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Unlike Its Opponents, People Who Supported the ACA Wanted it to Work

[ 32 ] July 29, 2014 |

Josh Blackman offers another attempt to argue that Congress actually intended the federal exchanges the ACA established not to work. Inevitably, it’s transparently wrong because like many ideological opponents of the ACA he appears to be incapable of understanding what proponents of the ACA were actually trying to accomplish.

Any such argument, as we know, starts with the nearly insurmountable hurdle of ascribing an intent to the drafters and enacters of the ACA that (aside from some stray comments from one consultant that 1)do not suggest that a denial of subsidies would be permanent and 2)are inconsistent with what the consultant assumed in 2010 and explicitly argues in 2014) is wholly rejected by said drafters and enacters and is held only by the most fanatical opponents of the ACA. Blackman, needless to say, cannot adduce any actual supporter of the ACA who agrees with his interpretation, a rather serious problem since the bill was written and enacted by supporters, not opponents. Instead, he tries to infer an intent to create federal exchanges that wouldn’t work from the structure of the Medicaid expansion:

As further evidence of legislators’ state of mind, we could take the fact that the Affordable Care Act’s Medicaid expansion worked exactly on this theory of carrots and sticks. Uncooperative states, and their residents, would be punished.

In 2010, Arizona inquired about what would happen if it declined to expand its Medicaid coverage under Obamacare. The federal government replied that it would eliminate its contribution to the state’s Medicaid budget entirely. The Department of Health and Human Services sent Arizona Governor Jan Brewer an ominous and pointed letter: “In order to retain the current level of existing funding, the state would need to comply with the new conditions under the ACA.” This observation was followed by a stark warning: “We want you to be aware that it appears that your request…would result in a loss of [all] Medicaid funding for Arizona.”

This argument fails on multiple levels:

  • It completely fails to understand the point of cooperative federalism.  The legislators who voted for the ACA were not trying to “punish” states or their citizens — they were trying to offer a good enough deal that states would agree to expand Medicaid coverage.  The didn’t think that the citizens of Arizona would be punished; they assumed Arizona would take the money, just like it takes the money to establish a state drinking age.
  • The original structure of the Medicaid expansion also makes clear how nonsensical the Halbig interpretation of the ACA is.  Asserting that the ACA intended the federal exchanges not to work suggests that the legislators assumed that the vast majority of states would establish exchanges and were surprised by the scope of the opposition at the state level.  But the fact that Congress made all Medicaid funding contingent on accepting the expansion indicates that Congress fully anticipated substantial state resistance.  If Congress didn’t think that offering a huge pool of money funding more than 90% of the expansion was sufficient incentive for some states to take it, why on earth would it think that the mild disincentives inherent to not setting up state exchanges (citizens do not get subsidies…but are also therefore exempt from the mandate) would be sufficient?  The answer, of course, is that it didn’t.  It assumed that some states would be unwilling and/or unable to establish exchanges.
  • Which brings is to the final crucial point: Blackman cannot explain why Congress bothered to authorize the federal government to establish the state exchanges at all.  If the federal backstop was absent, then the Blackman/Halbig interpretation would be plausible.  But Congress did create a backstop, because it assumed that some states wouldn’t establish exchanges, but wanted the exchanges to be operative in all 50 states.  Blackman is asking us to believe that Congress correctly anticipated that some states wouldn’t establish exchanges, created a mechanism that would correct this problem, but then intended for the solution not to work.  To restate this argument is to refute it; it’s an absurd reading of the statute.  Which is why (one very ambuguous and repudiated coming and going exception aside) no supporter of the statute agrees with it.

I’ve said it before and I’ll probably have to say it again: reading people who are fundamentally hostile to the ACA in principle trying to explain its objectives is like watching an elephant trying to play a toy piano.  Projection is a poor means to determine legislative intent.

…see also.  And definitely read Beutler on Halbig troofers.

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Today’s Frivolous Anti-ACA Lawsuit

[ 56 ] July 29, 2014 |

One of the endless series of ad hoc legal challenges to the ACA is an argument (touted by, among others, syndicated columnist William F. George) that the ACA is unconstitutional because it violated the Origination Clause (which requires “Bills for raising Revenue” to originate in the House.) A unanimous D.C. Circuit panel has properly rejected this argument:

The purposive approach embodied in Supreme Court precedent necessarily leads to the conclusion that Section 5000A of the Affordable Care Act is not a “Bill[] for raising Revenue” under the Origination Clause. The Supreme Court’s repeated focus on the statutory provision’s “object,” and “primary purpose,” makes clear, contrary to Sissel’s position, that the purpose of a bill is critical to the Origination Clause inquiry. And after the Supreme Court’s decision in NFIB, it is beyond dispute that the paramount aim of the Affordable Care Act is “to increase the number of Americans covered by health insurance and decrease the cost of health care,” not to raise revenue by means of the shared responsibility payment.

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Will Executions By Torture Threaten the Death Penalty?

[ 86 ] July 29, 2014 |

You’ve probably heard about the latest horribly botched execution:

Wood’s execution dragged on for so long that at the midpoint, his lawyers filed an emergency appeal to stop the procedure and called on Justice Anthony M. Kennedy to intervene. Wood died before the federal court could respond, and Kennedy turned down the lawyers’ request. After Wood was pronounced dead, the Arizona Supreme Court ordered that the state “preserve any drug labels and unused drugs pertaining to the execution of Mr. Wood.”

The two-hour execution was just the latest debacle made possible by an ever more familiar combination of state secrecy, untried protocols being tested for the first time on live human beings, and a judicial system that can’t quite make up its mind about how much gasping and coughing is reasonable in a state-sanctioned killing. The new wrinkle is that this time we must endure the spectacle of witnesses to the execution fighting over how much suffering they saw.

Another exhibit Kozinski can use in his campaign to bring back the firing squad.

The optimistic take is that given the choice between a more visibly brutal death penalty and abolition, the public will choose the latter. I’m not sure. Most states have either abolished the death penalty or almost never use it. In the relatively small minority of states that are responsible for the vast majority of executions…I’m not sure that explicit brutality or botched executions will matter. I hope I’m wrong.

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Nixon on Panda Sex

[ 18 ] July 28, 2014 |

I’m not saying this is on the level of LBJ ordering pants, but Richard Nixon talking about panda mating patterns is not something you expected to hear when you woke up this morning. And look, he got his information from Bob Haldeman, so you know it’s reliable!

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Open Comment on Comment Registration

[ 208 ] July 28, 2014 |

All,

We’ve now completed a week-long comment registration trial.  This post should serve as an open thread for how this week has gone.  Note that I’m still processing a few password requests, so if you can’t register (and note that WordPress registration is different than LGM registration) please let me know (address on far right sidebar).  With respect to metrics, no noticeable change in traffic/usage, commenting down by about 30%.

Best,

Management

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Virginia Is For Lovers

[ 68 ] July 28, 2014 |

Another domino falls.

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The Hillary Juggernaut

[ 177 ] July 28, 2014 |

The fundamentals in 2016 are unbelievably in favor of a Hillary blowout.

Obviously things can change of course.

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Fault

[ 400 ] July 28, 2014 |

Where does the fault lie for the problems between Israel and Palestine? As John Judis correctly points out, it lies heavily with Israel. In part:

Israel is one of the world’s last colonial powers, and the Palestinians in the West Bank and Gaza are its unruly subjects. Like many past anti-colonial movements, Hamas and Fatah are deeply flawed and have sometimes poorly represented their peoples, and sometimes unnecessarily provoked the Israelis and used tactics that violate the rules of war. But the Israeli government has continued to expand settlements in the West Bank and East Jerusalem and to rule harshly over its subjects, while maintaining a ruinous blockade on Gaza. That’s the historical backdrop to the events now taking place.

Israel’s settlers in the West Bank and East Jerusalem now number over 500,000. Palestinians are allowed to build on only about 40 percent of the West Bank. Settlers enjoy Israeli citizenship and rule of law. The Palestinians are under harsh military rule. No Palestinian may travel abroad without Israeli approval. There are 542 roadblocks impeding the movement of Palestinians, but not of settlers on the West Bank. Water rights are restricted. The settlers consume about six times more water than the 2.6 million Palestinians. Settler attacks on the Palestinians, which the police often ignore, have steadily increased. The number of “price tag” attacks spiked by 300 percent this last spring during the peace talks.

Prime Minister Benjamin Netanyahu blamed Palestinian Authority President Mahmoud Abbas for the failure to end the occupation through a two-state solution, but Netanyahu and his administration undermined the negotiations. That was the initial conclusion that Secretary of State John Kerry’s negotiators conveyed to reporter Nahum Barnea immediately afterwards. As Ben Birnbaum and Amir Tabon recounted, Netanyahu made some concessions to Kerry last winter, but he still wouldn’t agree to any limits on an Israeli military presence in a future Palestinian state; and he wouldn’t budge on East Jerusalem or on the borders of a Palestinian state. And while the negotiations were occurring, Netanyahu and his administration reneged on a promise to release Palestinian prisoners and accelerated housing development in the West Bank and East Jerusalem. His administration announced plans for almost 14,000 housing units, or 50 a day, during the nine months of negotiations.

The reality is that Israel is indeed a colonial power and acts as such toward its subjugated peoples. That the Israeli state evolved in response to one of the greatest acts of horror ever committed in the human race is especially ironic given the nation’s behavior toward the Palestinians. Unless Israel’s supporters are willing to say that Europeans keeping them in overcrowded ghettos with no jobs or water or hope, similar to what they have done in Gaza and the West Bank is OK, they are massive hypocrites.

I really wish I could see Martin Peretz’s face as he read this article in his former magazine. Although it is countered by this “moral defense” of Israelis killing civilians, which is gross and morally bankrupt.

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The Carceral State

[ 104 ] July 28, 2014 |

It’s entirely possible that in 100 years, historians will look back on the early 21st century United States and remark not only on the racist prison system that shows how little advanced we are from the Jim Crow era but also how little most Americans, even most liberals, really cared about the issue. Yet the imprisonment of millions is a really defining characteristic of the country today:

Mass incarceration’s effects are not confined to the cell block. Through the inescapable stigma it imposes, a brush with the criminal-justice system can hamstring a former inmate’s employment and financial opportunities for life. The effect is magnified for those who already come from disadvantaged backgrounds. Black men, for example, made substantial economic progress between 1940 and 1980 thanks to the post-war economic boom and the dismantling of de jure racial segregation. But mass incarceration has all but ground that progress to a halt: A new University of Chicago study found that black men are no better off in 2014 than they were when Congress passed the Civil Rights Act 50 years earlier.

The common retort is that people of color statistically commit more crimes, although criminologists and scholars like Michelle Alexander have consistently found no correlation between the incarceration rate and the crime rate. Claims about a “black pathology” also fall short. But police scrutiny often falls most heavily on people of color nonetheless. In New York City alone, officers carried out nearly 700,000 stop-and-frisk searches in 2011. Eighty-five percent of those stops targeted black and Hispanic individuals, although they constitute only half the city’s population. Overall, NYPD officers stopped and frisked more young black men in New York than actually live there. Similar patterns of discrimination can be found nationwide, especially on drug-related charges. Black and white Americans use marijuana at an almost-equal rate, but blacks are 3.7 times more likely to be arrested for possession nationally. In Pennsylvania, Illinois, and other Midwestern states, that arrest disparity jumps to a factor of five.

The collective impact of these policies is as rarely discussed as it is far-reaching. Mass incarceration touches almost every corner of modern American society. Any meaningful discourse on racism, poverty, immigration, the drug wars, gun violence, the mental-health crisis, or income inequality is incomplete without addressing the societal ramifications of imprisoning Americans by the millions for long stretches of time with little hope for rehabilitation.

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Public Disagreement Is Not Intimidation

[ 82 ] July 28, 2014 |

godfather-horse-scene-40308“This blog post made me look ridiculous!  And a Chief Justice of the United States cannot afford to be made to look ridiculous!”

Not that I can blame Halbig defenders from wanting to create diversions from the argument on the merits, but really:

Little did I know that within hours of the D.C. Circuit’s decision, Ezra Klein voxsplained how the Chief Justice would not rule in Halbig’s favor because horrible things would happen. Or did Ezra voxtimidate the Chief Justice Justice not to rule in Halbig’s favor because horrible things would happen…

There is a blurred line between voxsplaining and voxtimidating, that pundits walked delicately in the runup to NFIB v. Sebelius. Now, it is a well-worn path. And there is one key difference. We know the Chief blinked in 2012. Why should we think he will act any differently in 2015. Whether the full court press on the Chief  worked in 2012, it is certainly worth a shot again.

McArdle has tried a similar technique of preemption (“This is the Washington equivalent of the old lady in the movies who puffs out her bosom, settles her pince-nez higher up on her nose, and huffs, ‘You wouldn’t DARE!’”)   And we saw similar arguments in the run up to Sebelius.

But this is all silly, and is also irritating because it implies bad faith on the part of people making both predictive and normative arguments that do not conform to the preferences of the 25% of federal judges who have so far bought the most recent ad hoc challenge to the ACA.  As it happens, I disagree with Ezra about the likelihood that the Supreme Court will uphold Halbig (or, more likely, reverses the D.C. Circuit once it hears the case en banc and laughs the argument out of court.)  I think Trende and Yglesias have a much more accurate read on the chances that the Court would destroy the private exchanges in a majority of states.  Nonetheless, I see no reason to believe that Ezra isn’t arguing what he really thinks, and his expressing his views on the matter does not constitute “intimidation” or “Voxtimidation” or even “Kleintimidation.”   Fatally absent from such arguments are identifications of what precise form of leverage pundits have over Supreme Court decision-making.  (There’s the additional problem that the theory fails to explain the vast majority of Roberts’s jurisprudence.)

I suppose another implication here is that some critics of Hilbig have been a bit shrill.  (I certainly plead guilty.)  But this isn’t “intimidation”; it’s “people who strongly disagree for obvious reasons.”  The consequences of Halbig, as the majority conceded, would be serious and dire if it is upheld.  The IRS, which is by law owed deference over reasonable judgments, has interpreted the law as making the subsidies available on federally-established state exchanges.  The majority had a high burden of proof to overcome, and yet Halbig‘s reading of the statute is nonsensical on its face.

And, again, there’s the striking absence of people involved in the legislation who agree with the court’s ruling.  The fact that no supporters of the law were persuaded by the commerce clause arguments against the ACA doesn’t mean much in itself; supporters of the ACA didn’t write or ratify the relevant constitutional provision, and it was theoretically possible that they were construing it too broadly.  But Halbig is a statutory interpretation case — the text in question was written and enacted exclusively by supporters of the law. It was by people who wanted it to work, not by the people inventing one legal argument after another to try to make it fail.  If the statute unambiguously denied subsidies to people obtaining insurance on the federally-established exchanges — and this is the standard Chevron requires — don’t you think this reading would have, at a minimum, a substantial constituency among those involved in drafting and ratifying the ACA?  But, once, again, here is an exhaustive list of this highly relevant group who have ever expressed anything that could be construed as agreeing with the Halbig reading:

  • Jonathan Gruber in two YouTube clips from 2010 2012.

Here is everyone in that category who disagrees:

  • Jonathan Gruber in his contemporaneous data calculations
  • Jonathan Gruber in 2014
  • Everyone else

Given this context, it is not exactly surprising that the assertion that the ACA unambiguously established a federal fallback that was designed to fail has met with strong resistance.  This intense disagreement is not strategic; it’s genuine, and it’s not some kind of bad form to express it.  If supporters of this lawsuit think that they can attempt to deny health insurance to millions of people with a remarkably feeble argument and have it treated as a clever legal puzzle, they’re going to be very disappointed.

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The New Gilded Age

[ 16 ] July 28, 2014 |

For the plutocrats, the real outrage is that income inequality hasn’t grown by more. Give it another 5 years:

Economic inequality in the United States has been receiving a lot of attention. But it’s not merely an issue of the rich getting richer. The typical American household has been getting poorer, too.

The inflation-adjusted net worth for the typical household was $87,992 in 2003. Ten years later, it was only $56,335, or a 36 percent decline, according to a study financed by the Russell Sage Foundation. Those are the figures for a household at the median point in the wealth distribution — the level at which there are an equal number of households whose worth is higher and lower. But during the same period, the net worth of wealthy households increased substantially.

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The Seafarers

[ 11 ] July 27, 2014 |

I was unaware that Stanley Kubrick had made a documentary about the Seafarers International Union in 1953. I have not seen it, but it is now available here, although I will have to wait until I am back in the U.S. to watch it.

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