Category Archives: Courts

Government’s Market Interference

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I wrote about this matter just a bit ago.  Now DoJ has gone ahead and filed its lawsuits seeking to block the mergers between Anthem Inc and Cigna Corp and between Aetna Inc and Humana Inc.  Attorney General Loretta Lynch’s rationale for this is this:

If these mergers were to take place, the competition among these insurers that has pushed them to provide lower premiums, higher quality care and better benefits would be eliminated[.]

And

They would leave much of the multi-trillion dollar health insurance industry in the hands of three mammoth insurance companies, and restricting companies, and restricting competition in key markets[.]

The one is mere speculation, and the other is prior restraint.  It’s certainly true that the mergers would create very large companies and leave fewer of them in the market.  But to say that this must reduce competition is just a guessing game, especially since Lynch declined to say—as her predecessors have declined to say, and as economists cannot say—what the minimum number of enterprises must be in any industry for there to be competition.  Indeed, absent collusion, which is illegal, two companies are driven to compete with each other by the economic forces extant in a free market.

Never mind, either, that as Lynch knows full well, that what’s illegal in America, what’s illegal under our antitrust laws—and all that’s necessary to be illegal—is abuse of monopoly power, not the existence of it.  As with the rest of our laws in a free country, these companies must actually commit the misbehavior before they can be sanctioned for it.

On the other hand, Government does allow protected monopolies—Ma Bell before its court-ordered breakup is one example.  A protected monopoly is a monopoly that is explicitly protected by Government: the monopoly is allowed to exist, and it is overtly protected from competition, in return for which the monopoly agrees to be heavily regulated by Government, including the prices it’ll be allowed to charge and the services it’ll be allowed to provide.  Indeed, protected monopolies are textbook examples of regulatory capture—only two-sided: the monopoly and the regulators have captured each other.

Lynch’s action, though, is an abuse of our antitrust laws; it’s nothing more than the Democrats’ campaign of lawfare.  Given the nature of Obamacare, though, maybe this protected monopoly/regulatory mutual capture is this administration’s final goal for health insurance companies.  That would be both a further effort to nationalize our private companies and an example of this administration’s view that it can control the capture.

This sort of behavior, too, emphasizes that the coming election will have consequences, not only for the White House, Congress, and the Supreme Court, it’ll have consequences for the nation’s Department of Justice and the other Executive Branch Cabinets and Agencies (and for our lower courts).

All of this, in the end, is motivated in part by individual Progressive-Democrats’ grasping for personal gain.

It is, though, even more strongly motivated by Progressive-Democrats’ collective contempt for their Lessers, us poor, dumb, plebeian Americans.

[T]he average American individual is morally and intellectually inadequate to serious and consistent conception of his responsibilities as a democrat.

Another Judicial Misbehavior

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The Fifth Circuit, in a 9-6 ruling, has said that Texas’ Voter ID law violates the Federal Voting Rights Act and returned it to the trial court to…fix…it.

[The appellate court] instructed a lower court to come up with an “interim remedy” before the November election.

Therein lies a major part of the problem.  Regardless of what one might think of the particular law, any alteration to it is a political matter, to be done by the people and their elected representatives.  The courts have no authority whatsoever to write law or to rewrite an extant one; indeed, our Constitution explicitly bars the courts from such things.

There’s more.  Writing for the majority, Judge Catharina Haynes wrote this, having already acknowledged that there is no direct evidence of discriminatory intent.

In this day and age we rarely have legislators announcing an intent to discriminate based upon race, whether in public speeches or private correspondence. To require direct evidence of intent would essentially give legislatures free reign to racially discriminate so long as they do not overtly state discrimination as their purpose and so long as they proffer a seemingly neutral reason for their actions.  This approach would ignore the reality that neutral reasons can and do mask racial intent….

In other words, whenever legislators disagree with judges, judges must proceed from a presumption of dishonesty on the part of the legislators.  Direct evidence be damned.

[C]ourts may consider both circumstantial and direct evidence of intent as may be available.

Because circumstantial evidence, especially in the absence of direct evidence, can be interpreted in any way convenient to the judge’s predisposition—or to a litigant’s narrative.  That’s why circumstantial evidence is so sketchy in the first place.

The dissent, written by Judge Edith Jones, makes the majority’s shameful behavior plain.

No one doubts our unwavering duty to enforce antidiscrimination law. But in this media-driven and hyperbolic era, the discharge of that duty requires the courage to distinguish between invidious motivation and shadows. The ill-conceived, misguided, and unsupported majority opinion shuns discernment. Because of definitive Supreme Court authority, no comparable federal court precedent in over forty years has found a state legislative act motivated by purposeful racial discrimination.

All of that represents a very serious bit of judicial misbehavior, and it puts a premium on getting this 2016 election right.  A Progressive-Democrat in the White House, together with a Democrat-owned [sic] Senate, will have damaging effects far beyond the Supreme Court damage I’ve been on about in other articles: they’ll have their impact on lower courts, too, and throughout our judicial system.

The ruling can be seen here.

Leave it to Obama

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…and his fellow Progressives, including his proud acolyte, Democratic Party Presidential candidate Hillary Clinton.

The Obama administration is working on a series of agreements with foreign governments that would allow them for the first time to serve US technology companies with warrants for email searches and wiretaps—a move that is already stirring debates over privacy, security, crime and terrorism.

And

Under the proposed agreements described by Mr [Brad, Deputy Assistant Attorney General] Wiegmann, foreign investigators would be able to serve a warrant directly on a U.S. firm to see a suspect’s stored emails or intercept their messages in real time….

Because American sovereignty inside our own nation just doesn’t matter.

Elections have consequences.

A Liberal Justice Talked out of Turn

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Justice Ruth Bader Ginsburg now is in the business of publicly bashing politicians who don’t think like she does.

I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president.  For the country, it could be four years.  For the court, it could be—I don’t even want to contemplate that.

We can also turn her remarks around.

I can’t imagine what this place would be—I can’t imagine what the country would be—with Hillary Clinton as our president.  For the country, it could be four years—or a dozen, with her insistence on extending Obama even further, and even farther left.  For the court, it could be—I don’t even want to contemplate that.

And Ginsburg had these gems:

I don’t expect that we’re going to see another affirmative action case [regarding Fisher v University of Texas, wherein Justice Anthony Kennedy gutted his own prior ruling in the case].  I think [Justice Kennedy] comes out as the great hero of this term.

And

It would be an impossible dream.  But I’d love to see Citizens United overruled[.]

The problem here isn’t that she’s engaging in political speech, though.  It’s that her political speech, because of her position and role in our Federal government—a Supreme Court Justice—means that whatever she says in the political arena can only prejudice all of her subsequent rulings.  With such political bashing, she’s predetermining her position on any case that comes before the Court, and not only those that might be brought under or by a Trump administration.

On the other hand, it’s good to know her prejudices—as well as those pre-written opinions on cases yet to come—beforehand, rather than discovering them in her opinions after the rulings have been announced.  Which emphasizes the importance of a question asked by a tweeter and quoted in The Washington Post piece at the first link above:

If there’s a redo of Bush v Gore, how does Ginsburg not recuse herself, given her Trump comments?

How, indeed?  Worse, how could we expect her to?

Dangers of a Liberal Court

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The Supreme Court has refused its opportunity to overturn a Connecticut and New York ban on certain government-disfavored firearms.

The justices on Monday left in place a lower court ruling that upheld laws that were passed in response…mass shooting involving a semi-automatic weapon….

Never mind that had such firearms been in the hands of some of the adults present at mass shootings, the shooters could be stopped much earlier in their rampages.

And in a case in which evidence that was produced following an illegal traffic stop but that otherwise was legitimately collected—including pursuant to an active arrest warrant—was upheld by the Supreme Court as legitimate evidence, there were these Liberal Justice dissents.  From Justice Sonya Sotomayor:

The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights.

Never mind that arrest warrant, which required a search and so was well within the 4th Amendment.  And

In a portion of her opinion that expressed only her own views, Sotomayor also described the “humiliations” of unjustified police searches and said that “people of color are disproportionate victims of this type of scrutiny.”

Aside from this being wholly irrelevant to the case at hand, “people of color” commit most of the crimes—but she won’t address the underlying cause of that disproportionality: Liberal economic policies that trap minorities in poverty.  No, it’s that the wise and empathetic Latina didn’t get her way.

And

…outstanding warrants are increasingly common.

Why is that, exactly?  Do the folks subject to those warrants have a government gun in their ears preventing them from answering the warrant and clearing it?  Or are these folks, of their own volition, simply ignoring the warrants—warrants which are issued on the assumption that most of these folks will honor their commitment to appear in return for not being arrested on the spot?

And Justice Elena Kagan:

the ruling “creates unfortunate incentives for the police—indeed practically invites them to do what Fackrell did here.”

Because all cops are crooked; we can’t treat the individual cases of abuse individually.  Oh, wait—is a Supreme Court Justice profiling?

This only gets worse with a Liberal majority of Justices on the Supreme Court.