Tag Archives: markets

Health Care Subsidies

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President Barack Obama sent his HHS Secretary, Sylvia Mathews Burwell, to Congress to testify before the House Ways and Means Committee about, among other things, his plans should the Supreme Court rule against Federal subsidies for those who bought health plans through ObamaMart and not through state exchanges as Obama’s ACA requires. He said, through her,

If the court says that we do not have the authority to give subsidies, the critical decisions will sit with the Congress and states and governors to determine if those subsidies are available[.]

This is openly cynical. “If the court says…” the subsidies are not available, they’re not available. Full stop.

The Governors and states made their own critical decisions clear five years ago when, in full view of the ACA’s statement that Federal subsidies are available only through state exchanges, they carefully and with forethought declined to create state exchanges.

The Congress made its own critical decision all those years ago when it wrote the law that said Federal subsidies would not be available except through state exchanges.

Of course the better policy wonk than his policy wonks knows this, and he knew it when he sent Burwell up there to spout that nonsense. The only way the Court can upend those critical decisions will be through a twisted interpretation of the text of the law that leads them to uphold the Federal subsidies.

Hmm….

The SEC and its In-House Judges

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I wrote about this a bit ago; here’s a follow-up via a related case.

A federal judge ruled Monday that the Securities and Exchange Commission’s use of an in-house judge to preside over an insider-trading case was “likely unconstitutional,” a potential blow to the agency’s controversial use of its internal tribunal.

This is another case concerning the SEC’s practice of stacking cases it brings against alleged miscreants by using its own judges to decide the matter.

Great Britain and its EU Referendum

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Chris Deerin, writing for CapX, has an article titled England will be torn apart by the EU referendum. The setup is this: Prime Minister David Cameron promised a few years ago that were he reelected Prime Minister (i.e., were his party reelected to sufficient strength that it could at least form a coalition government and he selected Prime Minister), he’d hold a Great Britain-wide referendum by the end of 2017 on whether Great Britain should leave the European Union. In the event, Cameron’s party was reelected to an outright majority, he was selected to be Prime Minister, and he’s moving to keep his promise: Great Britain will hold the promised referendum by the promised deadline.

Deerin is concerned, as you might discern from his article’s title. Actually holding the referendum, he fears, will mean the end of Great Britain regardless of the outcome.

Below is a letter I wrote to CapX demurring from Deerin’s position.

I don’t share your concern for a couple of reasons. In no particular order: what the pols in London think isn’t particularly relevant (Cameron has no plan, by the way? Not so much: he made a promise, and he intends to keep it; that his party has changed, or is changing, its collective mind isn’t important to honoring a commitment.) The question is for individual Brits: how do they see themselves? Your existential question, indeed: who are they?

Second, say the referendum does rend Great Britain. That works out to Scottish independence, no small matter to a significant per centage of Scots.

Third, consider the alternative: no referendum, and Great Britain stays in the EU. Our own John Jay expressed concern during the ratification debates that were our Constitution accepted as it was written, the States would bear the same relationship to the central government that counties have to a State: just political subdivisions that exist solely to ease the carrying out of the State’s decisions. That’ll be the fate of Great Britain if there’s no referendum or if the referendum supports staying in the EU.

Finally, dissolution: the recently completed referendum on Scottish departure from the Union was most enthusiastically argued. There is considerable angst among those whose position was voted down. They’re recovering, and the Union remains sound.

So it will be with Great Britain following the larger referendum, regardless of its outcome. Except that voting to leave will be a stout blow for British liberty.

Eric Hines

Ex-Im Banking

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Boeing Co said it may temporarily provide financing for some aircraft purchases by airlines caught up in the uncertain future of the Export-Import Bank of the US if Congress fails to extend the bank’s mandate before it expires at the end of June.

Hmm….

Looks to me like yet another reason to let the Ex-Im Bank die its death. It’s not needed, as Boeing is demonstrating. Sure, they’re saying “temporary,” but without the bank—that is to say, without American taxpayers—guaranteeing Boeing’s sales income, Boeing will find a way, in the private economy that all of us citizens are in, to make its sales and collect its revenue from the buyer. Private Enterprise always finds a way, when government isn’t in the way.

Relevance

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Some of you may recall that the Supreme Court is due to issue its ruling on the Obamacare case of whether the Federal government is allowed to pay health coverage plan premium subsidies to citizens who bought their health plans through ObamaMart instead of State-built and –run exchanges.

Health and Human Services Secretary Sylvia Mathews Burwell on Thursday defended the landmark 2010 US health law as sharply lowering the rate of uninsured Americans, improving health-care quality and making it more affordable.

The Wall Street Journal paraphrased her additional remarks:

Directly addressing the possibility that the US Supreme Court later this month will overturn a central provision of the law, she said such an event would mean “the number of uninsured would jump,” that “affordability goes away” and that a “death spiral” would ensue in the health insurance systems in some three dozen states.

Never mind that the law is quite explicit: it authorizes the subsidies only for those who bought their plans through exchanges established by the States and not through the Federal government’s ObamaMart. Obamacare also is completely silent about costs if the subsidies are, in fact, limited those State exchanges’ plans.

Burwell’s argument is a typical Democratic Party aargument: it’s a good idea, therefore ignore the law, do what we want.

It may be a good idea. If it is, change the law. In the meantime, do what the law says, not what you wish it to say. William Howard Taft, an earlier Chief Justice, had this to say on doing the “right” thing rather than obeying the law:

It is the high duty and function of this court…to decline to recognize or enforce seeming laws of Congress, dealing with subjects not entrusted to Congress, but left or committed by the supreme law of the land to the control of the States. We cannot avoid the duty even though it require us to refuse to give effect to legislation designed to promote the highest good. The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

Taft wrote that in finding a law unconstitutional, but it applies just as clearly to any regulation or procedure purported to be on the highest grounds but that contradicts a law.

I hope today’s Supremes still understand this and don’t fall for the irrelevant blandishments.

Update: An earlier iteration of this post said that Taft had found a law unconditional; in fact he had found unconstitutional.  A sharp-eyed reader caught that.