Hamburger Health Insurance, Ctd

One way to spin this story is that the president is showing his pragmatism:

As Obama administration officials put into place the first major wave of changes under the health care legislation, they have tried to defuse stiffening resistance — from companies like McDonald’s and some insurers — by granting dozens of waivers to maintain even minimal coverage far below the new law’s standards.

The waivers have been issued in the last several weeks as part of a broader strategic effort to stave off threats by some health insurers to abandon markets, drop out of the business altogether or refuse to sell certain policies. Among those that administration officials hoped to mollify with waivers were some big insurers, some smaller employers and McDonald’s, which went so far as to warn that the regulations could force it to strip workers of existing coverage.

The problem, as Yuval Levin points out, is that the healthcare system is no longer a set of predictable rules applied equally to everyone – it is now an unpredictable place where politicians hold some companies to a strict set of rules and exempt others:

The exemptions themselves are good news, since the rule would have forced these companies to drop their employee coverage, leaving almost a million workers without the insurance they had before Obamacare. But it means that these companies now need permission from the administration to offer their employees a benefit they have offered for years. And of course, many other companies—those without the lobbying operation of a company the size of McDonald’s, or without the access to liberal policymakers that a NY teachers’ union  has—can’t get the same permission, and so can’t compete on a level playing field, or offer coverage that might entice the best qualified people to work for them. This kind of government by whim, and not by law, is the essence of the regulatory state.

Yes, We Are At War, Ctd

A reader writes:

You seem to be setting up a false dichotomy here. Your field of choices seems to be either a) we can capture and try Awlaki as per ex parte Quirin, or else b) we kill him if we can. Why is it not possible to have c) a trial in absentia to determine at least probable cause – I’d push for more, but AT LEAST that much – to find him to be a traitor and terrorist, and have the court or tribunal then set the punishment, up to and including a death sentence? There’s already lots of evidence in the public domain, and the court could be closed off for any parts that are of a sensitive national security nature. So how about SOME oversight, at least in form if not substance?

I like that third option and it really is pretty much a consensus here that the government’s invocation of “state secrets” has hurt their cause, not helped it, and I would like to see the government make its case in a legal setting. Another writes:

In response to a reader who discussed the evidence that Awlaki is a terrorist, you wrote that to call the evidence against Awlaki “untested hearsay” is absurd. You are entitled to state your opinions, but I am begging you to stop misstating the law. 

Hearsay is a technical legal term that has a specific meaning. In this context, the term ‘untested’ refers to the fact that the evidence has not been subjected to cross examination. The evidence of Awlaki’s guilt is untested hearsay. That is not a debatable proposition; it is an accurate factual statement.

You clearly do not believe that the evidence in this case need be subjected to the adversarial process before you make a credibility determination, but there are many of us out here who disagree. You apparently trust the sources of the evidence (including Awlaki himself, for some reason). If the evidence is so overwhelming, and so clearly credible, how about if we go ahead and give the guy a trial, just to humor those of us who think that the rule of law is important?

I do believe the rule of law is important, as I believe the laws of war are important. And I have explained why I believe under the conditions of war, killing a specific enemy is not the same as assassination. But I agree with my first reader that we should have far more information from the government as to why it believes there is no doubt that Awlaki is who they say he is.

More generally, this comes down to a profound question of whether we are “at war” or not. Constitutionally, the Congress has issued a declaration of war. But obviously, what George W. Bush called “a new type of war” is something extremely difficult to judge and may change through time. But if it is to change formally, the Congress must declare it over. They haven’t. Until then …

Obamacare And The Courts

A federal judge has ruled that healthcare reform's individual mandate is constitutional. A key part of the ruling:

The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses — through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties.

This phenomenon of cost-shifting is what makes the health care market unique. Far from “inactivity,” by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants.

Cohn cheers and analyzes. Suderman is critical. So is Ilya Somin:

The problem with this reasoning is that those who choose not to buy health insurance aren’t necessarily therefore going to buy the same services in other ways later. Some will, but some won’t. It depends on whether or not they get sick, how severe (and how treatable their illnesses are), whether if they do get sick, they can get assistance from charity, and many other factors. In addition, some people might be able to maintain their health simply by buying services that aren’t usually covered by insurance anyway, such as numerous low-cost medicines available in drug stores and the like. In such cases, they aren’t really participating in the same market as insurance purchasers.

Orin Kerr differs. Randy Barnett thinks this is bigger than heathcare reform:

Judge Steeh offers no limiting principle to the “economic decisions” theory. His acceptance of the government’s argument that the health insurance market is “unique” is window dressing. Allowing Congress to regulate all “economic decisions” in the country because Congress has a rational basis for thinking such mandates are essential to its regulation of interstate commerce cannot and will not be limited to the sort of public goods argument offered in support of this mandate. Given that his decision, on his own account, is expanding federal power beyond existing Supreme Court doctrine, was it not incumbent upon him to deal with the slippery slope issues raised by his newly-minted “economic decisions” doctrine?

Guys Who Like Guys Who Really Like Guys

A reader writes:

Regarding your post on "fag hags," is there a straight man's equivalent? In my case, I am about as straight as they get, but I find heterosexual men extremely boring to converse with. On the other hand, I absolutely love spending time with gay guys.

When my wife and I have married couples over and we get to the moment in which the wives break off into conversation and I am left alone with the man, we have almost nothing to say to each other. I hate sports, but even if we have a common interest – a TV show, a book, business – I find that the heterosexual man will talk it into the ground and my eyes doth glazeth over.

When we have a gay couple over for dinner, though, it's a par-tay. We all four talk together about everything from movies to vacations, places we'd like to visit, work, politics, whatever – sort of free-range conversation that keeps my interest going throughout the evening. I think even your blog is an extension of my love of gay guys – it's the quintessential random, eclectic, funky, rambling, erudite kind of chatter of the delightful gay dinner guest.

Another writes:

Here's the deal:  I'm not gay (wife, two kids, I love boobs, etc.), but I love all things gay -  gay friends, gay culture, gay … well, gay everything.  It's hard to know what to make of it.  Tim Gunn?  That guy is the freaking man.  I can't get enough of him. That guy doing the lip-sync to the Surprise Party SNL thing you just recently posted?  Awesome.  The way my gay friends get excited over, say, fabulous shoes?  I love it.  I could go on forever.  So … what am I?  Is there a term for a guy like me?  I can't get anymore straight sexually, but I just love gayness.  Seriously.  I know this might be weird, but surely you've encountered others like me.

Of course, some might say there are some usual explanations at work here. I'm a humanitarian.  I'm passionate about human rights issues and abuses.  (Gay marriage / military service being one of them, of course.)  Some might say my love for gay stuff is just a by-product of gays being the currently oppressed minority, and since I have such passion for justice, that naturally follows. 

But it's even more complicated than that; I don't fit the usual stereotypes in many ways.  I'm a  Christian. I served in the military.  I'm strongly pro-life.  Etc.  So I break the standard "intellectual, academic, east coast, liberal elite" framing that some might try to put me in.

Anyway, so the question remains:  What's the word/term/label for me and my gay love?

Fag stag? Bro-mo?

A Fake Candidate

This is a new low:

Internal numbers-crunching showed the difference between [Rep. John] Adler and his Republican opponent — then undetermined — would hover around 5 percent. To give Adler an edge, Ayscue had recruited a then-unidentified man to run as a third-party candidate.

That candidate would act as a conservative spoiler to confuse voters and pull votes from Adler's eventual Republican challenger. … That candidate was Peter DeStefano, a picture framer from Mount Laurel. On Nov. 2, he will appear on the "NJ Tea Party" line on the ballot.

(Hat tip: Smith)

Yes, We Are At War, Ctd

A reader writes the most challenging and effective email I've read so far on this subject:

I thought one sentence in your reply was especially revealing, and it neatly crystallizes the true point of dissension over the best way to confront Islamic terrorism:

“But I do not believe, as Glenn does, that we are not at war with a vile, theocratic, murderous organization that would destroy this country and any of its enemies if it got the chance.”

What this tells me is that we still need to nail down our understanding of precisely what groups like al-Qaeda are really trying to achieve through the tactic of terrorism. Is it our destruction, or is it something else? The answer to that question is crucial for coming up with the appropriate response. If you truly believe that al-Qaeda’s goal is the destruction of Western countries, then wouldn’t logic dictate that Dick Cheney’s approach is the correct one?

If we are truly in a fight-to-the-finish, kill-or-be-killed existential conflict, then surely we are justified in whatever measures may be necessary to destroy them before they destroy us. What if Cheney is right that fighting this war “as surgically and as morally as we can” will not work, and the only way to win is a multi-generational war with no limits, including torture? If the United States faced imminent destruction without the use of Cheney’s methods, are you seriously saying you would permit that to happen? Once you accept the premise that Islamic extremism’s end goal is to wipe out our very existence, then I don’t see how we can in good conscience set limits on our conduct in fighting them.

If, on the other hand, al-Qaeda’s true goal is something else – like, say, causing such damage to the West in terms of both civilian and military lives lost as well as economic devastation, that it began to change the internal calculations of our foreign policy decisionmakers – then that is a different situation. We would at some point need to have an honest debate about what Glenn properly characterizes as our quasi-imperial role in the world, and the effect that our military actions have in fomenting the very hatred we say we are trying to defeat. We would, in short, need to take a good look at ourselves in the mirror, something we avoided after 9/11 and still haven’t done to the present day.

We would also need to recognize our enemies for what they actually are: not warriors (as they fantasize they are) but rather a band of extremely cunning gangsters with very concrete aspirations that have everything to do with their personal power and prestige, and less to do with killing us out of spite or nihilism. In short, nearly ten years after 9/11, we STILL don’t have a proper understanding of why it occurred, and that’s why we continue to make the same mistakes, over and over again.

Another: Two points I would like to raise regarding the debate between you and Glenn Greenwald. First, the US kills its own citizens all the time without due process (i.e. no court trial) every time a police officer decides to use deadly force. I'm sure a very good portion of these incidences are completely justified (like killing a burglar before he becomes a murderer) while an not insignificant portion are horrific such as the assassination of an unarmed and detained Oscar Grant by a BART police officer. If we can easily make distinctions like this everyday regarding our police, why is it so hard for Glenn to grasp this in times of war?

Second, the check on this power is having due process for those who take a life with the authorization of the government. We should not be saving from prosecution those who obviously abuse this extensive power, soldiers and commanders-in-chief alike. And the penalties involved for this abuse of power in the most egregious cases should include significant jail time an not just a resignation. To say that America must have due process in every situation without exception to save us from dictatorship is simply absurd when examined, as absurd as saying we should have none. Neither deals with the world as it is which exists in the messy gray between those two positions.

The Market For Epistemic Closure, Ctd

A reader writes:

Chait is right, for the most part, but when I read his comment about a media filter, I couldn't help but think of how Keith Olbermann always has on guests that agree with him. Maddow and Schultz invite conservatives on to debate the issues. Bill O'Reilly is unbelievably arrogant, but he has on liberals. Olbermann never has on conservatives.

Olbermann's rationale for not have on people who disagree with him is this:

The premise of the guests is often misunderstood as some sort of political reinforcement, or a 'Keith gets only the guys who agree with him.'  I ask a lot of these questions to find out whether or not I'm wildly incorrect about something. The point of the show is to illuminate.  It is not to throw off heat; it is to throw off light.

And as Newsbusters pointed out a while back, it's hard to find out what you're wrong about if all you have on are MSNBC political analysts and members of the Democratic party. I know this is nowhere near the kind of epistemic closure you find on Fox News, but it's still significant.

Another writes:

I'm probably not the only one who noticed this, but if MSNBC's campaign slogan is Lean Forward, shouldn't Olbermann be, you know, leaning forward instead of back?