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Today in the World’s Most Farcical Legislative Body

[ 59 ] March 3, 2015 |


House Republicans reiterate their demands for the administration’s TOP-SECRET PLAN to mitigate the damage should the judicial arm of the Republican Party decide to wreck a majority of the country’s health insurance exchanges:

A Republican House subcommittee chairman is accusing the Obama administration of secretly preparing a fallback strategy if the Supreme Court strikes down a major piece of its healthcare reform law later this year, even as officials publicly maintain that no plan exists.

Rep. Joe Pitts (R-Pa.), chairman of the House Energy and Commerce Health Subcommittee, says federal officials are hiding a roughly 100-page document on the looming court case. The case, King v. Burwell, could cut off ObamaCare subsidies in three-quarters of states and potentially collapse the national marketplace.

Pitts confronted the head of the Department of Health and Human Services (HHS) about the plan, which he says is being circulated among senior officials, for the first time on Wednesday.

HHS Secretary Sylvia Mathews Burwell said she does not know of a planning document.

“This is a document I’m not aware of,” she said in response to Pitts’s questions, before moving on to outlining the negative affects of a ruling against the law. 

”We believe we do not have any administrative actions,” she reiterated.

Rep. Joe Barton (R-Texas) pressed Burwell further.

“I take you at your word that you haven’t seen the plan, but don’t you think it’s prudent that there should be a plan?” he said. “I hope I don’t have a primary opponent, I hope I don’t have a general election opponent, but I have a plan in case I do.”

Burwell held her line.

“We don’t have an administrative action that we could take so the question of having a plan, we don’t have any administrative action that we believe could undo the damage,” Burwell replied.

“The administration is just going to hold up your hands and say we surrender?” Barton added.

“We believe the law as it stands is how it should be implemented,” Burwell replied.

Rep. Leonard Lance (R-N.J.) repeatedly also pressed Burwell on whether she knew of the planning document. Burwell did not categorically deny its existence, saying only that she does not know of it.

“If there is this document, and you know it, I would certainly like to know about a document, because I don’t have knowledge of a 100-page document,” Burwell said.

When Burwell again dove into the negative affects of a Supreme Court ruling against the law, Lance interrupted, “That’s filibustering.”

“I’m not familiar with the document you’re referring to,” Burwell replied.

Democratic Rep. Eliot Engel (D-N.Y.) came to Burwell’s defense, noting that Republicans are supporting the high court challenge.

“It’s somewhat ironic that my Republican friends are demanding that the administration fix problems that they themselves created,” Engel said.


In fairness, the idea that House Republicans would have their own contingency plan is even more ridiculous than this, so why not.


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India’s Carrier Conundrum

[ 55 ] March 3, 2015 |
INS Vikramaditya in Baltic Sea.jpg

“INS Vikramaditya in Baltic Sea” by Indian Navy. Licensed under CC BY 2.5 in via Wikimedia Commons.

Some more thoughts on India’s nascent carrier fleet over at the Diplomat:

Reports have emerged that India’s second indigenously built carrier, expected to be the third carrier to enter service in the next two decades, may utilize nuclear propulsion. This is alongside a set of other innovations that the Vishal might adopt, including EMALS catapult technology (possibly developed in association with the United States). India has taken strides on nuclear propulsion recently, with the launch of INS Arihant, its first domestically constructed nuclear submarine.

Why would India need a nuclear powered aircraft carrier?

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Tuesday Creature Feature Links: Crocodilians and Anti-Suffragettes and Polar Bears–Oh My!

[ 55 ] March 3, 2015 |
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Not looking forward to 19 more months of this

[ 139 ] March 3, 2015 |

Hillary Clinton running for president is going to be nothing but wall to wall fake “scandals,” since expecting even-the-liberal-media to react any differently is equivalent to expecting a classic rock station not to play Stairway to Heaven ever again.

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ACA Trooferism: The Reviews Continue

[ 69 ] March 3, 2015 |

Marty Lederman’s post is so brilliant I hesitate to excerpt, but as a teaser:

As I explain below, the challengers are mistaken to assume that absurdity is the only ground the Court has recognized as a basis for deviating from a text’s plain meaning. For what it’s worth, however, the challengers should lose even under that test, because their reading is “objectively absurd.” In particular, if the challengers were correct that tax credits are unavailable for insurance purchased on a federally established Exchange, Congress’s directive to the Secretary of HHS to establish and operate such federal Exchanges in States that have failed to do so would make no sense at all, as the Solicitor General explains at pages 24 and 38-39 of his brief.

Subsection 1321 (c)(1) of the Act provides that if a State elects not to set up an Exchange, or if a State does try to set up an Exchange but misses the deadline, or fails to satisfy all the relevant requirements for an Exchange, the HHS Secretary “shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.” The challengers concede (opening brief at 22) that this provision is designed to require HHS to establish the “same Exchange” that would exist if the State established the Exchange for itself, and that “[t]he HHS Exchange should operate just like the Exchange the state would otherwise have established.”

If tax credits were unavailable with respect to insurance policies purchased on an HHS Exchange, however, that Exchange would not operate anything like its State-run counterpart. The HHS-facilitated Exchanges would collapse as insurers dropped out. It would be absurd, indeed, for Congress to have insisted that HHS to set up such dysfunctional Exchanges, without the tax credits that are crucial to their operation. As the SG puts it (p.24), “[a]n Exchange without credits would be a rump Exchange bearing little resemblance to its state-run counterpart—if it could operate at all.” This wouldn’t merely be Hamlet without the Prince; it would be Hamlet without the Danish monarchy . . . more like Rosencrantz and Guildenstern Are Dead.

Stephen Brill brings the shoe leather:

I’ve now gone back and looked at my notes and can report that I interviewed 21 congressional staffers and members last year in my effort to reconstruct the day-by-day narrative of how Obamacare happened. None ever mentioned the possibility that the subsidies did not apply to the states in the federal exchange.

On the contrary, everything they told me — and all of the contemporaneous emails and other internal documents I reviewed — assumed that the federal exchange would simply be a substitute for a state exchange if a state decided not to launch its own, and that the same rules would apply. That is consistent with the instructions Democratic and Republican staff members gave to the Congressional Budget Office when they asked it to “score” (estimate the cost of) various drafts of the law, including the final version.

Perhaps most telling was Iowa Republican Senator Charles Grassley’s early take on the suit. Grassley is the Republican most intimately involved with the drafting of the law. Before finally siding with his GOP colleagues and refusing to vote for the bill, he and his staff worked closely with Democrats in the Senate, negotiating provisions and language and even adding several important provisions of their own that made it into the law.

Last June — again, as an afterthought because the suit seemed so unlikely to be taken seriously by any court — I asked Grassley about it as he walked me through the Senate dining room following an interview. At first he did not even know what I was talking about. When I explained the suit to him and asked if it was possible that the law intended to bar subsidies for people on the federal exchange, he still seemed not to understand and said that it made no sense. Put simply, he seemed incredulous. If congressional intent is the issue, someone should have taken Grassley’s deposition.

Nicholas Bagley on why the horrible consequences of the Court siding with the troofers are legally relevant:

Tough luck, say the plaintiffs: The harsh consequences of a ruling in their favor should be irrelevant to the justices, whose only job is to interpret the statutory text. In any event, the plaintiffs contend, those harsh consequences are perfectly consistent with what Congress meant the law to accomplish.

But the plaintiffs are mistaken. It’s not irrelevant that a ruling in their favor would inflict such damage. To the contrary, that fact helps us correctly interpret the statute’s text. Indeed, it shows that the plaintiffs’ understanding of that text is wrong.

That an argument this embarrassing and with such disastrous consequences has gotten this far tells you all you need to know about 21st century American politics.

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Pretending to Have a Plan is a Kind of Plan, But Not a Plan to Insure People

[ 131 ] March 2, 2015 |


I think it’s obvious that the response of federal Republicans and the vast majority of state Republicans should the Supreme Court willfully misread the law and wreck the majority of state exchanges would be “nothing.” As I mentioned last week, Jon Chait disagrees, saying that “Congress probably would be forced to act, and if it fails, many or most states would capitulate very quickly.” He cites this report from Byron York as evidence.

But as evidence that the Republicans will mitigate the damage, this couldn’t be weaker. The piece has to be evaluated in light of the obvious agenda that both York and the people using him have: to game the Court by pretending that siding with the Troofers wouldn’t really do any harm, and to set up to blame Obama for the damage inflicted by Republicans in the judicial and legislative branches. This agenda wouldn’t matter if York had the goods, but he doesn’t. The giveaway is Barrasso’s comment that “[w]e’re not going to help the law, but we’re going to help the people, so they are not left in the lurch.” If you’re not willing to help the law, then people are going to get left in the lurch and people are going to get hurt. And there’s no question about how congressional Republicans are going to resolve this tradeoff.

And just in case there was any doubt, Barrasso, Hatch and Lamar! have an op-ed that makes it as clear as can be that the “plan” is to pretend to have a plan. This is the most they’re willing to pretend to be willing to pass:

We would provide financial assistance to help Americans keep the coverage they picked for a transitional period. It would be unfair to allow families to lose their coverage, particularly in the middle of the year.

So, at most, people will get to keep their subsidies until their policy comes up for renewal, at which point the figurative death spirals and the literal deaths will start. The B/H/! plan deals with that with the typical Republican non-proposals: i.e. deregulating state insurance markets. This alternative is abysmal on the policy merits, but it’s beside the point. Republicans wouldn’t pass it, because let-them-eat-state’s-rights works a lot better as rhetoric than as policy put into practice, and in an alternate universe where the GOP would pass it Obama wouldn’t sign it.

And I don’t think there’s even much of a chance that Republicans could even pass a temporary extension. As Kilgore says, the ridiculous inability of Republicans to get the DHS founded should really give away the show here. You could also consider the Republican House immigration meltdown in 2013. Immigration reform has much broader interest-based and ideological support within the party than the insurance tax credits, the level of opposition is not as intense, the political benefits of passing something clear, and they couldn’t pass anything. You think House Republicans are going to put their political careers on the line to “save Obamacare”? Please. It’s not happening. If the Court reverses King v. Burwell, the only question is the scope of the disaster.

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Where has all the money gone? The decline in faculty salaries at American colleges and universities over the past 40 years

[ 156 ] March 2, 2015 |

Once upon a time, I began to look at the financing of law school education in America, and was amazed by what I found. Recently, I’ve been researching the economic structure of American higher education in general. My amazement is growing . . .

Everyone is aware that the cost of going to college has skyrocketed since [fill in any date going back to the middle of the last century]. Why has this happened? This post is about one possible explanation, that turns out not to have any validity at all: increases in faculty salaries. In fact, over the past 40+ years, average salaries for college and university faculty have dropped dramatically.

Salaries have increased, sometimes substantially, for a tiny favored slice of academia, made up of tenured professors at elite institutions, some professional school faculty (business, law, medicine), and most especially faculty who have moved into the higher echelons of university administration. Such examples merely emphasize the extent to which the economics of the New Gilded Age have infiltrated the academic world: the one percent are doing fabulously well, and the ten percenters are doing fine, while the wretched refuse of our teeming shores will adjunct for food.


Average salary for all full-time faculty in degree-granting post-secondary institutions (this category includes instructors and lecturers, as well as all ranks of professors) in constant 2012-13 dollars:

1970: $74,019

2012: $77,301

These figures, of course, give a very incomplete picture of the economic circumstances of the actual teaching faculty in America’s institutions of higher education.

One of the more astonishing statistics regarding the economics of our colleges and universities is that, despite the fantastic increase in the cost of attending them, there are now on a per-student basis far fewer full-time faculty employed by these institutions than was the case 40 years ago. Specifically, in 1970 nearly 80% of all faculty were full-time; by 2011, more part-time than full-time faculty were employed by American institutions of higher learning (note that the former category does not include graduate students who teach).

While comprehensive salary figures for part-time faculty aren’t available, it’s clear that their salaries are on average vastly lower than those of full-time faculty (and of course when it comes to who does the bulk of the actual teaching at many schools, the designations “full-time” and “part-time” have a distinctly Orwellian flavor). If we assume that “pat-time” faculty earn one-third as much as their full-time counterparts — and this seems improbably optimistic, given that the average compensation for part-time faculty for teaching a three-credit course is around $2,700 — that would mean that in 1970 average salaries for college and university faculty were nearly 30% higher, in real dollars, than they are today.

This an astonishing figure, given that, in the last 40 years, tuition at private colleges has more than tripled, while resident tuition at public institutions has nearly quadrupled.

So where has all that money gone? Here are a couple of plausible-sounding answers, often cited by university administrators, which turn out to have little or nothing to do with soaring college costs:

(1) Faculty benefits. While it’s true that the amount universities spent on benefits for full-time faculty members nearly doubled between 1977 and 2011, going from $11,832 to $22,754 (2012$), the vast majority of this per capita cost increase was ameliorated by the replacement of full-time faculty with “part-time” faculty, who of course are almost never eligible for any faculty benefits. (BTW, 70% of the increase in the cost of benefits for full-time faculty was accounted for by employer contributions to the cost of medical insurance plans, meaning that most of this nominal increase in total compensation for full-time faculty went straight into the pockets of third parties, i.e., insurance companies and health care providers).

(2) Back-filling cuts in state support for higher education. Total state support for higher ed in America increased from approximately $42 billion (2014$) to $80 billion between 1970 and 2014, while total enrollment in public institutions of higher education increased from 6.43 million to 14.88 million. This means state support decreased from about $6,550 to $5,375 per student. This is not a trivial decrease, but on the other hand, federal Pell Grants, which didn’t exist in 1970, totaled $33.7 billion in 2012-13. Roughly 70% of this amount went to students enrolled in public schools, meaning that total tax subsidies to public higher education are actually higher now per student than they were in 1970.

In addition, another consequence of the New Gilded Age is that college endowments have exploded: while 18 institutions had endowments of at least one billion dollars (in 2014$) in 1987, 91 had reached that level last last year, while hundreds of others had endowments in the hundreds of millions. (A particularly extreme example is provided by my alma mater. When I graduated in 1982, the University of Michigan’s total endowment was $115 million. As of last June, it was $9.7 billion, which represents a 34-fold increase in constant dollars. Over this same time, undergraduate resident tuition has more than tripled in real terms, from less than $5,000 (2014$) to nearly $15,000.)

It’s clear that, over the past few decades, American higher education has turned into a veritable money-printing machine. What’s also clear is that, with few exceptions, this massive increase in revenue isn’t going to the people who do the teaching in these institutions.

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Dronz! With the Killz!

[ 46 ] March 2, 2015 |
The Reaper returns

MQ-9 Reaper (US Air Force photo)

My latest at the National Interest takes a look at killer drones:

Why kill with drones? States have a few reasons to prefer Unmanned Aerial Vehicles (UAVs) to do their dirty work. From a political standpoint, drones would seem to carry less risk than manned aircraft; even unsophisticated foes can sometimes bring down a jet and take its pilot captive. Freed of the need to keep a human pilot alive and awake, drones can loiter on station much longer than manned aircraft, keeping more careful watch on potential targets.

Some drones kill directly; others facilitate joint military operations. This list looks at five of the most lethal drones that nations have begun to field over the last decade.

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There Is No Constitutional Obligation to Listen to Speeches

[ 169 ] March 2, 2015 |


Imagine Alan Dershowitz wrote an op-ed demanding that every last Democrat attend Benjamin Netanyahu’s speech before Congress.  Now imagine that it’s even dumber than you expected.  Not easy, I know.  Amazingly, you’re still underestimating how dumb it is:

As a liberal Democrat who twice campaigned for President Barack Obama

One line in and virtually any chance of a decent argument is gone. He doesn’t even have the decency to throw in an apocryphal cocktail party.

I am appalled that some Democratic members of Congress are planning to boycott the speech of Israeli Prime Minister Benjamin Netanyahu on March 3 to a joint session of Congress. At bottom, this controversy is not mainly about protocol and politics—it is about the constitutional system of checks and balances and the separation of powers.

Right — it’s not about Dershowitz’s substantive belief in the near-infallibility of the Israeli state. It’s about neutral principles of constitutional law. That sounds plausible!

Under the Constitution, the executive and legislative branches share responsibility for making and implementing important foreign-policy decisions. Congress has a critical role to play in scrutinizing the decisions of the president when these decisions involve national security, relationships with allies and the threat of nuclear proliferation.

It’s nice that Dershowitz is taking advantage of his emeritus status to re-read some junior high civics textbooks. Alas, none of these trusims bears the slightest relevance to the question of whether members of Congress are obligated to attend the speech of a public official they believe is trying to undermine American foreign policy.

Congress has every right to invite, even over the president’s strong objection, any world leader or international expert who can assist its members in formulating appropriate responses to the current deal being considered with Iran regarding its nuclear-weapons program.

Are we going to get to points that are actually in any dispute at some point?

Indeed, it is the responsibility of every member of Congress to listen to Prime Minister Netanyahu

Finally! Alas, once we leave banality we leave defensibility.

What the president objects to is not that Mr. Netanyahu will speak to Congress, but the content of what he intends to say. This constitutes a direct intrusion on the power of Congress and on the constitutional separation of powers.

Not only should all members of Congress attend Mr. Netanyahu’s speech, but President Obama—as a constitutional scholar—should urge members of Congress to do their constitutional duty of listening to opposing views in order to check and balance the policies of the administration.

This is absolutely insane. Congress has the authority to invite speakers. Individual members of Congress can support the choice of speaker and the content of the speaker’s message. The president can object to the choice of speaker and the content of the speaker’s message. Individual members of Congress can object to the choice of speaker and the content of the speakers message, and express this view by not attending. Members of Congress have no explicit or implicit constitutional “obligation” to listen to any particular speaker. There is absolutely no “intrusion” on congressional (or presidential) powers going on here. There are public officials expressing opposing views.

By the way, if members of Congress has an obligation to “listen to opposing views,” does Congress also have an obligation to invite a political leader who is critical of Israeli policy? All previous evidence suggests Dershowitz will forget his “principle” that all views must be presented within a given forum as soon as the alternative view differs from his.

Fortunately — after reiterating his banal and irrelevant assertions that Congress has authority over some aspects of foreign policy — Dershowitz can’t even get through the op-ed without making it clear that he doesn’t believe his own bullshit:

One should walk out on tyrants, bigots and radical extremists, as the United States did when Iran’s Mahmoud Ahmadinejad denied the Holocaust and called for Israel’s destruction at the United Nations.

So one has a solemn obligation to listen to a foreign leader’s views unless Alan Dershowitz finds them particularly objectionable. This is, in its own way, a kind of “principle,” but it has nothing to do with free speech or checks and balances or the separation of powers.

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House of Cards and Direct Job Creation Policy

[ 42 ] March 2, 2015 |


It’s pretty rare that pop culture and my dissertation intersect, so when President Frank Underwood announced his “America Works” proposal in the first episode of the third season of Netflix’s House of Cards, my ears definitely pricked up. In the show, President Underwood proposes (on the Colbert Report!):

“a new jobs program we’re calling America Works…this is a fundamentally different look at how to solve the problem of unemployment. It has the size and scope of the New Deal…This is about putting people to work and avoiding the entitlements entirely…”

This program, aimed at creating “full employment within two years” through investing in Federal “infrastructure…expanding the military, and partnerships with our friends in the private sector,” comes with a price tag: “500 billion dollars to put [10 million] people to work” coming out of “Social Security, Medicare, Medicaid, every entitlement program that’s sucking us dry.”

So let’s examine President Underwood’s new initiative, shall we?

Read more…

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Is the NCAA Cartel Defensible? (SPOILER: No.)

[ 130 ] March 1, 2015 |

Paul’s thread yesterday contained some defenses of the exploitation of athletes by NCAA rules.  These defenses were, of course, rife with factual errors, non-sequiturs, and transparent illogic because all defenses of the NCAA cartel are. 

But there are also a lot of good comments, and I think this point by Pseudonym is particularly important:

The real question at issue isn’t whether they should be compensated but whether they should be barred from being compensated, and by a national cartel with a monopoly on the path to professional status.

Apologists for the NCAA cartel tend to assume that they’re advocating for athletes being treated like other students. But this is completely untrue. What they’re defending is in fact a set of unique and extraordinary burdens being placed on athletes. Virtually no other students are banned from receiving compensation from voluntary third parties, and this is because it won’t make a lick of sense. Why on earth shouldn’t a music student be able to take a paying gig or a journalism student sell a story? Similarly, we don’t claim that scholarship students working as RAs or in the bookstore can’t be compensated, or that staff and faculty who get tuition vouchers for family members don’t need to be additionally compensated for their work. These rules aren’t about ensuring that athletes are “really” students or whatever; they’re about attempting to preserve competitive balance. And this isn’t a good reason to allow athletes to be exploited, even before we get to the fact that the NCAA doesn’t have anything remotely resembling competitive balance even with these rules.

Like most NCAA critics, I’m not arguing that student-athletes are employees subject to minimum wage laws solely for being members of teams. I’m saying that if either colleges or third parties want to pay them market value for their services, they should not forbidden from making the deals. This allows us to quickly dispense with non-sequiturs about the cross-country team or (even sillier) the Dungeons&Dragons club. Most athletic events and intramural activities don’t produce any revenue, so there’s not going to be any money for the participants beyond scholarship money, and that’s fine with me. There might be some cases in which a rich donor really wants an alma mater to have a great cross-country team and offers recruits cash on the barrelhead. And that’s fine with me — I don’t see why donors can give money to universities that enable them to hire a new Associate Vice Provost and Assistant Under Dean For Proactive Strategic Dynamism but should be prohibited from giving money to athletes directly.

Finally, defenses of the NCAA tend to be rife with a rhetorical technique we’ve discussed recently: someone with an indefensible position changing the subject to an allegedly superior alternative that isn’t actually on offer. The obvious problem for NCAA apologists that Paul’s post raises is why athletes should be forbidden cash compensation — not only by universities but by third parties — because of the Noble Ideals of Amateurism and the Sanctity of the Groves of Academe while everybody else involved with the NCAA is allowed to fill up wheelbarrows full of cash and deposit them in university-provided cars and drive off to get a university-provided oil change. One answer is to say that all of the other NCAA-related profit-taking should be stopped. The obvious problem is that it’s not going to be, and in the meantime we have to treat athletes based on the system as it is. If coaches start getting paid like associate professors of English and the NCAA gives its games to networks for free while banning advertising and ticket prices are capped at $10, we can talk about whether scholarships are adequate compensation. (We still don’t need to talk about bans on third party compensation, because these are just terrible policy under any possible system of college athletics.) Until then, players should not be forbidden from getting any compensation they’re able to negotiate.

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Rising Oceans

[ 48 ] March 1, 2015 |

Welcome to the future:

Sea levels across the Northeast coast of the United States rose nearly 3.9 inches between 2009 and 2010, according to a new study from researchers at the University of Arizona and the National Oceanic and Atmospheric Administration. The waters near Portland, Maine, saw an even greater rise — 5 inches — over the two-year period.

While scientists have been observing higher sea levels across the globe in recent decades, the study found a much more extreme rise than previous averages. Such an event is “unprecedented” in the history of the tide gauge record, according to the researchers, and represents a 1-in-850 year event.

“Unlike storm surge, this event caused persistent and widespread coastal flooding even without apparent weather processes,” the study’s authors wrote. “In terms of beach erosion, the impact of the 2009-2010 [sea level rise] event is almost as significant as some hurricane events.”

At least we are taking climate change seriously and are ready to do what it takes to save our coastlines…

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