Affordable Care Act

Last Month’s List o’Links

Transgender pride

Notes from the Culture Wars:

Kevin Thornton, or, queer alt country on being gay and forty in the twenty-first century. (HuffPo)

Paige Lavender on Texas and the transgendered. (HuffPo)

Tresa Baldas tries to explain the unfortunate intersection of compassion, hatred, and your doctor. (Detroit Free Press)

Sam Levine, and this time it’s Kentucky and the transgendered. (HuffPo)

Cavan Sieczkowski on Freud on homosexuality. (HuffPo)

• Two reports, from Tammy Mutasa and Casey Weldon on a die-in demonstration at Fountain Square, Cincinnati, calling attention to violence against transgendered. (WLWT, WCPO)

• Education? State? Justice? Jennifer Bendery reports that the transgendered also have the Department of Defense on their side. (HuffPo)

• At this point, Michael Tomasky’s piece tying social conservative politics to the precipitous decline spectacular crash of Wisconsin Gov. Scott Walker’s presidential ambitions to … Jerry Falwell. (The Daily Beast)

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The Growing Scandal of King v. Burwell

FILE - In this Feb. 12, 2008, file photo, Chief Justice John G. Roberts, Jr., is seen in Providence, R.I.  Turned away at the Supreme Court, congressional Republicans sketch a filibuster-proof strategy to repeal the nation's health care law in 2013.  But it hinges on two uncertainties ― Mitt Romney capturing the White House and the party seizing even narrow control of the Senate (AP Photo/Stephan Saviola, File)

Sometimes the lede buries itseslf; the point will hide in plain sight. It is an easy thing to do, hiding in plain sight, when nobody is looking for you:

The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: “What’s it to you?”

To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.

Which brings us to the four plaintiffs in the latest threat to President Obama’s health care law, to be heard next week. Recent news reports have raised the question of whether any of them has a dog in the fight.

But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do. The court is sometimes accused of being opportunistic in using the standing doctrine to avoid legal questions it wants to duck, but ignoring the issue when it is eager to weigh in.

(Liptak)

Two sentences; did you miss them?

No, really, this is important: “But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do.”

One of the hallmarks of the Roberts Court is its disrespect for standing case law and precedent. The Chief Justice is an example of why the longstanding conservative complaint about liberal judicial activism is a swindle. John Roberts seems to apply more of an “if it feels good, do it” attitude to the judiciary, but at the same time he’s conscious of appearances, which is why conservative majorities on the Court will occasionally do that weird thing where they overturn case law but then disclaim that they’re not overturning anything, such as we’ve seen in Ricci (Civil Rights Act) and Texas (Voting Rights Act). And there is also the conservative majority’s clear tendency to throw cases for politics by carving out one-time exceptions to the law, such as we saw in Safford, in which a school was forgiven a sex offense because ignorance is bliss and, well, why would a young girl be upset by adults forcing her to strip down so they can leer and prod at her body, and Ricci, in which the New Haven Civil Service Board followed the law but was held in fault for doing so.

One of the reasons this Court is so hard to predict is, in fact, its inconsistency. And the reason it is hard to pin down that inconsistency is because it is so inconsistent. To the one, it is not a purely institutionalist streak. To the other, it is not purely traditionalist. Rather, it seems Chief Justice Roberts is happy to keep pushing the image of calling balls and strikes just as long as nobody points out that the strike zone keeps changing.

The Constitution is John Roberts’ playground, nothing more. Inconsistency will be the hallmark of his chiefdom. (more…)

More on King v. Burwell

The Supreme Court building in Washington, D.C.

A thematic question: At this point, how is it still a question?

There is a bit somewhere in a book about the Universe asserting what seems nearly circular, that we know what we know is right because it is what we know. That is, of course, an insufficient paraphrase, a memory of how the point felt, but it is also true that if what we think we know is that wrong, there would be no satellite communications. Try a simpler version. If you know a football coach, test a proposition; there is only so long one can hear people say a professional athlete “sucks”. Not a good day, maybe in a larger slump, but you don’t distill in the process and elevate to that valence if you suck. One might think similar things of, say top-tier electoral politics, but no, it doesn’t work that way. It is supposed to, or so we might imagine, except Sarah Palin was nominated to run for vice-president once upon a time, and we all watched Mitt Romney’s disastrously ill-executed campaign for the presidency in two years ago.α

Certes, such comparisons are notoriously vague, but here is the theme: At some point, we cannot maintain confidence if certain properties remain variable and unresolved; if questions of a particular nature and context remain in effect, how is the larger paradigm expected to function at a given valence?

Or perhaps we should simply start with standing. A juristic context. We considered the issue briefly, yesterday, but something about awestruck disbelief seems to have gotten the better of us.

Point being that one might wonder how standing could remain a potentially affecting question when a case reaches the Supreme Court.

Just sayin’.

However, Louise Radnofsky and Brent Kendall bring the question back to focus for The Wall Street Journal:

One of the plaintiffs in the Supreme Court case against the Affordable Care Act listed a short-term-stay motel as her address when she joined the lawsuit, potentially calling into question her basis for suing.

Rose Luck is among four plaintiffs suing the Obama administration to eliminate tax credits under the law that make health insurance cheaper for millions of Americans. They say the wording of the 2010 law allows consumers to tap the credits only in states that run their own insurance exchanges, and not their home state of Virginia, which is one of as many as 37 states that use the federal enrollment system.

And at this point it’s easy enough to make a point about how this sort of technicality shouldn’t matter; after all, the case has survived, anyway, and has achieved SCOTUS valence.

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The Main Attraction?

Speaker of the House John Boehner (R-OH8)

“Just because some Republicans want to pretend that before January 2009 presidential power had been limited to pardoning Thanksgiving turkeys doesn’t mean they are right.”

Jonathan Bernstein

And the hits keep coming. ‘Tis a bold headline for Bloomberg View: “Boehner Betrays Congress”, and Jonathan Bernstein leaves little room for doubt about his perceptions:

I’ll say it again: Speaker John Boehner and House Republicans aren’t asking for authority to be returned from the White House to Congress. They want an imperial judiciary that could trump either of the elected branches.

Jonathan Bernstein (via BloombergView)In a system of separated institutions sharing powers, which is what the Constitution created, all three branches do things that look a lot like legislating, but laws can trump administrative or judicial rule-making. That gives Congress serious clout within the system. This lawsuit, however, is an abdication of that clout. In effect, it says that the courts, not Congress, should have the last word when there’s a dispute between branches.

Filing this lawsuit amounts to institutional treason. Boehner and House Republicans should be ashamed. The rest of us can only hope that the courts rescue them by keeping to precedent and tossing this lawsuit into the garbage.

To the other, the suit is filed. In a way, that is actually surprising. It is not quite that it seems like yesterday that House Republicans found themselves in need of a new lawyer after the one they hired quit the case, owing to the sort of political pressure one’s law firm might apply when one is about to publicly humiliate the firm with an act of juristic malpractice; it wasn’t yesterday, but two months ago. After hyperpartisan lawyer David Rivkin quit the case for having bitten off too much hyperpartisanship for his firm, Baker Hostetler, to chew, the GOP turned to William A. Burck of Quinn Emanuel Urquhart & Sullivan, who had just finished the laborious task of failing to defend former Virginia First Lady Maureen McDonnell.

Late last month, then, we learned that Mr. Burck was also stepping down. Josh Gerstein and Maggie Haberman of Politico summarized the situation thus:

Rivkin’s firm withdrew in September after health-care-related clients pressured the firm to back out of representing the House in the Obamacare-related suit. Two sources told POLITICO in recent days that a similar scenario played out with Burck’s firm, with clients bringing pressure to get the firm off the case.

How about three days ago? Is that close enough to feel like yesterday? For whatever reason, Jonathan Turley of George Washington University decided to take up the case. Lauren French of Politico reported ot Tuesday:

“Professor Turley is a renowned legal scholar who agrees that President Obama has clearly overstepped his constitutional authority,” said Michael Steel, a spokesperson for Speaker John Boehner. “He is a natural choice to handle this lawsuit” ....

.... “Even for $500-per-hour in taxpayer dollars, Speaker Boehner has had to scour Washington to find a lawyer willing to file this meritless lawsuit against the president,” said Drew Hammill, a spokesperson for Minority Leader Pelosi. “Now, he’s hired a TV personality for this latest episode of his distraction and dysfunction.”

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A Lingering Question

Detail of animation by Mark Fiore, 14 November 2014, via Daily Kos Comics.

“One of the most fascinating things about this election was comparing what people actually believe in versus what or who they actually voted for. Voting against your own interests seemed to be the dominant theme in this election. Happy with your Kentucky Kynect health exchange, brought to you by Obama’s Affordable Care Act? Then you’ll definitely want to vote for Mitch McConnell so he can keep trying to dismantle Obamacare bit by bit. Huh?”

Mark Fiore

To the one, the election is over and the People have spoken. In Iowa, intelligence and basic competence are anathema; in Kansas, voters objected to the prospect of fiscal solvency; Colorado voters decided it just wasn’t a year in which the human rights of women in their state have anything to do with anyone. Voters knew, going in, what they were asking for, and what they asked for is more gridlock, melodrama, and basic uselessness of government. So, yes, the election is over, and we need to get used to it. To the other, though, a couple brief points:

• It is difficult to not focus on that sense of amazement; this is difficult since people are expected to simply shut up and move on, but history will have a hard time explaining what happened in this year-six election. Perhaps some will point to Obama, and that only makes sense if people ignore actual facts or wonder yet again about the racism question; if this was a referendum on Obama and his policies, then it’s hard to comprehend why people who like what the ACA does would vote against it. Perhaps they believed the media narratives, which make sense unto themselves but only if the audience accounts specifically for the fact that actual facts are barred from that discourse. As Rob Corddry once joked in a role as a media correspondent, “Listen buddy: not my job to stand between the people talking to me and the people listening to me.” Unfortunately, it’s not simply a joke; Jim Lehrer, a titan of television journalism, agreed that it was not his job, as a reporter, to separate fact from fiction. But that’s the thing: To the one, the election is over. To the other, though, explaining what happened in any justifiable historical context requires addressing the apparent paradoxes in the outcomes, so we will continue to see such bewilderment as cartoonist Mark Fiore expresses.

• The second point is simple enough: If you choose to complain of gridlock and other governmental silliness over the next couple years, and you voted for Republicans in the 2014 midterm, then you need to shut the hell up and stop complaining about getting what you wanted. It would be one thing to leave such blatant stupidity to itself, except it seems somewhat contagious. Consider a nearly unhinged proposition: In order for President Obama to show “leadership” satisfactory to these people, he must follow the Republican leadership in the U.S. House of Representatives. Think about that for a moment; Obama must show leadership by not leading, unless Republicans want to skip on tough votes, in which case Obama needs to show leadership, for which Republicans intend to either sue him in court or impeach him in Congress. When it comes to What American Voters Want, this actually seems like a newly-discovered valence of absurdity. It’s one thing to say the GOP is playing politics; it’s quite another to pretend that such idiotic shenannigans are not what our Republican neighbors want. So when our conservative neighbors lament government inefficiency, the appropriate response is to tell them to shut up and stop complaining about getting what they voted for.

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Fiore, Mark. “The screw you strategy”. Daily Kos Comics. 14 November 2014.

A Look Ahead to History

The U.S. Capitol is pictured at Dawn in Washington, D.C., on Oct. 15, 2013.  (Photo by Jim Lo Scalzo/EPA)

So this is how it goes: Historically speaking, a rising group first finds the Devil in its specific opponents; as it expands, the group next finds the Devil in where its converts and new members are coming from; established, the group begins searching for and attempting to purge the Devil in its own ranks.

One of the great human narratives in which this occurs is the Bible: a rising Jewish sect invested the personification of evil in the Romans and the Jewish abettors who oppressed them. As it gained converts from the various paganistic religions of the day, the Devil became a personification of their former gods and goddesses. When Christianity achieved political power, it began finding the Devil within itself.α

The archetype emerges in other contexts; consider the Tea Party:

As most Republicans were taking a victory lap the morning after the elections, a group of conservatives huddled anxiously in a conference room not far from Capitol Hill and agreed that now is the time for confrontation, not compromise and conciliation.

Despite Republicans’ ascension to Senate control and an expanded House majority, many conservatives from the party’s activist wing fear that congressional leaders are already being too timid with President Obama.

They do not want to hear that government shutdowns are off the table or that repealing the Affordable Care Act is impossible — two things Republican leaders have said in recent days.

“If the new Republican leadership in the Senate is only talking about what they can’t do, that’s going to be very demoralizing,” said Thomas J. Fitton, president of Judicial Watch, a conservative advocacy group that convenes a regular gathering called Groundswell. Any sense of triumph at its meeting last week was fleeting.

“I think the members of the leadership need to decide what they’re willing to shut down the government over,” Mr. Fitton said.

(Peters)

The Tea Party appears to be in a transition between the second and third phases. They rose to prominence complaining about Democrats (2010); turned to challenge Republicans, gaining converts in doing so (2012); in the wake of the 2014 midterm, they would appear poised to attempt to purge the Congressional GOP of moderation. The only real question is whether they have the political power to do so. If they succeed, they might be setting up a 2016 “blue wave” to hand the White House and Senate to Democrats while demolishing the numbers advantage in the House. Then again, the House numbers are a little more secure; Republicans can continue sending exorcists to legislatures as long as they want, it seems.

And while that might suffice for, say, Colorado Springs, the rest of the country is starting to weary of the proposition that we must always, always, always slow progress, and even take a few regressive steps, in order to be fair to delusional bigots.

Remember the states and districts in play this year. The next two years of discord and gridlock that can only be broken by “compromising” with extremists who are only satisfied with a 100:0 compromise ratio—“We tell you what to do, you do it; see? compromise, we all have a role to play.”—are entirely on states like Iowa, Kansas, and Colorado.

And remember, it’s not like voters couldn’t see this coming; They were told.

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α cf, Pagels, Elaine. The Origin of Satan. 1995. New York: Vantage, 1996.

Peters, Jeremy W. “With Fear of Being Sidelined, Tea Party Sees the Republican Rise as New Threat”. The New York Times. 8 November 2014.

A Quote: Why Details Matter

USCapitol-bw

For all the talk about Democrats running away from President Obama, there are a surprising number of examples of Republicans running away from their own policy agenda.

Steve Benen

It is a valid point, and one worth considering.

Because, you know, details matter. Congressional Republicans complain every time President Obama agrees with them. They scream about Nazis if Democrats actually accept a GOP policy proposal. They beat their chests and say what the president should do about war and peace, and then complain when he does it. They decide the president should handle things according to executive authority, and then threaten to sue the president for using his executive authority.

And then there is the fun part where politicians like Rep. Cory Gardner (R-CO4) try to run away from their own policy history.

It is simply a matter of narrative. And it is also why details matter. To wit, if someone who has been arguing against you suddenly flips and says he’s your best choice because he’s on your side and the person who has observably been on your side isn’t, perhaps that would be a time when details matter.

Fool you once? Can’t get fooled again? Right. Details matter.

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Benen, Steve. “Republicans keep blasting Dems for being too conservative”. msnbc. 3 November 2014.

Your Republican Party: Raison d’Être Edition

Don't ask me, I'm just the Speaker of the Fucking House

Via Steve Benen:

msnbcAmericans first learned back on June 24, more than four months ago, about the House Republican plan to file a lawsuit against President Obama. Two weeks later, House Speaker John Boehner (R-Ohio) announced the basis for the case: the GOP would sue to implement an obscure provision of the Affordable Care Act, which Republicans don’t actually want to see implemented.

There is a punch line; the actual complaint still has yet to be filed.

It is simple enough to explain what is going on here.

• Congressional Republicans decided their best strategy was to (A) stonewall President Obama on pretty much everything they could, and (B) combine this effort with an attempt to create a delegitimizing narrative in history—e.g., Birtherism, feet on the desk, what jacket the president is wearing, &c., in addition to the usual politics of working very hard to accomplish an outcome specifically so that one can then complain about that outcome.

• House Republicans might contend this is their only recourse, but that would be a lie. The simple fact is that the House can draft and adopt articles of impeachment at any time, but GOP leadership knows they have nothing.

• Hence, a lawsuit that will go exactly nowhere if it is ever filed; House GOP leadership already knows this.

• What is left, then, is a fundraising device. GOTO delegitimizing narrative. It’s not even a FOR/NEXT loop, but, rather, infinite spinning down the rabbit hole.

• When a Republican or one of those fake-independent conservative libertarians tells you government doesn’t work, remember that is not actually a policy assessment, but, rather, a policy goal—the GOP’s raison d’être.

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Benen, Steve. “The House GOP’s crumbling anti-Obama lawsuit”. msnbc. 27 October 2014.

An Update: GOP Shutdown Fever

Sen. Marco Rubio (R-FL)

Think of it this way: The political party that insists government doesn’t work is also the group constantly threatening to shut down the government as if they’re trying to prove their thesis by forcing it to come true.

That is to say, if the government doesn’t break, Republicans will work tirelessly to correct that failure to fail.

We heard some talk about the Continuing Resolution, but the White House and Congress hammered out an agreement to keep the doors open, the lights on, and the war going … until December 11.

As such, Steve Benen’s summary of emerging shutdown news ought not come as any surprise:

Republican leaders in both chambers agreed months ago that a pre-election government shutdown simply wasn’t an option. There were some on the far right who tried to fan some flames, but it never spread.

Republicans did not, however, rule out a post-election shutdown. Aliyah Frumin reported earlier:

A group of Republican senators – led by Marco Rubio of Florida – sent a letter to House Speaker John Boehner and are calling on him to oppose any spending legislation for a program that’s part of President Obama’s Affordable Care Act – a move that could potentially result in a government shutdown. […]

If the House refuses to allow the provision into the spending bill – which would be vehemently opposed by the White House – a stalemate and government shutdown could occur. To avoid a shutdown, lawmakers will have to pass new spending legislation in the lame duck session before Dec. 11, which is when the current continuing budget resolution expires.

The fact that this is happening yet again is obviously tiresome. It was just two months ago that far-right congressional Republicans were making threats about a new shutdown – not to be confused with the previous GOP shutdown – and for Rubio and his allies to start making a new round of threats is unfortunate.

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A Toxic Troika? A Note on ‘Optics’ and ‘Metrics’

Jeb Bush, left, speaking Wednesday in Greensboro, N.C., in support of Thom Tillis, a Republican candidate for the Senate. Credit Chuck Burton/Associated Press

When studying the Castor and Pollux of politics and punditry it might help to bear in mind that many of the buzzwords are intended to sound quasi-scientific in order to hide the fact that the terms describe artistic results. A metric, for instance, is simply an abstract measurement in unknown units compared to a presupposed psychomoral idyll that may or may not be available for examination and should never be trusted in the first place, anyway. The metrics of a situation are whatever the pundit wishes to describe in order to make his or her own narrative sound that much more compelling.

But then there are the optics of a situation, and this is a fairly easy explanation. Political optics are, quite literally, nothing more than appearances within a frame described by a pundit’s metrics.

In one of his first public appearances of the 2014 campaign, former Gov. Jeb Bush of Florida had a vivid preview Wednesday of the challenges he would face with his party’s conservative base should he seek the Republican nomination for president in 2016.

Standing alongside Thom Tillis, the North Carolina House speaker and Republican Senate candidate, Mr. Bush outlined his views on two of the issues he cares most passionately about: immigration policy and education standards. But as Mr. Bush made the case for an immigration overhaul and the Common Core standards, Mr. Tillis gently put distance between himself and his guest of honor, who had flown here from Florida on a dreary day to offer his endorsement in a race that could decide which party controls the Senate.

(Martin)

Ah, optics!

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