Patterico's Pontifications

3/4/2015

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.

3/3/2015

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. . . .

- JVW

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.

Don’t Get Too Excited About That Fifth Circuit Case on Obama’s Amnesty

Filed under: General — Patterico @ 7:39 am

You may have heard about a case pending in the Fifth Circuit challenging Obama’s amnesty for “dreamers.”

Don’t get too excited about it.

First, let’s set the stage. Allahpundit, commenting on Obama’s grand plan to raise taxes through executive action (about which more here) says:

All that said, this is actually good news. The more Obama abuses his authority, the more seriously I suspect the five conservatives on the Supreme Court will take that amnesty lawsuit that’s trickling its way up through the Fifth Circuit. The further rogue Obama goes, the more pressure the Court’s majority may feel to wade into this and pull him back. Here’s hoping, because lord knows Congress won’t do anything to stop him.

What is this mysterious Fifth Circuit case? In November, the D.C. Caller reported:

Congressional leaders and state attorneys general looking to use the courts to block Obama’s latest amnesty decree need to remember that much of the work was already done in April of last year. Although forced to dismiss the case for lack of jurisdiction, Judge O’Connor of the Northern District of Texas found that ICE union chief Chris Crane and 9 other ICE agents were “likely to succeed on the merits of their claim in challenging [deferred action for childhood arrivals (DACA)] as contrary to the provisions of the Immigration and Nationality Act.”

Although the Court found that the Civil Service Reform Act stripped it of the jurisdiction to decide federal employee disputes, Judge O’Connor’s ruling lays out the arguments that plaintiffs with firmer standing could use in their efforts to overturn Obama’s unconstitutional decree.

I decided to look up the audio for the oral argument, which I listed to recently, and which you can listen to here.

I’m the guy who told you that the panel was going to rule against Obama in Halbig, based on listening to the oral argument. Unfortunately, I have to be the guy to tell you that — unless I am interpreting the argument incorrectly — the Fifth Circuit is probably going to rule for Obama here.

I won’t spend a long time with the details. The judges are Carolyn King, Jerry Davis, and Priscilla Owen. There are two issues: standing and the underlying validity of Obama’s order.

It was my impression that the court could go either way on standing, but was leaning towards granting standing, based on the argument that the plaintiffs’ alternate remedies were illusory. It was not clear whether they accepted the argument that not deporting illegals led to greater impositions on state resources.

On the underlying issue of the validity of Obama’s order, however, the judges seemed very concerned about prosecutorial discretion. The plaintiffs’ lawyer said that the law is crystal clear that notices to appear must be issued to illegal aliens, and argued further that discretion to dismiss such notices to appear was limited by statute to situations where the notice was improvidently issued or otherwise not merited by the statute. The judges, by contrast, seemed to think that prosecutorial discretion not to remove was very broad. They seemed impatient with the distinction that the notices to appear must be issued, if in the end, removal is a matter of prosecutorial discretion.

One of the judges also argued that Congress has never provided sufficient funding for the statute to be enforced by the letter of the law. The plaintiffs’ lawyer’s response provided interesting insight into how enforcement works in this area. He said ICE agents are typically not in the field looking for illegals. Instead, they are sitting at their desks, looking for leads. A flow of leads comes across their desk, but under this policy, they can’t follow up on many of the leads that come to them.

The judges didn’t seem persuaded. Apparently, the Supreme Court’s support of prosecutorial discretion is very strong.

I think prosecutorial discretion will be the theme of the opinion, and Obama is going to win this case.

I hate to be the one to have to tell you.

Hillary Clinton Exclusively Used Personal Email Account During Her Tenure At State

Filed under: General — Dana @ 6:58 am

[guest post by Dana]

Because she is Hillary Clinton:

Hillary Rodham Clinton exclusively used a personal email account to conduct government business as secretary of state, State Department officials said, and may have violated federal requirements that officials’ correspondence be retained as part of the agency’s record.

Mrs. Clinton did not have a government email address during her four-year tenure at the State Department. Her aides took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act.

It was only two months ago, in response to a new State Department effort to comply with federal record-keeping practices, that Mrs. Clinton’s advisers reviewed tens of thousands of pages of her personal emails and decided which ones to turn over to the State Department. All told, 55,000 pages of emails were given to the department. Mrs. Clinton stepped down from the secretary’s post in early 2013.

Given that “under federal law, however, letters and emails written and received by federal officials, such as the secretary of state, are considered government records and are supposed to be retained so that congressional committees, historians and members of the news media can find them”, it begs the question: why wouldn’t a sitting secretary of state who was appointed by the president of the most transparent administration in history, not comply with policy?

The existence of Mrs. Clinton’s personal email account was discovered by a House committee investigating the attack on the American Consulate in Benghazi as it sought correspondence between Mrs. Clinton and her aides about the attack.

Two weeks ago, the State Department, after reviewing Mrs. Clinton’s emails, provided the committee with about 300 emails — amounting to roughly 900 pages — about the Benghazi attacks.

As to whether this will impact her future plans to run for president, and whether supporters will now have doubts about her honesty, well, if “Barb” in the comments at the linked article is representative of Democrats at large, then the answer is a resounding no:

I don’t care. Having a woman in the oval office is more important to the evolution of gender equality and that is more important than anything to me. Women still are objectified everyday and still make much less and still face hurdles as we all live in the shadow of the patriarchy. And all of the politicians are the same in the end, so I vote for the one that may give women an easier/less hard time in this world of ours, regardless of their email address.

Also, as of this morning, I don’t see any comments about Hillary’s “misstep” from possible contender Elizabeth Warren. And more importantly, not a peep from Scott Walker or Rand Paul. Jeb Bush, however, is on it:

(Just for fun, I wonder which media outlet will demand an examination of Every. Single. Email. that Hillary sent because, well, you know, Palin!)
–Dana

3/2/2015

Happy Texas Independence Day!

Filed under: General — Patterico @ 10:06 pm

IJReview celebrated with an inside look at Ted Cruz’s Senate office, and all its Texas-themed decorations. My personal favorite was the last letter from the Alamo:

Screen Shot 2015-03-02 at 10.03.11 PM

A tip of the cowboy hat to DRJ.

California GOP Welcomes Gays Under The Big Tent

Filed under: General — Dana @ 8:48 pm

[guest post by Dana]

By a vote of 861-300, California Republicans at the state GOP convention officially recognized the Log Cabin Republicans by granting the group a charter. It is one of the nation’s first gay groups to be officially sanctioned:

Shawn Steel, the Republican National committeeman from California, said in a floor speech that the group’s members have “supported Republican candidates though good years and bad years.”

“They have been solid soldiers in their fight against leftist tyranny in California,” Steel said. “I would welcome them in our organization. … I am proud to have them in the California Republican Party.”

State Party Chairman Jim Brulte supported the move.

However, not everyone was on board with the decision due to the “Family” section of the state’s Republican party platform which they believed to be at odds with the decision:

“We support the two-parent family as the best environment for raising children, and therefore believe that it is important to define marriage as being between one man and one woman. We believe public policy and education should not be exploited to present or teach homosexuality as an acceptable ‘alternative’ lifestyle. We oppose same-sex partner benefits, child custody, and adoption.”

Objections were voiced:

Assemblywoman Shannon Grove, R-Bakersfield, said the group did not meet the criteria, arguing that it advocates for a “certain lifestyle preference.”

Also opposed was Sen. Mike Morrell, R-Rancho Cucamonga, who said the debate brought to mind a quote from Ronald Reagan amid calls to move to the political center. He said, “We must not compromise our political principles for political expediency.

“What we do here today, ladies and gentleman, matters,” he said. “Because as California goes, so goes the nation.”

There is also the question of whether this will lead to the party changing its platform on marriage in the future. However, nothing in the state party’s historical definition of marriage changed due to the decision.

–Dana

Josh the Spokesliar: Obama Probably Won’t Watch Netanyahu Speech

Filed under: General — Patterico @ 6:26 pm

What a tool:

“Will the president watch the speech tomorrow?” Jansing asked.

“I haven’t looked at the president’s schedule for tomorrow,” Earnest said. “I doubt that he will spend his whole time watching the speech.”

OK. I guess sometimes we don’t watch speeches of people we don’t like.

For example: I don’t watch Obama speeches.

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