Topic: Government and Politics

Senate Conservatives Seek to Rein In the Court

Late last year, Reason magazine’s crack legal correspondent Damon Root chronicled the rise of the modern libertarian legal movement in his important new book, Overruled: The Long War for Control of the U.S. Supreme Court. In it, he focused especially on the struggle that some of us have been engaged in for more than four decades to recast the terms of the debate over the proper role of the courts from “judicial activism” and “judicial restraint” to “judicial engagement” and “judicial abdication.” That shift has been crucial because it refocused the debate from judicial behavior to where it should have been all along, namely, on the proper interpretation of the law before the court.

The struggle to bring about that shift, although much further along than when it began decades ago, is far from finished: Witness hearings just two days ago before the Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts. Called by Subcommittee Chairman Ted Cruz in the wake of last month’s Supreme Court decisions in King v. Burwell, upholding Obamacare’s subsidies for insurance purchased through exchanges established by the federal government, and Obergefell v. Hodges, which made same-sex marriage the law of the land, the hearings were titled “With Prejudice: Supreme Court Activism and Possible Solutions.”

As the title suggests, committee conservatives, in the majority, remain focused on what they see as the Court’s activism. Their witnesses were two professional friends of mine, former Chapman Law Dean and now Professor John Eastman and Ethics and Public Policy Center President Ed Whelan. Nominally representing the liberal activist side was Duke Law Professor Neil Siegel.

I say “nominally” because Professor Siegel took pains early in his testimony to expose problems with the very idea of judicial activism. If defined in opposition to judicial deference, he said, many of the recent decisions of the Court’s “conservatives” would have to be called “activist.” But if the term is defined as engaging in legal infidelity, then we’re arguing not about activism or restraint but about whether the judge read the law correctly.

That’s right. In fact, “judicial engagement” emerged in libertarian thought mainly in opposition to calls from conservatives like Robert Bork and Antonin Scalia for courts to be more deferential to the political branches. But it was animated by the contention that the basic problem with conservative deference was its misreading of the law. In particular, under our Constitution, as Bork put it, majorities were entitled to rule in “wide areas” simply because they were majorities, even if in “some areas” minorities were entitled to be free from majority rule—to which many of us responded that that had the law exactly backwards, turning the Constitution on its head.

But having put his finger on the real source of the differences between the activist and restraint schools, Siegel then went on to illustrate why conservatives called the hearings in the first place, arguing that the Court got it right in both King and Obergefell. In King, Siegel said, Chief Justice John Roberts was right to ignore both the text at issue in the case and the rationale for that text and instead “to read the statute in context and as a whole.” Those, of course, are the kinds of words that enable courts to reach almost any conclusion they wish—to engage in the “activism” conservatives rightly condemn. On reading the law correctly here, credit the conservatives.

King v. Burwell: How the Supreme Court Helped President Obama Disenfranchise His Political Opponents

Criticizing my recent post-mortem on King v. Burwell, Scott Lemieux kindly calls me “ObamaCare’s fiercest critic” for my role in that ObamaCare case. Other words he associates with my role include “defiant,” “ludicrous,” “farcical,” “dumber,” “snake oil,” “ludicrous” (again), “irrational,” “aggressive,” “comically transparent,” and “dishonest.”

Somewhere amid the deluge, Lemieux reaches his main claim, which is that (somehow) I admitted: “the King lawsuit wasn’t designed to uphold the statute passed by Congress in 2010. It was intended to ‘enfranchise’ the people who voted against the bill.” I’m not quite sure what Lemieux means. But perhaps Lemieux doesn’t understand my point about how the Supreme Court helped President Obama disenfranchise his political opponents.

As all nine Supreme Court justices acknowledged in King, “the most natural reading of the pertinent statutory phrase” is that Congress authorized the Affordable Care Act’s premium subsidies, employer mandate, and (to a large extent) individual mandate only in states that agreed to establish a health-insurance “Exchange.” That is, all nine justices agreed that the plain meaning of the operative statutory language allows states to veto key provisions of the ACA—sort of like the Medicaid veto that has existed for 50 years and lets states destroy health insurance for millions of poor Americans. The Exchange veto includes the power to shield millions of state residents from the ACA’s least-popular provisions: the individual mandate and the employer mandate.

An Unnecessary Indictment of Dylann Roof

Today, the Justice Department indicted Dylann Roof on 33 federal hate crime charges for the killings of nine people at Emanuel A.M.E. church in Charleston last month. This indictment is entirely unnecessary.

Hard as it may be for some to imagine now, there was a long time in this country when racially and politically motivated violence against blacks was not prosecuted by state and local authorities. Or sometimes, as in the case of Emmett Till—the young boy from Chicago who was lynched in Mississippi for allegedly being too forward with a white woman—prosecution was a farce and the perpetrators were acquitted.

Cronyism in Maryland

Martin O’Malley, the former governor of Maryland and Democratic presidential candidate, is no Bill and Hillary Clinton, who have made more than $100 million from speeches, much of it from companies and governments who just might like to have a friend in the White House or the State Department. But consider these paragraphs deep in a Washington Post story today about O’Malley’s financial disclosure form:

While O’Malley commanded far smaller fees than the former secretary of state – and gave only a handful of speeches – he also seemed to benefit from government and political connections forged during his time in public service.

Among his most lucrative speeches was a $50,000 appearance at a conference in Baltimore sponsored by Center Maryland, an organization whose leaders include a former O’Malley communications director, the finance director of his presidential campaign and the director of a super PAC formed to support O’Malley’s presidential bid.

O’Malley also lists $147,812 for a series of speeches to Environmental Systems Research Institute, a company that makes mapping software that O’Malley heavily employed as governor as part of an initiative to use data and technology to guide policy decisions.

I scratch your back, you scratch mine. That’s the sort of insider dealing that sends voters fleeing to such unlikely candidates as Donald Trump and Bernie Sanders.

These sorts of lucrative “public service” arrangements are nothing new in Maryland (or elsewhere). In The Libertarian Mind I retell the story of how Gov. Parris Glendening and his aides scammed the state pension system and hired one another’s relatives.

In some countries governors still get suitcases full of cash. Speaking fees are much more modern.

The Right to Earn a Living Deep in the Heart of Texas

The same day three weeks ago that the Supreme Court ruled on same-sex marriage (Obergefell v. Hodges), our friends at the Institute for Justice claimed a strong victory in favor of individual rights and economic freedom in an important case before the Texas Supreme Court (a.k.a. SCOTEX).

In Patel v. Texas Department of Licensing and Regulation, the court was faced with a state constitutional challenge to a licensing requirement that hair threaders acquire cosmetology licenses – to the tune of nearly $9,000 and 750 hours – when such classes “are not related to health and safety or what threaders actually do.”

Former Scott Walker Aide Victim of Unconstitutional E-Fishing Expedition

When Kelly Rindfleisch became a policy analyst for Scott Walker, and then his deputy chief of staff, she didn’t expect all of her personal emails to be the subject of a search into the criminal investigation of another person, but that’s Wisconsin politics for you.

In 2010, state officials opened a “John Doe” investigation (essentially Wisconsin’s version of a grand jury inquiry) into another Walker staffer, then-Chief of Staff Tim Russell. In their investigation, law enforcement sought and obtained a warrant for Google and Yahoo to turn over all ~16,000 emails held on Rindfleisch’s personal email account in order to find possibly incriminating emails sent between her and Russell—no narrowing, minimization, key-word searching, or independent third-party review required.

Through their fishing expedition, prosecutors were able to find enough evidence to support a charge against Rindfleisch, claiming that the incriminating content of those emails was in “plain view” subsequent to the incredibly broad search. Due to the unconstitutional search, Rindfleisch eventually plead guilty to misconduct in public office.

The Wisconsin Court of Appeals upheld the validity of the search warrants, and the Wisconsin Supreme Court declined to hear the appeal—leaving law enforcement with carte blanche to rummage through personal emails. Rindfleisch’s case provides an excellent vehicle for the U.S. Supreme Court to address the degree to which the Fourth Amendment requires a warrant for searching electronic data, tailored to probable cause. That’s why Cato filed a brief, joining the DKT Liberty Project, supporting Rindfleisch’s cert petition.

Slate Discovers Rising ObamaCare Premiums

Now that the coast is clear, Slate has an honest assessment of ObamaCare premiums. Helaine Olen writes

Under this assault [from ObamaCare opponents], all too many ACA defenders turned into fanboys and fangirls, dismissing any issue raised against the law as inconsequential and exaggerated…

But this strategy might well come back to bite the Democrats. The bill for the health care expansion is coming due, just as the recipients will be heading to the ballot box to vote in the first primaries for the 2016 election. More than a few are likely to be annoyed.

Last week Oregon’s insurance commissioner, Laura Cali, announced that the state had approved a 25 percent premium increase for the largest health insurer on the state’s exchanges. The second largest insurer did even better: It received permission to boost its monthly charge to consumers by 33 percent…

And that sounds like a relative bargain compared with Minnesota and New Mexico, where the BlueCross BlueShield family is looking for increases of more than 50 percent. Even if the final numbers are lower than the asks, it seems quite likely these states will approve substantive premium increases.

The problem is simple. As Trudy Lieberman reported this month in Harper’s, the ACA made a decent stab at solving the problem of Americans lacking insurance. Unfortunately, the bargain struck to get the bill to a point where lobbyists for the hospital, insurance, and pharmaceutical industries to sign on, or at least not fight it, did not adequately address the issue of overall medical costs.

And that’s where the consumer comes in. Someone is “it,” the party paying the bill. And that “it” is increasingly you, whether you receive insurance on the exchanges or from an employer.

Or as I like to put it, ObamaCare doesn’t make health insurance more affordable. It robs Peter to pay Paul. When selling ObamaCare, supporters told everyone, “Don’t worry, you’re Paul.” But as time goes by, more Americans are realizing they’re not Paul. They’re Peter.