Tuesday, November 18, 2014


What Shellacking Part Two Has Done to the Lefty Columnists

As it stands now, the Republicans are plus 8 in the Senate and almost certainly to be plus 9 after Mary Landrieu goes down in December run off. Instead of taking back the House, as several Democrats were predicting just a few months ago, the Democrats lost a net 12 and there are 5 seats still in contention and Republicans lead (slightly) in three and the two in Louisiana will certainly suffer the Landrieu treatment in December. So perhaps the House will be plus 17. Most governors are Republicans and most state houses and senates are Republican. So the midterms were not a fatal blow to the Democrats but the results really hurt and the majorities in the House and in the states at least might last a decade or more. With Shellacking Part Two, the Democrats are striking out at the winners in an ever more perplexingly dishonest way. Here are but two examples: Brian Beutler at the New Republic and Jamelle Bouie at Slate.

Let's deal with Mr. Bouie first. He's the guy who saw rampant racism in a jury hung on one count in the loud music murder case in Florida. I wrote then that the state would retry the hung count and probably prevail and it did and the jury convicted and Mr. Bouie bravely said not a single thing about his pointless rant. Here he's lashing out at the evil and stupid Republicans for forcing President Obama to violate his oath of office and the constitutional mandates and limitations on his executive power (again). It's just too inane to talk about further.

Beutler's piece is just as inane but it contains a classic tantrum. For background, Beutler acknowledges that there are two distinct, bad groups of Jonathan Gruber videos--the ones where he repeatedly says the Democrats had to lie to get Obamacare (the ACA) passed because the American voters are stupid and the ones where he said the purpose of making subsidies only available to users of state exchanges was to put political pressure on the states to establish such insurance exchanges. Buetler sees the two sets of videos as conjoined in an evil (but perhaps not stupid this time) Republican plot to destroy the unpopular and horrible ACA in the Supreme Court. He writes:

But the controversies are actually conjoined, and the link between them explains why the right isn’t merely going to run Gruber’s name through the mud, but probably haul him in front of a congressional committee or two and recapitulate his sins every day until the Supreme Court determines the fate of the Affordable Care Act for a second time. The two Grubergates are being deployed together in service of a common goal.
That goal is for the Supreme Court’s five conservatives to hobble the law without fear that their decision will be interpretedcorrectlyas a spite-driven judicial logrolling of a statute conservatives hate. (Emphasis added).

Yeah, the right is going to run Jonathan "Hans" Gruber's name through the mud by showing old clips of him speaking. Those bastards! How dare they show people what Gruber actually said.

But the real drivel is the notion that the Supreme Court Justices will rule in the King v Burwell case because of spite and political partisanship.

No, boy wonder, the Justices will rule on the ACA and the IRS regulations based only on well established rules of statutory construction of which you seem abysmally ignorant. This is more projection from the left because their Justices sometimes actually do rule on cases based on spite and political partisanship.

Here, in passing, is another head scratcher:

To do the right's bidding, the justices will need confidence that the public and the media won’t perceive an adverse ruling in King v. Burwell as unwarranted or out of the ordinary. Never mind that the ACA debate was, in reality, the most transparent legislative processes in the recent history of big Congressional action. One of the people who helped make it possible says the opposite. And it’s easier for the Court to do damage to an illegitimate law, or one built on a foundation of lies, than one that has achieved consensus.

What universe was he inhabiting when the ACA was passed into law? There were no legislative committee hearings about any actual language of the Act, extremely limited floor debate, and no one who voted for it had ever read it before the vote. If these are earmarks of transparency, what would a secretive bill's passage look like? Oh, and for support of his absolutely mistaken statement of the ACA's "transparent legislative process" he links to himself in an article which contains not a single fact in support of his false statement here. It does contain statements about Gruber's videos which apparently no longer apply, but no statements about transparency of the ACA's passage because there was none, particularly about the language of the statute. None!

I really don't mind being lectured to by what passes as the left's intelligentsia, but at least they should stop lying about their side's lying. That destroys any molecule of persuasive power these pieces could theoretically contained.

But the real take away from this groundless ad hominem attack on the Supreme Court before it rules is a very clear sign that even the flavorade drinking Democrats know that they will very likely lose the Burwell case next June and are attempting now to prepare the faithful for a delusional belief that the results were fixed, merely political and not legitimate statute construction. Good luck with that.

I'm enjoying the Democrats delusional meltdown now that things are going Republicans' way as much as I've enjoyed the Midterm results and the kicked in the stomach look the lefty talking heads had during coverage of that massacre.


Ace has a nice roundup, here:

I wonder what CJ Roberts is now thinking. He twisted the language of the ACA penalty so as to deem it a constitutionally appropriate tax in order to save it, only to now discover that the whole thing is a fraud perpetrated on the American left (who voted for and believed in it; the right never bought into its economic schemes or its claim of universal coverage, etc.)
PS: I really want the origination case to get to the court. ...don't remember the title of it, but it claims that this "tax revenue" law did not truly arise in the House. The Senate took a House bill that was sitting around waiting for attention, stripped out the entire contents and title while leaving only the bill number, and inserted the text of the ACA instead and passed that. No conference, no amendments, no Republican input, no Republican votes.

Apparently the court has never addressed the issue of how much text replacement is a new bill v. an amendment of a bill.

It should be addressed, for the protection of Art. I, Origination Clause, or the tactic will be used again, you betcha.
Hmmmm. This guy says that the Gruber vids vindicate CJ Roberts's decision. And, he seems to make sense. As a lawyer (IANAL), does this guy's interpretation make sense to you?

I'm not really mad at Roberts. There is a rule that says if you can possibly find a statute constitutional then do it. Sure he had to twist himself in pretzel logic to find the ACA was not a tax to be able to review it before it applied and then to find it a tax to uphold it, but he was following a real rule.
The origination lawsuit was dismissed without a hearing. Close enough for government work was the gist of the ruling, I think. Ends with a whimper, not a bang.
I'm ever more impressed with the lawyers at Powerline and ever less impressed with the writers at American Thinker who used to be nearly uniformly good.
I just want to say that I was writing about Jon Gruber months before it became fashionable to write about Mr. Gruber. So I got that going for me, which is nice.
Re: origination. Thx for update: That's disappointing to hear. Big loophole, there.

I try to read a variety of opinion pieces & figure out which'n of them makes sense to me. So AT as well as PL (& XDA) are on my blog list.

Yah, I "get" the "statute be constitutional" rule. But to "Gruber" a law in such a way as to camouflage that a nominal "penalty" is functionally a tax, and for Roberts, perhaps inevitably and sincerely, to be compelled by that rule to so interpret it by means of re-writing what the legislators had passed, is a perversion of that rule. It was used on him, rather than he using it in pursuit of sound legal opinion. Roberts was trapped by his own legal & ethical standards. Rhetorical question: I wonder if the Gruber-gang was Machiavellian enough to realize when writing the bill what the legal implications of this part would be?
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