The Brass Tax of Politics

The Long-Term Effects of the Obamacare Decision

During oral arguments of the Burwell v Obamacare case before the Supreme Court, the U.S. Solicitor General Donald Verrilli made the case that the “court should defer to the interpretation of the Internal Revenue Service, which said the tax credits apply nationwide.” When the Obamacare decision was announced, it is clear that SCOTUS did apply deference, which was absolutely the worst possible solution.

The idea of “deference” refers “ to “Chevron deference,” “a doctrine mostly unknown beyond the halls of the Capitol and the corridors of the Supreme Court. It refers to a 1984 decision, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., and it is one of the most widely cited cases in law. Boiled down, it says that when a law is ambiguous, judges should defer to the agency designated to implement it so long as the agency’s decision is reasonable.”

Given the current catastrophic state of the IRS, SCOTUS should have run from this idea as quickly as possible. The IRS has proven overwhelmingly in the last few years that no decision it makes is “reasonable” and therefore cannot be trusted as an unbiased, independent agency capable of carrying out a professional opinion on this or virtually any manner.

Even more unfortunately, not only did SCOTUS apply deference, which allowed the IRS rule to stand, it did so by taking expanding the concept of “Chevron Deference” even further in order to validate its decision. George Will, in a column written just after the Obamacare ruling was handed down, described how the decision now allows the executive branch to apply deference in situations that are not just ambiguous, but also “inconvenient for the smooth operation of something Congress created.” This is not interpreting law — this is legislating.

Therefore, the actions of the IRS — that is, willy-nilly creating rules which expanded the scope of Obamacare beyond its text — were indeed endorsed and given political cover by Roberts and his majority as they applied Chevron Deference. Instead of sending Obamacare back to the legislature for clarification, the judicial branch decided to step in and interpret the law for the sake of alleviating “inconvenience”. But this is wrong. Convenience, ease, and expediency should never be a rationale for the judicial branch to go beyond the scope of deciding whether or not a law is constitutional, as they did here.

The judicial branch, with this decision, seemed to act more in harmony with the legislative and executive one, instead of serving as a check against the others. What’s more, “besides violating the separation of powers, this approach raises serious issues about whether litigants before the courts are receiving the process that is due to them under the Constitution. It would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise.”

Will summed up the damage Roberts has done, which is likely to have lasting effects in the courts for years to come. Roberts goes “beyond “understanding” the plan; he adopts a legislator’s role in order to rescue the legislature’s plan from the consequences of the legislature’s dubious decisions. By blurring, to the point of erasure, constitutional boundaries, he damages all institutions, not least his court.”

How the Supreme Court uses and applies Chevron Deference in the coming years, in the way they did with this decision, will be especially interesting, given the expanded roles of many government agencies such as the EPA and FCC.

SCOTUS EPA Ruling is a Breath of Fresh Air

The SCOTUS ruling against the EPA was a breath of fresh air (see what I did there?). Before adjourning until October, the Supreme Court decided that recent EPA rules did not consider cost compliance. The Washington Examiner had a good overview of the ruling. This decision will likely affect other recent EPA rules.

“The Supreme Court ruled 5-4 against Environmental Protection Agency pollution rules for power plants Monday, in a blow to President Obama’s environmental agenda.

The majority decision, written by Justice Antonin Scalia, said the EPA has to consider the costs of complying with the rules and sent the air pollution regulations back to the agency.

The EPA rules in question regulate hazardous air pollutants and mercury from coal- and oil-fired power plants, known as the MATS regulations. The regulations went into effect April 16. The utility industry had argued that the rules cost them billions of dollars to comply and that EPA ignored the cost issue in putting the regulations into effect.

“EPA must consider cost — including cost of compliance — before deciding whether regulation is appropriate and necessary. It will be up to the agency to decide (as always, within the limits of reasonable interpretation) how to account for cost,” Scalia wrote in agreeing with the industry.

The decision will have repercussions for other EPA regulations that are key to Obama’s climate change agenda. The EPA will now have to examine the cost of compliance for the Clean Power Plan, which is at the heart of the president’s environmental agenda.

Many of the companies have either made the investments or closed power plants to comply. If the investments necessary to upgrade a plant to comply with the regulation aren’t justified when considering the operational costs, revenues earned and other factors, then the decision is made to retire it.

The D.C. Circuit Court Appeals favored the EPA in a previous lawsuit filed by the industry, attempting to overturn the rules, which is why they took it to the Supreme Court to decide the cost issue.

The D.C. Circuit was split in its decision, but the majority ruling prevailed. At the center of the case is the question of whether the regulation of hazardous air pollutants from electric utilities are “appropriate and necessary.” On that issue the court was split, but a two-judge majority agreed that the EPA could ignore costs in determining whether to regulate the utility sector.

The D.C. Circuit majority also agreed the EPA could focus solely on the utilities’ contribution to the pollutants of concern, rather than identifying any specific health hazards attributable only to utility emissions.

The EPA had argued that the rules are both appropriate and necessary regardless of the costs, and that it has the discretion under the law to act as it deems fit in regulating hazardous pollutants.”

SCOTUS Upholds Obamacare, 6-3

From Scotusblog:

Decision of the Fourth Circuit is affirmed in King v. Burwell. 6-3.

This means that individuals who get their health insurance through an exchange established by the federal government will be eligible for tax subsidies.

Chief Justice writes for the Court. Six are the Chief, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan.

Dissent by Scalia, joined by Alito and Thomas.

Court refused to apply Chevron deference — that is, to find that the statute is ambiguous and that the federal government’s interpretation was reasonable.

From Scalia’s dissent: “We should start calling this law SCOTUScare.” From the intro to Scalia’s dissent: the majority’s reading of the text “is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”

From the majority opinion: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

The majority also acknowledges that the challengers’ “arguments about the plain meaning . . . are strong.”

‘In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase’…

The opinion is here

Justice Scalia’s dissent, via the WSJ:

SCOTUS Rules In Favor of Raisin Growers and Clarifies “Takings” Clause

In the past couple of months, I drew attention to a case that would be decided by the Supreme Court this term, which I felt was probably the biggest property-rights case since the Kelo decision 10 years ago. You can read the background here. In sum, the property in question this time is not land, but raisins. A couple, the Hornes, who were raisin farmers in California were fined for declining to participate in a government sponsored raisin regulatory group in existence since the Truman Administration.

Writing a letter to the Agriculture Department, they called the program “a tool for grower bankruptcy, poverty, and involuntary servitude.” The raisin police were not amused. The Raisin Administrative Committee sent a truck to seize raisins off their farm and, when that failed, it demanded that the family pay the government the dollar value of the raisins instead.”

This morning, SCOTUS ruled 8-1 in favor of the raisin growers, the Hornes. The majority opinion found “that the Agriculture Department program, which seizes excess raisins from producers in order to prop up market prices during bumper crop years, amounted to an unconstitutional government “taking.”

But they limited their verdict to raisins, lest they simultaneously overturn other government programs that limit production of goods without actually seizing private property.

The 8-1 decision was written by Chief Justice John Roberts, with the court’s more conservative justices in agreement. Roberts said the government violates citizens’ rights when it seizes personal property — say, a car — as well as real property such as a house.

While the government can regulate production in order to keep goods off the market, the chief justice said it cannot seize that property without compensation.”

Only Sotomayor dissented. She did not recognize the government’s fines a form of taking, saying that the rule “only applies where all property rights have been destroyed by governmental action.” In saying so, she indicated that the Hornes did retain some of their property rights, a logic that mirrored the ridiculousness of the Ninth’s Circuits’ opinion.

You can read the full court ruling here. The best quote goes to Justice Clarence Thomas who noted in his concurrence to the majority opinion, that “having the Court of Appeals calculate “just compensation” in this case would be a fruitless exercise.

The Ninth Circuit Thinks The Raisins You Grow Aren’t Protected By the 5th Amendment

In recent years, the Ninth Circuit Court has provided the lion’s share of the cases that have come before the Supreme Court. A full ¼ of the cases (25.7%) come from the Ninth while the other 3/4ths come from a combined 10 other Courts. During the last four terms, the Supreme Court has vacated or sent back nearly 80% of the cases it has reviewed from the Ninth Circuit.

Far more cases come to the Court from the Ninth Circuit than any other court, and — not surprisingly — Ninth Circuit rulings make up a sizeable portion of the docket of argued and decided cases – 75 cases, or 25.7% for the last four Terms including the current session. During that period, the Court has reversed or vacated and sent back 79.5% of the Ninth Circuit decisions it has reviewed.

The Ninth Circuit seems to have particular ideas it wishes to push, making no difference as to what the law is. They reach a particular conclusion and then use a court case that comes before them as an example. In a consummate instance of their ineptitude, “in one per curiam opinion last month, the Supreme Court even rejected the Ninth Circuit’s reasoning in a single word: “No.”

Take the recent raisin case (Horne v. Department of Agriculture) as another example. The Ninth Circuit decided that the “Taking Clause” under the 5th Amendment applies less to personal property than real property — as if you can take someone’s gold to regulate the market but not their land. What’s more, under “just compensation”, if the government does take your property, it creates a scarcity which (could) raise prices, so a confiscation produces compensation for property in that manner. Does that mean if I steal one of your two cars, I can argue that the remaining car is potentially worth more now because there are less cars on the market? Of course not. But the Ninth Circuit seemed fit to argue so.

The only positive thing that could come out of this egregious display of legal impropriety by the Ninth is that it could hopefully clarify property rights. As the Wall Street Journal contends, “The Horne case is one of the most significant property rights cases in years—probably since the Court’s infamous 5-4 ruling in 2005 in Kelo v. New London…The majority Justices in Kelo have a lot to answer for. This is a chance to make partial amends.”

Are Obamacare Enrollment Pressures Unconstitutional?


As each day passes, the various facets of Obamacare are getting implemented in order to be fully operational by January 1, 2014. But we are hearing about the difficulties in the implementation caused primarily by either 1) the website fiasco; 2) low number of enrollees; and 3) people wanting to pay the penalties in order to avoid having to pay for intentionally overpriced health “insurance”.

In order to achieve adequate and targeted enrollment in Obamacare those representing the Government have begun to be aggressive. They are choosing to use all methods at their disposal to pressure, cajole, and otherwise push people to “do the right thing” and buy the mandated insurance product. This began in earnest last spring, as the Health and Human Services Secretary Kathleen Sebelius was given millions at her disposal to dispatch “navigators” and “in-person assisters” to help enroll more Americans into Obamacare. But the very act of doing so may be rendering Obamacare unconstitutional.

It is worthwhile to remember that the only way in which the law of Obamacare was saved from being declared unconstitutional was the that that there is no penalty associated with Obamacare, which would have made it subject to the Commerce Clause. It was ruled to be a “tax” derived from not purchasing the mandated health coverage. In reaching his conclusion, Justice Roberts accepted the Administration’s argued position that there is absolutely no negative interference whatsoever on anyone opting to pay the “tax” rather than buy the product.

Therefore, any attempt by the administration or any of the implementing bodies to pressure, threaten or even imply some sort of wrongdoing by those choosing to not buy insurance would be clearly unconstitutional.

If those implementing Obamacare are properly following the Supreme Court’s mandate, they should be telling prospective insurance purchasers that they should be deciding for themselves whether they would be better off with the insurance or the penalty. We know this is not happening. At the macro level, governors have been hustled to implement the exchanges in their states. And at the individual level, Obamacare officials are pushing for more enrollees to ensure a steady flow of premiums paid by healthy patients in order to cover those who are high-risk and high-cost.

Just a few recent examples:

1) The LGBT Community created an Out2Enroll campaign to encourage LGBT to enroll in Obamacare after “the Obama administration called a meeting of LGBT leaders in mid-September. Nearly 200 from across the country met with the White House to talk about the potential impact of Obamacare. It also looked at what LGBT leaders could do to spread the word.”

2) Latinos with green cards were pushed to enroll in Obamacare at a recent forum marketed on the Get Covered America website. “Get Covered America is the nonprofit publicity and recruitment arm of “Enroll America,” which aims to ‘maximize the number of uninsured Americans who enroll in health coverage made available by the Affordable Care Act,’ according to its website”. Enroll America also has people going door-to-door with clipboards to sign people up, according to the Washington Post.

3) Hollywood celebrities teamed up with the White House to learn how to help shill for Obamacare. “Back in July, a group of Hollywood stars gathered at the White House to strategize a push for registration after the October 1 rollout of the Affordable Care Act. Among others, Amy Poehler, Jennifer Hudson, Kal Penn, and representatives for Oprah Winfrey, Alicia Keys, and the Funny or Die team offered their influence during a meeting with senior aide Valerie Jarrett and, briefly, President Obama himself”.

4) Government-funded Navigator Grants are setting up neighborhood centers for Obamacare enrollment. According to this story about a center with ties to former ACORN execs, “The government has given out $67 million in Navigator grants to help with the controversial rollout of ObamaCare. It was not clear if Local 100 got a grant of its own, but it has set up a help center with Southern United Neighborhoods, a charity founded in March 2010 with many former ACORN members, to enroll people in ObamaCare. Southern United Neighborhoods received a Navigator grant of $486,123”

5) The White House kicked off a 6 month ad campaign a week before the October 1 starting sign-up date. The objective of the ad blitz is “to encourage millions of Americans to sign up for health coverage under ‘Obamacare’ an effort in which the president and other political celebrities promote the law’s promise of subsidized health coverage”.

Are these government-backed and/or funded pushes to enroll in Obamacare violating the constitutionality of Obamacare with regard to negative interference?

The SCOTUS ruling hinged on the government not implying that people are doing anything wrong by not signing up. It is a tax that citizens are allowed to pay in lieu of enrollment. But with such a massive effort touting Obamacare, the government is directly interfering in the choice. There is no neutrality. It amounts to coercion, and creates the implication that by not enrolling, citizens are doing a bad thing. Does this contradict the Supreme Court decision?