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One of the totally predictable implications of forcing employers to provide health insurance to full-time employees (defined as employees who work more than 30 hours a week) is that employers will reduce jobs. And a recent report by the CBO confirms this:

The law is also expected to have a significant effect on hours worked, the nonpartisan budget office said in a regular update to its budget projections released Tuesday. With the expansion of insurance coverage, more workers will choose not to work and others will choose to work fewer hours than they might have otherwise, it said. The decline in hours worked will translate into a loss of the equivalent of 2.5 million full-time positions by 2024, the budget office said.

The budget office analysis found that much of the law’s effect comes from reducing the need for people to take a full-time job just to get insurance coverage, and from the premium subsidies effectively bolstering household income.

But it will also have an effect on businesses, the report said, including by encouraging them to reduce employee hours to avoid the so-called “employer mandate.”

So sure, those who have jobs will receive better benefits, but there will be fewer employed. And which employees will be hardest hit? Of course, those on the bottom of the payscale, who were probably not receiving benefits before, and now are deemed not worthy of keeping around if they have to be paid these benefits. Many of these are likely earning minimum wage.

 

Recall that the President unilaterally delayed the employer mandate till next year. Wait till that kicks in. The pink slips and cancellation notices will continue to fly.

There is a certain perverse irony in the President simultaneously asking employers to pay employees above the minimum wage, and at the same time enforcing Obamacare to make it even more difficult to employ these people. I don’t know what else he could do to eliminate jobs for the poorest Americans!?

In other news, the CBO downgraded the estimates of people who would sign up for Obamacare from 7 million to 6 million.

The budget office now estimates that the 6 million Americans will enroll through the exchanges in their first year, rather than 7 million; and that expanded Medicaid and other public programs will enroll 8 million Americans, rather than 9 million.

But by 2017, nearly 25 million people will rely on it–in no small part that many pre-existing plans will be cancelled.

“Over time, more people are expected to respond to the new coverage options, so enrollment is projected to increase sharply in 2015 and 2016,” the budget office said in its report. It estimates that as of 2017, about 25 million Americans a year will obtain coverage on the exchanges.

This is the problem of entrenchment. Year after year, more people will rely on Obamacare, and it will become more and more difficult to do anything about it. Just the way it was designed.

How did I not know this!? During a recent interview at Yale Law School, Justice Sotomayor mentioned that during her time in New Haven, she was a bartender and a bouncer!

While at Yale Law School, in addition to serving as a managing editor for the Yale Studies in World Public Order, Sotomayor was a bouncer and a bartender at GPSCY (Graduate Professional Student Center at Yale) bar.

This is so bad-ass. Very cool.

You can learn more about Gryphon’s Pub here. Here is a photo of the bar.

Update: How did then-Judge Sotomayor describe her employ in her Senate questionnaire? “Sales person.”

Justice Sotomayor shares a legacy with Pope Francis, who was also a bouncer.

While I was at YLS a few years ago, I found in the library her 1L facebook photo (see other yearbook photos here).

One of the toughest concepts to convey to students in constitutional law, is how precarious our laws are during times of crisis. It is easy enough to study Youngstown Sheet & Tube Co. v. Sawyer 60 years later, and say, yeah Justice Jackson did the right thing, and told President Truman no. But, there was no guarantee Truman would listen to the Court (in hindsight he apparently told Justice Black that he didn’t like his ruling, but liked his bourbon). It is easy enough to study Korematsu as a black mark on the U.S. Reports, and fault the Supreme Court for upholding the horrific concentration camps our country established. But, there was no guarantee FDR would have listened to the Court had they ruled again him (I tend to think he would’ve ignored the Court altogether).

As fragile as our Constitution is, it becomes even more fragile during times of war. We should never forget we are only one crisis away from becoming a dictatorship. This was an animating fear of Justices Frankfurter and Jackson in Youngstown, who looked to the rise of fascism in Europe as a warning to America, of the criticality of our laws. Jackson wrote of the steel seizure, “I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.

There is a maxim, “maxim intra armes silent leges,” translated as  “In times of war, the laws fall silent.” Justice Scalia invoked this maxim at a recent event to argue that another Korematsu is possible.

“Well of course Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again,” Scalia told students and faculty during a lunchtime Q-and-A session.

Scalia cited a Latin expression meaning, “In times of war, the laws fall silent.”

“That’s what was going on – the panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification, but it is the reality,” he said.

Avi Soifer, the law school’s dean, said he believed Scalia was suggesting people always have to be vigilant and that the law alone can’t be trusted to provide protection.

So what  protect this fragile balance? It is certainly not the Bill of Rights. It is our constitutional structure, and the separation of powers, enforced by the Courts. Scalia makes this point all the time, but as far as I can tell, it originated in his Morrison v. Olson dissent.

Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.

Having an independent judiciary that, even in times of war, can check the other branches, is the last line of defense. This is the point Jackson’s concurrence in Youngstown conveys.

With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

But let’s address the second part of Scalia’s statement and Jackson’s concurrence, zone 1. What if a majority of Americans support the internment of Japanese? What if Congress votes in favor of that decision? In particular, when the government lies to the people and the other branches about the nature of the threat, as they did in Korematsu. Under Jackson’s approach, then, in times of war, the President would have that power, and the Court defers.

This, is when things get real.

Update: In another account of Scalia’s speech, the Justice explicates this point further–the point of Separation of Powers is to protect individual liberty.

“The function of the court is not to keep the other two branches (legislative and executive) in line; that’s not what we’re for. We’re there to stop harm to individuals,” Scalia said.

I had a discussion in the comment threads that is worth repeating. Why does structure protect liberty? Scalia, Kennedy, and others often throw out the line that structure protects liberty See Morrison v. Olson (Scalia, J., dissenting) or Clinton v. New York (Kennedy, J., dissenting) or Bond v. United States (Bond) or NFIB v. Sebelius (joint opinion). But they never explain how or why. They say it as if it is self-evident. I tend to agree with them, but I would like to articulate *why* structure protects liberty. Another article on the list.

Update 2: Chief Justice Rehnquist made a similar statement in his book, All The Laws But One–Civil Liberties in Wartime:

“An entirely separate and important philosophical question is whether occasional presidential excesses and judicial restraint in wartime are desirable or undesirable. In one sense, this question is very largely academic. There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors.”

Via HobbyLobbyCase.com, a video profile of the Green Family speaks about their faith in starting and running Hobby Lobby “according to all aspects of its faith.” Also, the President should be proud that entry-level employees are paid at 90% above the minimum wage.

It is in excellent shape.

Of course, young Nino was in the Thomas More Society.

  And he makes a “good point”!

Constitutional Yearbooks: Young Nino Scalia is in the front row, fourth from the right #scotus pic.twitter.com/hkfnT1wwX0

— Josh Blackman (@JoshMBlackman) February 3, 2014

 

For photographs from the other yearbooks of the Nine, see this post.