Patterico's Pontifications


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.


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?


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.


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.


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.


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.


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.”


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.”


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.)


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.


California: Immigration News

Filed under: General — Dana @ 9:25 am

[guest post by Dana]

Because California isn’t already facing enough of a crisis with its southern border and illegal immigrants, now news about legal immigrants:

California Governor Jerry Brown just signed a new law that would reduce the number of legal immigrants eligible for deportation after being convicted of a misdemeanor, even crimes such as child molestation and identity theft.

SB 1310 will cut the maximum possible sentence for a misdemeanor by one day, a move that would halt deportation for immigrants convicted of the offense.

Federal law maintains that immigrants sentenced to 365 days in jail are eligible for deportation. The new law will set California’s maximum sentence at 364 days, making sure no immigrant is ever deported under the federal rule.

On top of this, it’s also been reported that Brown is being pushed to run for president in 2016. While Brown has not made a public statement about his plans, he has already raised millions of dollars…

In some good news regarding California and the border, the federal government canceled plans to fly illegal immigrants from Texas to California. No official reason was given, however, it would appear the protests may have had a lot to do with it.

The Customs and Border Protection agency on Monday gave no reason for the cancellation. An official with the agency’s union said the move reflected public opposition.

Gabe Pacheco, a spokesman for the National Border Patrol Council union, said the cancellation of the California flights was likely due to public pressure.

He said agents were worried about safety and being stretched too thin by the new arrivals, even as they collected clothes and shoes for the young people and families who make up the majority of those detained.

“It was political, plain and simple,” Pacheco said. “Public outcry after people found out that illegal immigrants from Central America were most likely going to be released here in California made them stop.”


President Obama Doesn’t Need To Bother With News Because He Already Knows What They’re Going To Report…Except When He Doesn’t

Filed under: General — Dana @ 8:22 am

[guest post by Dana]

Last night in Seattle, President Obama spoke at two fundraisers. Donors paid between $500 and $20,000 for one of the fundraisers, and $25,000 per person for the other one (dinner to support the super-PAC that works to keep Democrats in power in the U.S. Senate).

The president has received criticism for jetting off on a three-day West Coast fundraising trip in light of the many crises currently taking place both here and abroad.

At one of the fundraisers, the president made an eye-popping comment:

“Part of people’s concern is just the sense that around the world, the old order isn’t holding and we’re not quite where we need to be in terms of a new order that’s based on a different set of principles, that’s based on a sense of common humanity, that’s based on economies that work for all people,” Obama said Tuesday, speaking at a Democratic National Committee fundraiser at an Italianate mansion across Lake Washington from the downtown skyline.

As he often does, Obama said he’s spending his time out on the road trying to fight that kind of cynicism from seeping in.

Some of that cynicism, Obama joked, was because of the news, which he said he doesn’t tend to watch himself.

To the crowd in Seattle, though, he said about the news, “Whatever they’re reporting about, usually I know.”

Which is funny because clearly he does not know what they are going to report about UNTIL HE READS THE NEWS REPORTS:

From the 2012 Benghazi attacks that killed four Americans, to the IRS targeting conservative nonprofit groups, to the revelations about veterans dying while waiting for care because of falsified lists at the Department of Veterans Affairs, the president and his top aides have admitted that they found out about them in the media.


Halbig: Exemption of Territories from Coverage Requirements Now Understandable As a Litigation Strategy

Filed under: General — Patterico @ 7:38 am

Remember this odd story from the other day?

Looking for a place where Obamacare doesn’t exist? Try moving to the U.S. Territories, where the Obama administration just provided a pretty big waiver from the law’s major coverage provisions.

The Affordable Care Act’s design dealt a pretty big problem to the territories. It required insurers there to comply with the law’s major market reforms — guaranteed coverage, mandated benefits, limits on profits, etc. — without requiring residents to get coverage or providing subsidies to help them afford coverage. The territories — Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam and the Northern Mariana Islands — have been warning for years that would destroy their insurance markets. The individual mandate and the subsidies are the major ways the ACA tries to bring healthy people into the individual insurance market to balance out sick patients who can no longer be denied coverage.

That was until Wednesday, when the Obama administration told the territories that the coverage requirements actually don’t apply to them. The exemption was posted on a Health and Human Services Web site on Thursday.

This seemed a little puzzling . . . until you read the Halbig decision. Then everything comes into focus: they were sacrificing coverage in the territories to establish a litigation position ahead of the decision.

Here it is in a nutshell. The government argued that the law provided a “three-legged stool” — and the three legs were: (1) “guaranteed issue” (where insurance companies must issue coverage to those with pre-existing conditions); (2) the mandate; and (3) subsidies. The government said that you can’t remove any of these legs without the stool collapsing; therefore the intent to have broad-based subsidies is clear. So, for example, you can’t possibly have a situation where you have “guaranteed issue” unless you have an individual mandate, which establishes a broad base of customers, which makes the economics work for the insurance companies.

The Halbig court replies: sure you can, apparently — because that’s what you do in the territories:

Yet 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, 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.”

My guess is that the Government knew that the court was going to be making this argument, somehow — and the Government wanted to be able to tell the Supreme Court (or en banc D.C. Circuit) that it had, in fact, exempted the territories. They wanted not to seem reactive to the Halbig decision — so they made sure to make the announcement before the decision came out.

My favorite part is the quote from HHS: “HHS is not authorized to choose which provisions of the [ACA] might apply to the territories.” Right before they did exactly that.

When the Government trumpets that exemption before future courts, the lawyer for Halbig et al. had better be ready with that quote.

Is HHS allowed to exempt the territories? Apparently, the Obama administration answers as a character from a Monty Python sketch: No! No! No! . . . Yes. A bit.

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