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High Broderite Halbig Trooferism

[ 88 ] August 2, 2014 |

I didn’t know this until Josh Marshall tweeted it while linking to his site’s devastating rebuttal to Halbig trooferism, but Johnathan Turley is one of the troofers.  He presents us with a particularly irritating variant, which one might call “High Broderite Schoolmarm trooferism.”  He thinks that millions of people (but not him!) should be kicked off their health insurance and the market for non-employer based health insurance be made to collapse to teach Congress a stupid lesson about statutory construction, but the most important is that we should discuss this question civilly and never, ever question the motives of hack Republican judges.  Let’s start with the outright dissembling:

While I agree with the merits of the change ordered by the Administration, I am highly uncomfortable with treating language in a statute as a “typo” or some oversight. Indeed, as we recently discussed, even key players who are now calling the D.C. Circuit interpretation “nutty” previously appeared to subscribe to that interpretation. For that reason, I favor the D.C. Circuit opinion out of concern over limiting the role of the courts and reinforcing the separation of powers.

Turley uses the phrase “key players,” suggesting that there are multiple people involved in the crafting of the legislation who thought that the tax credits would not be available on the federally established exchanges. But he in fact cites exactly one, Jonathan Gruber, and in that cite fails to note that Gruber repudiated this position not merely after the fact but before the fact. And the idea that Gruber’s extemporaneous and ambiguous remarks are sufficient to establish a genuine controversy when his interpretation is rejected by everyone else involved is farcical.

Note also that he joins the Fourth D.C. Circuit in asserting that willfully misreading a statute with devastating consequences to the health and financial security of millions of people represents judicial restraint. I assume that to restate this argument is to refute it. And there’s plenty more where this came from, alas. He is, for obvious reasons, not particularly interested in defending his position, but he is very interested in asserting that those who take his position should be exempt from criticism:

The Halbig and King decisions had little to do with health care or contemporary politics. The courts rendered decisions on an arcane area called legisprudence, the study and interpretation of legislation. For legisprudence geeks like me, the decisions were the World Cup of statutory interpretation theory. The D.C. Circuit followed a long-standing approach that closely tracks the text to avoid large alterations in federal law through judicial decision-making. The Fourth Circuit followed an equally well recognized approach that resolves conflicts in laws according to more “holistic” readings of the law.

I view the D.C. Circuit as correct in its interpretation. However, I find it deeply offensive to see people attack the democratically appointed judges in the Fourth Circuit as ideologues. (The author of the opinion, Judge Roger Gregory, is actually a hybrid — having been given a recess appointment by President Clinton but permanently put on the bench under President George W. Bush.)

The King decision is well-reasoned and, more important, consistent with a common, if not dominant, view of statutory interpretation that looks to the overall intent of a law from both the text and legislative history to resolve conflicts.

Likewise, the portrayal by Reid and others of Judges Thomas Griffith and Raymond Randolph as Republican robots is equally unfair. These judges came to the bench with a defined view of judicial interpretation that seeks to avoid encroachment into legislative authority.

At issue in the cases was the law’s Section 1401 that expressly links tax credits to insurance plans purchased “through an exchange established by the state.” For a textualist, that line clearly limits tax credits to states that created their own exchanges. Conversely, it means that citizens in 36 states without such state exchanges (where citizens must use “federal exchanges”) would not be able to claim such credits. For an intentionalist, however, the overall law seems to favor such tax credits, and the Fourth Circuit found that the IRS was reasonable in extending credits to people in states with only federal exchanges.

The conflict could have involved chicken subsidies, and the result would have been the same.

First of all, the idea that one should read phrases in statutes in splendid isolation from the structure of the law, which Turley treats as the dominant, common-sense position, is in fact a terrible method of statutory construction. In addition, the fact that it’s embraced almost exclusively by contemporary Republicans is not a coincidence; as we can see vividly in this case, the point is to keep government from functioning. In a parliamentary system, the courts playing schoolmarm might have less devastating consequences, because the legislature can more easily correct errors. But in the Madisonian system, it’s imperative for the courts to interpret statutory phrases in the proper context, and also that it not read them to produce absurd results. And the reading that Congress established a federal backstop but intended for it not to work is absurd.

Turley’s High Broderism is inconsistent with the relevant legal standard. Under Chevron, the courts have to defer to a reasonable executive interpretation. If the Fourth Circuit argument is even reasonable, then the IRS rule must be upheld. If Halbig is correct, then the 4th Circuit interpretation is not reasonable. Turley can’t have it both ways. And when a legal theory advancing an interpretation that nobody shared at the time is advanced after the fact as part of a war conducted by people who oppose the ACA in principle, it’s cheap partisan politics.

For another argument in the High Broderite family, see Megan McArdle. Like Turley, she does not explicitly endorse but also does not repudiate the theory that the Moops invaded Spain. Unlike Turley, she tries to cite more than one person in her attempt to sell the idea that this dispute transcends ideological divides. But this addition person is Jon Cohn, who made an inaccurate prediction but was explicitly not making a definitive claim about what was in the statute (“this is not something I’ve looked into that closely.”) So, again, were left with Jonathan Gruber in 2012 vs. everyone else involved in drafting and enacting the statute including Johnathan Gruber 2010 and 2014.

One can understand why Halbig troofers want to throw up a “teach the controversy” fog. But Halbig trooferism is strictly a Republican production. And it’s also a terrible argument on the merits, in both its “the card says “Moops!” and “the Moops invaded Spain” variants, granting that the latter is even less defensible.

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Today’s Undue Burden

[ 28 ] August 2, 2014 |

Bad news for women in Texas:

Today, Whole Woman’s Health in Austin, Texas, was forced to close because of H.B. 2, the Texas law that erected a series of barriers to providing abortion care in the state. On September 1, a provision of H.B. 2 that requires all abortions be performed in ambulatory surgical centers (ASCs) will go into effect. Whole Woman’s Health of Austin, which has been serving Texas women for more than a decade, is not an ASC, and its lease was up July 31. Its annual license, which costs $5,000, was also up for renewal. But according to Whole Woman’s Health CEO Amy Hagstrom Miller, investing $5,000 for the renewal fee and signing a yearlong lease to stay open for a month simply did not make financial sense.


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Everyone’s Looking Forward to the Weekend Links

[ 121 ] August 1, 2014 |
  • Yes, Bloody Andy needs to be removed from the $20.  Rosa Parks and Elizabeth Cady Stanton seem like excellent candidates to replace him.  Alas, if done by a Republican Congress presumably the new bill would have Reagan on the front and John Calhoun on the back.
  • “Reading the column is like listening to Dick Cheney mutter in his sleep.”  I particularly enjoyed the assertion that the “forgotten part” of the Chamberlain story is the “peace in our time” comment.  Similarly, what NOBODY REMEMBERS about Game 6 of the 1986 World Series is that Bill Buckner muffed a ground ball, leading to the winning run.  And now you know the rest of the story.
  • deglar watched some terrible pro-Confederate Civil War movies so you don’t have to.   (Gods and Generals, I note as a connoisseur of aesthetic Stalinism, made Michael Medved’s 10 best list.)
  • Krugman on Geithner.
  • Definitely agree that the new Jenny Lewis is a welcome return to form from one of the best songwriters in this great land of ours.
  • John Brennan really needs to resign.
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Chinese Airpower

[ 15 ] August 1, 2014 |

The next Guns N’ Roses album? No, my latest at the Diplomat:

Ankit’s recent post (building on Rebecca Grant’s  longer list at Air Force Magazine) opens the question of whether China has structured its military institutions such that they support the sophisticated development and dynamic use of military aviation.

In short, how does the organizational configuration of Chinese airpower matter for how China will fight, plan to fight, and procure?

There is no single optimal way to organize military forces. Different organizational constellations produce different outcomes for warfighting, procurement, and strategic thought. Reorganizations are costly, and shouldn’t be undertaken at the drop of a hat, but nevertheless provide an opportunity to better align organizational imperatives with national goals.

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Today Among the Halbig Troofers

[ 58 ] August 1, 2014 |

Sean Davis believes he has actual new evidence to support the particularly wingnutty theory that millions of people should be denied health care coverage not merely because the card says “Moops,” but because the Moops actually invaded Spain. You will be shocked that he does not.

In defense of the theory that Congress actually intended for subsidies not to be available on the federal exchanges, Davis uses many words to cite two people. The first of these we’re familiar with: Jonathan Gruber. Which gets Davis nowhere, since privileging two stray and ambiguous comments by Gruber in 2012 over absolutely everyone else on all parts of the ideological spectrum at the time (particularly when the latter group includes not only the unambiguous statements of Gruber in 2014 but Gruber’s analysis in 2010) raises hackery to a farcical level. So, what’s his second source? He cites statements made by the superb liberal health care analyst Jon Cohn:

There is some kind of opt out, and I’ll be honest. This is not something I’ve looked into that closely because I don’t think it’s going to end up in the bill. But you know, basically this I believe was part of the Ben Nelson compromise.

Basically, where a state could opt out of the exchanges, I find it hard to believe a state would actually do that. You know, it’s – if you think about the history of these sorts of things, Medicaid was set up and is, remains, an optional program for states. States can opt out of Medicaid if they want to.

Cohn explains himself here. To be clear — proving that it can happen to the best of us — Cohn’s analysis on this point, as I’m sure he would concede, was mistaken. It should have been clear that at least some states would have refused to create exchanges in 2010. It’s true that no states were turning down Medicaid funds at the time, but 1)the block of Medicaid money is a stronger incentive than “your citizens won’t get tax credits but will also be therefore exempt from the individual mandate” and 2)not all states accepted the Medicaid immediately — Arizona held out until 1982. Given the original Medicaid holdouts despite an era of less partisan polarization and its stronger incentives, the history of Medicaid in fact made it pretty evident that some states would not establish exchanges.

But, of course, Congress (of which Cohn was not in fact a member) did anticipate this problem — which is why it created a federal backstop in cases where states did not establish exchanges. And Cohn does not say otherwise — note that he starts out by saying that “this is not something I’ve looked into that closely.” So Cohn’s excessive optimism in an off-the-cuff statement is neither here nor there; Congress didn’t share it, and the troofer argument requires the belief that Congress created a federal backstop but wanted it not to work, which is a transparently absurd reading of the statute.

So, Cohn’s statements aren’t actually new evidence at all. We’re left where we started — the troofer argument is that a single cherry skin on the ground makes an apple orchard a cherry tree. There is never going to be a threat to Drum’s 10 bucks.

see this too. Oddly, the CBO never even considered the scenario that Halbig troofers consider the statute to have unambiguously established. Please revise your views of Senate Majority Leader Gruber accordingly.

…Abbe Gluck has more.

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It’s Hard Out There For the 1 Percent

[ 365 ] August 1, 2014 |

The Daily Capitalist urges us to understand the plight of the wealthy and how a visa glitch makes life so hard:

In Washington, D.C., Mira Edmonds said her au pair’s arrival from France, which was scheduled for last Sunday, has been indefinitely delayed. Ms. Edmonds, who is a lawyer, and her husband work full-time and depend on child care for their two children, ages 3 and 6. “I don’t know how we’re going to cope if she isn’t here soon,” Ms. Edmonds said.

Shed a tear, my friends, shed a tear.

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The Goeben’s Saga Begins…

[ 6 ] August 1, 2014 |

One hundred years ago today, Goeben and Breslau were preparing their escape…

In the years prior to the war, Germany deployed naval squadrons around the world to protect its burgeoning colonial empire. War came so quickly that some of these squadrons were trapped in unfriendly waters, chased by superior British forces.

Goeben and the light cruiser Breslau amounted to a respectable, if not formidable, capability. Germany had two allies in the Mediterranean—Italy and Austria—but Berlin worried the two traditional enemies might fight each other, instead.

The Germans were unprepared for war. Goeben—displacing 25,000 tons and packing 10 11-inch guns—badly needed a refit, as well as refueling, and Mediterranean allies weren’t ready to accommodate the vessel. Vienna still hoped it could avoid war with Britain. Italy was unhelpful.

Longtime LGM readers will recall that I wrote a much longer version of the story several years ago.

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And the Winner of Satan’s Favorite Earthling Is…..

[ 3 ] August 1, 2014 |

ALEC has an award for its favorite legislator. This is like, I don’t know, winning the award for the most horrible human being on the planet or something. Anyway, the winner, not surprisingly is an Art Pope lackey in North Carolina.

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An Unconvincing Defense of the Poor Door

[ 173 ] August 1, 2014 |

Given the, shall we say, “unfavorable optics” of the poor door scandal, I wasn’t exactly expecting to see a defense of the policy, let alone from the putative center-left. But Matt Yglesias has made an attempt at one, so let’s have a look:

the idea of a single building with two different doors — one for the super-rich and one for the normals — works as a potent metaphor. But the building is not a metaphor. It is, in fact, a building. A building in which people live. A building whose construction employs people, and whose existence expands the New York City tax base. Even better, it’s a building that created subsidized dwellings in a desirable location for 55 lucky families. The serious problems with housing policy in America have nothing to do with poor doors and everything to do with the literally millions of people in the New York area who aren’t lucky enough to get a subsidized unit on the Upper West Side.

After all, Yglesias notes, if the developer had built two buildings, one for the rich and one for the poor (editor’s filibuster: one of the weird things about this story is that we’re not even talking about class segregation against the poor – the subsidized dwellings are going for $908 a month for a one-bedroom, which means by HUD guidelines you’d need to be making at least $36k/year to afford this affordable housing – but rather against the working class, which is an unsettling increase in classist prejudice), no one would be talking about discrimination, and the real issue is that there’s not enough affordable housing in New York.

However, if you dig into Yglesias’ argument, not only do you find some major holes, but there’s some nasty stuff inside the holes.

Read more…

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The Accommodation Shell Game

[ 21 ] August 1, 2014 |

For some organizations in the wake of Hobby Lobby, the only acceptable answer is “no contraceptive coverage for you.” The Supreme Court may well go along.

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The King’s English

[ 239 ] July 31, 2014 |

I’m not sure Oak Ridge National Laboratory importing the ideas of Dr. Henry Higgins is such a good idea:

The rain in Spain won’t be falling mainly on the plain after all, at least not at Oak Ridge National Laboratory. The Tennessee-based research facility canceled what it had billed as a “Southern accent reduction” class amid employee backlash; for some staff, it came off as a little too “My Fair Lady: Appalachia.”

“Feel confident in a meeting when you need to speak with a more neu­tral Amer­i­can accent, and be remembered for what you say and not how you say it,” reads an email sent to thousands of staff members last week, advertising the new course. “In this course you will learn to recognize the pronunciation and grammar differences that make your speech sound Southern, and learn what to do so you can neutralize it through a technique called code-switching.”

The weekly course, set to run through mid-September, was offered on a voluntary basis only (with an $850 price tag). But some employees were insulted by the premise of the course and wording of the email, and complained. The lab subsequently called off the class.

David Keim, spokesman for Oak Ridge, which is the Energy Department’s biggest research facility and home to the Titan supercomputer, said the lab regularly offers accent modification classes for its many employees who are non-native English speakers. The lab employs some 4,400 people from 90 countries, as well as from across the U.S., and their work is highly technical. That makes professional development designed to help international researchers communicate more clearly and efficiently in high demand, he said.

Or Americans, especially the snotty elite classes not living in east Tennessee who are going to be interacting with ORNL employees, could just get over the idea of a proper accent and be OK with someone if their accent is from southern Appalachia, Rhode Island, Texas, or Minnesota. While obviously working with non-native speakers is a good idea that empowers the individual, embarrassing your employees because of where they are from and how they grew up makes the individual ashamed of themselves. Not everyone has to sound like they are on TV. This is real classism.

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Don’t Over-Stupid an Already Stupid Conversation

[ 74 ] July 31, 2014 |

Of all the stupid tropes that are used to describe the Israel-Palestine conflict:

What would politicians in Arizona, Texas and California do if Mexico were shooting rockets into Scottsdale, Houston or Los Angeles? You can bet it wouldn’t last almost ten years. More like ten hours, before the USA would unleash whatever force was necessary to protect the citizens of Arizona, Texas and California.

Would America keep the water and the electricity on for a people that were attacking her? Would anyone blame America for protecting their own people and showing strength? Would we care if the rest of the world disagreed?

No, we would care about one thing, and one thing only: protecting American’s and doing the best we could to minimize innocent civilians deaths.

Sure; in the past the United States has punctuated mild tolerance for pinprick attacks launched by indigenous peoples with vicious campaigns of extermination.  Many Americans have come to regret this particular reaction; others have not.  I daresay, however, that if a substantial group of Americans was subjected to land confiscation and occupation on a scale similar to that imposed upon the Palestinians, they would valorize heroic resistance in the face of impossible odds, however pointless and illegal that resistance might seem to outsiders, and  that they would engage in terrorist activity in hopes of overturning the existing political and military order.

And with respect to “But but but Hamas is BAAAD!!”, I agree that this might matter if we were talking about justice.  What we’re talking about, however, is the politics and psychology of vengeance.

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