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Hipsters Surrender, pic of white flag over Brooklyn bridge
Sardonic NY Post front page. New Yorkers will enjoy it.
The Onion is irreplaceable:
New Anti-Abortion Legislation Requires Doctors To Scale 18-Foot Wall Surrounding Clinic
Richard L. Hasen:
Justice Antonin Scalia of the Supreme Court is the leading proponent of textualism, an approach he justifies as required by the Constitution and better than the alternative of using legislative history. He thinks judges unreliably cherry-pick legislative history, quoting the late Judge Harold Leventhal’s quip that it’s “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” Before Scalia, textualism was one tool among many for interpreting statutes. But now, thanks to his relentless campaigning for the textualist approach, for many strongly conservative judges, the text is the beginning and the end of the analysis when it comes to the meaning of a statute.
To understand how the DC court could possibly decide Halbig the way they did, it helps to understand textualism. In any case, this is one of the best interps of the decisions I have read so far.

Another excellent source for Halbig/King is Nicholas Bagley, who blogs at The Incidental Economist, one of my favorite sites:

Halbig said it was applying the law as written. Don’t believe it.
More politics and policy below the fold.

Brian Beutler:

In other words, if a state sets up a single payer plan, it will be granted as much federal money as its residents would have been eligible to receive in sum, if those residents were consumers in an exchange. Any exchange. Congress' clear intent was to make sure that proportional federal funding flowed to all states whether residents are covered through exchanges or not. Conservatives trying to convince you otherwise are—at best—extremely mistaken.
More from Nicholas Bagley, in the form of a podcast discussion between Jonathan Adler (Volokh Conspiracy and an architect of the Halbig case) and Bagley.  
But why won't it lead? RT @ron_fournier: This tweet is. Just is.
@Neil_Irwin
Nate Cohn:
Georgia might well be moving down the same road as Virginia. No other plausibly competitive state — not Nevada or Virginia, not Colorado or North Carolina — has had a change in the racial composition of the electorate that’s as favorable for Democrats. That’s giving Georgia Democrats hope that they might win a race that they almost certainly would have viewed as a lost cause only a few years ago...

Ms. Nunn will probably fall behind as Mr. Perdue consolidates Republican-leaning voters and gets around to attacking her. That’s not assured, of course, but it’s the likeliest scenario, given the partisanship of the state, the national political environment and the small number of examples of federal Democratic candidates approaching 30 percent of white voters. Perhaps the simple way to view the race is this: The electorate will be about as diverse it was in 2008, when Mr. Martin lost by 3 points in a great year for Democrats and when incumbency didn’t help Republicans much.

German Lopez:
A federal judge on Wednesday struck down Colorado's ban on same-sex marriages, but the ruling will not allow the state's same-sex couples to marry for now.

US District Judge Raymond P. Moore's decision said the Constitution's Equal Protection and Due Process Clauses protect same-sex marriage rights. Following the Supreme Court's 2013 decision to strike down the federal ban on same-sex marriages, other cases on the issue have used the same rationale to uphold LGBT rights.

Colorado's same-sex couples will not be able to get married just yet, because Moore put his decision on hold until August 25 as it works through the appeals process.

David Kroll:
A California fruit-packing company has issued a voluntary recall of certain lots of Sweet2Eat whole peaches (white and yellow), nectarines (white and yellow), plums and pluots.

Wawona Packing Company is recalling these fruits packed between June 1, 2014 and July 12, 2014 because of their potential for contamination with Listeria monocytogenes

Listeria is a microbe that can cause illness and even death in infants and children, elderly people, and those with weakened immune systems. Pregnant women exposed to Listeria may potentially experience miscarriage or stillborn infants.

The company announced yesterday that their consumer hotline has been overwhelmed and that there are unusually long wait times. Here’s what you need to know:

Aaron Blake:
Sen. Elizabeth Warren (D-Mass.) pledged Wednesday to serve out her term and sought to pour cold water on the idea that she might run for president in 2016, according to the Boston Herald.

"I'm not running for president and I plan to serve out my term," Warren said at a news conference for Boston mayor-elect Marty Walsh, the Herald reported. Pressed further, Warren said she would "pledge to serve out my term."

Warren added: "I am not running for president. I am working as hard as I can to be the best (possible) senator I can be."

Warren's office confirmed the comments to Post Politics.

James Pethokoukis:
The weird obsession that's ruining the GOP
Benghazi? ObamaCare? Hillary Clinton? No — it's inflation.
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Comment Preferences

  •  Nick Kristof has a good column (8+ / 0-)

    titled An Idiot's Guide to Inequality.

    I offer my exploration of and reaction to that "Guide" in this post which I invite you to read.

    Peace.

    "Don't ask what the world needs. Ask what makes you come alive and go do it, because what the world needs is more people who have come alive." - Howard Thurman

    by teacherken on Thu Jul 24, 2014 at 04:33:29 AM PDT

  •  Nothing better than an Onion LOL (7+ / 0-)

    first thing in the morning.  

    As we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them. John F. Kennedy

    by JaxDem on Thu Jul 24, 2014 at 04:35:06 AM PDT

  •  I noticed something strange when watching (6+ / 0-)

    news coverage of the White Flag stuff. Did my eyes deceive me because I swear I could see faded stars and strips in that white?

    On my television screen they didn't appear to be just white flags, but had a slight pattern that looked like a bleached American Flag.

    Why? I don't know. Just thought that was weird. I wondered if at the time, white, somewhat transluscent cloth had been used to cover American flags somehow.

    ??

    "It were a thousand times better for the land if all Witches, but especially the blessing Witch, might suffer death." qtd by Ehrenreich & English. For Her Own Good, Two Centuries of Expert's Advice to Women pp 40

    by GreenMother on Thu Jul 24, 2014 at 04:37:37 AM PDT

  •  Doubtless NY will be very vindictive to the flag (6+ / 0-)

    posse when they catch up with them.Waving around 'terrorism' and a lot of other phoney charges.
    Because they showed up the NYPD and the bazillion dollars wasted every year on turning police into (inept) soldiers and high tech (but pretty useless) security systems for what they are.
    Oh yeah, and the 4 squad cars parked at the bridge?
    Well, you cant expect the cops to, like, notice stuff like that.
    Theyre 'busy'.

    And you thought things like this only happens on Swedish/Danish TV series (and poor copies of them).

  •  Ok...I'm waiting for those commenters that will... (6+ / 0-)

    Ok...I'm waiting for those commenters that will still insist Warren is running for president, and that her statements to the contrary really aren't .

    •  we like Warren's message (9+ / 0-)

      not much to argue about, really.

      "It is difficult to get a man to understand something, when his salary depends upon his not understanding it!" — Upton Sinclair

      by Greg Dworkin on Thu Jul 24, 2014 at 04:46:07 AM PDT

      [ Parent ]

    •  hey whatcha link of the NY Post front page? (10+ / 0-)

      I fear those outside of NYC won't appreciate it.

      Williamsburg is a neighborhood of 113,000 inhabitants[3] in the New York City borough of Brooklyn, bordering Greenpoint to the north, Bedford–Stuyvesant to the south, Bushwick and Ridgewood, Queens to the east and the East River to the west. Part of Brooklyn Community Board 1, the neighborhood is served in the south by the New York Police Department (NYPD)'s 90th[4] Precinct and in the north by the 94th Precinct. In the City Council, the western and southern part of the neighborhood is represented by the 33rd District; and the eastern part of the neighborhood is represented by the 34th District.[5][6]

      Williamsburg is an influential hub of current indie rock, hipster culture, and the local art community.

      http://en.wikipedia.org/...

      "It is difficult to get a man to understand something, when his salary depends upon his not understanding it!" — Upton Sinclair

      by Greg Dworkin on Thu Jul 24, 2014 at 04:48:36 AM PDT

      [ Parent ]

    •  And HC's statements to the contrary ... (0+ / 0-)

      ... really are? Or aren't?

      Isn't that textualism, where you take what you want from the messages you get?

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Thu Jul 24, 2014 at 04:54:02 AM PDT

      [ Parent ]

      •  Hillary has NEVER said she's not running (7+ / 0-)

        She's said she hasn't made up her mind yet and is focusing on the midterms right now.
        HUGE difference between that and "No means no."

        If trees gave off WIFi signals, we would probably plant so many trees, we would save the planet. Too bad they only produce the oxygen we breathe.

        by skohayes on Thu Jul 24, 2014 at 05:10:52 AM PDT

        [ Parent ]

      •  I thought that one of the things (3+ / 0-)
        Recommended by:
        a gilas girl, Uncle Moji, TerryDarc

        we LIKE about Warren (and don't like about Clinton) is that she is NOT a politician and that she means what she says.

        Apparently, I was under a misaprehension.

        Anyone arguing that there's no difference between the parties is a fucking moron who can simply go to hell. -- kos

        by Its the Supreme Court Stupid on Thu Jul 24, 2014 at 05:36:08 AM PDT

        [ Parent ]

        •  I thought kos' diary yesterday (4+ / 0-)

          made some very good points.
          Such as that as a Senator, Warren can pull Hillary to the left from Congress by passing more progressive bills (of course, we'd need a filibuster proof majority in the Senate and a House majority to get that done, but I think that's possible in 2016).

          If trees gave off WIFi signals, we would probably plant so many trees, we would save the planet. Too bad they only produce the oxygen we breathe.

          by skohayes on Thu Jul 24, 2014 at 06:29:36 AM PDT

          [ Parent ]

          •  the democratic party in the senate works exactly (4+ / 0-)

            like the democratic party everywhere else: the centrists compromise with the RWNJs, and tell the left that if they don't vote for the result, they will be responsible for the end of civilization.

            To put the torture behind us is, inevitably, to put it in front of us.

            by UntimelyRippd on Thu Jul 24, 2014 at 07:05:50 AM PDT

            [ Parent ]

            •  I think you may be exaggerating (1+ / 0-)
              Recommended by:
              Uncle Moji

              a bit, but 8 years under President Bush and at least another 20 years with Chief Justice Roberts on SCOTUS has convinced me.
              Or, if you prefer, Reagan's two terms, when over 20,000 people died of AIDS, we sold arms to terrorists and propped up the Contras.
              Your mileage may vary.

              If trees gave off WIFi signals, we would probably plant so many trees, we would save the planet. Too bad they only produce the oxygen we breathe.

              by skohayes on Thu Jul 24, 2014 at 09:06:36 AM PDT

              [ Parent ]

              •  convinced you of what? (0+ / 0-)

                Most Democrats who give much thought to 2000 blame Nader and the party's left. That's very satisfying to the tribalist lizard brain: Rather than admitting that there's something fundamentally wrong with the tribe, the frustrated chauvinist instead blames the traitors from within. It's a common-enough phenomenon, like the right-wingers who blame the left for America "losing" the war in Vietnam.

                However, if one is less interested in finding someone to blame than in identifying and fixing institutional weaknesses, one might make the rather more bland and obvious observation that the Democrats failed to keep the White House in 2000 because the party elites had drifted too far to the right, thus alienating their own formerly reliable left.

                If the obvious lesson had been learned, the party would have shifted to the left after 2000. Instead, the party lurched rightward, signing on to unconscionable security measures and unconscionable wars and unconscionable tax cuts for the wealthiest, while using 2000 as an excuse to shame the left into submission. It didn't have to be that way -- but too many of the rank and file bought into the elites' propaganda, turning on the left, when it was the party's right that was responsible for the disaster.

                And continues to be responsible for the ongoing disasters that have afflicted the Democrats nationwide.

                I don't know whether Rahm abandoned the 50-state-strategy because he's a short-sighted egotistical jackass, or because he's an evil genius Manchurian Democrat, cunningly plotting to keep the country in the hands of the plutocrats. And I don't care. All I know is that he and is ilk are basically holding up a puppy named Constitution, putting a gun to its head, and threatening to shoot it if we don't buy their fascist agenda.

                To put the torture behind us is, inevitably, to put it in front of us.

                by UntimelyRippd on Thu Jul 24, 2014 at 07:57:59 PM PDT

                [ Parent ]

                •  Convinced me that staying home (0+ / 0-)

                  and not voting is not a luxury I can afford.

                  If trees gave off WIFi signals, we would probably plant so many trees, we would save the planet. Too bad they only produce the oxygen we breathe.

                  by skohayes on Fri Jul 25, 2014 at 02:50:53 PM PDT

                  [ Parent ]

          •  What? "A filibuster proof majority in ... (0+ / 0-)

            ... the Senate and a House majority ... I think that's possible in 2016."

            From your lips to God's ear. But that is asking a lot, considering we're going to be lucky to retain our Senate majority coming out of 2014. And the Blue Dogs in the House would be part of any Democratic majority there, limiting the pull or push or whatever of the Progressive agenda.

            The big thrust of your comment, though, is that EW will "pull" HC to the left. If HC moves left, I very much doubt it will be because of EW (whether EW is or isn't a Presidential candidate in 2016). It'll be because HC ran centrist and didn't need to stay that way after she got elected.

            And IF - I know what kos says; usually I agree with him, but not on this one) - EW does run in 2016, it will not be against HC at all. The only scenario where EW running makes sense is if HC is wobbling or out of the race. Either way (or even if I'm wrong about that, and EW is somehow in anyway), EW's being in would push HC to the center right, so as not to be "Her."

            2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

            by TRPChicago on Thu Jul 24, 2014 at 02:37:59 PM PDT

            [ Parent ]

    •  Oh it was NUTS yesterday.... (7+ / 0-)

      Head-banging-the-desk nuts, a cupla commenters led multiple thread-jack divergences that grew longer and longer and narrower and narrower, all pretty much "Nuh-Uhh, she was speaking in the present tense!"....

      Shaking-head facepalm!

      "Ronald Reagan is DEAD! His policies live on but we're doing something about THAT!"

      by leftykook on Thu Jul 24, 2014 at 04:55:03 AM PDT

      [ Parent ]

    •  It reminds me (15+ / 0-)

      of a scene from Monty Python's Life of Brian:

      BRIAN: I'm not the Messiah! Will you please listen? I am not the Messiah, do you understand?! Honestly!

      GIRL: Only the true Messiah denies His divinity.

      BRIAN: What?! Well, what sort of chance does that give me? All right! I am the Messiah!

      FOLLOWERS: He is! He is the Messiah!

      BRIAN: Now, f**k off!

      •  Oh? (0+ / 0-)

        Every human being has paid the earth to grow up. Most people don’t grow up. And you find out what it costs us to love and to lose, to dare and to fail. And maybe even more, to succeed. What it costs, in truth.—Maya Angelou

        by TerryDarc on Thu Jul 24, 2014 at 09:42:52 AM PDT

        [ Parent ]

  •  ACA gives Floridians a refund this summer (16+ / 0-)

    Floridians to get $42 million in health insurance refunds

    More than 981,000 Floridians will get an average refund of $65 from their health insurers this summer because of the Affordable Care Act, federal officials announced today.

    ...

    Nationwide, consumers are due about $332 million in refunds, a figure that covers both the individual and group markets, the U.S. Department of Health & Human Services said. Floridians are getting nearly $42 million of that.

    Nice...not only do folks have insurance or more affordable insurance, but now they even get a refund!!  One more brick in the wall. huh GOP?

    As we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them. John F. Kennedy

    by JaxDem on Thu Jul 24, 2014 at 04:46:07 AM PDT

    •  Yay. $50 each. What is that, 3% of a rate (1+ / 0-)
      Recommended by:
      JaxDem

      increase?

      We got a $50 check back the other day ourselves, for last year's insurance.  As we had pretty cheap insurance last  year, it was nearly 4% of our rate increase.

      LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

      by dinotrac on Thu Jul 24, 2014 at 06:01:50 AM PDT

      [ Parent ]

      •  Well... (0+ / 0-)

        since rate increases last year were less than they were previous to the ACA, you must be breathing easier.  

        •  Not sure I understand. (0+ / 0-)

          If you mean prior to passage, we got our largest increases AFTER ACA passed.

          If you mean prior to the mandate, last year's insurance was the last year prior to the mandate.

          Our rate doubled this year, but it's not really a fair comparison as we moved to another state, were unable to put our daughter on our insurance, forcing us to take a separate policy (which we include in our insurance costs as she is a college sophomore and can't afford to pay it herself), and have different coverage.

          Fortunately for us, we qualified for a subsidy, so, SCOTUS willing, the cost to us is similar to last year's rate.

          LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

          by dinotrac on Thu Jul 24, 2014 at 08:46:14 AM PDT

          [ Parent ]

  •  Oh.....it's inflation that's driving the GOP mad. (2+ / 0-)
    Recommended by:
    Stude Dude, TerryDarc
  •  I was wondering about the flags. (7+ / 0-)

    I thought it was Brooklyn surrendering to the hipsters. Or the Manhattan real estate market surrendering to the hedge fund managers.

    I live under the bridge to the 21st Century.

    by Crashing Vor on Thu Jul 24, 2014 at 04:54:59 AM PDT

  •  Jon Stewart Nails it on the DC Court Nonsense (5+ / 0-)

    The combination of media sensationalism, and Republican mockery of judicial interpretations leads is to this farcical situation.
    Meanwhile we're all stuck here in America at the stop sign that Stewart uses in this bit, while the rest of the world progresses.

    http://www.huffingtonpost.com/...

    The good news is that, despite all of the "blowing" the full DC circuit will almost certainly over-rule this blatantly political decision.

    "Inequality is the root of social evil." ― Pope Francis

    by GoodGod on Thu Jul 24, 2014 at 04:58:10 AM PDT

  •  The best way to attack Republicans and siphon (4+ / 0-)

    off their lunatic base is to align them with democratic principles.  Have we learned nothing from Mississippi?  Run an ad about how Perdue is pro-abortion, advocates for gun control and once took a class with the President and it's game over.  I am surprised no one has done this ...yet.

    Republican voters have a double standard when it comes to their candidates.  It doesn't matter how many dead bodies are in the candidate's closet, their base will always turn out and vote for them EXCEPT when they aren't "real" Republicans.  That's when they sit out an election.

    •  And this is different from us... how? (0+ / 0-)

      Read some of the comments and diaries about HRC on this site recently. There's a lot of people who say they will not vote for her. And some who say they will even though they hate her NeoLib policies.

  •  What do we need judges for, then? (5+ / 0-)

    If "textualism" is all that is required then we don't need judges.

    •  correct (12+ / 0-)

      all adjudications should be done by AP Style guide.

      "It is difficult to get a man to understand something, when his salary depends upon his not understanding it!" — Upton Sinclair

      by Greg Dworkin on Thu Jul 24, 2014 at 05:54:56 AM PDT

      [ Parent ]

      •  Yup. (2+ / 0-)
        Recommended by:
        a gilas girl, TerryDarc

        We don't need a Supreme Court, all we need is a panel of  proofreaders.

      •  except that style guides can't adjudicate (1+ / 0-)
        Recommended by:
        zozie

        Pardon my literal, but although I have nothing nice to say about textualism, I don't think it is self-rebutting in quite this way. The case for separating judicial power from other powers doesn't really depend on how statutory construction works.

        The thing about textualism a la Halbig is that it claims to be commonsensical even as it violates common sense. "But you saaaaaaaaaid..." is how a kid tries to get away with something, or escapes the clutches of an evil genie. It isn't an interpretive principle.

        "Democracy is a political system for people who are not sure they are right." —E. E. Schattschneider

        by HudsonValleyMark on Thu Jul 24, 2014 at 07:12:48 AM PDT

        [ Parent ]

        •  Where's the textualism (0+ / 0-)

          in Heller and McDonald? Seems Scalia missed an entire phrase of the Second Amendment in those.

          It is not the private interests of the individual that create lasting fellowship among men, but rather the goals of humanity. ~ The I Ching, 13th Hexagram

          by Blue Intrigue on Thu Jul 24, 2014 at 08:06:33 AM PDT

          [ Parent ]

          •  well... (2+ / 0-)
            Recommended by:
            Blue Intrigue, sweatyb

            I never even read McDonald, but Scalia's ruling in Heller has plenty of textualism, whether or not it makes a lick of sense. Although constitutional interpretation isn't just like statutory construction, I think it's fair to say that claiming to rely on the meaning of the text rather than "intent" doesn't actually confer objectivity: it's a genre restriction.

            "Democracy is a political system for people who are not sure they are right." —E. E. Schattschneider

            by HudsonValleyMark on Thu Jul 24, 2014 at 08:56:28 AM PDT

            [ Parent ]

            •  I had to look up Heller (1+ / 0-)
              Recommended by:
              HudsonValleyMark

              because I remember well how Scalia dismissed the first part of the Second Amendment using textualism:

              The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

              It is not the private interests of the individual that create lasting fellowship among men, but rather the goals of humanity. ~ The I Ching, 13th Hexagram

              by Blue Intrigue on Thu Jul 24, 2014 at 09:05:10 AM PDT

              [ Parent ]

              •  any questions? ;) n/t (1+ / 0-)
                Recommended by:
                Blue Intrigue

                "Democracy is a political system for people who are not sure they are right." —E. E. Schattschneider

                by HudsonValleyMark on Thu Jul 24, 2014 at 10:32:47 AM PDT

                [ Parent ]

                •  Yes, actually (1+ / 0-)
                  Recommended by:
                  HudsonValleyMark

                  How is it again that the two clauses are completely independent? Why is the history of the "operative clause" relevant but the history of the two clauses taken together not? How can the continued existence of the Second Amendment be possible if the purpose of the amendment isn't even relevant? I have more if you really want to hear them! ;-)

                  It is not the private interests of the individual that create lasting fellowship among men, but rather the goals of humanity. ~ The I Ching, 13th Hexagram

                  by Blue Intrigue on Thu Jul 24, 2014 at 10:52:42 AM PDT

                  [ Parent ]

                  •  I have to admit (1+ / 0-)
                    Recommended by:
                    Blue Intrigue

                    I can try to channel my inner Scalia, but I'm a bit afraid of permanent damage. That said....

                    He didn't say that the clauses are "completely independent"; he said that the first one doesn't limit or expand the scope of the second clause. I don't think that's obviously wrong. I would expect the first clause to give hints as to what the "operative clause" means, but not necessarily to alter its scope. I suspect that if the first clause weren't there at all, Scalia and I would still disagree about what the "operative clause" means.

                    I'm not sure what bright line you are drawing between the second clause and "the two clauses taken together." Are you suggesting that the history of the first clause compels us to adopt an interpretation of it, and therefore of the second clause, contrary to Scalia's? I think that may well be true. But it isn't obvious.

                    I think Scalia would say that the way to interpret the "purpose" is to read the text.

                    "Democracy is a political system for people who are not sure they are right." —E. E. Schattschneider

                    by HudsonValleyMark on Thu Jul 24, 2014 at 02:54:25 PM PDT

                    [ Parent ]

                    •  I was certainly oversimplifying (1+ / 0-)
                      Recommended by:
                      HudsonValleyMark

                      I was suggesting that when you look at the judicial history of interpretations of the Second Amendment in toto, you would indeed reach a contrary conclusion. It was a neat linguistic trick Scalia pulled.

                      It is not the private interests of the individual that create lasting fellowship among men, but rather the goals of humanity. ~ The I Ching, 13th Hexagram

                      by Blue Intrigue on Thu Jul 24, 2014 at 03:21:52 PM PDT

                      [ Parent ]

                      •  why, yes, yes it was :) (1+ / 0-)
                        Recommended by:
                        Blue Intrigue

                        And you've brought me right around: it's more like what the majority did in Halbig than I had thought. Both found that the text clearly said what almost no one before them ever had thought it said. In Scalia's case it's harder to tell, at least what people thought in the late 18th century. In this case, it's kind of an oh doh, even though the setup is different (e.g., parsing one clause in a huge law, rather than a sentence that stands alone).

                        "Democracy is a political system for people who are not sure they are right." —E. E. Schattschneider

                        by HudsonValleyMark on Fri Jul 25, 2014 at 03:26:59 AM PDT

                        [ Parent ]

            •  Just like Biblical literalism, textualism seems... (0+ / 0-)

              Just like Biblical literalism, textualism seems to be a handy way to get to the outcome you've already decided upon.

    •  That's basically the base's position (6+ / 0-)

      It goes with their view of the Bible -- long-standing fundamentalist position that the Biblical text is plain and clear and speaks for itself, and we don't need those fancy Eastern college-educated preachers to tell us what it means and how the translations vary and whether this epistle really was written by Paul and all that drivel designed by Satan to lead us astray.

      In this worldview, nuance, changes in word usage and meaning over time, context, etc. mean absolutely nothing. If the words "Buk missile launcher system" don't appear in the Constitution, then obviously Congress can't regulate them. But if the word "abortion" doesn't appear in the Constitution, then obviously Congress HAS to regulate it.

      So any judge (or regulatory agency, or President) who claims to have to interpret the language (which is basically their job) is an "activist judge" who is interfering with "democracy." It basically elevates the legislative branch to the only branch of government that actually decides anything, and everyone else is just supposed to salute and do it, blindly.

  •  Talk about false choices: (0+ / 0-)
    Is it the courts’ job to make laws work for the people, or to treat laws as arid linguistic puzzles?
    First and foremost it is NOT no way no how never ever the job of the court to make laws work for the people.  

    That is the job of the legislature in our tripartite government.  The court is required to interpret the law in order to fit the specific fact scenarios that arise and

    1.  Apply the law in a way that is most in keeping with it's intent
    2.  Ensure that the law does not violate the Constitution, and, if so
    3. strike out as little of the law as is possible and consistent with the intention of the legislature

    Textualism is not an alternative to determining the intent of the legislature.  It is a tool for determining the intent of the legislature, perhaps the most powerful tool, and certainly more powerful than statements by a bill's drafters or sponsors.

    Why?

    Because it takes 218 votes to get a bill through the House (and 50+1) to get it through the Senate.  The drafters and sponsors are actually just a tiny part of the passing block and may not well represent the intent and understand of all who voted in favor.

    Kossacks are well familiar with selection bias in places like Fox News, Drudge, and Breitbart. Courts are capable of the very same thing.  That's why the text matters.

    But -- text is not the end-all, be-all, especially when one considers the vagaries and limitations of language.

    The biggest problem  facing the Court on the federal exchange question is that the bill provides its own definition of state.  Without that, there would be no case at all.  With it, there may not be a compelling case, but the question remains: why do you put a definition in a law if you don't mean it?

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Thu Jul 24, 2014 at 05:58:05 AM PDT

    •  I think you close with the wrong question (2+ / 0-)
      Recommended by:
      dinotrac, ratcityreprobate

      I didn't like that sentence about making laws "work for the people," either.

      The issue isn't whether Congress meant the definition of "state." It's whether a particular reference to "established by the state" should — really, must — be construed to exclude the federal exchange.

      "Democracy is a political system for people who are not sure they are right." —E. E. Schattschneider

      by HudsonValleyMark on Thu Jul 24, 2014 at 06:32:23 AM PDT

      [ Parent ]

      •  and 'exchanges' vs 'such exchanges' (4+ / 0-)

        makes you hate lawyers, honestly.

        "It is difficult to get a man to understand something, when his salary depends upon his not understanding it!" — Upton Sinclair

        by Greg Dworkin on Thu Jul 24, 2014 at 06:55:23 AM PDT

        [ Parent ]

      •  Hmmmm. (0+ / 0-)

        It's true that you have to clear the "must" hurdle first.  If it must exclude the federal exchange, everything else is moot.

        After that, intent comes into play.

        One very odd -- and likely unintentional -- limitation has already been accepted in the law: the Medicaid gap which screws over people who live below the poverty level but don't qualify for Medicare in non-expansion states.

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Thu Jul 24, 2014 at 06:57:20 AM PDT

        [ Parent ]

        •  here, if we reach intent, I think we're done (1+ / 0-)
          Recommended by:
          dinotrac

          With all due respect to the Halbig majority, I don't see a plausible case that Congress intended the outcome they arrived at. Of course, statutory construction should attempt to construe the statute; it isn't about "intent" in the abstract. But this doesn't seem like a close case to me. (The court doesn't even have to resolve intent, per se: it can simply defer to the agency.)

          "Democracy is a political system for people who are not sure they are right." —E. E. Schattschneider

          by HudsonValleyMark on Thu Jul 24, 2014 at 07:36:56 AM PDT

          [ Parent ]

      •  Why is it "the State" rather than "a state"? I ... (0+ / 0-)

        Why is it "the State" rather than "a state"? I thought it odd because "the State" is sometimes used for government in general.

    •  But to take that one sentence out (3+ / 0-)

      and treat it as a stand alone object, rather than part of a whole bill, is dishonest.
      Congress made it's intent very clear in the other 1999 pages of the bill, I think.

      If trees gave off WIFi signals, we would probably plant so many trees, we would save the planet. Too bad they only produce the oxygen we breathe.

      by skohayes on Thu Jul 24, 2014 at 06:45:51 AM PDT

      [ Parent ]

      •  I haven't read the whole bill (and hats off to (0+ / 0-)

        you), but it really doesn't seem possible to construe state that tightly and believe that you are acting consistently with the intent of the law.  

        It should raise some questions to anybody reading it:

        1. OK, the law intends to reduce the number of uninsured recipients and approves subsidies for most Americans if they buy from a government (state) exchange.

        Why would Congress care about which government provided the exchange?

        2.  When Congress provided for the subsidy, how could they have known that most states wouldn't run and exchange?

        3. Could Congress have possibly meant to exclude citizens in 33 states from this provision?

        Of course, there is already one big puss-oozing hole in the law: the Medicaid gap that leaves people in non-expansion states high and dry. So, maybe.

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Thu Jul 24, 2014 at 06:54:44 AM PDT

        [ Parent ]

        •  that hole was invented (1+ / 0-)
          Recommended by:
          Chuckling Quietly to Myself

          by SCOTUS. Didn't need to be there.

          "It is difficult to get a man to understand something, when his salary depends upon his not understanding it!" — Upton Sinclair

          by Greg Dworkin on Thu Jul 24, 2014 at 06:56:33 AM PDT

          [ Parent ]

          •  "Invented by SCOTUS". No. (0+ / 0-)

            It is the fault of Congress and lousy thinking/drafting.

            It certainly was Congressional intent that every state expand Medicaid, but that didn't hold up.  It wasn't even that big a stretch to understand why it wouldn't hold up.

            The hole did not have to exist.
            The law could have been written (and believe me, our headaches with the exchange and the way things are actually done bear this out) to exclude people below the poverty line who qualify for Medicaid.  It wasn't written that way and it's reasonable to assume that it wasn't written that way because Congress worried about passage.

            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

            by dinotrac on Thu Jul 24, 2014 at 07:18:54 AM PDT

            [ Parent ]

            •  Congress assumed all states wopuld participate (0+ / 0-)

              SCOTUS said it was ok if they did not.

              That's what happened. The rest is rationalization.

              "It is difficult to get a man to understand something, when his salary depends upon his not understanding it!" — Upton Sinclair

              by Greg Dworkin on Thu Jul 24, 2014 at 08:20:48 AM PDT

              [ Parent ]

        •  On most bills published by Congress (0+ / 0-)

          there's an average of 174 words per page. Put together, the whole ACA is the length of 2 Harry Potter books.
          I didn't understand a lot of it, but I did read it.
          Do you think it's relevant that the decision to defund the bill was made by two conservative Republican judges and two other courts read it completely differently?

          "This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act," Edwards wrote in his dissent Tuesday. "This claim is nonsense, made up out of whole cloth. There is no credible evidence in the record that Congress intended to condition subsidies on whether a State, as opposed to HHS, established the Exchange."
          http://www.huffingtonpost.com/...

          If trees gave off WIFi signals, we would probably plant so many trees, we would save the planet. Too bad they only produce the oxygen we breathe.

          by skohayes on Thu Jul 24, 2014 at 09:14:07 AM PDT

          [ Parent ]

          •  No I don't (0+ / 0-)

            And a more accurate description of the judges would be two conservative judges appointed by Republicans.

            Judgeships are not partisan offices, even though judges are certainly capable of being partisan. That is why they are lifetime appointments with guaranteed salary levels.

            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

            by dinotrac on Thu Jul 24, 2014 at 12:02:26 PM PDT

            [ Parent ]

  •  Scalia's "Textualism" is an excuse. (6+ / 0-)

    Like everything else with him. States Rights, Originalism, blah blah blah ... he applies them when the outcome coincides with what he wants, and ignores them when it doesn't.

    Scalia is the most nakedly dishonest judge ever to pollute a seat on SCOTUS, and the echos of that are rippling down through the lower courts.

  •  "textualism" is the pinnacle of the dysfunctional (0+ / 0-)

    epistemology that characterizes our judicial culture.

    as i have ranted elsewhere, written language simply cannot do what the textualists want it to do; and within the cultural constraints of our legal system (in which the text of a law does not incorporate meaningful metatext, nor specific examples from which the judiciary are explicitly expected to draw generalizations) it doesn't even come close.

    To put the torture behind us is, inevitably, to put it in front of us.

    by UntimelyRippd on Thu Jul 24, 2014 at 06:57:28 AM PDT

  •  Textualism Analogy (0+ / 0-)

    Sure, people can walk and chew gum at the same time, but why?

    Free Will is the only moral law.//If you have to explain snark, it's because it isn't working on one end or the other.

    by franklyn on Thu Jul 24, 2014 at 07:46:51 AM PDT

  •  Supreme Court Textualism (0+ / 0-)

    "While it seems clear that the intent of Congress was to write 'Let's eat, Grandma', we find that the literal text reads "Let's eat Grandma', therefore we  determine that the law requires Congress to devour their own grandmothers."

  •  BREAKING! Warren announces candidacy! (0+ / 0-)
    Pressed further, Warren said she would "pledge to serve out my term." [as president]
    The plain-spoken Senator is now plainly on-record!

    /snark

    The GOP bet on [Obamacare] failure. And they lost the bet - Josh Marshall

    by rsmpdx on Thu Jul 24, 2014 at 08:36:46 AM PDT

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