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Is it Logically Impossible For Wingnut Lawsuits to Have Bad Consequences?

[ 54 ] February 10, 2015 |

David Catron asserts that critics of ACA trooferism are being hysterical:

Now, they have resorted to claims so wild that even progressives will have trouble taking them seriously. Think Progress, for example, published a screed last week with the following title: “How King v. Burwell Threatens the Lives of Millions of Children.”

And DNC mouthpieces like Think Progress are by no means the only purveyors of such balderdash. The nominally independent Slate warns that “9,800 additional Americans will die each year” if the Court rules against the Obama administration. Even relatively respectable publications have joined this chorus. The Hill posted a story last Friday titled, “King v. Burwell will decide the Fate of Millions,” whose author solemnly warns that “the wrong outcome” would put “American lives in peril” and “erode some of the largest coverage expansions in decades.”

At this point, one might expect a rebuttal of these factual claims. Some kind of argument, perhaps, explaining why the troofer reading of the ACA doesn’t threaten CHIP or how being denied access to medical care doesn’t actually have bad consequences for one’s health. But he’s got nothing; he just moves on. There are just some words like “screed” and “balderdash” and “nominally independent,” accusing people who make factual arguments about the consequences of the latest anti-ACA lawsuit of being biased without even beginning to explain why they’re wrong. The logic seems to be something like this: 1)the consequences of 5 members of the Supreme Court buying the arguments of the ACA troofers would be monstrous; 2)we’re not monsters; 3)ergo, they must be inaccurate. Sorry, but if the shoe fits…

Extending knowledge, improving the human condition, searching for truth — these are the three demons you must slay if you wish to succeed in business.

[ 40 ] February 10, 2015 |

Sadly, this kind of thing will probably improve Walker’s chance of getting the nomination. 

The Unprecedented Obstructionism of Barack Obama

[ 116 ] February 9, 2015 |

Neo – neocon is outraged that Barack Obama would use his phony-baloney “clearly assigned constitutional powers” in ways that reflect his policy preferences — almost as if he was elected or something.  And never before has a president showed such contempt for democracy on so many occasions!

Historically, most presidents have saved their vetoes for the issues that matter most to them, because they have been afraid to challenge what appears to be the will of the majority of the people too many times. But Obama has no such hesitations. The last time he cared about the will of the people was on November 6, 2012.

Yes, back in the day presidents were very cautious about using the veto power, but under Barack Obama it’s nothing but reckless tyranny.  Assuming that Obama vetoes the Keystone Pipeline, consider this remarkable record of indiscriminate vetoes in historical context:

Obama: 3 (5, pro-rated to a full two terms)

George W. Bush: 12

Ronald Reagan: 78

Gerald Ford: 66 (in less than 3 full years!)

Richard Nixon: 43 (less than 2 full terms)

Dwight Eisenhower: 181

Calvin Coolidge: 50 (less than 2 full terms)

Teddy Roosevelt: 82

Grover Cleveland: 584

As you can see, the data is clear.  Obama’s lawlessness and obstructionism are unparallelled.   The veto used to be a very rare event, but now it’s ubiquitous.  I think we can all agree as well that Neo- neocon’s assumption that vetoes are somehow illegitimate and undemocratic is every bit as sound as her history.

So this line of argument is really going to be a thing.  I assume the next step is to argue that Obama and Biden are defying the will of the voters by refusing to resign.


“But look at that hang-dog expression. He’s learned his lesson. Let’s get him a present!”

[ 36 ] February 9, 2015 |

Speaking of the fallacies inherent in paying attention to motives rather than results, much of the mainstream media’s ongoing ridiculous treatment of Paul Ryan is a classic case in point.  “I think it’s outrageous for Ryan to attack Obama on income inequality, given this extensive evidence that Ryan has devoted his entire political career to the massive upward redistribution of wealth.”    “But he did a Meet the Press interview at a bookstore, the kind that might be visited by pointy-headed, coffee-drinking urban liberals!”   Oh well, then.

It probably goes without saying that Weisman goes on to talk about all the bipartisan grand bargains Ryan might be able to get through Congress.  High Broderism never dies.

Lessons From Vaccine Trooferism

[ 76 ] February 9, 2015 |

A couple of really excellent comments in djw’s vaccines thread. First, from longtime friend of LGM gmack:

The phenomenon you point to also highlights the collapse of any faith in collective or social life. The anti-vaxxers conceive of their position purely as a private lifestyle choice. They want to make their child “pure” and “uncontaminated,” and their means of doing so is the practice of virtuous consumption. So we deal with the very many toxic dimensions of modern life not through any concerted action, but simply by buying “organic” or “chemical-free” products (and then, by not putting “artificial chemicals” in our children in the form of vaccines. The logic here is straightforwardly akin to the predominant corporate attitudes of our day: The anti-vaxxers are trying to privatize profit (their pure and uncontaminated child) and socialize the risk (the outbreak of an epidemic is someone else’s problem). Hence that doctor’s comment that he doesn’t care if his refusal to “put chemicals in his children” leads to the death of other children. So I want to leave aside, for a moment, the idiocy and anti-scientific dimension of the anti-vaxxer position; what’s also interesting (to me) is its refusal to entertain any notion of community, of the realization that things like immunity or a “chemical free environment” must be understood as a shared space that can only be the product of a social and collective activity.

Thatcher was a prophet, and not in a good way.

And second, from stepped pyramids:

To my eternal shame, my dad fell for that routine when fluoride was on the ballot here in Portland. In fact, my whole damn family other than me was opposed. These are otherwise fairly rational, intelligent left-liberals who would identify themselves as wanting policy to be driven by good science.

To be fair, none of them explicitly endorsed the “no CHEMICALS in my WATER” campaign. The arguments tended along the lines of “instead of spending all this money to make [murky, underdescribed industrial interests] profits, why don’t we spend it on universal dental care for children?” The fact that it was not an either-or choice, or that you can’t pay for universal dental care with the budget of a fluoridation program, did not sway any opinions.

There’s got to be a term for the phenomenon where people think they’re being perceptive and intelligent by asking “cui bono?” but are actually being foolish.

There’s actually very important good points here. The “presenting an irrelevant alternative” routine has been used to argue against progressive change for time out of mind. Although at least it wasn’t successful at the time, the attacks on the ACA from both left and center are a classic example of the fallacy — why pass the ACA instead of government-provided Cadillac health care plans for all/Democratic control of Congress in 2011 and 3% unemployment instead? The objection is not always irrelevant — sometimes there are real tradeoffs or questions of priorities. But the objection is pernicious when there’s no actual chance that if policy A is rejected allegedly superior policy B will be implemented, which is much more common.

The “cui bono” point is also a good one. Again, it’s not that it’s never a good question — there’s a lot of venality and self-dealing in politics, and it’s often important to understand it.  But it’s also true that people tend to place way too much emphasis on motives in politics. This frequently drove me crazy during the Iraq War. The most obvious example is the time Michael Moore wasted in Fahrenheit 9/11 with the silly crap about the pipeline. But that’s just an illustration; in general, Iraq War opponents tended to waste far too much time talking about Halliburton or Iraqi oil reserves. Obviously, there was a lot of cynicism and some self-interest among the proponents of the Iraq War. But, ultimately, it’s beside the point. The Iraq War was a horrible, horrible idea whether its proponents wanted to make money or sincerely believed that Iraq would be a conservertarian paradise if Saddam was deposed and/or that Saddam’s balsa wood drones of terror would unleash atomic doom on Salt Lake City if we didn’t invade. The Koch brothers don’t stand to realize any material gains when their groups stop states from expanding Medicaid, but the poor people who consequently die because of it will be just as dead as if every dime the of the rejected federal money went right into David Koch’s pockets.  (And, on the other side, even the Emancipation Proclamation and Civil Rights Act involved cold political calculation as well as high principle. Observing that a public official is not pure of motive is very rarely of any actual relevance to the merits.)

And at least Moore reached the right conclusion about the war. Sometimes, a misplaced cui bono (a cui boner?) causes you to make really stupid political judgments on the merits, as is the case here.

Owner of .200 Team Attacks Fan

[ 11 ] February 9, 2015 |

The “respectfully” is my favorite part.

Let Trooferism Work For You!

[ 32 ] February 7, 2015 |

It’s too bad that Chipper recanted so quickly. He could have gotten a gig writing legal briefs for CATO…

How the Sausage Gets Made

[ 106 ] February 7, 2015 |

LGM has received exclusive tapes of a recent dialogue among two of the Maoists who have long edited the Styles and Real Estate sections of the New York Times. An excerpt is below:

Ms. Cohen’s piece is excellent. It starts off with the heart-rending tale of a young couple complaining about having to leave “the city” to live in a densely populated urban area with many fine restaurants, bars, shops, and live music venues a 10-minute subway ride from Union Square. It then discusses the couple strategizing about how to purchase a $1.5 million apartment, something anyone could identify with.”

“Excellent, comrade. This will surely hasten the revolution. But wait a minute — maybe they earned their money as oncologists or something?”

“He’s a ‘business consultant for consumer goods’ and she’s a ‘user experience designer.'”

“A little on-the-nose, perhaps? Couldn’t we give them something that at least sounds like a real job?”

“Nah, it’s New York in 2015. I think it works, comrade.”

“Well, at least we could use some visual support for the piece. Could the wealthy hipster look a little more smug in the photo?”

“We’ll use photoshop if we have to. Does he have a wine decanter?”

“Of course. It will be perfect.”

“Fine. Now, let’s get to work on that piece how marginal tax rates should be cut so that middle-class people aren’t priced out of $160,000 wine cellars.

Cartoon Villains Deny Health Care to Large Numbers of Poor People

[ 44 ] February 6, 2015 |


Tennessee, despite being given concessions by the Obama administration that won the governor’s support, says no:

In December, Tennessee Gov. Bill Haslam, a Republican, got the deal he wanted from the Obama administration: Tennessee would accept more than $1 billion in federal funding to expand Medicaid, as allowed for in the Affordable Care Act, but Obama aides would allow Haslam to essentially write staunchly conservative ideas into the program’s rules for the state. He dubbed the reformed Medicaid program “Insure Tennessee.”

But the state’s chapter of Americans for Prosperity, the national conservative group whose foundation is chaired by controversial billionaire David Koch, argued Haslam was just trying to trick conservatives into implementing Obamacare in their state by giving it a new name. AFP campaigned aggressively Haslam’s plans for the next six weeks, even running radio ads blasting GOP state legislators who said they might vote for it.

On Wednesday, Haslam’s bill died in a committee of the Tennessee state senate. The vote was one of the clearest illustrations of the increasing power of AFP and other conservative groups funded in part by the Koch brothers.

The same thing happened further west:

Wyoming has become yet another state where a Republican governor’s effort to expand Medicaid has been defeated by his own Legislature.

On Friday, the Wyoming Senate shot down Gov. Matt Mead’s expansion plan, and a House committee then pulled its bill. The double whammy effectively killed the state’s chances of enacting the Obamacare option this year.

But I’m sure Republican lawmakers would react immediately to fix things if the Supreme Court finds that the Moops invaded Spain, because no Republican legislator could sit by as people went without access to medical care.

Opponents of ACA Trooferism Have Two Elements on Their Side: Law and History

[ 31 ] February 6, 2015 |

Tim Jost has an immensely valuable round-up of the briefs filed in favor of the government’s position in King v. Burwell. Let me highlight the three briefs that will be most illuminating to interested observers:

The thirty briefs were filed by an extraordinary assemblage of states and state legislators, members of Congress, leading legal scholars, academics from a variety of other disciplines offering a wide range of perspectives, insurers, providers, and patients and their advocates.  By contrast the twenty-one amicus briefs filed last month by the challengers are far more limited in scope.  The challengers submitted briefs signed by a few Republican Congressmen, seven states, and a handful of conservative and libertarian legal scholars.  The rest of their amici were right-wing advocacy groups.

Among the most important briefs is the brief filed by the Virginia attorney general and the attorneys general of twenty-one other states and the District of Columbia.  Ten of the states have federal exchanges and eight have Republican governors.  By contrast, the six states that filed amicus briefs for the challengers are all dominated by Republicans. Tellingly, the biggest Republican federal exchange states, such as Florida, Texas, Wisconsin, and Ohio did not join.


Several briefs were filed by prominent legal scholars.  A brief filed by William Eskridge, John Ferejohn, Charles Fried, Lisa Marshall Manheim and David Strauss explains why a textualist analysis of the law would compel the Court to rule for the government.  Proper textualism does not single out a single phrase of a law and then try to determine whether a proposed reading of that phrase would render the rest of the law absurd, the approach taken by Judge Griffith in the now vacated Halbig D.C.Circuit decision.  Rather textualism requires the Court to consider the meaning of particular provisions in light of the entire text of the law.

A brief filed by Thomas Merrill, Gillian Metzger, Abbe Gluck, and Nicholas Bagley elaborates the Supreme Court’s jurisprudence mandating that doctrines designed to preserve the nation’s federalist structure should significantly influence interpretation of federal statutes to avoid interpretations that would damage that structure where Congress’ intent is not clear, or interpretations that would, without clear notice, link harmful consequences to choices that statutes offer to states.  Noting that the petitioners’ interpretation would, for states electing federal operation of their exchanges, put individual insurance markets in a worse position than prior to the ACA, the brief demonstrates that the court’s federalism doctrines and precedents compel rejection of petitioners’ interpretation.  In addition, the brief shows that a prohibition on premium tax credits for federal exchanges is inconsistent with the kind of cooperative federalism program represented by the ACA marketplaces.  The brief refutes claims made by the challengers and their amici that a program that would operate the way the challengers characterize the ACA program would resemble other existing federal programs.

The theory of statutory interpretation being advanced by the plaintiffs is foolish and unworkable on its face. Their interpretation of the statute’s history and objectives is transparently wrong. And even if one were to accept their theory arguendo, the denial of tax credits would be unconstitutional. But what else would you expect radical Trotskyites like Reagan’s Solicitor General or Reagan’s Deputy Solicitor General to say?

None of of which is to say that the overwhelming superiority of the government’s arguments will matter. But it’s at least a variable that could affect judicial decision-making. If Roberts thought that an argument that making people pay a tax if they don’t carry insurance isn’t an exercise of the tax power wouldn’t write…it’s not outside the realm of possibility that it will happen again. Certainly, these arguments are substantially worse than the ones advanced by opponents of the ACA in Sebelius.

As a coda, enjoy this from Michael Cannon. It is indeed some pretty epic mansplaining, although in fairness I’m sure he would have done the same thing to a male reporter.

…Agreed with Warren Terra that Linda Greenhouse is must-reading on the subject.

Why Republicans Are Putting on a Health Care Kabuki

[ 26 ] February 6, 2015 |


I am left with a lot of questions: If Senator Richard Burr does not see a path to passing an ObamaCare replacement this year, why make a splash with a proposal that is not a bill rather than simply scheduling hearings? If Richard Burr thinks that the Burr-Coburn-Hatch proposal from last year was unfairly rejected by his Republican colleagues and that they should take another look at it, why put Burr-Hatch-Upton forward as if it were brand-new–as if it were not a reboot of last year’s Burr-Coburn-Hatch? And why does Peter Sullivan of The Hill not tell his readers that BHU is a reboot of BCH–if, that is, he has the slightest desire at all to be in the trusted-information-intermediary business? And even if he doesn’t want to be in the trusted-information-intermediary business, why does it please Burr to have The Hill’s readers thinking that this is something that Burr has come up with in the last two months, rather than a line of approach that he has been thinking bout, tweaking, and trying to get right for years?

As far as legislative-process and coalition-assembly is concerned, this looks like Kabuki. More, it looks like Dingbat Kabuki–the motives of the performers seem, to me, to be incomprehensible. And I have worked in the U.S. Treasury. I have not just seen the sausage being made but actually done some sausage-making myself.

I actually think that the motives of Burr et al. are eminently comprehensible. Helpfully, Randy Barnett explained it for us:

With or without bipartisanship, however, Republicans need to have a well-vetted replacement in the pipeline. To make a favorable ruling in King more likely, the legislative wheels must be visibly in motion by the time of oral arguments in March.

If it’s entirely clear that siding with the ACA troofers will throw most of the country’s health care insurance markets into chaos will Congress does nothing, it might give Roberts and Kennedy pause. It might not — I can very much see Roberts writing a hilariously disingenuous conclusion asserting that his troofer holding will modestly allow Congress to clarify its intent — but as Barnett’s concerns indicate, it might. Pretending that the GOP has an actual alternative acts as reassurance. The congressional Republicans putting on a kabuki make it easier for Republicans like Kennedy and Roberts to lie to themselves a la Michael Strain. Admittedly, there is a risk involved — a really spectacular flameout could dispel the illusion — but I don’t think things will get far enough along for that. Republican legislators showing up at press conferences with after having visited Kinko’s with copies of earlier terrible proposals may be good enough for the swing votes on the court to convince themselves that they’re not really about to kill a lot of people when they declare that the Moops invaded Spain.

Incidentally, as Ed Kilgore pointed out at the time Barnett’s proposals can only be called black comedy gold. It’s no surprise that the his proposals would make things far worse than the status quo ante — not merely ending the ACA’s regulations but effectively gutting most state ones with the “sell insurance across state lines” anti-reform, it would make health insurance sold on exchanges completely worthless junk most people who needed it couldn’t afford anyway. But even for an ACA troofer, declaring that “such a bill is very likely to be bipartisan” is shameless. It’s the lying to yourself/lying to others question again — in Barnett’s case, I’m pretty confident that it’s the latter.

Today’s Attack on Academic Freedom

[ 344 ] February 6, 2015 |

Marquette has clearly far overstepped its bounds here:

A controversial professor on Wednesday revealed that Marquette University is trying to revoke his tenure and fire him for statements he made about a graduate instructor, with her name, on his blog.

The university says his behavior was unprofessional and that he misled the public about what happened in a dispute between the graduate instructor and an undergraduate student. The professor, John McAdams, says he is being punished for his free speech. He also maintains that Marquette shouldn’t be attacking him, given that he is defending an undergraduate’s views against gay marriage that are consistent with Roman Catholic teachings. (Marquette is a Jesuit university.)

The dispute over McAdams attracted national attention even before Marquette moved to fire him, with some academics backing the graduate student and others McAdams.

I, myself, would not use this forum to question the teaching of a colleague. And if he did so without getting his facts straight, as the university alleges, then his behavior was inappropriate. If you want to say that it merits, I dunno, a meeting with a dean or something, I won’t argue with you.

But revocation of tenure and firing? Not even close. The threats that Abbate received were appalling, but McAdams cannot be held responsible for the actions of third parties. John Wilson’s argument here is unanswerable. The clause that Marquette is using to justify the firing — “should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others” — would render academic freedom a nullity. It’s essentially a “civility” firing, and given the language it’s even worse than that. Any professor who ever made a mistake — even an honest mistake — in a public forum would be subject to revocation of tenure. Any remotely controversial statement could be a violation of the requirement to “exercise appropriate restraint.” Revoking McAdams’s tenure on this basis is unjustifiable in itself and would set an extremely dangerous precedent.

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