Re: Life In Hell

1

I don't have any personal experience with this at all, but my understanding is that agents really only ever want to deal with each other, so if you want to buy a house the thing to do is hire an agent and let them handle everything. This doesn't seem like a very good system to me, but again, no personal experience.


Posted by: teofilo | Link to this comment | 07-21-14 10:16 PM
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In grad school we were trying to come up with the collective noun for twinks and ended up at "real estate agency." That is the closest thing to a kind remark or happy thought I have regarding real estate.


Posted by: Mister Smearcase | Link to this comment | 07-21-14 10:18 PM
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Actually I am not remotely certain that conversation happened in grad school.


Posted by: Mister Smearcase | Link to this comment | 07-21-14 10:20 PM
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Personally I'm hoping to continue to rent until some some sort of civilization-ending catastrophe causes all rental markets to collapse, at which point I'll retreat to the family compound in the desert and hunker down. I just have to make sure my mom doesn't sell the family compound first.


Posted by: teofilo | Link to this comment | 07-21-14 10:20 PM
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Teo, that's right. We're not really conducting a dedicated search, so we haven't involved an agent, because we don't want to waste anyone's time. In addition, the guy we would work with is a family friend who is out of the country right now, thus the "kind of sort of ... but will have" bit in the email. That was meant to reassure her that we're not doing this on our own. It's the audacity of several "anytime!" remarks from me and the "sorry, can't do 10!" that stood out here. I was a dick and wrote back, saying, oh, I can do anytime from 7am to 8pm, knowing that she wouldn't write back, and of course she didn't.


Posted by: ogged | Link to this comment | 07-21-14 10:24 PM
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At the risk of derailing my own thread (although really, what is there to say?), in the event of a civilizational collapse, wouldn't you want to be somewhere a little more fecund than the desert? How many scorpions can one man eat, before he can be said to be dead?


Posted by: ogged | Link to this comment | 07-21-14 10:28 PM
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Well, the desert is what I understand. I figure the more fecund areas are going to be where the serious fighting happens. And there's plenty more to eat than scorpions; rabbits, for instance, and whatever the hell they grow at NAPI other than hay (until the irrigation system shuts down).


Posted by: teofilo | Link to this comment | 07-21-14 10:32 PM
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4: Depends on where you end up. If you go somewhere with reasonable housing costs a four percent 30 percent FHA can still be the smart long term decision.


Posted by: gswift | Link to this comment | 07-21-14 10:34 PM
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8: Fair enough, but my current location certainly doesn't count as somewhere with reasonable housing costs. Admittedly it might be a good place to stick with in a civilizational collapse, given climate change and all.


Posted by: teofilo | Link to this comment | 07-21-14 10:37 PM
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I always feel like having a wind-up Victrola will be a real plus after the power grid collapses, until I am eaten.


Posted by: Mister Smearcase | Link to this comment | 07-21-14 10:52 PM
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Oo, what have you chosen for the last record, to continue squeakily after your picturesque death?


Posted by: clew | Link to this comment | 07-21-14 11:01 PM
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(What's the distribution of surviving LPs currently? Mostly 1970s and 1980s pop, from the moments before digitization? Earlier stuff cosseted by older people? Jazz?)


Posted by: clew | Link to this comment | 07-21-14 11:02 PM
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Well a Victrola won't play LPs, you know. So maybe a 78 of Chaliapin singing the death of Boris or something?


Posted by: Mister Smearcase | Link to this comment | 07-21-14 11:06 PM
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1 is correct. Realtors loathe dealing with people who are acting as their own realtor. There are actually some explicable reasons for this, mainly along the lines of non-realtors often having wildly out of line expectations of the housing market and of the properties at issue (buying or selling).


Posted by: Lord Castock | Link to this comment | 07-21-14 11:07 PM
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schooled.


Posted by: clew | Link to this comment | 07-21-14 11:58 PM
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Come the apocalypse, or really anything distressing, I am so hightailing it for the Yukon. Sure, the one piece of property I have any distant claim on will be uninhabitable according to civilized measures most of the year. Yet: there will be a lot of wood available to cut down and burn come the apocalypse, and the parcel will probably support a least a few other structures. Water right off the White Pass, lake trout out the front door, a caribou crossing nearby--global warming to ensure the leafy groceries would simply be a bonus.

Of course, in the event of the kind of catastrophe that would make the Yukon life look good as a permanent solution, it might be difficult to get there, but I'd like you all to consider it.

I completely commiserate with Ogged about the realtor; it's hard to believe that intermediaries are necessary when you see the property--there!--in front of you! Blandings and I did a bunch of apartment tours to help him move, and a lot of it was asking the agent to find a person to open the door so that one could decide whether it made sense to use the broker to approach the management company to lease the apartment from the owner, whoever that might be. And even in this renters' hell, if one found a place and got lessee's rights to it, and then the ceiling started to list, it would be possible just to call someone, harangue them, and have the issue be fixed soonish. That's a nice feeling, even if getting there involves more intermediaries and paperwork than seems even possible from humankind.

Anyway, remember, everyone: the total population of the Yukon is about 30,000 people, for a territory the size of, what? California? They grow lots of raspberries and really big cucumbers, IYKWIM and I'm not sure I do. And if that gets filled up, head to the Northwest Territories: you could just put a dome over the blasted diamond mines and call it a prototype for the terraforming of an alien planet.

You have options!


Posted by: Jackmormon | Link to this comment | 07-22-14 12:01 AM
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Alaska is also adjacent to the Yukon, and probably has more useful resources than the NWT. No diamonds, though.


Posted by: teofilo | Link to this comment | 07-22-14 12:06 AM
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What is the current law about squatters/homesteaders in AK? My understanding is that in YT, they basically cede it to you after three or four years, barring previous claims, but that the RCMP will be aggro about ousting you beforehand (mostly for your own safety).

And yes, I shouldn't be up this late.


Posted by: Jackmormon | Link to this comment | 07-22-14 12:13 AM
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That is... not how it works in Alaska. The US doesn't really have homesteading anymore in any form.


Posted by: teofilo | Link to this comment | 07-22-14 12:16 AM
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Well, I could have it wrong for the Yukon as well. Relatives point out squatter cabins and talk about their own understanding of the law, and the bias of the family is probably towards populating "empty" spaces. It is such a lovely fantasy compared to Manhattan real estate--but brrrr.

Anyhow, I should try to sleep now. I've started to play duplicate bridge on Monday evenings after work, and it leaves me all wired and crazy.


Posted by: Jackmormon | Link to this comment | 07-22-14 12:28 AM
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Well, there's empty and then there's empty. In Alaska most white people who want to "get away from it all" don't venture too far from the road system, regardless of what sort of title they do or don't have to the land they live on. Once you venture out into the areas that are only accessible by air it's a different world.


Posted by: teofilo | Link to this comment | 07-22-14 12:32 AM
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17. After the apocalypse, the only remaining value for diamonds will be to make replacement styli for your Victrola.

OP: so, what was the lead situation? I noticed the careful lack of a response to that.


Posted by: chris y | Link to this comment | 07-22-14 1:29 AM
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One of the most memorable parts of Bob Marshall's Arctic Village is when he plays Bolero for the Eskimos in Wiseman on his hand-cranked Victrola and they're super into it because it reminds them of their traditional music. (Note: Marshall arrived in Wiseman on an airplane. It's fossil fuels all the way down, at least when it comes to white people.)


Posted by: teofilo | Link to this comment | 07-22-14 1:39 AM
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For lead, you're either going to be told "it's post-1978" (which you could already have figured out) or get stony silence as everyone carefully maintains their ignorance and thus avoids any obligation to delead. Not really a useful question to ask.


Posted by: Nathan Williams | Link to this comment | 07-22-14 2:00 AM
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23. That had me googling Inuit traditional music. You'd need an exceptional imagination to think Bolero sounds much like it as far as I can see. Sure, both based on repetitive riffs, but so is most rock, and arguably a lot of baroque fugues. I think they just thought it was a good piece of music.


Posted by: chris y | Link to this comment | 07-22-14 2:19 AM
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re: 12

re: LPs, an awful lot of new releases now have vinyl pressings. In fact, vinyl + a download code for FLAC or MP3 is a pretty common release format. Dwarfed by CDs and standard MP3 downloads, but the numbers are decent nonetheless.

Not that helps [as mentioned] on the Victrola front.


Posted by: nattarGcM ttaM | Link to this comment | 07-22-14 3:08 AM
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what have you chosen for the last record, to continue squeakily after your picturesque death?

We don't know which one, but we know it has to be a contralto aria: http://www.unfogged.com/archives/comments_12279.html#1474334


Posted by: ajay | Link to this comment | 07-22-14 3:28 AM
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24: for our place, I sort of breezily asked "so, it hasn't been tested, but it's probably all full of lead, right?" and the seller's agent was sort of like "aw, well, you know." I think he appreciated my attitude? Turns out it's only sort of all full of lead.


Posted by: Sifu Tweety | Link to this comment | 07-22-14 4:05 AM
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29

How are you doing for asbestos?


Posted by: chris y | Link to this comment | 07-22-14 4:07 AM
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Our house is literally covered in it, as a matter of fact.


Posted by: Sifu Tweety | Link to this comment | 07-22-14 4:13 AM
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That's OK, as long as it's in good condition. Just don't let it rot.


Posted by: chris y | Link to this comment | 07-22-14 4:15 AM
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Yeah, it's fine. It's not particularly friable. We aren't particularly worried about lead, either; we don't let Zardoz chew on the exterior trim, which she is mostly okay with.


Posted by: Sifu Tweety | Link to this comment | 07-22-14 4:17 AM
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So maybe it was the lead question that sunk me. I don't speak dishonest broker, though I suppose I should learn.


Posted by: ogged | Link to this comment | 07-22-14 4:43 AM
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34

After the apocalypse, hearts are always trump.


Posted by: Moby Hick | Link to this comment | 07-22-14 4:48 AM
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33: Maybe you don't have the type of kids who shouldn't ingest lead. Anyway, there is a brochure about it. I got a copy nearly every time I had an interaction with a human while looking for a house.


Posted by: Moby Hick | Link to this comment | 07-22-14 4:50 AM
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Yeah, ours came with a form saying that it had never been tested. Of course, "never been tested" in practice means "tested with those home kits and full 'o lead".


Posted by: Sifu Tweety | Link to this comment | 07-22-14 5:01 AM
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This is a mid-50s house being sold by retirees, so probably full of lead. So I guess she has me filed as a high-maintenance, flying-solo buyer, and this house, at this price, is going to sell in a flash, so she doesn't have to bother with me. Her "can't do 10!" response is still stunning--if confronted with dilemma, be mendacious.


Posted by: ogged | Link to this comment | 07-22-14 5:17 AM
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"I can do X o'clock but pretty much any time on day Y works, let me know" almost universally gets "sorry, can't do X" responses, in my experience with students, colleagues, whoever; no one reads past the first five words of an e-mail.


Posted by: essear | Link to this comment | 07-22-14 5:24 AM
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37: Why don't you go to the open house and bring a home lead test kit?


Posted by: Moby Hick | Link to this comment | 07-22-14 5:27 AM
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It would be a good opportunity to wear my hazmat suit.


Posted by: ogged | Link to this comment | 07-22-14 5:30 AM
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almost universally gets "sorry, can't do X" responses

That. Is. Annoying.


Posted by: ogged | Link to this comment | 07-22-14 5:34 AM
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42

Anyway, the Rust Belt has some really old houses. And also Boston, which I guess isn't in the Rust Belt.


Posted by: Moby Hick | Link to this comment | 07-22-14 5:42 AM
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"I can do X o'clock but pretty much any time on day Y works, let me know" almost universally gets "sorry, can't do X" responses, in my experience

This is also my experience, which is why I usually turn it around as: "I can do pretty much any time on day Y. Just to toss something out, what about X o'clock?" That seems to get more useful responses. People are weird.


Posted by: urple | Link to this comment | 07-22-14 5:46 AM
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Apparently, in ten years the average age of a house in Cleveland increased by ten years. This means either no new houses were built or that they built some 100 year old houses to offset the new ones they did build.


Posted by: Moby Hick | Link to this comment | 07-22-14 5:47 AM
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I know it's an average, but my reaction to the chart in 42 is "I've never lived in a house that new!" (less than 55 years old).


Posted by: Nathan Williams | Link to this comment | 07-22-14 5:49 AM
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46

Or Cleveland could have knocked down some newer houses and left old ones standing.


Posted by: Nathan Williams | Link to this comment | 07-22-14 5:50 AM
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The chart is based on MSAs, not the cities proper. I know that for Pittsburgh the average house in the city is far older than 55 years.


Posted by: Moby Hick | Link to this comment | 07-22-14 5:50 AM
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I wonder what it is in London, given the sterling efforts of the Luftwaffe at clearing older buildings.


Posted by: nattarGcM ttaM | Link to this comment | 07-22-14 5:53 AM
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46 is right, of course. They've been knocking down abandoned houses. I went to see a talk by the guy who runs the data system for their land bank. The really old stuff that lasted to 2000 was going to last to 2010 because it was the nicest of the old stock and kept up. The cheap junk from the middle of the 20th century was being foreclosed, abused, and pushed over.


Posted by: Moby Hick | Link to this comment | 07-22-14 5:54 AM
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I know it's an average, but my reaction to the chart in 42 is "I've never lived in a house that new!" (less than 55 years old).

The house I grew up in was (just) less than 55 years old when we moved in. The weighted average age of the places I've lived in is roughly 117 years, apparently, erring on the side of younger buildings. This is admittedly skewed by spending half of ten years living in 600 year old buildings.


Posted by: Ginger Yellow | Link to this comment | 07-22-14 5:56 AM
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The house I grew up in was early 1950s [post-war council prefab, made out of sheet metal], then an early 90s student residence, then a load of 19th century Glasgow tenements, and 19th century Oxford terraced houses. The places I've lived in London have been 1970s, 1880s, and a new build. I've never lived [although I have worked] in any genuinely old buildings.


Posted by: nattarGcM ttaM | Link to this comment | 07-22-14 6:13 AM
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The house I grew up in was probably about 25 years old when we moved in (standard Lutyens style semi). These days it's a classic, and AFAIK used for student multiple occupancy. All the houses I've owned have been 100 years old or more.


Posted by: chris y | Link to this comment | 07-22-14 6:15 AM
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So maybe it was the lead question that sunk me. I don't speak dishonest broker, though I suppose I should learn.

Discrimination! Sue!

(A friend's downstairs neighbor in their condo association sued one landlord and threatened to sue a couple of others for not renting to them while she was pregnant. Now she wants to delead the backyard of the condo building, which no one else wants to do, and friend thinks she is considering suing to get it done. Christ.)


Posted by: Blume | Link to this comment | 07-22-14 6:25 AM
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threatened to sue a couple of others for not renting to them while she was pregnant

More people should do that. I usually hear the opposite story - people who have or are obviously about to have a kid who are turned down for a place because of the kid (sometimes it's not even subtle). Of course, they have or are about to have a kid and are busy househunting, so smacking the landlord around for discrimination is low on their priority list and the landlord continues to get away with it.


Posted by: Nathan Williams | Link to this comment | 07-22-14 6:34 AM
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Ogged, let me see if I understand your position. You send off the "you won't make money from me, but give me your time" vibe and shockingly she doesn't want to deal?


Posted by: FL | Link to this comment | 07-22-14 6:37 AM
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I usually hear the opposite story - people who have or are obviously about to have a kid who are turned down for a place because of the kid (sometimes it's not even subtle)

Hang on, isn't that the same story? Or am I misunderstanding pronoun references?


Posted by: Ginger Yellow | Link to this comment | 07-22-14 6:38 AM
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54: a coworker asked her landlord about lead when she was pregnant and the landlord came back with "oh hey we're renting your place to a family member get out." It was so shady, where by "so shady" I mean "completely illegal" but she didn't want to fight it.


Posted by: Sifu Tweety | Link to this comment | 07-22-14 6:38 AM
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Sorry, the "opposite" is dropping it on the floor and letting the landlord get away with it, instead of suing/threatening to sue. Probably not a great phrasing on my part.


Posted by: Nathan Williams | Link to this comment | 07-22-14 6:39 AM
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57: The landlord is supposed to hand her the brochure and clam up, I think.


Posted by: Moby Hick | Link to this comment | 07-22-14 6:41 AM
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Ooh I have another lead remediation story (that ogged will no doubt enjoy): another coworker just bought a place. Because it had been dinged twice for lead violations he decided to do remediation. Inspector pointed out a bunch of things to do. First contractor he called said "oh well yeah you have to do all those, but there's all this other stuff, too. It'll be $70k". Coworker sorta swallowed hard, but oh well. Just to check he brought in another contractor, who said "oh, yeah, no, you just have to do what the inspector said. $25k."

For fun, he called the first contractor back, who first gave him this elaborate, extended sob story about how if he really cared about his children he would do this thing and how could he be such a shitty parent and then said "oh, wait, did I remember to tell you about the first-time customer half-off discount?" Sure, guy.


Posted by: Sifu Tweety | Link to this comment | 07-22-14 6:43 AM
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In MA, if a kid under six is living in the unit (including if they're born/adopted/whatever after the tenant moves in), the landlord is obligated to test and de-lead, including paying to relocate the tenants while the deleading is being done.


Posted by: Nathan Williams | Link to this comment | 07-22-14 6:46 AM
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Labs, I completely understand where she's coming from (a place of bleak, soulless depravity), but the cheap mendacity of "can't do 10" is echt broker.


Posted by: ogged | Link to this comment | 07-22-14 6:46 AM
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Oh. Being sued for discrimination has got to be much cheaper than that.


Posted by: Moby Hick | Link to this comment | 07-22-14 6:47 AM
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63 to 61.


Posted by: Moby Hick | Link to this comment | 07-22-14 6:48 AM
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You have to remove the lead and not just abate the danger by making sure the interior paint is maintained? With housing prices like around here, that's basically saying you either have to find a way to keep kids out of the house or tear down the house.


Posted by: Moby Hick | Link to this comment | 07-22-14 6:52 AM
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Uh, oops, 1.5 car garage. No real room to expand. Dealbreaker!


Posted by: ogged | Link to this comment | 07-22-14 6:53 AM
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65: you can cover it in some circumstances. It's not just the interior, though. You also have to either delead or replace the windows and do exterior trim/railings etc. that are within reach. I think that's all? Dunno. Hopefully I won't have to learn more.


Posted by: Sifu Tweety | Link to this comment | 07-22-14 6:55 AM
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With housing prices like around here, that's basically saying you either have to find a way to keep kids out of the house or tear down the house.

Not to mention the highway robbery that is lead remediation, because hey, it's the law! You gotta do it!


Posted by: Blume | Link to this comment | 07-22-14 6:56 AM
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66: If you get two Minis, it's a two car garage.


Posted by: Moby Hick | Link to this comment | 07-22-14 7:00 AM
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67: Also remember that you want to get up anything that might be lead dust with a damp rag you'll dispose of rather than cleaning dry, which just spreads the lead into the air.


Posted by: Thorn | Link to this comment | 07-22-14 7:02 AM
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60: I just had something similar happen with a bathroom remodel bid. We had a guy come in about 18 months ago and give us an estimate on a basic remodel that would be full re-tile, new tub and faucets, minus a toilet replacement as I'd recently put in a new one and I was also planning to pick and install the vanity myself. The quote was $2950. We had some unexpected car repairs and stuff that depleted our remodel fund so now we've saved up that money again. In the meantime the shower valve is getting old and needs to be replaced and I've decided fuck it, I'll just have them do the vanity as well. I don't think he remembers he'd been here before because he came out to give me a bid on the exact same job as before but now with a replacement vanity and replacing the shower valve. And nothing extravagant, maybe $500 on the vanity and a new shower valve for the part is like $100. The bid he just emailed me? $8647. I'm still waiting to hear back on my reply along the lines of "hey, remember this bid from last time? Seems like kind of a big jump."


Posted by: gswift | Link to this comment | 07-22-14 7:02 AM
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Deep in the archives is the story of my son's elevated lead blood test level and subsequent test of apartment (free inspection by the state! If you have a young child, just call them and they'll come!) which found lead and landlord was furious but had to pay to remediate which involved replacing all the windows $$$. I felt a little bad because I'm almost certain the lead exposure he'd gotten wasn't caused by any of those Windows, so in some sense it was wasted expense, but not too bad because I'm almost certain it WAS caused by an exterior paint job that was done in a very not-lead-safe -work-practices manner, by dry sanding away all of the old paint, which was known to have lead , without giving us any warning and we had window fans literally sucking in the exterior air the whole time and our son's high chair was right in front of one of those fans. Still sort of pissed about that. Massachusetts. And so we got to stay in a bed and breakfast for the week. It was owned by the landlord's friend, so I'm sure he got a deal, but it wasn't a bad place and could have been much worse. ( the requirement that the ll pay to house you somewhere else during the remediation only requires them to put you up in some reasonable accommodation within I think 5 miles of your regular apartment. If your're dependent on public transportation , being dropped in a random location up to five miles away can easily be basically completely unworkable. This was a much longer walk than usual but not too bad.)


Posted by: urple | Link to this comment | 07-22-14 7:11 AM
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12, 26: LP sales are in the rise! I hear from the better half it's consistent over time & across genres! If you think about the, the format has been remarkably stable for a very long time, compared with various forms of tape, cds, etc. The playback technology isn't going further into ash heap o history, it easily supports a wide range of quality, and for those who'll always want a physical object rather than just download or stream its likely to emerge the winner.

Nice objets, too.


Posted by: dairy queen | Link to this comment | 07-22-14 7:14 AM
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They have to de-lead or cover up leaded paint with special encapsulating paint, as long as the underlying leaded paint is in good shape and not peeling itself.


Posted by: Nathan Williams | Link to this comment | 07-22-14 7:15 AM
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I felt a little bad because I'm almost certain the lead exposure he'd gotten wasn't caused by any of those Windows, so in some sense it was wasted expense, but not too bad because I'm almost certain it WAS caused by an exterior paint job that was done in a very not-lead-safe -work-practices manner, by dry sanding away all of the old paint, which was known to have lead , without giving us any warning and we had window fans literally sucking in the exterior air the whole time and our son's high chair was right in front of one of those fans.

Yeah, I mean, the reason we're really not too worried about it is that lead paint in windows etc. is only a problem if the kid actually eats it (and more than a little). Lead in the soil and poorly thought through cleaning/renovation are much bigger problems. It does freak me out a little when she grabs the front door jamb or whatever, but honestly it's vanishingly unlikely to be a big deal. If we ever end up pulling the asbestos off the outside (the cool old clapboard is underneath, we think) there might be bigger issues.


Posted by: Sifu Tweety | Link to this comment | 07-22-14 7:16 AM
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OK, duly noted. Next time I say "free anytime" and get a "what time?" response, my reply will take the form of:

I could do any of the following times. Please pick the first one that works for you.
7:00 AM
8:00 AM
9:00 AM
10:00 AM
11:00 AM
12:00 PM (Noon)
1:00 PM
2:00 PM
3:00 PM
4:00 PM
5:00 PM
6:00 PM
7:00 PM
8:00 PM


Posted by: benquo | Link to this comment | 07-22-14 7:17 AM
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76: that won't work either.


Posted by: Sifu Tweety | Link to this comment | 07-22-14 7:19 AM
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Actually, that sort of thing works better with normal people as well, since "anytime" has two common flaws. First, it often isn't meant literally, there's some hidden reasonableness criterion which is only revealed once you propose a time to the "any time" person. Second, it makes it hard to pick a time, since "any" isn't one - proposing enumerated options is less cognitively demanding on your correspondent than proposing a range.

So I generally schedule things by creating a whenisgood.net event, and other folks I know have had success with similar "here is an enumerated list of times I am free, pick one" systems.


Posted by: Benquo | Link to this comment | 07-22-14 7:20 AM
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She wrote back! There's a water main break on the strert and they're not showing today. In so many ways, unbelievable.


Posted by: ogged | Link to this comment | 07-22-14 7:20 AM
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77: What's the broken response to that?

(It does actually work a little better with people who aren't actively trying to fuck up the interaction, IME.)


Posted by: Benquo | Link to this comment | 07-22-14 7:21 AM
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Fucking DC Circuit just screwed millions of people. Too mad for pause play.


Posted by: Minivet | Link to this comment | 07-22-14 7:22 AM
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73. You need to meet my brother in law.


Posted by: chris y | Link to this comment | 07-22-14 7:23 AM
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81: what happened?


Posted by: heebie-geebie | Link to this comment | 07-22-14 7:24 AM
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80: it won't work because it still presents the person with a relatively complex decision point. I always just make up a time even if I'm free all day.


Posted by: Sifu Tweety | Link to this comment | 07-22-14 7:24 AM
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Sided with Halbig - no insurance subsidies in states without their own state exchanges. Means health reform effectively only exists in less than half the country, combined with the Medicaid opt-out.


Posted by: Minivet | Link to this comment | 07-22-14 7:27 AM
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Certainly headed right to appeals though, or?


Posted by: Blume | Link to this comment | 07-22-14 7:30 AM
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Why isn't. 85 on any news site?


Posted by: urple | Link to this comment | 07-22-14 7:30 AM
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It's on Vox.


Posted by: dalriata | Link to this comment | 07-22-14 7:31 AM
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87: Lord knows. I found info by googling "dc circuit decision" and limiting my results to the past hour. I got the best info from some rightwing blog crowing over how great a victory this is for textualism.


Posted by: Blume | Link to this comment | 07-22-14 7:31 AM
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I thought they could ask for en banc first.


Posted by: JP Stormcrow | Link to this comment | 07-22-14 7:34 AM
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I follow the Twitter feeds that were anxiously awaiting the decision several mornings in a row, and picked up the habit.

Looks like there's a decent chance of en banc vacating, but I'm still mad. Every half-cocked argument the flunkies come up with gets retroactively incorporated into judicial philosophy.


Posted by: Minivet | Link to this comment | 07-22-14 7:35 AM
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I don't understand why these plaintiffs have standing.


Posted by: urple | Link to this comment | 07-22-14 7:38 AM
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Indeed, the Halbig plaintiffs -- individuals and small businesses in six states that didn't establish state exchanges -- objected that, without the tax credits, they could have claimed exemption from the individual mandate penalty because they would be deemed unable to pay for the coverage.

from here.


Posted by: heebie-geebie | Link to this comment | 07-22-14 7:45 AM
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We have the right to demand our insurance offers be restored to unaffordability!


Posted by: Minivet | Link to this comment | 07-22-14 7:49 AM
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If they would just slash their income, they could claim unaffordability under the current structure. FREEDOM.


Posted by: heebie-geebie | Link to this comment | 07-22-14 7:51 AM
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So stupid. I think it's extremely likely that the en banc DC Circuit will fix it, but then of course there's the Supreme Court behind that. (Although I think there's a good chance they'll stay out of it unless one of the other cases coming up on this question goes the other way. Which I suppose eventually will happen.)


Posted by: potchkeh | Link to this comment | 07-22-14 7:52 AM
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Leaving aside the court, this seems like an unforced error the part of the drafters. I get that the law was really long, but one assumes there were a bunch of staffers.


Posted by: Moby Hick | Link to this comment | 07-22-14 7:54 AM
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That does indeed seem to be how they ruled on standing (see http://t.co/RiNcVqXbsl, PDF decision). With the subsidies, one of the plaintiffs, a West Virginian with an income of 20K, can choose to buy insurance for $21/year or pay the individual mandate. Without the subsidies, he can choose to either pay much more for insurance or go uncovered. This apparently constitutes an injury.


Posted by: Minivet | Link to this comment | 07-22-14 7:55 AM
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98: Yep. Just coming to quote the following from the opinion:

The availability of credits on West Virginia's federal Exchange therefore confronts Klemencic with a choice he'd rather avoid: purchase health insurance at a subsidized cost of less than $21 per year or pay a somewhat greater tax penalty.


Posted by: JP Stormcrow | Link to this comment | 07-22-14 7:57 AM
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97: Writing a truly unambiguous page is hard, let alone something this length. And more people working on it doesn't help much, for obvious coordination reasons. You can call it an unforced error, but it's really not unusually bad drafting by the standards of pretty much any other statute out there -- you have to read it maliciously to create the problems.


Posted by: LizardBreath | Link to this comment | 07-22-14 7:59 AM
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21 fucking dollars per year, he's willing to sink healthcare for tens of thousands of people who really want it. He deserves to be punched.


Posted by: heebie-geebie | Link to this comment | 07-22-14 7:59 AM
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I endorse 101. Punch the fucker right in the throat.


Posted by: togolosh | Link to this comment | 07-22-14 8:01 AM
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100: If they didn't assume the law would be read maliciously, they were dangerously naive.


Posted by: Moby Hick | Link to this comment | 07-22-14 8:01 AM
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I'm sure they did assume such a thing, and this wording quibble just seems vanishingly impossible to anticipate.


Posted by: heebie-geebie | Link to this comment | 07-22-14 8:05 AM
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He deserves to be punched.

Well, what he really deserves is to get some debilitating disease and not have any health insurance. Not that I wish that on him, or anyone.


Posted by: Blume | Link to this comment | 07-22-14 8:06 AM
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Yeah, as soon as I read the above, I knew ARR was going to be involved. Maybe he should re-read his opinion in Basardh v. Gates.


Posted by: CharleyCarp | Link to this comment | 07-22-14 8:06 AM
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What's ARR?


Posted by: heebie-geebie | Link to this comment | 07-22-14 8:07 AM
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The problem isn't that they were naively cavalier about it, the problem is that it's really, really, really hard to draft something malicious-reading proof. I mean, the "Exchanges established by the state" is imperfect drafting, but it's at the level of imperfection that's in every complex statute I've ever had to interact with seriously. While in theory a statute could be drafted perfectly, in practice they very, very rarely are.


Posted by: LizardBreath | Link to this comment | 07-22-14 8:08 AM
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Also this part of the law was changing all the time. Example: Exchange eligibility goes down to 100% FPL instead of 133%, even though before the SCOTUS decision on Medicaid nobody in the 100-133 range would have been eligible. Reflects, I think, that an earlier draft put the Medicaid / Exchange transition point lower.


Posted by: Minivet | Link to this comment | 07-22-14 8:09 AM
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107: It's Judge Randolph's initials.


Posted by: LizardBreath | Link to this comment | 07-22-14 8:10 AM
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107 -- Senior Judge Randolph, who wrote the concurring opinion.


Posted by: CharleyCarp | Link to this comment | 07-22-14 8:10 AM
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And to be clear, it's normal for litigants to read a statute maliciously. It's not normal for judges to do the same.


Posted by: LizardBreath | Link to this comment | 07-22-14 8:12 AM
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Realtors love, love, love people who don't have realtors - as long as they don't have any plan to get a realtor.

In an extremely competitive market, we went to an open house and when we made an offer at asking price, the realtor immediately shut down the house to accept. He got double commission because we didn't have a realtor. And we got the house.

On the three occasions we have used realtors (to sell, to rent, and to buy) they did a fine job for us.


Posted by: politicalfootball | Link to this comment | 07-22-14 8:14 AM
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How does $21/year constitute hardship? Can standing really be so trivial?


Posted by: heebie-geebie | Link to this comment | 07-22-14 8:17 AM
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One hell of a first-world-problem in the OP.


Posted by: JP Stormcrow | Link to this comment | 07-22-14 8:18 AM
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Oh man, that's a nice little fuck you at the end there.

We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still.

Posted by: potchkeh | Link to this comment | 07-22-14 8:19 AM
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I don't think it's $21/year. His injury is the fine for going uninsured when you have affordable insurance available, minus the $21/year. That is, his position is "I'm not going to buy insurance whatever you tell me, because I'm a crazy person. Because of the subsidies, the law views insurance as affordable to me ($21/year! Cheap!), so I will be fined for not buying insurance. In the absence of the subsidies, insurance wouldn't be affordable to me, so I wouldn't be subject to the fine, and would be better off by the amount of the fine." Still stupid, but slightly more money.

But there really isn't a de minimis line for standing, as far as I know. If you can point to an injury, it's an injury.


Posted by: LizardBreath | Link to this comment | 07-22-14 8:21 AM
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114: I actually agree that there's injury supporting standing there--you don't (and shouldn't) need to reach a particular dollar threshold. There are some other potential standing issues (adequacy of alternate remedy) that I haven't formed a strong opinion on. But the decision on the merits is the problem here.


Posted by: potchkeh | Link to this comment | 07-22-14 8:23 AM
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Per another recent decision, wouldn't having to fill out the form verifying unaffordability also be a "substantial burden"?


Posted by: Minivet | Link to this comment | 07-22-14 8:23 AM
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117: the decision frames the injury has having to choose between paying $21/year for insurance or a "somewhat greater tax penalty".


Posted by: potchkeh | Link to this comment | 07-22-14 8:25 AM
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Separate thread on the Health Insurance decision, maybe?


Posted by: Bostoniangirl | Link to this comment | 07-22-14 8:27 AM
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Haven't read the opinion yet and can't now. Did our good old partisan hack friend Randolph rely on the demonstrably false legislative history he was provided with by a knowingly lying Vollokh Conspiracy member (there was briefing that claimed the ACA adopted another statute's provisions, which was used to support the bonkers statutory reading that everyone involved agrees is wrong, that was made up out of whole cloth by the former Juan Non-Volokh). Not that the opinion wouldnt be wron without that, but that was a particularly egregious bit of bullshit. These people are evil, lawless monsters, though thank fucking God the Senate called the bluff on the filibuster so they don't control the DC Circuit.


Posted by: Robert Halford | Link to this comment | 07-22-14 8:31 AM
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The opinion cites a Bob Jones U.case for the identica lamount: (noting that Bob Jones University sued for a tax refund of $21.00).


Posted by: JP Stormcrow | Link to this comment | 07-22-14 8:31 AM
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That's not even close to the most ridiculous thing Bob Jones ever did for money.


Posted by: Moby Hick | Link to this comment | 07-22-14 8:33 AM
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122: That comes up, but I don't think it was necesarily germane. Just more FUD for the fire.


Posted by: JP Stormcrow | Link to this comment | 07-22-14 8:33 AM
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And White House says health care subsidies will keep flowing despite court decision - @AP So it will just be more for the "lawless overreach of the most lawless black man ever to occupy the White House" narrative.


Posted by: JP Stormcrow | Link to this comment | 07-22-14 8:36 AM
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(For those who aren't going to look it up, Basardh can be summed up as 'yeah, yeah, we know what the words of the statute literally say, but what's important here is that we look at what Congress was trying to accomplish.')


Posted by: CharleyCarp | Link to this comment | 07-22-14 8:37 AM
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122: I don't know the backstory about where it came from, but footnote 11 considers and rejects some bullshit legislative history (that Sen. Nelson intentionally horsetraded for subsidies to be unavailable in states with federal exchanges). The opinion relies on the 'plain meaning' of the statute, not the legislative history.


Posted by: LizardBreath | Link to this comment | 07-22-14 8:38 AM
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There must be some supreme court precedents on what you're supposed to do with obvious drafting errors in laws, right? What do they say?


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 07-22-14 8:40 AM
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122, 125, 128: I think what Halford is talking about is the discussion of the HELP bill on p. 33. 125 is right, they mention it but don't really make much of it.

129: Doesn't matter, because the panel majority didn't see any obvious drafting error.


Posted by: potchkeh | Link to this comment | 07-22-14 8:42 AM
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So if this makes it to the Supreme Court and, I assume in completely cynical way reflecting a total lack of respect for the institution, they uphold it what are the likely consequences?

Assuming that the Supreme Court wouldn't just find some openly dishonest way to repeal the entire law, the possibility of a death-spiral looks significant. But wouldn't that mostly result in insurance companies avoiding the federal exchanges as much as possible, and people who would have bought plans on the exchanges just having to go without insurance and pay a penalty that subsidizes people in responsible states? Or would the penalty be relaxed and the results end up, roughly, 'healthcare for some (states), miniature American flags for others'?


Posted by: MHPH | Link to this comment | 07-22-14 8:46 AM
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129: There's a canon of interpretation saying that you read a law to avoid absurd results. Of course, every canon has an opposing canon, and the courts get to pick which one they say applies.


Posted by: LizardBreath | Link to this comment | 07-22-14 8:47 AM
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Griffith wrote the opinion. Randolph just added a short concurrence, basically, "Fuckin' A!"


Posted by: JP Stormcrow | Link to this comment | 07-22-14 8:48 AM
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There are currently 3 categories of exchanges:

(1.) State-based exchanges;
(2.) Federal exchanges; and
(3.) Partnership Exchange

It sounds like individuals living in states with Partnership Exchanges will also lose their subsidies, which seems weird.

Also, there's a map which says that in Utah the Feds are running the exchange for individuals, but the state is running it for small businesses. Why would Utah do that?


Posted by: Bostoniangirl | Link to this comment | 07-22-14 8:53 AM
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Anyway, federalism is the problem, and should have been killed with fire when we were reassembling the country after the Civil War.


Posted by: LizardBreath | Link to this comment | 07-22-14 8:55 AM
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135 is right. The fact that Reconstruction was rejected by the Supreme Court despite the laws having been passed by the same Congress which passed the 13th, 14th and 15th amendments tells you almost everything you need to know about how fucked up the SCOTUS can be.


Posted by: Bostoniangirl | Link to this comment | 07-22-14 9:01 AM
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So if this makes it to the Supreme Court and, I assume in completely cynical way reflecting a total lack of respect for the institution, they uphold it what are the likely consequences?

HHS could make a process where states can just sign a piece of paper saying "We hereby establish an Exchange pursuant to section 1311 and delegate all operations to the federal government," making it as easy as possible to let healthcare.gov do it. It would be even more costless and frictionless than Medicaid expansion (where they have to pay some for admin and eventually will pay 10% of the expansion), so politics would be the only reason to reject it - but a lot of states, we've seen in the Medicaid case, would still not care.

To 134. I'm not sure why Partnership exchanges would be exempted - there the state makes an affirmative choice to start an exchange where the federal government does most of the work.

It would choke off most affordable coverage in the rejecting states, yes, though possibly the lack of subsidies would drive away more people than the ensuing death spiral. But it wouldn't create problems in the accepting states - just as you say, health care in some states, American flags in others.


Posted by: Minivet | Link to this comment | 07-22-14 9:02 AM
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I'd like to see this used politically. 'The court decision will cost X people a total of Y in taxes -- and can be fixed with a one sentence bill in Congress. Rep. Z refuses to vote for the bill.'


Posted by: CharleyCarp | Link to this comment | 07-22-14 9:08 AM
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And Senator X refuses to even vote to close debate so that the majority can fix this sentence.


Posted by: Moby Hick | Link to this comment | 07-22-14 9:10 AM
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138:

I imagine a world in which the people without subsidies get so angry about the places with exchanges receiving subsidies that they manage to defund the whole thing.


Posted by: Bostoniangirl | Link to this comment | 07-22-14 9:10 AM
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27: Aw, they don't make threads like that anymore!


Posted by: Mister Smearcase | Link to this comment | 07-22-14 9:12 AM
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I am having a shitty, shitty day for other reasons, and this is upsetting me even more.

I live in a state with its own exchange and a program that predates Obamacare, and this still leaves me in fear of losing access to healthcare.


Posted by: Bostoniangirl | Link to this comment | 07-22-14 9:13 AM
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The court decision will cost X people a total of Y in taxes

It's not taxes that will go up, it's premiums. But I agree in wanting the politics front-and-centered -- if the decision eventually is put into effect, healthcare.gov will have to tell people their premiums will quintuple, and I want those notices to remind everyone Republicans were responsible.


Posted by: Minivet | Link to this comment | 07-22-14 9:23 AM
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(David Hare makes nice apocalyptic use of Orfeo's lament as recorded by Kathleen Ferrier in The Designated Mourner but I'm not sure that's what I want for my swan song as I think she sings it in English and ain't nobody got immediately-pre-death time for opera in translation.)


Posted by: Mister Smearcase | Link to this comment | 07-22-14 9:26 AM
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143: won't it also mean that a lot more people will be paying the tax formerly known as the individual mandate penalty, because it'll be cheaper than unsubsidized exchange coverage?


Posted by: potchkeh | Link to this comment | 07-22-14 9:32 AM
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145: Yeah, you're right, in some cases the mandate will be charged. But for many more households the premiums are probably going to go up above the "unaffordability" threshold, nullifying the mandate for them.


Posted by: Minivet | Link to this comment | 07-22-14 9:47 AM
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Blaming it on Republicans is going to be tough for an uninformed audience in the face of Republican messaging. This case wasn't (transparently to someone who doesn't follow this sort of thing) attributable to the national Republican party, it was individuals trying to correct an error in the law. And the 'if Congress wanted subsidies, they should have written the law better rather than forcing an incoherent mess through the legislative process' argument is, while I think unfair, exactly the sort of thing Republicans have been saying all along, and surprisingly persuasive even to people who favor the law (coughMobycough). I don't think we can make any political hay out of this one at all.


Posted by: LizardBreath | Link to this comment | 07-22-14 9:58 AM
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144. She certainly recorded it in Italian, because my father had a 10" 78 of it when I was a chabbie. It was my favourite song at the age of four.


Posted by: chris y | Link to this comment | 07-22-14 9:58 AM
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Sorry.


Posted by: Moby Hick | Link to this comment | 07-22-14 10:02 AM
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I'm not saying that "Republicans" should be blamed. I'm saying that Rep. Daines should be blamed, if he refuses to support a bill that would restore x thousand people in Montana to the premium/tax status they had yesterday.


Posted by: CharleyCarp | Link to this comment | 07-22-14 10:03 AM
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149: No judgment -- it's an appealing argument, and there's not a better rebuttal to it than "Honestly, statutes are mostly all kind of screwed up at least a little, it's a shame but we live in a fallen world." Which is not a rhetorically powerful comeback.


Posted by: LizardBreath | Link to this comment | 07-22-14 10:06 AM
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And I'd like to see Sen. Walsh introduce the bill today. He can spend from now until election day telling everyone who will listen that he's introduced a tax cut focused on X thousand mid-lower income people in Montana, and what's Rep Daines doing but trying to make those people pay more.


Posted by: CharleyCarp | Link to this comment | 07-22-14 10:07 AM
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147: I think you're trying to paint with far too fine a brush. The lawsuit emerged from the Republican movement and was praised by Ted Cruz. The people who need influencing aren't going to be asking about the statutory-interpretative issues.

Oh, look, good news: the Fourth Circuit just released its ruling on the same issue,/a>, in the other direction! If the en banc says the same, maybe SCOTUS won't take it up?


Posted by: Minivet | Link to this comment | 07-22-14 10:08 AM
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151: And I think you're also underestimating how political the decision was. So much else in the law became nonsensical under the plaintiff's interpretation (especially Internal Revenue Code 36b(f)(3) as added by Section 1401) that the court basically had to ignore Chevron to sustain it. The law could have been clearer, but there's no need to be sheepish about it.


Posted by: Minivet | Link to this comment | 07-22-14 10:17 AM
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When did we enter the new reality in which once a law is passed by Congress, it can never ever be changed? And is this the first time that ideologues in the federal courts have done something that only makes sense in the new reality?


Posted by: Cryptic ned | Link to this comment | 07-22-14 10:20 AM
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It was my favourite song at the age of four

Finally a kid story that warms my shriveled heart.

Meanwhile whoops the thread turned serious and I'm all blah blah Kathleen Ferrier zombie apocalypse.


Posted by: Mister Smearcase | Link to this comment | 07-22-14 10:21 AM
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155: Is this a trick question? The moment Republicans got veto power during Obama being president.


Posted by: Minivet | Link to this comment | 07-22-14 10:22 AM
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No, I'm really not underestimating the political nature of the decision. I agree that no court not either motivated by politics or incompetent would have made that decision for the reasons you state; it's a patently malicious reading. But the one phrase they're relying on, "established by the state", is a genuine infelicity -- in a perfect world, that phrase would have been different.

The problem is that the truth -- there are going to be some slips in any piece of drafting, but you don't worry about them when reading the whole thing makes the meaning clear -- isn't a particularly appealing truth.


Posted by: LizardBreath | Link to this comment | 07-22-14 10:23 AM
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The general-public debate won't go into the detail of this discussion, and doesn't need to.

Examples:

"The Republicans hate health reform so much they got Republican judges to exploit a loophole with the intention of hugely raising premiums for 5 million people, which is not what the law ever intended or said."

"The Republicans just torpedoed in 30+ states the assistance that would have gotten 5 million working people insurance as long as they paid a fair share."

"Bobby Flato thought he was going to get insurance for $50 a month. So did everyone else - until the Republicans stepped in and raised it to $400 because of politics."


Posted by: Minivet | Link to this comment | 07-22-14 10:36 AM
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That's certainly more impressive than "we didn't fuck up in the drafting any more than usual for something this complicated."


Posted by: Moby Hick | Link to this comment | 07-22-14 10:38 AM
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"Lawless Obama made Harry Reid and Nancy Pelosi write a bad law."


Posted by: JP Stormcrow | Link to this comment | 07-22-14 10:40 AM
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The general-public debate won't go into the detail of this discussion, and doesn't need to.

If nothing else, the Republicans would be put in an interesting spot if they try to deny that they wanted this to happen.


Posted by: politicalfootball | Link to this comment | 07-22-14 11:21 AM
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On the other hand, hopelessness and futility aren't always justified, but that's the way to bet.


Posted by: politicalfootball | Link to this comment | 07-22-14 11:23 AM
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The U.S. Court of Appeals for the Fourth Circuit upheld a federal regulations that implemented subsidies that are vital to President Barack Obama's healthcare overhaul, in direct conflict with another ruling on the issue handed down earlier on Tuesday

This is kind of a crazy system, isn't it?


Posted by: peep | Link to this comment | 07-22-14 11:25 AM
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There are several other sections of the law that are rendered total nonsense by this ruling. For example the IRS requires reporting of subsidies even in states where the exchange is federal-run, for purposes of determining mandate compliance. They hand wave that away by claiming that Congress just wanted really detailed data about mandate compliance (when all that's needed is complying coverage or not, nothing about subsidies.) Given a choice between assuming one sentence that conflicts with several other sections was an error, or that Congress meant to pass total gibberish, they went with gibberish.


Posted by: SP | Link to this comment | 07-22-14 11:56 AM
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165 -- not just that, they completely ignored the rule that you are supposed to give deference to the implementing agency when there is any ambiguity in the statutory language. It's really an egregious ruling.


Posted by: Robert Halford | Link to this comment | 07-22-14 12:07 PM
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165 -- not just that, they completely ignored the rule that you are supposed to give deference to the implementing agency when there is any ambiguity in the statutory language. It's really an egregious ruling.


Posted by: Robert Halford | Link to this comment | 07-22-14 12:07 PM
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the rule

Is this a rule or a custom? I was under the impression that undermining the custom was part of the win for the right.


Posted by: ogged | Link to this comment | 07-22-14 12:13 PM
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168: It's a rule established by the Supreme Court, so the DC Circuit is bound to follow it. They didn't so much ignore the rule as circumvent it by (egregiously) holding that there was no ambiguity in the statutory language, though that's not much of a difference.


Posted by: potchkeh | Link to this comment | 07-22-14 12:16 PM
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Well, OK, the majority didn't fail to cite Chevron. But they certainly didn't follow it.


Posted by: Robert Halford | Link to this comment | 07-22-14 12:18 PM
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They just made up total bullshit to pretend they were following Chevron. They pretended that Congress meant to penalize States using the Federal exchange by withholding subsidies even though there's no evidence suggesting that and much evidence to the contrary.


Posted by: SP | Link to this comment | 07-22-14 12:22 PM
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Right.


Posted by: Robert Halford | Link to this comment | 07-22-14 12:23 PM
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Right, it boils down to an absurdly formal (and ideologically driven) approach to the text, the stuff about what Congress might really have meant to do is just window dressing.


Posted by: potchkeh | Link to this comment | 07-22-14 12:25 PM
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"Please do not date clients until after we rent them and collect the broker's fee."


Posted by: teraz kurwa my | Link to this comment | 07-22-14 12:39 PM
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169, 171 - And they (or their clerks) accepted an incorrect summary of the statutory language, apparently.


Posted by: snarkout | Link to this comment | 07-22-14 12:53 PM
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159 - The guy who had standing in this case literally refused to pay $21/month for health insurance. That was the damage the Kenyan Usurper did to him.


Posted by: snarkout | Link to this comment | 07-22-14 12:54 PM
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174: Fran Lebowitz covered the same ground, but more entertainingly.


Posted by: Moby Hick | Link to this comment | 07-22-14 12:59 PM
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176: $21/year, I thought.


Posted by: Sifu Tweety | Link to this comment | 07-22-14 1:01 PM
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Randolph clowning it up at oral arguments:

"There's an absurdity principle, but I don't think there a stupidity principle," Randolph said. "If the legislation is just stupid, I don't see that it's up to the court to save it."


Posted by: JP Stormcrow | Link to this comment | 07-22-14 1:29 PM
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White House says health care subsidies will keep flowing despite court decision

Anyone know why that is? The court ordered the IRS rule vacated, and the Administration didn't request a stay of the ruling that I know of. If the court agrees to re-hear the caseen banc (which everyone expects), that would vacate the panel's ruling. But that hasn't happened yet. So what basis does the Administration have for saying "It's cool, nothing's changed."


Posted by: kermit roosevelt, jr. | Link to this comment | 07-22-14 2:20 PM
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Another question: this is all about Chevron deference to the IRS rule, so even if this gets reversed en banc or by the supreme court, the next Republican president will just get his IRS commissioner to change the rule, correct?


Posted by: x. trapnel | Link to this comment | 07-22-14 2:27 PM
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180: the "mandate"--which is what triggers the parties' obligation to implement the judgment--doesn't issue until either a week after the deadline for a rehearing petition, or after the denial of a petition for rehearing. So nobody has to do anything until then. (And there are possibilities for further delay of the mandate.)


Posted by: potchkeh | Link to this comment | 07-22-14 2:29 PM
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180: Nicholas Bagley on Twitter said "No stay. But the mandate won't issue immediately. In English, that means the judgment doesn't yet have force." Perhaps the lawyers here can elucidate?

181: Could. But by 2017 that might be hard politically.


Posted by: Minivet | Link to this comment | 07-22-14 2:29 PM
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the next Republican president will just get his IRS commissioner to change the rule, correct?

A Republican president is going to unilaterally raise taxes on individuals in (mostly) red states by $36 B with the stroke of a pen? No chance.


Posted by: kermit roosevelt, jr. | Link to this comment | 07-22-14 2:31 PM
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I was under the impression that the "only state-established exchanges receive the subsidy" was an explicit attempt to "encourage" the states to establish exchanges instead of dumping all the work on the Feds because federalism (previously referenced in re "burning with fire"). Maybe it's an urban legend, though.

All of this is because they passed a first draft of the law and couldn't change it in committee because they had lost Teddy Kennedy and no longer had a filibuster-proof majority in the Senate. I don't think that's an urban legend.


Posted by: DaveLMA | Link to this comment | 07-22-14 5:39 PM
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129: There must be some supreme court precedents on what you're supposed to do with obvious drafting errors in laws, right? What do they say?

Kevin Drum has had some interesting posts on this today, including this discussion of what the court(s) are to do with cases of ambiguity in statutes as drafted.

The DC circuit court decided that there really wasn't any serious ambiguity in the law [as written], and therefore no deference was due to the IRS's interpretation that state and federal exchanges were meant to be treated the same. The dissent was scathing about this, since the record pretty clearly showed tons of ambiguity.

There follows some helpful quotation of communication Drum had from a lawyer:

It's long been a fundamental principle in administrative law that an agency's interpretation of a federal statute that they are charged with enforcing is entitled to judicial deference, unless such deference is unreasonable. Conservatives would prefer that courts not defer to the government because #biggovernment. Thus, they want to weaken the deference standard and Halbig gives them basically a two-fer. Or a three-fer since the agency interpreting the statute is the IRS: Take out Obamacare, knock back the deference standard, and punch the IRS. This invariably will help advance the conservatives' legal goals because with a lower deference standard, their eccentric theories (such as on tax issues) have a better chance of surviving.

Sorry to quote at length, but as a non-lawyer, I found this incredibly informative. Drum's friend fears that SCOTUS would rule negatively should they accept the case at all, should it come to that.

I haven't dug down into things enough to know where the precedents for deference to gov't agencies in the face of statutory ambiguity comes from. Charley mentioned something upthread, but this can't just be coming from Basardh, right?


Posted by: parsimon | Link to this comment | 07-22-14 5:42 PM
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I don't think it's guaranteed, but "no chance"? Really? A world where 24 Republican governors turned down the Medicaid expansion would seem to be a world where there's a least a decent chance of a Republican president turning down $36B in subsidies for the less-than-rich. (Admittedly,


Posted by: x.trapnel | Link to this comment | 07-22-14 5:42 PM
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185.1 Or so the mullahs would have you believe.


Posted by: JP Stormcrow | Link to this comment | 07-22-14 5:45 PM
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I was under the impression that the "only state-established exchanges receive the subsidy" was an explicit attempt to "encourage" the states to establish exchanges instead of dumping all the work on the Feds [...] Maybe it's an urban legend, though.

Yeah, urban legend. The DC Circuit's dissent was clear on the ways that this was a bullshit claim.


Posted by: parsimon | Link to this comment | 07-22-14 5:56 PM
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187: big difference between "never there" and "took it away"


Posted by: TJ | Link to this comment | 07-22-14 5:59 PM
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Oops, stupid HTML tags. That was supposed to finish like so:

"Admittedly, folks under 133% of the Federal Poverty Line are farther outside the Republican voting base than are folks between 100 and 400% FPL, but still."


Posted by: x.trapnel | Link to this comment | 07-22-14 5:59 PM
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Just catching up: Chevron, right, I see.


Posted by: parsimon | Link to this comment | 07-22-14 6:00 PM
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190: I hope so, but I wouldn't take it for granted.


Posted by: x.trapnel | Link to this comment | 07-22-14 6:00 PM
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I love 16


Posted by: Turgid Jacobian | Link to this comment | 07-22-14 6:02 PM
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Meanwhile. It has been an issue in my state's upcoming elections that Maryland's state health insurance exchange rather crashed and burned, and is now being reworked, NOT by signing on to the federal exchange, as advocated by various Republicans and DINOs, but by contracting with the folks who created Connecticut's state exchange to migrate their system here.

Dem candidates here have struggled to adequately explain to the public why this is a good idea: why not use the federal exchange? Insisting on a state-based exchange is so costly!

We have an answer.


Posted by: parsimon | Link to this comment | 07-22-14 6:08 PM
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What is the advantage of a state run exchange?


Posted by: heebie-geebie | Link to this comment | 07-22-14 6:14 PM
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Most states have white governors?


Posted by: Moby Hick | Link to this comment | 07-22-14 6:26 PM
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Sorry. I mean "Federalism!"


Posted by: Moby Hick | Link to this comment | 07-22-14 6:26 PM
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It avoids the danger incipient of just such a ruling as the DC Circuit just handed down, which could, conceivably, lead to a SCOTUS decision along the same lines. The cases challenging federal subsidies for those participating in HHS-based exchanges are numerous, and they've been a long time coming. If you want to protect the citizens of your state against such a ruling, you don't go to a fed-based exchange.

It's called hedging your bets.


Posted by: parsimon | Link to this comment | 07-22-14 6:30 PM
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So what was the rationale before today?


Posted by: heebie-geebie | Link to this comment | 07-22-14 6:33 PM
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I agree with Heebs- before this case came up no one could have possibly believed the bullshit legal theories conservative lawyers came up with wouldn't be laughed out of court. See previously, the mandate is a tool of a totalitarian dictator instead of a standard bit of tax regulation, and corporations have religious beliefs. There's nothing to say that something being dreamed up in the comment section at Volokh won't be at the DC circuit three year from now saying that state run exchanges are an infringement of the third amendment because they require you to log on via a computer network that has access into your home and that is the equivalent of federal agents invading your castle.


Posted by: SP | Link to this comment | 07-22-14 6:45 PM
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113: In an extremely competitive market, we went to an open house and when we made an offer at asking price, the realtor immediately shut down the house to accept. He got double commission because we didn't have a realtor. And we got the house.

That sounds like a breach of the fiduciary duty the realtor owed the seller to me. Sure, he should write up your offer immediately and present it to the seller, but I think he should have kept showing the house until you guys were actually under contract. Especially in "an extremely competitive market," if he shut down the open house early, he is ruling out the possibility of a multiple-bidder auction that could drive the price up higher. If he did that just to get a higher commission for himself, that sounds like a conflict of interest with the seller.


Posted by: Dave W. | Link to this comment | 07-22-14 8:07 PM
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202: Oh sure, absolutely. The key to working with any professional is to understand their incentives and constraints. I've gotten good advice and bad advice from realtors, but all of it was geared toward making them money. That's why I didn't use one when I could avoid it. In this case, my interests were aligned with the interests of the seller's agent, so I got good service from a guy I never considered hiring when I needed to sell that house.

But now I feel guilty about it. Thanks a lot!


Posted by: politicalfootball | Link to this comment | 07-23-14 5:49 AM
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203: Well, any fault is on him, not you. A realtor representing both sides can work - that's how we bought our house. We met her at the open house, and presented an offer. When we were hesitating to accept the seller's counter to our offer, she took us around and showed us other properties in our price range, which eventually convinced us that we really liked the original house the best, leading to an agreement. Win-win all around, done in a very low-pressure way.


Posted by: Dave W. | Link to this comment | 07-23-14 8:17 AM
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200: So what was the rationale before today?

Sorry, just coming back to this now. The rationale at the beginning, when the ACA passed, was just that being able to tailor the exchange used by MD's citizens to MD's needs was the best idea: among other things, the state insurance commission(er) here is pretty powerful and vigilant regarding insurance company shenanigans, and I don't think the powers that be wanted to have that state-based control watered down in any way. This is a pretty blue state, and its policies and procedures tend to be much more liberal than the watered-down stuff the federal government comes up with. IOW, federalism (and state pride).

But yeah, I should clarify that the heated arguments over whether to go to the federal exchange have happened just recently, since the decision was made just in the last 6 months or so to ditch the initial exchange set-up. The Democratic gubernatorial and state attorney general primaries featured a lot of finger-pointing about this, with some candidates insisting we should abandon a state-based exchange altogether, because what could go wrong? The answer, obvs., is that this could go wrong.


Posted by: parsimon | Link to this comment | 07-23-14 9:39 AM
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Blaming it on Republicans is going to be tough for an uninformed audience in the face of Republican messaging.

Moar like this, please.

FOR IMMEDIATE RELEASE
Mark Totten for Michigan Attorney General
July 22, 2014
Contact: info@marktotten.com / (269) 203-3520
Schuette Forces Massive Tax Hike On Working Michigan Families
Federal court backs Schuette's crusade to raise taxes by nearly $5,000 on a half-million
Michigan families, while shipping Michigan tax dollars to California and New York
KALAMAZOO -- Today a federal court in Washington, D.C. backed Michigan Attorney General Bill Schuette's crusade to deny tax credits for Michigan families purchasing health insurance. Under today's ruling sought by Schuette, nearly a half million Michigan families will lose an annual $4,700 tax credit, while Michigan taxpayers will continue to pay for families in other states to receive these credits. (Numbers and sources below.)
Mark Totten, a Democratic candidate for Michigan Attorney General, stated: "Today's decision is the culmination of Schuette's crusade to strip nearly $5,000 a year from a half million Michigan families and ship our tax dollars to New York and California. This case is not really about Obamacare, which remains the law of the land; it's about Bill Schuette trying to score political points with the most extreme fringe of his party, even at the cost of hurting Michigan families."


Posted by: knecht ruprecht | Link to this comment | 07-23-14 10:01 AM
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Yes! That's it!


Posted by: Minivet | Link to this comment | 07-23-14 10:53 AM
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189 - As Scott Lemieux at Lawyers Guns & Money just wrote, this argument assumes that the law's drafters put in an escape clause allowing the federal government to step in and create an exchange but intentionally wrote the law so that it wouldn't work. It's an absurdity. (The compliance method to force the expansion wasn't the tax breaks, which are a requirement for getting the affordable care part of the Affordable Care Act to people, the Medicaid money, which the Supreme Court already took away because look behind you, a three-headed monkey!)


Posted by: snarkout | Link to this comment | 07-23-14 10:59 AM
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It sure is. I wonder whether there's enough power in a message like that to pressure Republicans in the House to agree to pass a so-called 'technical fix' to the ACA which would correct the problematic language the DC Circuit latched on to.

Nah, I'm surely dreaming.


Posted by: parsimon | Link to this comment | 07-23-14 11:02 AM
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209 to 207.


Posted by: parsimon | Link to this comment | 07-23-14 11:03 AM
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So anyway, I have not yet read around enough to be able to ascertain whether the concern voiced by Drum's lawyer friend (linked and quoted in 186) that SCOTUS might have an interest in revisiting Chevron is a real possibility.

Any idea?


Posted by: parsimon | Link to this comment | 07-23-14 11:06 AM
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211: almost certainly not. The quote in 186 either misunderstands things or oversimplifies them unhelpfully. It's just not true that agency interpretations are categorically entitled to deference "unless such deference is unreasonable". You don't even get to agency deference unless you have ambiguity in the statute in the first place, and the DC Circuit said there was none here. That's stupid and mendacious and a blatant ploy to skirt deference territory (because otherwise even these clowns would have had trouble dinging the agency interpretation with a straight face), but it means that the case as decided boils down to an issue of statutory interpretation (is this statutory provision ambiguous or not?), not of agency deference (is the agency's interpretation of this ambiguous statutory provision reasonable?). Chevron doctrine is still evolving in certain ways but it's pretty entrenched (there's certainly no appetite on the SCt to overturn Chevron altogether) and in any event I don't see this case having much of an impact on administrative law unless the Supreme Court were to go in a much different direction than the DC Circuit did.


Posted by: potchkeh | Link to this comment | 07-23-14 11:43 AM
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Republicans in the House to agree to pass a so-called 'technical fix' to the ACA which would correct the problematic language.

You're in "monkeys might fly out John Boehner's butt" territory there.

However, I could envision a bill that the House Republicans could get behind: instead of fixing the Obamacare subsidies, we repeal them root and branch (the wording is important here, as we'll see), and we replace them with a real Reaganesque tax cut - a $5,000 refundable tax credit for anyone who purchases individual health insurance from anywhere, i.e. not restricted to the socialist Obamacare exchanges. One might object that it would be hella expensive, but of course tax cuts always pay for themselves, so it's cool.


Posted by: kermit roosevelt, jr. | Link to this comment | 07-23-14 11:57 AM
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213: Huh. I ... uh. Well, okay, I could sort of see them getting behind that, however dumb it is. It would all be about saving face at this point, for them.

212: Thanks potchkeh.


Posted by: parsimon | Link to this comment | 07-23-14 12:16 PM
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