“….Look at Puerto Rico.” [Nick Timiraos and Ana Campoy, W$J via @greg_ip] Similarly: Coyote takes issue with Paul Krugman. More on Puerto Rico’s woes: Anne Krueger et al via Tyler Cowen, Max Ehrenfreund/WP, earlier on protectionist, cost-raising Jones Act here, and more.
Above is an introductory video on King v. Burwell, the ObamaCare exchange subsidy challenge, from my Cato colleagues Michael Cannon and Trevor Burrus, introduced by Caleb Brown. Tomorrow you can stream this Cato reaction panel on the Court’s arguments featuring Oklahoma Attorney General Scott Pruitt, Simon Lazarus of the Constitutional Accountability Center, Jonathan Cohn of the Huffington Post; and Michael Cannon, moderated by Ilya Shapiro of Cato.
While I’ve mostly left the analysis of King v. Burwell to others at Cato (aside from gathering links to others’ work here at Overlawyered) I did respond when New York Times columnist Paul Krugman employed what I called “remarkably ugly and truculent” terms to assail the challenge, saying it could succeed only in a “corrupt” Supreme Court.
P.S. While the lawprof amicus brief on behalf of the Obama administration garbs itself in the wolf pelt of severe textualism, Jonathan Adler spies the fluffy sheep beneath.
And: an after-the-argument statement by Ilya Shapiro (“If the government wins here, then not only will Obamacare continue to be rewritten by the IRS, but any executive agency – and any future president – will be able to rewrite any law.”).
- Obama wants Hill to force paid leave on employers. What, his rule-by-decree powers didn’t stretch that far? [RCP, USA Today] Department of Labor, using funds taxed from supporters and opponents alike, happy to act as frank advocate for legislation [its blog]
- Employers brace for salaried-overtime mandate, wrought by unilateral Obama decree [KSL, earlier at Cato]
- Related: “Employers To Face More Litigation In 2015 As Plaintiff Lawyers Swoop In” [Daniel Fisher on Gerald Maatman/Seyfarth Shaw report] Here come more NLRB decisions too [Tim Devaney, The Hill]
- Krugman on minimum wage: two economists in one! [Donald Boudreaux, Cafe Hayek via Coyote, @Mike_Saltsman (“Min wage in France is closer to $12/hr US. But Krugman still being inconsistent bc he’s also backed $15 US minimum”)]
- Five pro-de Blasio unions — SEIU/1199, teachers, hotel workers, doormen/building staff, CWA District 1 — help enforce NYC mayor’s agenda [NYDN]
- Testimony: “worst-kept secret” in Philly ironworkers’ union was that you could get ahead through violent “night work” [Philadelphia Inquirer; earlier on Quaker meetinghouse arson here and here, related here]
- Loads of new compliance burdens: “Changes in California Employment Law for 2015” [Baker Hostetler] And it wouldn’t be California without many more employer mandates pending in legislature [Steven Greenhut]
Speaking at Princeton, Justice Elena Kagan described as “just ridiculous language” Paul Krugman’s claim that the higher federal courts are “corrupt.” It is just ridiculous, as we noted the other day, and it’s nice to hear Krugman called out for it at his own university by someone in a position to know. +1 Elena! [Daily Princetonian via Josh Blackman]
[cross-posted from Cato at Liberty and expanded with a P.S.]
Even by his standards, Paul Krugman uses remarkably ugly and truculent language in challenging the good faith of those who take a view opposed to his on the case of King v. Burwell, just granted certiorari by the Supreme Court following a split among lower courts. Krugman claims that federal judges who rule against his own position on the case are “corrupt, willing to pervert the law to serve political masters.” Yes, that’s really what he writes – you can read it here.
A round of commentary on legal blogs this morning sheds light on whether Krugman knows what he’s talking about.
“Once upon a time,” Krugman claims, “this lawsuit would have been literally laughed out of court.” [Citation needed, as one commenter put it] The closest Krugman comes to acknowledging that a plain-language reading of the statute runs against him is in the following:
But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.
New York City lawyer and legal blogger Scott Greenfield responds:
If by “incredibly hostile reader,” Krugman means someone with a basic familiarity with the English language, then he’s right. That’s what the law says. … There is such a thing as a “scrivener’s error,” that the guy who wrote it down made a mistake, left out a word or put in the wrong punctuation, and that the error was not substantive even though it has a disproportionate impact on meaning. A typo is such an error. I know typos. This was not a typo. This was not a word misspelled because the scribe erred. This was a structural error in the law enacted. Should it be corrected? Of course, but that’s a matter for Congress.
While some ObamaCare proponents may now portray the provision as a mere slip in need of correction, as I noted at Overlawyered in July, “ObamaCare architect Jonathan Gruber had delivered remarks on multiple 2012 occasions suggesting that the lack of subsidies for federally sponsored exchanges served the function (as critics had contended it did) of politically punishing states that refuse to set up exchanges.”
Josh Blackman, meanwhile, points out something incidental yet revealing about Krugman’s column: its homespun introductory anecdote about how his parents discovered that they had been stuck with a mistaken deed to their property, fixed (“of course”) by the town clerk presumably with a few pen strokes and a smile, couldn’t possibly have happened the way Krugman said it did. Property law, much more so than statutory construction, is super-strict about these matters.
If your deed is incorrect, you cannot simply get the “town clerk” to “fix the language”. … Mistakes are enforced by courts. That’s why [everyone] should purchase title insurance. …
So this is the exact opposite example of what Krugman would want to use to illustrate why King is “frivolous.” If courts applied property doctrine to the construction of statutes, this case would be over in 5 seconds. The government loses.
To be sure, there may be better arguments with which to defend the Obama administration’s side of the King case. But do not look for them in Paul Krugman’s commentary, which instead seems almost designed to serve the function of pre-gaming a possible defeat in King by casting the federal judiciary itself as “corrupt” and illegitimate.
P.S. “Krugman’s column in today’s NYT on King is the liberal equivalent of a Rush Limbaugh tirade.” [Gerard Magliocca] Krugman not notably consistent on views of statutory interpretation [Simon Lester] ObamaCare architect Jonathan Gruber caught on camera saying “lack of transparency” key to passing the bill; he “may believe that American voters are stupid, but he was the one dumb enough to say all this on camera” [Peter Suderman, Mickey Kaus (“I am big. It’s the electorate that got small.”)] How to argue the administration side in a less unhinged way than Krugman does [David Ziff via Jonathan Adler]
- “Retirement benefits cost Connecticut more than half of payroll” [Raising Hale] Jagadeesh Gokhale, “State and Local Pension Plans” [Cato] “In the report Krugman cites, the researchers note (repeatedly) that the trillion-dollar figure is very likely a dramatic understatement of the size of the unmet liability.” [Caleb Brown]
- California: “Bill would reinstate state workers who go AWOL” [Steven Greenhut]
- Eyebrow-raising federal salaries at unaccountable-by-design CFPB [John Steele Gordon, Commentary]
- “North Carolina Ends Teacher Tenure” [Pew StateLine]
- Not all states would benefit from a dose of Scott Walkerism, but Massachusetts would [Charles Chieppo, Governing]
- “Prison Ordered to Hire Back Guards Fired over an Officer’s Murder Because Everybody Else Was Awful, Too” [Scott Shackford]
- “New York State Lags on Firing Workers Who Abuse Disabled Patients” [Danny Hakim, New York Times] NYC educators accused of sex misconduct can dig in for years [New York Daily News]
- “Pennsylvania’s GOP: Rented by Unions” [Steve Malanga, Public Sector Inc.] NYC’s Working Families Party expands into Connecticut [Daniel DiSalvo, same]
Having to watch what bad government has done to my home city of Detroit is a bit like Princess Leia having to watch her home planet destroyed. The fate of the Motor City, writes John Steele Gordon, is America’s “greatest urban disaster that didn’t involve nature or war.” But wait: here’s distinguished New York Times columnist Paul Krugman to inform us that it’s not “fundamentally a tale of fiscal irresponsibility … For the most part, it’s just one of those things that happens now and then in an ever-changing economy.” Just one of those things! I reply — with a hat tip to Cole Porter — at Cato at Liberty. (& George Leef (“A tornado is ‘just one of those things’ because is has no human cause. When a city goes bankrupt, it has many human causes”), Ed Driscoll)
- On minimum wage these days, Krugman lets politics sit in for economics [David Henderson] Minimum wage hikes don’t cost jobs? A notion so ideologically convenient just has to be true [Steve Chapman]
- “Is employment a ‘human right'”? [Richard Epstein, Hoover “Defining Ideas”]
- Project labor agreements are an unjustified giveaway in New Jersey’s post-Sandy reconstruction [Trey Kovacs, CEI Open Market]
- Baltimore Mayor Stephanie Rawlings-Blake proposes public pension reform [Baltimore Sun] Reality check on sunny New York projections [@NYDNHammond]
- Peter Kirsanow on EEOC crackdown on criminal background checks [Employee Screen]
- Three Missouri Dems favor bill making it felony for lawmakers to propose bills limiting union powers [Robby Soave, Daily Caller]
- Meet the brothers who are standing up to union violence in Philadelphia construction [Jillian Melchior, NR, earlier]
New York Times columnist Paul Krugman believes you’re living in a right-wing “intellectual bubble” if you think rising disability claims in the Social Security program reflect anything other than “the real health problems of an aging work force.” Thing is, no less a personage than former Obama budget director Peter Orszag wrote in the New York Times that the “spike in disability insurance applications (and awards) does not reflect a less healthy population,” and Orszag’s view on this matter is commonplace among many other analysts whose views are hardly conservative. [Ira Stoll, who has just relaunched his wonderful SmarterTimes.com, one of the best media-criticism sites since they invented the Internet; everyone should start reading it]
I mostly ignore the frothings of Paul Krugman in the New York Times, but his column today pursues a logic that’s insane even for him: in an attack on the right-of-center American Legislative Exchange Council (ALEC), he proposes that Stand Your Ground (SYG) laws tie into a trend of “growing incarceration” intended to line the coffers of private prison contractors. Earth to Krugman: SYG laws bolster criminal defendants’ rights, and your colleagues at the Times have been complaining that as a result it’s too hard for prosecutors to send people to prison for long terms. Next time, could you stop and think before hitting the send button?
In the opinion piece I’m finishing up, I expect to argue that as more facts emerge about the Feb. 26 Martin/Zimmerman confrontation, the 2005 changes to Florida self-defense law known as Stand Your Ground are looking less and less likely to control the legal outcome of the case. Along those lines, I notice in Friday’s Washington Post what I read as a straw in the wind:
“We’ve never thought by itself that the law is the main issue,” said Dan Gross, president of the Brady Campaign to Prevent Gun Violence. “What we think is the main issue is the mentality that that law provides.”
Hmm. So despite hundreds of press assertions to the contrary in the past week, the actual content of the Florida law (as opposed to its supposed furtherance of a vague “mentality”) doesn’t turn out to be the main issue after all. Earlier here and here (& Reason).
Don’t miss related analysis from Eugene Volokh on the scope of the self-defense justification in American criminal law and the standards for probable cause in arresting someone who claims that justification. And Jennifer Rubin weighs in at Washington Post “Right Turn” (quoting me). More: Scott Greenfield, Steve Chapman.