Feb 23, 2015, Vol. 20, No. 23 • By THE SCRAPBOOK
The Supreme Court won’t hear arguments in King v. Burwell, a lawsuit challenging the legality of subsidies in the federal Obamacare exchange, until early March, but The Scrapbook is already eagerly anticipating the suit for no other reason than that it is shaping up as a case study in the lawyerly contortions required to defend the indefensible.
To quickly summarize the case: The text of the Obamacare legislation clearly and repeatedly says that subsidies are limited to insurance exchanges “established by the State.” Unfortunately, only 14 states and the District of Columbia actually set up their own exchanges—the rest of the states either declined to create their own exchanges or tried to set them up and failed because of technical difficulties and fraud. Insurance through the Obamacare exchanges has already dramatically failed in its mission to be affordable. And if the government can’t offset the already-expensive coverage with subsidies in 36 states, there will be drastic consequences for the embattled law.
Supporters of the law initially insisted that, of course, the law was intended to provide subsidies to users of a federal exchange. They laughed off those who had bothered to read the fine print. Then Jonathan Gruber, an MIT professor and one of the architects of Obamacare, was caught on tape saying that the law wasn’t supposed to provide subsidies to federal exchanges—the better to motivate the states to do what the administration wanted. (Notably, Gruber was also taped saying that he and President Obama conspired to lie about the law’s middle-class tax increases, but for some reason the media haven’t shown much interest in that story.) The law’s boosters continued to scoff even as they distanced themselves from Gruber. Then the Supreme Court took up the case and panic started to set in. Supporters of the law have been left grasping for arguments.
To give you an idea of where things stand, former federal prosecutor Jonathan Keim (at National Review’s Bench Memos blog) flags this bit from one of the solicitor general’s briefs in King v. Burwell: “As the use of that phrase [‘established by the State’] in Section 36B and throughout the Act demonstrates, it serves to identify the Exchange in a particular State. Its presence or absence in the Act’s provisions reflects style and grammar—not a substantive limitation on the type of Exchange at issue.”
In effect, the government is saying that a string of words with clear meaning is the equivalent of an extraneous comma. Not that this is a persuasive argument; very consequential court cases often come down to grammar. The phrase “established by the State” is also used repeatedly, so if it’s a matter of style, whoever wrote the law must have had a very peculiar form of Tourette’s.
This argument is nearly as entertaining as the time during the oral arguments in the Citizens United case that Obama’s deputy solicitor general Malcolm Stewart told the justices that campaign finance reform means the government may have to ban books. This prompted a horrified reaction even from the liberal justices. As it happens, the solicitor general overseeing that case was Elena Kagan, now seated on the Court and ready to hear the new solicitor general argue with a straight face that if you gave 1,000 monkeys 1,000 MacBooks, eventually they would end up typing “established by the State” over and over again. We offer no predictions on the ultimate outcome of King v. Burwell, but we suspect the upcoming oral arguments will be filled with inadvertent comedy.
Jan 26, 2015, Vol. 20, No. 19 • By THE SCRAPBOOK
The Scrapbook was recently witness to a harmonic convergence. It began the other evening as we set out, on foot, from The Weekly Standard offices to dinner at a restaurant two blocks east of the White House. It was a cold night and, wrapped securely against the wind in overcoat, scarf, gloves, and tweed cap, The Scrapbook strode confidently across the infamous K Street, along nearby Farragut Square, and then turned left at H Street to cut through Lafayette Park.
Dec 29, 2014, Vol. 20, No. 16 • By THE SCRAPBOOK
"This is my last column for this newspaper. I am joining Jason Whitlock’s new Web site at ESPN intersecting sports, culture and race, to be launched sometime next year. I plan to continue the work my editors at The Post have generously supported, especially now that many of society’s most substantive conversations about race, class, money, power, cultural identity—a social-conscience renaissance—are suddenly mushrooming out of America’s locker rooms. For the first time in my career . . . ” (Mike Wise, Washington Post, Dec. 14).
Dec 15, 2014, Vol. 20, No. 14 • By THE SCRAPBOOK
It's heartening these days to see an outbreak of bipartisan seriousness, given how rare those instances have become. Herewith some excerpts from a statement delivered by Bob Menendez, the Democratic chairman of the Senate Foreign Relations Committee, at the committee’s December 3 hearing on “Dismantling Iran’s Nuclear Weapons Program,” which The Scrapbook enthusiastically cosigns:
Oct 20, 2014, Vol. 20, No. 06 • By THE SCRAPBOOK
Last week Reuters ran a story about the movement to do away with the ban on blood donation from gay men in America. In 1983, with the AIDS epidemic raging, the FDA prohibited gay men from giving blood because of fears of increasing transmission of the virus. But the American Medical Association and American Red Cross now say the ban is “discriminatory” and “not based on sound science.”
Oct 13, 2014, Vol. 20, No. 05 • By THE SCRAPBOOK
In 2011, James Ceaser reviewed in these pages a posthumous collection of Irving Kristol’s essays, The Neoconservative Persuasion. Ceaser was particularly struck by how interested Irving Kristol had been in religion:
Sep 22, 2014, Vol. 20, No. 02 • By THE SCRAPBOOK
The 50th anniversary of the Berkeley Free Speech Movement is upon us, and we’re willing to concede that the founders of the movement had a good slogan—even if it pains The Scrapbook to contemplate the damage done by “campus activists” since then. Whether the social and political change it foments is good or bad, free speech is obviously preferable to any censorious alternative.
Jun 16, 2014, Vol. 19, No. 38 • By THE SCRAPBOOK
The Scrapbook notes, with sadness, the death last week in London of 91-year-old Mary Soames, the youngest and last surviving child of Sir Winston Churchill. From her time as a very young woman in the Auxiliary Territorial Service (the British equivalent of the WAC), where she assisted her father at his various wartime conferences, through her career as the wife of a prominent politician, mother, biographer, benefactor, and resource for historians, Lady Soames led a long and productive life. And by all accounts, a happy one as well.
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