Category Archives: Law

Anticipating A Turn of The Health-Care Screw

Federalism, Healthcare, Individual Rights, Law, The Courts

Nothing short of a total repeal of Obama care will do, because such a repeal will amount to nothing more than a “do no more harm” injunction. However, even in the unlikely event that the SCOTUS deals a set back to Obama’s politburo of proctologists in the waiting, and repeals the hulking bill–we are still screwed, as we currently labor under a costly, unwieldy “patchwork of indemnity insurance arrangements, managed care, private payment, and charity.” Free market incentives are not exactly robust in the current Third-Party system.

Until tomorrow, Amy Howe anticipates the health-care decision, “In Plain English,” at the SCOTUS Blog:

Once the Court does turn to health care, there are four questions before it. Three of those questions revolve around the “minimum coverage” provision, popularly known as the “individual mandate.” Of course, the question keeping the White House, Congress, and everyone else in the country on pins and needles is whether the mandate – which would require virtually all Americans to buy health insurance by 2014 or pay a penalty – is constitutional: can Congress, using its power under the Constitution to regulate commerce between the states, make people buy health insurance? (More detailed Plain English discussions of the substantive issues in the case, including the individual mandate, are available at this link.)

But before the Court can decide whether the mandate is constitutional, it must first decide whether it can even rule on this question at all. The potential obstacle to the Court’s review of the mandate is the Anti-Injunction Act (AIA), an 1867 law that prohibits lawsuits to challenge a tax until the tax has actually gone into effect and needs to be paid. At least one lower court has concluded (and the federal government once even argued) that the “penalty” which would be imposed on someone who doesn’t buy health insurance under the mandate is a “tax”; therefore, this line of reasoning goes, someone who believes that the mandate is unconstitutional cannot bring a lawsuit making that argument until after the mandate actually goes into effect in 2014.

If the AIA applies to the lawsuit over the mandate, then the Court cannot consider the challenge to the mandate even if both the federal government and the states challenging the law want the Supreme Court to decide the case. So if at least five of the nine members of the Court were to conclude that the AIA does apply to the mandate, that would be the end of the matter. The Court would not discuss, much less rule on, whether the mandate is constitutional, nor would there be any reason for the Court to weigh in on what parts of the law, if any, can survive if the law is unconstitutional – the “severability” question. Instead, the Court would skip straight to the fourth and final question, dealing with the constitutionality of a provision that expands eligibility for Medicaid, the state-federal partnership that provides health care to the poor.

What the Court will in fact decide about the AIA obviously remains to be seen tomorrow. After the oral argument in March, most Court watchers believed that the Court would not regard the AIA as a bar to reviewing the mandate. But if that issue went the other way, that decision would postpone a decision on the mandate until well after the presidential election – which might be an appealing option both for political reasons and if the Court is having a hard time coming up with a majority to resolve the mandate issue.

At least for tomorrow, all that anyone will really be interested in with regard to the AIA is the Court’s bottom line: can it review the mandate issue or not? If it agrees with both sides that it can, all eyes will then turn to that constitutional question. Most Americans care about the bottom line: is the mandate constitutional? Even if the Justices disagree on the reasoning, the mandate would still survive.

If the mandate does survive, then the Court’s work is almost done; all that would be left would be the Medicaid issue, which we will discuss in a moment. But if at least five Justices vote to strike down the mandate, then the Court will have to decide what other parts of the law, if any, fall with it. On this “severability” question, the Court will again have several options. It could allow all of the rest of the ACA to stay in place; it could conclude that the rest of the law must go too (as the states have argued); or it could settle on a middle ground – for example, as the federal government argued, by striking down the provisions that are inextricably linked to the mandate but allowing the others to go into effect.

Finally, as long as the Court doesn’t conclude that the entire ACA must fall, it will have to resolve one more issue: does another provision of the Act violate the Constitution because it effectively coerces the states, requiring them to comply with the ACA’s expanded Medicaid eligibility requirements or risk losing all of the money that they receive for Medicaid from the federal government? The lower court agreed with the federal government that it does not, and the Justices seemed to be leaning that way at oral argument. But as we saw on Monday when the Court announced its decision in the Arizona case, the oral argument is not always a foolproof predictor of how the opinion will turn out.

So check back tomorrow; we’ll have our first reporting on the decision as soon as it is announced, and then we’ll break it down into Plain English as soon as possible after that.

Kris Crossing The SCOTUS’ S.B. 1070 Decision

Constitution, IMMIGRATION, Law, States' Rights, The Courts

The fact that both sides in the immigration-enforcement debate are claiming victory in SUPREME COURT OF THE UNITED STATES: ARIZONA ET AL. v. UNITED STATES attest to just how whishy-washy the split decision today out of the SCOTUS was.

The most informative by far is “Kansas Secretary of State Kris Kobach, who helped draft the Arizona statute, as well as similar laws in other states.”

PBS’s GWEN IFILL asked Kobach whether “this stop-and-check provision that was upheld was at the heart of the law.”

KRIS KOBACH, Kansas Secretary of State: “Yes, I think so. It is certainly part of the law that has the greatest scope, so when Arizona claims victory, I think that’s correct. It’s a qualified victory for the states, the part that has the greatest reach.

Put it this way. That provision will kick in, in thousands of law enforcement stops every day throughout the state of Arizona. So it has a great reach. The other provisions are less significant, for example, the part criminalizing the illegal seeking of work.

That’s only going to be relevant if a county launches an investigation of a particular employer, and then they discover certain unauthorized aliens who have broken that law. So, it’s much narrower. The big one was the one that was upheld today. And I think that’s going to give a green light to other states who — some states have already copied that provision of Arizona law.

And there are additional states that probably will try to do so in January in 2013, when the legislative sessions begin again.”

ABOUT the alleged racial profiling in the law, Kobach said this:

… the law in four different sections expressly prohibits application of the law differently to a person whether based on his skin color, his national origin or his ethnicity. The law forbids racial profiling.
The Department of Justice knew that that argument would get nowhere in a facial challenge. And if in the future you had a bad apple police officer who was trying to racially profile, he would be breaking SB-1070, he would be breaking the law. And so his actions wouldn’t in any way indict the law. The bottom line is…

GWEN IFILL: …What is it — how do you walk the line that the court laid out today, which is a law that can — that complements federal law, but doesn’t supersede it, as the court said so much of the Arizona statute did?

KRIS KOBACH: “Well, we now have some clear guidance from the court. We know that the arrest provisions of Section 2-B, the main provision we have been talking about here, those are perfectly fine. We have got a number of other states that have already implemented them and are in circuit courts right now.

There are a bunch of states waiting in the wings to do the same thing. Those can move ahead. If a state wanted to do the criminalization of seeking employment, the Supreme Court has said no.

And one other thing that is really important about this opinion, the court clarified what I have been arguing all along and I think most people who follow this specific area of preemption law know. And that is there have always been windows of opportunity where states can act as long as those actions are consistent with federal law.

And the court reiterated that today. They said, in our federal system, the courts can take certain steps to discourage illegal immigration and communicate and assist with the federal government, assist the federal government in enforcing our immigration laws. And the court reiterated that today. So, I think you’re going to see states continuing to take reasonable steps to try to rebuild the rule of law. …

…This law simply is about enforcing the rule of law and allowing state and local governments to provide a reasonable amount of help when they’re in the course of their normal duties. There is no disrespect for a person’s humanity by simply saying we have certain laws in this country and we simply want to inquire as to whether you’re here legally.

As far as diminishing states’ rights, there is one aspect that I would certainly concede in the majority opinion that says — what the court did is they looked at Congress acting in 1986 when Congress criminalized the employment of an unauthorized aliens, when you have a large number of unauthorized aliens or you have a pattern and practice.

And the court said, well, we’re going to read into what Congress did. We’re going to look at what Congress didn’t do. And we’re going to read into Congress’ decision not to criminalize the employment — the actions by the employee. And we’re going to say that inaction by Congress preempts the states as well.

I think that was a troubling part of the opinion because, you know, when you have inaction by Congress, 99 percent of the time they’re not passing something, and you start drawing conclusions from congressional inaction, then you potentially can displace the states in a way that the framers never intended. …

…certainly Congress can and should take certain actions.

I think Congress should, for example, follow Arizona’s 2007 law that was upheld by the Supreme Court last year requiring E-Verify for all employers in the state. We should have that nationally.

But on the other hand, I would say there are a lot of things we could do to improve our enforcement of the laws. People always say, the system is broken, the system is broken. Well, not exactly.

Some aspects are, but there are plenty parts of the system that work just fine, but we lack an executive branch right now that wants to enforce the law.”

UPDATED: Warn White Kids? Fogetaboutit (Culling Your Kids)

Crime, Criminal Injustice, Journalism, Law, Left-Liberalism And Progressivisim, Propaganda, Race, Racism

If you want the truth about the plague of black-on-white violence, don’t watch Big Media’s news reports, where they work overtime to mask the facts. Don’t tune in to the vain chit-chat on Judge Jeanine’s show; read the Comments section. Despite the baffle-gab on cable, Americans get it. But why don’t they warn their vulnerable kids?

Here is a comment one wise guy appended to the tangent title on Judge Jenine’s Page (“Judge Jeanine Investigates the Mysterious Death of a High School Graduate.” She did no such thing.)

Alanbanford:

Let’s cut through the chase, the High School Graduate was killed because he was White. Don’t insult the rest of us with everything under the sun except what it really is, and very common. Let’s look at FBI murder stats, put that on TV.

“Alanbanford” was referring to Marley Lion, RIP, the prototype child, with the prototypical WASP parents I wrote about in “Sacrificing Kids To PC Pietism”:

Mild and meek, vulnerable boys like Carter Strange [or Marley Lion] deserve to be informed of the real dangers they face by the formative figures in their lives. Instead, these errant adults feed these precious people a pack of lies, and enfeeble them with pieties …

In any event, it’s not easy to find the Marley Lion story, and when it is “written up”—journalism of white-on-black hate crimes being so shoddy—the details are purposefully sketchy. Here is a journalism 101 FAIL from the Post and Courier’s EDWARD C. FENNELL:

Lion was shot multiple times early Saturday in a sport utility vehicle he had parked off Savannah Highway. Before dying, Lion told police he parked to sleep because he’d had too much to drink and was unable to drive home.

Paul Bowers of the Charleston City Paper does the bare minimum:

Marley Lion, a recent graduate of Academic Magnet High School, was shot inside his Nissan Pathfinder early Saturday morning in the parking lot by Famous Joe’s Bar and Grill at 1662 Savannah Highway, and around 4:05 a.m., police found him lying on the ground beside the vehicle. Lion was still alive at the time, and he told an officer he had been sleeping in the car because he was too intoxicated to drive home. He said two black males walked up to the vehicle and one of them shot him five times before they left the parking lot on a gravel path toward Yew Street.
The video shows someone walking up to the vehicle, doing something near the driver’s-side front door, and then leaving the scene when the vehicle’s headlights start flashing on and off. Detective Richard Burckhardt, the lead investigator in the case, says this is the point where Lion presses a button on a key fob to trigger the vehicle’s alarm system. About 20 seconds later, someone approaches Lion’s car with a gun and fires several times.
Police say the gunman is a black male who appears to be taller than the vehicle, putting him in the range of 5 feet 8 inches to 6 feet tall. He has a medium to stocky build and was wearing a striped or checker-patterned shirt at the time of the murder, and he fled on foot toward the Ardmore neighborhood afterward, according to the police investigation.

Poor boy. He pulled over because intoxicated. He used good judgement—and lived long enough to tell the tale. But Marley’s dying words were for naught. As expected, an “errant adult” in the person of Charleston Police Chief Gregory Mullen has issued the standard obfuscations. “There is no indication that this crime was anything other than random, senseless violence.”

UPDATE (June 24): Anyone who has a child who looks vaguely like Morely—clean-cut, enviably pretty, all-American—will find it near impossible to watch this devilish culling of the boy. (I analyze the envy that propels en masse slaughter in Africa in “Into the Cannibal’s Pot.”)
And anybody who has a child that has been through the “system,” as has my own, will find that that kid has been groomed for sacrifice—and turns on her parent for warning her off.
Public education (helped by parents) has turned our kids into the prototypical white left-liberals, whose creed is PC pietism, and who are passionate about sacrificing their precious lives for Da Creed.

Minimum Wage, Maximum Economic Illiteracy

Democrats, Economy, Labor, Law, Regulation

The Bill to raise the minimum wage has three Democratic lawmakers — Reps. John Conyers, Jr. (D-Mich.), Dennis Kucinich (D-Ohio), and Jesse Jackson, Jr. (D-Ill.) — swelling with pride.

The “Catching Up to 1968 Act of 2012” … would spike the minimum wage from $7.25 an hour to $10 while mandating that future increases be tied to inflation. Jackson and his Democratic colleagues proclaimed that the legislation would model the 1968 minimum wage rate for inflation in today’s dollars. “This legislation is long-overdue and sorely needed,” Conyers affirmed. “More than 30 million Americans would see their wages increased, which would provide an immediate boost to the economy.”

Today’s youth don’t have the economic smarts with which to understand why they are less likely to be hired under legislation that fixes the price of their labor above its productivity.

Those who claim to represent unemployed youngsters—whose labor-participation rate has been in decline—don’t much care that such legislation circumvents voluntary exchanges in the market. Because government has fixed the price of labor, economic actors are prevented from engaging in mutually beneficial, voluntary exchange.

Still less is the hike justified because it impoverishes. For government can bid wages above market value, but it cannot compel business to hire, the outcome of which is unemployment among the young and the poor.