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BREAKING! Key Claim of ACA Troofers Remains Abject Nonsense

[ 48 ] February 11, 2015 |

One of the favorite claims of ACA troofers — a means of straddling the “card says Moops!” and “the Moops invaded Spain” versions — is an assertion that every member of Congress assumed that every state would set up its own exchange by the deadline.  This argument is, first of all, ludicrously implausible on its face — if you never considered the possibility that a state would fail to set up an exchange, why would you establish a federal backstop that was designed to fail rather than just not establish a federal backstop at all?  The “evidence” for this claim doesn’t even rise to the level of being threadbare — a single bare assertion that was obviously an unfounded assumption (unless you think Robert Pear contemporaneously interviewed every member of Congress and asked whether or not they expected all 50 states to establish a workable exchange by 2014 but didn’t bother to include any quotes after going through all that work.)*      It is also, as we know, demonstrably false — legislators were aware that red states were likely to obstruct the operation of the law.

Additional evidence is superfluous at this point, but it’s worth citing anyway.  Jon Cohn’s January 2010 email interview with a key adviser to Ted Kennedy and the HELP committee makes it additionally clear that Congress was well aware that some states would refuse to set up exchanges, and established the federal backstop in response:

Confronted with arguments that Congress would never have passed a statute that might undermine itself, Cannon and other supporters of the King lawsuit have argued that the exchange provision was supposed to work just like the law’s Medicaid provision. In other words, the exchange tax credits would be like something out of “The Godfather“: an offer that states simply couldn’t refuse. In this telling, Obamacare’s authors supposedly never anticipated that states would turn down the tax credits.

“Congress did try to coerce states with the loss of billions of dollars of federal Medicaid grants,” Cannon and his frequent collaborator, Case Western University law Professor Jonathan Adler, wrote at the website of the journal Health Affairs in 2012. “It stands to reason that the same Congress would do the same thing with regard to tax credits and Exchanges.” Cannon and Adler made a similar argument in a 2013 paper they wrote for the journal Health Matrix: “Having created an enormous incentive for states to establish Exchanges, it likely never occurred to some of the Act’s authors that states would refuse.”

But it did occur to McDonough, from the look of things. In the email copied above, he draws an explicit contrast between Medicaid (which, he thinks, states would never realistically turn down) and the exchanges (which, he concedes, they might).

To Nicholas Bagley, a University of Michigan law professor who worked on two amicus briefs opposing the lawsuit, that contrast is telling. “[McDonough] knew full well Congress couldn’t force the states to participate in Medicaid,” Bagley told me. “What he meant was that the stakes were too high for that to be a realistic option. But the very next thing he says is that opting out of the exchanges was a realistic option. On the plaintiffs’ theory, how could that possibly be? Just as no state could have been expected to opt out of Medicaid, so too no state could have been expected to opt out of the exchanges if billions of dollars were on the line.”

“If the plaintiffs were right,” Bagley went on, “McDonough would’ve said ‘no’ to both questions. The fact that he didn’t is powerful evidence that Congress never meant to threaten the states into establishing exchanges.”

So the email actually further disproves two totems of troofer dogma — that no legislator considered the possibility that states would fail to establish exchanges, and that Congress wanted the backstop to work like the Medicaid expansion (even though it’s blindingly obvious from the text of the statute that it did not.)

In conclusion, if the Supreme Court sides with the troofers Charles is being unfair to Roger Taney here.

*One of the many, many risible elements of bad faith in troofer arguments is their highly selective nihilism about the possibility of making reasonable judgments about what Congress is trying to accomplish.  Congress uses a common technique of cooperative federalism and establishes a federal backstop to protect citizens against a failure by a state government to cooperate with a regulatory program?  We can’t possibly have the slightest idea of what Congress was trying to do!  A reporter makes an assertion, plainly inconsistent with the statutory scheme, that he knows the subjective expectations of each and every member of Congress?  This can clearly be accepted as gospel truth without a hint of skepticism!

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Live Music

[ 126 ] February 11, 2015 |

If you think live music sucks, the problem is probably you.

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Foreign Entanglements: The Guns of Kiev

[ 2 ] February 10, 2015 |

On the latest episode of Foreign Entanglements, Sean Kay and I talk about arming Ukraine:

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[ 80 ] February 10, 2015 |

It’s hard to imagine The Daily Show without Jon Stewart, but this is probably a good time for him to leave. Once the 2016 elections start, it would be awfully hard to leave. I haven’t watched The Daily Show regularly in years, really since Obama took office. For me, the real value of the show was therapy during the Bush years. I know it’s still good because politicians are still venal and Republicans are still crazier than loons so fresh material keeps on flowing but I kind of moved on. I have no idea who will replace Stewart and I can’t imagine stepping into those shoes. The show should be considered pretty legendary though in the annals of television, with Stewart a visionary figure on the level of Jerry Seinfeld, Bill Cosby (regardless of his crimes) and other great comedians who transformed television.

Plus destroying the first iteration of Crossfire in one segment earns him all the accolades.

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Remembering Lynching

[ 57 ] February 10, 2015 |

The Equal Justice Initiative has researched a new history of lynching, documenting nearly 4000 lynchings in the South, including attempts to find the precise locations where they took place. The hope is thus to memorialize these spots with historical markers and other forms of interpretation. That can be powerful–after all, if that tree right over there and that particular branch even once held the body of a lynched black man, well, that’s a pretty strong statement of how near the history of lynching is to us today. So I fully support these efforts.

It is totally understandable that this project is only focusing on the lynchings of African-Americans in the South. After all, it is run by African-Americans in the South. However, this is far from the full story of lynching in American society, even if it often gets framed that way. After all, Malcolm X’s father was possibly lynched in Lansing, Michigan (and even if it really was an accident, his family was severely harassed in several states). And the American West is full of racially motivated lynchings against Mexicans, Native Americans, and African Americans. Leaving these incidents out of the history of lynching is problematic because it reinforces the idea of racism as a southern problem and covers up a lot of horrible crimes committed in left-leaning places today. There are some attempts to alleviate this loss of public memory, such as this walking tour of lynching sites in downtown Los Angeles (I believe a reader brought this to my attention). That doesn’t mean the EJI attempt to memorialize these lynching sites shouldn’t go on, only that I hope there is equal attention paid to lynchings in New Mexico and Wyoming as in Louisiana and Alabama.

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In which SEK is, for once, rendered speechless

[ 54 ] February 10, 2015 |

SEK was — as you well know — once a respected academic who hobnobbed with the people at the very top of his discipline. So he is accustomed to meeting people whose work he has invested days and months of his life into. But none of them were on the television and apparently that makes a big difference, as SEK learned at the Dallas Comic Con this weekend.

SEK was wandering around in a futile attempt to keep up with one of the Con’s organizers, Devin Pike, when he “accidentally” ended up in the “backstage” area where the talent hangs out when they’re not signing or taking photographs. And before you ask — if you give SEK media credentials he will “accidentally” end up a lot of places he’s probably not supposed to be. That is the nature of SEK and even if he didn’t do it deliberately the universe would oblige. Or possibly insist. 

So SEK was “backstage” and he walks smack into the preternaturally charming John Barrowman. 

SEK: (audibly gasps) …!

BARROWMAN: (reading SEK’s name tag) And you are…media!

SEK: (trying to remember what words are and if they mean) …!

BARROWMAN: And where do you media, Scott?

SEK: The Onion.

BARROWMAN: I love The Onion! You should hire me, I’m hilarious!

SEK: (losing his words again) …!

BARROWMAN: Great to meet you, Scott, gotta go!

And then he danced out of SEK’s life forever. SEK takes comfort in the fact that, at least, he got two words out in the face of Captain Jack’s relentless charm offensive. In SEK’s defense he did fare better here than the first time he met Gay Talese. That was an unmitigated disaster.

Also, for those of you who amused by such things — here was how to find SEK at the Con. He is nothing if not consistent.

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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…

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Why charge less when increasing the price increases demand?

[ 30 ] February 10, 2015 |

That’s a question that university administrators have been asking themselves for many decades now. A couple of days ago, when asked to opine on the issue, Elena Kagan delicately suggested that, in conventional economic terms, it doesn’t make sense for Denny’s to charge almost as much for its Grand Slam Breakfast as Le Bernardin charges for its Thinly Shaved Geoduck.

[Northwestern Law School’s dean Dan] Rodriguez asked Kagan about the troubled state of legal education. Kagan demurred, stating that she was no longer in a position to advise law schools. But she did say she thinks “there ought to be more than one mode of legal education.” Since graduates of different law schools have different job opportunities when they graduate, Kagan said, not all schools should have the same teaching model—or tuition level—as “the elite law school model.”

No it certainly doesn’t seem to make sense for schools that send 5% of their graduates to high-paying legal jobs and four times as many to the unemployment line to charge 80% as much as Harvard, but such schools have been consistently charging 80% as much as Harvard since the memory of man runneth not to the contrary, aka the Eisenhower administration, if not earlier.

So why did they do so? The short answer is because they could. They could for a variety of reasons, but the one I’m going to focus on here is because the market for law degrees in this country seems to have featured an inverted demand curve — that is, one in which, all other things being equal, raising prices actually increased demand relative to competitors.

Consider a couple of natural experiments.

(1) The New York City area offers applicants about a dozen private law schools, and one public institution: CUNY. If you compare CUNY’s historical applicant pool to that of, say, New York Law School (not NYU), you’ll discover that until a couple of years ago, when after a blizzard of bad publicity NYLS’s applications started to collapse, NYLS was consistently getting about three times as many applicants as CUNY, even though it charged four times as much in tuition for New York residents relative to CUNY, and almost three times as much for non-residents. NYLS even had slightly higher entrance requirements, even though neither school carried any prestige on the hiring market (if anything, CUNY might have been the more desirable school from a prospective employment perspective, since it went and continues to go to great lengths to position itself as a law school dedicated to public interest practice).

Why, given the similar value of degrees of degrees from the schools on the employment market, would 6,000 people apply to NYLS in 2011 for the chance to pay $48,000 per year in tuition, when only 1,900 people applied to CUNY, where in-state tuition was $12,000, and non-resident tuition was $19,000? Why would three times as many people attempt to pay four times as much for what, in conventional economic terms, was pretty much the same thing?

(2) An even more stunning example of a radically inverted demand curve is provided by the tuition history of the University of Colorado Law School, where I teach.

Throughout the 1990s, CU raised its resident tuition (everybody gets resident tuition after their first year if they’re not already a resident, so for all practical purposes resident tuition represents the price of attending the school) by an average of about 8.5% per year, which incredibly enough was a markedly lower rate of increase than the typical public law school during these years. (Nation-wide, average public law school resident tuition nearly tripled between 1990 and 2002, but it only doubled at CU, from $3,130 to $6,352).

In 2003 the new dean convinced the central administration — I don’t imagine he had to break any arms or anything — to essentially quasi-privatize the school’s tuition over the next few years. This led to, even by the heady standards of American law schools, a truly mind-boggling series of price hikes, with the result that by 2011 tuition was fives times higher than it had been nine years earlier (four times higher in constant, inflation-adjusted terms).

What did this do to demand? Behold the wonders of the beneficent Market, home to sophisticated consumers, rationally maximizing their individual utility, world without end amen:

2.88% of all law school applicants applied to CU in the 2003-04 cycle.

4.13% of all law school applicants applied to CU in the 2011-12 cycle.

By increasing prices five-fold, CU increased demand by 43% relative to law schools nationally, even though over this same time average private law school tuition “only” went up by 61%, while average public resident tuition roughly doubled.

Did CU perhaps lower admissions standards, in order to make the school more attractive to a larger pool of potential applicants? Far from it stout yeoman: while the 2004 class had a median LSAT in the 84th percentile, the 2012 class’s median was in the 90th, and featured higher GPAs as well.

These experimental results are made even more vivid and robust by comparing CU’s outcomes to those at the University of Denver, just 30 miles down the road. While CU was quintupling its tuition, DU’s didn’t even double — meaning that in practical terms DU slashed its tuition relative to its neighbor’s — yet DU’s applicant pool was almost the reverse image of CU’s over these years, going from 4.18% of the national total in 2003 to 3.09% in 2011.

Note that if CU were a private corporation, its management would be violating its fiduciary obligation to the firm’s shareholders it they hadn’t raised tuition from $6,000 to $31,000, just as Honda’s management would be violating its legal duties if they hadn’t raised the price of an Accord from $20,000 to $100,000, if doing so would have led to selling 43% more cars relative to Toyota.

Now it seems, shall we say, unlikely that raising the price of an Accord to $100,000 would cause demand for the car to spike, but higher education in this country is clearly a very special sort of market.

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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. 

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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.


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Bar Lines

[ 222 ] February 9, 2015 |

I like a good rant. Especially when it is for a good cause. Such as people holding up bar lines to order complicated drinks.

The faddish reintroduction of “cocktail culture” on these shores has been a boon for liquor distillers and prohibition cosplayers. But it’s turned the once-efficient practice of ordering drinks into a sick and broken system. To be stuck in line behind a cocktail drinker when all you need is someone to pop the top off a beer is to be victim to a cruel and defective practice.

It is time to fight back against this invasive species.

There’s an obvious solution. Patrons at packed, under-staffed bars should consider the long line of customers behind them as they order a Gin Fizz or whatever, and instead purchase a drink that requires less time to make, such as: one beer. This will never happen, because people are assholes. And so we are forced to consider another option: Segregation.

Separate lines, each with its own bartender. One for those of us attempting to buy a quick beer, shot, or any liquor on the rocks; another for anyone purchasing a cocktail.

Will people cheat the system, like they do for express check-out lines and HOV lanes? Of course. “Could you put some bitters in that bourbon?” they’ll ask in the express lane. “Maybe a splash of vermouth, too?” No, fuck you. These rule breakers can be dealt with, with expulsion from the establishment. Customers will no doubt complain at first, too. Expel them. As the place is emptied out by force, the path to the bar becomes ever clearer.

I like a good mojito but I never order them at a busy bar. Why? Because it’s a jerk thing to do. It really operates in the same world as people talking loudly at concerts (I paid for this after all!) and, far more seriously, people choosing not to get their kids vaccinated. It’s the apotheosis of individualistic ideology that. Of course I shouldn’t be surprised by this ideology infecting all parts of our life since it central to is the consumerist individualism so promoted by modern capitalism and the corporate behavior that allows executives to make enormous decisions that affect millions of people based upon a quarterly report.

Of course, one can say this is ridiculous and that people ordering complicated drinks in a crowded bar (and probably tipping 50 cents for them) is meaningless. And maybe it’s true. But it’s not like these daily choices aren’t shaped by larger factors.

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Obama on Inequality

[ 66 ] February 9, 2015 |

Barack Obama gets why income inequality is so stark and why the fortunes of American workers have declined so far in the past forty years.

President Barack Obama did an interview with

At one point he was asked what he thought was leading to growing income inequality in the US.

Here’s what he said:

“Some of it has to do with technology and entire job sectors being eliminated — travel agents, bank tellers, a lot of middle management — because of efficiencies with the internet and a paperless office.”

“A lot of it has to do with globalization and the rest of the world catching up. Post-World War II, we just had some enormous structural advantages because our competitors had been devastated by war, and we had also made investments that put us ahead of the curve, whether in education or infrastructure or research and development. And around the ’70s and ’80s and then accelerating beyond that, those advantages went away at the same time as, because of technology, companies are getting a lot more efficient.”

“One last component of this is that workers increasingly had less leverage because of changes in labor laws and the ability for capital to move and labor not to move.”

Add all that up, and Obama says workers are in a tougher position. He was then asked about taxes, and he gave this additional reason for pressure on wages:

I think that part of what’s changed is that a lot of that burden for making sure that the pie was broadly shared took place before government even got involved. If you had stronger unions, you had higher wages. If you had a corporate culture that felt a sense of place and commitment so that the CEO was in Pittsburgh or was in Detroit and felt obliged, partly because of social pressure but partly because they felt a real affinity toward the community, to reinvest in that community and to be seen as a good corporate citizen. Today what you have is quarterly earning reports, compensation levels for CEOs that are tied directly to those quarterly earnings. You’ve got international capital that is demanding maximizing short-term profits. And so what happens is that a lot of the distributional questions that used to be handled in the marketplace through decent wages or healthcare or defined benefit pension plans — those things all are eliminated. And the average employee, the average worker, doesn’t feel any benefit.

I know Obama is constrained by the realities of the limitations of power to pass legislation. But it is quite striking to me that while he well understands the problems of income inequality and stagnating wages, his trade policies are so counter to the interests of American workers. The promoters of the Trans-Pacific Partnership, which Obama is trying to convince Congress to give him fast-track authority for, say that the problems of NAFTA won’t be repeated here and that the TPP will create American jobs. There is simply no reason to believe this. The TPP will just continue the process of the worldwide race to the bottom while protecting corporations from lawsuits and giving workers even less power than they do now to live a dignified life. It’s very difficult for me to believe that someone who supports the TPP and hires advisors like Larry Summers and Tim Geithner really has the interests of American workers in mind. Or maybe Obama does have their interests in mind, but is so under the control of the dominant ideologies of neoliberalism and global capitalism that he can’t see beyond his limited horizons to understand that a significant departure from current economic orthodoxies is necessary to reverse these trends. It’s certainly true that some of these problems are bigger than anything any president could do; the U.S. isn’t going to be in a position where so many of the world’s nations are either recovering from war or opting out of the global economy again. But Obama’s plans for the TPP are certainly not going to help.

I’m glad my president understand the roots of these problems. I just wish he could articulate better solutions.

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