Thoughts From Reading the King v. Burwell Transcript

I took a little time to read the transcript from today's Supreme Court oral arguments in King v. Burwell.

If you want to read the transcript, you can find it here. It's always a dicey proposition to read anything into how the Justices will rule from their questions/comments at oral argument, but here are a few of my impressions:

1. Justice Ginsburg immediately jumped on the issue of standing from the get-go. After some back and forth, and with what ultimately seemed like a concession from the Government, the likelihood of kicking the case out on a lack of standing seems extremely remote.

2. Justice Kagan seemed to have gotten the better of Petitioner's counsel with her hypothetical about law-clerks and memo writing, but Alito jumped to the rescue with such a good response that even Kagan remarked of Alito "He's good."

3. The real question seems to be where Justice Kennedy is going to land. He seems to want to say that the Petitioner's argument necessarily requires the conclusion that conditioning subsidies on states setting up the exchanges is coercive, and would therefore be unconstitutional. Obviously, this would result in disruption of everyone who got a subsidy in the states where HHS set up the exchanges, and Kennedy seemed loathe to make that leap. Petitioner's counsel responded to Kennedy by observing that the government hadn't made that that argument, and Kennedy says "Sometimes we think of things the government doesn't".

4. Carrying that last point further, the real question seems to be whether Kennedy is willing to interpret the statute in a manner that avoids having to find the statute to be unconstitutional under the avoidance doctrine. I think that Kennedy wants to say it's unconstitutional, but I think he's concerned with the resulting effects of what happens if he makes that finding. Ultimately, I think he'll avoid doing so, and the Government's position will prevail.

5. The Government's counsel took a little bit of a shot at Congress when Justice Scalia pressed him on why the Congress wouldn't just amend the statute if the Court accepts the Petitioner's position. Scalia says "You really think Congress is just going to sit there while ­­ while all of these disastrous consequences ensue?" and the Government's lawyer responds somewhat tongue-in-cheek with "Well...this Congress, Your Honor? I...I..." to which there's some general laughter at Congress' expense.

Ultimately, I think the Government will win this because I think the easy place for Kennedy to land is that there is a little bit of ambiguity in the statute, so you go with the interpretation that doesn't render the statute unconstitutional. That' just my guess, anyway. I would be surprised if the Court did something radical and essentially forced Congress and President Obama to fix the law.

Democracy Never Lasts Long

I am tired of people repeating the phrase that "our immigration system is broken". It's not. What's broken is our enforcement system - it's as simple as that. We have an immigration system that allows over 1 million people to emigrate legally.We have an immigration system that allows for 250,000 guest workers and work visas.

That is not a system that is broken. What's broken are our "leaders".

I'm not even going to begin addressing the substance of the executive order, because I don't acknowledge it's validity. To address the executive order on its substance gives it more respect that it is due.

Quite simply, the President was unhappy that the Legislative Branch was not enacting his policy preference, so the President decided rather than to advocate for his policy preference, he was just going to enact his policy in direct opposition to the will of the Legislative Branch.

What's sad is that so many people support the President's policy, they're willing to just cast aside our well-settled checks and balances to achieve their goal. And there's a whole bunch of other people who are ready to use this new precedent to enact other policies, and push the boundaries just a little bit further.

Interesting Times.

"Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide." - John Adams

The President Is Going to Cut Down a Law or Two Tomorrow

"You know what would be the BEST, most constructive, reaction? For the House to pre-empt the president’s executive action by passing the comprehensive immigration reform that the Senate sent over to it." -Brad Warthen

Sure, I agree. We all like rational stuff. Even if the House doesn't like the current Senate bill, they can always amend it, or just pass their own. What are they waiting for?

Maybe they're waiting for the new Congress to be sworn in. Maybe they're waiting for Christmas. Either way, it doesn't matter why Congress is choosing not to act; that's entirely beside the point. If the President doesn't like the lack of immigration reform bills in the Congress, maybe his party should start winning some elections. Or maybe the President could have done something for the two years he had a super-majority in Congress.

But all of this talk about the President's action and the Congress' reaction also misses the point of this being bad precedent.

The President shouldn't do what he's about to do. There's no broad public support for it. It's against the specific will of the majority of the legislative branch. The legal basis is unsound. There's no national crisis at hand that cries out for drastic action. In fact, the President is actually creating a crisis with this defiant move. It's also not a permanent fix, either. It's theater. But it's theater that sets a horrible precedent of cutting down laws by Presidential order.

But you know...I don't put 100% of the blame on the President. I blame us. The entire Democratic party is thrilled at the idea of this executive action, and it is actively encouraging him to do this. A little less than half of the electorate is excusing the means because they like the end result. There's plenty of blame to go around. The President is going to announce that he's going to ignore some laws tomorrow, and it won't really register for much of the citizenry here in our young little republic.

At the end of the day, we have to have laws that mean things. If the law can just be altered (and non-enforcement is altering the law) then what is left? I know I use this clip all the time, but it's relevant once again.

You start cutting down a little bit of the law here, a little bit of the law there, and pretty soon, a cold wind is blowing, and the Devil will turn 'round on you. Where do you hide then?

Supreme Court Accepts Obamacare Subsidies Case

Remember the Halbig case? Well, that issue is now going to the Supreme Court. Just today, the Supreme Court accepted a case (King v. Burwell) which is the same question.

Interestingly, with King, the lower court ruled that the subsidies apply everywhere, so the administration won. Don't forget, the Supreme Court doesn't have to take this case. They could have just refused to take it and let that decision stand. However, SCOTUS decided to take the case, and you need four votes to accept a case.

So are there now four votes to overturn King and say that the ACA does not allow for subsidies to federally established exchanges? Perhaps so. That would be big.

This could be a very interesting case to watch.

AG Wilson Asks SC Supreme Court to Address Issue of Same Sex Marriage In South Carolina

UPDATE: The SC Supreme Court has issued an order, which basically stays all SC probate courts from issuing marriage licenses to same-sex couples until the federal court litigation is resolved. The status quo ante of no same-sex marriage will remain in place.

If you're following the same-sex marriage news these days, you've seen a lot of action in South Carolina this week.

First, on Monday, the United States Supreme Court decided not to hear a case that involved same-sex marriage, with the implication being that SCOTUS wasn't going to overturn a decision banning same-sex marriage. Everyone basically interpreted this to mean that SCOTUS wasn't going to support any ban on same-sex marriages.

Accordingly, on Wednesday the Charleston County Probate Court started accepting applications for marriage licences to same-sex couples. Note, this is different than actually granting the marriage license, but it's tantamount to doing so.

Also on Wednesday, there was a rally at the SC Statehouse to support what the Charleston County Probate Court was doing. At the rally, the supporters of same sex marriage encouraged same-sex couples to apply for marriage licenses throughout the state of South Carolina. Additionally, the group called on Alan Wilson to simply do nothing and not file any action to enforce the provision in our State Constitution banning same-sex marriage.

However, Alan Wilson decided that he was going to ask the SC Supreme Court to resolve this issue. His filing is here. [PDF]

I think that's the right move by Alan Wilson. We have a law. In fact, it's part of our State Constitution. We can't just ignore it without a court formally declaring it to be invalid. If you go read the petition that Wilson filed, that's basically what he's saying.

"Moreover, a public official may not refuse to follow State law because 'he thought the law unconstitutional.' It is, instead, his or her duty to 'follow it until judicially declared invalid.' Trustees of Wofford College v. Burnett, 209 S.C. 92, 104-5, 395 S.E.2d 155 (1946).

This is about the rule of law and legal process. We can't just have Probate Judges in each county deciding if they are or are not going to follow the law. Once the law is ruled unconstitutional, which it will be, then the Probate Courts can issue licences - not before.

Alan Wilson is doing the right thing by filing this petition.

You can't skip steps.

Some Initial Thoughts on the SC Highway Patrolman Shooting in Columbia, SC

If you hadn't already seen this, on September 4, a South Carolina Highway Patrol officer shot a motorist during a traffic stop. They just released the dashboard cam video yesterday. Here's the video.

I've watched the video a few times, and it's clear that this was not a good traffic stop. Also, I'm going to say this up front: This shooting should not have happened. Nothing I am about to say should be construed to justify this shooting. OK? So save all the hate mail.

My initial impression is that things start to go a little sideways when the driver gets out of the car. Normally, you stay in your car at a traffic stop. Pretty much everyone knows that. I think law enforcement officers kind of get their "antenna up" when a driver immediately gets out of the car at a traffic stop.

Having said that, this officer certainly did not handle the situation appropriately. He did not control the environment well, and he did not interact with the driver appropriately. So, even though the driver did not do a good thing by getting out of the car, it's the officer's job to handle that situation.

It appears to me that the officer assumed that the driver was reaching into his car for a weapon. This was a bad assumption. Police officers should not shoot people based on assumptions.

Here are the factors that jump out at me that make this incident really bad;

Obviously, it's a white officer shooting a black driver. So of course, there's the element of race. Would this officer have reacted the same way if the driver had been an elderly white woman? I don't know. But this is the first factor that everyone sees. And it's important to recognize this factor.

The traffic stop seems to have occurred during the day. To me, this factor cuts against the officer. We're not talking about a 2:00AM traffic stop, here. For all the officer knows, this guy is on his way to work or something. The scene is well-lit, and there aren't any obstructions.

According to the WIS piece I linked above, the traffic stop was for a seat-belt violation. Now, it's fair game to stop someone for not wearing a seat-belt, but we're not talking about a felony here. Common sense tells you that stopping someone for a seat-belt violation is different than stopping someone for a serious charge. Again, this factor cuts against the officer. Not wearing your seat belt is a relatively minor violation.

Also, when did the officer draw his weapon? It's not clear from the video, but the first time you see the officer come into view, he already has his weapon drawn, extended, and pointed at the driver. To me, this indicates he already had it drawn. Again, that doesn't seem right.

Those are all bad things. Now for a couple of positives:

The driver is alive. That's the best news. No one is dead. Thank goodness.

Unlike Ferguson, there is a dashboard camera video, so we can all see what happened. We're not relying on eyewitness accounts from people inside the gas station. Remember how all the eyewitness accounts in Ferguson were dramatically different? At least with a video, there is a record of what happened.

The police officer was fired, and charged with a crime. This is probably the most important thing, so I probably should have mentioned it earlier. Law enforcement has to operate under the same laws as you and I do. Therefore, if you or I had shot this man in this situation, it's clear that we would have been arrested. Accordingly, I applaud the authorities for not trying to put the officer on "administrative leave" or some nonsense. You apply the same process to police officers as you do to citizens. This officer is now facing up to 20 years in prison for this incident. That's not inconsequential.

The video was released. This point dovetails into the lat one, but it's commendable that the video was released so we could all see for ourselves what actually occurred. There doesn't appear to be any attempt to sweep this under the rug. And that's very good.

Hopefully, the authorities will continue act in a responsible manner and other law enforcement officers will take this as a moment to really think about how they conduct traffic stops. They have a tough job, but they also have the responsibility to do it correctly. In this incident, the job was not handled correctly.

Anyone else have any other thoughts? There's lots to unpack here.

Federal Appellate Court Rules Most ACA Subsides are Illegal.

Oh, sure. Interpret the actual language of the statute. That's crazy.

Basically what happened here is the law says subsidies can only be paid to policies written on state exchanges. Obama then rewrote the law to include the federal exchange because...he wanted to.

This Court said ruling said such subsidies can be granted only to those people who bought insurance in an Obamacare exchange run by an individual state or the District of Columbia — not on the federally run exchange HealthCare.gov.

Expect some shrieking from the left in 3....2....1...

"A 27-year-old medical professional named Shaneen Allen drove peacefully out of her home state of Pennsylvania and into neighboring New Jersey. Today, she faces the prospect of three years in prison."

Like I always say, be careful when you leave America.

SC Supreme Court Issues Opinion In Harrell vs. Attorney General

REVERSED! You can read the opinion here. I'll have comments later.

Judge Manning Rules That Attorney General Must Stop Grand Jury Investigation

First things first: here's a link to the the actual order from Judge Manning.

After reading the order, it seems like the most important line is:

"Despite multiple requests, the Attorney General has failed to offer or present to the Court any evidence or allegations which are criminal in nature. Therefore, the Court is left only with uncontroverted allegations of ethics violations propounded by a citizen's letter."

There seems to be some serious disagreement about the factual basis of whether there is a crime here. Just from reading the text of this order, it's clear that Judge Manning doesn't see any "evidence or allegations which are criminal in nature". That seems to be the foundation of the rest of his ruling.

If you assume there are no criminal allegations,  then I kind of see Judge Manning's point here. The Attorney General is the top prosecuting officer in South Carolina, and he can prosecute criminal actions on behalf of the state as he sees fit.

However, allegations of a legislator's ethics violations aren't necessarily a criminal action. That's not to say that an ethics violation is a good thing - it just may not be a crime. It's an ethics complaint, and the Supreme Court has ruled that Ethics Committees have the exclusive authority to hear alleged ethics violations.

I agree with the general idea that before the Attorney General should get involved, there has to be a crime, an indictment, or something more than simply an ethics complaint.

What is troubling to me is that this order seems to preclude the Attorney General from even investigating the matter until the Ethics Committee makes some sort of final disposition. Judge Manning notes that the Ethics Committee is required to refer allegations of criminal conduct to the Attorney General. It seems he's saying the law allows the Attorney General should get a crack at investigating the matter, but only after it's been referred out to him by the Ethics Committee.

To me, if Attorney General Wilson has something that he can charge Harrell with that isn't an ethics violation, he can do that, and this order won't preclude him from going forward.

Obamacare and Touching the Hot Stove

Remember the Employer Mandate? The law says it shall take effect in 2014. It still says that. But that's just what the law says.

How did you learn not to touch this?

Last summer, the Obama Administration unilaterally delayed the Employer Mandate so that it wouldn't take effect until 2015. I'm not sure why Obama decided to delay implementation of such a great part of his super great law, but apparently, you don't need Congress to change laws or anything. So the Executive Branch just said Don't worry about the law, we're changing it. Because...well...nevermind.

So, 2014 is here. Time to start gearing up for the Employer Mandate next year, right? Well, actually no. Now that this year is here, the Obama Administration has decided that the Employer Mandate will be delayed again. They're going to implement it for some employers, but not others, and partially for some. Until 2017...or whenever, yo

Even though that's not what the law actually says.

Now, the real question is cui bono? Who benefits? Well, obviously the businesses who aren't faced with the massive costs of this imposing law benefit. But the White House isn't delaying the Employer Mandate to benefit the businesses. If they wanted to benefit the businesses, they wouldn't have passed the Employer Mandate at all. But they did. The law passed, and now we're seeing the President unilaterally walk it back, year by year. Why?

It's obviously to spare his friends in Congressional elections this fall the pain at the voting booth. It's a nakedly politically motivated violation of the law from the Executive Branch. Read that sentence again. Got it?

You know, if Republicans had any lick of sense, they would do do everything in their power to make sure the Employer Mandate hits this year. America elected a President and a bunch of politicians who passed this healthcare mess. But the same people keep easing back away from it. They know that everyone will feel tons of pain when the law actually goes into effect. So they keep delaying it. Maybe it's time to put the Employer Mandate into effect. Maybe it's time to feel some pain. Maybe it's time for America to touch the hot stove -- and burn its hand. 

When you burn your hand, you'll learn not to touch the stove again. Maybe next time you won't touch the damn stove when I tell you not too.

Obama Considers Raising Minimum Wage

Through supporting a law to be passed by Congress? You know, the normal way laws are passed?

Nah, who needs the legislative body, amirite? He's considering doing it via Executive Order, which surprises me not at all.

Dictators gonna dictate.

A Republic, If You Can Keep It...

President Obama had a press conference today in which he explained that he delayed the implementation of a law because he consulted with "businesses". Here's the full quote:

With respect to health care, I didn't simply choose to delay this on my own. This was in consultation with businesses all across the country, many of whom are supportive of the Affordable Care Act, but -- and who -- many of whom, by the way, are already providing health insurance to their employees but were concerned about the operational details of changing their HR operations if they've got a lot of employees, which could be costly for them, and them suggesting that there may be easier ways to do this.

Great. So let me see if I have this correct. Congress passes a bill and the President signs the bill. Therefore, the bill becomes law. Everyone still with me? The ACA (Obamacare) is now the law. I also specifically seem to remember the White House reminding everyone that the ACA is now the law.

Now, part of that law (the employer mandate) is politically inconvenient to implement because it's a giant mess, and it would cause all sorts of chaos if implemented on the schedule that the law requires. Oops! So the President decided to delay that portion of the law.

How, you ask? How could the President simply decide to delay enforcement of a law that has been duly passed by Congress? Simple. He did it "in consultation with businesses". Presto! Laws can now be done away with by consulting with businesses. Congress? Whatever dude, I've consulted with corporations, and they're good with this. Relax!

Actually, I really like this precedent. As soon as a Republican becomes President (It's eventually going to happen) he/she can just "consult with some businesses" who may not like other provisions of the ACA and delay more provisions.

Taxes: Don't like paying your taxes? No problem, I've consulted with businesses, and I've decided to delay the collection of taxes over 20% this year. You're welcome.

Vice: Officer, I did not break the law by hiring a prostitute. I only took action after negotiating with her pimp consultation with businesses.

Nothing like the random, selective, and arbitrary enforcement of our laws for political ends. Yet no one makes a peep. Freedom and liberty? Yeah, it's going to end not with a bang, but with a slow whimper of being devoured by a leviathan administrative bureaucracy.

Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.

                                                         -Stuff Thomas Jefferson said, Vol. III

Zimmerman Verdict Reaction

The Zimmerman verdict came out late on Saturday, while I was doing important things like drinking bourbon on my porch.

Overall, I wasn't surprised that he was found not guilty. The State didn't have a very good case from the start, and the case presented reflected that. As a litigator, I have this thing about not losing. Accordingly, I would have never brought this case because I didn't consider it winnable on the evidence. In our criminal justice system, the benefit of the doubt goes to the defendant. That's what we had here.

In any event, feel free to put all your reactions in this thread. I probably won't do another post on this topic.

In more interesting news, SEC Media Days gets cranked up this week. Gird your loins.

Boston Bomber: Enemy Combatant or Criminal?

Now that Tsarnaev has been captured, the US government is faced with the question of what to do with him. One of the fundamental issues the government faces is whether the it will consider him an "enemy combatant" or a "criminal". Additionally, how should the government proceed in the interrogation of Tsarnaev? Should we give him Miranda warnings?

As a jumping off point, my Senator (Lindsey Graham) issued three statements via Twitter. The first:

“The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans,” the senators said. “We need to know about any possible future attacks which could take additional American lives. The least of our worries is a criminal trial which will likely be held years from now.

Ok. I think that trying to draw the distinction between an act of terrorism and a "common crime" is a problematic idea. It's a false distinction  to differentiate criminals seek to profit from a "criminal enterprise" and terrorism. Just because a crime isn't a profitable criminal enterprise does not make it terrorism. There's a reason that we make terrorism a crime, right?

Also, who's to say Tsarnaev didn't "profit" from the bombing? He did achieve his goal; i.e. detonating a bomb and killing/injuring people. It's just too difficult to distinguish Tsarnev's act from other crimes where there may not be an easily ascertainable "profit". Obviously, bank robbers profit, but what about rapists, arsonists, or serial killers? Is "profit" different than "motive"? As an example: does a DUI driver "profit" from his crime? He doesn't really.

However, I agree with Senator Graham in that we need to know about future possible attacks. That's actually the most important thing we need to know. In fact (from the government's point of view) there's not much that Tsarnaev needs to tell the government other than information that can help prevent future acts of terrorism. We don't need him to confess to the bombing. There's a mountain of evidence to convict him in a civilian court that is independent of any confession. In fact he's already confessed to the person he carjacked. Accordingly, the government doesn't need his confession.

Graham's second Tweet starts to develop this idea:

"Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks."

Now Graham is talking about holding him as an "enemy combatant" who is not entitled to Miranda or counsel. Miranda doesn't concern me. Depriving him of counsel does.

When you detain an enemy combatant, the idea is that you're preventing him from doing further harm because you have no other options besides (1) Killing him; and (2) letting him go. Here, I don't see that being an issue. The US can hold Tsarnaev on his federal charges. He's not a soldier we captured on a battlefield out in the boonies. He wasn't fighting against our uniformed military as part of his own organized unit. We captured him with law enforcement on US soil after he ran from the police after committing a crime.

We can legally keep him locked up (assuming a conviction - which isn't much of an assumption) and he's not a threat to do further harm. We don't have to either kill him or let him go. Therefore, he's not the sort of individual who the government needs to classify as an enemy combatant in order to hold him. In fact, I think it would be wrong, in an objective legal sense, to classify Tsarnaev as an enemy combatant. I agree with Graham (and I think most people do) that our goal at this point should be to extract intelligence from Tsarnaev, as I believe the successful prosecution is a fait accompli.

On the issue of Miranda warnings, I really don't see that as a big deal. Despite what you've seen on Law and Order, the police aren't required to Mirandize a criminal suspect. Sorry. They're just not.

Miranda is a set of rules that the government may choose to follow if it wants to admit a suspect's statements into evidence at their subsequent trial. Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement. Chavez holds that a person’s Miranda rights are violated only if the statement is admitted in court, even if the statement is obtained in violation of Miranda. See id. at 772-73. Therefore, even though lots of y'all probably think that a suspect is entitled to Miranda protection, it's actually fine for the government to intentionally withhold it - just as long as they don't introduce those statements at trial.

And why would they? The government assumably has this guy cold. However, after a certain period of time, the government is going to have to allow Tsarnaev to see his lawyer, which I assume will be a Federal Public Defender. The longer the government goes on questioning Tsarnaev without counsel, the more objections I have.

Graham concludes his Twitter statements as follows:

“The last thing we may want to do is read Boston suspect Miranda Rights telling him to 'remain silent.'"

I think this is really the goal that Graham is getting at, and he's losing the forest for the trees with the "enemy combatant" distinction.