Category: General

Plus-size model Robyn Lawley exemplifies body diversity in the world of high fashion

[edit: original photo replaced with one of Lawley; I inadvertently used one of another "plus-sized" model]

Wins praise for appearing in un-retouched bikini photo.

Last night we stumbled upon (OK we’ve actually already watched two three five episodes) one of those trashy reality real estate flip shows [ed.: link], featuring a husband and wife team, and it struck me that the wife’s size zero appearance is completely normalized on television in particular, and in the media in general. In other words, in these contexts a woman who is roughly in the 2nd percentile of BMI occupies what sociologists call an “unmarked category.”

By way of comparison, the 98th percentile of BMI — the statistical obverse — would be represented by an average-height woman weighing around 250 pounds.

They Criticize What They Can’t Understand

To the extent that there’s an argument against reading the ACA to include subsidies on the federal exchanges, it has to be that while Congress intended the subsidies to be available on both, reading the literal language of an isolated provision it says that the subsidies are only available on state exchanges, so tough luck.  This is, to be clear, a terrible argument, but it’s the best one available.  To my amazement, as I first saw on Twitter yesterday, some conservatives are arguing that Congress actually intended for the federal exchanges not to include subsidies.  For example, Ramesh Ponnuru:

Supporters of Obamacare have been lamenting that the law shouldn’t be crippled by a mere “drafting error.” But it’s not at all clear that restricting tax credits to state-established exchanges was a drafting error. If Obamacare had proven more popular, or resistance to it weaker, then most states would have established exchanges. And if the law were put in place as written — with the restriction on tax credits — then the few holdouts would be under pressure to establish exchanges to get credits for their residents. Other health-care legislation before Congress at the same time as Obamacare had the same restriction.

It’s wrong, then, to say that Congress obviously didn’t intend to include this restriction.

This argument is…amazing.  It may be true that many members of Congress were too optimistic about states creating their own exchanges.  But we also know that Congress anticipated that some states would not create their own exchanges…because the statute gave the federal government the power to create exchanges when states wouldn’t.  Ponnuru’s reading of the statute can’t explain why they bothered to do this at all.  The actually existing Congress assumed that some states would not participate but wanted the exchanges available in all 50 states.  So Ponnuru’s explanation is plainly wrong, and we’re left with an implicit assumption that Congress established the power to have the federal government to create exchanges but wanted them not to work, which is absurd.

In addition, we know that Congress anticipated significant state resistance because of the way it structured the Medicaid expansion.  If Congress thought that all but a few states would establish exchanges with little direct incentive to do so, then surely the huge gobs of federal money that comes with accepting the Medicaid expansion would be more than enough for states to buy in.  But Congress didn’t think that, and until the statute was ineptly re-written by John Roberts all existing Medicaid money was contingent on accepting the expansion.  Ponnuru’s explanation cannot account for this either.

But there’s a more fundamental problem with the arguments made by the majority of the D.C. Circuit panel and the Republicans cheering them on.  The ACA was not written by Republicans — it was written by public officials who wanted to substantially increase access to medical care.  The central function of the subsidies wasn’t to create incentives for state governments; it was to ensure that the non-affluent uninsured who didn’t qualify for Medicaid could purchase insurance on the exchanges.  To not provide subsidies on the federal exchanges would defeat the very purpose for which they were constructed.  If you understand the ACA from the standpoint of those who passed it, this couldn’t be more obvious.  Conservatives trying to evaluate the goals of the ACA are like elephants trying to play a toy piano.

And, needless to say, this is why as a first approximation zero supporters of the ACA either inside or outside Congress are persuaded by this latest ad hoc attack on the law.  In addition to the other ways in which it’s silly it’s premised on not comprehending what the ACA was trying to accomplish.

What Will the Supremes Do About the Latest D.C. Circuit Atrocity?

For those that missed it yesterday, I have a piece up about Halbig v. Burwell. The bottom line:

The sole dissenting judge, Harry Edwards, in his tour de force dissent, made clear his distaste for appointed judges making new law – and pointed out that the majority opinion requires the courts to ignore all the sound principles of statutory construction.

Congress clearly thought the subsidies were essential to the functioning of the exchanges, and it permitted the federal government to establish exchanges in order to prevent states from thwarting the aims of the ACA – which is to help people buy more affordable health insurance.

The majority’s reading, however, would allow hostile states to do exactly what the law was designed to prevent: by refusing to establish a state exchanges, they could effectively stop the exchanges from working properly in their states.

As Edwards observes, the majority’s interpretation “is implausible because it would destroy the fundamental policy structure and goals of the ACA that are apparent when the statute is read as a whole”. Plus, not a single state government – even those hostile to the law – believed that the statute demands what the majority says it does. Nobody is confused about what the law intended, but some people who oppose the ACA on political grounds are opportunistically pretending to be.

To be clear, the position taken by 4 of the 6 judges to have ruled on the question yesterday (see the 4CA opinion here) does not entail “re-writing the law” or binding the public to the subjective intent of the legislators rather than what they wrote. Statutes have to be read as a whole, not in isolated phrases. When one reads the statute properly, that Congress intended to make the subsidies available is not merely plausible but blindingly obvious. As Judge Davis noted in his concurrence:

I am not persuaded and for a simple reason: “[E]stablished by the State” indeed means established by the state – except when it does not, i.e., except when a state has failed to establish an Exchange and when the Secretary, charged with acting pursuant to a contingency for which Congress planned, establishes and operates the Exchange in place of the state. When a state elects not to establish an Exchange, the contingency provision authorizes federal officials to establish and operate “such Exchange” and to take any action adjunct to doing so. When a state elects not to establish an Exchange, the contingency provision authorizes federal officials to establish and operate “such Exchange” and to take any action adjunct to doing so.

That disposes of the Appellants’ contention. This is not a case that calls up the decades-long clashes between textualists, purposivists, and other schools of statutory interpretation. The case can be resolved through a contextual reading of a few different subsections of the statute. If there were any remaining doubt over this construction, the bill’s structure dispels it: The contingency provision at § 1321(c)(1) is set forth in “Part III” of the bill, titled “State Flexibility Relating to Exchanges,” a section that appears after the section that creates the Exchanges and mandates that they be operated by state governments, ACA § 1311(b). What’s more, the contingency provision does not create two-tiers of Exchanges; there is no indication that Congress intended the federally-operated Exchanges to be lesser Exchanges and for consumers who utilize them to be less entitled to important benefits. Thus, I conclude that a holistic reading of the Act’s text and proper attention to its structure lead to only one sensible conclusion: The premium tax credits must be available to consumers who purchase health insurance coverage through their designated Exchange regardless of whether the Exchange is state- or federally operated.

I might have more on this in another post, but the idea that Congress intended for the federal exchanges not to work is transparently absurd, which hasn’t stopped some people from trying to make the argument.

The Supreme Court may not hear this case, since it’s overwhelmingly likely that the D.C. Cicuit en banc will end the silliness, upholding the proper reading of the statute and eliminating the circuit split. If they do hear it, some commentators — for example, Goldtsein and Klein, — are confident that the Supreme Court would side with the 4th Circuit. In a rational universe, we could indeed expect that “[t]he Supreme Court simply isn’t going to rip insurance from tens of millions of people in order to teach Congress a lesson about grammar.” But I’m less sure. After all, in their gratingly disingenuous attempt to claim that their gutting of the ACA was an act of judicial restraint, the D.C. Circuit majority acknowledged the terrible consequences of their decision — but didn’t care. Republican statehouses know that turning down the Medicaid expansion will cause many people to go without coverage — they don’t care. I don’t put anything past a Supreme Court controlled by the contemporary Republican Party.

This Just in: Grown-Ass Man Upset that Thor is Now Gross Girl

John C. Wright is 54-years-old, which is why it is remarkable that everything he writes reads as if it were posted by a 14-year-old on 4Chan. With a well-thumbed Thesaurus. In fact, his posts are such a messed-up mashup of teen-trollery and florid pomposity I’m beginning to think he’s been punking us.

Ah, but the point of Political Correctness is not to tell a story and make it good, but to take a good story and ruin it.

Fanboys, I know, like looking at woman warriors that are leggy and busty and dress in skintight black leather.

But the important thing in combat is to show a lot of cleavage. I think it is fairly clear that the fanboys are not primarily attracted the heroic stature, muscles, strength, and manly chivalry of these woman warriors.

And if they absolutely, positively HAD to make Thor into a girl, why could Marvel not make her into a cheesecake girl in a chainmail bathing suit, as is the mighty Marvel tradition?

I’m now convinced that John C. Wright is a performance artist. Slow-but-steadily-building-clap for you, John C. Wright. You had us all fooled. 

Bonus points for referring to women as “she-soldiers.” The correct word is, of course, “soldiers.” Aww, but you knew that, you scamp.

“Do Everything You Can To Attack the ACA” Is A Kind of Principle

I will have more on this, but two Republican hacks at the D.C. Circuit have embarrassed themselves by accepting a particularly bad statutory argument that would throw the exchanges into chaos.

…my piece is here. More imminently.