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Through the Looking Glass, With Time’s Blog of the Year!

[ 70 ] March 30, 2015 |


The Gruber Did It!

John Hinderaker and Byron York are definitely onto something when they say that Harry Reid’s so-called “exercise injury” was really an elaborate cover-up.  But the real question is: why? The how and the who is just scenery for the public. Bill Ayers, Ace Rothestein, Jonathan Gruber…keeps ‘em guessing like some kind of parlor game, prevents ‘em from asking the most important question: why? Why was Reid injured? Who benefited? Who has the power to cover it up? Who?  And the answer, of course, is the powerful lobby of people eligible for tax credits to purchase health insurance on federally established state exchanges. Reid carefully omitted the “no tax credits for no eligible customers on the federally established exchanges so we can insure the Moops Resistance Army is fully funded muahahaha” language from all physical and digital copies of the ACA, but his guilty conscience was getting the best of him.  The uninsured lobby had no choice to rough him to keep him quiet.  Whether they used someone from back home in Kansas City or a scared M.I.T. professor or maybe a rogue operative who will need a liver transplant isn’t really the point.

More on the “Stop Hitting Yourself” Theory of Governance

[ 89 ] March 30, 2015 |


Josh Blackman raises the new theory that Democrats should pay the price for Republican obstructionism to a new level:

I trace much of the intractable gridlock in Washington, D.C. to this very moment in 2009 when the ACA was passed on a 60-line vote. In much the same way that Kim Kardashian “broke the internet,” I think Harry Reid ramming the ACA through “broke the Senate.” This is to say nothing of his later decision to trigger the nuclear option, and eliminate the filibuster altogether for judicial nominees other than the Supreme Court. The intransigent Republicans take virtually all of the blame for the gridlock over the last few years, but much of it should fall at the feet of Reid.

This has the same problem as all versions of the theory: namely, the idea that there’s something presumptively illegitimate about passing legislation with “only” a 60% or 59% majority in the Senate is absolutely absurd. I actually wouldn’t bet that a conference committee would have modified the currently contested language of the ACA — everyone understood perfectly well that subsidies would be available on the federally established exchanges at the time, after all — but whether this is true or not the fact that a minority of Republicans in the Senate wouldn’t allow a vote on a bill that went through a conference committee cannot be blamed in any way on the Democrats and is a feeble justification indeed for willfully misreading the law.

Some additional notes:

  • How many Senate votes are necessary before Democrats are actually permitted to govern after winning an election?  65?  70? 80?
  • I note, again, that Mitch McConnell had announced ex ante that he wanted to deny Republican support for anything.  So, in other words, the only way that the Democrats could have avoided “breaking the Senate” would be…to do nothing.  I can’t imagine why Reid did not take this deal.
  • I’m curious why a bill that passed with 60 votes is cited as the one that “broke the Senate.”  Why not Bush’s second round of upper-class tax cuts, which passed the Senate with 50 votes + the vice president?  What about Medicare Part D, which got 54 votes in the Senate after extraordinary procedures were necessary for it to squeak by a 3-vote margin in the House?  Is it only Democrats who aren’t permitted to govern without at least a 61-seat supermajority in the Senate?
  • The “nuclear option” argument is, if anything, even worse.  Again, it’s worth recalling the context.  Republicans did not merely filibuster individual nominees that they considered unacceptable.  They were simply blocking en masse anyone that Obama nominated to the D.C. Circuit once he was in the position to make Democratic nominees a majority.  Which led to rules changes in which a majority of the Senate can confirm presidential nominees to the federal courts.  Which I’m supposed to be upset about…why is that again exactly?
  • It’s also worth noting that the “nuclear option” was not a Democratic innovation.  It would have been invoked during the Bush administration, except that Democrats made a deal in which they allowed multiple judges including Janice Rogers Brown to be confirmed to the federal bench in exchange for utterly worthless promises about future behavior.  If Republicans had agreed to confirm Pamela Karlan, Kimberlé Crenshaw, Reva Siegel, and Mark Tushnet to the D.C. Circuit I’m very confident that the filibuster rule would not have been modified. 

In conclusion, I would have to say that I am not persuaded that Democrats are obligated not to try to pass any laws to preserve the comity of the Senate or to ensure that the statutes they do pass will be misread by the courts as to defeat their clear purpose.

But the ACA REALLY WAS the Heritage Plan, Amirite? (SPOILER: No.)

[ 59 ] March 29, 2015 |


Not pictured: the many Republican supporters of the ACA, Mrs. Eisenhower

A commenter believes that he has a GOTCHA!

The other day, Obama was touting the successes of Ocare and needling the Rs for not accepting a healthcare reform plan (the ACA) that was basically their (the Rs) proposal as put forth by Heritage.

I’ve been waiting with bated breath Lemieux’s excoriation of the President. Apparently, dumb ol’ Obama thinks his health reform was the conservative approach. What a moron, amirite?

The assertion about Obama’s rhetoric is, as far as it goes, accurate-ish:

I mean, we have been promised a lot of things these past five years that didn’t turn out to be the case: death panels, doom. (Laughter.) A serious alternative from Republicans in Congress. (Laughter.)

The budget they introduced last week would literally double the number of the uninsured in America. And in their defense, there are two reasons why coming up with their own alternative has proven to be difficult.

First, it’s because the Affordable Care Act pretty much was their plan before I adopted it — (laughter) — based on conservative, market-based principles developed by the Heritage Foundation and supported by Republicans in Congress, and deployed by a guy named Mitt Romney in Massachusetts to great effect. If they want to take credit for this law, they can. I’m happy to share it. (Laughter.)

And second, it’s because health reform is really hard and the people here who are in the trenches know that. Good people from both parties have tried and failed to get it done for 100 years, because every public policy has some trade-offs, especially when it affects one-sixth of the American economy and applies to the very personal needs of every individual American.

And we’ve made our share of mistakes since we passed this law. But we also know beyond a shred of a doubt that the policy has worked. Coverage is up. Cost growth is at a historic low. Deficits have been slashed. Lives have been saved. So if anybody wants to join us in the spirit of the people who have put aside differences to come here today and help make the law work even better, come on board.

The context here is important. His invocation of the Heritage Plan is preceded by a description of the actually existing contemporary Republican alternative — i.e. a policy framework substantially worse than the status quo ante that would double the number of uninsured. To call the ACA a “Republican plan” in these circumstances would be pretty dumb. Still and all, Obama did indeed use the “ACA was a Republican plan” line. The question remains: what, precisely, is this supposed to prove?

The most important question here is an empirical one — does the ACA resemble the Heritage Plan? The answer to this question is unambiguous: the plans are radically dissimilar. Nothing Obama says can change this basic fact.

Obama gets around this in part with the familiar technique of conflating the Heritage “mandate to buy nearly unregulated catastrophic insurance while destroying Medicare and Medicaid” plan with the Massachusetts health care reform plan. This argument has the advantage that the Massachusetts plan does bear a real resemblance to the ACA. But it has the fatal disadvantage that what laws a Republican governor will sign (significant parts of) when facing veto-proof supermajorities of Massachusetts Democrats is about as relevant to national Republican health care policy as the views of Thaddeus Stevens and John Bingham are to Republican civil rights policy in 2015.

So, on this issue what Obama is saying is wrong. But his Heritage Plan comments should be seen as having a strategic, not descriptive, purpose. The point of the argument — which is abundantly clear in context — is to preempt Republican assertions that the ACA a radical threat to freedom itself while also painting the GOP as obstructionist and intransigent. It would be silly to take the comments at face value as some kind of wonky policy analysis, and for that reason it would also be silly to “excoriate” Obama as an ignoramus (or, alternatively, to cite his comments as evidence that the ACA really was the Heritage Plan, which seems to be the thrust of the comment.)

This is not to defend the rhetorical strategy, which I continue to think is deeply misguided, particularly with the constitutionality of the individual mandate no longer being a live issue. As Shelley Levene observed, if you’re gonna make something up, make sure that it helps. At this late date, it’s pretty clear that the preemption strategy is a failure, and I think a more accurate description of Republican health care policy — their offer to the uninsured is nothing to more people and their offer to many of the insured is to make things worse — is also the better rhetorical approach. But since only a tiny minority of people were paying attention to Obama’s comments and 0% of that group are persuadable on health care policy, I also don’t think that it particularly matters.

Justice Finally Done

[ 74 ] March 27, 2015 |

I argued that year that the United States should not have given a second’s consideration to extraditing Amanda Knox had she been re-convicted of a murder she plainly didn’t commit.   Fortunately, this action will no longer be necessary.    Glad someone else in the Italian judicial system finally stepped into the grown-up chair.

The Amateurism Fallacy

[ 88 ] March 27, 2015 |


When you boil them down, defenses of the NCAA cartel boil down to a “if things were different, they wouldn’t be the same” argument.  Allegedly, the mystique of the NCAA comes down to players being forbidden from receiving anything but scrip as direct compensation, and also having extraordinary, unique bans on third party compensation that don’t apply to any other students imposed on them.  People are not offended by everyone else in the NCAA raking in as much cash as they possibly can, but end the exploitation of players in high-revenue sports and the edifice would crumble.

The most important response to this argument, of course, is “who cares?”  If the popularity of NCAA sports depends on gross exploitation and egregious double standards, then it’s not worth saving.  Sentimentality and trivial aesthetic preferences are pathetically weak justifications for denying the people taking the most risk and generating the most value fair compensation.

But here’s the thing: I don’t believe that the argument is correct on its own terms.  Owners asserted, after all, that free agency would destroy the popularity of pro sports, when in fact the popularity of pro sports exploded after free agency.  What fans will rant about to talk radio hosts has little connection with their future behavior.  In comments in the last thread, I think djw put the point brilliantly:

What’s particularly absurd about the first complaint is that at big-time sports schools, Football and Basketball resemble a professional team already in all the relevant ways: some of the best athletes in the world who treat athletics like more than a full time job, extremely high level of competition and performance, tons of money, marketing, and TV contracts, lots of people making obscene amounts of money, world class facilities, etc. The only real difference is that the people who do the most important and risky labor don’t get paid/get paid in dubious company script. It’s enormously popular.

On the other hand, there are hundreds of DII and DIII schools where the same sports teams resemble the amateur ideal a great deal more–no compensation, HS+ level facilities, part-time coaches, practice and travel schedules that let athletes be students in a meaningful sense, etc. Nobody cared. I attended one of those schools, I only heard my team was playing for a national title by watching sportscenter. (But I did watch UW on TV every week).

Bitter scribe’s assumption is that even though every single step toward professionalism so far has made college sports more popular, that one last step will someone how ruin everything. Let’s just say he’s got a substantial unmet burden of proof here.

The fact that the popularity of college sports is inversely correlated with how closely they embody the Noble Ideals of Amateurism makes claims that compensating players fairly will destroy college sports implausible in the extreme.

Larry Tribe: The Crank Years

[ 44 ] March 27, 2015 |


Chait has an amusing discussion of Laurence Tribe’s willingness to cash paychecks from Big Coal to make arguments better suited to the CATO institute blog:

Tribe is playing an important legal role, which has to be evaluated on its own terms. Other law professors, like Richard Revesz, Jody Freeman, and Richard Lazarus, have called Tribe’s legal argument frivolous and absurd. Tribe has responded. But aside from the legal case Tribe has devised, his advocacy is also playing a crucial public role in the debate — even liberal professor Laurence Tribe noted that Obama’s climate regulations must be unconstitutional, which sounds very different from even coal company lawyer Lawrence Tribe agrees that Obama’s climate regulations must be unconstitutional. Should anybody put weight on Tribe’s endorsement of the anti-Obama lawsuit, any more than they should have taken Harvard law professor Alan Dershowitz’s word for it that O.J. Simpson was innocent?

The question of whether Tribe is arguing in bad faith is difficult to answer. His fetish for bad states’ rights arguments did not begin here, although as far as I can tell he’s certainly never made any claims this remotely this bad or this radical before. As Paul has previously observed, at Tribe’s particular position in the legal profession asking whether he’s arguing in bad faith is almost a category error, like trying to figure out what the leader of a large brokerage party “really thinks.”

The more important question is whether his arguments are at all plausible, and…they are in fact strikingly terrible. They push far beyond current federalism doctrine to reach results with appalling consequences. Taken together, if applied seriously the arguments he’s making would threaten huge swaths of the United States Code. I’m particularly gobsmacked that he would embrace a favorite argument of radical libertarians, “the contemporary regulatory state is unconstitutional because the takings clause“:

Second, the constitutional arguments are wholly without merit. Tribe argues that EPA’s rule is an unconstitutional “taking” of industry’s private property under the Fifth Amendment because government regulation of power plant pollution has not covered greenhouse gas emissions until now. The clear implication of Tribe’s novel view of the Constitution is that the coal industry, and the power plants that burn their coal, possess an absolute constitutional property right to continue to emit greenhouse gases in perpetuity. No Supreme Court opinion has ever announced such a preposterously extreme proposition of constitutional law. Nor has even one single Justice in more than two centuries of cases endorsed such a reading of the Fifth Amendment.

If Tribe were right, government could never regulate newly discovered air or water pollution, or other new harms, from existing industrial facilities, no matter how dangerous to public health and welfare, as long as the impacts are incremental and cumulative. The harm EPA seeks to address with its power plant rule not only affects future generations, but also current ones already managing the impacts and risks of climate change. Indeed, after an unprecedented and exhaustive scientific review, EPA in 2009 made a formal finding that greenhouse gases already endanger public health and welfare. The D.C. Circuit upheld this finding, and, given a chance to review it, the Supreme Court declined. This is important because it makes it all the more astonishing that Professor Tribe has himself determined that greenhouse gases do not pose the kind of risk that government is entitled to address, unless it is willing to compensate industry for its losses. It is hard to imagine a more industry-friendly and socially destructive principle than this.

Thankfully, this principle has no basis in constitutional law. The Supreme Court has repeatedly made clear that the Fifth Amendment’s Takings Clause does not shield business investments from future regulation, even when that regulation cuts sharply into their profits. The Constitution protects only “reasonable investment backed expectations,” and there is simply no reasonable expectation to profit forever from activities that are proven to harm public health and welfare. Certainly the coal industry uniquely enjoys no special exemption from this fundamental constitutional rule.

The nondelegation and anti-commandeering are no better, and any of them could have been made by Richard Epstein himself. I don’t really care whether Tribe believes them or not; what matters is that they all need to be killed and the earth salted before they could reemerge. They would be embarrassing if they were being made for good policy ends, let alone being made to protect the interests of polluters and increase carbon emissions during an environmental crisis. And I’m note sure he’ll be able to get even Clarence Thomas’s vote for the constitutional arguments.

Tribe has made many salutary and important contributions to constitutional law. Where’s he’s coming from here, I have no idea.

Reid Retires

[ 131 ] March 27, 2015 |


Harry Reid is retiring — an a presidential cycle, luckily. Kilgore on his legacy:

We’ll soon get around to appreciations of what Reid accomplished and tried to accomplish, and an assessment of the contest to succeed him as Senate Democratic Leader (Chuck Schumer and Dick Durban are the most likely candidates). I think he will be most remembered as the Senator who finally began restricting the out-of-control use of the filibuster, though he also deserves significant credit (or blame) for how the Affordable Care Act was put together and enacted. For now we can just marvel at his long and very significant career.

I’ve said this before, but I think Ed’s assessment of Reid’s work on the ACA is far too equivocal. It seems ever more obvious in retrospect that what’s surprising is not that something much better than the ACA couldn’t pass but that Reid and Obama were able to get 60 votes for anything. Certainly, the next person with an even slightly plausible argument explaining how he could have gotten the votes of Lieberman, Bayh, Nelson, Landrieu, Lincoln, et. al for, say, a meaningful public option will be the first. There were certainly more liberal senators than Reid, but I’m not sure how many of them would have been more effective parliamentarians. He was very good at his job at a time when the Democrats really needed him to be.

Mike Pence Makes Idiotic Argument to Defend Horrible Law

[ 62 ] March 26, 2015 |


It should go without saying that Indiana’s Restoration of Bigotry Act is an abomination. I can’t resist, however, noting this particularly asinine defense of the statute from the governor:

“This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it,” Pence said in his statement Thursday. “For more than 20 years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana.”

Uh, can someone show me where the federal RFRA permits burdens on religious liberty to be invoked in suits between private parties? Because it seems to be missing from my copy of the statute. Which seems relevant, since such a provision is in Indiana’s statute and is what will undermine the state’s anti-discrimination laws. I concede Pence’s point: if the law he signed was different it would have different effects. The one he did sign, however, is a disgrace.


On Foodie Elitism

[ 296 ] March 26, 2015 |


Don’t live on the west coast? None of this until summer for you!


The mockery of Mark Bittman’s “turns out the Bay Area is a nice place to live with many available foodstuffs” column has been swift and inevitable. But there are also some substantive issues at stake here, and Phoebe Maltz Bovy’s response is devastating:

The true villain for the food movement isn’t someone who buys fast food when they should be eating lentils. It’s someone who, despite having the resources to do so, hasn’t researched where his or her food comes from. Grocery shoppers’ desire to purchase fruits and vegetables—a seemingly admirable, or at least innocuous, one—is recast as consumer demand for out-of-season produce—the height of decadence. In 2011, Bittman had some harsh words for these consumers:


Bittman lamented the fact that “we have ceased to rely upon staples: long-keeping foods like grains, beans, and root vegetables, foods that provide nutrition when summer greens, fruits, and vegetables aren’t readily available.”

Is Bittman relying on root vegetables in Berkeley? When he’s in Rome learning the craft of pasta sauce? Or when he was on a food tour of Spain with Gwyneth Paltrow and Mario Batali? Along similar lines, I became somewhat less impressed with David Tanis’s remarks about how he for one is going to stick with “end-of-winter vegetables” until the “local and seasonal” green ones sprout, when I noticed he’ll be giving a cooking workshop in Sicily this April. I point these things out not (just) out of culinary envy of New York Times food writers, but because it genuinely does mean something different to be a strict locavore if you travel around all the time, or live in grocery-endowed part of California, or both.

In addition to the problem that being a “locavore” isn’t much of sacrifice if you live on the California coast or can afford to travel wherever you want, there are the additional problems that 1)relying solely on local produce requires, you know, plenty of money and 2)in the vast majority of places it would be completely unsustainable if more than a minority did it anyway.

Look, I like farmer’s markets and the local co-op; I try to buy as much localish produce as availability and budget permit. But I also appreciate well-stocked supermarkets with decent produce to go along with other staples. And as to the idea that I shouldn’t have access to most vegetables for 9 or 10 months a year unless I can move to Berkeley, go to hell.

Supreme Court Side With Rights of Women Against Employers. (You read that correctly.)

[ 23 ] March 26, 2015 |


No longer stands for “Unlimited Pregnant woman Sacking”

You do this long enough, and you’ll see everything:

Based on this test, the majority rejected the Fourth Circuit’s summary dismissal of Young’s claim. Young was able to present at least some evidence that she was treated differently than other non-pregnant employees with similar limitations related to heavy lifting, and hence her case was dismissed prematurely. Justice Alito — not exactly a bleeding heart on employment discrimination cases — found that it “is not at all clear that respondent had any neutral business ground for treating pregnant drivers less favorably than at least some of its nonpregnant drivers who were reassigned to other jobs that they were physically capable of performing.”

If there isn’t a settlement, it will remain up to the lower courts to determine if she can prove her discrimination claim. But at least she will be allowed to make her case.

So while Young did not get the court to embrace the broadest interpretation of the statute, the decision must be considered a victory. “The court made clear that employers may not refuse to accommodate pregnant workers based on considerations of cost or convenience when they accommodate other workers,” Samuel Bagenstos, the Michigan Law School professor who represented Young before the Supreme Court, told me. “It’s a big step forward towards enforcing the principle that a woman shouldn’t have to choose between her pregnancy and her job.”

We still don’t know if Peggy Young’s strong case will ultimately prevail. But when the Roberts Court issues a ruling that sides with the workers and gives greater protection to women, it’s a reason for both surprise and celebration.

A few additional notes:

  • This case was apparently written from an alternate universe in which Stuart Taylor knows what he’s talking about. For the first time in an important case, Roberts and Alito but not Kennedy joined the Democratic nominees.  When I read the Alito concurrence I keep looking for the angle but it’s reasonable enough that I certainly would have signed for it after oral argument. Let’s just say I’m happy that I didn’t have the opportunity to bet on the vote alignment in this case.  I’m not saying that Bagenstos is the greatest Supreme Court advocate since Daniel Webster, but I’m not not saying either.
  •  As Irin Carmon observed on Twitter, Kennedy’s dissent is another one of his “I had to rule against your rights, ladies — I’m not prepared to go as far as a Trotskyist like Sam Alito — but I’m a nice guy, honest” specials.
  • The Scalia is dissent is pretty much all spittle and no gin, but it must be acknowledged that it almost certainly sets the record for uses of the word “poof” in a Supreme Court opinion.
  • More commentary from Lithwick and Leber.

The Satirical Novel We’re All Living In Continues to Lack Subtlety

[ 169 ] March 25, 2015 |


Shorter Verbatim Buckley “Yes of course Tucker Carlson’s brother is named Buckley” Carlson: “Great response [DeBlasio Spokesperson] Amy Spitalnick. Whiny little self-righteous bitch. “Appalling?” And with such an ironic name, too… Spitalnick? Ironic because you just know she has extreme dick-fright; no chance has this girl ever had a pearl necklace. Spoogeneck? I don’t think so. More like LabiaFace.”

What a wit!

Meanwhile, in attempting to play the good cop, his brother remains the most irritating concern troll in the known universe.

…see also.

On Marijuana Policy Reform, Senate to Do What it Does Best: Nothing

[ 16 ] March 25, 2015 |

Proponents of the strongest version of the War (On Classes Some People Who Use Some) Drugs ain’t going down without a fight:

But the Senate Judiciary Committee is emerging as a serious buzz kill for the pro-reform set.

The powerful panel is stacked with some of the most senior lawmakers in Congress, many of whom came to power during a tough-on-crime era of the drug wars that saw stiffer penalties for drug possession. Several of them openly gripe about what they call the Obama administration’s lack of enforcement of existing federal drug laws — and they certainly aren’t willing to send a signal that Congress is OK with the movement to liberalize pot.

“I’m probably against it,” Sen. Orrin Hatch of Utah, the most senior Senate Republican and a member of the Judiciary Committee, said of the cannabis bill

“I don’t think we need to go there,” added Sen. John Cornyn of Texas, the No. 2 Senate Republican and former Texas attorney general and state Supreme Court justice. “This is a more dangerous topic than what a lot of the advocates acknowledge.”

Republicans most recently made news on the marijuana front in December, adding language to a spending bill that effectively blocked sales of pot in the District of Columbia — where, a month earlier, voters overwhelmingly approved a legalization measure.

But the slow boring of hard etc.  Good for Gillibrand et. al for putting this on the agenda.

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