“For years, Harvard’s experts on health economics and policy have advised presidents and Congress on how to provide health benefits to the nation at a reasonable cost. But those remedies will now be applied to the Harvard faculty, and the professors are in an uproar.” [New York Times via Jonathan Adler; Rich Lowry, New York Post (quoting Twitter: “Karma is a pre-existing condition.”; Michael Cannon, Cato (“one of the most wonderful things I have read in the course of my career”)]
[cross-posted from Cato at Liberty and expanded with a P.S.]
Even by his standards, Paul Krugman uses remarkably ugly and truculent language in challenging the good faith of those who take a view opposed to his on the case of King v. Burwell, just granted certiorari by the Supreme Court following a split among lower courts. Krugman claims that federal judges who rule against his own position on the case are “corrupt, willing to pervert the law to serve political masters.” Yes, that’s really what he writes – you can read it here.
A round of commentary on legal blogs this morning sheds light on whether Krugman knows what he’s talking about.
“Once upon a time,” Krugman claims, “this lawsuit would have been literally laughed out of court.” [Citation needed, as one commenter put it] The closest Krugman comes to acknowledging that a plain-language reading of the statute runs against him is in the following:
But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.
New York City lawyer and legal blogger Scott Greenfield responds:
If by “incredibly hostile reader,” Krugman means someone with a basic familiarity with the English language, then he’s right. That’s what the law says. … There is such a thing as a “scrivener’s error,” that the guy who wrote it down made a mistake, left out a word or put in the wrong punctuation, and that the error was not substantive even though it has a disproportionate impact on meaning. A typo is such an error. I know typos. This was not a typo. This was not a word misspelled because the scribe erred. This was a structural error in the law enacted. Should it be corrected? Of course, but that’s a matter for Congress.
While some ObamaCare proponents may now portray the provision as a mere slip in need of correction, as I noted at Overlawyered in July, “ObamaCare architect Jonathan Gruber had delivered remarks on multiple 2012 occasions suggesting that the lack of subsidies for federally sponsored exchanges served the function (as critics had contended it did) of politically punishing states that refuse to set up exchanges.”
Josh Blackman, meanwhile, points out something incidental yet revealing about Krugman’s column: its homespun introductory anecdote about how his parents discovered that they had been stuck with a mistaken deed to their property, fixed (“of course”) by the town clerk presumably with a few pen strokes and a smile, couldn’t possibly have happened the way Krugman said it did. Property law, much more so than statutory construction, is super-strict about these matters.
If your deed is incorrect, you cannot simply get the “town clerk” to “fix the language”. … Mistakes are enforced by courts. That’s why [everyone] should purchase title insurance. …
So this is the exact opposite example of what Krugman would want to use to illustrate why King is “frivolous.” If courts applied property doctrine to the construction of statutes, this case would be over in 5 seconds. The government loses.
To be sure, there may be better arguments with which to defend the Obama administration’s side of the King case. But do not look for them in Paul Krugman’s commentary, which instead seems almost designed to serve the function of pre-gaming a possible defeat in King by casting the federal judiciary itself as “corrupt” and illegitimate.
P.S. “Krugman’s column in today’s NYT on King is the liberal equivalent of a Rush Limbaugh tirade.” [Gerard Magliocca] Krugman not notably consistent on views of statutory interpretation [Simon Lester] ObamaCare architect Jonathan Gruber caught on camera saying “lack of transparency” key to passing the bill; he “may believe that American voters are stupid, but he was the one dumb enough to say all this on camera” [Peter Suderman, Mickey Kaus (“I am big. It’s the electorate that got small.”)] How to argue the administration side in a less unhinged way than Krugman does [David Ziff via Jonathan Adler]
From a casual glance at the account by the Pew Foundation’s StateLine in USA Today, you might think President Obama’s proposal to require overtime for home health carers (covered earlier here and here) was not so very costly or burdensome. “States wary home care worker rules could cost millions,” reads the headline. Paragraph 6 seems to confirm that the stakes are just in the low millions, which would be minor as health care policy changes go: “The U.S. Department of Labor estimates the rule will cost $6.8 million a year over a 10-year period, with private businesses and state Medicaid programs picking up the tab.”
On the other hand, you might find the above-cited number to be suspiciously low, what with advocates of the rule promoting it as a major boost to the take-home pay of nearly 2 million home care workers ($6.8 million works out to about three and a half bucks per year for each such worker). Thirteen paragraphs later, the tune has changed: “California, which already applies its $8 minimum wage to home care workers, but not overtime, estimates the new overtime requirements will cost the state more than $600 million in 2015-2016.” That is to say, just one state (California) gives an annual cost estimate for the rule that’s about 100 times the national cost estimate recited earlier in the piece. What gives?
This September account from Littler Mendelson, while not itself as clear as one might like, sheds some light on the discrepancy:
The DOL estimates the new regulations will affect approximately 1.9 million home care workers in the United States. The DOL contends the primary effect is “the transfer of income from home care agencies (and payers because a portion of costs will likely be passed through via price increases) to direct care workers, due to more workers being protected under the FLSA.” While described by the DOL as a “transfer of income,” in actuality the DOL’s numbers are the estimated annual cost to the home care agencies as a result of the new regulations. With respect to annual costs incurred for minimum wages, travel wages and overtime, the DOL estimates home care agencies will pay an average of $210.2 million the first year of implementation, increasing each year to an estimated $468.3 million on average by year 10. For annual regulatory familiarization, hiring costs (based on overtime hours needed to be covered by newly hired employees), and deadweight loss, the DOL projects home care agencies will incur $20.7 million on average in the first year, decreasing to an average of $5.1 million in year 10.
However, a March 2012 Navigant Economics Study: Estimating the Economic Impact of Repealing the FLSA Companion Care Exemption suggests a much higher cost to home care agencies. Although Navigant studied the economic analysis published by the DOL in the 2011 Notice of Proposed Rulemaking (NPRM), the study continues to suggest that the DOL has underestimated the compliance costs of the new regulations. According to Navigant, the DOL has: disregarded the impact on live-in workers, a group the study contends are disproportionately more likely to incur extended periods of pay at the overtime wage under the new regulations; underestimated the cost of paying home care workers for travel time; and underestimated the increased cost to the home care agencies for compliance with the minimum wage protection afforded by the FLSA. Ultimately, the study concludes the annual cost to home care agencies is significantly higher than the DOL has predicted.
It’s almost as if DoL has been doing its part to promote the president’s proposal by systematically lowballing, complicating and hiding its costs. The USA Today story has this relevant passage about some other costs that may be less readily monetized:
Joseph Bensmihen, president of United Elder Care Services, Inc., a caregiver referral service in Boca Raton, Fla., said the most likely alternative for most of his clients, besides moving into a facility [emphasis added], will be to rotate caregivers to ensure that none works more than 40 hours a week. “This means that one of the most cherished benefits of home care among the elderly, disabled, and infirm, namely continuity of care, will be lost.”
It won’t take many hapless elderly persons moving from home and family care into nursing home facilities to exceed that absurd $6.8 million cost underestimate all by itself.
Had you heard that disabled-rights activists have staged demonstrations in Washington, D.C. to protest a new Obama administration initiative? Not only that, but the disabled-rights activists are right.
At issue is an awful scheme by the Obama Labor Department, newly headed by Secretary Thomas Perez, to abolish most of the “companionship exemption” to federal wage and hour laws, which has up to now reasonably recognized that serving as a live-in or semi-live-in paid attendant to a sick, elderly or disabled person is not really the same sort of thing as working twelve-hour days on a factory assembly line. I’ve got a new post at Cato at Liberty looking at some of the consequences we can expect from making it far more expensive to provide a kind of round-the-clock care that often keeps people out of nursing homes. More: Bloomberg.
Some background on the controversy, beyond the links in the Cato post: National Council on Disability (a federal disability-advocacy agency that was not entirely prepared to toe the line in favor of the new regs); Stephen Miller, Society for Human Resource Management; Kaiser Health News; Disability Law (“disability rights groups… fear that substantially raising the cost of personal assistance services without increasing Medicaid reimbursements will force people with disabilities into nursing homes”); PHI and Direct Care Alliance (promoting regs); National Association for Home Care and Hospice and more (commercial group opposed); ADAPT (disability rights group opposed).
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” President Donald Trump tweeted on Saturday morning. It was one of a series of tweets assailing the temporary restraining order issued by a federal judge in Washington state momentarily barring enforcement of the President’s executive order on visas and border crossing. Wait till he gets to the so-called Ninth Circuit!
It is still unusual to encounter the epithet so-called in high official pronouncements, in the United States at least (Pravda used to be fond of tak nazyvayemyye back in the day). But we have come to expect Trump to break new ground in judicial disrespect following his attacks last year as a candidate on federal judge Gonzalo Curiel of the Southern District of California, who was presiding over the Trump University case. I wrote then:
…In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.
Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live.
As I noted at the time, the norm of not personally attacking judges has been eroding for years, not only at the hands of President Barack Obama (who publicly scolded judges not only in his 2010 State of the Union speech but also repeatedly during the court review of ObamaCare, as Josh Blackman documents) but from influential opinion leaders as well. One might cite in particular the extraordinarily vicious interest-group-led campaigns against judicial nominees, currently being cranked up against Judge Neil Gorsuch of the Tenth Circuit but familiar from a dozen earlier nominee battles as well.
In the mean time, like his remarks on Judge Curiel, Trump’s comments on Judge Robart could complicate the efforts of his own lawyers in court: “Either they have to defend the statements that Judge Robart is a ‘so-called judge,’ which you can’t do, or they have to distance themselves from the president, who is their boss,” as University of Pittsburgh law professor Arthur Hellman put it.
And the problems get more serious from there. Writes William Baude: “to call him a ‘so-called’ judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue.”
That issue arises from the difference between criticizing the quality of a judicial decision and criticizing the authority of the judge to issue it:
If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.
- Recent easing of lawsuit crisis in U.S. owes much to rise of arbitration. Now organized litigation lobby is intent on taking that down, and Obama administration has helped with steps in labor law, consumer finance, and nursing-home care [James Copland, Manhattan Institute, related op-ed]
- SCOTUS should grant certiorari to clarify lawyers’ obligation to clients in class settlement, argues Lester Brickman [amicus brief courtesy SCOTUSBlog; earlier on Blackman v. Gascho]
- St. Louis, California, NYC asbestos litigation, south Florida and the Florida Supreme Court, and New Jersey are top five “winners” in latest annual “Judicial Hellholes” report, which also includes a focus on qui tam/whistleblower suits [American Tort Reform Association, report and executive summary]
- Deep pocket lawsuits remain systemic problem in America for political branches to address [David Freddoso, Washington Examiner investigation]
- Florida insurers struggle with secondhand suits under assignment of benefits doctrine [Insurance Journal]
- Storm lawsuits in Texas: “All Hail Breaks Loose” [Mark Pulliam, City Journal]
- “Judge Says He’s Had Enough Of Weeding Through Baseless Lawsuits, Threatens Sanctions” [Daniel Fisher; M. D. Georgia judge on vaginal mesh cases]
- More on pricey regulated generics [Scott Gottlieb/WSJ, earlier on EpiPen, more on latter from Joel Zinberg/City Journal]
- Feds ban pre-dispute arbitration agreements in nursing home care [McKnights]
- How Ronald Reagan’s FDA responded to the AIDS crisis — and it’s probably not the story you’ve heard [Peter Huber, City Journal; see also from Carl Cannon in 2014]
- FDA regs likely to winnow smaller, distinctive makers from the cigar business, recalling a Somerset Maugham story [James M. Patterson] Debunking the “Helena miracle,” once more: no link between local smoking bans and short-term drops in heart attacks [Jacob Sullum, earlier here and here]
- “Ethicists make the case for bone marrow transplantation markets” [Ilya Somin]
- FDA to dental consumers: you can’t handle the tooth [New York Times via Alex Tabarrok]
- “How lawyers scare people out of taking their meds” [Lisa Rickard (U.S. Chamber), Washington Post]
- Lawsuits fail to bring improvements to nursing homes [ABA Journal]
- “Everything,” new Institute for Justice short film about costs of regulating bone marrow donation, has upcoming screenings in D.C. area, Breckinridge, Colo. and elsewhere;
- Aetna pulls out of most ObamaCare exchanges, and the acrimony flies [WSJ editorial] “Did the Medicaid expansion limit labor force participation?” [Tomas Wind via Tyler Cowen]
- Posting will be slower in coming weeks as I conduct my own in-person investigation of the state of America’s medical system. Thanks for bearing with me!
[New Jersey’s] licensed sector now covers about 20 percent of the workforce. Jobs as diverse — and sometimes as seemingly mundane — as barbers, movers and warehousemen, librarians, and career counselors can’t be done legally without getting state approval in New Jersey, usually by paying a fee, submitting personal information, and taking training or educational courses.
Nationwide, the share of jobs requiring licenses is even higher: 25 percent, up from around 5 percent in the 1950s. With economist Milton Friedman in the lead, libertarians have long criticized occupational licensure for restricting competition, limiting consumer choice, raising prices, and curtailing the opportunities of excluded workers, including many poorer persons and new workforce entrants. But more recently discontent with occupational licensure has spread broadly across the ideological spectrum, as with a Brookings study we linked in February. And now the Obama administration — citing Cato! — lends its weight with a new critique. [David Boaz/Cato, Tim Sandefur/Pacific Legal, Glenn Reynolds/USA Today, Stephen Slivinski/No Water Economists]
More: the city of Austin’s new ban on unlicensed household hauling will hurt informal laborers without helping homeowners [Chuck DeVore]
- Really, I never want to hear one word ever again about Gov. Andrew Cuomo being “at least good on economic issues” [Peter Suderman and Nick Gillespie, Reason (New York will mandate $15/hour for most fast-food workers, which in many upstate cities could amount to 75 percent of average wage); Heather Briccetti/New York Post (activists bused from one hearing to next to jeer opponents); Nicole Gelinas/City Journal (Cuomo picks online guy to represent business on brick-and-mortar-endangering wage board), Joanna Fantozzi/The Daily Meal (possible legal challenge); Coyote on Card and Krueger study]
- Labor markets don’t behave the way sentimental reformers wish they behaved, part 53,791 [Seattle minimum wage hike: Mark Perry (largest half-year decline in foodservice jobs in region since Great Recession; but see, Brian Doherty on problems with that number series) and Rick Moran (“Employees are begging their bosses to cut their hours so they can keep their food stamps, housing assistance, and other welfare benefits.”); David Brooks via Coyote]
- Employers scramble to monitor, control time worked in response to Obama overtime decree [WSJ] “No one wants to go back to filling out time sheets…. managers fear (rightly) that I will have to set arbitrary maximum numbers of work hours for them.” [Coyote] Business resistance aims for the moment at (deliberately abbreviated) public comment period [Sean Higgins, Washington Examiner] “Can Obama Really Raise Wages for Millions of People So Easily? Quick answer: no” [David Henderson; WSJ/@scottlincicome on seasonal pool-supply company]
- Hillary Clinton and the Market Basket Stores myth [James Taranto]
- Labor Department proposes tightening regulation of retirement financial advisers [Kenneth Bentsen, The Hill]
- Proposed: “well-orchestrated” state ballot initiatives aimed at overturning employment at will [Rand Wilson, Workplace Fairness] My view: “Everybody wins with at-will employment” [Ethan Blevins, Pacific Legal amicus briefs in Supreme Court of Washington, followup on oral argument, and thanks to PLF for citing my work in its amicus brief in Rose v. Anderson Hay and Grain; much more on employment at will in my book The Excuse Factory, also some here]
- The SEIU’s home caregiver membership motel: you can check in, but just try checking out [Watchdog Minnesota Bureau]