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Will Supreme Court Uphold Obamacare Subsidies On Same Grounds It Struck Down Medicaid Expansion?

| Mon Jun. 22, 2015 12:11 PM EDT

Back when the Supreme Court ruled on NFIB vs. Sebelius—the original Obamacare case—there were two basic parts to the opinion: The individual mandate was upheld and the Medicaid expansion rules were struck down. Most liberals thought the reasoning behind the Medicaid decision was absurd, but I didn't. I found it quite plain and persuasive. Basically, Congress had told the states that if they didn't accept the Medicaid expansion, they'd lose all Medicaid funding. But states are supposed to have a legitimate choice about whether to accept new government programs, and this clearly didn't give them any real choice. No state can afford to lose all its existing Medicaid funding. Congress had set things up so that technically each state had a choice, but it was really no choice at all. In practical terms, every state had to accept the expansion, and this was constitutionally unacceptable.

Two liberal justices agreed with this reasoning, as did the five conservative justices, including Anthony Kennedy. Over at the New Republic, Simon Lazarus notes that during oral arguments in the latest Obamacare case, Kennedy suggested a similar dynamic was at work. The plaintiffs were arguing that the text of the law clearly stated that federal subsidies were available only to states that set up their own insurance exchanges. The problem here is that without subsidies Obamacare is not only useless, but could severely damage the existing insurance market in a state:

Such a threat, he observed, could amount to unconstitutional “coercion” to pressure states to set up exchanges. If this is Justice Kennedy’s take, his most likely outcome would be to adopt an alternative interpretation that avoids having to face the constitutional issue. The Obama administration’s interpretation—that the ACA prescribes credits for customers on all exchanges, whether state-run or federally facilitated—fits that bill.

....Previously, only one case had invalidated a law under a coercion theory like the one Kennedy advanced—NFIB v. Sebelius itself. Then, the Court held unconstitutional the ACA's method to incentivize states to expand Medicaid coverage to all adults up to 138 percent of the Federal poverty level. If they declined, states risked losing federal financial support for their pre-existing Medicaid programs, on average over 10 percent of state budgets. That, seven justices agreed in two separate opinions, was a bridge too far. Chief Justice Roberts, joined by progressive Justices Breyer and Kagan, ruled that this “financial inducement” amounted in effect to “a gun to the head . . . so coercive as to pass the point at which pressure turns into compulsion.”

Why were both sides caught off-guard by Kennedy’s attraction to extending the NFIB coercion holding to King, but this time for the benefit of the ACA? The reason, I suggest, is a deep bipartisan cynicism about the Court’s “federalism” jurisprudence....What that cynicism seems to have missed is that, as an ideological matter, Justice Kennedy takes very seriously what he repeatedly lauds as the "federal balance."....In sum, Justice Kennedy might well see King v. Burwell more as an opportunity to advance his federalism ideology, than as a second shot at vindicating the Republican political priority of crippling Obamacare, for which he showed evident sympathy three years ago.

Interesting. Both Kennedy and Roberts could see this case as a way of gaining bipartisan support for a ruling that saves Obamacare but further entrenches the view of federalism stated in NFIB. They might both consider that worth it. While we all twiddle our thumbs waiting for the decision in King v. Burwell to be handed down, it's an interesting possibility to ponder.

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Our Grandchildren Will Never Have Heard of a "Preexisting Condition." Thanks, Obamacare.

| Mon Jun. 22, 2015 11:26 AM EDT

One of my Twitter followers pointed out something interesting this morning: interest in preexisting conditions has plummeted on Google. Here's the chart:

There are a couple of spikes around 2010, when Obamacare was first passed, but other than that it's been a fairly steady decrease ever since. By 2015, so few people were worried about being denied health insurance because of a preexisting condition that they weren't even bothering to Google it. That's exactly how it should be. Thanks, Obamacare.

Huckabee Says the Confederate Flag Shouldn’t Be a Campaign Issue—Except That Time He Made It One

| Mon Jun. 22, 2015 11:15 AM EDT

On Sunday, just days after a gunman killed nine African American parishioners at a Charleston church, former Arkansas Gov. Mike Huckabee argued on Meet the Press that presidential candidates should not need to answer questions about the Confederate battle flag:

For those of us running for president, everyone's being baited with this question as if somehow that has anything to do whatsoever with running for president. And my position is it most certainly does not.

Where could anyone have gotten the impression that the flag is a presidential campaign issue?

Maybe from former Arkansas Gov. Mike Huckabee, who did everything short of actually firing on Fort Sumter in an effort to court white South Carolina voters during his 2008 presidential campaign:

You don't like people from outside the state coming in and telling you what to do with your flag. In fact, if somebody came to Arkansas and told us what to do with our flag, we'd tell 'em what to do with the pole; that's what we'd do.

Evidently, Huckabee's pandering on the flag issue was deemed a successful strategy. In that same campaign, the New York Times noted, an independent group ran radio ads attacking Sen. John McCain (R-Ariz.) for criticizing the Confederate flag, and boasted that "Mike Huckabee understands the value of heritage."

Justice Elena Kagan Had Some Fun Writing About Spider-Man

| Mon Jun. 22, 2015 11:05 AM EDT

On Monday morning, the Supreme Court didn't issue any of the highly anticipated rulings on the remaining marquee cases of the session (including the cases on same-sex marriage and Obamacare). But the first opinion issued by the court this morning carried an eye-catching name: Kimble v. Marvel Entertainment, a.k.a. the Spider-Man case.

The case revolved around the narrow—and let's be honest, snooze-inducing—question of patent licensing fees. But the majority opinion written by Justice Elena Kagan is full of delightful zingers.

Here's how Kagan describes the toy at the center of the case:

In 1990, petitioner Stephen Kimble obtained a patent on a toy that allows children (and young-at-heart adults) to role-play as "a spider person" by shooting webs—really, pressurized foam string—"from the palm of [the] hand."

The problem was that Marvel never set an expiration date for when the royalties Kimble was owed would expire, with Kimble wishing to still collect after the patent had run out. "The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can)," Kagan wrote, referencing the Spider-Man theme song. That contradicted prior case law, and a lower court ruled that Kimble was no longer owed royalties. The Supreme Court agreed because, as Kagan writes, "patents endow their holders with certain superpowers, but only for a limited time."

In the end, Kagan wrote, the court had to stand by prior precedent. "[I]n this world, with great power there must also come—great responsibility," she wrote, letting Uncle Ben's famous words from Amazing Fantasy No. 15 close out her verdict.

John Oliver Explains How Trolls Make the Internet a Living Hell for Women

| Mon Jun. 22, 2015 9:02 AM EDT

Online harassment is a serious problem, one that's constantly perpetuated by internet trolls spewing direct and oftentimes violent threats to specific users. If you're thinking this characterization is an exaggeration, John Oliver had the following message for you on Sunday:

"Congratulations on your white penis, because if you have one of those, you probably have a very different experience of the internet." As he went onto explain, "women in particular can receive a veritable cornucopia of horrifying messages online." 

On the latest Last Week Tonight, Oliver took the issue to task by talking to female gamers and writers, many of whom have been the targets of a wide range of threats and revenge porn. "It can potentially affect any woman who makes the mistake of having a thought in her mind and then vocalizing it online," he explained.

It's perhaps even more disturbing how little legal protection women have when faced with such harassment.

For more on internet harassment and the online movement known as #Gamergate, check out our in-depth report here.

This Chart Shows How Sexist Silicon Valley Really Is

| Mon Jun. 22, 2015 6:05 AM EDT

Tech companies often chalk up their lack of gender diversity to a "leaky pipeline," or a surge of women leaving engineering. But a new LinkedIn analysis of its members' data suggests that the lack of female engineers working in tech can't be so easily explained away.

The report, released last week, found that the tech sector employs proportionally fewer female engineers than several other industries, including healthcare, retail, government, education, and nonprofits.

The tech sector also lags in the proportion of women taking on leadership roles, according to LinkedIn's report. The professional networking site measured the "leadership gap" in industries: the difference between female representation overall and the percentage of women in leadership roles. By this measure, the healthcare, retail, and financial services industries are doing the worst job of promoting women to top positions. But as shown in the chart below, the tech sector isn't much better: Of the nearly 31 percent of women in the tech sector overall, just 21 percent are in leadership roles.

LinkedIn

This latest data highlight some of the misconceptions associated with solving the persistent lack of women and minorities in Silicon Valley. LinkedIn's report suggests that the so-called "pipeline" isn't leaking all that much: In fact, a good number of female engineers continue to work as engineers—they're simply choosing to take their skills to industries outside the tech sector. As Karen Catlin, a former vice president of Adobe Systems, told Fusion last week, some women avoid tech because they believe they won't have opportunities to grow professionally: "Either there's a very leaky pipeline and women are leaving jobs in tech," Catlin said. "Or they are seeing they cannot have the careers they want in this industry and looking elsewhere for jobs instead."

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The Point of Democracy Is to Keep Powerful Elites From Becoming Complete Jackasses

| Sun Jun. 21, 2015 11:34 AM EDT

Daniel Bell has written a new book making the case that "Chinese-style meritocracy is, in important respects, a better system of governance than western liberal democracy." That's possible, I suppose. Tyler Cowen noodles over the arguments and tosses out a few thoughts. Here's one:

4. Most humans in history seem to have favored meritocratic rule over democracy, and before the 19th century democracy was rare, even in the limited form of male-dominated or property owner-dominated republics. It is possible that the current advantage of democracy is rooted in technology, or some other time-specific factor, which ultimately may prove temporary. That said, I still observe plenty of democracies producing relatively well-run countries, so I don’t see significant evidence that a turning point against democracy has been reached.

I know Cowen is just throwing out some ideas to be provocative, not seriously backing any of them. Still, I think you have to take a pretty blinkered view of "most humans" to throw this one out at all. It's true that humans are hairless primates who naturally gravitate to a hierarchical society, but there's little evidence that "most humans" prefer non-democratic societies. There's loads of evidence that powerful elites prefer elite-driven societies, and have gone to great lengths throughout history to maintain them against the masses. Whether the masses themselves ever thought this was a good arrangement is pretty much impossible to say.

Of course, once the technologies of communication, transportation, and weaponry became cheaper and more democratized, it turned out the masses were surprisingly hostile to elite rule and weren't afraid to show it. So perhaps it's not so impossible to say after all. In fact, most humans throughout history probably haven't favored "meritocratic" rule, but mostly had no practical way to show it except in small, usually failed rebellions. The Industrial Revolution changed all that, and suddenly the toiling masses had the technology to make a decent showing against their overlords. Given a real option, it turned out they nearly all preferred some form of democracy after all.

Which brings us to the real purpose of democracy: to rein in the rich and powerful. Without democracy, societies very quickly turn into the Stanford Prison Experiment. With it, that mostly doesn't happen. That's a huge benefit, even without counting free speech, fair trials, and all the other gewgaws of democracy. It is, so far, the only known social construct that reliably keeps powerful elites from becoming complete jackasses. That's pretty handy.

Resentment and Outrage Are All That Matter in Europe Now

| Sat Jun. 20, 2015 3:12 PM EDT

Larry Summers thinks it will be a catastrophe if Greece repudiates its debt and "financially separates from Europe." Greece will become a failed state; Europe will face a refugee crisis; and both Europe and the IMF will face huge defaults on their loans. Oh, this might not cause financial contagion throughout all of Europe, but then again, that's what everyone said about Long-Term Capital Management, subprime mortgages, and the fall of Lehman Brothers. And look what happened there.

So what does Summers think should happen? Here's his prescription:

Greek Prime Minister Alexis Tsipras needs to do what is necessary to make reaching an agreement politically feasible for his fellow Europeans....He needs to be clear that he will accept further value-added tax and pension reforms to achieve primary surplus targets this year and next, but that he expects a clear recognition that if Greece does its part, debt will be written off on a large scale.

German Chancellor Angela Merkel and European authorities must do what is necessary to make policy adjustments politically tenable in Greece. That means acknowledging that the vast majority of the financial support given to Greece has gone to pay back banks rather than to support the Greek budget. They must agree on debt relief and recognize the degree of adjustment in Greek spending that has taken place: with nearly 30 percent of government workers laid off. It also means announcing their intention to accelerate economic growth throughout Europe.

In case that wasn't clear, here's a translation: the leaders of Europe are idiots. Everyone with a room temperature IQ has known for years that something like this is the deal that needs to be made. It's been discussed endlessly in meeting rooms, op-eds, scholarly papers, and conferences. Not only is it not a secret—or rocket science—it's been the obvious solution forever. But Europe vs. Greece is now like the Hatfields vs. the McCoys. Nobody cares anymore how it started, whose fault any of it was, or what the catastrophic results of continued obstinacy will be. They don't even care much about inflicting pain on their own people as long as they also inflict pain on the other side.

They are idiots. Not stupid, mind you, but idiots all the same. They know what needs to be done. They're just too committed to their own resentment and outrage to do it.

It's Long Past Time For South Carolina to Stop Flying the Confederate Flag

| Sat Jun. 20, 2015 1:04 PM EDT

As I'm sure everyone knows by now, flying the the Confederate battle flag on the grounds of the state house is hardly a longtime South Carolina tradition. In fact, it's only been up since 1961. I was googling around on a different but related subject and happened to come across this account of how it happened. It's written by Brett Bursey and based mainly on the recollections of Daniel Hollis. In 1959 President Eisenhower commissioned a national Civil War Centennial, and Hollis was named a member of South Carolina's commission to plan the state's observance of the 100th anniversary of the War Between the States.

Here's his recollection:

Hollis remembers the day the Confederate flag was hoisted over the State House to commemorate the war. The centennial kicked off on April 11, 1961, with a re-creation of the firing on Fort Sumter. The flag went up for the opening celebrations.

"The flag is being flown this week at the request of Aiken Rep. John A. May," reported The State on April 12. May didn't introduce his resolution until the next legislative session. By the time the resolution passed on March 16, 1962, the flag had been flying for nearly a year. (This explains why the flag is often erroneously reported to have gone up in 1962).

"May told us he was going to introduce a resolution to fly the flag for a year from the capitol. I was against the flag going up," Hollis said, "but I kept quiet and went along. I didn't want to get into it with the UDC [United Daughters of the Confederacy] girls." The resolution that passed didn't include a time for the flag to come down and, therefore, "it just stayed up," Hollis said. "Nobody raised a question."

....The day the flag went up, headlines in the local newspapers were full of unrest. Besides the centennial controversy, the news that week included:

  • Sen. Marrion Gressette, the head of the State Segregation Committee, created in 1951 to recommend measures to maintain segregation, was supporting a resolution condemning former North Carolina Gov. Frank Graham, who had spoken at Winthrop College defending the civil rights movement and calling for integration.
  • Thurmond was fighting in Congress to keep federal funding for segregated schools. Political sentiment against school integration was so strong that state politicians vowed to stop all funding to public schools rather than integrate.
  • The Freedom Ride with integrated bus loads of civil rights workers was on the road, and there were reports of violence along the route.
  • The major story of the week was Kennedy's executive order to end segregation in work places that do business with the government. The forced integration of South Carolina's mills outraged politicians and editorial writers.

Hoisting the Confederate flag over the State House didn't generate any controversy at the time. Perhaps those most offended by it were too busy fighting real-life battles to expend any energy on symbolic ones.

So the flag went up partly to commemorate the Civil War and partly as a fairly safe way to protest against the civil rights movement. In either case, it's hardly a legacy issue that strikes at the honor of the Palmetto State. It was originally intended to stay up for only a year, and South Carolinians would do well to remember that. The year is long since up. Take it down.

Study: Flu Viruses Travel on US Roads and Railways

| Sat Jun. 20, 2015 6:00 AM EDT

Viruses are hitching a ride with commuters on the nation's roads and railways, adding to the chaotic movement that makes seasonal outbreaks difficult to track and contain.

In a study published Thursday in PLOS Pathogens, researchers at Emory University tracked genetic variations in two strains of influenza between 2003 and 2013. They concluded that states highly connected by ground transit tended to have similar genetic variations of the flu, and they matched their findings with illness case data that showed closely timed epidemic peaks in those states. The researchers believe ground transit connectivity may be a better indicator of where a disease is likely to spread than air travel connections or even geographic proximity, though they say both remain important factors.

The US Interstate Commuter Network shows the number of people traveling daily between states for work. Courtesy of Bozick, CC-BY

Modern transport networks complicate the movement of viruses: In the past, contagion moved person to person and village to village, resulting in "wave-like patterns" of genetic variation that correspond to geographic distance, the report says. But with 3.8 million people in the United States taking ground transportation across state borders each day and 1.6 million doing so by air, the spread of illness has become far more chaotic: Transcontinental flights help foster bicoastal outbreaks, while well-traveled commuter corridors between Kansas and Missouri may mean those states share illnesses as neighboring areas go unscathed.

Researchers found that "commuting communities," divided into colored regions, tended to span state borders. Travelers carried influenza along with them. Courtesy of Bozick, CC-BY

The researchers hope their study, which they believe to be the first of its kind at the scale of the continental United States, will help epidemiologists better understand influenza's seemingly unpredictable spread.