The town of Westminster, Mass. considers banning tobacco sales entirely, and the American Lung Association eggs them on [Boston Globe, AP]
P.S. David Boaz: “Does it surprise you to know that this town was founded by Puritans?”
The town of Westminster, Mass. considers banning tobacco sales entirely, and the American Lung Association eggs them on [Boston Globe, AP]
P.S. David Boaz: “Does it surprise you to know that this town was founded by Puritans?”
[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]
Following the unexplained death of a gardener at a millionaire’s estate in Hampshire, England, a coroner has been told that it is more likely than not that brushing against the poisonous common garden plant aconitum, known variously as wolfsbane or monkshood, must have caused the man’s decease. [Independent]
Maggie Bloom, who is representing the family, said in the pre-inquest hearing yesterday that the initial blood sample had been destroyed – despite being against hospital policy – and that later samples that were retained could be useless as the poison leaves the body within a day.
A judge in Quebec has told Google to pay C$2250 to a woman caught by a Google Street View camera on her front porch in revealing, though legal, attire [Syracuse.com via Stewart Baker]
The EU’s newly minted “right to be forgotten” may generate an Orwellian memory hole into which can be thrown the inconvenient past. “The [Washington] Post received a letter from Mr. Lazi? in September requesting that [classical music critic Anne] Midgette’s review be scrubbed from the Web. When she failed to reply, he upped the ante by claiming that it was ‘defamatory, offensive and mean-spirited’ and thus violates his legal right to be forgotten.” [Terry Teachout, WSJ via Arts Journal]
The Supreme Court hears oral argument in the Yates v. U.S. case [WLF, ABA Journal, Daniel Fisher, earlier] Best line from a brief, via @ToddRuger: “More specifically, a false entry cannot be made in a fish.”
P.S. Radley Balko points out that while Congress has filled the U.S. Code with strict penalties for destruction of potentially relevant evidence, federal officials themselves almost never face real consequences when they destroy such evidence.
Or should that be “method for using nastygrams to assert what isn’t really a valid patent?” [Lowering the Bar]