Thursday, June 25, 2015

Supreme Court saves Obamacare again - Scalia pulls a punch

Fan(s)™ of my Platinum Coin series surely knew where I stood on the latest challenge to Obamacare, King v. Burwell, which challenged whether federal subsidies were available in states that refused to set up their own health-insurances exchanges. In short: the plaintiffs advanced a rather hyper-textualist reading of the law, and hyper-textualist arguments almost never win if there is any decent pragmatic argument to the contrary.

And that's the best reading, in my view, of Chief Justice Roberts's opinion for the Court today. Deep down he and Kennedy sensed it would be unjust to be hyper-technical in this case, and they were able to find enough rhetorical cover to justify a departure from the "plain meaning" of the statutory text. So they did.

Justice Scalia's dissent, however, is fairly powerful on its own terms—even if it is characteristically overcooked. He has a compelling response to each of Roberts's dodges. Based on the text of the statute alone, even when viewed in context, and even taking some account for the apparent "purpose" of the legislation, the argument for the plaintiffs in King is compelling on purely interpretive grounds.

But what struck me as I read his dissent was its complete lack of pragmatism. This is no accident: Scalia is not a pragmatist -- that's Justice Breyer's gig, and it is anathema to Scalia. But ultimately Scalia's defense of his interpretive method relies on a core principle of judicial restraint: that it is Congress's job to legislate, and the judicial power does not include the power to save badly drafted legislation. That's all well and good, but when the practical effect of such restraint would be to more or less undo landmark legislation, it makes the principle itself seem suspect, even monstrous. It's strange that judicial restraint would be the principle that undermines what many consider Congress's most momentous achievement of this century.

In any event, one thing to get off my chest: the usual suspects (whom I will not name) pegged this challenge as frivolous or cynical. This grates me to no end. I urge you to forever ignore any person who advanced that argument, as they are hacks and shills. As one example, many commentators advanced the argument that this challenge was frivolous because at the very least the statute had enough ambiguity to invoke Chevron deference, which is the doctrine that courts should defer to expert agency interpretations of ambiguous statutes.

Not a single justice bought that argument. Both the Roberts opinion and the Scalia dissent rejected it without reservation. No one concurred to say, "Hey, Chevron!" So this argument that commentators said rendered the King challenge frivolous lost nine to zip at the Supreme Court.

And finally, Justice Scalia ends his dissent with a pretty great little joke:
Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare. 
I absolutely guarantee that at some point in the drafting process the punchline of this joke was ROBERTScare.

Friday, June 12, 2015

Aggravated pimping UPDATED


DSK acquitted.

ORIGINAL POST (3/6/2012):

Dominque Strauss-Kahn has been charged with "aggravated pimping" in France for his alleged role in a prostitution ring.

One wonders: how would the true economist react to this news?

No word on whether DSK has been charged with "sex by surprise" as well.

Sunday, June 7, 2015

Sunday reading: some thoughts on faith and the death penalty

A few days ago, I wrote a post about how the Nebraska Legislature banned the death penalty despite the fact that Nebraska's governor opposed doing so. It turns out that Nebraska's Governor Pete Ricketts really, really wants to execute prisoners. As a result,  Governor Ricketts claims he is going to have the 10 prisoners currently on Nebraska's death row executed before the new law takes effect.  As Garrett Epps points out at the Atlantic, it is unlikely that Governor Ricketts can make that happen.

Governor Ricketts is also supporting a group called Nebraskans for the Death Penalty. The group is seeking to hold a referendum that will overturn the law banning the death penalty.  The honorary co-chairs of the group are former Nebraska Attorney General (and current State Treasurer) Don Stenberg and Beau McCoy, a state senator.  One of the sponsors of the referendum is Omaha City Councilwoman Aimee Melton.

According to the Omaha World-Herald-presumably from information supplied by the men to the paper, Mr. Stenberg is an "Evangelical Christian" and Mr. McCoy is a "born again Southern Baptist." Ms. Melton's biography on the Omaha City Council webpage suggests that she is a Roman Catholic. It might be worth noting that, as Ms. Melton's local bishops recently pointed out, the Roman Catholic Church teaches that the death penalty is wrong.

I bring up the religious faith of these three individuals because they have publicly proclaimed their faith. I think it is safe to assume they proclaimed their faith because they wanted people to know that they were voting for a candidate who would act in accordance with their religion.

So what might Jesus think about supporting the death penalty? In the Gospel of Luke (4:18), Jesus states that his mission on earth is "proclaim good news to the poor . . . proclaim freedom for the prisoners and recovery of sight for the blind, to set the oppressed free" (emphasis mine). I doubt the freedom for the prisoners that Jesus had in mind was execution by the government. In the Gospel of Matthew (25:31-46), Jesus tells how, at the judgment day, people will be judged worthy of eternal life.  
‘Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in,  I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.’ 
Then the righteous will answer him, ‘Lord, when did we see you hungry and feed you, or thirsty and give you something to drink?  When did we see you a stranger and invite you in, or needing clothes and clothe you?  When did we see you sick or in prison and go to visit you?’ 
[Jesus] will reply, ‘Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.’
(emphasis mine). The people who did not do not feed the hungry, care for the stranger, clothe the naked, and visit the prisoner "go away to eternal punishment," The implications of this passage in Matthew sometimes awaken me, as the saying goes, like a fire bell in the night when I think of the times I did not do those things.  But I digress

Anyway, I do not understand the part about visiting prisoners to be visiting prisoners in order to execute them.

Some people might say that an exhortation to visiting prisoners suggests that Christ does not have any issue with people having criminal sentences imposed upon them. But consider the story of Jesus and the woman who was caught in adultery (John 8:1-11).

In the story, "teachers of the law" bring a woman caught in adultery to Jesus. They point out to Jesus that the punishment for adultery is to be stoned to death. They ask Jesus what he has to say about the imposition of this punishment. Jesus ignores the question for a while and writes on the ground with his finger.  The teachers of law press Jesus for an answer and he says "Let any one of you who is without sin be the first to throw a stone at her." John writes how people began to leave one at a time until only Jesus was left with the woman. Jesus instructs the woman to go and leave her life of sin.

Another digression, you can watch a clip of this passage-starring someone who looks a lot like the guy who played Desmond Hume on Lost-here.

I understand this passage from John to say that the State should not execute people because the state is not blameless, i.e., without sin. Moreover, Christ's admonition that the woman leave her life of sin suggest that the death penalty is wrong because it does not allow the sinful to repent and be redeemed.

There is also is a practical reason that Nebraskans should not vote in favor of the reference proposed by Ms. Melton, Mr. McCoy and Mr. Stenberg. Sometimes the innocent are sentenced to death. Indeed the Charlotte News-Observer has the story of how North Carolina Governor Pat McCrory recently pardoned two brothers who were sentenced to death (and on death row awaiting imposition of their sentence for 30). The reason Governor McCrory pardoned the men is that they were innocent.

I am not trying to mock the faith of death penalty supporters. And I am not trying to suggest they are hypocrites. I fail to live up to my religious beliefs all the time. But it seems to me that when disregarding one's religious beliefs results in someone being executed, people ought to try harder to follow their faith.

What do you think Mr. Torvik, is it fair,  to point out that Ms Melton, Mr. McCoy, and Mr. Stenberg are not following in the best traditions of their faith? Should politicians base their political views on their religious views?

Friday, June 5, 2015

President Obama is running out of time.

Yesterday, Judge Richard G. Kopf expressed his puzzlement that President Obama has not formally nominated anyone to fill the judicial vacancy in the District of Nebraska. The vacancy was created when Judge Joseph F. Bataillon took senior status in October 2014. Judge Kopf noted that Nebraska's two senators (who are members of the Republican Party) have suggested that President Obama nominate Robert Rossiter, Jr., to fill the vacancy. Judge Kopf notes that judicial vacancies in Utah and Texas (states, like Nebraska, where both senators are members of the GOP) were filled by nominees who received the support for the senators. So why not Nebraska?

Thursday, June 4, 2015

Calling it now.

Back in 2012, we ran a series of posts about Republicans candidates who were running for the GOP presidential nomination that had no shot at ever being elected president. You can read some of the posts here. I am embarrassed to note that we did not do a post regarding former Texas Governor Rick Perry.

The New York Times reports that Mr. Perry has announced he is once again running for president. Why would a guy who finished fifth in the Iowa Caucuses think he can win the GOP nomination (and general election) this time? Well, one of his aids says that Mr. Perry has "focused like a laser beam on the task of running for president in 2016 almost since he dropped out of the race." This laser-like focus has included "donning hipster-style black-rimmed eyeglasses and trading his cowboy boots for black loafers."

I am not entirely sure why putting on glasses makes on seem more presidential. A quick review of presidential portraits shows that our only glasses-wearing presidents were Woodrow Wilson and Harry S. Truman. Maybe Mr. Perry thinks that glasses will appeal to democratic voters of a certain age.

In any event, I do not believe that Mr. Perry will be able to convince voters to view him differently than they did in 2012. As a result I am calling it now. Rick Perry will not be elected President of the United States of America.