issue binary. Most Americans do not believe that abortions should be legal right up until the moment the doctor hands the baby to Mom and says “It’s a girl”;

Fair enough! It does seem that Roe’s alleged holding that abortion cannot be regulated in any way at any stage of the pregnancy would be highly controversial! Only I happen to have Roe right here:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

So, to summarize, Roe created the opposition to liberal judicial decision that predated it by well over a decade by holding something it didn’t. Hard to see any flaws in that logic! And, needless to say, it’s worse than that:

About a quarter believe that it should be legal under all circumstances, with few-to-no restrictions; another fifth believe that it should be legal under few to none. The middle is mushier:

One extensive battery of survey questions asked since the early 1970s shows that people support abortion when the circumstances of the pregnancy are out of a woman’s control (she has been raped, the life of the mother is at stake), but they oppose it when she can control the circumstances (she is married and doesn’t want more kids, she is not married and doesn’t want to marry the father).

A normal legislative process would have to actually address this complex set of opinions head-on. We’d probably have ended up with some sort of European-style compromise, much less contentious abortion politics, and quite possibly, much less obsession on either side with getting control of the Supreme Court.

What’s amazing about this is that since 1992 the Supreme Court has explicitly permitted this type of “centrist” regulation. It has not made abortion politics any less contentious. I’d also note that even on its own terms it has been a substantive failure. The arbitrary obstacle course that Casey has allowed states to construct around abortion does absolutely nothing to permit “Good Abortions” and prohibit “Bad Abortions” — it just makes it much more difficult for many women less socioeconomically well-situated than McCardle to obtain abortions for any reason. Irrespective of the policy merits, however, McArdle is literally arguing that abortion politics is contentious in the United States because the Supreme Court won’t allow states to pass regulations they’ve been passing for more than two decades because the Supreme Court permitted them.

Also featured here is the old Ross Douthat classic, “why don’t pro-choicers want to be more like Europe, neener-neener.” In the interests of comity, let me say that moving to French abortion policy would be a major improvement! I look forward to McArdle’s next column calling for a repeal of the Hyde Amendment.

But when the Supreme Court exempted abortion from the legislative process, it also exempted political figures — and voters — from having to actually think through what abortion law should look like. The legislative action moved to secondary and tertiary and quaternary issues: spousal and parental notification, health code standards for clinics, whether the federal government should give any funding to organizations that performed abortions, even if the money was tied to some other activity the government wanted to promote.

1)That doesn’t sound like abortion has been “removed from the political process” to me. 2)Leaving aside the fact that it’s a terrible idea on the merits, I would love McArdle to try to explain what regulatory framework currently denied to the states would allow abortions for “good” reasons and not for “bad” reasons. SPOILER: there isn’t one. These “tertiary and quaternary issues” are what centrist abortion regulation is.

The Republicans do indeed, as McArdle goes on to observe, have a serious political problem having caught the healthcare car. But this story about Roe is both wrong and beside the point.

The Jones Administration

[ 125 ] February 7, 2017 |

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What could possibly go wrong?

President Trump made a whopper of a claim on Monday, suggesting that the media is deliberately ignoring terrorist attacks.

“It’s gotten to a point where it’s not even being reported,” he said to military leaders at U.S. Central Command. “And in many cases the very, very dishonest press doesn’t want to report it. They have their reasons, and you understand that.”

The comments would seem to be a response to the hubbub over Kellyanne Conway having repeatedly cited a non-existent terror attack in Bowling Green, Ky., in recent days. But Trump doesn’t appear to have totally invented this theory on the fly.

Instead, the kernel of the idea appears to have come from — or at least been propagated by — one of his favorite news sources: the conspiracy theory website InfoWars.

Expect Trump to start talking about how Sandy Hook was a false flag designed to distract the public from the Bowling Green Massacre any day now. In conclusion, Hillary Clinton was the more dangerous candidate!

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