The other day, my father asked me about these three “ding-dongs” who tried to take a flight to Syria to fight for the Islamic State. I referred him to Gary Brecher’s amazing article, Islamic State and American Narcissism. I gave him the highlights: (1) it’s mostly boredom and the desire to “join the fight”; and (2) the number of foreign fighters joining the Islamic State is tiny. And that was that. I hadn’t heard anything, because I haven’t been paying that much attention to the news this last week, because it all seems so depressing. But I should have known better than to accept the story at face value.

There is a rather big question: how was it that the authorities knew that these guys intended to go and fight the Islamic State? The answer is the same as usual: it was the government itself that put them up to it. The whole thing started when Abdurasul Hasanovich Juraboev of Brooklyn went on an Islamic State website and offered to kill President Obama. The threat reads like something written by a ten year old or dialog from a bad John Milius’ film. But rather than arrest the man for that, the FBI followed him online. When it was clear he wasn’t actually going to do anything, they set up another of their “stings.”

They sent in an undercover agent to get everything that Juraboev and his friends needed to get on a plane. These seem to be very immature young men, and very likely mentally unstable. One of them had his passport taken away from him by his mother. Unfortunately, we can’t call these guys the Jihadis Who Couldn’t Shoot Straight, because they were too incompetent to even get a gun. So basically, we have another case of an FBI terrorism plot foiled by the FBI! I feel so much safer knowing that millions of dollars are going into creating terror plots so the viewing audience can feel better about what a great job the government is doing protecting all of us.

Glenn Greenwald asked a great question, Why Does the FBI Have to Manufacture its Own Plots if Terrorism and ISIS Are Such Grave Threats? Right. If there is all this home grown terrorism, why is the FBI wasting resources creating these fake plots? As it was, Juraboev’s initial threat to kill the president was a Class D Felony. That means he would get between 5 and 10 years in prison. As it is, he could get up to 15 years. Great use of resources!

Of course, it is a great use of resources as far as the FBI is concerned. That’s because the people who run the FBI are concerned about their budget. The former FBI assistant director Thomas Fuentes was quoted as saying:

Now, this is a highly cynical view that I don’t think is true of bureaucrats in general. But it is certainly the case that top level bureaucrats have to worry about their budgets. They don’t want to have to fire people — just to put a nice gloss on it. But this is not — as libertarians might argue — a reason for destroying all bureaucracy. Rather, we could better incentivize the bureaucracies to do what we want them to do. (Note: a guaranteed minimum income would go a long way in dealing with these problems.)

But the way things are, we have to all be made more afraid than we ought to be. And the cost of making us more afraid than we ought to be is making us less safe than we ought to be.

With Leonard Nimoy’s dying from COPD, it seems like a good time to finally write an article about cigarette marketing and their more general danger to democracy. But I should be clear: what Nimoy did was good. He quit smoking in his early 50s. It would have been better if he had quit in his early 30s. But it is doubtless that the last three decades of his life were far better because he had quit smoking — and I’m not just talking about health and longevity. Smoking is terrible. Heavy smokers wake up each morning in withdrawal. They don’t feel as good. They are ostracized. They don’t enjoy the tastes of food and spirits as much as they could.

I was reading about a study recently that found that tobacco and heroin were opposites. Heroin had a very high mortality rate in the short term, but basically no direct long term harm once you quit. Smoking cigarettes basically can’t kill you in the short term — even over a few years. But its use can harm you long after you stop. I’m only comparing them because heroin is considered “the hardest drug” and cigarettes are completely legal. Now certainly, heroin is more mythology than anything at this point. But why is it that we won’t let people drink until they are 21 years old, but these cancer time bombs are available at only 18?

Back in 1992, I had a mind blowing experience. I was in Hong Kong riding on one of the ferries that took me from where I was staying in the rich area, where white people went to conferences, to the poorer area where things were interesting. And I saw a poster on the ferry for “the world’s best selling cigarette.” And I had never heard of it.[1] What I took away from that was that while the United States was in the process of quitting this deadly habit, the cigarette companies were busy exporting it everywhere else.

In 1994, Roger Rosenblatt at The New York Times wrote, How Do Tobacco Executives Live With Themselves? Apparently, they live with themselves exactly the same way they do today, because if anything, their behavior is worse now. To answer the question, I suspect they have no trouble living with themselves. Their excessive pay packages and a little “libertarian” theory about “freedom” is all that is required.

John Oliver did an excellent segment on it early this month, Last Week Tonight with John Oliver: Tobacco. In the past, we had all those tobacco executives lying about the health effects of cigarettes. Now, they are bullying smaller countries to keep people smoking as long as they are breathing. It has a special relevance to me, because I know that I could take on a libertarian persona and write about politics from a conservative but interesting perspective. And in doing so, I’m sure that I could get people to pay me. Yet I don’t do that because I think it is wrong — because it would make the political discourse slightly worse. These are people who think it is just peachy to kill in the name of their quarterly bonuses.

I’ll admit, I’m really behind the curve on this and I shouldn’t be. I had thought that since tobacco had become so much less profitable here in the United States, that Philip Morris and other tobacco companies would just diversify. You know: start making toilet paper and garden supplies. But no. They’ve just grown their markets in other countries where the people are less able to protect them. Also, even in Australia, Philip Morris International is using an obscure part of an old trade agreement to fight an anti-smoking law. This, of course, is a big part of the concern about TPP and TTIP.

This is an outrage regarding cigarettes, but there is just as deadly a larger issue here. Corporations are trying to set up legal frameworks that tie the hands of democratic governance. You think cigarettes shouldn’t be allowed to be marketed to teens? Too bad! We’ve got this treaty that says it doesn’t matter what your democracy wants. This is, interestingly, akin to a very old conservative complaint about the United Nations. But this is an actual threat. My hope is that conservatives and liberals will actually come together on this one. But give Fox News a week of blanket coverage, and I’m not sure many conservatives will care. It will be like “right to work” laws. These will be “right to hire” treaties. But I haven’t given up hope.

[1] This is probably a false memory. As far as I can tell, Marlboro was and still is the best selling. It was very likely Asia’s best selling cigarette. But it doesn’t change the point.

When I hear “Silk Road,” I think “Marco Polo.” When I hear “Dread Pirate Roberts,” I think The Princess Bride. So I was all confused when this guy who went by the name Dread Pirate Roberts was arrested for having some anonymous website called Silk Road where people bought and sold things like stolen credit cards and drugs. Call me naïve, but I hadn’t even heard of the “deep web” until I saw, If Google Was A Guy. I thought it was a joke. But apparently not. Basically, it is just a “layer” of the net that doesn’t show up on search engines — website owners can “opt out,” but few want to.

So when I heard the description of Henry Farrell’s aeon article Dark Leviathan, I was confused, “The Silk Road might have started as a libertarian experiment, but it was doomed to end as a fiefdom run by pirate kings.” I thought I was headed for a history lesson about 13th century European exploration. But no. It was a story about Bitcoin and anonymous trade in illegal products. And it blew my mind. But it shouldn’t have, because Farrell shows how these “libertarian” experiments worked out exactly the way I’ve always argued: they lead not to “free markets and free minds” but to “might makes right.”

The fundamental problem with these markets is that they are anonymous. It is a classic example of the prisoner’s dilemma. The question is how buyers and sellers can trust each other. Enter Ross William Ulbricht — also known as “Dread Pirate Roberts.” He was originally selling psychedelic mushrooms on the “deep web.” He got a reputation for honesty, so he branched out into being a kind of middleman for transactions. This eventually led — over the course of just two years — to Ulbricht being blackmailed for a half million dollars and his hiring a hit man to kill the blackmailer for $150,000. At least, that is the aligation.

The point that Farrell makes in his article is an obvious one to any outside the cult of libertarianism: there is a reason that governments exist. They didn’t start up because one group of people wanted to oppress another group of people. It is actually rather the opposite. The multitudes wanted protection from the few who oppressed them. In the absence of that, there will be people like Ulbricht who rise up to fulfill that role. As Farrell discussed in his article, Ulbricht didn’t start out as a thug; he was highly idealistic. And even to the end, he was trying to protect his customers. But he was totally unaccountable.

Libertarians live in a fantasy land. They want to get rid of government. But that leaves two options. First, you could allow critical government elements like the courts. But there you are depending upon the courts to be perfect and requiring the government have the power to enforce the decisions of the courts. In the end, this just leads back to a total non-libertarian discussion of what it is we want the government doing. The second option — the one preferred by the Silk Road types — is that government functions should all be done in the free market. This, of course, leads to madness.

Basically, it is as follows. You don’t think the private security force for your community is doing a good job protecting your house? You can hire another private security force. The magic of the marketplace! But all this does is create rival gangs. This would be 1920s Chicago but much, much worse. And that’s what has happened on the “deep web”: it’s turned into a collection of crime syndicates.[1]

This is the ultimate folly of libertarianism. The most fundamental mistake they make is to think that all coercion comes from the government because it has a monopoly on certain kinds of power. But as we know from economics, it doesn’t matter if a market is a monopoly or an oligopoly. What difference does it make if I have the “choice” of paying protection money to Capone or Moran? Despite the claims of libertarians, barring a sudden evolution in morality in humans, their “free markets and free minds” lead only to “might makes right.” We should be working to maximize freedom and happiness, and an efficient and transparent government is critical to that. Libertarians are looking in the wrong direction.

[1] I find it annoying to have to mention this, but libertarians come around here and complain all the time. Many libertarians will say, “But policing is one of the things the government should be doing unlike providing healthcare!” Okay, let’s leave aside the fact that I face a far greater danger of dying from an abscessed tooth than marauding gangs. How is it that libertarians think that the two things that the government should be involved in — police and military — are the two things that governments have always used to oppress their people?! In such a world, you don’t need marauding gangs; the police and the military are the marauding gangs!

H/T: Paul Krugman.

The Daily Show is a comedy show and thus should be forgiven all of its sins — which have always been minor. I understand the urge to at least try to provide some level of balance — to not just turn into “that liberal show.” And the sad thing about America is that The Daily Show and Jon Stewart really aren’t liberal. They skew very slightly to the left, but what they really are is more in line with the reform Democrats who showed up in Congress after Watergate. And let’s remember: these were the beginning of the New Democrats — they were not at all about ideology. They just wanted government that was transparent and without corruption. That’s Jon Stewart; that’s The Daily Show.

So it was very much in this context that The Daily Show presented an epic take down of Fox News Wednesday night. Was it liberal bias? No. It wasn’t even political. It was just calling the network on its almost two decades of misinformation. One can be deeply conservative without being dishonest. But Fox News has never been interested in that. I have no doubt whatsoever that if an academic study were done comparing how accurate Pravda was in the Soviet Union during the 1970s, it would do as well or better than Fox News has done over the last decade.

Now that Jon Stewart is retiring, Fox News has used the opportunity to attack The Daily Show for it’s “selective editing.” I’ll admit, there have been a couple of times where The Daily Show played fast and loose with context. And that’s it: a couple of times. If most news sources were as scrupulous as The Daily Show, we would have a far improved media environment. If Fox News were half as scrupulous as The Daily Show, they would not be a national embarrassment.

Megyn Kelly said, “I can speak personally to a lot of the attacks that have been levied on me had no foothold in the facts.” Well, let’s start with the fact that Megyn Kelly is one of the most reasonable parts of the Fox News circus who rarely had attacks levied on her. But what about when last October, she said that a new Colorado law “literally allows residents to print ballots from their home computers, then encourages them to turn ballots over to ‘collectors'”? And remember: she’s one of the sane ones.

You would think after all this time that Fox News would just leave it alone. Why start a fight with Jon Stewart? There are various problems. First, he’s right. Second, he’s funny with a whole lot of funny writers. And third, in the end, he’s a comedian. It is like a big guy beating up a charming skinny guy: the big guy either wins and looks like a total jerk, or the big guy loses and looks both pathetic and like a total jerk. And guess what: the big guy is going to lose. The real “news network” will just look like a pathetic jerk. In fact, it already has.

In the video above, Stewart called out Fox News to a “lie off.” They created a vine of fifty Fox News lies. And PolitiFact has already listed them all out, The Fact-Checks Behind The Daily Show‘s 50 Fox News “Lies.” This is how it comes out: there were only two that PolitiFact hadn’t previously rated. Of the remaining 48, the best Fox News did was a single “Mostly False.” And there were two that Fox News later admitted to — one specifically because The Daily Show caught them on it. Then there were 34 “False” and 11 “Pants on Fire” claims!

This isn’t about politics. This is about a network that is simply an arm of the Republican Party that would say exactly the opposite things about an issue if the party flipped on it tomorrow. It is an outrage. Stewart summed it up, “Even watching it is killing me.” I don’t think that was a joke. And I think he speaks for the entire nation.

In the first half of October 2013, the Republicans shut down the government. The people were very unhappy with the Republicans. Just over one year later, these very same people voted for those same Republicans they were so angry at only a year before by a whopping 5.6 percentage points in the House. I understand. Elections are not about changed opinions. They are about who shows up to vote. But all that means is that many of the people who were angry weren’t angry enough to vote. What’s more, among those people who voted for such Republican winners as Sam Brownback and Ed Gillespie must have been a lot of people who were angry just a year earlier.

It is in this context that I call foul on Jonathan Chait in an article yesterday, Why the New Lawsuit Won’t Kill Obamacare. The irony is that I’ve made the same case. The truth is that the people will be hopping mad if they suddenly find the Supreme Court has caused their healthcare premiums to skyrocket. In a sane world, those people would blame the Republicans. Indeed, they might very well well blame the Republicans. For a month. Maybe two. But by November 2016, I doubt they will remember their anger. Whatever anger they might have will easily be transferred to the Democrats.

The real problem is that Obama forced a government take over of healthcare. In a real American “free market” system you would have no problem! You didn’t have this problem before Obamacare, did you? So it’s Obama’s fault! It’s the Democrats’ fault! The Republicans aren’t responsible for this. They didn’t even want this law. They were looking out for you the whole time when they were doing everything they could to deprive you of healthcare and make you pay as much as possible. Yeah, that’s the ticket! It’s the Democrats who did this do you!

Trust me, I’d love to believe that this isn’t the case. But think about the situation in Iraq right now. Do you really think the Sunday morning political shows would be featuring all the guys who screwed up the situation in Iraq in the first place if it weren’t for the fact that the viewing audience hadn’t totally forgotten who was responsible for the Iraq War? George W Bush currently has a higher approval rating than Barack Obama. Why is that? Because the American electorate has the memory of a goldfish.

I have to wonder if there is something wrong with Chait. Because he noted that while this would be a Democratic victory, it might take years to achieve. And what of those people — huge numbers of which would die? This is not all about politics. Ultimately — in the last paragraph of an 18 paragraph article — he argues that this is why John Roberts won’t waste his political capital on this case. I tend to agree that Roberts is not going to go along with this ridiculous lawsuit. But I doubt very seriously that his calculation includes a five year political battle that the Republicans might lose.

The Republicans are remarkably good at getting people to vote based on resentment of the wrong people. And I have no problem believing that a clear majority might vote against the Democrats for giving “those people” healthcare and thus harming the good hard working Americans who the Republicans have spent the last 34 years harming. And I know as a matter of fact that Jonathan Chait knows this. So I don’t know who he is trying to fool. Maybe himself.

As we watch Wisconsin on its way to becoming a “right to work” state, it is a good time to think about what all this means. Note that it shows the total lack of any actual integrity on the part of conservatives. While Scott Walker and others were going about destroying public sector unions, the argument was always that these were public employees and that they thus shouldn’t be allowed to have those fat pay checks. (Leave aside for now the fact that they don’t get over paid and the idea that government workers should be the worst we can get.) But when it comes down to it, they are all for destroying private sector unions as well.

Basically, “right to work” laws take away rights. They make it illegal for a business to make an exclusive contract with a union. Which basically means that the union is destroyed — either quickly or slowly. Given that the United States government hasn’t enforced labor laws in over three decades, businesses that don’t want unions really don’t have to have them. But there it is still bad PR to be had by a business that destroys an existing union, so this is a way to make them wither away on their own. The bottom line is the bottom line: it is a way to take even more money away from workers and give it to owners.

Hooray! Is this what conservative voters really want? Very few of them, I think. But names matter, and “right to work” sounds great! It makes it sound like unions are keeping people unemployed, even though the opposite is true. And there is also the issue that a great many people who are not in unions resent people who are. The worst aspects of human nature play right into the hands of the conservative elites. Workers are much more likely to blame their bad lives on workers who are doing marginally better than they are than to blame the owners who suppress their wages and their rights.

Let’s think about the minimum wage for a moment. I want to shift from thinking about conservatives generally to thinking about libertarians, who are, after all, the keepers of conservative economic thought. The libertarian argument against the minimum wage is not, as most libertarians I talk to seem to think, that it will “cost jobs.” That’s not an ideological argument. The libertarian argument — the “freedom” argument — is that the state has no business interfering in the contracts of the employer and the employee. If workers want to take jobs digging ditches for one dollar per hour for some company, that should be their right as a workers. Now there are all kinds of things wrong with this argument, but let’s just leave it at that.

But when it comes to those same workers wanting to collectively bargain with that same business, the libertarians scream, “No, no, no!” What’s different? Why is the “freedom” to take a low paying job so important, but the freedom of workers to negotiate on something close to an equal footing not? I think the reason should be clear. Libertarians just hate workers and unions. Their idea is that if workers had any gumption, they would have their own businesses. And indeed, I have heard libertarians argue for a world without workers. (This is ridiculous: it is simply a world where everyone is an independent contractor — a world that has never existed for reasons that are obvious to everyone but libertarians. Hint: it’s inefficient.)

To be fair, there are libertarians who are pro-union and very much against “right to work” laws. When I was a libertarian, I was one. And I remember several years back reading an article in Reason by a similarly inclined libertarian against “right to work” laws. And the comments blasted him from beginning to end. I never managed to see a single comment that agreed. And the reason was plain to see: the commenters just hated unions. In their eyes, they were all “entrepreneurs!”

Now some person might point out that liberals have the same problem: they are against “right to work” laws and for the minimum wage. That’s right! The point is that liberals hold these positions because they want to empower workers. Conservatives hold the opposite views because they want to deny power to workers. And as Matt Yglesias would say, “That’s great!” Everyone is entitled to whatever vile ideas they like. But don’t give me any of this garbage about caring about “freedom.” Conservatives care about enriching the rich and empowering the powerful and that is the end of the story.

So now Wisconsin is going to get a new “right” and that is the right to have one less right. Well played conservatives. Well played.

Single panel above taken from the great work at Lefty Cartoons. Go buy a shirt!

Lauren Fox at National Journal has been doing a lot of good reporting about the upcoming Department of Homeland Security (DHS) shutdown. But I have to admit to being flummoxed by the whole thing. The Republicans seemed determined to create fights with no other point than to make President Obama look bad. And then more often than not, they fail even at that. I now have a bit more sympathy for Charles Krauthammer; it must be really painful to watch your own party do this. And for what? Over the issue of “amnesty” for five million people that can be reversed the moment a Republican gets in the White House?

But Fox provided one clue to the situation in an article on Monday, Conservative Groups Won’t Budge in Their Opposition to a Clean DHS Funding Bill. It would seem that what conservatives want the Republicans in Congress to do is what they want America to do: look strong, beat their chests, pretend that they are more powerful than they really are. It’s pathetic, but that is about right. She quoted Dan Holler of Heritage Action saying, “If Senator McConnell reverses course and pulls this bill, without forcing the Democrats to get on it, that is going to embolden Senate Democrats to hold out constantly on every single bill.”

Really?! That’s what is going to make the Democrats do that? It isn’t, oh, I don’t know, six years of Senator McConnell doing exactly the same thing to the Democratic majority? That’s hard to imagine. But that actually circles back to Krauthammer. As I discussed before, he is delusional if he thinks that a government shutdown is going to be blamed on the Democrats. Everyone knows who wants a government shutdown. This is not an issue that can be finessed.

Fox continued, “Not blinking first, [Dan Holler] contends, is the only way Republicans can display dominance to Democrats in the new Senate.” What are they? A pack of dogs? Do conservatives really think that the Republican Party can bully its way to power? It all goes back to this general belief of the conservative movement in the United States that they can will themselves to power. The idea is that if they just hold out long enough — if they are willing to destroy the entire nation, then they can get their way. It is like a game of chicken.

But as Jonathan Bernstein wrote yesterday, Will McConnell or Boehner Blink First? He noted, “John Boehner and Mitch McConnell are playing a game of chicken this week. Against each other. Whoever veers off first will lose more True Conservative points.” It all comes down to the fact that the Democrats don’t need to do anything. So the question is whether Boehner or McConnell will give in first.

But in addition to it all being pathetic, it is dangerous. We’ve long known that Boehner doesn’t have control of the crazies in his caucus, and now we know that McConnell doesn’t have control of the crazies in his — led by Ted Cruz who is a true believer in the will to power theory. And if they are acting this way about immigration, what’s going to happen when it comes to the debt ceiling. I find it all exhausting. These freaks can do untold damage — not just to the United States, but to the entire world. And it won’t hurt them. There will always be millions telling Ted Cruz that he’s a great man.

Kevin Drum asks a fair question, Is It Fair to Keep Peppering Scott Walker With Gotcha Questions? Basically, is it right to ask him if he believes in evolution? The whole thing brings me back to a quote I heard from an ex-conservative who said that the hardest thing about being a conservatives was always having to lie about what you really thought. And that, I’m afraid, is why questions about evolution are hard for Republicans.

Let’s look at the position that Walker is in regarding evolution. I suspect that he actually does believe in evolution. He’s a reasonably bright guy who is surrounded by educated and sophisticated people. He may have compartmentalized the issue, but I doubt seriously that he thinks evolution is a big conspiracy by atheist scientists. The problem is that the base, which is going to vote for whomever the Republicans nominate, are the ones who want him to be a creationist. But in a general election, the non-base who might vote for a Republican don’t want to vote for one of those crazy Republicans.

So I think it is certainly okay to ask him “gotcha” questions. It isn’t because any reporter cares whether he truly believes in evolution or the president’s love for the country, but rather because it tests him as a politician. Look at Todd Akin. He didn’t lose because of his loony ideas about rape and abortion; he lost because he was loony enough to talk about it in public. That’s a key distinction. And in Scott Walker’s case, we know that he’s as loony in his beliefs as Todd Akin. The question is how he’s going to finesse his looniness publicly.

I wish we didn’t have these “gotcha” questions. I wish instead that reporters were interested in actual policy. Walker has been allowed for years to go around and not answer the question of whether he would sign a “right to work” law. Instead, he was allowed to claim that he didn’t think that any such law would come across his desk. Fundamentally, that’s the same thing. But if his really vile conservative ideology had been forced into the light of day, a lot of people would have voted against him for the same reason they voted against Todd Akin.

Now the core of Kevin Drum’s article is actually about why it is that “gotcha” questions always seem to get given to Republicans and not Democrats. The only “gotcha” question I can remember recently was Alison Lundergan Grimes’ refusal to say if she voted for Obama. Of course, that wasn’t a “gotcha” question originally; it was just made into one by her. But it was meant in the same way as the questions that Walker was asked. Who cares who Grimes voted for? Who cares if Walker thinks Obama loves the country?

But this all gets to the heart of a major difference between Republicans and Democrats. Other than a strong tendency among Democrats to have no spine about the simplest of issues (whether they vote for members of their own parties), Democrats don’t have to hide what they really believe. And that is because the vast majority of the things that Democrats really believe are hugely popular. What does Scott Walker believe regarding the economy that is popular? I know of nothing. To Walker, asking about the minimum wage is a “gotcha” question that sends him spinning. “Minimum wage?” The real reason people make so little is Obamacare!

I can see some difficult questions that the Democratic candidates for president might be asked. In particular, they are going to have to deal with Obama’s executive action on immigration. But even there, I suspect that smart politicians will say, “Hell yes, I’m continuing it!” Because the people who really care about killing it will certainly vote for the Republican no matter what. So I don’t see a big problem for the Democrats.

Ultimately, the “gotcha” question is an invention of the Republican Party. It is part of their decades long campaign to “work the refs.” It is meant to intimidate reporters into not asking questions that the Republicans don’t want to answer. For Sarah Palin, a “gotcha” question what what magazines she reads. That’s right up there with, “What’s your favorite breed of dog?” So I hope the gotcha questions keep coming. Because the American people need to know as much as they can about Scott Walker. He’s a bad guy and if the electorate knows what he really stands for, it will rightly run away from him.

On Monday, Nicholas Bagley over at The Incidental Economist wrote, Fifty Shades of Wrong. He’s a little different from most of the people over there in that he isn’t a doctor; he’s a lawyer who specializes in issues related to health. So it’s a good idea to keep up with him, especially these days of the never ending flood of anti-Obamacare lawsuits. Of course, you always have to be careful in listening to what legal scholars say about the law in regard to Obamacare because they can only speak to the law and its traditions. They can’t speak as well to the ideological madness that lives inside the conservatives on the Supreme Court.

This article is in reference to a recent academic article in the University of Miami Business Law Review, Anomalies in the Affordable Care Act that Arise from Reading the Phrase “Exchange Established by the State” Out of Context (pdf). It was written by Timothy Stoltzfus Jost of Washington and Lee University and James Engstrand, a practicing attorney. And it takes on the case in King v Burwell in a very interesting way.

The base of the case is that there is one sentence in the healthcare law that seems to imply that subsidies are only available to state run exchanges — not federally run exchanges. To many people, this seems to be a smoking gun — even to many liberals. But it has been noted that there are other parts of the law that imply just as strongly that the subsidies are to be provided to purchasers regardless of what kind of exchange they use. To me, that’s a very compelling counterargument. The truth of the matter is that in any sufficiently complicated document, there will be inconsistencies and contradictions. (See, for example, Sancho’s disappearing donkey in Don Quixote.) The fact that the plaintiffs have found one — and only one — example of a contradiction does not mean that the proper reading of the law is that one sentence.

Unfortunately, I find myself unable to read the article itself. This is strange, because I’m pretty good at reading scientific papers in fields far outside my own. But the lawyers have their own thing going on. I get the gist of it. But it is too fine-grained for me. So I’ll have to depend upon Bagley’s summary. Basically, what the authors are arguing is that if the Supreme Court finds for the plaintiffs, it will be introducing “at least fifty” anomalies into the law. (Hence the title of Bagley’s article.) In other words, in the name of fixing on inconsistency, the court will be creating far more new ones.

I agree with Bagley’s conclusion:

That last sentence is the killer though. I really want to believe that after all the information that has come out since the Supreme Court took the case, that King v Burwell will go down in flames, nine to zero. It’s my hope that at this point, the conservatives are thinking that they kind of embarrassed themselves in even taking the case. But at the appellate court level, conservative judges have seemed quite willing to find on behalf of the plaintiffs for no other reason than that they just don’t like Obamacare. If there is anything that the last 15 years should have taught us, it is that the judicial system in this country is every bit as political as the United States Congress.

But this information does give me confidence. And I am hopeful that Obamacare will squeak out a 5-4 decision. And if it does, it will be fascinating to see how the conservative justices tie themselves in legal knots — go against almost everything they’ve ever said in the past — to justify why it doesn’t matter what the total law says — only what one sentence says that happens to lead to the conclusion they want.