Tactics Triumphant

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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33 Responses

  1. Saul Degraw says:

    Here is how the brinkmanship is working out:


    “The Republican crusade against Obamacare is not ending; rather, it is shrinking and mutating. The party base will demand a presidential nominee who promises to repeal the hated law, just as it did in 2012. But the next Republican candidate will be running in an environment where repealing the law would create millions and millions of now-identifiable victims. Since the start of the year, Obamacare has gone from a weakness Republicans were salivating at the chance to exploit to an issue they no longer want to talk about. Two years from now, matters could be worse still.”


    “Unpopular Pennsylvania Republican Governor Tom Corbett recently agreed to accept Medicaid expansion. Four more Republican governors — in Tennessee, Utah, Indiana, and Wyoming — have taken steps toward following suit. In Washington, the river of attacks against Obamacare issuing from Republicans has slowed to a trickle. (The number of Congressional news releases attacking the law has fallen by 75 percent this summer from last.) The Weekly Standard’s Jeffrey Anderson is warning darkly of an “anti-repeal wing” within the party. “Root and branch repeal is starting to look more like twig and leaf,” concedes Reason’s Peter Suderman.”

    The New York Review just republished Simone Weil’s essay arguing for the abolishment of all political parties. The essay was originally published during the dark days of Totalitarian and WWII Europe. In the essay, Weil concedes that Anglo-American political parties were different and more like equals fighting in a sporting match with a “sometimes you win, sometimes you lose” attitude. The Continental Parties she felt were bent on total domination and control. Maybe our parties have gotten to the Continental outlook where the only acceptable victory is total victory. The TNR article is nearly a year old but I don’t see that fervor going down anytime sooner.Report

    • Re the Medicaid expansions…. I’m in full-out cynic mode this morning. CJ Roberts shepherded the PPACA through because it benefits all sorts of large corporations. He threw the conservatives a bone by making Medicaid expansion optional, knowing full well that within a few years the Republican governors and/or state legislators would cave when strong-armed by their states’ hospital associations and chains. All but a handful of states will have done the expansion by the end of the 2016 legislative season, when the hospital associations tell the hold-outs that they will be actively looking to get them out of office in the fall unless expansion passes.Report

      • morat20 in reply to Michael Cain says:

        I found Robert’s reasoning on the Medicaid expansion…puzzling. The implications are kinda strange too, insofar as it was a real break with the ‘federal money, federal strings’ logic.

        Maybe I’m mis-remembering it.Report

      • The objection was the size of the stick — failure to expand Medicaid meant the loss of all federal Medicaid funds, both old and new. The rule of thumb now seems to be, “It’s unconstitutional for the federal government to threaten states with a stick so big that they have no practical choice but to participate.”

        I’m waiting for a suit challenging the federal/state unemployment insurance program, which similarly has a stick so large that no state seriously considers not participating. In the UI case, the stick is the federal unemployment insurance tax, most of which is waived if the state has a conforming program. In a typical state, failure to participate would roughly double the UI tax businesses with employees pay. The law says that the federal Dept of Labor will operate an unemployment program in the state if the state doesn’t; in practice, the feds have zero resources in place to do that, because it’s unthinkable that a state would incur the penalty.Report

      • Jim Heffman in reply to Michael Cain says:

        ” The rule of thumb now seems to be, “It’s unconstitutional for the federal government to threaten states with a stick so big that they have no practical choice but to participate.””

        Indeed, this sort of behavior is what Rick Perry got indicted for in Texas.Report

      • morat20 in reply to Michael Cain says:

        That strikes me as really stupid, insofar as it’s a voluntary program the Feds can define it any way that want — and alter it any way they want.

        SCOTUS seems to have either decided to give governor’s a pocket-veto of every major change in a federally-funded voluntary program (of which there are many) or decided that Congress now must maintain legacy solutions for states that don’t want to upgrade, which seems…backwards.

        Had it been a decision over the highway fund and the legal age to drink, I can see some things to talk about.Report

      • …insofar as it’s a voluntary program the Feds can define it any way that want — and alter it any way they want.

        The SCOTUS said that they can’t do it any way they want, that there’s a practical aspect of “voluntary” as well as saying it in the statute. I wrote at the time that it certainly looked like the SCOTUS had opened an enormous can of worms without giving any guidance on what kinds of things would or would not be affected. Just within Medicaid, can Congress terminate the program now that they’ve addicted the states (and in most states, the entire nursing home industry) to the program? Can Congress raise the minimum standards for who must be covered at all? Can Congress change formulas (ie, Mississippi currently gets a 70% match; could Congress eliminate the formula and just say that every state gets the minimum 50% match)? Other things have been mentioned: unemployment insurance and federal highway funds. One that has occurred to me is whether Congress can mandate that a state accept transport and storage of spent nuclear fuel generated in other states. With this court, I’m not sure how I would bet on the waste question.Report

      • morat20 in reply to Michael Cain says:

        I guess I don’t really see the grounds on which SCOTUS ruled. It’s a federal program, it’s voluntary. To be, that’s absolutely the end of the story. The states can opt in or opt out, and the Feds can change it at will and the states can re-think whether to join it.

        It’s just…weird. Congress could cancel Medicaid tomorrow and create Medicaid 2.0 which is Medicaid + ACA stuff, and the states could…take it or leave it. Would SCOTUS then rule that Congress couldn’t do that, it’d have to keep old Medicaid in existence because cancelling it would burden the states?

        I’d think not. But there’s no actual difference between the two — Expanding Medicaid versus “Exactly like Expanded Medicaid but with a different name”. I don’t get how TWO identical programs could end up with one unconstitutional and the other constitutional when both were duly passed by Congress and passed into law.Report

      • James Hanley in reply to Michael Cain says:

        insofar as it’s a voluntary program the Feds can define it any way that want — and alter it any way they want.

        Not to be snarky, but the whole “voluntary” thing doesn’t really fly when we’re talking about the private sector, right? “Employment here is voluntary–if you don’t want to see pornographic posters of and work 60 hours a week with no air conditioning for a buckr fifty an hour, you don’t have to work here.”

        And I emphasize the not snarky part because this same thing can be–and often has been here–turned around on libertarians when the subject of coercion comes up. Both of our sides may struggle a bit with consistency on the coercion/voluntary issue.Report

      • Jim Heffman in reply to Michael Cain says:

        To expand on James’s point, the issue is that the Federal government really does have the kind of coercive power that people imagine business owners possess. “Sure, you can opt out of these particular parts of Medicaid, so long as you don’t want any highway-maintenance funding or disaster relief or anything like that.”Report

      • James might think that all the feds have to do with respect to the states is stick the word “voluntary” on it, and Jim clearly does, as does morat, and me, but five justices on the SCOTUS said “not always” and theirs is the only opinion that actually matters. Putting my old budget analyst hat back on, I don’t care about the niceties of theory; the can of worms is open, and combining resources with other states in suits to challenge other federal mandates may buy a lot of budgetary freedom for a modest legal investment.

        This isn’t even the first time that the feds have threatened the loss of Medicaid funding. As part of welfare reform in the 1990s, states are required to continue a minimum level of direct cash assistance (“maintenance of effort”) with the risk of losing all federal Medicaid dollars for every quarter that they are in violation. Add that to the list of potential lawsuits by states arguing that under the new legal doctrine the potential penalties are so great — and not even part of the program in question — that no state would willingly fail to comply, hence fail the test.Report

      • Damn, hit “post” to soon. By “mandates” I mean, of course, programs that are nominally voluntary but effectively mandatory due to the size of the penalty.Report

      • And “to” should be “too”. May I have a copy editor, please? Thank you :^)Report

      • but five justices on the SCOTUS said “not always” and theirs is the only opinion that actually matters

        A political science professor of mine (this guy) had a rule. If you said that a law is or would be unconstitutional, you could not speak again for eighty class minutes*. You had to say “A majority of the Supreme Court would find that unconstitutional” or “The court found that unconstitutional.”

        That the Constitution says whatever the Court says it says is not a new idea. And we thought he was being an arse. But it actually succeeded in driving home the point, and it may have been the only way to do so. I don’t always follow Prof’s rule, but it definitely stuck in a way it wouldn’t have if he hadn’t been so what seemed pedantic.

        * – It was a common punishment, for running afoul of any of his rules. Eighty minutes was a single class period. The egregious sin, interrupting him before he was finished, got you 160. Enforcement was not an issue, because whoever you were, there was someone in that class who hated you and would keep track to make sure that you suffered silence for each and every one of the eighty minutes.Report

      • ScarletNumbers in reply to Michael Cain says:


        Your “to” usage seems fine to me. Unlike Tod Kelly’s father.


        For some reason, when I first read your post I thought you used the word “friend” and I thought you meant @james-hanley . Then I read the post and said, “Wow, that was a harsh way to write about a fellow OT contributor. Then I clicked the link. So, never mind.Report

      • Alan Scott in reply to Michael Cain says:

        @james-hanley , this specific instance is pretty odd, though. It’s not that the feds are saying that a state can’t have highway funds unless they keep 20 year olds from drinking. The feds were saying the state can’t have medicaid money unless they give out medicaid money to everyone who qualifies for medicaid.

        I object to working conditions where pornographic posters are plastered over a car parts warehouse. I’d have to be a parody of a liberal to object to working conditions where they’re plastered over a porn studio, though.Report

      • James Hanley in reply to Michael Cain says:

        Michael Caine,
        James might think that all the feds have to do with respect to the states is stick the word “voluntary” on it

        Is that what I said? I somehow confused myself into thinking I was saying the opposite. 😉 Or maybe I wrote so unclearly that I confused others as to what I was saying, although I can’t really imagine that ever happening.

        Alan Scott,
        I’d have to be a parody of a liberal to object to working conditions where they’re plastered over a porn studio, though.

        Heh, point taken. I was thinking of warehouses or corporate offices for non-porn companies.

        Anyway, my general point was one that’s often been directed at me (sometimes even reasonably), that sometimes things that are de jure voluntary are de facto coercive.Report

      • dhex in reply to Michael Cain says:


        “because whoever you were, there was someone in that class who hated you”

        did you go to college at cobra kai u.?Report

      • There may be some unforeseen problems with Roberts’s medicaid expansion reasoning, but it’s not something he fashioned out of whole cloth. Dole v. South Dakota had laid down rules about 20 years before about what/how Congress could demand state action with the penalty being withholding of funds. By the standards in that case, it appears that Roberts was in the ballpark, perhaps being more eager to call a strike than a ball, but still not so beyond the pale of prior precedent.

        That’s not the policy outcome I would have preferred. And as Michael Cain says, it seems to open up questions about how much or whether Congress can tweak existing voluntary programs. But it’s not an arbitrary ruling.Report

    • Kim in reply to Saul Degraw says:

      Kindly ignore corbett. he is both a lame duck, and in a really, really horrid political situation.Report

  2. Tod Kelly says:

    Should this be in OTC? Great read, smart analysis, more than a line or two…

    Thinking it should be in the regular feed.Report

  3. Nob Akimoto says:

    I don’t know a lot of people who regard Heritage as much more than a party mouthpiece these days.

    Part of it is that it’s just not had the same level of intellectual heft as say Cato, New America, or Brookings has, but even then it’s a bit sad that even AEI is now a more reputable source than Heritage.Report

    • Burt Likko in reply to Nob Akimoto says:

      Do you consider Brookings to be right, center, or left in its take on things? The TNR piece identifies it as a “relatively liberal think tank,” and I can discern no particular pattern in its work product. If “relatively liberal” is defined by “position on the continuum relative to the Heritage Foundation,” then I guess I agree with TNR‘s characterization, but such a definition seems more than a bit askew.Report

      • Will Truman in reply to Burt Likko says:

        I think “relatively liberal” is about right. It tends to come down softly left of center (not just left of Heritage), though they’re not “liberal” in the sense that Heritage or AEI are “conservative.”Report

      • Nob Akimoto in reply to Burt Likko says:

        I tend to view Brookings as being more an establishment institution: In that it seems to draw scholars with a certain degree of renown and some buy-in to the current structure. I think it’s certainly true that Brookings was left of center while Heritage ordinarily was the right of center equivalent.

        But nowadays I think more of the intellectual heft in the center-left is more in the New America realm, while AEI is picking up where some of Heritage left off….and that hurts to say, because AEI still doesn’t strike me as anything more than a neocon mouthpiece.Report

  4. Damon says:

    I read the link. When I got here: “Like all good revolutionaries, Michael Needham had a sterling upbringing, the kind that allows a young man to pursue ideological purity free from worry about consequence or reality.” I realized it was a hit piece. I’ll not speak to the specifics, but the author is clearly not neutral. So much for the alledged “professional” journalist line of thinking. Pot/kettle I’m sure.Report