Patterico's Pontifications


Yates Decision: A Harbinger for Halbig/King or Not?

Filed under: General — Patterico @ 8:10 pm

The lefties are crowing that today’s decision in Yates v. United States is a Harbinger of Things to Come re: the King v. Burwell ObamaCare case (oral arguments one week away!). Are they right? I’m not sure . . . but it is more than a little distressing to see two conservative justices sign onto opinions that twist language into a pretzel to keep it from meaning what it says.

The opinion is here (.pdf). Basically, the federal government has some absurd regulations that govern the all-important size of grouper that one can catch (and keep) in federal waters. Mr. Yates, a fisherman, had run afoul of these regulations, and a federal inspector was On the Case. The inspector told Yates to keep the too-small fish segregated from the rest until he got to port — but when he got to port, it turned out that he had ordered his crew to defy the agent’s orders, and toss the fish overboard.

You’re not supposed to do that.

The government chose to charge him with a violation of 18 U. S. C. § 1519, which criminalizes the concealment or destruction of “any record, document, or tangible object” with the purpose of impeding a federal investigation. Yates argued that a fish is not a “tangible object” because something something context and blah blah statutory construction.

In essence, the main argument was that the provision was in Sarbanes-Oxley, which was “intended to prohibit, in particular, corporate document-shredding to hide evidence of financial wrongdoing.” But there is some other junk in there, including canons of construction with Latin names and references to things like the title and the location of the provision within the statute.

The Court accepted this mumbo jumbo and held that “tangible object” somehow means that the tangible object must be “one used to record or preserve information.” Having grafted this non-existent qualification onto the statute, the Court found that the fish did not qualify under their new definition, and reversed the conviction.

Justice Kagan rips apart the majority’s arguments (and those of Alito’s concurrence) quite deftly in her dissent.

Are the justices deciding this case with King v. Burwell in mind? Perhaps — some more so than others, I suspect. But the fact is that context is always relevant to statutory language. As Kagan says, nobody really disagrees with that. It’s just that, as applied here, the context and all the other legalistic yapping do not undercut the conclusion that, well, a fish is a tangible object.

End of story.

P.S. If this case frightens you regarding King, be of good cheer. Winning or losing that case won’t matter, it now appears — because, as Orrin Hatch recently made clear, Republicans are going to cave immediately if we win the case:

Hatch said that while Obamacare has hurt millions of people and needs to be ultimately repealed and replaced, Congress should do something in the meantime to mitigate the effects if the high court decides to invalidate that financial aid.

“I don’t think we can stand by and simply let the shortcomings of the law hurt people more,” he said during a speech at the Heritage Foundation in Washington, D.C.

“In the coming days, I will release details of a short-term solution for Americans who may be affected,” Hatch said. “That solution will address immediate concerns and set the stage for a permanent solution in the future.”

Of course. You can’t take the goodies away, so you have to give people “short-term, temporary” subsidies until such time as you develop the political courage to . . . make those subsidies long-term and permanent.

Did anyone really expect anything different?

P.P.S. A limited solution to caving: The Freedom Option.

NYT Confuses Scott Walker’s Skill And Dexterity With ‘Struggling’

Filed under: General — Dana @ 7:02 pm

[guest post by Dana]

In the media’s continuing efforts to break Scott Walker and put him in his place, today’s New York Times opened their article titled For Scott Walker, a Consistent Approach to Tough Questioning by informing readers – as if it were a fact – that Walker is struggling with questions posed by the media:

As Gov. Scott Walker of Wisconsin struggled to respond to questions about the president’s patriotism and religion last week, some saw an unprepared presidential hopeful in the national glare — not ready for “the N.F.L.,” as one participant in a Sunday morning talk show put it.

As the NYT cited those two vexing questions that the existence of civilization apparently hinges upon, I thought surely I must have missed something in Walker’s responses. Something like a struggle, and an undeniable one at that.

Asked whether he thought Obama was a Christian, Walker answered:

I don’t know.

And when reminded that the president has publicly spoken about his faith:

I’ve actually never talked about it or I haven’t read about that. I’ve never asked him that. You’ve asked me to make statements about people that I haven’t had a conversation with about that. How [could] I say if I know either of you are a Christian?

Asked whether he thought Obama loved America, Walker answered:

You should ask the president what he thinks about America,” Walker told The Associated Press while in Washington for a weekend meeting of the National Governors Association. “I’ve never asked him so I don’t know.”

Struggle? What I see is a politician walking through a minefield with skill and dexterity and deftly taking control of the conversation. And I definitely see a man who is infuriatingly smarter than those who seek to trip him up.

Of course none of this has anything to do with Walker “struggling” to answer gotcha questions or what he really thinks of Obama, and it certainly has nothing to do with an indignant media defending the president’s honor, this in spite of Dana Milbank’s hysterical efforts to appear as such. It is simply further evidence of a smug and partisan press continuing their hit job on Walker and most amusingly being unable to grasp that their very actions are having the opposite effect they hoped for: instead of branding Walker as a president-hating presidential-hopeful who pandered to the “Obama is a Muslim from Kenya who hates America” crowd and displayed a cowardice and insidiousness by his responses, they have instead helped shoot Walker right to the top of the polls. When a group is so smugly enamored by their own cleverness they are rendered without self-awareness, and the painfully obvious goes unseen.


The Patterico Music Project: The Original Version of “The Same Mistake”

Filed under: General,Music,Music by Patterico — Patterico @ 6:18 pm

Tonight I am sharing the original version of “The Same Mistake,” which I debuted here Monday evening as sung by Northern Pikes front man Jay Semko, one of my favorite singers Of All Time. (Lyrics are here.)

As in the past, I ask you to bear in mind that these are primitive recordings done on primitive equipment — namely, a cassette-based TASCAM recorder, operated around 1992 or so. Details about how I did these recordings are here.

As with the others, you will note some differences between this version and Jay’s. I have two guitar parts and a faux-bass line, accomplished by playing the top string on my little nylon-string acoustic guitar, and turning up the bass on my TASCAM all the way for that track. This version has harmonies and background vocals that Jay could not replicate in a “live off the floor” performance.

Oh — and then there is the most salient difference: on my version the singing is poor, while Jay’s singing is completely awesome.

Without further ado, here is my version:

And as a reminder, here is the version Jay Semko did for me:

P.S. This will be the last entry in the “Patterico Music Project” series for a while. Today I received an update from one of the other musicians performing one of my other songs. It’s in process, but I don’t expect a final recording any time soon. Quality takes time. I am, therefore, in no hurry. So, look for entry #4 at some unspecified future date.

Net Neutrality Vote Tomorrow

Filed under: General — Patterico @ 5:35 pm

Enjoy your last few hours of freedom before Barack Obama gets his hands on your information pipeline.

Obama Vetoes Keystone Pipeline

Filed under: General — Patterico @ 7:43 am

He didn’t want to do it. He felt he . . . owed it to us:

President Obama vetoed a bill Tuesday that would have approved the Keystone XL pipeline, making good on a threat to reject a proposal embraced by Republicans as a jobs measure but opposed by environmentalists as contributing to climate change.

“The presidential power to veto legislation is one I take seriously,” Obama said in his veto message to the Senate. “But I also take seriously my responsibility to the American people. And because this act of Congress conflicts with established executive branch procedures and cuts short thorough consideration of issues that could bear on our national interest — including our security, safety, and environment — it has earned my veto.”

Well, we wouldn’t want to interfere with the powers of another branch now, would we?

January 20, 2017 can’t come quick enough. 694 days, but who’s counting?

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