The Commentariat -- July 23, 2014
Internal links removed.
** Robert Pear of the New York Times: "Two federal appeals court panels issued conflicting rulings Tuesday on whether the government could subsidize health insurance premiums for people in three dozen states that use the federal insurance exchange. The decisions are the latest in a series of legal challenges to central components of President Obama's health care law. The United States Court of Appeals for the Fourth Circuit, in Richmond, upheld the subsidies, saying that a rule issued by the Internal Revenue Service was 'a permissible exercise of the agency's discretion.' The ruling came within hours of a 2-to-1 ruling by a panel of the United States Court of Appeals for the District of Columbia Circuit, which said that the government could not subsidize insurance for people in states that use the federal exchange.... The White House rejected the ruling of the court [in D.C.] and anticipated that the Justice Department will ask that the entire appeals court to review it." ...
... Margot Sanger-Katz of the New York Times reviews the various possibilities of what could happen next. ...
... ** Ian Millhiser of Think Progress: "It's important to understand just who these two [D.C.] Republican [judge]s are. Judge [Raymond] Randolph is a staunchly conservative judge who spent much of the oral argument in this case acting as an advocate for the anti-Obamacare side.... Judge [Thomas] Griffith has a reputation as a more moderate judge, but it is not clear that this reputation is deserved." Millhiser then goes into a lengthy & informative explanation of how utterly fucking stupid the Randolph-Griffith "reasoning" is. Well-worth reading & not difficult to understand. It comes down to this: the only phrase that matters in all the gazillion pages of the ACA is this one-line error -- "an Exchange established by the State" -- which all by itself proves Congress was just kidding about providing healthcare subsidies to all eligible Americans. As one brief filed in support of the ACA put it, "Randolph and Griffith's decision presumes that 'Congress sought to legislate into existence a massive new social program that it understood would immediately fail.'" ...
... Here's Millhiser's analysis of the Fourth Circuit's three-person unanimous opinion. ...
... Tom Goldstein of ScotusBlog in the Washington Post: "... the courts are required to uphold the [administrative] rule if the law is ambiguous and the administration's position is reasonable. The Supreme Court will probably uphold the rule under that lax standard.... The parties can ask all the judges of both of the courts of appeals that issued today's rulings to rehear the case.... It may be that both courts will see that Supreme Court review is inevitable and stand aside to let the Justices decide the issue. ...
I think if you look at simple math, it does. -- Harry Reid, Tuesday, when asked if the D.C. court's decision vindicated his decision to employ the "nuclear option" ...
... Danny Vinik of the New Republic on how Harry Reid's finally imposing the "nuclear option" may have saved the ACA. CW: Credit here really should go to Sens. Jeff Merkley (D-Ore.), Tom Udall (D-N.M.) & others who pushed Reid toward modifying the filibuster.
... Paul Waldman: The D.C. court's ruling "demonstrates just how willing Republicans are to lay waste to Americans' lives if it means they can strike a blow at Barack Obama and his health law.... Here, Republicans literally found a legislative drafting error in the ACA that they hoped could be used to deal a near-fatal blow to the law, and two Republican-appointed appeals court judges agreed with them.... If they succeed at the Supreme Court, people will die." ...
... Charles Pierce: "Millions of our fellow citizens have spent the last several months with a great weight lifted from their shoulders. Every ache and sudden twinge no longer felt like it could be the first step toward personal ruin.... They have been able to pursue happiness, like all of us have a right to do so, without feeling like they're running in leg shackles. All of these people have been tossed into uncertainty -- again -- because their government has been rendered dysfunctional by a political philosophy of nihilistic vandalism, which is being judged now by a judiciary fully politicized through a long game that has extended over decades." (Emphasis added.) ...
... Brian Beutler of the New Republic: "What the challengers have asked judges to do is to ignore the 'fundamental canon' and buy into the idea that the Democrats who passed the law unambiguously structured it to withhold premium subsidies from states that refused to set up their own exchanges, as some sort of high-stakes inducement. This is plainly false. It's the giant whopper underlying the entire theory of Halbig." Beutler sees the decision, if it should hold (& he doesn't think it will) as a huge problem for Republicans. CW Note: TNR has a new annoying subscription program that blocks access to the article. If the link doesn't work, copy & paste some of the quote into Google. Another work-around: open the page in a private window. ...
... Ha Ha. Jon Perr in the Daily Kos: "... as it turns out, the Paul Ryan budget that 95 percent of Congressional Republicans voted for three years in a row depends on every single dollar Uncle Sam now raises to fund subsidies in all 50 states.... Obamacare reduces the U.S. national debt precisely because its savings and new revenues exceed the cost of the Medicaid expansion and health insurance subsidies that the New England Journal of Medicine found enabled 20 million Americans to get coverage. And without those revenues, the budget Paul Ryan and his math-challenged Republican colleagues in the House and Senate backed utterly falls apart." ...
... CW: So far all the liberal & moderate pundits I've read are in agreement that the D.C. ruling will be struck down. For example, Ezra Klein writes, "The Supreme Court simply isn't going to rip insurance from tens of millions of people in order to teach Congress a lesson about grammar."
... BUT Steve M. looks at the politics & predicts a horrifying scenario in which repeal of ObamaCare is inevitable. Given the nature of the Republican character, I find his prediction plausible if not necessarily likely. In another post, Steve explains why the optimistic views of Klein & others are "exceedingly naive." His rationale seems spot-on to me. ...
NEW. CW: Here's what I think conservative judges/justices will do to "justify" their reading of the phrase in question. At least a couple of commentators have suggested that even Justice Scalia would scoff at the D.C. circuit opinion. Why, just last month in an opinion he wrote that, "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." But Scalia also has said in interviews that legislation is the way to change the law, not judicial oversight. Ergo, he (& other conservatives) will put on their choirboy faces & argue that if the phrase is so inartfully put that it does not reflect the intent of Congress, then Congress should just change the law. Why, they need only omit or add a few words & the ambiguity would disappear! It is a perfectly logical argument, the intent of which, of course, is to blow up the ACA. ...
... How the "Intellectual" Wingers See It. This post in Forbes, by Michael Cannon, the Cato Institute "scholar" who has been the chief proponent of the case, is so full of illogical thinking you could write a thesis tearing it to pieces. But Cannon's big premise is this: Freeeedom! "Halbig Would Free More than 8 Million People from the Individual Mandate.... Halbig Would Free 250,000 Firms and 57 Million Employees from the Employer Mandate." If you tie Cannon's arguments to Steve M.'s scenario, you can see how Republicans will sell the chaos they've engendered & why Steve' prognostication isn't just a study in pessimism. ...
... Here's Cannon arguing that states "should be refusing to create exchanges." Via Dave Weigel:
... CW: It's hard to believe that a Koch-funded "intellectual" would be so duplicitous, arguing on the one hand that states should not establish exchanges & on the other that people in states who don't establish exchanges are ineligible for subsidies. Weigel describes Cannons' tactics as "Leninist."
... CW One More Thing. Blame Scott Brown. (Or Martha Coakley for being such a horrible candidate.) As you may vaguely recall, & as Adrianna McIntyre of Vox reminds us, "the law was passed through an unorthodox budgetary process and never went to conference committee, where messy drafting gets cleaned up." Why? Because Scotty's election deprived Senate Democrats of their 60-vote super-majority, so they had to pass the final version of the bill (to correspond with the House bill[s]) via the reconciliation process, which requires only a simple majority vote. (Oh yeah, & then Scotty lied about how the whole thing went down, making himself the hero/victim.) ...
... Update: Turns out that last year, law professor Abbe Gluck explained the Scott Brown factor just as I did above: "Because Senator Ted Kennedy died in the middle of the legislative process and was replaced by Republican Scott Brown, the statute never went through the usual legislative process, including the usual legislative clean-up process.... Because the Democrats lost their 60th filibuster-preventing vote, the version that had passed the Senate before Brown took office, which everyone initially had thought would be a mere first salvo, had to effectively serve as the final version, unchangeable by the House, because nothing else could get through the Senate." Gluck says skipping the conference process was the cause of the wording error & in general made the ACA "a badly drafted statute."
CNN: "More than half the public says Obamacare has helped either their families or others across the country, although less than one in five Americans say they have personally benefited from the health care law, according to a new national poll.... A CNN/ORC International survey also indicates that a majority of Americans oppose the Affordable Care Act.... [But] 'Not all of the opposition to the health care law comes from the right,' said CNN Polling Director Keating Holland. 'Thirty-eight percent say they oppose the law because it's too liberal, but 17% say they oppose it because it's not liberal enough. That means more than half the public either favors Obamacare, or opposes it because it doesn't go far enough.'"
Tom Edsall of the New York Times: "The amount of money flowing into federal campaigns ... doubl[ed] from $3.1 billion in 2000 to $6.3 billion in 2012.... Spending by secretive political nonprofits, which do not disclose donors, has exploded 13-fold, from $24.9 million in 2000 to $335.7 million in 2012.... Just as the Republican Party and Republican candidates moved from reliance on small-to-medium publicly reported donations to large, often undisclosed, contributions, the party's platform position on campaign finance law began to change [from advocating disclosure to opposing it].... The Republican appointees to the Supreme Court are now unanimously opposed to constraints on large donors.... The three Republican appointees to the Federal Election Commission ... have used their power to block the F.E.C. from issuing rulings that would require disclosure of donors to 501c 'social welfare' organizations." ...
... Edsall concludes, "the inexorably rising costs of campaigns suggest that as long as this situation endures, neither the Democrats nor the Republicans will be the party -- or represent the interests -- of the little guy." Here's an "honest political ad" that makes the same point. Thanks to Bonita for the link:
Stephanie Clifford of the New York Times: "... across the country, federal prosecutors have begun reading prisoners' emails to lawyers -- a practice wholly embraced in Brooklyn, where prosecutors have said they intend to read such emails in almost every case. The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers -- a question on which federal judges have been divided."
Jonathan Capehart (& President Obama) on "acting white."
Senate Race
Daniel Malloy of the Atlanta Journal-Constitution: "Businessman David Perdue stunned Georgia's Republican political establishment Tuesday by capturing the party's U.S. Senate nomination in his first run for office. The former CEO of Reebok and Dollar General toppled 11-term Rep. Jack Kingston by a narrow margin, setting up a battle of political newcomers with famous kin in the fall. Perdue's cousin, Sonny, was a two-term governor and Democratic nominee Michelle] Nunn's father, Sam, was a four-term U.S. Senator."
News Ledes
New York Times: "The United Nations Human Rights Council voted to establish an inquiry into human rights violations in Gaza and the Israeli-occupied Palestinian territories at a special session on Wednesday in which the top human rights official, Navi Pillay, said Israel and Hamas had likely committed war crimes with indiscriminate attacks on civilians." ...
... New York Times: "As the death toll mounts and passions spike, the Foreign Press Association in Israel condemned on Wednesday what it called 'deliberate official and unofficial incitement against journalists' who are reporting on the fighting in Gaza. That includes 'forcible attempts to prevent journalists and TV crews from carrying out their news assignments,' the association said."
... New York Times: "Secretary of State John Kerry made a surprise visit to Israel on Wednesday, as he pressed his effort to forge a cease-fire to bring a halt to the bitter fighting in the Gaza Strip. Mr. Kerry's plane touched down at Ben-Gurion International Airport just a day after the United States Federal Aviation Administration suspended American civilian flights to Israel." ...
... Guardian: "International airlines halted flights to and from Israel indefinitely on Tuesday citing security concerns in an unexpected twist to the two-week-old conflict in Gaza." ...
... CW: Guess that puts something of a damper on the Summer Vacation Insurance Theory of War. ...
... Washington Post: "As Israel pummels Hamas's infrastructure inside Gaza, it is also trying to prevent attacks originating from the West Bank and Israel -- by obliterating the houses of the relatives of Palestinians who allegedly have harmed Israelis. In doing so, Israel's military has returned to a controversial policy of punitive demolitions that has displaced thousands of Palestinians over the years."
Washington Post: "Two Ukrainian fighter jets were shot down Wednesday over rebel-held eastern Ukraine in the same vicinity as a Malaysian airliner that was downed last week, Ukrainian officials said." ...
... Time: "U.S. intelligence resources tracked the 'specific missile' that downed Malaysia Airlines Flight 17, a senior Administration official said Tuesday, saying intelligence adds up to a picture that 'implicates Russia' in helping to bring down the plane." ...
... Washington Post: "The Obama administration, detailing what it called evidence of Russian complicity in the downing of a Malaysian airliner, on Tuesday released satellite images and other sensitive intelligence that officials say show Moscow had trained and equipped rebels in Ukraine responsible for the attack."