A crucial force behind the greatest television comedy there ever was died at age 59. R.I.P.
Author Page for Scott Lemieux
The WSJ editorial page has uncovered some VERY DISTURBING FACTS about the legal world:
During a week they hear oral arguments, the Justices typically hold a private conference on Friday morning in which they declare where they are leaning on the cases. Just in time for last week’s Friday conference, liberal scholar Abbe Gluck tried one more state’s rights gambit to pull Justice Kennedy to the side of the four liberals who clearly want to uphold the subsidies delivered through federal exchanges.
Ms. Gluck teaches at Yale, but she clerked for Justice Ruth Bader Ginsburg and knows well Justices Sonia Sotomayor and Elena Kagan . It’s clear from Wednesday’s oral argument that she heavily influenced all three, and it’s possible the Justices or their clerks urged her to give it one more try.
Think of all the terrifying implications:
- People who are not political conservatives might get nominated to the Supreme Court.
- Even more disturbing, these days some of these people might be women.
- These women may conspire to hire so-called “clerks” who might
assist in writing and researching opinionsbe trained to spread liberal propaganda.
- Yale Law School might hire people who are not political conservatives.
- Even more disturbing, these days some of these people might be women.
- Some of these women might have clerked for other women.
- These Yale scholars might retroactively be able to form a coven with other women on the Supreme Court and teach them dangerous new things.
- And as a result of all this sorcery, Justices Ginsburg, Sotomayor and Kagan might reach the same conclusions about the merits of King v. Burwell that every single other person who is not a fanatical opponent of the ACA has reached.
Truly disturbing! Hopefully, we can have some male justices who worked in the Reagan administration to render a more neutral, independent opinion.
And now, the punchline:
Nice try, but this one is too clever by half. The “clear notice” standard is intended to protect states from being unduly pressured by the feds, as they were under ObamaCare’s Medicaid gun-to-the-head. But in the matter of subsidies, there was no lack of notice. The states knew what their options were from the day the law was passed…
HAHAHAHAHAHAHAHA. It sure is remarkable that none of these states were able to discern this “clear notice” until Republicans needed a Hail Mary after their ad hoc constitutional challenge failed, and indeed with one possible exception said precisely the opposite contemporaneously. My guess is that Abbe Gluck was able to retroactively erase a whole bunch of statements from Republican governors from the historical record.
Joe Klein is impressed by Jeb Bush!
But Bush offered something far more important than specificity. He offered a sense of his political style and temperament, which in itself presents a grownup and civil alternative to the Giuliani-style pestilence that has plagued the Republic for the past 25 years.
Hmm, if only Joe Klein has been around to cover another reactionary son of George H.W. Bush so we could see how valuable evaluating politicians by their tone is. Oh wait, he has:
It may have seemed like a stretch to infer some deeper conclusion about the GOP’s ideological direction from the looks of some panelists at a nominating convention. And, if one was to draw such an inference, it’s puzzling to interpret a resemblance to snooty Depression-era bankers (who, after all, had notoriously reactionary political views) as evidence of moderation, rather than the opposite.
Yet nothing could shake Klein from his theory. Not even Bush’s decision to bring on non-compassionate conservative Dick Cheney. “Anybody who tries to take a really strong position on [Cheney] from the left or from the right seems kind of silly,” Klein said of Bush’s vice presidential selection on a “Meet the Press” panel. “We’re all Clintonians now. Everybody is a Third Way Democrat or Republican, you know, and I think that that’s one of the central problems that politicians in both parties face right now, is that there are no huge differences, or at least very few.”
And then, after the election, Klein predicted that the result would be “a quiet, patient, and persistent bipartisanship,” with no big tax cuts or Supreme Court ideologues. Klein suggested helpfully, “Bush could easily retain Lawrence Summers at Treasury and Richard Holbrooke at the United Nations.” And this scenario could have easily come to pass, provided every other Cabinet-eligible American citizen had been wiped out in a nuclear holocaust.
So, let’s see. Klein’s preferred way of evaluating candidates — assessing the “civility” of their rhetoric as opposed to their policy positions, actual records in office, political coalitions, etc. — makes no sense on its face. When applied, it led to predictions that George W. Bush would not sign any big tax cut bills or nominate any justices like Sam Alito. (For that matter, the Alito nominations were another case in which the theater critic pundits absolutely humiliated themselves. “He likes baseball and doesn’t write like Scalia, so how can he be a reactionary?”) The answer, of course, is to continue to evaluate candidates in the same way, because the latest Bush is bound to settle down and start treating him right. Hard to argue with that logic!
Not only was the contemporary Republican leadership MIA from Selma yesterday, the currently serving Republicans who did show up couldn’t even pretend to care about actual voting rights enforcement.
There’s an important point to be synthesized from these recent posts from Erik and Paul. One of the most effective rhetorical strategies of the disruptors is to make use of the (genuine) crisis of student debt. If a lot of those pesky high-priced faculty members can be cut out of the process by mass online-only degrees and other credentials, then surely students will save a lot of money. The obvious problem with the argument is that faculty compensation has already been steadily declining, as tenure-track faculty salaries have remained stagnant while far more teaching has been outsourced to adjuncts being paid starvation wages. And yet, not only have these savings not been captured by students, tuition has gone up massively during the same time period. If Carey and the other disruptors want to argue that the next round of cuts to faculty compensation will result in savings being passed on to students as opposed to profits passed on to executives and Associate Vice Dean Provosts of Proactive Paradigms of Strategic Disruption, the burden of proof is squarely on them.
Securing the franchise for African-Americans, nearly 100 years after the passage of the 15th Amendment, was a major accomplishment, driven by the courage of the disenfranchised. Which makes the extent to which the rights remain under attack disgraceful.
I knew this would happen when the NCAA removed bans on compensating players:
As you might expect, many of the course assignments that the support staff emailed to players’ professors had not been written by those athletes. The report cites an internal investigation that checked the metadata of the documents handed in, and found that “the ‘Author’ and ‘Last edited by author’ field was attributed to someone other than the student-athlete.”
This stuff presumably goes on at most programs, and it’s tough to get too worked up—neither these athletes nor their programs believed they were in school for any reason other than basketball—but there are two things worth noting:
I’m impressed at how streamlined Syracuse made this process. Rather than requiring the players hand his assignment to a tutor, getting it back completed, and turning it into his professor, Orange players could stay out of things altogether and let the tutors just pretend to be them at every step.
I’m depressed that a university was devoting time, money, and resources to tricking itself.
Hopefully, we can go back to the good old days in which players were denied compensation and hence student-athletes were students first and athletes a very distant second.
The satirical novel we’re all living in continues to be rather heavy-handed:
The judge in Ferguson, Missouri, who is accused of fixing traffic tickets for himself and colleagues while inflicting a punishing regime of fines and fees on the city’s residents, also owes more than $170,000 in unpaid taxes.
Ronald J Brockmeyer, whose court allegedly jailed impoverished defendants unable to pay fines of a few hundred dollars, has a string of outstanding debts to the US government dating back to 2007, according to tax filings obtained by the Guardian from authorities in Missouri.
Brockmeyer, 70, was this week singled out by Department of Justice investigators as being a driving force behind Ferguson’s strategy of using its municipal court to aggressively generate revenues. The policy has been blamed for a breakdown in relations between the city’s overwhelmingly white authorities and residents, two-thirds of whom are African American.
Investigators found Brockmeyer had boasted of creating a range of new court fees, “many of which are widely considered abusive and may be unlawful”. A city councilman opposing the judge’s reappointment was warned “switching judges would/could lead to loss of revenue”.
The audio from oral arguments in King v. Burwell that should have been streamed in real time are now up. As Irin Carmon said on Twitter, among other things it’s worth hearing to hear Carvin repeatedly address Justice Sotoma – YEER.
Ezra Klein’s piece on why Carvin’s Moops-invaded-Spain theory is such lunacy is very good. At one point, I think he actually understates the case:
The plaintiffs’ lawyer, Michael Carvin, tries to deny this fact. “There’s not a scintilla of legislative history suggesting that without subsidies, there will be a death spiral,” he told the Court.
But Michael Cannon, one of the architects of the King v. Burwell case, knows better. The reason he was so interested in the lawsuit, he told Vox, was that removing the subsidies would kick out “one of the three legs of Obamacare’s three-legged stool.”
The “three-legged stool” refers to the idea that for an exchange to work, it needs three things: regulations that force insurers to sell to everyone, a mandate that forces even young and healthy people to buy insurance, and subsidies to make that insurance affordable. No subsidies, no affordability. No affordability, no critical mass of young and healthy people. No critical mass of young and healthy people, no way to avoid a death spiral.
That’s what happens when you remove a leg of a three-legged stool: the stool falls over.
And it’s even worse than that — if you eliminate the subsidies, you essentially eliminate the mandate. (There might be a few uninsured people who can get health insurance plans that cost less than 8% of household outcome, but a “mandate” that applies only to a vanishingly small number of people is no better than having no mandate at all. A mandate that covers a tiny number of people, to put it mildly, does not solve the free rider problem.) And even Carvin concedes that without the mandates you’d get a death spiral.
And yet the case is essentially a coin flip at the Supreme Court, which should tell you all you need to know about the nation’s highest tribunal.
He wouldn’t dream of allowing anyone to lose their health insurance, Scout’s Honor!
Negotiating the various perils of the “card says Moops!” and “Moops invaded Spain” arguments, Ross Douthat ends starts off in the ¯\_(ツ)_/¯ camp. On the way, he throws out a major howler:
1) Having gone back and forth over the evidence presented, I’m not convinced by the plaintiffs’ argument that the people responsible for drafting for Obamacare consciously intended to limit subsidies in order to induce states to set up their own exchanges. The famous comments suggesting that they did, from Jonathan Gruber and others, make me suspect that this possibility floated somewhere in the Obamacare hive mind, and the much-discussed path that different versions of the bill took through the Senate allows room for the possibility that somebody involved with the process had that idea in mind, and that this person’s sense of how the law ought to work played some role in why the language that we have ended up in there.
The problem with the “Jonathan Gruber and others” assertion is that if you click the link, you will find that there are in fact no “others.” Not only that, everybody quoted explicitly rejects the fantasy version of the ACA reverse-engineered by Adler and Cannon. So President, Speaker of the House, Senate Majority Leader, Secretary of State, Prime Minster and embattled mayor of Chicago Jonathan Gruber remains only person in any way associated with the Affordable Care Act who has ever suggested that subsidies would not be universally available, and not only has Gruber repudiated this interpretation of his comments his calculations always assumed that the subsidies would be available on both state and federal exchanges. Given the mountain of evidence to the contrary, citing Gruber (2012) is like throwing a bucket of sand in the Pacific Ocean and calling it a beach, which is presumably why Douthat can’t quite go there even if he can’t quite repudiate the theory either.
He then moves onto the “card says Moops!” theory with problematic results:
At the same time, a serious blunder in legislative drafting is just not the same thing as a Moors/Moops “typo”. It was a legislative accident, to take a famous example, when in the process of reforming its prostitution laws Rhode Island created a loophole legalizing prostitution so long as it happened indoors. But that didn’t license the state police to just enforce the law as if the accident hadn’t happened and the law still banned houses of ill repute; instead, the legislature had to pass a revised version of the law and the governor had to sign it to make prostitution illegal once again.
There are two problems, each of them fatal, that render this analogy null:
- It’s well-settled, and for good reason, that ambiguities in criminal laws be resolved against the state. You don’t read them the same way you read regulatory statutes.
- Unless the Rhode Island provision was embedded in a 900-page legislative scheme that contained many other provisions that don’t make any sense if you read an isolated subclause literally and with no attention to its context, it’s neither here nor there as far as this case is concerned.
And after going round and round reading analyses of King v. Burwell, I still can’t see a good reason why, if this were a lower-stakes piece of legislation and a less polarizing issue, the same principle would not apply. On a plain-meaning-of-words reading of the law, it only seems to authorize federal subsidies for state exchanges, and so the constitutionally-appropriate way to make those subsidies available on the federal exchange is for Congress to correct the accident and authorize that spending in the actual legislative text. Here I agree with Sean Trende, who writes that “if this were some obscure statute — say, the Uranium Mill Tailings Radiation Control Act … the plaintiffs could be reasonably confident of victory.”
The counterfactual can’t be proven either way, but as a commenter here observed yesterday I think this stands reality on its head. I think that if in a politically non-salient case the administration that signed a recently passed bill issued a regulation to resolve what appears to be a minor technical anomaly in the statute, without the objection of a single member of Congress who voted for the bill, there probably wouldn’t be any legal challenge to the regulation at all, and if there was it wouldn’t have gotten past the District Court level. (Indeed, I would love to hear of another example of another statutory interpretation case involving a recently passed law in which there was literally no support for the plaintiff’s reading from any member of Congress who voted for the statute either contemporaneously or after the fact.)
Again, Adler and Cannon didn’t write their fairy tale, and even try to manufacture evidence for it, for no reason. The “card says Moops!” argument is a loser — if there was a “glitch” that created a self-defeating result, the appropriate course of action is to allow the relevant executive agency to resolve the anomaly.
I will have a longer piece about the next subject next week, but quickly:
The textual problem with the law exists in the first place because the Obama White House didn’t want to scale back its policy ambitions after Scott Brown’s shocking victory, and pushed a creative end-around that avoided the necessity of more congressional votes but also precluded some necessary edits.
Well, that’s one way of looking at it. The better way of looking at it is that “the textual problem with the law exists because the Republican minority in the Senate refused to allow another vote on legislation that had the support of a substantial majority.” Allowing the obstructionists to benefit from this by having their allies in the courts destroy a regulatory scheme created by Congress makes the “constitutional decadence” problem worse, not better.
And, finally, we have the inevitable imagining of a Republican Party that doesn’t exist:
In this case, unless he or Kennedy comes up with a clever constitutional move, the court would be deferring to the executive branch and the administrative state while essentially enabling congressional abdication and dysfunction. From my vantage point, that seems like a much worse outcome for our political system than the previous rescue of Obamacare. And that in turn is why, without being particularly happy about it, and while expecting a more politically-expedient ruling, I find myself hoping that the court rules for the plaintiffs — and that Congressional Republicans are then forced, through pressure from the voting public, to do what our system asks of them and actually legislate when legislation is required.
To re-state what should be obvious, if the Supreme Court willfully misreads the law and wrecks the exchanges it won’t force Republicans in Congress to do a damned thing. Their plan for dealing with the uninsured has always been a briefcase full of Styrofoam pellets — why would that change now? It seems worth noting that Ted Cruz’s plan — the most detailed of the Potemkin Republican plans being discussed to reassure the Court — would “solve” the problem of subsidies being denied on the federally established exchanges by ending them for everyone. Oh, and this would be combined with by deregulating the state insurance markets, so in the unlikely event that you could afford insurance it would probably be worthless. Congressional Republicans are not politically suicidal enough to actually enact this plan, but Cruz and his allies will veto anything that isn’t like this plan, and hence the Republican Congress won’t do anything. The idea that reversing King v. Burwell would be a solution to legislative dysfunction is deeply strange.
Remember when Republicans were totally going to be the Party of Ideas (TM) because a small group of conservative intellectuals with little discernible influence on Republican legislators thought that George W. Bush-style supply side politics should be supplemented by some feints towards the middle class?
Well, funny thing about that. Reformocon darlings Mike Lee and Marco Rubio have taken their massive regressive tax cut and made it…much, more more regressive, eliminating taxes on investment and inherited income entirely. So are reformocons upset about the betrayal? Is the Pope a Seventh Day Adventist?
Perhaps the fullest measure of the supply-siders’ triumph can be seen in the acquiescence of many of the reformicons themselves. Ramesh Ponnuru and Yuval Levin, both reform conservatives featured prominently in the Times story, responded to the new Lee-Rubio plan with fawning praise. James Pethokoukis, a reformist conservative, calls the plan “a big step toward persuading middle-income America that Republicans care about more than just the richest 1 percent.” (If this is a big step toward persuading America that Republicans care about more than the rich, what would the next step be? Legalizing servant-flogging?)
Perhaps the reform conservatives have capitulated completely in the name of party unity. Or maybe they were misunderstood from the beginning and never proposed to deviate in any substantive way from the traditional platform of massively regressive, debt-financed tax-cutting. Either way, the movement has, for now, accomplished less than nothing.
But, gee, I can’t wait to hear their alternative health care proposal!