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Jonathan Gruber Accidentally Tells the Truth

One of the chief criticisms of those who did not like the Halbig decision is that Congress could not possibly have intended to restrict federal subsidies for coverage under Obamacare to only those states that established an exchange. Furthermore, by not taking intent into account, the D.C. Circuit Court of Appeals was creating “an ‘absurd’ result.” It is rather difficult to divine congressional intent even under the best of circumstances, and to the best of my knowledge, no one has actually done a good job of showing that Congress did not intend the result in Halbig; rather, opponents of the decision simply content themselves with asserting that Congress did not intend and could not have intended the substance of the Halbig ruling. Assertion is not evidence, but try telling these folks that.

From the time that the Halbig ruling was issued, my opinion has been that the text of the Affordable Care Act–and not congressional intent–governed and governs. But if people want to have a discussion about intent, I am happy to do so. Behold Jonathan Gruber, one of the chief architects (if not the chief architect) of Obamacare and Romneycare, who admitted long ago that the intent of the ACA was entirely consistent with the D.C. Circuit’s ruling in Halbig:

Jonathan Gruber, an economics professor at the Massachusetts Institute of Technology, is widely known as one of the architects of both Romneycare and Obamacare. He was paid almost $300,000 (no wait, $400,000) by the Barack Obama administration for “special studies and analysis” of the various health-care bills. His models of the economic effects of the bill were frequently cited by journalists and the administration. He claims to have helped write the part of the bill that deals with small-business tax credits. He was, in short, intimately involved in these efforts.

In January 2012, Gruber apparently gave a talk at some sort of conference at Noblis Inc., which, according to its webpage, is a “nonprofit science, technology, and strategy organization.” At that talk, Gruber made the following observation:

What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits — but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this.

Why is this so important? Because Gruber made this argument in January 2012. This was after the filing of Pruitt v. Sebelius (a Halbig-like case brought by Oklahoma’s state attorney general) but before the U.S. Supreme Court’s ruling on the constitutionality of the Affordable Care Act, and before all the other related cases were filed. At the time he gave this talk, Halbig’s argument was barely on the radar. Yet Gruber, one of the law’s architects, clearly had an understanding of the provision that liberals now say no one shared.

I’ve listened to Gruber’s whole presentation to make sure this wasn’t a poorly phrased snippet unfairly clipped out of context. It’s not. Gruber is succinctly stating the argument made by the plaintiffs in Halbig: that premium subsidies will not be available on federal exchanges, and that this is supposed to incentivize states to build their own exchanges.

To be sure, this was still two years after the law passed, and my understanding is that the court is not supposed to pay attention to post-facto statements about the law’s effect or intent. But unless this is some sort of elaborate hoax, I think this definitively puts to rest the notion that none of the bill’s architects could possibly have thought or intended that the law would have this effect. Gruber thought the law would have this effect — and if anyone would know, he would.

Gruber has tried to claim that this quote was “just a mistake.” If so, it was a mistake that Gruber was perfectly happy to repeat:

. . . John Sexton at Breitbart has uncovered what appears to be another January 2012 speech in which Gruber makes exactly the same point. The Official Blog Spouse has provided a transcript of the relevant bits:

The third risk, and the one folks aren’t talking about, which may most important of all, is the role of the states. Through a political compromise, it was decided that states should play a critical role in running these health insurance exchanges. And health insurance exchanges are the centerpiece of this reform, because they are the place that individuals can go to shop for their new, securely priced health insurance. But if they are not set up in a way which is transparent, and which is convenient for shoppers, and which allow people to take their tax credits and use them effectively by health insurance, it will undercut the whole purpose of the bill.

Now a number of states have expressed no interest in doing so. A number of states — like California, has been a real leader — one of, I think it was the first state to pass an exchange bill. It’s been a leader in setting up its exchange. It’s a great example. But California is rare. Only about 10 states have really moved forward aggressively on setting up their exchanges. A number of states have even turned down millions of dollars in federal government grants as a statement of some sort — they don’t support health care reform.

Now, I guess I’m enough of a believer in democracy to think that when the voters in states see that by not setting up an exchange the politicians of a state are costing state residents hundreds and millions and billions of dollars, that they’ll eventually throw the guys out. But I don’t know that for sure. And that is really the ultimate threat, is, will people understand that, gee, if your governor doesn’t set up an exchange, you’re losing hundreds of millions of dollars of tax credits to be delivered to your citizens. [emphasis added]

Like the Official Blog Spouse, I listened to the audio to make sure that, first, it wasn’t simply the audio from the earlier video, and second, that the new clip wasn’t taken out of context. It’s clear that the audio is from an entirely different event; though Gruber repeats himself a lot from speech to speech (not surprising, because Gruber was on book tour for his cartoon book on Obamacare), the questions in the Q&A period are not the same. It’s also quite clear that this was not snipped out of context; we now have evidence of Gruber twice making the same argument about subsidies in January 2012.

MSNBC’s Adam Serwer reached him for a comment on the second clip: “A second recording has surfaced showing Gruber making similar statements about subsidies not being available on federally run exchanges. Asked over e-mail whether those remarks were a mistake, too, Gruber wrote back, ‘same answer.’ “

I believe that Gruber sincerely does not remember making these remarks. Memory is fallible; at some point, Gruber probably changed his mind and forgot that he had ever believed otherwise. People show a strong tendency to edit their recollections of prior beliefs to reflect the “correct” answer, and even brilliant economists are not immune to this common cognitive bias.

But though I do not fault his honesty, I also think that in January 2012, Gruber did believe that premium tax credits would only be available on state-created exchanges, and that this would give states a strong incentive to create exchanges.

More here from Peter Suderman. Avik Roy notes that “the irony is that a year later, Gruber was deriding as ‘nutty’ and ‘stupid’ the contention that the Affordable Care Act required subsidies to flow through state-based exchanges.” Never let it be said that Gruber allows a need for consistency to get in the way of his advocacy. Michael Cannon sees a legitimate chance to pile on, and does:

I don’t mean to overstate the importance of this revelation. Gruber acknowledging this feature of the law is not direct evidence of congressional intent. But Gruber is probably the most influential private citizen/government contractor involved in that legislative process. He was in the room with the people who crafted this bill. There may be videos of them talking about this feature too. (I wouldn’t know; I only researched congressional statements made pre-enactment.) At a minimum, however, with the D.C. Circuit and the Fourth Circuit and now Jonathan Gruber lining up against the idea that it is implausible that Congress could have meant what it said, we can dispense with that argument once and for all.

Even Dave Weigel, who is no friend of the Vast Right Wing Conspiracy, is forced to admit what anyone with eyes can see:

. . . this bolsters the libertarians’ case. Gruber is acknowledged, by everyone, as an architect of the ACA. There is, to date, no evidence that he flogged the carrot/stick subsidies idea on Congress, and as Cannon writes in a piece at Forbes, Gruber has done hours of scoffing at the rationale behind Halbig. It just happens that in early 2012, when Cannon was barnstorming states to get them to avoid creating exchanges, Gruber was telling them they had better create exchanges or they wouldn’t get subsidies.

Of course, there is a way for supporters of Obamacare to remedy the problems caused by the Halbig ruling, but Tyler Cowen points out why that remedy won’t be employed:

It would be much easier if (some) people would simply say “Of course this normally should be kicked back into the legislature for clarification.  But I don’t want to do that because I don’t regard Republican control of the House, and how that control is used, as a legitimate form of rule.”  One may agree, or not, but the nature of the case is pretty clear.

So, to sum up, opponents of the Halbig ruling are (a) against a plain-text reading of the Affordable Care Act, (b) against a plain-text reading of a point one of the chief architects (if not the chief architect) of Obamacare and Romneycare said repeatedly, and (c) against the very notion of democratic republicanism itself. Which paints them in a rather tight corner, don’t you think?

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Quote of the Day

I’m done apologizing for Israel.

It’s tiring to apologize over and over. Instead, I’ve decided to come clean: I am a progressive American rabbi who leans left pretty hard. I’ve been engaged, as a US faith leader, in work to reform gun laws, extend LGBT rights around the world, grant refuge to illegal immigrants, protect women’s reproductive choice, and more. Paint me blue.

So, when it comes to Israel, many of those with whom I engage in social reform expect me to react to Israel’s military actions in Gaza with scorn and criticism. To be fair, there are times when I do. My Zionism demands I speak out on behalf of the Israel that remains, in my world-view, the most ambitious project-in-process of the Jewish People. Whereas Israel’s 66 short years have witnessed strength and resilience that have redefined Jewish identity in profound ways, the global Jewish family remains interwoven with Israel. If you question this, scan the last week’s news for anti-Israel rallies in Antwerp, Los Angeles, Paris, Boston, and elsewhere that featured widespread anti-Semitic chants and violence against Jews.

So I’m a progressive US faith leader. I’m a Zionist in Berkeley, CA. I’m a Jew in the world, worried for my family. So here is my response to those criticizing Israel this week.

To those who suggest that Prime Minister Netanyahu is over-reacting to the missiles, I offer this response which I have now shared regularly at campus and communal conversations:

Israel is treating wounded Palestinians during this conflict, risking Israeli lives in surgical strikes to destroy weapons-smuggling tunnels created with building materials Israel allowed into Gaza for infrastructure projects to benefit Palestinian society. Just for a moment, consider the deaths that would result from Israel wishing harm on Palestinian civilians. In just the last 48 hours, Israel has allowed over 10 tons of goods into Gaza. During the past weeks, Israel has agreed to two humanitarian cease-fires. In the first hours of those ceasefires, Hamas rained down over 70 missiles onto Israel civilians.

I ask: What do Israel’s enraged critics truly desire? How is it possible to hear indignant claims of human rights violations in the context of Syrians slaughtered by the hundreds of thousands, state-sanctioned terrorism around the globe, and young immigrants treated like chattel by the US and other? Israel is doing its best, sacrificing its own children to preserve the lives of Palestinians.

[. . .]

My response has changed these last few weeks, in which three Jewish teens were murdered by Arab terrorists and Palestinians celebrated by distributing sweets to children and an Arab teen was murdered by Jewish terrorists and the Jewish world condemned the hatred. I am done trying to apologetically explain Jewish morality. I am done apologizing for my own Jewish existence.

Some will call this needless hyperbole. But, having watched in this last week anti-Semitic “die-ins” in Boston, violent assaults against Jews in Los Angeles and Antwerp, and an almost pogrom at a synagogue in Paris, I’m done mincing my own words.

We will do what we must to protect our people. We have that right. We are not less deserving of life and quiet than anyone else.

No more apologies.

Rabbi Menachem Creditor. Bravo.

The Scope of Hamas’s Terror Campaign

Any self-respecting nation would protect itself against this:

Hamas had apparently been preparing a murderous assault on Israeli civilian targets for the coming Jewish New Year Holiday, Rosh Hashanah, which begins on September 24, according anonymous sources in the Israeli security services, as reported today by the Israeli daily Maariv.

The Hamas plan consisted of what was to be a surprise attack in which 200 fighters would be dispatched through each of dozens of tunnels dug by Hamas under the border from Gaza to Israel, and seize kibbutzim and other communities while killing and kidnapping Israeli civilians.

Israeli soldiers already frustrated a surprise assault by Hamas through one tunnel from Gaza into the Eshkol district of Israel on July 19. The Hamas fighters escaped back into the tunnel, but the clash cost the lives of two Israel Defense Force [IDF] troops.

And yet, plenty of anti-Semites–who claim to only be anti-Zionists–want the only Jewish state in the world to be a good little victim, and to lie down and die in the face of terrorist assaults.

More Stories that Cannot Possibly Be True

From France:

Pro-Palestinian protesters clashed with police in central Paris on Saturday when hundreds of marchers defied a ban by French authorities to rally against Israel’s offensive in the Gaza Strip.

French interior minister Bernard Cazeneuve warned organizers in a television address that they would be held responsible for any clashes and could be prosecuted for ignoring a ban that was confirmed by the country’s top administrative court.

TV footage showed a minority of demonstrators wearing balaclavas and traditional Arab keffiyeh headdresses throwing projectiles at riot officers. Paris police said they had made 40 arrests.

French authorities have refused to permit several pro-Palestinian protests because they feared violence. Marchers clashed with riot police in and around Paris in recent weeks, with some targeting synagogues and Jewish shops.

“Anti-Semitic violence exists: we must face it head on,” Cazeneuve said.


Several thousand gathered in Place de la République in Paris, France to protest the Israeli operation in the Gaza Strip on Saturday, defying a state ban on the demonstration.

Protesters chanted “Israel is an assassin, Holland is an accomplice” and “we are all Palestinians,” and some were seen gesturing the quenelle, a reverse Nazi-salute, AFP reported. Tension mounted as hundreds of protesters, some masked, began throwing stones and projectiles at police who responded with tear gas.

Still more:

As the war in Israel rages on, with Operation Protective Edge into its third week, the war online continues to intensify.

France, in particular, has seen some of the worst demonstrations and violence in condemning Israel’s strike against Gaza, as anti-Israel demonstrators spent last weekend protesting, attempting to break into two Paris synagogues and vandalizing a kosher butcher shop.

If the rallies and news reports aren’t enough to confirm what is taking place there, the online forums and hate speech certainly is, with commentators relentlessly attacking Israel, holding what it seems to be a very strong bias against the Jewish state.

According to a new report from AFP, since Operation Protective Edge began two and a half weeks ago, leaving over 600 Palestinians and dozens of IDF soldiers dead, this brand of hate posted online has significantly increased in a country that boasts the largest Jewish and Muslim communities in Western Europe.

“As soon as you talk about Israel, it crystallizes all passions, with up to 20,000 or 30,000 comments sometimes after an article, of which we will only let 5% to 10% through,” explained David Corchia, head of an online moderation company of which both Le Figaro and Liberation (French news publications) are clients.

[. . .]

“We see racist or anti-Semitic messages, very violent, that also take aim at politicians and the media, sometimes by giving journalists’ contact details,” he added. “This sickening content is peculiar to this conflict. The war in Syria does not trigger these kinds of comments.”

And (naturally?) the Germans make an appearance:

Across Europe, many pro-Palestinian rallies have been taking a disturbing turn. Under the guise of opposing Israel’s actions in Gaza, thousands of protesters have given expression to virulent anti-Jewish sentiments–and often acted on them. In France, mobs have shouted “Death to the Jews,” and eight synagogues have been attacked. One journalist even overheard a man who “spoke loudly about ‘hunting Jews and killing them.’” In the northern suburbs of Paris, the neighborhood of one of France’s largest Jewish communities was ransacked, with cars and businesses destroyed, including a kosher grocery store that was burned down.

Elsewhere in Europe, similar scenes have unfolded. In the U.K., for example, anti-Semitic incidents have doubled, with one woman being physically assaulted by pro-Palestinian marchers in London, who called her a “Jew Zionist.” But perhaps the most striking and disturbing example of this phenomenon has come out of Germany, where one would have hoped primitive anti-Semitic mobs were a relic of history.

In a video taken at a large anti-Israel rally in Berlin this past Thursday, hundreds of protesters can be seen chanting in German, “Jew, Jew, cowardly pig, come on out and fight on your own” (“Jude, Jude, feiges Schwein, komm heraus und kämpf allein“).

Of course, I am absolutely gobsmacked by these stories. After all, I have been repeatedly assured that “anti-Semitism scarcely exists in the West.”

Rich Lowry has more to say on “useful idiots”:

Sound bites are usually meant to obfuscate as much as clarify. Rarely is one so incisive as the line uttered by Prime Minister Benjamin Netanyahu the other day about the difference between Israel and Hamas: “We’re using missile defense to protect our civilians, and they’re using their civilians to protect their missiles.”

This is the ground truth of the latest Gaza war that gets obscured by the relentlessly repeated stark disparity in casualties between the Gazans, hundreds of whom have died in the conflict, and the Israelis.

Each civilian death in Gaza is a tragedy, but who is ultimately responsible? The moral calculus here is simple. Hamas precipitated the war and persisted in waging it even when Israel was willing to accept an Egyptian offer of a cease-fire. Hamas hides its rockets in schools and places its command bunkers under hospitals. It wants war, and it wants civilian casualties.

Stalin infamously said that one death is a tragedy, a million is a statistic. Hamas is happy with either a tragedy (the four kids killed on the beach by Israeli shells last week) or a statistic (the climbing civilian toll), so long as it is death and so long as it can be used in the propaganda war against Israel.

This isn’t hard to understand. Yet even supporters of Israel give in to the twisted logic that the Gaza conflict is somehow an indictment of the Jewish state. Former Secretary of State Madeleine Albright said on CNN “that this is hurting Israel’s moral authority.” Which is exactly the conclusion Hamas wants “the international community” to draw from its depraved indifference to the safety of Gazans.

Jon Stewart did a controversial bit last week about how Israel has all the advantages in the conflict, what with its warnings via app to its civilians about incoming rockets and its ability to neutralize those rockets with its missile defenses.

Yes, how unfair. Israel invested in systems entirely devoted to protecting its civilian population from unprovoked attack. What dastardliness is the Zionist Entity capable of next?

Dean Obeidallah of The Daily Beast lauds Stewart for this in a piece headlined, “How Jon Stewart Made It Okay to Care About Palestinian Suffering.” It’s more like making it cool to be obtuse about the Gaza war.

Similar–and similarly welcome–points from Charles Krauthammer:

Israel accepts an Egyptian-proposed Gaza cease-fire; Hamas keeps firing. Hamas deliberately aims rockets at civilians; Israel painstakingly tries to avoid them, actually telephoning civilians in the area and dropping warning charges, so-called roof knocking.

“Here’s the difference between us,” explains the Israeli prime minister. “We’re using missile defense to protect our civilians, and they’re using their civilians to protect their missiles.”

Rarely does international politics present a moment of such moral clarity. Yet we routinely hear this Israel-Gaza fighting described as a morally equivalent “cycle of violence.” This is absurd. What possible interest can Israel have in cross-border fighting? Everyone knows Hamas set off this mini-war. And everyone knows the proudly self-declared raison d’etre of Hamas: the eradication of Israel and its Jews.

Read it all. Of course, none of these facts matter for the morally deranged, who relentlessly criticize Jewish people for not consenting to die quickly at the hands of violent lunatics. And facts certainly don’t matter for the benighted who turn their eyes and ears away from moral derangement any and every chance they get. But they ought to matter for the rest of us.


Neel Kashkari for Governor of California

George Will discusses Kashkari’s appeal, which might well prove to be considerable, given the politics of the state of California. The state would do well to elect a governor who has more than a passing amount of experience with the private sector, of course; hasn’t California had enough of career politicians like Jerry Brown, who have barely (if ever) worked outside of the political/governmental sphere? And to be sure, Will is right to identify Kashkari as representative of a new brand of Republicanism. If there is anything that the past few years have taught us, it is that the GOP desperately needs to change its brand. Kashkari could help the party do just that, and he could provide some much needed enlightened leadership to the Golden State. A win-win situation, if ever I saw one.

No Consumer Choice, Please. We’re Coloradans.

It turns out that if you use Uber in Colorado, you might have the car you’re riding in pulled over. You might have your own license examined by police (remember, you are a passenger, not a driver), you might be placed in danger, and you might have to deal with a police officer who doesn’t want to “debate the law” when you ask him whether you are committing an illegal act. Don’t believe that any of this might happen? Read this.

The Denver police have apologized for the behavior of the officer who precipitated this entire brouhaha, and that is all fine and good. But why did the brouhaha ever have to erupt in the first place? And while I am asking questions, what is it about Uber that causes people to lose their minds?

Quote of the Day

Imagine if I were to tell you there is a large group of government employees, with generous salaries and ridiculously cushy retirement pensions covered by the taxpayer, who enjoy incredible job security and are rarely held accountable even for activities that would almost certainly earn the rest of us prison time. When there is proven misconduct, these government employees are merely reassigned and are rarely dismissed. The bill for any legal settlements concerning their errors? It, too, is covered by the taxpayers. Their unions are among the strongest in the country.

No, I’m not talking about public-school teachers.

I’m talking about the police.

We conservatives recoil at the former; yet routinely defend the latter — even though, unlike teachers, police officers enjoy an utter monopoly on force and can ruin — or end — one’s life in a millisecond.

[. . .]

On Thursday in Staten Island, an asthmatic 43-year-old father of six, Eric Garner, died after a group of policemen descended on him, placing him in a chokehold while attempting to arrest him for allegedly selling cigarettes. A bystander managed to capture video in which Garner clearly cries out, “I can’t breathe!” Even after releasing the chokehold (chokeholds, incidentally, are prohibited by NYPD protocol), the same officer then proceeds to shove and hold Garner’s face against the ground, applying his body weight and pressure on Garner, ignoring Garner’s pleas that he cannot breathe. Worse yet, new video shows at least eight officers standing around Garner’s lifeless, unconscious body.

Who can defend this?

A.J. Delgado. And of course, the answer is that no one can defend this. As Delgado says, “many police officers do heroic works and, yes, many are upstanding individuals who serve the community bravely and capably.” But that doesn’t mean that there aren’t bad apples in the bunch, and certainly, conservatives should speak out against police brutality and the abuse of police power, which occurs more often than many care to admit, and which in fact amounts to an abuse of governmental power.

My (Partial) Change of Heart on the Death Penalty

Read this. I’ll wait.

Done? Good. Let me put out the fact that I do believe that there are some crimes so heinous, so horrible, that the state is justified in taking the life of the guilty party. Let me also put out the fact that I believe capital punishment is fully constitutional, so long as Eighth Amendment prohibitions against cruel and unusual punishments are not violated.

That last part, as you might imagine, is somewhat important. If the method of execution is cruel, heinous, painful, and/or amounts to torture, I have no problem whatsoever in saying that it is unconstitutional as a consequence. So when I read about Joseph Wood’s case–and for that matter, when I read about Clayton Lockett’s case–I have what I believe are entirely justifiable concerns that in our method of punishing the worst offenders, we may be violating the clear, plain text meaning of the Eighth Amendment.

I recognize that there are people who say that Wood did not suffer, that he was “snoring” or “comatose,” and that as a consequence, there are no Eighth Amendment violations to be found in this case. I would certainly hope that is the case, but there are other witnesses who say otherwise. What if that latter group is right? I imagine that there are those whose response to that last question might be “we don’t care. Wood committed a horrible crime. If he suffered while dying, so much the better.” While I can understand the sentiments that lead to that answer, I can’t accept them as valid. We do not execute in order to exact revenge, and there is that whole pesky Eighth Amendment thing to worry about.

As the New York Times article alludes to, the major reason we are having problems with lethal injection all of the sudden is that traditionally used barbiturates are no longer available, and the substitute barbiturates we are using may not be doing the job when it comes to alleviating the suffering of the condemned and making sure that an execution takes place quickly and humanely. Perhaps in the future, we might be able to solve the problems posed by the lack of these barbiturates, and in doing so, make lethal injection a humane form of execution once again. If we do so, I will likely support the use of lethal injection in executing the worst kind of criminal offenders.

But until that happens, I cannot and will not sign on to a method of punishment that may very well be cruel and unusual in its application, according to entirely plausible and credible reports. And no, that doesn’t mean that I don’t care about the victims of a crime, or that I have some kind of undue pity for genuinely bad people. What it does mean is that however bad a crime and however nasty a criminal, society’s response should not be a prolonged, agonizing method of execution that essentially involves torture in its application. And furthermore, what it means is that while I want us as a society to respond swiftly, effectively, and with certainty to the commission of crimes–especially horrible ones–I don’t want us to forsake our own Constitution and become savage and inhumane in the process.

Halbig v. Burwell Was Not an “Absurd” Result

Ilya Somin explains why:

In its recent controversial decision in Halbig v. Burwell, the US Court of appeals for the DC Circuit ruled that people purchasing health insurance under the Affordable Care Act are only eligible for federal tax credits if they do so through an exchange established by a state. Although the plain text of the ACA indicates that tax credits are only available to those who purchase insurance in an “[e]xchange established by the State,” many critics claim that the court should have refused to enforce this language because it creates an “absurd” result because it undermines the ACA’s goal of expanding access to health insurance.

There is indeed Supreme Court precedent stating that courts can sometimes refuse to enforce the plain meaning of a statute where doing so creates an absurd result. But, as Judge Griffith’s D.C. Circuit opinion emphasizes (quoting an earlier DC Circuit ruling), it is limited to cases where enforcement of the text would “render[ the] statute nonsensical or superfluous or . . . create an outcome so contrary to perceived social values that Congress could not have intended it.” In this case, however, the result is far from nonsensical. Indeed, the DC Circuit’s interpretation of the ACA reflects the sort of “cooperative federalism” approach that left of center academics and policy experts often praise in other contexts.

Read the whole thing, which is quite informative. Read as well Ed Whelan’s reply to Rick Hasen.

Peter Suderman on the Halbig Case

Earlier coverage of the Halbig case here. As Suderman points out, the challenge to the federal subsidies was entirely plausible and legitimate, and as a bonus, yet another court found that the Obama administration was in the process of breaking the law. As referenced in my earlier post, I know that there are people who are dismissive of the Halbig decision. But Suderman offers a number of reasons not to be, and shows that the challenge to the Obamacare subsidies is a great deal more substantive than critics of Halbig think or would prefer to believe.

Hamas Places Rockets in UNRWA Schools

The United Nations Relief Workers Agency for Palestine Refugees in the Near East (UNRWA) has schools in Gaza. Hamas has decided to place rockets in those schools. No, Hamas is not expressly named in the UNRWA denunciation (it constitutes cowardice for UNRWA to fail to denounce Hamas by name), but no one else is placing rockets amongst Palestinian civilians and deliberately putting them in danger in order to score some kind of propaganda coup against Israel. I am sure that there are some lunatics who will claim that Israel placed the rockets so that international community can blame Hamas, but I trust that the vast majority of people out there–and certainly just about all of this blog’s readership–won’t take such deranged claims seriously.

It really does give one an idea of just how incredibly monstrous Hamas is that they would deliberately and regularly endanger the very Palestinians it purports to champion. I know that there are those who try to find moral equivalence between Israel’s actions and those of its enemies. That job was never easy to begin with, and it just got harder. Between Israel and it’s enemies, there can be no doubt whatsoever that the former has much more respect for innocent human life than does the latter.

Shocking Stories of Anti-Semitism

Read this, and this. I must confess to being a little confused; I have, after all, been repeatedly assured that “anti-Semitism scarcely exists in the West.” Amazing how depressingly frequent the occurrence of something supposedly “scarce” can be, eh?

Relatedly, be sure to read Damon Linker’s open letter to Andrew Rosenthal, in which Linker employs magnificent scorn to magnificent effect. A taste:

As editorial page editor of the New York Times, you’re a very busy man. But I was so excited by Timothy Egan’s column from last weekend that I couldn’t resist writing to thank you for your good work — and to pass along a handful of proposals for some op-eds of my own. (My bosses at The Week are a little skittish about taking on the kind of bold pieces Egan has inspired me to write.)

It was so thrilling to read in the pages of America’s leading newspaper about how “faith-based fanatics” are making this the “summer of the violent God,” with religious zealots rampaging around the globe.

It really was the audacity of the comparisons that inspired me. I loved how Egan showed the underlying connection among all these events — Muslim extremists in Nigeria kidnapping and enslaving girls to prevent them from receiving an education; Muslim militants of ISIS expelling Christians from the Iraqi city of Mosul, where they’ve lived for 1,700 years; the “rage that moved Hamas to lob rockets on birthday parties in Tel Aviv, and Israelis to kill children playing soccer on the beach in Gaza”; and Supreme Court justices ruling that women at some companies may have to pay out of pocket for some forms of contraception.

That’s what punditry is all about: showing how everything fits together. One of my heroes, the sociologist Daniel Bell, defined an intellectual (and what is an opinion journalist if not an intellectual?) as someone who practices and perfects the art of drawing distinctions and highlighting continuities where others haven’t noted them before. Egan did that masterfully. I, for one, had never noticed the deep and ominous parallels between Samuel Alito giving the conservative Christian owners of Hobby Lobby a limited exemption from government regulations and Boko Haram burning dozens of churches to the ground during Sunday services.

But the parallels are there, and they are undeniable. Religion is what connects them. And thanks to Egan’s reasoning, I’m now inclined to think it’s obvious that the world would be an immeasurably better place if religion would just go away. The (non-Jewish) Israelis and (non-Muslim) Palestinians would live in peace and happy harmony. Non-Muslim militants wouldn’t bother to expel non-Christians from Iraq. And of course, the U.S. Supreme Court wouldn’t feel obliged to protect the freedom of non-religious business owners to practice their non-faith.

Peace in the Middle East and free birth control for everyone — who could possibly object?

Only a religious fanatic, that’s who.

That’s the kind of sharp thinking Egan inspired as soon as I read his column.

There is much more, and Rosenthal and the Times deserve to be raked over the coals for shoddy thinking and writing–which they decided to inflict on the public, no less. Read it all. I will only add that Timothy Egan is very much in the running to win the award as Worst Columnist the New York Times Has to Offer.

Your Good Deed for the Day

I hereby direct you to support LawfareAs I have written before, it is one of the best and most informative sites out there, and certainly the best at discussing the intersection between law and national security policy. Indeed, Lawfare is so good, that it is routinely the subject of Denial of Service Attacks and attacks of more hawkish varieties1 launched at the site and its authors; my philosophy is that if you are scaring the benighted, you are definitely doing something right, and Lawfare certainly qualifies on that score.

So, give to Lawfare! It will be exciting to see how the site evolves, and I am glad that there are so many dedicated and talented people working on the site who aim to leave us better informed than they found us on the subject of law and national security issues.

1. As mentioned in the link footnoted, “I have cited and written favorably about Lawfare in the past. I have also had one of my essays called “thoughtful” by Jack Goldsmith, and I have guest-posted for Lawfare as well.” You can read the rest of my disclaimer at the link, but those are the pertinent parts, I believe.

Shorter Elijah Cummings

How dare Republicans harass the head of the IRS, who said that Lois Lerner’s e-mails may not be recoverable, even though, as it turns out, Lois Lerner’s e-mails may indeed be recoverable, and for all we know, the head of the IRS may be wrong about other things as well!”

Quote of the Day

ABD AL-RAHMAN III was an emir and caliph of Córdoba in 10th-century Spain. He was an absolute ruler who lived in complete luxury. Here’s how he assessed his life:

“I have now reigned above 50 years in victory or peace; beloved by my subjects, dreaded by my enemies, and respected by my allies. Riches and honors, power and pleasure, have waited on my call, nor does any earthly blessing appear to have been wanting to my felicity.”

Fame, riches and pleasure beyond imagination. Sound great? He went on to write:

“I have diligently numbered the days of pure and genuine happiness which have fallen to my lot: They amount to 14.”

Arthur Brooks. Do yourself a favor and read the whole thing.

D.C. Circuit Court of Appeals: Federal Health Care Subsidies are Illegal

The text of the Affordable Care Act informs us–as Peter Suderman points out–that the ability to dole out subsidies are limited to “Exchange established by the State.” It should therefore surprise precisely no one to find out that federal subsidies for Obamacare–subsidies which are not organized through “Exchange established by the State”–are illegal according to the plain text of the law, and should never have been given out in the first place. More from Suderman:

. . . Case Western University Law Professor Jonathan Adler, who was instrumental in laying the legal groundwork for the case, made the point that this is not the court changing the law. It is the court interpreting the law and its clear language. Which means that any of the ruling’s effects, including the loss of subsidies, were built into the law when it was passed.

“If people lose those subsidies, it’s because the courts rule that those subsidies are and always have been unlawful,” he said. The administration “never had the authority” to dish them out. “Halbig did not cause those effects. Those are the effects of the Affordable Care Act.”

“If that causes dislocation, if that causes disruption, I think the responsibility lies with the IRS and the administration,” Adler also said.

Quite right, of course, although one can easily imagine proponents of the ACA objecting to this common sense observation because it inconveniences them. More from Professor Adler himself, who anticipates the very reaction that I anticipate:

Although this decision is faithful to the text of the PPACA – that is, faithful to the text Congress actually enacted, as opposed to the health care reform some wanted or now wish they had gotten — it will provoke howls of outrage from ACA supporters. (Let the disdain campaign begin.)

To be sure, as Professor Adler himself notes, this is not the end of the matter. The Obama administration will likely seek en banc review of the D.C. Circuit decision, and there are other jurisdictions that have decided the matter differently. I suspect that the case is going to go before the Supreme Court before long, and if it does, one certainly hopes that the Court will decide that words have meaning and that we should respect the actual meaning of words, rather than wishing that words would mean something else, and trying to give those wishes the force of law.

Oh, and of course, the White House’s reaction to the ruling is absolutely precious:

“You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs, regardless of whether it was state officials or federal officials who were running the marketplace,” said Josh Earnest, the White House press secretary. “I think that is a pretty clear intent of the congressional law.”

One thing we can be relatively sure of is the fact that Josh Earnest is in absolutely no danger whatsoever of being able to get “a fancy legal degree.”


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