467 thoughts on “How to obscure by reducing power of a test: Marotzke and Forster”

1. +1 Lucia

2. You seem to have a typo in your “60 non-excluded years”; maybe you mean 1962-2012 or some such?

3. Thanks. I thought I also changed that to 70– will fix.

4. I guess I’d add that the complaint about hindcasts is something that has bothered me for a while (and Pekka mentioned it as an issue as well at some point on climateaudit). The claim of MF seems to be that the model matched the data well (enough) in the past. If that is so, it is a very big problem that it isn’t matching the data well now; it essentially amounts to evidence that the model was tuned to the in-sample data, and is failing on the out-of-sample data.
   If MF is wrong and you’re right, and the model never matched the data well, to me that’s better: means the model is not very good but can be expected to do poorly but kinda okay in the future.

5. MikeR,

   If MF is wrong and you’re right, and the model never matched the data well,

   I’m not saying the model did not match data “well” in the past. Matching ‘well’ depends on what you mean. But the fact is: if we think about this properly, the models tend to be near or outside the range consistent with the ‘model mean + model weather’ during those periods when oversensitive models would tend to fall outside. Moreover: the veer in the direction one would expect for over sensitivity models: trends to high and positive when forcing is increase, too low and negative when it is decreasing. (They wouldn’t always do so– but that’s when the excursions would occur.)

   In contrast, they don’t fall outside during periods when being excessively sensitive would have no effect. Mind you: you would still expect some outliers during even those periods– you expect 5% false positives. But generally, the models do not veer out or in during the periods when mean forcing is moderate.

   This behavior points towards “over sensitive”. Tuning is is a bit separate– but tuning will tend to make a test of trends poor in the far past because of the variety of ways in which model results can be tuned.

6. So to see if I understand this correctly, you are saying that: MF _actually_ looked at the full 112 years of data / 15 year trend –> about 7.5 tests, found only 3 excursions, and said that that was fine? How many should they have seen?

   I’m just trying to check that a change from 112 years to 70 years makes the difference that you’re pointing out.

7. “Moreover: the veer in the direction one would expect for over sensitivity models: trends to high and positive when forcing is increase, too low and negative when it is decreasing.” Sorry – how do you see that from the graph? If it’s from what the heavy black line is doing, I’m not seeing much.

8. MikeR,
   I didn’t try to fully describe the paper but a partial synopsis of the bits relevant to what I’m discussion are:

   1) At the outset, they admit the most recent 15 year trend is outside the range and that one determine this by comparing the recent spread of trends to the most recent observation. Based on this some are diagnosing the models are oversensitivity.

   But they then argue this is jumping the gun because:

   2) They say that’s just one case out of “many possible” and so it’s better to look at all ‘available” 15 year trends.

   3) They create all “available” 15 year trends for models and observations, and compare.

   4) They conclude that because the observations are “mostly” inside the spread of ‘model mean + ‘model weather’ spread, that one should see that the recent excursion when put in context of the “whole history” doesn’t matter.

   Oddly, the text does mention the fact that the model mean is at the extremes during periods of… ehrm… high rate of change in forcing. But make it sound like this (somehow) doesn’t point to models being over sensitivity. Specifically, the write stuff like:

   For most of the historical period, the entire ensemble of regression based
   simulated 15-yearGMST trends lies within the model-estimated 5–95% confidence interval of the observations (Fig. 2a). The regression- based simulated ensemble partly falls outside this interval during the cooling following the Mount Agung eruption and the subsequent warming recovery, as well as for start dates after 1990, which include the warming recovery following the Mount Pinatubo eruption and the surface warming hiatus (Fig. 2a). Because the phases of volcanically
   driven cooling and subsequent warming coincide with larger regression spread due to the ERF trend (Extended Data Fig. 4), we speculate that the implementation of volcanic forcing requires improvement in some climate models.

   Let’s parse this:

   (a) for ‘most’ of the historical period the GMST trend (red line) lies inside the bands. This means yes, they are looking at the full 112 years. Note that at least half of this periods are those when excess climate sensitivity would have nearly no tendency to cause GMST trends to fall outside the bands. That is: his diagnosis includes the periods where the red line is blotted out in by the overlayed white box in my figure.
   (b) excursions do exist. When do these happen: During periods when mean forcing is changing. That is: the excursions do happen and they happen precisely when one would expect them to occur if models are too sensitive.

   As for their speculation: “we speculate that the implementation of volcanic forcing requires improvement in some climate models we speculate that the implementation of volcanic forcing requires improvement in some climate models”

   Well… ehrm… yes. As these excursions are precisely what one expects if the models are too responsive to forcing, the required ‘improvement’ could well be “do something to eliminate the excess sensitivity”, which is causing excursions during periods when mean forcing changing rapidly.

   So, it is all very odd. The text seems indicate they conclude the models are not oversensitive precisely because the include periods where over-sensitivity models would show no excursions, diagnose lack of excursions in that period as somehow indicating lack of oversensitivity and then wave away those excursions they admit exist to … well… happening somehow due to well… volcanos. But that’s exactly what one expects if models are over sensitivity to changes in radiative forcing.

   One could hardly find a better example of “how model data comparisons would look including the timing and direction of disagreement” than the data they show. But… well… they conclude the opposite. It’s odd.

9. MikeR, The excursions happen in the area I point to with arrows in the second figure. So I’m assuming you want to know how I know those are at the right time and direction. That has to do how “Temperature” relates to “forcing” and “sensitivity”. M&F’s model version is their equation (3) which they expand as

   
   I’ll use this equation tweaking the meaning of overbar and prime. In MF, overprime is the “average over the ensemble of models” and the “prime” is deviation from that average. But the equation is equally valid if the overbar was “true value for earth” and the prime was “deviation from true value for earth”. My discussion will use the latter.

   Notice I’ve put a square around a term. If a model has “too much sensitivity”, its “alpha” (α) value is smaller than that of earth and it’s “alpha prime” is negative. so when the mean forcing ΔF during a periods is positive, the temperature response of that model response will be too big. That is, it’s ΔT will be positive. If the average for models is too large, this means the model mean value will be larger than expected for earth, and the red line in the figure will tend to veer up higher than observations.

   By the same token if ΔF us negative, that model will veer more negative than the earth (and a collection of oversensitivity model will do so as well.) If ΔF is zero, that model will not tend to “veer” up or down.

   The reason I only write “tend” is the ε in the equation represents “weather noise”. So, that can mask the effect.

   So it’s the equation that tells us that if models are oversensitive:

   1) they will have no tendency to be show high or low trends during periods with little change in forcing. So we can’t use that period to diagnose oversensitivity. It’s irrelevant. This motivates my blotting out the periods with low forcing.

   2) the ‘red line’ will sway toward the high side of the weather spread (black range lines) . That’s what they do during the later part of the century– especially after 1990 and so on– the latter we diagnose from looking at the figure.

   3) The red line will sway toward the low side of the weather spread when the change in forcing ins negative. That’s what happens in the 50s which we see by scanning the figure.

   Hope that helps.

10. By the way if the criterion for ‘blotting out” was to include periods where the forcing was sufficiently high to achieve at least 50% power, using the values internal to M&F, I get this blot out:
    

    That is: If we want the test to have statistical power (as required to make a “fail to reject null that models are ok” mean anything at all) we would restrict tests to the period that had been tested before MandF did their paper. That would be the period that is causing people to conclude we have some evidence the models are too sensitivity. 🙂

11. Lucia,
    That M&F adopted a host of doubtful approaches already suggests (to me at least) that the paper is very weak. Your post just adds to this. The entire ensemble of ‘post-hoc’ explanation papers (M&F being just one of many) for divergence of GCMs from reality is IMO symptomatic of what is wrong with climate science. The simple (and probably correct) explanation is that the models are almost all biased very warm….. much too sensitivity to forcing. Continued divergence over the next decade (as is likely) will make papers like M&F, and many others, irrelevant. It is unfortunate but true that scientific progress sometimes depends on the departure from the scene of influential scientists who are the most resistant to progress. More need to follow Jim Hansen’s example.

12. Wouldn’t an alternative to your method be to compute the bias factor

    $latex \tau_{model}= \beta \tau_{data}$

    where $latex \beta$ is the bias factor and $latex \tau$ is the temperature trend over some window of data (say a 15-year interval)?

    Using ordinary least squares, this would amount to computing the best-fit value $latex \hat \beta$,

    $latex \hat \beta = {\displaystyle \sum_k \tau_{model,k}\tau_{data,k} \over \displaystyle \sum_k \tau_{data,k}^2}$,

    where $latex k$ is an index over all of the windows in the series.

    Note that we can write this more compactly as:

    $latex \hat \beta = \sum_k W_k \tau_{model,k}~,$

    with

    $latex W_k = {\displaystyle \tau_{data,k} \over \displaystyle \sum_k \tau_{data,k}^2}~.$

    Note that $latex W_k$ has a very small weight in regions where there is little historical warming.

    This effectively achieves the same goal as applying a threshold cut to the data (as you have) by simply down-weighting regions of the temperature series where the trend in the data is very small.

    In practice, we’d replace ordinary least squares with total least squares, but it seems to me this is a practical method that uses “all” of the data.

13. Continued divergence over the next decade (as is likely) will make papers like M&F, and many others, irrelevant. It is unfortunate but true that scientific progress sometimes depends on the departure from the scene of influential scientists who are the most resistant to progress. More need to follow Jim Hansen’s example.

    To some extent, the fact that we have entered a period where people are recognizing the models are too warm (which was evident in 2008) and knowing that either this realization will be confirmed or overturned depends on the weather is a factor that ‘demotivates’ posting about it.

    M&F is a sort of remaining attempt to claim that the models are not inconsistent with the data– despite many who are admitting it appears that way. (Could still be an outlier. That’s always the case.) It’s just sort of funny to see how they did it.

    Oddly, to my way of looking at it the issue I discuss here overwhelms the others. The onerous way of identifying “weather noise” is silly it can be determined more easily and directly without resorting to assuming an approximate physical model– that’s odd. But it’s answers are so bad. (I’ll get numerical comparisons later, but they aren’t pathological.) Showing the standard deviation of model runs? Misleading, but they don’t use it for much of their conclusions. There’s lots of weird sh*t in there… but really, I think the “testing ‘oversensitivity’ using data from periods where that where oversensitivity would not result in disagreement”? Head explodingly bad idea.

14. Carrick

    This effectively achieves the same goal as applying a threshold cut to the data (as you have) by simply down-weighting regions of the temperature series where the trend in the data is very small.

    I’d have to go through your suggestion in detail to know whether it’s quite right. (It might be). But the idea of using a ‘down-weighting’ or some sort is preferable to throwing out. I think the full method is actually quite complicated because it has to properly weight:

    1) relative power in different periods. (That is– instead of throwing out, ‘downweighting’ by statistical power. Years with no statistical power to test should be downweighted and it must be done in a method that maximizes power overall.

    2) take into account the fact that the 15 year trends are overlapping. So, they are far from uncorrelated. How to deal with this best? dunno.

    For a “quick and dirty”, this post explained the issue. It certainly shows M&F’s result is far from robust– you only get it if you include years that have nearly zero ability to test the claim of biase (and which will cause one to conclude the claim is wrong as a result of being included.) Once that is shown, then one can figure out if more work is warranted.

    I think more work is not warranted principally because what actually happens to temperature in the next three years matters more than any nuance in an analysis. If temperatures don’t go up sharply… well.. that’s more convincing than any analysis. If they do rise sharply… once again: more convincing.

15. Lucia, you are to be commended for finding a $100-bill on the ground that was scoured by hundreds a few months ago. The common sense thought experiment of “what should I see if…” is a great tool. And you are right on that the bulk of M&F’s test is in an inactive period where there is no testing going on. Greg Goodman found in the last days of the commenting that all three of the significant volcanoes of the 20th century threw the models for a loop. But Greg only concluded that this indicated the model’s aerosols were too negative of a forcing, which had the effect of masking the overly positive GHG forcing. But you bring up an equally plausible alternative that overly negative reaction to volcanoes could be simply the models having too high a climate sensitivity, (rather than overly amplified forcings).
    .
    My biggest beef on the first section of M&F15, along with many others, was the fact that the models were tuned to simulate the historical data, including the addition of random ENSO noise, and the main claim by M&F was that the models were too noisy for anything to be said about 15-year trends. This reasoning then allowed them to broadcast to the world that due to their “novel” study: “Sceptics who still doubt anthropogenic climate change have now been stripped of one of their last-ditch arguments.” Yet, the announcement uses data ended more than two years earlier. It’s now a 17-year pause, and likely qualifies as an unprecedented excursion as we write.
    .
    This announcement was the whole purpose of the paper. All the convoluted math was a smoke screen. The second half of the paper that concluded feedbacks and ocean uptake had no affect on the trend was a diversion. If one could be cynical enough to give Marotzke credit, Nic Lewis and others fell right into the trap of going after the outrageous second half of the paper, which consumed 90% of the Climate Audit discussion.

16. Ron Graf,
    Incorrect forcing can also cause the ‘volcano’ forcing. But if the purpose of the study was to figure out if the models have excess climate sensitivity, one has to recognize that that is precisely what would happen if they were overly sensitive. So ‘waving away’ those excursions on the ground that they might be caused by incorrect forcing — and without checking whether they were– suggests a tendency that the researchers were actually indulging in an attempt to confirm their pre-conceived biases.

    In fact: they waved away most excursion out of “weather noise” because they happen in periods of high forcing. But those are the exact type that would happen if climate forcing was high.

    Carrick
    I thought a bit more about a plot of “difference between obs and models vs. Forcing. It wold be a useful plot. I have some model data available, so I might do it. It will be very noisy, but it will be interesting to see if there is anything detectable.

    Oddly, if one were creating a lab test, to maximize sensitivity to detecting trends, you would not want a huge cluster of data at low “model trend”, you want a large spread. But we have what we have.

17. Presumably if you plot model trends against real temperature trends you ought to expect a 1:1 straight slope going through 0,0. If the models diverge (too sensitive) then the slope should steepen – kinda like y=tan(x) but obviously not steepening to infinity, you get what I mean…

    Time series are all very well but they rely on the eyeball to ‘pattern match’.

18. Lucia: “…if the purpose of the study was to figure out if the models have excess climate sensitivity…”
    .
    The paper’s conclusion about CS is: “The claim that climate models systematically overestimate the response to radiative forcing from increasing greenhouse gas concentrations therefore seems to be unfounded.”
    .
    This slippery and carefully worded sentence leaves outs for all sorts of problems with the models’ forcing, or noise level, or accuracy, or even overestimation of response to GHG for the cases where it is not systematic. The claim has nearly no value. M&F are basically saying “we’re pretty sure, if we did our novel regression analysis correctly, that the IPCC models are free from at least one of a dozen possible problems that would invalidate them.”
    .
    The bigger issue is that the world’s news media reported the models were validated by M&F’s study as they parroted the Max Plank Institute’s announcement: “Sceptics who still doubt anthropogenic climate change have now been stripped of one of their last-ditch arguments.”

19. I have not read through your “word salad” (as aTTP calls your posts), however, I did origionally see your post from his blog.

    FYI:

    …and Then There’s Physics says:
    June 10, 2015 at 7:54 pm

    Lucia’s post just seems bizarre. She appears to be suggesting that Marotzke & Forster are essentially testing the following claim

    The claim that “climate models systematically overestimate the response to radiative forcing” is that models over estimate response to radiative forcing. That is: the models might predict too high trends when radiative positive and high and likewise would predict trend that are too low when radiative forcing has a large negative value. When radiative forcing is very small, the error would exist, but would be very small. When radiative forcing is equal to zero, the model mean will have no bias.

    and that they didn’t really do so, hence their suggestion that the above claim is wrong is in error. Essentially, Lucia seems to be suggesting that if there is some bias, that it’s magnitude will increase as the change in forcing increases and that there should be no bias if there were no change in forcing. So, she seems to think that to test this you should remove periods when the trend is small, since that would correspond to periods when the change in forcing was small. However, this ignores that the suggestion in Marotzke & Forster is that the mismatch is largely because of internal variability, which does not mean that a small trend has to correspond to a period when the change in forcing was small. Anyway, that’s as much as I can manage. Maybe Nic can explain why he seems to think it’s a good post?

20. Howard:

    and that they didn’t really do so,

    Their method of testing is stupendously defective.

    hence their suggestion that the above claim is wrong is in error.

    Their suggestion is in error.

    Essentially, Lucia seems to be suggesting that if there is some bias, that it’s magnitude will increase as the change in forcing increases and that there should be no bias if there were no change in forcing.

    Yes. I am that IF the the bias is due to excess climate sensitivity (that is if the α s are in the mean; are correct) , there would be no ‘upward’ or ‘downward’ bias in trends when there is no forcing. My claim follows from directly from the definition of “climate sensitivity’ and is also entirely consistent with the curve fit equation used by MF. For the convenience of those who wish to see the term in MF that says exactly what ATTP says I am “suggesting”, see the equation below. Focus on the term outlined in magenta/pink:
    
    See the outlined term.

    So, she seems to think that to test this you should remove periods when the trend is small, since that would correspond to periods when the change in forcing was small.

    This is also a direct consequence of MF”s equation above. See the first term on the right hand side. If the mean change forcing is small, the model mean trend should be small. (Or at least should be if the models are even remotely correct. If they are totally wrong…. all bets off.)

    However, this ignores that the suggestion in Marotzke & Forster is that the mismatch is largely because of internal variability, which does not mean that a small trend has to correspond to a period when the change in forcing was small. Anyway, that’s as much as I can manage. Maybe Nic can explain why he seems to think it’s a good post?

    No. This doesn’t ‘ignore’ that MF suggestion (which is in fact a “conclusion”). I am saying that conclusion is unsupported if we make a valid comparison. I could hardly criticize it as wrong and “ignore” it at the same time. Heh.

    I’m not going to comment on my opinion of how much ATTP can “manage” nor why based on his often saying referring to his ability to “see” or “manage things”. But I would suggest that his inability to see or manage things isn’t an indicator that something either ‘isn’t there’ or “something people with ordinary levels of intelligence can’t manage”.

    FWIW: salad is healthy. Even better with dressing.

21. Jit

    Presumably if you plot model trends against real temperature trends you ought to expect a 1:1 straight slope going through 0,0. If the models diverge (too sensitive) then the slope should steepen – kinda like y=tan(x) but obviously not steepening to infinity, you get what I mean…

    Time series are all very well but they rely on the eyeball to ‘pattern match’.

    If the models were perfect in the mean and there was no “weather noise”,you will see a slope of 1 and no scatter.
    If there is weather, the slope should be 1 with some scatter.

    If the models diverge (too sensitive) then the slope should steepen – kinda like y=tan(x) but obviously not steepening to infinity, you get what I mean…

    Precisely. But based on the ATTP quote Howard posted, perhaps ATTP doesn’t “see” this. 🙂

22. Oh– Jit. Carrick’s comment motivated me to fire up R. I have to update some moduls that read temperatures (because the agencies change their web pages and so on.) But likely next week I can plot “model mean” vs “model mean-observations” which makes it easier to see things than “Model mean” vs “observations” themselves.

    The graph will contain a lot of noise… but Carrick’s suggestion (which goes along with what you are observing about graphing ) is a good one. The thing is the “blog out” method could be done and discussed in 2 hours. The graphing… well, I have to update my scripts to read, code a bit, figure out which graphs look prettiest and so on.

    (There are problems with making ‘conclusions’ based on the graph– due to strong autocorrelation in overlapping 15 year trends– but I’ll think about that.)

23. Ron

    “Sceptics who still doubt anthropogenic climate change have now been stripped of one of their last-ditch arguments.”

    Well… they haven’t. Because the analysis is so ridiculous. It is nearly “upside down Tijander” wrong. But that’s not quite fair. Still, someone who really thought about the type of disagreement one would expect if models are too sensitive and which sorts one would not expect would recognize that analysis simply does not engage the claim about sensitivity. To begin to engage the claim, you can’t “reject” the claim because the models are not biased during periods of low forcing. The reason you can’t is that they wouldn’t be biased during those periods if the claim was true.

    This is simple logic. The only “physics” or “math” is showing why those period blotted out are the ones you can’t use to test the claim. And that “physics” is pretty elementary– it’s called “understanding what climate sensitivity means”.

24. “Sceptics who still doubt anthropogenic climate change have now been stripped of one of their last-ditch arguments.”

    This is so out of touch with reality that it’s almost as scary as some scary climate doom scenarios. Which is ironic. And surprising. And all the other things some people feel compelled to say on climate blogs.

    Andrew

25. While bunnies can find times in the instrumental record when forcings were smaller than they are today, finding significant periods when they were strongly negative or even low within the instrumental record makes one doubt Lucia’s method.

    http://www.drroyspencer.com/wp-content/uploads/RCP6-radiative-forcing.png

    Of course, you could always look to the future

    http://www.pik-potsdam.de/~mmalte/rcps/graphics/RadiativeForcingRCPs.jpg

    or the past

    http://ossfoundation.us/projects/environment/global-warming/radiative-climate-forcing/image/image_view_fullscreen

26. finding significant periods when they were strongly negative or even low within the instrumental record makes one doubt Lucia’s method.

    Could you please explain how or why finding these periods in the instrumental record remotely touches on the argument in my post. Plz. Use. Words. Bunnies may wish we could read the “brilliant” thoughts in their heads. But it would help mere humans if you revealed them in words.

27. The climate true believers are now in a position similar to that of those fundamentalists waiting on the rapture to explain why its absence is actually proof of their faith and the accuracy of their interpretations.

28. The bunny droppings seem an awful lot like a John Edward cold reading.

    http://www.skepticreport.com/sr/?p=378

    John Edward: He’s telling me to talk about the person who either studies navigation or radar, or somebody who did something that would have….BEEP, BEEP….whatever this BEEP thing is. What is this?
    Sitter: It’s an airplane navigation tool.

    John Edward: Did he do this? Or what is this?

    Sitter: Yes.

    YMMV of course.

29. Is this the same notorious Prof. E. Rabbetticus Halpernicus, who has been found guilty of dispensing cryptic, sleep inducing lectures to hapless chem students at Howard U?

30. The Moving FingerRabett writes; and, having writ,
    Moves on: nor all thy Piety nor Wit
    Shall lure it back to cancel halfclarify a Line,
    Nor all thy Tears wash out a Word of it.

31. 2 critics, Howard and Eli, with something to think about.
    Both bright enough to recognise the logic is good.
    Both too committed to be able to say yes you are right, this could be a lousy paper.
    Seeing the negative and positive oversized responses is icing on the cake as it doubly proves the assertion.
    Would love to see you comment on C and W claim that their Kriging presents perfect matches when cast on other parts of the world than the Arctic ( I think they did Africa).
    No 5% expected error rate for those boys either, just 100% matching. MF2015 must be jealous.
    Another time perhaps.

32. Moving Rabett?

    Oh Marvelous.

33. angech

    Would love to see you comment on C and W claim that their Kriging presents perfect matches when cast on other parts of the world than the Arctic ( I think they did Africa).

    We discussed C&W long ago. Others have more to say about kriging than I do. My main observation is that the slight change in temperature trends doesn’t affect the evaluation of model/observational agreement. The models projections look slightly less out of-whack, but they obs are still drifting in and out of the model run spread.

    If I recall correctly, the IPCC decision to pick a different baseline in the AR5 made a larger difference in making models look not so bad than temperature adjustments. But if the models really are out of whack, we can expect the temperatures to continue to flick in and out of the model range until they drift ‘permanently out’. On the other hand, if the difference is one of the other reasons- volcanos, internal variability, sun etc– the observations will creep back in and eventually follow a trajectory inside the spread. This is not a process one can speed up– new monthly temperature come in once a month, no faster, no slower.

    (Note: the change in baseline choices doesn’t affect trend comparisons, just absolute anomaly comparisons.)

34. Eli:

    Of course, you could always look to the future

    Oh please.

    There isn’t any point at looking at the future of course, since it’s completely self-referential: Basically you are using the model output to show the models work.

    I agree that looking at the past is useful, but if you go beyond the cartoon-level analyses you were looking it, there is still a wide spread in ECS values, incorporating both luke warmer and extreme high values.

    So there’s not much to learn from that actually.

35. Howard:

    I have not read through your “word salad” (as aTTP calls your posts), however, I did origionally see your post from his blog.

    I did read the full article that Lucia wrote, and had no trouble following it. Conclusions about ATTPs lack of technical ability and the dishonest nature of his argument style follow immediately from this observation.

36. Carrick,
    One can’t help but note that in the ATTP quote Howard posted, ATTP’s comment amounts to:

    “Lucia suggests and/or seems to think something. ATTP is having trouble managing more than that. Nick could you explain.”

    In fact: Yes, I suggest/think/state a number of things — all of which can be objectively discussed. Notably ATTP does NOT say he thinks the things I “seem to suggest” (and so on) are wrong. His prose insinuates that it might be wrong by using constructions like “seems to think”.

    Well… uhmm.. Yeah. I think excess climate sensitivity results in model projections veering to high when the forcing is high and to far negative when the forcing is low and unbiased otherwise. This is not a difficult claim to parse. And more over if it were wrong a person who knows high school Algebra II could show it was wrong. Presumably ATTP, who is a professor of physics, knows high school Algebra II (which clever students take their first year in highschool haven taken algebra and geometry in junior high).

    Presumably he’s seen the equations in MF2015. One would think he would perfectly well understand the observation about climate sensitivity and bias in projections even if he overlooked the fact when he first read the paper.

    But. No. What is one to say of the man?

37. Lucia,
    “The models projections look slightly less out of-whack, but they obs are still drifting in and out of the model run spread. ”
    .
    But as I think many have previously discussed, since each model is a logical construction which is supposed to be “stand-alone” and independent of the other models, using the spread of the ensemble strikes me as, well, logically indefensible. There are a few models (including the GISS Model E, IIRC) which actually don’t look as bad as the ensemble, and it seems no coincidence that those few models also diagnose relatively lower overall sensitivity.

38. Carrick,
    “Conclusions about ATTPs lack of technical ability and the dishonest nature of his argument style follow immediately from this observation.”
    .
    Seems to me his preferred tack is a passive-aggressive style. And no matter how outrageous/disingenuous his comments, he usually gives himself a mealy-mouthed excuse if someone calls him on what he writes (eg. “I didn’t actually mean it that way….. you just misread what I wrote”). He’s a dedicated green advocate who is not interested in a real discussion of disagreements of any kind, and especially not technical disagreements (where, as you and others have noted, he appears remarkably weak).

39. My experience on that same thread is exactly the same. Rice insinuates your correct technical statements might be wrong and refuses to engage on their substance. Did he not understand them, does he not have the time to really engage, or is he just technically shallow as a scientist? He instead objects to the “tone” of opinions that are actually rather common and mainstream and allows the trolls to smear you.

40. David Young

    The troll attack is uncontrolled and unrelenting. Civil discussion? Worst joke ever. Rice’s blog is a mindless echo chamber patrolled by a goon squad of green loons. I don’t even bother to read it any more, unless I need a laugh.

41. Carrick: I was just passing traffic…

42. Also, I found the “word salad” moniker ascribed to Lucia to be a cryptic misogynistic dog-whistle.

43. Months ago I asked Steven Mosher some basic questions about why there is such a big investment in black boxes when we know we have only uncertain, noisy data to feed them, cannot validate the processing, but are certain first principles are contaminated by hand tuning, know their output questionably simulates the past and unquestionably fails to predict the future. He said that he used to work with military contractor’s models and they were terrible too but they were better than nothing.
    .
    Military models can undergo constant validation testing. I would say CMIP5 is somewhere between this and three witches and their bubbling caldron, which by the way, is also unproven to be systematically overestimating GHG forcing.
    .
    CMIP5 was billed as the modeling Olympic Games except nobody gets eliminated. Therefore it’s like a each country is representing their vote on climate policy through the performance of their nation’s climate model. The ensemble mean is world democracy in action, political science through physical science surrogacy.

44. Ron:
    Isaac Held is the go-to guy for climate models. Here, he attempts to answer your question from his (minority) view
    http://www.gfdl.noaa.gov/blog/isaac-held/2015/06/07/60-the-quality-of-the-large-scale-flow-simulated-in-gcms/

45. I looked at this Held post and it is not completely wrong. You will note that he acknowledges the very big problems with convection and clouds. He is really only saying that GCM’s do a reasonable job in the colorful fluid dynamics norm of predicting mid latitude circulation patterns. Clmate is much more than that of course and his fig leaf about these patterns being 2D is not really convincing in any scientific sense. 2D can be just as difficult as 3D and has all the problems of 3D anyway. It’s a weak, but honest, attempt to put the best face on models that have little skill.

46. SteveF, I had adopted Rice as a project and have made some good points at his blog. But the troll pollution, especially the pesky rabbet and the grey literature specialist Pukite make it almost impossible to stay calm and focus on science. Just as at Real Climate, the trolls constitute a conscious strategy to discredit real scientific discussion the proprietor doesn’t like. It makes a joke of the facade of civility.

47. ATTP has not been worth visiting ever. This thread highlights why very clearly. Reading ATTP’s posts – nearly always places he has banned the hosts from- shows someone who will not openly or honestly discuss an issue and depends on deception as sop.

48. hunter,
    I am blocked from ATTP’s twitter. I discovered accidentally because I do see the tweets others in my stream retweet and I clicked to sees something fuller.

    I have no idea whether I am blocked from commenting at ATTP’s blog. I’d have to try to comment to learn. I’m not sure I ever have tried, so I don’t know. (Maybe I’ve commented there. Not sure.)

49. Ron Graf: “Political Science” Wow, am I slow. Ten years into this stuff and the dime finally dropped.

    I never could understand how the ensemble mean could have any greater significance than one of the models. And that along with statistically discovered teleconnections.

50. I recall some interesting exchanges between Ben Pile and aTTP at Bishop Hill. I kept hoping for aTTP to be won over, if only to be able to refer to “Ben’s converted Rice”.

51. ATTP has not been worth visiting ever.

    I wouldn’t say that. I don’t see much point in posting there, but I read it. Their perspective isn’t one that I can easily mentally reproduce without looking at what they say. Doesn’t come naturally to me as it’s not my perspective. If for nothing more than picking up some limited understanding of the arguments and ideas of people I (edit add: usually) disagree with, I still read what ATTP has to say, when I have a minute.
    I do think the bit about not understanding Lucia’s argument is a pose. I’m not sure my 11 year old would get it, but he might.

52. Howard

    Also, I found the “word salad” moniker ascribed to Lucia to be a cryptic misogynistic dog-whistle.

    I understood you to be commenting more on ATTP than on me and also didn’t think you intended to suggest you agree my posts are “word salad”.

    The fact is: I find that many normal people can understand my posts. Even people who disagree with me can generally understand my posts. So I’m not too worried.

53. jferguson

    I never could understand how the ensemble mean could have any greater significance than one of the models. And that along with statistically discovered teleconnections.

    It doesn’t have “greater significance”. But if you are trying to detect bias it’s useful to test whether the mean is biased high or low. You can do an essentially similar analysis without ever mentioning the mean, but bias tests are clearer by taking the mean of the collection that might be biased.

    Think of this: Suppose I claim I have both an excellent ability to estimate heights and I can do so based based on memory, I guess the average height of 100 men. You have the data for their real heights. How can you determine whether my guess is biased high or low?

    Well… you can do a t-test, and announce the result somehow never mentioning the mean of my guess, the mean of their true heights and the scatter of their heights and my guesses. But if you look at the formula, you’ll see that what you do is compare the difference in means scaling that difference by a standard error (which involves using the standard deviation of their heights and my guesses.)

    So in the end, it is easier to discuss whether or not there is a bias in the guess by discussing how the means of my guess and the observations compare.

    While the “mean height” of each man has no particular significance to any individual man, it has enormous utility in detecting bias.

    Of cousre, those who wish to avoid detecting bias in a collection might want to spend time talking about how it has no particular significance because you don’t expect individual mean who walk in that door to have that height…. and so on. While it’s true the mean does not represent a prediction of the height of the next man who comes in the door, that observation is irrelevant to whether or not the comparison of means is useful for testing bias in a collection of guesses or projections.

54. ATTP is worth reading, he puts up thought provoking arguments and the comments there express one side of those arguments. But there is a void when it comes to considering both sides of the argument.
    Lucia’s discussion highlights this void when attracting Eli and Howard to comment.
    All 3 are perfectly able to understand the argument scientifically.
    But the consequences of accepting the argument
    Ie MF2015 is mathematically poor and incorrect
    fLls into this void.
    They cannot accept that any part of any argument put up to prove AGW is not right for fear that accepting one part is wrong will open the floodgates to questioning the whole of AGW.
    This is very sad for it is not true.
    Good science should prevail.
    They should have the courage though to speak out on bad science
    Or put up an acceptable scientific defence.
    How about it, Eli?

55. I have an alternative hypothesis that there is something else going on with the ATTP crowd. It has to do with the elevation of science to a new religion. You can see a perfect early expression of this in the early Bertrand Russell. Religion is superstition whereas science is truth. Scientists become the new priests. The pesky rabbet is an elder, and the political lefties become the inquisition, seeking out heresy and exposing and if possible stamping it out. This is why ANY negative statement about science, even if it comes from scientists themselves causes an emotional response. This is one of Rice’s weak points. He simply cannot entertain any view about science, no matter how mainstream, that implies there is anything important that is wrong. Since this is an emotional response, it blocks real thought once it is engaged.

56. I wouldn’t say that. I don’t see much point in posting there, but I read it.

    I do post there, although I and the regulars there seem to be acting out the ‘Argument Sketch’ pretty well.
    .
    It’s like English 101 needs a new category.
    .
    Purpose of an essay: inform, persuade, explain or entertain
    .
    Purpose of blog postings: argue

57. Howard:

    Carrick: I was just passing traffic…

    Yes I know, I wasn’t being critical of you.

    ATTP put himself into a bit of a rhetorical trap over describing quite readable prose as “word salad”, when the real problem was that ATTP didn’t do his homework (he apparently hasn’t read Marotzke and Forster, based on his ham-fisted rebuttal attempt).

58. Lucia:

    I understand what you are saying about using the mean of the models to test for bias. Which would be useful to test a model compared to all the other models.

    But what purpose is served by comparing observations to the mean of the models? As if the mean of the models means anything.

    I would think (not actually being a statistics person) that each model would be compared to the observations. Some models would be so far off (some threshold test perhaps) that they should be thrown out of the ensemble.

    Anyway – just curious what your thoughts are on the dark black line (ensemble mean) line when compared to observations – does it have any meaning?

59. Rick, if you haven’t seen this you might find it interesting:

    http://wattsupwiththat.com/2013/06/18/the-ensemble-of-models-is-completely-meaningless-statistically/

    It would also be interesting to know Lucia’s take on Dr. Brown’s sophisticated analysis/tirade. I am impressed, but what do I know.

60. I understand what you are saying about using the mean of the models to test for bias. Which would be useful to test a model compared to all the other models.

    I’m not saying the multi-model mean is useful for comparing one model to all other models. You don’t need the multi-model mean to compare one model to other models. You can compare two models to each other the ordinary way: compare one model to another. The multi-model mean is irrelevant to that.

    But what purpose is served by comparing observations to the mean of the models? As if the mean of the models means anything.
    If your purpose is to detect whether the collection is biased as a whole, you will compare the mean of the collections to the observations. I’m not sure why you are trying to focus on the ‘meaning’ of the multi-model mean. The mean of x has the ‘meaning’ of “being the mean or average of x”. That’s what it means. It doesn’t need to have a “physical meaning” to be useful for testing certain claims. Lots of things in physics don’t need to have “physical meanings” to be useful when testing something.

    The models are intended to predict observation in some sense. The only way to detect bias in a model or models is to compare models to observations. The models as a collection could be biased either by:
    1) all models biased high.
    2) the preponderance of models high.
    3) all models biased low.
    4) the preponderance biased low.

    Alternatevely, they could be unbiased in one of two ways:
    1) none of the individual models are biased or
    2) individual models are biased but the balance is such that ‘high’ models balance ‘low’ models.

    Each individual model could also be biased in the exact same way.

    The only way to test whether an individual model is biased high or low is to compare to that which they are intended to predict. These are ‘observations’. To do this, you compare the ‘model mean’ to the observations, taking into account the scatter you expect from “weather”. The scatter is required because the observation is a realization (equivalent of a ‘model run’); it’s not a ‘mean’ over many realizations (e.g. ‘runs of the earth.)

    The statistically most powerful way to test whether the collection (i.e. ensemble) is biased on average is to do the exact same test using the multi-model mean. So you compare the multi-model mean to the observation.

    You can also test the models individually against observations and find collective bias in a number of ways. But the method with the greatest statistical power is to compare the multi-model mean to observations (accounting for noise.)

    You can then determine whether the collection as a whole is biased. This test doesn’t tell you which models are biased. Doing this test doesn’t prevent you from testing each model individually. But the most powerful methods of testing for bias generally involve testing differences in means. It doesn’t matter whether the ‘mean of X’ has a physical meaning: that’s what you compare when trying to detect bias.

61. RickA,

    You’re not alone in wondernig why the ensemble is treated as anything other than noise. But the IPCC has hitched its horse to that wagon, and Lucia has made the point in many other posts observing that even if you accept the validity of the ensemble mean the IPCC projections run hot.

62. Don Monfort,
    I think it’s a rant. He’s also confusing the set of “tests to do the sorts of things he thinks are priorities” with the set of “all possible tests that could be used to answer a question that is important”.

    I get that he may think the only important thing is to test individual models and improve individual models. In his field, I would even agree. But that doesn’t mean the only important thing is to test individual models or improve individual models. In fact, given the inherent complexity in modeling climate, it is important to determine whether models that people are using to project the future are biased high or low.

    I get that knowing this alone doesn’t help us diagnose which models are the poor ones. But it does help us recognize that at least some must be poor and to also know that on average the group is biased in a particular direction. That Brown doesn’t value this… oh. well. and more importantly. So. Friggen. What.

    It is important to know this– and I think lots of people know it is. It may in fact be easier for someone who does not have a high falutin’ degree to grok this. After all: if the bias in the models is ‘high’, and the models contain some that predict “higher” and some “lower” you know that the reason for the “high” bias is some of the higher ones must be wrong. This is useful information.

    Now: one might suggest: just tests individually. You could find out the same thing and it “makes more physical sense”. Well, in principle true. But in practice testing the mean has more statistical power to detect the bias in the set. And you should want to know whether there is a bias. So even if someone thinks another way is “better” based on “physical meaning”, that way is statistically less powerful.

    The correct questions are not:
    Which tests make the most “physical sense”? They are:
    1) What question do you want to answer?
    2) What method gives us the most statistically powerful test to answer that question? Then you pick the most statistically powerful test.

    The reason you do (2) is that you want to maximize the likelyhood you get the correct answer to the question in 1. If you focus on anything else including “what makes the most physical sense to me”, you need to get a sh*t was more data to get the answer your question. And even if doing the most powerful test sends Brown into a spin, well… tell him to pound sand.

    If our question is to find out whether the batch of models is biased relative to the true earth, we can test the multi-model mean against the earth. This test is more statistically powerful than a model-by-model test. Whether it has “physical meaning” is utterly irrelevant to the equation of whether this is the most robust way to detect a bias.

    Now.. if dr. brown wants to explain why we should not care that the batch is biased on average even though it does help us understand that some models must be wrong (and therefore can be ingored).. he can do so. His shouldn’t require more than a paragraph. If his reason is a good one, he should be able to explain it in a way that is clear to people whose degrees are “hair dresser” or “plumber”. The explanation doesn’t need to refer to any specialized knowledge of physics. It only needs to engage this question:

    “Why don’t we need to know that the typical models is on the high side? Why shouldn’t we want information that helps us understand the highest of the high models must be wrong? and Given that we don’t have enough data to do model-by-model tests dr. brown finds ‘intellectualy more satisfying’, is there any good reason why we shouldn’t use a test that lets us know these things about models using the limited data we have?”

    (Note: the “statistically most powerful” question relates to the use of the multi-model mean rather than the ‘physically meaningful’ variabiles Dr. Brown might prefer.)

63. Earle,

    The mean should be tested both because it’s what the IPCC used in the AR4 and because testing the mean results in a statistically powerful test of bias of the collection. The latter is true whether or not the IPCC used it.

    Knowing whether the collection of models is biased high or low is useful even if the multi-model mean has no physical meaning.

64. Lucia,

    I understand the test of the model mean against observations tells you whether or not the models are, on average, biased high or low. What I have trouble with is how the model spread is used to infer that “the models are OK”. If you imagine an ensemble of absolutely horrible models, even more horrible than that the actual CMIP5 models….. which are already pretty horrible….. then the ‘pooled variance’ of the ensemble can be arbitrarily large, and the observations are sure to fall within the 95% uncertainty interval of the ensemble. So no matter how biased the model mean is (and it looks VERY biased), the ensemble is pronounced to be “OK within the 95% uncertainty range”. This is the part that I think is rubbish.
    .
    I think the correct test is to look at the variability of multiple runs of individual models (AKA “weather noise”), determine which individual models are plausibly consistent with measured reality, and then eliminate all the models from the ensemble which are not plausibly correct. It makes no sense to me to declare them all OK based on nothing more than the models being so wildly different from each other that the “ensemble 95% range” is arbitrarily wide. My guess is that there would be a lot of unemployed modelers if rational tests of performance were used, but that may be a good thing…. at least there would then be a chance they would end up doing something useful.

65. There’s literature out there that argues that the multi model mean has better predictive power. This isn’t the reference I went searching for, (I was actually looking for a simple climate scientist’s media explanation, still can’t find it) but it appears to serve as an example:

    (b) The motivation for multi-model ensembles

    We have argued that the quantification of all aspects of model uncertainty requires multi-model ensembles, ideally as a complement to the exploration of single-model uncertainties through PPE experiments. In addition, a variety of applications, not only limited to the weather and climate prediction problems, have demonstrated that combining models generally increases the skill, reliability and consistency of model forecasts. Examples include model forecasts in the sectors of public health (e.g. malaria; Thomson et al. 2006) and agriculture (e.g. crop yield; Cantelaube & Terres 2005), where the combined information of several models is reported to be superior to a single-model forecast.

    (emphasis added)

    Whether or not one agrees with this is a separate issue, but I think it adds to the confusion, that there are voices out there saying the multi model mean is the way to go to get the ‘better’ prediction.

66. SteveF

    What I have trouble with is how the model spread is used to infer that “the models are OK”.

    The reason you have trouble understanding this is that it’s actually not ok. There are a bunch of things various papers have done to inflate the spread to use to evaluate the model-obs. comparison. Sometimes they use one element, sometimes another sometime multiple things all at once.

    (The main one MF may have done is to use equation 3 itself, and then further linearized it to estimate the ‘explained’ component. Given the other features of their paper, the could have dispensed with eq. 3 which is an assumption that may or may not be useful, but which, to the extent it is imperfect is likely to result in “too much weather”. More on that later… it may not be a big effect– and it can be easily quantified! But..defer on that.)

    But I am going to comment on a claim in MF. They write

    

    The 5–95% range is 0.11 uC per decade for the regression result and 0.26 uC per decade for the residuals; internal variability thus dominates deterministic spread by a factor of 2.5. […] For any given start year, the residual spread is very similar to the full ensemble spread, implying that we can indeed use the ensemble spread as a measure of internal variability

    The […] I omitted contains some nonesense I’ll refrain from commenting on now. But lets look at the highlighted claim:”implying that we can indeed use the ensemble spread as a measure of internal variabilit”.

    Now… it may be that Marotzke and Forster think peoeple can just go ahead and use the ensemble spread as a measure of internal variability. But…well… ehrm… Let’s think about this. For the time being assume we accept the 0.26 and 0.11 above (more on that next week.)

    If
    * the model spread is 0.11 uC per decade and the
    * residuals (i.e. internal variability) is 0.26 uC, then
    * we can conclude the ensemble spread is likely sqrt( 0.26^2+ 0.11^2) = 0.28. Note 0.28 C/decase is greater than 0.26. Maybe you don’t care yet.

    The ratio of the “ensemble spread” to the “internal variability spread” is then 1.086. Now maybe this still seesm “small”, but lets consider a test result.

    So suppose you claim and intend to do a frequentist test and agree you will reject the null hypothesis if the probability of an observed result is less than 5% when the null is true. You use the 0.26 C/decase value for “noise”. You find a cut off and apply. If done correctly, your false positive rate is 5%– which is what you claimed.

    But now, suppose having been given “permission” by MF you inflate your ‘claimed’ to the full model spread– which is 0.28 and use that. What is your false positive rate? It can be found like this in R

    pnorm(qnorm(0.025)*1.085815)
    0.01666198
    That’s right: your test which you claim to reject the deviations from the mean were sufficiently extreme to happen with probability 5%, but in reality, you will only reject if they are sufficiently extreme to happen with probability 1.7%. This is a much more strigent requirement– and happened by ‘inflating’ your error bars by only 10%.

    The power to detect the models are wrong when they are wrong also drops considerably. (It’s non-linear– but it can drop quite a bit.)

    While I “get” that someone who wants to avoid detecting model bias at all costs might think this is “ok”, it’s rather uhmmmm …. (insert adject of choice here) to claim that it’s ‘ok’ and say nothing more.

    The correct, fair and fully correct thing to say based on the result above is that if you want to use the full model spread, computed for a particular 15 year periods, you should scale it down by approximately 1/1.085815, and use these smaller error bars which result in a more accurate estimate of “weather noise” than the “full model spread”. (And note that 1.085815 is the value if you accept MF’s use of unnumbered equation just before (4) go estimate the ‘model spread’. The correct value may well be higher.)

    Note too: In this MF at least the “full model spread” is that computed for a particular 15 year trend, and not the spread of “all trends starting in all periods over the full 112 years”. I observe that because a previous paper (Knight?) included trends over the full periods also– which is nutso.

67. Mark
    a multi model mean reverts to the middle of the pack, the more models the closer to the middle you should be.
    This is quite different to being more predictive IMHO.
    It increases the reliability and consistency of the premise but it does nothing for better predictivity, it just gives average predictivity as in toss a coin or join market following super fund.
    For better predictivity we want something that does better than 50%, say 67%.That is better predictivity.
    The fact that there is (some) literature out there and thanks for an example does not mean the premise is correct or the literature is correct.
    Hopes this clears any confusion.

68. Lucia:

    You said “If your purpose is to detect whether the collection is biased as a whole . . .”

    This is what I don’t understand.

    Why would I care if the average of all of the separate climate models are biased as a whole?

    To me this exercise looks like taking something moving at .5 the speed of light and using the average of both Newtons formula and Einsteins formula. They are both models – why not just average their output?

    Well both are accurate at low speed – but only one is accurate at 1/2 the speed of light. It doesn’t make sense to average them.

    What if one model of the climate was really really accurate (say up to 5 years into the future). Lets even say it made statistically validated predictions.

    Would it make sense to continue to take all the other crappy models and average them in with the one statistically valid model and compare the ensemble mean to observations?

    Not to me.

    So I just struggle with understanding why I care that 40 separate teams of people independently model the climate, using 40 different parameterizations of different variables – each model coming up with different output – all in varying degrees of wrongness (i.e. not statistically valid).

    It is enough for me to know that none of them are right. The average of 40 wrong things cannot be “right” except by accident.

    Or am I missing something.

69. Angech,

    Didn’t say it was my confusion.

    Lucia in her discussion above said:

    I’m not sure why you are trying to focus on the ‘meaning’ of the multi-model mean. The mean of x has the ‘meaning’ of “being the mean or average of x”. That’s what it means.

    and I was offering some explanation as to why people might think the multi model mean means something.

    Thanks though.

70. RickA,

    Why would I care if the average of all of the separate climate models are biased as a whole?

    There are lots of reason.

    One is because that range is used for lots of things: Economic analyses, impact on ecology analyses etc. If you know the set is biased hot, you know the economic impacts will be biased to , the ecological impact will be biased and so on. If it’s not biased, the impacts might be uncertain, but at least you’d expect the central estimates to be too high.

    As long as the whole set is used by pretty much anyone to compute an important downstream consequence, you do want to know if it’s biased. And that is true whether or not the mean has any real “physical” meaning. It has an “impact” on decision making whether or not it has any “physical” meaning.

    The other is that once you find the group as a whole is biased, then it makes sense to study whether individual models are biased. It is fairly standard in statistical studies not to bother to do so otherwise. The reason is that unless the mean is biased, you will (generally) find that if you do a model by model comparison properly weighting for multiple comparison effects, you should not really be testing model by model. So, as a practical matter, one almost never bothers testing whether individual items in a set are biased unless one has found the mean is off.

    To me this exercise looks like taking something moving at .5 the speed of light and using the average of both Newtons formula and Einsteins formula. They are both models – why not just average their output?

    I have no idea why it looks that way to you. Why not think of it as averaging over a bunch of different gas tank indicators, each of which uses a different technology, some of which say the tank is 60% full and others 40% full. The underlying physics isn’t very important to why you want to know if any individual one is biased, nor to whether the set as a whole is biased. If you want to use the information available to judge whether you really, really need to fill up or can risk passing up the nearest fueling station, you want to know whether things are biased.

    Would it make sense to continue to take all the other crappy models and average them in with the one statistically valid model and compare the ensemble mean to observations?

    You are asking a question that is irrelevant to whether it’s useful to know if the average is or is not biased.

    Obviously someone who already thinks the models are total crap isn’t going to care whether they are biased. They already think they are crap. But if you think they are total crap, you aren’t going to test them at all– because you’ve already decided they are crap. So… why demand someone justify any particular method of testing them. Your real complaint is you don’t want them tested– you just want to say they are crap without even testing. That has nothing to do with whether one is looking at the mean.

    It is enough for me to know that none of them are right.

    You don’t know that “none of them are right”. Some may be right enough to create useful predictions of the future.

    But, as I said before, if you are convinced none are right then… well… of course you won’t bother to worry about testing. Beyond that your null hypothesis is “models are crap”. Not sure how to test that to convince you of anything else. 🙂

71. “Knowing whether the collection of models is biased high or low is useful even if the multi-model mean has no physical meaning.”

    I get your point Lucia, but you can see the models are biased high just by looking at the ensemble of their plots compared with observations. Ugly. The models are straying all over the place. I am thinking that we won’t get a good indication on the models’ usefulness, for a long time. Of course, the consensus characters would like to keep the focus on the multi-model mean, rather than the straying all over the place and the divergence from reality.

72. Don

    I get your point Lucia, but you can see the models are biased high just by looking at the ensemble of their plots compared with observations. Ugly

    Right now you can. Yes. But if people tell you that’s “within the noise”, then what? That’s where statistics come in.

    Of course, the consensus characters would like to keep the focus on the multi-model mean, rather than the straying all over the place and the divergence from reality.

    No. The consensus characters are currently moving away from the mean because it’s too easy to show the mean is biased.

    But what they are doing is odd because while they don’t want to discuss the mean, they also don’t want to discuss the individual models. Some want to treat the entire spread of spaghettii as “weather noise”. But that’s wrong. A large part of that is spread in model means. However, pretending it’s all weather noise is a way to pretend that the observations are within the spread of “weather”. Well… no. The obs are within the ‘weather’ of with models whose mean trends is on the ‘cold’ side of the pack.

73. Ok – lets use your analogy of gas tanks.

    Say the gas tank has 10 gallons (it holds 20).

    Say my actual measurement is 10.1 gallons.

    Say I want to be within 1 gallon in order to be valid.

    Say the three different models output 12, 14 and 15 gallons.

    So all three are wrong (some more wrong than others).

    The average is 13.67 – still wrong.

    I guess the average is better than 2 of the 3 models.

    I guess we can conclude none of the techniques for measuring gas in a tank are good enough.

    I see that same thing with the climate models.

    Except it kind of seems like the climate models output 1 and 20, which averages to 10.5. Am I happy that the average is close to my actual observation? No – because both models were so wrong.

    I don’t really understand the rules that govern how to statistically verify any particular climate model.

    It isn’t useful to predict the climate of 2100 will be plus or minus 10C from the average temperature this year – but that seems like about the level of accuracy we get from the spaghetti graph.

74. Lucia,

    I may have got the wrong end of the stick, but you seem to be arguing that because some people use the mean of the models as an input for their analyses (e.g. economists), it is useful to examine that mean.

    But surely, if the mean itself has no physical basis, then the correct approach is to point out their error, not ‘play along’ by using the mean in our own evaluations.

    I find Rick’s comment above on the average of 1 and 20 compelling.

75. RickA:
    First, you created an example where, some reason, you guess close– 10.1 gallons. How did you do that? Psychic powers?

    Let say instead that you have no idea and you know you have no idea. So scrap the notion that you guessed 10.1 gallons.

    Instead, before planning a trip, you use 3 different methods of estimating all of which show as a gauge. All methods at least sound like they are based on some sane principle of measuring the volume but are subject to uncertainties.

    The three gauges read 12, 14 and 15 gallons but for some reason (poor record keeping?), you don’t know gauge creates which estimate.

    Later you tediously and laboriously siphon gas out of your tank, measure the volume discover the correct volume is 10 gallons. If your gas milage was 40 miles / gallon you could have planned a 400 mile trip (hoping to pull into a station just as you were on fumes.)

    Now someone is going to let you use one of the gauges to estimate gas in your tanke before a trip– and you want to do so because you don’t enjoy siphoning the gas out of your tank to determine how much is in there.

    You are now going to be asked to either pick one gauge at random (without being told which it was) or being given the average of the three. You’ll get to use this information to know the amount of gas in your tank and then plan your trip?

    Do you want to pick one of the three at random not knowing if it’s the one that read 12, 14 or 15?
    Would you prefer to be given the average of the three measurements.
    Assuming these are your choices, would you like tho know if the difference between the gauge reading is at least in part biased or just a random error? That is: is it consistently to high?

    I don’t know what you would want, but I would prefer to use the average of the three. I would also want to know whether the gauge is biased and by how much.

    This set of choices would permit me to plan the longest possible safe trip. I could subtract the bias (which appears to be 3.67 gallons) from the average measurement and then — if I have information on scatter that you didn’t include in the data about the gauges– I can take that into account in my planning.

    Am I happy that the average is close to my actual observation?

    For what it’s worth, no one is asking you if you are happy. We are trying to find ways to estimate how much gas is in your tank without syphoning it out. This is a useful thing to do.

    So: assuming the ‘gauges’ are not utterly totally completely bogus, using them is better than nothing. Assuming you have three and can’t tell which is closest, it’s better to use the mean.

    Constructing problems where– by some miracle– you have the psychic ability to “know” the right answer without the gauge/model isn’t a good way to evaluate models or gauges. You don’t have that psychic power. But, of course, if you think you do, you won’t use the gauges, and you will go by whatever non-gauge or model based method you think is available to you.

76. This appeared in the Lancet on April 11. At first I thought they were talking about climate science, or maybe just bout M&F.

    “The case against science is straightforward: much of the scientific literature, perhaps half, may simply be untrue. Afflicted by studies with small sample sizes, tiny effects, invalid exploratory analyses, and flagrant conflicts of interest, together with an obsession for pursuing fashionable trends of dubious importance, science has taken a turn towards darkness. As one participant put it, “poor methods get results”. The Academy of Medical Sciences, Medical Research Council, and Biotechnology and Biological Sciences Research Council have now put their reputational weight behind an investigation into these questionable research practices. The apparent endemicity of bad research behaviour is alarming. In their quest for telling a compelling story, scientists too often sculpt data to fit their preferred theory of the world. Or they retrofit hypotheses to fit their data. Journal editors deserve their fair share of criticism too. We aid and abet the worst behaviours. Our acquiescence to the impact factor fuels an unhealthy competition to win a place in a select few journals. Our love of “significance” pollutes the literature with many a statistical fairy-tale. We reject important confirmations. Journals are not the only miscreants. Universities are in a perpetual struggle for money and talent, endpoints that foster reductive metrics, such as high-impact publication. National assessment procedures, such as the Research Excellence Framework, incentivise bad practices. And individual scientists, including their most senior leaders, do little to alter a research culture that occasionally veers close to misconduct.”

77. Dang Lucia, that was a good explanation! Thanks.

78. David Young,

    Judith Curry included that article in a post a week or two ago. It is disconcerting that “climate science” could so easily be substituted for the borderline misconduct in the biological sciences the article seems to primarily focus on. Flimsy data, dubious statistical tests, speculation substituting for critical analysis, strenuous efforts to get publicity for ‘extremely important’ results, active discounting of all contrary data, complete refusal to ‘bend over backwards’ to be utterly honest (as Feynman suggested): its all there. They have sold their scientific souls to advance their ideology. I find it sorry indeed.

79. Lucia,
    “We are trying to find ways to estimate how much gas is in your tank without syphoning it out.”
    .
    These estimates are even more useful than you might think: I believe virtually all cars have anti-siphon hardware installed in the filler pipe… It’s almost impossible to siphon gas today.

80. SteveF,

    You just need the proper tool.

    Does your car come with funnel so you can add gasoline using an ordinary gas can if you run out on the road rather than the nozzle on a gas pump? If it does, then you insert the funnel into the filler and you can then put a hose into the tank through the funnel.

81. Jonathan Abbott

    But surely, if the mean itself has no physical basis, then the correct approach is to point out their error, not ‘play along’

    It’s not an error for an economist or a biologist to use the mean in their analysis. The mean is a useful thing to use in their analysis and the notion of “has physical meaning” is not important to their choice of inputs.

82. How do we know the models are running hot?

    We compare them to the actual observations.

    That is not a physic power – all you have to do is actually measure.

    But I will admit you know a lot more about the models and the model ensemble mean than I do or ever will – so I will take your word that it is useful.

83. Lucia:”Well… no. The obs are within the ‘weather’ of with models whose mean trends is on the ‘cold’ side of the pack.”

    That’s it. That scares the crap out of them.

84. RickA: It’s even worse than you think, the comparison is for temperature departure from a base level. The models used in the mean run all over the place in absolute temperature, some well above and some well below actual earth absolute temperature. Therefore, one of the limitations of the models is that the resulting climate related to the absolute temperature of the actual climate. This is in conflict with the latest consensus panic theory of runaway hottening due to non-linear feedbacks above absolute temperature trigger levels. Venus is mentioned and entire flocks of black swans are hypothesized.
    https://andthentheresphysics.wordpress.com/2015/06/02/non-linear-feedbacks/

85. *sigh*

    If a runaway greenhouse from CO2 were possible at the distance from the Earth to the Sun, it would have happened during the PETM for sure. It was warmer to start with and the CO2 level was higher. Ramanathan claimed early on that as long as the atmospheric window exists, a runaway isn’t possible. You pretty much have to boil the ocean to start with to get runaway conditions.

86. SteveF wrote “I think the correct test is to look at the variability of multiple runs of individual models (AKA “weather noise”), determine which individual models are plausibly consistent with measured reality, and then eliminate all the models from the ensemble which are not plausibly correct.”

    But which criteria do you look at?

    I suspect the ensemble performs better than individual models because every individual model has some features that give a “good” result and others that don’t and on average each model has more features that give a good result than not.

    That doesn’t make the model any less of a fit, individually (IMO)…but now you can average them all together and the average of all the features individually is a little better.

    So in other words, and for example, a model may be way too hot but better at predicting rainfall. So its “hot” contribution might be poor but it enhances the ensemble with its rainfall “capability”.

    And to put my own perspective on this, its simply not possible for a model to get some bits right and other bits wrong and still be accurately predicting climate.

87. “But the fact is: M&F made no attempt whatsoever to consider how including irrelevant comparisons whose inclusion forces the conclusion that even heavily biased modes cannot be shown biased. Perhaps they don’t understand this simple issue.”

    Lucia, I was struck from the beginning with that manifestation of the authors analysis. I have also noted elsewhere that with some of the well advertised papers coming out of climate science, e.g. Mann (2008) and this one that all the errors and weaknesses in the paper need to be found and catalogued and always referenced when the paper is being critiqued. Otherwise the reader of a detailed and very specific critique might think the remainder of the paper is solid.

    I also found that if one does not assume a linear trend (I used a Single Spectrum Analyses (SSA) derived secular trend) the results for the M&F regression have much reduced residuals, the coefficient for kappa is no different than zero and the deterministic attributable differences in models is indeed evident in the GMST series.

    I prefer to compare individual model temperature series to observed series using SSA derived trends and other parameters such as standard deviations of the residuals. One could also compare the cyclical components derived from SSA.

88. TimTheToolman,
    regarding the ensemble- but how is the rain part useful if it arrives there by being totally off on temperature? It is not much different than a science fiction exercise in world building: good for entertainment purposes, interesting and quirky. Not so useful in understanding things. An rochestra is an ensemble, but each instrument is played in a low noise manner. Climate model ensembles seem to not fit that metaphor at all.

89. Anytime an Earth climate that looks like Venus is brought up we can have confidence those believing in it are engaged in magical thinking.

90. Howard,
    The odd thing when people bring that up is that if “bifurcation” is possible, it suggest a reason why we should distrust estimates of current climate sensitivity based on paleo data. I’ve superimposed some stuff on the graph ATTP/Anders posted as an update:
    

    Now: Suppose that glacial periods show a T v CO2 dependence on the lower part of the curve and that during some period in the glacial, the earth was at the “star”. Then CO2 increased when it reached a certain point, the temperature “jumped” the “dT” amount to the red line.

    If that happened, estimates of the sensitivity based on that “dT/dCO2” would be quite large. I’ve shown the slow in purple.

    Meanwhile, the current relevant Sensitivity would be the slope of the red line.

    Of course one could worry a second bifurcation exists. But the possibility that there is a bifurcation between ‘glacial’, interglacial could possibly explain the rapid transitions between them. We have no particular evidence of a second bifurcation– though of course one could exist.

91. Kenneth

    I also found that if one does not assume a linear trend (I used a Single Spectrum Analyses (SSA) derived secular trend) the results for the M&F regression have much reduced residuals, the coefficient for kappa is no different than zero and the deterministic attributable differences in models is indeed evident in the GMST series.

    I plan to do a much simpler comparison relevant to their estimate of the residuals and explained bits. What they did is too complicated thought it might not be too far off. We’ll see. But I need to get my scripts out of mothballs. 🙂

92. TTTM,
    The issue is primary “global warming”. So temperature is the first and most important criterion for rejecting models as useless. After you get rid of the obviously wrong models, you can start evaluating the rest based on rainfall, region effects, etc. The key is, as Ken Rice (ATTP) always insists, the basic physics: if GHG will cause catastrophic warming, then the first thing to evaluate is warming. Everything else is secondary.
    .
    Don Montfort,
    Of course that conclusion scares them; low sensitivity to GHG forcing means people won’t do want the green loons want. It is a disagreement about what is morally right and wrong, the science is almost superfluous. And for them ‘right’ means minimizing, at almost any cost, human influence on the environment. If solid evidence points to low sensitivity, scientists in the field will turn themselves inside out to maintain the plausibility of catastrophe…. take catastrophe off the table and they have no real reason to be working in the field; more effective to become politicians…. wait…. a lot of them already ARE mainly politicians.

93. In line with SteveF comment on the need for multiple runs of individual climate models, I have found that comparing observed and model temperature trends so obviously requires multiple runs (determining noise) that I have to wonder why that was not a requirement for CMIP5. Part of this requirement has to do with the observed being a single realization with no (simple) way of simulating multiple realizations and at the same time knowing the middle of the distribution.

94. SteveF writes “The issue is primary “global warming”. So temperature is the first and most important criterion for rejecting models as useless.”

    But an average increase in temperatures of a couple of degrees C isn’t going to hurt anything. Surely its the extreme temperatures that do the damage and so therefore the models that most accurately predict changes in extremes are more important.

    By the same argument sea level rise might be seen as important.

    Or maybe ocean acidity.

    An actual 2C average temperature rise is of no great importance.

95. TTTM,
    But if a model plainly predicts too much warming on average, then there is very good reason to suspect that the extremes are wrong as well. Of course you want fidelity with all kinds of things, but temperature rise that is way off makes the model, IMO, not credible in everything else.

96. Kenneth,
    I suspect that some modeling groups either don’t have the computing power for multiple runs and/or that they don’t have a stable model, and discard runs that go off the rails.

97. Indeed SteveF, the standard practice in CFD is to discard runs that give “bad” results and blame the bad results on any number of convenient witches such as gridding, input parameters, user error, etc. After burning the witches everyone can feel better about the codes. Results you see in the literature are generally the result of a process of making many runs and selecting the best ones. That can be OK if you are clear about the sensitivity of the results to the parameters and choices you made along the way. The problem starts to be that different settings may be needed for each type of simulation and then you start getting into a danger zone I think where it becomes difficult to evaluate how things will perform in a new situation.

98. The issue of a requirement for multiple runs for an individual model is the same as that that limits the comparison to an observed series. You have a single realization and while with some assumptions you can model the resulting noise (variations) you do not know whether the single realization is at the high, low or middle of the distribution of possible realizations.

    If the modelers do not have the resources to do multiple runs they need to be confined to the minor leagues of modeling and their product not compared that of the major leagues.

    Throwing out runs without good justification where multiple runs are made can make the distribution look tighter than it should. There is a check on that by comparing the distribution the multiple runs with that derived from a noise model. When I have carried out that analysis I find little evidence that runs have been thrown out to narrow the distribution.

99. Ken, why would you bother to “look for it” if you did not have a suspicion in the first place?
    I may be misreading your comment.
    Are you also implying that a noise model shows the same increased sensitivity as the models that Lucia has detected?
    I trust not.
    Throwing out runs without good justification does not necessarily make for tighter distribution.
    Good justification is too loose a term.
    Discarding runs that give bad results and runs that go off the rails?
    Also too loose a term(s).
    The problem seems to be more that they have not discarded them or thrown them off the rails, hence the obvious bias and misfit with observations and the need to hide this by reducing the power of the test(s).

100. Angech,
     Production mode should mean you can start the model and complete runs. (Due to memory storage or other issues, they might run in increments, restarting with the state when the model ‘stopped’. But short of earth quakes or lightening hits to the machine, you should be able to complete runs.

     If the model is so persnickety that they can’t complete runs without throwing any out due to the run “going off the rail”, it’s not in “production mode”. (Issues due to human error are different. )

     Zero runs should be supplied to any body if the AOGCM has not achieved “production mode”.

     If an AOGCM has achieved “production mode” the modelers should be able to do more than 1 run. Time constraints might rear their ugly head where a group somehow got 1 run in before a time period required for some particular ‘event’– but in which case, the group should still be able to do a 2nd run– and they should wish to do so. You can learn much more from 2 runs than from 1 run. Among other things you can at least get a estimate of “internal variability” in your model. (You can estimate it from control runs where forcing is constant — or possibly solar cycle only– but at least two runs for any projection, hindcast or what not is still very useful.)

     It would be very useful all around if bodies testing models insisted that the minimum number of repeat “realizations” (i.e. runs) for anything ‘modeled’ was 2. (The spin-up or control portion doesn’t need to include 2– it just needs to be long.)

     Some of the modeling groups might not like this– but it really would be a good policy. Of course, I have no say in this. I suspect the bodies that be will continue to permit 1 run since they are dominated by modelers all of whom will have sympathy for groups who hit the deadline with only 1 run to submit.

101. Lucia,

     It is impossible to say if the “one-run” modelers actually have a stable model which can reliably complete runs; the cynical side of me suspects they may not actually have a stable model, and a second run would show that…. so only one run gets submitted (I hope cynical me is wrong about that). Two runs with the same forcing (but different spin-ups!) are the minimum needed to judge the model’s sensitivity to forcing (3 or 4 runs would be much better, of course). What I don’t understand is how a one-run model is even considered for inclusion in the ensemble, since there is no way to meaningfully evaluate what that model’s behavior is. As you sometimes say…. it’s nutso.

102. Steves writes “But if a model plainly predicts too much warming on average, then there is very good reason to suspect that the extremes are wrong as well.”

     Well even if you insisted at global temperature is the important measurement criteria, you can’t discard models based on what you’re measuring for the same reasons you can’t discard tree rings because they’re not playing ball. You introduce bias.

     You need criteria to measure the model against that isn’t the global temperature and discard based on that.

103. TTTM,
     You can reject tree against the thermometer record. The problem is you have to reject or accept a “class of trees”. Once you accept a “class of trees” you use individual from that class that were not involved in deciding to accept/reject the class. Ideally, the trees you use in the reconstrucition were harvested, inspected or discovered before you tested the “class”.

104. Multiple runs are critical for estimating the medium or mean of the distribution of realizations -as that can only be estimated reasonably well from many multiple runs- while the internal variability can be estimated in other ways. I would want something on the order of ten runs.

     Angech, I will only answer replies that are cogent to the general content and intentions of my comments. If you want to truly discuss the need for multiple runs try again.

105. TTTM,
     “You need criteria to measure the model against that isn’t the global temperature and discard based on that.”
     .
     Makes absolutely no sense to me. Warming is the primary issue the models are supposed to evaluate. After all, it is GHG driven warming that is claimed to present serious future risks; to insist on evaluation of models based on things other than congruence with measured warming strikes me as silly. If a model showed rapid cooling with rising GHGs, but matched regional patterns of rainfall perfectly, should we then assume that is a good model to include in estimates of GHG driven warming? I doubt that, and I hope you doubt it as well.

106. Lucia writes “You can reject tree against the thermometer record. The problem is you have to reject or accept a “class of trees”.”

     Substitute “model” for “tree” and you’ve described my point.

     At the end of the day you cant post-hoc dump a model because its not behaving. It was included in the first place because it was believed to have a climate signal just like individual trees in a particular “class”

107. SteveF writes “Warming is the primary issue the models are supposed to evaluate.”

     All models are wrong. Some models are useful.

     In this case that means some models might have a climate signal and I would suggest that others dont.

     Take the extreme example of a purely fitted function that describes the global temperature increase over the last 150 years. I’m sure you’d agree that there is no climate signal present in that and its completely useless at predicting. If it correctly predicts its purely by luck.

     Now consider a GCM that has some physics and some fitted parts (eg clouds) that were tuned. Iterate it a million times. Is the result “fitted” or “physics representing climate change” or both?

     At the very least I assume you’ve have to agree its “both” and so that signal you say is at least in there with non-climate noise.

     The rest of the argument about selection follows and has been discussed here many times.

108. Angech,

     Substitute “model” for “tree” and you’ve described my point.

     No.
     Model => class of tree
     run => individual tree.

     You can test whether the class of trees is a good indicator using indivudal trees from that class. If it’s ok, you then use different trees form the class for your analysis.

     With a model, you test the model by comparing runs to observation. If it passes, afterwards you can use different runs.

109. Lucia writes to Angech for some reason “No.
     Model => class of tree
     run => individual tree.”

     No. For the same reason that…

     Tree Cross Section => Class
     Tree ring => individual temperature reading

     Doesn’t allow you to dump individual tree samples because their rings didn’t play ball.

110. Lucia, A class of proxies is defined by the understanding/belief/hope that they have a signal for the thing you’re measuring. All models belong to the same class of proxies that are believed to measure global warming.

     Its a direct comparison to tree ring proxy selection. We can discard a “class” of tree ring proxies by location because, for example, the samples in the valley are believed to be water dependent rather than temperature dependent.

111. TTTM,
     “The rest of the argument about selection follows and has been discussed here many times.”
     .
     Sure, and it seems you still don’t understand what makes sense for selecting a model and what does not.

112. TTTM

     All models belong to the same class of proxies that are believed to measure global warming.

     Why do you think this?

     You did want to continue with the anology:’

     Tree Cross Section => Class

     No. This comes from an individaul tree. So this is the correct analogy. A “cross section” doesn’t come from the “class” of “Ashes growing in blah, blah valley”. It comes from a particuarl tree.
     Then

     Tree ring => individual temperature reading

     Yes. And that means it’s like an individual temperature for a particlar month during a particualr run. So

     a Run=>a tree.
     Temperature for a particular month from a particular tree.

     Models are then a “class” which can have many runs. Trees also fall into “classes”. Classes are things like “bristle cone pine” or “Ash” and so forth.

     Tree Cross Section => An individual Tree (not class)

     In anycase, there is another problem with your analogy: The models aren’t “proxies” and the hindcast isn’t a “reconstructin”.

113. Kevin, What kind of noise model were you using? The variation in the model should be assessed by running it varying the parameters, initial conditions, etc. My experience causes me to doubt that the modelers have reported all these runs. Maybe they are better than the norm elsewhere. But I can tell you that if you don’t “select” your runs, you get a much larger noise level than if you do. Usually, there are pseudo-scientific justification for selection, but our report for CFD shows much larger variation than reported in the literature.

114. Lucia writes “Yes. And that means it’s like an individual temperature for a particlar month during a particualr run. So
     a Run=>a tree.”

     The way I see it, a class is a group of objects that you are getting proxy measurements from. The grouping is somewhat arbitrary but cant include reference to the thing you’re trying to measure.

     So, sure you can run a single model multiple times and get different results but IMO that aligns more closely with tree rings individually proxying temperature in that season or not than it does with that tree proxying the global temperature record “as a whole”

     Every time you run the model, the common factor is the model just like every time a tree ring grows the common factor is the tree. So models are not classes, they’re in fact trees.

115. Kevin Bacon wasn’t necessarily in Footloose. Tom was right, climate analogies are troublesome things.
     Models are models, and treenometers are treenometers, in my view. In some sense they may be subject to similar selection / validation problems, but still. Not the same thing.

116. Mark writes ” In some sense they may be subject to similar selection / validation problems, but still.”

     And in that sense we need to carefully consider whether its valid to exclude some because they’ve not performed well and whether that will introduce any biases into the ensemble.

117. TTTM,

     If they don’t predict well, obviously there’s something wrong with them. The lesson I take from the treenometer anology is that one needs to be very careful about selection and validation criteria, because it’s easy to fool oneself in subtle ways. I would not presume to tell Lucia this, she is the one who originally demonstrated it, AFAIK. But knock yourself out if you think you’re saying something she doesn’t already know, I guess.

118. Tim

     The way I see it, a class is a group of objects that you are getting proxy measurements from.

     That would make the model the class. The objects in the groups are ‘the runs’. The measurements are the monthly temperatures from a model.

     For tree rings, the class is something like “bristle cone pine growing on mountain side x. The group is a “set of trees’ The measurements are the tree trings from one of the trees.
     This is entirely 1 to 1.

     So, sure you can run a single model multiple times

     Yes. And you can plant a whole bunch of bristle cone pines on a mountain side and have multipel trees. You’ll get somewhat different ring patterns from each tree. So “trees” are like “runs”. And the “ring patterns” for a “tree” are like ‘temperature for a run”.

     Every monthly temperature has as a common factor “the run”. The run comes from a model.
     Every individual has as a common factor “that tree”. That tree has as a common factor, “the model”.

     So models are not classes, they’re in fact trees.

     No.
     * an annual average temperature for a particular year in a run => tree ring width for a particular tree. Both are supposed to map into annual average temperature of the earth.

     * run (with a series of temperature) => tree (with a series of rings). Both are supposed to map into a series of observed temperaturatures.

     model => class of trees. Both contain samples or “temperature series”.

     If you try to make “models” a “single tree” it doesn’t work.

     Every time you run the model, the common factor is the model just like every time a tree ring grows the common factor is the tree. So models are not classes, they’re in fact trees

     No. There is more than one common factor.

     For a tree ring in trees from the same class the “class of tree” (i.e. bristle come pine vs. apple tree vs. cherry tree) is one of the common factors. The, if you pick an individual tree from the set, the ring widths vary by year for that tree.
     But this is exactly like
     Runs have models as a common factor.
     Annual average temperature from a run have that run as a common factor.

     So:
     Class: models or “type of tree” (e.g. Bristle cone pines)
     Realization: run or “tree ring from a particular tree”.
     “Measurement”: annual average temperature from a run or ring width from a particular tree.

119. Lucia,

     Having scanned back over one of the earlier discussions here on treenometers and hockey sticks, it looks like one of the issues with the treenometers is that one could use them to create hockey sticks even if they had no … proxy power whatsoever; even if they were random, by selecting the ones that seemed to match current trends. If I’m summarizing poorly (and I probably am) as always I’d welcome your clarification.
     My question is, do you see some similar selection problem with weeding out models that don’t appear to match current trends. Would we be making the same mistake in some sense? It seems to me we might be; the selection and validation criteria shouldn’t be the same. Maybe use part of the model run to select and part to validate?
     Or in your view does this concern not apply for some reason?

120. Lucia writes

     “For tree rings, the class is something like “bristle cone pine growing on mountain side x. The group is a “set of trees’ The measurements are the tree trings from one of the trees.”

     The reason I disagree is because the individuals within that class are only loosely related. We want them to be related because there are some common elements (eg all bristle cones) but its an assumption.

     In the case of model runs, they’re tightly related. Like tree rings are tightly related to that tree.

     * an annual average temperature for a particular year in a run => tree ring width for a particular tree. Both are supposed to map into annual average temperature of the earth.

     Individual years/months from runs are not tightly related to individual months that are measured. They dont have the same intial conditions for starters. We’re interested in model trends, not individual values.

     In the case of tree rings, they’re supposed to be much more tightly related.

     Then you go on to suggest

     For a tree ring in trees from the same class the “class of tree” (i.e. bristle come pine vs. apple tree vs. cherry tree) is one of the common factors.

     But there is no guarantee that a tree in a class is a treenometer, we only hope it is. The same cant be said for multiple runs of the same model. Their heritage is the same. If one run has a temperature signal then the next one does too.

     Unless of course you’re suggesting that model runs may or may not have temperature signals per run?

     I can see we could go on for hours with this.

121. Mark, you’ve pretty much nailed it.

122. I’m struggling to grasp the implications of the distinction you two are discussing. Honestly I’m not quite following yet, but I’m working on it.

123. At a very fundamental level our difference in opinion stems from the fact Lucia believes the models are modelling climate change whereas I’m not sure they are at all.

     You’re right, she knows the argument back to front. If her classification doesn’t stack up she’s in a bit of trouble 😉

124. Apologies Lucia, I see that you’ve already answered this.

     Model => class of tree
     run => individual tree.

     You can test whether the class of trees is a good indicator using indivudal trees from that class. If it’s ok, you then use different trees form the class for your analysis.

     With a model, you test the model by comparing runs to observation. If it passes, afterwards you can use different runs.

     I go think about it. Thanks.

     Edit: TTTM, thanks.

125. Gergis threw out a lot of proxies that did not match what she was looking for. The justification was that at times the treenometers,etc were not recording the temperature changes in the right direction for her premise.
     It still did not tighten up her results to a publishable degree.
     All tree rings are temperature proxies as all trees are dependent on temperature to grow though there is a Laffer curve effect people ignore.
     Some temperature effects are seemingly overwhelmed by other factors, eg rainfall. But the effect should still be discernible as it is independent.
     When people make a premise to use models one has to take the good with the bad, one just needs better procedures eg multiple runs and noise removal to extract the signal that must be there.
     Not. Throw the data out to preserve the models now dubious integrity.
     We seem to be moving away from the discussion on how bad the MF2015 really is.

126. I wonder what dendrologists think of non-dendrologists making so many assumptions and drawing so many conclusions from something it is unlikely they know very well?
     The explanations for the divergence issue are post hoc and typically circular.

127. Mark Bofill

     if they had no … proxy power whatsoever; even if they were random, by selecting the ones that seemed to match current trends. If I’m summarizing poorly (and I probably am) as always I’d welcome your clarification.<

     Yes.That happens.

     Assume this:
     IF we had a zillion RUNS that supposedly “hindcast” back to the 12th century and included a ‘industrial period” portion. But in reality, the runs were NOTHING but control runs– there was no forcing at all. All variability was “trendless weather”. So if averaged, they were flat and are effectively “temporaly correlated noise”.

     (1) If we fished out RUNS by correlation with the current time periods, and then created a “reconstruction” of “earths temperature” on those ” specific runs using the methodology from used to create hockey sticks, then and the RUNS were nothing but control runs having NOTHING to do with earth, we could get a hockey stick. Whether or not we did would depend on the the strength of the serial autocorrelation on “noise”.

     (2) If we treated models as “classes” and tested as I suggested — creating one set of runs to test the models, then using a fresh set of runs from the ones that past, then we would NOT get the hockey stick from “noise”. (We’d get a very uninteresting result but it would not be a hockey stick.)

     (3) FWIW: No one does ‘reconstructions’ with models runs because individual model runs are not supposed to reconstruct the ACTUAL earth temperature over time. So, the notion of creating a “reconstruction” out of models or runs doesn’t make any sense. That means worrying about “hockey sticks” created the way they are when noisy data is used for a “reconstruction” is a bit off the mark.

     Using model runs to predict can go wrong. But the ways averaging over models can go wrong is different.

128. TTTM,
     However you see the relation my way of classifying would result in “no hockey sticks”, and permits us to to test some trees and some models and then actually use the entities from the tested class.

     If your concern is “introducing hockey sticks from noise”, the solution I suggested would work; no hockey stickes would be created. If your concern is something else, then maybe not.

129. However you see the relation my way of classifying would result in “no hockey sticks”, and permits us to to test some trees and some models and then actually use the entities from the tested class.

     If we used your way, there is no need for classes any more you can simply discard trees based on individual rings. Check a period in the tree’s history to see if the rings match the measured temperature. Toss it if its out of sample check fails.

     And you can do that simply by calling a single tree a “class” and defining the check to be against individual rings.

     I think we both know that’s not a valid approach.

     My concern isn’t so much creating hockey sticks from noise but instead creating hockey sticks from a non-physical representation of climate that has been biased to create them by tuning against a period of increase. You can call that noise if you like, but I think its a man made signal.

130. “Kevin, What kind of noise model were you using? The variation in the model should be assessed by running it varying the parameters, initial conditions, etc.”

     If you mean Kenneth, I use the best fitting ARMA model (best AIC score) for the residuals after extracting the secular trend (not linear) and the cyclical components. That is usually ARMA(2,0).

131. Ideally using proxies in a temperature reconstruction would involve understanding the relationship of proxy response to temperature from a physical basis and then from that determining a criteria for selecting specific proxies. All proxies at that point would be used in the reconstruction. A selection criteria would never be the correlation of proxy response to temperature determined after the fact.

     In the case of selecting climate models based on a comparison with the observed series parameters, that process does not in anyway guarantee the validity of the models selected. I make these comparisons to determine the statistically significant differences existing between models and observed parameters and between individual models. The climate science literature in my mind tends to minimize these differences and often uses a distribution of selected climate models.

132. TTTM,

     If we used your way, there is no need for classes any more you can simply discard trees based on individual rings.

     Excuse me, but that’s the exact opposite of what lucia wrote. What you’re describing is the Mann, et. al. approach. I’m beginning to wonder if you actually read what someone wrote or you just make it up.

133. TTTM

     If we used your way, there is no need for classes any more you can simply discard trees based on individual rings.

     No. ‘My way’ needs classes, and classes need to be defined the way I define them. Otherwise, it’s not ‘my way’. No, my way does not discard based on individual rings. It discards or accepts based on the class of trees.

     And you can do that simply by calling a single tree a “class” and defining the check to be against individual rings.

     The above is what would happen if I called a single tree a ‘class”. That’s why I don’t call a single tree a class”. My way does not do what you claim. I absolutely do not throw out single trees. I throw out classes.

     My concern isn’t so much creating hockey sticks from noise but instead creating hockey sticks from a non-physical representation of climate that has been biased to create them by tuning against a period of increase

     Well… your going to have to do some work to show that anything anyone does with models creates ‘hockey sticks’ due to whatever it is you fear is fear is being done.

     Obviously, if forcing causes warming and if models are run with forcing we think have happened, they will show warming in the industrial periods. This is not “non-physical” and it’s got nothing to do with problems in reconstructions. If you think forcing causing warming is “non-physical” you can criticize models without testing and you can advance your own explanation for the warming during the industrial periods. But this has nothing to do with testing models sensitivity.

134. Good discussion. My takeaway: With the AGW signal being so difficult to measure, being among weakly understood confounding parameters, validation of a model is nearly impossible currently. Of course, the larger the observed data set’s precision and length of time series the more possibilities for validation emerge. But we are not there yet.
     .
     The scientific rush to validate AGW naturally led to rushed or skipped validation steps all along the way, leaving us now wondering what went wrong with the models. And, when we look around for tools — surprise, we have few.
     .
     The same rush occurred with paleo temp reconstructions. Climate scientists skipped the step of validating proxies before using them to make reconstructions. Finding the proxy that gives you the signal you are looking for is not validation, whether by individual tree or class of tree. For example, what if Bristle Cone Pines are CO2 meters rather than temperature, or are both? In that case the whole class is defective, but one would not know that without being able to perform a validation. Ironically, if the tree rings showed a clear signal for the LIA and MWP that would validate that they were not being controlled by CO2. Unfortunately, a hockey stick handle is not that signal. The investigators, in fact use the hockey stick handle to claim this is proof the LIA and MWP were local events. Great, find some of you proxy in that locale where the event is documented. If you have a blind selection of tree that show the known signal bumps you have validated your proxy. This was never done.
     .
     The best scenario is finding a locale with multiple proxies of many possible confounding variables. Find items that have a historic record of, growing season precipitation, droughts, CO2 levels, sunlight. Once proxies have been validated to be resistant to confounding influences then they need to be positively validated for temperature again by finding a local with multiple temperature proxies or known temperature record to see if a blindly selected sample of the proxy reproduces the known signal (preferably blind to the proxy investigator.)
     .
     GCMs are being used for making conclusions about climate behavior before they have been validated. Defenders argue they did they best they could. Bunk. One cannot skip validation because it’s too hard.

135. R Graf,
     Comparing multiple runs of models to reality is the only validation that can be done, and the models are failing. (explicitly: the measured trend in temperatures falls outside the 95% confidence interval for many models… when that confidence interval can be evaluated from multiple runs with that same forcing.)

136. Thanks Lucia.

137. Steve, I am not a generous to the models as you are. I would not give the models my stamp of validation even if they were tracking observed temperature. Models could do this just on inertia from their tuning.
     .
     I see five possible avenues for GCM validation.
     1) Significantly accurate prediction of GMST deflection from major volcanic events would at least validate the aerosol component.
     2) Predict GMST based on cloud cover and insolation in the absence of major volcanic anomaly.
     3) Prediction of OHC for the top 1000 feet layer for ten years with sufficient precision.
     4) Prediction of the delta of atmospheric heating over land versus over ocean (Marine Effect) with precision for ten years.
     5) Predict a yet unobserved phenomena, for example, tropical hot-spot. Polar amplification, if proven and is bi-polar, may give some support if GCMs are predicting this with measurable presicion.
     .
     Failure in any of these is also invalidation.

138. Lucia: I don’t understand their plot at all. It seems to show rapid CO2 increase with slow Temp increase followed by rapid temperature increase with no CO2 change, followed by CO2 declines and slow temperature increase. Then just before the bifurcation, temperature rapidly rises while CO2 does not change. None of this makes any physical sense to me. I’m sure it’s because I’m a moron.

     I do think a bifurcation model may explain glacial to interglacial jumps. However, the forcing is not CO2 until, perhaps the current relevant sensitivity shown by your red line. The big non-linear jump is the collapse of the Continental ice sheets for reasons that are not known ( 1. Milankovitch cycles, 2. dust albedo, 3. dry atmosphere radiation of high elevation ice sheets that have 4. grown too big to be stable) which produces such a huge albedo change along with a global scale bio-thermal-chemical ocean perturbation that CO2 could not possibly be responsible for more than 5% of delta-T. Once the climate approached the interglacial asymptote, and most of the ocean dynamic changes calmed down, the influence of CO2 may be detectable.

139. Ron,

     Some of your tests are too stringent, particularly #3. I would never expect a climate model to make precise and accurate annual predictions over a span of a decade. Even if you had a perfect climate model, a duplicate Earth built by the Magratheans from HHG2G comes to mind, there is no guarantee that it would exhibit the exact same behavior as our Earth. Or even that the mean of one hundred perfect climate model runs would be the same. That would imply that the distribution function of climate is extremely narrow, and that’s, IMO, highly unlikely.

     I would like to see a model that isn’t off a few degrees on absolute temperature, though.

140. Howard, I was thinking the same thing. Collapse of the glaciers driven by peak summer M-cylcle insolation is taking them over the tipping point. Loss of albedo from loss of extra-polar ice is the primary driver in bifurcation.
     .
     DeWitt, If 98% of the transient heat capacity is in the top 1000 meters of ocean, and let’s say we can measure that heat with 98% accuracy with Argo, why should we not expect the models to conserve that energy with (.98)*(.98) accuracy?

141. DeWitt writes “Excuse me, but that’s the exact opposite of what lucia wrote. What you’re describing is the Mann, et. al. approach.”

     I know. I’m going to have to describe it more clearly though because its what she’s saying about Model runs as applied to trees. I’ll try to summarise it. Maybe that’ll help. I’m really not very good at expressing myself 🙁

     Lucia says models are classes, runs are trees and detailed model results are rings.
     I say “all models” are the class, a model is a tree and runs are rings.

     The class is defined to be a group of objects that contain the signal trying to be measured. In the tree world this is made up of selection criteria such as “bristle cones on the snowline of mountain X plus bristlecones in the lee of mountain Y plus…”
     In the model world its made up of “model X because the developers say so plus model Y because the developers say so…”

     The trees in the class may or may not contain a signal individually. Using “Lucia’s model is a class” definition every run (ie tree) contains a temperature signal (or not if the model isn’t producing one).

     But then again maybe she thinks models can have different runs some with and some without temperature signals. My main assumption in this regard is if a model contains a temperature signal then it does so for every run.

     The rings in a tree may or may not have a temperature signal but since its the same tree, those rings are closely related. Lucia’s rings are the model output. This has virtually no relation to the measured world except when taken as a trend.

     So again, I think the rings are more closely aligned with the runs where the comparison for the “run” becomes a comparison of the runs temperature trend vs the measured temperature trend.

     Gotta go for now. I’m sure I’ve still not done my argument justice.

142. TTTM,

     The class of all models would better correspond to genus. Trees have more than one genus, the major examples of interest would be hardwoods and conifers, but you should get the point. Individual models would be species of the genus GCM, because the characteristics of different models are usually sufficiently different to be distinguishable. But a species is also a class because it’s subdivided into individual realizations. Those would be trees or model runs, which are also not identical, provided they don’t use identical initializations, or in the case of trees, are clones rather than reproduced sexually. A tree core would then be equivalent to a time series from a model run. An individual ring without the information from the rest of the rings in the core, isn’t particularly interesting.

143. It think the most relevent figure from M&F is their fig 3b

     https://climategrog.files.wordpress.com/2015/02/mf2015_fig3b.png

     It takes a close look to see the important point but it clearly contradicts the stated conclusions of the paper.

     This is from their 62 sliding trend analysis. so the end of the graph is for periods centred 30 years before the end of their data. They labelled thier axis with starting date which was a bit distracting.

     Now the key feature is that the data bifurcates into two separate groups of results in the last 5y tick mark. That means that the model results diverge into two clear groups. We don’t know what these groups represent because they do not discuss it. In fact, they totally missed (?) the result that they were supposed to be looking for !

     They set out to test whether high sensitivity models produced different results and when their results showed results diverging into two clearly separte groups, they failed to notice.

     So we need to know whether this is in fact related to sensitivity. The idea of using long term “trends” seems to be an unstated assumption that this kinda averages out the “noise” and exposes long term variability. In fact a sliding trend is crappy low-pass filter. So let’s try a proper filter on rate of change of temperature. A low-pass gaussian would be a typpical choice in any field ( except climatology ).

     Since this is well-behaved filter a 15y gaussian works a little better than thier 62y sliding trend.
     https://climategrog.files.wordpress.com/2015/02/cmip5_hi_grp_low_grp.png

     Here I have chosen several high and low sensitivity models as determined by Forster and Gregory 2013, one of their main citations for this characteristic of the models.

     I have taken the difference between model ‘tas’ and HadCRUT4 global means and applied the low-pass fitler. We see the same pattern: divergence of the two groups. The high sensitivity models end up around 2K/century and low sensitivity models are modest falling to zero rate of change.

     M&F set up a test, failed to record the presence of the result they supposedly seeking, then published spurious conclusions based on thier inability to read thier own work.

     I discuss this in a bit more detail here:
     https://climategrog.wordpress.com/?attachment_id=1315

144. Lucia: “All in all: there are tons of blips in there that make the paper unsuited to supporting a conclusions like….”
     https://climategrog.files.wordpress.com/2015/04/ramp_freq_resp.png

     The reason these loads of greck in the 15y treatment, is that their crappy filter mangles the data. The following graph shows the frequency response of the sliding-trend “filter”. The red lobes show where the sign of the change is inverted. The main inverting lobe peaks about a period of 8 years. I have also marked 9years ( 0.11 per year on axis ) since there is notable energy in the surface record around 9y period.

     Prof. Marotzke insists that there are no inverting lobes but it is simple to check. Create a 9y cosing test series, do the sliding trend and compare. The signal is somewhat attenuated ( about 50% ) and INVERTED.

     This is the reason that their 15y analysis is so unclear. By a poor choice of filter they obscured any signal that may be there, almost guaranteeing a null result.

     Similar lobes obviously exist in the 62y version but by the time we get to 9-11y band, where a lot of the variability is, it’s quite heavily attenuated and is less of a problem.

     That is why we can see the divergence in thier 62 results in fig 3b. It does not explain why they could not see it. Maybe they already “knew” what result was, and that got in the way.

145. None of this makes any physical sense to me. I’m sure it’s because I’m a moron.

     I do think a bifurcation model may explain glacial to interglacial jumps

     It’s not that your a moron. Bifurcations happen a lot before the onset of turbulence– so people who do fluid mechanics have all seen this before.

     Pretend there is a system where you can control CO2. It happens that a low CO2, there is only 1 solution for temperature. But– oddly– at medium CO2, there are 2 possible solutions. Then at much higher, there is only 1 again.

     Well… oddly (and similar things happen in systems you’ve experienced), if you started with very low CO2, temperature would follow the lower line. And most it would do so until you hit that first “bend”. (At least this is pretty common in lots of systems). But now, if you kick CO2 up just a little, the temperature HAS to jump because the only solution is on the upper line. Temperture can’t stay on the lower line.

     Once it’s jumped, Temperture will move along the upper line until CO2 falls below the level where it can’t be on the upper line any more. Then it “jumps down”.

     There are lots of problems that have jumps: Onset of motion if you warm a pot slowly. Shock waves (are a jump ‘down’.) Jumps in friction factor in pipe flow. Lots of stuff.
     Obviously having seen it before makes it easier to recognize what they are trying to explain.

146. TTTM,

     Lucia says models are classes, runs are trees and detailed model results are rings.

     No. Lucia does not say that. The time series of temperature from a run are equivalent to rings.The time series from a run are not “detailed model results”.

147. TTM

     The class is defined to be a group of objects that contain the signal trying to be measured.

     This is not the definition of a “class”.
     A class is a group of objects that share some property used to classify things.
     You can have orders of classes– Life, domain, kindom,genus, species, individual.
     But in the relevant analogy:

     a monthly temperature in a run <=> a monthly temperature on earth <=> the width of one tree ring from a particular tree..

     a temperature series from a run <=> temperature series on earth <=> core from a particular tree (so series of rings)

     model/class: group of runs from model (all share same ‘physics/forcing’) <=> group of cores from trees (all were on earth during same time, all of same species that’s the “physics of the tree”).

     These all have analogous features: a discrete temperture maps to a discrete temperature or ring width.
     A time series maps to a time series.
     A ‘group’ with similar ‘response to forcing and forcing history’ is a “the class” and these map to each other.

     Your suggestions make things with entire different properties to each other.

     Using “Lucia’s model is a class” definition every run (ie tree) contains a temperature signal (or not if the model isn’t producing one).
     Erhmmm… well, yea. But that’s a property runs and trees are required to have . The reason tree rings are used is that the trees are thought to contain some temperature signal. Many trees are used because individual trees also contain noise. They are thought to contain some signal because the ring width responded to the temperature on earth– and that’s the “signal” one wants to recounstruct.

     So this only argues that “runs” are exactly analogous to trees (in this analogy.) Models are not.

     My main assumption in this regard is if a model contains a temperature signal then it does so for every run.

     Yep. And the main assumption in paleo is if a call of trees contains some temperature then so does every tree. Once again: this supports my classification.

148. Greg Goodman,
     Is that for the earth? Or the models?

     It’s probably not in the models. Since Marotzky used model noise, lobes in the earth weather wouldn’t really affect his results much.

149. Ron,
     You stated:
     ” My takeaway: With the AGW signal being so difficult to measure, being among weakly understood confounding parameters, validation of a model is nearly impossible currently.”
     Excellent point.
     To that I might ask: does it not also imply strongly that whatever the cliamte is doing, it is not a catastrophe? Catastrophes are generally easy to recognize.

150. Lucia writes “A class is a group of objects that share some property used to classify things.”

     This is possibly where most our our disagreement lies. A class’s members may be identified by physical properties to choose those members but a class is not that, it is the group of objects that (are thought to) share the one property “temperature signal”

     When you reject a “class”, you’re actually rejecting a selection criteria.

     Models come pre-classified if you like. They’re all thought to have the property “temperature signal”

     If you want to reject a model from that class you need to do it on grounds other than its temperature signal performance. Maybe you might reject a model because the developers are all nutso.

     I dont feel that I can be clearer in my description so if you still believe otherwise then I guess we’ll agree to disagree and it seems you wont have any issue of selection bias when a model is rejected.

151. One last comment though

     A class is a group of objects that share some property used to classify things.
     You can have orders of classes– Life, domain, kindom,genus, species, individual.
     But in the relevant analogy:
     a monthly temperature in a run a monthly temperature on earth the width of one tree ring from a particular tree..
     a temperature series from a run temperature series on earth core from a particular tree (so series of rings)
     model/class: group of runs from model (all share same ‘physics/forcing’) group of cores from trees (all were on earth during same time, all of same species that’s the “physics of the tree”).

     I know that seems to be the obvious way the analogy should go. It seems neat and there’s a 1-1 mapping. But I dont believe its the correct one for the reasons I’ve tried to give in my earlier posts.

152. A class, for scientific assumptions, “is the group of objects that (are thought to validated or to be validated to) share the one property…”
     –
     A testing class may be based on a validated chemical property, genetic property or some statistically known measure of a property.
     A model must be validated to contain the property you interested in before the model can be classified.
     .
     Hunter: “Catastrophes are generally easy to recognize.”
     .
     Catastrophes that are a 100 years away may be difficult to recognize for two reasons: one, there will be huge natural occurrences and evolutions that change circumstances between the prediction and the event, two, human technological evolution is one of these and it’s accelerating.
     .
     If we can validate a climate model as I outlined in my comment above we should know for sure what GHG will do at different RCP scenarios. But we will still not know our capabilities to mitigate the problem. We should have faith though. We have a decent record for solving problems when they are clear to all.

153. Lucia: Thanks. That’s why I could see it for glacial-interglacial transition that is due to a leverage forcing and produces turbulence.

     My mental block is due to my theory that the slow mild warming from an incrementally increasing well-mixed greenhouse gas providing a small even forcing over the entire planet would never produce this type of “turbulence”.

154. Ron,

     A model must be validated to contain the property you interested in before the model can be classified.

     So it isn’t certain that temperature is a property calculated by climate models? I was under the impression that it was pretty much required. It’s pretty hard to calculate atmospheric radiation transfer, or anything else about the atmosphere for that matter, without knowing the temperature profile of the atmosphere and surface. Or do you have some other property in mind?

155. Lucia:

     Greg Goodman,
     Is that for the earth? Or the models?

     It’s probably not in the models. Since Marotzky used model noise, lobes in the earth weather wouldn’t really affect his results much.

     Not sure which “that” you are asking about. My graph is d/dt(model-HadCRUT) , filtered. Fig 3b is models, best refer to paper for explanations. The ‘lobes’ are the frequency response of the filter, nothing to do with models or data. It is the *magnitude* of the filter attenuation.

     Like the running mean, the sliding-trend is a mess. What it really is, is a repetitive notch filter. It has a zero at repetitive frequency intervals and slowly attenuates. The problem is that every other lobe is inverted ( as is the case for running mean ). This is not apparent since the usual representation is *magnitude* which is be definition positive or zero.

     Prof Marotzke actually replied to me saying there were no neg. lobes. When I sent him proof I heard no more. He also suggested that there was not enough samples for the bifurcation to be significant. Which is rather comical since if his method is incapable of distinguishing two groups when they appear, their conclusion of “no discernible trace” falls apart.

156. DeWitt, if you are not following the scientific method you can classify caterpillars and ground hogs as temperature instruments.

157. Greg, obviously you put more effort into Marotzke’s paper than he did.
     .
     Marotzke’s motive was not science; it was politics, as shown by the worthlessness of both of his conclusions except to protect the models from the claim of invalidation (at least up to 2012). He needed to buy the models time until the anticipated “big jump.”
     .
     Ironically, by saving the models from invalidation he had to extend the time by which the models can be statistically validated, thus greatly lessening the models’ utility.

158. Ron,

     Models aren’t scientific instruments like thermometers. That doesn’t mean that you can’t use terms like class to describe them. You and TTTM are beginning to sound like Humpty Dumpty.

159. The very theoretical discussion I see here avoids the fact, at least for tree rings, that while we can readily state that tree rings contain a temperature signal, as a practical matter that counts for little in selecting those tree rings that can be appropiately used in a temperature reconstruction.

     Question left unanswered here and by those who publish tree ring temperature reconstructions are:

     What function best represents the relationship of tree ring response to temperature over an extended range of temperatures?

     Do confounding tree ring responses to other variables such as moisture occur in a random fashion such that if one averages a number ring widths these confounding effects cancel?

     How many trees and at what locations would be required – given a random occurrence of confounding variables – for near complete cancelling?

     Do we have any clues as to the randomness of occurrence of confounding variables and magnitude of those responses relative to temperature?

     How close do the various adjustment processes used for the effects of tree age on ring width actually approach reality?

160. Kenneth,
     For me the “tell” that the climate concerned are way off on this is their clinging to tree rings when they fit what is believed to be the historical record, and “hide the decline” when the tree rings do not cooperate with the CO2 consensus.

161. DeWitt, the CMIP5 and ground hogs are both yet to be validated temperature forecast tools. But I will grant the latter has a much better theoretically supported foundation. I believe this logic is also a basis for setting Bayesian priors. The closer the CMIP5 can prove they are following first principles the lessor the validation standard that is required (as compared with ground hogs).
     .
     I am still wondering your thoughts on why the models should not be expected to conserve energy to the extent that we can measure it.
     .
     Hunter, I agree tree rings are a great concept that need to be studied further. But I don’t think Mann et al are going to explore confounding influences on tree rings. That will be left for a naive newcomer that gets off track from his/her grant application mission.

162. Ken
     Your answers are
     that tree ring response to temperatures over a extended range of temperatures varies widely from tree species and locale to tree species and locale and has been worked out to an adequate degree by those who practice tree phrenology or haruspicy.
     There are so many species that I suspect your put down of the experts to be somewhat specious.
     The functions (multiple) work on a bell curve where low temperatures stop growth eg tree line here in Norway at a 1000 meters, increasing warmth creates increasing growth until it gets to hot when the tree ring growth slows down and stops.(Ellenberg)

     Confounding tree ring responses to other variables do occur in a random fashion, as if they occurred in an organised fashion like summer winter they would not be confounding.
     They do cancel out as random events do revert to the mean given a large enough run of events.
     This is acknowledged in your next question as to how many trees and locations are needed for near complete cancelling.
     There are several answers as you are well aware.
     One tree and location if you are Michael Mann but do the runs multiple times.
     A hundred trees and 20 locations if you regard a 5% error rate as statistically stisfactory for near complete cancelling.
     Or however many trees and locations are available to you and damn the statistics.
     Do we have clues to randomness as specified. Of course.
     How close do we get to reality with the various adjustment processes?
     Hopefully closer than if we did not try at all ( Mosher on models, Donald Rumsfeld on uncertainty)
     Excuse the light tone.
     I agree with you that the science is unclear and needs a lot more work but do feel that the attempts are worthwhile with large caveats on the significance of any results.

163. I am still wondering your thoughts on why the models should not be expected to conserve energy to the extent that we can measure it.

     Of course they’re expected to conserve energy. A radiative imbalance at the TOA, however, is not proof of a failure to conserve energy. If changing ghg concentration didn’t produce a radiative imbalance, then it wouldn’t produce a change in global temperature because the total energy of the planet wouldn’t increase or decrease.

     I’m not surprised, however, that models may not actually conserve energy.

164. Quick update. Anders says:

     Nic,
     Oh, by the way, you still haven’t explained why you highlighted Lucia’s post in an earlier comment about Marotzke & Forster. I assume it’s because you thought it was somehow interesting. I thought it was nonsense (which may – in some sense – be interesting). Maybe you could explain why you apparently didn’t.

165. Brandon,
     Oh snap. Anders, who has neither rebutted nor even directly disputed the truth of any claim in my post, has decreed it nonesense. Maybe he thinks writing “Joe seems to say ‘X'” is some sort of “rebuttal” of the X.

     Or. Something.

166. lucia, isn’t it hilarious? There was a reason I had to share it.

167. Rice is up to his usual MO. He is focusing on Nic Lewis’ prior and is claiming its not physically reasonable. Nic disagrees but appearing at Rice’s is a guarantee of an unfair playing field. It almost immediately gets into personal criticisms and Rice seems unable to distinguish scientific criticism from personal criticism, a sign of an immature scientist. I’m not a statistician, but neither is Rice and he has proven remarkably resistent to the idea that statisticians could have anything to say that is relevant to climate science. After all, physics is more important. He is really remarkably defensive in his attitude toward science and particularly toward climate science.

     The Economist, the New York Times, Science, and the Lancet must all be wrong about science because a public relations flak for an astronomy department says so or is in denial.

168. DeWitt,

     The models are supposed to simulate TOA imbalance, surface air temp and ocean temp. A change in forcing will proportionally change the other variables in accordance (theoretically) with an energy balance. The time integral of the net (radiative feedback adjusted) delta forcing equals delta heat. Why would you not be surprised if the models do not conserve energy? Would that be acceptable in your opinion? Or, would it sap your faith in them?

169. Lucia,
     “has neither rebutted nor even directly disputed the truth of any claim in my post,”
     .
     Of course not; that would require 1) understanding what you wrote, and 2) offering a reasoned critique. Rice seems unable to do either, though it is impossible to tell if that is because he refuses to engage “den!ers” as a matter of principle, or if he is intellectually not up to the task. Based on his many rubbish comments, my inclination is to believe the latter is the case, but maybe he is so distressed about GHG driven warming that it renders him unable to think clearly: he can’t bear the thought that the model projections are grossly exaggerated in both magnitude and consequences (AKA wrong).
     .
     I think Nic is unwise to try to engage with someone who so consistently shows bad faith, and who is unwilling to actually address meaningful arguments.

170. Ron Graf (Comment #137038)
     “Greg, obviously you put more effort into Marotzke’s paper than he did.”

     Not really. He obviously spend longer contructing something complex enough to obscur the obvious fact that a lot of models run too hot and the hostest ones are the ones that have high CS. Longer than I spend spotting the obviously bad filter. It took a couple of readings before I spotted the bifurcation in fig 3b that shows that their conclusions are spurious.

     They missed the result they set out to test existence of. Bias confirmaiton probably played a part.

171. ‘Confirmation bias’ may be better… 😉

172. Ron,

     I’m curious. What leads you to believe that I have faith in GCM’s? I would have thought that my statement that I wouldn’t be surprised if GCM’s didn’t conserve energy would have made my position obvious. Believing that increasing ghg concentration will result in increasing surface temperature says nothing about whether I think that GCM’s can calculate that increase correctly.

173. https://ecologicallyoriented.wordpress.com/2014/01/17/tree-growth-analysis-issues-again-just-different-ones/

     if you want to talk about tree rings, several issues raised by Jim Bouldin seem to me to need consideration. He made about 7 posts on different issues.

174. Diogenes, just be careful not to talk about the screening fallacy. If you do, Jim Bouldin is likely to get snippy, curse and yell at you. Or at least, that’s what he did when I tried to point out screening series by their correlation to a target series can introduce biases.

     And then he later bemoaned the level of discussion at WUWT. I think he was unhappy with me when I pointed out his hypocrisy.

175. DeWitt, the ironic thing about your statement “You and TTTM are beginning to sound like Humpty Dumpty.” is that gave reasons why I believe my classification was correct (and hence models cant be tossed based on their temperature performance) whereas Lucia gave none and simply stated her interpretation of the classification.

176. Having had a couple of days of consideration, my argument can be greatly simplified.

     Classes are selection criteria. “This tree type in this location” and so on.

     Even if you consider a model to be a class, Lucia is suggesting that temperature performance is a valid selection criteria to discard that model.

     That’s not valid.

177. Hey lucia, I thought you might like to know there’s been a new (proposed) bet in the global warming debate. The Skeptical Inquirer has offered the challenge:

     The Committee for Skeptical Inquiry (CSI) hereby presents to the Heartland Institute a challenge as to whether the Earth’s climate will set a new record high temperature this year. The challenge will be settled using the NASA GISS mean global land surface temperatures for the conventional climate averaging period (defined by the World Meteorological Organization as 30 years) ending on December 31, 2015. If the global average temperature does not exceed the mean temperature for an equal period ending on the same date in any previous year for which complete data exist, CSI will donate $25,000 to a nonprofit to be designated by Heartland. Otherwise, Heartland will be asked to donate $25,000 to a science education nonprofit designated by CSI. It is CSI’s intent to repeat this challenge every year for the next 30 years.

     What I find more interesting, however, is what Robert A. Lindsay, CEO of the company, said:

     “The theme of Heartland’s climate conference was ‘Fresh Start,’” observed Lindsay. “By predicting that a new record average temperature will be set every year for the next 30 years, we are in effect giving them 30 ‘fresh starts.’ I fear that what we’ll all find, however, is that as temperatures rise and the crisis deepens, each ‘fresh start’ will grow more and more stale.”

     I’m assuming if they repeat the bet each year, they’ll update the period they use (so the next bet would be for 1987-2016 temperatures) rather than using the same period for all 30 potential bets. Even under that assumption, however, Lindsay’s remark seems silly. The bet is regarding 30 year periods. How is a 30 year period a “fresh start” if it overlaps the last period used by 29 years?

     Personally, I can’t see the value in this proposal other than PR. Right now, we have ~29 1/2 years of the 30 years of data the bet would involve. That means the unknown factor for the bet is less 2%. That doesn’t seem like a genuine proposal.

178. Oh, and as for what brought that up, I saw a post over at Anders’s place. The thing which stood out the most to me was Anders said:

     You’re quite right. Even if it flatlines for the next 40 years, the 30 year average keeps rising.

     I’m not sure he understands math.

     P.S. I think it’s hilarious they want to bet on a land-only temperature record.

179. CSI used to be an interesting group until they sold their Skepticism as the price for joining the climate madness.
     Their name is now merely ironic.

180. Jim Boulton may provide some needed in depth analyses of the limitations of using tree rings as a temperature proxy, but he has no undestanding of the biases produced by after the fact proxy selection.

181. Brandon,
     CSI’s proposed bet, with a 30-year mean, is a guaranteed winner this year, as mathematically it’s equivalent to “2015 is warmer than 1985”. [The 1985 anomaly was 0.21 K in GISS’s land-only record, while last year was at 0.89 K.] And highly probable for the next dozen years as well. It has no bearing on the question of whether there’s been a slowdown/hiatus/pause/plateau in temperature since ~2000, and even less on the more important question of whether temperature has been increasing along the lines forecast by the IPCC.

     P.S. A more interesting bet on the “hiatus”, assuming that CSI is wedded to GISS’s land-only series, would be whether the 5-year running mean sets a new high. Per the link above, that would be a winner for CSI last year (2014), 2013, 2007, 2006, 2005, 2004, 2002, 2001. About 50-50, it would seem.

182. Jim Bouldin may provide some needed in depth analyses of the limitations of using tree rings as a temperature proxy, but he has no undestanding of the biases produced by after the fact proxy selection.

183. From what I have seen of tree rings is that they are indicators of climate, not temperature proxies. Unfortunately, the good proxies over most recent +/- 1000-years are contaminated by surface effects. This is just one of those conundrums of geology.

184. Even if you consider a model to be a class, Lucia is suggesting that temperature performance is a valid selection criteria to discard that model.

     That’s not valid.

     That makes no sense. That’s like saying that the correlation of ring width or ring density series from multiple tree cores with observed temperature is not a valid selection criteria to discard a particular tree species growing in a particular area as a temperature proxy.

     Either a model produces a distribution of temperature series that includes the observed temperature at a reasonable level of confidence or it doesn’t. If it doesn’t, it needs to be modified or discarded. Similarly, if the ensemble of models does not include future observations at a reasonable degree of confidence, which seems to be the case now, then the source of the bias needs to be identified, not swept under the rug with a lot of hand waving as MF 2015 attempts to do.

185. HaroldW, yup. It seems the people who made the bet weren’t looking for a real bet; they were just looking for a publicity stunt. That, or maybe they just don’t understand the subject well enough to see how dumb a bet it is. Or hey, maybe they know it is a stupid bet but think the Heartland Institute will be dumb enough to take it.

     Whatever the reason, the bet is a silly one, and Anders’s comment about it is hilarious. He actually said if temperatures flatline for the next 40 years, the 30 year average will keep rising. Because apparently having a constant value for 40 years will result in the 30 year average rising.

     Because, um… reasons.

186. Nothing quite gets blogs going than finding some blogger on the other side to bitch about – look at that idiot, etc etc. In this case, ATTP’s comment follows this one:

     ATTP

     …. If we continue to inrease our emissions, I think they’ll almost certainly be wrong, but they – for consistency, I would hope – disagree.

     Victor Venema says:
     June 16, 2015 at 2:07 pm

     Even with aggressive mitigation Heartland will lose every single year. There is not much difference between the various emission scenarios for the coming decades, you see the differences later on.

187. TTTM,
     I’ve given reasons why my analogies apply. #137028

     Among other things you are stuck on this sort of thing ” but a class is not that, it is the group of objects that (are thought to) share the one property “temperature signal””.
     Sorry, but that is not the “definition of a class”. You can look the word up in the dictionray: the definition will not discuss “temperture signals” among other things.
     I get that you might want to create some sort of classification scheme you “like” and that would make some sort of classification system. But the one you created is useless for testing models. I would prefer to create a system that is useful for testing models.

188. If the global average temperature does not exceed the mean temperature for an equal period ending on the same date in any previous year for which complete data exist, CSI will donate $25,000 to a nonprofit to be designated by Heartland. Otherwise, Heartland will be asked to donate $25,000 to a science education nonprofit designated by CSI. It is CSI’s intent to repeat this challenge every year for the next 30 years..

     Weird bet proposal. Sounds like a lose-lose bet for Heartland. Well… unless Heartland can designate themselves as the non-profit to get the money. Otherwise, if Heartland wins, some entity who is not Heartland gets $25K. If Heartland loses, Heartland forks over $25K. Why in the heck would they bet?

     Beyond that: Do tax laws permit Heartland to spend money on bets?

     But of course the 30 year average periods is sthe stupidest part. I mean… wanna bet on last years temperature? Thought not. If they want to bet on 30 years, they should do 2016-2045.

     That doesn’t seem like a genuine proposal.

     No. It’s totally stupid. Only idiots would think this is any sort of “put your money where your mouth is” challenge.

     You’re quite right. Even if it flatlines for the next 40 years, the 30 year average keeps rising.

     Well… he might understand math. But his wording is poor. If it flatlines for the next 40 years, the 30 year average will rise for (roughly) the first 30 years. Then it flatlines for 10 years.

189. lucia:

     Weird bet proposal. Sounds like a lose-lose bet for Heartland. Well… unless Heartland can designate themselves as the non-profit to get the money. Otherwise, if Heartland wins, some entity who is not Heartland gets $25K. If Heartland loses, Heartland forks over $25K. Why in the heck would they bet?

     Beyond that: Do tax laws permit Heartland to spend money on bets?

     I hadn’t really thought about either of those points. I’d guess they could probably spend money on bets since they money would be donated to a nonprofit, but I don’t know.

     Well… he might understand math. But his wording is poor. If it flatlines for the next 40 years, the 30 year average will rise for (roughly) the first 30 years. Then it flatlines for 10 years.

     Probably. Then again, given how good Anders is at misreading things, I wouldn’t put any misunderstanding past him 😛

190. Then again, given how good Anders is at misreading things, I wouldn’t put any misunderstanding past him
     Really? It appears that you are the one doing the misreading of a comment apparently about flatlining ’emissions’.

191. “Jim Bouldin may provide some needed in depth analyses of the limitations of using tree rings as a temperature proxy, but he has no undestanding of the biases produced by after the fact proxy selection.”

     But if he shows that tree rings are bad proxies, why does it matter that he lacks awareness of problems with post-facto proxy selection. He knows they are bad/inexact proxies, so they cannot be used to reconstruct historic temperatures. Am I missing something, Kenneth?

192. Diogenes, you might want to ask Jim that question. Once when I made my argument about selection after the fact biasing the results he very adamantly told me that selecting after the fact was the only way.

     I would not single Jim out as most scientists doing reconstructions fail to understand the biasing. I think even skeptics on this matter do not understand.

193. RB:

     Really? It appears that you are the one doing the misreading of a comment apparently about flatlining ’emissions’.

     Anders said:

     You’re quite right. Even if it flatlines for the next 40 years, the 30 year average keeps rising.

     Pronouns are paired with antecedents so people can know what they refer to. You portray me as being at fault for misunderstanding Anders because of context like:

     …. If we continue to inrease our emissions, I think they’ll almost certainly be wrong, but they – for consistency, I would hope – disagree.

     But this just shows the very problem I highlighted. The context you provided is regarding emission levels. The primary pronoun Anders used was “it” in the phrase “it flatlines.” Emissions levels are not an “it,” they’re a “them” or “they.” That means if Anders was referring to them like you suggest, he used incorrect grammar.

     Even worse, he then said “the 30 year average keeps rising.” Again, antecedents are paired with pronouns for a reason. If you talk about emission levels then say “the 30 year average keeps rising,” you are telling people to understand you mean “the 30 year average in emission levels” will keep rising.

     To instead understand Anders meant a 40 year flatline in emission levels would result in average temperatures still rising for 30 years, we’d have to assume an ungrammatical interpretation of the phrase “it flatlines” and assume when he then referred to a “30 year average,” he was not referring to anything he had mentioned before, but something else entirely which he didn’t bother to identify.

     That’s assuming a lot of mistakes for a single sentence. I don’t think a person should be faulted for not ignoring any and all grammar in what a person writes in order to come up with an interpretation of what he said that might make sense.

194. The Committee on Skeptical Inquiry is reduced to betting on a grade school math trick to demonstrate their faith in the climate consensus. Strange days indeed.

195. RB,

     To second Brandon, since we’re not mind readers, we can only interpret what Anders wrote by the standard rules of grammar. It’s possible, in fact likely, that what he meant to write was that if emissions flatline, the global 30 year moving average temperature will continue to rise for 40 years. But that’s not what he wrote. Back when I was in grade school, an English teacher would have made a lot of red marks on that post if it had been submitted in class as an essay.

196. DeWitt Payne,
     FYI, it was an inline blog comment, not a post or an essay. BS was presumably keeping track of the preceding conversation. I don’t know why I’m wasting time on this. You folks can have the last word.

197. I guess he tossed his own “word salad”.

198. ATTP makes me “toss my cookies.” Figgur o’speekin’.

     Andrew

199. RB,

     OK, I’ll take it.

     A sentence or an essay, the rules of grammar on pronoun antecedents still apply. Emissions by definition are countable so a plural pronoun is required. The antecedent of ’30 year average’ is also unclear.

     If you don’t write clearly and grammatically, then misunderstanding is your fault, not the reader’s.

     ‘If they flatline, the 30 year average temperature keeps rising.’ How hard is that?

200. The usual nitpicking, from the nitpicking kid. The comments preceding the one being nitpicked are about emissions and temperature. The temperature is being discussed in terms of 30 year average, so that’s not hard to follow.

     kenny says:” …a good fraction of the 30 year averages over the next 30 years could be less than previous 30 year averages. If we continue to inrease our emissions, I think they’ll almost certainly be wrong, but they – for consistency, I would hope – disagree.”

     He mentions “increase our emissions” that’s about emissions, and “30 year averages” clearly refers to temperatures. Emissions and temperatures. Keeping up? By the way, you forgot to ding kenny for a misspelling “icrease”.

     venoma says:”Even with aggressive mitigation Heartland will lose every single year….”

     He is clearly talking about mitigation of emissions.

     kenny replies to venoma:”You’re quite right. Even if it flatlines for the next 40 years, the 30 year average keeps rising.”

     Is this really hard? He is talking about emissions flatlining, and the 30 year average of the temperatures continuing to rise. Is that unphysical, or illogical? Maybe he had a chart in mind, when he said “if it flatlines”. Why would you think he is talking about temperatures flatlining instead of emissions? He said “it”? That means “temperatures” to you? You are incredibly silly.

201. PS:

     The nitpicking kid says:”Whatever the reason, the bet is a silly one, and Anders’s comment about it is hilarious. He actually said if temperatures flatline for the next 40 years, the 30 year average will keep rising. Because apparently having a constant value for 40 years will result in the 30 year average rising.”

     No, he didn’t actually say that. You made that up.

     “if temperatures flatline”

     Now, would that be “if they flatline”? Or, “if it flatlines”?

202. DeWitt Payne covered the issue of grammar well enough there’s no point in me rehashing it. I would like to comment on one thing though. RB says:

     FYI, it was an inline blog comment

     What in the world is “an inline blog comment” supposed to mean here? I’ve heard of inline commenting for blogs, which basically embeds comment sections throughout a post so people can discuss page content adjacent to the content, but that’s nothing like what happened here.

     I’ve also seen inline responses where a moderator edits comments to insert his responses directly into them. Again, that’s nothing like what happened here. I’d guess RB just means Anders wrote his comment in… a comment, but if so, why did he call it “an inline blog comment”? (That’s not rhetorical.)

     Also, since RB makes a remark about me presumably having followed the previous discussion on that page, I should point out there was no mention of anything flatlining “for the next 40 years” anywhere on that page prior to Anders using that phrase. There wasn’t any mention of anything flatlining or “40 years” anywhere prior to what I quoted.

203. The real issue is not grammar, nitpicker. It is your integrity. That it was an inline comment means that you took it out of context and you also made crap up. This is demonstrably NOT what he said:

     “He actually said if temperatures flatline for the next 40 years, the 30 year average will keep rising…”

     Show us where he said that, nitpicker. I will help you. That’s a lie. He did not say that anywhere, anytime. You will never find it.

     He ACTUALLY said:”You’re quite right. Even if it flatlines for the next 40 years, the 30 year average keeps rising.”

     Put that in the context of the previous inline comments and he obviously meant that even if emissions flatline, the 30 year temperature average will keep rising.

     Now why don’t you show a little character and humility and admit that you made crap up and that your silly nitpicking has once again backfired on your silly butt.

204. I can see one advantage of being a non critically thinking progressive automaton; their group gets along swimmingly, almost never criticizing each other, especially the newest generation. When does thorough analysis become over-analysis?

205. Ron Graf,
     I was going to say `Interesting statement’, but have you thought about it critically though… because they say that those automatons are all about feelings.

     [Disclaimer:
     While every effort is made to ensure that the content conforms to conventional usage, it is provided “as is” and the poster makes no representations in relation to the grammatical accuracy or completeness of the statements including but not restricted to correct usage of ellipses and subordinating conjunctions contained within].

206. RB,
     Rugged individualist have feelings. They just don’t talk about them.
     .
     Charitable giving and volunteerism is a hallmark of conservatism. It just doesn’t get press outside maybe the community paper.
     .
     Ideas of centralized control come from right and left. Non-libertarians (non individualists) see people as an imperfect, semi-chaotic-entity that can be made better with regulation, by force if necessary.
     .
     A growing number of Americans (through modern education) see its own country’s historic success and prosperity as an evil by-product (overindulgence) by a greed-based economy. Individual generosity is too unreliable a force to care for, (or uplift,) our needy. Individual environmental responsibility is insufficient to save the planet from unsustainable folly. Nobody likes to be forced but its a necessary sacrifice (as long as we are forcing others for their own good). In short, individuals are generally bad and only all-powerful leaders can force them to do what is right for the common welfare.
     .
     America’s founders were foolish to make central control so cumbersome, subjecting us all to paralysis of “do-nothing” congresses. The Constitution should be much easier to change and we do not need the Supreme Court. Whatever the president wants should be law. We see the benefits of such beautiful efficiency played out all around the world and throughout history. Why couldn’t our founders see this? It’s just nuts.
     .
     This was the basic pro-fascist theme of Anne Lindbergh’s Wave of the Future (1940) as much as it is the progressive theme of Paul R. Ehrlich The Population Bomb (1968).
     .
     So was America’s founding fathers correct to build a complex and cumbersome structure, perceiving such a need in the face of an attractor basin of central control based tyranny? Or, were they nuts?

207. Re: making bets on last year’s weather.
     .
     I think there is a similar logic flaw in validation by analysis of trends that are produced (even indirectly) through tuning to the past. Validation is proof of concept precisely because the test is designed to be impossible for the investigator to predict without the use of the concept/device in question. Thus successful hindcasting to a record that could be known to the investigator fails this test. In medical study terms it is not blinded.
     .
     If the first section of M&F15 is not a claim of limited model validation what is it? When and how did the models get validated?
     .
     If the models are not validated how can scores of studies be using them to estimate TCR and ECS?

208. Ron Graf,
     Investigations by people like Elinor Ostrom suggest that collaboration within and as devised by communities can be an effective way of managing the commons.

209. RB,
     I can agree with Ostrom because her 8 principles for the most effective way to manage commons is by making them as locally controlled (decentralized) as possible. Basically, when its clear that a community commons is the most efficient model due to logistical structure its still managed best (semi-privately) by the community serviced. Reputation within the community counts.
     .
     So for environment, does being a poor world citizen count against one’s local reputation? I think so.
     .
     If we dis-empower communities through centralized control does reputation matter as much?

210. Re: M&F15 section 2, diagnosing internal vs external forcing.
     .
     It is interesting re-reading the CLB post. Anders, aka Fast Fingers, enters the fray early commenting that there is no circularity because T is not really affecting F since whatever dT is dN immediately adjusts here. Then Foster praises Anders, (refers to him as TTTP) but then contradicts him by saying that T must be in the equation F = N +T because (-T) is a component of N and it must be canceled out to prevent a different circularity. I am saying different circularity because strangely Foster never acknowledges understanding Nic’s argument that F contains T thus putting T on both sides of the equation dT = dF / (α + κ), making T both a dependent and independent variable at the same time which is a circularity.
     .
     Anders then shifts his argument that Nic’s circularity is just an artifact, an illusion, as proved by the logic that forcing causes T and thus is independent of T. I think that argument fails when considering internal forcing due to variability may be looked at as being caused by T.
     .
     Ed Hawkins makes (I think accidentally) a most illuminating comment here stating that if the models could output F directly instead of F having to be diagnosed from N and T then there would be no circularity. I think this is exactly where M&F went astray. The fact is that they did diagnose F, not from the real world but from the models, the same models they are turning around and using again for their second diagnosis of the same parameters. There is nothing outside referenced added to compare. What then are the statistics estimating?

211. A problem with total local control: From the point of view of extremists seeking to take over the status quo, each incidence of small grass roots local control is basically a small poorly guarded town, ready for change of control. Most people have limited energy and interest in fighting out every issue every day. Extremists then win because they by definition have more energy and time to spend on fighting.

212. Ron Graf,
     You ask “If the first section of M&F15 is not a claim of limited model validation what is it? When and how did the models get validated?”
     A) In post modern science the validation is validation by consensus.

     “If we dis-empower communities through centralized control does reputation matter as much?”

     A) “We” and “disempower” and “Centralized control” are variables that frequently offset or conflict with each other

213. Ron,

     Hindcasting is a necessary, but not sufficient, condition for validation. If a model can’t reproduce the past, there’s no point in comparing its forecast to future observations.

214. “The claim that climate models systematically overestimate the response to radiative forcing from increasing greenhouse gas concentrations therefore seems to be unfounded”.
     .
     DeWitt,
     Yes, I agree. The above sentence is part of a mind trick to establish an assumption the models were validated to estimating radiative forcing of GHG concentrations, or temperature, or ECS or anything at all.

215. Ron,

     M&F 2015 completely ignores the well known fact that models are tuned to hindcast by using aerosol forcings to reduce the effect of ghg’s and, not surprisingly, models with the highest sensitivity to ghg forcing also have the highest aerosol forcings to compensate.

     As I’ve said before, when I put on my tin foil hat and go into full paranoid mode, the failure of the GLORY satellite to reach orbit looks suspiciously providential. ‘They’ don’t really want to know that sulfate aerosol effects may have been drastically overestimated. Given the importance of aerosols to modeling, it’s also suspicious that there wasn’t a backup GLORY satellite and apparently there are no plans to build and launch one.

216. Ron Graf:

     So was America’s founding fathers correct to build a complex and cumbersome structure, perceiving such a need in the face of an attractor basin of central control based tyranny? Or, were they nuts?

     I’d argue whether or not the founding fathers were correct in the choices they made for when there were only 13 states may not indicate whether or not the same choices would be appropriate for 50 states. Similarly, advances in technology could change how “right” any given management system might be.

     On the other hand, I’d argue there is no such thing as a “correct” governing system. I’d say governments are, by definition, tyrannies in their indefinacy. Because of that, I’d argue there is no “right” or “wrong” governing system.

217. Brandon,
     I agree the government should be expected to change with the growth of the country and with technology. I believe the framers left enough mechanisms to accomplish this. At the same time I feel that there is an optimal balance between governance and liberty. And, there are liberties worth giving up for security and good governance. America’s founders I think understood the perils of governmental ambitions better than the general public does today. Lessons fade, especially when their can be rationalization that everything has changed enough that old lessons no longer apply. The direction of USA attitudes is to mirror the world’s that the USA was too successful and too influential. The Vietnam War, CIA exploits and Iraq bolster that argument. I don’t think the world wants Russia or China to rule but they don’t understand that power is a force and lack of it creates a vacuum. America’s stated goal has changed from making the world safe for democracy to hoping the world will take care of itself. It may be messy but a lot a libertarians think the world is ready. I would wait until China or Russia mature.
     .
     Good luck.

218. DeWitt: As we know from recent peer reviewed literature, sulfate also enhances the BC increase in radiative forcing. In addition, what comes up must come down. IMO, particulate aerosol emissions are net positive forcings that have a greater influence on ice melting than CO2. The thing about sulfate is that all by itself, it eventually rains down to earth and causes warming. It’s another leveraged forcing with a disproportionately high positive feedback compared to the low, slow, dull well mixed GHG that get’s all the attention.

     Hansen says it’s Faustian bargin if we clean up air pollution we know causes illness and pre-mature death, then we will increase the hidden, highly theoretical effects of CO2 that in the most unsubstantiated fantasies of activists will result in a flock of black swans followed by the Venus scenario.

     In all actuality, cleaning up PM 2.5 and precursors (ie sulfate, ammonia, ozone, VOCs, BC, etc.) will more likely reveal that the actual warming contribution of CO2 is in the noise. When I put on the tin hat, I believe that deep down the alarmists know this and eschew the need for traditional air pollution controls to protect their racket. However, when I come to my senses, I blame their stupidity on a childhood influenced by Dr. Spock.

219. Here is a graph of NH land (green) vs NH sea (red)and SH sea (blue). They all track in tandem from 1950 (also prior) to 1990 and then diverge for 22 years. Such a 22-plus-year split would indicate a radiative imbalance. Except, if they are going to adjust the sea temp record up per Karl et al 2015 then that would diminish the divergence (and imbalance).
     .
     But, as Steven Mosher wrote, “They would never analyze it that way.”

220. “Because of that, I’d argue there is no “right” or “wrong” governing system.”

     Get yourself a book on world history and read it. I bet you could spot some “wrong” governing systems. That should give you some perspective that you are obviously lacking.

     Try it this way: The right governing system is the one you choose to live under. And you don’t get imaginary choices.

     I hope that helps.

221. C’mon, Ward. You are being too hard on the Beaver. Perhaps he was thinking of that late, great author of The River War https://en.wikipedia.org/wiki/The_River_War

     Many forms of Government have been tried and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.

     Winston Churchill, speech in the House of Commons (November 11, 1947); in Robert Rhodes James, ed., Winston S. Churchill: His Complete Speeches, 1897–1963 (1974), vol. 7, p. 7566.

222. Ron: That divergence would be a manifestation of the weak CO2 signal. Weak because it’s what’s to be expected over the land-dominated NH air, which is a feint with no (oceanic) legs to write home about.

223. Howard,
     Thanks for clicking on my graph link (or is that Graf link?)
     .
     Wouldn’t you agree that all radiative warming would affect land before the higher heat capacity seas? Isn’t evidence of land and sea temp divergence an expected GHG result?
     .
     I agree with you that its a weak signal, especially by it being non-existent until 1990.
     .
     Certainly it was weaker before all the land adjustments and Cowtan and Way (2013). I just wonder if it crossed anyone’s mind that Karl et al (2015) will make the radiative forcing case weaker.

224. The signal is non-existent when using UAH or RSS land only compared with sea temps here. I think I made a mistake with Karl et al. If he is saying the pre-Argo sea measurements were too high then he is cooling them now, which would increase the divergence with CRUTEM prior to 2003.
     .
     It would really be nice to have trustworthy temp data.

225. Ron,

     Historical sea surface temperature measurements are a large can of worms. Do you know how they used to measure it? They threw a wooden or canvas bucket on a rope over the side, filled the bucket, brought it back on board and stuck a thermometer in it. Then during WWII they used engine cooling water intake temperature from US warships as well as buckets. But that’s picked up below the surface and the temperature gradient during the day near the surface can be fairly steep and changing rapidly. Tony Brown wrote an article for Climate Etc. here.

     I’d like to have someone let me drive a Ferrari free of charge too.

226. I’m OK with the Supreme Court upholding the subsidies. But I must say I owe a debt of gratitude to Scalia for speaking what seems to me to be the simple and obvious truth in his dissent.

227. Yet another demonstration that the law in the US is whatever 5 people in black robes says it is.

228. Mark Bofill:

     I’m OK with the Supreme Court upholding the subsidies. But I must say I owe a debt of gratitude to Scalia for speaking what seems to me to be the simple and obvious truth in his dissent.

     Well it certainly seems to be that he’s trying to legislate from the bench, and he’s getting a certain amount of applause from the right wing for behaving that way.

229. Well it certainly seems to be that he’s trying to legislate from the bench

     What an odd statement. What is this new law Scalia is trying to impose from the bench ? I don’t think I caught that part.

     … or perhaps you are using “legislate from the bench” in the Justice Robert’s style in which it can be meant to convey: “sending an intern out for a Pepsi”, “playing poker with the other judges” or just about anything else that is currently fashionable or convenient depending on what the speaker politically desires at the time

230. Scalia legislating from the bench???? I would say it was the six in the majority disregarding the clear language of the statute that amounts to legislating from the bench. Not to mention the original decision where a mandate is a tax, except when it isn’t, because tax legislation must originate in the House. The courts are not supposed to rewrite legislation to fix mistakes in the original draft.

231. Artifex,

     Yes, the Humpty Dumpty theory of law.

232. SCOTUScare seems like just another cost shifting exercise. But then, that’s what employer based private insurance turned out to be also.
     .
     More importantly, the case added to the Scalia lexicon as outlined by Business Insider:
     .
     Jiggery-pokery: Dishonest or suspicious activity. Scalia dropped this during his Obamacare dissent on Thursday.
     .
     Argle-bargle: A pejorative term for a verbal dispute, according to linguist Ben Zimmer. Scalia famously used this in his dissent in the Defense of Marriage Act ruling.
     .
     Blah, blah, blah garbage: Nonsense. The conservative justice used this phrase while describing a 1967 Supreme Court opinion that expanded protections against wiretapping.
     .
     Kulturkampf: A clash between cultures. Scalia teed off his dissent in the landmark gay-rights case Romer v. Evans, complaining about perceived “kulturkampf.”
     .
     Vaffanculo: “F—,” in Italian.
     Example: When asked by a reporter about how religion may impair his legal judgement in 2006, Scalia said Vaffanculo.

233. Carrick,

     I’ll admit I’m somewhat puzzled by your remark as well. Could you clarify?

     Were you referring to Scalia?

     I would think, perhaps regardless of other considerations and whether or not one agrees or disagrees with the decision, that we could agree that Roberts argued that the term ‘established by the State’ was ambiguous and attempted to interpret (and decide the case guided by what he thought was) the will of Congress. Contrast this with Scalia. If I may quote a lengthy but pertinent section:

     The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in
     order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers” enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it.
     We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “[o]ur task is to apply the text, not to improve upon it.”
     Trying to make its judge-empowering approach seem respectful of congressional authority, the Court asserts that its decision merely ensures that the Affordable Care Act operates the way Congress “meant [it] to operate.” First of all, what makes the Court so sure that Congress “meant” tax credits to be available every where? Our only evidence of what Congress meant comes
     from the terms of the law, and those terms show beyond all question that tax credits are available only on state Exchanges. More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers.
     “If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent.”
     In the meantime, this Court “has no roving license . . . to disregard clear language simply on the view that . . .
     Congress ‘must have intended’ something broader.”

     Even less defensible, if possible, is the Court’s claim
     that its interpretive approach is justified because this Act
     “does not reflect the type of care and deliberation that one
     might expect of such significant legislation.”

     It is not our place to judge the quality of the care and deliberation that went into this or any other law. A law enacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate. Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility.
     Rather than rewriting the law under the pretense of
     interpreting it, the Court should have left it to Congress to
     decide what to do about the Act’s limitation of tax credits
     to state Exchanges. If Congress values above everything
     else the Act’s applicability across the country, it could
     make tax credits available in every Exchange. If it prizes
     state involvement in the Act’s implementation, it could
     continue to limit tax credits to state Exchanges while
     taking other steps to mitigate the economic consequences
     predicted by the Court. If Congress wants to accommo-
     date both goals, it could make tax credits available every
     where while offering new incentives for States to set up
     their own Exchanges. And if Congress thinks that the
     present design of the Act works well enough, it could do
     nothing. Congress could also do something else alto-
     gether, entirely abandoning the structure of the Affordable
     Care Act. The Court’s insistence on making a choice that
     should be made by Congress both aggrandizes judicial
     power and encourages congressional lassitude.

     I don’t understand how anybody can read that and suggest that Scalia is ‘legislating from the bench’. Let Congress fix it, it’s their mess.

234. It’s interesting that Roberts saved the ACA the first time by labeling it a tax when the clearly voiced intent was that it would not be a tax. Since the law did not follow the rule procedures for tax legislation it even further eroded congress’s power to keep its own integrity intact.
     .
     Never before has the US government been so scrambled and lawless or to have more uncertainty as to what is legitimate governance and what is not. Progressives, as will their children, as will all Americans, suffer deeply from the debacle of this presidency. The only hope is that a point is made by the winning 2016 candidate to try to glue the pieces back together.

235. Is that really Carrick? Is he from around here?

236. Va fan’ culo is actually a phrase much richer in meaning, as is often the case with Italian profanity. It really means ‘go and do it in your butt.’ In more polite society it is occasionally replaced by ‘Va fan bagno’ or ‘Go take a bath.’

237. Carrick,
     A rational reading of Justice Scalia’s opinion is that he is clearly stating that he is avoiding legislating from the bench and is pleading with his fellow Judges to do the same.
     .

238. Tom Fuller,

     I suspect the American version would be, in relatively polite terms: “Put it where the sun don’t shine.” More crudely it would be the phrase that starts with ‘Shove it….’

239. Mark, hunter, and others as you know the debate is over the interpretation of four words with an admitted ambiguous interpretation contained within a much larger Congressional legislation. There is long established legal precedent not to interpret short, necessarily ambiguous, phrases contained within a large bill in a way that changes the meaning of the rest of the legislation.

     Of course Scalia full-well knows this. So Scalia seems to think (and you guys apparently agree with him) that it’s okay to for the Supreme Court to choose the meaning of a phrase in such a way as to destroy the bill– effectively a bench veto—on the basis of him perceiving it as being bad law.

     After getting polluted by the continuing stream of words about “not legislating from the bench” from Republican pundits, it’s just a little ironic to suddenly see the same group of people arguing that it’s okay here, because obviously they don’t have the votes to overturn this law via the proper constitutional channels, which would be via revised legislation in the House and Senate.

240. Carrick –
     Why do you think the contested phrase is ambiguous? Within the context of the legislation, “an exchange established by the state” would seem to me to be clearly distinct from “exchange” without qualification.

241. Harold and others,

     There’s an entire majority opinion that lays it all out. For discussions’ sake, it might be useful to start there.

242. Mark Bofill

     I’m OK with the Supreme Court upholding the subsidies.

     You wouldn’t be alone .

     The fact that Americans hold conflicted views of the law and the choice that was before the court demonstrates how treacherous the politics of health care may be for Republicans going forward.

     In a May Washington Post-ABC News poll, only 39 percent of respondents said they approve of the law, while 54 percent said they opposed it. But when asked whether the court should take away subsidies in states that rely on the federal exchanges, 55 percent said the justices should not; only 38 percent said they should.

     Rick Wilson, a Florida-based GOP strategist, said he was “relieved by the decision,” but he acknowledged that there could still be problems ahead.

243. Oliver –
     I have read it and do not understand the claim of ambiguity, which is why I was asking for a person (Carrick) to explain his reasoning.

     (b)
     When read in context, the phrase “an Exchange established by
     the State under [42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it could also refer to all Exchanges—both State and Federal—for purposes of the tax credits. If a State chooses not to follow the directive in Section 18031 to establish an Exchange, the Act tells the Secretary of Health and Human Services to establish “such Exchange.” §18041. And by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same.

     .
     That conclusion seems bizarre to me. (IANAL, in case it isn’t obvious.) To refer to all Exchanges, one would merely write “an Exchange”. The act of qualifying “an Exchange” with “established by the State” differentiates it from one established by HHS. The section numbers seem to back that up; a Federal exchange would be one established under [42 U. S. C. §18041].

244. After getting polluted by the continuing stream of words about “not legislating from the bench” from Republican pundits, it’s just a little ironic to suddenly see the same group of people arguing that it’s okay here

     Once again, precisely what law is Scalia creating from the bench ? What am I compelled to do now that I was not previously compelled to do ? How is this “the same thing” ? This strikes me as exactly the type of false equivalency performed by our friends Eli Rabbit or ATTP.

     Like most handwaving these things tend not to stand up well to specifics. Care to give a specific example of how Scalia is restricting my actions here ?

245. Carrick, everybody knows the law was most deliberately written that way to coerce the Red states to set up exchanges, or they would lose the subsidy for their citizens/voters. The dumb clowns assumed the Republican controlled states would just fall in line. If they had done so, no problem. Too freaking cute by half. All of the alleged justices know this. Those who voted for this decision are not justices. They are politicians.

246. “This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it.
     We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “[o]ur task is to apply the text, not to improve upon it.”

     This is the thing:

     “We lack the prerogative to repair laws that do not work out in practice.”

     When they engage in repairing laws with most of them guided by ideology rather than their duty, they have clearly violated the Constitution and their oaths of office. This sucks.

247. Carrick,
     Your defense of the majority opinion seems to rely on misconstruing Justice Scalia’s opinion.
     What was clear in the ACA law is that it was written to non-severable.
     So every time the USSC has stepped in to save it- first as a tax when it was not, now as Federal Exchanges when it was not, all in the name of post-hoc “intent”, they are in by their own definitions rewriting the law to save it.
     Since 2009 we have seen what was intended to be the voice of the people- the Legislative Branch- silenced by the Executive and now the Judicial. Instead of a Judicial deferring to the Legislative to fix and clarify what the law should be when it is either non-Constitutional or incoherent, the President now writes his own laws or the Judicial picks sides and rewrites it as their politics see fit.
     Somehow if a Conservative President and Court was doing this I doubt if we would see such support or understanding in major media.

248. Carrick,

     There is long established legal precedent not to interpret short, necessarily ambiguous, phrases contained within a large bill in a way that changes the meaning of the rest of the legislation.

     I have a great deal of respect for you, which you have repeatedly demonstrated is well merited. I ask you to answer as a scientist.

     Why do you believe that the meaning of the legislation is certain. Gruber is on record explicitly endorsing the literal meaning of the legislation. Despite this, you are certain that his was not the intent of the law? How?

     You have pointed things out in the past that I’ve overlooked and I’ve always appreciated it. Do me the favor again, if you would.

     Thanks

249. hunter,
     I was hoping for the opposite ruling to what SCOTUS ruled. But honestly, I don’t have and never have had much of an opinion on which interpretation was actually “right”. Yeah… I found some arguments more persuasive than others. Yeah, I found historic claims some supporters of the ACA made ridiculous (and, fwiw, irrelevant).

     But I knew dang well I did not read the bill myself. I did not familiarize myself with all the precedents nor now the courts really rule all the time and so on. So, though disappointed, I have to admit to having absolutely no good arguments for or against the proposition that the ruling was “right” rather than “wrong”.

     I gotta say…. I tend to believe very, very few people arguing about whether this ruling is right or wrong really know. Like me, they just know which arguments they found most compelling– and most of that was based on reading opinion columns in news papers or legal blogs.

     Now… just waiting for the gay marriage ruling. (I’m hoping gay marriage wins btw. I have stronger feelings on that than ACA.)

250. ACA, and the courts rulings on it, is prime example of where Justice Roberts stated intention for the court to rule on the side of not overturning legislation will encourage writing and selling legislation based on vague terminology and then allowing the court to save it.

     Justice Roberts apparently thinks he has mantained his view that the court should not accept an executive branch interpretation of a law, as the IRS interpreted in this case, by providing his (the courts) own interpretation of what state(s) means.

     Putting these two tendencies together is major victory for advocates of bigger government and with the window dressing of passing constitutional muster.

251. A small detail, but one I don’t want to let slide.
     It’s a proper function of the Supreme Court to strike down laws. A ‘veto from the bench’ sounds sort of like ‘legislating from the bench’ if one is listening with half an ear. The terms might sound somewhat similar but the distinction is significant. If we are going to complain that the Supreme Court Justices are ‘legislating from the bench’ when they strike down laws, I suggest we are deliberately employing misleading terms; this is not what ‘legislating from the bench’ has ever meant before. Why do this?

252. Overlooked or at least minimized in these debates is that ACA was sold for legislative approval based on premises in the text of the law that were later reinterpretated by the court. Truth in legislating was certainly given a pass in this case and not given any enouragement for the future.

253. Lucia –
     I also did not read the entire bill. Or even the entire opinion. And none of the dissent (although I’ve seen the excerpt Mark Bofill gave above).

     If the argument is “Sometimes, because Congress can make mistakes in wording, we have to ignore the plain meaning in order to make the legislation logically self-consistent” — I can accept that such an approach may justify the decision in this case. But the argument that the text is ambiguous doesn’t make any sense to me. That Carrick, whose opinions I usually share, uses the term as well, makes me want to dig further at this point.
     .
     P.S. With you (Lucia) on the gay marriage issue.

254. Well, there you go . More SC angst.

255. Lucia,

     Now… just waiting for the gay marriage ruling. (I’m hoping gay marriage wins btw. I have stronger feelings on that than ACA.)

     Looks like your wish is granted. 🙂

256. Mark Bofill,
     Yay!!

257. The obvious unintended consequence of this decision is that states that established exchanges may now shut them down and there is now no incentive whatsoever for states that didn’t establish exchanges to create them.

     Also, when rates skyrocket, some of which have already been announced, there won’t be any distraction.

258. Re: DeWitt Payne (Comment #137149)
     Also, when rates skyrocket, some of which have already been announced, there won’t be any distraction.

     Nothing unusual in the trends so far . In fact, you could say that YoY healthcare inflation is in a slowing trend.

259. I guess RB is happy because his health insurance premium has been reduced by $2500/yr, as promised by Gruber et al.

260. Don,
     They say that conservatives are about facts, not feelings.

261. In my libertarian view of gay marriage, I see the problem as one of the government defining what marriage is and any special treatment it affords. Marriage ideally should be a contractual agreement among consenting adults. The constitutional issue in this case is then the federal government defiining it versus the individual state. I have not read the arguments and thus I cannot give an opinion other than if government can define it can and will discriminate.

262. RB, your linked graph shows a long term downward trend from the 1980s to present time. Do not you think that that momentum will require more time for the influence of ACA to show.

     The cost of ACA is not often mentioned in the media, but the subsidies under question in the recent court case is something like $25 billion per year. The large number of new people insured under medicare has to add to these ACA costs also. I do not know how your graph handles these costs. Does the congressional budget office provide these costs without obscuring the numbers with their unrealized cost savings?

263. Gruber apparently got a majority of the Supreme Court to be part of the reliably ignorant. Strange days indeed.

264. @ RB

     I’ll see your randomly plucked graph from the interwebs and raise youwith another St Louis Fed graph:

     https://research.stlouisfed.org/fred2/series/CPIMEDSL

     That’s a fact!

265. Nothing unusual in the trends so far . In fact, you could say that YoY healthcare inflation is in a slowing trend.

     .
     That chart is health care, not health insurance.
     .
     My state’s plans have seen 10% and 15% premium hikes in sate FY2014 and 2015. This year ( July ) will be only 3%, but still more than core inflation. Co-pays have risen as well.
     .
     Of course, the status quo was to cost shift burdens onto private insurance, but the ACA isn’t any different.

266. RB,

     The CPI is a somewhat bogus statistic. There are all sorts of adjustments. Total health care spending, OTOH, has been rising a lot faster than the 1-2% shown in your link, more like 4%/year since 2009 and back to 5% in 2014. The year-over-year increase was over 8% as recently as 2003 (see chart in this article). It’s distinctly possible that the recent decrease in the rate of increase was an artifact of the Great Recession.

     Btw, I should have said proposed rather than announced for the increase in rates in 2016.

267. Earle,
     Good for you, except you cannot ignore inflation in general. (p.s. I use the same data in that chart too)

     Kenneth,
     There is always talk of massive inflation just around the corner. To be fair, we’ll see.

268. There is always talk of massive inflation just around the corner. To be fair, we’ll see.

     .
     Hard to see much inflation.
     .
     Yes, reserve banks have flooded the money supply.
     .
     But the global population is ageing and decelerating.
     .
     Old farts are on fixed incomes, so they can’t spend any more than that. That’s a formula for stagnant prices.

269. DeWitt,
     Correct me if I’m wrong, but the chart you linked to discusses change rate of healthcare spending, not so much an inflation rate for healthcare services.
     With regards to the effect of the recession, while it may have moderated overall spending it may have actually contributed to increase in premiums .

     Brian Sassi, the head of WellPoint’s consumer business unit, said in his letter to Sebelius that the weak economy is leading individual insurance buyers who don’t have access to group plans to drop coverage or buy cheaper plans. That reduces the premium revenue available to cover claims from sicker customers who are keeping their coverage.

     The result was a 2009 loss for the Anthem Blue Cross unit that sells individual policies to people who don’t get insurance through their employers, he said. Higher rates for this group, which accounts for about 10 percent of Anthem’s eight million customers in California, are needed to cover the shortfall expected from the continuation of that trend, according to the letter.

     “When the healthy leave and the sick stay, that is going to dramatically drive up costs,” Sassi said in an interview. He declined to specify the size of the unit’s loss.

270. Coming back to the spending , from the article:

     The jump in health spending for 2014 wasn’t unexpected. Millions of Americans have now gained health insurance through the Affordable Care Act exchanges, expanded state Medicaid programs, and jobs created by employers. “All three together are driving the coverage and presumably the spending,” says Altarum senior economist Paul Hughes-Cromwick.

271. My cost for an eleven-employee group was an average of 9% per year before 2010. Premiums for equivalent coverage increased 145% (almost 2 1/2 times) from 2010 to present.
     .
     My agent confirmed my own research that the ACA taxes insurance companies on employer group plans and shifts that money to the individual marketplace. The net effect is a 30% reduction in cost of individual plans, which are after tax. Company plans are before tax.
     .
     The concept of getting healthcare unattached from employment is a good one. But as usual government is terrible at fixing things. The just make a more tangled mess at every attempt. The reason healthcare got screwed up in the first place was government tweaking starting in the 1950s; giving companies ability to deduct health coverage for employees. It never occurred to government that this made the playing field unlevel. There was talk for years of making healthcare tax deductible for individuals but the best they could do was make a super complicated schedule A deduction for those who’s out-of-pocket medical expenses exceeded a certain percentage of AGI. If they flatten all taxes and the IRS and all tax attorneys tears will not be shed by me.

272. Ron Graf

     The reason healthcare got screwed up in the first place was government tweaking starting in the 1950s; giving companies ability to deduct health coverage for employees.

     That’s a good point.

     Health care is expensive because the vast majority of Americans consume it as if it were free. Health insurance policies with low deductibles insulate people from the cost of the medical care they use — so much so that they often do not even ask for prices. And people don’t recognize the high premium costs of this low-deductible insurance because premiums are paid by employers. Finally, the tax code subsidizes these expensive, employer-purchased insurance policies.

     More here .

273. Kenneth:”Marriage ideally should be a contractual agreement among consenting adults.”

     That seems reasonable. The majority decision invoking the Due Process Clause put it this way:

     “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

     Gay people have the same rights as anyone else. So far, so good. Does this not mean that everyone has the right to marry the person, or persons of their choice? It should. What’s good for the goose is good for the gander. The Constitution promises liberty to all within its reach.

     The logical extension of this decision is a future ruling that laws against polygamy violate the Due Process Clause. Same with incest. Prostitution. Cats marrying dogs?

     How many feministas will support the right of polygamists to marry, prostitute rights? The lady justices who voted for gay marriage? I am guessing there is a fence around this decision.

274. Don,

     There would be no issue if government did not grant privileges based on their recognition of marriage. The correct move to fix would have been removing government from the equation and handling all such privileges by contracts between individuals to cover inheritance and other privileges. But government only moves forward toward more involvement, blind each time to the newly implied complications and costs of their involvement.
     .
     Contracts would work better if the courts were working.

275. “Health care is expensive because the vast majority of Americans consume it as if it were free. Health insurance policies with low deductibles insulate people from the cost of the medical care they use — so much so that they often do not even ask for prices. And people don’t recognize the high premium costs of this low-deductible insurance because premiums are paid by employers. Finally, the tax code subsidizes these expensive, employer-purchased insurance policies. Finally, the tax code subsidizes these expensive, employer-purchased insurance policies.”

     So who in their right mind would believe that enrolling millions of more people on Medical and subsidizing millions more to get them to buy health insurance would result in lowering overall spending on healthcare and help balance the federal budget, without rationing and other undesirable consequences?

276. “There would be no issue if government did not grant privileges based on their recognition of marriage.”

     That genie is already out of the bottle, Ron. There is no going back.

     I won’t have any problem with this decision, if it is applied consistently to other “non-traditional” actors. I don’t expect it will be. The Obamacare decision was the real stinker. What are they going to do next? Make Obama freaking Emperor?

277. Don Monfort

     The logical extension of this decision is a future ruling that laws against polygamy violate the Due Process Clause.

     How is that ‘the’ or even ‘a’ logical extension? Real question. Please stick to polygamy for now. We don’t need to discuss the entire question of whether people can marry box turtles until we hear your explanation of how the argument for same sex marriage is somehow logically leaps to polygamy. Because, frankly, I don’t see how anything about permitting marriage between two individually “logically” leaps to any right involving more than two individuals.

     As for cats marrying dogs: Doesn’t seem any worse than letting cats marry cats. But alas, cats are prohibited many things including marrying other cats and entering into legally binding contracts. I’m sure many cats are horrified to know that humans often consider them property. Despite their horror at that thought, I suspect SCOTUS would view them as such; there’re really little worry SCOTUS willl decree that states need to permit dog-cat marriages.

     How many feministas will support the right of polygamists to marry, prostitute rights?

     Not sure what a “feminista” is. But some feminists support legalized prostitution; others don’t. Feminists don’t support forced prostitution but I think non-feminists don’t support that either. That said: I have no idea how anyone’s view on prostitution has anything to do with whose marriage are recognized by the state and whose are not.

     Same with incest.

     Eye. Roll.

278. Re: Turbulent Eddie (Comment #137157)

     I believe the same comment for DeWitt’s linked chart applies to the chart you’ve shown i.e, it represents expenditures (therefore falling during recessions), and is not representative of inflation rates.

279. “I don’t see how anything about permitting marriage between two individually “logically” leaps to any right involving more than two individuals.”

     The decision is based on the Due Process Clause. The first sentence in the decision spells it out:

     “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

     The laws prohibiting gay marriage denied a class of individuals their right to define and express their own identities. That liberty belongs to each and every individual. It’s not about the rights of pairs of people. The majority justices are saying gays can’t be denied their individual rights, just because traditionally and legally marriage has been between a man and a woman. What rationale are they going to use to deny the Due Process rights of 17 individuals who love and cherish one another and want to do one big happy wedding? Well, it goes against tradition and it hasn’t been legal.

280. “Not sure what a “feminista” is. But some feminists support legalized prostitution; others don’t.”

     Feministas are the radical kind, related to Sandinistas. Those on the court seem to be of that kind. However, you are right that many feminists support extending Constitutional rights to prostitutes. My impression is that most women don’t like the idea of legal prostitution for various reasons.

     “Eye. Roll”

     Pairs of people who are related fall in love and want to get married. Reality. Are pairs of people, who happen to be related, going to be denied their individual rights because they fell in love with the wrong person? The SCOTUS will have to deal with this crap.

281. Don Monfort,
     “Gay people have the same rights as anyone else. So far, so good. Does this not mean that everyone has the right to marry the person, or persons of their choice? It should.”
     .
     Well, there is a substantive difference: marriage to one person, not to two. There are all kinds of spousal property rights associated with marriage that would become a mess with polygamous marriages.
     .
     But I think you are seeing this as a “legal” ruling and looking for logical extensions. I consider this ruling, like most “landmark” SC rulings, to be nothing but a political statement about what is politically acceptable…. this ruling could not have happened in 1957, or 1887, for that matter. The SC has long since stopped trying to apply the plain words of the Constitution, and instead treats the Constitution as a “living document”, which just means the judges do not at all care about the original intent of the Constitution. The SC has twisted and morphed the Constitution into logical and linguistic pretzels in order to find new (popular) ‘rights’ that were never originally intended to exist. Despite Scalia’s arguments, this will continue… just as it has since the Civil War. If there is a broad popular consensus for polygamy, you can bet the SC will manufacture the appropriate ‘rights’ to make polygamy “the law of the land”. The SC sold its soul to the political devil generations ago, and the spectacle of SC Senate confirmations shows that politicians of all stripes understand this. Scalia is tilting at windmills.
     .
     My problem with the current situation is that we now have a poorly designed, inefficient political system, not the one originally envisioned by the constitution. Our system allows rather grotesque lawlessness and encourages endless gridlock, along with constantly changing “rights”. Better I think to scrap the whole system, get rid of the SC and the Presidency, and have a bicameral parliament with a prime minister. I have had quite enough of the Imperial Presidency and the SC appointments the Imperial President makes… from both parties.

282. Most of what you say is essentially correct, Steve. However:

     “Well, there is a substantive difference: marriage to one person, not to two. There are all kinds of spousal property rights associated with marriage that would become a mess with polygamous marriages.”

     The polygamists lawyers will prepare a bunch of prenups. They will form a trust, LLC, whatever. They will argue that you can’t deny their clients their Due Process rights, because their relationship is complicated. They also might argue that a family unit of seven husbands and wives achieves economies of scale, and the benefit of pooling resources. But the bottom line is, according to the recent SCOTUS decision, they got the right to do their own thing. Court decisions have consequences.

     ‘Better I think to scrap the whole system, get rid of the SC and the Presidency, and have a bicameral parliament with a prime minister.’

     Could be worse. No reason to believe the quality of the politicians or the judgement of the electorate would improve.

283. RB, I think I understand what DeWitt linked on healthcare cost, but in light of that I am not sure I understand what your link epresents or how it can be reconciled with the DeWitt link. Can you explain?

     I said nothing about inflation, RB, but I believe it is the Federal Reserves intent to inflate. Failure to inflate is an indication of a Fed failure. The recovery has been disappointing and particularly when considering the deep recession from which we were recovering. Can the Fed raise interest rates with a faltering economy? The mainstream Keyesians on the board do not think so.

     Maybe we will need a helicopter drop of currency as Ben Bernanke once alluded to.

284. Don Monfort

     “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

     The laws prohibiting gay marriage denied a class of individuals their right to define and express their own identities. That liberty belongs to each and every individual. It’s not about the rights of pairs of people. The majority justices are saying gays can’t be denied their individual rights, just because traditionally and legally marriage has been between a man and a woman. What rationale are they going to use to deny the Due Process rights of 17 individuals who love and cherish one another and want to do one big happy wedding?

     Huh? The obvious answer to “what rational” is prohibiting plural marriage doesn’t rob anyone of either (a) of their identity or (b) of any right afforded anyone else. Prohibitting gays from marrying people of their own sex did rob them of their identity as gays and denied them the right they would have had if they did not have the identity “gay”.

     So there is no contradiction under “due process” between prohibiting plural marriage and permitting gay marriage. Or if you can see one, perhaps you better flesh out your argument to pinpoint what “identity” or “right” is being denied by prohibiting everyone of any and all identities from marrying 17 people. After that move on the how “due process” prohibits them from preventing me from indulging in my self-view of “drug dealer” or “terrorist”.

285. Lucia,

     Polygamy is complex, but I’m struggling to see why you’re dismissing the incest analogy. Note that in several states only incestuous marriage is illegal, not incest per se.

286. Kenneth,
     If more people enroll in healthcare, the total healthcare-related expenditures go up and looking at this data tells us nothing about the inflation component of this data. The CPI indexes for medical care address the question of how much the cost of a particular medical service/drug/equipment changes with time. The rate of change of this index normalized to CPI-all can give an idea of how inflation here differs from inflationary pressures affecting the broader economy as a whole. From DeWitt’s linked article:

     Total health-care spending is a combination of utilization (how many tests and treatments we use) and price (how much each service costs). Even if the volume of medical care delivered is going up as more people get health insurance, there are signs that providers face pressure to keep the prices they charge in check. A measure of how much hospitals charge insurance companies and the government, included in the Producer Price Index report released on Wednesday, shows that hospital prices actually dropped in January, compared with a year earlier.

     “This is absolutely unprecedented,” Hughes-Cromwick says, noting that prices dropped for government payers and increases were historically low for private insurers. Contracts between insurers and hospitals begin at the start of the year. “I think there was tremendous pressure on providers to cut them slack on their pricing.”

     It’s too soon to tell whether the deceleration in medical spending over the past few years was a temporary dip born of the recession or genuine progress in taming health-care costs. This might just be the year we find out.

287. SteveF,

     There are all kinds of spousal property rights associated with marriage that would become a mess with polygamous marriages.

     Imagine Social Security? Tax shielding for surviving spouses? Presumptive paternity?

     Also, if we just start with polygamy, if the guy has a wife, can he make the unilatiral decision to marry another woman? Or does he need permission? If he has two, does he need permission from both? Only one? If he has three, is permission from 2/3 ok? Or is it each wife has a veto. And with respect to SSN, does each wife get a full wife’s share of her husbands SSN amount? Do they have a right to each others?

     And how does divorce work? Can one wife sue to kick another wife out? Or can the two wives sue to divorce the husband only?

     And the, of course, if we have poligamy we’d clearly need polyandry. So the same questions get asked there. And if we have both…. can we have two men and two women married in a group of four.

     Clearly, this is no longer anything like a marriage of 2 people. It is a corporation of some sort and legally would require different rules. Even if we had this other civil status, the rules must be different. Marriage restricted to 2 is quite different from plural marriage. There is nothing aobut “due process” that says that if one type if thing is offerred to nearly everyone then a completely different thing must also be offerred.

     Don

     Pairs of people who are related fall in love and want to get married. Reality. Are pairs of people, who happen to be related, going to be denied their individual rights because they fell in love with the wrong person? The SCOTUS will have to deal with this crap.

     Why the future tense? This ruling doesn’t change anything on that front. Scotus potentially had to deal with the possibility of a sister and brother wanting to get married anyway. This ruling doesn’t change that. The argument against the marriage is mostly genetic, or in the case of younger people who might still be financially dependent on older relatives, it was undue pressure. Nothing about those arguments is touched by the SSM ruling. Either there is a genetic issue or there is not. Either there is an undue pressure issue or there is not. The arguments in favor of legalizing incest are neither stronger or weaker than yesterday.

     For what it’s worth: many states permit cousin marriage. So people with that degree of relation already can marry in many states. Illinois permits cousin marriage if both are over 50 yo. So you are talking sibling or parent/child marriage here.

     The main reason these cases aren’t going to SCOTUS is almost no one wants to marry their brother, sister, mother, father, son or daughter. So no one is taking any such case to the court.

288. Jonathan

     Polygamy is complex, but I’m struggling to see why you’re dismissing the incest analogy.

     I’m dismissing the notion that this ruling affects any potential legal argument for or against incestuous marriage. The legal arguments for requiring states to grant access to incestuous marriage are either just as strong or just as weak as before.

289. Jonathan,
     Also, btw, in many states cousin marriage is permitted.
     http://www.ncsl.org/research/human-services/state-laws-regarding-marriages-between-first-cousi.aspx
     In Illinois, two cousins over 50 can marry each other. Few do…. but they can.

290. Don Monfort

     The polygamists lawyers will prepare a bunch of prenups. They will form a trust, LLC, whatever. They will argue that you can’t deny their clients their Due Process rights, because their relationship is complicated. They also might argue that a family unit of seven husbands and wives achieves economies of scale, and the benefit of pooling resources.

     A bunch of people can already tailor contracts and form trusts. These would each be crafted to suit the needs of the group so there is no need for any government established civil status here.
     What right or privilege afforded others is denied them by not having the government recognize this as “civil marriage”?
     In the case of SSM, gays were denied a right afforded others. That is others were permitted to chose a spouse of the sex they preferred. But gays were not permitted any. So, those with a particular identity were deprived a right that other people had

     But the bottom line is, according to the recent SCOTUS decision, they got the right to do their own thing. Court decisions have consequences.

     “Do you own thing” is not what the SCOTUS ruling said. What they did was much narrower than that. But in any case, one already can form this corporation and enter agreements and so on. No one can change Social Security distributions or obligations of employers and so on by writing their a contract between themselves though. And right now, those rules only deal with marriages that involve two parties. They aren’t extendable to plural marriage. The extension to plural marriage is permitted to no one. And that means the ban doesn’t violate “due process”.

291. SteveF is correct in my mind that SCOTUS decision(s) is more political than a constitutional consideration.

     Don M, my daughter in laws brother in law is a liberal with recent tendencies toward being libertarian. He teaches high school and recently had a class room discussion about gay marriage. Most of his students very much favored it. He brought up the issue of the government defining marriage and put forth the issues polygamy and multiple people marriages. He may even have broached the issue of close relation marriages. The students were all against those marriages, but could not arrive at consistent principle on which to defend.

     I would guess that the primary objection is not to a marriage contract in these situations, but the assumption that it implies sexual relationships to which some might be opposed. Actually if the government did not impose conditions on the marriage contract it would be none ot its business what happens in any such situation.

292. RB,

     If health care spending is expanding faster than the economy, which it is, then we have a problem even if costs for some individuals goes down. As long as the comparison is the same, then it doesn’t matter if GDP and health care spending are corrected for inflation.

293. Kenneth

     The students were all against those marriages, but could not arrive at consistent principle on which to defend

     They are in high school. I’m not surprised they don’t have a broad knowledge of the civil functions of marriage. Does your brother in law live in Illinois? Cousin marriage was legal in Illinois– provided both are over 50 or at least one of the partners is sterile

     Informing the kids of this might get them thinking of the argument against it in Illinois and if they live here, that might strike home a bit. The exception to the restriction tends to explain the public policy reasons for the restriction.

     The other major argument is the more financially vulnerable person being pressured into marrying mostly against their will. Historically, it was pressure of young financially dependent girls to marry fathers, step-fathers or uncles. Notice the “both over 50” rule also tends to avoid or minimize this potential pitfall of permitting incestuous marriages. So once again: the exception can clarify the reason for the restriction.

294. Does anyone have a good reason there should be SS survivor benefits for anyone but children? When the law was set up married women were not likely qualified to earn income. Divorce was also unlikely. Now its 50%. What do they do for x-wives? Why would they lose benefits for being divorced for a year if they raised 3 children over a 30-year marriage? Why not get rid of SS since its unsustainable anyway. Why not expand Health Savings Accounts HSAs and IRAs to replace Mcare and SS?

295. This is OT but Clive Best agrees that land and SST divergence is intriguing and shouting out for feedback here.

296. The ruling that disparate impact was equivalent to intentional discrimination may have even more long lasting consequences than the ACA or gay marriage decisions. I’m sure plaintiffs attorneys are in ecstasy.

297. Dear Lucia,

     “Huh? The obvious answer to “what rational” is prohibiting plural marriage doesn’t rob anyone of either (a) of their identity or (b) of any right afforded anyone else. Prohibitting gays from marrying people of their own sex did rob them of their identity as gays and denied them the right they would have had if they did not have the identity “gay”.”

     If 3 consenting adults want to get married, preventing that marriage is robbing them of the right to be married to the people they choose to marry. It’s their choice of lifestyle. That’s how they want to roll. Don’t they have the same Due Process rights as gays? The law has been changed to accommodate gays, why not accommodate polygamists? Maybe you can think of something.

     “After that move on the how “due process” prohibits them from preventing me from indulging in my self-view of “drug dealer” or “terrorist”.”

     That indicates a lack of understanding of the Due Process Clause and it’s application in this case. I am guessing you haven’t read the decision.

298. Don Monfort.

     f 3 consenting adults want to get married, preventing that marriage is robbing them of the right to be married to the people they choose to marry. It’s their choice of lifestyle. That’s how they want to roll.

     The ruling didn’t say there was any due process violation of not letting people roll the way they want to roll.

     Don’t they have the same Due Process rights as gays?

     Absolutely. The civil state of “plural marriage” doesn’t exist for anyone. Not gays. Not others. The state failing to create a civil state doesn’t create any “due process” problem. So… they are on the exact same level as gays here.

     The law has been changed to accommodate gays, why not accommodate polygamists? Maybe you can think of something.

     If you want to campaign your state to enact pural marriage, have at it. It’s a free country. You can ask your legislature to do whatever you prefer and if enough people want it, well, others would be overruled. SCOTUS hasn’t prohibitted states from creating such a state. I’ll be happy to mostly campaign against it until I hear a good argument in it’s favor.

     The issue here is you seem to be claiming the current ruling requires creating the state, but you haven’t advanced any argument for why this ruling would compel polygamy. Or– more precisely– your attempt to argue that by simply invoking the words ‘due process’ is so feeble as to barely count. As far as I can tell, the ruling does not compel a civil right to polygamy.

     That indicates a lack of understanding of the Due Process Clause and it’s application in this case. I am guessing you haven’t read the decision.

     You haven’t shown one iota of understanding the due process clause.

299. All the arguments against consenting adults participating in polygamous marriages based on preventing the folks from screwing up their finances, or whatever, are ludicrous. They can just form a freaking cult, instead of getting legally married. We know how that usually turns out. When are the feds going to outlaw the Church of Scientology and other such slavery operations? The problem for the poor polygamists is that they don’t have political power.

300. “The issue here is you seem to be claiming the current ruling requires creating the state, but you haven’t advanced any argument for why this ruling would compel polygamy.”

     You have me confused with someone else. If you think not, find the quotes that substantiate that foolishness.

301. DeWitt,

     That is an entirely different issue from whether the ACA has led to medical care inflation. And yes, it is likely to be a political issue going forward as a greater part of the economy is dedicated to medical care as the population ages.

     But the question of whether the ACA has caused medical care inflation has nothing to do with nominal vs real GDP/healthcare. As stated more than once above, more people using a particular service is not the same as that service costing more. And while I agree that healthcare inflation continues to outpace broader economy inflation, the only statement that could be made about recent trends is that it seems to be occurring at a slower pace since 2012 rather than spiking.

302. Don,

     All the arguments against consenting adults participating in polygamous marriages based on preventing the folks from screwing up their finances, or whatever, are ludicrous.

     All? You haven’t even engaged one argument against it. You haven’t even discussed one. Yet, you are making advancing this conclusion about “all” of them.

     They can just form a freaking cult, instead of getting legally married.

     Of course they can form a cult. They could before this ruling and they can after. This ruling doesn’t change that.

     We know how that usually turns out.

     Christianity was once a cult. I’m not a Christian, so I’m just going to leave it at that.

     When are the feds going to outlaw the Church of Scientology and other such slavery operations?

     Likely never. But if they do, such a ban would violate the first amendment. What point did you think you were making with this rhetorical question. You know the rule… make your point.

     The problem for the poor polygamists is that they don’t have political power.

     Well.. yeah… if lots of people were for polygamy, states would pass laws permitting it. But this doesn’t have anything to do with the recent ruling on SSM. States can still enact polygamy if they like.

     Out of curiosity: have you abandoned your argument that the recent ruling compells legality of polygamy? And are just resorting to some sort of woe-is-me- possible parade-of-horribles stream of consciousness thingie? Because you seem to have abandoned your original claim about the ruling compelling states to enact laws permitting plural marriage (an incest.)

303. RB, how would the price change of insurance be handled by your cpi? Further how would a high deductible market place insurance be interpreted where the insured would be required to pay more out of pocket? What about the added expense of the tax paid to forego insurance? None of these features would be in the 1982-1984 baseline period.

304. This might help. Wapo columnist criticism of the majority opinion:

     http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/26/justice-kennedys-opinion-in-the-gay-marriage-case-may-upend-fifty-plus-years-of-settled-equal-protection-and-due-process-jurisprudence/

     “According to black-letter law, at least as understood until recently, with regard to equal protection claims the vast majority of laws are subject to so-called rational basis scrutiny, but strict scrutiny applies if a “suspect class” such as a racial minority faces discrimination, or if a fundamental right is involved and the law is challenged as an arbitrary classification. With regard to due process, strict scrutiny applies to fundamental rights, and infringements on all other rights receive rational basis scrutiny.

     Kennedy does not even address the possibility that homosexuals are a suspect class (which to my mind would have been the strongest rationale for the Court’s decision). Instead he points out that the Court has consistently held that marriage is a fundamental right, and then basically says that if you combine due process liberty interests with equal protection concerns, the proponents of constitutional protection for gay marriage win.”

     The ruling is not based on gays being a “suspect class” that faces discrimination. It’s based on their fundamental right to marriage. The laws that prevent them from marrying violate their due process liberty interests and deny them equal protection. Court says laws got to go.

     Substitute “polygamists” for “gays”. When 3 polygamists come to the court asking for their fundamental right to marriage and equal protection, what does the court say?

305. Lucia, what if a gay couple now decided to get married solely as a way to pass on their SS benfits to a friend? Is that OK? What if neither was gay? Is that OK? I realize this is more of a problem caused by government bestowing treats to married people but that is not going to change, as Don pointed out.
     .
     BTW, I am for gays to be able to marry. I just don’t know if all the goodies from Uncle Sam should come with it, which they naturally would have to.
     .
     I am not for anchor babies either. Their should be a Constitutional convention to fix a few things but they might just burn the thing in the process if progressives got control.

306. Due process in a larger sense I would suppose would not be limited to two people who are married, but rather to two people who in every way have the same relationship and living conditions as a married couple, but chose for their own reasons not to marry. Recognition at this level would effectively remove the government definition of marriage from process.

307. Kenneth,
     Tracking insurance premium is recognized to be a hard problem, and therefore handled indirectly by what is paid to medical care providers by insurance companies. Out of pocket expenses are included in the CPI.

308. “All? You haven’t even engaged one argument against it.”

     I don’t think you are reading what I am writing. I will give you one: Let’s say you got 3 people with the same multiple degrees (MBA,CPA, MD) that want to get married. You going to tell them they can’t handle their finances? Do you tell that to two 18 year old jobless gays who want to get hitched?

309. Don

     You going to tell them they can’t handle their finances?

     No. But this has nothing to do with todays ruling.

     Do you tell that to two 18 year old jobless gays who want to get hitched?

     No. But once again: nothing to do with today’s ruling.

     Sorry, but you seem to want to go off on weird tangents that have nothing to do with your claim about the consequence of today’s ruling. I have no idea what point you think you are making with those rhetorical questions. But I would remind you: if you ask rhetorical questions, please answer them so those reading can have some notion about what argument you think you are trying to make.

310. Monfort

     It’s based on their fundamental right to marriage. The laws that prevent them from marrying violate their due process liberty interests and deny them equal protection. Court says laws got to go.

     Substitute “polygamists” for “gays”. When 3 polygamists come to the court asking for their fundamental right to marriage and equal protection, what does the court say?

     The fundamental right recognized is to 2 person marriage. Your argument is now a dead parrot.

     On this

     their due process liberty interests and deny them equal protection

     Yes. Because everyone else has a right to 2 person marriage. So… uhmmm.. yeah.

     I read Volokh. Have for years. You go ask Orin or Dale or Bernsteind or Eugnene or whoever whether they think the ruling mandates plural marriage. If they say yes, let me know. ‘Cuz they ain’t gonna say yes. They’ll say no.

311. Lucia, you are asking me questions and I am answering them and then you are selecting snippets of my answers and telling me they don’t have anything to do with today’s ruling. Do I deserve that? I can stop.

     I still am waiting for you to show me where you got this gobbledygook:

     “The issue here is you seem to be claiming the current ruling requires creating the state, but you haven’t advanced any argument for why this ruling would compel polygamy.”

     Did you read the quote from the Wapo article on the ruling? Have you read the ruling? Do you get the part about fundamental right,liberty interests and equal protection?

     What I have been saying is that the ruling leaves an open door for others, who will probably ask the court for a little help with their fundamental rights and equal protection.

312. “The fundamental right recognized is to 2 person marriage.”

     I am sure you can show me where that can be found in the Constitution. The fundamental right that was recognized up until today, was man+woman=marriage. That got changed. It can get changed again. That is the point.

     I am done. Don’t care if gays marry. Happy for them. What I don’t like is hypocrisy and sloppy politically motivated work by a group of hacks on the highest court in the land.

313. Sorry, I missed this:

     “You go ask Orin or Dale or Bernsteind or Eugnene or whoever whether they think the ruling mandates plural marriage.’

     I re-read your convoluted comments in case I did miss something. Trying to figure out where you get your stories. The above is another mystery to me. I never said the ruling mandates plural marriage. That is a ridiculous interpretation of what I have been saying. If you show me where I said that, I’ll buy you a nice Escalade with big chrome rims..

314. i think people should be concerned regarding the blurred lines of our current government structure. The courts are supposed to be there to administer the law. The SC is supposed to decide the constitutionality of the law. The administration is supposed oversee the government bureaucracies constitutionally. The legislature is supposed to make the laws. it is not the purpose of the administration to make the laws and it is not the job of the courts to make or even interpret the laws, especially based on current public pressures If the laws are vague or unconstitutional the court should send them back to the legislature to clarify or change. And the legislature responds directly to the people.This is the way the system was designed to work and when it is followed it works very well. Personally I’m in favor of same sex marriage. But i think the desire to achieve our personally desired outcomes through any means is rapidly degrading the brilliant and effective system that was designed by some unique visionaries about 250 years ago I also think I’m in the minority with this view. We may correct some wrongs in the short run but in the long term the system may become so broken and unrecognizable that we may loose our original brilliance. We will eventually not even remember it.

     I know…there are many that desire that

315. Don,

     Lucia, you are asking me questions and I am answering them

     I don’t know how you’ve gotten the impression I’ve asked you questions. I’ve scanned back. As far as I can see, the only two question markds in my comment to you follow

     All?

     That’s a rhetorical flourish– not a quesiton and I answered it myself.
     And

     have you abandoned your argument that the recent ruling compells legality of polygamy?

     Which you have not answered.

     I have suggested you provide arguments for your claims. Perhaps you think that’s a question. But you still have not advanced any arguments about your claims about polygamy or incest.

     The issue here is you seem to be claiming the current ruling requires creating the state, but you haven’t advanced any argument for why this ruling would compel polygamy.”

     Uhmmm… you haven’t advanced any argument to support your claims about polygamy or incest.

     as for this

     Did you read the quote from the Wapo article on the ruling? Have you read the ruling? Do you get the part about fundamental right,liberty interests and equal protection?

     Yes. I read it. I read it before you posted it here in comments. So: Yes. Do you think asking that question supports your claim polygamy? It doesn’t.

     I’d like to ask: you wrote your question asking if I’d read the quote in context that suggests you think, perhaps, that quote you posted says something about your earlier claims about the effect of this case on future court rulings on polygamy.

     That quote doesn’t say anything about polygamy. Nor does the article.

     You linked
     http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/26/justice-kennedys-opinion-in-the-gay-marriage-case-may-upend-fifty-plus-years-of-settled-equal-protection-and-due-process-jurisprudence/
     It says nothing about polygamy. Bubkiss. Nada. Ne Rien. You know how I can tell? It doesn’t include the word “polygamy”. Nor does it include anything like “plural marriage”, and so forth.
     Whatever you think Bernstein is saying, if you think it is something about “polygamy”, well…erhm… no.

     In context of very tenuous points you seem to be trying to make– well, that post does not support them. For example, Bernstein doesn’t say that the ruling tells us the court ruled anything like “everyone gets to do their own thing” or anything like that.

     Bernstein criticizes the ruling: but not by making claims remotely like the ones you are making here.

     I never said the ruling mandates plural marriage.

     No. But you posted the quote and that link in what appeared to be a response to my comment challenging you about your claim to support your claim the ruling compels plural marriage. I’d asked you:

     Out of curiosity: have you abandoned your argument that the recent ruling compells legality of polygamy? And are just resorting to some sort of woe-is-me- possible parade-of-horribles stream of consciousness thingie? Because you seem to have abandoned your original claim about the ruling compelling states to enact laws permitting plural marriage (an incest.)

     In a reply a reply that appeared to be to my you posted the quote and link.

     Your comment started with “This might help. Wapo columnist criticism of the majority opinion:”. So, yes, it appeared that this was your attempt to provide said evidence the case said something about plural marriage. If you merely meant to communicate that there are people who criticize the ruling. Well… yeah. But their criticism is not that the case will result in SCOTUS having to rule that states must permit polygamy.

     And that is, indeed the claim you seemed to suggest early in this thread starting with this:

     The logical extension of this decision is a future ruling that laws against polygamy violate the Due Process Clause.

     Which you wrote in “Don Monfort (Comment #137165) “.
     If you are now admitting that polygamy is not a logical extension of the ruling, we now agree. It’s not. Berstein doesn’t say it is– so your quoting him and posting a link to his post is notevidence to support that.

     As far as I can see: You have found zero evidence to support the claim about the extension to polygamy.

     What I have been saying is that the ruling leaves an open door for others, who will probably ask the court for a little help with their fundamental rights and equal protection.

     Leaving an open door? There is always an open door for people to ask the courts for help. There is nothing about this ruling that suggest the courts would rule to require polygamy. There is nothing about this ruling that suggests the court would rule that polygamy is a fundamental right. There is nothing about this ruling that suggests the court would rule “equal protection” means people get to do things no one is allowed to do. Under equal protection, if something is forbidden, it can be forbidden to all. That is totally, entirely 100% equal. There is no problem with that.

     The complaint that people can try to get the courts to rule in their favor on something is rather odd because people can always do that in the USA. And they have. And they would regardless of todays ruling. The opposite ruling would not have shut any door on that. So complaining that door is open… well, yeah. It is. Because that door is always open in the US. One hopes access to the courts continues to exist in the US. The alternative is rather horrifying.

     But with respect to what the courts would rule after someone presents the case: there is nothing in this ruling to suggest they would rule to force states to require polygamy. And you have provided no argument to suggest so. (No. Don’t ask me if I read the link again. I did. It doesn’t contain an argument for that.)

316. Don Monfort

     I am sure you can show me where that can be found in the Constitution. The fundamental right that was recognized up until today, was man+woman=marriage.

     I haven’t made a claim that right is in the constitution in any explicit way. But, I would suggest you won’t be able to find the right to you but “man+woman=marriage” in the constitution either. So if you believe the only rights are those explicitly in the constitution, we didn’t have that right either. So I have no idea what point you think suggesting you are sure I could find the right to 2- person marriage in the constitution is supposed to mean.

     But my claim is only that todays ruling is for marriage of 2. No one is disputed the right was not recognized by SCOTUS before today. I am merely pointing out that they didn’t recognise a right to polygamy. Moreover, there is nothing in the logic of the ruling that would suggest such a right exists.

317. Ron Graf

     Lucia, what if a gay couple now decided to get married solely as a way to pass on their SS benfits to a friend? Is that OK?

     What if a straight couple does it. Is that ok? I say no. But I think the answer isn’t affected by the ‘gay/straight’ bit, so nothing has changed iwth this ruling.

     What if neither was gay? Is that OK?

     No it’s not ok. But this has nothing to do with legalizing gay marriage. It’s not ok in all instances. That makes the “not ok” ask be identical for all groups — which is what due process and equal protection require.

     It’s not just “more” to do with that. If it’s a problem it’s a problem entirely due to the government creating a status of marriage that has some protections and privileges that some might wish to exploit.

     But this this has absolutely nothing to do with gay marriage. The problem that people might exploit the civil status of marriage is the same today as it was yesterday.

318. Don Monfort

     I am done. Don’t care if gays marry. Happy for them. What I don’t like is hypocrisy and sloppy politically motivated work by a group of hacks on the highest court in the land.

     I’m not seeing any hypocrisy. I don’t know what about the ruling make you think they are hacks.

     I am gathering there is something about this ruling that irks you. If not you wouldn’t be flinging out so many negative jibes– especially given that you are happy for gays.

319. chuckrr,

     If the laws are vague or unconstitutional the court should send them back to the legislature to clarify or change.

     I don’t like the ACA ruling, but sending laws back to the legislature to ‘clarify’ has never been a feature of our system.

     The legislature can still change the law if they wish. That is part of our system. I’m sure aspect of the ACA will get changed by the legislature. In what way, I don’t know though.

     But i think the desire to achieve our personally desired outcomes through any means is rapidly degrading the brilliant and effective system that was designed by some unique visionaries about 250 years ago I also think I’m in the minority with this view. We may correct some wrongs in the short run but in the long term the system may become so broken and unrecognizable that we may loose our original brilliance.

     SCOTUS has been exercising judicial review since Marbury vs. Madison. Whatever the brilliant system that survived until now is, it hasn’t been one that doesn’t have judicial review. My civic course in high school included judicial review as one of the planks in “separation of powers”.

     Sometimes I’m grumpified by SCOTUS rulings, but I don’t then decide that something has changed. SCOTUS has always ruled on things. People have yapped about some rulings being bad– and always have. (Some rulings were bad. )

320. Lucia,
     Clarify is the wrong word…change is the correct word. And judicial review of course is highly subjective. i think the original intent was to determine the constitutional compliance.Maybe I don’t know what I’m talking about. I suppose they have always over stepped their mandate and found meanings and “rights” that aren’t there. I guess maybe the cause is more important than the process in some cases. If people would at least acknowledge that I would feel better….I think

321. chucker,

     i think the original intent was to determine the constitutional compliance.

     That’s part of it. But the original intent is for greater scope that that. For example, in addition to constitutional cases, in included things like controversies between two states and so on. The ACA case arose between states and the US, so that’s for SCOTUS to judge the gay marriage one is a constitutional claim– and it’s a constitutional claim about a right even if some people think they should have lost. So merely being a constitutional claim puts that under SCOTUS rather than elsewhere.

     SCOTUS could have ruled the claim was unfounded– but it’s still the role of SCOTUS to make the judgement about the soundness of claims to constitutional rights.

     I think it’s important to not confuse ones opinion that SCOTUS’s interpretation about whether something is or is not a right with the notion that the founders didn’t intend SCOTUS to make that sort of interpretation. SCOTUS is supposed to make those sorts of interpreatationa.

     You can see the relevant portion of our constitution below.

     Section. 1.

     The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

     Section. 2.

     The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

     In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

     The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

     The claim about a right under the constitution is a “case … arising under the constitution”. So the constitution mandates SCOTUS and the courts have jurisdiction there. But their jurisdiction is broader than that.

     I guess maybe the cause is more important than the process in some cases. If people would at least acknowledge that I would feel better….I think

     But the constitution itself says the proper process for adjudicating claims or between states and the FEDS under the constitution is at the SCOTUS. So, taking this to SCOTUS is a proper process under the constitution. Whether one likes the ACA or gay rights rulings or not, involving the courts and SCOTUS is the proper process for deciding that. Or at least it’s the proper process under the US Constitution.

322. Lucia,
     If I may ask, what do you dislike about the ACA ruling?

323. Oliver,
     I didn’t really criticize the ACA ruling. I said I was hoping it would come out the other way but not really a criticism of the ruling. As I said: haven’t read that bill, that ruling and so on.(See Comment #137141)

     As for why I hoped it would come out the other way.
     1) My impression was that “The state” terminology really was put in by people who wanted to strongly encourage the states to set up exchanges — and that the feds often do this. So I thought the argument that’s what was intended was the stronger of the two. (And I though it was what was intended even if it didn’t end up working out. Not working out is just “the breaks”.) So I thought this should go the other way even if we were looking for “intent”.

     2) My impression is that the tax breaks for some who do sign up go hand in hand with fines for some people who might not want to sign up. And that the states could avoid fines for their citizens if they did not set up their own exchanges. I don’t favor fines for people who don’t sign up.

     That said: the ACA isn’t that big a deal for me. So my impression about fines could be wrong and I wasn’t avidly reading every debate about the ACA as it was being crafted. My main feeling about the ACA is that’s best addressed by Congress. But given the situation, I was rooting for the opposite ruling — which is not to say there is any legal flaw in the one that came out. I just don’t know.

     In the end: I mostly disfavor the program. So, I was rooting for it to tank. That is not a legal argument. As I said: I haven’t read the whole thing and so on. My feelings on the ACA are well.. not that strong.

324. I just listened on CSPAN to the entire oral argument on this before the SC. The primary legal issue involved whether states had the right to not recognize other state’s marriages. Scalia pointed out Constitutional obligation for states to recognize others’ judgments, and records. The state’s attorney argued that states have the rights to establish their own laws. Ginsberg argued that marriages like divorces must be recognized universally. Sotomayor said that marriage licenses were like birth certificates.
     .
     There was exploration of the next closest class of individuals denied marriage rights and the gay marriage advocate said under-age individuals. In some states a marriage once formed could not be destroyed by the state unless one of the individuals had not yet reached puberty.
     .
     IMO the prevailing argument was that once one state recognized marriage no other state could un-marry them.
     .
     IMO there will not be a rush to polygamy, incest or robbing the cradle but all realize now that if Utah or Nevada, for example, get lax with their marriage laws those laws are in affect for the country. I don’t know if this erodes state’s rights in other areas of law but it might.

325. Lucia,

     You are stuck on a silly mis-characterization of what I have said:

     “If you want to campaign your state to enact pural marriage, have at it. It’s a free country. You can ask your legislature to do whatever you prefer and if enough people want it, well, others would be overruled. SCOTUS hasn’t prohibitted states from creating such a state. I’ll be happy to mostly campaign against it until I hear a good argument in it’s favor.

     The issue here is you seem to be claiming the current ruling requires creating the state, but you haven’t advanced any argument for why this ruling would compel polygamy.”

     “I read Volokh. Have for years. You go ask Orin or Dale or Bernsteind or Eugnene or whoever whether they think the ruling mandates plural marriage.”

     You are arguing about what I have not said. I am not advocating for legalizing polygamy and I have not said or implied that the court ruling mandates plural marriage. That is ridiculous. And I have told you so, yet you persist.

     I am expressing my opinion that is shared in some form by the various dissenting justices and several legal scholars that have commented that the court majority has created a fundamental right to marriage in the freaking ruling and they have no logical basis to now deny that fundamental right to polygamists, brothers and sisters, etc. Not that they won’t find reason to do so, if that’s the way the political winds blow. It’s messed up. That’s it. You don’t have to agree.

     It seems you don’t want polygamists to have the right to marry. Maybe that is why you are so agitated. Me, I don’t care. I am not going to march in the streets for them. Now you carry on with attacking what I have not said, if you want to waste more of your time.

326. lucia:

     hunter,
     I was hoping for the opposite ruling to what SCOTUS ruled. But honestly, I don’t have and never have had much of an opinion on which interpretation was actually “right”. Yeah… I found some arguments more persuasive than others. Yeah, I found historic claims some supporters of the ACA made ridiculous (and, fwiw, irrelevant).

     But I knew dang well I did not read the bill myself. I did not familiarize myself with all the precedents nor now the courts really rule all the time and so on. So, though disappointed, I have to admit to having absolutely no good arguments for or against the proposition that the ruling was “right” rather than “wrong”.

     I gotta say…. I tend to believe very, very few people arguing about whether this ruling is right or wrong really know. Like me, they just know which arguments they found most compelling– and most of that was based on reading opinion columns in news papers or legal blogs.

     For what it’s worth, I did familiarize myself with the bill and the arguments offered by both sides regarding it. In my opinion, the majority’s ruling is wrong to the point of being disingenuous. I think 50 years from now people will discuss this as an example of the Supreme Court intentionally overstepping its bounds.

     There are plenty of other examples of that though, and they’re often considered to be “okay” because people agree with the outcome. I find that troubling, but there’s plenty of precedent.

     Interestingly I’m likely to benefit on a financial level due to the ruling even though I think it was a bad one.

     Now… just waiting for the gay marriage ruling. (I’m hoping gay marriage wins btw. I have stronger feelings on that than ACA.)

     That ruling has obviously already come out. For what it’s worth, I’m happy with it. The idea marriages could exist in one state yet not be recognized by another always seemed absurd to me. I get there’s conflict between states and the federal government about how much power each should have, but basic things like marriages and birth certificates need to be universal.

     States being able to selectively choose which marriages to recognize wasn’t just a gay rights thing. It was a basic coherency thing. If states could choose to not recognize marriages, you could wind up having to re-marry a person every time you moved to a new one. Gay, straight or whatever, that’s silly.

     Even worse, there’s nothing to say you’d have to marry the same person. If you marry in Texas but Oklahoma doesn’t recognize it, you could marry someone else in Oklahoma. And Ohio. And Arkansas. If states could choose which marriages to recognize, you could, in theory, marry a different person for each state.

     It gets particularly weird because one state might recognize another state’s marriages even though the opposite isn’t true. That means New York could convict a person of polygamy for having multiple marriages while New Mexico might not be able to just because New Mexico wouldn’t recognize the extra marriage.

     It’s an interesting issue I wish we would have had a chance to explore. Imagine if a man married to another man in New York had gone to a state which was trying not to recognize his marriage and said he wanted to marry a woman there. What would they have done? If they didn’t recognize his homosexual marriage, they would be forced to allow him to have a heterosexual marriage. But if went back to New York, New York could arrest him for polygamy. I would have loved to see courts try to sort that mess out.

327. lucia:

     How is that ‘the’ or even ‘a’ logical extension? Real question. Please stick to polygamy for now. We don’t need to discuss the entire question of whether people can marry box turtles until we hear your explanation of how the argument for same sex marriage is somehow logically leaps to polygamy. Because, frankly, I don’t see how anything about permitting marriage between two individually “logically” leaps to any right involving more than two individuals.

     As much as I agree with you on this point, I can’t say I agree with you when you say:

     Same with incest.

     Eye. Roll.

     The distinction between gay marriages and polygamous marriages is an obvious one – the number of people involved. It’s perfectly reasonable for a government to say it will grant benefits to people who decide to pair up as governments have an interest in such as it furthers certain societal goals. At the same time, a contract between two parties is quite different than a contract involving more than two parties. Granting benefits to those engaging in one type of contract does not require granting the same benefits to people engaged in a different type of contract. (Of course, one might argue the government should accept polygamy on its own merits, separate from the issue of gay marriages).

     With incest, there’s no clear distinction. Health concerns due to genetic defects doesn’t work. Leaving aside the basic impracticality of the argument (how does one use it as an argument while ignoring other things which increase the rise of genetic defects), it’s clearly inapplicable to a number of cases. For instance, there’s no risk of genetic defect in offspring for a homosexual couple or a couple with at least one infertile member.

     There’s a valid case regarding parental incest due to guardianship issues. A parent shouldn’t be allowed to force a child to marry him or her, something which might happen if all incestual marriages were allowed (especially since minors can marry at least as early as 12 with *parental* consent). That doesn’t deal with incestual marriages as a whole though. It doedsn’t even deal with parent-child relationships as a whole, as some parents and children might not meet prior to the child becoming an adult. Even worse, the reasoning would be the same for forbidding a non-biological guardian from marrying someone they were once responsible for – something not currently forbidden.

     From a legal standpoint, I can’t see any clear argument for forbidding incestual marriages. What clear line can we draw when examining second-cousins (generally legal), first-cousins (sometimes legal) and siblings (almost never legal)? How does it apply to family members who didn’t know each other growing up? How does it apply to family members not biologically related? Do adopted siblings have different rights than biological siblings? What about step-siblings?

     I’m not trying to argue in favor for incestual relationships. I just don’t see any clear legal argument for banning them. Even the moral argument is unclear, something well-demonstrated by the different moral standards which have been applied to the issue in various times and locations.

     Now that I think about it, I’m not sure just what the legal status is on incestual marriages. If one state recognizes marriages between first-cousins while another state only recognizes marriages between second-cousins (or less related individuals, of course), what would happen? I think the latest ruling would mean if any state recognizes a marriage, all states must recognize it. That means some laws against incestual marriages might be unconstitutional now. So when you say:

     I’m dismissing the notion that this ruling affects any potential legal argument for or against incestuous marriage. The legal arguments for requiring states to grant access to incestuous marriage are either just as strong or just as weak as before.

     I can’t agree. One issue this ruling settled is states do not have the right to not recognize marriages from other states. That means if states have different standards on who is and is not allowed to marry, the states with the more-restrictive laws are out of luck. If one state decides to recognize parent-child relationships, this ruling would seem to imply all 49 other states would have to then recognize such marriages. That’s a significant change. It basically means individual states can no longer place restrictions on marriages.

328. Don Monfort,
     “Could be worse. No reason to believe the quality of the politicians or the judgement of the electorate would improve.”
     .
     I think a reasonable argument can be made that the politicians would be much more responsive, and much more willing to strike reasonable compromises, than they are with the current system. A prime minister must be able to survive a no-confidence vote, and so must compromise if he/she wants to remain in power. Imperial Presidents like we have seen of late? Not so much compromise there. The current system keeps an administration in power long after its sell-by date, and ensures that the administration can do deeply unpopular things that the legislature is essentially powerless to stop. As I see it, the Constitution was designed to structure a government with very limited administrative power; the ‘evolution’ of SC interpretations of the constitution has consistently increased administrative power, and consistently reduced the power of both Congress and the States.
     .
     One bad result is the kind of “f**k-you” attitude toward both Congress and the States so clearly evident in the behavior of recent presidents. Mr Obama may be (and IMO clearly is) the worst example of this, but he is by no means the only example; lots of recent presidents have done very stupid (and arguably illegal) things which would immediately bring down the government if that president were a prime minister.
     .
     A second result is that we end up having the SC effectively legislate contentious social and legal issues which ought to be handled through compromise in the legislature. If you look at the past 60 years of SC actions, it becomes pretty clear that contentious political issues (eg abortion and many others) are not being politically resolved via law, because Congress and (especially) the President refuse to strike reasonable compromises. The SC steps in with a lawless decision, and short circuits the law-making process. Gay marriage is just the most recent example.
     .
     IMO, the system is badly broken.

329. Brandon,
     “I’m not trying to argue in favor for incestual relationships. I just don’t see any clear legal argument for banning them. ”
     .
     Despite all their pretenses to the contrary, the Supreme Court does not base its ‘social’ decisions on legal arguments, nor on the Constitution. It is all about politics. They will never agree to hear a case requesting a “Constitutional right” for incestuous marriage, so they will never have to address the legal arguments, because there is no broad popular support for incest. There is a lot of popular support for gay marriage. They are little more than a group of unelected politicians (see Bush V Gore); we should not expect any more ‘legally reasoned’ political decisions from the SC than we do from the Mayors of Chicago, New York, or Los Angeles.

330. Brandon,
     You misinterpreted what “eye roll” meant to convey. Most of what you say is true about incest and marriage and was before this ruling. In fact, I said very similar things to what you wrote when I responded to Jonathan Jones. The legal issues against incest have to do with whether there is a compelling government interest in prohibiting that. The eye roll is at the claim any debate or discussion about that has anything to do with the gay marriage ruling. It doesn’t. Never did. The current ruling doesn’t change anything with respect to the potential for incestuous marriages to be legal.

     One issue this ruling settled is states do not have the right to not recognize marriages from other states. That means if states have different standards on who is and is not allowed to marry, the states with the more-restrictive laws are out of luck. If one state decides to recognize parent-child relationships, this ruling would seem to imply all 49 other states would have to then recognize such marriages. That’s a significant change.

     This isn’t a ‘change’. The full faith and credit clause required states to recognize contracts and laws from other states since 1989. The only difference is that some states wanted to pretend they didn’t have to– and now this case reminds them they do.

     Other than for ssm, states already recognized all other marriages anyway. In truth, the knew they had to do so. Texas permits 14 year olds to marry. If a fourteen year old is married in Texas and moves, other states recognize the marriage. If she grows older moves later, and wants a divorce in Connecticut, Conn recognizes she is divorced and she has access to divorce.

     Now that I think about it, I’m not sure just what the legal status is on incestual marriages. If one state recognizes marriages between first-cousins while another state only recognizes marriages between second-cousins (or less related individuals, of course), what would happen? I think the latest ruling would mean if any state recognizes a marriage, all states must recognize it

     The answer to what happens and did before the ruling is this: Some states permit first cousin marriage; some don’t. States that don’t permit first cousin marriage do recognize married cousins who move to the new state. They recognize the marriages because they know dang well “full faith and credit” applies.

     With respect to those other cases, the states were obeying “full faith and credit”. That some temporarily wanted to pretend it didn’t apply…well… sure. But the ruling doesn’t represent a change in any law. It is simply enforcing what has existed since 1789.

331. Don,

     You are arguing about what I have not said. I am not advocating for legalizing polygamy and I have not said or implied that the court ruling mandates plural marriage. That is ridiculous.

     I didn’t think you were advocating it. I think you are dangling it out in a “parade of horribles” argument.

     But you did say it was a “logical consequence” of the ruling which — to me– sounds nearly indistinguishable from saying it will force plural marriage in the future. And in Don Monfort (Comment #137189) , you pose a number or rhetorical questions whose goal seems to suggest that somehow, the answer to those questions are that the result of this ruling is courts will have no counter argument to people arguing for the rights of plural marriage.

     If you don’t like people thinking your rhetorical questions are intended to make the point they seem to make, then don’t try to make a point by using a series of rhetorical questions.

     In reality, there is nothing about this ruling that increases the likelihood that future courts would require plural marriage. It’s not a logical consequence of the ruling– or it if is one, you haven’t provided any set of logical points connecting this ruling to that.

     Yes the ruling is based on due process and equal protection. But no, that fact isn’t making plural marriage or incest logical consequences.

332. Mark Bofill–Gruber’s opinion on the meaning of those four words isn’t actually relevant, because he’s not a legislator and its not his bill. In other words, Gruber’s original intent, let alone his interpretation, should not play into how that document is legally interpreted.

     I’m not even sure there’s a mechanism that the SCOTUS can use to decide the exact frame of mind that the legislators had at the point they wrote and confirmed the original bill. I’m not sure it’s even a relevant question, since we lack a mechanism for taking a snapshot of what each legislator was thinking when they wrote and voted for that bill.

     I think we have to interpret the bill as it was actually written, rather than frame it according to what random people say in interviews or in front of congressional panels. Otherwise, what random people say in interviews or in front of panels, suddenly de facto becomes part of that legislation.

     And that’s not a very legal theory to use for operationally interpreting legislation, if what you meant to do was implement a representative democracy.

333. SteveF,

     They will never agree to hear a case requesting a “Constitutional right” for incestuous marriage, so they will never have to address the legal arguments, because there is no broad popular support for incest.

     Honestly, I doubt one will ever be presented to them. The current situation is that if two first cousins wish to marry, they can travel to a state that permits it, marry and all other states will accept their marriage. Given the simple alternative open to them, it is highly unlikely that any two first cousins will mount any sort of legal argument to force a state that doesn’t let them marry to do so.

     So that leaves the candidates who might want to marry to being siblings and parents/child pairs. Like Brandon, I think that if any of those made it to the Supreme Court, the legal arguments outright prohibiting their marriage would be weak. At most, the court might say the rule is ok, provided there were some protections against reproduction and possibly a higher age of consent (to protect against undue pressure of the young particularly by parents.)

     But that was the situation before the new ruling. It’s not a ‘change’.

334. RB, I think there is a problem with pricing health insurance and changes as noted in this link.

     http://www.bls.gov/cpi/cpifact4.htm

     “Challenges to pricing health insurance
     The current indirect method for measuring health insurance premium changes does not mimic the way consumers pay for health care and it forces the medical care indexes to measure changes in what medical care providers receive from insurance companies rather than what consumers pay for the medical items out of pocket. A direct measure that would have an index for health insurance premiums along with out-of-pocket indexes for the various medical items would be an ideal way to measure medical care price change—provided that BLS could produce an accurate constant-quality index for health premiums. The CPI has tested the feasibility of directly pricing health insurance policies several times and each time showed that there were major barriers to obtaining data on changes in quality variables such policy benefits and utilization (the number of claims per insured). Consequently, BLS was unable to produce consistent constant-quality premiums for health insurance policies for use as CPI prices. BLS plans further research to find alternative methods for measuring health insurance premium inflation:

335. Lucia,
     ” They recognize the marriages because they know dang well “full faith and credit” applies.”
     .
     Sure, but I am not confident a marriage between parent and child would stand in other states based on “full faith and credit”. I suspect some heretofore unrecognized constitutional explanation would be found by the SC. They are sheep, not shepherds.

336. For Mark, Howard and others:

     Anytime I have discussed the interpretation of technical documents that had controversial interpretations, I have always advocated against letting phrases or even a few sentences buried within a larger paragraph or document control the meaning got that document. Regardless of author’s original intent, since we lack crystal balls to verify original intent, I think this is how the meaning needs to be assigned.

     If the authors meant something different, they should have written it more carefully. Allowing a few words to control the meaning of the entire document, especially when those words change in a profound way the interpretation (or implementation in this case) of the rest of the document is another version of what I call “letting the tail wag the dog”.

     As I pointed out, there is legal precedence for this same interpretive framework within judicial practice. In fact, this thesis of not letting a few words that are buried within a much larger document govern the overall meaning of the document is the cornerstone of Judge Robert’s opinion, and it’s the only result I thought was sensible for this particular case.

     If Congress meant to prevent people who engage in federal exchanges from receiving subsidies, then I suggest they need to amend the bill to prevent this from happening. Whether they intended to prevent these subsidies or not, in fact, I think it is a mandate on the administration to interpret a bill in a manner favorable to allowing that legislation to be workable.

     As Roberts said in his statement:

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

     I also don’t think the opinion of the members of the SCOTUS about the bill should govern whether they think the interpretation and implementation of the bill by the administration is constitutional. And I think Scalia is in fact guilty of allowing his personal animus towards the ACA govern his legal opinions here.

337. Carrick,

     Thanks for your response.

     I will review what I’ve gathered about this, maybe I’ve misunderstood something along the way. My impression was that Scalia’s argument agrees with yours, and that Roberts and majority did exactly what you suggest here should not be done:

     I think we have to interpret the bill as it was actually written, rather than frame it according to what random people say in interviews or in front of congressional panels. Otherwise, what random people say in interviews or in front of panels, suddenly de facto becomes part of that legislation.

     As a footnote, however, I question whether or not we invite error by dismissing Gruber as ‘a random person’. From that most dreaded source of all wisdom and disinformation:

     Jonathan Holmes Gruber (born September 30, 1965) is an American professor of economics at the Massachusetts Institute of Technology, where he has taught since 1992.[1] He is also the director of the Health Care Program at the National Bureau of Economic Research, where he is a research associate. An associate editor of both the Journal of Public Economics and the Journal of Health Economics, Gruber has been heavily involved in crafting public health policy.

     He has been described as a key architect[2] of both the 2006 Massachusetts health care reform, sometimes referred to as “Romneycare”, and the 2010 Patient Protection and Affordable Care Act, sometimes referred to as the “ACA” and “Obamacare”. He became the focus of a media and political firestorm in late 2014 when videos surfaced in which he made controversial statements about the legislative process, marketing strategies, and public perception surrounding the passage of the ACA.

     It doesn’t seem crazy to me to think that examining Gruber’s statements at the time might give us insight on what was intended. Not a certainty that it would do so, but not something I’d rule out of hand immediately either. But I agree with the larger point that once we begin trying to figure out what Congress ‘really meant’ instead of what they actually wrote, we’re on a road that goes nowhere good in a hurry.

338. Cross post, your subsequent comment appears to clarify.

     Thanks Carrick.

339. Brandon,
     I know you’ve seen it but

     Article IV, Section 1:

     Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.[5]

     The Obergefell doesn’t spend many words discussing this.

     What they write is this

     As counsel for the respondents acknowledged at argu
     -ment, if States are required by the Constitution to issue
     marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed else
     -where are undermined.

     Near that portion, they quote material from “https://supreme.justia.com/cases/federal/us/317/287/case.html” Williams and NC, which uses the full faith and credit clause to rule that states must recognize divorce granted elsewhere. So full faith and credit certainly applied to divorces. (And states certainly acted as if it applied to marriages– except for SSM.)

     6. Under the Full Faith and Credit Clause and the Act of May 26, 1790, where a decree of divorce, granted by a State to one who is at the time bona fide domiciled therein is rendered in a proceeding complying with due process, such decree, if valid under the laws of that State, is binding upon the courts of other States, including the State in which the marriage was performed and where the other party to the marriage was still domiciled when the divorce was decreed. Haddock v. Haddock, 201 U. S. 562, overruled. P. 317 U. S. 299.

340. Carrick,
     “If Congress meant to prevent people who engage in federal exchanges receive subsidies, then I suggest they need to amend the bill to prevent this from happening. ”
     .
     Seems to me the bill probably was written to apply pressure on States to set up exchanges; it is the sort of thing Congress has done for decades (eg. 55 MPH speed limit, or suffer loss of highway trust funds). But even if you assume that the legislation was just poorly crafted, it is clear that Congress would long ago have amended or (even rescinded!) the law, save for Mr. Obama’s certain veto of any changes. The ObamaCare law is the result of some extreme legislative maneuvering; neither legislators nor the public had any time to evaluate and understand the legislation before it was passed. Once passed, the previously unknown consequences of the law made it quickly unpopular. But unless a Republican is in the White House, significant changes in the law are unlikely.

341. Don,

     I am expressing my opinion that is shared in some form by the various dissenting justices and several legal scholars that have commented that the court majority has created a fundamental right to marriage in the freaking ruling and they have no logical basis to now deny that fundamental right to polygamists, brothers and sisters, etc.

     Do you mean Roberts? Whose argument about polymory is limited to a rhetorical question?
     If that’s what you mean, you might do better to quote is ‘argument’ and admit that’s all there is to yours. A rhetorical question by a judge inside a dissent is no more an “argument” for something than is the same rhetorical question in a blog comment. It’s a verbal flourish substituting for an argument.

     If Roberts had had a good argument, he would have given it instead of just putting in a rhetorical decoration that that some will mistake for an argument.

     created a fundamental right to marriage

     This ruling didn’t “create” a fundamental right of marriage.” Loving already recognized that fundamental. So did rulings decreeing men who were behind in child care payments couldn’t be blocked and so on. So did other rulings. This is not new. The ruling contains copious reference to precedents recognizing two person marriage as a fundamental right.

342. Carrick –
     Well, you seem to be dropping the claim of ambiguity for that section, and instead arguing that the phrasing makes the legislation unworkable. If that section is to be taken literally, then Federal Exchanges are not subsidized, and hence inferior (for those signing up) to State-established Exchanges. Not optimal for citizens in those states, but hardly unworkable. Nor does it “destroy” health insurance markets, as Roberts implies. Are citizens in those states denied access to health insurance? [No.] Are they worse off than pre-ACA? [Maybe. Perhaps some employers dropped plans, expecting employees to go to an Exchange, and now those employees’ premiums might be higher. I don’t know particulars. But certainly not “destroyed”.]

     So, please explain why you think that interpreting the plain meaning makes the legislation not workable.

     As Lucia wrote above (#137215), “My impression was that “The state” terminology really was put in by people who wanted to strongly encourage the states to set up exchanges — and that the feds often do this.” As it turned out, the encouragement was not sufficient.

343. Carrick,

     I think I understand your position better now. Correct me if I’ve got this wrong please. 🙂 I think you’re saying one of these two things:

     1) that the interpretation where only exchanges established by the Feds get subsidies is obviously unworkable and couldn’t possibly be what Congress meant.

     2)Or, alternately, that by examining the rest of the PPACA it’s clear that this could not possibly be what is meant.

     If your argument is #2, then I can’t answer you. As Lucia correctly points out, I have certainly not studied the PPACA; I haven’t read anything except sections, and those not recently.

     If your argument is #1: Even were we [to] decide Gruber is not a valid source to determine the intent of Congress in this matter, he remains an authority on heath care policy. He does not appear to have believed in 2012 that this would be obviously unworkable. Argument from authority is a logical fallacy. Still, to dismiss out of hand what Gruber appeared to advocate seems careless, in my view.

344. Good lord. Sorry:

     that the interpretation where only exchanges established by the Feds State get subsidies is obviously unworkable and couldn’t possibly be what Congress meant.

     There.

345. Okay, one last thing and I’ll hush.

     My problem with this interpretation is that I’m asked to accept two irregular points, either of which I might accept alone, but taken together are hard to swallow.

     Point 1 is, the text says ‘Exchanges established by the State’, and I am asked to believe that this means ‘Exchanges’ or ‘Exchanges established by the Secretary of H.H.S. or the State’. I’m told that Exchanges established by the State couldn’t possibly be what’s meant.

     Point 2 is, when I go the statements of one of the key policy experts involved to try to understand whether or not this is what was really meant, I’m essentially told that he’s a ‘random guy’ and that I shouldn’t accept that this is what was meant.

     So ultimately, we are going to adhere neither to what was actually written nor accept reasonable evidence about what was intended. Fine. We should openly say so, be this the case.

     In case anyone is curious, my beef is simply this. I resent the way PPACA was passed. I resent that it was passed and stands despite the fact that it has never enjoyed majority support with the public. I resent the fact that it seems that at every opportunity, our leaders appear to bend the corners of the rules to allow this to slide in defiance of the will of the majority. PPACA might be the greatest thing to ever happen to the U.S. I would still resent the way it came to pass, and I harbor a certain hostility towards it as a result.

     Ok, I’m done now. 🙂

346. RB, the link below gives more details on the linkage of health care costs (insurance mainly) and effects on medical CPI and related problems.
     The overall inflation rate and that for medical has been on a long term trend downward since 1981, while the effects from ACA are most probably not realized in the CPI at this point in time.

     https://mikeashton.wordpress.com/?s=The+Effect+of+the+Affordable+Care+Act+on+Medical+Care+Inflation

347. As most opinion columns fail to provide a link, and others embedded in a way that makes reading more difficult than necessary, the link to the Oberfgefell ruling is
     http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

     Those who want to see Robert’s “argument” about polymory will find it on page 60.
     1) asking a rhetorical question which happens to not number among those presented to the court.
     2) complaining that the petitionners did not address this rhetorical question.
     3) complaining that the ruling doesn’t engage this rhetorical question.
     4) Advancing absolutely no positive arguments of his own for how or why any future court would uphold some hypothetical and undescribed argument against polymory that someone might sometime advance in the future.

     This is so obviosly not an argument.

     First: asking a rhetorical question is never an argument in and of itself.

     Second: No petitioner is required to give a good answer a rhetorical question particularly if it is tangential to the legal claim made. In this case: The claim petitioners made stands on it’s own. Either they should prevail or not. The question of what might happen in some unknown, hypothetical future when someone advances some unknown, hypothetical other claim using an argument that even Roberts can’t dream up in his criticism is rather odd. It’s not too surprising this “rhetorical question ploy” did not convince the majority of the justices. It’s dumb.

     Third: It is standard practice for courts to not engage questions outside the scope of the petitioners claim. The failure of the opinion to engage this is not a deficiency in that opinions. Beyond that: Even Roberts gives the majority nothing to address since Roberts doesn’t advance any positive argument for how the majorities opinion would create the right of plural marriage. (N.B. Saying “how would we do X?” is not a positive argument to suggest that we would be unable to do X”.

     Fourth: Look. That just stands on it’s own. That even Roberts doesn’t bring forward any argument for how Kennedy’s opinion would help any polymorist win a case that would create polymoric marriage on high suggests he can’t think of any plausible argument.

     Anyone who claims they are just agreeing with his argument about the effect of this ruling on polymory: Well, his dissent contains nothing that could be called an argument on this topic. He just doesn’t like it and is waving around something on a list of a “parade of horribles”. That’s not an argument.

348. HaroldW:

     Well, you seem to be dropping the claim of ambiguity for that section, and instead arguing that the phrasing makes the legislation unworkable.

     Thats not exactly what I meant. I am leaning on Justice Roberts decision when I use the word ambiguous, so perhaps this excerpt from his decision would be helpful:

     Section 36B. If the statutory language is plain, the Court must enforce it according to its terms. But oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, the Court must read the words “in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133. Pp. 7–9.
     (b) When read in context, the phrase “an Exchange established by the State under [42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it could also refer to all Exchanges—both State and Federal—for purposes of the tax credits. If a State chooses not to follow the directive in Section 18031 to establish an Exchange, the Act tells the Secretary of Health and Human Services to establish “such Exchange.” §18041. And by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same. But State and Federal Exchanges would differ in a fundamental way if tax credits were available only on State Exchanges—one type of Exchange would help make insurance more affordable by providing billions of dollars to the States’ citizens; the other type of Exchange would not. Several other provisions in the Act—e.g., Section 18031(i)(3)(B)’s requirement that all Exchanges create outreach programs to “distribute fair and impartial information concerning . . . the availability of premium tax credits under section 36B”—would make little sense if tax credits were not available on Federal Exchanges.

     In this respect you can’t write an entire legislation, and understand fully the intent, using just a phrase buried within that full document. Words may seem to be unambiguous when viewed out of context, that could be then recognized to having an alternative meaning. Or we might be left with the phrase simply being problematic (and hence open to an ambiguous interpretation) when you look at them in the context of the document in which they were excerpted from.

     So I think the operating principle is what I stated it was, which is that you apply the context of the complete body of text to understand fragments of that document, especially when that fragment is buried inside of a paragraph.

     There’s an ancillary issue I touched up on that the administration has a responsibility to apply and enforce the law as intended by Congress. Obviously Congress generally does not pass laws that are meant to be unworkable.

     But that wasn’t meant to detract from the statement that taking a few words and removing them from the context from a larger document will generally change the intended meaning of that original larger document.

349. Mark Bofill, I believe that both 1 and 2 probably apply here. Hopefully the additional context I’ve provided in my comment to HaroldW will help there.

     My point about Gruber is a simple one—if you are arguing we should use his interviews and testimony before congress to help interpret this document, you are effectively arguing that he has been somehow anointed to be a co-legislator of this document. (And one who is allowed to continue to provide “new context” as he gives more interviews, speeches and presentations to Congress.)

     I would suggest your real problem is you don’t like the ACA, so you’re willing to employ the “Gruber say XYZ” here because it fits your perceived interests. I doubt allowing extra-Constitutional specialists to help us decide legally what Congress meant to write in their legislations would in general be something you would find palatable.

     Regarding Scalia—he is the one, not Roberts,arguing to cherry pick that phrase and use it outside of the obvious context of the entire ACA.

350. “Obviously Congress generally does not pass laws that are meant to be unworkable. ”
     Agreed. But it often passes laws with unintended consequences.

     OK, we’re back to Roberts’ comments then. He starts with the fact that the Federal government will establish an Exchange in the absence of a state one. OK. They should function the same way. OK. “But State and Federal Exchanges would differ in a fundamental way if tax credits were available only on State Exchanges—one type of Exchange would help make insurance more affordable by providing billions of dollars to the States’ citizens; the other type of Exchange would not.” OK, so there’s a difference between them (besides who’s administering them). Doesn’t sound unworkable to me. The plain meaning is that there *should* be a difference, and (to me) there was the *intent* of creating such a difference, providing an incentive for states to establish an Exchange. SCOTUS had to argue that the plain meaning is somehow contradictory to the intent (and they abuse the word ambiguous) in order to justify making their interpretation. But we’re back to the fundamental question of whether SCOTUS is amending a law that wasn’t broken but which didn’t generate a result which some people wanted — namely, that not all states were coerced (my word) by this incentive to go along with the scheme.
     .
     If Congress wanted to amend the ACA to make it clear that subsidies are available to Federal Exchanges, they’ve been perfectly entitled to do so, ever since the question was raised. [If politically unable to.] SCOTUS is certainly aware of the political realities. To me, SCOTUS exceeded its authority by making a substantive change to a law. Wouldn’t be the first time, nor the last.

351. Thanks Carrick.

352. Dearest Lucia,

     This is what Roberts said in his dissent that I agree with:

     “Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society,”..”If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.”

     If you read the majority decision you can’t help but notice the shiny rhetorical gloss and the preachy feel good sanctimonious pap. So characterizing a line of Roberts dissent as “rhetorical decoration” is rather lame. His argument is clear here, with relation to the Due Clause reasoning of the majority:

     “If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? “I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any.”

     From Scalia’s dissent:

     “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so..”

     And that stood up until YESTERDAY, when the majority created a fundamental right for gays to marry that had NEVER EXISTED BEFORE. If there had been precedent for a fundamental right FOR GAYS to marry the crap would not have still been running through the courts.

     “They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”

     The people who wrote and ratified the 14th Amendment would have been horrified at the thought that it gave the fundamental right of marriage to gays, period. It is a fundamental right that was created YESTERDAY. I am guessing those people would have been more sympathetic to polygamy.

     And the point is, Roberts: “If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”

     That is an argument. Not a rhetorical question. Judges ask questions like that and they expect answers. The justification for polygamous marriages is logically the same as it is for gay marriages. That polygamous marriages are between more people means there are other considerations, but if individuals have fundamental rights to marry, then they got freaking fundamental rights to marry and something can be worked out. Three people in a marriage is only one more than two people in a marriage. I am giving you the arguments for polygamous marriage that this decision invites. It’s an opening that NEVER EXISTED before, because the fundamental right to marriage had always been understood to be man+woman=marriage. That is no more. A new definition has been invented. And that can be modified by the same court, at that court’s whim.

     I hope I didn’t commit the rhetorical question sin in there somewhere. And I hope that someone notices I never said anything about the court mandating polygamy. There is an Escalade in it for the person who can find the quote of me saying that.

353. HaroldW is right on the other BS SCOTUS decision of this week. Nice summation, counselor.

354. SteveF:

     Seems to me the bill probably was written to apply pressure on States to set up exchanges; it is the sort of thing Congress has done for decades (eg. 55 MPH speed limit, or suffer loss of highway trust funds).

     I’m sure that was the original motivation by e.g., Gruber when he drafted his portion of the original legislation. But it’s hard to know just how these things morph when they go through multiple rewritings over time.

     I could see somebody adding ambiguity to the bill because it gives the President more flexibility in implementing the law for example. I’m pretty certain that actually happens.

     The ObamaCare law is the result of some extreme legislative maneuvering; neither legislators nor the public had any time to evaluate and understand the legislation before it was passed.

     Well agreed of course. But that also leads to the language not getting the sort of vetting it needed to remove possible ambiguity.

     Once passed, the previously unknown consequences of the law made it quickly unpopular.

     Yes. In particular, where people were promised things that they weren’t then given. (“If you like your insurance…”)

     But unless a Republican is in the White House, significant changes in the law are unlikely.

     Poll results seem to indicate that the ACA is less unpopular than it was at its lowest ebb. But even at it’s worst (55% disapprove), there wasn’t enough dissatisfaction to make it politically possible to repeal. I think you’d need numbers closer to 75% disapprove before you really got the momentum you’d need to repeal it.

     I think the Republicans would be better off to “living with the law” and working to fix broken parts of the legislation.

355. PS: Gays have had the same fundamental right to marry as everyone else has, until yesterday. Before yesterday, they could marry someone of the opposite sex. They got a new fundamental right created for them yesterday.

356. Correction, before Lucia jumps on it:

     “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so..”

     And that stood up until YESTERDAY,

     Correction: Many states had changed laws to allow same sex marriage.

357. HaroldW: I can see we’re not going to agree on this one (which is okay), but I think you are still resorting on interpreting the document based on how you read that clause (the tail wagging the dog).

     Based on the fact that how people read that clause seems to depend on whether they’d like the ACA overthrown, made truly unworkable or actually would like it to stay, I’d say there’s more ambiguity here than you’re admitting to, but anyway…

     You say:

     If Congress wanted to amend the ACA to make it clear that subsidies are available to Federal Exchanges, they’ve been perfectly entitled to do so, ever since the question was raised. [If politically unable to.] SCOTUS is certainly aware of the political realities. To me, SCOTUS exceeded its authority by making a substantive change to a law. Wouldn’t be the first time, nor the last.

     I’d say it’s technically the administration that is developed this interpretation, and the SCOTUS has simply decided that the administration’s interpretation is consistent with the broad context of the legal document plus constitutional precedent (which in this case is that we don’t throw out, or cause to be unworkable, legislation based on narrow interpretations of phrases contained within the larger document, without considering the context given by the larger document).

     Nobody’s technically written any new law here, it was determined that the administration’s pre-existing interpretations and behavior in this regard was both legal and constitutional. The SCOTUS decision is very narrow in this sense.

     IMO, throwing out or making the legislation unworkable would have been a much more novel result, and would have broken new constitutional ground in a dangerous manner: Saying the Supreme Court judges can start collecting phrases from a document and interpreting those phases outside the context of the original document, and in ways that would inevitably destroy or make ineffective the original legislation, would have IMO provided the SCOTUS with a tool they could use to remove nearly any legislation that the judges personally thought were poor legislation or at odds with their political philosophy.

358. Carrick,

     Thanks for sharing your perspective with me.

359. SteveF:

     The ObamaCare law is the result of some extreme legislative maneuvering; neither legislators nor the public had any time to evaluate and understand the legislation before it was passed. Once passed, the previously unknown consequences of the law made it quickly unpopular. But unless a Republican is in the White House, significant changes in the law are unlikely.

     Carrick, Did the “Cornhusker Kickback” or “Louisiana Purchase” bother you?
     .
     Did MA elect a Republican Senator to fill Ted Kennedy’s seat with the mandate to block the senate vote for ACA? Yes.
     .
     Was it ethical to evade MA’s senator and the senate at large by changing the rules and passing the rough senate bill through the house on a “deemed” house vote? Was this allowed because the President and congress assured all that it was not a tax? Yes.
     .
     Was this otherwise unconstitutional law saved by declaring it a tax? Yes.
     .
     Was the unconstitutional, improperly passed tax, drafted to force it down state’s throats? Did they do this by offering incentives for expanding medicaid and having subsidies available only if states did not defy the legislation? Yes.
     .
     Was the difficulty for a governmental entity to set up a web site underestimated? Yes.
     .
     Was the President ever showing the slightest hesitancy to re-write his law without congress, even when they wanted to help, on over forty occasions? No.
     .
     Is the longtime progressive goal to scrap (destroy) the private insurance system in favor of a single-payer system? Yes. (See Hillarycare.)
     .
     Were the main selling points of leaving those with coverage unmolested and reducing costs $2500 per family realized? No.
     .
     Were these known misrepresentations at the time they were made but given with inner rationalizations of ends justifying means? Yes.
     .
     Was the amount of harm to the integrity of our government, the cohesion and trust of the people within it, all worth it? Not to any of us if we are able to understand the larger loss.
     .
     Can the system be fixed? Yes, but not for at least two more years.
     .
     Can the harm to our government be fixed. Maybe in fifty years.

360. Carrick –
     Agree that we’re not likely to convert each other. [Because arguments are merely being reiterated.] I still don’t find the alternative interpretation “unworkable” — it just implies some non-uniformity from state to state, which is a feature of many bills. [In fact, section 2006 within the same Act is an example.] Nor do I see any ambiguity. Ambiguity: “uncertainty or inexactness of meaning in language”. One can certainly argue, as you and Roberts do, that the straightforward interpretation [viz., that the qualifier “established by the State” means established by the State and excludes those established by HHS] is inconsistent with the overall purpose of the act, but that doesn’t constitute *ambiguity* in my book. Now if a sentence contained “an Exchange” without any restrictive clauses, that would be ambiguous, but one would expect it to be interpreted as applying to both state and Federal Exchanges.

     “Nobody’s technically written any new law here, it was decided that administration’s pre-existing behavior has simply been determined to be legal and constitutional. The SCOTUS decision is very narrow in this sense.” I didn’t say that SCOTUS wrote a new law, I wrote that they effectively amended it (by adding “or under [42 U. S. C. §18041]”, or by removing “established by
     the State under [42 U. S. C. §18031]”). You may call it a narrow decision — and it is, in the sense that there are no other laws liable to be directly affected by the decision — but at the same time you claim it makes the difference between a workable law an unworkable one.

     I don’t disguise the fact that I believe the ACA to be poor policy. I had hoped that it would be overturned on more fundamental grounds last year. I was under no illusions that a reversal for the Administration in this case would cause the demise of the concept. I wasn’t “rooting for” either side here. I am, however, intrigued from time to time about legal reasoning, ever since I watched bits of the Bork confirmation hearings years ago. It strikes me that the Court decided this case (and likely many others) based more on what the majority wanted to see implemented, rather than on strict reasoning.

361. All the justices on the SCOTUS know that “State exchanges” does not mean “State and Federal exchanges”.

     All the justices know that the law was written that way to put pressure on the “States”, particularly the recalcitrant Republican controlled “States”, to set up “State exchanges”.

     If those obstructionist Repubs didn’t fall in line and set up their “State exchanges”, their citizens wouldn’t get subsidies. And their citizens would get mad at the Repubs, which is good for the Dems, who were ramming this thing down the throats of the populace, who by a majority did not want it.

     Well, many “States” didn’t fall into line, and some that did fell out, because their “State exchanges” flopped.

     So the decision is, does the SCOTUS bail out the Dems screwed up law? Remember it’s the Dem’s law.

     All the SCOTUS justices know that they are not authorized by the Constitution to make law, or to repair laws, or to rewrite laws. Some of them shined it on and ignored the rules, simply because they are Dems and they like the law. One guy likely went with them, because he wanted to prevent the mess that would be caused if he didn’t shine it on and the law had to go back where it belonged, to Congress for repair or replacement. In other words, it was a political decision that ignored the Constitution and stepped on the powers of the Congress. Remember, the Congress is not the group of people who barely passed this obviously flawed law using every trick in the book. The Congress is an institution. A majority of today’s Congress would love to get this law back to repair or replace it. The partisan pols on the SCOTUS have shined it on and prevented that.

     To summarize: The Congress passed a law with the intent of having subsidies go to people availing of the “State exchanges”, period. The Court majority ignored the original intent of Congress, which turned out not to have served it’s purpose, and they effectively changed the law. I can’t imagine why anyone who thinks the Constitution is meaningful and necessary for our democracy would be OK with that.

     This is my ever so humble opinion.

362. Carrick,

     Appreciate your sharing your perspective on this with me. Thank you.

     Apologies if this becomes triplicate, I tried posting twice from my cell.

     Mark

363. HaroldW, I appreciate you taking the time to expand on your thoughts. It might help to point out that legal ambiguity is a term of art. I’ve been looking for a legal scholar to expand upon Justice Robert’s position, so I could get a bit more insight into this (but so far haven’t found it).

     It was only on the taxation issue that I personally thought there was a real chance of getting the ACA overturned by the SCOTUS. I think the people on the Right who oppose the ACA are largely deluding themselves that the ACA has anymore a chance of being legally gutted/overturned by the Supreme Court or repealed by an act of Congress.

     Mark Bofill—I appreciate your comments too.

364. I noticed this article on ambiguity as it applies to law.

365. Don,

     “Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society,”..

     But that wasn’t their argument. He might have just written, I’ve decided to ignore what they said and claim they argued something entirely different. Then I’ll criticize that.

     If you read the majority decision you can’t help but notice the shiny rhetorical gloss and the preachy feel good sanctimonious pap.

     I’ve read all the decisions. What you are claiming “[one] can’t help but notice” isn’t even there. So it’s easy not to notice it.

     I might as well just tell youy that ”If you read Robert’s argument, you can’t help but notice it’s an intellectual void hiding behind smoke and mirrors”

     So characterizing a line of Roberts dissent as “rhetorical decoration” is rather lame.

     So, if you think my characterization of that line is lame, perhaps you can highlight any substance in the line. It contains none: it is a rhetorical decoration.

     His argument is clear here, with relation to the Due Clause reasoning of the majority:

     “If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? “I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any.”

     I have not said it’s unclear. I’ve pointed out it is nothing more than a rhetorical flourish— which is what it is.

     It is entirely clear that “why wouldn’t the same ‘imposition of this disability,’ serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?” is not a substantive argument. It is a rhetorical question: that is a flourish.

     “I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any.”

     Another rhetorical flourish. It is not the job of the petitioners to provide arguments against plural marriage. They petitioned the government on a particular case and they naturally, presented arguments for their case. They aren’t required to do anything else, and failing to address issues not before the court is not an argument against their case nor against the ruling in their favor. So this is yet another big nothing. Their not providing irrelevant arguments about side issues doesn’t mean that someone couldn’t easily provide them if a case about polymory was argued before the court. It doesn’t mean that those arguments don’t exist. It doesn’t mean arguments about polymory become weaker under the ruling.

     “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so..”

     We agree the right to marriage was not recognized to apply to gays before the ruling. But you previously made the sweeping claim they invented a right to marriage. (And you repeat that claim later in your current comment.)

     So, I’ll repeat what I said: That fundamental right to marriage has always long been recognized. If you want to limit your claims to what did change yesterday, that might be useful. But no one denied the right has been recognized to extend to gays now and wasn’t before.

     Scalia is grumpy about this. His grumpification is not an argument for what is wrong with the majority ruling.

     That a recognize right is extended is pretty common— that’s what happened in Loving. It was extended to mixed-race couples. “We’ve always deprived class X of a right available to others” has never been a good legal position, and it doesn’t become one in Scalia’s mouth.

     And the point is, Roberts: “If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”

     Quoting the same thing twice doesn’t make it any ore persuasive. As I notided after your first quoting of this: it’s nothing but a rhetorical question. If Robert’s thinks it does serve to disrespect than and does not serve to disrespect gays, he should say so and explain why. But… bubkiss.

     That is an argument. Not a rhetorical question.

     It is a rhetorical question. Quoting over and over and it remains one.

     Judges ask questions like that and they expect answers.

     In court judges can ask what they want during hearings. They can try to learn the range of legal arguments and consequences of arguments.

     But in a ruling, a question like that, left unanswered, remains a question. Moreover, it is a rhetorical one because the stream of the ruling does not permit answer. The rhetorical question does not magically become an argument, explanation, or anything other than a rhetorical question.

     The justification for polygamous marriages is logically the same as it is for gay marriages.

     Oh? I’ve read some people justifying polygamous marriages and the logic is not the same as for gay marriages. I’ve read arguments against polygamous marriages and they are not logically the same as for gay marriages.

     And given that neither you nor Roberts advance the claimed justification, no one can even see how the justification you have dreamed up in your head logically connects to anything. For anyone else to see this connection you claim you would need to tell us what justification you think others advance. And if you revealed that, you’d be in danger of people explaining what that justification doesn’t apply to polygamous marriage or what features of polygamous marriage make the justification in appropriate for extending polygamous marriage.

     But neither you nor Roberts have revealed this justification that you insist is someone “the same” as the one for gay marriage. That is: you advance no real argument, nor any evidence that what you claim is remotely true.

     That polygamous marriages are between more people means there are other considerations, but if individuals have fundamental rights to marry, then they got freaking fundamental rights to marry and something can be worked out.

     Kennedy said fundamental right to 2-person marriage. He didn’t claim any other right. Even if you think there is a danger someone will claim more, his ruling does not.

     And once again: individuals have had a fundamental right to marry for a long time. That didn’t change yesterday.

     Three people in a marriage is only one more than two people in a marriage. I am giving you the arguments for polygamous marriage that this decision invites. It’s an opening that NEVER EXISTED before,.

     It’s nonesense to say this opening never existed before. Anyone could have said that before the ruling. Loving already said people have a fundamental right to marriage. So did lots of other cases. There is nothing about this ruling that makes the argument three is only one more than two any stronger today than last week.

     A new definition has been invented. And that can be modified by the same court, at that court’s whim.

     Even if you think a ‘new’ definition has been invented, that doesn’t make plural marriage any easier under the new definition than the old because both definitions are for “two”. This is quite clear.

     Neither you nor Roberts have explained how its easier to turn 2 into 3 under one defintion of “two” but not the other definition of “two”. Both were equally restricted to 2. No more. No less. Robert’s moannings about plural marriage are nothing more than “list of horribles” rhetorical flourishes. Unless someone’s logic is ‘One thing I didn’t want happened, so now another thing I didn’t want is more likely to happen”, there is no logic at all. (And, btw. the previous is not “logic”. It’s just “woe is me” talk.)

     I hope I didn’t commit the rhetorical question sin in there somewhere.

     Well, you did decide to stop just trying to argue by posting your own rhetorical questions. Or by linking to articles (like Bernstein’s) that did not make the claim about polymory that you appeared to be trying to defend.

     But, by fleshing out what you think is an argument, it’s even more clear that Robert’s doesn’t have a real argument on polymory. Or if he has real argument, you haven’t found it. You haven’t come up with anything about polymory from his dissent that is anything other than “a rhetorical question” about a “possible item on the list of horribles”.

366. At least the CAGW crowd shouldn’t now paint us all lockstep conservatives clinging to our guns and bible. Of course, I can dream.

367. Carrick –
     Thanks for the link to the article by Schane. I now know more about legal issues with ambiguity. However, I still don’t see how the text is ambiguous, or that it relates in any way to the three examples which Schane gives. The Act’s section contains a restrictive clause which limits its scope; we’re not talking about a broad term which may or may not include both types of Exchanges. As I said before, if the argument is about consistency, I can see that there’s a case to be made (although I don’t find it convincing). But I’m just not seeing any textual ambiguity there.

     I’ll shut up about it now. 😉

368. I am not even going to read all that. I had enough when I got here:

     “But you previously made the sweeping claim they invented a right to marriage. (And you repeat that claim later in your current comment.)”

     If it has not always been explicit, it should have been obvious to a reasonable reader that I have been talking about a fundamental right to marriage that had not been in the 14th Amendment but has YESTERDAY been invented for gays. That’s what we have been discussing. I have not been talking about a right for ducks, or the mandate for polygamy that you are finding in just about every comment I make. You are ignoring what I have been saying and making crap up.

     The majority decision was full of rhetoric. It’s incredible that you can’t find it. You may have a habit of labeling stuff that you don’t agree with as rhetoric. The stuff you find agreeable is profoundly prosaic.

     If you were an attorney arguing a case before Judge Roberts and he posed that question to illustrate his position and to prompt you to give him an answer, you wouldn’t whine about it being a rhetorical question. You would answer the question. Rhetorical questions can be useful. Judges use them all the time. Think about that. Or not.

     One more thing and then I won’t be addressing you on this or anything else, ever.

     “I read Volokh. Have for years. You go ask Orin or Dale or Bernsteind or Eugnene or whoever whether they think the ruling mandates plural marriage.”

     I referred you to that commentary because it contained a criticism of the decision and offered an alternative approach that he and I believe is better. If you read it, you missed it, or chose to ignore it. You didn’t mention it. Not going to go into that again, because you will just continue to turn a blind eye. Instead of addressing the substance, you replied with that BS about me thinking the court is ruling plural marriage mandates. Incredible.

     I will end this by admitting that I am indeed claiming, swearing, stating, asserting etc. that I firmly believe the court has firmly mandated polygamous marriage to be practiced forthwith throughout the land. So those who are single or have only one spouse, you have to get some more people to marry you. End of story.

369. Don

     If it has not always been explicit, it should have been obvious to a reasonable reader that I have been talking about a fundamental right to marriage that had not been in the 14th Amendment but has YESTERDAY been invented for gays. That’s what we have been discussing. I have not been talking about a right for ducks, or the mandate for polygamy that you are finding in just about every comment I make. You are ignoring what I have been saying and making crap up.

     Of course we are not discussing the right of marriage for ducks.
     You may think you are somehow being clear about something, but the words of the 14th amendment don’t contain “marriage” and didn’t before Friday; they never will. A fundamental right to marriage was recognized long before Friday. The right was held by persons not ducks. They had already recognized that the right meant nothing if individuals couldn’t pick the person the preferred. That recognition was in Loving, which was decided long before Friday, and was not a right that applied to ducks. Yesterday, they ruled that the gays could also make their own choice.
     I have no idea how you think this is inventing a new right in this ruling. It’s extending the same ‘right to marriage’ they recognized long ago.

     You may think somehow that it’s ok to use some sort of short hand and decree that the right to marriage somehow was not recognized long ago. But in fact, it was in numerous rulings. If you want to say the right to marry someone of the same sex, or the right of gay marriage was not you need to say so. But the right to marriage existed long ago. Suggesting that people aren’t allowed to correct you when you elect to use hyperbole to drastically overstate the meaning of the ruling is absurd.

     If you object to the extension of the right to marriage which has been recognized for a long, long, long, long time to gays, you should refrain from wording that suggests the right of marriage was not recognized until yesterday. And adding words like “under the 14th amendment” doesn’t help. The right for interracial marriage was recognized under the 14th amendment in Loving long before yesterday.

     The majority decision was full of rhetoric. It’s incredible that you can’t find it. You may have a habit of labeling stuff that you don’t agree with as rhetoric. If you were an attorney arguing a case before Judge Roberts

     I didn’t say the majority decision contains no rhetoric. Like most SCOTUS opinions and dissents it contains some rhetoric. That it contains some is not deficiency. It’s only when it contains nothing else that one has a problem.

     That majority decision does contain some rhetoric that is hardly a defense for my observation that the particular bit in Roberts dissent that discusses polymory contains nothing but rhetorical flourishes and no “argument”.

     and he posed that question to illustrate his position and to prompt you to give him an answer, you wouldn’t whine about it being a rhetorical question.

     Whose whining? I am noting that the argument in his dissent is nothing but a rhetorical question. As there is nothing else there, his not an legal argument. It isn’t any sort of argument at all. It is a rhetorical flourish. This isn’t “whining”.

     Beyond that, me reading his brief is not me standing on the floor trying to persuade him of my case. So the fact that a lawyer would answer Robert’s question if it was presented on the floor is true. Not answering falls int he category of “pissing off the judge” which is always ill advised.

     But the fact that an attorney would be well advised to answer courteously doesn’t turn Roberts question into any sort of legal argument. Also: it doesn’t turn the same question in a dissent into an argument. And moreover, the fact that an attorney didn’t give Roberts an answer he liked doesn’t make the majority ruling wrong. If Roberts asked the flight speed of a swallow, and the attorney got that wrong, that Robert’s writing “The guy couldn’t tell me the flight speed of a swallow” in his dissent would not become a good argument on the part of Roberts.

     I referred you to that commentary because it contained a criticism of the decision and offered an alternative approach that he and I believe is better.

     As far as I can see, you were on about poligamy, and when pressed, linked to a post that didn’t touch on the claims under dispute at all. Merely linking to a post that comments on the change in due process jurisprudence under Kennedy that doesn’t even say the ruling is wrong looks more like a red herring than anything else.

     You didn’t mention it.

     Why would I mention a post by Bernstein that doesn’t discuss polygamy the topic you brought up in comments and which I was engaging you on? I wouldn’t because Bernstein’s article doesn’t discuss polygamy. It’s a tangent.

     I really don’t know why you have a gripe that I inferred from

     The logical extension of this decision is a future ruling that laws against polygamy violate the Due Process Clause.

     That you think the consequence of this ruling will be for the courts to mandate polygamy.

     Instead of addressing the substance, you replied with that BS about me thinking the court is ruling plural marriage mandates

     If you are going to parse this finely, and get in a huff about being misunderstood, you might want to go back and read what I wrote. I didn’t say you thought that. My response to your red-herring link to a Bernstein post that was not on the topic of plural marriage– a topic you introduced here– I told you to go ask they guys at Volokh what they think. That’s not accusing you of thinking anything at all.

370. OK

     I am really embarrassed by that thrashing, so I’ll try to make amends. You are right. I just realized that other people had the right to marry, before this momentous decision extended that right to gays just yesterday. I apologize for not realizing that sooner. And I should have never mentioned the ducks. That was a red herring.

     “The right for interracial marriage was recognized under the 14th amendment in Loving long before yesterday.”

     OMG! I didn’t know about that decision. Too bad it didn’t also extend that right to gays, who only got the SCOTUS 14th Amendment blessing, yesterday. I get your point.

     And I see what you mean about the dissenting opinion written by a SCOTUS justice not being an argument against the legal reasoning in the majority decision, because it was either too rhetorical, or you just don’t like it, or you don’t understand it because it is a pathetic excuse for an argument. He should have gone along with the majority, or let a clerk write his dissenting opinion.

     And I am sorry I ever brought up the implications of this decision regarding other classes of people who might want to get married but are prevented by various laws restricting marriage for certain classes of people, whose description I will never mention again. I should have just gone along with your dictum that this is strictly about gay marriage. Anyway, now that gays can marry I don’t think the 14th Amendment will be giving out any more marriage rights. Every group is covered now that has the political power to get the court to go along.

     The Bernstein article, I should never have brought up. It’s got nothing to do with what we are talking about. It’s just an analysis of the majority opinion containing the reasoning behind the ruling written by Kennedy and joined by the other majority justices. I am sorry I read it. That you don’t understand that Bernstein criticized the reasoning of the decision and offered an alternative and plausibly better line of reasoning for a pro-gay marriage decision, that I am in agreement with, must be entirely my fault. The SCOTUS decision creating a fundamental marriage right for a class that is not a “suspect class” has no implication on future cases that might be brought by others who want to engage in prohibited marriages. We know this, because Bernstein didn’t specifically say so. It’s just a red herring I tossed out there for purely selfish reasons. That’s two red herrings. Enough.

     Oh, and it’s OK that you misrepresented what I said multiple times. It must have been my fault. But you don’t get the Escalade.

     Boa noite.

371. Don,
     Resorting to sarcastic irony is not an argument supporting your previous claims.

372. Dear Lucia,

     I am not arguing. Done with that. I wish I had never mentioned that thing that got you all irritated. I like you too much to have this kind of unpleasantness with you. It was not fun. I’ll be going now. No hard feelings.

373. Lucia,
     You wrote

     A fundamental right to marriage was recognized long before Friday. The right was held by persons not ducks. They had already recognized that the right meant nothing if individuals couldn’t pick the person the preferred.

     The “fundamental right” to marry the (human, adult, single) person they want to marry is precisely the right being denied to those who wish to contract incestuous marriages. By your own argument, that right still means nothing.

374. Lucia,

     The Loving case (1967) and McLaughlin v. Florida (1964) completely reversed an earlier case: Pace V Alabama (1883). Pace V Alabama had affirmed the right of the Sate of Alabama to restrict sex and marriages between people of different races, and that ruling was “the law of the land” for 71 years. I point this out for two reasons:
     .
     1) The court in Pace V Alabama did not say other states could not allow sex and marriage between people of different races. But it affirmed in Pace the right of individual states to implement bands on sex and marriage between people of different races. There was no hand-wringing about “full faith” requirements.
     .
     2) The court constantly changes its interpretation of the Constitution to fit with what is politically acceptable, and finds, or fails to find, ‘rights’ and Federal ‘powers’ as suits current fancy.
     .
     The court can, if it is desired by a majority of 5, find almost any right, or more importantly, almost any lack of right, in the US Constitution (eg Kelo V New London). It reminds me a bit of how it is often said a prosecutor can indite a ham sandwich: the Court can, and does, find most any ‘right’ or ‘lack of right’ that it wants. Worse, those rights (or lack thereof) can change at any time. Yes, the majority will always produce legal arguments to justify their desired outcome; sometimes the arguments are more rational, sometimes less. (eg. Roberts’ conclusion that the ACA was a tax, and so constitutional, is both ridiculous and risible; he just didn’t want the law to be voided… worst legal reasoning I have ever read….utterly stupid.)
     .
     But the key point is the justices are unelected and they serve for life, so the Court is able to do anything a majority of 5 wants: they are effectively above the law. IMO, the Court is the branch of government which has consistently demonstrated the greatest capacity to do long term damage to the country by short-circuiting political resolution of what are fundamentally political disagreements, and by consistently allowing plainly unconstitutional government actions, such as: Kelo V New London, finding that “commerce” is almost anything a living person does, and upholding the ACA law as only a tax.
     .
     When a Constitution can mean anything 5 individuals desire it to mean, then it does not any longer provide protection from bad government, it instead facilitates bad government. As things currently stand, the Federal government can, within the Court’s definition of laws which are Constitutional, compel an individual to do virtually anything. The original purpose of the document (ensuring a limited Federal government with explicitly stated and powers) has been corrupted by the Court, and rendered it almost without meaning.

375. SteveF,

     The court can, if it is desired by a majority of 5, find almost any right,

     The court can identify unenumerated rights and give them voice when they were not previously recognized. I don’t know why they don’t constantly call out the 9th amendment when doing so, but for some reasons, they don’t remind people of it’s existance. Instead, they like to refer to other clauses, amendments and so on. As it happens, I often approve of the court finding of the unenumerated rights. But they also sometimes make mistakes. I don’t think this was one of the mistakes.

     So I agree with you they can find many rights– but I think that’s proper. The question is whether a right that has been found is properly found.

     My point with respect to the right of Marriage: The court found that the right to marriage long before Friday. Equally importantly: the court that found this right consisted of an entirely different set of justices. So, the claim that it was invented last week is wild hyperbole.

     What happened this week is that a group of claimants with standing presented a case showing their rights were restricted. The other side tried to present arguments that the right did not exist and/or that the right could be restricted in their specific case (as rights sometimes can be.)

     The court’s ruling is that the right which was already recognized under Loving (and copious other rulings) does exist, and that it can’t be restricted in that particular way. (The court didn’t go further to consider all possible hypothetical restrictions. This is the general practice of the court.)

     I dislike Kelo too. So do lots of people. I was happy with the Raisin’s taking case. And I agree with you that aspects of SCOTUS jurispurdence are unpredictable and also that sometime they lean to much to far to living constitution. (But none of that makes the right to marriage something only discovered last week. Whatever criticisms one has of SCOTUS, a previous bench found that right long ago.)

     Jonathan

     they want to marry is precisely the right being denied to those who wish to contract incestuous marriages. By your own argument, that right still means nothing.

     It’s true siblings, parents and children can’t marry in the US. Under equal protection, some rights could be denied even after a claim is presented to the Courts– under some circumstances. The circumstances then get considered relative to the right and the restriction.

     So: the fact that a right might be restricted in some cases doesn’t mean a right doesn’t exist.

     The other separate issue is that in our system, rights are sometimes violated and later get remedied by SCOTUS. But for that to occur, a person or group with a claim and standing has to present that case to SCOTUS.

     If no one with standing presents the claim, the laws banning something can and do remain in place. That doesn’t mean the right does not exist. It doesn’t mean SCOTUS wouldn’t recognize the right. In some sense, if there are no claimants with standing who care, the right is not being denied by courts. It may be being denied by legislatures, it it’s possible courts would remedy that. That happens. It doesn’t mean the “right doesn’t exist”.

     What this means is that not all rights that exist have been voiced by the courts and that the means of getting them voiced does require work and effort on the part of at least 1 claimant with standing.

     To some extent, that explains part of the controversy when courts do voice new rights. Those who wish to deny that a right was curbed or denied in a way that is not permitted will often decree the right was “created” by the court.

     With respect to incest: We don’t know what the court would rule on that question. Either people with standing don’t exist (in which case the issue is moot) or they don’t make the claims (which also renders it moot) or those who do present cases that are knocked down for other reasons which once again makes that case moot.

     For example: a parent of wanting to enter into an incestuous marriage with a 7 year old would be rebuffed because the age limitations are accepted as applicable to all. The courts would then not address the other claim.

     So I’m not sure how the existence of the incest band the right to marriage means nothing — it may mean that there can be a balancing test to determine whether the circumstances are such that something that is otherwise a right is denied. Or it may mean that the issue is moot because noone with standing exists, or pursue a claim and so on.

     But the right to marriage has been recognized– and was in Loving.

     Also: to be clear. I didn’t say the courts would never eliminate the incest ban. What I said is this case, its ruling and its logic haven’t done anything to change that. The argument in Loving and numerous cases cited by this one would have been sufficient to make the rights part of the claim. It’s the claim that obergefell v. hodges changed anything with regard to the court overturning incest bans that makes me respond “eyeroll”.

     Both pre-and post Obergfell, after making the rights claim, potential claimants would have had to deal with the ‘balancing act’ aspect. (Or, possibly the pre-balancing act type arguments, which still allow the government the right to block some rights if there is a sufficient need. The question of how to argue about the balancing is the issue in the Bernstein article Don linked. It was an interesting article– but doesn’t have anything to do with incest, and really discusses how Kennedy’s due process/equal protection arguments seem to harken back to Lochner days and don’t use the ‘protected class’ and “scrutiny” type arguments. )

     Anyway, both pre and post Obergfel , the court could find a compelling interest to keep the ban in place. Or they might have lifted it. Nothing has changed. And this doesn’t mean they haven’t found a “right to marriage”. They have and did so long ago.

376. Jonathan,
     I should note the example often used to explain rights that exist but that can be curbed. We have a right to free speech. But teenagers right can be curbed in schools. And ‘fighting words’ can be prohibited. And so on. This does not mean we don’t have the right to free speech. Even children have a right to free speech, but the courts do get to weigh things like “time, place, manner” and so on.

     Also: historically, the courts have recognized that some laws enacted by legislatures trampled the right to free speech. That people had to go to court to overturn the right-violating law doesn’t mean the right didn’t exist before the court found it. It doesn’t mean the right means nothing. It means that the court doesn’t go around voicing answers to questions unless that question is presented in a case in court and that a claimant may need to present that question to a court.

     Another example of rights we have: have a general right to enter contracts– but those can be curbed for the mentally infirm, minors don’t have access to this right. So entire groups can be and are denied access to the right.

     Also: some sorts of contracts are not permitted and void. This doesn’t mean we don’t have a right to make contracts. We do.

377. Lucia,
     My objection was to your (somewhat hyperbolic?) statement

     They had already recognized that the right meant nothing if individuals couldn’t pick the person the preferred.

     (my emphasis). But you seem to be backing away from this statement towards a more conventional balance of rights and restrictions position.

378. SteveF, hit the nail on the head with,
     “When a Constitution can mean anything 5 individuals desire it to mean, then it does not any longer provide protection from bad government, it instead facilitates bad government.”
     I am ashamed that Chief Justice Roberts is the current embodiment of that risk. His dissent in the marriage ruling was rather pathetic frankly, since he demonstrated such cynical legal gymnastics on behalf of Obamacare.
     Another gap in our constitutional framework is the rise of the bureaucratic oligarchic state. The two gaps, Judges who are not Judges and the bureaucrats as legislator executive and judicial are not unrelated.
     It raises the ancient question, “who will watch the watchers?”

379. One comment on the right of marriage:
     Until the last few years no one ever in a serious way thought that marriage definition included same gender.
     This week’s ruling has nothing to do with the right of marriage, in a sense. It has to do with the redefining something.
     Here is a very imperfect analogy:
     History shows that slavery was not considered evil or unacceptable. Historically slavery was seen as acceptable and was widely practiced. Now slavery is largely unacceptable and not nearly as widely practiced. Slavery was an ancient practice that has been redefined (however imperfectly it has been carried out). That redefinition of slavery from acceptable to unacceptable is seen by almost everyone as a good thing. Perhaps over time we will come to the same conclusions about the redefinition of marriage. And certainly the implementation of this redefinition of marriage has been far less costly to humanity than the redefinition of slavery.

380. Jonathan,
     Ahh… I see what you are driving at.
     Yes. They didn’t say “meant nothing” so yes, that was hyperbole. And no, I don’t think that something “means nothing” if there some curbs exist. Curbs can exist, and they need to be justified.

     FWIW, this is from Loving.

     hese statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

     Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

     These convictions must be reversed.

     The italicized bit is the recognition the right to marriage exists and there is freedom of choice for the individual.

     I was curious and looked at Skinner v. Oklahoma. That touches on this right ” the right to have offspring”. They found in favor of the petitioner– basically finding that right. I’m not sure what aspect of Maynard v. Hill is important here. (That was a divorce case.)

381. hunter

     Until the last few years no one ever in a serious way thought that marriage definition included same gender.
     This week’s ruling has nothing to do with the right of marriage, in a sense. It has to do with the redefining something. This week’s ruling has nothing to do with the right of marriage, in a sense. It has to do with the redefining something.

     How do the second two sentences follow from the first?

     Women getting the right to vote wasn’t redefining what voting is or meant. It had to do with the right to vote. Admittedly, that was mostly by amendment, but the extension still is “about” the voting rights, not redefining the the right to vote. By analogy, even if people didn’t previously recognize the right to marry to include the right to marry someone of the same sex, that doesn’t mean the ruling isn’t “about” the right of marriage. It’s simultaneously “about” the right of marriage, “about” the extent of that right and “about” government involvement of that exercise of that right. (The third because, this wasn’t about who can say “we are married” nor whether the religious can solemnize something they consider to be marriage, but who has access to government recognition.)

382. Steve, I was thinking up a brilliant reply to your latest comment on government form, but forgot due to being under heavy bombardment.

     You are correct about the problems we are having with our present system, particularly the SCOTUS and the current POTUS. But the American electorate had 4 years to vet that imperial clown in office and they elected him again. Also, about half of the people don’t mind this activist court making political decisions, because they agree with most of those decisions. If they didn’t, they would be howling and burning down buildings. If a Democrat President gets the chance to appoint another couple of justices and they get confirmed, we are doomed to a more destructive politicization of the court than we have already seen.

     Parliamentary governments are fine in the places and times where they work. Off the top of my head a short list of some of the relatively successful examples: Norway, Sweden, Germany, Denmark, Finland, Great Britain, and other Northern European countries. Greece is on the other end of the spectrum and you know the other usual suspects in Europe. Outside of Europe, it goes downhill.

     On the other hand, I believe the government based on the U.S. Constitution has produced the most good for the most people in the history of this planet. It has preserved the freedom of not only U.S citizens, but it has saved the world from domination by tyrannical systems more than once.

     I don’t think Americans would go for a parliamentary system for the foreseeable future. They like to have the option of divided government. You can see it clearly in the midterm elections, where the party of the President often takes a beating in Congressional elections.

     Personally, I think we are Balkanized enough already. Don’t think a parliamentary system would help us.

     Just my very humble opinion.

383. This might be a good time for the more open minded here to discuss privatization of marriage. The link below notes comments from people, who are not otherwise considered wackos, advocating for privatization.

     https://en.wikipedia.org/wiki/Marriage_privatization

     In addition, surely the special privileges that government defined marriage brings to present and evidently future couples falling under that definition would not pass strict muster of fairness – no matter any legal issues (real or conjured up) or lack thereof – when those privileges do not extent to those living in the same manner outside of marriage.

384. lucia,
     You raise some interesting issues and points. As I am seeing in real life experiences, there is not much room left for discussing this topic. Many of us apparently missed a significant ground shift regarding this topic and some others in the nation. I will respectfully and with good cheer give you the last word on it.

385. Carrick,

     Look at the ambiguity argument from the opposite direction. If the intent of the legislation was that subsidies were to be available from both State and Federal exchanges, why would any State bother to set up an exchange? Given legal history, the national 55 mph speed limit and Federal highway fund withdrawal comes to mind off the top of my head, it should be obvious to any reasonable person that no ambiguity exists.

     In fact, you shouldn’t be surprised if at least some current State exchanges get converted to Federal exchanges.

386. Don Monfort (Comment #137274),

     The thing that is fundamentally different about a parliamentary system is that a prime minister who’s party enjoys the barest of popular majority does not act like Mr Obama…. unless he/she wants to lose a vote of non confidence, and so possibly lose his/her job. What I have found troubling over the past 45 or so years is that presidents seem ever less wiling to engage in compromise with Congress, and those within Congress ever less willing to compromise among themselves and with the President to develop reasonable public policy. The last constructive compromise of any import I can think of was Bill Clinton’s compromise with Congress to greatly reduce welfare costs and simultaneously increase taxes, so as to balance the Federal budget. I did not agree with everything that was included (that is the nature of compromise), but there was a dramatic improvement in the Federal Government’s finances…. an improvement which was unfortunately quickly undone by Mr Bush and later Congresses.
     .
     The near impossibility of compromise may have lots of causes, of course, including the personalities (and personal narrowness) of specific leaders involved, but I suspect a large part of the problem is structural: Imperial President, gerrymandered house districts, Senate rules for cloture, a Supreme Court that long ago stopped trying to base their rulings on the plain words of the Constitution, and so allows the other branches to do all kinds of destructive things, if/when they act at all (eg. the ACA). Gridlock means substantive problems are usually not addressed… except via lawless presidential actions that are often contrary to the public’s wishes.
     .
     I hope I am wrong, but I honestly don’t see much chance of a good long-term future (50-100+ years) for the USA under the current structure. A constitutional convention called by the States seems to me a reasonable first step to set things right.

387. DeWitt,
     “In fact, you shouldn’t be surprised if at least some current State exchanges get converted to Federal exchanges.”
     .
     If the goal is to maximize benefits for their residents, while minimizing costs, that is what they will do. IMO, the entire logic of the ACA ruling is nonsensical…. OF COURSE Congress was trying to pressure the States, at least at some point in the rushed and haphazard drafting process. Congress does this regularly to force states into compliance, and the Court has consistently allowed it. Maybe that idea was supposed to have been purged from the final draft, maybe not… but some clear wording to pressure the States to open exchanges (by withholding Federal subsidies for people in state that don’t) remains, leaving the law at best very poorly drafted, and at worst, ambiguous.
     .
     The Court’s decision to accept the Obama Administrations ‘fixes’ was wholly political; IMO, the reasonable thing to do was to strike the Federal exchange subsidies. This would force Congress and Mr Obama to actually compromise on the ACA legislation, which would both improve the law and make it more a product of informed public consent (unlike the original passage, which withheld key information from the public, and offered ‘near bribes’ to reluctant Senators). The political reasons why the Court did not do this seem pretty obvious to me; the SC is just a very exclusive political organization.

388. “Who watches the watchers.”

     Clearly, the founding fathers saw the SC as the watcher of the other two branches, the final veto protection against government expansion, activism and tyranny of the majority. The SC power was supposed to enforce and uphold the Constitution. Nothing more.
     .
     By design the SC’s actions should be seen as conservative, a block to changes to the previous status quo, preventing change to the pre-existing citizen-government bargain to one failing constitutional muster. It should not be a creative force. Failed laws should be sent back to the drawing board, not repaired.
     .
     One reason we don’t have this type of SC is the slowness of the courts, which our framers failed to foresee. By the time a matter is brought before the SC the contract has already been executed and is in action. Thus there will necessarily be harmed party or class that will lose something they were receiving, i.e. the cash subsidy recipients, already married couples. The conservative approach thus shifts to leaving de facto actions in place and finding justification.
     .
     Steve, when you have that constitutional congress for revisions perhaps we can suggest a fast-track to the SC to veto new unconstitutional legislation or executive actions (like wars).

389. Steve, we don’t know how a parliamentary form of government would work here. Could be better. We have one party in charge of the state government in California. I don’t like it. We could use some gridlock.

     There is nothing stopping the electorate from putting one party in charge of the federal government. It happens. And Americans seem to like having a powerful President and voting directly for the top job. We can change the POTUS after four years. The current election cycle is ingrained and I think most people would not like the possibility that we could end up with revolving governments changing at random intervals. If we went parliamentary, do we end up with cartoon characters like Pelosi and Boehner alternating as PM? The uncertainty is enough to kill the idea.

     Anyway, I don’t see it happening. Since the Bill of Rights were ratified there have been 23 amendments to the Constitution. Nearly 12,000 proposals to amend have been introduced in Congress. It’s hard even to tinker around the edges.

     When I see a few states adopt a parliamentary system, I’ll start to pay attention. Maybe Maine or Vermont will go for it. They like to experiment.

390. DeWitt:

     Look at the ambiguity argument from the opposite direction.

     I’m not sure I can.

     The point I was making is in general you should be careful not to pick a phrase from the middle of a document and use it to drive the meaning of entire the document. That’s something I’ve always advocated against, regardless of context, and I think it was a proper decision for the Court to decide against the plaintiff in this case.

     The argument on the other side, which amounts to letting the tail wag the dog, is to me a violation of common sense and good principles for interpretation of technical literature of any form.

     In fact, you shouldn’t be surprised if at least some current State exchanges get converted to Federal exchanges.

     It wouldn’t be surprising if this happens. But at best you are arguing that it is a poor law (which it is). However, that is a different issue than the Obama administration acting unconstitutionally in their interpretation of the law. (I do think the law as it is written admits to the Administration’s interpretation. I don’t like the law so I assure you this view isn’t driven by political expedience.)

     SteveF:

     IMO, the entire logic of the ACA ruling is nonsensical…. OF COURSE Congress was trying to pressure the States, at least at some point in the rushed and haphazard drafting process.

     I think we need to recognize that the law must stand on its own. In other words, Justices shouldn’t be engaged in mind reading in trying to gauge the intent of the writers.

     While what you are arguing is plausible, neither you nor I know the entire history of the writing of that document. It’s also very plausible that the wording was made less definitive precisely to allow the Administration wiggle room: The notion that all 50 states were going to jump on board immediately was a daft one, and some people in Congress are clever enough to anticipate this sort of obvious problem.

     (Because of the ambiguity, they could have read it the other way, had more states jumped on board, for example. Flexibility isn’t by itself a bad thing when you have complex legislation with many un-anticipatable consequences.)

     So I don’t see how can you say the ambiguity (which I do agree with Justice Robert’s argument is present, I would even say “clearly present”) wasn’t deliberate.

     The Court’s decision to accept the Obama Administrations ‘fixes’ was wholly political;

     As long as you are willing to admit that the people who are decrying the decision are also doing so on purely political grounds too, I’m fine with this characterization. Had the tables been turned, I imagine we’d have Scalia arguing that the phrase was ambiguous and Justice Ginsburg excoriating the court.

391. Carrick:”The point I was making is in general you should be careful not to pick a phrase from the middle of a document and use it to drive the meaning of entire the document.”

     The relevant phrase and the words within the phrase are the guts of the subsidy provision. They drive the meaning of the subsidy provision. The subsidy provision is the context for the words, not the whole 2000 page law. There are a lot of separate provisions. There is probably a kitchen sink provision in there somewhere. The case was about one provision of the law.

     The law provided for setting up both State and Federal exchanges. If they wanted the subsidies to be available to those using the State exchanges AND the Federal exchanges, they would have said so. The provision would have read “State and Federal exchanges”. The subsidy provision says “State exchanges”. I can’t understand why anybody would believe that they forgot to say “and Federal”. I haven’t heard that they forgot to mention “Federal exchanges” anywhere else in the law, when they were talking about “Federal exchanges”.

     Carrick;”I think we need to recognize that the law must stand on its own. In other words, Justices shouldn’t be engaged in mind reading in trying to gauge the intent of the writers.”

     The Justices in the majority did exactly that: mind reading. They ignored the wording “State exchanges” and the arguments presented by the plaintiff that well support the contention that the provision was very deliberately written that way to coerce States to set up exchanges and said this is what they must have meant: “State and Federal exchanges”. That is mind reading.

     The plaintiffs were not suing to overturn the law. They were suing to overturn one provision. The court knows how to strike down faulty provisions. Plenty of precedent for that. I haven’t heard of any precedent for not striking down a provision, because it backfired and didn’t work the way it was INTENDED to work.

     The SCOTUS is not in business to help a particular party in a particular Congress fix their dumb political mistakes. That is the job of Congress. In this case, it’s purely a Democrat mistake. Actually, it’s a miscalculation that backfired on them. A large percentage of those rascals have been kicked out, for screwing this up in the first place.

     Well, a majority of Justices feel that the intention of the law was good and striking down that provision would be problematic, so they pretend to be mind readers and find that the learned and highly literate Democrat members of Congress really meant “State and Federal” exchanges. None of the Dem Congressman and their numerous bright and highly paid staffers noticed their little faux pas, before they passed the unpopular bill by hook or by crook. That is politically motivated reasoning (aka BS) and it’s no way to run a Supreme Court.

     In summation: The dumb Gruberized clowns assumed they would coerce the States to set up exchanges. It backfired and the SCOTUS bailed them out with a cheesy mind reading trick.

     Just my very humble opinion.

392. SteveF,

     It was the 17th amendment to the Constitution ratified in 1913, the direct election of Senators, that’s a major contributing factor, IMO, to the present situation. Senators were supposed to represent state governments. Members of the House represented the voters directly. The Tenth Amendment was pretty much a dead letter after the 17th amendment.

393. The relevant phrase and the words within the phrase are the guts of the subsidy provision. They drive the meaning of the subsidy provision. The subsidy provision is the context for the words, not the whole 2000 page law.

     Indeed! Most of the 2,000 pages don’t relate to subsidies at all and are therefore irrelevant.

394. ” They were suing to overturn one provision.”

     That is not correct. I should have said they were suing to have the provision of the law followed as it was written and intended.

     The rest of it is about the Court finding a reason to go along with pretending the provision included handing out subsidies for those using Federal exchanges, not striking down the provision but enforcing it.

     Too much Scotch.

395. While I am at it:

     Carrick:”As long as you are willing to admit that the people who are decrying the decision are also doing so on purely political grounds too, I’m fine with this characterization. Had the tables been turned, I imagine we’d have Scalia arguing that the phrase was ambiguous and Justice Ginsburg excoriating the court.”

     A lot of people are decrying it on Constitutional grounds. I think that includes Scalia.

396. Carrick,
     “As long as you are willing to admit that the people who are decrying the decision are also doing so on purely political grounds too, I’m fine with this characterization. Had the tables been turned, I imagine we’d have Scalia arguing that the phrase was ambiguous and Justice Ginsburg excoriating the court.”
     .
     Of course; it IS a wholly political argument, with Roberts being the well-intentioned but dumb swing vote that kept the ACA alive in the first SC go-round. And that is really the point: the court regularly inserts themselves into what should be political decisions, and they consistently fail their primary constitutional obligation to constrain government to stay within its enumerated constitutional powers. This is no group of people dedicated to thoughtful legal scholarship; they arrive with strong policy preferences, and spend their years on the bench trying to advance those preferences. And everyone knows this is why they were chosen by one president or another in the first place! Can anyone seriously read an opinion by Scalia or Ginsburg and think they are not trying to advance their personal political views? I sure can’t. I do not believe a Supreme Court packed with for-life political hacks is what the folks drafting the Constitution had in mind, because I don’t believe the drafters were either daft or evil.

397. DeWitt,
     “It was the 17th amendment to the Constitution ratified in 1913, the direct election of Senators, that’s a major contributing factor, IMO, to the present situation.”
     .
     Agreed. It changed the nature of Federal Government by effectively hiring foxes to guard the hen-house. What I can’t understand is why any state government would have agree to effectively walk away from meaningful control over the Federal government. The States have ever since become much less politically important, and the Federal Government has grown in size and power. Rescinding the 17th might be a good goal for a constitutional convention requested by the States.

398. Don Monfort:

     A lot of people are decrying it on Constitutional grounds. I think that includes Scalia.

     I think he’s posturing constitutional grounds while ending up on a predictable side in this debate. It’s my impression that you, like most of the people who are unhappy with the outcome, are agreeing with him because you don’t like the ACA.

     I think Scalia is big on rhetoric, not so good on constitutional reasoning. I don’t think he’ll be remembered as a constitutional scholar, rather a very partisan one. In other words, exactly the sort of justice that SteveF is criticizing.

     They were suing to overturn one provision

     To follow up on this… they were suing to try and undermine the ACA and not to “defend the constitution”

     At least be honest about why this lawsuit got filed.

399. Carrick

     I think Scalia is big on rhetoric, not so good on constitutional reasoning.

     I agree. And I think he likes to hear himself talk a lot which can be fun when reading about Supreme Court questioning.

     When I’ve read SCOTUS opinions Thomas’s seem better reasoned to me. Scalia’s can be fun reads, but not because of the legal reasoning. “Argle Bargle” and “jiggerypokery” are fun. I think it’s great to see that sort of thing in opinions. But it would be better if it was there in addition to a good legal argument rather than something that is more like the sort of lament that is fine in an op ed. I’m not going to say there is no legal reasoning in Scalia. But there is a huge amount of other stuff and the legal arguments are often either weak or not well conveyed.

     There’s a reason he is often in the minority. (There’s a reason Thomas is too– but in Thomas’s case, it’s that he really does have a very different fundamental view from many.)

400. Carrick, where do you stand on the need for the Federal government action included in the ACA? Do you consider the rulings of the four liberal justices and the defenses of the majority ruling as politically motivated?

401. If anyone here still thinks the SCOTUS renders decisions based on something other than political outcomes, you’re as willfully obtuse as any AGW Catastrophist ever was.

     Andrew

402. The justices do have different views of how the constitution is to be used in constructing their opinions. In judging those opinions it is probably best to determine whether it is consistent with their judicial views of the constitution.

     Certainly the liberal judges on the court mostly favor a moving target of what liberties are of constitutional import and their interpretation of laws would mainly favor the liberal political view. In this case from a general view of liberties and freedoms the states continue to define what marriage is – as all that changed was to expand that definition. Note that not that long ago Obama and Hillary Clinton changed their positions on gay marriage and so has the general voting population. It would then appear that the liberal justices opinions are consistent with the time being right to define a new constitutional liberty in light of the political environment.

     As a libertarian in cases like this I see the constitution losing a lot of its original intent to either be amended or more strictly interpreted, but at the same time I see that a liberty even though invented and not nearly going far enough fits better the libertarian view of freedoms.

     Strict constructionists in cases like these are merely pointing out that the constitution did not originally allow the freedoms that some may have assumed or wished. One might ask why in a reasonably free society should the State through popular vote determine who gets to marry and further gets to determine special privileges for that marriage, but that never was the case and after the recent ruling on gay marriages is not the case now.

     What irks me the most in these cases is for the constitution to be considered an original bastion of freedom, or such a bastion by what 5 justices decide in effectively amending it or when the constitution is used as a cover for restraint on government when in effect the ruling often increase government power – that is if a law passes constitutional muster the state of affairs are super fine and we need not worry that any freedoms are lost.

403. Carrick: “I think he’s posturing constitutional grounds while ending up on a predictable side in this debate. It’s my impression that you, like most of the people who are unhappy with the outcome, are agreeing with him because you don’t like the ACA.”

     The conservative justices get criticized for being “strict constructionists”. Adhering strictly to the Constitution used to be generally considered a virtue. I wonder if you can provide a significant number, or one example of Scalia or the other conservative Justices where they pulled a similar cheesy mind reading trick. You seem to know a lot about Scalia’s record on the court. On what do you base your criticism, of Scalia?

     I am against the decision for two reasons. I don’t like the law and the majority decision was based on nothing but a cheesy mind reading trick. I am not a very strict constructionist, but their ought to be limits to what liberties can be taken with the Constitution for essentially partisan political expediency.

     Carrick quoting myself:”They were suing to overturn one provision”

     Carrick:”To follow up on this… they were suing to try and undermine the ACA and not to “defend the constitution”

     I didn’t say they sued to defend the Constitution. Their motives are irrelevant to the court and to the decision. At least, they should be. They had the right and standing to sue. They did.

     People and classes of people generally sue because they have a grievance. That’s why gays sued. If your ox gets gored you might take advantage of the courts. A whole lot of people don’t like their tax money going to subsidize insurance for somebody else. They don’t like losing their preferred health plans and their doctors. They don’t like being lied to and dictated to by one party that passed, by hook or by crook, a massive convoluted and disruptive law unsupported by the majority of the folks.

     I would be interested in seeing your reasons for believing that “State exchanges” can be justifiably interpreted as “State and Federal exchanges”. Have you considered the arguments of the attorneys for the plaintiffs? They can be found online.

404. Kenneth Fritsch,

     “Nationwide, according to the Family Research Council’s Peter Sprigg, just over 3.3 million individuals voted for same-sex marriage in three states—Maine, Maryland and Washington State—compared to more than 41 million who voted for marriage protection amendments or bans on same-sex marriage in 31 states—a ratio of more than 12 to 1.”

     http://www.afa.net/the-stand/press-releases/rogue-court-rejects-rule-of-law/#.VY1mSrVBJOg.facebook

     Andrew

405. note:

     Somewhere along the line, I/we, started talking about the disputed words in shorthand “State exchanges” vs. “State and Federal exchanges”. The actual wording is:

     “Exchange established by the State under 1311”

     Section 1311 establishes the framework for the “State exchanges” only. Period.

     Section 1321 provides for the establishment of exchanges run by the HHS, in those States that do not set up exchanges.

     So the provision for subsidies left out not only “Federal” but also “under 1321”. Period.

     Look to the text first, before resorting to cheesy mind reading.

406. Andrew: Votes don’t and should not matter, where affirming fundamental rights are justified. Unpopular groups would have big problems getting due process and equitable treatment under the law, if it was left up to voting. I am for States rights, except when they screw some particular segment of the population.

407. “Votes don’t and should not matter”

     Spoken like a true elitist.

     “where affirming fundamental rights”

     How about the right to have your vote count for something?

     Andrew

408. Andrew_KY,

     “Votes don’t and should not matter”

     Spoken like a true elitist.

     Spoken like an American is more correct. That’s the American POV vis-a-vis the bill of rights and any rights expressed in our constitution.

     “where affirming fundamental rights”

     How about the right to have your vote count for something?

     All votes count for something. They just don’t count for everything and never have. That’s one of the strengths of our system.

     If an American legislature votes to outlaw the Roman Catholic Church, and has the support of 9/10 Americans when doing so, that’s a violation of rights. That law would be overturned by SCOTUS.

     Those American’s might get together and propose an amendment to modify the 1st Amendment, but until they did so in the proper manner, law banning the Roman Catholic Church can’t be enacted even by overwhelming majorities.

409. I’m curious about something I saw Carrick say upthread:

     Based on the fact that how people read that clause seems to depend on whether they’d like the ACA overthrown, made truly unworkable or actually would like it to stay, I’d say there’s more ambiguity here than you’re admitting to, but anyway…

     I’m curious about this because I haven’t actually seen anyone here explain why we should believe that clause is ambiguous. The most effective way of doing so would be to show how the clause could have been made unambiguous. Would anyone care to try? I think it would be a fun exercise. How would you write the law to more clearly refer only to exchanges created by states than by saying:

     an Exchange established by the State under [42 U. S. C. §18031]

     While you think about that, I have to share a relevant post. Apparently some people think the section actually says “established by the states.”

410. I have roots in the South, Andrew. I am guessing that you are from that direction, even if not you are probably aware that if Southerners were asked to vote on the proposition that the 13th Amendment did not apply to their States, they would have voted overwhelmingly in the affirmative. In fact, they enacted laws that did screw the ex-slaves and their descendents that were only removed recently. Don’t you like the Constitution and the principle of equal protection, Andrew?

411. Kenneth,

     Strict constructionists in cases like these are merely pointing out that the constitution did not originally allow the freedoms that some may have assumed or wished.

     My view is ‘strict constructionist’ who grouse that justices find too many rights are ignoring the ninth amendment

     “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. ”

     My other view is if you ignore the 9th amendment or treat it as meaning nothing, then you can’t claim to be a strict constructionist.

     In my view, the main problem with interpretation is it leans toward giving the Feds too many powers while being to tentative in finding rights. The document was intended to give narrow powers and broad rights. Not the other way around.

412. Don Montford

     Don’t you like the Constitution and the principle of equal protection, Andrew?

     Woodrow Wilson didn’t. 🙂

     http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/25/expunging-woodrow-wilson-from-official-places-of-honor/

413. One way to show the clause is ambiguous is to show that Federal exchanges are mentioned somewhere else in the 2000 page law in context of the tax subsidies. I haven’t seen it mentioned. Maybe somebody can show it to us.

     On the other hand, Justice Scalia points out in his dissent that State exchanges were mentioned 7 other times in context of tax subsidies. From Scalia’s thorough and well thought out dissent, which I suspect none of the decision supporters here has read:

     “Making matters worse, the reader of the whole Act will come across a number of provisions beyond §36B that refer to the establishment of Exchanges by States. Adopting the Court’s interpretation means nullifying the term “by the State” not just once, but again and again throughout the Act. Consider for the moment only those parts of the Act that mention an “Exchange established by the State” in connection with tax credits:

     The formula for calculating the amount of the tax credit, as already explained, twice mentions “an Exchange established by the State.” 26 U. S. C. §36B(b)(2)(A), (c)(2)(A)(i).

     The Act directs States to screen children for eligibility for “[tax credits] under section 36B” and for “any other assistance or subsidies available for coverage obtained through” an “Exchange established by the State.” 42 U. S. C. §1396w–3(b)(1)(B)–(C).

     The Act requires “an Exchange established by the State” to use a “secure electronic interface” to determine eligibility for (among other things) tax credits. §1396w–3(b)(1)(D).

     The Act authorizes “an Exchange established by the State” to make arrangements under which other state agencies “determine whether a State resident is eligible for [tax credits] under section 36B.” §1396w–3(b)(2).

     The Act directs States to operate Web sites that allow anyone “who is eligible to receive [tax credits] under section 36B” to compare insurance plans offered through “an Exchange established by the State.”§1396w–3(b)(4).

     One of the Act’s provisions addresses the enrollment of certain children in health plans “offered through an Exchange established by the State” and then discusses the eligibility of these children for tax credits. §1397ee(d)(3)(B).

     It is bad enough for a court to cross out “by the State”
     once. But seven times?”

     I must have missed copying one, that looks like only a half-dozen. That is enough to get the point. Scalia’s dissent is devastating. But you have to actually read it to make an informed judgement.

414. I think this reference I missed:

     “The formula for calculating the amount of the tax credit, as already explained, twice mentions “an Exchange established by the State.” 26 U. S. C. §36B(b)(2)(A), (c)(2)(A)(i).”

     It was mentioned twice in that section. So we got seven, unless I am missing something else.

415. Elitist Friends,

     We vote on lots of things to resolve issues. I don’t think that examples of real or imagined bad votes should justify the nullification of legal votes in this case. Either you accept legal voting for issues or you don’t. We are supposed to be a nation of laws.

     Andrew

416. Andrew_KY

     We are supposed to be a nation of laws.

     Yes. And the US Constitution is the supreme law. Following it:
     1) Sometimes majority rules.
     2) Sometmes you need a super majority.
     3) Sometimes, even a super majority doesn’t rule.

     If you try to insist that votes can overrule the constitution you are advocating that we not be a nation of laws.

417. “If you try to insist that votes can overrule the constitution”

     So when did these votes violate The Constitution?

     Andrew

418. You don’t understand our law, Andrew. You can’t deny someone, or a class of someones their Constitutional rights by voting. Sorry to disappoint you.

419. “You can’t deny someone, or a class of someones their Constitutional rights by voting.”

     Again, where in this was The Constitution violated?

     Andrew

420. Andrew _KY,

     For this

     “If you try to insist that votes can overrule the constitution”

     So when did these votes violate The Constitution?

     Why do you ask? I didn’t say the votes violate the constitution. I said votes don’t overrule the constitution. This is a different thing.

     To elaborate: Votes themselves never violate the constitution. But if a rule that violates the constitution receives a majority of votes during an election, the Constitution dictates that rule not be implemented.

     So obviously, if you ask “when” any actual votes violated the constitution, the answer is never. But it remains true that votes can’t overule the constitution. When that rule violates the constitution, the rule is set aside. The constitution trumps the mere casting of votes.

421. andy, andy

     “more than 41 million who voted for marriage protection amendments or bans on same-sex marriage in 31 states—a ratio of more than 12 to 1.”

     The Supreme Court has ruled those bans on same-sex marriage un-Constitutional. We been through all that. A lot of states had laws effecting racial segregation and discrimation. Gone.

     Perhaps you will get it this way: Like myself, you may be a responsible gun owner and you may have served in various capacities fighting for truth, justice and the American way, in wars foreign and domestic. We got our rights.

     If at least the first part of that is true, I would guess that if the citizens of your state have the ability to vote directly for laws and they decided by a majority to ban civilian gun ownership, you would feel that your ox had been gored.

     You might start hollering about your 2nd amendment rights. I know I would. The murdering type aren’t going to obey the law. You will be a sitting duck (if I can use that word here). You could move to another state. And if the citizens of that state banned your guns, you could move again, all the while hollering about the 2nd amendment. Are you getting any of this, andy?

422. Don

     You could move to another state.

     Or you could go to SCOTUS and get the law overuled.

     See McDonald.
     https://en.wikipedia.org/wiki/McDonald_v._City_of_Chicago
     This was also a 5-4 ruling.

423. I was posing a hypothetical to andy that I thought he might be able to grasp, lucia. He probably didn’t know about that decision. Now that you have told him, he can avoid dealing with the hypothetical scenario and I lose the opportunity to teach andy a lesson. Thank you.

424. Interesting Lucia that the 4 liberal justices and Justice Kennedy did not invoke the ninth amendment to find a new right in this case.

     The ninth amendment could be a great shortcut for some libertarian SCOTUS in the future to severely limit the powers of the Federal and state governments by coming up with new rights that negate the unenumerated powers – and with some imagination even enumerated ones. I think that is why some liberal justices have tread lightly here.

     Scalia will say that ninth amendment refers to the unenumerated rights at the time the constitution was originally written and approved.

425. Kenneth:

     Carrick, where do you stand on the need for the Federal government action included in the ACA? Do you consider the rulings of the four liberal justices and the defenses of the majority ruling as politically motivated?

     It’s more like a political bias:

     It’s a natural human tendency to require more proof of assertions that have what we perceive as negative consequences for us.

     This bias generally is an adaptive behavior in our personal lives. Generally it’s easy to figure out the negative consequences of e.g., driving a car with a low tire, if you end up having a blow-out as a result. It’s a good thing to demand a higher level of proof in this case.

     So if the ACA is “okay” with a certain reading, if we like the ACA, that reading is going to be an easy sell, and if we wished the ACA would just go away, it’s a harder sell.

     With politics, I think people generally think they have more of an ability to work out the consequences than they do, and I think it’s their political ideology that they typically leverage on for what they will accept credulously, and what will be a hard sell (or impossible sell) to convince them is true.

     Unlike with the example of a low tire, this political bias doesn’t tend to help us nearly as much as bias against e.g. driving on a low tire. I think in general, it makes us predictable and more easily controllable by politicians.

     Anyway, hopefully you see where I’m going with this: Conservative judges are generally going to weigh against legislation with a liberal bent like the ACA and vice versus.

     Having said that, yes I definitely think bias exists for both liberal and conservative judges.

426. Brandon:

     I’m curious about this because I haven’t actually seen anyone here explain why we should believe that clause is ambiguous.

     I think this is because Justice Robert’s decision already contains a clear explanation of it. However, I did provide a lengthy quote of what I thought was the relevant passage together with a discussion (and links) to “ambiguity” is it is used in legal doctrine.

     I don’t have the time to fish out the comments again, but they are on this thread.

     Since you are dealing with constitutional reasoning here, you’ll need to make sure you are using the words as used by the Court. See in particular Section 36B, which is where the discussion and finding of ambiguity is given.

427. Kenneth

     Interesting Lucia that the 4 liberal justices and Justice Kennedy did not invoke the ninth amendment to find a new right in this case.

     I know. It’s almost never called out at all. At a minimum, it would be nice if it was called out to help explain why rights and liberties should be read broadly rather than narrowly.

     Powers can still be read narrowly, and I think they should be.

     Don
     Sorry. One hopes he can learn the lesson anyway.

     Carrick

     Having said that, yes I definitely think bias exists for both liberal and conservative judges.

     Yep.

     As of this morning 3 more cases left. One was death penalty, one EPA one ??? Clearly, I know nothing about the one I described as ????.
     The death penalty one was very fact specific. I think it has to do with the effect of three specific injections used during the process.

428. To whomever is wondering why they didn’t use the 9th amendment, instead of the 14th:

     It’s because they are Supreme Court Justices and they know the 9th doesn’t apply. They have some dignity left.

429. Lucia:

     But it would be better if it was there in addition to a good legal argument rather than something that is more like the sort of lament that is fine in an op ed.

     Exactly. Scalia’s arguments usually amount to op-eds to me.

     Don Monfort—I tend to ignore the lawyers arguments, because they are peripheral to the main issue, which is the decision of the Court. I need to understand the reasoning of the Court to understand their judgment. But I don’t need to see the political twist put on the plaintiff’s or defendant’s arguments to understand the Court’s decision.

     I’d suggest you found Scalia’s dissent “devastating” because you like the outcome it suggests. As a point of irony, Scalia’s comments on ambiguity from the prior Supreme Court ACA case were used in the argument by Roberts.

     I find it ironical that you are willing to accept one meaning of a few words without any context, but then demand context to determine that a different reading is possible. That relates back to my comments to Kenneth on political bias I think.

     Sorry I don’t have more time for this. Have to get some writing done.

430. Lucia,
     “The document was intended to give narrow powers and broad rights. Not the other way around.”
     .
     Yes, on this we completely agree. It is why I find the constant expansion of Federal powers during my lifetime so very troubling…. that the government has more powers inevitably means the populace has fewer rights. You correctly note that certain things are very difficult for the majority to implement via politics (like outlawing the Catholic Church), and would require a constitutional amendment. That is certainly true today, but I think the historical trajectory of Federal power (and the Court’s fairly consistent acquiescence to that expanding power) have eroded the protection of rights the Constitution was designed to provide. I think that if you told people 40 years ago the Federal Government would one day require individuals to purchase health insurance they neither need nor want, you would have been considered daft. A “living constitution” is for me too much like no constitution at all.

431. I thought this was an interesting take on the question of ambiguity:

     King v. Burwell: Roberts Court is clear on Obamacare ambiguity.

     Looking at case studies where contextual ambiguity is present helps I think in at least clarifying the legal issues here. This is an example from that article which addresses the question of political bias vs legal interpretation:

     About ten months ago I posted a comment in which I suggested that Bond v. United States, a bizarre prosecution of a woman who had placed a chemical irritant on the door knob of her husband’s lover, might hold a clue to the Court’s decision in King. An issue in Bond was whether a federal chemical weapons statute, which literally read criminalized the woman’s behavior, was meant to apply to crimes of that sort. Looking at the intent behind the law, the Court’s majority, including Roberts and Kennedy held it did not. Taking the law’s language literally, Scalia, Thomas and Alito, the dissenters in King, held that it did. Bond and King are thus consistent. Read together, they make more credible the claim that King turned on different theories of statutory interpretation rather than on the justices’ political preferences.

     Given the enmity towards the ACA, I doubt the theory of statutory interpretation would have mattered in this case. Given a 180° twist in the outcome, I predict Scalia and Co. would be just happily arguing ambiguity and the liberal judges happily arguing for a strict reading of the phrase in question, without any context applied.

432. Carrick,
     “To follow up on this… they were suing to try and undermine the ACA and not to “defend the constitution”. At least be honest about why this lawsuit got filed.”
     .
     These things are not mutually exclusive. If you honestly believe (as I do) that the Court erred in their earlier decision, and that the “forced purchases” provision of the ACA is clearly unconstitutional, then suing to ‘undermine’ the ACA, for whatever reason, is not at all inconsistent with defending the constitution. I would like to see the ACA repealed and replaced with something which does not trample on individual freedoms. If Hillary self-destructs due to her duplicity and deceit, then I think there is a very good chance the ACA will be changed to eliminate the unconstitutional parts within 2 years. I will celebrate if that happens; I’ll even toast Hillary for being such a poor liar.

433. To whomever is wondering why the 9th amendment is almost never called out at all in these cases see 1985, 9th amendment case Bower vs. Hardwick and the 2003, 14th Amendment case that overturned it, Lawrence vs. Tucker. You should get some clues there.

     Or you could read up on the rationale and the purposes envisioned for the 9th vs. the 14th. Or you could just go on wondering why the 9th almost never comes into play in these cases. But it’s mostly because learned Supreme Court Justices of whatever political persuasion generally know better.

     Carrick seems to be not at all interested in addressing these questions pertinent to his comments above belittling Scalia et al:

     “I wonder if you can provide a significant number, or one example of Scalia or the other conservative Justices where they pulled a similar cheesy mind reading trick. You seem to know a lot about Scalia’s record on the court. On what do you base your criticism, of Scalia?

     I would be interested in seeing your reasons for believing that “State exchanges” can be justifiably interpreted as “State and Federal exchanges”. Have you considered the arguments of the attorneys for the plaintiffs? They can be found online.”

     And I note that Carrick nor anyone else talking about context and ambiguity have commented on the excerpt from
     Scalia’s dissent that lists 7 instances of context for State exchanges and tax credits. Anybody know of any parts of the law that mention Federal exchanges and tax subsidies? I won’t hold my breath. I guess you have to actually read the material to answer the material questions.

     That’s all the time I have for this discussion.

434. Carrick:

     I think this is because Justice Robert’s decision already contains a clear explanation of it. However, I did provide a lengthy quote of what I thought was the relevant passage together with a discussion (and links) to “ambiguity” is it is used in legal doctrine.

     It has long been accepted quotes should be used to support one’s position not to supplant it. Providing a quotation and telling people to “read it” is little better than telling people to “look it up.” Good discussions aren’t held by simply quoting what other people have said.

     Heck, people have challenged what you’ve quoted, and as far as I can see, you’ve done nothing to actually defend it. I get you might think pointing to supposed biases and potentially unexpected definitions might somehow support some point, but I have no idea why you think it would. I don’t know what logic you’re using, presumably because you’ve refused to explain it.

     You don’t have to explain your reasoning if you don’t want to, but the way your approaching this discussion is a perfect example of how not to explain what the reasoning behind a position is.

435. The EPA (AKA Mr. Obama) lost the EPA coal plant mercury emissions case (EPA was insisting on added costs of $9+ billion for expected health benefits of $4-6 million). The mercury rule has been struck, and the EPA in the future must consider both the costs and benefits of proposed rules.
     .
     Wow, a back-door effort to reduce CO2 emissions has been held unlawful. I had not given this case an ice cube’s chance in Hades. Miracles sometimes happen it seems. Maybe Roberts is trying to compensate for his foolish “the ACA is constitutional” ruling.

436. Don

     Or you could read up on the rationale and the purposes envisioned for the 9th vs. the 14th.

     I have read up on the rational and purposes.

     Or you could just go on wondering why the 9th almost never comes into play in these cases.

     Actually, I have some ideas why.

     But it’s mostly because learned Supreme Court Justices of whatever political persuasion generally know better.

     I disagree that’s why it’s not mentioned.

     Not sure what more there is to reply to those three sentences.

437. By the way lucia, my lack of response to you should be taken basically as agreement with everything you said.

438. SteveF,
     Today’s case? Gotta go hunt for that!

439. Brandon,
     Lack of response to Don? Or our most recent exchange?

440. Don M: “Exchange established by the State under 1311”
     .
     Don is correct. I just read the law sections.
     It is clear that 1311 pertains to states setting up exchanges. It is the more lengthy section.
     .
     Section 1321 is smaller and deals with the actions the “secretary” (of HHS) can take to make sure states are in compliance, which I suppose is hindered by state’s rights. So the feds carved out a right to set up the exchange or hire a non-profit organization to set up an exchange in lieu of a state’s failure to do so.
     .
     It’s clear to me that the drafters intended the states to comply, not for lots of flexibility. That came later. 1321 has both carrot (grant money for setup if applied for within 12 months,) and stick, (lack of 1311 subsidy carrot for failure to set up the exchange).
     .
     Don, do you know if this was argued? I have read many articles, including from CATO and this point that section 1311 is specified was never made. They all focused on the “state” word only.

441. Kenneth Fritsch (Comment #137316)
     June 29th, 2015 at 3:14 pm Edit This

     Interesting Lucia that the 4 liberal justices and Justice Kennedy did not invoke the ninth amendment to find a new right in this case.

     By the way, you might be interested in this article discussing the meaning and history of the 9th amendment by Randy Barnett.

442. lucia, to you. I had responded to you, and you responded to me. I just wanted to point out why I hadn’t responded again – because I had nothing more to add to your latest points.

443. Ron,

     Since you seem to be genuinely interested in having more than a cursory understanding, or misunderstanding, before you shoot your mouth off, I suggest you read the Court’s majority decision and the dissenting opinions. Audio of the arguments is on the net, also very interesting and informative. The majority has ignored the arguments of the plaintiffs, just as some here have a habit of ignoring arguments they don’t find tasty.

     I was on another computer and I don’t have links saved. But it only took me a few minutes googling to find the Court’s ruling, which also includes the dissents and the arguments audio. Scalia reams them.

     I just took a few seconds to get an audio link.

     http://www.cleveland.com/open/index.ssf/2015/03/audio_from_obamacare_oral_argu.html

     See you elsewhere, Ron.

444. Brandon,
     Thanks. I thought that the more likely meaning. I just had a little doubt due to the lapse of time.

445. Some might think that in the recent Supreme Court case dealing with gay marriage that the use of the ninth amendment might have been in direct opposition to the tenth amendment which reads:

     “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

     People have rights and are not delegated powers and thus I do not understand that part of the tenth amendment – unless it means the power of people to vote or to petition the courts.

     Many of the recent liberty findings by the Supreme Court have involved curtailing powers that the States once were considered to have. In most cases that would be in the direction of libertarian valuation of individual freedoms and that is a good thing if we can ignore that it might well weaken the concept of constitutional governing. Do these rulings avoid the use of the ninth amendment to avoid conflict with the tenth? Does the constitution, via interpretation of a majority of justices, have to do the constitutional prohibiting first in order to pass muster with the tenth amendment?

     Here is a link and excerpt that would appear to put the tenth amendment in judicial mothballs:

     https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution

     “The Tenth Amendment, which makes explicit the idea that the federal government is limited to only the powers granted in the Constitution, has been declared to be a truism by the Supreme Court. In United States v. Sprague (1931) the Supreme Court asserted that the amendment “added nothing to the [Constitution] as originally ratified.”

     States and local governments have occasionally attempted to assert exemption from various federal regulations, especially in the areas of labor and environmental controls, using the Tenth Amendment as a basis for their claim. An often-repeated quote, from United States v. Darby Lumber, 312 U.S. 100, 124 (1941), reads as follows:

     The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”

     I have had read similar comments about the ninth amendment being merely a truism in noting that there are natural rights beyond those enumerated in the Bill of Rights in the constitution – perhaps more in line with common law.

     If a constitutional process where actually formed to protect enumerated and those not enumerated individual rights and limit the powers of the government, it would require an original intent which was much more specific and detailed than our US constitution. It would also have to spell out that basic changes would require amendments and specifically address the dangers of amendments by interpretation. Unfortunately an original constitution that allowed slavery and allowed state and local governments to impose their powers in manners that were in opposition to the limits of power imposed on Federal government was not an optimum starting place.

446. Lucia, this is the link to the article that you noted in your post and I did not see.

     http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1850&context=facpub

447. Kenneth,

     I have had read similar comments about the ninth amendment being merely a truism in noting that there are natural rights beyond those enumerated in the Bill of Rights in the constitution – perhaps more in line with common law.

     If it’s a truism, then it ought to be treated as being true. Being a truisms wouldn’t mean one should treat it as null and void. It would mean: Yes, this is true. It’s obvious. So we do enforce it.

     You don’t say, “Oh. Yeah. That’s obviously true. In fact, since it’s so obvious we get to ignore it.”

     If a constitutional process where actually formed to protect enumerated and those not enumerated individual rights and limit the powers of the government, it would require an original intent which was much more specific and detailed than our US constitution.

     I’m not sure what you mean by “the constitutional process”. The constitutional process is an ongoing thing. Do you mean “the process of writing the constitution in the first place? ” Do you mean “the process for amending the constitution…”. That is laid out. We can amend it.

     ” It would also have to spell out that basic changes would require amendments and specifically address the dangers of amendments by interpretation.”
     I don’t see why the original constitution would even try to insert any discussion about the dangers (or benefits) of amendments ‘by interpretation'”.

     I think those drafting the constitution knew the document would require an interpreter and arbiter when disputes of meaning and application arose. That role is given to SCOTUS. It’s true some people consider certain rulings to somehow be “amendments by interpretation” and others disagree. But the current system is that the arbiter of whether that is an “amendement by interpretation” would be SCOTUS, and I’m pretty sure that were each ruling required to be accompanied by their diagnosis of whether their ruling was “an amendment by interpretation”, each ruling touching on constitutiona interpretation would contain a decree that said the ruling was not any sort of “amendment” but rather just an interpretation.

     That is, I think if you asked the majority in the “Raisins taking case” whether their ruling was “amendment by interpretation” they’d say no. If you asked the ones in Oberfgfell, they’d also say “no”.

     What remedy did the founders give us? Amendment through the rather onerous process of proposing, getting it slated, having states vote and so on did forsee that people might either want change or disagree with the interpretation and they could change it. That process takes the final say out of the hands of SCOTUS. It’s onerous, but we’ve done it a fair number of times.

448. Kenneth,
     Sorry I failed to insert the link! I thought if you’d missed it, you’d be interested.

     It’s also possible to find books that report discussion on the floor of the first congress. There was lots of discussion of the meaning of the amendments there. The thing is, you need to be aware it was called the “11th” amendment during those discussions because two proposed amendments failed to pass.

449. Lucia, I think the original constitution was written with much compromise in order to obtain ratification by the states. Add to that weakness the current dominant intellectual thinking that the constitution is a hinderance to handing more powers to government and gladly accepting interpretation as a means of overcoming those restrictions and you have a constitutional process that fails to hold in check government power. Worst the reference to constitutional government provides cover for the ever increasing reach of big government.

450. The first case for polygamist not to be denied “life, liberty and property,” under equal protection of the law filed for a marriage license to his second wife in Montana Tuesday here.

451. This entire tawdry episode of selling and manipulating the ACA legislation by (1) the president of the United States lying about coverage, (2) supporters in congress and elsewhere using mandate penalties instead of the taxes that the United States Supreme Court had to (mis)construe to make constitutional, (3) the misleading and vague requirements for subsidies with a state established market place in the finished law from which once again the Supreme Court had to (mis)construe intent and (4) the numerous adjustments/ changes made in the execution of the law certainly does not fit the image of government actions we find in Civics 101.

     The observation that few in the main stream media or from the intelligentsia appear disturbed by any of these less than honest maneuvers is telling as to where our views of the means justifying the ends have sunk.

452. lucia –

     A bit late to this discussion, but why did you go on and on about the “right to marriage”. There is no right to marriage in the constitution.

453. Amendment IX

     The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

     In other words, just because it isn’t in the Constitution doesn’t mean it isn’t a right.

454. DeWitt –

     You obviously don’t understand what “retained by the people” means.

455. Better than you, apparently.

456. DeWitt –

     OK – what does “retained by the people” mean?

457. Nope. You’re the one that claims I’m wrong. Prove it.

458. It grants the people the right to self-government as long as what they legislate does not interfere with the enumerated rights. The state of Rhode Island could grant every male over 50 a red sports car, and if you are a male over 50 living in Rhode Island that is your right. It is not a constitutional right, but it is a ninth amendment right.

     Some states voted for homosexual marriage, so that becomes a right, under the ninth amendment. It does not therefore become a constitutional right for the simple reason that there is nothing remotely in the Constitution about marriage.

     A state could decide that they don’t want to have any marriage laws at all, and that is perfectly constitutional. Someone living in such a state could not come along and say “I have a right to get married, so you have to give me a marriage license”.

459. Tom, DeWitt,

     …There is, however, a very different perception of the Ninth Amendment among some modern scholars. Generally of a libertarian point of view, this group of originalists, such as Randy Barnett, have argued that the Ninth Amendment does indeed point to a set of judicially enforceable unenumerated rights, often calling them “natural rights,” rights that no government can legitimately deny. They argue that the Framers intended that such rights be protected, and they point out that the amendment has only become relevant recently because of its application to the states through the Fourteenth Amendment and because of the great expansion of government intrusion at all levels into the lives of individuals.

     These scholars point to the acknowledged fact that, although the Constitution limited Congress to a set of enumerated powers, the means available to Congress, through the Necessary and Proper Clause, could permit it to trench upon the rights of the people. Madison, in particular, saw the danger, and it was one of the main reasons he changed his mind and vigorously pressed for a bill of rights in the First Congress. Madison placed the text of what would be the Ninth Amendment at the end of the list of specific rights in order to demonstrate that those rights were but a partial listing of all the rights retained by the people against governmental infringement. In the same letter (quoted earlier) from Madison to Washington, which the traditionalists believe supports their view, Barnett asserts that Madison was distinguishing between the mechanisms of limiting powers and of securing rights to the same end. Barnett contends that the same understanding was repeated in the work of an early interpreter of the Constitution, St. George Tucker….

     from here.

     There are different interpretations.

     [edit: I meant from here: http://www.heritage.org/constitution/#!/amendments/9/essays/162/rights-retained-by-the-people]

460. If Lucia’s claim is correct, that there is a “right to marriage” whether via ninth amendment or by some other, that would mean that the Supreme Court could compel every state to have marriage laws in place, because every citizen has a “right to marriage”. This is ludicrous. Marriage law was always left to the states.

461. DeWitt –

     Another way of saying this is that a ninth amendment right is granted “by the people”, i.e. through the process of self-government. An enumerated right is granted by the Constitution, even if a large majority of citizens object to the right.

462. Tom,

     I don’t think that the concept of a ‘natural right’ to get married is ludicrous.

     Do I understand you correctly in thinking your position is that rights are defined solely by:
     1. The Constitution
     2. By States
     and that a right must be defined by a State or by the Constitution to be a right?

463. Mark –

     Marriage is an enforced social arrangement that has been shown over thousands of years to lead to a stable society. It is ludicrous to think of it as a “right” in the sense that people think of rights now. Marriage was always understood to be a limitation of rights, i.e. you have a natural right to engage in sexual relations with whomever you want, but society chooses to restrict that right to only one person. That is why, until recently, adultery was subject to punishment.

     Scalia has by far the keenest legal mind on the court, but he has engaged in apparently undignified, mocking language to point out how absurd the assumptions are the underlie the reasoning of, say, Anthony Kennedy.

     Kennedy, completely ignoring all historical background, finds marriage to be an enumerated right by which the Federal government bestows “dignity” and obviates “loneliness”. In reality, it is the mechanism by which sexual activity is restrained in order to produce good societal outcomes. As such, it is clearly the people that should decide what it is and isn’t.

464. Tom,

     Thanks for your response. In some respects, sure. Marriage is a limitation of rights. I thought it was understood that we were talking about ‘the right for two people who voluntarily choose to be married to be married’ when we were talking about ‘marriage rights’ in this context. This has not always been universally recognized throughout history, to be sure, but I don’t think that makes any difference here.

     I’m still unclear regarding my original question, but perhaps it doesn’t matter.

     FWIW, Kennedy’s prose didn’t do a thing for me either. 🙂

465. mark –

     Sorry I didn’t answer your question. Yes, I think that ninth amendment rights are those granted by votes of a majority of citizens. Enumerated rights are those granted by the Constitution even if opposed by a majority of citizens.

     So, if the people of a state want to establish homosexual marriage I don’t agree, but the majority can so decide.

     What the Court just held was that homosexual marriage is a right in some way demanded by the Constitution, so one that can’t be taken away by majority vote.

466. Thanks Tom.

467. Can the state arbitrarily refuse to issue a marriage license? No. And the number specific, rather than arbitrary, reasons the state can refuse to issue a license is decreasing. Therefore a right to get married exists.

     IMO, it was a stupid question and I gave it the attention it deserved.

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