Obamacare Subsidies

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.

Judicial Nominations

In a more extensive piece about the vacancies into which President-Elect Donald Trump can nominate Federal judges, The Washington Post emphasized the nature of President Barack Obama’s (D) appointments—and by extension, the differences in judicial qualification philosophy between the two Presidents, although that wasn’t necessarily intentional.

Trump is likely to appoint judges with a view toward

[s]tate gun control laws, abortion restrictions, voter laws, anti-discrimination measures, and immigrant issues are all matters that are increasingly heard by federal judges and will be influenced by the new composition of the courts. Trump has vowed to choose ideologues in the mold of the late Supreme Court justice Antonin Scalia, a conservative icon….

Even though none of those are matters of ideology, much as the newspaper would like it to be, but rather are matters of adherence to the Constitution and understanding of the legal questions involved in today’s controversies.

On the other hand, Obama selected his nominees on the basis of…diversity.

Obama has used his nominations to systematically diversify the federal courts to look more like the fast-changing country. He appointed far more female and minority judges than any other president in history, and he has paid particular attention to sexual orientation. When Obama took office, there was only one openly gay or lesbian judge, and he appointed 11 more.

“The president, my predecessors and I spent a significant amount of time looking for all different kinds of diversity—racial, sexual orientation, gender, and professional background,” [White House Counsel Neil] Eggleston said.

Not at all an emphasis on Constitutional adherence, or even legal qualification: just whether a nominee was a member of an identity group within Obama’s identity politics.

A State Court and the Citizens of the State

In last month’s elections, one of the ballot items was a South Dakota measure (apologies: the Argus Leader has a really intrusive set of popup ads) to limit

how much PACs, political parties, and individuals can give to candidates.

The measure passed by a slim 51%-49% margin, but nevertheless, the passage is by the voice of the citizens of that State.  The article at the link gives a summary of those limits.

Now a South Dakota judge has issued an injunction against implementing or enforcing that law.  Circuit Judge Mark Barnett, in issuing the injunction, acknowledged that the matter likely will end up before the South Dakota Supreme Court, and he said

This is just a stop on the bus route.  This is going to a much higher power and a much higher pay grade than me.

Never mind that it’s already been to the much higher pay grade—the good citizens of the State of South Dakota, whose employee the State’s government, including the court system, is.

Republican Governor Dennis Daugaard and his Chief of Staff, Tony Venhuizen, have the beginnings of a hazy understanding of the larger issue at hand.  Daugaard said that he’d

support rolling back the measure if it isn’t struck down in court[]

and Venhuizen said that

[t]he governor views the order as a good step that will give the courts and the Legislature time to sort out the “mess [in the current campaign funding system.]”

But only the beginnings of a hazy understanding.  Whether the law passed by the citizens is a good idea or not is a legitimately debatable question.  However, the matter is a political question and only a political question.  The courts have no role to play whatsoever in this or any political discussion.

Here is a case where a court has said the people have no voice; the court speaks in their stead.

Sexism in a Court

The singer Kesha, in a Manhattan court, is suing Sony and ex-producer “Dr Luke” over allegations of having been drugged and raped.  There are (unsubstantiated) reports that the presiding judge, Shirley Kornreich, should be removed from the case because she’s married to Proskauer Rose law firm partner Edward Kornreich, and Proskauer Rose represents Sony.

Kornreich says the move is sexist.

If it’s an issue at all, it’s an issue because women are now part of the professional work force[.]

Kornreich reveals her own sexism with that claim.  The move, if it existed beyond press reports (Kesha’s lawyers say they weren’t going to file any recusal motion), was about conflicts of interest from family ties connecting a judge to one of the litigants; it had nothing to do with the genders of the individuals who are—or might be—tied.

Gerrymandering, Politics, and Race

The (eight Justice) Supreme Court is going to take up the question of gerrymandering and Congressional districts in Virginia and North Carolina.  In fact, the case the Court is hearing is narrower than that:

drawing legislative districts based on race.

Never mind that the Democrats’ Voting Rights Act of 1965 mandates race-based districting: the VRA

generally prohibits reducing minority-voting power through redistricting[]

which, of course, explicitly requires race-based districting in order to “protect” that “power.”

Indeed, the whole divide[] between white and minority voters nonsense with which Jess Bravin opened his piece at the link is just a tacit summary of the Left’s racism.  We’re all Americans.  Full stop.  Any “divide” is nothing but an artificiality, fueled by the Left’s fundamental identity policies that end up masking real abuses.

Were the Left, and now the courts, serious about how bad gerrymandering is, they’d agree to its elimination altogether.  Congressional districts should be squares enclosing substantially equal sized populations, differing from those straight-line boundaries only at the borders between states, and drawn without regard to the Left’s identity politics concerning which special groups of Americans are resident in which districts.