Jan 26, 2014

Adler on the Origin of Halbig v. Sebelius

I’ve spent more time studying the Affordable Care Act litigation than I can count. One of the biggest challenges in this endeavor has been perspective. Because I am writing in the midst of the tsunami so to speak, I have to simultaneously balance the 30,000 foot view, to make sure I place everything in the proper context, but at the same time, identify and swoop in on the most important stories and details, that both paint a picture of how we arrived at this situation, but also intrigue the reader. This was one of the biggest challenges I had while writing Unprecedented, and in the early stages of the sequel, Unraveled.

At Volokh/WaPo, Jon Adler, on of the originators of the Halbig v. Sebelius case, offers his thoughts on how the case began.

In actuality, the central claim on which these suits are based was first made well beforeNFIB was argued (let alone decided), and well before anyone recognized how limiting the availability of tax credits to states with their own exchanges would affect implementation of the law.

Attorney Tom Christina noted the express language of the PPACA limited tax credits to exchanges established by states under Section 1311 of the Act in a December 2010 presentation at AEI.  I later discussed the relevant statutory language and its potential implications at a February 2011 symposium at sponsored by the Kansas Journal of Law & Public Policy at the Kansas University Law School.  That presentation led tothis paper.  At the time, most of us saw the relevant language as yet another manifestation of “cooperative federalism,” as it appeared the federal government was using the lure of tax credits to induce state cooperation (as some had proposed when the PPACA was being drafted).

It was only later that some, such as my co-author Michael Cannon, realized how these provisions interacted with other portions of the statutes, and how they could affect PPACA implementation if, as it came to pass, a majority of states refused to play along. And it was only after the IRS proposed its rule purporting to authorize tax credits in federal exchanges that Michael and I began making the case that the IRS was acting beyond the scope of its delegated authority.  As has also become clear, the IRS only belatedly considered whether it actually had the authority to issue such a rule in light of the statutory text. Given the tension between the statutory  text and the IRS rule, litigation was inevitable if (as we also argued) there were plaintiffs who could demonstrate standing to sue.

Depending on how the D.C. Circuit appeal goes, this could be another really important episode in the ongoing challenge against Obamacare.

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Jan 26, 2014

Chua and Rubenfeld: “Jews” 2% of Population, but “third of the current Supreme Court.”

Oy vey. The Tiger Parents pounce again.

Jewish success is the most historically fraught and the most broad-based. Although Jews make up only about 2 percent of the United States’ adult population, they account for a third of the current Supreme Court; over two-thirds of Tony Award-winning lyricists and composers; and about a third of American Nobel laureates.

So what’s the mystery to success:

It turns out that for all their diversity, the strikingly successful groups in America today share three traits that, together, propel success. The first is a superiority complex — a deep-seated belief in their exceptionality. The second appears to be the opposite — insecurity, a feeling that you or what you’ve done is not good enough. The third is impulse control.

Any individual, from any background, can have what we call this Triple Package of traits. But research shows that some groups are instilling them more frequently than others, and that they are enjoying greater success.

It’s odd to think of people feeling simultaneously superior and insecure. Yet it’s precisely this unstable combination that generates drive: a chip on the shoulder, a goading need to prove oneself. Add impulse control — the ability to resist temptation — and the result is people who systematically sacrifice present gratification in pursuit of future attainment.

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Jan 26, 2014

The New York Times on Rand Paul’s Libertarianism

If you are interested in the state of libertarianism in American politics, please take the time to read the Times A1-above-the-fold profile of Senator Rand Paul. There is a lot to digest, but in my mind, the takeaway is that libertarianism is no longer off the wall.

As Rand Paul test-markets a presidential candidacy and tries to broaden his appeal, he is also trying to take libertarianism, an ideology long on the fringes of American politics, into the mainstream. Midway through his freshman term, he has become a prominent voice in Washington’s biggest debates — on government surveillance, spending and Middle East policy.

I think this reverses the causation and the correlation. Rand Paul isn’t bringing libertarianism into the mainstream. Libertarianism has become the mainstream due to statist policies of both major parties. Rand Paul, if nothing else, is the torch bearer of this shift. The phrase “libertarian-minded Republican” is now acceptable.

Though the profile calls Lysander Spooner an “anarchist,” faults the works of the Von Mises Society, and highlights some of the outlandish statements of Murray Rothbard, on the whole it is pretty fair. That the Times is even mentioning these topics makes it mainstream, and on-the-wall.

Mr. Paul’s marathon filibuster in March instantly transformed him into a leader of a party seeking a fresh message, even as he found unlikely fans in the American Civil Liberties Union and Jon Stewart.

But tucked into Mr. Paul’s lengthy monologue — its 76,000 words would fill a 300-page manuscript — was another narrative, told in a sprinkling of obscure references. He cited the Posse Comitatus Law of 1878, which restricted the federal government’s use of the military to enforce laws in this country and is seen by libertarians as a vital barrier to totalitarianism; Lochner v. New York, a 1905 Supreme Court decision that struck down Progressive-era workplace regulations; and the theories of Lysander Spooner, a Massachusetts abolitionist who turned against the North in the Civil War, which he deplored as unjust aggression against the Confederacy.

These arcana drew little notice — except among dedicated libertarians, who took them as evidence of Mr. Paul’s solid mooring in a subset of ideological axioms. The Spooner reference, in particular, excited those attuned “to the dog whistles of anarchism,” said Brian Doherty, a libertarian writer. “In my particular community, that was a big, big day.”

A search of the Times’ archives for “Lysander Spooner” from 1851 shows only 6 hits, and only two in the 20th century! I’ll take it.

Onward and upward.


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Jan 26, 2014

If the Vice President is nominated to the Supreme Court, and there is a 50-50 tie in the Senate, Could He Cast The Tie-Breaking Vote For Himself?

While reading this fairly generous profile of Rand Paul in the New York Times, a thought occurred to me. Imagine if you will that Rand Paul picks Ted Cruz as his running mate (probably not going to happen, but bear with me). Then President Paul nominates Vice President Cruz to the Supreme Court. Again, assume the filibuster is not used. The vote in the Senate for advice and consent is 50-50. Does the President of the Senate (VP) then cast the tie-breaking vote? Recall, Article II, Section 3 provides, “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” And if so, would the Vice President preside over his own confirmation vote, and then effectively vote for himself onto the Court?

This would not be unprecedented. Following the Election of 1800, Vice President Jefferson, serving as President of the Senate, was responsible for counting his own votes (as the Constitution afforded that responsibility). And, he construed some favorable votes in his own favor, which led to the tie with Aaron Burr. So Jefferson helped himself onto the Presidency.

Don’t forget, the incompatibility clause serves as no bar for the Vice President also serving as an Associate Justice.

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Jan 26, 2014

Now The Attorney General Has Decided Also Not To Enforce Banking Regulations Against Banks That Deal With Marijuana Sellers

As it stands, the government has taken the position that they will not prosecute people for possessing marijuana in Colorado and Washington, where it is legal under state law. Now, the Attorney General has suggested that the government will promulgate a “regulation” (who needs statutes when you have regulations?) saying that these banks will not be prosecuted.

The Obama administration will soon announce regulations to make it easier for banks to do business with legal marijuana sellers, Attorney General Eric Holder said Thursday.

“You don’t want just huge amounts of cash in these places. They want to be able to use the banking system,” Holder said during an appearance at the University of Virginia’s Miller Center. “There’s a public safety component to this. Huge amounts of cash—substantial amounts of cash just kind of lying around with no place for it to be appropriately deposited is something that would worry me, just from a law enforcement perspective.”

While Holder spoke twice of new “regulations” that were being prepared, a Justice Department spokesman said later that the attorney general was referring to legal “guidance” for prosecutors and federal law enforcement. Such a legal memo wouldn’t be enforceable in court and would amount to less than the kind of clear safe harbor many banks say they would want before accepting money from pot businesses. …

“We’re in the process now of working with our colleagues at the Treasury Department to come up with regulations that will deal with this issue,” Holder said. He added that the new rules were likely to emerge “very soon” and were not intended to amount to a blessing of marijuana by the federal government. “It is an attempt to deal with a reality that exists in these states,” he said.

Isn’t that reassuring? I’m sure heavily regulated banks will run this gamble. Of course, what happens if Attorney General Chris Christie changes his mind. Would all the banks who did business with these pot distributors be culpable?

If true, that likely won’t be enough reassurance for banks. How do they know that once they have loans outstanding to marijuana retailers, Ted Cruz won’t be elected president in 2016 and simply change the prosecution directive? “Banks will need a lot of detail from regulators to get the satisfaction and comfort they are looking for,” Richard Riese, senior vice president for regulatory compliance at the American Bankers Association, told the Times.

The lawlessness of selective prosecution continues unabated.

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Jan 26, 2014

Wait Wait… Don’t Tell Me! There is A Fantasy Economics League!

On Wait Wait…Don’t Tell Me!, during the bluff the listener section, the topic was three unlikely scenarios where someone yelled “I want (Paul) Krugman!”

The Ideas Fantasy Economics League allows econ geeks to put together a virtual economics department using real economists who score points through citations, number of downloads and other metrics. Think fantasy football with somehow, incredibly, even less sex appeal.

The contestant thought it was fake. It’s not. It’s real!

I invented Fantasy Supreme Court leagues long time ago.

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