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Sarah Gervase, who is an NRA Assistant General Counsel, with thanks to Dave Hardy, shared a page from the George W. Bush Library concerning the Administration’s policies following District of Columbia v. Heller. The document comes from the collection of Ryan W. Bounds, who was the Special Assistant to the President, Domestic Policy Council from 2008-2009. You can find the record for Bounds here. This page is listed under “DC Gun Bill.”

There are seven documents listed:

• Document No. 1 Report – DOJ Comments on HR 6691 (6 pages). This bill, which was introduced on 7/31/2008, but died in the House Judiciary Committee, would have repealed D.C.’s ban on semiautomatic weapons, repealed the registration requirement, repealed the handgun ammunition ban, and authorized purchase of firearms by D.C. residents.
• Document No. 3 Memorandum – DC Firearms Legislation – To: Deputies – From: Ryan Bounds and Ryan Smith (3 pages, 8/27/08).
• Document No. 4 Memorandum – Interior Firearms Regulations – To: Deputies – From: Ryan Smith (3 pages, 10/8/2008). I think this memo concerns a 2008 rulemaking by the Department of the Interior that allowed people to carry a concealed weapon in a national park if the person was authorized to carry in the state in which the park is located. A press release concerning the Interior rule is available here.
• Doucment No. 11 Report – DOJ Comments on H. Res. 1331 (2 pages). H. Res. 1331 was the Second Amendment Enforcement Act, which was introduced on 7/10/2008. The text (at quick glance) is identical to HR 6691.
• Document No. 13 Report: Options for Administration Support of Post-Heller Litigation (2 pages).
• Document No. 14 Report: Options for Administration Support of Post-Heller Litigation (2 pages).
• Document No. 15 Report: Options for Administration Support of Post-Heller Litigation (2 pages). It is possible the last three documents are identical based on the title. No dates are provided,

All of the documents were withheld under P-5 of the Presidential Records Act, which provides “Release would disclose confidential advice between the president and his advisors, or between such advisors [(a)(5) of the PRA].”

As Adam Winkler discusses in his excellent book Gunfight, there were massive internal debates within the White House concerning Heller. Ultimately Solicitor General Paul Clement argued that the Court should apply some form of intermediate scrutiny for Second Amendment cases, while Vice President Cheney joined an amicus brief arguing that the D.C. Ban should be overturned. I would love to find out what memos exist concerning this question. Everything in this page concerns post-Heller developments.

 

Senate Majority Leader Mitch McConnell stated the obvious–all of the plans to amend the ACA following King v. Burwell are fruitless if the President will veto anything.

“I don’t think he’s going to sign anything, frankly,” McConnell said.

“What I think he’ll probably do is veto anything we send him and put the pressure on the states to cave and turn established state exchanges in place of federal exchanges, thereby making them eligible for subsidies,” McConnell said. “I think he’s going to put the heat on the governors who have, in my view, wisely decided not to go along with this new game plan, either with the Medicaid expansion or with establishing a state exchange.”

“So we’ll have a response to it, depending upon what the Court recommends,” he said. “Whether the President will sign it or not is another matter, but we’ll let the American people know what we think is appropriate in the wake of the Supreme Court decision.”

 

As I noted in a post, inspired by an article from Jeff Toobin, it’s not clear the Republicans take the blame in this scenario. If the House and Senate pass a bill that continues the subsidies, and eliminates the unpopular individual and employer mandates, the pressure may build on the President to sign it. I don’t think people will know or care what a death spiral is, and how the lack of the mandates could make the markets unstable. All people will know is that their policies are no longer available. This is similar to the outrage people felt when their “bare bones” plans were cancelled, and they were allowed to get something better. Political ignorance makes the President’s defense of unpopular provisions a tough sell.

If he vetoes it, and people lose their policies, the blame may fall to the White House. The buck stops there. This is Obamacare after all.

Justice Scalia gave an anti-speech at his granddaughter’s HS graduation, rejecting all the common cliches that plague commencement ceremonies. One of them hit close to home:

As they and others listened, Scalia parsed a litany of stock phrases, melding them with his own advice. He first took issue with the oft-expressed sentiment that “we face unprecedented challenges.”

“Class of 2015, you should not leave Stone Ridge High School thinking that you face challenges that are at all, in any important sense, unprecedented,” he said. “Humanity has been around for at least some 5,000 years or so, and I doubt that the basic challenges as confronted are any worse now, or alas even much different, from what they ever were.”

He’s right. The older I get, the more I realize that nothing is new. For example, when I think I have a new idea, it turns out Richard Epstein wrote about it already. (This has happened at least three times).

During remarks at a WSJ breakfast, HHS Secretary Sylvia Burwell offered several remarks on the pending case of King v. Burwell:

A move by the court to strike a key component of the 2010 federal health-care overhaul could mean “the number of uninsured would jump dramatically” and that a “death spiral” would ensue in insurance markets in most of the country, she said, as sicker people kept coverage and healthier ones dropped it. …

“We believe we hold the right position,” Ms. Burwell said at a breakfast hosted by The Wall Street Journal. But “if that’s what the courts decide, we can’t undo the massive damage.”

Her remarks mirror what Josh Earnest said yesterday. A Court decision invalidating the IRS rule would be the Court inflicting “mass damage,” not Congress itself. This is a very subtle point, so let me try to make it clearly. I have no problem when Burwell says now that the government has the better side of the argument, and she hopes the Court will rule in her favor. But once the Court rules, however it rules, that will be the definitive construction of the statute. The Administration can disagree or disapprove of the Court’s ruling, but it no sense will it be the Court that inflicts “mass damage.” It will be the law that Congress wrote. The ongoing debates about judicial supremacy play into this question in a small, but important way. The President may have his own interpretation of 36B but the Court’s interpretation prevails–for better or worse. And because we are only dealing with a statute here, and not a Constitution, it can be changed. As it will

Burwell also suggested that the recent proposals from Pennsylvania and Delaware (which I will comment on more early next week) may be able to suffice to keep the subsidies flowing.

Few other states without state-run exchanges have Democratic leaders that could do this easily, and Republican-led states have indicated this would also be a stretch for them. Still, the possibility of such an arrangement hasn’t been acknowledged before by federal officials.

“We work with states every day,” Ms. Burwell said. “We’ll do all of that.”

Here is a (rough) transcript of the video.

We believe we hold the right position. We believe we are implementing the law as it was written . . . With regard to the question of what happens if the ruling would be for the plaintiffs, what would happen. First is, the number of uninsured would jump dramatically because we know the issue of affordability has been an important part of this. The 10.2 [million] you just mentioned. So … 85% of people receive on average a subsidy of $272 a month. That affordability goes away for a group of people. And therefore you increase the number of uninsured. The second thing that happens is what people refer to as the death spiral. What happen is you have a sicker pool and prices rises. That is a death spiral. The third thing that happens is raise in uncompensated care. That’s what happens in that scenario. What I think is important is at the point that occurs, we all go to move on. That’s what the American people are asking for. This is built in now. People aren’t worrying about pre-existing conditions anymore. A vast number of people who were previously uninsured are no insured.

At 1:35 of the video of the classic Geto Boys song, “Damn it feels good to be a Gangsta,” there is a montage of, well, gangsters: Ronald Reagan, Richard Nixon, Oliver North, and Clarence Thomas (circa his Senate Confirmation Hearing).

 

For another originalist gansta, see Randy Barnett. As Ian Millhiser wrote, “If the Federalist Society played walk up music when its speakers took the stage, Barnett’s theme song would be ‘Damn, It Feels Good To Be A Gangsta.'” Maybe we should play that song next time CT comes up to the stage.