Republican Senators Join Obamacare Lawsuit, Accidentally Undermine Their Case
Back in December I wrote about the lawsuits challenging the Affordable Care Act on the grounds that it was being misused to hand out subsidies. Plaintiffs, everyone from business owners to state attorneys general, argued that a line in the law that directed subsidies to plans in "state" exchanges clearly meant that states without exchanges could not join the party. The argument, which no one made in 2009–2010, was that the subsidies, clearly, were meant to induce states to set up exchanges; they'd be withheld if they didn't.
"The plain text of the statute contradicts the way the Obama administration has implemented it," Ted Cruz told me. "The law is clear that the individual mandate and the accompanying subsidies only apply if a state sets up an exchange. The Obama administration simply said, 'We’re not following that part of the law. We’re going to apply it without a state exchange.' "
The lawsuit that's gotten the furthest, Halbig v. Sebelius, lost in court after this story ran. The government's argument was that, elsewhere in the law, it's clear that the subsidies are meant for all the state plans. This did nothing to stop the doubters. A month later George Will was telling his many syndicated readers that Obama and his "lawless" IRS were violating the text of the ACA. And now I see that Cruz has joined some fellow Republicans in an amicus brief, making the same argument—no exchange, no subsidies. The whole brief is here, but I'm not sure that it will persuade the court. Take this argument, for example.
[T]he district court erred in assuming that every provision of the sweeping, complex 2700-page ACA must fit together in a seamless, unified whole. The ACA’s unusual legislative history makes that assumption patently false in this case. Most of the statutory text at issue was originally part of a bill that, when it passed the Senate, was expected to be extensively revised prior to enactment. But amending provisions of the bill (unrelated to budgetary items)became impossible when the election of Senator Scott Brown cost Democratic supporters of the Senate bill their filibuster-proof majority.
The bill’s supporters then decided to enact the Senate bill as is, making only those few changes that could be made by a simple majority vote through the budget reconciliation process. Under the circumstances, it is hardly surprising that the ACA is disjointed, confusing, and often internally inconsistent. Again, section 36B(c)’s text is unambiguous: the health insurance exchange established by the federal government is not an exchange “established by [a] State.”
Follow that? The senators acknowledge that the law was finished hurriedly and some sloppy language was left in. That's exactly what the defenders are the law are saying—that the "states" phrasing is basically a typo, contradicted elsewhere in the law. And nothing in the brief suggests the carrot-stick theory that Republicans have come around to was in existence during the 2009–2010 debate. If the intent of the legislators was not to make subsidies conditional on state exchanges, there's no case.
This Campaign Aide to a Primary Challenger Is Not Happy With Montana's New Appointed Senator
Montana Lt. Gov. John Walsh, the national party's favored candidate for the state's open Senate seat, will become a senator next week. Gov. Steve Bullock has appointed him to fill the vacancy left by Max Baucus, the newly confirmed ambassador to the PRC. The move was expected for months—and politicked to death. As soon as the Baucus nomination broke, Montana Republicans advised/threatened that appointing Walsh instead of a placeholder would "jumpstart" the campaign. National Republicans warned of a "Montana two-step," a crooked (well, not really) move to put Walsh in the Senate and strengthen him for November.
But it was never obvious that the appointment would be good for Walsh. Senators appointed to fill vacancies, if they run for election in their own right, only win about half the time. Kirsten Gillibrand and Michael Bennet could make it work; Jean Carnahan couldn't. Until today Walsh had no connection to anything happening in Washington. For the next nine months, he'll be casting votes in the Senate, with lots of opportunities to anger activists.
I say "activists" because it's not even Republicans who feel most bitter about this appointment. Bob Brigham, campaign guru for Walsh's primary opponent John Bohlinger, had been waging a two-month social media war to portray a Walsh appointment as a disaster. Right after Baucus got the call, Brigham put out a statement encouraging Bullock to appoint a placeholder like Carol Williams, who'd be the state's first female senator. In recent weeks Brigham had grown more ominous, writing about the "curse" of governors who appoint their allies to the Senate.
Brigham has not yet commented on the Walsh move, which transforms Bohlinger from a primary opponent to a man challenging an incumbent senator.
The GOP After Willie Horton
My latest piece looks at the slow-burning campaign by younger Republicans—Rand Paul, Raul Labrador, Mike Lee—to reform sentencing laws, and effectively end the era of strict mandatory minimums. This has been happening for years, and being profiled every few months, but the passage of a reform bill through the Senate Judiciary Commitee suggests that this thing might actually happen. Labrador, the sponsor in the House, told me that a big Senate vote (which could happen within the next few months) is going to determine whether a GOP House can do this.
One thing I mentioned but did not spend too much time on—this will clearly be a case of all Democrats and maybe 5–15 Senate Republicans backing the bill. How that gets through the House, when immigration didn't, is a huge question.
In the meantime, it's fascinating to watch a party that won national majorities as the "law and order" coalition even entertain this stuff. It was only 20 years ago that voters would still list "crime" as a top concern, up there with the job market. The collapse of crime, and the attendant collapse in fear of crime, has changed politics and changed how Republicans compete. Betsy Woodruff has more, focusing on prison reform.
2016: Pundits Forget About Santorum, Kentucky Republicans Want Paul to Run
Politico asks 15 close observers of Republican politics, from former presidential candidates who've won primaries (Newt Gingrich) to journalists (Ramesh Ponnuru), what the 2016 field looks like après Chris Christie. Whatever one thinks of Rick Santorum, it's natural to feel a twinge of sympathy when only two of these people suggest that the 2012 runner-up will even run. (Two of the pundits whiff and don't mention any candidate.)
Really! In his prediction of who'll make "the first post-Labor Day 2015 GOP presidential debate, moderated by Megyn Kelly," Bill Kristol manages to include Joe Scarborough and John Bolton but not Santorum—Santorum, who has never, ever hidden the fact that he wants to run again, and who won five binding primaries and five preference caucuses last time.
But maybe the Santorumnesia is a sort of course correction. There was no Southern conservative in the race in 2012, after Rick Perry imploded. In 2016 there are presumably other candidates whom voters in Southern primaries (the ones Santorum won) will gravitate toward.
Presumably. I'm intrigued by what Byron York says here:
Back in 2011 and 2012, when Republicans were bemoaning the quality of their presidential field, many comforted themselves by saying: “We’ve got a great bench. Just wait ’til 2016.” Now that the race is on, however, the GOP field doesn’t look so fantastic. Chris Christie, darling of the donor class, is struggling. Rand Paul is running a smart campaign but will always be a divisive figure. Ted Cruz would be even more divisive than Paul. Marco Rubio hurt himself badly by pushing immigration reform. Mitt Romney’s running mate, Paul Ryan, is well known but doesn’t seem interested. Rick Santorum and Rick Perry might return from the 2012 field but with no carryover momentum. Bobby Jindal never seems to catch fire. Scott Walker is promising but untested on the national stage. And Jeb Bush? Not only would the base be underwhelmed, but the party would be riven by dynastic debate and a nagging sense of been-there-done-that.
This is still much stronger than the 2012 field. Remember, back then, Rick Perry was supposed to save the party from a one-term governor (Romney), an incredibly boring two-term governor (Pawlenty), a past-prime speaker of the House (Gingrich), a defeated senator (Santorum), a congressman who'd accidentally come to lead a libertarian movement (Paul), a congresswoman with frequent migraines (Bachmann), a libertarian former governor (Johnson), and Herman Cain.
Come on. Obviously there are younger candidates who check more boxes—three nonwhite candidates!—in 2016. We've just heard too much about them and not been blown away. I'm reminded of Jonathan Rauch's "freshness test," his theory that candidates have only some years between reaching the national stage and running credibly for president. Maybe the rot is perceived to happen faster now. But the perception is wrong. The other half of the "strong 2016 field" equation, which York politely excises, is that the GOP of 2012 expected to run a 2016 candidate as much as 20 years younger than Hillary Clinton.
Regardless, this seems to be significant 2016 news, insofar as anything in February 2014 can be said to be.
[A] majority of Republicans favor [Rand Paul] seeking the White House in 2016 or running for the presidency and his current post at the same time, according to a Bluegrass Poll conducted by SurveyUSA for The Courier-Journal, the Lexington Herald-Leader, WHAS-TV in Louisville and WKYT-TV in Lexington. Thirty-three percent of Republicans polled in Kentucky said Paul should run for president, while an additional 23 percent thought the freshman senator should run for the White House and the Senate, if the law allowed.
It is by no means clear that Paul can run for president while staying on the ballot for U.S. Senate. The argument that he can relies on one 1995 Supreme Court precedent that hasn't been tested. But this gives Paul confidence that he can try.
Nominee for Ambassador to Argentina Hasn't Been There, but Has Raised Lots of Money for Obama
Filibuster reform has taken away the tool Republicans used to hold up President Obama's nomines for non-lifetime posts. The party has adapted to this reality with a tactic much appreciated by journalists: public shaming. Today's example is the confirmation hearing of Noah Bryson Mamet, who's up for ambassador to Argentina and who bundled at least $500,000 for the Obama campaign, according to the Center for Public Integrity. He has not, as Marco Rubio found during questioning, been to Argentina.
Obviously, a diplomatic posting in Buenos Aires is an enviable gig, probably one of the few dozen best ambassador gigs in the world. But this is a hell of a time to take it. Argentina, like a lot of next-wave developing nations, failed to build the sort of foreign currency reserve that would have sheltered it from the current slump. (Also in this category: South Africa, Turkey, Venezuela.) Delicate times, probably opportune times for a diplomat with years logged in South America.
Mamet's confirmation didn't go as poorly as the one for George James Tsunis, nominated for a posting in Oslo, then accidentally too ready to admit he didn't know basic facts about Norway.* He may not become like Nicole Avant, an Obama 2008 finance chair for Southern California who went to the Bahamas and was absent from the embassy about 40 percent of the time.
*Correction, Feb. 7, 2014: This post originally misspelled George James Tsunis' last name.
Read the Memo Explaining Why the U.S. Can Totally Kill Its Own Citizens Without Trial
Obtained by NBC News. As Glenn Greenwald explains, "This is not the primary OLC memo justifying Obama's kill list -- that is still concealed -- but it appears to track the reasoning of that memo as anonymously described to the New York Times in October 2011."
I don't quite want to throw up my hands and just say "read Greenwald," but the man slings words by the barrel and he explains most of the moral queasiness-inducers in the memo. The political context to view this in is that a growing (but small) number of liberals and libertarians, led today by Jeff Merkley and Rand Paul, want to pass resolutions that restore the power to declare war to Congress. Ending the authorization of military force (or, as Paul and Merkley want, requiring a new authorization from Congress for further action in Afghanistan) would complicate the legal kludging in this memo.
The Media Blows It, Says Boehner Is Now Backing Away From Immigration Reform
The bias of the news media is to pretend that something new is happening. Example: Every week that Congress is in session, Speaker of the House John Boehner gives a short on-camera press conference. At today's, in the eyes of reporters, he seemed to be backpedaling on immigration reform. In the LA Times: "Speaker Boehner lowers expectations for immigration reform bill." In MSNBC: "Boehner warns immigration reform is in serious danger." At Fox News: "Boehner hits brakes on immigration overhaul."
What you see here is a mixture of sensationalism and the newness fallacy. What did Boehner actually say? "Listen, there's widespread doubt about whether this administration can be trusted to enforce our laws." Pro tip: For Boehner, "listen" is a sort of verbal tic that commences a line or sentence he's got in the can. He's said the same thing many, many times. And what he was saying there was straight from the current approved talking points.
Look back just four days to the Sunday shows that came after the House GOP retreat. Eric Cantor: "The president [has] got to demonstrate frankly to the country and the congress can trust him in implementing the laws." Paul Ryan: "Here's the issue that all Republicans agree on—we don't trust the president to enforce the law."
All three of these men think it'd be good for the GOP to pass an immigration bill, and all three know that the bulk of their conference is against it. So they have to couch the proposal in whatever language mollifies the rest of the party. Last summer, it was that (Boehner speaking now) "These big, comprehensive bills, that tend to cause all kinds of problems—the American people get suspicious, members haven't read the bills."
PRI's Todd Zwillich, one of the most perceptive reporters on the Hill, ran this Boehner quote by Chuck Schumer, who's also pretty perceptive. The result:
Schumer, meanwhile calls Boehners immigration remarks caucus management. "I'm not thrown back by it."— Todd Zwillich (@toddzwillich) February 6, 2014
That's not to say that the Congress will actually pass a bill this year. It's just to prove that Boehner was managing his conference and generating the headlines that would not rouse any anti-reform groups.
Koch Group Goes All-In on the New “Obamacare Kills Jobs” Message
I keep saying that Americans for Prosperity's new, full-time focus on the evils of Obamacare is a major advantage for Republicans. David Koch's group can run the political equivalent of an American Express Black Card again and again, loading up the airwaves with ads that amplify what will be, through November, the message of all Republicans. And here it is, the third AFP Obamacare ad in a month:
Smart yet odd move, using a Lou Dobbs quote to humanize the "jobs" (instead of "equivalent of labor") whiff. If that quote from Jay Carney sounds odd, it's because it was clipped a bit. The full quote was: "As part of this new day in health care, Americans would no longer be trapped in a job just to provide coverage for their families, and would have the opportunity to pursue their dreams." Which also sounds silly, but makes clear that Carney is assuming the people with portable insurance will do something else with their lives. That may have been the Republican plan, too, and recently, but it sure as hell can't be if this attack's going to work:
Pajama Boy would like to thank White House spokesman Jay Carney for his new freedom. pic.twitter.com/IcaFegOsHe— AFP (@AFPhq) February 6, 2014
So AFP's free to run with the kulturkampf message that Obamacare will both kill jobs and turn people into loafers. Neither true nor intended.
Why Your Local Democrat Voted With the President 99.9 Percent of the Time
Karl Rove, for his sins (as seen by Tea Partiers), is still someone to listen to when it comes to framing elections. He's quite fond of the new CQ vote ratings of Congress, which reveal that the red-state Democrats who want to be re-elected this year "vote with Obama" more than 90 percent of the time.
The four red state Democratic senators running for re-election gave Mr. Obama's policies almost perfect support, led by Louisiana's Mary Landrieu and Alaska's Mark Begich at 97%, followed by North Carolina's Kay Hagan at 96% and Arkansas's Mike Pryor at 90%.
They are now trying to distance themselves from the president. Mr. Begich says he's "disappointed" in the State of the Union address and promises to "push back" if Mr. Obama signs objectionable executive orders. But Dan Sullivan, the former Alaska Natural Resources Commissioner and the likely Republican candidate, can make hay all day long with the senator's voting record.
The Dan Sullivan line is sort of a tell—he's up by only 5 points in a three way primary—but that's not the point. The point is that Rove, who has some say in what independent groups might say on the air, is giddy about the prospect of ads saying Begich "voted with Barack Obama 97 percent of the time." We are destined for another round of "loyalty" ads, which are almost always total bullshit.
OK, they're bipartisan bullshit. In 2008, for example, Barack Obama's campaign faced the stiff challenge of presenting John McCain as a clone of George W. Bush. McCain had broken from Bush on a series of defining issues—taxes, campaign finance, etc. But McCain had frequently voted "with Bush" (i.e., with most Republicans, on bills that the White House was on the record favoring). Thus, voters were constantly reminded, in speeches and ads, that McCain "voted with George Bush 90 percent of the time."
Everybody does this, so it's never in a party's interest to dive into the numbers. Thus, as with ads claiming that so-and-so "voted for higher taxes 329 times," the muck of the legislative process becomes even more opaque.
To clear it up briefly (it's a bigger topic than can fit in one post): Members of Congress take a lot of votes. During the government shutdown, every Democratic senator voted, repeatedly, to strike anti-Obamacare language from a funding bill. All of those votes are calculated as votes "with Obama," though those votes were more popular than Obama himself. In less heated times, Democrats cast a lot of votes to let uncontroversial nominees take office. These were also votes "with Obama." The vote to put former Republican Sen. Chuck Hagel into DOD? "With Obama."
I'm not saying that these calculations are unfair. There are pundits who bemoan how partisan the Democrats and Republicans have become. I think that's useful for voters—they know that Tom Cotton, for example, is more likely to vote the way right-wing Arkansans want than Mark Pryor is. Every incumbent Democrat in 2014 voted for Obamacare, which should be more than enough to convince a conservative to oppose him/her.
But if your local Democrat breaks from the administration in big ways—if, like Joe Manchin, he readily talks about delaying the Obamacare mandate, or, like Mary Landrieu, she wants the Keystone XL pipeline built—these heresies will make up less than 10 percent of their votes.
Georgia, Tom Coburn Call for Constitutional Convention
Two months ago, Emma Roller and I wrote about the possibly historic Assembly of the States in Mount Vernon. Momentum had been building oh-so-slowly on the right for a new, state-led constitutional convention, which could pass amendments far quicker than the Congress could. (And no one sees a scenario, any time soon, where there'll be 67 conservative votes in the Senate to pass amendments.) The reaction: Largely just a lot of doubt that this would come to anything.
Well, maybe it won't, but that's never stopped anyone trying a bold idea to save America. Kristina Torres reports on the Georgia Senate's passage of Resolution 736, which just happened this week. The meat of the thing:
WHEREAS, the federal government has created a crushing national debt through improper and imprudent spending; and
WHEREAS, the federal government has invaded the legitimate roles of the states through the manipulative process of federal mandates, most of which are unfunded to a great extent; and
WHEREAS, the federal government has ceased to live under a proper interpretation of the Constitution of the United States; and
WHEREAS, it is the solemn duty of the states to protect the liberty of our people, particularly for the generations to come, by proposing amendments to the Constitution of the United States through a convention of the states under Article V of the United States Constitution to place clear restraints on these and related abuses of power.
In related news, Jon Ward talked to retiring Oklahoma Sen. Tom Coburn, who'll be a private citizen in 10 months. His plans? "I'm going to be involved with the Convention of States. I'm going to try to motivate so that that happens. I think that's the only answer. I'm just going to go around and talk about why it's needed, and try to convince state legislatures to do it."
That would be helpful to the cause. Glenn Beck has his audience, but the mainstream media sees him as a duplicitous clown. (Really, how many times can he make news for apologizing about his tone, from back when he was famous?) Mark Levin is an icon on the right, but a shrill radio host who refers to the next Democratic presidential nominee as "Hillary Rotten Clinton" and "her thighness" might not be an ideal intellectual ambassador. But Coburn? There's a chair molded to fit him on the set of Morning Joe.