The Supreme Court of the United States has once again saved Obamacare, this time on the validity of giving Obamacare tax subsidies to people who live in states that have not established the insurance exchanges; the law requires a state established exchange as a prerequisite to getting the tax subsidy.
No matter, according to the majority. A state is not really a state or something. The words don't matter. Why look at the actual language of the statute when we can look to policy goals and context? Up is down and down is up: the majority found Congress' statutory language ambiguous and yet divined Congressional intent as clear. Logically, the Court cannot have it both ways.
Chief Justice Roberts once again joined the left, this time accompanied by Justice Anthony Kennedy, to uphold the vote 6-3.
This is a shameful moment in the history of the Court. This is a true erosion in the rule of law in this country, The Court disregarded clear language. "Established by a state" is not an obscure term of art. that requires nuanced legal reasoning. Any fifth grader could read the phrase and understand that the federal government is not a "state."
A few choice morsels from Justice Scalia's dissent:
“The Court holds that
when the Patient Protection and Affordable Care Act says ‘Exchange established
by the State’ it means ‘Exchange established by the State or the Federal
Government.’ That is of course quite absurd.
”“You would think the answer would be obvious—so obvious
there would hardly be a need for the Supreme Court to hear a case about it.
. . . Words no longer have meaning if an Exchange that is not
established by a State is “established by the State
.”It is not our place
to judge the quality of the care and deliberation that went into this or any
other law. . . . Much less is it our place to make everything come
out right when Congress does not do its job properly. It is up to Congress to
design its laws with care, and it is up to the people to hold them to account
if they fail to carry out that responsibility
Justice Scalia is right in dissent. Having now rewritten the statute to save it -- twice -- the name should be changed from Obamacare to SCOTUScare.
Here's my Courier-Journal column on why I think Alexander Hamilton should remain on the ten dollar bill. With thanks to the C-J for giving me permission to reprint:
Poor Alexander Hamilton has become the Rodney Dangerfield of paper money: he "don't get no respect."
Efforts are afoot to replace Hamilton on the ten-dollar bill. Harriet Tubman, the escaped slave turned abolitionist, has been mentioned as a replacement and appears to be the leading contender.
For the record, Harriet Tubman rocks. Not only did she advance the cause of abolition and women's suffrage, but she also was a Republican and embraced her second amendment right to carry a gun as a spy for the Union Army. Tubman is worthy of honor.
It does not follow, however, that, Alexander Hamilton should be cast aside to make way for Harriet Tubman. This is a false conflict — not an "either or" situation.
It's true that Hamilton is not as well known as those founding fathers who went on to become president. That's a pity, because he was a fascinating man — and not just because Vice President Aaron Burr killed him in a duel. Perhaps the new Broadway musical Hamilton will boost his name ID.
As the first Secretary of the Treasury, Hamilton established the foundation of our nation's economy and monetary system, which is why he, of all the founders, should be commemorated on actual currency. He is, after all, the American who established the U.S. Mint.
Hamilton was one of three authors of the Federalist Papers; he wrote 51 of the 85 essays. Hamilton's writings were instrumental in convincing Americans to adopt the new Constitution. Hamilton was an early abolitionist and a founder of the New York Manumission Society, which advocated ending slavery in the 1790s, many years before that cause became widespread.
Hamilton's accomplishments are all the more remarkable given the adversity he overcame. Hamilton was born illegitimate, back when the term "bastard" was a real stigma. He immigrated to this country from the Caribbean and was orphaned at a young age. Immigrants and those who are born out of wedlock should therefore celebrate Hamilton as proof that this is a country of second chances, where one can go on to greatness despite the most humble and shameful of beginnings.
Before Hamilton graced the ten-dollar bill, that honor belonged to Andrew Jackson (who is now on the twenty-dollar bill). Some would say that Jackson has been on two bills too many. Democrats celebrate Jackson as the founder of their party. But Jackson's legacy is a mixed bag, particularly with respect to his treatment of Native Americans. Those who take umbrage at the name of the Washington Redskins overlook the fact that every time they pay with a $20, they are honoring the man responsible for the Trail of Tears. To the extent that we need to banish dead white men from currency to make room for Tubman, Jackson should be first in line.
I wonder how Tubman would feel about displacing Hamilton. It seems so impolite, like forcing someone to move from a general admission seat they already occupy.
Why not bring back the thousand-dollar bill and put Tubman on that? Higher denominations are disfavored and therefore not circulated, supposedly because they make crime and money laundering easier. It is hard to see, however, how forcing a drug dealer to carry ten hundreds rather than one thousand-dollar bill reduces crime. Given inflation, a thousand dollars isn't really that large a bill.
One of the reasons given for tossing Hamilton off the ten-dollar bill is that bill it is slated to be redone. That's just the Treasury Department deferring to a self-imposed schedule. There is no need for a schedule to revise currency. And if such schedule leads to bad decisions — such as scrapping Hamilton — then that schedule itself should be revised.
The Secretary of the Treasury, Jack Lew, is the D.C. bureaucrat who wants to replace Hamilton. Lew needs to reflect on the history of the founder of his department.
Fortunately, there are people outside of Washington, D.C. who have more respect for Lew's predecessor. The Alexander Hamilton History Society, founded and based in Louisville, has created an online petition to retain their namesake on the currency. The Society meets every third Saturday at the St. Matthews's branch of the Louisville Free Public Library to hear lectures regarding Hamilton and other founding fathers. Hamilton supporters may sign the petition at the AHHSKY website: http://ahhsky.wix.com/ahhs-ky
As the society's website cautions, quoting President Calvin Coolidge regarding Hamilton: "When America ceases to remember his greatness, America will no longer be great."
Congressman John Yarmuth has been telling people for some time that he would run again. Still, I am a little surprised. Yarumuth has to be increasingly frustrated as the House has become increasingly Republican. He has more seniority but less influence.
As a practical matter, unless JCPS does something dramatic to turn around public schools in Jefferson County, those families who are Republican( or independent but lean conservative) will continue to make their homes in Oldham County.
As a result, I see little point in Republicans even fielding a candidate to challenge Yarmuth. The voter registration gap is insurmountable as things now stand. The presence of a Republican on the ballot just forces Yarumuth to gear up his GOTV operation, which hurts other Republicans (say, in Metro Council races) who might otherwise be competitive.
The reality is that we are stuck with Yarmuth for another term.
I hear that Jack Conway is getting some training on how to become a better candidate. Presumably this includes public speaking and something along the Dale Carnegie course of How to Make Friends and Influence People.
Conway is not much of a speaker. He's tried different personas. There was pugilistic Jack Conway at Fancy Farm, boasting that he's "one tough son of a b***h." Then there was sensitive Jack Conway, weeping about his decision not to appeal the gay marriage case.
His hair, along the way, has gone through more iterations of highlights than the Breck Girl.
So what will a new and improved Conway look and sound like? Will the consultants have settled upon one hair color?
Is it possible to teach charisma? I am doubtful.
Conway said on Derby Day that he wanted to run against Matt Bevin. Conway got his wish, and may soon learn the lesson of be careful what you wish for.
Regardless of how one feels about Bevin, he is a very talented speaker. He doesn't need to take charisma classes. Stylistically, the comparison will not be flattering to Conway.
Given Gov. Steve Beshear's executive order raising the minimum wage for state employees, this is a good time to reprint myCourier-Journal column on why raising the minimum wage hurts those it is supposed to help.
With thanks to the C-J for permission to reprint:
Bill Clinton, angling to become First Dude, is running around the country urging an increase of the federal minimum wage, which now stands at $7.25 an hour. This is Slick Willie at his most cynical.
As president, Clinton opposed the late Sen. Ted Kennedy's plan to index the minimum wage to the cost of living, to go up automatically. Instead, Clinton chose an increase, without indexing. Reviewing documents recently released by the Clinton Presidential Library, the Huffington Post concluded that central to the Clinton administration's rejection of Kennedy's indexing proposal was this: "[S]ince the minimum wage would automatically rise each year, it would take away a good political issue for those who believe the minimum wage is an important tool to help low-income families."
That is, Clinton chose to throw a little something to poor people to win votes, but not permanently — so that Democrats could repeat the same manipulation whenever necessary to survive an election.
Republicans could extinguish the issue forever by agreeing to index the minimum wage. That would be a mistake, however, because the minimum wage is bad economic policy that actually hurts those it purports to help.
No politician can outlaw the law of supply and demand. When the government forces a private employer to pay workers more, that employer will either pass the cost along to consumers in higher prices, or it will use fewer workers, plus improved technology where possible, to do the same work. That means layoffs, reduced hours and fewer jobs for unskilled workers.
To be sure, those lucky enough to still have a job will make more with an increase, but for those who are laid off or unable to find an entry level job, the increase will be cold comfort: Their income will be zero. Democrats overlook that there is no right in this country to a job. The government cannot outlaw unemployment — it cannot order private employers to hire. By raising the minimum wage, Democrats would price out of the labor market the least productive, most unskilled. Delaying that critical first job for these citizens makes it that much harder to escape poverty.
The nonpartisan Congressional Budget Office in February released a study of the Obama administration's call to increase the minimum wage to $10.10. The CBO projected that Obama's proposal would eliminate 500,000 jobs and perhaps as many as 1 million jobs.
Consider, moreover, who would get cut. Of the half-million jobs that the CBO projects would disappear if the Obama increase is enacted, two-thirds belong to women. The layoffs and lost opportunity for work that a minimum wage hike would cause therefore would hit women disproportionately hard. Minority youths — who already have nearly double the unemployment rates of white youths — likewise would suffer disproportionately. Indeed, the unintended consequence of Democrats raising the minimum wage produces outcomes that — if caused by Republicans — would be slammed as sexist and racist.
Increasing the minimum wage distracts from the more serious issue of how to improve workers' skills so that entry level jobs are the first step in long, productive careers, and not a purgatory where the unskilled languish until the next time Democrats decide to give them a raise with other people's money.
Workers whose productivity exceeds that of the minimum wage will earn more than the minimum wage. So instead of hiking the minimum wage, the better course would be to ensure that every American who wants a decent education can get one, regardless of neighborhood or income. That will only occur when poor Americans have access through vouchers and charter schools to alternatives to those schools that have served them so poorly to date.
The minimum wage is also a liberty issue. The minimum wage forbids workers from accepting, and employers from offering, less than whatever wage the government has decreed. If private employers got together and colluded about setting a wage, it would be an antitrust violation. Yet when the government does it, Democrats call it fairness.
Our federal system generally permits states to raise the minimum wage higher than the federal minimum. That's why Moveon.org is running a "sign the petition" drive to increase the minimum wage in Kentucky.
Progressive bastion SeaTac, Wash., recently increased its minimum wages to $15 an hour. Look for higher prices and cut services at Seattle's airport. Here in Louisville, Jefferson County Attorney Mike O'Connell informed the Metro Council that it may legally raise the minimum wage; it is not — at this point — pre-empted by state law. It might be legal, but it is still a mistake. Raising Louisville's minimum wage will send jobs to surrounding counties. It will increase prices for those too poor to have transportation for bargain shopping.
Instead of "feeling our pain," Bill Clinton and those "progressives" who revere him should stop inflicting pain by recycling failed policies, like the minimum wage, that do real damage.
Gov. Steve Beshear has raised the minimum wage of state employees, including those who work for state contractors, by executive order.
The new wage will be $10.10 per hour. "Tipped" employees will also get a raise, which leads to the question of why the Commonwealth has "tipped" employees on its payroll to begin with.
All of this will cost Kentucky $1.58 million. Because, don't you know, Kentucky is just awash in excess money, so Beshear decided to spread the wealth around.
Beshear was frustrated that he could not get the Kentucky legislature to raise the minimum wage, so he did it by executive order. (Remind you of anyone?) That means the next governor can undo the executive order if he so chooses.
I've written on my opposition to raising the minimum wage previously in the Courier-Journal.
Senate Majority Leader Mitch McConnell was the only Republican (or at least the only nationally-known Republican) to attend Beau Biden's funeral yesterday in Delaware.
Also attending from Kentucky: Democrats Jack Conway and Jerry Lundergan.
I am proud of McConnell for that gracious act of compassion he demonstrated by going to the funeral. He and Vice President Joe Biden served in the Senate together for more than two decades; they are friends and colleagues, notwithstanding that they sat on opposite sides of the aisle. It was therefore entirely appropriate for McConnell to pay his respects to the Vice President's late son.
What I do not understand, however, is why McConnell was the only Republican present. The U.S. Senate is a small club. Many Republicans served with Biden for years. I wouldn't expect the entire Republican caucus to attend. But no one else, other than McConnell? That's shameful.
This was not about policy or politics. This was about a father losing a son, made sadder still by the fact that he has lost one before. Moreover, because the Vice President presides over the Senate, he still has a connection to that institution. He is still a colleague.
My suspicion is that Republicans wanted to avoid the risk of being photographed with any of the prominent Democrats who attended: the Obamas, the Kennedys. And then such photo surfacing in a primary. Sure, there are politicians cynical and mean-spirited enough to take advantage of such a photograph, and to the extent they try that, voters should punish them resoundingly.
McConnell's thoughtfulness to Biden explains why he and Biden have been able to get real work done on behalf of the country when the president was intransigent. McConnell well knows that at the end of the day, successful governance requires functioning relationships.
Here's myCourier-Journal column on why Republicans should support making birth control pills available.
Thanks to the C-J for giving me permission to reprint it here:
A group of Senate Republicans has introduced legislation on something all Republicans should support: a step toward making birth control pills available over the counter (OTC). This is good policy and good politics. It puts to rest the fake War on Women narrative that Republicans have a secret plan to bring back chastity belts.
Colorado Republican Sen. Corey Gardner beat Democrat Sen. Mark "Uterus" Udall last year partly due to Gardner's pledge to work to make birth control pills available OTC. Props to Gardner for keeping his word, and to Republican Senators Kelly Ayotte, Joni Ernst, Richard Burr, Ron Johnson and Thom Tillis for co-sponsoring.
Birth control pills have been around for 50 years. They are safe and effective. To be sure, oral contraceptives carry certain risks, such as the occurrence of a blood clot. But those risks are very rare — less common than blood clots during or after pregnancy.
Even aspirin poses risks, yet it is available OTC. So is "Plan B," the emergency contraceptive that is taken after sex. Chemically, it is a very strong version of the same hormones commonly found in birth control pills. It makes no sense for Plan B, but not birth control pills, to be sold over the counter.
Many doctors agree. The American College of Obstetrics and Gynecologists (ACOG) opined in 2012 that: "Weighing the risks versus the benefits based on currently available data [oral contraceptives] should be available over the counter."
Although the ACOG recommends that women continue to get routine screenings for cervical cancer and sexually transmitted diseases, it made clear that a pelvic exam is not necessary and should not be required to get oral contraceptives. Further, it found that women can competently and safely evaluate their own risk factors by using a checklist. (Imagine: treating women like grown ups.) Some women will prefer to discuss family planning with a doctor, and that's fine. Let it be their choice, not a requirement,
In addition to its safety, the pill works, but only if it's used. But women can't take what they can't get with reasonable convenience.
The ACOG noted that unintended pregnancy "remains a major public health issue" in this country; OTC birth control pills would "improve access and use, and possibly decrease unintended pregnancy rates."
The Center for Disease Control estimates that 50 percent of all pregnancies are unplanned. Studies suggest that OTC birth control pills could cut that number in half, which has huge public health implications: For a young girl trying to finish high school, the ability to buy the pill OTC could allow her to escape poverty.
Every abortion stems from an unwanted pregnancy. Pro-life Republicans therefore should support making birth control pills accessible. Those who have moral objections to contraception should consider that the prescriptive status of the pill has no bearing on the morality of using it.
Access to birth control pills is particularly important for states like Kentucky with large rural areas and a shortage of medical providers. Finding and getting in to see the doctor is difficult and time-consuming — even if the doctor's visit is "free" under Obamacare. Forcing women to see their doctor for a birth control pill prescription wastes the time of patient and doctor and makes it harder for everyone else to get seen.
It's important to note that the issue of paying for birth control pills is wholly separate from the issue of whether it is medically necessary to require a prescription. Insurance companies could still cover the cost.
Regardless of who pays, making the pill available OTC will drive the price down. There are approximately 100 versions of the pill. Making contraceptives available over the counter should cause prices to drop and products to improve. The allergy medicine Zyrtec, for example, cost $90 a month by prescription 20 years ago. Now a year's supply of the generic OTC costs $30. Deregulation and competition save consumers money.
The U.S is way behind the rest of the world on this issue. Most countries allow women to buy oral contraceptives without prescription. That makes the U.S. less free in this regard than, for example, Kuwait. How bizarre that it's easier to buy the pill in Kuwait than in America.
Under current federal law, the pill cannot become available OTC until the pharmaceutical manufacturers so request. Gardner's legislation encourages them to apply by waiving the filing fee and providing priority FDA review. Big Pharma needs to be encouraged, strongly, to apply now. After a half century of use, there is no need for expensive, time-consuming studies. If pharmaceutical companies don't apply, Congress should revise the relevant statutes to allow consumers to make the request.
Republicans don't want to outlaw birth control. To the contrary, let's make it cheaper and easier for women to obtain.
Fascinating how two people can attend the same event and perceive it so differently. I blogged previously about one friend's take on the Lincoln Day "Unity" Dinner. (Scroll down.) Today, I heard a different take from another friend.
This Republican described the crowd's reaction as "polite." "People clapped and stood at the appropriate times." He thought the Bevin video on McConnell was funny but too late. A year too late. At this point, he viewed it as useless.
The crowd struck him as subdued for a state-wide Lincoln Day dinner in an election year. He said many privately expressed angst about Bevin's nomination.
For the down-ticket races, however, he sensed considerable enthusiasm. My friend speculated that Alison Ball and Whitney Westerfield will be the beneficiaries of money and volunteer time that normally would be directed to the top of the ticket. His sense was that although everyone or nearly everyone who attended the dinner will vote for Bevin in November, for many Republicans, that will not extend to giving Bevin time, talent and treasure.
