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“An Alternate History”: The 3 Stages Of ObamaCare Trutherism

As we approach the March 4 oral arguments for King v. Burwell, the Supreme Court case that may decide the fate of ObamaCare, it’s worth delving further into a legal argument that approaches 9/11 truther levels of insanity.

As I observed in a recent piece for The Week, there are two ways that the argument can proceed in its attempt to establish that the Affordable Care Act does not authorize health insurance subsidies on federally established state exchanges. The first is to say that no matter what lawmakers intended to accomplish, they mangled the letter of the law to say that the subsidies will not flow to such exchanges. Whoops.

The other argument, fully embraced by the law’s opponents at the Supreme Court, is that legislators intended to deny subsidies to the states — even though that would go against everything they set out to accomplish.

These are both terrible arguments; one would deny millions of people health insurance over the equivalent of a typo, while the other flies in the face of common sense and the historical record. But they permit opponents of the ACA to switch from one to the other as a means of evading devastating objections to any individual argument.

A classic example of a pundit engaging in this dance is Ramesh Ponnuru, who tries to split the difference between the two variants. His column in Bloomberg is a useful distillation of the three stages of Affordable Care Act trutherism.

Ponnuru starts out by suggesting that the letter of the law is clear — “nowhere does the law authorize subsidies for plans purchased on those federally run exchanges.” But you can arrive at this conclusion only by using terrible, unworkable methods of statutory construction. You don’t have to take my word for it — the brief submitted by major legal scholars, including Ronald Reagan’s solicitor general and one of the country’s foremost experts in statutory construction, explains this in clear detail.

When you focus on the statute as a whole, rather than on the isolated phrase that appears to confine subsidies to the exchanges established by state governments, it is clear that exchanges established by the federal government on the state’s behalf are “[e]xchange[s] established by the State,” as the statute defines them. Indeed, the ACA is an excellent illustration of why phrases in statutes should be read in context. Doing so produces a coherent reading of the statute’s purpose, whereas the reading of the ACA’s opponents, represented by Jonathan Adler and Michael Cannon, produces numerous anomalies and puts the statute at war with itself.

There’s a reason why Adler and Cannon haven’t been content to rest on the typo argument. It sounds superficially plausible in a seminar room, but in the broader world, people are going to wonder why literally none of the relevant federal or state officials read the statute in accordance with its allegedly clear and unambiguous meaning. (If the statute is not clear and ambiguous, under well-settled precedent the courts are supposed to defer to the judgment of the IRS, which will be responsible for administering the subsidies.)

As a sort of way station between the two arguments, then, Ponnuru proceeds to an argument we can label, “Looks like those clowns in Congress did it again. What a bunch of clowns.” In other words, various members of Congress had different intentions, many weren’t really paying careful attention — who can say what Congress was really trying to do? As Ponnuru writes, lawmakers are “generally not detail-oriented people.”

There is a grain of truth to this argument — Congress is a “they,” not an “it,” as social scientists say, and we should be careful in making broad generalizations. Nonetheless, everybody makes reasonable judgments about what Congress is trying to accomplish, not least because it would otherwise be impossible to practice law or interpret history. We can understand why the Wilmot Proviso, for example, broke down on sectional rather than partisan lines without claiming to know the precise subjective intentions of each and every member of Congress.

And in this case, the idea that we can’t reasonably infer what Congress was trying to do is absurd. The amicus brief written by Nicholas Bagley, Thomas Merrill, Gillian Metzger, and Abbe Gluck is particularly strong on this point. Federal backstops are not some mysterious new innovation of the ACA — they’re a bog standard part of cooperative federalism. They’re inserted in statutes when Congress wants to ensure that benefits of programs administered primarily by states will flow to citizens even if the states decline to participate.

Congress did not intend for the federal backstop to fail, and it was universally understood that the insurance exchanges could not work without tax credits and the individual mandate. There’s only a mystery here if you hate the ACA so much that you’ve become willfully blind to what it’s trying to accomplish and how it relates to previous statutes in the New Deal/Great Society tradition.

As such, it makes sense that the ACA’s opponents would develop an alternate history that can actually reconcile their reading of the statute with an explanation of Congress’ intentions. The Supreme Court is much less likely to strip insurance from millions of people based on what the architects of the suit initially identified as a “glitch,” than if it convinces itself that it’s upholding the will of Congress.

Ponnuru doesn’t go quite so far as to say that he’s “100 percent certain” about what the ACA’s drafters were setting out to accomplish, but he does argue that the Adler/Cannon interpretation makes sense. Denying subsidies on federally established exchanges, Ponnuru asserts, is “not at all absurd in principle.” After all, states that don’t comply with the requirements of Medicaid don’t get the money — why shouldn’t we think that the same principle of coercion is at work in the exchanges?

But the contrast with the ACA’s Medicaid expansion destroys Ponnuru’s argument rather than fortifying it. The Medicaid expansion shows how Congress proceeds when it’s actually trying to coerce states. To state the obvious, if you’re making a threat, you don’t keep the consequences of failing to comply a secret. On the flip side, legislators were well aware that some states would not or could not establish their own exchanges, and this is why they wanted to establish a backstop.

The weakness of all these arguments explains why apologists for the latest legal war on the ACA like to alternate between them. If a critic points out that you should take the context of the entire statute into account, just say that Congress was consciously trying to coerce the states, not create a federal backstop. When people point out that this is nonsense, return to asserting that Congress messed up the language. Repeat as necessary.

Hopefully, at least five justices will see through this game of legal three-card monte.

 

By: Scott Lemieux, The Week, February 20, 2015

February 23, 2015 Posted by | Affordable Care Act, King v Burwell, Republicans | , , , , , , , , | Leave a comment

“Cranking Up For 2016”: Pledging Allegiance To Charlatans And Cranks

Scott Walker, the governor of Wisconsin, is said to be a rising contender for the Republican presidential nomination. So, on Wednesday, he did what, these days, any ambitious Republican must, and pledged allegiance to charlatans and cranks.

For those unfamiliar with the phrase, “charlatans and cranks” is associated with N. Gregory Mankiw, a professor at Harvard who served for a time as George W. Bush’s chief economic adviser. In the first edition of his best-selling economics textbook, Mr. Mankiw used those words to ridicule “supply-siders” who promised that tax cuts would have such magic effects on the economy that deficits would go down, not up.

But, on Wednesday, Mr. Walker, in what was clearly a rite of passage into serious candidacy, spoke at a dinner at Manhattan’s “21” Club hosted by the three most prominent supply-siders: Art Laffer (he of the curve); Larry Kudlow of CNBC; and Stephen Moore, chief economist of the Heritage Foundation. Politico pointed out that Rick Perry, the former governor of Texas, attended a similar event last month. Clearly, to be a Republican contender you have to court the powerful charlatan caucus.

So a doctrine that even Republican economists consider dangerous nonsense has become party orthodoxy. And what makes this political triumph especially remarkable is that it comes just as the doctrine’s high priests have been setting new standards for utter, epic predictive failure.

I’m not talking about the fact that supply-siders didn’t see the crisis coming, although they didn’t. Mr. Moore published a 2004 book titled “Bullish on Bush,” asserting that the Bush agenda was creating a permanently stronger economy. Mr. Kudlow sneered at the “bubbleheads” asserting that inflated home prices were due for a crash. Still, you could argue that few economists of any stripe fully foresaw the coming disaster.

You can’t say the same, however, about postcrisis developments, where the people Mr. Walker was courting have spent years warning about the wrong things. “Get ready for inflation and higher interest rates” was the title of a June 2009 op-ed article in The Wall Street Journal by Mr. Laffer; what followed were the lowest inflation in two generations and the lowest interest rates in history. Mr. Kudlow and Mr. Moore both predicted 1970s-style stagflation.

To be fair, Mr. Kudlow and Mr. Laffer eventually admitted that they had been wrong. Neither has, however, given any indication of reconsidering his views, let alone conceding the possibility that the much-hated Keynesians, who have gotten most things right even as the supply-siders were getting everything wrong, might be on to something. Mr. Kudlow describes the failure of runaway inflation to materialize — something he has been predicting since 2008 — as “miraculous.”

Something else worth noting: as befits his position at Heritage, Mr. Moore likes to publish articles filled with lots of numbers. But his numbers are consistently wrong; they’re for the wrong years, or just plain not what the original sources say. And somehow these errors always run in the direction he wants.

So what does it say about the current state of the G.O.P. that discussion of economic policy is now monopolized by people who have been wrong about everything, have learned nothing from the experience, and can’t even get their numbers straight?

The answer, I’d suggest, runs deeper than economic doctrine. Across the board, the modern American right seems to have abandoned the idea that there is an objective reality out there, even if it’s not what your prejudices say should be happening. What are you going to believe, right-wing doctrine or your own lying eyes? These days, the doctrine wins.

Look at another issue, health reform. Before the Affordable Care Act went into effect, conservatives predicted disaster: health costs would soar, the deficit would explode, more people would lose insurance than gain it. They were wrong on all counts. But, in their rhetoric, even in the alleged facts (none of them true) people like Mr. Moore put in their articles, they simply ignore this reality. Reading them, you’d think that the dismal failure they wrongly predicted had actually happened.

Then there’s foreign policy. This week Jeb Bush tried to demonstrate his chops in that area, unveiling his team of expert advisers — who are, sure enough, the very people who insisted that the Iraqis would welcome us as liberators.

And don’t get me started on climate change.

Along with this denial of reality comes an absence of personal accountability. If anything, alleged experts seem to get points by showing that they’re willing to keep saying the same things no matter how embarrassingly wrong they’ve been in the past.

But let’s go back to those economic charlatans and cranks: Clearly, failure has only made them stronger, and now they are political kingmakers. Be very, very afraid.

 

By: Paul Krugman, Op-Ed Columnist, The New York Times, February 20, 2015

February 23, 2015 Posted by | Economic Policy, GOP Presidential Candidates, Scott Walker | , , , , , , , | Leave a comment

“Ignoring Basic Principles Of Government”: Texas Judge’s Immigration Ruling Is Full Of Legal Holes

U.S. District Judge Andrew S. Hanen’s decision to block the Obama plan to defer deportation for about 5 million immigrants here illegally ignores a basic principle of government: For better or worse, the executive branch of government always has discretion as to whether and how to enforce the law.

The judge’s lengthy opinion is wrong as a matter of law and, worse, is based on xenophobia and stereotypes about immigrants. It is very likely to be overturned by the U.S. 5th Circuit Court of Appeals, and, if necessary, the Supreme Court.

Every president must set enforcement priorities on immigration, choosing whom to prosecute or whom to deport. No administration brings prosecutions against all who violate the law. Resources make that impossible, and there are laws on the books that should not be enforced.

Nor has any administration, Democratic or Republican, sought to deport every person who is illegally in the United States. For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses not to bring deportation actions. In fact, as recently as three years ago, the Supreme Court in United States vs. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the president to choose whether to bring deportation proceedings.

That is exactly what President Obama’s executive orders on immigration have done. He has announced that the federal government will not seek to deport 600,000 young people who were illegally brought to the U.S. as children, or the undocumented parents of U.S. citizens and permanent residents who have resided in the country for at least five years. Millions of parents would be able to remain with their children because of this order and not need to live every day in fear of deportation.

The judge’s order makes several basic legal mistakes. For example, the law is clear that a federal court has jurisdiction to hear a matter only if the federal court’s decision would solve the problem. If the court’s decision would have no effect, it would be nothing but an advisory opinion, which is prohibited by the Constitution. Thus, the Supreme Court long has held that a party has standing to sue in federal court only if a favorable decision would “redress” its injury.

The lawsuit in Hanen’s court was brought by state governments that object to the Obama orders, claiming injury by the presence of immigrants here illegally. But the federal government deports only about 400,000 such immigrants a year. It is entirely speculative that stopping the executive orders would have any effect on the states that brought the suit. In fact, it is unclear what the judge’s order will mean. He cannot force the Department of Homeland Security to deport anyone.

The central argument in Hanen’s ruling is that the executive branch must promulgate a formal rule to defer deportation of these individuals. But the federal government constantly sets enforcement priorities without a formal rule. The Justice Department’s policies to not prosecute possession of small amounts of marijuana or credit card fraud below a designated dollar level, for example, were not adopted by formal rules.

In fact, recent presidents, including Republican ones, have deferred deportations without formal rules. In 1987, in response to political turmoil in El Salvador and Nicaragua, the Reagan administration took executive action to stop deportations for 200,000 Nicaraguan exiles. In 1990, President George H.W. Bush, post-Tiananmen, stopped deportations of Chinese students. He kept hundreds of Kuwaiti citizens who were illegally in the United States from being deported after Saddam Hussein invaded their nation. In 2001, President George W. Bush limited deportation of Salvadoran citizens at the request of El Salvador’s president, and ordered that deportation decisions include consideration of factors such as whether a mother was nursing or whether the person in question was a U.S. military veteran.

Judge Hanen, appointed to the federal bench by George W. Bush, has the reputation of being especially conservative on immigration issues. That tone underlies his opinion, especially as he spoke of immigrants being “terrorists” and “criminals.” What he misses, though, is that the point of Obama’s executive orders was to set enforcement priorities to focus deportations on terrorists and criminals and not on breaking up families.

It is not surprising that a conservative Republican judge would try to stop the Obama immigration policy. But it is just the first word and one unlikely to be sustained on appeal.

 

By: Erwin Chemerinsky, Dean of the UC Irvine School of Law; Samuel Kleiner, a Fellow at the Yale Law Information Society Project; The Los Angeles Times; The National Memo, february 20, 2015

February 23, 2015 Posted by | Deportation, Executive Orders, Immigration | , , , , , , , | Leave a comment

“A Quintessentially American Experience”: Black History Is More Than Just One Month

Is it already that time of year?

It must be: Black lecturers are busy on the speaking circuit; black authors have been pushed to the front shelves of bookstores; schoolteachers, black, white and brown, are teaching their charges how George Washington Carver, ah, invented the peanut.

It’s Black History Month, that annual tribute to the accomplishments of black Americans, whose ingenuity, perseverance, creativity and fortitude made America what it is today. But there is a problem with the yearly observance: It manages to make black history seem a thing apart, a separate reality, a slender appendix to the encyclopedia of American history.

It isn’t. Black history is American history — baked and bricked into the nation’s foundations. And that’s how it ought to be taught, right in the same volumes as the Boston Tea Party, the settling of the Old West, the defeat of the Nazis. Black Americans were part of each of those monumental chapters, as well as countless less-celebrated episodes.

It’s time to retire the annual celebration, as outdated now as rotary phones, segregated drinking fountains, and the term “Negro.” Ask yourself this: Will the current occupant of the White House — president of all of the United States, not merely of its black citizens — be celebrated only in February?

Carter Woodson, a black historian, started Negro History Week in 1926, when racism was still raw, public accommodations segregated and the Ku Klux Klan a powerhouse. The notion that black Americans were intellectually inferior and that they should be assigned a second- (or third- or fourth-) class status was taken for granted by most whites, including the leadership classes.

Woodson saw that black contributions to American history “were overlooked, ignored, and even suppressed by the writers of history textbooks and the teachers who use them.” He began a systematic study of black history and chose a week in February to commemorate it — timed to honor the birthdays of Abraham Lincoln, Feb. 12, and famed abolitionist Frederick Douglass, Feb. 14.

Happily, much has changed since then. Monuments stand to honor the accomplishments of black Americans, from the Buffalo Soldiers who served in segregated cavalry units after the Civil War, to the Rev. Dr. Martin Luther King Jr., who became the first black American to be commemorated on the National Mall in Washington, D.C.

Movies celebrate the bravery of the Tuskegee Airmen, who persevered at a time when most whites didn’t believe black men were capable of becoming fighter pilots. There is even a Smithsonian-run National Museum of African-American History and Culture, designed to “educate generations to come,” under construction on the National Mall.

(Yes, there is irony in the notion of a separate black history museum. But founding director Lonnie Bunch has promised that it will allow visitors to delve “deeply into the African-American experience and understand that … it is a quintessentially American experience.”)

Many black Americans would argue that Black History Month is still necessary in a land where racism, though waning, continues to exert a peculiar power. There are its blatant manifestations, evident in police brutality and in prison populations. Then there are its more subtle signs, such as research into hiring practices that shows applicants with “black” names are less likely to get jobs, regardless of their stellar résumés.

Moreover, the dominant culture remains reluctant to acknowledge the essential Americanness of its black members. We remain exotic, the other, ethnics. A vocal minority of white citizens continues to insist that President Obama is illegitimate, a foreign-born usurper. The “girl next door” is blonde; the superhero is blue-eyed.

Unfortunately, though, Black History Month merely reinforces that fundamental bias. The one-month observation — ironically, the shortest month of the year — keeps our history away from mainstream history. Instead, it should be included in every history text, taught in every history class, commemorated in every history museum — from maritime to martial, from agricultural to architectural.

The story of America is accurately told only when the stories of black Americans are included in every month of the year.

 

By: Cynthia Tucker, a Pulitzer Prize Winner for Commentary, 2007; The National Memo, February 21, 2015

February 23, 2015 Posted by | African Americans, American History, Black History Month | , , , , , , | Leave a comment

“Justice For Sale”: Soliciting Campaign Cash Threatens The Integrity Of The Courts

Thirty-nine states use elections to select judges, and all of them have rules governing how judicial candidates can conduct their campaigns. This term, the Supreme Court is expected to rule on a case, Williams-Yulee v. Florida Bar, which could substantially limit states’ ability to use such rules to protect the integrity of our courts – and lead to the greater politicization of judicial elections.

At issue in Williams-Yulee is a Florida rule that prohibits judicial candidates from personally requesting campaign contributions. Instead, a separate campaign committee must solicit and collect funds. Thirty states ban at least some forms of personal solicitation by judicial candidates, and 22 states, including Florida, have broad prohibitions.

There is good reason that most states restrict personal fundraising by judges. Lawyers and potential litigants are the most common donors to judicial campaigns. A personal request for contributions by the very judge or judicial candidate who may be deciding your case is not only coercive but raises concerns that justice could be for sale.

This is not an abstract worry. According to four former chief justices from Texas and Alabama — two states that permit personal solicitation — “our experience confirms there is a real risk that solicitation can morph into a demand.” In an amicus brief, the retired justices cited an incident in which a judge sent a personal email to a local lawyer soon after being elected, stating, “I trust that you will see your way clear to contribute to my campaign account in an amount reflective of the $2000 contribution you made towards my defeat.” The email further noted that “in very few realms does tardiness not incur an up-charge.”

In another incident, a judge emailed a small group of partners at a prominent law firm, detailing contributions made by other firms and noting that “all the Top 10 firms are committed to maxing out as a firm: $30,000 total.” The judge requested this firm “do the same,” explaining that “[a]t most of the firms, they are designating a senior partner … to bundle dozens of relatively small-$ contributions … until they reach the target,” and promising, “Bottomless thanks!”

These kinds of interactions threaten the public’s confidence in the basic fairness of our courts. The threat is particularly severe now, as judicial campaign spending has skyrocketed in recent years. Between 2000 and 2009, contributions in state supreme court races more than doubled as compared to the previous decade. Indeed, according to one recent poll, 95 percent of Americans believe that campaign contributions impact judicial decisions.

Regardless of how the Supreme Court rules – but particularly if it strikes down Florida’s direct solicitation ban – states must take steps to insulate judges from the growing flood of money in judicial elections. States should adopt strict recusal rules that bar judges from hearing cases when lawyers and litigants spend substantial sums to get them elected. Public financing of judicial elections is another vital reform, enabling judges to run competitive campaigns without the burdens of fundraising.  These commonsense measures would help ensure public confidence in the integrity of our courts.

 

By: Alicia Bannon, Counsel in the Brennan Center’s Democracy Program; Moyers and Company, February 22, 2015

February 23, 2015 Posted by | Campaign Financing, Judicial Elections, Judicial System | , , , , | Leave a comment

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