King v. Burwell: a discouraging mid-argument report [UPDATED] [WITH FINAL UPDATE]

Eric Citron at Scotusblog provides a mid-argument report on King v. Burwell, the vital Obamacare case being heard by the Supreme Court today. According to Citron, the petitioners, who argue that subsidies are not available on the federal exchange faced a troubling question from Justice Kennedy, on whose vote the case may very well turn.

Kennedy, says Citron, “expressed deep concern with a system where the statute would potentially destroy the insurance system in states that chose not to establish their own exchanges – likening this to an unconstitutional form of federal coercion.” Recall that part of the argument in favor of the view that subsidies aren’t available on the federal exchange is the idea that Congress set up Obamacare this way to induce states to establish their own exchanges. This is what Jonathan Gruber famously said.

If I understand the import of Kennedy’s questioning, he’s concerned that such a scheme might be unconstitutional. If so, then he might strain to construe the statute as not “coercing” the states to establish exchanges, and therefore not withholding subsidies to residents of states that opt not to have exchanges.

Let’s see, though, how the questioning of the government’s lawyer goes.

UPDATE: The argument that petitioners lack standing to challenge the statute has not gone well. Of note, Justice Sotomayor seemed to reject. This might mean she wants to the Court to rule on the merits because she’s confident now the government will win.

FINAL UPDATE: According to the Washington Post’s account of the oral argument, the government lawyer faced hostile questioning only from Justices Scalia and Alito. Chief Justice Roberts reportedly never tipped his hand. And, as noted above, Justice Kennedy’s questioning suggests that he more likely than not will uphold subsidies for those purchasing insurance on the federal exchange.

So Obamacare may well dodge another bullet. If so, it shouldn’t come as a major surprise. Unlike the four liberal Justices, who are basically on a political mission, the right-of-center group includes independent-minded Justices, and can’t really be considered a bloc when it comes to big cases.

Why no deal is better than Obama’s deal

I found Benjamin Netanyahu’s speech to Congress persuasive in all but one respect. I question Netanyahu’s claim that the alternative to the deal Obama seems prepared to settle for is “a better deal.”

It believe that the Iranian regime’s overriding goal is to obtain nuclear weapons. If that’s the case, Iran will not agree to a deal that significantly impedes its ability to reach this goal. It follows that the most likely alternative to a bad deal with Iran is “no deal.”

Accordingly, President Obama and his supporters have a point when they demand to know how Netanyahu intends to thwart Iran’s ambition in the absence of their deal — one that at least would permit inspections, thus perhaps improving the ability of the U.S. and Israel to know whether Iran is “breaking out” and racing towards development of nuclear bombs.

The answer to Obama’s point is that the absence of a deal doesn’t mean the absence of a strategy for preventing Iran from obtaining nukes. In fact, the absence of a deal would facilitate two approaches that hold more promise of thwarting Iran than even a decent deal.

In theory, there are three scenarios under which Iran won’t get the bomb. First, military action might prevent it. Second, the right kind of regime change might prevent it. Third, a deal might prevent it.

The first and second scenarios are the most effective because the third depends on some level of cooperation and compliance by a notoriously hostile and unreliable regime. The second scenario is preferable to the first because military action might not be entirely effective and, in any event, carries collateral risks. But the second scenario depends on events beyond our control.

If, as seems likely, Netanyahu is wrong that tougher bargaining will produce a decent deal, then his approach rules out the third scenario — a non-nuclear Iran achieved through bargaining. But Obama’s deal also rules out this scenario unless regime change occurs before the deal expires. As discussed below, this is highly unlikely.

Moreover, even during its life, the deal wouldn’t prevent an Iranian nuclear breakout. It would only give Israel and the U.S. a half year to a year (according to most estimates) to invoke the first scenario, a military response. As discussed below, the existence of the deal makes such a response by the U.S. highly unlikely.

In sum, a non-nuclear Iran cannot, in all likelihood, be achieved through bargaining.

Regime change of the right sort would almost certainly mean an end to Iran’s nuclear ambitions, provided that Obama’s deal hasn’t already caused Iran’s neighbors to develop nukes. What, then, are the prospects for such regime change?

If Iran gets out from under sanctions, the prospects are slim. The Iranian regime has survived for more than 35 years through all sorts of hardship. The absence of sanctions would relieve Iran from much hardship, making regime change highly unlikely.

A tough sanctions system would significantly increase the prospect for regime change. We can infer this from the fact that, before Obama began to lift sanctions, the Iranian economy was in sufficiently bad shape that the mullahs sought out “the Great Satan” for talks. Surely, they did so because they saw their grip on power loosening. And this, as Netanyahu pointed out yesterday, was before oil prices plummeted.

The other way in which Iran’s nuclear ambitions might be thwarted is through military action. To be optimally effective, such action would require U.S. involvement. For Israel to take such action would probably require U.S. consent if hardliners like Netanyahu lose power.

Deal or no deal, Obama isn’t going to take military action against Iran. But in two years, such action by the U.S. might well be back on the table. So might consent to an Israeli strike.

However, if the U.S. and Iran reach a deal, U.S. military action is highly unlikely, even in a “breakout” scenario. As Ray Takeyh points out, the reaction to North Korea’s atomic provocations shows that the U.S. and its international partners deal with such arms control infractions through endless mediation: “Once an agreement is signed, too many nations become invested in its perpetuation to risk a rupture.”

Absent a deal, Obama’s successor will be less constrained when it comes to taking military action against Iran and to consenting to Israeli action. This, I suspect, is one important reason why Obama is so eager to reach a deal, even a manifestly bad one.

To summarize, there are three conceivable pathways to a non-nuclear Iran. Obama’s approach relies on the least effective of them — a deal — and effectively precludes the other two. Moreover, by all accounts, the deal he’s willing to settle for contains so many concessions as to nearly forfeit its status as a conceivable pathway to thwarting Iran.

The better course is to insist on a much better deal. If that deal can’t be had, we will retain two more plausible approaches to thwarting Iran — sanctions-induced regime change and the military option.

The Obama administration was correct, then, when it stated that no deal is better than a bad deal. And Netanyahu was correct when he compellingly explained yesterday why the Obama administration’s likely deal is a bad one.

Who is Eric Hoteham? [Updated With Twitter Account]

In its excellent story this morning on the private email account Madam Hillary set up for official business during her tenure as Secretary of State, the Associated Press notes this telling detail:

It was unclear whom Clinton hired to set up or maintain her private email server, which the AP traced to a mysterious identity, Eric Hoteham. That name does not appear in public records databases, campaign contribution records or Internet background searches. Hoteham was listed as the customer at Clinton’s $1.7 million home on Old House Lane in Chappaqua in records registering the Internet address for her email server since August 2010.

The Hoteham personality also is associated with a separate email server, presidentclinton.com, and a non-functioning website, wjcoffice.com, all linked to the same residential Internet account as Mrs. Clinton’s email server. The former president’s full name is William Jefferson Clinton.

And then we have this:

In November 2012, without explanation, Clinton’s private email account was reconfigured to use Google’s servers as a backup in case her own personal email server failed, according to Internet records. That is significant because Clinton publicly supported Google’s accusations in June 2011 that China’s government had tried to break into the Google mail accounts of senior U.S. government officials. It was one of the first instances of a major American corporation openly accusing a foreign government of hacking.

Then, in July 2013, five months after she resigned as secretary of state, Clinton’s private email server was reconfigured again to use a Denver-based commercial email provider, MX Logic, which is now owned by McAfee Inc., a top Internet security company.

No word on the role of Mr. “Hoteham” in making the backup arrangements.

Trouble must be brewing if the AP goes out of its way to note:

The AP has waited more than a year under the open records law for the State Department to turn over some emails covering Clinton’s tenure as the nation’s top diplomat, although the agency has never suggested that it didn’t possess all her emails.

Twitchy has more here and elsewhere. I think this is one of those situations in which Steve Hayward would invite us to pull up a chair and get out the popcorn.

UPDATE by JOHN: We haven’t quite pinned down who Eric Hoteham is yet, but apparently he has a Twitter account. It’s pretty entertaining! Hillary deserves a whole lot more mockery, on this and many other topics.

Democrats respond to Netanyahu (video edition)

President Obama let it be known that he didn’t watch Prime Minister’s historic speech to the joint session of Congress yesterday. Netanyahu came to present the case against the nuclear deal with Iran that is in process. Obama has made concession after concession that would abrogate sanctions against Iran and facilitate Iran’s acquisition of nuclear weapons. Netanyahu sought to explain why that was the case and why it wasn’t a good idea.

Obama had arranged a conflict in his schedule in order to avoid watching Netanyahu’s speech. Obama took an important conference call at the time Netanyahu was to address Congress. The conference call must have kicked off around 11:000 a.m. (Eastern) and run 40 minutes or so, overlapping perfectly with Netanyahyu’s address.

Obama turned Netanyahu’s speech into an offense against majesty. He refused to meet with Netanyahu while he was in town. He procured the absence of Vice President Biden and Secretary of State Kerry from the speech. He assured that his administration had no representation at the event.

Obama commented on Netanyahu’s speech yesterday afternoon (video below). What a contrast with Netanyahu. Obama appeared petty, angry and petulant. He can’t help it.

Obama dismissed Netanyahu’s speech as lacking “viable alternatives.” If there is no alternative to what Netanyahu argued was “a bad deal” with Iran, that means Obama finds rejection of a bad deal or achievement of a good deal to be unrealistic alternatives to his chosen path.

Obama thus starkly confirms Netanyahu’s critique. Obama intends for us not to think too hard about what he has to say. We can foil him by exercising the power of critical thought.

Obama also sought the absence of Democratic congressmen from the speech. He wished to turn the event into a matter of partisan division. Though the vast majority of the minority attended, some 53 dutifully obeyed and stayed away. Among the conscientious objectors were Minnesota’s own Al Franken, Keith Ellison and Betty McCollum, representative of the range of congressional Democrats from jerk to thug.

Democrats who opposed Netanyahuy’s speech held a press conference immediately following Netanyahu. What a crew. C-SPAN broadcast the whole thing and posted the video below.


The video is 45 minutes long. I won’t say it’s worth your time; it probably isn’t. These folks deserve the fate of having to listen to each other as the price of getting their mugs in front of a national audience.

Kentucky Rep. John Yarmuth led off and set the tone. “This speech was straight out of the Dick Cheney playbook,” Yarmuth explained. For anyone who had seen Netanyahu’s speech, this event would have been laughable were it not for the animus that creeps through (and I do mean creeps).

The video is especially valuable in one respect. In case you have wondered whatever happened to Baghdad Jim McDermott, the video answers the question.

Energy Sense from an Unlikely Source

In preparing for this week’s session of my graduate course on energy policy, I happened to stumble across a very sound discussion of why the energy romanticism of the Climate Haters (I think I’m going to retire “climatistas” and go with the more accurate Climate Haters instead, because settled science!) makes no sense. It is in a series called “Getting to Zero” (as in zero carbon emissions), written by a self-described liberal convinced about climate change disaster, and described thusly:

In this series GETTING TO ZERO we will take a very hard-headed look at current energy policy and energy strategies. We will ask hard questions: does this really get us to zero? How much would it cost? How rapidly can it be deployed? We may find some answers along the way, but don’t expect them to be easy.

We’ve all read those rosy optimistic stories about renewable energy, and how in some given month 100% of new electrical capacity in the US was all renewable; or about how during some hour in the dead of night all of the electricity demand in Denmark was met by wind. You read those stories and you think, “Hey! We’re making progress in the climate fight!”

And that impression is dead wrong.

The second installment of this series looks at the economics of renewable energy and, citing a study in the journal Energy, concludes that it really blows (so to speak). The discussion gets a bit technical at this point, with an extended discussion about EROI (energy return on investment) and “buffering” (meaning essentially backup supply for sources like wind and solar that are intermittent) along with some very interesting charts, but the author ends up concluding that wide scale adoption of renewable energy “will reduce GDP. The economy becomes less efficient as we deploy less efficient energy sources to run it.”

The discussion of wind power is especially interesting:

Wind is a tricky case. If you ask most people, they will tell you that we don’t currently have energy storage for wind. In fact we do, but the buffering for wind comes from natural gas powerplants, which are typically built at the same time wind is deployed. When the wind dies, the backup gas plants are turned on, to keep the grid power reliable. Thus the energy storage for wind is embodied in the natural gas that isn’t burned when the wind turbine is producing peak output.

This means that wind, as it’s used now in the US, isn’t really zero-fossil. It’s a hybrid system that’s part wind, part natural gas. And considering the availability of wind (30% is typical for a wind turbine), most of the energy actually comes from the fossil side of the equation. We’re using the wind to offset some of the CO2 emissions from the gas plant (which is good), but instead of getting to zero, we’re just walking toward the cliff instead of running toward it.

Denmark currently is one of the most wind-energy-intensive countries in the world, which works because they buffer their wind energy against hydroelectric power from Norway and Sweden. When the wind is blowing in Denmark, they export electricity to Sweden, which then can turn down its hydro plants (thus keeping more water stored in the reservoirs behind the dam). When the wind dies, Sweden turns up the taps on the hydroelectric production, and exports that stored energy back to Denmark. It’s a great zero-fossil system, but it’s only possible because of the unique geography that places a flat windy country right next to a couple of wet mountainous countries.

The author concludes that we need a lot more hydropower and nuclear power—both forms of energy that environmentalists hate. (In fact, most state “renewable portfolio standards” specifically exclude hydropower as an option to satisfy the RPS mandate.)

The third segment in this series looks at energy efficiency, which many greens seem to think is the magical pathway to a carbon-free future. Here the author is even more scathing:

There’s just one problem. They [the efficiency/conservation advocates] are all completely and totally wrong. Increasing energy efficiency does not, has not, and will not ever reduce overall demand for energy. This is not just an opinion; it has been demonstrated with the cold hard equations of physics, based on the second law of thermodynamics.

Now don’t get me wrong. Energy efficiency has obvious economic benefits, and those benefits are often enough to make such improvements worthwhile. It’s not that we should stop being more efficient. It’s just that we should not expect those improvements to reduce energy demand or carbon emissions. Because they won’t do that.

So what Koch-supported, flat earth, denialist site hosted these sensible reflections?

The Daily Kos.

You read that right. Here are Part I, Part II, and Part III. I’ve never heard of the author, Keith Pickering, but if he keeps this up, he’s going to get “investigated” by House Democrats for departing from the script.

MSM mainstays cut Clinton no slack over her email account

If the mainstream media were applying the sort of scrutiny to Hillary Clinton it has applied to Republican presidential candidates, we would by now have seen articles in the New York Times and the Washington Post about Whitewater, Travelgate, and the 1993 health care reform debacle. We would also have been treated to disparaging stories about Clinton dating back to her days as a Goldwater Girl.

But the MSM’s fondness for double standards has its limits. One of them is an institutional intolerance for government secrecy.

Thus, the New York Times was quite harsh in its article reporting that Hillary Clinton never used an official government email address during her time as secretary of state and likely violated government regulations regarding retention of her business related emails. Times reporter Michael Schmidt did not confine himself to stating these facts. Rather, he went on to opine that these facts “echo[] longstanding criticisms directed at both the former secretary and her husband, former President Bill Clinton, for a lack of transparency and inclination toward secrecy.” He also noted that, unlike Hillary, “Jeb Bush, who is seeking the Republican nomination for president, released a trove of emails in December from his eight years as governor of Florida.”

Now Chris Cillizza of the Washington Post has piled on. He presents five ways in which the Clinton email story “reminds and reinforces for people many of the traits that they do not like in the Clintons while also suggesting a level of hubris that is very dangerous for someone who is the biggest non-incumbent frontrunner for a presidential nomination in modern political history.”

The five reminders are:

1. The Clinton’s don’t think the rules apply to them.

2. They are surrounded by enablers, in this instance aides who apparently never warned Clinton to at least occasionally go through the motions of using a government email account.

3. They’re always hiding something.

4. They only think about politics.

5. They never own up to anything.

That about sums it up.

Is there more to the MSM’s treatment of this story than good old-fashioned reporting coupled with unhappiness about secrecy? Possibly. Perhaps certain reporters consider Clinton insufficiency left-wing. Or maybe they simply would like to cover a decent horse race on the Democratic side.

If so, Clinton will not get a free pass from the MSM, at least not unless and until she has the nomination locked up. By then, it will be difficult to put the toothpaste back in the tube.

Another Reason Why Hillary Can’t Win

Steve noted earlier tonight a little-noticed exchange with an ABC reporter who was assigned to follow Hillary Clinton, which suggested one reason why Hillary’s 2016 campaign may be doomed. Here is another one: her relationship with Bill–the only reason anyone has heard of her in the first place–can’t withstand the light of day.

The email controversy that came came to light today is a problem for Hillary, for obvious reasons. But here is something that I don’t think anyone has pointed out: Hillary’s private email address was hdr22@clintonemail.com:

Screen Shot 2015-03-03 at 8.28.46 PM

There was no universal protocol for clintonemail.com addresses. Thus, for example, Anthony Weiner’s wife Huma Abedin used Huma@clintonemail.com. So Hillary’s choice of an email address was personal. And it is rather striking: her initials are HRC, for Hillary Rodham Clinton, right? So what does HDR stand for? Hillary’s middle name is Diane:

Screen Shot 2015-03-03 at 8.35.44 PM

So HDR stands for Hillary Diane Rodham. At the moment when she had been nominated as Secretary of State, Hillary chose to declare her independence from Bill Clinton, her ticket to the big time, by dropping his name from the email address that she used for four years as a cabinet officer.

Would that in itself disqualify Hillary from the presidency? Of course not. But it illuminates a larger problem that will be an enormous obstacle to Hillary’s 2016 run. It is common knowledge that she and Bill have lived separate lives for quite a few years. They are united only by political ambition–and, to be fair, a shared history, in service of that ambition, that goes back a long way. I am currently reading Augustus, by John Williams, and it occurs to me that Bill and Hillary would have been very much at home in ancient Rome. With contemporary America, they are badly out of step.

It’s not just the sham marriage. Bill has never been able to keep his various appetites under control, and since he left the White House, he has been a disaster waiting to happen. Let’s sum it up with this observation: anyone who wants to be active in public life must avoid situations that could give rise to newspaper headlines that combine his name with the words “underage sex slave.” That isn’t a high bar. Mitt Romney never had to worry about it, nor did Barack Obama. But Bill Clinton has suffered precisely that indignity, and there is much, much more to come between now and November 2016.

It is no wonder that Hillary wanted to declare independence from Bill by designating herself as Hillary Diane Rodham in her official State Department correspondence. (Of course, she was too much the political animal to separate herself from Bill publicly.) But that choice opens the door on many uncomfortable questions; questions that, I believe, will sink Hillary’s 2016 candidacy.

UPDATE: One thing I can’t figure out is, what is the significance of the 22 in hdr’s email address? The numbers have no obvious significance; not to me, anyway. Any ideas?