Worthless argument by Grofman and Gaddie for Gill v Whitford

September 29, 2017

Gill v Whitford is the Wisconsin redistricting case where Democrats try to use the concept of an “efficiency gap” to demand States be gerrymandered in a pro-Democrat way.

The basic problem the Democrats face is that a large % of Democrats live in geographically compact areas where they’re a large majority of the total residents.  As such, non-gerrymandered districts, ones that are compact and honor natural (rivers, hills, forests, etc), physical (highways, railroad tracks, etc), and political (city limits, county lines, school districts & other social boundaries) boundaries, tend to result in districts where Democrats either have 70%+ of the vote, or else 45%-.  In response to this, the Democrats developed the “efficiency gap” (better called the “misery gap”, since the goal is to have 49.99% of voters stuck with a Representative they don’t like), basically an attempt to demand proportional representation rather than the first past the post way that Americans do our elections.

Chris Winkelman and Phillip Gordon do a wonderful job taking apart the idiocy (with a bonus reference to SNL’s hilarious “The Bubble” skit). However, Bernard Grofman and Ronald Keith Gaddie have filed an Amicus brief with an argument so bad I feel the need to take it apart.

They start with a doozy of a claim:

Modern, computer-driven redistricting now al- lows the political party in power to craft extremely sophisticated partisan gerrymanders. With vastly improved computer speed, memory, and storage, map drawers can design district lines so precisely that they simultaneously maximize their party’s gains and eliminate most competitive districts—ensuring that the party in power enjoys an electoral advantage that endures throughout the following decade, irrespective of voters’ subsequent choices.

There’s a very large problem with this.  The computer power and storage capacity available to us now, compared to the (less than) 300 million data points known as American voters, is not significantly better than the power and storage capacity available to a State government, Legislature, or political Party in 2000 – 2001.  Pretty much everything of value to a gerrymandering program will fit into ~1KB per individual, which means you can fit the entire country into less than 1/2 a terabyte.  So what people will be able to do in 2021, or were able to do in 2011, is not significantly better than what they could do in 2001.  But in 2006 and 2008, the voters’ subsequent choices changed, and as a result the Democrats took control, and kept control, of both the House and the Senate.

So this claim, fundamental to their thesis, is utter garbage.

Their thesis is this:

The Court should adopt a test for unconstitutional partisan gerrymandering that re- quires a showing of three specific elements: partisan asymmetry, lack of responsiveness, and causation.

All three a worthless.

1: Partisan Asymmetry


The first element, partisan asymmetry, is based on the idea that a citizen’s representational rights must not depend on the party with which he chooses to affiliate. Unlike a claim that the plaintiff is entitled to a specified number of seats, an asymmetry standard requires only that the parties and their supporters receive equal treatment—that they have like opportunity to translate their votes into representation. Thus, if Party A would garner, say, 60% of the seats when it wins 53% of the votes, Party B should also garner about 60% of the seats when it wins 53% of the votes. If it would not, partisan asymmetry is present.

You may very well have a Constitutional right to live how you want.  What you do not, can not, and should not have is a Constitutional right to live without consequences.  If a large number of Democrat voters are eager to live in places where 80% of their neighbors agree with them, that’s their choice.  But the proper result of that is that 37%+ of their votes are going to be “wasted” when voting for a Representative, because rational redistricting will put those city residents into districts made up of other like city residents.  It’s only a corrupt partisan gerrymander that would match up some of those city residents with suburban residents who are not so ideologically monochromatic.

But that’s what’s required in order to not have “partisan asymmetry” in districts, when there’s “partisan asymmetry” in how people chose to live.

2: Lack of Responsiveness

The second element, lack of responsiveness, screens out cases where the political process can provide a remedy.  It examines whether a map is responsive to shifts in voters’ allegiances, such that any disparate effect on voters is unlikely to persist throughout the decade following redistricting.

The problem with this fantasy is that it’s only provable in the negative, after the fact.  Did the incumbent Party lose a “safe seat”?  Guess it wasn’t safe.  While the authors provide this claim:

Based on historical data—how much voters’ preferences swung in prior elections—experts can identify the full range of realistically possible election outcomes (vote shares) and then determine how many legislative seats, if any, would change hands in response to a comparable change in voters’ choices.

The problem being that populations change, people change, circumstances change.  In an era where Donald Trump and David Brat hold elective office, no reasonable person can believe that “experts” can actually tell us what the election results will be next month, let alone 8 years later.

I found this line especially humorous:

There is consensus among social scientists that three discrete concepts are critical to detecting and measuring the extent of an unconstitutional partisan gerrymander

There is consensus among sane people that 80%+ of “social scientists” are Democrats or to the Left of Democrats.  The only thing their consensus about X “proves” is that the Left wants X.

The authors further go on to claim:

First, the newest, computer-driven redistricting now allows map drawers to make very precise refinements to district lines down to the census-block level. With this sophisticated new technology, map drawers can fashion maps that eliminate meaningful competition for most districts. See McGann et al., supra, at 87 (“[A]rmed with modern geographical information system software and an absence of judicial constraints, it is possible to engineer so much advantage that [a map can] satisfy both … goals” of “seat maximization and incumbent protection.”).

A: They’ve been gerrymandering down to the census block level for decades.

B: “Seat maximization” and “incumbent protection” are diametrically opposed goals.  You want “incumbent protection”?  Then you want your Party’s seats to have enough “extra voters” that even in a bad year your guy still wins.

You want “Seat maximization”?  Then you want your voters spread as thinly as possible, so that you’re winning nine districts 51 – 49, rather than seven districts 55 – 45.  The issue is not “what will those godlike computers let the evil gerrymanderers do?”  The issue is “which do you value more, SM or IP?”  If “gerrymandered victory margins are no longer so thin that they risk disappearing”, it’s not because of computers, it’s because the people doing the redistricting in 2011 had less appetite for risk than did the 2001 redistricters.


3: Causation

Causation means that the partisan asymmetry is a result of invidious discrimination, not neutral factors or chance…. That is, we must compare the map’s disparate effects against a neutral baseline.

Reality check: any time humans are doing redistricting, they’re going to be trying to get an advantage for their side.  So either this test always “fails” the redistricters, or the purpose of this is to let partisan judges find “bad faith” in gerrymanders they don’t like, and “good faith” in ones they do like.




The authors claim “The analytical tools for evaluating partisan asymmetry, lack of responsiveness, and causation have also dramatically improved since Bandemer, Vieth, and LULAC.”  They are wrong.  The test of partisan asymmetry is worthless so long as Democrat voters cluster, and Republican voters don’t.  It’s also worthless so long as the Voting Rights Act is interpreted to require “majority minority” districts that can elect Democrat “minority” candidates.

Moreover, new measures of asymmetry developed after LULAC rely on no “hypothetical” counterfactual at all. For example, the average-median difference is “a simple measure of asymmetry or skewness … [with] well-defined mathematical properties.” Wang, Three Practical Tests, supra, at 372. The average-median difference compares each party’s actual vote share in its median district to its average actual vote share across all districts. If the party’s median vote share is significantly lower than its average vote share, partisan asymmetry is at work.

Yes, because Democrat voters are clustered, and you expect the city districts to be more unbalanced than the non-city ones.

We continue to believe that experts can reliably assess the responsiveness and asymmetry of a newly enacted map by projecting the results of recent past statewide races onto the new district lines, especially in light of current extraordinarily high levels of partisan polarization.

Reality disagrees.  To quote from Winkelman and Gordon:

In the 2016 general election, there were 12 Democratic members of Congress who won election in districts where Trump won the vote. Similarly, there were 23 Republican members of Congress who won in districts where Hillary Clinton won the popular vote.

And that’s the core problem with all this.  Candidates matter.  “Experts” do not.  You want to require districts with certain levels of compactness, etc?  Great!  I’m all for it.

But the rest of their program is pure BS.


A response to National Lawyers Guild, Penn Law Chapter

September 11, 2017

The National Lawyers Guild, Penn Law Chapter, got their panties in a wad over Professor Wax pointing out the obvious fact that not all cultures are created equal, and that bourgeois culture is superior to most.

I wrote the following reply.  Being the kind of Marxist thugs that try to destroy someone’s life for disagreeing with them, I’m sure they won’t post it. So here it is:

While we do not challenge Professor Wax’s right to express her views, we question whether it is appropriate for her to continue to teach a required first-year course.

If you are that bad at logic, you must be horrible lawyers.

Which is rather sad, since you are clearly also horrible people.

By attempting to get Professor Wax fired for her views, you are indeed “challeng[ing] Professor Wax’s right to express her views”. Which every single person with a functioning brain understands.

What every single person with a functioning brain ought to also understand is that your attempt to establish that only left-winger may teach, is going to end with Republicans destroying all government support for “education”, since there’s absolutely no reason for us to give money to thugs (you’re advocating firing someone for disagreeing with you. That’s the definition of a thug) to indoctrinate people in evil “values”.

How stupid DO you have to be not to realize that?

It’s so nice when people out themselves

July 2, 2015

So, this guy decided to “attack” the Sad Puppies by admitting everything we’ve been saying is true.  I commented there, but figured I’d save it here, too:

1: When in the world did the Hugo Award become a “literary award”?  Have you even heard of Hugo Gernsback, let alone read anything he wrote?

2: I feel very sad for you, that you can’t tell the difference between “story first, message second”, and “can’t have a message”. You really can’t tell the difference between entertainment and propaganda?

3: This one you at least got right.  That’s right, we don’t think that the Hugos should be dominated by a left wing clique.  So good of you to admit that that is what our opponents want.


He replied, and I replied.  His system ate my reply, so I’ll put it here:

When we vote for the Hugo for best novel we are making a literary evaluation.

Only if you suffer from literary status envy.  As for the rest of us, we vote on “best story.”  For which “literary” is somewhere between orthogonal, and negatively correlated.

We hardly notice messages that we agree with.

No, you, as someone who wants propaganda, not stories, only notice messages you disagree with.  The rest of us don’t want to read Piers Plowman, no matter how much we agree with the message.

You misunderstand me if you think I suggested that the Hugos should be dominated by what you call “a left wing clique.”

They don’t think science fiction should contain messages, or be socially progressive…. The social issues I was referring to are diversity, gender issues, and a focus on under represented cultures and perspectives.

The above is complete proof that your previous sentence is garbage. You think the Hugos are incomplete without a number of stories pushing the left wing BS you mention above.  And you most certainly do not think the Hugos are incomplete if they don’t have stories pushing similar right wing themes.

The Puppies don’t want to be troubled by other viewpoints. They’ve proven this with their slate voting tactic, locking other viewpoints out of several categories of the Hugo ballot.

Authors the Puppies nominated range from a bisexual socialist, to “Genghis” Kratman.  If that’s all “right wing” to you, you are the one with a serious problem.

OTOH, if what you’re complaining about is that we didn’t nominate any crappy “message fiction” written by some pathetic hack who’s sold his or her birthright for a pot of message, then we’ll happily plead guilty.

An Exchange Established By The State

November 9, 2014

I’ve looked through the ACA, to find every place it refers to Exchanges created “by the State”.  The phrase “by the State” is found on 63 pages of the Certified ACA:

Page 403 – 404 of the Certified ACA
Subject to the succeeding paragraphs of this subsection, during the period that begins on the date of enactment of the Patient Protection and Affordable Care Act and ends on the date on which the Secretary determines that an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act is fully operational, as a condition for receiving any Federal payments under section 1903(a) for calendar quarters occurring during such period, a State shall not have in effect eligibility standards, methodologies, or procedures under the State plan under this title or under any waiver of such plan that is in effect during that period, that are more restrictive than the eligibility standards, methodologies, or procedures, respectively, under the plan or waiver that are in effect on the date of enactment of the Patient Protection and Affordable Care Act.

This clearly defines “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act” as being different from the Federal Exchange it’s replacing

Page 2154 of the Certified ACA
With respect to each State, the Secretary, not later than April 1, 2015, shall review the benefits offered for children and the cost-sharing imposed with respect to such benefits by qualified health plans offered through an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act

This specifies that “qualified health plans offered through an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act” are subject to review by the Secretary to make sure that they meet the Federal standards.  This distinguishes from plans set up under a Federal Exchange, where one assumes the Secretary would not allow then into the Exchange unless they met the Federal standards.

All of the rest of the uses of “by the State” connected to “Exchanges” are in the section on CHIP.  In no place is there ever any equivalency created between “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act”, and a Federal “Exchange”.

If we are to believe that Congress was using the offer of ACA subsidies to get States to set up their own Exchanges, I can see no grounds for saying “but they wouldn’t hold children hostage!”  Since, after all, they are holding hostage all the children of people who don’t qualify for CHIP.

More on ObamaCare / Halbig / King

November 9, 2014

Another nice post from Ziff Blog (here’s my response to the first post of his that I saw).  After some really good comentary, he posts the following questions:

  1. If the term “Exchange” is defined in the statute as “an American Health Benefit Exchange established under section 1311 of the [PPACA],” PPACA § 1562(b) (emphasis added), and if section 1311 only provides for state exchanges (with section 1321 providing for federal exchanges), then does the term “Exchange” standing alone, without modification, mean only state-established exchanges?
  2. Relatedly, if an Exchange is defined as something established under section 1311, how can the Secretary ever create an Exchange as that term is used in the rest of the PPACA?
  3.  If the term “Exchange” is meant to refer inclusively to federal- and state-established exchanges, then what is the effect of the “established under section 1311” language in section 1562(b)?
  4. If the PPACA sets up a two-tiered system for federal- and state-established exchanges, where are the provisions governing exchanges “established under section 1321” or “established by the Secretary under section 1321”? If they are absent, why are they absent?
  5.  If the term “Exchange” is meant to refer generically to federal- and state-established exchanges, with the phrase “Exchange established by the State” reserved solely for state-established exchanges, then why would the PPACA make federal-established exchanges subject to annual audits by the Secretary if the Secretary is the one operating the exchange?
  6. Is a regional exchange operated by a collective of states an “Exchange established by the State under section 1311”? What if one state “established” the Exchange but the other state simply permits the operation of the exchange within its borders, pursuant to section 1311(f)(1)?
  7. What is the difference between an Exchange, an “Exchange established pursuant to this title,” section 1303(a)(1)(D), an “Exchange established under this Act,” section 1312(d)(3)(D)(i), an “Exchange established under section 1311,” see, e.g., section 1331(e)(2), and an “Exchange established by the State under 1311,” section 1401(b)(2)(A)? The PPACA uses all of these differing phrases to refer to exchanges.
  8. Relatedly, could a state establish an exchange pursuant to a section other than section 1311? Could the Secretary establish an exchange pursuant to section 1311? If not, then why say “established by the State pursuant to section 1311”?

I’m going to skip the first three, because no answer to them affects my argument.

4: They are absent because the only difference between the two types of exchanges is the subsidies, and that’s fully taken care of by the language creating the subsidies.

5: IIRC, the audit language requires a number of reports about who’s getting insurance, etc.  Information needed by the IRS (when enforcing the Individual Mandate) regardless of where the insurance comes from, or whether or not the individual is getting subsidies.

6: I would say that because of the poor writing of the ACA, in neither of those cases would someone be eligible for a subsidy. I’ve changed my mind on this one.  Let’s go back to the text of the ACA:

(A) IN GENERAL.—The term ‘coverage month’ means, with respect to an applicable taxpayer, any month if—

(i) as of the first day of such month the taxpayer, the taxpayer’s spouse, or any dependent of the taxpayer is covered by a qualified health plan described in subsection (b)(2)(A) that was enrolled in through an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act,

In this text “the State” refers to the Exchange, not to the taxpayer.  It is not the taxpayer’s State we’re worried about, but the State that set up the Exchange.  A regional Exchange is still an Exchange set up by the States, not by the Federal Government.  As it is an Exchange set up by the State the individual lives in, the individual would be eligible for subsidies. (The requirement is not set up only by the State, just set up by the State.)  The shared Exchange is an Exchange set up by the State that set it up, not by the Federal Government.  So, again, the person purchasing insurance on that Exchange is eligible for subsidies.

Nothing in the ACA says that the Exchange has to be set up by only the State, or by the State the individual lives in.  So neither is an impediment to a subsidy.

7: I don’t know, ask the people who wrote the ACA.  What I do know is that an Exchange established by the Federal Government is, by definition, not an Exchange established by a State.  And I know know that the ACA established that an Exchange set up by a Territory “shall be treated as a State for purposes of such part“.  No such language exists for the Federal Exchanges.

8: A: A State could have set up a health insurance Exchange 10 years ago (not under a different Section of the ACA, but simply based on its own inherent police powers, and power to regulate health insurance).  What would have stopped a State from doing that? B: I say no, the Halbig Court says Yes.. C: Because they wanted to limit subsidies to Exchanges that were 1: Not set up by the Federal Government and 2: Followed the rules of the ACA.  Which is the point of King and Halbig.

Now, I have three questions for Ziff (or any other anti-Halbig individual):
1: The ACA says that an Exchange set up by Washington DC shall be treated as an Exchange set up by a State.  It says that Exchanges set up by any of the Territories shall be treated the same way.  Is there a fifth type of Exchange?  Or is the only other type of Exchange one set up by the Federal Government?

2: Why was the phrase “an Exchange established by the State under section 1311” used in the ACA, when, under your interpretation, what was meant was “an Exchange”? I don’t have the reference to hand, but I know there’s a Supreme Court precedent to the point that we must assume that Congress put words into a statue for a reason, and an interpretation that makes words superfluous is inherently inferior to one that does not.  Does your argument not suffer from that fatal flaw?

3: Have you read the Halbig majority opinion? Have you put together a point by point refutation of it? If so, where is it?  If not, would it not behoove you to do so?  Wouldn’t that be a far more productive use of your time than arguing with a bunch of bloggers?

Because if you can’t take it down (and I don’t believe you can), you’d better resign yourself to losing in the Supreme Court.

Ad Age joins the anti-GamerGate harrassment

October 27, 2014

A response to some pathetic bullshit on Ad Age

“The now amorphous movement was formed by a group of gamers demanding better ethics in video game journalism (the bad journalism is the “gate” part) but was co-opted by a group hunting for any slight and quick to berate and threaten critics with anything from rape and murder to the exposure of private information.”

Thank you for demonstrating early in your article that you are yet another dishonest political hack.

The anti-GamerGate propaganda is that GamerGate has been “taken over” by all these bad things.  The reality is that vast majority of the doxing and personal attacks comes from the anti-GamerGaters.  If you’ve been following what’s happening, you know that, and are lying about it.  If you don’t know it, it’s because you haven’t been paying attention, and aren’t qualified to write an article on it.

Advise to brands: Your customers are watching you.  Do you side with the politically correct thugs who hate your customers, and routinely go out of their way to attack, and offend, your customers?  Then by all means, continue to associate with Gawker, and the other anti-gamer haters.

Do you value your customers?  Do you think your customers have the right to have their own hobbies without being attacked by totalitarian thugs who wish to force their “one true way” on everyone else?

Then whenever you see someone attacking GamerGate, run away from them as fast as you can.

Dishonesty watch: Leftist columnist claims anti-GamerGaters are like Israel

October 14, 2014

It’s amazing the lies one will tell when one thinks they’ve looked the other side out of the discussion:

For a few weeks now, the Internet—or one large and particularly nerdy corner of it, anyway—has been alight with furious debates about #Gamergate. The mercifully short version of this affair is this: a swath of predominantly male gaming enthusiasts, motivated by not much save for the crudest cut of misogyny, have decided to wage a campaign against women who are entering the gaming community, designing their own games, and otherwise contributing to the growth of the medium.

My response:  Not posting it there, since the only way they’ll let you comment is via Facebook:

This article is the most disgustingly dishonest garbage I’ve run across today.  #GamerGate is about gamers getting tired of an utterly corrupt “elite” which wishes to force their will on all Gamers.  It’s about the powerful using censorship and bullying to drown out any voices but their own  http://www.littletinyfrogs.com/article/457868/Gamergate_Escalates  In short, it’s a LOT like what’s happening to Israel, but contra your claims, it is the anti-Gamers who are acting like Israels enemies.

My Comment on GamerGate

October 12, 2014

Response to this:

I found these quite interesting

  • They (gaming media) are outraged at being called corrupt
  • They (gaming media) are upset at the suggestion that the gaming media has some sort of organized conspiracy
  • They (general) believe gamers are inherently insular and want to shout down any attempts at reforming it.
  • They (general) believe gamers are entitled and thin-skinned, unable to show empathy or accept even mild criticism of their hobby.

I would like to think you are dishonestly presenting the anti-GG side, because if these are true, they are utterly damning.

1: The IndieCade and IGF imbroglios are prima facia cases of corruption.  You don’t get to judge products you have a financial interest in.  You don’t get to judge products represented by someone you have a romantic or sexual relationship with.  This can not actually be a surprise to anyone.  Any “game journalist” who hasn’t trashed the people involved is an accomplice to the corruption, and has no grounds to complain about being tarred with that brush.

2: I think the release of the GameJournosPros emails conclusively lays this one to rest.

Then there’s the other two.  The knock on the Puritans was “they were deathly afraid that someone, somewhere, was having fun.”  For these modern Puritans, the complaint is the same: “how dare you want to have fun playing games that we don’t like?”  “How dare you have a hobby that we don’t approve of?

You want to know what an indignant, whiny, entitled person looks like?  Check out the people who think they have the right to tell other people what hobbies those other people are allowed to have.  Check out the people who think that gaming companies should ignore their paying customers, and instead pay attention to whining SJWs and game “journalists” prancing about on their hobby horses.

What’s driving GamerGate?  Well, the fact that their opponents are utterly without a shred of legitmacy.

It’s not both parties

October 1, 2014

Comment to a post on Volokh:

(3) “Previous presidents who engaged in wrongdoing have had members of their own political party who were willing to stand up and say so.  But with Washington politics more polarized than they have ever been since the Civil War—in part because, unlike for most of American history, the Democrats and Republicans have clearly divided into liberal and conservative factions—one cannot count on partisans for one side to criticize their own.”

Wrong.  The problem is that Democrats are conscienceless power-hungry, and utterly amoral.  They are the party of government, the party of power, and nothing else matters to them.

See all those “year of the women” Democrat Senators, who were so offended by Clarance Thomas, and who immediately fell in line to support Clinton.  This isn’t a “both parties” problem, it’s a Democrat Party problem.

Republicans created Porkbusters to fight Bush Administration big government spending, because Republicans and Republican voters actually have principles.

Where’s the anti-war movement with all of Obama’s acts?  Nowhere, because Democrats and the left have no principles, they simply have a lust for power.

Halbig and King, a response to Ziff Blog

August 2, 2014

A left-wing blogger named David Ziff wrote some intelligent commentary on Halbig, and the poor quality of the left’s response.  However, he also wrote the following:

It’s not like we don’t have good textual and contextual arguments on the left! For one, read the Court of Appeals decision in King v. Burwell starting on page 15.

I made the following comment.  Here’s I’ll do it with formatting 🙂

If you’re resting your hopes on the King Court, you’re going to be very disappointed.  First, let’s consider this from the 4th Circuit Opinion:

Section 1321(c) provides that if a state fails to establish an Exchange by January 1, 2014, the Secretary “shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.” (emphasis added). The defendants’ position is that the term “such Exchange” refers to a state Exchange that is set up and operated by HHS. In other words, the statute mandates the existence of state Exchanges, but directs HHS to establish such Exchanges when the states fail to do so themselves. In the absence of state action, the federal government is required to step in and create, by definition, “an American Health Benefit Exchange established under [§] 1311” on behalf of the state.

This is really pathetic.  The text says “enrolled in through an Exchange established by the State under [§]1311 of the [Act].”  “By”  Not “on behalf of”.

Second, there’s this, from Halbig (pages 18 – 20):

The dissent [and the 4th Circuit in King] attempts to supply this missing equivalency by pointing to section 1311(d)(1), which provides: “An Exchange shall be a governmental agency or nonprofit entity that is established by a State.” 42 U.S.C. § 18031(d)(1). According to the dissent, (d)(1) means that an Exchange established under section 1311 is, by definition, established by a state. Therefore, the dissent argues, because federal Exchanges are established under section 1311, they too, by definition, are established by a state.
The premise that (d)(1) is definitional, however, does not survive examination of (d)(1)’s context and the ACA’s structure. The other provisions of section 1311(d) are operational requirements, setting forth what Exchanges must (or, in some cases, may) do. See generally 42 U.S.C. § 18031(d)(2)-(7) (listing “[r]equirements”). Read in keeping with that theme, (d)(1) would simply require that an Exchange operate as either a governmental agency or nonprofit entity. But the dissent would have us construe (d)(1) differently. In its view, (d)(1) plays a definitional role unique among section 1311(d)’s otherwise operational provisions, creating a legal fiction that any Exchange is, by definition, established by a state, even when, as a matter of fact, it is not. That reading, however, would render (d)(1) the odd man out twice over: both within section 1311(d) and among the ACA’s other definitional provisions, which, unlike (d)(1), employ the (unmistakably definitional) formula of “The term ‘X’ means . . . .” See, e.g., 42 U.S.C. §§ 300gg-91, 18024; see also 26 U.S.C. § 4980H(c).
The dissent’s reading would also require us to overlook the fact that section 1311(d) would be a strange place for Congress to have buried such a legal fiction. Section 1311, after all, concerns Exchanges that are established by states in fact; the legal fiction the dissent urges would matter only to Exchanges established by the federal government. To accept the dissent’s construction would therefore transform (d)(1) into the proverbial elephant in the mousehole—the “ancillary provision[]” that “alter[s] the fundamental details of a regulatory scheme.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). The Supreme Court has repeatedly held that Congress does not legislate in this manner, see id.; accord Gonzales v. Oregon, 546 U.S. 243, 267 (2006), and we see no evidence that it did so here. Indeed, we are particularly loath to accept the dissent’s construction given that there are far more natural locations to place this fiction, such as section 1321 or the provision defining the term “Exchange,” 42 U.S.C. § 300gg-91(d)(21).

Sorry, but the law was written as Gruber was claiming it was written back in 2012: The States would be forced to set up Exchanges by the threat that they would get no subsides.  The threat didn’t work, the gamble failed.  You want that changed?  Then you’re going to have to negotiate with Republicans, and give up a lot.  That’s what happens when you screw up.

Why I’m happy SCOTUSBlog didn’t get press credentials

June 30, 2014

While sitting at the SCOTUSBlog LiveBlog today, waiting for the opinions, I saw a link to Amy Howe’s “Plain English” review of McCullen v. Coakley. She closes with this:

The case is also interesting because of what it may signal for the challenge to the Affordable Care Act’s contraception mandate, in which we are still waiting on the Court’s decision.  Although the precise issues before the Court are different, both involve the intersection of the First Amendment (the McCullen plaintiffs’ desire to counsel women who might be seeking abortion and the Hobby Lobby families’ firm opposition to providing their female employees with birth control) and women’s reproductive rights.

What a load of crap.  Hobby Lobby pays for 16 different types of birth control.  What they refuse to pay for is abortificants.  This sort of dishonest left-wing propagandizing (and if she really didn’t know those facts, and if no one else at SCOTUS Blog didn’t know those facts, that would be world class incompetence) is why I’m happy SCOTUSBlog got stiffed.  If we want to read a dishonest fmale pushing left wing propaganda about Court cases, we’ve already got Linda Greenhouse, we don’t need amy Howe and the rest of the SCOTUSBlog crew.

Typos are racist, when you’re an idiot

April 18, 2014

Via Ann Althouse, I came across a whining racists screed at “Above the Law” pointing to some really crappy political “research” claiming that law partners find more typos when they know the author of a paper is “African America”.  This article is complete crap.  Here’s why:

  1. There are no “p values” anywhere in the article.  If you haven’t even bothered to figure out how likely your results were to come about by chance, you have nothing meaningful to say.
  2. “Of the 41 edits and/or comments on formatting, 11 were for “Caucasian” Thomas Meyer’s memo in comparison to 29 for “African American” Thomas Meyer’s memo.”  11 + 29 = 40, not 41.  I’m supposed to trust an article from people who can’t do basic math?
  3. “There was no significant correlation between a partner’s race/ethnicity and the differentiated patterns of errors found between the two memos. There was also no significant correlation between a partner’s gender and the differentiated patterns of errors found between the two memos. We did find that female partners generally found more errors and wrote longer narratives than the male partners.”
  4. We undertook this study with the hypothesis that unconscious confirmation bias in a supervising lawyer’s assessment of legal writing would result in a more negative rating if that writing was submitted by an African American lawyer in comparison to the same submission by a Caucasian lawyer. In order to create a study where we could control for enough variables to truly see the impact of confirmation bias, we did not study the potential variances that can be caused due to the intersection of race/ethnicity, gender, generational differences and other such salient identities

Each of those sentences in #3 requires a p value, none is given.  Were there more female partners reviewing the “African American” than the “white”?  Not discussed.  That would in and of itself have a significant effect on the scores.

But the most damning part is #4.  They established a hypothesis, and then refused to examine the data in any way that might invalidate their hypothesis.  They had very small sample sizes, and did not provide any p values to give their results meaning.


The only thing this study actually proves is that anyone who believes it is a credulous fool.

Mozilla’s evil hypocrisy

April 5, 2014

Mozilla posted the following stupidity:

“Our organizational culture reflects diversity and inclusiveness.”

Bullshit.  If you valued diversity and inclusiveness, you would value having people there who disagreed with you.  You know, people like Brendan Eich.  But you don’t value diversity, you are jackbooted thugs intent on forcing your views on everyone else.

By firing Brendan Eich for thought crimes, you have established that Mozilla is run by intolerant, hateful, bigots.  I will remember that.


Comment on Ezra Klein’s Wonkblog BS

October 10, 2013

You are amazingly partisan and dishonest.

1: “The second reason is that the non-gerrymandered Senate remains less polarized than the House — at the moment, for instance, they’re easily passing legislation to reopen the government.”

False.  The House has passed 20 bills to fund part or all of the government, almost all of them on a bipartisan basis.  The Senate has approved of 2 of them, and is holding up the rest.  The “hostage takers” are in the Senate, on your side.


2: “Though both parties have moved toward  their respective poles, Republicans have moved much further right than Democrats have moved left.”
How many Democrats in the Senate opposed ObamaCare?  0.  How many of them had constituents who supported ObamaCare?
It’s votes that count.  And when the vote is on the line, it’s the left that owns the Democrat Party.

3: “Because for most of American history senators used the filibuster extremely judiciously. That’s all changed in recent years. The Senate had to spend more time breaking filibusters in 2009 and 2010 than in the 1950s, 1960s, and 1970s combined.”
Gosh, WHEN did that change?  When did a minority decide that they didn’t care about the election results, they wanted their way, and that’s all that mattered?  Would that be in 2003, when the Democrats lost their majority?

Comment on All Althouse’s Abortion Post

August 1, 2013

Ok, so let’s turn this around:

There’s this really rich woman, we’ll call here Opraheta, she’s a TV celebrity, and worth hundreds of millions of dollars.

She has a “harem” of men.  One of them gets her pregnant.  She decides to have an abortion.  The man who impregnated her doesn’t want her to get one.

Who should win?

How is this any different from Simon’s case?

He’s going to be on the hook for 18 years.  Opraheta will be on the hook for 18 years, nine months.  That’s a difference of 4%.  Big whoop!

“It’s her body, she can do what she wants”?  Fine, she did what she wanted, and she, with the help of that man, created another human being.  It’s no longer just her body.

Alternatively, “it’s his body and he can do what he wants.”  If Simon doesn’t want the kid, than he owes that child no more than Opraheta does.  So he should be able to her: I’ll pay for an abortion, but I won’t pay to support you and that child for 18 months.  If you don’t abort, you’re on your own.

You object to those options?  Then what you’re really pushing for is that men should be legally inferior to women.  And while you’re free to push for whatever you want, I can not see the slightest reason why your position deserves a shred more respect than the position that women should be legally inferior to men.

Visualize your reaction to a man arguing, with all seriousness, that women should be kept barefoot and pregnant, and of course never be allowed to vote.  That is your moral compatriot.  Because if it’s ok for a woman to screw around, get pregnant, and kill the baby if the baby is inconvenient to her, then it’s AT LEAST equally ok for a man to go out, screw around, and refuse to provide anything other than 1/2 the cost of the abortion if teh woman is willing to have one.

The essence of a catch 22

July 22, 2013

So, Ann Althouse had comments, and got rid of them.  Then she asked people what they thought of her decision.  She apparently didn’t like the answers she got, so she wrote:

Those who voted in the bottom 2 categories [hate the absence of comments]— more than the ones who voted in the top categories, the supportive answers — reinforce me in my decision to go it alone here.

Shorter Althouse: “I asked you what you thought of my decision.  Telling me you don’t like it makes me more invested in keeping to it.”

Some other thoughts:

The poll is radically unscientific. Those who have stopped reading because the comments are gone should not be here to take the poll. Everyone choosing the last option — “Without the comments, this blog means nothing to me” — is confessing to lying.

Wrong.  Some of those people could have stopped reading the blog, heard about the poll, and come back just to participate in the poll.  Others could be people who visit your blog to flip through and see if comments are back, but don’t bother reading anything other than on that issue.

Telling me what I write doesn’t matter except as a jumping off platform for commenters doesn’t work as an argument, directed at me, to bring back comments.

The pronouncements of people I can not respond to rarely interest me.  If you say something thoughtless, ignorant, or just logically suspect, can I respond, and point this out? No?  If you say something brilliant, can I cheer?  No?  Then what you’re saying, by virtual of that, immediately becomes less interesting to me.

Shorter Greg: Ann, you’ve become Eric Holder.  You’ve said you want conversation, but what you’ve instituted is a lecture.

The 345 people who voted to say that they “feel aggrieved” and see what I did as “wrong” also fail to speak appealingly to me.

Excuse me?  We’re not “speaking”, we’re picking among the words you’ve allowed us to have.  If you don’t like that answer, perhaps you should have offered a different one.  First you turn a discussion into a lecture, then you complain because you don’t like the words you put in our mouths?

I would have phrased it as “The lack of comments makes your blog less valuable to me.  If it continues that way, I will drift away over time, visiting less and less until one day I just stop coming at all.”  But that option wasn’t available, because you chose not to offer it.

See, that’s the kind of response that you can get when you have comments, rather than just a lecture.

Sorry, Professor Althouse, but you can either pick the allowed responses, or legitimately get offended at people’s responses.  Doing both is a failure of logic.

The facts of the Zimmerman case

July 20, 2013

Elizabeth Scalia, blogging as “The Anchoress”, made some sadly uninformed comments about the Zimmerman trial.  I wrote this, and decided to post here so I don’t have to write this up again.  All feedback of a factual nature, either positive or negative, is quite welcome:

I am very disappointed in you, Elizabeth. Because it appears you’ve decided to comment on the Zimmerman case without bothering to actually find out what happened in the Zimmerman case.

So let’s consider some facts you appear to have missed, and see if you can come to a more enlightened opinion:

1: A neighbor of Zimmerman’s was home alone with her infant, when someone tried to break in. 911 told her to grab a weapon and hide. She grabbed a screwdriver, and hid in her room with her baby. Someone jiggled the handle on her bedroom door, robbed her house, and escaped, all before the police arrived.

Zimmerman and his wife befriended the woman, helped her deal with her terror, and bought her a new deadbolt. Then Zimmerman started the Neighborhood Watch program for their area.

2: Relying on police reports about burglary suspects, Zimmerman made multiple calls to the police about teenaged boys engaging in suspicious behavior. The result of those calls was that a black male teenager who lived in the complex was caught with stolen goods from multiple houses in the neighborhood. In one little irony, the kid was convicted in Judge Nelson’s courtroom (and if you don’t know that Judge Nelson was the trier of this case, you’re not qualified to comment on the trial, and should be embarrassed in yourself if you have commented on it).

3: Trayvon Martin was suspended from school twice. Once because he was caught with stolen jewelry in his backpack, the second time (which was why he was in Sanford) because he was caught with a used marijuana pipe in his backpack. The school security officers followed their boss’s policy of rarely reporting criminals, in order to get their boss awards for “cutting the crime rate”. (This came out because of this case.) If they’d actually reported the crimes, instead of just suspending Martin, he probably would not have been in Sanford that night.

4: Trayvon Martin’s cell phone had, hidden in a password protected file, pictures of him with jewelry on his bed, texts about his street fighting, texts from his younger brother asking to be taught how to fight, texts about buying and selling guns, and pictures of naked underage females.

5: The toxicology report on Martin said that he had the active form of THC in hsi bloodstream the night he died.

In short, Trayvon Martin was a thug. He was a crook, and he was a drug user. If Zimmerman had not killed him, the only real question is “would Martin have killed someone else before he got himself killed?” Happily, that answer turns out to be no.

6: George Zimmerman called the cops to say he saw someone wandering around, looking into the windows of a house where he knew the person didn’t live, acting strange, almost as if he was drugged.

If you have a problem with him making that call, your problem is with the whole idea of the Neighborhood Watch, not with George Zimmerman. The behavior he reported SHOULD be reported, it doesn’t matter if the person doing it is white black old or young.

7: Zimmerman tried to keep this suspicious character in sight. Eventually the person disappeared from his view, even when he stopped his car and got out. The person on the other end of his non-emergency police call told Zimmerman they “don’t need him to do that” (try to follow on foot), so Zimmerman went back to his car.

None of the above facts are disputable. You could, I suppose, try to claim that Zimmerman lied in his call, and Martin wasn’t really looking into any windows. But you would have to make that claim with zero supporting evidence.

So, please, tell us where Zimmerman displayed “bad judgment” in any of the above.

8: Zimmerman says he walked around in the area around his car, trying to find a street sign so he could tell the police who were on their way exactly where he was. Neighbors who lived there testified during the trial that it was hard to see street signs in the area, and that the street name had recently changed. In any event, Zimmerman got off the phone with the police.

9: Four minutes after Zimmerman lost sight of Martin, Martin confronted Zimmerman less than 20 yards from where Zimmerman’s car was parked. (Time information taken from phone records entered at the trial. Location taken from where Martin’s dead body was found.) If Martin had been trying to go home, he would have been there, safe and sound. If I understand Jeantel (the girl who was on the phone with Martin), Martin DID get to his dad’s girlfriend’s place, and then turned around and went back. In any event, given the amount of time Martin had to get home, the ONLY reason for him to run into Zimmerman at the place where he did was because he chose to seek out Zimmerman.

10: Martin confronted Zimmerman, Zimmerman responded defensively (rather than going on the offense and saying “why are you looking into windows of other people’s homes?”). We got that from Jeantel’s testimony. Then she claimed the call ended.

11: Zimmerman was struck in the nose, his nose was damaged, and bleeding. The back of his head was damaged from being struck into a concrete sidewalk. The defense’s forensic expert testified that the damage done to Zimmerman was potentially life threatening, that the police should have sent Zimmerman to the ER, and that if Zimmerman had died from his injuries, the police would have been sued, and lost. The prosecution’s witness, John Good, testified that he heard the screaming, went outside, saw Martin on top of Zimmerman, pinning Zimmerman down, and striking down at Zimmerman (he could not testify that he heard the blows hit). Good told Martin to stop. When he didn’t, Good said he was calling 911. Martin’s attack continued.

12: The witness who claimed that Zimmerman was on top said she was sure that the bigger person was on top, and since the only images she’d seen of Martin were the pictures from when Martin was 12, she assumed Zimmerman was bigger. This was false, as the defense demonstrated when they had Zimmerman stand next to a life sized cutout of Martin.

13: Martin was killed by a single shot to the chest. His shirt was in contact with the gun, but the gun was shot from two inches away from Martin’s chest (as determined by the powder burns on Martin’s chest). The hole in the shirt and the hole in Martin’s chest lined up to show that Martin was leaning forward when he was shot.

In short: Trayvon Martin confronted Zimmerman, punched him in the face, tackled him to the ground, and spent 40 seconds beating on him, inflicting potentially deadly damage on him, and giving no indication that he was going to stop until he had killed, or at least crippled, Zimmerman. Zimmerman then got his gun out, and shot his attacker, killing him.

There can be no “duty to retreat” when you’re pinned to the ground. Every state in the nation allows you to use deadly force to defend yourself when you can’t retreat, and are in reasonable fear of death. Zimmerman could not retreat, and was in reasonable fear of death.If you still think Florida has “some laws that should probably be reviewed” because of this case, it’s because you are taking the utterly fringe position that self defense should never be allowed.

I hope you will take some time to get yourself actually informed on this issue before saying anything more. And I hope you will offer George Zimmerman the apology he so richly deserves after your ill-informed and utterly unjustified hostile comments about him.

What tribe are you part of? Another comment on Zimmerman

July 17, 2013

“Whether it is because of conservative tribalism, race, guns, or something else”

It’s amazing how ignorant you are, Arthur. And it’s kind of sad the way you are so eager to show your ignorance.

“conservative tribalism”: Zimmerman was a 2008 Obama volunteer

“race”: both Zimmerman and I are humans, so we share the same race.  I’m pretty sure Martin was human, too, which means all three of us shared the same race.  (You, I’m not so sure about.)  If you mean “race” the way you leftist bigots and racists use the term, Zimmerman appears to share a lot more ancestors with Trayvon than he does with me

“guns”: plenty of thugs with guns.  I’m generally quite happy to see them arrested, and convicted,  Hell, Trayvon had texts saying that he was interested in both buying and selling guns

It is funny, because you almost managed to swerve into a truth.  Because (I hope) Zimmerman and I DO belong to the same “tribe”, the tribe of people who work to make the world a better place.  The tribe of people who are willing to go out of their way to help other, to protect others.  The tribe of people who are willing to take a stand against the barbarians of the night.

The tribe of people who are willing to stand against the Trayvon Martin’s of the world.

Trayvon Martin was a thief, and a drug user, and thug, a street brawler who liked to fight.  He was on a straight path to a worthless life, and the only real question was would he get killed before, or after, he killed someone else.  And on a dark and rainy night, his ego and his thuggish nature lead him to attack a good and decent man, at best because that man’s attempts to protect his neighborhood hurt Martin’s ego, pride, or feelings.

Happily, that good and decent man was armed, so instead of being beaten to death, or until he was crippled for life, he was able to defend himself, and the young thug died instead.  Sadly, he’ll probably have nightmares for the rest of his life.  Also sadly, some leftist inspired PoS will probably murder him, for the “crime” of having committed self defense at a time when our Dear Leader Obama needed a patsy to stoke racial tensions, in order to eventually get his voters out to the polls.

If you gave a sh!t about the other young men on Trayvon’s path, you’d be out there screaming “don’t be like Trayvon.  Build a worthwhile life, don’t be a punk, don’t be a thug.”  But you don’t care.  all you want is some talking points so you can pretend to be morally superior.

Comment on the Zimmerman case

July 17, 2013

“He bears some moral responsibility for Martin’s death for reasons William Saletan has enumerated”

The only problem being that the “reasons William Saletan has enumerated” were complete crap. GZ was attacked by Martin near GZ’s car. If Martin had wanted to go home, he would have gone home, and NOTHING would have happened.

One person, and one person only, cares the complete moral responsibility for what happened: Treyvon Martin.  There is absolutely nothing morally wrong with being suspicious of someone who’s acting suspiciously, EVEN if the person who is acting suspiciously happens to be a teenaged black male.

Punching someone, tackling him to the ground, and then beating on him because he hurt your feelings?  Completely and totally unjustified.  Get over it, and yourself.

I was out walking last night, and my path was about to intersect the path of a mid 20s female.  She stopped walking at reached into her backpack for something.  I gave her a nod and a smile, and bent my path a bit so there was a couple more feet of clearance between us.

Would I ever be a threat to her?  No.  Was I insulted that she was worried about it?  No.  Treyvon Martin is dead because he illegitimately chose to get bent out of shape.  That’s his problem, not George Zimmerman’s.

The, IIRC, last defense witness to testify was a woman whose house had been broken in to when she was at home with her ~7 month old infant.  911 told her to grab whatever weapon she could, and retreat to the safest place she could find.  She grabbed a screw driver, and went to her bedroom with her baby.  The robber jiggled her door handle before stealing things and going away.  George Zimmerman and his wife, as friendly neighbors, tried to help her.

GZ eventually helped catch the black teenage male who lived in the complex, and who was the robber, caught with stolen goods from multiple houses in his home.  Will left that out, since it detracts from his preferred narrative.

Treyvon Martin was a thief, caught with stolen jewelry in his possession.  He was on drugs the night he attacked GZ.  According to GZ, TM came to his attention because TM was acting like he was casing a house for later robbery, just like the previous teenage criminal GZ helped catch.  If you’re rich enough so that you can live in a place where the cops come quickly, and the criminals stay away, good for you.

But for you to look down your nose at George Zimmerman, a man who wasn’t as well off as you, and who was therefore putting his time and effort into trying to make his neighborhood a better and safer place to live, is contemptible.

You should be ashamed of yourself.

30 days with a gun

June 16, 2013

Over at Ms. Magazine, a writer is trying an experiment:

Yes, I bought a handgun and will carry it everywhere I go over the next 30 days. I have four rules: Carry it with me at all times, follow the laws of my state, only do what is minimally required for permits, licensing, purchasing and carrying, and finally be prepared to use it for protecting myself at home or in public.

Why? Following the Newtown massacre in December, the NRA’s Wayne LaPierre, told the country, “The only thing that stops a bad guy with a gun is a good guy with a gun.”  I wondered what would it be like to be that good guy with a gun? What would it be like to get that gun, live with that gun, be out and about with that gun. Finally, what happens when you don’t want that gun any more?

I decided to find out.

In it she whines about all the things she’s allowed to do.  I wrote the following response (it’s “in moderation”)

Wow, have you killed anybody yet?


So, despite deciding to be a completely irresponsible idiot, nothing bad has happened? the magic talisman of a gun hasn’t forced you to start a fight? It hasn’t forced you to grab it and shoot somebody?

Really? What a shock! (Yes, that’s sarcasm.)

Do you really want to live in a society where the government has the power to force you not to “be an idiot”? You know, a government that banned people from majoring in English Literature, or Gender Studies, because of the almost complete lack of jobs for people in those fields? A government that stopped people from going to LA, or NY, to try to become actors, because the vast majority will fail, so it’s really idiotic to try?

You are, supposed, an adult. That means YOU are, and should be responsible for your choices, and your actions. Not the government. Not society. Not your parents. YOU.

If you’re not willing to handle that burden, you’re not an adult. So go find someone to take care of you, and turn in your driver’s license. Because a car’s a far more deadly weapon than a Glock.

After that, I had this thought (also waiting moderation):

Oh, BTW, once you’re done with this article, why don’t you find some 18 year old woman and get her to write “My month having sex with everyone I can”, where she goes out and has sex with as many different people as she can, following only those rules the law requires her to follow.  No condoms, no birth control, anal, oral, and vaginal sex.  then see how many different venereal diseases she has at the end of the month, whether or not she’s pregnant, and / or whether or not she’s caught something that will make her sterile for the rest of her life.
And then compare the negatives that result from her actions, with the complete non-negatives that come from yours.

Because there’s a lot more things in life more dangerous than carryign a gun.