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Six Humpty Dumptys Playing Calvinball

June 26, 2015 in Economics

By Michael F. Cannon

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Michael F. Cannon

In King v. Burwell, all nine Supreme Court Justices agreed on one thing. The King challengers claimed the Patient Protection and Affordable Care Act (ACA) authorizes the Internal Revenue Service to issue tax credits and impose the related penalties only “through an Exchange established by the State,” and not through exchanges established by the federal government. “Petitioners’ arguments about the plain meaning of Section 36B are strong,” Chief Justice John Roberts wrote, and their interpretation is “the most natural reading of the pertinent statutory phrase.” Justice Antonin Scalia agreed, finding the meaning of that phrase “so obvious there would hardly be a need for the Supreme Court to hear a case about it.”

There was no dissent about the plain meaning of the phrase “through an Exchange established by the State.” All seven of the other Justices joined one of those two opinions. Nor was there dissent about the fact that that phrase, used repeatedly in the statute, is the only provision of the Act that speaks directly to the question presented. Not a single Justice lent credence to the government’s assertions that this was a meritless case, or one that the Court should never have accepted. Nor was there dissent about the consequences of that provision’s plain meaning in the face of broad state resistance to the ACA. All agreed that withholding tax credits in the thirty-four states with federal exchanges could lead to adverse selection in those states, with premiums climbing higher and higher in a “death spiral.”

A number of things stand out about the King v. Burwell opinion.”

Where disagreement emerged was over the question of whether the former should alter the latter — whether the potential for adverse consequences “compels” the Court to disregard the universally acknowledged meaning of the operative text. The Court split six to three in favor of rewriting plain text, and rendering the requirement “established by the State” a nullity. The Chief Justice wrote for the majority, Scalia for the dissent. The effect of the ruling is that this and future administrations must do what everyone agrees the plain meaning of the operative text does not permit: spend hundreds of billions of dollars and tax 70 million employers and individuals in those thirty-four states.

Others can speak with greater authority about what this ruling means for textualism, contextualism, purposivism, and other legal doctrines. I can speak as one who relied …read more

Source: OP-EDS

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Scalia's Obamacare Argument Is Stronger than Roberts'

June 26, 2015 in Economics

By Ilya Shapiro

Ilya Shapiro

This Obamacare case was supposed to be different. King v. Burwell was not a constitutional challenge that threatened or promised to roll back federal power. It merely asked the U.S. Supreme Court to interpret four simple words, “established by the state,” that recur multiple times in myriad variations to distinguish among the different kinds of exchanges through which people can buy insurance under the Affordable Care Act: state, federal, territorial, private, other.

Pretty esoteric and sui generis — as many exercises in interpreting complex statutes are — although at stake were subsidies flowing to millions of people and mandates/penalties constricting millions of others.

And yet the result was the same: Chief Justice John Roberts, who had been the apple of George W. Bush’s eye, twisted key words away to vindicate the administration of Barack Obama.

Scalia renamed the law at issue “SCOTUScare,” but really it deserves the moniker RobertsCare.”

Take this sentence from one of the opinions: “If we give the phrase ‘the State that established the Exchange’ its most natural meaning, there would be no ‘qualified individuals’ on Federal Exchanges.” You’d think that I pulled that line from Justice Antonin Scalia’s dissenting opinion. After all, it takes the statutory text on its face, with the interpreted result that Congress gave states the incentive to create exchanges by making their citizens eligible for tax credits if they do.

But you’d be wrong. It comes from the majority opinion, in which the chief justice admits, as he did three years ago in the individual mandate case of the National Federation of Independent Business v. Sebelius, that those challenging the administration are correct on the law. Nevertheless, again as he did before, Roberts contorted himself to ignore that “natural meaning” and rewrite Congress’s “inartful” scheme, this time such that “exchange established by the state” means exchange established by anyone. Scalia rightly called this novel interpretation “absurd.”

Of course, Roberts explained his twistification by finding it “implausible that Congress meant the Act to operate in this manner,” to deny tax credits for health insurance as part of legislation intended to expanded coverage. Yet it’s hardly implausible to think that a statute that still says that states “shall” set up exchanges — the drafters forgot to fix this bit after lawyers pointed out that Congress can’t command states to enforce federal law — would effectively give states an offer nobody thought they’d refuse.

It was supposed to be a …read more

Source: OP-EDS

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Marriage and Equality at the Supreme Court

June 26, 2015 in Economics

The Supreme Court on Friday ruled that the Fourteenth Amendment requires states to both recognize and license same sex marriage. Cato scholar Ilya Shapiro comments, “Just because today’s opinion was expected by all doesn’t make it any less momentous. It was in 2003 that the Court had to invalidate the criminalization of gay sex and a mere 12 years later it commands state officials to issue marriage licenses to same-sex couples. …Good for the Court – and I echo Justice Kennedy’s hope that both sides now respect each other’s liberties and the rule of law.”

Join us at 3pm for a LIVE discussion on Obergefell v. Hodges — what the ruling means to the 14th amendment and for marriage equality.

…read more

Source: CATO HEADLINES

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Top Dozen Villains in Greek Soap Opera: Who Is to Blame as Greece and Euro Stagger toward the Brink?

June 26, 2015 in Economics

By Doug Bandow

Doug Bandow

Negotiations in Brussels to resolve the Greek fiscal crisis appear deadlocked, with Athens heading toward default on Tuesday. German Chancellor Angela Merkel insisted that Greece make a deal before the markets open Monday: Germany “will not be blackmailed.” Greek Prime Minister Alexis Tsipris responded by denouncing “blackmails and ultimatum” and scheduling a referendum on the deal on July 5.

The European Union was supposed was supposed to create a de facto United States of Europe. Although the original constitution was rejected by Dutch and French voters, the Eurocratic elite forged ahead with a treaty, which did not require popular ratification. Only the Irish voted, and they first said no. But under pressure from virtually every establishment individual and institution across the continent, the Irish did as they were told and voted yes the second time.

In 2009 the Lisbon Treaty finally took effect. The result was supposed to be a new Weltmacht, a putative superpower with a president, foreign minister, and parliament, moving toward ever greater centralization. The Europeans prided themselves on answering Henry Kissinger, who so many years ago sarcastically asked for Europe’s phone number.

Alas, after last January’s Greek election it was obvious that whoever answers that line does not speak for Greece. Indeed, it isn’t clear if the EU’s leaders, many appointees confirmed by parliamentarians elected by national voters primarily using their ballots as protest votes, represented anyone in Europe other than themselves. And the Eurocrats, an amalgam of bureaucrats, academics, journalists, businessmen, politicians, and lobbyists who dominate Brussels.

The European story is reaching its climax and no one knows how it is going to turn out.”

To most EU leaders common people are an impediment. The Eurocrats reflexively intone “more Europe” in answer to every question, but voters increasingly are supporting protest parties, some populist, some worse. In countries like the Netherlands the rabble-rousers seem destined for government. In London it is the government, led by Prime Minister David Cameron, which is seeking to weaken Brussels’ control, after which it will hold a referendum on continuing membership in the body.

The most fundamental problem remains the “democratic deficit,” which then Czech President Vaclav Klaus spoke of. The EU began as a forum for economic cooperation, mainly to help integrate West Germany back into Europe. The later Common Market created a relatively free trade zone for member states, breaking down import barriers. But a forum for increased …read more

Source: OP-EDS

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Justice John Roberts's Obamacare Decision Is an Orwellian Mess

June 26, 2015 in Economics

By Ilya Shapiro

Ilya Shapiro

For the second time in three years, Chief Justice John Roberts has saved President Barack Obama’s signature legislation, his eponymous healthcare law that seems to enjoy more legitimacy at the Supreme Court than among the American people. What is going on here? Is the George W. Bush appointee a secret liberal, or at least a jurist who “grew in office” like so many before him?

Actually no, quite the opposite. He’s the epitome of a small-c conservative, meaning that temperamentally and philosophically he works to preserve the status quo and not rock the boat. His mission isn’t to foment a constitutional revolution or expound some jurisprudential theory, but to “call balls and strikes.”

You can see this in his too-smooth background, checking all the right boxes and excelling at the legal craft, but never identifying as an originalist or movement conservative. (For example, he attended the conservative Federalist Society meetings but has said he was never a member.)

Roberts combined two unholy strains of judicial agency: liberal activism and conservative pacifism.”

You can see this in his minimalism, the hyper-nuanced approach to resolving cases that frustrate those who would rather throw out unconstitutional laws and announce clear principles than tweak them and live to fight another day. (Recall last term’s record unanimity that papered over severe disagreements and generated concurring opinions that were dissents in all but name.)

You can also see it in his incrementalism, striking down laws or regulations only when backed into a corner and nibbling at edge of the law before taking a larger bite. (Think of Citizens United and Shelby County, which came only after narrower rulings on campaign finance and voting rights, respectively, and warned Congress to fix the problem so the court wouldn’t have to.)

This sort of judicial philosophy is really ur-conservatism, in a line of jurisprudence running from Oliver Wendell Holmes through Felix Frankfurter—whom Roberts quoted in Thursday’s King v. Burwell—and Robert Bork. Even Justice Antonin Scalia, nobody’s minimalist and King’s vituperous dissenter, has made his peace with the New Deal’s constitutional warping and refuses to abandon doctrines, like “substantive due process,” that he himself rhetorically assails.

Jurists of this school bend over backwards to uphold legislation, which in recent years we’ve seen not just in the 2012 Obamacare case NFIB v. Sebelius but also the 2005 medical marijuana case Gonzales v. Raich—in which Scalia joined a ruling that allowed the federal government to regulate plants people grow in their own …read more

Source: OP-EDS