CATO, interns, King and privilege

Scott Lemieux is, correctly, pointing and laughing at Michael Cannon and the Cato Institute for their inability to find sympathetic plaintiffs for their bullshit argument that the Moops invaded Spain and therefore the Spanish now must learn to speak Moopish.

  • The fact that former Cato interns wanted no part of the troofer lawsuit;
  • The title implying that Politico hacked into Cannon’s email, rather than the massively more likely possibility that the email was provided by one of the recipients, or
  • Cannon complaining about the Cato institute being described as “right-leaning.”

I’d say they’re all winners.  Like any great comedy routine, the elements build on each other.

I was unfortunate enough to have known several CATO, AEI and Heritage Foundation interns during my undergraduate years. At first I was surprised that none of the younger siblings of those gliberterian fantasists would have signed on to the lawsuit, but then I remembered some more facts about the class of people who intern at right wing think tanks for fun and profit.

Those internships were either poorly paying or not paid at all with a requirement that the interns live in D.C.  That means parental support was often needed.  One of the interns I was acquainted with had a monthly allowance from her parents that was greater than the a semester’s tuition at a good state school.  Furthermore, most interns that CATO was trying to recruit are under the age of 26.  All of the interns that I knew had a serious and chronic pre-existing condition of either cranial rectal inversion or gaping  rectum syndrome.  Finally, they all knew how to cover their own ass.

PPACA’s provisions and exemptions took away most of the potential intern plaintiff pool.  The combination of keeping young adults on their parents’ insurance until age 26, and cheap catastrophic plans for young adults removes most potential sympathetic plaintiffs from the pool.

A plaintiff for Cannon needed to live in a state and make either more than 100% of Federal Poverty Line (FPL) in non-Expansion states or more than 138% FPL in Medicaid Expansion states, be without insurance, and have a minimally qualified health plan cost more than 8% of their income if there were no subsidies.

If Mommy and Daddy were picking up most of the cost of the internship for Fluffy and Muffy, F&M’s incomes would not meet thresholds as it would be in-family transfers, so they would be disqualified.  If the intern came from a state exchange state, they would be disqualified.  If Mommy and Daddy, who had sufficient resources to allow Fluffy and Muffy to be privileged assholes with no connection to reality, had employer sponsored health insurance, then the sprogs were being covered through their parents’ work.

So if Cannon could find an intern that came from a state that did not expand Medicaid who had an income over 100% FPL and who was not covered by their parents’ coverage, he still faced one more challenge.  Individuals under the age of 30 qualified for cheap catastrophic coverage or cheap Bronze plans.  An individual at 100% FPL plus a dollar would meet the threshold of 8% of income for unafforability without subsidies.  That is a monthly premium of $77.50.  I am seeing Catastrophic plans on and in low cost regions for less than that.  In mid-cost regions, catastrophic plans are slightly more than the threshold level for someone who makes exactly 100% FPL.  For each $150 in annual income over  100% FPL, we add another dollar to the monthly premium threshold.

The ideal plaintiff for Cannon would have been a 20 year old make 101% of FPL from southwest Georgia who had no coverage from his parents and who was willing to be uninsured in order to prove an ideological point instead of spending $28 per month for enhanced cost-sharing assistance Silver plans or nothing for a Bronze plan and who does not want coverage for his pre-existing chronic condition of cranial rectal inversion.

Does that person exist?  Yes…. he is just highly unlikely to be working at CATO when Cannon went trawling for plaintiffs.



50 replies
  1. 1
    burnspbesq says:

    I am just astonished that petitioners filed their reply brief yesterday without addressing standing. That’s pretty brazen.

  2. 2
    jl says:

    Thanks for interesting, amusing and depressing insight into astroturfing of the SCOTUS case plaintiff acquisition process.

    I am curious what RM makes of this post at TPM.
    Says ACA coverage is leveling off too fast to make medium term forecasts likely to be realized. The post goes into a lot of detail about supposed implications of recent enrollment numbers for high end medium term forecasts.

    Less detail on why this might be really bad. Actuarial issue would be who does not sign up. I agree with Dean Baker that healthy adults are more important than specifically young adults, but I realize that might depend on picky trade-offs involving the effect of profile age premium bands and age & health profile of enrollees.

    Or maybe political, in, a lot of unaware individuals suddenly paying step tax penalties?

    There’s A Potential Warning Sign In Obamacare’s Great Enrollment Numbers

  3. 3
    jl says:

    @burnspbesq: What happens when brazen plaintiffs meet brazen judges who are close to a majority?We will have the fun of finding out?

  4. 4
    Mike J says:

    (And “right-leaning”? Seriously?)

    Did he want them to be called right wing extremists?

  5. 5
  6. 6
    jl says:

    Also saw a story that said employer subsidies would go with individual in contested states.
    Can’t find it now.
    Anyone know what that is about? BJ legal flying wedge know anything? RM?

    Edit: minor style point for LGM spoof email is that the phrase ‘I urge you to use utmost discretion in this matter’ was omitted.

  7. 7
    waspuppet says:

    One of the interns I was acquainted with had a monthly allowance from her parents that was greater than the a semester’s tuition at a good state school.

    And she never once stopped to think about that for a second?

  8. 8


    That’s pretty brazen.

    But not that surprising. Their only serious chance of winning the case is for the Court to ignore precedent, the obvious reading of the law, and the mound of evidence about what the drafters actually wanted. If the majority on the Court are kind of partisan hacks who would do that, they aren’t going to let the case be stopped by something like standing.

  9. 9
    mai naem says:

    Wow, the email has some pretty basic grammatical errors. I would expect this from a scientist but a lawyer part of whose job it is to write properly. Also too, it comes across as one of those “Dear Sirs,My name is Ogondo Bogombo. My father is the Chief of the Mobobo Tribe of the Village of Zamboa. He has received his expiration and I am the Prince who will inherit 123,432,349.49 US $ if you can provide me with your social security identification number and your JP Morgan banking account, I will transfer to your account 1,231,873.32 in 15 days.” emails.

  10. 10
    Richard Mayhew says:

    @waspuppet: Her great-grandfather earned it, and it was just resentiment if anyone even thought that she did not deserve it…. yeah, after a while, the quality of her whiskey and weed were not enough to outweigh the requirement of consuming said whiskey and weed in her company.

  11. 11
    mai naem says:

    @waspuppet: Nah, she was Mitt’s niece. She thinks everybody has stocks from mommy and daddy to start their own business with an assist from daddy’s cronies.

  12. 12


    And she never once stopped to think about that for a second?

    If she were the kind of person who thought about that, she probably wouldn’t be interning at Cato.

  13. 13


    And she never once stopped to think about that for a second?

    I doubt that introspection about inequality is a prized quality for their interns.

    ETA: and FYWP. Several of my responses were eaten, probably because the institution in question is a forbidden word.

  14. 14
    burnspbesq says:


    Here’s what should happen.

    The Supremes should dismiss the writ of certiorari as improvidently granted, and remand the case to the Fourth Circuit with instructions to vacate its opinion and remand to the District Court so that there can be discovery and (if discovery reveals an actual issue with standing) a renewed motion by the Government to dismiss for lack of subject matter jurisdiction.

    The second-best solution would be for the Supremes to take the case off the argument calendar and order supplemental briefing on the standing issue.

    Any other option is just wrong. Standing is jurisdictional. Article III of the constitution says that the judicial power of the United States extends only to “cases” and “controversies.” If you don’t have a plaintiff with standing, you don’t have a case or controversy. If the Supremes decide something that isn’t a case or controversy, in theory the Executive Branch would be free to disregard the order and keep on doing what it’s doing. And now you’ve got a full-on Constitutional crisis.

    I don’t recall there being an issue about the standing of the plaintiffs in Halbig, so if King were to go away, the D.C. Circuit could restore that case to its argument calendar and proceed to reconsider it en banc.

  15. 15
    Mike J says:


    Any other option is just wrong.

    You don’t actually expect either of those to happen, do you?

  16. 16
    burnspbesq says:

    @Mike J:

    If it’s naive or unreasonable to expect judges to follow the law, what’s the point in having a country?

  17. 17
    Calouste says:

    No-pay internships are not as much about saving money as about keeping out the wrong sort of people, the ones that need to work for a living.

  18. 18
    Richard Mayhew says:

    @mai naem: pretty much, she had no clue how a family like mine could live and feel reasonably comfortable in years where my two working parents could not qualify for the AMT (and that was the year between overtime and bonuses that was the best number inflation adjusted that my parents ever earned). And she was convinced that everyone would be better off if the Death Tax was repealed…. the weed and the whisky weren’t that good after all.

  19. 19
    Calouste says:

    @burnspbesq: You can still have a country, you just have to stop pretending to be a democracy. Various dictatorships didn’t stop being countries while show trials were being conducted.

  20. 20
    Richard Mayhew says:

    @Calouste: Completely agree, the low or no-pay internship requirement is probably the biggest barrier to entry for meritocratic advancement of the non-elite of this generation… connections matter and if the choice is connection making “work” or eating and paying rent next year, most people like to eat.

  21. 21
    piratedan says:

    @burnspbesq: based on their behavior thus far, they’re simply working under the assumption that they already own most everything worth owning, so now they have to dabble in the misery of others just to keep their hands in….

  22. 22

    I don’t think it’s unreasonable to ask judges to follow the law, but at this point I find the expectation that the right wing of the Supreme Court will actually do so is naive. They’ve gone back on long-standing precedents and flat made stuff up to support their political arguments too many times to think they’ll refuse to do so again.

  23. 23
    JPL says:

    @burnspbesq: And Gore was President before Obama.

  24. 24
    Davis X. Machina says:


    If it’s naive or unreasonable to expect judges to follow the law, what’s the point in having a country?

    Remota itaque iustitia quid sunt regna nisi magna latrocinia?
    Take away justice, and what are governments if not giant criminal enterprises? St. Augustine. Contra Paganos, 4.3

  25. 25
    Baud says:

    @Davis X. Machina:

    Oh, I like that. Will have to remember it.

  26. 26
    Baud says:


    My guess is that the will ask for post argument briefing on standing.

  27. 27
    SP says:

    This is the key part:

    who was willing to be uninsured in order to prove an ideological point instead of spending $28 per month for enhanced cost-sharing assistance Silver plans or nothing for a Bronze plan

    Conservatives are willing to play with other people’s lives to prove ideological points. When it comes to their own welfare, though, good luck finding a conservative willing to walk the walk.

  28. 28
    Scamp Dog says:

    @burnspbesq: To provide the muscle to keep the lower orders in their allotted place, and sustain you in your natural place at the top of society. If you’re one of the right people, anyway.

  29. 29
    Bob says:

    Lemieux has it right – Cato not CATO. As in Cato the Roman statesman.

  30. 30
    Mike in NC says:

    When will the US Congress honor the Supreme Court by making the birthdays of Roger Taney and Jefferson Davis national holidays?

  31. 31
    jl says:

    @efgoldman: Unless I have confused the cases, I read that it took only four votes to take the case. So, that shows the level of corruption in the court. Unless the motives of some of the votes were different from the others.

  32. 32
    Baud says:


    Yep. It’s always only four votes to take a case.

  33. 33

    I have recruited plaintiffs for a strategic suit designed to arrive at SCOTUS, and what I have to say about this is: It’s really really hard. CATO didn’t screw this up because it was an easy lift and they couldn’t organize a 3 car parade; they screwed it up when their unicorn hunt was a failure but they proceeded to file anyway.

    Recruiting plaintiffs is harder than it may seem. Even if what you’re asking people to do is not endure a hardship of going without something that they might need to avoid penury (health insurance); even when you’re asking them to do is merely act as the faces and families representing an outcome that will be good for them (marriage equality)…smart, informed people won’t agree to be your plaintiffs.

    Which means you’re stuck with less-quick, less-informed folks…who need to be handheld, baby-sat and provided with a media handler. This whole megillah may end up thrown back (from my keyboard to G-d’s ears) because the idiots who agreed to fake the injury didn’t understand who was in on the joke that they could get care at the VA, but the principle here was more important. Legally, that’s not a technicality–no harm, no foul.

    The Goodridges, who you may recall were the lead plaintiffs (but not the only ones) in the state suit getting marriage equality in MA, are now divorced. After they went first, no one who knew what they were getting into was willing to jump into the pool.

    I’m not at all surprised that the recruiting process–which was challenging for competent, dedicated, trained people like myself to do, on behalf of a case that was literally about my equality as a citizen of this country, and that of the plaintiffs we went with in the end–was not within the scope of ability of CATO interns. The surprising part is that they thought it would be. No one who knows a damn thing…oh wait, I’m repeating myself.

  34. 34
    Lee says:

    I’ve got a confession to make. One of the loves of my life interned at heritage during the summer of 88 (the summer of the massive heat wave). While I married another she is one of the most libby of liberals on the planet.

  35. 35
    jl says:

    @Baud: This post forced me read up on the thicket of cases relating to the issue of federally established state exchanges.I am sure three of the votes to take the case were by certain parties who have adopted a ‘by any means necessary’ approach to jurisprudence. If Scalia was one of them, he may have grandiose, self-deluding, dreams of using this case to further understand the depths of profundity contained in his judicial philosophy, and maybe even help him figure out what it is; afterwards he will wonder in awe that the result just a happened to coincide with his political and religious views.

    Anyway, I hope that one of the four votes was to use the case to stop this type of lawsuit. There seems to be at least four flavors of it wandering the circuits, and I assume additional ones will spring up.using different cheezy legal angles as time goes by unless there is a definitive ruling on the whole issue.

    Otherwise, the case will have four predetermined votes going in and it will be close thing.

    If the worst case scenario of burns is realized, right now I am in a mind to go for Full Blown Constitutional Crisis. As long as Obama is at it, I guess he could try to get the ‘Five Civilized Tribes’ land back.
    Will be nice bit for the OK US history AP curriculum.

  36. 36
    Baud says:


    Will be nice bit for the OK US history AP curriculum.

    In places it’s not banned!

  37. 37
    Turgidson says:


    I briefly allowed myself to dream that the four judges who voted to take this case were the liberals, knowing they had Kennedy and/or Roberts with them, and the intent is for Sotomayor or the Notorious RBG to write an opinion for the ages telling these cranks and charlatans to fuck off and go rub themselves in asbestos dust, and ending with “*drops mic”

    Then I come back to reality and remember it was almost certainly Clarence, Fat Tony, Sammy boy, and one of Roberts or Kennedy, and they did it to gut the ACA, propriety and court dignity be damned.

    Roberts is as much a politician as a judge, so I’m hoping he is keeping an eye on all the press about how this case is an even more pathetic sham than anyone thought, and will side with sanity just to protect his own legacy. But I’m not holding my breath.

  38. 38
    alce_e _ ardilla says:

    I believe that if the Supremes had realized how weak the case was when they took it, they would have probably let it go. Now they have a tar baby on their hands, and I believe that Roberts is probably looking for an easy way out of the mess that Scalia, Alito Kennedy and Thomas landed the court in.

  39. 39
    Villago Delenda Est says:

    @SP: This applies equally to military adventurism. See the deserting coward’s enthusiastic skin in the game in the ‘Nam.


  40. 40
    jl says:

    @Turgidson: That is what I mean by different motives. Roberts used his previous ACA decision to prepare the way for long term messing with commerce clause. If he was one of the vote, he might have similar ideas now.

    IANAL, but the you have to wonder how the justices will rule in favor of the plaintiffs without looking moronic, or corrupt for both at this point. I think a few on the court do not give a damn at this point, or have so thoroughly brain washed themselves that they are not in touch with normal reality. Not sure that reaches as far as Roberts and Kennedy.

    Scalia is so besotted with illusions of greatness and so self-indulgent that he might be mentally clinical at this point, though. When I read him talking about how he decides cases and his judicial philosophy(ies), I have the impression that he is very humbled to be given the opportunity to talk about such a Great Man, a Man of Destiny.

  41. 41
    West of the Cascades says:

    @burnspbesq: If the respondents didn’t raise standing concerns (which they didn’t), and there are facially adequate declarations in the record (which there are), there’s no obligation on the Court to raise standing concerns sua sponte just because it has the power to do so and several newspaper articles have come out undermining the facially adequate declarations.

    If the issue comes up at argument, and becomes a sufficiently contentious issue, the Court can order post-argument supplemental briefing on the issue. But the two alternatives you outline are rarely used in the absence of one party presenting at least some objection to standing. The government should probably have challenged the factual basis for standing in the lower courts, and could still file its own motion asking the Court to dismiss the writ and raise the issue.

    But where the only questions about standing are from news reports (which I have no doubt DO show some problems), I’d also have filed my reply without addressing the issue — and waited for the Court to order supplemental briefing where I’d have space to address standing without taking up space from the merits.

  42. 42
    Birthmarker says:

    Rec’ed for moops. Lol…

  43. 43
    Turgidson says:


    I also think Scalia reached a tipping point recently where he decided he didn’t need to pretend to care about precedent or philosophical consistency and that he’d just spend the rest of his time on the Court pursuing the ideological results he wanted.

    Don’t get me wrong, I think Scalia has been pretty dogged in pursuing the results he wants all along and his supposedly strict judicial philosophy has been waaayyyy more adaptable than he’d ever admit, but there were some precedents he respected. Now, however, as his Raich-to-Sebelius evolution dictates in the plainest possible terms, he doesn’t even feel the need to pay attention to precedent that he himself wrote less than ten years prior. Not when his own precedent stood in the way of an ideological end he was determined to pursue. He’s a glib, well-spoken, reactionary ass.

  44. 44
    rikyrah says:

    thank you for this. everyone knows that the suit is ridiculous.

  45. 45
    JGabriel says:


    Anyway, I hope that one of the four votes was to use the case to stop this type of lawsuit.

    It seems likely the fourth vote was from Kennedy – on the basis that he actually wanted to declare the entire ACA unconstitutional last time the court addressed it.

  46. 46
    Howard Beale IV says:

    @West of the Cascades: Was that just simply because of the time lapse between the original suit at the local level and now before SCOTUS?

  47. 47
    Ryan says:

    I don’t get the all caps thing.

  48. 48
    D58826 says:

    @burnspbesq: If SCOTUS rules against Obamacare, any doubt that the conservative five are just cheap political hacks in the pocket of the Koch brother, et. al. will be removed. The decision will rank (in all senses of the word) with Dred Scott and Bush v Gore.

  49. 49
    D58826 says:

    @efgoldman: Roberts provided the 5th vote in 2012 to avoid making the decision a political issue in the 2012 election. He now has to do something to get back in the good graces of his paymasters. Invalidate the subsidy based on a ‘screw up by Congress’ and he gets a two-fer – kills the law and shifts the blame to Congress. Granted anyone to the political left of Atilla the Hun will see thru the tactic but what does Roberts care,, he has a lifetime job.

  50. 50
    Epicurus says:

    Sadly, there is still no cure for the scourge of cranio-rectal inversion. Won’t you please give generously to the Society for the Prevention of Republican Thinking, aka Cranio-Rectal Inversion? The poor sufferers of this dread disease can and should be cured. Thank you.

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