Patterico's Pontifications


Harrison Ford Hurt in Plane Crash

Filed under: General — Patterico @ 5:15 pm

Despite the fact that the plane crashed into a golf course, Barack Obama was not hurt.

Best wishes to Mr. Ford for a speedy and full recovery.

Scott Johnson on the Dangers of Ignoring Plain Text in Favor of Subjective Intentions

Filed under: General — Patterico @ 7:54 am

As I said last night, it is far from clear, but the good guys in the King v. Burwell case may lose. Scott Johnson explains how this results from the left’s placing the “spirit” of a law over its plain meaning, which he calls the triumph of the leftist will (h/t MD in Philly).

As Johnson reminds us, William Brennan once did the same thing with the Civil Rights Act of 1964, which said:

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee…to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

As Johnson notes, William Brennan turned “it shall be . . . unlawful . . . to discriminate against any individual because of his race” into the polar opposite: “it shall be lawful to discriminate against any (white) individual because of his race.” The reason? Forget the words, Brennan said. We have to look at subjective intentions. And the subjective intention of the law was to help blacks.

That would be the same thing as taking the words “established by the state” and treating them as though they did not exist. Progressives say they can do that because of the “spirit” of the law — i.e., the alleged subjective intentions of those who wrote the law. Me, I don’t care whether the people who wrote those words actually intended to limit subsidies to exchanges established by the state or not. That’s what they said, and what they said ends the matter.

To hell with their subjective intentions. Those mean nothing.

There was a time when some conservatives argued that what a legal text “means” depends on the subjective intention of the legislators. That it would be “activism” which “violates the separation of powers” for a judge to ignore subjective “legislative intent” for a purely textual reading. I argued until I was blue in the face against such an interpretation, explaining that it undermines the rule of law if the written word is not interpreted as meaning what it says.

With the advent of Halbig/King, curiously enough, no conservative disagrees with me any more. And that’s a good thing.

It is important to remember: when progressives tell you to ignore the words they wrote in a law, that is how progressives undermine the rule of law. They use an appeal to “intention” to make the words mean whatever they say they mean. This sort of thing, if accepted, means the rule of law disappears.

It’s the only thing we have left, and it’s slipping away, day by day.

Hillary Clinton Responds To Email Kerfuffle

Filed under: General — Dana @ 6:30 am

[guest post by Dana]

Following a subpoena for her emails by a House committee investigating the Benghazi attacks, Hillary Clinton has responded to the the kerfuffle about exclusively using a personal email account rather than an official email account during her tenure at the State Dept. This also after it was discovered that the external email server registered under a pseudonym and traced back to her New York home, appeared to allow users to completely delete emails and leave no trace behind.

From Clinton’s twitter account:

I want the public to see my email. I asked State to release them. They said they will review them for release as soon as possible.

For a look at whether Clinton violated the law, both the Federal Records act and federal penal statute “making it a felony for the custodian of government records to hide or tamper with said records”, you can read Andrew McCarthy’s take here. However, he cautions against jumping the gun:

I think there are other potential criminal violations as well. We don’t know enough about the former secretary of state’s emails yet to make a judgment about whether they involved classified matters – which could trigger liability under the espionage act (which governs the maintenance and severely limits the permissible disclosure of national security secrets). It is hard to imagine that no classified matters are implicated, but let’s set that aside for the moment.



DoJ Report Completely and Utterly Exonerates Darren Wilson

Filed under: General — Patterico @ 8:42 pm

The report could not be more clear: according to all the credible evidence, Officer Wilson acted in reasonable self-defense:

Screen Shot 2015-03-04 at 8.39.43 PM

Does anyone who pushed the narrative that Michael Brown was an innocent victim of a racist violent cop want to apologize now?

Yeah, I didn’t think so.

P.S. The meme has been “Hands up, don’t shoot!”

Except his hands weren’t up:

Screen Shot 2015-03-04 at 8.35.31 PM

And he didn’t say “don’t shoot!”

Screen Shot 2015-03-04 at 8.33.30 PM

Other than that, great meme.

King v. Burwell Oral Argument Analysis: Things Not Looking Great for the Good Guys

Filed under: General — Patterico @ 7:50 pm

I have now read the transcript from today’s oral argument in King v. Burwell (.pdf). Here the executive summary: the count stands at 4-3 in favor of Obama, with Roberts and Kennedy up in the air. If I had to guess, I’d say Roberts is looking good.

Kennedy, not so much.

In other words: my prediction, previously optimistic, has just changed. I now think we’ll lose. I’m not positive about this. But that’s the way it looks to me.

(I want to make it clear that I have not read any other analysis of the argument. You’re getting straight Patterico analysis in this post.)

The only good news is that conservatives can leave John Roberts alone for a while and go back to picking on Anthony Kennedy — who, in my mind, is far more deserving of opprobrium.

Here are the details, which are entertaining if (in the end) rather discouraging:


King v. Burwell (Halbig ObamaCare Case): Oral Argument in Supreme Court Today

Filed under: General — Patterico @ 7:49 am

Today is the day. In preparation, hackwork pieces are appearing all over Big Media, seemingly all from the pro-Obama side. (Shocking and unexpected!) Michael Cannon had a little fun with the fact-challenged offering from Sarah Kliff at Vox, and notes no fewer than 18 problems with it. I won’t go over all 18, but let’s whet your appetite with a couple of them:

3. “As anyone who covered it at the time…remembers, the law’s passage was an absolute mess,” Kliff reports, and the “messy language and loose ends that legislators expected to get ironed out simply became part of the law.”

Nevertheless, Kliff reports that all congressional staff involved with the drafting of the Patient Protection and Affordable Care Act swear they meant to authorize the disputed taxes and subsidies in states with federal Exchanges. She also reports that all journalists who reported on the drafting process swear that every time the topic arose, Democratic staffers always said these provisions would be authorized in states with federal Exchanges. (Well, except these members of Congress and this journalist.)

Kliff neglects to mention that there is absolutely zero contemporaneous evidence of any kind that supports those recollections. Or that contemporaneous discussions of that issue, like this one by Jonathan Cohn, show (A) that even the sharpest journalists weren’t paying attention to this issue, and (B) to the extent they did, their impressions were consistent with the subsidies being conditional.

Thus, the only contemporaneous evidence that speaks directly to the question presented to the Court is the explicit statutory text clearly limiting subsidies to Exchanges “established by the State.” That’s probably something Kliff should have mentioned. You know, so readers can decide whether to take the “if you like your health plan, you can keep it” crowd at their word.

It’s worth noting, I think, that the link to “this journalist” goes to an NPR piece that says:

Indeed, on Monday a group of Democratic House members from Texas wrote to President Obama urging that the House approach be preserved in the final bill. They worry that because leaders in their state oppose the health bill, they won’t bother to create an exchange, leaving uninsured state residents with no way to benefit from the new law.

Absolutely nobody ever said that!!!! Oh, except that guy.

Oh, and except Jonathan Gruber . . . multiple times. But, you see, Kliff advances the compelling “we should all believe Jonathan Gruber” argument, which Cannon refutes easily:

16. Kliff writes, “[Jonathan] Gruber has disavowed the remarks [in which he told audiences that the law conditions subsidies on states establishing Exchanges], saying that he spoke ‘off the cuff’ and made a mistake. There’s reason to believe him: Gruber spoke regularly to dozens of reporters during this period and never mentioned this idea to any of them.”

Kliff should have mentioned there is also reason not to believe Gruber’s disavowals. Gruber made that claim multiple times, and his attempts to explain those comments away reveal, um, inconsistencies.

Kliff also should have mentioned that at least one of his “off the cuff” remarks was anything but. As our pal Morgen said at the time:

Cannon’s piece is worth reading in full. But as we prepare for today’s argument, I would like to point out one major logical flaw that runs through so many of the pro-Obama arguments: the argument that “we are right, and because we’re right, that means were right.” So many of their arguments simply assume the thing they are trying to prove.

For example, there is the “Moops” argument advanced by Jonathan Chait, which references the Seinfeld episode in which George tells Bubble Boy that he got a trivia question wrong because the card says the “Moops” invaded Spain in the 8th Century. This argument is advanced to show that a drafting error is just a drafting error. Putting side (as Cannon shows) the fact that the government is not arguing that the language was a drafting error, the argument still assumes what it claims to prove. It is a fact that the Moors invaded Spain, goes the argument, and it is a fact that the language was drafted to give subsidies to federally established exchanges. Therefore, you must read the language as giving subsidies to federally established exchanges.

See how easy arguments are when you assume your conclusion to be true?

Likewise, the pro-Obama folks argue that, as doofus Scott Lemieux puts it, “the Cannon-Adler interpretation may be unconstitutional, since states have to be given fair notice before a federal benefit is taken away.” Of course, for it to be “taken away” it had to be granted to begin with. But if you just assume the subsidies were there, then you can’t take them away without telling the states clearly. Once again, the argument assumes the very thing the pro-Obama faction is trying to prove: that Congress granted the subsidies to begin with.

The fact is, even if everybody assumed that people would get subsidies, that appears to have been based on another poor assumption: that all states would establish exchanges.

Somewhere Aristotle is spinning in his grave, trying to figure out how his principles of logic have been so badly distorted.

I’ll try to offer some commentary on the oral argument this evening.


GOP Utterly Caves on Amnesty/DHS Funding

Filed under: General — Patterico @ 6:00 pm

Raise your hand if you’re surprised.

I see no hands.

Deputy Inspector General: “There Is Potential Criminal Activity” In Disappearance of Lerner Emails

Filed under: General — Patterico @ 5:43 pm

Weird how they were able to find plenty of emails when the IRS just couldn’t find any:

The IRS’s inspector general confirmed Thursday it is conducting a criminal investigation into how Lois G. Lerner’s emails disappeared, saying it took only two weeks for investigators to find hundreds of tapes the agency’s chief had told Congress were irretrievably destroyed.

Investigators have already scoured 744 backup tapes and gleaned 32,774 unique emails, but just two weeks ago they found an additional 424 tapes that could contain even more Lerner emails, Deputy Inspector General Timothy P. Camus told the House Oversight Committee in a rare late-night hearing meant to look into the status of the investigation.

“There is potential criminal activity,” Mr. Camus said.

How about that.

Iran Rejects Obama’s 10-Year Nuke Offer

Filed under: General — JVW @ 1:01 pm

[guest post by JVW]

Back to the drawing board.

Look for the Obama/Kerry Axis of Stupid to cave in 5. . . 4. . . 3. . . 2. . . .


Obama Interested in Raising Taxes Through Executive Action

Filed under: General — Patterico @ 7:43 am

Seems like I’m making that up to make a point about amnesty, right?

I’m not.

White House Press Secretary Josh Earnest confirmed Monday that President Obama is “very interested” in the idea of raising taxes through unilateral executive action.

“The president certainly has not indicated any reticence in using his executive authority to try and advance an agenda that benefits middle class Americans,” Earnest said in response to a question about Sen. Bernie Sanders (I-VT) calling on Obama to raise more than $100 billion in taxes through IRS executive action.

Obama would not be the first president to try to establish tax policy through executive order. Our Grand Hero of the Depression, FDR, tried to tax people at a top marginal rate of 100% (yes, 100%) by executive order. Historian Burton Folsom explains that FDR

issued an executive order to tax all income over $25,000 at the astonishing rate of 100 percent. Congress later repealed the order, but still allowed top incomes to be taxed at a marginal rate of 90 percent.

The rationale was the rationale always used by government to infringe on your liberties in jaw-dropping ways: We’re at war, don’t you know.

As Allahpundit notes in his post on this, Obama won’t tax the middle class with this tactic. He’ll restrict the action to corporate taxes — since, as we all know, corporate taxes are paid only by corporations, and are not passed on to consumers.

(If you are rolling your eyes at that last sentence, you’re my kind of reader!)

See, Obama has learned that he can do anything he likes, whether the Constitution gives him power to do it or not, as long as it’s popular. Corporate taxes are popular because the public doesn’t understand that they will end up paying them, and sees them as a way to Stick It To The Man. Obama knows by now that, if the policy is popular, Congress will not do a damned thing to oppose it.

P.S. Allahpundit thinks that the courts will rein Obama in if he goes overboard. Don’t count on it.

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