Mirror, mirror on the wall, who was the most "childish" of them all?

[Beet]

This analysis is too simplistic, for pinning everything on the extra 400 billion. Obama asked for the extra 400 billion on Tuesday, and talks continued for an extra three days. If there had been something inherent about this that killed the deal, then Boehner would have pulled out right there and then. Instead negotiations continued about other provisions. I don't think the evidence is inconsistent with that Obama genuinely wanted a deal and was trying to put together a bipartisan coalition with a majority in the House, and his asking for an extra 400 billion, which his aide says was negotiable, was a bid for more Democratic votes. On Friday morning the talks were in progress. The bottom line, was that Boehner was the one who refused to talk to Obama all Friday afternoon, and pulled out of talks.

Here is the article I relied on for my analysis.

Edit: And there is another article up at Politico. It makes clear that Boehner appears to have decided to end all talks by the end of Thursday and didn't notify the President for a day.

[Beet]

This analysis is too simplistic, for pinning everything on the extra 400 billion. Obama asked for the extra 400 billion on Tuesday, and talks continued for an extra three days. If there had been something inherent about this that killed the deal, then Boehner would have pulled out right there and then. Instead negotiations continued about other provisions. I don't think the evidence is inconsistent with that Obama genuinely wanted a deal and was trying to put together a bipartisan coalition with a majority in the House, and his asking for an extra 400 billion, which his aide says was negotiable, was a bid for more Democratic votes. On Friday morning the talks were in progress. The bottom line, was that Boehner was the one who refused to talk to Obama all Friday afternoon, and pulled out of talks.

Here is the article I relied on for my analysis.

Edit: And there is another article up at Politico. It makes clear that Boehner appears to have decided to end all talks by the end of Thursday and didn't notify the President for a day.

Boehner took Obama's ratchet up to his membership, which took some time, and when he got his answer that it was a deal killer, he told Obama that negotiations were going backwards, and that there was no point in talking further about a big deal, unless the ball moved back to where it was. It is that simple. Sure he should have taken Obama's call, and told him a response would be forthcoming, but that the tea leaves did not look good. He got back to Obama when he had a firm answer.

Don't you think it fair to characterize the side that killed negotiations, the one who backtracks on some major items (it was not just the 400 billion, but also the revenue floor and ceiling business), at the last moment? And that point, the optics obviously preclude any deal that includes the backtrack items. And that is the point of the article I think.

The nature of negotiations is that it is an ongoing process. You could also say that Obama took Boehner's original offer, existence of which was not disclosed until Monday, back to his party (House and Senate) and found that it was unacceptable, even though the White House themselves would have accepted it. I think, if you want to say X was so inherently bad that it's at fault for everything, you need to say it as soon as X is proposed-- that would have been in Boehner's case, Tuesday or at the very latest Wednesday once he had a chance to poll his members. You can't continue negotiations with this hanging out there for three days and then at the end of the three days say that something that was done on Tuesday was at fault for everything irrevocably breaking down.

It's the same as the Republican behavior on the health care bill-- if Republicans think the mandate is unconstitutional they should have said it straight from the beginning, rather than trying to argue against it on legislative grounds and then only turn to the Courts once they'd lost in Congress. It smacks of changing the rules in the middle of the game.

[Beet]

Many Pubbies have been asserting that the mandate is unconsitutional since rocks cooled. To suggest that it was some kind of bait and switch or whatever you are doing, confused me really.

I don't remember hearing about that during the debate-- the main Republican objections seemed to be that it would cost too much money, 'death panels', procedural things like they were 'going too fast', and objection to the mandate on policy grounds. It's certainly possible that Republicans were also making a constitutional argument but it wasn't very prominent.

If something is unconstitutional, you'd expect that to be the first argument made, and we simply didn't see it. Most legal experts at the time the bill passed had no idea it would face such a strong challenge in the Courts. Had this discussion been more prominent from the beginning, the law might have been designed differently-- maybe the Torie finesse would have been taken. But it certainly seemed like a bait and switch to me, and most legal scholars would probably feel the same way.

In any case, this is not to rehash the health care debate.

[Beet]

At the risk of beating the mandate thing to death, it was the responsibility of the Dems to do their legal homework. It was an obvious legal risk to me, when after the bill was passed, I finally understood how the mandate worked. That was another problem. As Pelosi said, the bill had to be passed to find out what was in it.  That hopefully will never happen again.

But much of the 'legal homework' consists in anticipating how judges will rule on a particular issue. In other words, it's not so cut and dry, it relies on inherent guesswork and a lot of politics. What's really put the mandate at judicial risk is not anything written down on paper prior to passage, it's that the conservative and tea party movements have made it a political priority to have it struck down in courts strongly enough that it has become a mainstream conservative judicial position (and don't try to argue that courts aren't political institutions, that would only be doubling down on the disingenuousness). It's particularly underhanded for anyone who believes it's unconstitutional to argue against the bill on policy grounds without at first stating their belief in its unconstitutionality, because the latter invalidates the whole point of the former. And yes, the broad principle of the individual mandate was known well before passage.

It's like, your wife comes to you and says she wants to go out and see a movie with her. You spend half an hour arguing about which movie to see, which is finally settled with a coin toss which she wins. Then you say 'I never wanted to see a movie in the beginning. It was your responsibility to ask me that.' Technically correct, but substantively dishonest and unfair.

[Beet]

It's not an odd position at all.

It's true that there are some really far out Pubbies who claim old stuff is unconstitutional, and get laughed off, and deserve to get laughed off because they're not mainstream. There isn't a 40% chance that their views will get imposed, no more than that the SCOTUS will strike down Social Security as unconstitutional, or child labor laws. (But if there is, I'd like to know about it now, because it seems that if Social Security is unconstitutional, there's no point in arguing about what its funding level should be. At least you can agree on this, right?)

We need to make a distinction between them and mainstream Pubbies, by which I mean the Pubbie judges who are actually sitting on the court, Pubbie politicians, and most Pubbie voters. This is important to me because had I known that the mainstream Pubbies, would actually make this such a huge deal, then I would have supported a different wording of the law in order to make it safer and legally stronger. Just as your wife wouldn't have spent 30 minutes arguing with you over which movie to see if she'd known you didn't want to see any movie. Maybe, had I known of the Constitutional objection, I wouldn't have supported Obama spending so much political capital on something that had a 60% chance of being struck down. Everything would have been different, and we all would have been saved a lot of bickering and useless arguing. I feel I was made to play one game, only to be told after I thought I'd won by the very difficult and intricate rules that it meant nothing.

[Beet]

What it is odd is this notion that the opposition has some duty to help the other party avoid stubbing its toe and suffering political damage for doing so.  Good luck with that Beet.

Not help the other party, but at least debate in good faith. If you can't see anything wrong with the scenario I've outlined above, you're choosing not to look.

Edit: In response to your edit: Torie. A bill with 99% chance of being upheld is worth a lot more than a bill with a 40% chance of being upheld. Many who would fight like hell for the former-- give up 30 seats in Congress for the former-- would take a pass on the latter.

Yes, you could say that the Republicans simply had more determination in the Courts than the Democrats realized, but then you're admitting that it's not about the merits of the case (constitutional or unconstitutional), it's about moving the goalposts to a different branch of government after losing in the other two.

[Beet]

I don't think it was a deliberate strategy, I just think the Republicans care so passionately about overturning this law that they couldn't accept they'd lost in the democratic process (after a grueling hard fought fight) and were willing to shift over to a few unelected men sitting on benches, even if that meant surprising most legal experts in the process.

[Beet]

I don't think it was a deliberate strategy, I just think the Republicans care so passionately about overturning this law that they couldn't accept they'd lost in the democratic process (after a grueling hard fought fight) and were willing to shift over to a few unelected men sitting on benches, even if that meant surprising most legal experts in the process.

It was inevitable that somebody would bring such lawsuits. And both parties sue if they can find a reasonably plausible way after losing in the public square. Always have, always will. That is part of the process. Look at all those lawsuits in Wisconsin lately!   

That is always the case, yes, but usually these claimants don't have much chance of success, let alone a presumption of success. That's why we fight so hard over the outcomes in the public square. Otherwise you are going to bring the judiciary in, explicitly as a lawmaking body, with extra veto power over everything.

[Beet]

That solution assumes 1.) that raising the debt ceiling is only in the Dems interest,

That assumption could be valid, though. Many Republicans are probably hoping that the economy collapses so that their anointed one can win next year.

[Beet]

I don't believe the Republicans have anything close to a 'meritorious' case. Health care insurance is one of the most complex industries in the whole economy, and it passes the interstate test with flying colors if any form of commerce does. And forcing someone to buy something on the private market is actually a lot less intrusive than forcing someone to buy something from the government, which is what programs like Medicare and Medicaid do. If the former is unconstitutional, the latter should be unconstitutional even more so.

[Beet]

I don't believe the Republicans have anything close to a 'meritorious' case. Health care insurance is one of the most complex industries in the whole economy, and it passes the interstate test with flying colors if any form of commerce does. And forcing someone to buy something on the private market is actually a lot less intrusive than forcing someone to buy something from the government, which is what programs like Medicare and Medicaid do. If the former is unconstitutional, the latter should be unconstitutional even more so.

Then you should have no worries!    Why all the angst?

Moving right along, Medicare and Medicaid are government largess, funded with taxes. And you need not toke. The test is not the quantum of government "intrusion," and never has been, when it comes to the Constitution and SCOTUS. That is a public square issue.

Actually, the case is all about government "intrusion," in theory, although in practice it is quite often about politics too.

[Beet]

OK. Obama must not carry through with his veto threat. It's time for him to cave. This is a Judgment of Solomon moment.

[Beet]

Even Niall Ferguson is not on board with the GOP's anti-tax dogmatism:

"In the words of CBO Director Doug Elmendorf: “If Social Security and the major health programs faced no cuts, then defense and other noninterest spending would need to be cut by about 60 percent. Alternatively…outlays for Social Security and the major health programs would need to be cut by about 40 percent.

Reduce national security by three fifths or Social Security (and Medicare) by two fifths. That is the choice implied by the “No New Revenue” dogmatists, who oppose even the elimination of tax loopholes. It does not sound to me like an election-winning platform—more like a domestic row gone nuts."

Heck, even Grover Norquist said that it would be ok to let the Bush tax cuts expire. I'm leaning towards anvikshiki's position though... of the plans out there right now, Boehner's original plan with 800 billion in revenues is marginally better.