DC Circuit delivers death blow to Obamacare subsidies

UPDATE:  Just a few hours after Halbig v. Burwell was released by the DC Circuit the 4th Circuit issued its ruling in an identical case, and reaching just the opposite conclusion. Unlike the DC Circuit judges, the 4th Circuit judges decided the case on the basis of Congressional “intent”, rather than the actual text that Congress (Democrats only) put into the statute. This reminds me of a quote from my favorite dead Judge, Benjamin Cardozo, who famously said in a case involving the same sort of arguments, whether to supply words that the legislature did not use itself by referring to what they must have intended. Cardozo’s response to that argument was, “The ease with which they could have said so themselves is a warning to us not to supply it by interpretation.”  

It’s even more absurd to try to devine Congressional intent in this case because they themselves didn’t know what was in it, making it impossible to know their intent; they could not have known their own intent since dear leader Nancy Pelosi infamously said, “We had to pass it so we could find out what is in it.”  They had no idea what they were doing, they had no intent other than a selfish desire to jam it down the throats of the American people with highly questionable parliamentary maneuvers, without reading it or knowing what was in it.  The 4th Circuit judges’ claim that they know the intent of the Congressional rascals masquarading as responsible law makers is pure folly.

The vast number of Obamacare policies fall under Federal exchanges and not state exchanges since more than half the states have refused to set up their own health care exchanges. The actual text of Obamacare allows the Feds to subsidize only those policies issued through state exchanges.  A Federal lawsuit, Halbig v. Burwell, has been languishing the DC Circuit Court of Appeals for some time, but today that court released it’s stunning opinion that the text of Obamacare actually means what it so plainly says.  The IRS had issued a regulation stating just the opposite, and that regulation is held to be “not in accordance with law” by today’s decision.

Judge Griffith, writing for the majority in this 2-1 decision, said:

Section 36B of the Internal Revenue Code, enacted as part of the Patient Protection and Affordable Care Act (ACA or the Act), makes tax credits available as a form of subsidy to individuals who purchase health insurance through marketplaces—known as “American
Health Benefit Exchanges,” or “Exchanges” for short—that are “established by the State under section 1311” of the Act. 26 U.S.C. § 36B(c)(2)(A)(i). On its face, this provision authorizes tax credits for insurance purchased on an Exchange established by one of the fifty states or the District of Columbia. See 42 U.S.C. § 18024(d). But the Internal Revenue Service has interpreted section 36B broadly to authorize the subsidy also for insurance purchased on an Exchange established by the federal government under
section 1321 of the Act. See 26 C.F.R. § 1.36B-2(a)(1) (hereinafter “IRS Rule”).

Appellants are a group of individuals and employers residing in states that did not establish Exchanges. For reasons we explain more fully below, the IRS’s interpretation of section 36B makes them subject to certain penalties under the ACA that they would rather not face. Believing that the IRS’s interpretation is inconsistent with section 36B, appellants challenge the regulation under the Administrative Procedure Act (APA), alleging that it is not “in accordance with law.” 5 U.S.C. § 706(2)(A).

On cross-motions for summary judgment, the district court rejected that challenge, granting the government’s motion and denying appellants’. See Halbig v. Sebelius, No.
13 Civ. 623 (PLF), 2014 WL 129023 (D.D.C. Jan. 15, 2014). After resolving several threshold issues related to its jurisdiction, the district court held that the ACA’s text,
structure, purpose, and legislative history make “clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges.” Id. at *18. Furthermore, the court held that even if the ACA were ambiguous, the IRS’s regulation would represent a permissible construction entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Appellants timely appealed the district court’s orders, and we have jurisdiction under 28 U.S.C. § 1291. Our review of the orders is de novo, and “[o]n an independent review of the record, we will uphold an agency action unless we find it to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Holland v. Nat’l Mining Ass’n, 309 F.3d 808, 814 (D.C. Cir. 2002) (quoting 5 U.S.C. § 706(2)(A)). Because we conclude that the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges “established by the State,” we reverse the district court and vacate the IRS’s regulation.

As many as 90% of those signed up for Obamacare so far are getting subsidies, most through Federal exchanges.  This case says the text of the Obamacare statute prohibits that.  It is inevitable that a statute this complex will not work as it was written, and there is no way any amendment is going to make it through Congress now.  This could be the last best hope of finally getting rid of the monstrous and damaging legislation that threatens to destroy the American health care system and bankrupt the country, as well as negate the rule of law resulting from the unchecked power of radical politicians and rogue agencies such as the IRS.

The case will of course be appealed, first to an en banc panel of the DC Circuit, and then probably to the Supreme Court.  What will John Roberts do then?  Will he call a subsidy a tax?

Millennial’s crazy belief system

If the polls are correct, the so-called “millennials”, those born from about 1984-1996, currently in the 18-30 age group, hold beliefs about politics and government so hopelessly inconsistent you’d have to wonder what they’ve been smoking.  A clear majority of them say that government is corrupt and incompetent, but they want more of it. See, The Chaotic Belief System of Mellennials and/or the Reason-Rupe Survey of Millennials’ Attitudes Towards Government.

A clear majority of millennials tell pollsters they favor:

  • private accounts for Social Security
  • cutting government spending
  • cutting taxes
  • a smaller government providing fewer services with low taxes
  • a society where wealth is distributed according to achievement
  • reducing regulations
  • reducing the size of government

But in the same breath they say:

  • government has a responsibility to guarantee every citizen has a place to sleep and enough to eat
  • the federal minimum wage should be raised to $10.10 an hour
  • it is government’s responsibility to guarantee everyone access to health care
  • government should ensure everyone makes a living wage
  • raising taxes on the wealthy would help the economy
  • spending more on job training would help the economy
  • government should spend more on assistance to the poor even it means higher taxes
  • more money should be spent (by the government presumably) on infrastructure
  • government should provide more services, when taxes are not mentioned
  • government should guarantee everyone a college education

Either pollsters are wording questions in a confusing way or millennials are barking crazy. Perhaps a little of both.

If one assumes the poll questions are straightforward the one thing for sure is that millennials are low-hanging fruit for Democrats and liberalism. Democrats are already getting the majority of the millennial vote although the percentage seems to be declining.  This highlights the problem with the GOP in not sufficiently distinguishing itself from Democrats.  Many political commentators have pointed out, with empirical data to back it up, that Republicans do much better on election day when they have clearly contrasted themselves as being different from Democrats.  When they try to position the GOP as wanting the same things as Democrats only being better managers, they do poorly.  Full bore liberalism beats liberalism light every time.  The full bore conservatism of Ronald Reagan gave the GOP two landslide victories in 1980 and 1984, but for some reason the GOP establishment has forgotten it.

The GOP, if it were smarter, would see this flat out inconsistent thinking of millennials as an opportunity to win them over by educating them that they cannot get any of the things they say they want from a big government. The GOP needs to show them that the list of things they say they favor will ever be realized only if we have a federal government restricted to its limited and prescribed powers as defined by the U.S. Constitution.  The sort of big government that will result from trying to provide the other list of things they want government to do will be so dysfunctional and corrupt as to fail in all of those things while also negating the first list of things millennials favor.

The millennials may have a crazy belief system, but the GOP establishment is just as crazy if it doesn’t see how imperative it is for the future of their children and grandchildren to do all they can to show the millennials that the GOP is their best and only hope for them to get what they say they want. They way to do that is to do what Ronald Reagan did; proudly and articulately explain the principles of conservatism.

Unfortunately, the GOP establishment is presently in the process of doing the opposite, by trying to purge conservatism out of the Republican party. If they continue on that course, they will be handing the millennials to the Democrats forever.

The “hair trigger” problem for a defensive handgun

What makes a gun easier to shoot intentionally makes it easier to shoot unintentionally.  There are legal as well as practical implications to this.

Self defense is a complete defense to a charge of homicide or assault.  It is also a complete defense to a civil suit for wrongful death or personal injury.  An act of self defense is an intentional act. An unintended act cannot be self defense because for self defense to be established one must have reasonably believed them self or others to be in imminent peril of serious bodily injury or death, and to have acted out of necessity to prevent it.  The act of self defense that provides a shield from criminal charges or civil liability is always a deliberate, intentional act based upon reasonable perception under the totality of the circumstances.

If you pulled the trigger when you didn’t intend to do so, it cannot be self defense.  It might have been an “accidental” shooting, if there were such a thing.  There isn’t.  All unintentional shootings will subject the shooter to the possibility of some sort of criminal charge, even if only a misdemeanor.   A civil suit will be likely as well, and might be the worst consequence [aside from the horrible knowledge that you have negligently brought grievous harm to another person].

Don’t ever modify the trigger of a gun carried for personal protection to make it have a trigger pull lighter than set by the factory when the gun was made.  Not only will that make the gun more dangerous to yourself and others by enhancing the possibility of unintentional discharge, the act of modifying the trigger to make give it a “hair trigger” will give a plaintiff’s lawyer or a public prosecutor something to use against you in a courtroom should you ever have a gun “accident.” A jury will be less sympathetic to your side of the case making it more likely you will be convicted of a crime or have a large civil judgment entered against you.

Light triggers are for guns used exclusively for competitive target shooting, not personal protection.  In that same regard, don’t get in the habit of cocking a double action revolver to shoot it in single action mode if you carry a revolver for personal defense.  Most revolvers have about a 10-pound trigger pull in double action mode, reduced to about 2 pounds in single action mode.  If you cock your revolver as soon as you perceive a threat but before you’ve made the decision to shoot in self defense, and you unintentionally discharge the weapon too soon, your self defense claim may be in jeopardy.

The nightmare of a criminal attack may be over in seconds. The emotional nightmare will last longer. The legal nightmare, if there is one, can last for years, even decades.

The issues and legal principles discussed herein apply equally to police officers and lawfully armed citizens.  For a relevant case see: Santibanes v. City of Tomball, Tex., 654 F.Supp.2d 593 (2009).  See also, article by Massad Ayoob, Ayoob Files, Handgunner Magazine, September/October 2014.

The graph that tells it all

As you drive along the interstates this summer and see all those massive wind turbines that are defiling the landscape and eating up billions of taxpayer dollars to pay the government subsidies without which none of it would exist, think also that if decarbonization [the supposed justification of all those wind turbines] is to be achieved by expanding renewables the expansion will have to come in wind, solar and biomass. The graph below tells the story. It shows how far growth in wind, solar and biomass has carried resulted in decarbonization so far:

Percentage of Global Energy Generated by wind, solar and biomass, 1965-2013:

It’s not happening and probably never will. In the meantime American taxpayers will continue to get soaked and the wind turbines gurus and the landowners who lease their land for them will continue to get richer.

This is what economists call “negative externalities,” costs that are imposed on parties who did not chose to bear them and get nothing in return for them.  He who picks up the tab for projects that enrich others is called the “forgotten man.”  That would be us schlubs who pay taxes.

Rick Santelli on the Fed, Money and Markets

This is good, in fact, it’s awesome. Nobody agrees with Santelli but thats probably as is must be since they’re all Wall Street cheerleaders and he is…exactly right.
June 14, 2014, on CNBC:

Capitalism, Socialism, and Morality

You may know, perhaps from personal experience, that if you put a bumper sticker on your car that reveals or even suggests that you are a conservative your car may be keyed.  Liberal bumper stickers don’t elicit keying.  Conservatives, as a general rule, just don’t think that criminal property destruction is a way to deal with liberals.  We just think they are wrong, even misguided.  We don’t hate them. They hate us, though. Fiercely.  Enough to cause us thousands of dollars of damage just to make the point that they disagree with our bumper sticker.

Then they preach endlessly on tolerance.

A new report, in The Economist of all places, finds that the more people are exposed to socialism, the worse they behave.  Germany would seem a perfect laboratory for an experiment with half of its people living under Soviet-style Communism for over 40 years.  The other half lived the same period under capitalism, or at least an economic model as close to capitalism as Europe could manage.  Pure free market capitalism existed in the 20th Century only in British Hong Kong.  It exists in its pure form nowhere today, having been largely displaced by crony capitalism which is a polite term for fascism.

The authors of the study reported in the Economist are researchers from the University of Munich and Duke University in the U.S.  They conducted an experiment on 250 Berliners in which their honesty in self reporting their scores in a game in which they could win some money was tested.  They were asked to roll a die 40 times and self report their score after each roll.  Each participant was to be paid up to €6 ($8), based upon their overall score.  The higher the score, the higher the payoff.  They were allowed to take either the top or bottom number on a roll of the die.  Thus, if after a roll the top number is 2, the bottom number will be 5, or vice versa.  Before each roll they were to commit to whether they would count the top or bottom number as the score on that roll.

Their choice of either top or bottom number in advance of each roll was the honesty test because they were not required to tell anyone which they had chosen. Thus, a opportunity to cheat without detection was introduced into the experiment.  Since a higher overall score meant higher winnings, the experiment tested their willingness to lie for personal gain.

Assuming this group of Berliners included participants who where old enough to have lived either in the capitalist half of Germany or the Communist half, this might be called an experiment that tested the relative sense of morality one would develop living under each system.  It might provide some sort of answer to the perennial question which system inculcates morality the best, the socialist system of sharing the wealth or the capitalist system of every dog for himself.  An old joke in the Soviet Union, told in the Economist article, is that capitalism is where man exploits man, and socialism is just the opposite.

The researchers relied on statistical analysis to test the honesty of the participants. Forty rolls of a die is enough to expect that an honest participant would report nearly an equal number of ones, twos, and threes, as of fours, fives, and sixes.  Predictably, there were many cheaters in the test group who reported a statistically unlikely disproportionate number of fours, fives and sixes.

The Economist article commented that growing up under socialism seemed to affect one’s willingness to lie for personal gain:

After finishing the game, the players had to fill in a form that asked their age and the part of Germany where they had lived in different decades. The authors found that, on average, those who had East German roots cheated twice as much as those who had grown up in West Germany under capitalism. They also looked at how much time people had spent in East Germany before the fall of the Berlin Wall. The longer the participants had been exposed to socialism, the greater the likelihood that they would claim improbable numbers of high rolls.

This was bit too much for the left leaning Economist editors I imagine, and perhaps for the University researchers as well, because the Economist then they tried to undermine the results of the study:

The study reveals nothing about the nature of the link between socialism and dishonesty. It might be a function of the relative poverty of East Germans, for example.

Right.  If the study reveals nothing about the nature of the link between socialism and dishonesty then just was the purpose of the study? Why did they even bother to determine the age of the participants and in what part of Germany they had lived in different decades? Well anyway, their liberal consciousness assuaged, or the perhaps the liberal consciousness of the Economist editors, they walked that back as well:

All the same, when it comes to ethics, a capitalist upbringing appears to trump a socialist one.

The study relies on inductive reasoning, from the specific to the general. Deduction, reasoning from the general to the specific, can also shed light on the question of whether socialism or capitalism breeds dishonesty and unethical behavior. All one need do is consider the incentives that prevail under capitalism and compare those to the incentives under socialism. Under capitalism, since it is based upon voluntary exchange, a reputation for honesty and fair dealing is a valuable asset for anyone trying to make his way in a free market capitalist society. Under socialism there is little need for honesty and little reward for it. In fact, to borrow the punch line of the old Soviet joke, it is just the opposite under socialism. Lying about your personal situation can get you more benefits under socialism, and since government benefits are about the only source for improvement in one’s financial situation, there is a powerful incentive to lie for personal gain.

The movie, The Lives of Others, is available on blue ray and dramatically explores this subject.  The special features on the blue ray wherein the director gives his comments are invaluable.

Fifth Circuit defies Supreme Court on Racial Preferences

The Left loves racial preferences so much its judges will even defy their ultimate boss, the U.S. Supreme Court, to keep them.  The University of Texas prefers racial minorities over white students in its admission policy.  It does this by using lower standards for racial minorities.  Why is this bad? It’s bad because it sets up minority students admitted under the lower standards for failure later on in their journey through life. That failure often comes while still in college when they either flunk out or learn so little that they have trouble gaining employment later or keeping employment once gained.  This leads to demoralization and resentment, setting them up for further failure.  In other words, to make liberals feel good about themselves it’s necessary to hand minorities the potential for life long problems that will diminish their future success and happiness.

If minorities who cannot meet the same standards as other students were instead admitted only after they improved their academic ability up to the same standards as others, or admitted to a different higher education environment or a trade school where they could experience success instead of failure, their future lives would be more productive and happier.

In the first case of Fisher v. University of Texas the Supremes decided 7-1 [Ginsburg dissenting, Hagan not participating] in reversing and remanding back to the Fifth Circuit, saying that no deference should be given to the University administrators in their contention that they had sought the least restrictive means to accomplish their goal of admitting more minority students because they simply cannot be trusted to be reasonable [or truthful they might have added].

Justice Kennedy wrote the majority opinion, saying thus:

The parties asked the Court to review whether the judgment below was consistent with “this Court’s decisions interpreting the Equal Protection Clause of the Four- teenth Amendment, including Grutter v. Bollinger, 539 U. S. 306 (2003).” The Court concludes that the [5th Circuit] Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978) (opinion of Powell, J.).

Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. That decision is vacated, and the case is remanded for further proceedings. 

In the present case of Fisher v. Univ. of Tex. at Austin , two judges on a 3-judge panel simply reinstated their previous decision that the Supreme Court vacated, essentially thumbing their noses at the Supreme Court.  Of course, they didn’t do it so overtly. They wrote a 43-page opinion that attempts to obfuscate what they’ve done.  No intelligent person is fooled by that, however. Especially not the third judge on the panel, Emilio M. Garza, who begins his dissenting opinion as follows:

By holding that the University’s use of racial classifications is narrowly tailored, the majority continues to defer impermissibly to the University’s claims. This deference is squarely at odds with the central lesson of Fisher. A proper strict scrutiny analysis, affording the University “no deference” on its narrow tailoring claims, compels the conclusion that the University’s race- conscious admissions process does not survive strict scrutiny.

Judge Garza’s dissent is well worth reading by anyone, lawyer or non-lawyer.  It begins on page 44 of the current Fifth Circuit opinion cited above.  In my estimation, it approaches the quality and importance of the dissent by Justice John Marshall Harlan in Plessy v. Ferguson.


Detroit Police Chief Credits Armed Citizens for Drop in Crime

A 88-year old man opened his door for a woman who asked for help, but then two male accomplices rushed in beating the elderly man severely and robbing him. A day later a newspaper reporter came to his door and the man would only speak to him through the closed door. When two other reporters then appeared on his porch he panicked and fired off shot that lodged in a tree without hitting anyone. So far, he is undergoing psychological evaluation and hasn’t been charged. Chief James Craig is sympathetic, saying Detroit’s law-abiding citizens are getting itchy trigger fingers because they are fed up with crime.

In a rare statement by a politically appointed chief of police, Craig is supportive of armed citizens and believes they deter crime. This is from a Detroit News story, by George Hunter on July 16:

The incident [of the elderly man shooting at reporters on his porce] was the latest in a string of homeowners opening fire to defend themselves, although after a flurry of such shootings early this year, before Monday there hadn’t been a reported incident since May 4 — an indication that criminals are thinking twice about breaking into people’s houses, Craig said.

Detroit has experienced 37 percent fewer robberies in 2014 than during the same period last year, 22 percent fewer break-ins of businesses and homes, and 30 percent fewer carjackings. Craig attributed the drop to better police work and criminals being reluctant to prey on citizens who may be carrying guns.

“Criminals are getting the message that good Detroiters are armed and will use that weapon,” said Craig, who has repeatedly said he believes armed citizens deter crime. “I don’t want to take away from the good work our investigators are doing, but I think part of the drop in crime, and robberies in particular, is because criminals are thinking twice that citizens could be armed.

“I can’t say what specific percentage is caused by this, but there’s no question in my mind it has had an effect,” Craig said.

Craig made national news in January, when he told The Detroit News he believed armed citizens deter crime — an unusual stance for an urban police chief. In May, the chief was featured in an NRA publication, America’s 1st Freedom, in a cover story titled “A Show of Courage in Detroit,” in which Craig reiterated his support for citizens using guns to protect themselves.

Support for Chief Craig’s conclusions on crime reduction as a result of a well-armed citizenry can be found in many places, including but not limited to the following: Targeting Guns, firearms and their control, by Gary Kleck of Florida State University, finding that as early as the 1990’s there were more than 2 million defensive gun uses in the United States and that in over 90% of the cases the criminal broke off the attack after the presentation of the gun without shots fired; More Guns, Less Crime, Third Edition, by John Lott. Lott’s thesis has been attacked by gun control advocates ever since its first edition appeared over 10 years ago. No serious challenge to Lott’s empirical research has ever been successful in bringing his conclusions into serious question. All the gun haters can say is they don’t like the facts Lott has established.

From April to July of 1994 the Hutus murdered over a half million Tutsis with machetes in Rwanda. Only a very few Tutsis had firearms. None of them were harmed, nor did they harm anyone else. Those few guns enabled those few Tutsis to create a small zone of safety in a sea of murder and mayhem.

Robert Heinlein was correct: A well-armed society is a more polite society. A well-armed society has less crime. A well-armed society is more civilized.