Category Archives: Courts

“How Barack Obama rescued the US economy”

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That’s the headline on a recent Financial Times piece (sorry, the FT has a paywall) by Martin Wolf.  It’s a silly headline, for a silly article.

How should we assess the economic success or failure of Barack Obama’s presidency?

This is a difficult question to answer.

No, the question is easy to answer.  Obama’s economic policies have been abject failures.  It’s also straightforward to lay the bulk of responsibility on Obama and his administration.  While it’s true that the Panic of 2008 began in the prior administration, it was Obama’s “stimulus” package that both blew up the nation’s debt and failed in its purpose of stimulating our economy with shovel ready jobs in a massive so-called Keynesian stimulus and its bailout of failing large banks.  It was his Federal Reserve’s policies (yes, yes, the central bank is supposed to be independent, but it was Obama’s Ben Bernanke, extended at Obama’s decision, and his Janet Yellen appointment) that degraded money discipline with their decisions to ease the money supply and hold interest rates artificially low.  It was his excessive—explosively so—regulation that limited business’ ability to function in the market, that limited small business’ ability to get started, that limited job growth and employment recovery.

It was the Obama administration’s Dodd-Frank, with its too big to fail policy that distorted those big business’ risk-taking decisions, decisions that used to be made in a free market but that under Dodd-Frank are made with the perception—courtesy of that “stimulus” bailout—that if the business messed up, Government would bail them out.

[S]hockingly, most congressional Republicans opposed all significant monetary, financial and fiscal actions taken to deal with the crisis.

This isn’t shocking at all; what’s shocking is the blind, knee-jerk rejection of free market principles by a Democratic Party (soon to become a Progressive-Democratic Party) suddenly in complete control of our government and cut loose from any restrictions on their power.  Absent the “stimulus,” the Panic might have been steeper, but it also would have been much shorter.  One only has to compare the Depression of 1920-21 with the Great Depression to see the efficacy of government non-response compared with Government intervention, and the Panic of 1907 with both to see another example of the efficacy of private response compared with Government intervention.  Of course, the Democrats knew—and know—this history, yet they acted as they did, anyway.

He tried to move the US closer to the universal health insurance taken for granted in other high-income countries. The Affordable Care Act (“Obamacare”) has added an estimated 20m adults and 3m children to the insurance rolls.

He didn’t try, he did it by Party fiat and then by Executive diktats—lots and lots of diktats.  Further, while Obamacare has provided health welfare to those adults and children, it also has thrown millions more out of their health insurance plans and denied them access to their doctors in direct—and knowing—contravention of Obama’s explicit promises that these denials would not happen.  The claim of cost growth reduction is a cynical one, also, being limited as it is to the cost of selected groups of Americans.  In fact, the cost has exploded, with premiums rising in double-digit per centages, deductibles going to 10s of thousands of dollars—an annual expense—the departure of heretofore health insurance companies from the health welfare plan “market,” and the cost to taxpayers similarly growing rapidly to pay for the subsidies of those given essentially free access to this health welfare.

Wolf’s discussion of our “jobs” recovery is misleading, also. Labor force participation rate is at historic lows, held back by those policies’ suppression of job creation.  Even the male labor force participation rate, which has been in a declining trend since its early ’50s peak, is farther below that long-term trend than it ever has been in that time frame.

Finally, this graph summarizes the efficacy of the Obama administration “recovery” as compared to post-WWII economic dislocation recoveries.

Even at the end of 2016 rate of 4.7% unemployment of 4.7%, the Obama administration’s economic policies have held back the recovery by years.

Failure of Hate Laws

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The failure stems from an inability to define hate, but mostly it fails from the irrelevance of hate as anything other than a motivator for committing a crime.  Motive, though, belongs solely in the jury box during the punishment phase given a conviction of a crime; it should not be foreordained by a Government’s attempt to define the hate or by Government’s more evident attempts to discriminate among groups of Americans and single some out for favorable treatment at the expense of other groups of Americans.

That’s demonstrated by Illinois and Ohio law, which comes up from case of the four blacks who attacked a white disabled man and live streamed it on Facebook, as discussed by Eugene Volokh in his Washington Post article.  For instance,

The focus, then, isn’t on “hate.” For instance, if a thief selects a physically disabled victim simply because he thinks it’s less likely that the victim will fight back, that too is covered as a hate crime under Illinois law.

And

Similarly, the Amish beard-cutting case was prosecuted as a hate crime on the theory that the targets were chosen by fellow Amish perpetrators because of the targets’ dissenting religious beliefs within the Amish community.  …  Choosing someone for attack based on his religion would be a hate crime whether the motivation is hatred, theological disagreement, or whatever else.

You see the irrelevance of hate in such crimes, yet Government, in these instances Illinois’ and Ohio’s, arbitrarily tacks it on, just because.

As Volokh put it,

But the Illinois statute and the federal statute [another of his example laws], like most other hate-crime statutes that I’ve seen, focus on discriminatory selection, not the underlying emotion behind the selection.

Indeed.  I pick you for my crime victim because I think I’m more likely to get away with it than if I’d selected someone else or because I’ve decided (legitimately or not) that you’d done me wrong, and I was determined to get you back, and I do the crime.  But if you happen to belong to a government-favored group of Americans, my crime—completely unchanged in its nature or motivation—becomes much more serious solely because of Government’s own discrimination: it has chosen to favor your group over other American groups and so to discriminate against those other American groups.

Which also is an argument for doing away with Governments favoring, for any purpose, this or that group of Americans over other groups of Americans, which Government has decided should be disadvantaged by that favoring.  That’s hate crime by Government.

Snowflake as Murderer

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Dylann Roof has been convicted of the murders of nine good men and women, people he butchered in his rampage through a Baptist church.

Now he’s crying over the…unfairness…of the penalty phase of his trial.  At the risk of repeating things known to those of you following along at home, Roof is defending himself during this phase, and he’s chosen to offer neither witnesses nor mitigating evidence during this phase.

In the punishment phase of a felony trial, the prosecution has to go first, which gives the defense the better position of having its presentation fresher in the minds of the jury.  In Roof’s trial penalty phase, the prosecution has presented a number of witnesses, who’ve offered “heart-ripping testimony,” to use The New York Times‘ phrase, concerning the devastation Roof’s rampage caused.  As the prosecution finished its examination of each of the 20 witnesses (so far, as of the date of the NYT‘s piece), Roof was offered opportunity to cross-examine; he declined—”no questions”—each time.

Roof ultimately argued the unfairness of this phase:

It is not fair to allow that much testimony to be heard by the jury when I am not presenting any evidence—from my family or anyone else—in mitigation.  If I don’t present any mitigation evidence, the victim-impact evidence will take over the whole sentencing trial and guarantee that I get the death penalty.

That’s just a bit of too bad.  The prosecution isn’t bound by the decisions, tactical or otherwise, of the defense.

Full stop.

The Supremes and Congressionally Mandated Precedents

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Congressman Steve King (R, IA) is has introduced a bill in the House that would

bar the Supreme Court from citing Obamacare in forthcoming decisions as binding precedent.

By prohibiting the Supreme Court from citing ObamaCare cases, we will be truly eradicating this unconstitutional policy from all three branches of government so that the repeal will be complete. Furthermore, we must work to restore Article I authority and the Rule of Law by ensuring Congress is the only entity of our government making or changing laws.

I wholeheartedly and enthusiastically agree with the sentiment, but I think this is the wrong way to go about it.  I disagree with his blanket “can’t use Obamacare as precedent.”  There were parts of those rulings that remain useful—the mandated expansion of Medicaid having been ruled unconstitutional, for instance.  And since the collection of precedents in the Obamacare rulings can’t practically be gerrymandered to protect the useful precedents, I object to the bill as a whole.

Furthermore, I think the core position, the restoration of “Article I authority and the Rule of Law by ensuring Congress is the only entity of our government making or changing laws” is better done by a House/Senate joint resolution that explicitly reminds the Supreme Court of Art I, Sect 1 and of the incompatibility with that Section of a Living Constitution philosophy based on anything other than Art V.  And—perhaps—an explicit reminder of Art III’s “good behavior” clause and judicial oaths of office.

Obamacare Subsidies

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In a case involving Federal government payments to Obamacare insurers to “reimburse” them for health coverage plan discounts the government requires those insurers to provide low-income plan buyers, a Federal district court judge in the United States District Court for the District of Columbia (which gives the judge’s ruling nationwide jurisdiction) ruled those payments to be unconstitutional—the payments had been being made even though no funds had been appropriated for the purpose by Congress.

Following President-Elect Donald Trump’s election, an appeal of the ruling to the DC Circuit has been HIAed at the request of the House of Representatives, one of the litigants in the original case at trial.  The pause was requested—and granted—to give the incoming Trump administration time to set up its own actions regarding Obamacare and so render the present case moot.

Now two DC lawyers have filed an “emergency” motion on behalf of two California citizens (can you say, “Yay! Fees!” boys and girls?) to get the appellate court to actively settle the matter, in so far as an intermediate appellate court can settle anything.  The California citizens’ argument, through these lawyers goes something like this:

suspending the litigation until during the power transition would essentially allow the lower-court injunction against the Obamacare subsidies to stand. They say they expect that a Trump-led Justice Department would either dismiss the Obama administration’s appeal or strike a settlement with Republicans allowing the injunction to take effect at some later date.

Litigants are allowed to do that, and it’s irrelevant to the matter at hand.  This case, of the question of constitutionality of the reimbursements, has nothing intrinsic in it concerning the right of litigants to it to ask for a pause pending nearby government action that would render the case irrelevant, nor is there anything present that would prevent a court from granting that pause based on that same nearby pending action.  Indeed, the court would be wasting its time arriving at a ruling when that ruling would soon become irrelevant.

The citizens’ argument continues:

Either way…the effect would be “devastating consequences for the individuals who receive these reductions, as well as for the Nation’s health insurance and health care systems generally.”
…without those payments to help offset deductibles and out-of-pocket costs, more insurers likely would drop their participation on the marketplaces. The exchanges, a centerpiece of the health law, would further wither.

That’s certainly a worthy discussion to have, and the nation has been discussing it for the last six years.  However, it’s a purely political discussion, and it has no place at all in a court.  This argument has no bearing on the case before the DC district or appellate court, and it has no bearing on the Circuit’s decision to hold the appeal in abeyance pending Trump administration action (or inaction).

The citizens also raised this item:

The enrollees essentially argue that if they were allowed to intervene and were to succeed in overturning the injunction against the subsidies, Republicans could no longer say their hands are tied by a court order.

That there is a true fact.  And it’s just as irrelevant as the citizens’ foregoing arguments.  The discussion and the question of whether the subsidies ought to be made are political ones, not legal ones, and so the discussion and associated debates are the exclusive province of the political branches of government: the Congress, ultimately in conjunction with the President.  Whose hands are tied and by what is not a question for a court of law.  Full stop.