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Alternative title if we could write longer diary titles, to really drive the point home:

"If the federal government wanted to penalize states that let the federal government set up an exchange for them, why didn't the federal government penalize the states that let the federal government set up the exchanges for them?"

Either way, either title excellently sums up the "through the looking glass" element of King v. Burwell for me, though there's plenty of that to go around. I know there's been a good bit of discussion on how absurd this all is, but I'm not sure I've seen things put in quite these terms before.

In other words, I think it's fair to say that the intent of the law can be very clearly discerned from how the law has been carried out.

That said, I chose my title wording for a reason -- namely, that a bunch of states let the federal government set up exchanges for them. Because that's what happened. And to me, that sounds a lot like an implicit request from the states asking the federal government to set up state exchanges.

One might even go so far as to say that an implicit request from a state asking the federal government to set up an exchange in the state would indeed count as the state establishing the exchange, making intent a moot point.

There's also an aspect to the case that would normally strike me as the most absurd thing about it, but is instead reduced to third billing thanks to the issues mentioned above. Basically, as far as I understand it, the whole reason this was granted standing is because the plaintiffs are claiming harm from something that has already been judicially upheld as a tax.

I had thought that taxes (in the US at least) really weren't contestable in court, but then again, we're through the looking glass here, people.


I think there's some excellent support in the Bible for the idea that food should be given to the hungry, clothes to the naked, etc., which I believe translates to a general societal obligation to improve the lots of those toward the bottom of the income/wealth distribution. I feel like there's a lot less detail in the Bible about what sorts of birth control are acceptable.

Naturally, there are five members of the Supreme Court who feel a lot more comfortable about regulating birth control with respect to religious beliefs than regulating tax rates. (I'm just guessing here, but I suspect if I tried to bring a lawsuit against the US government because its tax rates violate my sincerely-held religious beliefs that there should be much less income inequality in the nation, I'd be shot down very fast.)

Of course, my diary title is a bit of strawman, but I think it's a useful strawman for a couple reasons:

1) Really, the basic gist of the Hobby Lobby decision appears to be that closely-held corporations are entitled to take certain actions based on certain Christian beliefs.

As Ruth Bader Ginsburg herself said in her dissent, "Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the [Constitution's] Establishment Clause was designed to preclude."

And the thing is, the majority opinion has takes pains to point that only some sincerely-held religious beliefs will count. So what are the odds that non-Christian beliefs would be held to the Hobby Lobby standard? Again, just guessing here, but I'm going to peg the probability of that as very low.

2) There will be people who claim that their beliefs are different than mine, so how can the court be expected to rationally make a case that the whole country should be subject to my religious beliefs? My answer -- as much as I'd like to be able to win a lawsuit that makes the top marginal tax rate some appropriately high number -- is that that this is an area the Court needs to stay out of.

That last point goes both ways, of course. If people don't want to have their sincerely-held religious beliefs violated by regulation on business, those people are free to sell or otherwise divest themselves from the business -- that's the freedom of speech they're entitled to.  

Otherwise their religious rights run the risk of trampling over others' sincerely-held religious beliefs.


To answer the sensational question first, I'm going to sigh deeply, and say that even though not raising the debt ceiling would seem to be breaking the law, jail would probably never happen in the present reality. But "could" also means "theoretically possible" and the theoretical is what I'm more interested in, given this unfortunate reality.

As Seneca Doane covered in this diary, the administration appears to have reinforced the idea that they don't know how to negotiate/have pleasant dreams of cat food. They did this by saying unofficially they don't see the platinum coin option as a path they'd ever follow to solve the debt ceiling problem.

I don't actually believe Boehner and company will ultimately refuse to raise the debt ceiling, if for no other reason than their corporate masters won't allow it. But this whole fiasco has gotten me curious about the legal nature of the Republican threats, if their threats were by some chance actually carried out.

Article 4 of the 14th amendment says fairly definitively:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.
So here are my simple and likely hopelessly-naive questions that occur to me after reading Article 4:
  • Wouldn't anyone who knowingly and intentionally caused the US to default on its debts by voting "no" on increasing the debt ceiling be guilty of questioning the public debt of the United States, and thus be breaking the law as set forth in the 14th amendment?
  • If one violates the Constitution, what's the punishment? Jail? Something else?
  • Therefore, if Republican House members caused default by voting "no" on increasing the debt ceiling, wouldn't they be breaking one of the most basic laws of our land and be subject to whatever punishment could legally be meted out?

Now, since the administration appears determined to throw away any leverage regarding the debt ceiling, and doesn't seem to find it terribly worthwhile to put people in jail who destroy the economy, I can't imagine the threat of such punishment ever actually coming up as a negotiating point. But it's fun to imagine. And I'd like to know if it's something that could actually happen if the will was there.

EDIT: Honestly, I'm not so much determined to see Republicans go to jail as I am plain curious about what sorts of legal procedures there would be to address Republican malfeasance on this issue. And thanks to Christy1947's comment below, I'm now persuaded that SCOTUS is likely the only possible legal instrument that could be brought to bear in such a case. Such obvious oversights are the perils of late-night diarying.


Newly-added very short summary: CED rates are capital gains/estate/dividend tax rates. In the "Fiscal Cliff" deal, the CED rates cost us about $660 billion in revenue versus not addressing them at all in the deal. Keeping Bush tax rates (mostly) for people between $250K and $450K in income only cost us at most around $110 billion by the same accounting. So, I'm considering the CED rates 600% worse than the marginal tax rates.

Were CED rate tax cuts worth it? I don't know, but I use a lot of words below trying to find out.


I've been a lurker who admittedly shows up here far more frequently when there's big stuff going on. So unfortunately there was this thing that caused me to be checking in regularly as 2012 ended and 2013 began. While I certainly was happy to read the diversity of opinions on the deal, I eventually began wondering why I hadn't seen any hard numbers breaking down the actual deal on a fairly granular basis. So I created this account a week ago to start asking for the information I was looking. Then I figured I might as well just do the research on my own.

So, now that my account has been aged for a week, I can share the results in a diary. I'm actually kind of hoping this is a repeat, since it seems like the granular numbers should have been covered a while back... but despite looking at the front page and rec list multiple times per day, I never saw that.

First, in case you're wondering what CED rates are, that's my acronym for capital gains/estate/dividend taxes.

Second, I know part of the angst over the deal not making a $250K cutoff for the return to Clinton rates is that Obama had campaigned on raising taxes on those making above above $250K. The under-reported thing is that technically, the deal did (very slightly) make 2013 rates higher than 2012 rates for those making above $250K by phasing out exemptions and deductions. Specifically, as per McJoan's diary: (I assume Joan McCarter is the former McJoan... I've been lurking for quite a while, but apparently missed the announcement that most FPers would use real names.)

Two limits on tax exemptions and deductions for higher-income Americans will be reimposed: Personal Exemption Phaseout (PEP) will be set at $250,000 and the itemized deduction limitation (Pease) kicks in at $300,000.

I don't want to get into the details of whether the PEP and Pease technically meet the campaign language on $250K or not... I just wanted to note that I understand the angst, but really think the CED stuff is worse, and deserves far more attention than I've been seeing in comments and diaries. Especially since, as it's been noted elsewhere, $250K in the beginning of the Clinton era is $400K today:


There's more detail below the arcane kosymbol, but here are a couple spoilers:

  • The AMT-fix cost is huge. Seriously, it dominates everything.
  • Read the title again, now that you know what CED rates are. And note that when I say "worse" I mean the CED tax cuts in the deal were about 600% bigger than the marginal income tax cuts in the deal that progressives seem to be objecting to the most -- the stuff in between $250K to $450K.
  • I was surprised to see that the stuff I had classified as "good" actually costs slightly more than the stuff I had classified as "bad" over the 10-year projection period. (There's also a category of things I consider basically neutral. This "neutral" category dwarfs everything since that's where I put the AMT fix.)
  • However, I'm not entirely sure what portion of the good stuff should represents a negotiating win for progressive purposes. Plus some of the good stuff has a sunset provision, while none of the bad stuff does. So, after looking at the numbers, I think this sunset asymmetry is my biggest complaint about the deal, inasmuch as there are some really unfortunate ramifications of the asymmetry.

EDIT: There's been some confusion about the diary expressed in the comments below. I think maybe what I said down there might help clear up any confusion. But if more things are unclear, please let me know and I'll see if I can clarify. Here's the hopefully-helpful meat of my comment, with a little extra content:

As of the new year, there was a very brief moment when the Bush tax cuts had expired but no new law had been passed. In that moment, there was a large amount of new revenue from CED stuff on the books as compared to the tax laws in 2012. Then, in the deal, the Democrats chose to give up $660 billion of that new revenue in exchange for passing the deal. Meanwhile, the cost of extending the Bush tax cuts all the way up to an AGI of $400/$450K instead of $250K was around $100 billion or less. So we lost more than 600% revenue in CED stuff as opposed to marginal income tax rate stuff to get the deal done.

Every deal has its cost, of course, but I wanted to see what we actually got out of the deal in real dollar figures. And while it wasn't as bad as I initially thought, I'm still not sure it's very good.

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