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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.

When Ed Henry questioned WH Press Secretary Josh Earnest about Jonathan Gruber’s statements, Earnest’s reply was stunningly dishonest:

ED HENRY: While you’ve been here, the President has been here, there’s videotape from Jonathan Gruber, who was one of the architects when the law came out. Among the things he said was that the bill was originally written in a “very tortured way,” in his words, to kind of mislead people about the taxes in the law and other parts of the law. He went on to say, “A lack of transparency was a huge political advantage for the President…” in terms of selling it to the American people.

I thought it was just the opposite. Didn’t the President promise unprecedented transparency? Why would one of the architects of the law suggest that you were misleading people?

MR. EARNEST: Well, I’m not sure, frankly, Ed. The fact of the matter is the process associated with writing and passing and implementing the Affordable Care Act has been extraordinarily transparent. We all sat through many town hall meetings and discussions where this piece of legislation was vigorously debated by people on both sides. There was even a meeting that the President convened at Blair House with Republicans to discuss this policy proposal. It was, as you know, broadcast by C-SPAN.

There was a steadfast commitment by this administration to make sure that people had good insight into the benefits of the law. The fact is we spent a lot of time talking about one of those benefits. And that is the fact that individuals could receive tax credits from the federal government to make their health care costs more affordable. The fact is, I think it’s actually Republicans who haven’t been particularly transparent or even honest about the true impact of those.

That’s a breathtakingly dishonest statement, especially in light of John Fund’s article for the WSJ at the time:

For Their Next Trick . . .

By John Fund
Updated Dec. 23, 2009 12:48 p.m. ET

Look for House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid to try to circumvent the traditional conference committee process by which the different versions of health care reform passed by each house will be reconciled. If so, it will be the latest example of violating principles of transparency and accountability in the single-minded pursuit of legislative victory.

When Harry Reid and Nancy Pelosi rewrote the ACA from what it looked like after multiple committee hearings, they did so exclusively in their offices and without a Republican in sight. If that’s Mr. Earnest’s definition of being “extraordinarily transparent”, then he needs a dictionary. Here’s the definition of transparent:

Capable of transmitting light so that objects or images can be seen as if there were no intervening material.

Here’s the definition of extraordinary:

Highly exceptional; remarkable.

One of the 2 chief architects said that a lack of transparency was essential to passing the bill. That directly and emphatically contradicts Josh Earnest’s statements that the process was remarkably visible for all to see. But that isn’t enough. Then there’s this doubling down:

I do think that the question that you raised is about the commitment to transparency that was embodied in the process of writing and passing the Affordable Care Act. And again, I think the President is proud of the transparent process that was undertaken to pass that bill into law.

The Obama administration hasn’t had a press secretary. They’ve had willing liars delivering the daily White House briefings. Words don’t mean things to Mr. Earnest. He knows key buzzwords and he knows he should repeat them as often as possible, especially when they aren’t true.

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Catherine Richert’s article suggests a significant anti-DCCC backlash forming against Rick Nolan:

In the end, life-long Democrat Andy Larson’s decision to vote for Republican Stewart Mills over DFL incumbent Rick Nolan came down to the ads he’s seeing every day on television. “I’m very disappointed in my fellow party members in the types of advertisements just attacking Mr. Mills for his wealth,” Larson said. “It’s completely unwarranted. It’s really turned me off.”

Larson isn’t the only Democrat disgusted with the DCCC’s ads:

Paul Lemenager, a video producer in Duluth, feels the same way about the ads, which are coming from outside groups, not Nolan’s campaign. But he also says Mills’ business experience is attractive.

“The fact that his family owns a business and understands what it takes to develop a business and jobs and to put a business into the black,” Lemenager said. “Nolan has taken on the tone of a career politician. We have so much of that in Washington. We really need someone who understands what it takes to pull out of the slump economically.”

The Obama economy is the weakest economic recovery since the end of World War II. President Obama’s policies have contributed directly to this current stagnation. There isn’t a dime’s worth of difference between President Obama’s economic plan and Rick Nolan’s voting record. Whatever President Obama wants, Rick Nolan votes for.

The thing that hasn’t gotten talked about, though, is that Stewart Mills isn’t a trust fund baby who’s never worked a day in his life. That’s just the propaganda that the DCCC and Nancy Pelosi’s superPAC have spread since the start of the campaign. Unlike our governor, Stewart Mills has had professional, private sector responsibilities for which he’s been rewarded financially. He’s made things work. He’s grown the Mills Fleet Farm chain. Lots of people are employed through that retail chain.

If it isn’t Stewart’s way to talk about his successes, then I’ll tout them. Stewart Mills is obviously doing things right. Mills Fleet Farm is growing, partially because they self-insure their employees. That means they don’t have to deal with the ACA’s regulations and taxes. Their stores are growing more profitable because they’re the ultimate blue collar retail chain. People in the Eighth District like the Mills chain because it’s got the types of things people use frequently.

It’s hard to characterize Stewart Mills as an out-of-touch rich kid when the retail chain he runs specializes in selling things that middle class families want.

Frankly, I’ve thought that the DCCC’s ads and the ads from Pelosi’s superPAC were way over the top. They aren’t substantive ads, which is what many voters are looking for. These voters aren’t looking for the Democrats’ negativity. They’re looking for solutions and common sense.

If voters elect Stewart Mills, that’s exactly what they’ll get. That’s why the DCCC’s ads are backfiring.

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Friday night, Collin Peterson collided with Torrey Westrom in a debate. Here’s the video for the entire debate:

Saying that it was contentious is understatement. It was also inspirational and infuriating. This clip fits into the infuriating category:

Here’s what Collin Peterson said in defending his decision not to vote for Obamacare:

PETERSON: I didn’t vote for this bill. The reason I didn’t vote for it — the reason I didn’t vote for it is because I actually read the bill, which a lot of people didn’t.

That’s the first time Peterson said he’d read the bill prior to passing it. That runs contrary to what then-Speaker Pelosi said:

Here are her infamous words:

But we have to pass the bill so you can find out what’s in it.

The key point in all this is that, if it’s true, Collin Peterson knew what was in the bill but didn’t criticize the ACA. It’s one thing to stay silent on a bill you mildly disagree with. It’s almost justifiable if you think it might work. There was nothing in the ACA that suggested it would work.

For instance, if Peterson actually read the bill, he would’ve known that people couldn’t keep the plans they liked. Sitting silent while that abomination hits the American people is despicable. Edmund Burke got it right with this famous quote:

“The only thing necessary for the triumph of evil is for good men to do nothing.”

Collin Peterson did nothing. As a result, people in the Seventh District are getting bad news. Torrey Westrom is definitely speaking up about it:

“All you need to do is travel the district and talk to the small business owners that are getting renewal notices from their employees,” Westrom responded. “They’re seeing 40, 50, 60, 80% increases. I just talked to a person in my home county two weeks ago at the coffee shop, and they said they’re seeing a 100 percent increase because of Obamacare. That is a critical, a big concern, and why I am pushing that we need to repeal Obamacare, different from the congressman.”

Torrey Westrom’s closing statement was inspirational. Here’s that closing statement:

Saying that he returned to bailing hay on the family farm just a year after permanently losing his sight is inspirational. I’d be remiss if I didn’t say that I appreciated Westrom’s statement that “even I can see that Washington is broken.”

Torrey’s sense of humor, combined with Torrey’s can-do attitude speak to one thing: that Torrey will be a positive, powerful force in Washington, DC.

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Collin Peterson’s calling card throughout the years has been that he’s an influential member on the Agriculture Committee. He’s still running on that calling card, though it’s fair to question how potent it is this time. Torrey Westrom is reminding people Peterson isn’t the only candidate in the race who knows agriculture issues:

Agriculture is another major issue for Westrom, who currently serves on the state legislative agriculture committee. He said that serving on the agriculture committee in Washington, like his opponent currently does, “sure would be” a priority for him.

“I grew up on a dairy farm, I have an agricultural background,” Westrom said. “I have been a strong proponent for agriculture and farmers in the state Legislature, and I will continue to be a strong ardent voice for agriculture in Washington.”

Torrey Westrom knows agriculture issues. Here’s an important difference between Westrom and Peterson:

Peterson has said that he supports the pipeline, but Westrom urged that his support of the project is not enough.

“We have rail car shortages because of this Obama administration’s policy supported by the Democratic leadership,” Westrom said. “You support the pipeline and then you go support leadership that’s gonna oppose it? That doesn’t make sense.”

“That’s a decision I have to make as a new congressman,” Westrom said. “Will I support Nancy Pelosi as the leader of the U.S. Congress or not? I am here to tell you I will not unlike my opponent who has.”

In prior elections, Peterson neutralized the ‘Nancy Pelosi card.’ Apparently, that streak has met its match. Westrom isn’t just mentioning Pelosi’s name. He’s tying Pelosi to Peterson on the biggest issue in the district. Westrom has done a nice job of highlighting the House Democratic leadership’s environmental fanaticism.

That won’t sit well in the 7th District.

Finally, people apparently are responding to Torrey’s positive message:

“We have been running a positive campaign, a positive message, and voters have been responding very favorably to what they see and hear coming out of our campaign,” Westrom said. “We are going to continue pushing a positive message of change.”

The thing that I’ve heard is that people appreciate Torrey Westrom’s demeanor and discipline. He isn’t afraid to highlight differences like he did in this interview. Still, he’s been respectful while highlighting policy differences he has with his opponent. That’s an admirable trait, one which says he’ll fight for his policies and principles without vilifying people he’ll need to work with.

Minnesota’s 7th District needs that type of leadership and character. A vote for Westrom is a vote for principled leadership.

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After last night’s bombshell polling data from Minnesota’s Eighth District, the next questions are quite logical. First, when will the DCCC and Nancy Pelosi’s PAC pull their money from the Mills-Nolan race? Second, when that money is pulled, where will it be spent?

The conventional wisdom is that the money pulled from Nolan’s race would be spent on Collin Peterson’s race. I don’t think that’s what they’ll decide. They’ve already pumped millions of dollars into the Westrom-Peterson race. It hasn’t hurt Westrom a bit. Next, they’ve thrown everything at Torrey, including the proverbial kitchen sink. Torrey Westrom keeps gaining. In fact, Torrey will campaign tomorrow with Mike McFadden:

McFadden knows that his message sells in the Seventh. He’s campaigned with Torrey before, too. It’s obvious that they feed off each other and complement each other nicely. Why would Pelosi’s superPAC or the DCCC shift money into that situation?

Finally and most importantly, a little money pays for tons of ads in the 7th. How much more money does Collin Peterson need to win that race? People know Peterson because he’s finishing his twelfth term. If the first and second ad buys didn’t put Peterson over the top, why would the DCCC think that the third and fourth ad buys will? Known commodities are known commodities. If they don’t sell right away, they won’t jump off the shelf later.

Pelosi’s superPAC and the DCCC have other seats that need propping up. Nolan’s seat is history. He’s an ancient candidate whose policies are from the 1970s. There’s nothing that indicates he’ll catch fire in the last 2 weeks.

Peterson has a better shot at winning but that’s because he’s frequently won with over 60% of the vote. He’s either popular and heading for victory or people have tired of him and he’s heading for defeat. There isn’t a middle ground with him.

Ken Martin, the DFL, Steve Simon, Gov. Dayton and Sen. Franken are watching these races. That’s because they know their races are based, at least partially, on doing well in these districts. If Nolan and Peterson lose, Gov. Dayton’s, Sen. Franken’s and the DFL’s path to victory gets complicated fast.

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Stewart Mills nailed it in this article about the impact outside money has on races:

Every day of his 8th Congressional District campaign, he said, he hears evidence of a backlash of reaction from viewers to independent expenditure messages made by outsiders. “They know nothing about this district and they certainly know nothing about me,” Mills said earlier this month at the Crow Wing County Republican Victory Office in Baxter.

The DCCC’s ads sound like Nancy Pelosi’s superPAC ads, which sound almost identical to the ads Rick Nolan is running.

Just off the top of my head, I’ll come pretty close to the script. “Stewart Mills inherited his money. He opposed middle class tax cuts so that wealthy billionaires and multinational corporations could keep their tax breaks.” If that sounds familiar, it’s because it’s only slightly different than the cookie cutter ad the DCCC is running against Torrey Westrom. The only difference between the two ads is that the DCCC’s ad against Torrey Westrom accuses Westrom of essentially masterminding the state government shutdown in 2011 while the DCCC’s ad against Stewart Mills is that he’s a rich and out of touch and that he that wants to go to Washington to protect his rich friends’ tax breaks.

He said his own message of a consumer based health insurance solution and a reining in of regulatory overreach is resonating with Republicans and independents alike. “I endeavor to run a very issues focused campaign,” Mills said. “Our message agrees with them.”

Despite the Democrats’ claim that people like the ACA, Mills is using the Affordable Care Act effectively to his advantage. Running against the EPA is another winner in the Eighth, too. Miners know that the federal government, especially the EPA and the US Forest Service, are preventing PolyMet from getting built. That’s a hot button issue if ever I heard of one for the Eighth District.

He wants a health care insurance solution that’s comprehensive. He said he favors the aspect of the Affordable Care Act in which people can’t be rejected for insurance because of pre-existing conditions. He rejects his opponent’s call for a single payer health care system.

“Consumerism works,” Mills said. “Socialism doesn’t.”

Because Mills has run Mills Fleet Farm’s health insurance program, he’s got instant credibility on the issue. Nolan didn’t try challenging him on health care during last week’s debate because he knows Mills is loaded with ammunition to blister Nolan on Nolan’s health care policies.

If the DCCC and Pelosi’s superPAC continue with the ads they’re currently running, there will be an anti-Nolan backlash. That wouldn’t be pretty for Nolan.

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I applaud Stewart Mills for putting this ad together:

Here’s the ad’s transcript:

It seems that Rick Nolan has based his campaign on attacking me for having long hair and a family that started a successful business. Well, I don’t apologize for either one. But politicians like Rick should apologize for using our tax dollars to make themselves, and their friends, even richer, raising their pay, sending our tax dollars to Wall Street bankers and trade deals that reward outsourcers while killing Minnesota jobs. I’m Stewart Mills and I approve this message because I’m on your side, not their’s.

Rick Nolan, Nancy Pelosi and Democrats insist that Nolan’s on the side of the people of Minnesota’s Eighth District because he isn’t rich. Rick Nolan, Nancy Pelosi and Democrats insist that Stewart Mills can’t be on the side of the people of Minnesota’s Eighth District because he’s rich. What utter dishonesty.

  1. When Rick Nolan sided with Twin Cities environmentalists to oppose final passage of a bill that would streamline the federal permitting process, that wasn’t proof that Nolan was on the miners’ side.
  2. When Rick Nolan proposed building a mining institute, that wasn’t proof that Nolan was on the miners’ side. It was proof he wanted to spend money on something that wouldn’t help create mining jobs.
  3. When Rick Nolan and Nancy Pelosi fire off a steady stream of ads about Stewart Mills’ wealth, isn’t that proof that they don’t want others to be wealthy?

The American Dream is to help the next generation have it better than your generation. Stewart Mills’ family built a business that’s created jobs with great benefits while saving people tons of money through cheap prices in great locations.

Mills Fleet Farm is successful because the Mills family identified a need for rural Minnesota, then built a region-wide chain of stores that caters to rural and exurban shoppers in Minnesota, Wisconsin, Iowa and North Dakota. I’ve always thought that Mills catered to people who work with their hands on their farms, their vehicles and their back yards.

If Stewart Mills is as out of touch with Minnesota’s Eighth District, why is Mills Fleet Farm the biggest retail chain in the district? If Mills were as out of touch as Nolan, Pelosi and the Democrats insist, Mills Fleet Farm wouldn’t be the expanding retail chain it is.

There’s another question Eighth District voters should ask. What do Rick Nolan and Nancy Pelosi have in common? ‘San Fran Nan’ wouldn’t know a thing about Minnesota’s Eighth District. She couldn’t identify with the Eighth District’s culture. She certainly hasn’t approved of the Eighth District’s pro-life and pro-Second Amendment views. She’s as pro-gun control as any member of Congress. She’s as pro-environmental regulation as any member of Congress, too.

Rick Nolan voted with Nancy Pelosi to allow the Secretary of the Army and the Administrator of the Environmental Protection Agency (EPA) from unilaterally rewriting the Clean Water Act without an act of Congress. That doesn’t sound like something the mining industry would approve of.

Rick Nolan voted with Nancy Pelosi in opposing making America energy independent. That’s foolish considering how cheaper energy prices would make the Eighth District industries more profitable and more likely to keep people employed.

Nolan and Pelosi voted to let money appropriated to the Defense Department to be used to implement “climate change assessments and development plans.” Jim Oberstar was defeated because he voted for Cap and Trade. Nolan’s voting record is more green than Oberstar’s.

There isn’t any doubt which candidate is more in touch with the Eighth District’s people. Stewart Mills, the man whose family owns the biggest retail chain serving rural Minnesota, is more in touch with Eighth District voters than Rick Nolan, the guy who voted a) against energy independence and b) for greater government interference with Eighth District businesses.

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It seems like forever ago that I wrote about Nancy Pelosi’s smear campaign against Stewart Mills. In fact, it was months ago that she started lying about what Stewart Mills said. The lies in Pelosi’s ad were so disgusting that the ad was taken off the air. That hasn’t stopped Ms. Pelosi from attempting to sleaze out another victory for Democrats:

Ms. Pelosi said that she’ll provide the context for Stewart Mills’ comments. No thanks, Ms. Pelosi. I don’t need another recitation of your edited version of what Stewart actually said. Think of Ms. Pelosi’s ad as the dishonestly edited version. Here’s what Ms. Pelosi’s ad said:

“…folks saying that ‘the wealthy, the wealthy are not paying their fair share…the 2%, the 1%, whatever percent you want…is personally offensive.”

Here’s a side-by-side comparison of what Pelosi’s ad said and what Stewart said:

HMP/AFSCME Advertisement: “…folks saying that ‘the wealthy, the wealthy are not paying their fair share.”

Full Context (11:22): “What happened in the last round of elections, where you had folks saying that ‘the wealthy, the wealthy are not paying their fair share, that there’s all these loopholes and they don’t pay any taxes and we have to make them pay more.”

HMP/AFSCME Advertisement: “…the 2%, the 1%, whatever percent you want…”

Full Context (14:48): “How come we are not generating the jobs in Northeastern Minnesota that we otherwise would? Well I can tell you why. Because the overwhelming group of people that run businesses, that have the ability to employ people are taxed at that personal rate. They are the villains, they’re the bad guys. They’re the ones that quote are not paying their fair share. They’re the ones quote that ‘the 2%, the 1%, whatever percent you want.”

HMP/AFSCME Advertisement: “…is personally offensive.”

Full Context (12:10): “To be singled out as a deadbeat is personally offensive.”

Ms. Pelosi, why did you feel the need to take a portion of a sentence from 11 minutes into a speech, then combine it with a statement from 15 minutes into that speech, then finish it off with an out-of-context partial statement from 12 minutes into the speech? Ms. Pelosi, why did you choose to create a fictional statement that Stewart never said?

Now you’re back, claiming to put everything into its proper context. Simply put, I don’t trust you. You’ve shown your true colors. You’re a liar who’s willing to say anything to help Democrats win elections. You don’t even pretend to battle on the field of ideas. You’ve chosen to just lie repeatedly if that’s what it takes to win.

I find that characteristic “personally offensive.”

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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.

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