Patterico's Pontifications

7/25/2014

Jonathan Gruber’s “Speak-o” Number Two

Filed under: General — Patterico @ 6:09 pm

Hoo-boy. If you had any doubts about why you look at the words of a statute rather than some inchoate “intent,” this ought to dispel those doubts lickety-split.

So this morning, we saw how the chief architect of ObamaCare, Jonathan Gruber, had said, “if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits.” D’oh! Looks like the Halbig plaintiffs didn’t make up that concept!

A lefty writer from the New Republic asked him why on earth he said that, and his answer was that it was an off-the-cuff remark — not a “typo,” but a “speak-o”:

I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it. . . . But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.

Well. As it turns out, it was a “mistake” very much like Congress’s “mistake” in limiting subsidies to plans bought on exchanges “established by the state.” Namely: it wasn’t a mistake at all. How do we know this? Meet “Speak-o Part Two: The ‘Prepared Remarks’ Version”:

The key passage:

Through a political compromise, it was decided that states should play a critical role in running these health insurance exchanges.

. . . .

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.

SPEAK-O!!! Except:

Morgen is the fella who found this clip, by the way. The best part?

Asked over email whether those remarks were a mistake, too, Gruber wrote back, “same answer.”

Four points.

First: I don’t generally like to call people liars. But when Gruber says he was making the oral equivalent of a typo, Gruber is lying — and this is exactly what lefties are doing by claiming that the “established by the state” language is a typo. Isn’t it funny how all these supposed errors say the same thing? — namely, that subsidies are available only on exchanges being run by the states. When Congressmen and women say the written language of the law is a mistake, they are lying, just as surely as Gruber is lying when he describes his repeated and prepared point as a “speak-o.”

Second: I know I keep saying this, but it’s important: This is why you can’t allow the interpretation of a law to be government by intent. It’s easy to lie about intent, and not so easy to lie about the wording of the law — because, there’s the wording, right there in black and white.

Third: in listening to other interviews with this guy, it has become more and more clear that tying subsidies to state establishment of exchanges was deliberate. Not only was it a “political compromise” (as Gruber says in the quote above), but it is consistent with his oft-repeated talking point that ObamaCare did not represent a federal takeover of health care. If you listen to any extended interview with him, he makes that point again and again. The people who wrote this law really thought all the states would set up these exchanges, and that bad assumption explains everything.

UPDATE: Oh, I forgot point four! Four:

Another point that comes up in one of Gruber’s interviews is another reason that federal exchanges would have been created even though they didn’t offer subsidies. Namely, the exchanges are cited by Gruber as being part of a cost-containing measure. He says that Blue Cross is able to charge more just because they’re Blue Cross. On an exchange, where all the insurers’ prices are placed side by side, the direct comparison will lead to lower prices — or so the theory goes. Again: this is yet another reason that the Halbig decision makes sense.

Meriam Ibrahim’s Release: Whom to Thank

Filed under: Current Events,General,Obama,Politics,Religion — JVW @ 10:24 am

[guest post by JVW]

Meriam Ibrahim, the Sudanese Christian woman married to an American citizen, was flown to Rome from Khartoum yesterday, thus bringing to an end the saga of her death sentence handed down by a Sudanese Islamic court for alleged apostasy and adultery.

The trouble apparently began when Ms. Ibrahim traveled to Sudan on a Sudanese passport to visit her ailing mother. She brought her 18-month-old son, Martin, and was at the time in the second trimester of a pregnancy. Her Sudanese-American husband, Daniel Wani, is confined to a wheelchair due to MS and therefore remained in the couple’s New Hampshire home. The trouble in Khartoum began when Ms. Ibfahim’s Muslim half-brother, Al Semani Al Hadi, brought charges against her for allegedly abandoning the Islamic faith to marry a Christian man. Ms. Ibrahim contends that her mother is an Eastern Orthodox Christian and she has always practiced the Christian faith, but authorities declared that by having a Muslim father Ms. Ibrahim was obligated to follow the tenets of Islam, even though her father had left the family early in Ms. Ibrahim’s youth. Her marriage to a Christian and the birth of her son Martin (along with her obvious pregnancy) thus became adultery in the eyes of the Sharia court. Ms. Ibrahim was sentenced to death for the “crime” of apostasy and tossed in prison and placed in shackles. The death sentence was “mercifully” delayed so that Ms. Ibrahim could give birth to her second child, a daughter, Maya, and the 100 lashes that she was to receive for adultery were cancelled. According to both Ms. Ibrahim and Mr. Wani, she gave birth while her legs remained chained.

After an international outcry caused the Sudanese court to release her, she was once again arrested at the Khartoum Airport and charged with carrying false travel documents. This time, she and her children were allowed to serve their detention at the U.S. Embassy, but the family had to worry not only about the possibility of not being permitted to leave but also having the death sentence restored. Finally, she was granted new travel documents and permitted to leave with her children yesterday. The lawyer for Ms. Ibrahim told the Daily Mail that her release was secured by the Italian government, who provided the plane and dispatched a deputy foreign minister to escort the family to Rome where they had an audience with Pope Francis.

So you would think that the wife of a United States citizen with a son and a daughter who are natural-born United States citizens would have been way too frightening of a target for a Sudanese Sharia court, but we simply cannot ignore the degree to which radical Islam apparently believes that there are no consequences for poking the U.S. in the eye as long as Barack Obama is President.* As he so often does, Mark Steyn sums up the impotence of the Obama/Kerry crew perfectly:

Just to reiterate what happened here: A barbarian regime seized an American’s family and jailed them – and throughout their imprisonment no one in the United States Government did anything and neither the President nor his Secretary of State said a word. The British and Canadians helped, and the Italians sent a government plane and the deputy foreign minister. The Pope had time for the Wani family, but not President Fundraiser.

Meanwhile, the last remaining Christians are being forced to leave Mosul, a city that was once considered the heart of Christendom in Mesopotamia. And so it goes.

[* I am willing to concede that there exists the possibility that the Obama Administration worked relentlessly behind the scenes to secure the release of Ms. Ibrahim and her children, but thought that taking a strong public stance would complicate their efforts. Perhaps they coordinated very closely with the British, Canadians, and Italians on this matter, and someday the truth will come out and we will see that they deserve a great deal of the credit for convincing Sudan to release her. It’s not beyond the realm of possibility. Still, if I had to bet in this matter, I would put my money down on passivity and fecklessness by the administration where radical Islam is involved. If it can’t be accomplished with drones, this President doesn’t seem to want to try.]

- JVW

Video: Key ObamaCare Drafter Says in 2012 That You Don’t Get Subsidies on Federal Exchanges – Updated with more video

Filed under: General — Patterico @ 7:45 am

Bring out the flaming skull, or the nuclear bomb, or the siren, or whatever mental image you prefer to accompany Big News:

[I]n January 2012, Jonathan Gruber—an MIT economics professor whom the The New York Times has called “Mr. Mandate” for his pivotal role in helping the Obama administration and Congress draft the Affordable Care Act—told an audience at Noblis that:

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.

Boom. Watch it yourself:

The relevant part of the video is at 31:25. You can skip ahead in the video above, or can automatically start it there by clicking this link.

That’s what we lawyers call a “statement against interest.”

Here’s a quote from the New York Times article that calls this fellow “Mr. Mandate”:

After Mr. Gruber helped the administration put together the basic principles of the proposal, the White House lent him to Capitol Hill to help Congressional staff members draft the specifics of the legislation.

Might be a good idea to ask this guy why it says “exchange established by the state,” huh? I have a weird hunch he might know. But probably doesn’t want to say . . .

(H/t RB Pundit on Twitter.)

UPDATE: IT WAS A PUN! Ha. He now says that he can’t figure out why he said that, and that it must’ve been a mistake. Well, sure. For lefty ideologues like Gruber, it’s usually a mistake when they tell the truth.

He should apply to be a White House Press Secretary. He lies poorly.

Update –
More video with prepared remarks where he speak-o’ed.

Even JournLista hack Weigel had to acknowledge this.

Quick Links I Have Meant to Blog

Filed under: General — Patterico @ 7:33 am

Which means some of them are a day or two old. Mom’s in town, so that takes precedence.

ONE.

Ezra Klein assures you that Halbig is not going to destroy ObamaCare:

The Halbig case could destroy Obamacare. But it won’t. 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.

. . . .

For Halbig to unwind Obamacare the Supreme Court would ultimately have to rule in the plaintiff’s favor. And they’re not going to do that. By the time SCOTUS even could rule on Halbig the law will have been in place for years. The Court simply isn’t going to rip insurance from tens of millions of people due to an uncharitable interpretation of congressional grammar.

He doesn’t predict anything; rather, he Voxsplains how the future will inevitably turn out. It’s typical Klein: snotty, super-confident, and probably wrong. As I have said, I think Justice Roberts and four other Justices will uphold the Halbig decision. I disagreed with Roberts’s initial ObamaCare decision, because I thought the penalty was a penalty — but I think his opinion was principled. Y’all are free to disagree. We’ll see in, what? Two years or so?

TWO.

Jamelle Bouie at Slate assures you that, even if subsidies are not available under federally established exchanges, Republicans will pay the price:

Of course, what is bad could become catastrophic if the unlikely happens and conservatives prevail at the D.C. Circuit and the Supreme Court. There have been tweaks and changes, but in the nearly eight decades we’ve had a welfare state, middle-class Americans have never lost an entitlement. And indeed, our largest and most popular programs—Social Security and Medicare—are nearly untouchable. Even anti-entitlement crusaders like Wisconsin Rep. Paul Ryan have been forced to pose as protectors when appealing to the public.

Simply put, a Republican Party that demolishes Obamacare isn’t one that regains a governing majority—it’s one that throws the health care system into chaos and destroys itself as a viable national party.

“Middle-class Americans have never lost an entitlement.” True enough. It’s about damned time they did.

THREE.

Perry says illegal aliens have committed a $#!&-ton of crime in Texas:

Sean, there have been over the course of the last five years, since the fall of ’08, over 203,000 individuals who have come into Texas illegally who have been booked into our county jails. Those individuals have accounted for over 3,000 homicides and over 8,000 sexual assaults. We can’t afford to wait for Washington to secure this border. We’ve had enough.

Appalling, if true. But is it true? I’m not sure. According to the stats I see here, that’s almost half the murders that have occurred in Texas over the last five years. I count 6223 murders from 2008-2012 (which appears to be the most recent year for which statistics are available) and 38,185 rapes in that same time period. Perry has illegals committing half the murders and about 1/5 of the rapes.

I’m slightly skeptical that illegal aliens are responsible for that high a percentage of the murders. But it may be closer to that percentage than I think — and any number is a problem we shouldn’t have to deal with.

FOUR.

ObamaCare is open to fraud:

An undercover operation found that the majority of fake Obamacare applications submitted were approved by the health law’s enrollment system.

Fake applicants were able to get subsidized insurance coverage in 11 of 18 attempts, according to a report from the nonpartisan Government Accountability Office. The agency conducted the sting operation to test the strength of the Affordable Care Act’s eligibility-verification system.

Shocking that an entitlement might be rife with fraud, isn’t it?

Answer Meee These Questions, Uh, Two

Filed under: General — Patterico @ 7:08 am

1) What color is a yield sign?

2) How old are you?

Don’t look at anyone else’s answer until you have formulated your own answer in your head, and left it in the comments. You needn’t answer #2 if it’s too personal.

7/24/2014

Russia Providing Direct Help to Ukrainian Separatists?

Filed under: General — JVW @ 2:38 pm

[guest post by JVW]

You don’t say!

Color me surprised – well, maybe not. Good thing that President Prom Queen now has all that flexibility that he promised Putin in the run-up to the 2012 elections.

- JVW

A Look At The Death Penalty

Filed under: General — Dana @ 10:10 am

[guest post by Dana]

Yesterday, Joseph Rudolph Wood III was executed by lethal injection in Arizona. It took him nearly two hours to die.

His attorneys argued that he gasped and snorted throughout the ordeal, and referred to it as a “botched execution” and as such, it would fan the flames of the national debate about the death penalty.

It took so long for Wood to die after receiving an injection of midazolam combined with hydromorphone that his attorneys had time to file an emergency appeal asking officials to save his life as the drugs apparently failed to fully take hold.

“At 1:57 p.m [officials] reported that Mr. Wood was sedated, but at 2:02 he began to breathe,” said the legal filing in federal court from public defender Jon M. Sands. “At 2:03 his mouth moved. Mr. Wood has continued to breathe since that time. He has been gasping and snorting for more than an hour. At 3:02 p.m. … staff rechecked for sedation. He is still alive.”

However, contrary to the claims made by Wood’s attorneys, Stephanie Grisham of the Arizona Attorney General’s office disagreed, claiming that Wood was not gasping, but rather snoring:

There was no gasping of air. There was snoring. He just laid there. It was quite peaceful.

Governor Brewer also weighed in. Due to the length of time it took for Woods to be executed, she ordered the Department of Corrections to do a full review:

“One thing is certain, however, inmate Wood died in a lawful manner and by eyewitness and medical accounts he did not suffer,” Brewer said in a statement. “This is in stark comparison to the gruesome, vicious suffering that he inflicted on his two victims – and the lifetime of suffering he has caused their family.”

A few days prior to Wood’s execution, writing in a dissent to Wood’s appeal, U.S. 9th Circuit Court Chief Judge Alex Kozinski discussed the harsh reality of an execution, and an execution by lethal injection:

“Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and beautiful — like something any one of us might experience in our final moments.

“But executions are, in fact, brutal, savage events, and nothing the state tries to do can mask that reality. Nor should we. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”

Further:

Kozinski said he has voted in favor of capital punishment and remains “generally not opposed to the death penalty.” But he said states should scrap lethal injection protocols, which have flooded the federal courts with constitutional challenges.

“I personally think we should go to the guillotine, but shooting is probably the right way to go,” Kozinski said.

The guillotine was quick and “pretty much foolproof,” he said, but probably would not be accepted by the public. A firing squad would be “messy but effective.”

*His dissent could be read as much as an indictment of capital punishment as a call for harsher methods, however. He cited California’s inability to execute anyone since 2006 because of legal challenges.

“Old age, not execution, is the most serious risk factor for inmates at the San Quentin death row,” he wrote.

In calling for firing squads, Kozinski said, “Eight or 10 large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time.”

“If we as a society cannot stomach the splatter from an execution carried out by a firing squad, then we shouldn’t be carrying out executions at all.”

The background of the dissent is at the second link.

A few reactions to his comments:

“He is invested in being provocative,” UC Berkeley law professor Franklin Zimring said. “And what he is doing is reacting to the way in which the public relations halo around lethal injection has dissolved in calendar year 2014.”

“Kozinski has always been a judge willing to push the boundaries. He’ll say things others are thinking but are afraid to admit,” said Adam Winkler, a law professor at UCLA. “Whether one agrees with his endorsement of firing lines, he’s making an important point. We keep the death penalty, but try to mask it’s brutality.”

–Dana

Brian Beutler’s Criticism of Halbig Judges Missed This One Very Important Detail

Filed under: General — Patterico @ 8:01 am

Brian Beutler of the New Republic had a post yesterday titled The Conservative Judges Who Ruled Against Obamacare Missed This One Very Important Detail. The post selectively quotes the judges in the Halbig majority, omitting the part that destroys the premise of his entire post.

I’ll quote Beutler at length so you can see what his omission was, and how it kills his argument:

We now know that two conservative judges on the D.C. Circuit Court of Appeals have declared it illegal for the government to subsidize Obamacare health plans in states that didn’t set up their own insurance exchanges. In reaching that conclusion, Judge Thomas Griffith, who authored the opinion of the court, sought to rebut each of the Obama administration’s arguments to the contrary—that the law clearly contemplates subsidizing health plans in every state whether or not a state built its own marketplace.

But in one instance he based his counterargument on information that became outdated less than one week ago. And the recent development turns that counterargument on its head.

One of the White House’s most straightforward arguments is that neither Congress nor the administration would have approved a punitive system so at odds with the ACA’s ultimate, stated goal of achieving near-universal insurance coverage. The law seeks to achieve near-universal coverage by mandating the purchase of guaranteed, subsidized (and thus affordable) health plans. Take away the subsidies, and the plans are no longer affordable. If the plans aren’t affordable, they’re no longer compulsory. And if they aren’t compulsory and affordable the coverage expansion goal will be unattainable.

But if you’re going to conclude that the law unambiguously makes those subsidies conditional, you ought to dispel every notion that Congress had other ideas, which is what Griffith set out to do.

I sympathize with the poor clerks who were assigned to Google for evidence that the administration and Congress were content with ignoring the importance of the subsidies to the expansion goal. This Sarah Kliff article from December is what they came up with. It turns out that due to drafting quirks, the ACA neither mandates coverage, nor provides for subsidies, in several U.S. territories. Per Griffith, “the supposedly unthinkable scenario the government and dissent describe—one in which insurers in states with federal Exchanges remain subject to the community rating and guaranteed issue requirements but lack a broad base of healthy customers to stabilize prices and avoid adverse selection—is exactly what the ACA enacts in such federal territories as the Northern Mariana Islands, where the Act imposes guaranteed issue and community rating requirements without an individual mandate. This combination, predictably, has thrown individual insurance markets in the territories into turmoil. But HHS has nevertheless refused to exempt the territories from the guaranteed issue and community rating requirements.”

If the subsidies aren’t central to the program in Guam, why must they be self-evidently necessary in Nebraska? He didn’t get the memo.

Last week, Kliff wrote an update. “In letters sent July 16, the Obama administration notified territorial regulators that their residents would be largely exempted from health law requirements…perhaps most importantly the requirement that insurers offer coverage to all shoppers.”

In other words, contrary to opinion of the court, the administration believes that absent subsides (and thus absent a broadly applicable mandate) the coverage guarantee has to go as well, leaving the law’s explicit coverage goals well out of reach.

Look again at the way Beutler quoted the Halbig majority. Beutler’s version of the quote purports to end in a period: “But HHS has nevertheless refused to exempt the territories from the guaranteed issue and community rating requirements.” But actually, there is a comma after the word “requirements” — and what Beutler leaves out is . . . rather significant. Here’s the actual quote:

But HHS has nevertheless refused to exempt the territories from the guaranteed issue and community rating requirements, recognizing that, “[h]owever meritorious” the reasons for doing so might be, “HHS is not authorized to choose which provisions of the [ACA] might apply to the territories.”

That’s my emphasis. As I pointed out yesterday, HHS initially admitted that it had no authority to exempt territories from guaranteed issue (i.e., forcing insurance companies to cover pre-existing conditions). HHS’s subsequent reversal is best understood as staking out a litigation position ahead of the Halbig decision. The apparent purpose of the policy change was so that lawyers could claim in future court arguments that the law is unworkable unless all its component parts are in effect. (And if folks like Sarah Kliff and Brian Beutler want to trumpet that position in online lefty media, so much the better.) I believe the odd timing of the announcement, just days before Halbig was announced, was due to the Administration’s desire to avoid the appearance that they were simply reacting to the decision.

On Twitter, Beutler has claimed that he omitted that part of the court’s quote because his piece “wasn’t about” the part he left out. But that claim does not hold up to scrutiny. The whole point of Beutler’s piece was to contradict the court when the court said: HHS has taken the position that the law can, in fact, be workable even if parts of the law are not in effect. But that was not the court’s point. The court’s main point was that the law itself did not exempt territories from guaranteed issue even though it did exempt them from the mandate. In other words, the drafters of the law (not HHS) did not require all three legs of the “three-legged stool” (guaranteed issue, mandate, and subsidies) in the territories. And HHS initially agreed, only because it “recognized” that it had to — admitting that the law’s very terms compelled them to require guaranteed issue without the mandate.

The point is: the law’s drafters did not always require all three legs of the stool — contrary to the Adminstration’s arguments in court.

The fact that HHS did a complete 180 days before Halbig and exempted territories from guaranteed issue, even though they previously said they had zero authority to do that, does not undercut the court’s point at all. It just shows that HHS was trying to bring its policies into line with the lawyers’ arguments — even if doing so violated the law, by their own admission.

And if Brian Beutler had provided his readers with the court’s entire quote, his readers would have known that.

(H/t: John Sexton.)

7/23/2014

Another Day, Another Judge Strikes Down Another Gay Marriage Ban

Filed under: General — Patterico @ 9:17 pm

Los Angeles Times:

A federal judge in Colorado ruled Wednesday that the state’s ban on same-sex marriage is unconstitutional.

However, the ruling was stayed pending an appeal.

The Wednesday ruling marks the 25th district court ruling against a gay marriage ban since last year’s Supreme Court rulings.

This has become so commonplace it barely rates a blog post.

But it does. Barely.

Drafting Error BS

Filed under: General — JD @ 11:02 am

[guest post by JD]

This is the best article I have read about the new “drafting error” claims from the outraged Leftists and MFM.

Drafting error, my arse.

—-JD

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