Daily Archives: 2 October 2014

PRC, Hong Kong, and Rights

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The situation in Hong Kong, which the People’s Republic of China has created with its high-handed treatment of the Special Administrative Region, is getting tighter.

[Chief Executive Leung Chun-ying] Leung told voters it is better to agree to Beijing’s plans for nominating candidates and to hold an election, than to stick with the current system of having an Election Commission choose the chief executive.

“It is definitely better to have universal suffrage than not,” Leung said. “It is definitely better to have the chief executive elected by 5 million eligible voters than by 1,200 people. And it is definitely better to cast your vote at the polling station than to stay home and watch on television the 1,200 members of the Election Committee cast their votes.”

This is cynically misleading. The 1,200 to whom Leung referred are the nominating committee of the Communist Party of China. They’ve been the ones—and they continue to be the ones, now formally under the control of the Party’s Standing Committee—who will determine who the candidates will be that those “5 million eligible voters” can select from. Those 5 million are only being allowed to rubber stamp the selection made by those 1,200. This is no elective choice. Of course, Leung and his PRC masters know this.

And

[PRC President] Xi Jinping, who has taken a hard line against any perceived threat to the Communist Party’s hold on power, vowed in a National Day speech to “steadfastly safeguard” Hong Kong’s prosperity and stability.

This is just wind in the trees. Xi knows full well that Beijing cannot “steadfastly safeguard” Hong Kong’s prosperity and stability. Only the people of Hong Kong, acting for and by themselves, without outside interference, can do that.

And

China’s government…so far it has not overtly intervened, leaving Hong Kong authorities to handle the crisis.

This is a misunderstanding. The Hong Kong authorities are in the streets, not in the government buildings. The people are sovereign over their government in a free state. Of course, this is hard to realize from inside a despotic state.

The protesters, upset that Chief Executive Leung Chun-ying has refused to meet them, have threatened to expand their demonstrations unless he resigns and the Chinese leadership agrees to broader electoral reforms.

It’s clear from the breadth of these protests, that the PRC has lost the consent of the Hong Kong-ese to govern them. PRC governance, thus, is illegitimate. This is corroborated by the protest news clampdown the PRC has done, especially in contrast to the freely flowing protest news within Hong Kong.

And finally, there’s this failure, this one from the West.

British Prime Minister David Cameron saying he planned to summon the Chinese ambassador to discuss the dispute, saying it is essential that Hong Kong’s people have a genuine right to choose their top leader.

This is an even greater misunderstanding, both by its existence and coming as it does from the leader of the birthplace of John Locke. No, Prime Minister, each one of Hong Kong’s people is created with an inalienable right to his own liberty and happiness. That means he has an inalienable right to choose his own government and the men who operate it. What is essential is that Hong Kong’s people have that right genuinely acknowledged and accepted.

In Which another Federal Judge Gets it Right

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Recall Halbig v Sebelius, the case wherein plaintiffs objected to subsidies being paid to Obamacare plan purchasers when the those plans were bought through ObamaMart, the Federally run health plan exchange, instead of through State-run health plan exchanges. The text of the Obamacare law allows the latter and bars the former. The DC Circuit agreed with plaintiffs and struck down the subsidies. (The current status of that ruling is that it’s been stayed pending review of Halbig by the DC Circuit sitting en banc.)

US District Judge Ronald White, of the Eastern District of Oklahoma, has ruled on a similar case that came up in his district, a part of the 10th Circuit. I won’t go into the specifics of Pruitt v Burwell, White’s case; the cases are very similar, and the point I want to make here is slightly different, anyway. I will note that plaintiff Pruitt is Oklahoma Attorney General Scott Pruitt, and defendant Burwell is Sylvia Mathews Burwell, HHS Secretary (sitting in for Kathleen Sebelius under an arcane Federal rule that allows such things). I will note further that Treasury Secretary Jacob Lew also was a defendant in this case, and leave things there.

White ruled for the plaintiff, which means he also held that the subsidies paid to Obamacare plan purchasers who bought them through ObamaMart are illegal.

Here’s where things get interesting.

In his conclusion, White wrote [citations omitted, emphasis mine]

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 “[appellants’ 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….”

And

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. “[H]igh as those stakes are, the principle of legislative supremacy that guides us is higher still…. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed life-tenured judges.”

And

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. … “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.’“

Finally, quoting from a ruling by his own 10th Circuit appellate court,

In reviewing statutes, courts do not assume the language is imprecise…. Rather, we assume that in drafting legislation, Congress says what it means.

And that’s the deal. A law says what Congress—the People’s directly elected representatives—says it says. A judge, or any appellate court at any level of our judicial hierarchy, can only apply that law to the case before him. Most especially, he cannot rewrite the law or “creatively interpret” it into something more agreeable to his personal philosophy.

Oh, and just to saucer and blow the thing, White formally ruled pretty clearly:

The court holds that the IRS Rule [allowing those subsidies] is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, pursuant to 5 USC §706(2)(A), in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, pursuant to 5 USC §706(2)(C), or otherwise is an invalid implementation of the ACA….

Judge White’s ruling can be seen here.

 

h/t Jonathan Keim of the National Review Online