Federal district court rules against Obamacare subsidies on federal exchange

A federal district court in Oklahoma has ruled that the Obamacare statute means what it says: subsidies may not granted to people obtaining their health insurance through the federal exchange. In Pruitt v. Burwell, Judge Ronald White of the Eastern District of Oklahoma followed the reasoning of the panel in Halbig v. Sebelius, a ruling that the full D.C. Circuit, having been packed by the Democrats, recently vacated.

The Oklahoma district court decision does not, of course, create a split in the Circuits. No federal court of appeals ruling exists that finds subsidies on the federal exchange illegal. It’s possible that the Supreme Court will take up this issue even absent a circuit split. If not, an appeal of the Oklahoma case might create a split.

If the Supreme Court does take up the issue, it may be tempted to engage in gymnastics to uphold Obamacare, as some say it did with the issue of the individual mandate. But Judge White’s Pruitt opinion argues persuasively against such judicial maneuvering:

The court is aware that the stakes are higher in the case at bar than they might be in another case. The issue of consequences has been touched upon in the previous decisions discussed. Speaking of its decision to vacate the IRS Rule, the majority in Halbig stated “[w]e reach this conclusion, frankly, with reluctance.”

Other judges in similar litigation have cast the plaintiffs’ argument in apocalyptic language. The first sentence of Judge Edwards’ dissent in Halbig is as follows: “This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act (‘ACA’).” Concurring in King, Judge Davis states that “[a]ppellants’ approach would effectively destroy the statute . . . .” Further, “[w]hat [appellants] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance. . . ..”

Of course, a proper legal decision is not a matter of the court “helping” one side or the other. A lawsuit challenging a federal regulation is a commonplace occurrence in this country, not an affront to judicial dignity. A higher-profile case results in greater scrutiny of the decision, which is understandable and appropriate. . . .

This is a case of statutory interpretation. “The text is what it is, no matter which side benefits.” Such a case (even if affirmed on the inevitable appeal) does not “gut” or “destroy” anything. On the contrary, the court is upholding the Act as written.

Congress is free to amend the ACA to provide for tax credits in both state and federal exchanges, if that is the legislative will. As the Act presently stands, “vague notions of a statute’s ‘basic purpose’ are nonetheless inadequate to overcome the words of its text regarding the specific issue under consideration.”

It is a “core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” “But in the last analysis, these always-fascinating policy discussions are beside the point. The role of this Court is to apply the statute as it is written – even if we think some other approach might ‘accor[d] with good policy.’” (Emphasis added)

In short, just do your job.

Secret Service Follies

Secret Service Director Julia Pierson testified today before the House Oversight and Government Reform Committee about the security breach that allowed an intruder to enter the White House. The episode was a fiasco on multiple levels, and Ms. Pierson endured a sustained grilling that was somewhat bipartisan. One fact that has emerged is that the intruder, Omar Gonzalez, got much deeper into the White House than the Secret Service originally reported. This map, from the Washington Post, shows where he was finally apprehended. Click to enlarge:


Moreover, the agent who finally tackled Gonzalez was off duty and was leaving the White House. If he hadn’t happened to be there, on his way out, there is no telling what would have happened.

Much could be said about today’s hearing, but I want to focus on just one element, that is, the Democrats’ reflexive desire to blame everything that goes wrong on the sequester. Eleanor Holmes Norton played the sequester card today:

Norton’s suggestion that this incident had anything to do with the Secret Service being “understaffed” is ludicrous. When Gonzales climbed the fence and ran across the lawn, the place was swarming with agents and dogs, but nothing worked as intended. The dogs weren’t released for fear they would attack the agents who were chasing Gonzalez, something that apparently had not previously occurred to the Service’s guard detail. An alarm should have sounded to warn the agent at the front door to lock it, but it reportedly had been turned down or off at the request of White House ushers. The agent at the front door–I believe it was a woman–was “overpowered,” and apparently couldn’t slow Gonzalez down enough for his pursuers to catch up.

After Pierson went along with Norton’s suggestion that the sequester had caused the Service to be understaffed, Congressman Ron DeSantis followed up. He asked, How many Secret Service agents came along with you to the hearing today? Twelve, she answered. Which would seem to be more than ample staffing, even by government bureaucracy standards.

Invasion of the Body Politic Snatchers

Forget the pod people of Invasion of the Body Snatchers: it seems the plastic people have taken over California government.  Think of it as Invasion of the Body Politic Snatchers.  Today Gov. Jerry Brown, who never found a goofy environmental idea he didn’t like, signed the bill to outlaw “single-use” plastic bags in California.  Which prompts the following 45-second video rant from me about how it is going to reduce recycling (at least in my household):

Which put me in the frame of mind to recall this Audi ad about the “green police” from the 2011 Super Bowl (hat tip: CR):

Now if you think the idea of the “green police” is far-fetched, check out this story out of Seattle last week:

Seattle Fines copy

Seattle Fines 2 copy

For more on why plastic bag bans are stupid (including environmentally stupid), see my old writing partner Ken Green’s study of the issue from two years ago.

P.S. By the way, isn’t having garbage workers inspecting your trash can and reporting you a potential 4th Amendment violation?  Isn’t there an “expectation of privacy” for your trash?  Where is the Seattle chapter of the ACLU on this?  I’ll bet they show up if a garbage worker finds a gun or drug paraphernalia.

Where The Gipper and Chesterton Meet

I’m in the throes of doing a close analysis of Reagan’s famous 1964 “Time for Choosing” speech for a lecture I’ll be giving next month on the 50th anniversary.  I rather like this line:

“We have so many people who can’t see a fat man standing beside a thin one without coming to the conclusion the fat man got that way by taking advantage of the thin one.”

Reminds me of an exchange between G.K. Chesterton (a stout man) and George Bernard Shaw (thin as a rail):

Chesterton: “My God, man, from the looks of you there’s a famine in the land.”

Shaw: “And from the looks of you, you caused it.”

New York Times exposes Obama’s shameless ISIS blame-shifting

Peter Baker and Eric Schmitt of the New York Times destroy President Obama’s attempt to shift blame to the intelligence community for his lack of focus on ISIS:

By late last year, classified American intelligence reports painted an increasingly ominous picture of a growing threat from Sunni extremists in Syria, according to senior intelligence and military officials. Just as worrisome, they said, were reports of deteriorating readiness and morale among troops next door in Iraq.

But the reports, they said, generated little attention in a White House consumed with multiple brush fires and reluctant to be drawn back into Iraq. “Some of us were pushing the reporting, but the White House just didn’t pay attention to it,” said a senior American intelligence official. “They were preoccupied with other crises,” the official added. “This just wasn’t a big priority.”

What “crises” were diverting the White House’s attention late last year from the rise of terrorist force more dangerous than al Qaeda? The botched Obamacare roll-out?

It may be true that the intelligence community failed to predict the precise speed of ISIS’s blitz through Iraq. But, as Baker and Schmitt affirm, the picture it painted for Obama was an “ominous” one. Certainly, that picture was inconsistent with Obama’s claim that ISIS is al Qaeda’s “jayvee.”

Obama offered this criminally glib characterization in response to a question by David Remnick that specifically mentioned ISIS’s taking of Fallujah. Obama was not concerned about ISIS’s success in Fallujah, writing it off as the product of that city’s traditional sectarianism.

But that’s not what our intelligence services were telling him:

On New Year’s Day, convoys of up to 100 trucks flying the black flag of Al Qaeda and armed with mounted heavy machine guns and antiaircraft guns stormed into Falluja and Ramadi as they sought to establish an Islamic caliphate stretching across national borders. Their victories sent a chill through the American military, which had fought some of its bloodiest battles in that part of Iraq. . . .

And yet American officials said there was no serious talk of intervening directly at the time. Since Falluja and Ramadi had long been hotbeds of Sunni extremist sentiment, American officials assumed the Islamic State could be checked there and eventually rolled back.

Intelligence agencies warned against such an assumption.

The facts, then, are clear. Our intelligence agencies warned Obama not to assume that ISIS could be halted in Fallujah and Ramadi. Obama not only ignored the warning; he ridiculed it, as his remarks to Remnick make clear.

And now, he is blaming his failure to act on false claims that he wasn’t sufficiently warned.

America has had its share of dishonest presidents. But I don’t think we’ve ever had one as shameless as Obama.

Are Democrats Poised for a Senate Comeback?

Republicans are optimistic about the Senate these days, on account of recent polls that show their candidates pulling ahead, or pulling even, in a number of battleground states. Oddsmakers are now saying there is a strong probability the GOP will re-take the Senate in November.

However, there is a catch: as usual, the Democrats’ fundraising this cycle has vastly outpaced the Republicans’. And the Democrats are focusing their resources where it counts, on the Senate. Echelon Insights, a reputable outfit headed by Kristen Anderson and Patrick Ruffini, has been tracking television advertising buys. This is how the reserved air time shapes up between now and November. Click to enlarge:


Republicans are competitive except with regard to Senate races, where Democrats have reserved almost twice the air time as GOP candidates. Will the Dems’ advertising barrage tilt close races in their favor? Only time will tell. Some think that TV advertising is overrated, others say voters reach a saturation point and last-minute ads are ineffective. Let’s hope that is correct. In any event, if you live in a state with a competitive Senate race and if you watch sports between now and November–and who doesn’t, with the baseball postseason and the NFL in full swing?–brace yourself. You are about to be inundated with Democratic Party ads.

Where is liberalism going?

This past week the Heritage Foundation convened a panel of conservative intellectuals to discuss the future of liberalism in America. I became aware of the Heritage program through Andrew Evans’s Free Beacon article covering it, “Liberalism in America.” The Heritage Foundation promoted the event with this invitation:

Twenty-five years ago, marriage meant what it had always meant, Madonna was considered risqué, and liberals worried about mass immigration, threats to religious liberty and the vulgarity of pop music. The times, they have a-changed. And they will continue to change as the Left presses on.

Where will liberalism be 25 years from now? What new causes will it champion? Will it have exhausted itself or will it continue to grow bolder in its demands? Can conservatives today in any way try to preempt the future agenda of liberalism?

Join us as our three panelists discuss the main currents of modern liberalism and try to anticipate where the Left is going.

Moderated by Federalist publisher Ben Domenech, the panel included Heritage’s David Azerrad, the Claremont Institute’s Bill Voegeli and National Review’s Kevin Williamson. The program was excellent. Our own Paul Mirengoff attended and asked a good question in the question-and-answer part of the program. Williamson’s presentation (highlighted by Evans) in particular struck a chord that is consonant with themes we have pursued this year. The video is below. I think that many readers will find it of interest.