;)
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. ...
Another Sad Day for Paul.... 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."
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Reader Comments (6)
Add John Cassidy, writing in the New Yorker, to the list of pundits who are skeptical that the ACA will be overturned by the Supreme Court:
http://www.newyorker.com/news/john-cassidy/will-judges-bring-down-obamacare
Marie, thank you for the reminder of the role played by Scott Brown in insuring that the bill never reached a polished form as Democrats desperately scrambled to find a way to pass it. Coakley bears some blame for a sub-par campaign, but I'm still angry at the nit-wits in Massachusetts who voted to replace an iconic Senator with a twit like Brown. Let's hope New Hampshirites can do better.
Yesterday's decisions on the fate of the ACA bring us around once again to that old nugget of wisdom that no one who has been paying attention can deny: elections matter. Votes matter.
One of the two appeals courts reached an entirely reasonable conclusion. The other was, well, the other. Judges appointed by Bush 41 and 43 decided, as Ian Millhiser puts it, to dream up an alternative history of the law's passage that would allow them to do what their ideological brothers and sisters in arms in congress could not, which is to sabotage the law, to cause it to collapse in a heap of twisted and uncared-for bodies.
Since the Supreme Court upheld the concept of an individual mandate, it was left to two right-wing judges to try something even sneakier: willful ignorance of the stated and well known goal of the ACA. Using wingnut approved counterfactual logic (if X had been the case, then Y would have to have been the outcome. The fact is that X was not the case, but never mind...) Judges Randolph and Griffith take advantage of what appears to be fuzzy wording to manufacture an "A-Ha!" moment sure to make haters' shriveled hearts skip a beat.
But before we continue, class, let's take a moment to consider some basic psychology. What could possibly account for an entire political party including its media arm, judicial contingent, financial backers, and legislative drones looking at something as positive, beneficial, and cost effective as health care reform that dramatically improves the quality of life for millions of Americans--AND reduces the deficit, and deciding that, for nothing more than political gain, and, of course, to stick it to their hated boogey man, they will impose suffering, misery, financial ruin, and, in some cases, death on those millions.
Po-lit-i-cal gain. That's it. Nothing more.
There's a word for that sort of behavior: Psychopathy.
"Psychopathy (or sociopathy) is traditionally defined as a personality disorder characterized by enduring antisocial behavior, diminished empathy and remorse, and disinhibited or bold behavior."
The Wikipedia entry from which this definition comes goes on to elaborate on some of the primary features of psycopathy. How many of these do you think apply to a vast swath of conservatives?
Boldness: measured in terms of low fear levels, and toleration of unfamiliar and dangerous situations. (Let's all carry guns! What could go wrong?)
Disinhibition: poor impulse control including problems with planning and foresight, lacking affect and urge control, demand for immediate gratification, and poor behavioral restraints. (Let's invade a country with no goals and no plans. What fun!)
Meanness: lacking empathy...use of cruelty to gain empowerment, exploitative tendencies. (Children in danger at the border? Get me some armed troops to deal with these dangerous 7 year olds, then get me Sean Hannity.)
I don't know about you, but I can think of dozens of right-wingers who all fit this model.
These people are not just assholes. They're sick. Sick assholes. There really is no other explanation for such sociopathic behavior.
Let millions suffer so you can stick it to the black guy? Really? These people need to be on medication and under a doctor's care, and in some cases, in prison, not running the country and trying to smash laws they don't like, and making existence as difficult as possible for millions of men, women, and children.
So, back to our original premise. A major reason elections matter is the ability to appoint judges and shape the judicial system, in Republicans' case, to pepper it with right-wing hacks whose fealty, in many instances, is not to law or justice or reason. It's to right-wing ideology. If one has to twist and turn and pretzelize a problem in order to make it fit a wingnut mold, so be it.
And don't think for a second that Republicans don't realize how important it is to have a judiciary you can trust to be on your side. This is why the Decider packed federal courts with cronies who couldn't judge a pie eating contest. And this is why Republicans do whatever they can to prevent Democratic presidents from appointing judges to federal benches.
It's why they do whatever they can to prevent Democratic citizens from voting.
It's why their judges on the Supreme Court extirpated a primary feature of the Voting Rights Act, and did it with a smirk and more pretzel logic. John Roberts might as well have put his thumbs in his ears, stuck out his tongue, and wiggled his fingers at us. (At this juncture, I must confess that I am not feeling very sanguine about the fate of the ACA appeal when, and if, it goes to the Supreme Court. Not one little bit.)
Mostly, conservatives expect their judges to rule against the little guy and against financial and safety regulations and come down on the side of corporations. But when they decide that political gain is more important than the lives of millions of Americans, we've gone way beyond partisanship. When they decide it's okay to let people die to satisfy the demands of ideology we're nearly lost as a nation.
I'm preaching to the choir, I know, but elections...votes...
Marie wonders about the intellectual bona fides of Cato "scholar" Michael Cannon.
Wonder no more. He has none.
First, those with a true intellectual bent avoid casuistry in their argumentation. Spurious reasoning is also anathema to those in pursuit of honest intellectual inquiry.
Cannon's arguments employ both casuistry and spurious reasoning in spades. The guy is a chiseler peddling bird droppings and calling it liberty.
Also, when, dear God, will this infuriating infatuation with fucking Libertarianism die off? Talk about spurious. It's an unworkable fantasy construct. There has never been a Libertarian state in the history of the world. Why? It doesn't work. But that aside, I've known some who call themselves Libertarians who tended to be moderates, a tad on the idealist side, but not the pinched, spiteful, pestiferous kind of begrudging douchebags I think of as Rand Paul Libertarians.
Since when do we base the creation and implementation of laws in this country on a fabulist, impracticable political theory that is and always will be just that: a theory?
Intellectual bona fides? Nope. Mala fides, yes.
Christ on a cracker. These people!
The libertarian fantasy hearkens to the naive vision, arguably appropriate to his time, of Thomas Jefferson's Republicanism, which saw an expanding nation peopled by self-sufficient (white) freeholders, each with his and his family's fortunes firmly grounded in cheap, productive, privately-owned land.
That that's not the course our history eventually followed is not Jefferson's fault. That those paid big bucks by the aristocracy of wealth to spew the same dreams to the masses in a period when Jefferson's vision has become the flimsiest of fantasy is proof of their moral, psychological and intellectual shortcomings.
Today the majority of America's minorities do not own their living quarters; less than one third of whites families own their own homes free and clear.
Regardless of its psychological appeal, the libertarian fantasy hardly comports with the reality of the present.
We are a nation of economic vassals, not at all what Jefferson and other early American Republicans had in mind.
Ken,
And don't forget the tanks.
In a true Libertarian world, everyone needs a tank in their front yard because there won't be any police. No fire department either, for that matter. It's all about liberdee, doncha know? Freedom from that damn gubmint.
But a tank would be helpful in settling intractable disputes with pain in the ass neighbors. Or staving off marauders who hold no truck with Utopian fantasies. (See, that's the problem with a Libertarian society. Everyone has to be on board or it doesn't work. Where's the freedom in that?)
I suggest the Abrams M1 tank. 1.67 gallons to the mile and a steal at only $5M. I bet Aqua Buddha has two. He needs them to keep those pesky blah people at bay.
That Daily Kos piece on shithead Paul Ryan and his magical mystery budget that relies on alien math and a million unreliable assumptions, some of which--typical of them--the GOP are trying to skewer, highlights one of their biggest ongoing problems: incompetence.
The piece also makes reference to Cheeto Man Boehner's promise (crossing his fingers and hoping to die) to come up with (more magic) a different, and way, way better, health care system that will save money and be oh-so-cool.
Any day now.
The takeaway from the tiresome rodomontade spouted regularly by people like Ryan, Boehner, Cruz, et al, is that these people are inept cretins.
They couldn't produce a workable budget or a healthcare plan if they copied it from the smart girl sitting one desk over in elementary school.
Even when they cheat they fuck it up.
No wonder conservatives are so big on small government. Their biggest brains couldn't run a crap game in a back alley.
Schmucks and schlemiels. All of them.
(In case you're wondering about the difference, a schmuck is the waiter in a restaurant who drops a bowl of soup on a customer. A schlemiel is the guy he drops it on.)