Archive for the ‘Judiciary’ Category
Judge Andrew Hanen refused to lift his temporary hold on President Obama’s executive action, saying that the DOJ hasn’t “shown any credible reason for why this Directive necessitates immediate implementation.” Here are the arguments both sides are making:
The coalition of states leading the challenge filed its lawsuit to overturn Obama’s executive actions, which would prevent as many as 5 million people who are in the U.S. illegally from being deported. The states, led by Texas, argue that the action is unconstitutional and would force them to invest more in law enforcement, health care and education. The injunction is intended to stall Obama’s actions while the lawsuit progresses through the courts.
Justice Department attorneys argue that keeping the temporary hold harms “the interests of the public and of third parties who will be deprived of significant law enforcement and humanitarian benefits of prompt implementation” of the president’s immigration action.
First, it isn’t likely that the Obama administration will win this fight. If I were putting out odds, I’d say the administration’s odds of winning was less than 15%. That’s enough to stop the DOJ’s request dead in its tracks. Second, Judge Hanen’s statement that the DOJ hasn’t “shown any credible reason for why this Directive necessitates immediate implementation” is a rather chilly statement. (Ed Morrissey’s post explains why the relationship between Judge Hanen and the DOJ is frosty.)
Hanen issued his initial injunction believing that neither of those orders had taken effect. About a month later, the Justice Department confirmed that more than 108,000 people had already received three-year reprieves from deportation and work permits, but DOJ attorneys insisted the moves were made under 2012 guidelines that weren’t blocked by the injunction. The DOJ apologized for any confusion, but Hanen seemed unconvinced during a hearing last month and threatened to sanction the attorneys.
He wrote Tuesday that while the federal government had been “misleading” on the subject, he would not immediately apply sanctions against the government, saying to do so would not be “in the interests of justice or in the best interest of this country” because the issue was of national importance and the outcome will affect millions of people.
“The parties’ arguments should be decided on their relative merits according to the law, not clouded by outside allegations that may or may not bear on the ultimate issues in this lawsuit,” Hanen wrote.
I’m not a lawyer but I can’t imagine it’s a good thing for a judge to say that “the federal government had been ‘misleading'” the judge. I’ve got to think that the appellate court won’t be impressed with the DOJ’s actions.
I’d be very surprised if the Supreme Court doesn’t a) hear this case and b) rule against the administration.
Judge Doty’s 16 page ruling in the NFLPA’s lawsuit on Adrian Peterson’s behalf against the NFL contains some bombshell statements. This part of Judge Doty’s ruling is particularly stinging:
Moreover, Henderson’s conclusion that the New Policy is consistent with the previous Policy is contradicted by the Commissioner’s own statements in which he acknowledged that the New Policy included “changes” to the Policy. See, e.g., id. Ex. 65, at 1 (“I made a mistake. I’m not satisfied with the process we went through, I’m not satisfied with the conclusions. And that’s why we came out last month and said: we’re going to make changes to our policies. We made changes to our discipline.”); see also id. Ex. 35, at 99:21-100:15.
At the heart of the NFL’s defense was that the Commissioner had great latitude in determining Adrian Peterson’s punishment.
Judge Doty’s ruling didn’t just criticize Commissioner Goodell. It criticized Henderson, too:
The NFLPA next argues that Henderson exceeded his authority by adjudicating the hypothetical question of whether Peterson’s discipline could be sustained under the previous Policy. The NFL responds that the NFLPA submitted that issue to Henderson. The record belies the NFL’s argument. The NFLPA submitted to Henderson “the pure legal issue” of whether the New Policy could be applied retroactively. NFLPA Ex. 122, 21:22-22:24; see also id. Ex. 20, at 4. Nothing in the record supports a finding that the NFLPA asked Henderson to determine whether the discipline imposed was consistent with the previous Policy.
In other words, Harold Henderson tried justifying his decision by saying that the NFLPA asked him to. That isn’t the only time where Judge Doty criticized the NFL’s arbitrator:
Henderson was an NFL executive for nearly two decades and apparently continues on in a part-time capacity, earning $2.5 million in compensation from the NFL since 2009.
This footnote was found at the bottom of Page 8 of Judge Doty’s ruling. This information, by itself, isn’t damning. The fact that Henderson’s ruling sounded like the NFL’s press release, coupled with his less-than-impartial ruling, however, all but state explicitly that Henderson was Commissioner’s self-appointed hatchet man against Adrian Peterson.
ProFootballTalk stated that the NFL hasn’t had a good year in the courts. That’s what happens when a tyrant thinks he has the authority to make the rules up as he goes. That’s what third world dictators get away with. High profile CEOs of major corporations don’t get away with that very often.
This NYTimes op-ed is long on accusations but short on constitutional logic. Here’s an example of that:
Judge Hanen said the costs were the result of the federal government’s “failure to secure the borders,” and he noted the millions of dollars that states spend to educate “each illegal alien child,” even though, as he knows, the Constitution already requires states to provide that education. He danced around the fundamental point, as the Supreme Court reiterated as recently as 2012, that setting immigration policy is the prerogative of the federal government, not the states.
Notice that the NYTimes tip-toed around the fact that Congress writes immigration laws and that a president only signs immigration bills he or she agrees with into law. The NYTimes didn’t take time to define what each branch’s role is in writing and implementing new laws.
That’s the procedure for all laws, not just immigration laws. Presumably, a constitutional law scholar like President Obama knows the drill.
This is typical liberal BS:
However the appellate courts come down on the case, Mr. Obama is finding himself once again dealing with a familiar sort of Republican intransigence. With his humane and realistic immigration policy, he is trying to tackle a huge and long-running national problem: what to do with more than 11 million undocumented people who are living, working and raising families here, when the government cannot possibly apprehend or deport all of them.
This is more proof that President Obama isn’t interested in negotiating with people who don’t reflexively agree with him. Notice that the NYTimes doesn’t criticize President Obama for being intransigent. That criticism is reserved exclusively for Republicans.
Notice that the NYTimes didn’t criticize President Obama for all the times President Obama deployed a my-way-or-the-highway mindset, starting with his meeting with Republicans about his stimulus bill. That’s when Republicans offered a number of improvements to the bill, only to be told by President Obama that “We won.” That’s intransigence personified.
Now Judge Hanen has reminded President Obama that presidents aren’t emperors. President Obama’s reaction to that reminder is to lash out, albeit in a calm tone of voice, that Judge Hanen’s ruling is standing in his way.
The Founding Fathers built the Constitution the way that they did to guarantee that both political branches needed to negotiate with each other. That’s the last thing President Obama wants. President Obama gave an entire series of speeches built around the refrain that “We can’t wait.” Thankfully, the judiciary didn’t let this president do everything he and his Democratic Party allies wanted to do.
Finally, this administration isn’t supposedly lawless. The Supreme Court has ruled unanimously against President Obama 13 straight times on issues of executive overreach. That’s proven lawlessness. That isn’t imagined lawlessness.
Sharyl Attkisson’s latest post highlights a disturbing pattern of behavior within the federal government:
After the appeal, the F.B.I. told me that its original claim (that it had no information about me) was a mistake and the agency promised to reprocess it. More time passed, and the F.B.I. sent me a few pages of cryptic material that didn’t include most of what I know exists (let alone the material of which I may not be aware).
I again told the F.B.I. that I was certain more information existed, including, for example, material from the F.B.I. background check conducted on me before I was granted a White House pass as a CBS News correspondent. Eventually, the F.B.I. notified me by letter that there was a lot of material it could send me, but I would have to agree, in advance, to pay for the costs of producing it and specify my preference between having it delivered via paper or on a CD. I answered yes, I would pay, and that I wanted the material on DVD.
I didn’t hear back from them.
Ms. Attkisson isn’t optimistic this will be resolved quickly:
It’s one of countless examples in the past decade of federal agencies thumbing their noses at Freedom of Information requests, whether filed by member of the public or news media. After all, there are no repercussions for their unlawful behavior. The information requests often fall into a bottomless pit and remain unanswered for months, even years, past their legal deadline. If and when they are answered, the responses are often incomplete, containing so many unsupported redactions and withholdings as to make them pointless.
Here’s a radical thought. Let’s have Congress write legislation that imposes a harsh penalty on the head of the noncompliant, secretive agency. Unresponsive agency management personnel should pay with their employment.
An agency’s failure to produce the information within 45 days should count as a first warning against that agency’s CEO. If the FOIA request isn’t filled in its entirety within 60 days, the agency chief should be notified that failure to comply will trigger an independent investigation into that agency by a special prosecutor. If the agency hasn’t turned over all documents requested by the citizen within 75 days, the special prosecutor will impanel a federal grand jury with the right to prosecute that agency’s chief for withholding that information.
The only charge available for that grand jury is obstruction, which would be a felony.
It’s time to tell the federal government that being unresponsive is unacceptable. The only way that’ll happen is if agency chiefs pay a price for their inaction.
This article shows that progressives’ definition of justice isn’t predicated on verifiable facts. It’s proof that Democrats’ definition of justice is mostly about perceptions and allegations.
The trouble is that the United States, for far longer than it has been a “nation of laws”, has been a nation of injustice. And in the absence of basic justice such laws can amount to little more than codified tyranny. When a white cop, Darren Wilson, shoots an unarmed black teenager, Michael Brown, dead and then is not indicted, the contradiction is glaring. For a world where it is not only legal for people to shoot you dead while you walk down the street, but where they can do so in the name of the law, is one in which some feel they have nothing to lose.
It’s offensive that this liberal idiot would attempt to portray Brown as “walk[ing] down the street.” Forensic evidence shows that Brown a) robbed a convenience store, b) beat up the store manager and c) attacked Officer Wilson in Wilson’s patrol car.
Saying that that’s the equivalent of walking down the street is insulting in its dishonesty.
It is through this chasm, between the official claim to an impartial legal system and the reality of endemic racial injustice, that Wilson made his escape, with the flames of Ferguson in hot pursuit. For Wilson was not exonerated. The grand jury decided there was not even “probable cause” to put him on trial. As the website FiveThirtyEight points out, this is very rare. The Bureau of Justice reveals that in 2010 US attorneys prosecuted 162,000 federal cases, and grand juries declined to return an indictment in just 11.
What isn’t said is that these types of cases rarely get to a grand jury. In most instances, the officer would’ve been cleared because Michael Brown attacked Officer Wilson. Forensic evidence showed Brown’s fingerprints and DNA on Officer Wilson’s gun. The only time that could’ve happened was when Brown attempted to attack Officer Wilson in Officer Wilson’s patrol car.
It’s time for progressives to stop throwing accusations around so recklessly.
This post about Richard Davenport’s termination of Coach Todd Hoffner highlights the timeline of Mankato State University, Mankato’s investigation that ultimately led to Coach Hoffner’s termination. This post will highlight the OLA’s report of what happened that triggered the investigation:
On August 10, 2012, Coach Hoffner asked a MSU, Mankato information technology staff person to examine his cell phone because it was not working properly. The staff person found a video recording of naked children on the phone and brought it to the attention of MSU, Mankato officials, who turned the cell phone over to the Mankato police. Coach Hoffner was arrested at his home on August 21, 2012. The following day, the Blue Earth County Attorney filed charges against Todd Hoffner alleging that the images of the children were pornographic and criminal.
After reviewing the images, other evidence, and considering the applicable laws, on November 30, 2012, a Blue Earth County District Court Judge dismissed the criminal charges for lack of “probable cause.” In her order, the judge noted that the children in the video were Todd Hoffner’s children, who asked their father to record a “performance” after they emerged from a bath. The judge went on to say
that the context of the video showed that the “children’s performance was not intended to be erotic or pornographic in nature.” She also noted that the children acted silly, playful, and age appropriate.
Despite the fact that charges were dismissed by a Blue Earth County district court judge, President Davenport proceeded with his investigation.
It’s worth highlighting that the judge ruled that “the children acted silly, playful and age appropriate.”
Here’s another situation that might put President Davenport into a delicate situation:
President Davenport also told us that he responded to the allegations against Coach Hoffner with the Pennsylvania State University (Penn State) football sex scandal in mind. In that case, a former Penn State assistant football coach, Jerry Sandusky, was accused of sexually abusing children for more than a decade. In addition, university officials were accused of failing to respond adequately when concerns about the coach were brought to their attention.
The Penn State situation was dramatically different from what happened in Mankato. Here’s one of the report’s footnotes:
In June 2012, former Pennsylvania State University (Penn State) assistant football coach Jerry Sandusky was found guilty of 45 counts of child sexual abuse and, in October 2012, he was sentenced to at least 30 years in prison. The National Collegiate Athletic Association (NCAA) imposed severe sanctions against the Penn State football program, including: a $60 million fine to create an endowment to prevent child sexual abuse and help child abuse victims; barring Penn State’s football program from post-season play for four years; and vacating the team’s wins from 1998-2011. In addition, former Penn State officials, President Graham Spanier, Senior VP for Finance and Business Gary Schultz, and Athletic Director Tim Curley were indicted for endangering the welfare of children, conspiracy, obstruction of justice, and perjury. They are awaiting trial.
In the Penn State case, senior members of the administration, including Penn State’s president were accused of lying to investigators and for trying to hide Jerry Sandusky’s actions. Further, they “were indicted “for endangering the welfare of children…”
The underlying allegations included this:
Victims also commonly reported that Sandusky would place his hand on their thighs or inside the waistband of their underpants. Two recounted oral sex with Sandusky, sometimes culminating in his ejaculation.
That’s totally different than the situation at Mankato. First, President Davenport didn’t attempt to cover anything up. Second, he wasn’t accused of lying to investigators. Those things alone differentiate this situation from the Penn State scandal.
I understand that administrators nationwide worried about being accused of covering up a pervert’s lengthy history of child sex abuse. That’s appropriate and justified. What isn’t appropriate or justified is conflating everything into another Penn State.
If Minnesota State University, Mankato President Richard Davenport is in a tight spot, it’s a spot of his own making. According to the OLA’s report into Todd Hoffner’s termination, we now know that President Davenport notified Coach Hoffner that Davenport had made a “tentative decision” to terminate Coach Hoffner’s employment at MSU, Mankato in a letter dated October 18, 2012. That isn’t the only information we got from the report. Here’s more:
At President Davenport’s direction, MSU, Mankato initiated an investigation of Coach Hoffner before the Blue Earth County District Court process was concluded, and the criminal charges were dismissed.
This information provides a timeline of events:
The investigator provided President Davenport with an initial report on September 7, 2012; addendum I on September 19, 2012; and addendum II on November 1, 2012.
Later in the report, it adds this information:
Based on the results from the MSU, Mankato internal investigation, President Davenport notified Coach Hoffner in a letter dated October 18, 2012, that President Davenport had made a “tentative decision” to terminate Coach Hoffner’s employment at MSU, Mankato. On November 30, 2012, a Blue Earth District Court Judge dismissed the criminal charges against Coach Hoffner.
If you put these dates together, President Davenport was given the initial report on Sept. 7, 2012 and the initial addendum on Sept. 19, 2012. After receiving those parts of the report, President Davenport waited until Oct. 18, 2012 to notify Coach Hoffner that President Davenport had made a tentative decision to fire Coach Hoffner. Further, a Blue Earth district court judge dismissed the criminal charges against Coach Hoffner.
Finally, we learned this:
In a letter dated May 6, 2013, President Davenport notified Todd Hoffner that his employment at MSU, Mankato would terminate at the end of the day.
That means President Davenport didn’t officially terminate Coach Hoffner’s employment until 6 months after he first notified Hoffner that he’d tentatively decided his fate.
Jeffrey Toobin’s article isn’t factually accurate:
As Congress originally conceived it, the A.C.A. called for each state to set up its own exchange with a Web site, which most of the blue states and a few of the red ones did. But two dozen of them did not, so the Obama Administration established a federal counterpart, centered on the Web site healthcare.gov.
First, three dozen states didn’t create state-run exchanges, not two. Next, HealthCare.gov was created in the same legislation that authorized states to build their exchanges. The Obama administration didn’t create HealthCare.gov after they saw states refuse to create state-run exchanges.
Then there’s this:
According to the D.C. Circuit majority, one line in the text of the A.C.A. makes the federal exchange invalid. The law says that subsidies are to be available through exchanges that are “established by a State,” without an explicit authorization of federal exchanges. Thus, according to the judges in the majority, five million or so people who have used the federal exchange to buy health insurance must now lose it.
That’s another inaccurate statement. It isn’t just that judges said people who bought insurance through HealthCare.gov weren’t eligible for subsidies. The US House, the US Senate and President Obama said it, too.
If the US House, the US Senate and President Obama wanted everyone to get these subsidies, they could’ve written it into the ACA’s language. What’s really at play here is that the US House, the US Senate and President Obama wanted everyone to be eligible for those subsidies but they also understood that they’d need a hammer to hold over red states to force them into creating state-run exchanges.
The US House, the US Senate and President Obama calculated that they could force red states into creating state-run exchanges by making it politically unpopular to not create state-run exchanges.
The problem with the Democrats’ bluff is that red states called the Democrats’ bluff. They essentially said that they weren’t worried about not creating a state-run exchange in their states.
Next, Toobin constructs a strawman argument:
Katzmann writes that “excluding legislative history is just as likely to expand a judge’s discretion as reduce it…. When a statute is ambiguous, barring legislative history leaves a judge only with words that could be interpreted in a variety of ways without contextual guidance as to what legislators may have thought. Lacking such guidance increases the probability that a judge will construe a law in a manner that the legislators did not intend.”
There’s nothing abiguous about the legislative language in this provision. It’s exceptionally clear. When a statute says that subsidies are only through exchanges “established by a state”, that means that subsidies aren’t available to people who bought their insurance through HealthCare.gov.
The more important point is that this should be a shot across the legislators’ bow to write clearly written statutes. If legislation can be “interpreted in a variety of ways”, then legislators aren’t doing their job. If the legislators who wrote the law can’t write it clearly, then that’s their problem. Period. The citizens who didn’t qualify for subsidies should take it out on the people who wrote the bill and the people who voted for the legislation.
Further, people who don’t qualify for these subsidies should take it out on Harry Reid and Nancy Pelosi. They’re the people who brought the bill up for a vote before anyone could read the bill. They’re the people who wrote the final bill in the privacy of their offices rather than marking it up in committees.
Here’s a whopper:
When the Affordable Care Act was being debated, every member of Congress–supporters of the A.C.A. as well as opponents–understood that the federal government would have the right to establish exchanges in states that chose not to create them. As Judge Harry Edwards observed in his dissenting opinion in the A.C.A. case, “The Act empowers HHS to establish exchanges on behalf of the States, because parallel provisions indicate that Congress thought that federal subsidies would be provided on HHS-created exchanges, and, more importantly, because Congress established a careful legislative scheme by which individual subsidies were essential to the basic viability of individual insurance markets.”
Judge Edwards is wrong. The clear language of the bill doesn’t imply that “federal subsidies would be provided on HHS-created exchanges.” It directly says the opposite.
What can be stated is that Congress wanted everyone who made less than 400% of the federal poverty level to be eligible for subsidies and that all 50 states establish state-run health insurance exchanges. Further, we can state that Congress wrote the bill the way they did to force states into creating their own health insurance exchanges.
Congress can’t have it both ways. Either they write the law to make everyone below a certain income level eligible without conditions or they write it so that only people that met specific criteria were eligible.
As the Halbig case demonstrates, textualism is as politically fraught as any other approach to judging. The Halbig case is not an attempt to police unclear drafting but rather the latest effort to destroy a law that is despised by many conservatives.
Without question, Halbig is an attempt to destroy Obamacare. The thing is whether the Supreme Court will have the courage to say that specific language means specific things or whether they’ll say that the executive branch can change a law after it’s been written by Congress, voted on by Congress and signed by the president.
What Toobin is essentially asking for is a mulligan. He’s asking for that because 36 states didn’t do what Congress had hoped they’d do. Mulligans are for golfers, not major legislation that was passed without scrutiny in the dead of night the night before Christmas Eve.
Thanks to this article by the Wisconsin Reporter, conservatives can learn about the Democratic Party’s witch hunt machine. Anyone that thinks Democrats are nice people that conservatives simply disagree with is badly mistaken. Read the article, then tell me that:
MADISON, Wis. – Conservative targets of a Democrat-launched John Doe investigation have described the secret probe as a witch hunt.
That might not be a big enough descriptor, based on records released Friday by a federal appeals court as part of a massive document dump.
Attorneys for conservative activist Eric O’Keefe and the Wisconsin Club for Growth point to subpoenas requested by John Doe prosecutors that sought records from “at least eight phone companies” believed to serve the targets of the investigation. O’Keefe and the club have filed a civil rights lawsuit against John Doe prosecutors, alleging they violated conservatives’ First Amendment rights.
That the John Doe prosecutors tried to get records from “at least eight phone companies” is frightening enough. Who needs the NSA when Wisconsin has these John Doe prosecutors. Unfortunately, it doesn’t end there:
Subpoenas also demanded the conservatives’ bank records, “emails from every major private email provider” and other information in what some have described as a mini-NSA (National Security Agency) operation in Wisconsin.
“In fact, Defendants’ submissions confirm and expand upon the scope and intensity of retaliation previously demonstrated,” O’Keefe’s attorney wrote in documents ordered unsealed by the 7th Circuit U.S. Court of Appeals.
Anyone that thinks this is just a case of some rogue prosecutors gone bad apparently hasn’t paid attention to Rosemary Lehmberg’s indictment of Gov. Rick Perry, (R-TX). These naive people should read this, too:
Chisholm, a Democrat, launched the dragnet two years ago, and, according to court documents, with the help of the state Government Accountability Board, the probe was expanded to five counties. The John Doe proceeding compelled scores of witnesses to testify, and a gag order compelled them to keep their mouths shut or face jail time. Sources have described predawn “paramilitary-style” raids in which their posessions were rifled through and seized by law enforcement officers.
If you thought that weaponized government was just a term used by paranoid conservatives, you’d better rethink things. This is proof that some Democratic prosecutors will use their office for blatantly political purposes. Again and unfortunately, that isn’t all these Democratic thugs with law degrees did. Here’s more:
Court documents show the extraordinary breadth of the prosecutors’ subpoena requests.
They sought phone records for a year-and-a-half period, “which happened to be the most contentious period in political politics,” the conservatives note. They note that prosecutors did not pursue the same tactics with left-leaning organizations that pumped tens of millions of dollars into Wisconsin’s recall elections, in what certainly appeared to be a well-coordinated effort.
Among other documents, prosecutors sought “all call detail records including incoming and outgoing calls,” “billing name and information,” “subscriber name and information including any application for service,” according to the conservatives’ court filing.
In other words, these Democrats wanted confidential information. That’s why the Wisconsin Club for Growth and Eric O’Keefe filed their civil rights lawsuit.
There’s little doubt that these Democrats would’ve used the information they gathered through their witch hunt to chill these conservatives’ desire to participate in the political process. The only retaliation against these Democrats is to a)prosecute them to the fullest extent of the law when possible, b) end their political careers by removing them from their positions of political power and c) pressure Democrat politicians into passing sweeping reforms to prevent these fishing expeditions from today going forward.
If Democrats aren’t willing to limit rogue prosecutors’ ability to conduct political fishing expeditions, then we’ll know that they approve of these Democrats’ behavior.
Thanks to M.D. Kittle and the Wisconsin Reporter, we now know that these Democrats were attempting to chill conservatives from exercising their right to participate in the political process. This needs to be stopped ASAP and it needs to be stopped dead in its tracks.
Technorati: John Doe Prosecutors, John Chisholm, Political Witch Hunt, Subpoenaes, Bank Records, Emails, Phone Records, Civil Rights Violations, Chilling Effect, Smear Campaign, Weaponized Government, Democrats, Scott Walker, Eric O’Keefe, Wisconsin Club for Growth, Civil Rights Lawsuit, First Amendment, Rick Perry, Republicans
When the Halbig v. Burwell ruling came out last week, lefties like the New Republic reached out to Jonathan Gruber after their initial spin failed. Their initial spin consisted of this being a drafting error which should be excused by the courts.
When conservative bloggers found a video of Jonathan Gruber saying that health insurance subsidies were only available to people buying health insurance through state-established exchanges, TNR called Gruber. Dr. Gruber immediately backtracked by saying what he said was “a speak-o”. Michael Cannon’s op-ed blows that spin out of the water:
The administration’s defenders responded to the Halbig case by insisting that Congress never intended to withhold subsidies from residents of states that did not establish exchanges. Like the Obama administration, Gruber told the D.C. Circuit that this idea is “implausible.” The D.C. Circuit disagreed when it ruled for the plaintiffs last Tuesday.
Gruber then became part of the story on Thursday when a video surfaced in which he espouses the very interpretation of the law he now publicly derides as “screwy,” “nutty” and “stupid.” In 2012, Gruber told an audience: “If you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits.”
Frankly, this appears to be proof that Dr. Gruber is willing to say anything to save his greatest legislative achievement. There’s no question what the legislative language says, which is the only thing the courts can go by.
As damning as that is, this is the part of Cannon’s op-ed that sinks Dr. Gruber:
The problem with his explanations is that Jonathan Gruber doesn’t “flake.” He knows this law in and out. He knew what his words meant, with all their implications, when he spoke them. He knew the feature he was describing essentially gave each state a veto over the PPACA’s exchange subsidies, employer mandate and to a large extent its individual mandate. He knew that could lead to adverse selection. To claim Gruber didn’t know what he was saying is as absurd as saying a conductor might fail to notice that the brass section suddenly stopped playing.
It’s rich that the guy who boasts that he knows “more about this law than any other economist” suddenly left to dissembling when he’s caught spinning.
Richard Epstein’s explanation of the ruling is compelling and succinct:
Do the words an “exchange established by a State” cover an exchange that is established by the federal government “on behalf of a state”? To the unpracticed eye, the two propositions are not synonyms, but opposites. When I do something on behalf of myself, it is quite a different thing from someone else doing it on my behalf. The first case involves self-control. The second involves a change of actors. It is not, moreover, that the federal government establishes the exchange on behalf of a state that has authorized the action, under which case normal principles of agency law would apply. Quite the opposite: the federal government decides to act because the state has refused to put the program into place. It is hard to see, as a textual matter, why the two situations should be regarded as identical when the political forces at work in them are so different. Under the so-called “plain meaning approach”, there is no need to look further. The text does not authorize the subsidies for these transactions, so it is up to Congress to fix the mess that it created in 2010.
The only context needed is the text itself. It’s clear that language agreed upon means that the only people who are eligible for subsidies are people who bought them through state-established exchanges. There’s no question that the federal government used this carrot-and-stick approach to coax states into creating exchanges. There’s also no question that the federal government couldn’t force states to create these exchange.
That’s considered commandeering by the federal government, which isn’t allowed in our federalist system of governance.
This is enlightening information, too:
Last year, seven career Treasury and IRS officials told congressional investigators that they knew the PPACA did not authorize them to issue tax credits in federal exchanges, and that their regulations had originally confined tax credits to exchanges “established by the State.” At the direction of their political-appointee superiors, however, they dropped that language and announced that tax credits would be available through exchanges established by the federal government as well.
Isn’t it interesting that the rules didn’t change until after President Obama’s political appointees ordered the rule changes? That clearly shows the IRS regulation changing the clear intent of the ACA was an act of political mischief.