Archive for the ‘The Constitution’ Category
After reading this LTE, there’s no question that fascism is alive and well in the United States. Here’s what the LTE proposes:
Combined, about $43,781,720 was spent on campaigning just for the governor, Senate and U.S. House elections in Minnesota. Think what that money could have been used for in the state.
I realize it’s not a lot of money in the total scheme of things, but it sure could have been used for something better than all the advertising. There should be no money allowed except from individuals living in the state or legislative district. No money should come from PACs, corporations or unions; only from people who can vote! PACs, corporations and unions don’t vote.
There also should be no negative advertising. Period! Only advertising should be about the candidate’s position on issues and what the candidate will try to do if elected. Period!
Who made this person the arbiter of what’s protected by the First Amendment and what isn’t? This is what happens when schools don’t teach their students the Constitution. It’s what happens when parents don’t teach their children the Constitution, too. It’s what happens when buffoons don’t think things through, too.
Why shouldn’t PACs, corporations and unions have the right to participate in the political process? There’s nothing in the text of the First Amendment that says it only protects individuals’ right to free speech.
What’s particularly bothersome about this LTE is that he didn’t bother mentioning the fact that the DFL and Nancy Pelosi’s ads were particularly dishonest. The other thing that’s troubling is the fact that the DFL’s ads and Nancy Pelosi’s ads outright lied. Repeatedly. Though this isn’t a Pelosi ad, it’s of a similar nature:
That ad was run by NARAL Pro-Choice USA. It accused Cory Gardner, Colorado’s new senator-elect, of banning birth control. NARAL ran this slanderous ad despite their knowing that Sen.-Elect Gardner proposed making contraception available without a prescription.
The best way to clean up politics isn’t by limiting citizens’ participation in the political process but by defeating the politicians whose ads are essentially smear campaigns. Politicians won’t stop running smear campaigns until they don’t work anymore. This isn’t that complicated.
Another key step in eliminating negative campaigning is by tying outside groups’ spending to the candidates they’re attempting to help. While it’s illegal to for politicians to coordinate with these outside expenditure organizations, it isn’t illegal to issue a heartfelt statement specifically criticizing these smear campaign ads. For instance, a man of integrity caught in soon-to-be former Sen. Udall’s position could’ve issued this statement about NARAL’s smear campaign ad:
My campaign condemns in the harshest possible terms NARAL’s ad suggesting my opponent wants to ban birth control. While my opponent and I disagree on a wide range of issues, and while I stand ready to highlight those points of disagreement during our debates and out campaign, I can’t sit idly by while this smear campaign is carried out on my behalf. I hereby demand that NARAL Pro-Choice Colorado take this ad down immediately.
In the Eighth District, there was little difference between Rick Nolan’s advertisements and Pelosi’s advertisements. In fact, the DCCC’s advertisements against Torrey Westrom and Rick Nolan’s advertisements against Stewart Mills were cookie-cutter copycats of Pelosi’s advertisements against Stewart Mills.
I’ll have more to say on Rick Nolan’s spinelessness later this morning.
Last night on the Kelly File, Megyn Kelly and Charles Krauthammer had a great discussion on President Obama’s imminent executive order that would prevent authorities from deporting Hispanics fitting a certain description. First, here’s the video of the interview:
Here’s the key part of the interview:
“Look, I believe it is an impeachable offense,” Krauthammer told Kelly. “If the circumstances were different, if we were at the beginning of a presidency, if we hadn’t had years when the Congress has been supine and unresponsive at other grabs of their authority by the executive–like Obama unilaterally changing Obamacare after it was passed about 30 times with no response from the Congress–the same as Obama essentially re-writing some of the drug laws.
“This idea of prosecutorial discretion is really a travesty. It is intended for extreme cases. For a case where you want to show mercy for an individual or two where it’s an unusual incident, unusual circumstances and you say, okay, we’re going to give this person a pass. It was never intended to abolish a whole class of people subject to a law and to essentially abolish whole sections of a law. And that’s exactly what’s happening here.”
When statutes are drafted, the legislative language often has descriptions of who’s subject to specific parts of the law. That’s especially true with income tax codes, where the language must include a description of who pays what tax rate. If they didn’t include that description, the legislation wouldn’t apply to anyone or it would apply to everyone.
The only constitutionally-sanctioned remedy for what President Obama wants to do is to work with Congress to change the United States’ immigration statutes. Therein lies the problem. President Obama doesn’t play well with others. He doesn’t even get along with Harry Reid, much less with Mitch McConnell or John Boehner.
At the end of the interview, this interesting exchange took place:
MEGYN KELLY: What would happen, Charles, in this country if we had a Republican president who said, ‘you know what? I’m gonna use my prosecutorial discretion to just not go after those who harass women going into abortion clinics. I realize that there are laws on the books that say we should go after them but I just see them as worthy of my mercy and I tried to push a bill through Congress but those darn Democrats wouldn’t allow it. So with the stroke of my pen, I’m now gonna say we’re just not going to prioritize those prosecutions…’ This may be a precedent that the left might not want to set
CHARLES KRAUTHAMMER: Well, the example I like to use, let’s say you get a Republican president who says ‘I’ve tried to get the abolition of the capital gains tax because it’s hurting our economy but the congress simply won’t cooperate and I will not wait so I have issued an executive order that the IRS will no longer collect capital gains taxes or pursue anyone who doesn’t pay them.’ Everyone would say that this is obviously a breech of the Constitution and it would be an impeachable offense.
They’re both right. There’s no question whether the left is willing to transfer large parts of the legislative branch’s authority to the executive branch. They did that with the ACA and with Dodd-Frank. There’s no question, either, about whether President Obama sees himself as an autocrat. Finally, there’s no question that these Democrats are willing to ignore their responsibility to defend their branch of government against intrusion by the other branches of government.
The only positive that’ll come from this is that President Obama’s executive order is politically stupid. If he signs that executive order, Democrats will be criticized as being anti-law enforcement and pro-chaos. Then they’ll be tarred and feathered for looking the other way when laws were being broken just because the man who broke the laws was from their political party.
This isn’t a solution to a real problem but it is a political headache for Democrats.
Technorati: President Obama, Illegal Immigration, Executive Orders, Prosecutorial Discretion, Impeachable Offense, Lawlessness, Democrats, Megyn Kelly, Constitution, Charles Krauthammer, Mitch McConnell, John Boehner
I’ve believed that John Chisholm, the Milwaukee County District Attorney, was a vindictive partisan prosecutor long before George Will wrote this column. Will’s column chief contribution is that it focuses attention on several key points that should receive additional highlighting. Here’s one such point:
The early-morning paramilitary-style raids on citizens’ homes were conducted by law enforcement officers, sometimes wearing bulletproof vests and lugging battering rams, pounding on doors and issuing threats. Spouses were separated as the police seized computers, including those of children still in pajamas. Clothes drawers, including the children’s, were ransacked, cellphones were confiscated and the citizens were told that it would be a crime to tell anyone of the raids.
Some raids were precursors of, others were parts of, the nastiest episode of this unlovely political season, an episode that has occurred in an unlikely place. This attempted criminalization of politics to silence people occupying just one portion of the political spectrum has happened in Wisconsin, which often has conducted robust political arguments with Midwestern civility.
That’s what the threats and intimidation wing of the Democratic Party looks like. John Chisholm is a thug with institutionalized authority to ruin innocent people’s lives. He’s the ‘leader’ of the Wisconsin chapter of the Democratic Party’s threats and intimidation wing.
In collaboration with Wisconsin’s misbegotten Government Accountability Board, which exists to regulate political speech, Chisholm has misinterpreted Wisconsin campaign law in a way that looks willful. He has done so to justify a “John Doe” process that has searched for evidence of “coordination” between Walker’s campaign and conservative issue advocacy groups.
On Oct. 14, much too late in the campaign season to rescue the political-participation rights of conservative groups, a federal judge affirmed what Chisholm surely has known all along: Since a U.S. Supreme Court ruling 38 years ago, the only coordination that is forbidden is between candidates and independent groups that go beyond issue advocacy to “express advocacy”, explicitly advocating the election or defeat of a particular candidate.
Why Wisconsin ever passed these John Doe laws is inexplicable. It’s authority to start a fishing expedition, something that’s contrary to the principles of probable cause and the Fourth Amendment’s protections against unreasonable searches and seizures. Chisholm’s goal might’ve already been achieved:
But Chisholm’s aim, to have a chilling effect on conservative speech, has been achieved by bombarding Walker supporters with raids and subpoenas: Instead of raising money to disseminate their political speech, conservative individuals and groups, harassed and intimidated, have gone into a defensive crouch, raising little money and spending much money on defensive litigation. Liberal groups have not been targeted for their activities that are indistinguishable from those of their conservative counterparts.
I’ve written before about weaponized government. Chisholm’s investigation (I hate using that term in this context) fits that description perfectly. It’s the personification of weaponized government.
It’s worth noting this sentence:
Liberal groups have not been targeted for their activities that are indistinguishable from those of their conservative counterparts.
I’ve seen nasty forms of weaponized government but this is the nastiest form of it. Law enforcement officials participating in this should be investigated, too. Their actions furthered this unconstitutional exercise of abusive government. Hans Spakovsky’s op-ed nails it:
Oral arguments were heard Tuesday before the 7th Circuit U.S. Court of Appeals in O’Keefe vs. Chisholm, the so-called John Doe investigation in which local prosecutors in Wisconsin tried to criminalize political speech and activity on public issues. The 7th Circuit should uphold the lower court decision halting this Star Chamber investigation that violated basic First Amendment rights.
The fact that such a secret persecution of citizen advocacy organizations even occurred ought to be an embarrassment to a state that prides itself on being a progressive bastion of individual freedom. It is more reminiscent of a banana republic than the world’s foremost democracy.
Chisholm should be disbarred for intentionally violating private citizens’ civil rights. Then he should be tried and, hopefully, be convicted, then incarcerated for many years. He’s a nasty person helping the Democratic Party chill political speech. Saying that his actions are intimidating and that his tactics are the type that would be approved of by Joe McCarthy is understatement.
Technorati: John Chisholm, John Doe Investigation, Chilling Effect, Threats and Intimidation, Censorship, McCarthyism, Fourth Amendment, First Amendment, Civil Rights, O’Keefe v. Chisholm, Seventh Circuit Court of Appeals, Democratic Culture of Corruption, Election 2014
When the city of Coeur d’Alene, Idaho passed a non-discrimination ordinance, they opened up a nasty First Amendment can of worms:
Two Christian ministers who own an Idaho wedding chapel were told they had to either perform same-sex weddings or face jail time and up to a $1,000 fine, according to a lawsuit filed Friday in federal court. Alliance Defending Freedom is representing Donald and Evelyn Knapp, ordained ministers who own the Hitching Post Wedding Chapel in Coeur d’Alene.
“Right now they are at risk of being prosecuted,” their ADF attorney, Jeremy Tedesco, told me. “The threat of enforcement is more than just credible.”
According to the lawsuit, the wedding chapel is registered with the state as a “religious corporation” limited to performing “one-man-one-woman marriages as defined by the Holy Bible.” But the chapel is also registered as a for-profit business, not as a church or place of worship, and city officials said that means the owners must comply with a local nondiscrimination ordinance.
It’s difficult seeing this ordinance passing constitutional scrutiny by a real court. It was upheld by the Ninth Circuit Court of Appeals. The next step will be to the Supreme Court. The First Amendment doesn’t just protect citizens, as we learned in this summer’s Hobby Lobby ruling.
I suspect that this is just another attempt to strike down that ruling.
Tony Perkins, president of the Family Research Council, told me it’s “open season on Americans who refuse to bow to the government’s redefinition of marriage. Americans are witnesses to the reality that redefining marriage is less about the marriage altar and more about fundamentally altering the freedoms of the other 98 percent of Americans,” Perkins said.
Governments, whether they’re local governments or the federal government, don’t have the authority to tell religious institutions what they must do. That’s what Coeur d’Alene is attempting to do. Their city attorney, Warren Wilson, apparently isn’t that schooled in constitutional law.
Thankfully, the Knapps are standing their ground, with assistance from the Alliance Defending Freedom and the Family Research Council. It’s important that government not have the authority to tell people how they can practice their faith. That’s a major reason why people left Europe. It’s important that we fight against being returned to European-style governance.
During his interview with Esme Murphy, Rick Nolan reiterated his support for overturning the Supreme Court’s ruling in the Citizens United vs. the FEC lawsuit:
The Supreme Court ruled against BCRA, aka McCain-Feingold:
Independent Expenditures by Corporations
The Court overruled Austin, striking down § 441b’s ban on corporate independent expenditures. It also struck down the part of McConnell that upheld BCRA § 203’s extension of § 441b’s restrictions on independent corporate expenditures. The Court held that the “government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.” An analysis of this holding follows.
As Applied Challenge. First, the Court held that the case could not be resolved on an as applied basis without chilling political speech. Under an “as applied” challenge, the Court’s review of the law’s constitutionality is limited to the set of facts in the case before it. The Court therefore broadened the case from Citizens United’s initial narrower arguments, focusing only on Hillary, to reconsider both the validity of its prior decisions in Austin and McConnell and the facial validity of § 441b.
In reaching this decision, the Court reasoned that among other things:
1. Citizen United’s narrower arguments, including that Hillary is not an “electioneering communication,” are not sustainable under a fair reading of § 441b, and
2. it must therefore consider the statute’s facial validity or risk prolonging its substantial chilling effect.
The First Amendment’s protections apply to all political speech. The argument that ‘corporations aren’t people’ is laughable at best. Nowhere in the First Amendment does it say that the First Amendment protects only individuals. Does the Fourth Amendment protect only individuals from unreasonable searches and seizures? Of course it doesn’t.
But I digress.
Nolan said that he’s “the lead sponsor of new legislation in Washington to reverse Citizens United.” That means, according to the Supreme Court’s ruling, Nolan wants to reverse the chilling effect McCain-Feingold had on political speech. For those asking why that’s a bad thing, I’ll answer with a question. Do you want the government to say what’s acceptable speech and what isn’t? Before answering that question, think about this: Lois Lerner “served as associate general counsel and head of the enforcement office at the FEC“:
One of Lerner’s former colleagues tells National Review Online that her political ideology was evident during her tenure at the FEC, where, he says, she routinely subjected groups seeking to expand the influence of money in politics, including, in her view, conservatives and Republicans, to the sort of heightened scrutiny we now know they came under at the IRS.
Before the IRS, Lerner served as associate general counsel and head of the enforcement office at the FEC, which she joined in 1986. Working under FEC general counsel Lawrence Noble, Lerner drafted legal recommendations to the agency’s commissioners intended to guide their actions on the complaints brought before them.
Isn’t it frightening that a corrupt bureaucrat like Lois Lerner could be the final arbiter of what’s acceptable speech and what isn’t? If Nolan’s legislation passed, it’s possible a corrupt, hyperpartisan bureaucrat could determine which speech is acceptable and what speech isn’t.
Nolan’s legislation would make it illegal for unions to advocate for their endorsed candidates. Nolan’s legislation might be used to shut down ABM, Nancy Pelosi’s superPAC and the DCCC. Is that what Nolan wants?
I’d bet it isn’t. He’s been silent while the DCCC ran its disgusting ads. He’s been silent while Nancy Pelosi’s superPAC ran disgustingly dishonest ads. Apparently, Nolan only opposes money in politics when he’s in front of a camera. That isn’t a principled position. It’s a political position.
This LTE fails miserably in tying Stewart Mills and the NRA to the Ebola outbreak. Here’s the heart of its attempt:
A year ago Stewart Mills signaled his candidacy with an open video “letter” to Rep. Rick Nolan. It promoted the need and right to own an assault rifle as a constitutional symbol of American freedom. Now with the Ebola outbreak, this NRA and its wider coalition doctrine is pitted even more squarely against government involvement in health, both at the preventive and care level.
We don’t have a surgeon general because the NRA effectively blocked his confirmation. The American Medical Association and NRA have been feuding for years over such things as the NRA’s opposition to a physician’s right to ask patients about guns, its killing of a CDC study on gun deaths, and medical consensus that our 30,000 annual gun deaths should be treated as a public health problem. This partisan austerity anti-government stance has cut in funding of the NIH and CDC such that the NIH director recently noted that we otherwise should have had an Ebola vaccine by now.
That’s breathtakingly ill-informed. That’s a stretch of Olympic proportions.
It’s the latest attempt by the gun control crowd to tie Ebola to constitutional conservatism. First, progressives said that the Ebola crisis was the result of Republican budget cuts to the CDC. Now they’re saying that it’s conservatives’ fault because the NRA rejected President Obama’s surgeon general nominee.
It’s long past time to mercilessly ridicule this type of thinking.
Saying that gun deaths are a “public health problem” is insanity. The vast majority of gun deaths are caused by criminal activity. How will doctors treat that? Say ‘take 2 short clips and call me in the morning’?
Next, saying that Stewart Mills’ video to Rick Nolan “promoted the need and right to own an assault rifle” is breathtakingly dishonest. The video that Mills put together that went viral showed how little difference there is between an assault rifle and other firearms. This buffoon’s attempt to frighten people into thinking that Stewart Mills is obsessed with putting automatic weapons in everyone’s hands is laughable.
Ebola exposes how attempts to use market-forces alone in health care have again failed the U.S.
The man that wrote this LTE just identified himself as Nolan’s base: pro-gun control and pro-socialized medicine.
That puts to rest the argument of who would accurately represent Minnesota’s Eighth District and who would represent Nancy Pelosi.
Technorati: Ebola Crisis, Surgeon General, CDC, NIH, Rick Nolan, Nancy Pelosi, President Obama, Gun Control, Democrats, Stewart Mills, NRA, Second Amendment, Bill of Rights, Constitution, GOP, Election 2014
Rick Nolan’s statements on the Second Amendment have hinted that he doesn’t understand the Second Amendment. The NRA’s ad buy will set the record straight on who’s the pro-Second Amendment candidate in this race is. This statement is frightening:
“There have always been restrictions on the Second Amendment,” Nolan previously told the Associated Press. “You can only have six shells in your shotgun when you’re shooting ducks. Why should you be able to have 100 in your rifle when you’re shooting people?”
It’s frightening to think Congressman Nolan doesn’t know federal law on shotgun capacity for waterfowl. That isn’t even Second Amendment 101.
That’s before getting into the part about the Second Amendment wasn’t created to give people the right to hunt. That was just a given considering the fact that urbanization of our nation was a century+ away. The Second Amendment was created to give citizens the right to defend themselves against tyrannical government and so people could protect their families.
How can someone say that they’re pro-Second Amendment when they don’t know what inspired the Founding Fathers to write it?
Nolan has defended his support of an assault weapons ban, limits on magazine capacity and other proposals as common-sense regulation that don’t conflict with the hunting-friendly lifestyle of the 8th District.
The only difference between so-called assault weapons and other semi-automatic weapons is cosmetic. When the original assault weapons ban was passed, it was obsolete within 6 months. Passing another assault weapons ban would be unconstitutional because it would outlaw an entire type of firearm.
That isn’t common sense. That’s stupidity on display.
Baker cited those votes and others in Nolan’s “F” grade with the NRA. The NRA announced its endorsement of Mills this week. Baker called Mills “the only person in the race who is committed to protecting our Second Amendment rights.”
Rick Nolan is pro-Second Amendment except when he’s pro-gun control. It’s that simple.
Yesterday, I got an email alert about a lawsuit filed by the Center for Competitive Politics challenging the constitutionality of another provision of McCain-Feingold. Here’s the heart of the matter:
The Independence Institute wishes to run two ads: one asking Colorado Senators Mark Udall and Michael Bennett to support a federal sentencing reform bill, and one asking citizens to contact Colorado Governor John Hickenlooper and urge him to initiate an audit of the Colorado Health Benefit Exchange. The McCain-Feingold law, along with a similar state statute, effectively prevents the group from raising money for the ads.
“This situation shows the damage to free speech caused by carelessly written campaign finance laws,” said David Keating, president of CCP. “Instead of advocacy on an important public issue, there will be silence. That’s unacceptable under the First Amendment, and is the reason why we filed this lawsuit.”
Prior to the passage of Obamacare, McCain-Feingold was the worst legislation in the last half century. I can’t even say that the intent behind McCain-Feingold was good. Its effect was to protect incumbents while limiting political speech.
There’s nothing honorable about either thing.
Here’s what McCain-Feingold does to issue advocacy:
Colorado and federal law treat speech about public issues as campaign speech whenever a candidate is mentioned in a broadcast ad within 60 days of the general election. Groups must either file public reports with personal details about donors who have provided funds for the ads, or refrain from speaking. The result is what First Amendment advocates call a “chilling” effect on advocacy, depriving the public of important speech about issues of public importance.
Here’s why disclosure in these instances is frightening:
Donors and speakers have many reasons to protect their privacy. Some fear retaliation from government officials who disagree with them. Others fear physical harm or threats to themselves and their families, vandalism to their property, loss of jobs, or boycotts of their business if they support unpopular views.
Over half a century ago, the Supreme Court ruled in NAACP v. Alabama that not disclosing donors to issue advocacy groups was constitutionally protected. Imagine the fury that the KKK would’ve visited upon the people supporting the NAACP.
While the threats are different today, the threats are just as real. Instead of fearing the KKK, these days, issue advocacy groups have to worry about the Justice Department, the IRS and other agents representing weaponized government.
It’s time to eliminate another disgusting part of McCain-Feingold. The sooner it’s eliminated, the better.
Technorati: McCain-Feingold, Censorship, Issue Advocacy, NAACP v. Alabama, Supreme Court, Independence Institute, Center for Competitive Politics, Civil Rights, First Amendment, Weaponized Government, IRS, DOJ
I’ve spent the last half of Tuesday illustrating the fact that Section 36B is clearly written. In this clip, Charles Krauthammer explains that the bill’s language is exceptionally straightforward:
The language in the bill simply states that the subsidies are ony available to people purchasing health insurance through state-run exchanges. This doesn’t require guessing. It just requires the ability to believe what you’ve heard.
After Charles’ explanation, Kirsten Powers argued that the language was ambiguous. She essentially said that the intent was clear if you read the entire section. This doesn’t have anything to do with reading the entire section. The only context that’s required is the simple declarative statement.
The statement isn’t filled with caveats. It’s straightforward. It’s declarative.
What the administration and its apologists are arguing is that we should a) accept their word that they really meant for everyone of a certain income level to qualify for subsidies and b) ignore the straightforward language of the bill.
My response to that is simple. I don’t read minds to determine legislative intent and I don’t trust liberals who say that federal statutes really mean whatever liberals insist they mean at any point in history. Liberal constitutional law Professor Jonathan Turley agrees with me on that. Here’s what he said:
I’d love hearing Kirsten Powers or Ron Fournier dispute Professor Turley’s explanation. Ultimately, though, Prof. Turley is right in saying that this is about more than the ACA. It’s about which branch of government has the responsibility to correct the law. Ultimately, the question is whether the executive branch can usurp the legislative branch’s authority to write new laws.
Dishonest progressives argue that the executive branch isn’t writing new laws. They’re lying about that. The plain language of the bill says one thing and they’re saying that the straightforward wording isn’t what they meant.
Let’s remember that the ACA was written by Max Baucus in Harry Reid’s office. Dishonest progressives want me to believe that Sen. Baucus was so inept that he accidentally slipped that language into the bill. He’s written dozens of bills and hundreds of amendments to bills. I’m supposed to think that he mistakenly put in a straightforward-sounding statement runs contrary to his intent into the most important bill he ever wrote. Why would I buy into that?
Further, even if I thought that was the truth, I’d still argue that the executive branch, in this instance the IRS, has the authority to rewrite that language to mean what it wants the section to mean years after the fact. The language is clear. When the language is clear, the intent is clear.
I don’t need a clairvoyant to determine what Sen. Baucus meant. I just need a little common sense, a little reading ability and the ability to ignore misinformed liberals.
Brian Beutler’s article attempts to make the case that Republicans might ultimately lose if the Supreme Court upholds today’s ruling:
An adverse Supreme Court ruling would throw the ACA into chaos in three dozen states, including huge states like Florida and Texas. The vast majority of beneficiaries in those states would be suddenly unable to afford their premiums (and might even be required to reimburse the government for unlawful subsidies they’ve already spent). Millions of people would drop out of the insurance marketplaces. Premiums would skyrocket for the very sick people who need coverage the most.
But that’s where the conservatives’ “victory” would turn into a big political liability for red- and purple-state Republicans. An adverse ruling would create a problem that could be fixed in two ways: With an astonishingly trivial technical corrections bill in Congress, or with Healthcare.gov states setting up their own exchanges. If you’re a Republican senator from a purple Healthcare.gov state—Wisconsin, Pennsylvania, Nevada, North Carolina, Florida, Ohio, and others—you’ll be under tremendous pressure to pass the legislative fix. If you’re a Republican governor in any Healthcare.gov state, many thousands of your constituents will expect you to both pressure Congress to fix the problem, and prepare to launch your own exchange.
Conservatives would like to believe that they could just leave something as deeply rooted as Obamacare permanently hobbled, or that they could use the ensuing chaos as leverage, to force Democrats to reopen the books, and perhaps gut the law in other ways. I think they’re miscalculating. Just as government shutdowns and debt default threats don’t create leverage because the public doesn’t support inviting chaos in pursuit of unrelated goals, I don’t think an adverse ruling in Halbig will create leverage for the GOP.
I think Beutler isn’t just wrong about the leverage. I think he’s kidding himself if he thinks this puts Republicans in a difficult position.
By the time the Supreme Court rules on this lawsuit, it’s quite possible that there will be Republican majorities in the House and Senate. If that’s the case, think of this scenario:
Congress might well change Section 36B as part of a bigger bill that’s sure to include other provisions that Republicans like and that President Obama doesn’t like.
For instance, a new bill might include a change to 36B along with a change that eliminates the medical device tax, another change that changes the definition of a Qualified Health Plan, aka QHP, and a change that reduces the penalties for the employer and individual mandates.
Employers and families would certainly love a tiny penalty for not obeying the law. Young people would love being able to buy a catatrophic policy with a HSA to cover other expenses. There’s no question that eliminating the medical device tax would make medical device manufacturers happy.
At that point, President Obama signs the bill that’s essentially a fresh start that dramatically improves the ACA or he vetoes a popular bill that forces families to pay higher insurance premiums, that doesn’t repeal an unpopular tax and he alienates major parts of his base. In my opinion, that’s ‘Rock meets hard place’ territory for President Obama. The good news is that it’s great news for employers, families and young people.
All that’s required is for Republicans to pass a bill that’s filled with popular provisions. Since a majority of people don’t like the bill’s specifics, that shouldn’t be that difficult.
Finally, Beutler insists that this is judicial activism. There’s nothing activist about the DC Circuit’s ruling. They said that Section 36B meant what it said. For the record, here’s the specific language of Section 36B:
monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311  of the Patient Protection and Affordable Care Act
The judiciary’s first responsibility is to determine whether a law is constitutional. If it passes that test, the next test is to determine whether the statute gives the executive branch the authority to take action.
In this instance, the DC Circuit ruled that the ACA didn’t give the executive branch, in this case the IRS, the authority to change a major provision of the statute.
It isn’t radical to think that the executive branch doesn’t have the authority to rewrite specific provisions of existing statutes. If the Supreme Court validates this ruling and if President Obama wants that provision changed, there’s a simple remedy: work with Congress to change that part of the ACA.
Technorati: President Obama, Halbig v. Burwell, DC Circuit Court of Appeals, Qualified Health Plans, Employer Mandate, Individual Mandate, Medical Device Tax, HSAs, Insurance Subsidies, Supreme Court, Republican Reforms