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The Moops Did Not Invade Spain, Orrin Hatch Every Republican Member of Congress Edition

[ 34 ] January 23, 2015 |

Orrin Hatch argued in a Wall Street Journal op-ed in 2010 that the ACA’s requirement that states set up exchanges “is not a condition for receiving federal funds.” Ian Millhiser explains the significance of this:

Nevertheless, Hatch does make an important claim about the law in his WSJ op-ed. A state’s choice to set up and operate its own exchange “is not a condition for receiving federal funds.” That is the Obama Administration’s position in King v. Burwell. It is also the correct position.

As a legal matter, Hatch’s statement has less significance than similar statements by Republican Governors Scott Walker (R-WI), Bob McDonnell (R-VA) and Dave Heineman (R-NE), all of whom have also contradicted the central claim underlying the King litigation. The Supreme Court’s decision in Arlington Central School District v. Murphy gives special significance to statements by state officials who are in the process of deciding whether to take a particular action that allegedly triggers the payment of federal funds.

Nevertheless, Hatch’s statement is significant for two reasons. The first is that he made it in the context of an op-ed whose entire purpose was to lay out the case for why Obamacare should be destroyed by the courts. And yet, even when he was engaged in this very specific task, he didn’t just fail to notice what he now claims — that the law itself gives each state the power to destroy much of the law within their own borders — he directly contracted his own argument in his King brief.

The second reason is that, under the Supreme Court’s decision in Chevron v. Natural Resources Defense Council, courts owe extraordinary deference to federal agencies’ construction of a statute unless that construction defies the law’s unambiguous text. It is hard to believe that the law unambiguously denies tax credits to people in many states when four staunch enemies of the law — Hatch, Walker, McDonnell and Heineman — all shared Barack Obama’s interpretation of Obamacare.

Which makes the fact that a minimum of three justices are going to accept the troofer reading — one they themselves rejected, just like Hatch! — while pretending that Chevron is being applied all the more abominable. In fairness, Ian doesn’t deal with the fact that there are only three people properly authorized to explain what this law means: Jon Adler and Michael Cannon after the previous ad hoc theories deployed in their fanatical campaign to get the ACA vetoed by the judiciary failed, and President, Speaker of the House, Senate Majority Leader, Secretary of State, Governor of all 50 states, and Food and Beverage Director of the Tangiers casino Jonathan Gruber. (Note: Gruber’s interpretations valid only in 2012, not 2010 or 2014.)

…and it’s not just Hatch, it’s essentially every Republican member of Congress:

In a perverse way, the absurdity of the challengers’ argument is it’s greatest strength. Because the scheme they insist Congress intentionally created was so far from Congress’ mind, it’s hard to find contemporaneous evidence that Congress absolutely didn’t mean to condition these subsidies. In much the same way, we can’t be sure that Congress didn’t mean to denominate those subsidies in Canadian dollars. A $ isn’t necessarily a $ after all.

But this familiar line of defense crumbles here. It is facially plausiblethough incorrectto posit that CBO believed subsidies would be available everywhere because it simply assumed every state would set up an exchange. But that assumption didn’t hold in April 2011. Something else must explain CBO’s 1099-repeal score, and the Republican votes that followed it. What we have in the form of this bill is clear evidence that everyone who voted for it (including every single Republican, save the two GOP congressmen and one GOP senator who weren’t present) understood the Affordable Care Act to provide subsidies everywhere.

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Not A Dime’s Worth Of Difference!

[ 100 ] January 23, 2015 |

Sure, Republicans are taking over the Senate, but can you really tell the difference these days?

Wednesday was a big day for Sen. James Inhofe (R-OK). In the morning, he officially took the gavel as chairman of the Senate’s Environment Committee. In the afternoon, he took the Senate floor for a long speech about how human-caused climate change is fake.

In sum, the speech has everything. References to the oft-debunked “ClimateGate” stolen e-mail “scandal”, a poster of a Time Magazine cover from 1974 claiming an ice age is coming, and multiple references to former Vice President Al Gore. It has a mention of a survey of weather-casters who think global warming is caused by natural variation, but does not mention that weather-casters are not climate scientists. It even includes the claim that the U.N. Intergovernmental Panel on Climate Change “started” the whole idea that climate change is happening, even though the idea was conceived about 200 years ago.

Don’t worry — I’m sure the right billionaire in the Senate could get Inhofe turned around right quick. And, anyway, I’m sure Inhofe is an outlier in the sensible Republican conference.

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Canonizing the Colonizers

[ 72 ] January 23, 2015 |

Pope Francis has decided to make Junipero Serra a saint. Serra was a Franciscan in California who founded many of the California missions in the 18th century, effectively making him an agent of colonization as well as a converter of Native Americans to Catholicism. Building these missions meant forced labor from Native Americans while the conversion process obviously demonstrated a lack of respect for indigenous cultures as well as the compulsion of these conversions. Physical abuse of Native Americans was common, with many recorded beatings and whippings. A lot of indigenous people in California are very upset about the choice to canonize Serra.

Serra is far from the only Catholic saint involved in the colonization process. In Colombia earlier this month, I visited the church dedicated to Pedro Claver, a priest who converted slaves. Being Latin America, his remains are proudly displayed on the church altar.


The patron saint of slaves supposedly baptized 300,000 African slaves. Of course in doing so, he was part of a system that was capturing Africans, bringing them to the Americans, and working them to death on sugar plantations.

Claver was canonized in 1888 so perhaps we can chalk this up to a Catholic church in a different era. But canonizing Serra today, doesn’t that provide tacit approval of a colonization project that led to the repression and genocide against native peoples throughout the Americas? Of course, the Pope is from Argentina, which has far from apologized for its own genocidal project.

Ultimately for the church, it still thinks of the forced conversions of the colonization project as a great thing, something for which one deserves sainthood.

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Civility: The New Arbitrary Academic Standard

[ 45 ] January 23, 2015 |

This should depress any academic:

A new survey of chief academic officers is out from Inside Higher Education. Among the findings: Provosts really care about civility and think it should be part of the framework for hiring and tenure.

I see this as potentially troubling. When the Steven Salaita controversy broke, I wrote a piece for the Chronicle called “Don’t Speak Out,” in which I read the Salaita affair through the lens of my interest in public engagement for academics. I said that the lesson for academics was that if you ever wanted a job, or might want to move from one job to another, don’t have strong opinions about things.

We need more public writing, not less. We need to open pathways for more academics to speak out in public, not punish Salaita for doing so in ways that have provoked such strong feelings. But we can’t ask scholars to embrace the risks of engagement in a system in which partisan bloggers and local papers can push timid administrators to fire, or in this case unhire, academics who leap into public debates.

In theory, Provosts agree with this and support public scholarship. At the same time, from IHE:

Generally, provosts expressed concern (with little difference by sector) about civility. Asked if they were worried about “declining civility among higher education faculty,” 27 percent said that they were very concerned and 44 percent were somewhat concerned. Only 5 percent were not concerned at all.

But in more detailed questions, provosts had varying perspectives on where faculty civility is lacking.

Generally, they feel more confident of faculty civility with regard to students than to fellow professors or (in particular) administrators. And provosts typically believe that their institutions display more civility than higher education as a whole. (A pattern in Inside Higher Ed surveys of administrators is that they think their institutions are doing better in many respects than the rest of higher education.)

In short, provosts act like the CEOs they imagine themselves. Any faculty that speaks against the mission or says anything that could be considered “uncivil,” which in provost speak means “anything that could make me look bad,” does not deserve any protections and in fact should be subject to firing. Increasingly, for provosts all this matters more than scholarship, teaching, or service. “Does the faculty member reflect well on my leadership?” That’s the question. And that should put a chill in any academic who either questions the administration or has a public persona.

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Travails of a Starter Carrier

[ 15 ] January 23, 2015 |

The South China Morning Post has a very interesting series on the purchase of the Ukrainian Varyag, the half-constructed aircraft carrier hulk that eventually became Liaoning, China’s first operational carrier. Some thoughts up at the Diplomat:

China’s acquisition of Varyag was contingent on a series of often improbable events. How would China’s carrier program have worked out differently if Ukraine has rejected the purchase, or the Turks had refused transit of the ship, or if the hulk had sunk along the way (a real possibility at the time)?

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Plutocrats: More Effective Behind The Scenes

[ 77 ] January 23, 2015 |

Tom Steyer won’t be running for Barbara Boxer’s Senate seat in California.

Steyer seems like a good guy, a committed environmentalist, but this is almost certainly excellent. news. for. Democrats.  First, as Rebecca Leber says, his money is almost certainly better spent on a variety of swing races rather than on a safer-than-safe blue seat.  And then there’s this:

Neither did Steyer, which doesn’t exactly solve that problem. When he started looking at the race, Steyer let it be known, through aides and memos, that he’d serve one term if he couldn’t get his agenda through the Senate. If carbon dioxide output wasn’t decreasing, if tax loopholes hadn’t been closed, he’d be out in 2022. His pre-campaign network was even called Team Cincinnatus, named for the dictator of the early Roman Republic who willingly gave back power as soon as his job was done.

Preemptively declaring a dramatic flounce should you, as a freshman senator, fail to achieve a very ambitious progressive agenda during a period in which the Republicans are nearly certain to control the House for 2/3rds of the time…yeah, I think this is someone the Senate caucus can really do without.

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The Problem is Structural

[ 58 ] January 22, 2015 |

An update on Major General Post:

A prominent lawmaker is calling for an investigation of a major general’s reported comments blasting officers as treasonous if they work with Congress against Air Force plans to retire the A-10.

Maj. Gen. James Post, vice commander of Air Combat Command, reportedly told officers at a recent meeting of the Tactics Review Board at Nellis Air Force Base, Nevada, that they were not to speak with Congress about the service’s attempt to retire the attack jet.

“Anyone who is passing information to Congress about A-10 capabilities is committing treason,” Post is quoted by former airman and blogger Tony Carr as saying.

Post reportedly prefaced his comments by saying “if anyone accuses me of saying this, I will deny it,” according to Carr’s “John Q. Public” blog.

Senate Armed Services Committee chairman Sen. John McCain, R-Ariz., who wants to keep the A-10 in service, has called on Air Force Secretary Deborah Lee James to investigate the reported comments, McCain spokesman Dustin Walker told Air Force Times.

A-4 McCain is right on the particulars, but the problem isn’t with any one individual. Post voiced (in clumsy terms) what the vast bulk of the Air Force hierarchy is thinking about the A-10. The USAF has made its case on the Warthog openly, and strictly on the merits it’s not that awful of a case; the A-10 has a limited future because of its inability to survive in contested airspace. Hell, if any of the Strelas that ISIS fired at A-10s a few days ago had found their mark, the entire fleet would likely have been withdrawn from action.

The problem is that the A-10 represents the only palpable commitment that the USAF has to the close air support mission, and that no one trusts the USAF to pay much attention to the mission when the A-10 is gone. And that problem stems from the fact that we’ve badly misorganized our military forces around the idea that one service should control stuff that flies (as long as it has fixed wings and doesn’t fly off aircraft carriers), regardless of what those planes are supposed to do. And senior officers have every incentive to focus on the parochial needs of the service, rather than on the contribution the service makes to the joint mission.

And, I should hasten to add, there’s a solution…

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Happy Birthday Roe v. Wade!

[ 49 ] January 22, 2015 |

Links to various arguments about why Roe was correctly decided and why it matters can be found here.

Via Edroso, Mollie Hemmingway is concern-trollingly upset that a Republican abortion ban based on evidence-free “fetal pain” arguments has been briefly set aside by the House.  (Another anti-abortion bill passed today.)  The argument begins, as so many such arguments do, with a risible misunderstanding of the decision being attacked:

Today marks the 42nd anniversary of the Supreme Court legalizing abortion on demand throughout pregnancy.

Well, I happen to have Roe v. Wade right here, and:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

And, of course, if we consider Roe v. Wade as it’s been subsequently modified by the Supreme Court, many American women regrettably do not have access to “abortion on demand” at any stage of pregnancy. But Hemmingway is wrong even about Roe circa 1973.

And then there’s this:

As my colleague David Harsanyi has noted, we have a Republican Congress that doesn’t believe it’s competent enough to make a case against infanticide.

Odd — Hemmingway (absurdly) thinks that second trimseter abortions are like “infanticide.” But I must have missed the harsh criticism of the Republicans who support this legislation, which is plainly incompatible with this view. Here are the criminal sanctions in the proposed, temporarily withdrawn legislation:

Subjects individuals who violate this Act to a fine, imprisonment for not more than five years, or both. Bars prosecution of a woman upon whom an abortion is performed in violation of this Act for violating or conspiring to violate this Act.

Five years seems awfully lenient for an alleged child-murderer. And even more to the point, women who commit what Hemmingway is pretending to consider “infanticide” are subject to no criminal sanctions whatsoever. This is instructive first of all because it inescapably reflects a belief that women who obtain abortions lack moral agency. And the fact that Hemmingway does not even find the fact that women are wholly exempt from criminal sanction worth mentioning makes it clear that when she’s throwing the term “infanticide” around she’s bullshitting, which is highly offensive given the context. But let’s be frank — very few people really think that second trimseter abortions are anything like infanticide. Statutes based on this belief would be extremely unpopular and unenforceable. I know it, you know it, and House Republicans know it. Which is one reason why safe and legal abortions should be accessible to all American women.

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Environmental Policy History Reading List

[ 28 ] January 22, 2015 |

I received a request for a list of environmental policy/history books. I make no claims to being an authoritative source here and others will have different books, but here are 10 books on the history of environmental policy I find useful. I am thinking of these terms broadly as well. In no order:

1. Samuel Hays, A History of Environmental Politics since 1945.
Pretty self-explanatory, good overview of the issue from the dean of environmental policy history.

2. James Morton Turner, The Promise of Wilderness: American Environmental Politics since 1964
An excellent recent overview of wilderness politics after the Wilderness Act.

3. Christopher Wells, Car Country: An Environmental History
How did we become a car-centric society and what are its environmental implications?

4. Andrew Hurley, Environmental Inequalities: Class, Race, and Industrial Pollution in Gary, Indiana, 1945-80.
Who has access to clean nature and who does not? Guess what–it’s about race.

5. Karl Jacoby, Crimes against Nature: Squatters, Poachers, Thieves, and the Hidden History of American Conservation
What were the politics and actions behind the creation of hunting law and national parks?

6. Nancy Langston, Toxic Bodies: Hormone Disruptors and the Legacy of DES
A key book about the science and policy behind synthetic chemicals and women’s bodies

7. Donald Worster, Rivers of Empire: Water, Aridity, and the Growth of the American West
Water policy, which we must understand to talk about the West.

8. Richard White, The Organic Machine: The Remaking of the Columbia River
How policymakers and industry completely reshaped a river and its ecosystem.

9. Joseph Taylor, Making Salmon: An Environmental History of the Northwest Fisheries Crisis
Fisheries policy and its many mistakes is hugely important for environmental policy

10. Randy Shilts, And the Band Played On: People, Politics, and the AIDS Epidemic.
A great piece of journalism rather than a history but it holds up as an indictment of the abject failure of the Reagan Administration during the greatest public health crisis of the second half of the 20th century.

I find this list slightly dated, which surprises me since I keep up on the historiography pretty well. It’s also I should note quite different than what I think the best books of environmental history are, although these are all good. Strictly thinking about policy.

I have no doubt there will be many great recommendations in comments as well, including books I probably just forgot.

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The Sound of Silver

[ 11 ] January 22, 2015 |

separate_vocations_28In some of today’s least surprising political news:

Federal authorities are expected to arrest Assembly Speaker Sheldon Silver on corruption charges Thursday, the New York Times reported overnight.

The newspaper says it is unclear what charges the Manhattan Democrat would face but say the case stems from “payments that Mr. Silver received from a small law firm that specializes in seeking reductions of New York City real estate taxes.”

It is unclear how much Silver received, the newspaper reported.

And, while we’re here, let’s remember one of Shelly’s greatest hits:

In other news, a judge ruled yesterday that two of those former female staffers can proceed with a lawsuit against the state. The plaintiffs allege, quite reasonably, that the state — and specifically Assembly Speaker Sheldon Silver — knew Lopez was a hands-y creep and failed to protect them from him. Silver had already signed off on two settlements with former Lopez staffers so he had to know that he was a creepy scumbag.

More useful context here.

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The Civil War Collection

[ 36 ] January 22, 2015 |

Here’s some interesting newly available books on and about the Civil War from the 19th and early 20th centuries. They include Pain and Anaesthetics: An Essay, from 1862, by Valentine Mott. Of course, the piles off mangled bodies beyond taxed the limited medical facilities of the day and led to perhaps 100,000 or so deaths that would not have happened a few decades later. On what made anesthesia so great:

How often, when operating in some deep, dark wound, along the course of some great vein, with thin walls, alternately distended and flaccid with the vital current – how often have I dreaded that some unfortunate struggle of the patient would deviate the knife a little from its proper course, and that I, who fain would be the deliverer, should involuntarily become the executioner, seeing my patient perish in my hands by the most appalling form of death! Had he been insensible, I should have felt no alarm.

By the use of anesthetics, also, the shrieks and cries of the patient are prevented; so that the surgeon’s powers are not additionally taxed, either to nerve himself to a very unpleasant task, or to control and encourage the attendants.

I’ll bet.

More at the link.

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Replying to the ACA Troofers

[ 79 ] January 21, 2015 |

The government’s reply to the ACA troofers has been submitted, and as you would expect it’s devastating. Section I should be sufficient in itself — it is clear simply reading the statute properly that exchanges established by HHS are “exchanges established by the State” as the statute defines them. I’ll have more later, but a couple choice excerpts. First, I like this from the section refuting the “Moops invaded Spain” argument:

Petitioners do not deny that their interpretation of Section 36B would thwart the operation of the Act’s central provisions in States with federally facilitated Exchanges. Instead, they reverse-engineer a description of the Act’s design and history to fit their misreading of Section 36B. Petitioners insist that Congress intentionally threatened to impose a dysfunctional regime on the States in order to pressure them to establish Exchanges for themselves, and that Congress assumed that every State would comply. That notion is baseless.

First, it was well understood when the Act was passed that some States would not establish Exchanges for themselves. The very fact that the Act provides for federally-facilitated Exchanges demonstrates that “Congress thought that some States might decline * * * to participate in the operation of an exchange.” NFIB v. Sebelius, (Scalia, Kennedy, Thomas, & Alito, JJ., dissenting).

Nicely done! I also like the conclusion of the argument summary:

Petitioners invoke “judicial fidelity to the rule of law and well-established interpretive principles.” But it is petitioners, not the government, who seek to rewrite the Act. Determining the meaning of a statute duly enacted by Congress, particularly a statute as consequential as this one, by focusing on isolated phrases divorced from textual crossreferences, definitions, and context—and with no regard for the statute’s structure and design—does not respect the rule of law. It subverts the rule of law by denying appropriate respect to the choices Congress has made in the exercise of its democratically accountable authority.

So true.

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