Free Markets, Free People

Legal Affairs

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The (potential) unravelling of ObamaCare

In the DC Circuit this week:

The U.S. Court of Appeals for the D.C. Circuit delivered a huge blow to Obamacare this morning, ruling that the insurance subsidies granted through the federally run health exchange, which covered 36 states for the first open enrollment period, are not allowed by the law.

The highly anticipated opinion in the case of Jacqueline Halbig v. Sylvia Mathews Burwell reversed a lower court ruling finding that federally run exchanges did have the authority to disburse subsidies.

Today’s ruling vacates the Internal Revenue Service (IRS) regulation allowing the federal exchanges to give subsidies. The large majority of individuals, about 86 percent, in the federal exchange system received subsidies, and in those cases the subsidies covered about 76 percent of the premium on average.

The essence of the court’s ruling is that, according to the law, those subsidies are illegal. They were always illegal, and the administration never had the authority to offer them. (According to an administration official, however, the subsidies will continue to flow throughout the appeals process.)

Don’t get to excited about this yet.  It was a 3 judge panel. And it will likely go to the Supreme Court. Finally, in a different Circuit (4th) a ruling says the subsidies are legal:

A different circuit court ruled today that subsidies offered through federally run exchanges are authorized on the law. This creates a circuit court split, which increases, but does not guarantee, the chances of an eventual hearing by the Supreme Court. It is also possible, and arguably even more likely, that the circuit split will be dealt with via en banc review.

Bottom line: a heavy shot across the bow of the sinking ship ObamaCare.  If the DC Circuit finding survives the review and an appeal to the Supreme Court, then foundering ship will take the next shot below the water line.  As for the law, it’s not going to get changed anytime soon with a Republican House.

As for the law, the DC Court said it was pretty clear to them:

“We conclude that appellants have the better of the argument: a federal Exchange is not an ‘Exchange established by the State,’ and [the relevant section of the law] does not authorize the IRS to provide tax credits for insurance purchased on federal Exchanges,” the decision says.

The law “plainly makes subsidies available only on Exchanges established by states,” the ruling says. “And in the absence of any contrary indications, that text is conclusive evidence of Congress’s intent. To hold otherwise would be to say that enacted legislation, on its own, does not command our respect—an utterly untenable proposition.”

Plain law, literally interpreted and applied.  Certainly not what we’re used too.  So let’s see how convoluted this gets moving up the line.  My guess is it will be unrecognizable after the lawyers begin to redefine terms and words and make their arguments.  By the end of it, it wouldn’t surprise me in the least to learn that “federal exchanges” now means whatever the IRS wants it to mean.  But clearly, the way to kill this monstrosity is to starve it.  And the way you starve it is to defund it … even if you have to do it bit by bit.

~McQ

DOJ to investigate “racist” Nebraska parade float

While the DOJ won’t even look into voter intimidation by the New Black Panthers in Philadelphia in 2008, it certainly will move itself to check out what Nebraska Democrats claim is the “worst shows of racism and disrespect for the office of the presidency that Nebraska has ever seen.”

The U.S. Department of Justice has sent a member of its Community Relations Service team to investigate a Nebraska parade float that criticized President Obama.

Here’s a description of the float:

A Fourth of July parade float featured at the annual Independence Day parade in Norfolk sparked criticism when it depicted a zombie-like figure resembling Mr. Obama standing outside an outhouse, which was labeled the “Obama Presidential Library.”

It was a “zombie-like figure” of Obama?  Now, as far as I know, zombies aren’t race specific. Anyone of any race can be a “zombie”, no?  However, they are defined as an “animated corpse”. That a pretty fair description of the man who now holds the office of the Presidency.  And my statement, I guess, is somehow a horrible show of disrespect for the office of the presidency.

Uh, no. No it’s not.

It is certainly a bit of disrespect for the man holding the office.  And I have to wonder where Nebraska Democrats were when George W Bush was in office, if this is the “worst” they’ve ever seen.  Frankly, I think it is exceedingly mild.

And, the outhouse?  Precisely where I’d say this presidency belongs.  The man in the White House is awful.  He’s the worst president I’ve seen during my lifetime and I thought Jimmy Carter was hard to beat.

So an animated corpse outside an outhouse is a pretty good bit of political satire if you ask me.

But apparently our DOJ now tries intimidate those exercising their right to free speech (you know, the 1st Amendment?  The one that prohibits government from trying to stifle it?).  Not that the DOJ or this administration is in anyway worried about allowing the Constitution or Bill of Rights to get in their way of a political vendetta.

~McQ

Time to put the IRS back in its place

This should be interesting:

A federal judge has ordered the IRS to explain “under oath” how the agency lost a trove of emails from the official at the heart of the Tea Party targeting scandal.

U.S. District Judge Emmet G. Sullivan gave the tax agency 30 days to file a declaration by an “appropriate official” to address the computer issues with ex-official Lois Lerner.

The decision came Thursday as part of a Freedom of Information Act lawsuit by conservative watchdog group Judicial Watch, which along with GOP lawmakers on Capitol Hill has questioned how the IRS lost the emails and, in some cases, had no apparent way to retrieve them.

The IRS first acknowledged it lost the emails in a letter to senators last month.

“In our view, there has been a cover-up that has been going on,” Judicial Watch President Tom Fitton said. “The Department of Justice, the IRS, had an obligation, an absolute obligation … to alert the court and alert Judicial Watch as soon as they knew when these records were supposedly lost.”

This isn’t Congress we’re talking about here.  Dissembling “under oath” in a Federal Court has (or at least used to have) severe consequences.  That ass that is the director of the IRS won’t be able to play his arrogant games this time.  And, his agency will actually have to have a plausible explanation and proof instead of hand-waves and fake outrage at the questions asked and answers demanded.

As polls have demonstrated, almost no one in the country believes the IRS’s convenient explanations – convenient for them.  And, as others have pointed out, they were in violation of the law when they didn’t archive all correspondence pending lawsuits they were involved in.  This wasn’t just some “slip up”.  The IRS knows what its legal responsibilities are and have exercised them in the past.  Their legal department knew that they were required, under the law, to ensure all internal correspondence was available.

This isn’t about a couple of “rogue agents in Cincinnati”.  This is about a rogue agency … period.  Time to bring it under control again and for once, figuratively speaking, seeing some bureaucratic heads roll.

~McQ

Watching the “progressive” left melt down over the Hobby Lobby decision

While I agree there may be far reaching implications concerning this decision and that the right might not like how all that plays out, I have got to say I have sore ribs from laughing at the hateful, screechy display put on by so-called “progressives” concerning the decision.

The first bit of nonsense they toss around is they’re being “denied” some sort of right to an abortion.  Of course, no one has denied them anything.  Planned Parenthood is ready when they are.  Abortificants are available to them through their doctor.

No the problem is they’ll have to pay for it, not someone else.  They don’t get to impose their will on others that don’t believe like they do.

And, of course, that just won’t do.  Especially when it comes to <sneer> “religious” people/companies.  Next thing you know they’ll be demanding kosher butchers sell ham and the Amish deliver goods by truck.

It is time to stem this tide of BS the left has unleashed. This cobbled up “right” to whatever they want and the equal “right” to have someone else pay for it.  The imposition of their will on others to benefit themselves.

Charles Murray explains in today’s Wall Street Journal that, in essence, what these people want is their brand of fascism imposed on all of your lesser beings and if they don’t get their way they’ll throw tantrum after tantrum:

But philosophically, the progressive movement at the turn of the 20th century had roots in German philosophy ( Hegel and Nietzsche were big favorites) and German public administration ( Woodrow Wilson’s open reverence for Bismarck was typical among progressives). To simplify, progressive intellectuals were passionate advocates of rule by disinterested experts led by a strong unifying leader. They were in favor of using the state to mold social institutions in the interests of the collective. They thought that individualism and the Constitution were both outmoded.

That’s not a description that Woodrow Wilson or the other leading progressive intellectuals would have argued with. They openly said it themselves.

It is that core philosophy extolling the urge to mold society that still animates progressives today—a mind-set that produces the shutdown of debate and growing intolerance that we are witnessing in today’s America. Such thinking on the left also is behind the rationales for indulging President Obama in his anti-Constitutional use of executive power. If you want substantiation for what I’m saying, read Jonah Goldberg’s 2008 book “Liberal Fascism,” an erudite and closely argued exposition of American progressivism and its subsequent effects on liberalism. The title is all too accurate.

Indeed.  Murray, however, distinguishes “progressive” from “liberal”, by claiming there is quite a degree of difference between the progressive left and the liberal left:

Here, I want to make a simple point about millions of people—like my liberal-minded dinner companions—who regularly vote Democratic and who are caught between a rock and a hard place.

Along with its intellectual legacy, the Progressive Era had a political legacy that corresponds to the liberalism of these millions of Democrats. They think that an activist federal government is a force for good, approve of the growing welfare state and hate the idea of publicly agreeing with a Republican about anything. But they also don’t like the idea of shouting down anyone who disagrees with them.

They gave money to the ACLU in 1978 when the organization’s absolutism on free speech led it to defend the right of neo-Nazis to march in Skokie, Ill. They still believe that the individual should not be sacrificed to the collective and that people who achieve honest success should be celebrated for what they have built. I’m not happy that they like the idea of a “living Constitution”—one that can be subjected to interpretations according to changing times—but they still believe in the separation of powers, checks and balances, and the president’s duty to execute the laws faithfully.

I’m not quite sure I agree but if there is a separation between the two, there is one hell of a big, wide, fuzzy border between the two.  Given the antics of the left these past few years and their frantic attempts to expand government control along with cultural change while the Democrats hold power causes me to still lump both contingencies into the same hateful mass. Afterall, as Murray points out, “liberal” is a term stolen from an era when it described a group who believed in small, non-intrusive government, the individual and his rights and capitalism.  That hardly describes “liberals” today.  In fact, at best I’d call them “progressive light”.

Anyway, something to munch on as we watch the left continue to throw their juvenile fits over a court ruling that went against them.  Now if we can only hope that the court continues to chip away at the oppressive law passed by a Democratic Congress popularly derided as ObamaCare.  With each chip and the subsequent acting out by the left, one can only hope that the more moderate in America will become less and less enchanted with their siren song.

~McQ

And this woman wants to be a lawyer

I’m sure by now you’ve at least heard of the female Duke freshman who is paying for her college tuition by being a porn star.

She apparently wants to be a lawyer some day.  She’s a woman’s studies major.  She says she can’t afford the financial aid she needs to study at Duke and so she’s decided to do porn.

So what’s my beef with her?  Well it is not that she is okay with being in porno.  Its not illegal, and if there is no force or fraud involved, I have no problem with her choice even if I disagree.

The beef?  Read this first:

I was offered scholarships at a lot of places. I was offered full tuition at Vanderbilt, for example, and was accepted into USC, Wellesley, Barnard, Pepperdine, some others. But I visited Duke last year on Blue Devil Days [Duke’s programmed weekend for admitted freshmen], and I remember walking into the Duke Chapel — I’m a very spiritual person — and just feeling an energy that told me, “This is the place you need to be.” And I felt something in the chapel in that moment that told me that I needed to be here and go to Duke and it was something that would be an amazing experience for me.

Yup … apparently something “spiritual” happened and she just had to choose Duke. Had too.  That is the place for her, even though she couldn’t afford it.  Even with a “full ride” at Vandy, she wanted to go to Duke instead.

And?

Would you still do porn if Duke cost less?

No. If Duke had given me sufficient financial aid, if they had given me the proper resources and made college affordable for my family, I would not have done porn. I would’ve just gotten through college and been fine. The financial burden that Duke put on me was absolutely enormous and insurmountable with the resources that I had.

And it’s Duke’s fault she’s doing porn because, apparently, it was Duke’s job to realize what a catch they had in her and make college more affordable for her family and herself.

So, instead of going to a very good college which had offered her full tuition (which I’m sure has “womens studies” major as well), she selfishly chose to go to one she couldn’t afford because, you know, something happened in the chapel at Duke or whatever.  She’s now doing porn to pay for it.  And it’s all Duke’s fault or at least Duke is the reason she had to make that choice.

You know, I think college has gotten outrageously expensive and I hope the bubble pops very soon.  ROI for the money has been shown to be not so good.  And the debt load one has to take on to get a degree is outrageous.

But seriously, her justification is just so pathetic I couldn’t pass up commenting on it.  Btw, she says she loves doing porn, so who cares?  But to lay it off on the school when it was completely a result of her choice of  schools – is just the ultimate in BS reasoning.

Yeah, if she ever gets a law degree, I’d say avoid her like the plague.

~McQ

Here we go again …

The cult of the vicitim is alive and well in the US.  It’s been fostered by politicians and lawyers who are open to the idea that one’s problems, whatever they are, are the fault of someone else.
And, given that doing so gives the pols more power (and the lawyers more money), the field is open for exploitation.  Remember the tobacco settlement?  Well guess who is next and why:

Lawyers are pitching state attorneys general in 16 states with a radical idea: make the food industry pay for soaring obesity-related health care costs.

It’s a move straight from the playbook of the Big Tobacco takedown of the 1990s, which ended in a $246 billion settlement with 46 states, a ban on cigarette marketing to young people and the Food and Drug Administration stepping in to regulate.

Yes, getting fat is the fault of “big food”.  Being obese is just not your fault.  So lets soak “Big Food” (and raise already high grocery prices through the roof, shall we?):

“I believe that this is the most promising strategy to lighten the economic burden of obesity on states and taxpayers and to negotiate broader public health policy objectives,” said Paul McDonald, a partner at Valorem Law Group in Chicago, who is leading the charge.

McDonald’s firm has sent proposals to AGs from California to Mississippi explaining how suing “big food” could help their states close budget gaps as billions in Medicaid expenditures eat a growing share of tax revenues.

In a letter to Pennsylvania Attorney General Kathleen Kane last year, McDonald noted that the state faced a $3.7 billion budget shortfall in 2012 and had to cut back on certain services. The state’s total Medicaid burden that year was $10 billion — and getting a piece of that back could help close the gap.

Yes friends it is the “most promising strategy to lighten the economic burden on the states and taxapayers” … say what?  Taxpayers?  Aren’t they the one’s who will foot the bill for the “Big Food” pass-through of cost to litigate this idea and then, if the lawyers are successful, pay the settlement?

Name someone you know who isn’t a “food adicit” and doesn’t buy food from “Big Food”, will you?  I’d be interested to meet them.

In the meantime, if this guy is successful in selling this to state AGs (and I’d not be surprised if they bit), the cost of food will go up as the cost of litigating this nonsense rises.  After all, Big Government is now in charge of health care costs (something they’ve actually driven up) and are desperate for ways to make it cheaper.

You’re just a victim, slugger.  And these guys have your best interests at heart, don’t you know?  Let the demonization of Big Food begin.

As an aside, it is a bit ironic that the laywer pushing this full employment for lawyers scheme is named McDonald, no?

~McQ

I’m pretty sure this is illegal

A tour group to Yellowstone Park was in the midst of their tour when the government shutdown occurred. Apparently, there was some nastiness. They were sent to the Old Faithful Inn at Yellowstone, and, as near as I can tell, illegally imprisoned.

The seniors quickly filed back onboard and the bus went to the Old Faithful Inn, the park’s premier lodge located adjacent to the park’s most famous site, Old Faithful geyser. That was as close as they could get to the famous site — barricades were erected around Old Faithful, and the seniors were locked inside the hotel, where armed rangers stayed at the door.

“They looked like Hulk Hogans, armed. They told us you can’t go outside,” she said. “Some of the Asians who were on the tour said, ‘Oh my God, are we under arrest?’ They felt like they were criminals.”

Well, they certainly seem to have been treated like criminals. They were lawfully present in the Park when the Park Service closed it, they were rounded up and sent to a park facility where they were required to remain indoors under armed guard, for two days. I’m no lawyer, but I’m pretty sure that constitutes a case of false imprisonment, to wit, the “illegal confinement of one individual against his or her will by another individual in such a manner as to violate the confined individual’s right to be free from restraint of movement.” If so, since the Park Rangers were acting in their official capacity, this should also constitute the crime of violating civil rights under the color of authority. I suspect that if I had been in that group, I would be in jail right now for openly defying the Park Rangers.

If these people don’t launch a massive lawsuit against the government, then they’re fools.

Frankly, I’m beginning to suspect the Second Amendment has some other purpose than protecting our right to hunt.


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Joe Scarborough is a blooming idiot, and “stand your ground” laws have been around for a long time

I include the former in the title because, as the token “rightie” on MSNBC, it didn’t particularly surprise me to see him fold like a cheap paper box to the culture there and utter these moronic thoughts about the Zimmerman/Martin case:

Because there is no defense for shooting down a young black man in a middle class neighborhood with Skittles. Armed with Skittles.

The man works for a news organization, for heaven sake (or one that claims to be a news organization).  There is no excuse for he or any other MSNBC employee to be this incredibly ignorant about what happened to the point that they think they’re credibly describing reality.  Here’s a clue, Joe … Martin didn’t attack Zimmerman with Skittles.  He attacked him with his fists.  Oh, and key point – Martin initiated the violence.  Got it?

And people are now claiming two other things that have no basis in reality.  One, that “stand your ground laws” are new and should be repealed and two, it was the stand your ground law that got Martin killed.

Dealing with the last first, no, what got Martin killed was choosing (notice the word) to attack George Zimmerman by hitting him in the nose and breaking it and then jumping on top of the man and bashing his head into a sidewalk.  Grow up people … Martin was the aggressor and it had nothing to do with “Skittles”.  Pretending otherwise is just willful ignorance.

But to the “stand your ground laws”.  Andrew Branca over at Legal Insurrection does a little research about the law and provides us with this:

The tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement or even to save a human life . . . [Therefore,] [t]he weight of modern authority . . establishes the doctrine that when a person, being without fault and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in reasonable exercise of his right of self-defence, his assailant is killed, he is justifiable.

That’s from an Indiana case ( Runyon v. State, 57 Ind. 80) in 1877 where the court found that no one is required to “retreat” when faced with what they surmise is a deadly assault.

In fact, the late comer to the game are these so-called “duty to retreat” laws.  Branca notes:

Stand-Your-Ground has been around a very long time. Indeed, it has always been the majority doctrine in the United States, with only a minority of states adopting a generalized duty to retreat before using deadly force in self-defense. Even today, only 17 states apply such a duty.

And, as with most stupid laws, common sense tells you the law provides perverse incentive to criminals:

A criminal who knows he can seize physical control of his immediate surroundings with no fear of death or grave bodily harm being visited upon him is emboldened to do exactly that. You get more violent aggression from the criminal element of society, not less, when you force law-abiding citizens to cede control to violent criminals.  It’s Heinleins’, “An armed society is a polite society,” turned topsy-turvy.

Check out hot burglary statistics in the UK since guns have been banned.  They make the case.

Everyone has a right to self-defense up to and including using the force they feel is necessary to preserve their life.  No one has a “duty to retreat”.  Because doing so only encourages criminals to up the ante.  The fact that supposedly bright people are unable to understand that and insist victims further endanger themselves and their lives instead of defending themselves speaks to a cluelessness about human nature that is really difficult to comprehend.

But we all know they’re out there — and they look a lot like Joe Scarborough.

~McQ

IRS scandal cover-up begins to unravel

The IRS scandal took on new impetus today with a interesting revelation:

Top IRS officials in Washington, D.C. planned and oversaw the agency’s improper targeting of conservative groups, according to the 72-year old retiring IRS lawyer who will testify Thursday before the House Oversight Committee.

Retiring IRS lawyer Carter C. Hull implicated the IRS Chief Counsel’s office, headed by Obama appointee William J. Wilkins, and Lois Lerner, the embattled head of the IRS’ exempt organizations office, in the IRS targeting scandal and made clear that the targeting started in Washington, according to leaked interviews that Hull granted to the Oversight Committee in advance of Thursday’s hearing.

Treasury Inspector General J. Russell George will return to Republican chairman Darrell Issa’s committee Thursday along with two central characters in the IRS saga: Hull and Cincinnati-based IRS employee Elizabeth Hofacre, who previously gave Hull’s name to congressional investigators, fingering him as her Washington-based supervisor.

Yup, the rats are deserting the sinking ship.  They are certainly not willing to go down with it and so they’re naming names.  And contrary to all the claims previously, it seems that Washington D.C. was indeed involved and not just a “couple of rogue agents in Cincinnati” as we were told in the beginning.

It’s usually never the crime itself that hangs politicians, but the attempted (and ham-fisted) cover-up.  And that’s precisely what this is beginning to look like.  As for being “ham-fisted”, is there anything this administration does that isn’t ham-fisted?

~McQ

The Zimmerman case in a nutshell

And William Saletan Slate articulates it:

The problem at the core of this case wasn’t race or guns. The problem was assumption, misperception, and overreaction. And that cycle hasn’t ended with the verdict. It has escalated.

I almost joined the frenzy. Yesterday I was going to write that Zimmerman pursued Martin against police instructions and illustrated the perils of racial profiling. But I hadn’t followed the case in detail. So I sat down and watched the closing arguments: nearly seven hours of video in which the prosecution and defense went point by point through the evidence as it had been hashed out at the trial. Based on what I learned from the videos, I did some further reading.

It turned out I had been wrong about many things. The initial portrait of Zimmerman as a racist wasn’t just exaggerated. It was completely unsubstantiated. It’s a case study in how the same kind of bias that causes racism can cause unwarranted allegations of racism. Some of the people Zimmerman had reported as suspicious were black men, so he was a racist. Members of his family seemed racist, so he was a racist. Everybody knew he was a racist, so his recorded words were misheard as racial slurs, proving again that he was a racist.

His summary is very on point.  This entire shameful episode has been both media and politically driven.  It has never been about justice.  Never.  It has been an attempt at a high-tech lynching, based on rumor, innuendo, false reporting, political pressure and misrepresentation.

Shameful doesn’t even begin to describe it.  And now, as Saletan points out, the same groups who caused this travesty to reach the point of a trial, have now doubled down on getting George Zimmerman in other ways despite an outright acquittal on all charges related to the killing of Trayvon Martin. 

Saletan makes the point that the case was more about a series of mistakes leading to a confrontation that should have never happened and, on Martin’s side an attack that was unwarranted.  As hard as the usual suspects have tried to make it about race and racism, their attempts have failed at every turn.  The facts simply don’t support the premise at all. 

And the overreaction continues as ill-informed groups riot (more to grab a TV at Wal-Mart in some cases than to protest the verdict) egged on by a media who has all but excused rioters for their action by subtly sending the message that the Zimmerman acquittal justifies their actions.

Meanwhile, the overreactive beat goes on:

The grievance industrial complex is pushing the Department of Justice to prosecute Zimmerman for bias-motivated killing, based on evidence that didn’t even support a conviction for unpremeditated killing.

Truly amazing but not surprising. 

We can only hope that someday sanity will again prevail in this great nation of ours.

~McQ

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