King v Burwell

Happily, I don't have a dog in the Obamacare fight. From my vantage over the Atlantic I can cheerfully observe both that the US have just about the worst possible healthcare system in the Western world, and that they'd be insane to try and replicate the NHS. I am a little bit surprised by the reasoning behind the decision in King v Burwell though.

For those among us who don't follow every twist and turn in the US healthcare debate (slackers), King v Burwell was an attempt to show that the tax credits/subsidies allowed for under the law could only apply to people in states with state-operated exchanges (i.e. where the individual US State had elected to set up an insurance exchange), and not where the exchange had been established by the federal state.

The reason this was brought was that the relevant wording of the law allowed a tax deductible for:

"the monthly premiums for ... qualified health plans offered in the individual market within a State which cover the taxpayer... and which were enrolled in through an Exchange established by the State"

Plaintiffs not unreasonably held that a law saying that you could get a tax break by enrolling in exchanges established by the State did not mean that you could get a tax break by enrolling in exchanges that wasn't established by the State.

The practical implications of this case were fairly serious - it would basically have punctured the Affordable Care Act by making it massively more expensive to get insurance in those States where there were no State-established exchanges. The obvious solution (amend the damn thing and get it re-passed) was not available, because the ACA would no longer have a majority in Congress. So, what's the Court to do? Politically, effectively overturning the most important single piece of legislation passed in the last decade, not on the grounds of constitutionality, but on the grounds of basic interpretation of a technicality would be a really very big call. On the other hand, the actual wording of the actual statute is really abundantly clear. What to do?

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

Teleological interpretation, that's what. "The object of all interpretation lies in the true intention of the lawmakers." Obama's Congress clearly didn't mean to fuck up the legislation, therefore they couldn't have done it. There are those who think that this method of statutory interpretation is a good thing - some of them are even American:

In today’s King v. Burwell, the Court said that in close cases, make the law work the way Congress obviously intended it. That’s a very good thing.

I have to admit that I thoroughly disagree. What's important is not what Congress intended, whether that's obvious or not. What's important is what Congress actually said. The only proper guide we have is the words of the statute. What do the words mean? This is something that courts really really ought to determine on the basis of the words in front of them and nothing else.

Once you get into the purposive, teleological route of what people meant to say, you end up with the situation of the Court having to make law, rather than simply interpret it. That's the way the ECJ works, and is the key reason that European law is such a clusterfuck - a combination of teleological interpretation and the fact the ECJ is not bound by its own previous decisions means that nobody has the faintest idea what decision they'll make on any given issue - there's no guidance other than the Judges' consciences.

The Supreme Court has shied away from giving words their ordinary meaning. As Scalia said, in a very Scalia dissent:

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.

That they have done in a 'good cause' (and I think that this is a good cause) doesn't make it any better - breaking the rules for a good reason makes it much easier to break them for a bad reason.

Waterloo

There's something a little odd about a progressive veneration for Napoleon - the man who dispersed protesters in Paris by firing artillery into them, who engineered a military coup to take over the dying Republic, who re-instated slavery in the French Empire, and who crowned himself as Emperor of France while at the same time invading most of Europe, causing the deaths of hundreds of thousands of men, women and children. You end up with the impression that to some it doesn't matter how blood-stained the figure is, so long as he opposed England.

Martin Kettle, who is usually more sensible than this, provides a classic of its type here, arguing that the defeat of Napoleon at Waterloo represented "a huge setback for the cause of democracy and equality." As a quick aside here, the extremely imperfect democracy in Britain in 1815, was considerably freer and more democratic than either Revolutionary or Imperial France. At the most basic level, compare and contrast the two principal newspapers of each state, The Times  and Le Moniteur. The Times was independent and free to write more or less what it liked. Le Moniteur was directly controlled by the French state and consisted of little more than propaganda.

The idea that Napoleon represented anything other than French supremacism rests on very thin ground. Take Kettle's report of Napoleon, post defeat in St Helena, musing on what he would have done to England:

“I would have hastened over my flotilla with two hundred thousand men, landed as near Chatham as possible and proceeded direct to London, where I calculated to arrive in four days from the time of my landing. I would have proclaimed a republic and the abolition of the nobility and the House of Peers, the distribution of the property of such of the latter as opposed me amongst my partisans, liberty, equality and the sovereignty of the people.”

Stirring stuff, if the thought of tumbrils in Parliament Square doesn't put you off a bit. Kettle qualifies his support for this by saying "If that was the real Napoleonic deal for Britain – and of course no one can say for sure whether it would have been – then what’s not to like." But Napoleon's commitment to Republican ideals is not really up for debate. He has a historical record which we can test.

Let's start at the beginning: France. Napoleon found an imperfect Republic, and transformed it into an Empire, with himself as its Imperial Majesty. He found Italy a patchwork of City state Republics, some more democratic and some less, and turned it into the Kingdom of Italy (ruled by his step-son) and the Kingdom of Naples (ruled by first his brother Joseph, and later his sister Caroline). The Netherlands were a genuine Republic, with directly elected leaders, when Napoleon invaded and occupied them. He turned them into the Kingdom of Holland (ruled by his brother Louis) and later just annexed them to France. After war with Prussia, Napoleon was ceded a hotch-potch of principalities, electorates and turned it into the Kingdom of Westphalia (ruled by his brother Jerome). Perhaps a closer parallel to England would be Spain, where Napoleon invaded a monarchy and overthrew it to create... the Kingdom of Spain (ruled by his brother Joseph, called over from Naples).

The quicker among you may be noticing a pattern here, and it's not one of democracy, liberty and progress.

Napoleon is good early evidence of the tendency on the left to grab any stick with which to beat their own country, regardless of how shitty it is.

#Otherskin

I'm not entirely sure what the opposite of a Hot Take is, but whatever it is, this post would probably qualify. Because I've got myself thoroughly confused over the public reaction to two recent stories.

The first one consists of someone who made the choice to reject one of their key birth characteristics and adopt a different one, using cosmetic treatments to change their appearance and present an entirely new face to the world.

And so does the other one.

On Caitlyn Jenner, I'm already a bit conflicted. I'm sympathetic to transgender people, not least because Jan Morris is so consummately brilliant, while at the same time wondering why the psychiatric response to a man thinking that he's Napoleon is therapy and medication, while the psychiatric response to a man thinking that he's a woman is hormones and surgery. Ultimately, of course, this all falls under the overarching category of 'someone else's problem', and if people really feel that they belong in a different category then good luck to them. I'm not sure that her rather peculiar beatification is called for, but that's a quibble.

But then Rachel Dolezal. One of the things that I was told repeatedly when studying sociology and gender at university was that race and gender are both essentially cultural constructs - that is, that neither are about inherent biological or genetic categorisation, but are formed of a network of roles and ideas that are artificially created by society as a whole. Since that is the case, there can be no problem with Caitlyn Jenner adopting a 'female' identity, because there's nothing biological about femininity.

On the other hand, even though race is also a cultural construct with no biological or genetic basis, there is a massive problem with Rachel Dolezal adopting a 'black' identity, because... Well, why? Mic has an answer:

So why don't we just accept Dolezal as black? Because she's not. So what's the difference between identifying as black and identifying as a woman? It's pretty clear: Dolezal has lied. She's spent the last decade going out of her way to falsely represent herself as black. On the flip side, transgender people like Caitlyn Jenner are not lying. If anything, their decision to come out is the ultimate declaration of honesty, of being upfront with who they are. 

Which is all a bit circular: a man wanting to be a woman is being honest, and that's fine. A white person wanting to be a black person is lying and that's not fine. This is all very well as a description of your point of view, but doesn't really tell us anything about why. The Advocate was blunter:

But then there came the comments of, “If Caitlyn Jenner can choose be transgender, then why can’t Dolezal choose to be transracial?” Okay, now I had an opinion. Let me sum that opinion up as simply as possible: these people are idiots. Seriously, that opinion is so backwards, ignorant, and clueless, it serves as a shining example of why we don’t have moon bases and fully functional sexbots yet. These people's statements are asinine because being trans is not a choice any more than being gay or black is. You are or you aren’t. 

But again, the point here is that Rachel Dolezal can't choose to be black (which, remember, is a cultural construct and not based on genetic or biological characteristics). Why not? Because you're an idiot, is why. Slate at least has a proper go at answering this:

The explanation commonly given is that Dolezal misrepresented her actual identity, while Jenner and other trans women are being true to theirs. This leaves a big question unanswered, though: If race and gender are both social constructs, and if both have been built around observable biological traits, then what is the crucial difference that makes a felt gender identity a true one, but a felt racial identity fraudulent? The short answer is that most trans people and their allies suspect that transgender people are born that way.

Which seems to leave us with the conclusion that while femininity is not a genetic or biological phenomenon, trans-ness is. All in all, the best part of all this nonsense was that it reminded me that I haven't read Jan Morris for too long.

Shut up, they explained

May God preserve us from the sanctimony of the socially progressive. I think the big hurdle so many of us (white, male etc) have when it comes to the whole social justice thing is that we're so obviously not invited to what's clearly a private party. There's an old gag that the right looks for converts and the left looks for traitors. Bear that in mind when having a look at this manifesto for straight white men (written in a sort of painful what-hoery reminiscent of someone who learned English by reading Dornford Yates).

The decorum here is simple: A gentleman never explains. If someone asks you to explain, ask them if they are sure, then proceed with both caution and brevity. Nobody likes a bore! If you can’t sum it up in a sentence or two, politely decline and ask them instead to download a Google.

Because mansplaining obviously. I'm slightly baffled at the idea that if someone asks you to explain something to you, the polite thing to do is to tell them to look it up themselves.

A gentleman should be seen and not heard. This is not a criticism; rather, sound advice! Should you find yourself at a forum where queries are invited from the crowd, never ask a question. If you have a query, wait! Someone else may ask it. Staying silent in public offers many advantages. You’ll avoid embarrassment, and your silence invites questions!

Your input is not welcome here (that is, anywhere).

Face it, chaps: We, as a demographic, have been really quite terrible to other genders, races, and sexual orientations over the millennia, and they have a right to be jolly miffed! This may sound foolish after having always been encouraged to speak your mind, but the best course of action is silence. An outburst is akin to a guilty man telling all and sundry “I’m innocent” when the blighter was caught red-handed. Such protest is unbecoming! Here’s an idea: Listen instead! Lend an ear, lend a retweet. Steel yourself, and quietly accept they don’t mean you. Not always, at least. Because the truth is – and you might want to brace yourself here – sometimes they do mean you!

So don’t tweet that reply. Don’t leave that comment. Don’t start a sentence with “but” or “well, actually”. Don’t say the obvious joke. Don’t try to score points! (I don’t know much about sportsball, but scoring one goal against a team that have scored many doesn’t make you the winner!) Not voicing an opinion is the right answer more often than not, especially in matters that don’t concern you, e.g. women’s bodies, LGBT bodies, black and brown bodies.

The thing is is that I'm actually quite a progressive, feminist sort of chap. I do more of the childcare and all of the cooking. I'm the one that leaves work early to sort out the kids. I try and be as supportive as I possibly can be of my wife's career. But I'm not going to accept that my role in life is to look pretty and shut up. Because that's a shit demand to make of anybody, let alone an entire sex. All of us have the right to speak, just as all of us have the right not to listen. And if the entire policy of the socially progressive left is that I shouldn't exercise my right to speak, then I'll also exercise my right not to listen to it.

Boo-hoo, I'm sure they're all saying. Refill my cup of male tears. But (oh dear, starting a sentence with 'but') the point is not that they should be listening to me or to anybody else in particular. I have two kids and a spaniel, I'm entirely used to not being listened to. The point is more that by making it so clear that they have no interest in engaging with me or anyone like me, they make the idea of engaging with them so very unappealing that one wonders how on earth they ever manage to persuade anybody that they're right. I used to be a big fan of Red Dwarf, but I'm surprised that people think Rimmer is a role model for politeness in conversation.

Lighten up, friend. Laugh! Live! Frolic in the fields of curiosity and wonder! We are here but for a limited time, what is life if not to be enjoyed!

Just as long as you do it quietly...

International Arbitration

There's an interesting long-form article in the Guardian about international arbitration and corporate-sovereign disputes. The weight of it is (unsurprisingly) that provisions in trade/foreign investment treaties that provide for Investor-State Dispute Settlement are a Bad Thing, in that they subvert local democratic decision making, and are a way for foreign multi-nationals to exploit under-developed countries.

But on reading the examples cited in the article, it's hard to muster a huge amount of sympathy for this view:

The suit was filed in 2009 by a Canadian company, Pacific Rim – later bought by an Australian mining firm, OceanaGold – which said it had been encouraged by the government of El Salvador to spend “tens of millions of dollars to undertake mineral exploration activities”. But, the company alleged that when valuable deposits of gold and silver were discovered, the government, for political reasons, withheld the permits it needed to begin digging...

In 2008, Vattenfall was granted a water permit for its Moorburg project, but, in response to local pressure, local authorities imposed strict environmental conditions to limit the utility’s water usage and its impact on fish... the environmental conditions placed on its permit were so severe that they made the plant uneconomical and constituted acts of indirect expropriation...

In 2004, South Africa’s new, post-apartheid Mineral and Petroleum Resources Development Act (MPRDA) came into force... The new system terminated all previously held mining rights, and required companies to reapply for licences to continue their operations. It also instituted a mandatory 26% ownership stake in the country’s mining companies for black South Africans...

In 2010, Bolivia’s president, Evo Morales, nationalised the country’s largest energy provider, Empresa Eléctrica Guaracachi. The UK power investor Rurelec, which indirectly held a 50.001% stake in the company, took Bolivia to the permanent court of arbitration in the Hague demanding $100m in compensation. Last year, Bolivia was ordered to pay Rurelec $35m...

There's a common thread in all the above cases: Governments taking political decisions that are in clear breach of the commercial obligations they agreed with the companies. The principle that Governments should not be allowed to break their own laws is a well-established one (it's arguably the main point of Magna Carta). If a Government does break its own laws, then there needs to be the ability to get redress. In the UK, that approach would be by way of Judicial Review, which has the power to overturn actions of the Government on grounds (among others) of illegality. It's worth noting that, of the examples listed above, Vattenfall also won their case in Germany's domestic courts.

But companies that are looking to invest in countries like Bolivia, South Africa or El Salvador are less likely to be comforted by the option of seeking redress in national courts. This is fairly understandable and is why investor and trade treaties routinely contain a provision that an investor company has the option of appealing to a neutral body if its rights are infringed by the sovereign state. Why should this be so controversial? This is the line of argument often used:

“What was concerning for us was that you could have an international arbitration – three individuals, making a decision – on what was in effect a legislative programme in South Africa that had been arrived at democratically, and that somehow this arbitration panel could potentially call this into question,”

But of course the arbitration panel have no right to call the law into question. Their power extends, to the extent that the new law breaches existing commercial obligations, to requiring the Government to compensate their counterparts. Expropriation without compensation is theft, and we generally have a poor opinion of people who steal.

If there is evidence that the international arbitration tribunals are corrupt, or that the decisions they reach are fundamentally legally flawed, then I would agree that there is a big problem. If the complaint is that Governments are finding that their freedom to break commercial contracts and expropriate private property is being corralled, then I would tend to think that is basically a good thing.

Political Correctness

God, being on the left looks like hard work. All that seriousness, all that earnest head-tilting. Everything matters so much! I was in Oxford this weekend for some entirely frivolous reason (although, word to the wise, Summer Eights is an entirely inappropriate spectator sport for 6 & 4 year-olds), and the traditional poster spots were full of posters advertising the new anti-austerity sit-ins and public meetings ("Where now after the election?" I don't know, the KA? The Turf?).

My fellow Oxonian Laurie Penny has a piece in the New Statesman chronicling the sort of crazy hi-jinks you can get up to when you live your life with a lefty zest:

Fast-forward 20 years. In a freezing-cold flat in Berlin, I’m standing under the shower with the water turned up as high and hot as it will go. I’m trying to boil away the shame of having said something stupid on the internet. The shower is the one place it’s still impossible to check Twitter. This is a mercy. For as long as the hot water lasts I won’t be able to read the new accusations of bigotry, racism and unchecked privilege. I didn’t mean it. I don’t understand what I did wrong but I’m trying to understand. I want to be a good person. It turns out that however hard you try to be politically correct, you can still mess up. I am so, so sorry.

Fun! The wider point she's making is (I think) that it's quite right for trans, queer disabled activists of color to shout at her on the internet, because of structural racism and oppression, and anyway these people are ultimately in the right. Victory gins all round.