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Nobody Actually Cares About Federalism, An Infinite Series

[ 38 ] February 27, 2015 |

Responding to Abbe Gluck’s argument that the troofer reading of the ACA violates the clear notice requirement that is now well-settled constitutional law, Ed Kilgore observes:

This argument may or may not have an influence on, or find reflection in, SCOTUS’ decision. But don’t expect the conservatives praying for the plaintiffs to win to read it and say, “Oh, I get it! Never mind.”

Truth is most conservatives value “state’s rights” or “federalism” only when it does not conflict with their more important ideological values, such as capitalism or their idea of Divine Law. This is why they mostly support federal constitutional amendments to override state prerogatives on cultural issues like abortion and same-sex marriage, and when in a position to do so, support federal preemption of state laws and regulations that annoy or inconvenience corporations. Indeed, one example is almost invariably included in those Obamacare “replacement” proposals Republicans say they’d pursue if King goes their way: “interstate health insurance sales,” which is a nice way of saying a preemption of state health insurance regulations so that insurers can race to the bottom-feeding state that lets them do whatever the hell they want.

All true.

The significance of the federalism argument is that it might appeal to Roberts if he’s only weakly committed to gutting the ACA. The clear notice argument would allow Roberts a passive-aggressive escape hatch straight out of the John Marshall playbook: willfully misread a statute, criticize your political opponents, advance long-term institutional goals, but concede to your opponents on the immediate substantive issue. If Roberts is strongly committed to wrecking the exchanges it won’t matter, but if he doesn’t feel strongly the argument might influence him.

You Can Have Their Answer Now, If You Like

[ 45 ] February 27, 2015 |

If 5 Republican judges take away health care from upwards of 10 million people, what will the federal and state Republicans who could fix the problem do about it? Why, nothing, of course.

It may be worth clarifying briefly about why my assessment is more pessimistic than Jon Chait’s (here and here.) I do agree with a couple of his points. Wrecking the exchanges probably will generate more political opposition than turning down the Medicaid expansion. I also agree that it’s not accurate to say that reversing King would destroy the ACA. The immediate result would be polarization, and if the Democrats can hang on to at least one of the federal veto points necessary to keep the ACA from being repealed, eventually many states would establish exchanges, and the next unified Democratic government would pass a federal fix immediately.

Put this way, it doesn’t sound that terrible, but:

  • Even assuming that every state outside the Deep South has an exchange with available tax credits (and the Medicaid expansion) by 2025 or so…that’s still an awful lot of completely unnecessary pain and suffering inflicted by the Supreme Court (and the decision on the Medicaid expansion was every bit as irrational and incoherent as a decision reversing King would be.)
  • If Republicans do assume full control of the government, the chaos created by wrecking the exchanges makes it more likely that they would be able to repeal or mortally wound the ACA.
  • I’m not nearly as convinced as Chait that Republicans will take the blame for the chaos.  A lot of voters are going to blame “Obama” for anything associated with “Obamacare.”   I hope Chait is right that this will play out like government shutdown scenarios, but I’m not sure it will.
  • And we should remember that after taking the political damage for a stupid shutdown, congressional Republicans…won big in 2014 anyway.  Elections aren’t referenda on single issues, and Republicans with safe seats at the federal and state level can both take the hit and have more to fear from Republican primary voters than the general electorate.   As I say in the piece, Sam Brownback should give any optimist pause — his agenda was enacted, it couldn’t possibly have worked out any worse, and he was re-elected anyway.

Exactly how bad the Court joining the Moops resistance army would be depends on various contingencies, but it would be bad.

“Don’t Look At Us. We Didn’t Do it.”

[ 123 ] February 26, 2015 |

You can accuse the co-ACA Troofer-in-Chief of many things, but having shame is not one of them:

“If they’re not looking at some kind of contingency plan, I think that’s irresponsible. It’s kind of like hostage-taking,” said Jonathan Adler, a law professor at Case Western Reserve University and one of the architects of the legal challenge.

I can’t even. The problem with the argument is that Adler and Cannon are both taking and shooting the metaphorical hostages, and they’re asking Obama to tell the public that everyone is fine while the hostage-takers look for a getaway car.

And what Adler is asking is for the Obama administration to lie to further his campaign to willfully misread the ACA to strip insurance from millions of people. There is no meaningful contingency plan the administration can put into action. They cannot force Republicans in Congress to pass anything (let alone anything that would make the problem better rather than worse.) They cannot make states establish exchanges. They cannot repeal basic economic facts. The fate of the newly uninsured will be mostly beyond their control, unless Adler thinks that the administration’s response should be “John Roberts has made his decision, now let him enforce it.”

If the troofers can eke out a bare Supreme Court majority for their argument, then the health insurance markets in a majority of states will thrown into chaos. This situation will not change in many of the states anytime soon, and the result will be plenty of unnecessary suffering and death. That’s not a threat; it’s a fact. Adler should own it, not join his political allies in pretending that there’s some magic fix Obama will pull out if his hat after it happens.

These Things I Believe

[ 30 ] February 26, 2015 |

Dutch beer available in North America is indeed the worst.

And while we’re dealing with arbitrary Deadspin lists, this is very solid. Craig might be the most irritating and least funny recurring character on a first-rate sitcom ever. I would put Chris Traeger at #30, and maybe move Anne Perkins and especially Dr. Saperstein up a notch, but otherwise it seems about right.

The War Against Rahm

[ 89 ] February 25, 2015 |

Excellent analysis from Weigel. One of the many interesting takeaways is Emmanuel’s failure on the city council races:

Emanuel’s weakness was felt all across the ballot. He’d created a super-PAC, Chicago Forward, to bail out 17 of his allies on the council and to beat progressive incumbents. Only seven of them won outright: Will Burns, Mike Zalweski, Danny Solis, Robert Maldonado, Margaret Laurino, Pat O’Connor, and Debra Silverstein. The rest were forced into runoffs, including Deb Mell, the sister-in-law of disgraced former Governor Rod Blagojevich. Meanwhile, Chicago Forward had lobbed mailers at two aldermen–Scott Waguespack and John Arena–who’d asked the SEC to investigate the legality of donations to Emanuel from the executives of companies managing the city’s pension funds. Arena narrowly missed a win and will head to a runoff; Waguespack won outright.

It was not all progressives wanted, but it was not what the super-PAC had wanted either. The progressive bloc was expected to expand to 12 of the council’s 50 seats.

“The good guys won Round One,” said Working Families Party national director Dan Cantor in a statement. “Forcing Mayor 1% into a run-off is a remarkable achievement. Along with the run-off, the progressive caucus on the Council is poised to make gains.”

Perlstein explains how Emmanuel was forced into a runoff:

Perhaps what turned some voters against Rahm at the last minute—or motivated them to go to the polls in the first place on a cold Chicago day that started out in the single digits—was an Election Day exposé that appeared in the British paper the Guardian by investigate reporter Spencer Ackerman. “The Disappeared” revealed the existence of Homan Square, a forlorn “black site” that the Chicago Police operate on the West Side.

There, Chicagoans learned—many for the first time—arrestees are locked up for days at a time without access to lawyers. One victim was 15 years old; he was released without being charged with anything. Another, a 44-year-old named John Hubbard, never left—he died in custody. One of the “NATO 3” defendants, later acquitted on most charges of alleged terror plans during a 2012 Chicago protest, was shackled to a bench there for 17 hours.

It “struck legal experts as a throwback to the worst excesses of Chicago police abuse, with a post-9/11 feel to it,” the Guardian reported. And for a candidate, Rahm Emanuel, who ran on a message he was turning the page on the old, malodorous “Chicago way,” the piece contributed to a narrative that proved devastating.

Indeed, the mayor faced a drumbeat of outstanding journalistic exposés all throughout the campaign. The Chicago Sun-Times reported on Deborah Quazzo, an Emanuel school board appointee who runs an investment fund for companies that privatize school functions. They discovered that five companies in which she had an ownership stake have more than tripled their business with the Chicago Public Schools since she joined the board, many of them for contracts drawn up in the suspicious amount of $24,999—one dollar below the amount that required central office approval. (Chicago is the only municipality in Illinois whose school board is appointed by a mayor. But activists succeeded—in an arduous accomplishment against the obstruction attempts of Emanuel backers on the city council—to get an advisory referendum on the ballot in a majority of the city’s wards calling for an elected representative school board. Approximately 90 percent of the voters who could vote for the measure did.)

The Chicago Tribune reported that of Emanuel’s top 106 contributors, 60 of them received favors from the city. Another in-depth investigation discovered that City Hall had lied repeatedly about a signature initiative of the Emanuel years, automated cameras that issue tickets for the running of red lights. The administration insisted the cameras led to a 47 percent decline in “T-bone” crashes, when the true number was 15 percent—and they also caused a corresponding 22 percent increase in rear-end collisions. That reinforced suspicions that the cameras weren’t installed for the safety of “the children,” as Emanuel sanctimoniously insists, but are a revenue grab, a regressive tax that falls disproportionately on the poor.

I have no idea if the anti-Rahm movement can finish the job — evidently, Garcia is a significant underdog — but I hope so. Moral victories are nice but victory victories are better.

Today In Statutory Interpretation

[ 38 ] February 25, 2015 |

I’m agnostic about the outcome in today’s other case, Yates v. U.S.  But two passages from Kagan’s dissent are worth quoting.  This is the one that will get the attention:

While the plurality starts its analysis with §1519’s heading, see ante, at 10 (“We note first §1519’s caption”), I would begin with §1519’s text. When Congress has not supplied a definition, we generally give a statutory term its ordinary meaning. As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that possesses physical form.” A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in §1519, as noone here disputes, covers fish (including too-small red grouper).

But with respect to a certain other case the Supreme Court will be hearing next month, this paragraph is more relevant:

That is not necessarily the end of the matter; I agree with the plurality (really, who does not?) that context matters in interpreting statutes. We do not “construe the meaning of statutory terms in a vacuum.” Tyler v. Cain, 533 U. S. 656, 662 (2001) . Rather, we interpret particular words “in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989) . And sometimes that means, as the plurality says, that the dictionary definition of a disputed term cannot control. See, e.g., Bloate v. United States, 559 U. S. 196, n. 9 (2010). But this is not such an occasion, for here the text and its context point the same way. Stepping back from the words “tangible object” provides only further evidence that Congress said what it meant and meant what it said.

This a concise explanation for why the ACA’s opponents needed to invent a fantasy alternate history of the statute. Nobody really disputes that statutory language has to be read in the context of the structure and purpose of the statute as a whole, and doing so yields a clear answer.  Even if the isolated phrase “Exchange established by the State” represents a “glitch” — as the troofers themselves thought before their constitutional challenge failed and they needed another straw to grasp at — then the case is over; the I.R.S was doing exactly what it’s supposed to do, interpreting the statute as not being at war with itself. Hence “the Moops invaded Spain,” only that reading makes no sense on its face and is inconsistent with the understanding of all relevant actors. (And while we are of course bound by what Congress enacted, not by what by what members of Congress subjectively intended, the actual views of the people who drafted and voted for the legislation are certainly relevant evidence when determining the purpose of the statutory scheme.)

…I should be clear that I’m just quoting Kagan to illustrate a point.  In terms of whether this reveals anything about how King v. Burwell will actually be decided, I’m definitely on Team Bagenstos:

I should note, however, that Brianne Gorod sees reason for optimism.

Today Among Our Benevolent Local Overlords

[ 30 ] February 25, 2015 |

From the statement of facts in Kennedy’s opinion for the Court today in North Carolina Board of Dental Examiners v. Federal Trade Commission:

In the 1990’s, dentists in North Carolina started whiten­ing teeth. Many of those who did so, including 8 of the Board’s 10 members during the period at issue in this case, earned substantial fees for that service. By 2003, nondentists arrived on the scene. They charged lower prices for their services than the dentists did. Dentists soon began to complain to the Board about their new competitors. Few complaints warned of possible harm to consumers. Most expressed a principal concern with the low prices charged by nondentists.

Responding to these filings, the Board opened an inves­tigation into nondentist teeth whitening. A dentist mem­ber was placed in charge of the inquiry. Neither the Board’s hygienist member nor its consumermember par­ticipated in this undertaking. The Board’s chief opera­tions officer remarked that the Board was “going forth to do battle” with nondentists. The Board’s concern did not result in a formal rule or regulation reviewable by the independent Rules Review Commission, even though the Act does not, by its terms, specify that teeth whitening is “the practice of dentistry.” Starting in 2006, the Board issued at least 47 cease-and­-desist letters on its official letterhead to nondentist teeth whitening service providers and product manufacturers.

[…]

These actions had the intended result. Nondentists ceased offering teeth whitening services in North Carolina.

Some local regulations of business are, of course, valuable protections of the public interest. Some are straightforward protection rackets. The one at issue here is pretty clearly one of the latter, and one appropriate remedy for this kind of regulation is the application federal antitrust law.

Today’s case held that the Board of Dental Examiners was not exempt from the Sherman Act. While state actors are exempt from federal antitrust law, nominal state entities in which the state delegates to business interests with minimal supervision don’t qualify for the state action exemption. The four Democratic nominees and Chief Justice Roberts sided with the majority. Alito (for Scalia and Thomas) sided with the sovereign dignitude of the states over the interests of consumers.

Keystone

[ 75 ] February 25, 2015 |

Veto’d.

Why Court-Packing Wouldn’t Work

[ 68 ] February 24, 2015 |

Ian Millhiser has an interesting piece for Slate, putting the potential for a Supreme Court ruling gutting the ACA in the context of the constitutional struggle that led to FDR’s (legal but not normative) proposal to pack the Court.

Despite the title, it should be emphasized that Ian concludes that the failure of FDR’s proposal “was for the best.” Leaving aside the normative question of judicial independence — which, when dealing with an high appellate court that issues constitutional rulings but is not limited to constitutional rulings, is a complicated one — I agree, and I think it’s worth addressing another reason. Court-packing would not have been an effective long-term response to the Four Horsemen + the sporadic winger version of Owen Roberts. This is true for the same reason that the idea briefly beloved of Romney- and/or Paul-curious lefties that a Republican president is no big deal because a 40+ Democrats in Congress could just serially reject all of a Republican president’s judicial and executive branch nominees was really dumb. Once court-packing was established as an acceptable norm, Republicans certainly wouldn’t abjure using it. So perhaps Congress would have added some Supreme Court seats in 2009 and gotten Obama nominees confirmed, only it probably wouldn’t have helped much because they would have been dealing with a Court where the justice at the 25% quartile of conservatism had to turn to his metaphorical left to see Sam Alito. The more ideologically homogenous Republican Party conference in the Senate would be better advantaged in the long-run to take advantage of court-packing, so on balance Republicans would almost certainly get a disproportionate share of nominees confirmed and this nominees would be more ideologically consistent and radical. And, in addition, the disequilibria produced by constitutional hardball generally favors conservative interests over liberal ones in the long run.

The real point of bringing up court-packing is to remind the public that the Supreme Court is a fundamentally political institution. If this exercise in making law out of nothing at all being taken seriously by the Supreme Court doesn’t convince you, nothing will.

Windy City Gulag

[ 176 ] February 24, 2015 |

Remarkable reporting by Spencer Ackerman that you should read:

The Chicago police department operates an off-the-books interrogation compound, rendering Americans unable to be found by family or attorneys while locked inside what lawyers say is the domestic equivalent of a CIA black site.

The facility, a nondescript warehouse on Chicago’s west side known as Homan Square, has long been the scene of secretive work by special police units. Interviews with local attorneys and one protester who spent the better part of a day shackled in Homan Square describe operations that deny access to basic constitutional rights.

Alleged police practices at Homan Square, according to those familiar with the facility who spoke out to the Guardian after its investigation into Chicago police abuse, include:

  • Keeping arrestees out of official booking databases.
  • Beating by police, resulting in head wounds.
  • Shackling for prolonged periods.
  • Denying attorneys access to the “secure” facility.
  • Holding people without legal counsel for between 12 and 24 hours, including people as young as 15.

At least one man was found unresponsive in a Homan Square “interview room” and later pronounced dead.

 

ACA Trooferism Roundup

[ 21 ] February 24, 2015 |

The IRS Issued Tax Credits to Cover Up BENGHAZI!!!!!!!

[ 13 ] February 24, 2015 |

If the facts are on your side, pound the facts into the table. If the law is on your side, pound the law into the table. If neither the facts nor the law are on your side, pound the Fox News talking points into the ground:

That Cannon is defending his case by nodding like a Fox News bobblehead to an unrelated pseudo scandal is not anomalous. In both the media and in their briefs to the Supreme Court, the law’s challengers have papered over weaknesses in their historical and legal arguments with conservative bromides familiar to talk radio consumers, Fox News viewers, and recipients of anti-Obamacare talking points.

This kind of conservative argumentum ad reptilis, has a successful track record with at least one conservative justice on the Supreme Court. During oral arguments in the constitutional challenge to the Affordable Care Act three years ago, Antonin Scalia made reference sua sponte to the “Cornhusker Kickback”a short-lived special deal for Nebraska in the Senate health care bill that became a metaphor on Fox News for the ACA’s corrupted legislative process, and was thus made national.

But to those of us outside the conservative information bubble, it speaks to two themes that define challenge itself: that it is built on a fabricated history, and that it poses a de facto test to the cohesiveness of conservative movement infrastructure. Can a case built on an informational foundation that’s rejected everywhere outside the movement stand on the strength of the right’s intellectual and professional networks? Is the apparent internal consistency of a story and argument that only conservatives believe enough to carry the day in the Supreme Court, when the stakes are this high?

Cannon’s argument use of Pelosi’s argument that passing the bill will show that conservative descriptions of it were a lie in order to defend making up additional lies about it is my favorite example.

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