JAMES TARANTO: DR. STRANGELAW
http://online.wsj.com/articles/best-of-the-web-today-dr-strangelaw-1406663571
Urban legend had it that The New Yorker’s Pauline Kael pronounced herself mystified by Richard Nixon’s re-election: “Everybody I know voted for McGovern.” The actual quote, as we noted in 2011, made clear Kael understood her social circle was not representative of the American electorate.
But the real Jonathan Cohn, The New Republic’s chief ObamaCare apologist, sounds a lot like the mythical Kael in his latest effort to explain away last week’s decision in Halbig v. Burwell:
Most of the health policy wonks I know are baffled by these new legal challenges to Obamacare—the lawsuits that one federal court rejected last week but another one approved, and then got more attention thanks to some 2012 comments by one of the law’s outside architects. If you want to know why we are so puzzled, you should read the article that Sarah Kliff published in Vox over the weekend.
Even the mythical Kael wouldn’t sink so low as to appeal to the authority of Vox!
Kliff’s argument can be reduced to the following: First, “Congress never debated whether they would limit the subsidies to states that built their own exchanges.” Second, Kliff doesn’t remember hearing anyone raise the question at the time. Third, Kliff can’t find any contemporaneous articles discussing the question. Therefore, Congress “intended” for subsidies to be available “in every state, no matter who built the exchange.” Thus if the law says otherwise, it must be an error.
What about Jonathan Gruber’s contemporaneous statements to the contrary, noted here Friday? Kliff: “Gruber has since told . . . Cohn that his comments were a ‘mistake’ during an ‘off-the-cuff’ remark. I’m inclined to believe Gruber, largely because I’ve interviewed him numerous times about threats to the Affordable Care Act, and this idea (which has huge consequences for Obamacare) never came up.”
As for Cohn’s latest effort, it passes over the Gruber statements altogether, except for that reference to “one of the law’s outside architects.” So we’re supposed to disregard those Gruber statements because (1) if he’d meant them, he’d have said something about it to Kliff, and (2) he’s just some outsider yahoo anyway.
One who does not agree with the latter characterization is Jane Hamsher, the left-wing FireDogLake blogress, who in January 2010 wrote a post titled “How the White House Used Jonathan Gruber’s Work to Orchestrate the Appearance of Broad Consensus.” She noted that although Gruber was billed as an “independent expert,” he worked under “a sole-source contract with the Department of Health and Human Services . . ., for which he was ultimately paid $392,600.”
Cohn then tries to refute the argument Gruber made–that, in Cohn’s words, “Obamacare’s architects were basically trying to threaten the states–build an exchange, the feds would tell state officials, or your citizens won’t get money to help them buy insurance.” In response, Cohn quotes Nicholas Bagley, a law professor: “For threats to work, they have to be communicated.”
ObamaCare’s sellers seek help from Peter. Associated Press
To Bagley, it’s like a scene in “The Godfather,” but his seems to be a minority view. Cohn endorses the analogy offered by Michael Hiltzik of the Los Angeles Times, namely “Dr. Strangelove.” As Cohn recounts the scene: “An incredulous Strangelove, the German scientist working for the Americans, asks the Soviet ambassador why his country built a doomsday device without publicizing it. ‘But the whole point of the Doomsday Machine is lost if you keep it a secret! Why didn’t you tell the world, eh?’ “
Neither Cohn nor Hiltzik mentions that in the picture, the Soviet ambassador has an answer: “It was to be announced at the Party Congress on Monday. As you know, the Premier loves surprises.”
But in the ObamaCare context, they take the rhetorical. The implicit syllogism: If Congress had meant to threaten the states, it would have communicated it. Congress did not communicate it, to Sarah Kliff or any of the other journalists who were covering the ObamaCare debate. Therefore, Congress did not mean to threaten the states.
Do you see the problem here? In order to threaten the states, it is necessary only to communicate the threat to the states. Sarah Kliff may be one instrument by which that can be done, but she–or journalists in general–is by no means the only such instrument.
In fact, the notion that Congress did not communicate the threat to the states is utterly laughable. Whatever it did not do, it did write the threat into the language of the statute. Ah, but who reads federal statutes? Lawyers working for state governments that have to comply with them, that’s who.
As to why there was evidently no debate over this provision, perhaps its authors both felt it was necessary and were confident it was sufficient to achieve the goal of inducing all states to set up exchanges. When the latter assumption proved to be false, the Obama administration rewrote the law via regulation, giving rise to the current lawsuits.
Cohn’s colleague Brian Beulter seems to have noticed a weakness in the Cohn-Kliff appeal to the authority of ignorant journalists: They and the other journalists they cite are all essentially like-minded on the subject to begin with. So Beulter points out that conservative journalists too were scooped by the Halbig lawyers.
He names names: Philip Klein, Megan McArdle, Peter Suderman, The Wall Street Journal’s editorial page. Addressing them in the second person, he lectures: “You’re implicitly repudiating your reportage from 2009 through 2014, and calling your own integrity into question.”
Beulter is simply taking Kliff’s Kliffcentric theory of knowledge and expanding it to all journalists. If journalists who would have had an ideological interest in finding this out failed to do so, then it must not be true. But journalists are not the only people with either the motive or the ability fo find things out. And given that this particular matter is a question about the law, it would hardly be surprising if lawyers got there first.
It’s fascinating that the defense of ObamaCare–here meaning the law not as written but as implemented, legitimately or not, by the Obama administration–is now that Congress didn’t know what it was doing when it passed the law. To our mind, that is part of what makes the law such a monstrosity.
And let’s recall a Washington Post post by Ezra Klein, now Kliff’s boss at Vox, from 2009 titled “Don’t Read the Bill!”: “It’s silly to demand that members of Congress ‘read the bill.’ They can’t understand the bill. Nor, incidentally, can the public.”
It’s reminiscent not of “The Godfather” or “Dr. Strangelove” but of another movie classic, “Animal House.” ObamaCare’s architects and apologists are saying, in effect: “You [fouled] up. You trusted us.”
Thin Skin at Foggy Bottom
“Obama administration officials were fuming Monday over a torrent of Israeli criticism of Secretary of State John Kerry’s latest bid to secure a ceasefire between Israel and Hamas,” reports the Times of Israel:
A senior US official Sunday night harshly attacked Israeli reports that criticized the secretary of state for championing a proposal they reported as being too generous to Hamas, while all but ignoring Israel’s security needs. Several radio, TV and Internet outlets on Friday night quoted Israeli official sources accusing Kerry of having capitulated to Hamas in his ceasefire effort, with a source telling Channel 2 the secretary had “dug a tunnel under the Egyptian ceasefire proposal”–which Israel accepted and Hamas rejected.
The official complained that many reports in the Israel media about the American initiative were either inaccurate, contained “overheated assertions” or mischaracterized Kerry’s strategy and motivations. Some articles about the secretary included “ad hominem and gratuitous attacks on [the haughty, French-looking Massachusetts Democrat, who by the way served in Vietnam], even going as far as to accuse him of betrayal of our ally Israel, which is a charge I think is extremely offensive,” he said.
Assuming this really represents the views of the State Department–and this Associated Press dispatch suggests it does–the comments are remarkable. It’s as if American diplomats don’t understand the difference between Israel’s government and its free press. The thin-skinned character of the response also calls to mind an Onion headline from last year: “Man Who Couldn’t Defeat George W. Bush Attempting to Resolve Israel-Palestine Conflict.”
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