Hours after the D.C. Circuit handed down the Halbig decision, discussed this morning , the Fourth Circuit handed down a parallel ruling with the opposite result . Coincidence? Or did the three Democrat-nominated Fourth Circuit judges time the release of their opinion until just after the Halbig decision was issued, to blunt the public perception that the courts had ruled against Obama? I’ll deal with the shortcomings of the Fourth Circuit’s so-called logic in more detail in coming days, but there’s one point I want to emphasize now: the decision emphasizes that, in theory, a Republican president could undo ObamaCare without the need for Congressional action, or even a favorable Supreme Court ruling. How’s that? The answer is contained in the logic of today’s Fourth Circuit opinion. The Fourth Circuit opinion struggles to say that “established by the state” can mean “established by the Health and Human Services Secretary” . . . and never really makes the argument that this is the logical interpretation. If a judicial opinion can be sheepish, then this opinion was bleating when its author wrote this passage: And if you want a truly risible passage, check out this bit from the concurrence: “Established by the state” means “established by the state” . . . except when it does not. Classic. The disregard for the text could be more blatant only if he said: “Established by the state” means “established by the state” . . . except when I say it doesn’t. Ultimately, these judges are clearly too embarrassed to hold that the Obama administration position is so clearly right that it is the only logical interpretation. Instead, they say: well, the opponents of the law have a pretty good point, but we’re going to say the language is ambiguous, and call the arguments about its meaning a wash. And that means we defer to the interpretation of the relevant government agency . . . in this case, the IRS. The Fourth Circuit thereby relies on something called “ Chevron deference,” which applies the rule (which strikes me as absurd) that courts must defer to reasonable agency interpretations of ambiguous statutes. So let’s say that this goes up to the Supreme Court. Either they will rule the way the D.C. Circuit ruled in Halbig , or the way the Fourth Circuit ruled today. If they apply the same logic that the Fourth Circuit applied today, the presidency changing hands could change everything. Here’s why: if Obama’s IRS can issue one rule, then President Ted Cruz’s IRS can issue a different one . The U.S. Supreme Court’s Chevron case that created “ Chevron deference” said: The fact that the agency has from time to time changed its interpretation . . . does not . . . lead us to conclude that no deference should be accorded the agency’s interpretation of the statute. An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. In other words: agencies can change their minds, and we will continue to defer to them. So, applying the Fourth Circuit’s reasoning, an IRS under Obama can say that an exchange “established by the state” can mean “established by the federal government.” But an IRS under Ted Cruz, applying the classic formulation of Monty Python’s argument sketch, could say: “No it doesn’t.” Meaning that, even if Democrats retake the Senate in 2016 (assuming Republicans take it this year, as I expect they will), we would not need them to effect this rule change. A President Cruz could write the Halbig interpretation into law, just like that. Boom. Done. And if that means ObamaCare won’t work, well, hey. Live by Chevron deference, die by Chevron deference.

Read more from the original source:
How a Republican President Could Kill ObamaCare Without Congress or the Supreme Court

Find or Create Hilarious Merchandise at CafePress
Tagged with:
 

Hours after the D.C. Circuit handed down the Halbig decision, discussed this morning , the Fourth Circuit handed down a parallel ruling with the opposite result . Coincidence? Or did the three Democrat-nominated Fourth Circuit judges time the release of their opinion until just after the Halbig decision was issued, to blunt the public perception that the courts had ruled against Obama? I’ll deal with the shortcomings of the Fourth Circuit’s so-called logic in more detail in coming days, but there’s one point I want to emphasize now: the decision emphasizes that, in theory, a Republican president could undo ObamaCare without the need for Congressional action, or even a favorable Supreme Court ruling. How’s that? The answer is contained in the logic of today’s Fourth Circuit opinion. The Fourth Circuit opinion struggles to say that “established by the state” can mean “established by the Health and Human Services Secretary” . . . and never really makes the argument that this is the logical interpretation. If a judicial opinion can be sheepish, then this opinion was bleating when its author wrote this passage: And if you want a truly risible passage, check out this bit from the concurrence: “Established by the state” means “established by the state” . . . except when it does not. Classic. The disregard for the text could be more blatant only if he said: “Established by the state” means “established by the state” . . . except when I say it doesn’t. Ultimately, these judges are clearly too embarrassed to hold that the Obama administration position is so clearly right that it is the only logical interpretation. Instead, they say: well, the opponents of the law have a pretty good point, but we’re going to say the language is ambiguous, and call the arguments about its meaning a wash. And that means we defer to the interpretation of the relevant government agency . . . in this case, the IRS. The Fourth Circuit thereby relies on something called “ Chevron deference,” which applies the rule (which strikes me as absurd) that courts must defer to reasonable agency interpretations of ambiguous statutes. So let’s say that this goes up to the Supreme Court. Either they will rule the way the D.C. Circuit ruled in Halbig , or the way the Fourth Circuit ruled today. If they apply the same logic that the Fourth Circuit applied today, the presidency changing hands could change everything. Here’s why: if Obama’s IRS can issue one rule, then President Ted Cruz’s IRS can issue a different one . The U.S. Supreme Court’s Chevron case that created “ Chevron deference” said: The fact that the agency has from time to time changed its interpretation . . . does not . . . lead us to conclude that no deference should be accorded the agency’s interpretation of the statute. An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. In other words: agencies can change their minds, and we will continue to defer to them. So, applying the Fourth Circuit’s reasoning, an IRS under Obama can say that an exchange “established by the state” can mean “established by the federal government.” But an IRS under Ted Cruz, applying the classic formulation of Monty Python’s argument sketch, could say: “No it doesn’t.” Meaning that, even if Democrats retake the Senate in 2016 (assuming Republicans take it this year, as I expect they will), we would not need them to effect this rule change. A President Cruz could write the Halbig interpretation into law, just like that. Boom. Done. And if that means ObamaCare won’t work, well, hey. Live by Chevron deference, die by Chevron deference.

Read more from the original source:
How a Republican President Could Kill ObamaCare Without Congress or the Supreme Court

Find or Create Hilarious Merchandise at CafePress
Tagged with:
 

Halbig: Textualism Wins, Obama Loses

On July 22, 2014, in Barack Obama, Congress, by TandyAnivitti

The long-awaited Halbig decision is out, and the result is bad for Barack Obama and his oppressive ObamaCare law. The panel has voted 2-1 that Congress did not authorize subsidies for plans bought on exchanges established by the feds: Because we conclude that the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges “established by the State,”we reverse the district court and vacate the IRS’s regulation. I told you on July 7 : “I am now convinced that the judges on the panel will rule 2-1 against Obama.” Always trust content from Patterico. Here’s what the controversy was about. The text of the ObamaCare law makes subsidies available only to one who enrolls in a health plan “through an Exchange established by the State under [section] 1311.” The ObamaCare law says that if a State does not establish the exchange, “the [HHS] Secretary shall . . . establish and operate such Exchange within the State.” The HHS Secretary is not a “State” — as a State is defined in the ObamaCare law as “each of the 50 States and the District of Columbia.” So when the exchange was established by the Secretary, it was not established by a “State.” Meaning subsidies and tax credits are not available. Plain meaning. Textualism. Ain’t it great? For now, temper your enthusiasm. The decision will certainly taken up by the entire D.C. Circuit Court of Appeals en banc , and with all the new Obama-appointed judges there, it doesn’t look good for today’s decision to be upheld. (But you never know.) Then the case will be appealed to the Supreme Court, and who knows what they’ll do? But for now, it’s a good day. Conservatives actually win one for a change. The decision should drive a stake through the heart of the dangerous philosophy that legislative “intent” can and should trump the clear language of a law. This has always been a tactic of the left. You can’t discern an “intent” from a law cobbled together by hundreds of people with differing opinions — except by reading the words that they ultimately produced. Period . Full stop. Conservatives, I expect, understand that now. I am still making my way through the opinion. More updates as I read the decision. UPDATE: Unsurprisingly, the opinion is written by Judge Griffith, with a dissent from Judge Edwards. Judge Griffith focuses primarily on the plain meaning of the language in the law, examining legislative history only as a backup, to show that the legislative history wouldn’t make any difference. The concurrence by Judge Randolph captures exactly what I have been saying here in recent weeks: As Judge Griffith’s majority opinion—which I fully join—demonstrates, an Exchange established by the federal government cannot possibly be “an Exchange established by the State.” To hold otherwise would be to engage in distortion, not interpretation. Only further legislation could accomplish the expansion the government seeks. The only way you could get to the interpretation/distortion that Obama advocates is by ignoring the “plain meaning” repeatedly cited by the majority, and by desperately clawing at some “intent” not apparent in the words of the statute. This is how leftists try to undermine the rule of law. Today, it did not carry the day. We’ll see what happens going forward.

View post:
Halbig: Textualism Wins, Obama Loses

Find or Create Hilarious Merchandise at CafePress

Real ID Act To Begin To Affect Arizonans

On July 22, 2014, in Barack Obama, by JeremyBedggood

Feds are cracking down on photo ID for travel and access to Federal buildings. Travel suppression via a backdoor tax. Via AZ Central Arizona lawmakers told the federal government in 2008 that the state would not cooperate in the Real ID Act, a post-9/11 law meant to make it harder for terrorists to obtain fake […]

Read the original:
Real ID Act To Begin To Affect Arizonans

Find or Create Hilarious Merchandise at CafePress

Silence from the State Department, NOW and Code Pink. Via National Post It was bad enough that the alleged rape took place in the sanctity of a mosque and that the accused man was a mullah who invoked the familiar defence that it had been consensual sex. But the victim was only 10 years old. […]

Read more from the original source:
Family Considers Killing 10-Year-Old Daughter After Mullah Rapes Her In Afghanistan Mosque

Find or Create Hilarious Merchandise at CafePress