“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
“Why Did Ronald Reagan Hate America?”: Once You’ve Decided, Everything Else Makes Sense And All The Pieces Fall Into Place
Ronald Reagan has been dead for more than a decade, but it’s long past the time for us as a nation to come to grips with the fact that this two-term president really didn’t love America. Scholars will have to debate whether he just had a mild distaste for the land of the free, or whether he actively hated America and wanted to see it laid low. But the rest of us need to confront this ugly legacy.
To begin with, Reagan came into office promising a fundamental change. As radio host Mark Levin recently said, “when somebody says they want to fundamentally transform America, well, then you must not love America.” By that measure, Reagan had no love. Here’s part of what he said in a speech on election eve, 1980:
In thinking about these questions, many Americans seem to be wondering, searching . . . feeling frustrated and perhaps even a little afraid.
Many of us are unhappy about our worsening economic problems, about the constant crisis atmosphere in our foreign policy, about our diminishing prestige around the globe, about the weakness in our economy and national security that jeopardizes world peace, about our lack of strong, straight-forward leadership.
And many Americans today, just as they did 200 years ago, feel burdened, stifled and sometimes even oppressed by government that has grown too large, too bureaucratic, too wasteful, too unresponsive, too uncaring about people and their problems.
Americans, who have always known that excessive bureaucracy is the enemy of excellence and compassion, want a change in public life—a change that makes government work for people. They seek a vision of a better America, a vision of society that frees the energies and ingenuity of our people while it extends compassion to the lonely, the desperate, and the forgotten.
All that talk of change, characterizing Americans as fearful and stifled? Why couldn’t Reagan just accept the country that had given him so much?
And it didn’t start in 1980. Back in 1965, Reagan promised that an America with a Medicare program would be a hellhole of socialist oppression. Only someone with no faith in our country could say something like this:
If you don’t [write letters to stop Medicare], this program I promise you, will pass just as surely as the sun will come up tomorrow and behind it will come other federal programs that will invade every area of freedom as we have known it in this country until one day as Normal Thomas said we will wake to find that we have socialism, and if you don’t do this and I don’t do this, one of these days we are going to spend our sunset years telling our children and our children’s children, what it once was like in America when men were free.
I don’t know if he actually spent his sunset years running down America to his grandchildren, but it wouldn’t surprise me. And there’s more: Did you know that Reagan didn’t just pal around with terrorists like some people, he actually sold weapons to them? It’s true. How could anyone who loved America do such a thing? And when Islamic terrorists killed 241 brave American servicemembers, did Reagan stand up for America? No, he turned tail and ran, like some kind of cowardly commie. And he even apologized for America!
Where did all this disdain for America come from? We may never know. Maybe it was his upbringing, or the crowd he ran with in high school, or the Hollywood types he fell in with in his career as an actor.
I know what you’re thinking: Hold on, didn’t Reagan sing America’s praises in speeches all the time? Sure he did. For instance, he said, “I stand here knowing that my story is part of the larger American story, that I owe a debt to all of those who came before me, and that in no other country on Earth is my story even possible.” He said, “You know, this country of ours has more wealth than any nation, but that’s not what makes us rich. We have the most powerful military on Earth, but that’s not what makes us strong. Our universities and our culture are the envy of the world, but that’s not what keeps the world coming to our shores. Instead, it is that American spirit, that American promise, that pushes us forward even when the path is uncertain; that binds us together in spite of our differences; that makes us fix our eye not on what is seen, but what is unseen, that better place around the bend.” And he said, “We keep our eyes fixed on that distant horizon knowing that providence is with us and that we are surely blessed to be citizens of the greatest nation on earth.”
OK, it wasn’t actually Reagan who said those things, it was this guy. But those were the kinds of things Reagan said.
But anybody can say that stuff. How can you tell whether the words are being offered sincerely by someone who loves America, or whether it’s all a big lie? The key is to make the conclusion your starting point. Do that, and you’ll understand that when he criticized decisions made by a prior administration, he was actually making clear his hatred of America. You’ll know that you can look for the worst person he ever met one time at a party, and impute all that person’s views to him. You’ll be able to look at any action he took and find its true motivation in his contempt for this country. Once you’ve decided that Reagan hated America, everything else makes sense and all the pieces fall into place.
By: Paul Waldman, Contributing Writer, The American Prospect, February 20, 2015
“Descending Into Crankdom”: Rudy’s Warped Obama Hit Falls Flat
Generally speaking, when you start a comment with the qualifier “I know this is a horrible thing to say,” it’s a good sign you shouldn’t say it. It’s sort of like starting a sentence with “This is probably going to sound racist, but…” Just stop. Right there. Don’t go on. You’ve already warned yourself.
Former New York City mayor Rudy Giuliani has become the latest politician to not listen to his own vocalized alarm bells. After warning a roomful of Republican big-wigs that what he was about to say a horrible thing, Giuliani said a horrible thing.
“I do not believe that the president loves America,” Giuliani told the conservative audience at an event for Wisconsin Gov. Scott Walker in New York Wednesday night. “He doesn’t love you. And he doesn’t love me. He wasn’t brought up the way you were brought up and I was brought up through love of this country.”
What the effing eff, Giuliani?!?
Not that anyone else present dissented or disagreed. Actually I imagine the 60 or so Republicans in the audience then grabbed the party favor dog whistles from in their swag bags and hooped and hollered it up.
Scott Walker apparently spoke as well but his aides insisted his comments were all off the record. Presumably Giuilani’s aides were passed out in a corner somewhere, high on their own horses or something else. And after his speech rant, Giuliani doubled down in an interview with Politico.
While ugly insults against President Obama are so frequent these days it’s hard to be surprised, Giuliani’s assertion that Obama “wasn’t brought up the way you were brought up and I was brought up” is still breathtaking. Made to a room of Republican business executives and media figures, who its pretty safe to assume were mostly white, Giuliani might as well have just outright said Obama “isn’t like us.” It would be refreshing to see the Republican Party, which so desperately wants to appeal to the diversity of American voters, forcefully stand up against those within its ranks who insult that diversity.
It’s striking that Giuliani made his remarks at an event for Scott Walker, who the day before made news by defending the fact that he’d not graduated from college and yet should still be considered qualified to be president. That is also a debate about elitism, about who belongs and who doesn’t. One could imagine a room of presumably top-educated conservatives (Giuliani, for instance, went to NYU Law School) ostracizing Walker. But no, Walker has the pro-business, anti-worker policies to be in the club. Plus, of course, he’s white.
Part of what’s appealing—in fact, the only thing that’s appealing—about Scott Walker being president is that he would represent and connect with the millions of Americans who haven’t gone to college and yet still work hard and deserve their shot at the American Dream. The president should be the president for all Americans, not just those with the same educational background he or she shares. The same should go for race. Giuliani’s remarks echo Mitt Romney’s infamous “47 percent” remarks in the last presidential election, suggesting that not only was almost half of the country lazy, don’t take personal responsibility and simply “don’t care for their lives,” but that it wouldn’t be his job as president to “worry about those people.” Given the changing demographic realities in America, and the fact that he was running against the nation’s first black president, it was hard to not hear Romney’s comments through the lens of race.
Especially when taken together, Giuliani and Romney’s comments reveal a deeper Republican truth—the idea that certain Americans are more important than others and those Americans should be the ones the president is like and even “loves” and certainly thinks about first and foremost. Call them “job creators” or “patriots” or whatever you want: They’re probably white, and definitely well off. Call it “trickle down politics,” the fundamentally elitist Republican notion that taking care of “us” at the top should be the priority of political leadership. Theoretically, it eventually trickles down, though we’ve been waiting centuries for more than a dribble.
Rudy Giuliani’s comments are narrow-minded, ugly and just plain offensive. But what’s even more disturbing is the biased, morally superior, elitist Republican worldview that his comments merely reflect.
By: Sally Kohn, The Daily Beast, February 19, 2015
“A Handy Way To Shift The Discussion”: How Republicans Will Use Scott Walker’s Lack Of A College Degree To Stir Class Resentment
Since we’re now all fascinated by Scott Walker, there’s been some discussion in the past few days of the fact that Walker would be the first president in many decades who didn’t have a college degree. He left Marquette after four years, and though he apparently was quite a few credits short of graduating, most people would regard it as an unwise career move when you’ve come that far. Nevertheless, Walker did fine for himself, and some conservatives are now holding up his example as a triumphant rebuke to liberal elitism. Anticipating the scorn Walker will receive from those elitists, they rattle off lists of the high-achievers who didn’t get a degree, like Bill Gates or Mark Zuckerberg.
From what I can tell, the only liberal who has actually said that Walker’s lack of a degree is problematic was Howard Dean, in an appearance on MSNBC’s Morning Joe. But Dean’s one comment keeps getting cited (see Glenn Reynolds or Deroy Murdock or Charles C.W. Cooke or Chris Cillizza) as evidence that “liberals” are looking down their snooty noses at Walker, and by extension, at the majority of Americans who don’t have a college degree.
Which leads me to believe that this is a vein Republicans may be tapping into repeatedly, particularly if Walker becomes the GOP nominee. It wouldn’t be anything new, though if he himself indulged in it, Walker could come by resentment of pointy-headed intellectuals a little more honestly than, say, George H.W. Bush, graduate of Phillips Andover and Yale, who sneered in 1988 that Michael Dukakis represented the “Harvard boutique.” Walker also recently started battling the University of Wisconsin (beloved within the state, but about which voters in Iowa have no similar feelings, I’m guessing), which should help him portray himself as a crusader against the tenured enemies of real Americans.
Anti-intellectualism has often been an effective way for Republicans to stir up class resentment while distracting from economic issues. It says to voters: Don’t think about who has economic power and which party is advocating for their interests. Don’t aim your disgruntlement at Wall Street, or corporations that don’t pay taxes, or the people who want to keep wages low and make unions a memory. Point it in a different direction, at college professors and intellectuals (and Hollywood, while you’re at it). They’re the ones keeping you down. You got laid off while the CEO took home $20 million last year? Forget about that: The real person to be angry at is a professor of anthropology somewhere who said something mean about Scott Walker because he doesn’t have a degree.
There are going to be more than a few Republicans who see in that argument a handy way to shift the discussion away from economic inequality while still sending the message that they’re on the side of ordinary folks. Here, for instance, is Rush Limbaugh yesterday:
The stories are legion of all the great Americans, successful, who have not graduated from college. And of course the two names that come to people’s mind right off the bat are me and Steve Jobs. And then some people throw Gates in there. So there are three people who have reached the pinnacle, who have not gone to college, and those two or three names get bandied about all the time in this discussion.
But it doesn’t matter. To the elites, that doesn’t matter, it doesn’t mean that they are qualified to be in the elite group. And the elite group in Washington is what we call the ruling class or the D.C. establishment, both parties, or what have you. And it’s especially bad in the Drive-By Media. That is one of the most exclusive and I should say exclusionary groups of people that you can imagine.
If you look at it as a club and look at the admittance requirements, it is one of the most exclusives things to get into. It doesn’t matter how successful you are, doesn’t matter how much money you make, whether you’re more successful than they are, whether you earn more than they do, whether you have a bigger audience than they, doesn’t matter, you are not getting in that club.
Something tells me that somewhere at the RNC there’s an intern who just got an assignment to monitor every bit of mainstream and social media she can for any moment where a liberal says something condescending about Walker. Then Republicans can wave it about like the bloody shirt of liberal elitism. It’s a lot easier than coming up with an economic plan that doesn’t involve upper-income tax cuts.
By: Paul Waldman, Senior Writer, The American Prospect, February 17, 2015
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