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The Halbig Argument Is Terrible, Results-Driven Hackwork. Just Ask Its Supporters!

[ 166 ] July 24, 2014 |

In the midst of her palpable excitement over the possibility that an asinine legal argument may be used to deny tens of millions of people health care, Megan McArdle inadvertently demonstrates another reason why the argument of the Halbig majority is asinine:

On the other hand, that outcome is hardly inevitable. Law professor Jonathan Adler pointed out in a conference call yesterday that Ohio would have to amend its constitution to allow the government to establish a state exchange, and barriers in some other states are high as well. State exchanges cost millions to build and to run. States can still apply for federal money to build exchanges, Adler said, but the annual operating costs have to come out of either user fees or tax revenue. In lower population states, or poor states, that might be enough to keep legislators on the sidelines. So might the fear of primary challenges, even if the administration comes up with some easy administrative workarounds to lower the cost. [My emphasis]

This is a point I discussed with Seder yesterday. One reason that the ACA empowered the federal government to set up state exchanges was because they anticipated opposition from Republican statehouses. (So much for the other terrible conservative argument-like rhetorical gesture floating around, “Congress wasn’t worried because it expected the states to go along!”) But another was that for low-population states — including those with public officials supportive of law — the administrative costs made it more logical for the federal government to establish the exchanges. So McArdle wants us to believe that Congress expected to federal government to establish state exchanges for multiple reasons…but wanted them not to work? That’s an absurd reading of the law. And statutory construction that leads to absurd results is inept.

It’s also important to keep in mind the burden of proof here. The Fourth Circuit unanimous opinion (as opposed to the Davis concurrence) was overly timorous, but it does do a good job on this point. Under Chevron, if a statute is ambiguous the courts have to defer to administrative judgments of statutory meaning as long as the reading is reasonable. And, at a minimum, the IRS reading is reasonable; administrative agencies are not required to use bad parodies of “textualism” to read statutes. The fact that nobody responsible for the statute thinks that the Halbig interpretation is correct should also be dispositive on this point. If a construction is plainly wrong, the contrary construction really should have at least some support from the architects of the statute. And if you don’t believe me, ask the authors of the neoconfederate joint opinion in Sebelius, who also assumed that subsidies would be available on the federally-established state exchanges, because this is utterly obvious.

While we’re here, consider this:

A lot depends on the 2016 election, of course: Do voters turn out for Hillary Clinton, to protest the loss of their subsidies, or do they turn out for the Republican, to protest this unpopular, unworkable clunker of a law?

Let’s leave aside the fact that while the ACA remains unpopular, voters like the Republican alternative (i.e. get rid of the ACA either tout court or piecemeal, and after that nothing) even less and hence if healthcare is a salient issue in the 2016 elections this is excellent news for Democrats. First of all, this “unworkable clunker” has led to millions of people getting health insurance, a figure that would be substantially higher had the statute not been ineptly re-written by John Roberts to enable Republican statehouses to reject the Medicaid expansion. Which brings us to the remarkable chutzpah on display here: conservatives inventing ad hoc legal arguments of varying degree of absurdity to prevent the law from working as intended then complaining that the law is “unworkable.” Republicans are thugs with wrecking balls asserting that building construction is unworkable.

As Cohn says, “these lawsuits are simply one more attempt to cripple Obamacare and yank insurance away from millions of people, no matter what it takes.” Just so, and if Adler tries to pretend his arguments about the Rule of Law (TM) his supporters feel no need to conceal the real agenda.

Pro-Life before Birth, Anti-Ice Cream

[ 40 ] July 24, 2014 |

I know what this is like, to be attacked by lunatics from around the country whipped up by frothing goat-molesting idiots:

A Portland ice cream shop is bombarded with dozens of threats from people clear across the country after raising money for Planned Parenthood.

The owners of What’s the Scoop? in North Portland created a specialty flavor for Planned Parenthood last week that sold as a fundraiser for the organization.

It’s something the shop says they do all the time for local organizations, to give back to the city that supports them.

The backlash only began after an anti-abortion blog caught wind of the fundraiser and published the information.

Now, the shop’s phone is ringing off the hook with threatening phone calls from as far away as New York. Their email account was also inundated with disturbing messages and threats over the weekend.

“Some of the calls and e-mails are really really gross. I don’t even like to say it out loud it’s so disgusting,” said owner Jodie Ostrovsky.

“It’s a flat out attack, there’s nothing behind it but hate,” said Ostrovsky. ” To attack us on unfounded grounds, to accuse of things that we haven’t done, to accuse an organization for things they haven’t done, it’s not right.”

Ostrovsky says many loyal customers have shown their support by responding to some of the online comments and buying ice cream.

I will say this though–the single easiest and most pleasant way to support reproductive rights is through eating ice cream. I will briefly be in Portland in a couple of weeks and now I have a definite stop on my agenda.

ISIS: More Competent than the Bush Administration

[ 32 ] July 24, 2014 |

If I’m Doug Feith or Dick Cheney or Paul Wolfowitz, this is just crazy talk.

An aid worker who travels to Raqqa said the ranks of ISIS were filled with volatile young men, many of them foreigners more interested in violence than governance. To keep things running, it has paid or threatened skilled workers to remain in their posts while putting loyalist supervisors over them to ensure compliance with Islamic rules.

“They can’t fire all the staff and bring new people to run a hospital, so they change the manager to someone who will enforce their rules and regulations,” the aid worker said, speaking on the condition of anonymity so as not to endanger his work.

Sure you can fire all the staff! And then replace them with people that have theoretical fealty to outside administrators who know nothing about the country and have no qualifications other than good connections within the Republican Party, thus bringing a level of incompetence to a nation that will truly prove the United States has the interests of the people in mind. Given how brilliantly this worked in the Bush Administration, I don’t see how ISIS hasn’t learned this lesson in Syria.

Poor International Comparisons

[ 119 ] July 24, 2014 |

Somehow I don’t think Niger lowering its birth rate is going to lead to it becoming the next Singapore:

There is no mystery about the immense benefits that Niger and its neighbors would realize if they brought their birthrates under control.

The so-called Tigers in East Asia have recorded sharply falling birthrates since the 1960s. And in a recent, influential paper titled “African Demography,” Mr. Guengant and a fellow demographer, John F. May, noted, “Human capital formation investments (for example, education and health) and job creation appear to have been greatly facilitated by a rapid decline in fertility.”

In the interview, Mr. Guengant drew this conclusion: “If you don’t get a handle on birthrates, you are going nowhere. The nongovernmental organizations have not been up to the job. Everybody looks at everybody else. Nobody has the political courage. And nothing is moving.”

No mystery? Actually I think there is plenty of mystery. Even more mysterious is how this makes it past the first round of editing since there’s a whole lot more to why Niger is poor and Singapore is not than women having too many babies. Although blaming everything on poor women of color having too many babies is a favorite theme of rich white people.

Seconds of pleasure

[ 27 ] July 24, 2014 |

Updated

As a tail end boomer (graduated high school 1978) I submit I would have gone 16 for 16 on this quiz if it had covered the pop music ephemera of the 1970s instead of the 1980s. OTOH if it had covered the 1990s I probably would have gotten about four right, while for the aughts I might well have gone aught for 16 (unless it included that Gnarles Barkley song, I definitely would have gotten that one). As it is I batted 13 for 16.

Relatedly, I recognize exactly one of the ten “least obscure hit songs” since 1900, but 9.5 of the ten least obscure when adjusted for time (I’m not exactly sure what In the Mood is, which is sad given that my office is steps from the Glen Miller Ballroom).

Updated: There’s now a 70s version and YES I batted .1000. (Although I ended up having to play hangman on one, which I wouldn’t have gotten otherwise).

As for the 1990s, I did that one as well and . . . let’s just say that in retrospect I would have been thrilled to reach the Mendoza Line.

SEK’s New Internet Film School column: How the politics of Snowpiercer don’t matter if you’re an idiot anyway

[ 6 ] July 24, 2014 |

Here you go. Sample:

Much praise has been showered upon the unsubtle English-language debut of South Korean director Bong Joon-ho, Snowpiercer, but the most interesting came from an unexpected source, conservative columnist Michael Potemra, who wrote that “the film succeeds aesthetically and as pure entertainment” despite the fact that “it’s a pretty heavy-handed Marxist allegory.” Convincing your ideological opponent that your “heavy-handed” slagging of their belief system is an exceptional work of art is quite the feat. Imagine convincing the grandchild of someone who survived a concentration camp that Leni Riefenstahl brilliantly captured the pain of the German people when she had Hitler lay a wreath on the Great War memorial in Triumph Of The Will. Not going to happen.

But that is precisely what a student of film should be able to do—divorce content from form, and remove both from the historical context, in order to understand how a piece works. Which is not to say that Potemra is a student of film, because despite his praise for the “aesthetic” of Snowpiercer, he also claims that “the train is an excellent set, a realized world that manages, amazingly, to avoid claustrophobia.” Potemra seemingly prefers to remember the more well-lit second half of the film to the painfully claustrophobic opening scenes. The latter half of the film, after all, concerns the tortured choices the capitalist elite must make in order for humanity to survive—a theme much more to the liking of someone who writes for the National Review

UPDATE: If only I’d known that Jonah would publish his review the same day I did mine!

If You Support Alternative Energy, You Support Enormous Tubs of Ocean Lard

[ 30 ] July 23, 2014 |

zeehond-bram-platvis-3969-sw

Seals have far surpassed Americans in their support for offshore wind energy:

The scientists observed eleven harbor seals outfitted with GPS tracking tags in the North Sea frequenting two active wind farms, Alpha Ventus in Germany and Sheringham Shoal off the southeast coast of the United Kingdom. One seal even visited 13 times, according to a report published this week in the journal Current Biology.

The wind turbines make up a grid. When foraging for food, the seals moved “systematically from one turbine to the next turbine in a grid pattern, following exactly how the turbines are laid out,” says study author Deborah Russell of the University of St. Andrews. “That was surprising to see how much their behavior was affected by the presence of these artificial structures and how they could actually adapt their behaviors to respond to that.”

If the Republicans nominated a seal for president in 2016, it would be an improvement over the current possible candidates.

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

[ 75 ] July 23, 2014 |

lawley

[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.

Apple Treats Labor Like Dirt

[ 89 ] July 23, 2014 |

Given that Steve Jobs was a sociopath and given the labor conditions at overseas factories where Apple products are made, it’s not at all hard to believe that the company would treat their U.S. labor horribly:

A state court in California has granted class certification to nearly 21,000 current and former Apple employees over claims that the company failed to provide timely meal and rest breaks as required by the law, and sometimes denied workers rest breaks altogether.

In a ruling late Monday, Judge Ronald S. Prager of the Superior Court of California for the County of San Diego granted the class certification for a large group of retail employees and workers at corporate headquarters.

Under California law, employers are generally required to provide 30-minute lunch breaks within an employee’s first five hours at work each day and provide a 10-minute rest break every four hours or major fraction thereof. In addition, California law requires employers to provide a second rest break for shifts that run six to 10 hours, and Judge Prager wrote that the evidence showed that Apple had failed to authorized second rest breaks under these circumstances.

They Criticize What They Can’t Understand

[ 89 ] July 23, 2014 |

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.

Freedom Summer and Union Organizing

[ 1 ] July 23, 2014 |

Freedom Summer was 50 years ago this year and its anniversary has been pretty underreported. Anyway, this is an interesting piece from one of the white organizers about the relationship between organizing civil rights workers and union organizing in Mississippi. Obviously, biracial unionism did not exactly take hold in Mississippi or the rest of the South but still, there are potentially useful lessons here.

Abolishing the Air Force, 80s Style

[ 12 ] July 23, 2014 |

My latest at WiB looks at a proposal to ditch the Air Force from 1982:

In 1982 John Byron—then a Navy commander and submarine skipper—argued that the United States should reorganize its military around three branches, eliminating the Air Force and creating a new Strategic Deterrent Force.

Reorganization of the U.S. Armed Forces” was the first strategic study co-published by the National War College and the National Defense University Press. It made the rounds among defense analysts at the time. It attracted some attention from the defense reform community and an audience in some of the professional defense journals, including Proceedings and Early Bird, the much-beloved Pentagon news roundup that ceased publication in 2013.

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