Tag: King v. Burwell

Why Hillary’s Lies Don’t Matter


shutterstock_287370743The only thing that seems to be multiplying faster than the national debt, Donald Trump’s audacious comments, or the left-wing punditry’s gasps of horror over the death of what was apparently the globe’s favorite mammal, is Hillary Clinton’s accumulation of prevarications about … well, nearly everything she’s ever said for the past generation or so.

Hillary’s claims about never having been served a subpoena and maintaining only one device for her emails were lies. Her claim that Colin Powell did the same thing she did — and that she wasn’t required to turn over anything to the proper channels — was another whopper. Finally — and this is the kicker — her insistence that people “should and do trust me” should have generated tears of laughter from pollsters. It was for good reason that the late William Safire once claimed that Hillary Clinton was a “congenital liar.” And that was almost 20 years ago. Matters have not changed at all since that time — and arguably have gotten worse.

The question is whether or not her pathological lying makes any difference to her chances to become the next president. The most likely answer is, tragically: no, not a bit. Why not? Because we live in an era saturated by habitual lying, brazen lawlessness, and spectacular hoaxes.

Silver Linings of King v. Burwell


SCOTUSCloudsConvention claims the Supreme Court’s King v. Burwell decision is a loss for conservatives. But Democrats shouldn’t celebrate. Politically, it’s a win for the Right, skirting potential harm in terms of legal precedent as well as improving positioning for 2016.

Many viewed the chief precedential purpose of the case as the establishment of clear limits on administrative overreach. The potential downside was a further removal of those limits. Accordingly, the initial announcement of the ruling led to collective concern that the court had followed the court of appeals and expanded “Chevron deference,” the controversial doctrine that essentially holds that courts should defer to executive branch interpretation of statues, even if such interpretations effectively revise the law as written by Congress.

But the court didn’t sanction such administrative overreach in the King ruling. Instead it said that when Congress wrote “state” it really meant “state or federal.” That is, it said the IRS was correctly interpreting the law, rather than deferring to a reinterpretation.

Process Matters


imagesOne of the differences between the Right and the Left is that the Left is concerned only about outcomes while the Right is concerned about outcomes and process.

When you think about it, all the major conflicts in America’s history have been more about process than the underlying issue. The American colonist’s slogan was not “No Taxation”; it was “No Taxation Without Representation,” which is fundamentally about process. Even when Parliament repealed the Stamp Act, the colonists weren’t satisfied because they had no say in the matter and thought — correctly — that the repeal was just as arbitrary as the original act. Most of the grievances leveled against King George in the Declaration of Independence were about the arbitrary exercise of royal power. The American Revolution was fought over process; the ability for free men to govern themselves. While the underlying moral cause of the Civil War was slavery, the proximate cause was about the process of laws and policies concering slavery that lead to secession.

What is the Constitution of the United States other than a document describing the process by which the people will govern  themselves? When the Supreme Court issues rulings like they did last week, they usurp this most fundamental of all rights. The Left will never understand our concern with process, which they consider to be a minor detail on the road to utopian social justice. What they fail to understand is that someday the arbitrary exercise of power may go against them. By then it will be too late — and a country of the people, by the people, for the people will have perished from the earth.

On Judicial Incoherence


In Case of TyrannyThe primary difficulty is in knowing where to start. A consistent run of luck continues to have me in the driver’s seat of an 18-wheeler when news breaks that our philosopher-kings on the Supreme Court have hurled yet another thunder bolt toward the benighted masses for the purpose of jolting us from our fixed creeds and established truths, directing us to trade in the accumulated wisdom of human experience for the latest epiphany of a gaggle of lawyers.

I was somewhere between Memphis and Little Rock, navigating potholes that Evel Knievel would have used ramps to cross, when I learned that Chief Justice Roberts’ restless mind had pondered the words, “established by the State,” and discovered that they actually mean, “not established by the State.” “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” explained Roberts. Uh huh. Well, yes, and Congress passed the National Prohibition Act of 1919 to ban the sale of alcoholic beverages, not to midwife organized crime, but it is not the legal prerogative of the Supreme Court to protect the legislature from the effects of its own laws.

Besides, if the Chief Justice wanted to deduce the intent of the Affordable Care Act in this regard, he had merely to consult the words of its architect, Jonathan Gruber, who said in 2012, “[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. …I hope that’s a blatant enough political reality that states will get their act together…” But robed demigods are not interested in the intent or the plain meaning of the words, “established by the state.” Instead, Roberts’ focus was fixed on salvaging what Mark Steyn calls the “push-me-pull-you” monstrosity of Obamacare rather than his solemn duty to determine the constitutionality of the law as written. So he engaged in intellectual high jinks, literally rewriting the law (as he previously did when changing “penalty” to “tax”), and performed such mental gymnastics as required to affirm for the second time your fundamental right to be subservient to the federal government in matters effecting your health and, indeed, your life and death. Thus passeth another late June morning in post-constitutional America.

SCOTUS and the Age of the Imperial Judiciary


In the Philadelphia Inquirer, my hometown paper, I critique the Supreme Court’s decisions on gay marriage and Obamacare. As a policy matter, I supported gay marriage, but the Constitution reserves the question for the voters of each state, not the judicial process. The weakness of the Court’s reasoning — is it Due Process?  Is it Equal Protection? — suggests the decision’s political nature. Many may celebrate the result, but they should not welcome the steady erosion of democratic self-government.

Indeed, the political nature of Obergefell becomes readily apparent in the contradictory, vague logic of the majority opinion by Justice Anthony Kennedy. The holding fits within none of the established precedents governing the due-process and equal-protection clauses. Kennedy says marriage is a fundamental right, but he admits that American society had long understood that right to be only between a man and a woman. He suggests that the right to equality may require gay marriage, but gays do not receive the heightened constitutional protection reserved for racial and religious minorities. Kennedy could have recognized that gays should receive the same protections against discrimination as gender, but he could not because recognizing sexual orientation as a protected class might open up a Pandora’s box of new constitutional claims by every self-defined group.

The “SCOTUScare” Travesty


shutterstock_270314624I hope to get to the SSM decision in a later post, but for now let me recap the result in yesterday’s decision in King v. Burwell: Obama 1, Rule of Law 0. I have a slightly longer analysis over at City Journal, but here’s the gist.

By a margin of 6-to-3, the Court upheld an IRS rule that supposedly implements the Affordable Care Act — Obamacare — by extending health insurance tax credits to taxpayers in states that have no health insurance exchange of their own, but rather rely on the federal healthcare.gov exchange. The problem with this rule, as the plaintiffs in King pointed out, is that it flatly contradicts the ACA. The statute clearly limits tax credits to taxpayers who use state insurance exchanges, not the federal one. A majority of the Court, therefore, simply rewrote the ACA.

This should have been an easy case. Obamacare provides two different mechanisms for establishing a health insurance exchange. A state can establish an exchange under Section 1311 of the Act. And in states that “fail” to establish an exchange, the secretary of Health and Human Services must establish an exchange under Section 1321. When discussing eligibility for those all-important tax credits, the ACA says that they are available only to taxpayers who enroll in a qualified health plan “through an Exchange established by the State.”

The Libertarian Podcast: The Obamacare Decision


If yesterday’s appearance by Richard Epstein on the Ricochet Podcast wasn’t enough for you, we’ve got a special episode of The Libertarian podcast focused entirely on the court’s ruling yesterday in the Obamacare case. We cover some different ground than the boys did on the flagship, scrutinizing the analytical methods of Chief Justice Roberts, looking at the threat to the opinions’ legitimacy coming from Justice Scalia’s dissent, and trying to place this ruling in the broader historical context of modern Supreme Court jurisprudence. You can listen in below or subscribe to The Libertarian through iTunes or your favorite podcast service.

Supreme Court Upholds Obamacare Subsidies


shutterstock_103670531From the Associated Press:

WASHINGTON (AP) — The Supreme Court on Thursday upheld the nationwide tax subsidies underpinning President Barack Obama’s health care overhaul, rejecting a major challenge to the landmark law in a ruling that preserves health insurance for millions of Americans.

The justices said in a 6-3 ruling that the subsidies that 8.7 million people currently receive to make insurance affordable do not depend on where they live, as opponents contended.

Bracing for King v. Burwell


Obama_signs_health_care-20100323By the end of this week, we’ll have a Supreme Court decision on King v. Burwell, the latest “challenge to Obamacare,” as the headlines put it. The first thing you need to know is that the headlines are all wrong: King v. Burwell is not a “challenge” to Obamacare, and the plaintiffs do not seek to overturn a single sentence of the Affordable Care Act. Rather, they are challenging an IRS rule that is blatantly unfaithful to the ACA (but happens to be politically expedient for the administration).

Quick background: one section of the ACA says that “States” shall establish “Exchanges” to regulate the health insurance market within their borders (§1311). Another section says — for states that “fail” to establish Exchanges — the Secretary of HHS can establish a federal Exchange (§1321). And then, in another section, the ACA says that low-income citizens can be eligible for tax credits if they purchase health insurance “through an Exchange established by the State” (§36B).

The whole point of this structure was to pressure the states into establishing exchanges. States that failed to do so would face the wrath of voters who didn’t get their subsidies. The administration and its congressional allies assumed that the states would knuckle-under and create exchanges. In the end, 36 states did not set up exchanges.

When You Start Making Maureen Dowd Look Classy By Comparison…


BarnicleI’ve never much liked the “you won’t believe what the liberal media just said” game. Don’t get me wrong: I’m glad other people are doing it. It’s just never been a big part of my portfolio. It seems a little too easy. If — like me and, I’d imagine, many of our readers — you find most of the Left’s more prominent talking heads these days to be intellectual flyweights, it rarely feels worth the candle.

That said, I do harbor a longstanding vendetta against pundits who feel no compunction about shoehorning their ideology into other people’s tragedies. Last year, for instance, I posted about Paul Krugman trying to score political points off of Tom Coburn’s cancer, as well as Maureen Dowd’s shameless attempt to get a column on Hillary Clinton out of Robin Williams’ suicide, both efforts I found utterly tasteless. Well, MSNBC’s Mike Barnicle — who, the few times I’ve seen him on TV, has struck me as crazy but not MSNBC crazy — rounded out the triumvirate this weekend. Barnicle’s newest Daily Beast column starts out as a seemingly thoughtful reflection on last week’s shooting in Charleston:

A week filled with terror and trauma carried out by a sociopath, a 21-year-old racist named Dylann Roof seemed to conclude with a prayer in the form of the simple, eloquent words of Nadine Collier, whose 70-year-old mother, Ethel Lance, was one of nine dead among the pews of the Emmanuel African Methodist Church Wednesday night in Charleston, S.C.: “You took something very precious away from me,” Ms. Collier said to the killer in a courtroom where a bond hearing was held for Roof. “I will never talk to her ever again. I will never be able to hold her again. But I forgive you. And have mercy on your soul.”

ObamaCare Subsidies Are So Important the Government Forgot to Keep Track of Them


Inside the Centers for Medicare and Medicaid Services

Last week, I filed a blog post about the looming Supreme Court decision on the case King v. Burwell. The case will determine the legality of billions of dollars worth of subsidies handed out to customers on the federal health insurance exchange under the Affordable Care Act (ACA). In short, I argued that we shouldn’t weep if the subsidies are struck down. By their very nature, subsidies put upward pressure on prices because they essentially guarantee a level of revenue for the subsidized industry. The higher education system was the example I offered, where we’ve seen tuition prices rise faster than any other sector of the economy, even outpacing healthcare inflation. Ridding the insurance market of subsidies would therefore actually be a step forward towards “affordable” care in the long term, despite some undeniable short-term disruptions that would result.

The Disappearance of Jonathan Gruber


jonathan_gruberNo one lectures the United States Supreme Court quite like the New York Times. Their penchant for talking down to (face it) the conservative members of the court has transcended numerous personnel changes at the paper. And when it comes to the issues that define the twilight of modern liberalism, the Times does not obsess (as other, lesser news organizations might) about the distinction between news and opinion pages

A recent article by Robert Pear in the Politics section provides a priceless example. The Times recognizes, of course, that Obamacare represents the high water mark of statist ideology in the past 100 years of the U.S. Congress and that, should the law be forced back to Capitol Hill for repair of one sort or another, it has no chance at survival. As I have written elsewhere, the liberal cognoscenti view their task as pushing forward the great ratchet of history to lift us, the barbarians, out of chaos and onto the plateau of utopia.

Nothing is more agonizing to them than to see the ratchet slip a hard-won notch.

What Justice Kennedy Got Wrong in the Obamacare Oral Arguments


In my new piece for Defining Ideas from the Hoover Institution, I’m taking readers through the Supreme Court’s oral arguments last week in the case of King v. Burwell, which will decide the fate of Obamacare subsidies in states that are serviced by a federal health insurance exchange. (I also covered this topic at length in Libertarian podcast with Troy Senik last week.) As I note there, perhaps the most inventive (and alarming) argument of the day came courtesy of Justice Anthony Kennedy:

In one sense the most novel argument of the day was an ill-thought-out suggestion by Justice Anthony Kennedy that the ACA might be unconstitutional if it were read to deny subsidies to health care policies purchased on the federal exchanges. Justice Kennedy never bothered to state whether his suggestion would require invalidation of the entire statute, or the creation of a massive subsidy that Congress itself had never authorized. There is, fortunately, no need to choose between these two unappetizing alternatives. Kennedy tossed off an argument that no one ever raised throughout the litigation: the denial of the federal subsidies would coerce individual states to set up exchanges in order to benefit their citizens.