Wednesday Highlights

Well, the on-site work last night went past midnight, hence my cunning plan for a post from the hotel didn’t quite work out.

  1. Some four months ago or so, I read that book on recommendation by an acquaintance. I’d recommend this one too. I was joking that my reading that was the unintentional cause of the Putin/Crimean adventure, and that I’d better be careful about reading World War history in the near future.
  2. So, “how you hold your drink” apparently is making the rounds. A rebuttal (without mentioning beer helmets … wine helmets anyone?)
  3. Saint Gregory Palamas on the Zen Koan “Does a dog have Buddha Nature?”
  4. A man remembered.
  5. Whew!
  6. What happens when you misread “Hetpa” as “Herpa” … and go into a post thinking it’s about snakes.
  7. A whole winter’s worth for a continent is not “weather”, it’s getting close to being “climate”, eh.
  8. Or to put it more succinctly, you should be going to, not running from.
  9. Why check? Who has standing to sue?
  10. Aristophanes revenge.
  11. Mr Obama misses Tom & Jerry.
  12. This will make news.

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39 comments

  1. Boonton says:

    9.Why check? Who has standing to sue?

    off the top of my head:

    1. Insurance companies could claim standing to sue. If the mandate was illegally delayed they could claim they were harmed by the lost business.

    2. Workers who work at companies that don’t offer insurance could sue. They could claim the delay in the law delayed being offered insurance from their bosses.

    3. Healthcare providers like hospitals could possibly sue as well. They could claim by delaying the mandate they see higher collection costs and more unpaid bills due to the uninsured people they have to treat.

    4. Any sitting member of Congress could sue arguing that they passed a law saying X gets mandated in month Y and the Executive has no language in the law that let’s them change that.

    The odd lack of lawsuits but surplus in punditry and speeches indicates to me that it probably is legal and built into the law’s administrative mechanisms.

  2. Boonton says:

    7.A whole winter’s worth for a continent is not “weather”, it’s getting close to being “climate”, eh.

    Not really. I notice this site, which you quote endlessly, seems to specialize in just cherry picking data. Not very helpful.

  3. Boonton says:

    Keep in mind the ‘polar vortex’ is a cap of cold air over the north pole. The US got blasted because that cap ‘slipped’ from the top of the world down over us this winter. So the first thing that comes to mind when I hear that explanation is if the cap ‘slipped’ down over us wouldn’t that imply that Europe and Asia would have had a warmer than usual winter as the ‘slipping cap’ would have pulled warmer air north over them?

    Sure enough ask Google if Europe had a warm witner in 2014 and you’re hit with multiple articles about a more mild, more warm winter.

    So here you have classic cherry picking. Find stories about places that were unusually cooler, ignore stories about places that were unusually warmer then pretend your long list of ancedotes represents data challenging global warming.

  4. Mark says:

    Boonton,
    “Punditry”? Volokh contributors are almost all academic lawyers talking within their professional expertise. And “lack of lawsuits” in the same week an action is made is not unusual. I guess what is unusual is that the defenders of the action point to “lack of lawsuits” and insult pundits instead of using the text of the law and common practice indicates that it is likely that laws have indeed been broken.

  5. Mark says:

    Boonton,
    Your right. I don’t have dozens of sites which quote weather. Cherry picking data seems to be what the “other side” is doing. The periodical Science News just this week noted the “lack of warming” over the past decades.

    You cited long ago the XKCD toon noting “gosh a snowflake” in St. Louis is not proof of non-warming. But this isn’t one storm. It’s three months of consistent weather. Not a single storm.

    So here you have classic cherry picking. Find stories about places that were unusually cooler, ignore stories about places that were unusually warmer then pretend your long list of ancedotes represents data challenging global warming.

    Uhm, global warming supporters have been cherry picking warm trends all the time. A continent had colder weather for an entire season. When a pattern gets big, it’s not cherry picking.

    The global atmospheric data shows little to no warming for 15 to 20 years. Yet when Texas has a heat wave, we get posts citing that as proof of warming. When there is a drought in California, we get weather people talking about a “historic” drought that has never happened in living memory. Except when people actually look back, a similar drought occurred in the mid 70s just at the same time when the rest of the country had unusually cold weather. Scientists write papers wondering “where the heat has gone”. Perhaps it wasn’t there the way they think it was, but that never seems to occur to them. Which seems odd. Believers in scientism pretend that contrary data refutes hypothesis. You’d think that 20 years of no warming. Look at the “model” predictions vs reality. You’d think actual honest scientists would offer that their models are flawed. Hear much of that yet? If not, why not!?

  6. Boonton says:

    I guess what is unusual is that the defenders of the action point to “lack of lawsuits” and insult pundits instead of using the text of the law and common practice indicates that it is likely that laws have indeed been broken

    Law is a bit like sports in that two people can talk all day about which team would win if two top teams played each other. The only definitive way to settle the issue, though, is for the two teams to actually play and see who wins. If that doesn’t happen then all the talk in the world is just punditry….whether it’s by a buch of loud mouth drunks in a bar or the most learned of sports writers.

    You’ve implied the extensions of deadlines is illegal but it hasn’t been challenged because no one has standing to challenge it. I pointed out there are multiple parties who could argue they have standing to challenge so this move sthe question back to why haven’t they?

    Volokh contributors are almost all academic lawyers talking within their professional expertise

    Argument from authority fallacy.

    Uhm, global warming supporters have been cherry picking warm trends all the time. A continent had colder weather for an entire season. When a pattern gets big, it’s not cherry picking.

    Europe and Asia aren’t continents then? And no global warming supporters aren’t cherry picking data and even if they were that’s not a defense for you to do it, or for you to outsource your cherry picking to others.

    The global atmospheric data shows little to no warming for 15 to 20 years.

    Show me the missing 15-20 years of warming:
    http://www.nasa.gov/images/content/616910main_gisstemp_2011_graph_lrg%5B1%5D.jpg

    When there is a drought in California, we get weather people talking about a “historic” drought that has never happened in living memory. Except when people actually look back, a similar drought occurred in the mid 70s just at the same time when the rest of the country had unusually cold weather

    I think we covered this with the analogy about the slot machines in a casino. Should we review again?

  7. Mark says:

    Boonton,
    Saying “Law is a bit like sports in that two people can talk all day” is again avoiding the issue by using generalizations and hand waving. The Volokh poster made a point. Calling it irrelevant because “they are pundits” (which they are not) and citing a lack of lawsuits for an action taken days ago is not a good argument.

    You’ve implied the extensions of deadlines is illegal

    No. I didn’t “imply”. I asked. I have no clue. I’m not a lawyer. We’ve had discussions in which it was pointed out illegal and wrong actions can be taken by prosecutors and executives and that nobody has standing to sue so they are by that means “legal”. I was wondering if this was similar.

    Argument from authority fallacy.

    Uhm, you mean like in your Salon “demolishment”?

    And no global warming supporters aren’t cherry picking data and even if they were that’s not a defense for you to do it, or for you to outsource your cherry picking to others.

    I see. Only global warming supporters are allowed to cherry pick. And again. A season and a continent was clearly stated in my post. I wasn’t claiming “global”. Just that the extent was large and the time frame long.

    I did show you. That was satellite data. You are cherry picking particular metrics which might work for you.

    I think we covered this with the analogy about the slot machines in a casino. Should we review again?

    That must have been elsewhere. There were in fact reports that this was a multi-year drought the likes of which has never been seen in living memory. This was in fact not true, that in the 70s a similar length drought was experienced. This drought was worse because water repositories and retention areas to service droughts have been scaled back since then for fish and other wildlife, population has risen, and the area was less prepared for the drought. But … pretending this has never happened is a lie. Look. The global warming climate alarmism crowd likes to put the blame for every bad weather event on global warming and climate change. I’m unclear why this doesn’t bother you.

  8. Boonton says:

    The Volokh poster made a point. Calling it irrelevant because “they are pundits” (which they are not) and citing a lack of lawsuits for an action taken days ago is not a good argument.

    1. They are pundits, just because they have academic creditentials and may be licensed lawyers doesn’t preclude them from being pundits.

    2. A lawyer proves his case by winning it in court. Absent that you just have talk. Your parents wrote you out of the will and gave everything to your brother. Can you reverse that? I’m sure you’d find lawyers who’d tell you yes. But the moment you show up in court you’ll find the other side has lawyers who say no. Whether or not you have a case is decided by the actual case, not the predictions by ‘learned academics’ of how hypothetical cases may turn out.

    3. Why the absence of actual cases then? Well a few possibilities:

    a. No one wants to file a case because everyone loves the law and no one wants to see it challenged. Yea ok.

    b. No one can file a case because they lack standing. I showed you how that’s false.

    c. Those who have standing like the law so they don’t want to file a suit. Since Congress itself probably has standing this falls flat as I’m sure any number of Republicans in Congress (many who are lawyers themselves) would be happy to file suit if they thought they could actually win. Likewise it’s not hard at all for advocacy groups on the right to recruit either a worker or an insurance company to file a suit.

    d. Suits aren’t being filed because the law probably does allow the administration to be flexible in changing the dates so it’s easier to talk about the administration ‘rewriting the law’ than to actually risk going to court and seeing the administration vindicated.

    Uhm, you mean like in your Salon “demolishment”?

    You mean Slate. Your assertion was the brief wasn’t addressed, I cited you an example showing it was.

    If you want to flip around and say it’s not being addressed well, or comprehensively, or in the way you want it addressed then you’re just shifting the goal posts.

    A season and a continent was clearly stated in my post. I wasn’t claiming “global”.

    You aren’t talking about global warming? OK then why are you complaining about global warming advocates cherry picking?

  9. Boonton says:

    .That must have been elsewhere. There were in fact reports that this was a multi-year drought the likes of which has never been seen in living memory.

    So let’s review the movie Casino w/Robert DeNiro. He’s running a casino and a slot machine pays out the big jackpot three times in a day. He fires the worker. His reason: The first time the machine paid out, it’s normal. The second time he should have pulled it from the floor for checking. That it paid out a 3rd proves he was either in on it or too stupid to have the job.

    So say a slot machine is set to pay out on average once every 50,000 pulls…and it’s only possible to pull 50,000 times per day at most. 1/50K odds per pull.

    It’s possible to get two payouts in a day, it’s even possible to get two payouts in a row! Yet the odds of ever seeing that are amazingly tiny (1/50,000)^2. You could watch a thousand machines for your entire career and never see it once. So if you happen to observe it one day, one possibility is you’ve observed something that’s amazingly rare…not a once in a lifetime event but a once in many lifetimes event. Or you can conclude that something has caused the machine to change it’s odds.

    So let’s say DeNiro discovers the machine’s odds were changed a few days ago from 1/50,000 to 1/5,000. So instead of there being about one big winner every day there have been 5 big winners. Today’s winners are Bob, Rob, Steve, Cindy and Suzi.

    Now what can you say about Suzi? Not much. She’s a big winner, you can say it’s almost certain she benefited from the change in odds. But can you say she won because of the change? Not really, it’s possible in an alternative universe where the odds weren’t changed Suzi would have been the lucky 50,000th puller.

    You can say, however, that the change in odds caused about 4 extra payouts than what would have otherwise happened. If you were going to sue someone, you could sue the person who changed the odds and your damages would be whatever 4 payouts are. Yet it would be very hard to sue Suzi and argue that 100% of her payout should come back to you.

    So instead of big winners in a slot machine think of those names as Hurricanes, or droughts, or heat waves or snow storms or whatever. Strictly speaking if warming increases the odds of such things happening, you can at most say that any one of those things that does happen benefitted from the change in odds yet strictly speaking you will never be able to say any one thing that did happen happened ‘because of warming’.

  10. Mark says:

    Boonton,
    Yes. It’s just that’s not relevant. If odds have changed, it will be reflected in long term statistics. If odds have changed, that doesn’t excuse lying about “this never happened” when in fact it did is not excused by talk about changing statistics. It’s just like “violent storms” increase when it’s warming (a prediction made), which even though you might cite an occaisonal storm that doesn’t matter when you actually realize that the incidence of violent storms hasn’t increased.

    Strictly speaking if warming increases the odds of such things happening, you can at most say that any one of those things that does happen benefitted from the change in odds yet strictly speaking you will never be able to say any one thing that did happen happened ‘because of warming’.

    That’s right. But if the actual frequency of those events hasn’t change (it hasn’t) then … you have to reject your notion that either warming affects the incidence of storms or the warming you predicted isn’t happening the way you think it has. Either way citing a particular storm as “caused” by warming (which people often do) is bogus.

  11. Mark says:

    Boonton,

    A lawyer proves his case by winning it in court.

    Courtroom lawyers are what, 10% of legal counsel in this country? What do the rest do, provide mulch?

    Your absence of cases forgets (e) because this happened two days ago and nobody has filed a case as of yet. I’m going with (e).

    I cited you an example showing it was.

    No. You said that post “demolished” the brief. It poorly covered and poorly argued it’s case. I’m not shifting the goal posts. I’m pointing out you are citing weak tea. If you can’t find an actual good argument, I’d say you’re case is in trouble.

    You aren’t talking about global warming?

    I see. When a global warming alarmist cites a particular weather event as “caused” by global warming that you ignore. When I cite a continent wide, season long 100+ year record cold spell, I called it a 100+ year continent wide record cold spell and positioned it as “not like” the XKCD “a snowflake in St. Louis”. My point is that a season + a continent is a larger event than a single storm. Since the other side (and you by your silent consent) are OK with alarmists citing single storms … then why are you finding a continent+season not relevant.

  12. Boonton says:

    Courtroom lawyers are what, 10% of legal counsel in this country? What do the rest do, provide mulch?

    Contracts, wills, etc. Things that are not in dispute.

    Your absence of cases forgets (e) because this happened two days ago and nobody has filed a case as of yet. I’m going with (e).

    Possibly, except we’ve been hearing people like you complaining about moving deadlines for over a year now.

    No. You said that post “demolished” the brief. It poorly covered and poorly argued it’s case.

    Your claim is demolished. Since you have a reputation building shoddy claims, I’m not sure your an authority on the structural integrity of claims.

    When I cite a continent wide, season long 100+ year record cold spell, I called it a 100+ year continent wide record cold spell and positioned it as “not like”

    Once in a century? The graph you cited showed the same low happening in 1980.

  13. Mark says:

    Boonton,
    If you think patent law has nothing to do with dispute … or divorce … well, you either didn’t think about what you said or you’re not being honest with yourself.

    Possibly, except we’ve been hearing people like you complaining about moving deadlines for over a year now.

    So, what’s your point? This was a particular question about a very IRS move and whether it was Constitutional for the IRS to unilaterally change tax codes, or does that require Congressional approval. Obama moving deadlines to assuage and optimize personal electoral politics is relevant how?

    Your claim is demolished

    What claim? I said I hadn’t seen any responses to that argument. No post you had cited the Sandefur brief or answered the points raised in that brief. I think you haven’t even bothered to read it, seeing as you cite a piece which uses (the same appeal to authority as it’s primary argument which you reject). If you had read both pieces you’d find that the one you linked has a primary argument that this notion that of corporation as person is “recent”. Except that’s not the primary argument made by the Sandefur piece. You offered that this piece “demolished” the Sandefur argument. It didn’t even address it so it’s hard to see how it demolished it. Now you’ve backtracked to say that the demolishing is my claim that there are no counter arguments. Finidng a piece that fails to address the arguments made by Sandefur isn’t a way to demolish my contention that his arguments aren’t being addressed is it?

    The “low” in 1980 is not as low as the one this last year, which is the point. You have to go back to 1912 for the seasonal average temperatore record to be beaten. 1980 “not beating” (but coming close) does not counter that claim.

  14. Boonton says:

    If you think patent law has nothing to do with dispute … or divorce … well, you either didn’t think about what you said or you’re not being honest with yourself.

    All types of law can end up in court with a dispute. Most lawyers at any given moment are not doing court cases just as at any given moment the majority of NFL players are not playing in the Superbowl.

  15. Boonton says:

    Obama moving deadlines to assuage and optimize personal electoral politics is relevant how?

    What exactly is ‘optimizing personal electoral politics’ when you’re talking about someone who will never run for an elective office again?

  16. Mark says:

    Boonton,
    I’d think “Superbowl” would be arguing before SCOTUS, numbers-wise. Which makes that brief probably more interesting as it was a paper offered to said Super-Bowl, and not a pundit thing.

    And

    What exactly is ‘optimizing personal electoral politics’ when you’re talking about someone who will never run for an elective office again?

    OK, Junior. Allow me to explain (oddly you are more experienced with following politics than I). Ever hear of mid-terms? Hmmm? Apparently you haven’t. You see, while Presidential elections are every four years, there are major federal elections every two in which every Representative and a third of the Senate terms are up and face elections. Oddly enough the makeup of Congress by party and person matters to presidential initiative success. I’d have thought you knew that.

  17. Mark says:

    Boonton,
    A better analogy to lawyers not in courts might be armed services. Historically most soldiers don’t fight in wars (in modern times). But a soldier, say in 1990 in the US wasn’t fighting, but he was also not uninvolved in conflict. Preparing for conflict even if it does not end up in battle, which is to say walling off and making direct conflict more expensive is in fact a sort of conflict. To make that plainer, just because you have a lawyer preparing a papers and doing work for you … doesn’t mean there is no conflict. You are just manning the barricades. If the walls aren’t assaulted that doesn’t mean conflict is not present.

  18. Boonton says:

    Ever hear of mid-terms? Hmmm? Apparently you haven’t.

    So that would be an electorical consideration…not a ‘personal electorial consideration’. Except there are elections every 2 years! So pretty much anything a President does can be derided by natters as ‘motivated by elections’. As I recall you tried to claim the killing of Bin Laden was timed to influence elections…that were over two years away! Keeping in mind that a President’s term is only 4 years, exactly what are the ‘windows’ that you think policy changes could be fairly enacted without the charge of ‘influence elections’?

    There’s another slight problem, when is it logical to expect to hear that a deadline has been extended? As you get close to the original deadline passing. Deadlines are rarely extended far in advance of their expiration since that would be counter productive to the purpose of encouraging people to get in before the deadline closes.

  19. Boonton says:

    I don’t have any objection to your military analogy but the principle isn’t changed. The test is ultimately how an army performs in combat. Before that happens, you have nothing but speculation whether it’s by simple pundits or by the nations’ most learned military academics.

    Which leaves the central question of why there are no cases if it’s such a slam dunk call? Certainly critics of Obama would very much like to hand him a defeat. Why not sue against the extensions?

    You yourself admit that this is an important issue when you offered as a possible explanation that if no one was directly harmed by the extensions no one could have standing to file suit…even if they were illegal. Even for you something inside told you that without a viable explanation for the lack of cases, the whole brouhaha over extensions lacked some legitimacy so you tried to supply one.

    Except you didn’t supply one that works since there are plenty of cases where someone could at least make a preliminary claim for being harmed and hence have standing to sue. So now you remain stuck, without a case but plenty of pundit bluster your side here is looking less and less serious every time they open their mouth on the issue.

  20. Boonton says:

    Speaking of severe weather….

    http://www.slate.com/articles/business/moneybox/2014/03/nate_silver_climate_change_denial_it_s_time_to_dump_fivethirtyeight_s_roger.html has a fascinating graph showing events by type and year. The red events are geophysical (earthquake, volcano etc) which one would expect climate change to have no relationship with. The others are meteorological (storms), hydrological (floods,) and finally climateological (droughts, heat waves/cold waves etc.).

    It isn’t clear how the relationship should work between climate change and these events (for example, if climate change causes a storm is it double counting to include floods which may simply be a result of the storm?). But it is clear all types appear to have been rising since 1980 except geophysical events…which is what one would expect from a ‘model’ of AGW.

  21. Mark says:

    Boonton,
    I’m not sure I’d trust the provenance of that final graph. As you know, tornado and hurricane frequencies were expected to rise. As has been frequently noted, they didn’t. How does the non-increase of these violent storms figure into storm counts? So, how do floods and thunderstorm counts increase when the counts of the most violent storms not increase. I think you are falling prey to confirmation bias.

  22. Mark says:

    Boonton,
    OK. Let’s say, the IRS made an illegal decision just last week. Why do you think that there would be cases brought before the courts. They’ve made a decision but don’t you need people actually affected by their new decision before you can have a court case? Don’t you need time to find a willing able plaintiff? Don’t you need time to organize the case? I suggest they do. Your argument “where are the cases?” has an easy (but I guess inconvenient) answer. Try again. Tell me why this decision is legal.

  23. Boonton says:

    How does the non-increase of these violent storms figure into storm counts? So, how do floods and thunderstorm counts increase when the counts of the most violent storms not increase.

    Easy, they don’t. Perhaps you just get more storms rather than more superstorms.

    OK. Let’s say, the IRS made an illegal decision just last week. Why do you think that there would be cases brought before the courts. They’ve made a decision but don’t you need people actually affected by their new decision before you can have a court case?

    Gave you about half a dozen people who’d have direct cause to file suit. I grant you, if tomorrow the IRS ruled that purple mo-haired sheep can be deducted twice and that was a totally wrong call….I suppose finding someone to sue would be pretty hard as the only one directly harmed might be the purple sheep and maybe a Congressman who wants to sue.

    Your argument “where are the cases?” has an easy (but I guess inconvenient) answer. Try again. Tell me why this decision is legal.

    Your easy answer then is that not enough time has passed to for someone to sue? OK, so at some point in the future there will be suits. If there are not then we can dismiss your assertion and you’ll admit you were wrong, correct? Now let’s just set a date. I’m going to say July 15th of this year. Work for you?

  24. Mark says:

    Boonton,

    OK, so at some point in the future there will be suits. If there are not then we can dismiss your assertion and you’ll admit you were wrong, correct? Now let’s just set a date. I’m going to say July 15th of this year. Work for you?

    I have no idea of how long these things take. Hobby Lobby filed suit in September. How much earlier did the statute that they object to (a) be announced by the relevant agency and (b) go in practice so they could have standing to sue? Seems to me the answer to (a) is about 4 years ago and the answer to (b) might be early 2012 or 13. So it took them 9-18 months to sue. Yet you figure 3 months will be all this will take (and again I’m unclear on who has standing to sue … because few companies have (it seems to me) standing or willingness to sue the IRS on the grounds of “I wasn’t penalized for X”). Yet that doesn’t make it right. I know you are in favor or arbitrary and Imperial rights for the executive and prosecutors to pick and choose what laws they “feel like” perusing, this just yet another example of your dislike of the rule of law.

    But again, you’re arguing well for the side of “it’s illegal” by your steadfast refusal to discuss the question of whether this actually might or might not be illegal and ducking to “is it argued in court”. Let’s review. In 2010 Obamacare was passed. This included the legal injunction that “According to the PPACA, the employer mandate was to “apply to months beginning after December 31, 2013.””. Yet in March 2014 the IRS declared it would delay that mandate until after 2016. What permits them to do that? There is one possibility mentioned, that the IRS can ” The Treasury Department claimed this was an ordinary exercise of its “longstanding authority to grant transition relief when implementing new legislation,” ” Except this legislation is not new. It is 4 years old. That is by no means “new”. So that doesn’t apply. By what means does can the IRS/Treasure decide willy-nilly to enforce or not enforce laws passed by Congress? Tell me why this is legal! Stop dodging. Tell me why the IRS/Treasure can pick and choose what statutes it “feels like” enforcing is just and legal or even Constitutional.

  25. Mark says:

    Boonton,
    Let’s take the politics out of this a bit. Congress has passed a five years ago that says starting in December 31 2013 all businesses not providing proper work shoes for their employees has to a pay a $500 per un-shoed employee tax. The Admin/Treasure/IRS decides in March 2014 not to implement this statute and ignores the law. Legal or not? If nobody sues does that make the action Constitutional?

  26. Mark says:

    Oh and how long will you decide to wait (if your litmus test on if that is indeed Constitutional is the presence/absence of a challenge? If nobody challenges before July is it then Constitutional in your eyes?)

  27. Boonton says:

    What permits them to do that? There is one possibility mentioned, that the IRS can ” The Treasury Department claimed this was an ordinary exercise of its “longstanding authority to grant transition relief when implementing new legislation,” ” Except this legislation is not new. It is 4 years old

    I suspect ‘transition relief’ would apply to any laws that have not yet been implemented, even if passed several years ago.

    Yet in March 2014 the IRS declared it would delay that mandate until after 2016. What permits them to do that?

    Your only problem is you’ve been carping about extensions and exemptions for a long time before March of 2014 (the month that ended less than 24 hours ago). The failure to cite actual lawsuits leads one to several possible theories:

    1. The law itself contains language allowing some leeway to the Executive in implementing timetables, rules, etc.

    2. It’s been accepted practice for the Executive to take leeway in implementing complex regulation hence while explicit permission won’t be found in the language of the law, accepted custom would have required Congress to use strong language to impose ‘hard deadlines’ and absent that all or many deadlines are considered soft by custom.

    Granted a lawyer would be able to help explore the possibilities raised in #1 and #2. Since you uncovered ‘transition relief’ it sounds like #2 might be your answer and I would suspect this is an area where the law is rather fuzzy (which means it remains up for debate until someone actually decides to litigate). But then that brings us back to the question of where are the lawsuits?

    Congress has passed a five years ago that says starting in December 31 2013 all businesses not providing proper work shoes for their employees has to a pay a $500 per un-shoed employee tax.

    Oddly enough I recall some time ago NJ passed a law requring gas stations to upgrade their underground tanks to prevent leaks. After numerous extensions were granted, the gov’t finally said enough and after that some stations turned off their pumps and became service only shops as they didn’t want to pay to dig out their old tanks. Wish I knew how those extensions were granted but I suspect the Executive was doing it, I don’t think they were passing new laws every step of the way.

  28. Mark says:

    Boonton,
    I suspect ‘transition relief’ would apply to any laws that have not yet been implemented, even if passed several years ago.That makes no sense.

    Your only problem is you’ve been carping about extensions and exemptions for a long time before March of 2014 (the month that ended less than 24 hours ago).

    I have? I have been endlessly amused I admit by the Democrat’s hypocrisy in allowing and permitting a plethora of extensions and exemptions which come from the right alongside their absolute refusal and mockery of any suggestion of the same from the right.

    Are you suggesting that this is not the first extension/suspension which originated in the Treasury/IRS? What was the earlier one?

    But then that brings us back to the question of where are the lawsuits?

    For the zillionth time … this was a suspension suggested in March. How long does it take to bring a case to a constitutional court? You seem to think a week or two is enough. Disenginuity is fun, but seriously, that tack is getting old.

    … leeway in implementing complex regulation … They’ve had four freaking years!! Seriously, how incompetent are we to pretend the government is? It took less time to defeat Hitler and Japan. Four years is not “recent”. It’s not “new”. It’s established. It’s known.

    So, it’s been put off to 2016. Say the next President isn’t a Democrat and decides to “put it off” until 2035? I’m unclear on what principle at this point you might argue that was not permissible.

  29. Boonton says:

    I have? I have been endlessly amused I admit by the Democrat’s hypocrisy in allowing and permitting a plethora of extensions and exemptions which come from the right alongside their absolute refusal and mockery of any suggestion of the same from the right.

    Ohhh no my friend, you’ve made it very clear. There have been no extensions, exemptions at all. Until March of this year no such thing has happened. That’s your position. Now you’ll live with it and I’ll make sure you sink with it.

    I suspect ‘transition relief’ would apply to any laws that have not yet been implemented, even if passed several years ago.That makes no sense.

    Well the phrase does seem to imply the relief is about when the law is actually implemented, not when it’s passed. The actual work gets done in implementing a law, not passing it.

    … leeway in implementing complex regulation … They’ve had four freaking years!! Seriously, how incompetent are we to pretend the government is? It took less time to defeat Hitler and Japan.

    Construction is always more painstakingly slow than destruction.

    So, it’s been put off to 2016. Say the next President isn’t a Democrat and decides to “put it off” until 2035? I’m unclear on what principle at this point you might argue that was not permissible.

    I’d say a starting point would be when someone ‘puts their money where their mouth is’ by filing an actually viable court case over it. So far the response to that challenge has been to double down on the mouth. I’m unimpressed.

    I would suspect, however, that a court would look at a claim of ‘transition relief’ in the context of what was being done which would make a 2035 delay be viewed quite differently than a 2016 one.

  30. Mark says:

    Booonton,

    Ohhh no my friend, you’ve made it very clear. There have been no extensions, exemptions at all. Until March of this year no such thing has happened. That’s your position. Now you’ll live with it and I’ll make sure you sink with it.

    You need to explain how your hermenuetical method. Is this the “random hermenuetic” in which you extract a random meaning from what you read? Let’s see, I said that I’ve been hypocrisy over the many (hint: many is more than none) extensions and exemptions put in place by the left alongside their mockery and scorn heaped on those proposed by the right.

    Well the phrase does seem to imply the relief is about when the law is actually implemented, not when it’s passed.

    Makes no sense. Obamacare has been implemented for a long time now. Granted it had a weird delayed rollout so that certain deleterious effects would phase in after different election cycles so to minimize electoral impacts for the left … which is likely the biggest reason for this last delay. But this isn’t a “new” thing.

    Construction is always more painstakingly slow than destruction.

    Are you pretending WWII was less complex and difficult than this tax on businesses? Seriously? Or that nothing “was constructed” in defeating Germany and Japan in that war?

    So far the response to that challenge has been to double down on the mouth. I’m unimpressed.

    March! This was announced in March. You are unimpressed that no court cases have been filed before the SCOTUS on an announcement made in effing March.

    I would suspect, however, that a court would look at a claim of ‘transition relief’ in the context of what was being done which would make a 2035 delay be viewed quite differently than a 2016 one.

    I see. On what basis? Just duration? What metric? How many years is too many? How about 2020? After all you’ve approved the D/A just deciding not to enforce laws because he doesn’t like them. Why does that principle not hold if there is a GOP President?

  31. Boonton says:

    I said that I’ve been hypocrisy over the many (hint: many is more than none) extensions and exemptions put in place by the left …

    Many put in place? OK then where are the lawsuits? If there have been many for a long time now you can’t claim the lack of suits is because this just happened in March of 2014.

    March! This was announced in March

    Woops back to “this just happened 24 hours ago!” as your argument. Which is it? Have there been many exemptions and delays or none until March of 2014?

    Makes no sense. Obamacare has been implemented for a long time now

    It has? Like many laws Obamacare has multiple phases so calling it ‘implemented’ isn’t quite right unless you’re talking about certain sections rather than others.

    I see. On what basis? Just duration? What metric? How many years is too many? How about 2020? After all you’ve approved the D/A just deciding not to enforce laws because he doesn’t like them.

    Which is why we have a court system. But court systems deal with actual cases. Not hypothetical ones. Of course the decisions made in actual cases ideally should be accompanied by reasoning that lawyers and lower judges can use as guidance.

    Which opens up another question, if this isn’t just about ‘doubling down on the mouth’ why no cases? I don’t mean Obamacare cases I mean discussion of cases about the Executive implementing laws. Certainly at of 50 states and a Federal Gov’t over 200 years old there haven’t been numerous times when Congress or citizens felt the Executive wasn’t carrying out the law as it was written. Certainly there must be a body of case law around this. Why are the ‘mouths’ in this discussion not supplementing their complaints with established precedents that can demonstrate they aren’t just quibbling with ‘transitional relief’? During the debate over the mandate there were plenty of commentators citing various precedents they felt supported their side and some even mounted an actual case!

  32. Mark says:

    Boonton,

    Why are the ‘mouths’ in this discussion not supplementing their complaints with established precedents that can demonstrate they aren’t just quibbling with ‘transitional relief’?

    Uhm, you do realize that what distinguishes lawyers from non-lawyers is that lawyers are conversant with, have an established background in, and experience searching and reporting case law and non-lawyers have none of that?

    Woops back to “this just happened 24 hours ago!” as your argument.

    I never said 24 hours. “Have there been many exemptions and delays or none until March of 2014?” Yes. And I specifically asked you point blank if any of those delays were orginated in the IRS or whether they were prompted by HHS or the White House. You didn’t offer any response, so I figured implication that I read into reason why the Volokh poster cited this as unusual was because of the source of the delay (specifically the IRS).

    Seriously, how hard is it to add a new wrinkle to the tax code? I mean a web site (exchanges) might prompt delays based on technical reasons, machines and systems aren’t ready. This isn’t that. This is a few pages of tax regulations. So the delay isn’t “technical”. It’s not because “they aren’t ready”. The IRS is putting in a delay to satisfy partisan political preferences. Are you sure the other delays were not prompted by other agencies and had actual reasons for the delay that weren’t complete bullcrap?

    Certainly at of 50 states and a Federal Gov’t over 200 years old there haven’t been numerous times when Congress or citizens felt the Executive wasn’t carrying out the law as it was written.

    Yah. I’m sure there are hundreds of such cases. You probably were taught them in school. So tell me about them. You’ve offered your opinion that if the Atty. General “feels” handgun restriction laws aren’t Constitutional it is within his authority to just “not prosecute” and further that there might not be anyone with standing to sue (or was your particular case about illegal immigration … perhaps the handgun is in the next administration but the detail actually isn’t important). My opinion was that the correct move for an Atty. General was to find a test case and use the courts to establish Constitutionality and not do it by “opting to not prosecute” a clearly stated law on the books.

  33. Boonton says:

    And I specifically asked you point blank if any of those delays were orginated in the IRS or whether they were prompted by HHS or the White House.

    Why is this important? Either extensions and delays are permitted by the law or they are not. If they aren’t it doesn’t matter which part of the Executive branch originated them.

    Yah. I’m sure there are hundreds of such cases. You probably were taught them in school. So tell me about them. You’ve offered your opinion that if the Atty. General “feels” handgun restriction laws aren’t Constitutional it is within his authority to just “not prosecute” and further that there might not be anyone with standing to sue

    Indeed that is the case. Prosecution is not automatic, it is a function of the Executive Branch. In that case the overriding law is the Constitution’s division of powers. Congress can pass a law making something illegal but the Executive has to summon a grand jury and indict people who break that law. Now Congress can put forth lots of tricks…say making funding for a dept. contingent on X number of cases brought or something like that but ultimately Congress cannot pass a law to perform the Executive’s job.

    My opinion was that the correct move for an Atty. General was to find a test case and use the courts to establish Constitutionality and not do it by “opting to not prosecute” a clearly stated law on the books.

    That’s fine as an opinion but it doesn’t alter the Executive’s powers. Prosecution, like it or not, is an Executive discretion.

    Now in this case a person subject to such a law does have standing to sue even though he may not be prosecuted for it by an AG who shares his beliefs. If congress passes a law saying it’s illegal to wear sneakers over Obama’s veto, and Obama’s AG declares he will not prosecute anyone….makers of sneakers and wearers of sneakers can still go to court arguing the law is unconsitutional even absent a criminal charge.

  34. Mark says:

    Boonton,

    That’s fine as an opinion but it doesn’t alter the Executive’s powers. Prosecution, like it or not, is an Executive discretion.

    I understand. I also thought the Executive swore an oath to abide and uphold the laws of the land. Not just the ones he likes. I said that was the wrong way for the Executive to act. You may think (and may be right) that this is Constitutional. It remains unethical and wrong.

    You ask: “Why is this important? […] If they aren’t it doesn’t matter which part of the Executive branch originated them.” The answer:

    Rather it constitutes a unilateral decision by the executive branch to waive an accrued tax liability.

    The IRS is a tax agency. In this case, unlike setting those oh-so-complicated “exchanges”, is it legal for the executive to do that? One might argue that no, they don’t have that right.

    Congress can pass a law making something illegal but the Executive has to summon a grand jury and indict people who break that law.

    Oddly enough, that is the method I prefer for the Executive to challenge a law he finds un-Constitutional. So put this another way, put it on a tax that you wouldn’t like (make one up) and say a President Bachman who decides to “not levy that accrued tax liability”. Are you good with that Executive power?

    makers of sneakers and wearers of sneakers can still go to court arguing the law is unconsitutional even absent a criminal charge.

    How? Against whom would they sue?

  35. Boonton says:

    I understand. I also thought the Executive swore an oath to abide and uphold the laws of the land. Not just the ones he likes. I said that was the wrong way for the Executive to act.

    An AG saying he thinks a law is unconstitutional isn’t the same as saying he doesn’t like it. The Constitution is law, the statute in question is law, since the Constitution is the greater law in that case it looses.

    The IRS is a tax agency. In this case, unlike setting those oh-so-complicated “exchanges”, is it legal for the executive to do that?

    You’re arguing that it’s not justified under ‘transitional relief’, yet you have no knowledge or expertise on that term. The IRS is not any more or less special than other Executive departments.

    Oddly enough, that is the method I prefer for the Executive to challenge a law he finds un-Constitutional. So put this another way, put it on a tax that you wouldn’t like (make one up) and say a President Bachman who decides to “not levy that accrued tax liability”.

    Actually this would no doubt tie into other laws that regulate how the IRS can determine tax liability and even forgive it under certain circumstances. This is where you need an actual case coupled with legal arguments to really say who is right here. So we’ll return at what point shall we expect to see a case? June? July? December? After that point can we dismiss the complaints as ‘all mouth’?

    How? Against whom would they sue?

    They would file suit against the AG on grounds that the law puts them at risk for criminal prosecution and therefore harms them.

  36. Mark says:

    Boonton,

    An AG saying he thinks a law is unconstitutional isn’t the same as saying he doesn’t like it. The Constitution is law, the statute in question is law, since the Constitution is the greater law in that case it looses.

    An AG is not the person who decides what is and what is not Consitutional. By Constitution, that is the SCOTUS. Him saying a law isn’t Constitutional carries as much freight as me saying it, i.e., it is just a fancy way of saying “I don’t like it”. As you pointed out the test is the courts.

    The IRS is not any more or less special than other Executive departments.

    I see. They are the same in that you will not offer any opinion absent court cases on whether an action is Constitutional or not. You have zero opinion or say on the matter until a case has been placed on the court. Seems to me a few months back you were explaining how my notions of federalism and subsidarity were not correct Constitutionally? How could you even venture an opinion on that absent a case in front of a court? Apparently you feel that we can’t talk about Constitutionality if there is not case law.

    So we’ll return at what point shall we expect to see a case? June? July? December? After that point can we dismiss the complaints as ‘all mouth’?

    Judging from other cases, it seems like one to two years is how long it takes for a Supreme Court case to develop. Is that right?

    Let’s take the President Bachmann example a bit further (I think I’m right in assuming that you’d pretty much reflexively oppose any action by a President B). We’ll make an example. Congress has passed a tax on gay couples, making a “same sex household marriage un-exemption”. President B has announced that she’s not collecting that “because they aren’t ready” (there may be other political reasons for doing so). The right (who adores her apparently) isn’t going to press a court case. The left isn’t going to either, because they don’t like this tax. But this arbitrary refusal to tax is agreed upon by all legal scholars to be a extra-Constitutional act. But it is not challenged. Odd that.

    So do you or do you support Presidents doing things you want them to do if what they do is not Constitutional? Apparently you think that is appropriate.

    You’re arguing that it’s not justified under ‘transitional relief’, yet you have no knowledge or expertise on that term

    And you are arguing that it takes more than four years to set up a tax statute. I call BS on that.

  37. Mark says:

    Boonton,

    The IRS is not any more or less special than other Executive departments.

    Do you want to name a department that should be kept less scrupulously clean of partisan endeavor and engagement? We understand when the department of HHS or Energy takes on the programs and priorities of a particular party. But the IRS needs to steer clear of that. Can you understand why that might be (I feel I have to ask this in light of the Ohio/IRS failure to do the same, which you have decided is nonsense based on non-interviews of the affected parties and merely the protestation of those in charge that it isn’t so)?

  38. Mark says:

    Sorry less should be more. I think you get my meaning …

  39. Boonton says:

    An AG is not the person who decides what is and what is not Consitutional. By Constitution, that is the SCOTUS. Him saying a law isn’t Constitutional carries as much freight as me saying it, i.e., it is just a fancy way of saying “I don’t like it”. As you pointed out the test is the courts.

    I’m not exactly sure the AG could as he wouldn’t have standing. He could put someone on trial and then get them to use unconstitionality as a defense….but then if he really thinks the law is unconstitutional he took an oath to defend the Constitution how could he try to prosecute someone for it?

    Say there was a law that said being a Christian was illegal. The AG thinks this is unconstitutional. How could he charge a Christian with a crime then? Now a random Christian could sue on the grounds that the law harms him, even if the current AG isn’t prosecuting at the moment. But I’m not sure the AG himself has standing to try to overturn the law. He may be left with no other choice than simply not prosecuting people for being Christians as he waits for the law to be either repealed or overturned.

    . You have zero opinion or say on the matter until a case has been placed on the court. Seems to me a few months back you were explaining how my notions of federalism and subsidarity were not correct Constitutionally?

    Actually I ventured an opinion that the delays are either explicitly permitted in the law itself or are permitted by tradition of how the Executive has implemented laws over history.

    Let me give you an example, you might think that when you have a contract that says something like ‘X shall be done on date Y’, then if X isn’t done by Y the contract is breached. For example, maybe a real estate contract will say something like “buyer has 3 days to accept or reject the counteroffer”. Amazingly enough he can accept on day 4 and you have to abide by the contract. On the other hand, suppose you really need to get a response in 3 days. Well you have to insert a ‘time is of the essence clause’ that basically says “this deadline actually counts for real”.

    But then in some contracts, even a ‘time is of the essence clause’ is not enough. On the other hand, some deadlines are treated as ‘hard’ even if the clause is missing (for example, in buying goods a delivery date is usually treated as ‘hard’ but a payment date is not). So in essence deadlines and dates in contracts are not traditionally viewed as ‘hard’ in many cases, but you’d have no way of knowing that if you just read a typical contract.

    I strongly suspect implementing laws follow a similiar paradign and legislatures have the ability to deploy their own version of ‘time is of the essence’ clauses when they want to make sure an executive really sticks to a deadline rather than just ‘approximately’ sticks to a deadline. If that’s the case you have to look at the law not for a clear deadline but a clear statement that the deadline is hard. Since Congress is well populated on both sides by lawyers and lawyers dominate Congressional staff I suspect this is the real reason why we aren’t going to see a case. They know it wouldn’t make it past filing with the court clerk.

    Judging from other cases, it seems like one to two years is how long it takes for a Supreme Court case to develop. Is that right?

    One to two years? The numerous Republicans in Congress who are lawyers are that unmotivated to file a sure-fire win that would draw unwanted attention and bad publicity to Obamacare right before an election? You tried to argue that the decision was motivated for electorial reasons by Obama yet don’t electorial motivations cut both ways? A case that comes to winning furition in time for the election would have to be filed now. But yet another losing case by Obamacare haters is unlikely to help the Republican cause much.

    The right (who adores her apparently) isn’t going to press a court case. The left isn’t going to either, because they don’t like this tax. But this arbitrary refusal to tax is agreed upon by all legal scholars to be a extra-Constitutional act. But it is not challenged. Odd that.

    So the right passed a bill the president they adore doesn’t want to enforce and at the same time the left joined them to pass a bill they don’t want enforced too? Your hypothetical is basically saying Congress passed a bill but no one in Congress wants the bill nor is there a single person in Congress who wants to hand the President a political defeat. While I suppose that may be possible in theory it doesn’t seem to be connected to the actual real world we live in.

    But the IRS needs to steer clear of that. Can you understand why that might be (I feel I have to ask this in light of the Ohio/IRS failure to do the same, which you have decided is nonsense based on non-interviews of the affected parties and merely the protestation of those in charge that it isn’t so)?

    well actually here we have an example of your hypothetical! The IRS tried to do the right thing (follow Congress’s law that said political groups couldn’t be tax exempt), got burned so now is essentially ignoring that law and both sides like that since it makes it easier for everyone’s pseudo-charities to get tax exempt status. This is instead of doing the ‘right thing’ which would be to either repeal the law entirely or try to write a more clear definition the IRS could use to figure out what exactly makes a political versus non-political group. And you see exactly what happens, absolutely nothing…..unless possibly some actual charity tries to mount a case that their are harmed by having to compete for tax deductible donations with political charities who are unjustly given exempt status.