Archive for November, 2014

Ron Formisano: Electoral catharsis achieved what?

Monday, November 17th, 2014



November 17, 2014

Ron Formisano, professor of history at the University of Kentucky, is author of The Tea Party: A Brief History.


Well, let us hope the catharsis has some salutary effects. Maybe some Republican-voting Kentuckians have purged their hatred of President Barack Obama and now can enjoy — what exactly?

Obama will be president for two more years and the Congressional makers of gridlock in Washington are stronger than before. The eastern coal industry is in decline no matter what Obama does.

The president, we are told repeatedly, is “deeply unpopular” in Kentucky. And why is that? Archie Bunker knows: “He’s a Muslim, was not born here, and wants to help ‘poor people,’ and you know what that means.”

Edith: “But Archie, he’s half white.”

Archie: “Stifle it Edith.”

For younger readers, Archie and Edith were characters in the popular 1970s sit-com All in the Family that satirized white Americans’ prejudices, as well as the holier-than-thou moralism of Archie’s liberal son-in-law.

If Faux News had been around back then, Archie, ensconced in his armchair, would have been glued to the TV all day and perhaps comatose by nightfall. But let us count the ways Kentuckians should hate the president.

In 2009, as Kentucky’s economy tanked with the rest of the country, the federal government’s stimulus bill sent some $3 billion into the state for roads, law enforcement, schools, energy assistance and Medicaid: $900 million to Medicaid erasing a $232 million deficit. Apart from that, Kentucky receives $1.40 in tax money for every $1 it pays.

As of September, 521,000 people had enrolled in Kynect, Kentucky’s version of the Affordable Care Act. Poor people who have seldom seen a doctor now have health insurance.

But some still hate “Obamacare” and Obama, and believe the false charges about high premiums and other distortions.

Sen. Mitch McConnell wants to kill the ACA but said Kynect’s website was okay with him: but the website is Obamacare.

Kentuckians, he counts on our ignorance.

Poverty in Kentucky is pervasive and more white than black. Compared to previous Democratic presidents, Obama’s budgets have allocated significantly more assistance to low-income families for food, housing, education, and health care.

These benefits to Kentucky are outweighed of course by the mythical “war on coal.” To blame Obama for all the decline in the coal industry that has occurred on McConnell’s 30-year watch makes as much sense as blaming him for Hurricane Sandy.

Hatred of America’s first black president just partly ruled the mid-term election, a creation also of the five activist, reactionary Supreme Court justices whose delusional decisions that “money is speech” unleashed a $4 billion tsunami, much of it “dark money” from undisclosed sources.

Hundreds of millions went for attack ads. Negative campaigning, studies have shown, turns off many voters who stay home. So the embarrassing turnout of 37 percent was the lowest since 1942 when the U.S. was in a world war.

Anti-Democrats spent $200 million just trashing Obama. The Supreme Court’s reactionary majority got just the kind of election they want.

Negative ads discourage voters, while the voter ID and other laws passed by many Republican state legislatures prevent people from voting, targeting groups that vote mostly Democratic. Republicans’ claims that such laws prevent fraud are false since such cases are extremely rare and a pretty stupid way to try to cheat (easier just to rig the voting machines as Bush supporters did in Ohio in 2004).

Republican Sen. Rand Paul deserves credit for bucking his party on voter ID and other laws designed to suppress voting. But Republican efforts to suppress voting are ramping up again after their recent victories.

Whether Republican voters’ hatred of Obama dissipates or not — perhaps not among the minority who suspect he is a disloyal Muslim or the anti-Christ — the plutocrats and their allies will continue to demonize him.

Ron Formisanois the author of The Tea Party: A brief History. His forthcoming book is about inequality in the United States.


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Monday, November 17th, 2014

Quoting Hobby Lobby, Federal Appeals Court Hands Down Big Victory For Birth Control


Quoting Hobby Lobby, Federal Appeals Court Hands Down Big Victory For Birth Control

A federal appeals court in Washington, DC handed down a decision on Friday that could neutralize some of the impact of the Supreme Court’s decision in Burwell v. Hobby Lobbyif it is upheld on appeal. Hobby Lobby held that employers with religious objections to birth control have broad immunity from federal rules requiring them to include birth control in their employer-provided health plan. Judge Nina Pillard’s decision in Priests For Life v. Department of Health and Human Services, however, indicates that there are limits to an employer’s ability to deny birth control coverage to their employees.

To explain, Hobby Lobby exempted employers with religious objections to birth control from a rule requiring contraceptive coverage to be included in employer-provided health plans. At the same time, however, the Court suggested that it might be possible for the government to accommodate religious objectors while still ensuring that birth control was widely available to women in the workplace. Prior to Hobby Lobby, the government accommodated non-profit employers by allowing them to exempt themselves from the birth control rules so long as they filled out a form notifying the government and their insurance administrator of their objection. In most cases, the insurer would then contract separately with the religious objector’s employees to ensure that they received contraceptive coverage. After Hobby Lobby, the government extended this accommodation to for-profit businesses and allowed religious objectors to invoke the accommodation through an alternative means if they objected to the form the government provided.

Judge Pillard’s opinion holds that this accommodation is enough to satisfy the government’s obligation to religious objectors, and it relies, in part, on Justice Samuel Alito’s opinion in Hobby Lobby to achieve this result. Hobby Lobby described the very same accommodation at issue in Priests For Life as “an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” Moreover, as Pillard writes in her opinion, “the Supreme Court stressed that [the accommodation] alleviates the burden on the plaintiffs of having to provide contraceptive coverage and ‘serves HHS’s stated interests equally well.’”

Elsewhere in her opinion, Pillard lays out another flaw in the argument claiming that this accommodation does not go far enough to protect employers with religious objections to birth control. The Religious Freedom Restoration Act, which is the federal law governing religious liberty claims, applies when the federal government “substantially burden[s] a person’s exercise of religion.” Yet, as Pillard explains, the burden in Priests For Life could not be any more insignificant. “All Plaintiffs must do to opt out,” she explains, “is express what they believe and seek what they want via a letter or two page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state.” Indeed, Judge Pillard writes, “[t]he accommodation requires as little as it can from the objectors while still serving the government’s compelling interests.”

So, on the surface, Pillard’s opinion appears likely to survive review by the Supreme Court — if such review is even necessary at all. She relies on the language and reasoning of Hobby Lobby itself to justify her opinion, and she upholds a federal rule that imposes an extraordinarily mild obligation on employers. They must simply fill out a one page form or mail off a very short letter.

There are three reasons, however, why the fate of her decision is less certain. The first is that Pillard was a member of a particularly liberal panel when she decided this case — the other two judges who joined her opinion were appointed by Presidents Clinton and Obama. Pillard herself may be the closest thing the federal judiciary has to another feminist icon like Justice Ruth Bader Ginsburg. As an attorney, Pillard litigated two major women’s rights cases before the Supreme Court, and as a law professor she authored apre-Obamacare article arguing that “[t]he lack of a national requirement that insurance plans cover women’s contraceptives is emblematic of a much broader failure to make contraceptive access a priority to reduce the extremely high numbers of unintended pregnancies in the United States.” The five conservative justices, to say the least, do not share Pillard’s commitment to women’s equality and reproductive freedom.

Moreover, while Pillard is correct that federal religious liberty law only applies in cases where someone’s religious exercise is substantially burdened, Justice Alito’s opinion inHobby Lobby comes very close to reading this requirement out of the law. According to Alito, the Hobby Lobby plaintiffs’ “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”

Finally, despite the language in Hobby Lobby suggesting that the accommodation at issue in Priests For Life is acceptable, the Supreme Court called this language into doubt just days after Hobby Lobby in a case called Wheaton College v. Burwell. Dissenting in Wheaton College, Justice Sonia Sotomayor even implied that the Court’s majority was deceptive inHobby Lobby. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”

Ky. Ct. of Appeals-revives whiskey fungus lawsuit

Saturday, November 15th, 2014


James Bruggers, jbruggers@courier-journal.com7:26 p.m. EST November 14, 2014


Whiskey fungus lawsuit had been thrown out, but now gets a second chance after appeals court decision.

A lawyer who on Friday won a big ruling that revives a battle in Louisville over whiskey fungus from aging bourbon said city officials could solve the problem, if they wanted to.

But William F. McMurry said the Louisville Metro Air Pollution Control District has lost “any fire in the belly” for helping residents and businesses in Shively and western Louisville deal with vapors from what has become a signature industry in Louisville, after taking action in 2012 against just one company, Diageo Americas Supply Inc.

District spokesman Tom Nord said district officials felt they had a “resolvable situation” with Diageo, declining to comment on other distillery operations.

Called “the angel’s share,” liquor vapors drifting from Louisville bourbon warehouses have long been romanticized by distilleries, but reviled by neighbors as a smelly, property-damaging nuisance. The ethanol vapors have been linked to excessive growth of a fungus known as baudoinia compniacensis.

READ MORE: Bond endorsed for Brown-Forman distillery

On Friday, the Kentucky Court of Appeals gave new life to McMurry’s law firm’s battle against whiskey fungus and two big Kentucky liquor companies: Brown-Forman Corp. and Heaven Hill Distilleries.

The ruling overturned a lower court’s dismissal of a lawsuit by a Shively-area business and residents, claiming the black splotchy fungus that’s fed by ethanol vapors is a nuisance and damages their property.

“We are disappointed in the decision and are considering our options, including asking the Kentucky Supreme Court to review the Court of Appeals reversal of the Jefferson Circuit Court decision,” the two companies said in a joint statement.

The lawsuit is one of several led by McMurry, challenging distillers in Kentucky, the Virgin Islands and Scotland. It was filed in 2012 but dismissed by Jefferson Circuit Court Judge Judith McDonald-Burkman, at the request of the two companies.

Splotching problems

The appeals court’s three-judge panel of Denise Clayton, Sara Walter Combs and Janet L. Stumbo voted unanimously to overturn the lower court ruling. They found that McDonald-Burkman misinterpreted earlier case law in ruling that the federal Clean Air Act does not allow the plaintiffs to sue in state court over air quality nuisance issues.

Their decision sends the case back to the lower court for a resolution.

“This opinion is going to resonate with Brown-Forman and Heaven Hill in a way that no other has,” McMurry said. “We are are so close now to finally getting discovery into how they conduct their business. No one has ever pulled back the curtain and looked … especially at how they have been able to ignore this huge environmental issue all these years.”

Among those who sued the companies is Bruce Merrick and his Dant Clayton Corp. Dant Clayton makes and installs stadium seating, and Merrick argues that the whiskey fungus destroys any inventory stored outdoors and has doubled the cost of replacing a commercial roof, according to the nine-page ruling.

“It’s a nuisance, it is time consuming and it’s expensive,” Merrick said.

In a matter of months, aluminum seating samples that can cost $25,000 to make are so covered with black spots that they can’t show them to prospective clients, Merrick said.

The splotching also eats away at buildings on the company’s 23-acre property on Bernheim Lane, he added.

He said it seems to be getting worse, as the bourbon industry has boomed. Few issues are affecting as many people in Shively as the fungus, he added.

Dant Clayton was co-owned by Louisville Mayor Greg Fischer until 2011, who has been promoting bourbon as a signature industry for Louisville. In the days after the air district issued its violation against Diageo, Fischer questioned the science used by his own air district experts; he also recused himself from any involvement in the matter because of a business relationship he had with Merrick.

After being threatened by the district with $10,000-a-day fines, Diageo agreed in July 2013 to clear out its inventory in a Millers Lane warehouse, with some of the barrels to be moved to another facility about a half mile away, and others to be moved to Tennessee.

The aging process

But even though there are other warehouses in the area where bourbon is aged, district officials have not brought any other enforcement actions against them, including Brown-Forman and Heaven Hill, yet local residents and business owners are still being affected, McMurry asserted.

“This is something that could have, would have, and should have been done, but for politics, politics and more politics,” McMurry said. “The district picked on the international corporation, but sidestepped the same actions against the good ol’ boys of Kentucky, Brown-Forman and Heaven Hill,” McMurry said.

Nord would only comment on the Diageo matter, writing in a statement that the district had responded to citizen complaints, and its Miller’s Lane warehouse should be empty by early 2016.

“We expect that to resolve the matter,” he wrote.

He declined to answer questions about the other companies, and invited The Courier-Journal to file open records requests to get more information. “I just have to let the statement speak for itself,” he said.

The district in 2012 posted on its website detailed information about the problem of whiskey fungus. But that information has since been taken down.

It was removed, he said, “when the issue seemed to die down.”

Heaven Hill and Brown-Forman have previously said they were sympathetic to the concerns about the fungus, but that the fungus was natural and also found in areas not related to the production of whiskey. They have also said that an aging process in warehouses with open windows contributes to the flavor of their products, and that they would vigorously defend themselves in court.

McMurry said the companies need to enclose the warehouses and prevent the vapors from getting into the community, or pay property owners for their damages. The suit does not seek a specific dollar amount for damages.

McMurry was lead counsel in a case in which the Roman Catholic Archdiocese of Louisville in 2003 paid $25.8 million to 243 victims of abuse by priests, brothers and teachers.

Reach reporter James Bruggers at (502) 582-4645 or on Twitter @jbruggers.

Baudoinia Compniacensis

A naturally occurring mold, it is normally slow growing and eclipsed by other faster producing molds.

When introduced to ethanol-rich environments, such as that surrounding a whiskey-aging warehouse, it becomes uncharacteristically fast growing, resilient and adaptive to many environments.

Baudoinia uses the ethanol as a carbon source, stimulating rapid growth.

Mature colonies of the whiskey fungus are crust-like and scorched in appearance.

The pronounced blackening from whiskey fungus often extends a considerable distance from the ethanol emission source and indiscriminately colonizes on exposed surfaces.

Source: Louisville Metro Air Pollution Control District.


Friday, November 14th, 2014

go to:



Friday, November 14th, 2014

CASE NO. # 14-ci-005790
On behalf of himself and all other participants
in the Kentucky Teachers’ Retirement System
Serve: Beau Barnes Attorney and Managing Agent for the Board of Trustees of the Kentucky
Teachers’ Retirement System
479 Versailles Road
Frankfort, KY 40601
The Kentucky Teachers’ Retirement System (KTRS) is one of the worst funded pensions in the
country, but its thousands of members have not been adequately apprised, and remain woefully
unaware of this fact. i
The Federal Government Accounting Office says the standard for a
pension to be healthy is an 80% or greater funding level.ii This 80% standard is reiterated in
publications by Pew and the Stanford Center for Economic Research. KTRS sank under 80%
funding in 2005.iii
Standard & Poor’s (S&P) rates pensions at 90% and greater funding as Strong; 80% to 90%
Above Average; 60% to 80% as Below Average; and 60% and below as Weak.iv Fitch ratings
considers 70% and above as Adequate and 60% and below as Weak. KTRS sank below 60%
funding in 2011.v
As late as 2007 KTRS had no alternative investment managers listed in their CAFR; by 2013
there were 31 alternative managers Alternative managers have been criticized recently
for underperformance, excessive fees, excessive risks and a lack of transparency.vii

History gives clues to Chief Justice Roberts’ thinking on new Obamacare case

Friday, November 14th, 2014
The latest challenge to Obamacare puts Chief Justice Roberts back in the spotlight
Together again: The Supreme Court and the Affordable Care Act

The Supreme Court’s surprising decision last week to hear a new challenge to the Affordable Care Act has once again focused attention on Chief Justice John Roberts, who cast the deciding vote in a 2012 decision that saved Obamacare from being declared unconstitutional. Many court watchers expect that he will once again be the swing vote in deciding a case crucial to the healthcare law, this one involving questions about who qualifies for subsidies under the law.  But Roberts’ vote in a recent voting rights case suggests he might not step in to save the health law this time.

At issue in King vs. Burwell is a provision of the Affordable Care Act that authorizes subsidies in the form of tax credits for qualifying individuals who buy their insurance from exchanges “established by the state.” But 34 states did not set up their own healthcare exchanges, opting instead, as the law allows, to send state residents to a federal exchange to buy insurance. The challengers argue that because this exchange was not created by a state, but rather by the federal government, people obtaining insurance through it are not entitled to subsidies.

There are strong reasons to reject this argument. First, the intent of the Affordable Care Act’s drafters is clear. The text as a whole makes sense only if the provision in question is interpreted to include federal exchanges. At worst, the wording of the law might be considered ambiguous, and in ambiguous circumstances the court has said that it should defer to reasonable interpretations by the agency in charge of administering it. In this case, the IRS has interpreted the law to allow subsidies for those on federal exchanges. Finally, the court has a well-established tradition of looking to interpret laws so that they work and are coherent, a practice that long predates a recent tendency on the part of some justices to fixate on narrow snippets of statutory text.

Still, it seems entirely possible that Roberts might focus narrowly this time on the snippet of the act extending subsidies only to those insured by exchanges “established by the state.” One argument he might make in defense of that position is that Congress has the ability to go back and fix any unclear language through a revised statute.

Roberts telegraphed his willingness to take such an approach in the 2013 Shelby County vs. Holder case, which struck down a key provision of the Voting Rights Act. The provision the Supreme Court declared unconstitutional defined which states had to get federal approval (or pre-clearance) before making changes to their voting laws. Roberts’ opinion for the majority ordered the provision struck because it was based on old data. Congress, he reasoned, could simply update the formula to respond to “current conditions” if it wished to.

When Roberts wrote his Shelby County opinion, he knew full well that Congress would not update the coverage formula. Congress is polarized, and the issue was a political hot potato. Indeed, in the period since the opinion, a bill introduced to update the Voting Rights Act has gone nowhere. It is supported by Democrats and a sole Republican, Jim Sensenbrenner (R-Wis.).

Although Congress used to come forward on a bipartisan basis to change laws in response to Supreme Court rulings, the number of such overrides has fallen to a trickle. From 1975 to 1990, Congress overrode an average of 12 Supreme Court decisions in each two-year congressional cycle. In the last decade, that number has fallen to 2.7 every two years, and there have been no significant overrides during the Obama presidency since Republicans took over the House of Representatives. During the last two years, perhaps owing to the intensity of the current political polarization and paralysis, overrides have been even rarer. I have identified just one override, which pertained to a single Indian tribe’s right to certain tribal lands.

Even if Congress were to come together in a bipartisan way to override some statutory interpretations of the Supreme Court, there is no way it is going to override the Supreme Court on the Affordable Care Act. The House has voted dozens of times to repeal the healthcare law in its entirety; there is little chance it would step in now to save a law its members have so long maligned.

Roberts can point to many past cases in which court decisions have initiated a “dialogue” with Congress, which then stepped in with legislation to correct what it saw as errors in the court’s interpretation of congressional statutes.

In today’s fraught political environment, court-Congress dialogues are not generally possible.  But that might not stop Roberts from citing the possibility of such a dialogue  — especially if what he is really seeking is political cover and a chance to redeem his controversial earlier ruling on the Affordable Care Act with a new one that hobbles a key part of the law.

Richard L. Hasen is a professor of law and politics at the UC Irvine School of Law.

New court decision could end California’s restrictions on conceal-carry permits

Thursday, November 13th, 2014


A procedural decision in a landmark Second Amendment case could spell the end for California laws restricting the issuance of permits to carry concealed handguns.

The decision by the 9th U.S. Circuit Court of Appeals would bar other law enforcement officials, including state Attorney General Kamala Harris, from gaining “intervener status” to join in further challenges of its ruling in a case originally brought by an independent journalist who sued the San Diego County Sheriff’s Department over its policy of requiring a specific reason for being allowed to carry a concealed weapon in public.

San Diego County Sheriff Bill Gore has said he will not fight the ruling, meaning there is no one with standing left to challenge the decision made in February.

“Since becoming Sheriff, I have always maintained that it is the legislature’s responsibility to make the laws, and the judiciary’s responsibility to interpret them and their constitutionality,” Gore wrote in a letter to the county board of supervisors earlier this year, in which he said the court’s decision gave him clarity on the issuance of licenses. “Law enforcement’s role is to uphold and enforce the law.”

Edward Peruta sued Gore’s department over its policy of requiring a specific reason for being allowed to carry a concealed weapon in public, restrictions other counties around the state also had in place.

In its bombshell ruling earlier this year, the 9th Circuit found those policies to be unconstitutional and held that law-abiding citizens have a right to bear arms under the Constitution’s Second Amendment and could not be required to justify their reasons for carrying concealed weapons. The panel simultaneously ruled on a similar case brought in Yolo County, and that county’s sheriff, Edward Prieto, has not indicated he will drop further appeals, which could be heard en banc by all of the 9th Circuit judges or by the U.S. Supreme Court. Harris could try to join Prieto’s case, although Wednesday’s ruling appears to make it unlikely she would be allowed.

California counties have differed on policy in the wake of the February decision, with Orange County issuing the permits on request and others waiting for a resolution in the case.

One judge on the panel disagreed with Wednesday’s ruling, saying the state should be able to intervene in the case to “present an argument on an important constitutional question affecting millions of citizens.”

The law would still not allow felons or the mentally ill to possess firearms, and would still prohibit the carrying of them in places such as schools and government buildings.

Brandon Combs, executive director of the pro-Second Amendment Calguns Foundation, which represented the plaintiff in the Yolo County case, said he believes more counties will likely drop their restrictions on concealed-carry permits.

“Some sheriffs are probably going to see this news as evidence their policies are wrong,” he said. “But sheriffs and police chiefs in anti-gun jurisdictions may need more help seeing the light. We’ll be happy to help them, even if it means going to the Supreme Court.

Kentucky Drivers Are Being Ripped Off By Not Following One Simple Rule

Wednesday, November 12th, 2014

(KENTUCKY) - Are you being scammed by your current insurer? New policies are indicating that for years many Kentucky drivers have likely overpaid on their car insurance coverage.

This is the one simple truth your car insurance company doesn’t want you to know. If you’redriving less than 50 miles/day on average and live in Kentucky you can get an extremely high discount. Did you know that? Or DUI’s… if you have no DUI’s, you can get even more discounts. But do you think your auto insurance company will tell you that? Fat chance.

When Miranda entered her zip code at, she was shocked. She found out her local insurance agent was ripping her off, and she could get car insurance much cheaper.

We managed to reduce our insurance premium by 50%! I only wish we had discovered this sooner.” Miranda exclaimed.

What Miranda did was visit an independent car insurance rate comparison website –, and entered in some basic information. Within seconds, she was shown the different rates that all of the popular insurance companies offered for the criteria she put in. And that’s when she found out she was overpaying.

Does this mean Miranda was being scammed by her former insurance agent? She would not say one way or the other, but the truth is most agents are paid on commission which means the higher your insurance premiums, the more money your agent makes. You can be sure, however, that your insurance company is not going to call you up to offer you a discount.

Did you know that car insurance rates have dropped?

Comparing insurance companies is especially important now, because rates have dropped over the last year or so. In fact, thanks to new program policies, you may be able to save $100′s on your current rate.

So, what is the “One Simple Rule?” NEVER buy insurance without comparing all discounts online first. Out of the 100′s of insurers out there, only a handful will give you really big discounts. But they ARE out there, and they WANT to insure you – you just can’t find each other.

You can automatically compare auto insurance companies - it’s fast, it’s easy, and it’s FREE. Heck, it’s even fun (well, as fun as insurance can be!)

NOTE: You’re NEVER LOCKED into your current policy. If you’ve already paid your current policy, you can very easily cancel and the balance will be refunded.

Indeed, these insurance comparison websites are very easy to use. Customers just need to enter their zip code, and then fill out a simple & short online form. It takes less than 5 minutes, and the insurance company rates that are delivered for your side-by-side comparison are all trusted names you know. It couldn’t be any easier.

According to ComScore’s 2012 U.S. Online Auto Insurance Shopping Report, “nearly 70 percent of shoppers reported getting an online quote”. The report also found that “the online channel remains the preferred channel for customers shopping for auto insurance policies”.

In the end, it’s the smart, diligent consumer that gets the best deals. This is true when shopping for a TV, and it’s true for buying car insurance. If you just go to your local agent and have him or her write what’s available, you are probably paying too much (and also subsidizing the agent’s tropical vacation). But again, the only way to find out for sure is to be a smart consumer and look at insurance companies side by side on an independent comparisons website.


Wednesday, November 12th, 2014

“The total cost of attendance (indicating the cost of tuition, fees, and living expenses) at University of Kentucky College of Law  for the 2014-2015 academic year is $53,700.[14] The Law School Transparency estimated debt-financed cost of attendance for three years is $204,646.”     WIKIPEDIA

Time to Say Goodbye to Judicial Overreach

Tuesday, November 11th, 2014

Monday, 10 November 2014 15:33By The Daily Take TeamThe Thom Hartmann Program | Op-Ed

The U.S. Supreme Court in Washington, Nov. 7, 2014. The court on Friday agreed to hear a new challenge to the Affordable Care Act, potentially imperiling President Obama’s signature legislative achievement two years after it survived a different challenge in the court by a single vote. The case concerns tax subsidies that are central to the operation of the law. (Photo: Jabin Botsford / The New York Times)

The Supreme Court has turned the US from a republic into a Constitutional monarchy.

Last week, the Supreme Court announced that it would hear yet another conservative-fueled challenge to Obamacare.

This time, the attack on Obamacare focuses on the phrasing of one sentence in the Affordable Care Act that talks about who can receive subsidies under the health-care law.

That phrasing is in Section 36B of the Affordable Care Act, which gives the government the power to subsidize health-care plans, “which were enrolled in through an Exchange established by the State.”

Basically, as it stands now, US citizens who sign up for health-care insurance under Obamacare through the federal exchange receive a subsidy to help pay for that insurance.

However, the plaintiffs in the case are arguing that, based on the wording of the particular clause, Americans who sign up for Obamacare through the federal exchange AREN’T eligible for the subsidies; only Americans who sign up through state-run exchanges are.

Subsidies are a major aspect of Obamacare, and if the conservative justices on the Supreme Court were to rule against them in this case, millions of US citizens will lose the health-care coverage they got under Obamacare.

The frivolous nature of this challenge to Obamacare is pretty clear, and you would think that the Supreme Court would recognize that, and would have refused to hear the case.

But, given the history of the Roberts’ Supreme Court, we really shouldn’t be surprised that the court decided to hear the case.

After all, the Roberts’ court is synonymous with the judicial overreach that’s turned the US into a Constitutional monarchy.

Over the past several years, we’ve seen time and time again how the conservative justices of the Roberts Court are willing to engage in judicial activism and overreach.

As the Alliance for Justice points out, the Roberts Court has routinely taken up cases that is has no right hearing.

In a report titled, “The Roberts Court and Judicial Overreach,” the Alliance for Justice writes that, “The Supreme Court generally grants certiorari—that is, agrees to hear a case appealed to it—where there is an unsettled question of law or where the circuit courts of appeal have split on the proper interpretation of a given law. In recent years, however, the Court has taken a number of cases outside these parameters, which, in almost all cases, results in rulings favoring corporate interests.”

But the Roberts Court’s judicial overreach doesn’t stop there.

The court has also routinely answered legal questions that weren’t even presented to it, and that were entirely unnecessary to decide the case before them.

For example, in the highly controversial Citizens United decision, the court was initially asked to decide whether the electioneering communications provisions of the McCain-Feingold Act apply to “pay-per-view” movies made by nonprofit organizations.

However, as we all know, the court went well beyond the scope of that question, and instead decided to rule that corporations are just like people, and that their spending of money is just like our speech.

Finally, the Roberts’ court has shown a consistent lack of respect for established legal precedent or the will of Congress.

In the court’s Shelby County v. Holder decision, the conservative justices on the court managed to completely ignore decades of legal precedent while essentially gutting the Voting Rights Act which had passed the Senate unanimously just the year before.

And, to make matters worse, in the majority opinion in the case, Chief Justice Roberts was unable to cite any precedent or reasoning for why the court decided how it did. He just did things because he decided to.

So, it’s really no surprise that the Roberts Court has decided to hear a completely frivolous case, because the court has been pulling these kinds of tricks for years now.

In Federalist Paper No. 78, Alexander Hamilton wrote that, “The interpretation of the laws is the proper and peculiar province of the courts. … Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”

When our nation’s founders established the Supreme Court and the court system, they did everything in their power to create a branch of government that wouldn’t be swayed by political interests or public opinion.

But, somewhere along the way between 1776 and today, the Supreme Court has lost its way.

Today, we’re left with a court that is all too comfortable overstepping its boundaries, while trying to make new laws.

Our nation’s founders never intended for the Supreme Court to have as much power as it does today.

It’s time to reel in our runaway Supreme Court, and that starts by making it accountable to “We the People.”

Congress should use their Article 3, Section 2 power to regulate the Supreme Court, and to make sure it stays within its boundaries.

It’s time to say goodbye to judicial overreach once and for all.

This article was first published on Truthout and any reprint or reproduction on any other website must acknowledge Truthout as the original site of publication.

John Roberts’s Legacy May Be Decided in the Next Few Months

Monday, November 10th, 2014

By  @rosenjeffrey

On Thursday, the U.S. Court of Appeals for the Sixth Circuit upheldbans on same-sex marriage, dramatically increasing the odds that the Supreme Court will consider whether the Constitution requires marriage equality this term. And on Friday, the Court agreed to revisit the legal controversies surrounding the Affordable Care Act, accepting a case about whether the federal government can extend health care subsidies in the 34 states that have refused to set up their own exchanges. These two decisions not only interject the Court into the two most explosive legal controversies of our time—they also pose a challenge to Chief Justice John Roberts’s legacy.

In 2013, Roberts preserved the Court’s legitimacy through judicial statesmanship and judicial restraint, respectively, by voting to uphold the Affordable Care Act and not ruling on the merits of marriage equality. Now, by voting to take on the Obamacare case, at least four of his colleagues have chosen to confront a legal controversy that Roberts would prefer to avoid. He may have to choose whether to drive a stake through the heart of the Affordable Care Act, which he had previously voted to uphold. And if Justice Anthony Kennedy and the four liberal justices hold that the constitution requires marriage equality, Roberts may also have to chose whether to join the conservative dissenters—which, as Judge Jeffrey Sutton acknowledged in hisopinion upholding the marriage bans, would put those justices on the wrong side of history.

What makes Roberts’s choice so difficult is that the same considerations of judicial restraint that led both Sutton and Roberts to uphold the Affordable Care Act’s employer mandate could lead Roberts to follow Sutton in upholding the marriage equality bans. Sutton’s opinion provides a roadmap for a potential Roberts dissent in the marriage equality cases. Sutton narrowly construes recent Supreme Court decisions striking down bans on same-sex sodomy and the Defense of Marriage Act, noting that in both cases, Justice Kennedy said the Court was not addressing the constitutionality of same-sex marriage. He holds that the framers of the Fourteenth Amendment anticipated that traditional state marriage laws were constitutional, and that marriage equality has not yet become embedded in American constitutional tradition because “Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way.” (At another point in his opinion, however, Sutton is willing to include state court decisions in his measure of evolving social values.) In a clever attempt to turn the tables on the liberal embrace of international law, Sutton writes, “The great majority of countries across the world,” including the European Court of Human Rights, have refused to recognize a right to same-sex marriage.

“We cannot deny the lamentable reality that gay individuals have experienced prejudice in this country, sometimes at the hands of public officials, sometimes at the hands of fellow citizens,” Sutton writes. “Stonewall, Anita Bryant’s uninvited answer to the question ‘Who are we to judge?’, unequal enforcement of antisodomy laws between gay and straight partners, Matthew Shepard, and the language of insult directed at gays and others make it hard for anyone to deny the point.” He also makes clear his belief that the voters will, and should, recognize marriage equality as a policy matter.

Sutton is one of the most thoughtful and respected conservative judges in the country, and his independence in upholding the health care act shows that, like Roberts, he takes considerations of judicial restraint seriously. Still, his opinion contains an analytical move that could have serious constitutional consequences if Roberts imitates it. Sutton embraces the “responsible procreation” argument that every other circuit has rejected, namely: that it’s rational to exclude same-sex couples from marriage based on “the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended children.” As Judge Martha Daugherty noted in her blistering dissent, this argument is one that Judge Richard Posner has described as being “so full of holes that it cannot be taken seriously.” There’s no evidence—and no logic—supporting the idea that preventing gay couples from marrying would make it more likely for straight couples to procreate responsibly. Indeed, in defending California’s gay-marriage ban in the Proposition 8 trial, Attorney Charles Cooper was unable to site any evidence that California voters were actually trying to promote “responsible procreation” when they banned gay marriage.

Cooper wasn’t able to site any evidence because there isn’t any: the “responsible procreation” argument was made up for litigation purposes because the Supreme Court has ruled out of bounds the real reasons that people have for opposing marriage equality. There are two sincere reasons that voters have for opposing marriage equality today: moral disapproval or a desire to preserve tradition. But in the Lawrence v. Texas case that struck down anti-sodomy laws, Justice Kennedy held that moral disapproval is not a rational justification for laws that disadvantage gays and lesbians; and in theVirginia Military Institute case, Justice Ginsburg held that preserving tradition for its own sake is not a rational justification for laws that disadvantage women. If Roberts follows Sutton in ignoring the implications of these cases, that would represent a significant retreat in the Supreme Court’s willingness to look behind the false reasons offered for laws that disadvantage minorities and to conclude that they are a smokescreen for illegitimate animus.

Roberts’s choice in the health-care case will be just as difficult as his choice in the marriage equality cases. The question is whether Congress meant what it said when it wrote, in section 1311 of the ACA, that tax subsidies are available only for insurance purchased on “an Exchange established by the State.” The IRS has issued a rule allowing subsidies for insurance purchased on the 36 federally run exchanges, and challengers say that rule clashes with the plain language and congressional intent of the statute.

There are decent lawyer’s arguments on both sides of his case, pitting hypertextualism against a willingness to look pragmatically at Congressional intentions. But choosing among them will be hard for Roberts, who showed an affinity for textualism in his decision to uphold the health care mandate as a tax. And because the current challenge involves the legality of an IRS regulation, rather than a decision to strike down an act of Congress on constitutional grounds, considerations of judicial restraint might lead Roberts to side with the ACA opponents.

In acknowledging that Roberts has two difficult choices to make about the Affordable Care Act and marriage equality, I’m not suggesting that the choices are clear. Unlike his decision to uphold the ACA in 2013, where he proved that he meant what he said about trying to persuade the Court to avoid broad 5-4 constitutional rulings on partisan grounds, he could plausibly join three conservatives in dissenting from an opinion by Justice Kennedy recognizing marriage equality, without calling into question his concern for the institutional legitimacy of the Court. He could also write an opinion that guts the ACA, without calling into question his commitment to constitutional judicial restraint. Roberts prefers to sidestep no-win propositions if at all possible—much like his hero, Chief Justice John Marshall, who once wrote, “I am not fond of butting against a wall in sport.” In these two cases, though, it will be nearly impossible for Roberts to avoid the wall.

Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.


Monday, November 10th, 2014


United States Supreme Court Cost Estimate

Brief ($16.50/page)


$              660.00
Cover page + Index (pages x 2 x $16.50)


$              297.00
Apx ($18.50/page)


$           5,975.50
Fold-out/Image/Table/Difficult Text Page ($37/page)


$           1,998.00
Color Page ($1/page)


$                    -
Apx Kill Pages ($13/page)


$                    -
Word Processing ($18.75 per 1/4 hour)


$              150.00
Extra Copies ($.10/page up to 150 books; .07 thereafter)


$                    -
Expediting Fees ($150/hour)


$                    -
Total Printing Cost:   $          9,080.50
PDF proof / final ($25 each)


$              100.00
Handling Fee ($50 Court; $10 each add’l counsel)


$                70.00
Postage Fee (estimate for Next Day Air)

$              400.00
Filing Fee


$              300.00
Total Costs:   $       9,950.50
Tax: Ohio 6.5% (yes or no)


$                    -
ESTIMATED GRAND TOTAL:   $       9,950.50


Monday, November 10th, 2014

PHOENIX (AP) — Arizona’s frustrations over federal enforcement of the state’s border with Mexico spawned a movement nearly a decade ago to have local police confront illegal immigration. Now, the state’s experiment in immigration enforcement is falling apart in the courts.

A ruling Friday that struck down the state’s 2005 immigrant smuggling law marks the latest in a string of restrictions placed by the courts on Arizona’s effort to get local police to take action on illegal immigration. The smuggling law, like similar state statutes, was tossed because a judge concluded it conflicted with the federal government’s immigration powers.

“There may be some broad sympathy within a constituency for these laws, but that constituency isn’t enough to overcome the problems those laws pose,” Peter Spiro, a Temple University law professor who specializes in immigration law.

For years in Arizona, many officials resisted suggestions that local and state police agencies confront illegal immigration, long considered the sole province of the federal government. But the notion gained political traction as voters grew frustrated over the state’s status as the nation’s then-busiest immigrant smuggling hub and over what critics said was inadequate border protection by Washington.

A small number of the state’s immigration laws have been upheld, including a key section of Arizona’s landmark 2010 immigration enforcement law that requires police to check people’s immigration status under certain circumstances. But the courts have slowly dismantled other Arizona laws and policies.

U.S. District Judge Susan Bolton on Friday threw out the smuggling law as part of the Obama administration’s challenge of the state’s 2010 immigration law, which made a minor change to the 2005 statute. The dispute over the smuggling law is all that remains of the administration’s challenge of the 2010 law.

Gov. Jan Brewer’s office, the chief defender of the 2010 law, didn’t immediately respond to messages left Saturday.

Jonathan Paton, a former Republican lawmaker from Tucson who was one of the smuggling law’s top sponsors, said the Obama administration’s efforts to overturn the smuggling statute is evidence that Washington doesn’t care about Arizona’s problems. “It basically shows this administration has no intention to enforce its own laws or let the state enforce its laws,” Paton said.

The U.S. Justice Department, which pressed the challenge on behalf of the Obama administration, issued a statement saying it was pleased with Friday’s ruling.

The smuggling law had been used frequently in Maricopa County Sheriff Joe Arpaio’s trademark immigration efforts, though the courts have curbed his immigration powers during the 17 last months.

It came under heavy criticism after more than 2,000 immigrants who paid to be sneaked into the country were charged with conspiring to smuggle themselves across the border. Critics said the law was intended for the smugglers, not their customers.

“I will wait to see what the outcome of this case will be,” Arpaio said in a statement about Friday’s ruling.

During the past 18 months, Arizona has seen a growing list of its immigration laws and policies that have been rejected by the courts.

A federal judge ruled that Arpaio’s office, which made immigration enforcement one of its top priorities, systematically racially profiled Latinos in its immigration and regular traffic patrols — a finding that the sheriff vigorously disputes.

This summer, a federal appeals court ruled the state cannot deny driver’s licenses to young immigrants who are allowed to stay in the U.S. under a 2012 Obama administration policy.

Three weeks ago, an appeals court struck down a 2006 voter-approved law that denies bail to immigrants who are in the country illegally and have been charged with a range of felonies that include shoplifting, aggravated identity theft, sexual assault and murder.

County officials are appealing that decision, and the U.S. Supreme Court has temporarily put the ruling on hold until it decides whether to delay implementation of the decision on a more long-term basis.

(© Copyright 2014 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.)

There Is No Suspense: SCOTUS Has Already Decided to Kill Obamacare

Monday, November 10th, 2014


  • Posted: Updated: 


Unless you found the end of Rocky IV to be a surprise, you do not need your popcorn. There is no drama, no suspense.

You also do not need to be a legal scholar, know anything about the U.S. Constitution, nor reference legislative history or precedents. That is not how to understand the Roberts Court.

It is a sign of the continued delusions of the lamestream media, legal analysts and commentators that they still indulge in debates over precedents, legislative history and the prior opinions of individual justices on the same matter to try to justify and predict how this Court will rule on King v. Burwell, the latest absurd case to reach this Court on appeal.

This Supreme Court is not really a court, but another branch dedicating itself to the Republican party’s agenda. It is to the fair, balanced and logical application of justice what Fox News is to news. Right-wing governments destroy institutions that might get in their way. And, certainly the Supreme Court, precedent and legislative histories are impediments.

Why did the Court intervene to take the case before the entire DC Circuit Court of Appeals heard the case?

Why did they await the elections before deciding to take the case?

Will the Chief Justice disappoint his right wing colleagues again?

The answers are simple. They intervened so that there was still a difference between the circuits, providing a little more ‘cover’, claiming a need to resolve that difference. In fact, the DC Court of Appeals would almost certainly have returned to precedent and sanity and harmonized with Virginia.

Had they made this decision during the elections, Democrats might have pointed out how much everyone was going to lose if they elected the Republicans. Why should a Court whose primary purpose is to enhance the Republican party risk it?

And, no, the Chief Justice is not going rogue again with his buddies. After all, one display of integrity is about all he can do in a lifetime on the bench.

This Court is unlike all other Supreme Courts in American history. With the exception of Justice Kennedy, the four other “conservatives” were appointed because they had specific training at the Federalist Society, and a specific agenda in mind before they ever joined the Court.

Remember George W. Bush (aka, “the smartest man Harriet Miers ever met”) defending his selection of Harriet Miers against a right-wing backlash by assuring them that he was certain she would never change her mind? Poor Harriet had not grown up in the Federalist Society, so she was not trusted. After all, an errant thought might enter her mind, and we cannot have that!

So, why look at precedent? This Court could care less. In Shelby v. Holder (the voting rights case), the Chief Justice claimed a precedent of “equal sovereignty” of the states, written nowhere in the Constitution [and, recall, these are supposed to be the strict constructionists and originalists who oppose, for example, the right to privacy because it is an "emanation"], and invented by him in a prior case. So, he quoted himself!

In the same case, Justice Thomas thought the entire law should be declared unconstitutional because it was an over-extension of federal power, ignoring the 15th Amendment that gives Congress the full power to legislate against discriminatory practices against voting on the basis of race. What part of “Congress shall have the power to enforce” does Justice Thomas not understand?

Legislative history? Really? In Shelby, Justice Scalia brushed aside thousands of pages of Congressional testimony and findings, and a nearly unanimous vote, with an unsubstantiated general statement that the declining votes against the legislation in the Senate over the years meant that that it was actually the perpetuation of racial entitlement. So now it is an “entitlement” to prevent a basic right from being taken away?!

What about facts? It mattered not one iota to them that the plaintiff itself, Shelby County, had itself been blocked from discriminatory practices in the past and thus, in a real courtroom, would have been deemed to have come to the bar with unclean hands.

What about practical consequences of their decisions? These are used or ignored depending on the impact on their pre-ordained decision. In Hobby Lobby v. Sebelius,
the very real likelihood that others could claim religious beliefs (since neither sincerity nor the truth of such beliefs can be questioned) to avoid obeying almost any regulation, or even argue that they could discriminate in hiring women who used certain contraceptives because they would be contributing by paying her salary was dismissed out of hand, whereas in National Federation of Independent Business v. Sebelius (the original Obamacare case), Justice Scalia worried aloud about the absurd possibility that, if the Affordable Care Act were upheld, the government could force people to buy broccoli as his excuse to deny millions health care.

Whoever is president has the right to nominate justices and there is nothing invidious abouta Republican president selecting nominees that reflect his views. But, once on the Court, there is an expectation of intellectual honesty, respect for precedent and deference to the majoritarian branches, often referred to as “judicial temperament”. The Roberts Court exhibits none of these.

It is, of course, quite true that the Warren Court formed a progressive majority. But, it was not pre-designed, it did not assemble, or even form, as a lock-step majority on every matter. They were independent thinkers, and almost all of them changed their perspectives. Chief Justice Warren himself was the former Republican Governor of California.

The Supreme Court will hand the country another non-judicial opinion dressed in a word salad of legalisms to achieve the aims of the Republican party.

Symposium: A welcome grant for a straightforward statutory case

Monday, November 10th, 2014

Jonathan Adler Guest

Posted Sun, November 9th, 2014 8:55 pm

Symposium: A welcome grant for a straightforward statutory case

Jonathan H. Adler is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.  He is a regular contributor to the Volokh Conspiracy and is credited (along with Michael Cannon) withoutlining the theory upon which the plaintiffs’ claims in King v. Burwell are based.

With Friday’s grant of certiorari in King v. Burwell, the Supreme Court has accepted another high-profile Affordable Care Act case. It is the third such case in four years, and is unlikely to be the last. Whatever the Court decides in King, ACA litigation will continue for years to come.

Most commentators were surprised the Supreme Court took this case. I did not predict it either, but the reasons for the Court’s cert. grant are readily understandable.  In the usual case, the Supreme Court will not grant certiorari in the absence of a circuit split or a standing judgment invalidating a federal law.  But King is not the usual case.

Under Rule 10, one of the reasons for granting certiorari is when a lower court “has decided an important question of federal law that has not been, but should be, settled by this Court.”  While King is a straightforward statutory interpretation case, it unquestionably concerns an “important question of federal law.” Resolution of this case could have a significant impact on the implementation of the ACA, particularly in the three dozen states that have not established their own exchanges. In these states, should plaintiffs prevail, tax credits and cost-sharing subsidies will not be available, the employer mandate will be inoperable (assuming the administration ever allows it to come into force), and enforcement of the individual mandate penalty will be limited.  No one disputes that this makes King an important case.  Indeed, the importance of the legal issue was one of the things highlighted by the federal government and commentators in urging the U.S. Court of Appeals for the D.C. Circuit to hear a companion case, Halbig v. Burwell, en banc.

Why didn’t the Court wait for the D.C. Circuit to decide Halbig en banc? Because King involves straightforward questions of statutory interpretation worthy of more timely resolution.  This litigation creates substantial uncertainty about the operation of the law and, should the plaintiffs’ claims be upheld, policymakers, insurance companies, and those who would otherwise be eligible for subsidies will need time to figure out how to respond.  This is one of the reasons all of the lower appellate courts to consider these claims have expedited their proceedings (at least up until now).  These courts recognized that there are good reasons to treat these cases as more urgent and time-sensitive than the typical case.

Further, while the D.C. Circuit’s decision to rehear Halbig en banc vacated the original panel’s judgment, the Court is aware that this is a question upon which courts are divided.  Two panels on two different circuits reached different conclusions, and even the panel which sided with the government noted the closeness of the issue and was not unanimous in its rationale.  The existence ofanother decision rejecting the government’s position and the existence of a fourth pending case in yet another circuit could have led Justices to believe this issue was one they would ultimately have to settle.  Combining the time-sensitive nature of the litigation with the reasonable likelihood this issue was destined for the Court eventually provides ample reason to take the case.

It is also possible that the grant of certiorari indicates at least four Justices are skeptical of the decision below.  After all, in the usual case the Court does not grant to affirm. (Again, however, this is not the usual case.)  Why might the Justices be skeptical of the decision below? Because the U.S. Court of Appeals for the Fourth Circuit was at pains to explain away the plain language of the statute.

To recap the question at issue: Section 1311 of the ACA calls upon states to establish health insurance exchanges, and Section 1321 requires the federal government to establish exchanges in states which fail to do so (or fail to enact other mandated reforms).  Section 1401 provides for tax credits for the purchase of qualifying health insurance plans in “exchanges established by the State under Section 1311.”  The challengers in this case argue this means what it says: that tax credits are only authorized in exchanges established by the states.  The government argues that the phrase “established by the State” does not mean that the exchange actually has to have been established by the state because other provisions establish some degree of equivalence between Section 1311 and Section 1321 exchanges and the plaintiffs’ interpretation would undermine the goal of expanding health insurance coverage.

Contrary to what many claim, this is not a case about a single phrase in a single, isolated provision in a gargantuan statute.  The law, read as a whole, with attention to each and every relevant provision, supports the plaintiffs’ case.  No one disputes that, as Justice Antonin Scalia wrote last Term inUtility Air Regulatory Group v. EPA that “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”  But we must also remember, as Justice Scalia wrote in that same majority opinion, that agencies may not “rewrite[e] unambiguous statutory terms” nor “revise clear statutory terms that turn out not to work in practice.”  Further, as Justice Elena Kagan wrote for the Court last Term in Michigan v. Bay Mills Indian Community, courts have “no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that . . . Congress ‘must have intended’ something” other than what the statute’s text actually says.

The problem with the government’s position is that it requires pretending as if the repeated phrase “established by the State” has no real meaning – as if it is mere surplusage of no relevance to the actual meaning and effect of the law’s provisions — even though it was added in multiple places within Section 1401 at multiple times; even though “State” is defined as the fifty states and the District of Columbia; even though there is language drawing equivalency between territorial exchanges and state exchanges, but no such language for federal exchanges; even though the statute contains no reference to tax credits in federal exchanges, and so on.

The government and its defenders say that no portion of the ACA can be read to deny the availability of tax credits to low-income individuals, yet the ACA indisputably imposes an income floor for tax credit eligibility that means the poorest of the poor get no help from the law in purchasing insurance. They argue that it is implausible Congress would have conditioned an important benefit (tax credits and cost-sharing subsidies) on state cooperation, even though Congress does this all the time, has done this before with health insurance, expressly considered doing this in other draft health care reform measures, and did this within other portions of the ACA.  They claim Congress would not impose guaranteed issue and community rating without providing subsidies for the purchase of insurance, yet the ACA did that in the child-only market. They claim Congress would never have left achievement of the Act’s goal of expanding health coverage vulnerable to state intransigence, yet it did so with Medicaid, just as other cooperative federalism programs enacted by Congress are vulnerable to state intransigence. And so on again. Everything they say Congress would never do, it has done, often within the ACA itself.

Of course the ACA’s supporters hoped tax credits would be available in all fifty states, just as they hoped the Medicaid expansion would be available in all fifty states.  In both cases, they expected states to cooperate. Time and again ACA proponents said states would create their own exchanges.  What no member of Congress ever said during deliberations over the ACA, however, is that there would be tax credits in federal exchanges. Despite years of looking, not a single contemporaneous statement making this simple claim has been found.  That Congress did not anticipate that states might refuse to create exchanges, and did not consider whether the law adequately addressed that potentiality, does not give the IRS or the courts the authority to correct the legislature’s handiwork.  Congress chose to enact what even its supporters recognized was a flawed bill, because there were not enough votes to craft an alternative and because, in their view, a flawed bill was better than no bill.  Most preferred the exchange provisions embodied in the House health care reform bill, but that was not what Congress enacted.

A victory for the plaintiffs would certainly prove disruptive in those states that have refused to establish their own exchanges. How disruptive, though, will depend on how policymakers respond.  University of Michigan law professor Nicholas Bagley has explored potential fixes that might be available should the plaintiffs prevail.  The ACA also contains a waiver provision in Section 1332, effective in 2017, that may provide a means for states to seek tax credits and subsidies without creating their own exchanges.  Finally, some Republicans have endorsed alternative health reform measures that would provide premium assistance for low-income individuals and expand insurance coverage. In other words, both sides may be exaggerating the practical impact of a victory for the plaintiffs in King.

Were this case not about the ACA, it would present an easy and straightforward case of statutory interpretation.  In 2011, when I first made the case that tax credits are only available in state-established exchanges, it was not particularly controversial.  National Federation of Independent Business v. Sebelius had not reached the Supreme Court, most states seemed to be on their way to create exchanges, and no one saw how the claim could be litigated.  Given all that has transpired since, the case has become a proxy battle over the ACA itself, and partisans have lined up based upon their views of the statute.  That should not obscure the simple fact that the law clearly says what it says, that it means what it says, and that if Congress made an error, it is up to Congress to fix it.


Posted in King v. BurwellAffordable Care Act ‘Exchange’ ChallengesFeaturedHealth CareMerits Cases


Wednesday, November 5th, 2014





Wednesday, November 5th, 2014


Supreme Court (NP)

6th District

Michelle M. Keller 85,129

Teresa L. Cunningham 60,553

21 of 21 counties reporting

Court of Appeals (NP)

2nd District/2nd Division

Kelly Thompson 96,420

Mark H. Flener 41,343

14 of 14 counties reporting

3rd District/1st Division

Debra Hembree Lambert 58,411

Michael O. Caperton 74,866

27 of 27 counties reporting

3rd District/2nd Division

James H. Lambert 81,571

Paul F. Henderson 30,105

20 of 26 counties reporting

4th District/2nd

Denise Guess Clayton 118,657

Stan Whetzel 45,302

1 of 1 counties reporting

6th District/1st

Allison Jones 88,971

Justin Sanders 57,970

20 of 21 counties reporting

7th District/2nd

Janet L. Stumbo 64,762

W. Kent Varney 32,985

19 of 22 counties reporting

Circuit Judge (NP)

14th District/2nd

Paul F. Isaacs 17,617

Ethyle Noel 6,807

3 of 3 counties reporting

15th District

R. Leslie Knight 4,988

John Brent Threlkeld 4,129

2 of 3 counties reporting

16th District/1st

Kathy Lape 21,995

James T. Redwine 15,586

1 of 1 counties reporting

23rd District

Michael Dean 4,692

Heather Combs 3,461

3 of 3 counties reporting

26th District

Kent Hendrickson 4,361

Henry S. Johnson 4,182

1 of 1 counties reporting

30th District/1st

Barry Willett 99,519

Stuart Pearlman 60,793

1 of 1 counties reporting

30th District/13th

Ann Bailey Smith 99,106

Sandy Berman 63,318

1 of 1 counties reporting

31st District/2nd

Thomas M. Smith 6,435

Ashley Tackett Laferty 6,363

1 of 1 counties reporting

32nd District/1st

George W. Davis III 9,158

Marc I. Rosen 4,093

1 of 1 counties reporting

33rd District

Alison C. Wells 4,925

Scott Blair 4,373

1 of 1 counties reporting

40th District

Steve D. Hurt 4,121

David L. Williams 3,497

2 of 3 counties reporting

54th District/1st

Rick Brueggemann 16,601

Marcia Thomas 12,599

2 of 2 counties reporting

District Judge (NP)

2nd District/2nd

Chris Hollowell 12,421

Craig F. Newbern Jr. 6,593

1 of 1 counties reporting

3rd District/2nd

Richard Boling 5,033

J. Foster Cotthoff 8,474

1 of 1 counties reporting

4th District/2nd

Karey Roy Deardorff 0

Bill Whitledge 0

0 of 0 counties reporting

7th District

Kenneth R. Williams Jr. 7,002

Nancy E. Calloway 2,279

2 of 2 counties reporting

14th District/2nd

Vanessa Mullins Dickson 15,000

Chad Wells 9,473

3 of 3 counties reporting

16th District/1st

Ann Ruttle 20,678

Christopher S. Nordloh 16,018

0 of 1 counties reporting

17th District/1st

Cameron J. Blau 9,767

Gregory T. Popovich 15,565

1 of 1 counties reporting

19th District

Frank H. McCartney 6,173

Steven Royse Zweigart 5,079

3 of 3 counties reporting

24th District/1st

Paul L. Pack 3,876

John T. Chafin 3,629

1 of 3 counties reporting

30th District/1st

Annette Karem 93,678

Nichole Taylor Compton 66,813

1 of 1 counties reporting

30th District/2nd

Josh P. Schneider 70,145

Amber B. Wolf 88,878

1 of 1 counties reporting

30th District/3rd

Sandra L. McLaughlin 92,313

Matthew K. Eckert 72,373

1 of 1 counties reporting

30th District/5th

Jennifer Leibson 91,144

Donald E. Armstrong Jr. 75,693

1 of 1 counties reporting

30th District/8th

David P. Bowles 82,743

Josephine Layne Buckner 77,477

1 of 1 counties reporting

30th District/11th

Gina Kay Calvert 85,020

Susan Jones 72,335

1 of 1 counties reporting

30th District/12th

Eric Haner 91,988

James Michael Green 70,698

0 of 1 counties reporting

30th District/13th

Anne Delahanty 98,891

Ann Schiavone Dyke 70,598

1 of 1 counties reporting

30th District/14th

Stephanie Pearce Burke 106,944

Andre L. Bergeron 56,379

1 of 1 counties reporting

30th District/16th

Katie King 111,177

Claudia Ann Smith 70,386

1 of 1 counties reporting

30th District/17th

Erica Lee Williams 88,797

Dana Michelle Cohen 72,586

1 of 1 counties reporting

37th District

Rupert Wilhoit 9,459

John Preston Thompson 3,286

3 of 3 counties reporting

41st District/1st

Monica Rice-Smith 5,572

Allen B. Roberts 7,839

3 of 3 counties reporting

53rd District/2nd

Donna Dutton 17,204

Emily Farrar-Crockett 6,319

3 of 3 counties reporting

60th District

Kristi Castillo 5,342

Stephen Howard Poindexter 2,297

2 of 2 counties reporting

Circuit Judge Family (NP)

5th District/2nd

Brandi Hagan Rogers 6,193

Ben Leonard 6,143

3 of 3 counties reporting

8th District/3rd

David Lanphear 15,330

Rebecca Adams Simpson 13,927

1 of 1 counties reporting

9th District/1st

Pamela Addington 13,148

Dawn Lonneman Blair 12,637

1 of 1 counties reporting

12th District/2nd

Timothy E. Feeley 14,788

Michael Pate 8,297

3 of 3 counties reporting

13th District/2nd

Jeff Moss 9,887

Jackie Horn 9,151

2 of 2 counties reporting

14th District/3rd

Lisa Hart Morgan 15,606

Tamra Gormley 11,778

3 of 3 counties reporting

16th District/2nd

Chris Mehling 18,343

Carl E. Knochelmann Jr. 17,378

1 of 1 counties reporting

16th District/5th

Lisa Osborne Bushelman 19,903

Stephanie A. Dietz 16,534

1 of 1 counties/precincts reporting

18th District/2nd

Heather Fryman 8,021

Sam W. Arnold III 3,264

4 of 4 counties reporting

22nd District/2nd

Traci H. Boyd 37,047

John Schrader 29,450

1 of 1 counties reporting

22nd District/6th

Kathy W. Stein 43,639

Jennifer McVay Martin 26,239

1 of 1 counties reporting

27th District/3rd

Stephen M. Jones 7,771

Marilyn Benge McGhee 7,191

0 of 2 counties reporting

28th District/3rd

Marcus L. Vanover 13,125

Bruce Wayne Singleton 7,889

2 of 3 counties reporting

30th District/1st

Angela Johnson 91,169

Lauren Adams Ogden 68,759

1 of 1 counties reporting

30th District/3rd

Deborah Deweese 116,955

Ellie Garcia Kerstetter 45,511

1 of 1 counties reporting

30th District/5th

Tara Hagerty 114,318

Stuart A. Scherer 45,416

1 of 1 counties/precincts reporting

30th District/6th

A. Christine Ward 111,236

Stephanie L. Morgan-White 53,737

1 of 1 counties reporting

30th District/7th

Denise Brown 100,506

Dennis Burke 65,546

1 of 1 counties reporting

30th District/8th

Deana “Dee” McDonald 111,674

Mark Hyatt Gaston Sr. 48,362

1 of 1 counties reporting

39th District/2nd

Larry Miller 5,500

Samuel Bruce Herald 5,355

3 of 3 counties reporting

53rd District/2nd

Marie Hellard 15,963

John David Myles 9,335

3 of 3 counties reporting

57th District/2nd

Jennifer Upchurch Edwards 3,680

Matthew B. DeHart 2,019

1 of 2 counties reporting
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