Tuesday, July 22, 2014

The IRS's Case In Halbig v. Sebelius Is Crumbling, With A Little Help From Its Friends (UPDATED)

The IRS's Case In Halbig v. Sebelius Is Crumbling, With A Little Help From Its Friends (UPDATED)


The IRS's Case In Halbig v. Sebelius Is Crumbling, With A Little Help From Its Friends (UPDATED)

Tomorrow morning, the U.S. Court of Appeals for the D.C. Circuit will hear oral arguments in Halbig v. Sebelius, a case that challenges the IRS’s ability to implement ObamaCare’s health insurance subsidies and mandate penalties in the 34 states with federally established health “exchanges.” Though the IRS prevailed at the district-court level, its allies have been inadvertently undermining the agency’s case ever since.
First, a little background. The Patient Protection and Affordable Care Act of 2010 clearly, repeatedly, and consistently says that the above-mentioned subsidies and penalties are authorized only “through an Exchange established by the State.” The IRS breezed right past that explicit, recurring, and uncontradicted indicator of congressional intent, however, when the agency announced it would implement those subsidies and penalties in states that did not establish an Exchange and the federal government established one by default. The IRS is thus taxing the Halbig plaintiffs, who reside in states that did not establish Exchanges, without congressional authorization. The plaintiffs don’t like that.
The IRS won at the district-court level thanks to an opinion in which Judge Paul Friedman concluded that Exchanges established by the federal government are “established by the State.” That’s not quite as absurd as it may seem at first. Congress could have deemed federally established Exchanges to be “established by the State” in which they operate, if that had been Congress’ intent. Indeed, that’s what Congress did with respect to Exchanges established by U.S. territories. But Congress did not do so for federal Exchanges. Thus we are firm ground describing Friedman’s ruling as absurd. Congress intentionally offered subsidies only in states that established Exchanges for the same reason it makes numerous categories of federal spending and tax benefits conditional on state action: to induce states to carry out federal priorities.
Ever since the IRS’s victory, however, its friends have been inadvertently undermining the agency’s case.

For one, the Obama administration says it is implausible that Congress meant “established the State” literally. It “makes no sense,” the government asserts, to think that Congress even contemplated allowing federal Exchanges to operate without subsidies. Yale law professor Abbe Gluck writes, “it would be nonsensical to deprive citizens in federal-exchange states of the subsidies.”
Except…several of the government’s friends — including professor Gluck — have now conceded it does make sense, because Congress was actively considering that very idea. Separate amicus briefs by the AARP and the seven congressional Democratic leaders most responsible for the PPACA, as well as a recent blog post by Gluck all acknowledge that allowing federal Exchanges to operate without subsidies was a live issue during the debate that produced the PPACA. (Fun facts: two of those seven congressional Democrats sponsored the idea. And all seven ultimately voted for it in the PPACA, though they now disavow all knowledge. They were for it, before they were against it. Another group of key congressional Democrats complained back in 2010 that the PPACA’s Exchange subsidies, like the State Children’s Health Insurance Program, were conditional and that states could block them. They then voted for the PPACA, yet now claim they never intended subsidies to be conditional. They were against it, before they were for it, before they were against it.)
Gluck further concedes that Congress contemplated withholding those subsidies specifically if states failed to establish Exchanges when she acknowledges the Health, Education, Labor, and Pensions (HELP) Committee’s health care bill would have withheld subsidies from such states for four years.
The government has also argued that Congress deemed federally established Exchanges to be “established by the State,” despite the statute containing no explicit or implicit language to that effect. Gluck undermines this claim as well. In her discussion of the HELP Bill, she concedes that Congress knew how to deem a state to be an “establishing state” even if the state did not establish an Exchange — something the PPACA did not do. We already know, from the PPACA provisions concerning U.S. territories, that Congress knew how to treat non-states as though they were states. Gluck’s reaffirmation is appreciated nonetheless. Unfortunately, she goes on to assert that courts should interpret the PPACA as if it contains such deeming language for federal Exchanges, simply because a prior bill does.
The more the IRS’s defenders write about this case, the more they will undermine the agency’s position in court, because its position is untenable.
Odds and ends: 
Gluck misattributes a line from my brief with Jonathan Adler to the appellants’ brief, and therefore does not provide readers a link to the source material. Here it is.
My coauthor Jonathan Adler offers his critique of Judge Friedman’s opinion at the Washington Post‘s Volokh Conspiracy blog.
Click here for critiques of the pro-IRS amicus briefs in Halbig, and here for a rundown of the pro-plaintiff briefs. Visit here for a complete list of reference materials on Halbig and related cases.
Update: Gluck offers “a quick response.” Of note, she again concedes that the HELP bill allowed federal Exchanges to operate without subsidies. Yet she somehow still claims, “Nothing in the HELP bill contemplates a federally operated exchange with no subsidies” and “Congress never contemplated a federal exchange with no subsidies.” I refer Gluck to her own post: “[a] limitation on the subsidies, for federal [Exchanges], was if the state refused to apply the employer mandate to its own state government employees.” Next, I noted above that Gluck incorrectly attributed to the Halbig plaintiffs’ brief something that Jonathan Adler and I wrote in our amicus brief. Gluck’s response? “Cannon also nits that I did not provide a link to his amicus brief (which I did not do because my post referred to his arguments on the blogs). Glad to provide it here.” Hmm. The problem wasn’t so much that Gluck forgot to include a link to the source of the quote; it was more that she misidentified the authors. Now she claims she was quoting my arguments on “the blogs” rather than our brief, even though her post prefaces the quote with “from the brief” (by which she meant the plaintiffs’ brief, not ours). My head hurts. The quote, which I wrote myself, sadly does not appear in any blog but Gluck’s, where it still lacks proper attribution and a link. Those would be appreciated.

Post Your Comment

Please or sign up to comment.
Forbes writers have the ability to call out member comments they find particularly interesting. Called-out comments are highlighted across the Forbes network. You'll be notified if your comment is called out.

Thursday, July 10, 2014

Obama to Fundraise in Texas Today, Won't Visit Child Crisis on the Border - Katie Pavlich

Obama to Fundraise in Texas Today, Won't Visit Child Crisis on the Border - Katie Pavlich


Ex-border agents: Immigrant flood ‘orchestrated’

Ex-border agents: Immigrant flood ‘orchestrated’


  • Text smaller
  • Text bigger

An organization of former Border Patrol agents Wednesday charged that the federal government, under the administration of President Obama, is deliberately arranging for a flood of immigrant children to arrive in America for political purposes.
“This is not a humanitarian crisis. It is a predictable, orchestrated and contrived assault on the compassionate side of Americans by her political leaders that knowingly puts minor illegal alien children at risk for purely political purposes,” said the statement released by the National Association of Former Border Patrol Officers.
“Certainly, we are not gullible enough to believe that thousands of unaccompanied minor Central American children came to America without the encouragement, aid and assistance of the United States government,” the officers said.
WND EXCLUSIVE: Congressmen say Obama “attempt to flood border” part of infamous socialist “Cloward-Piven” strategy
“Anyone that has taken two six- to seven-year-old children to an amusement park can only imagine the problems associated with bringing thousands of unaccompanied children that age up through Mexico and into the United States.”
Republicans are blaming Obama’s immigration policies for enticing the illegals, particularly the Deferred Action for Childhood Arrivals program launched in 2012, which recently was renewed.
More than 33,000 have been caught in Texas alone over the last eight months, the report said, overwhelming Border Patrol capabilities.
A federal judge even concluded the White House “has simply chosen not to enforce … border security laws.”
FoxNews.com reported this week Arizona Gov. Jan Brewer calls the situation a “creation” of the federal government, and Sen. Jeff Sessions, R-Ala., assigned blame for the “calamity” to Obama.
Fox News reported it had obtained a memo from an official with Customs and Border Protection who said the current policies are serving as an incentive for illegal aliens to sneak into the U.S.
“If the U.S. government fails to deliver adequate consequences to deter aliens from attempting to illegally enter the U.S., the result will be an even greater increase in the rate of recidivism and first-time illicit entries,” said Ronald Vitiello, a deputy Border Patrol chief.
Officials say among Obama’s policies that are attracting illegals is his instructions for “deferred action” for young illegals. Recently, the federal government said it was hunting for lawyers to provide legal help to children who are in the U.S. illegally.
The White House is asking for $1.4 billion more for the illegal-alien children, which by some estimates will grow to 150,000 next year.
The former Border Patrol agents said the campaign is a “political deception,” and the responsibility rests with the political leaders who support “a path to citizenship, regularization or any other form of amnesty for illegal aliens before providing for full protections for national security (jobs and economy) and public safety (the right of the people to be secure in their property and person).”
The officers argue that the non-enforcement of immigration laws is “the next step in becoming a failed state.”
“Yes, our leaders are guilty. However, we are responsible because it is the American voter [who] has placed untrustworthy people in positions of power and kept them there when they have clearly demonstrated that they have violated that public trust.
“These successful con artists are well dressed, attractive and charming,” the statement said.
The officers even questioned whether “this heartless criminal exploitation of Central American infants and children [will] finally awaken Americans to the ruse being foisted upon them by their government, the media and other interested parties.”
“Has America lost her ability to stand up against the tyrants and do what is right rather than what is easy? Obviously, this administration thinks you are as corrupt as they are and will vote them back into office or these young children would not be streaming into America to tug at your hearts and empty your heads of reason,” the statement said.

Read more at http://www.wnd.com/2014/06/ex-border-agents-immigrant-flood-orchestrated/#hXaRSirV7melfjbP.99

ATOMIKTIGER: Mass Shootings Are Responsible For Less than 100 Out of 12,000 Annual Homicides in the U.S.

ATOMIKTIGER: Mass Shootings Are Responsible For Less than 100 Out of 12,000 Annual Homicides in the U.S.


Sunday, August 4, 2013

Mass Shootings Are Responsible For Less than 100 Out of 12,000 Annual Homicides in the U.S.

mass, shootings, are, responsible, for, less, than, 100, out, of, 12,000, annual, homicides, in, the, us,
Massive media publicity over mass shootings in the last year have brought gun control back to the forefront in the U.S. Banning so-called "assault weapons" and "high capacity" magazines are all the rage. Calls have been made for an honest national dialogue that puts every option on the table. An honest conversation ought to look at as complete of a picture as possible so we can correctly assess "just how big of an issue is it?"

To adequately evaluate this question, we should examine how many homicides there are in the U.S. overall, compared to homicides from firearms (handguns, rifles, shotguns), compared to homicides from rifles only (in which so-called "assault rifles" would fall), and homicides that occur in mass shootings. We ought to further compare homicides to other causes of death to get a comparative indication of the magnitude of each compared to other public health risks that cause death in the U.S. This will help us understand the relative significance of the issue.

Total U.S. homicides: The total number of homicides in the U.S., reported by the FBI, is about 12,000-13,000 annually. Generally, this has trended downward since the early 1990s and 1980s, which saw several years with homicides ranging from 21,000-24,000 homicides. In 2010, the last year available, the number was 12,996. In 2009, it was 13,752.

Firearm homicides: Out of the total homicides, about 2/3 are committed with firearms, 1/3 from other causes. We'll look at both. In 2010, firearm homicides were 8,775, or 67.5% of all homicides. In 2009, the number was 9,199, or 66.8% of all homicides.

Rifle homicides: The FBI reports the total number of rifle homicides is about 350 annually the last couple of years. This includes bolt-action rifles, as well as semi-automatic rifles and so-called "assault rifles." There is a separate category for shotguns, so they are not included in this number. In 2010, the number of rifle homicides was 358, or 2.75% of all homicides. In 2009, the number was 351, or 2.55% of all homicides.

Mass shooting homicides: Pop-media classification of "mass murder" varies. For instance, CNN's Piers Morgan and The Nation cite shootings in which only 1 or 2 homicides occur. However, the FBI defines mass murder as 4 or more killed.
In 2012, there were either 81 or 88 murdered in mass shootings, depending on your source. Less than 100 no matter, which source, is used. So if we assume high at 100 homicides from mass murder and assume low at 12,000 annual homicides that means that mass murders account for 0.0083 of all homicides, or a fraction of 1%.

Personal weapon homicides: FBI data shows that "personal" weapon homicides, which is defined by hands/feet (beating someone to death) are 7-800 annually. In 2010, it was 745; in 2009, 817. This is more than double all rifle homicides. It is more than 7 or 8 times the number of mass murder homicides.

Compared to other causes of death — public health & safety issues:

Motor vehicle deaths: There are between 32-42,000 deaths from vehicle collisions every year. This dwarfs both homicides firearm homicides easily. When compared just to rifle homicides at ~ 350, motor vehicle deaths is massive & rifle homicides is minuscule.

Unintentional injury deaths: The Center for Disease Control (CDC) reported 118,021 accidental deaths in 2009, the last year reported. Compared to this mass murder again appears relatively insignificant in terms of loss of life and public health concern.

Accidental fall deaths: 2009 saw 24,792 accidental fall deaths. This accounts for 247 times the number of mass murder deaths.

Others reported by CDC:
Drug-induced deaths - 39,147
Alcohol-induced deaths - 24,518
Accidental poisoning - 31,758