Happy Border Control Day!

Happy Border Control Day!

On Cesar Chavez’s birthday, a reminder that he was a fierce opponent of illegal immigration

By Mark Krikorian

Today is Cesar Chavez’s birthday, celebrated as a state holiday in California, and an optional holiday in a few other states. Chavez has been held up as a symbol of race pride and open borders. A hagiographic film has just been released, and President Obama used the occasion of a screening at the White House to push “immigration reform.”
What neither the film nor the president mentioned was that Chavez, founder of the United Farm Workers union, was a fierce opponent of illegal immigration and supporter of tight border controls. That’s why it’s fitting to observe March 31 each year as National Border Control Day, in honor of the farmworker leader.
Chavez’s core insight was based on the law of supply and demand — farm work would remain low-paid, exploitative work so long as an unlimited supply of stoop labor could just come across the border and undercut his efforts at increasing pay and benefits. It’s a lesson today’s promoters of “immigration reform” — i.e., amnesty, more immigration, and weaker enforcement — would do well to heed.
Now, I’m a pretty conventional conservative and have never had much time for unions. None of my forebears was ever in a union, and the harm done by thuggish labor bosses and crippling work rules does nothing to make organized labor more appealing.
But when you see the appalling pay and conditions of farmworkers — whether in Edward R. Murrow’s 1960 documentary Harvest of Shame or modern-day slavery prosecutions — it’s hard not to feel like the mirror image of George McGovern when he opened an inn after retiring. After a lifetime of big-government activism, he discovered “that legislators and government regulators must more carefully consider the economic and management burdens we have been imposing on U.S. business.” Farmworkers — like small businessmen — are treated like crap, and they were even when they were mostly Americans. Conservatives don’t have to embrace socialism to recognize this fact. Just because leftists say something doesn’t mean it’s not true.
Of course, workers in lots of industries have been treated like crap, which is why unions sprung up in the first place. And economic growth and development have improved conditions immensely.
But not for farmworkers. Farm work has long been treated differently; much of the New Deal, for instance, didn’t apply to agricultural laborers. Later, based on fears of an agricultural-labor shortage during World War II (there actually was no shortage), big farmers got the federal government to initiate schemes to import captive labor from Mexico and the Caribbean, eliminating any chance for American farmworkers to better their lot. This evolved into the Bracero Program, which continued until Congress abolished it in 1964. Between 1942 and 1964, the program admitted 4.6 million workers, though since some workers returned year after year, it’s estimated that only 1 million to 2 million men actually participated.
It’s no coincidence that Chavez enjoyed his first success only after the end of the Bracero Program. Writes economist Philip Martin, the nation’s leading authority on immigration and farm labor:

In the spring of 1966, the combined groups, renamed the United Farm Workers Union (UFW), won a 40 percent wage increase for grape pickers, largely because no Braceros were available. This UFW grape victory ushered in a 15-year golden era for US farm workers that ended with rising illegal migration in the 1980s and 1990s. [emphasis added]

Chavez wasn’t coy about the need to keep out intruders. David Gregory Gutiérrez has written that “from its inception in 1962 the UFW lobbied for strict control of the Mexican border” and that Chavez “was among the most vocal critics of illegal immigration.” In 1969 Chavez testified before Congress:

A year ago we assigned many of our organizers to do nothing but to check on the law violators coming from Mexico to break our strikes. We gave the Immigration and Naturalization Services and the Border Patrol stacks and stacks of information. They did not pull workers out of struck fields. . . . This is why we are forced to boycott: We have had no enforcement by the Border Patrol.

In a 1972 interview, he described a strike in which the employer was unable to find strikebreakers; then, “all of the sudden yesterday morning, they brought in 220 wetbacks, these are the illegals, from Mexico.”
In 1973, Chavez sent his cousin Manuel down to the border to establish a “wet line” patrol to prevent illegal aliens from coming in to break a strike. Unlike the peaceful and hands-off Minuteman gatherings a few years ago, the United Farm Workers’ efforts sometimes involved more direct means of border control, including roughing up the illegals.
In 1974, he sent a memo to UFW operatives announcing “the beginning of a MASSIVE CAMPAIGN to get the recent flood of illegals out of California.”
In 1979, he testified again before Congress:

It is apparent that when the farmworkers strike and their strike is successful, the employers go to Mexico and have unlimited, unrestricted use of illegal alien strikebreakers to break the strike. And, for over 30 years, the Immigration and Naturalization Service has looked the other way and assisted in the strikebreaking.

Also in 1979, Chavez spoke at the National Press Club, demanding that the federal government faithfully execute the immigration laws and keep illegal aliens out of the country. He added that if “my mother was breaking the strike and if she were illegal, I’d ask the same thing.”
My point in presenting so many examples is to make clear that Chavez’s commitment to border control was not a passing phase — it was at the center of his labor activism. Contemporary lefties and Hispanic chauvinists try to explain this away as part of a “complex history” and point to his later life, after the UFW shriveled, when he started to believe the press coverage of him as a secular saint. But he also became increasingly paranoid and megalomaniacal, flirting with the Synanon cult, enforcing communal living, conducting purges of “disloyal” subordinates.
Chavez’s decline into eccentricity is hardly unprecedented among notable figures and is not what he should be remembered for. The accomplishments of, say, Howard Hughes as an aviator and businessman are distinct from his later decline, when he refused to cut his fingernails and surrounded himself with Kleenex boxes.
So it is with Chavez. Whatever he turned into later, in his prime he was a champion of strict control of the borders, to ensure that American workers and American employers would have to duke it out on an even playing field. If he’d succeeded, less-skilled Americans would be better off, instead of seeing their real wages drop 21 percent since 1979.
We shouldn’t let the open-borders folks and the racial chauvinists send this history down the memory hole. Which is why Chavez’s birthday should be recognized each year as National Border Control Day. Happy birthday, Cesar Chavez!
— Mark Krikorian is executive director of the Center for Immigration Studies.

http://www.nationalreview.com/article/374564/happy-border-control-day-mark-krikorian#!

 

How the tea parties could change American politics. (DP: referring to the inception of the Tea Party movement)

Tax Day Becomes Protest Day

How the tea parties could change American politics.

By Glenn Harlan Reynolds

Updated April 15, 2009

Today American taxpayers in more than 300 locations in all 50 states will hold rallies -- dubbed "tea parties" -- to protest higher taxes and out-of-control government spending. There is no political party behind these rallies, no grand right-wing conspiracy, not even a 501(c) group like MoveOn.org.

A rally and march in protest of higher taxes in Santa Barbara, Calif., April 4. Reuters

So who's behind the Tax Day tea parties? Ordinary folks who are using the power of the Internet to organize. For a number of years, techno-geeks have been organizing "flash crowds" -- groups of people, coordinated by text or cellphone, who converge on a particular location and then do something silly, like the pillow fights that popped up in 50 cities earlier this month. This is part of a general phenomenon dubbed "Smart Mobs" by Howard Rheingold, author of a book by the same title, in which modern communications and social-networking technologies allow quick coordination among large numbers of people who don't know each other.

In the old days, organizing large groups of people required, well, an organization: a political party, a labor union, a church or some other sort of structure. Now people can coordinate themselves.

We saw a bit of this in the 2004 and 2008 presidential campaigns, with things like Howard Dean's use of Meetup, and Barack Obama's use of Facebook. But this was still social-networking in support of an existing organization or campaign. The tea-party protest movement is organizing itself, on its own behalf. Some existing organizations, like Newt Gingrich's American Solutions and FreedomWorks, have gotten involved. But they're involved as followers and facilitators, not leaders. The leaders are appearing on their own, and reaching out to others through blogs, Facebook, chat boards and alternative media.

The protests began with bloggers in Seattle, Wash., who organized a demonstration on Feb. 16. As word of this spread, rallies in Denver and Mesa, Ariz., were quickly organized for the next day. Then came CNBC talker Rick Santelli's Feb. 19 "rant heard round the world" in which he called for a "Chicago tea party" on July Fourth. The tea-party moniker stuck, but angry taxpayers weren't willing to wait until July. Soon, tea-party protests were appearing in one city after another, drawing at first hundreds, and then thousands, to marches in cities from Orlando to Kansas City to Cincinnati.

As word spread, people got interested in picking a common date for nationwide protests, and decided on today, Tax Day, as the date. As I write this, various Web sites tracking tea parties are predicting anywhere between 300 and 500 protests at cities around the world. A Google Map tracking planned events, maintained at the FreedomWorks.org Web site, shows the United States covered by red circles, with new events being added every day.

The movement grew so fast that some bloggers at the Playboy Web site -- apparently unaware that we've entered the 21st century -- suggested that some secret organization must be behind all of this. But, in fact, today's technology means you don't need an organization, secret or otherwise, to get organized. After considerable ridicule, the claim was withdrawn, but that hasn't stopped other media outlets from echoing it.

There's good news and bad news in this phenomenon for establishment politicians. The good news for Republicans is that, while the Republican Party flounders in its response to the Obama presidency and its programs, millions of Americans are getting organized on their own. The bad news is that those Americans, despite their opposition to President Obama's policies, aren't especially friendly to the GOP. When Republican National Committee Chairman Michael Steele asked to speak at the Chicago tea party, his request was politely refused by the organizers: "With regards to stage time, we respectfully must inform Chairman Steele that RNC officials are welcome to participate in the rally itself, but we prefer to limit stage time to those who are not elected officials, both in Government as well as political parties. This is an opportunity for Americans to speak, and elected officials to listen, not the other way around."

Likewise, I spoke to an organizer for the Knoxville tea party who said that no "professional politicians" were going to be allowed to speak, and he made a big point of saying that the protest wasn't an anti-Obama protest, it was an anti-establishment protest. I've heard similar things from tea-party organizers in other cities, too. Though critics will probably try to write the tea parties off as partisan publicity stunts, they're really a post-partisan expression of outrage.

Of course, it won't be the same everywhere. There are no national rules, and organizers of each protest are doing things the way they want. And that's the good news and the bad news for Democrats. It's not a big Republican effort. It's a big popular effort. But a mass movement of ordinary people who don't feel that their voices are being heard doesn't bode well for the party that positioned itself as the organ of hope and change.

Will these flash crowds be a flash in the pan? It's possible that people who demonstrate today will find that experience cathartic enough -- or exhausting enough -- that that will be it. But it's more likely that the tea-party movement will have an impact on the 2010 and 2012 elections, and perhaps beyond.

What's most striking about the tea-party movement is that most of the organizers haven't ever organized, or even participated, in a protest rally before. General disgust has drawn a lot of people off the sidelines and into the political arena, and they are already planning for political action after today.

Cincinnati organizer Mike Wilson, a novice organizer who drew 5,000 people to a rally on March 15, is now planning to create a political action committee and a permanent political organization to press for lower taxes and reduced spending. Tucson tea party organizer Robert Mayer told me that his organization will focus on city council elections in the fall as its next priority. And there's lots of Internet chatter about ways of taking things further after today's protests.

This influx of new energy and new talent is likely to inject new life into small-government politics around the nation. The mainstream Republican Party still seems limp and disorganized. This grassroots effort may revitalize it. Or the tea-party movement may lead to a new third party that may replace the GOP, just as the GOP replaced the fractured and hapless Whigs.

 

http://online.wsj.com/news/articles/SB123975867505519363?mg=reno64-wsj

Report: Obama Admin Released Tens of Thousands of Illegal Immigrant Criminals

 

by Matthew Boyle

President Obama’s Department of Homeland Security caught then released 68,000 aliens who had previously been convicted of a crime, a new report from the Center for Immigration Studies shows.

The report, provided to Breitbart News ahead of its late Sunday evening release, reviews internal Immigration and Customs Enforcement (ICE) metrics to conclude that the Obama administration released 35 percent—or 68,000—convicted criminal aliens back into the U.S. general population when they could have been deported. “The criminal alien releases typically occur without formal notice to local law enforcement agencies and victims,” CIS’s Jessica Vaughan, the report’s author, added.
By “criminal,” ICE means people who have been convicted of a misdemeanor or felony that is not a traffic violation. For instance, traffic violations like Driving Under the Influence of Alcohol or even vehicular manslaughter do not count toward this description of “criminal alien.” As for the definition of “alien,” ICE mostly means illegal aliens, though some are legal aliens when they are considered deportable legal aliens—which is possible for legal immigrants who have committed a serious crime, like a felony.
The documents also show ICE only deported a small fraction of the aliens they encountered overall.
“In 2013, ICE targeted only 195,000, or 25 percent, out of 722,000 potentially deportable aliens they encountered,” CIS’s Vaughan wrote. “Most of these aliens came to ICE’s attention after incarceration for a local arrest.”
This report comes out on the heels of a report from the office of Sen. Jeff Sessions (R-AL) last week which found that only .08 percent of the aliens deported in 2013 were not serial immigration law violators or convicted of serious crimes.
In response to these findings from CIS that follow up on his office’s report last week, Sessions said immigration law in America has essentially ceased to exist.
“The preponderance of the evidence demonstrates that immigration enforcement in America has collapsed,” Sessions said. “Even those with criminal convictions are being released. DHS is a department in crisis. Secretary [Jeh] Johnson must reject the President’s demands to weaken enforcement further and tell him that his duty, and his officers’ duty, is to enforce the law – not break it. As Homeland Secretary, Mr. Johnson is tasked with ensuring the public safety and the rule of law. But Secretary Johnson is not meeting these duties.”
The CIS report also contains a breakdown per city of percentages of criminal aliens who were released back into the population. San Antonio’s 79 percent is the highest, where ICE encountered 36,228 criminal aliens and released 28,680 back into the general population in 2013. New York City’s 71 percent is next, where ICE agents encountered 7,571 criminal aliens and released 5,391 of them. Washington, D.C. follows that, with ICE agents encountering 8,688 criminal aliens and releasing 64 percent, or 5,558, of them into the public. Other cities with high percentages include Salt Lake City, Houston, Phoenix, Los Angeles, Atlanta, Newark, and Buffalo. Notably, many of these cities are not in border states, which means visa overstays and illegal aliens who crossed the border but migrated further inward are as much a problem as the actual U.S.-Mexico border in terms of stopping the flow and enforcing the law.
“These findings raise further alarm over the Obama administration’s pending review of deportation practices, which reportedly may further expand the administration’s abuse of ‘prosecutorial discretion,’” CIS’s Vaughan wrote. “Interior enforcement activity has already declined 40 percent since the imposition of “prosecutorial discretion” policies in 2011. Rather than accelerating this decline, there is an urgent need to review and reverse the public safety and fiscal harm cause by the president’s policies.”
Sessions echoed Vaughan’s concerns, saying the lack of enforcement for immigration laws further hurts the ability of American citizens to obtain employment.
“American citizens have a legal and moral right to the protections our immigration laws afford – at the border, the interior and the workplace,” Sessions said. “The administration has stripped these protections and adopted a government policy that encourages new arrivals to enter illegally or overstay visas by advertising immunity from future enforcement. Comments from top Administration officials, such as Attorney General Holder’s claim that amnesty is a civil right, or Vice President Biden’s claim that those here illegally are all US citizens (apparently including someone whose visa expired yesterday), demonstrate the administration’s increasing belief in an open borders policy the American public has always rejected."

http://www.breitbart.com/Big-Government/2014/03/30/REPORT-Obama-Admin-Released-Tens-Of-Thousands-Of-Illegal-Immigrant-Criminals

The High Costs of Obamacare

The High Costs of Obamacare

By Jack Kelly  

Obamacare will reduce the earnings of its 300,000 members by up to $5 an hour by requiring them to buy health insurance, according to a report by Unite Here, a union which represents chiefly lower-wage workers in service industries. The union said it “threatens the middle class with higher premiums, loss of hours and a shift to part-time work and less comprehensive coverage.”
The report quoted Earl Baskerville, 50, a food service worker at the University of Hartford in Connecticut: “Obamacare would cost me $4,855.20 a year more, or a $2.33 an hour pay cut.” And Angela Portillo, a maid at the Mandalay Bay Resort in Las Vegas: “The Obamacare website says (my husband and I) would have to pay $8,057.04 a year more to keep the great insurance we have now.
That’s a $3.87 per hour pay cut.”
Americans who says they’ve been hurt by Obamacare outnumber those who say they’ve benefited from it by more than 2 to 1, according to recent polls by both Rasmussen and Gallup.
The number of beneficiaries will plummet if the Supreme Court rules in June that Obamacare subsidies can be paid only to those who buy health insurance through state exchanges.
The Kaiser Family Foundation estimates that, through February, only about 15 percent of the 17.2 million people eligible for Obamacare had enrolled.
“The long-time underwriting rule calls for at least 70 percent of an eligible group to participate in order to get enough healthy people to pay for the sick who will always show up first for coverage,” wrote insurance industry consultant Robert Laszewski at The Health Care Blog.
Americans aged 18 to 34 account for just 27 percent of signups. To subsidize premiums for those older and sicker, at least 39 percent in the risk pool must be “young invincibles,” the Department of Health and Human Services has calculated.
Young people also are more likely to put off paying their first month’s premium — a prerequisite for actually having insurance — so things are worse than the HHS numbers indicate.
If a disproportionate number of Obamacare signups come from the 4.2 percent of 18-to-34-year-olds who describe their health as “fair” or “poor,” a huge problem will morph into catastrophe.
Administration officials hold out hope for a rush of signups before the March 31 deadline. I hold out hope my retirement will be financed by the arrival of a caravan of unicorns laden with baskets of gold dust.
My hope may be more realistic. The pace of enrollments has slowed sharply since December. About half the uninsured have browsed Obamacare websites, but just 10 percent signed up, according to a survey by McKinsey & Co. It costs too much, said most who browsed but didn’t buy.
“They are not buying it because the premium — even net of the subsidies — is too much for plans that have deductibles that are too high,” Mr. Laszewski said.
The administration plans to spend $965 billion on Obamacare subsidies. They’ll benefit insurance companies at the expense of the low-wage workers, according to the Unite Here report. Since Obamacare passed, it said, “The average stock price of the big for-profit health insurers doubled, their top executives were paid more than a half-billion dollars in cash and stock options.”
A Brooking Institution study indicated that families with incomes between $20,000 and $38,000 will suffer the largest proportionate income declines.
“Only in Washington could asking the bottom of the middle class to finance health care for the poorest families be seen as reducing inequality,” the Unite Here report said.
Those who think Obamacare is a bad deal, or who can’t afford it, aren’t likely to change their minds before the end of the month. President Barack Obama gave them a good reason not to when he (illegally) delayed, again, enforcement of the provision canceling “substandard” policies.
This may save the scalps of a few endangered Democrats, but it undermines the economic viability of his “signature legislative achievement.”
If the uninsured are not buying into Obamacare because they don’t like it or can’t afford it, the individual mandate won’t be enforced, predicted Bloomberg News economics writer Megan McArdle. “Otherwise, we would be ‘helping’ the uninsured by raising the cost of the insurance available to them, and then fining them hundreds or thousands of dollars for not buying it. I believe the technical term for this is ‘political suicide.’ ”

Jack Kelly is a columnist for the Pittsburgh Post-Gazette and The Blade of Toledo, Ohio.

Read more: http://www.realclearpolitics.com/articles/2014/03/16/the_high_costs_of_obamacare_121948.html#ixzz2weGynj4Y
Follow us: @RCP_Articles on Twitter

The Medicaid Mess

The Medicaid Mess

Now isn’t the time for Republican governors to go wobbly on these fraudulent arguments.

By Michael Tanner

Even as those parts of Obamacare that have not yet been postponed stagger toward the finish line on March 31, one part of the president’s health-care law continues to build momentum. As of this writing, 25 states and the District of Columbia have chosen to expand their Medicaid programs in accordance with Obamacare. This includes several states governed by Republicans, including Arizona, New Jersey, New Mexico, and Ohio (Governor John Kasich has described the expansion as part of his duty as a Christian).
The Obama administration claims that nearly 7 million Americans have been added to the Medicaid rolls as a result of the Affordable Care Act, but those numbers are wildly inflated.
The Washington Post’s fact checker has given the claim “four Pinocchios,” and firms that track the data, such as Avalere, suggest that the real number is somewhere between 1.1 and 1.8 million at last count. The rest of the enrollments are simply the normal turnover and reenrollments that occur in the program.
Yet the expansion could get a lot bigger over the next few months if several additional states decide to expand their programs. Among those expected to make a decision in the next few weeks: New Hampshire, where the Republican-controlled senate voted to pass a version of expansion earlier this month; Pennsylvania, where Republican governor Tom Corbett has proposed expanding the program in exchange for some overall Medicaid reforms, including a work requirement; staff for Utah governor Gary Herbert traveled to D.C. last week to discuss proposals for Medicaid expansion, with their boss expected to make the trip himself in April; and Virginia, where new governor Terry McAuliffe is pushing for expansion, though the Republican-controlled house has blocked him. Other states looking at the idea include Florida, Missouri, and Montana; expansion is also expected to be a key issue in gubernatorial campaigns this fall.
Supporters of expanding the program, along with much of the media, portray opposition to the idea as essentially political. It’s about governors and state legislators who simply oppose Obamacare and refuse to do anything that would help implement it, they contend. No doubt there’s a certain amount of truth to this claim.
But expanding Medicaid also raises serious policy concerns: It would increase government dependency, cost state taxpayers millions if not billions of dollars in new taxes, squeeze other state services, and do little to improve health care for the poor.
A close examination of the claims made by proponents of Medicaid expansion shows that they carry very little weight. For example:
Medicaid expansion will save lives. In Florida, Republican-cum-independent-cum-Democratic gubernatorial candidate Charlie Crist has been running ads claiming that six Floridians die every day because Republican governor Rick Scott has not succeeded in expanding Medicaid. (Scott actually tried to expand the program, but the legislature rejected his plan, and he has since backed away from it.) But Crist’s numbers are based on studies with deeply flawed and discredited methodologies.
A gold-standard study in Oregon, with similar individuals randomly assigned to Medicaid or uninsured populations, concluded that “Medicaid coverage generated no significant improvements in measured physical-health outcomes.” Other studies show that, in some cases, Medicaid patients actually wait longer and receive worse care than the uninsured.
Medicaid expansion saves money by reducing uncompensated care and emergency-room visits. Among the special-interest groups pushing hardest for Medicaid expansion are hospitals. They made a devil’s bargain with the Obama administration to support Obamacare despite its cuts in hospital payments, in the hopes that new Medicaid enrollees (as well as subsidized exchange customers) would reduce the number of patients showing up without insurance and using emergency rooms for primary care.
Unfortunately, it doesn’t. The Oregon study cited above found that Medicaid enrollment actually increased ER use by as much as 40 percent, meaning annual emergency-room spending increased by roughly $120 per covered individual. For a state like Virginia, for instance, that would mean almost $100 million in additional ER costs per year.
Medicaid expansion doesn’t cost states anything. Under Obamacare, the federal government would pay the entire cost of Medicaid-expansion enrollees through 2016. After that, the federal share would gradually decline, but it is still supposed to pick up at least 90 percent of the cost for those made newly eligible in perpetuity. This is a much higher share of costs than states receive under traditional Medicaid. Many governors thus see this as virtually free money.
There are at least three big problems with that. First, even though the feds will cover 90 percent of the new costs, 10 percent of this really big number is still a really big number. Medicaid expansion would cost Pennsylvania taxpayers roughly $2.84 billion over ten years, for instance. In Virginia, taxpayers would be on the hook for as much as $1.3 billion by 2022. Other states would see similar costs. Medicaid is already the largest single line item in most state budgets, so the expansion will further crowd out other priorities such as education, roads, and prisons.
Second, the increased federal funding applies only to those added to Medicaid as a result of expanding eligibility to everyone earning less than 138 percent of the poverty level. This ignores a second category of recipients more likely to be added to the Medicaid rolls if this expansion moves forward, thanks to what the Robert Wood Johnson Foundation has dubbed “the woodwork effect.” When states market the expansion, thousands of state residents will end up enrolling who would have been eligible under traditional Medicaid. Some will be uninsured, but others will either be paying for insurance themselves or receiving it from their employer. This group is not eligible for the more generous federal matching funds, meaning state taxpayers must pay as much as half of their costs.
Finally, any estimate assumes the federal government will keep its side of the bargain when it comes to future funding. But with Washington facing a debt crisis, Medicaid cuts will almost certainly be on the table in the coming years. Indeed, in budget negotiations during the 2012 fiscal-cliff talks, the Obama administration reportedly offered to cut the 90 percent funding promise for Medicaid expansion to a lower “blended rate formula.” While the administration has backed off that offer, it shows how tenuous federal funding promises really are.
The Medicaid expansion just gets states back the federal taxes that their citizens paid. There is a little something to this claim . . . but only a little. As the argument goes, citizens of all states pay federal income taxes. Some of those taxes fund the Medicaid program. Therefore, if a state does not expand Medicaid, its taxpayers will effectively be subsidizing programs in other states. But taking this argument to its logical extreme would suggest that states should massively expand every program that has partial federal funding. It’s the same logic that has long underlain earmarks and other pork-barrel spending, but it ignores the fact that if a state expands Medicaid, it will increase total Medicaid costs nationwide, and therefore increase the amount of federal taxes that state taxpayers will ultimately have to pay. It also assumes that all states are net beneficiaries from federal largess, when in fact plenty of states are perennial losers.
Moreover, even if one buys into the “let’s get our share of the plunder” argument, the Medicaid expansion is not as obvious a choice as proponents suggest. If a state doesn’t expand Medicaid, individuals with incomes between 100 and 138 percent of the poverty level would be eligible for subsidies through the exchanges — with federal funds paying 100 percent of those subsidies. For at least that group of potential beneficiaries, not expanding Medicaid actually harvests more federal money.
The “private option” is a conservative way to expand Medicaid. Some states have tried to find a compromise on Medicaid expansion by using the dedicated Medicaid funds to allow recipients to buy into private health plans. Pioneered by Arkansas, where defections by Republican legislators recently allowed the experiment to move forward, this so-called private option attempts to address some of the worst aspects of Medicaid’s centralized “command and control” structure. Because it incorporates private insurers and the rhetoric of “markets” and “choice,” some conservatives might be fooled into believing that the private option represents a real step toward Medicaid reform.
In reality, however, the federal government continues to dictate many aspects of the insurance plans, including cost-sharing and benefits. The “private option” still lacks the price competition and innovation that characterize real markets. Nor is the private option likely to save states money. Indeed, evidence suggests it may end up being more expensive than traditional Medicaid. It’s really little more than camouflage for an expansion of the flawed federal program.
It will be ironic indeed if the only aspect of Obamacare to ultimately survive is a bigger, unreformed version of a failed entitlement program. It will be even more ironic if it was Republican governors and legislators who brought it about.
— Michael Tanner is a senior fellow at the Cato Institute and author of Leviathan on the Right: How Big-Government Conservatism Brought Down the Republican Revolution.

http://www.nationalreview.com/article/374222/medicaid-mess-michael-tanner

Bombshell In WaPo/Keystone Scandal: Did the Post Coordinate With Congressional Democrats?

by John Hinderaker in Media Bias, The War on the Koch Brothers
A major development occurred today in the scandal surrounding the Washington Post’s attempt to advance Democratic Party talking points by falsely linking Koch Industries to the Keystone Pipeline. In the unlikely event that you are not already familiar with the story, you should begin by reading this post and this one, as well as the one from last October where I dismantled the International Forum on Globalization report that was the basis for the Washington Post’s story of March 20.
The facts, very briefly, are these: Koch Industries has no interest in the Keystone Pipeline; it has not lobbied in favor of the pipeline; if the pipeline is built, Koch will make no use of it to ship oil from Alberta or anywhere else; and construction of Keystone would actually damage Koch’s economic interests by raising the price of midwestern oil that flows to Koch’s Pine Bend refinery. The reporters who wrote the Post article that tried to portray Koch as the driving force behind the Keystone pipeline, Juliet Eilperin and Steven Mufson, did not dispute any of these facts.
After my first post appeared, Eilperin and Mufson tried halfheartedly to respond to it. They posed the question, why did they write the article, given all of the facts that Power Line pointed out? Their answer was: “[I]ssues surrounding the Koch brothers’ political and business interests will stir and inflame public debate in this election year.” So their intention in writing the article was explicitly political.
But it may have been even more political, and more nakedly partisan, than we suspected. Today Democratic Senator Sheldon Whitehouse and Democratic Congressman Henry Waxman wrote a letter to David Robertson, President and COO of Koch Industries. The Democrats’ letter was premised almost entirely on the Washington Post’s discredited article; it repeatedly footnoted that article and the IFG report on which the Post story was based. The two Democrats concluded by requesting that Koch answer questions and produce a long series of documents relating in various ways to the Keystone pipeline.
The Democrats’ letter raises an obvious question: did the Washington Post publish its article attempting to link Koch to Keystone at the request of Whitehouse and/or Waxman, or at the request of other Democrats who were coordinating with Whitehouse and Waxman? Given the blatantly political purpose to which the Post’s article has now been put, it is reasonable to inquire into its genesis: was it a Democratic Party plant from the start?
Here is the Whitehouse/Waxman letter: (DP: use link to read Democrat letter as it's not worth my space to reproduce)

Coincidence? Maybe. But it seems likely that the Washington Post article was a put-up job, cobbled together and based on a ridiculous report written, apparently, by a couple of high school-age interns at the International Forum on Globalization, for the specific purpose of serving as the pretense for Whitehouse and Waxman to push the Democratic Party’s talking points. Is this what happened? I don’t know, but we would like to find out. Toward that end, I have requested that the Washington Post produce relevant information and documents to me. I have the same right to request information and documents of the Washington Post that Waxman and Whitehouse have to request information and documents from Koch Industries. My email to the Post follows:

To: juliet.eilperin@washpost.com
steven.mufson@washpost.com
readers@washpost.com
emilio.garcia-ruiz@washpost.com
veronica.dillon@washpost.com
From: John Hinderaker
Date: March 26, 2014
On March 20, you wrote an article in the Washington Post that attempted to link Koch Industries to the Keystone Pipeline. Your article suggested that Koch is, or may be, the driving force behind the pipeline. I criticized your article at http://www.powerlineblog.com/archives/2014/03/washington-post-falls-for-left-wing-fraud-embarrasses-itself.php, and you attempted, briefly, to respond to my critique. I wrote a subsequent post at http://www.powerlineblog.com/archives/2014/03/the-washington-post-responds-to-me-and-i-reply-to-the-post.php, to which you have made no rejoinder.
In response to my initial post, you said that you wrote the article linking Koch to Keystone for political reasons: “[I]ssues surrounding the Koch brothers’ political and business interests will stir and inflame public debate in this election year.” The significance of that admission became evident today when Democrats Henry Waxman and Sheldon Whitehouse wrote a letter to Koch Industries, questioning whether Koch has some interest in the Keystone Pipeline in reliance on your March 20 article and the IFG “report” that you cited. Many thousands of readers of my posts will wonder whether the Post’s story was a put-up job: a collaborative effort between you and Congressional Democrats, intended to serve as a pretext for politically-motivated harassment of Koch Industries, one of America’s premier companies.
Relying on your thoroughly-debunked March 20 article, Waxman and Whitehouse posed a long series of questions to Koch and requested various documents. I have the same right to request information that they do, and therefore I ask that the Washington Post answer the following questions and produce the following documents:
1) Prior to publication of the referenced article on or about March 20, 2014, did either Juliet Eilperin or Steven Mufson have any conversation or exchange any written documents relating to the subject matter of the article with Sheldon Whitehouse, Henry Waxman, any other Democratic member of the House or Senate, or any member of the staff of any Democratic Senator or Representative, or the staff of any House or Senate committee? If so, please state the time and place of all such conversations, identify all participants, describe the conversations in detail, and identify all responsive documents.
2) Prior to the publication of the referenced article on or about March 20, 2014, did either Juliet Eilperin or Steven Mufson have any conversation or exchange any written documents relating to the subject matter of the article with Tom Steyer, Andrew Light, John Podesta, or any employee or representative of the Center for American Progress? If so, please state the time and place of all such conversations, identify all participants, describe the conversations in detail, and identify all responsive documents.
3) Identify by name, address, phone number and business affiliation or employment every person with whom either Juliet Eilperin or Steven Mufson spoke or exchanged emails or other correspondence in connection with the referenced article that was published on or about March 20, 2014.
4) Produce all emails, letters, notes, memos or other documents in any form, whether paper or electronic, that contain or refer to any communications between Juliet Eilperin or Steven Mufson and Sheldon Whitehouse, Henry Waxman, any other Democratic member of the House or Senate, any member of the staff of any House or Senate Democrat, or any staffer for any Congressional committee, that relate in any way to the subject matter of the referenced article that was published on or about March 20, whether such documents predate or postdate publication of the referenced article.
5) Produce all emails, letters, notes, memos or other documents in any form, whether paper or electronic, that contain or refer to any communications between Juliet Eilperin or Steven Mufson and John Podesta, Tom Steyer, Andrew Light or any employee or representative of the Center for American Progress that relate in any way to the subject matter of the referenced article that was published on or about March 20, whether such documents predate or postdate publication of the referenced article.
I recognize that there is not currently pending any litigation in which court process would require the Washington Post to produce the requested information and documents. However, I trust that the Post will want to respond to the concerns that are felt by many thousands of readers as to whether the newspaper has allowed itself to be used as a foil and a pretext for the advancement of Democratic Party talking points that “will stir and inflame public debate in this election year.”
I look forward to your prompt responses to my requests.

I will keep our readers apprised of developments.

http://www.powerlineblog.com/archives/2014/03/bombshell-in-wapokeystone-scandal-did-the-post-coordinate-with-congressional-democrats.php#!

Health insurance premiums up 39% to 56% under Obamacare, reach $2,604 a month in California

By Paul Bedard  

                                                                           

Americans buying health insurance outside the new Obamacare exchanges are being forced to swallow premiums up to 56 percent higher than before the health law took effect because insurers have jumped the cost to cover all the added features of the new Affordable Care Act.
According to a cost report from eHealthInsurance, a nationwide online private insurance exchange, families are paying an average of $663 a month and singles $274 a month, far more than before Obamacare kicked in. What's more, to save money, most buyers are choosing the lowest level of coverage, the so-called "bronze" plans.
The firm provided the costs to Secrets through their new online price index, which gives the averages of what people are paying for insurance sold through their system. In California, for example, some families are paying a high of $2,604 a month and in New York, $1,845.



The shocking surge in prices show what Americans not in Obamacare or covered by their employer are paying as they seek lower premiums. Typically, they are not eligible for the subsidies Obamacare offers those with low incomes.
"Premiums are increasing primarily because of the new required provisions for 2014 Affordable Care Act compliant plans, including guaranteed issue, essential health benefits, modified community rating and minimum actuarial values," said Brian Mast, spokesman for eHealthInsurance. "It is also likely that health insurance companies expected additional risk in the risk pool, because people with pre-existing conditions could no longer be denied coverage, and may have priced their plans higher to accommodate for this risk," said Mast.
His firm's price index also gives an average age for singles buying plans, and the results are worrying for insurers and the Obama administration. That's because the average age is 36, older than the administration had hoped for.
Explaining the higher costs, Mast said, "There are likely other factors, but what is important is that moving forward, there needs to be a collective effort to enroll as many people as possible and create a broad and diverse risk pool to keep premiums in check. eHealth can help in that effort by enrolling consumers off-exchange and is pushing to be able to enroll people in subsidy-eligible plans as well."
There is a hint of good news, though, in firm's the price index. While the current costs for insurance are higher than before Obamacare, they have come down over the past several months.
Below is a cost summary provided by eHealthInsurance:

— Premiums have increased by 39 percent to 56 percent, compared to pre-Obamacare coverage. As of Feb. 24, the average premium for an individual health plan selected through eHealth without a subsidy was $274 per month, a 39 percent increase over the average individual premium for pre-Obamacare coverage.

— The most recent average premium for plans without a subsidy chosen by families was $663 per month, a 56 percent increase over the average family premium in Feb. 2013, which was $426 per month.

— For both individual and family applicants, bronze plans have been the most popular plan type chosen since the beginning of open enrollment.

— Shoppers chose less expensive plans as open enrollment progressed.
Paul Bedard, the Washington Examiner's "Washington Secrets" columnist, can be contacted at pbedard@washingtonexaminer.com.

 http://washingtonexaminer.com/average-premiums-jump-39-to-56-under-obamacare-2604-a-month-in-california/article/2545766?custom_click=rss#

Obamacare’s hard enrollment deadline melts

Obamacare’s hard enrollment deadline melts 
by Paul Mirengoff in Obamacare

The Washington Post is reporting that the Obama administration will give extra time to Americans who say they are unable to enroll in health-care plans through the federal insurance marketplace by the March 31 deadline. According to the Post, consumers who have begun to apply for coverage on HealthCare.gov, but who do not finish by Monday, will have until about mid-April to ask for an extension.

To take advantage of this extension, consumers need only check a box on HealthCare.gov to indicate that they tried to enroll before the deadline. The government will make no effort to determine whether, in fact, an individual actually did try to enroll.
Obamacare sure has made the government more trusting.

It has also made it even more dishonest. The Obama administration has repeatedly said that the March 31 deadline for enrolling in Obamacare is firm. Now, we find out not only that the deadline isn’t firm but that it can be avoided simply by lying.

The Obama administration claims that its latest accommodation is an attempt to prepare for a possible surge of people trying to sign up in the final days before the deadline. But with the federal health care website supposedly in good working order, no one should have much difficulty signing up for Obamacare at the eleventh hour. Moreover, as the Post points out, the extra time will not be restricted to people who waited until the last minute.
I assume that the Obama’s administration’s extension is the result of disappointing enrollment numbers. The White House wants to lessen the embarrassment of falling short of its target number of enrollees and perhaps to reduce the scope of the insurance company bailout that the low enrollment of healthy people will necessitate.
http://www.powerlineblog.com/archives/2014/03/obamacares-hard-enrollment-deadline-melts.php

The Democrats: They’re Not a Party, They’re a Crime Wave!

by John Hinderaker in Democrats
A lot of Democrats have been making the news lately, and not in a good way. Of course, if you are not an obsessive news junkie, you could have missed it: newspapers (to say nothing of TV network news) tend to go easy on reporting criminal behavior by Democrats. Howie Carr provides an excellent roundup:

Another Democrat In the News

Last Friday, it was the speaker of the Rhode Island House of Representatives, Gordon Fox, who is (technically) black and who is definitely gay. Astonishingly, given the open racial-preference policies of the Obama regime, Fox’s Providence home and his State House offices were raided Friday by the FBI. He resigned Saturday. We still don’t know what the G-men have on him.
Next, the mayor of Charlotte, Patrick Cannon, another Democrat. He allegedly accepted $48,000 in bribes, some of which he took at the same Capitol Grill where payoffs were earlier accepted by jailbird ex-Speaker Jim Black. Black is not to be confused with ex-Speaker Jimmy Green, who likewise went to prison, for torching his tobacco barns.
Then there’s state Sen. Leland Yee of San Francisco. He used to go on Piers Morgan’s now-canceled CNN moonbat-fest and denounce the Second Amendment. He sent out tweets on the first anniversary of the Newtown massacre saying, “I’m still shocked & prepared to take steps to stop gun violence.”
Well, up to a point …
He, too, was arrested on Wednesday, for allegedly arranging deals to procure M16s and rocket launchers to be smuggled into California after being purchased from Muslim terrorists in the Philippines. Sen. Yee was working with a Chinese gangster named “Shrimp Boy.”
…
Two-gun Yee is the third Democrat state senator to be arrested in California this week. Earlier it was state Sen. Rod Wright (perjury) and then Ron Calderon (bribery).
What a crime wave, in less than one week. So guess what most of the networks led with on their newscasts last night? The 5-month-old story of Gov. Chris Christie’s Bridgegate. Because it has one thing going for it that none of these other stories had, the only thing that matters to the corrupt American media.
Christie is a Republican.

To that rogues’ gallery we can add Harry Reid. The great achievement of Reid’s long career in public life is that he has stayed out of jail. How, exactly, did Reid become a rich man on the salary of a public employee? Inquiring minds want to know, but there are no inquiring minds in the media. Most recently, Reid was caught slipping one of his granddaughters $31,000 in campaign funds. He covered up this bit of nepotism by mis-identifying his granddaughter on his FEC filing, calling her “Ryan Elisabeth” instead of “Ryan Elisabeth Reid,” which is her name.
Reid is now trying to hush the whole thing up by repaying the $31,000. That will probably solve the problem: after all, once the money is returned, there is nothing more to report, is there? Just like how the Christie bridge scandal went away when the lanes re-opened.
If you’re going to be a criminal, it helps to have a “D” after your name.

http://www.powerlineblog.com/archives/2014/03/the-democrats-theyre-not-a-party-theyre-a-crime-wave.php#!

Seeking Accommodation

Seeking Accommodation

The Obama administration vs. the Religious Freedom Restoration Act.

ByRamesh Ponnuru

 

People forget it now, but the Religious Freedom Restoration Act — the law that companies and nonprofit organizations are using to fight the Obama administration’s requirement that almost all employers cover contraception, sterilization, and drugs that may cause abortion in their insurance plans — was controversial among conservatives in its first years. The old debate over it should remind us of two truths that, while compatible, are in tension with each other: The principle for which conservatives are fighting in today’s cases is important, and it is not absolute.
The story starts in the 1980s, when two drug counselors in Oregon were fired from their jobs for the sacramental use of peyote. The state denied their applications for unemployment benefits on the ground that they had been fired for misconduct, and they sued on the theory that what the state called misconduct was actually the constitutionally protected exercise of religion. Some Warren Court decisions gave the men hope of winning.

They lost. The Supreme Court, in a 1990 opinion written by Justice Antonin Scalia, ruled that religious belief cannot create a constitutional entitlement to an exemption from a generally applicable law that was not designed to limit religious freedom. Holding otherwise “would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.”
The decision came in for substantial criticism. The liberal legal academy was mostly hostile. So was the conservative movement. The late Father Richard John Neuhaus wrote in the pages of National Review that the “fear of anarchy . . . is the conventional argument against all freedoms.” Other conservatives argued that the decision was right, and that we should stick with the traditional, pre–Warren Court practice of letting legislatures grant accommodations in particular cases, known as “conduct exemptions,” rather than having judges try to devise a rule and apply it across the board. (The Volstead Act implementing Prohibition, for example, exempted the religious use of alcohol, as in Catholic communion.)
The opponents won the political argument. Three years after the Court’s decision, a bipartisan majority of Congress enacted, and President Clinton signed, a law to undo it — a law titled to suggest, hyperbolically, that the Court had delivered a grave blow to religious freedom.
The Supreme Court did not overrule the Oregon decision: Justice Scalia’s ruling on the meaning of the First Amendment stood. But it accepted the new law as a statutory, rather than constitutional, protection for religious dissenters. If a generally applicable federal law — such as the prohibition on peyote use in the Oregon case — imposed a “substantial burden” on someone’s exercise of religion, judges would have to determine whether applying the law to that person served a “compelling governmental interest” using the “least restrictive means” possible. If the answer was no, the believer would get an exemption. Whether or not the law was right to make this inquiry the job of the courts, it seems hard to dispute that it is the right inquiry.
The current dispute arises from the Affordable Care Act, popularly known as Obamacare. It authorizes the secretary of health and human services to set a list of preventive health services that employers have to cover. The administration determined that contraceptives should be on that list. (Which appears to make pregnancy akin to a disease, but let’s skip over that.) Some employers object to those forms of contraception that may in some cases cause abortion. Some follow Catholic teaching in objecting to contraception in general, and even more to abortifacients. Both groups further believe that it would be sinful to facilitate the behavior they deem immoral, or to create the impression that their opposition to it is weak or nonexistent.
Some opponents of the administration’s rule have said that the First Amendment requires that religious objectors receive an exemption. If Justice Scalia’s Oregon decision was right, though, that’s a hard case to make. The liberal Washington Post columnist Harold Meyerson has raised the possibility that Scalia might vote in favor of the religious dissenters anyway, because “he’s being confronted with a case where the religious beliefs in question may be closer to his own” than the beliefs of the Oregonians. More likely, though, is that Scalia will decide the case under the Religious Freedom Restoration Act, which of course did not exist at the time of the Oregon decision, rather than under the First Amendment. (Meyerson shows no evidence in the column that he knows this law exists.)
Applying that law requires, first, determining whether it covers corporate “persons”: Can people organized in the corporate form be said to face a “substantial burden” to their religious consciences? The Dictionary Act stipulates that laws that refer to persons should be understood to include corporations unless otherwise specified, and the Religious Freedom Restoration Act contains no such exclusion. Reading the act to exclude corporations would have perverse results, as conservative legal writer Ed Whelan notes: It would mean that a kosher deli, if it were incorporated, would have no claim against a law that forced it to serve pork.
The rest of the analysis should be pretty straightforward. The administration’s rule requires the objectors to do something they believe their religiously informed consciences forbid, or else pay a steep fine for each employee they do not cover. That’s a substantial burden. The only way to conclude otherwise is to reject the employers’ religious views, which are not on trial before the courts.
It cannot be seriously maintained that forcing employers who object to contraception to provide it is the least restrictive means of advancing a compelling governmental interest. The government could, for example, increase its direct subsidies for the distribution of contraception, involving objectors only to the extent that they pay taxes to the general federal pot. Or the government could allow oral contraception to be purchased over the counter, without a prescription, involving objectors not at all.
Supporters of the administration’s legal position in the press have largely avoided engaging these points (except for corporate personhood, which they gleefully attack without noticing that in many cases it is what allows the law to hold corporations accountable for misconduct). Instead, they have created rhetorical diversions.
The editors of the New York Times say that the dissenting businesses have asserted “an unprecedented right to impose” their views “on workers who do not share them.” That framing of the issue may be effective, as undecided voters often instinctively side against whoever seems to be the aggressor in a culture-war debate.
But of course the employers are not going to court to stop employees from using contraception (or even resorting to abortion) should they wish to do so; they are merely trying to keep themselves from any complicity in it. A right not to be coerced into such complicity had never previously been asserted in court only because it had been taken for granted through the first two centuries of our country’s existence.
Feminist writers have tried a variant of the same claim, saying that the dissenting employers are placing their right to act on their religious beliefs above the rights of their female employees. To the extent these feminists are making a legal claim, it is vacuous: Yes, the employers are asserting that their right to act on their beliefs, protected by statute, trumps the right to employer-provided contraceptive coverage created by the regulation. So much is obvious.
If it’s a moral claim, it’s false. Let’s assume that the employers believe that governments should respect a right to contraception of the sort the Supreme Court has protected: a right to produce, purchase, and use contraception free of governmental interference. That right does not conflict with their own right not to provide such coverage. It conflicts only with a right to employer-provided contraceptive coverage. The employer litigants do not believe that this right of employees should be set aside because of their religious scruples; they don’t believe this right exists in the first place.
Defenders of the law who avoid such flimsy arguments usually end up making some sort of slippery-slope case: Let employers with religious objections opt out of the contraceptive mandate, for example, and pretty soon you’ll be letting other employers opt out of covering blood transfusions, or medical coverage altogether. Or letting Quakers get out of paying taxes to support the military. If religions that believe in human sacrifice make a comeback, should they get an exemption from murder laws?
The more outlandish scenarios ignore the terms of the Religious Freedom Restoration Act and thus state the principle behind the lawsuits too broadly. The principle isn’t “Never impose a burden on the practice of faith.” It’s “Don’t impose a substantial burden on the practice of faith unless you have to, that is, unless it’s the least restrictive way to advance a compelling governmental interest.” No neo-Aztecs can take shelter against the murder laws under that principle.
Maybe the anti-medicine employers could — but would anyone step forward to make the case? For almost all of American history, employers were perfectly free to deny all kinds of coverage for religious or any other reasons, and yet religious conflict over health care in the workplace has been nearly absent from American life. Nobody cites actual cases in which employees were denied coverage for transfusions because their bosses were Jehovah’s Witnesses.
So long as the principle behind the lawsuits is defined precisely, the arguments against it and them are very weak. Whether that will be enough for Justice Kennedy is anybody’s guess.
— Ramesh Ponnuru is a senior editor at National Review, a columnist for Bloomberg View, and a visiting fellow at the American Enterprise Institute. A version of this article first appeared in the December 31, 2013, issue of National Review.

http://m.nationalreview.com/article/367687/seeking-accommodation-ramesh-ponnuru

ObamaCare's Latest Legal Challenge

ObamaCare's Latest Legal Challenge

Can the White House simply declare that the federal government is the 51st state?

A defining feature of President Obama's second term is his willfulness in defying limits on executive power to suit his political goals, and no more so than with the Affordable Care Act. The judiciary is the last check on those abuses, and this week it will have another opportunity to vindicate the rule of law.

On Tuesday the D.C. Circuit Court of Appeals will hear one of the more important legal challenges to ObamaCare's lawless implementation. Unlike the challenge to the individual insurance mandate, Halbig v. Sebelius involves no great questions of constitutional interpretation. The plaintiffs are merely asking the judges to tell the Administration to faithfully execute the plain language of the statute that Congress passed and President Obama signed.

***

The Affordable Care Act—at least the version that passed in 2010—instructed the states to establish insurance exchanges, and if they didn't the Health and Human Services Department was authorized to build federal exchanges. The law says that subsidies will be available only to people who enroll "through an Exchange established by the State." The question in Halbig is whether these taxpayer subsidies can be distributed through the federal exchanges, as the Administration insists.

Prior to passage, Democrats were divided over the structure of the exchanges, with liberals favoring a national clearinghouse and moderates state control. The federalists won and conditioned the subsidies on state-based exchanges.

 

Getty Images

This was no accident. The federal government cannot commandeer the sovereign states under the Constitution, so Democrats created an incentive for Governors to participate voluntarily. If they didn't cooperate by taking the quid of the exchanges, they would deny their constituents the quo of eligibility to claim billions of dollars worth of benefits. The other Democratic goal was to have the states share in the workload of implementation, instead of concentrating everything within HHS.

But also prior to passage, Democrats were convinced that the ObamaCare opposition would melt away as Americans learned to love the law. That did not happen. Some 34 states opted out, and two others couldn't meet all the HHS mandates by deadline. So the Administration faced a choice: HHS could either obey the law, deny subsidies to the two-thirds of the U.S. population living in states with federal exchanges and thus greatly diminish Mr. Obama's legacy project. Or it could improvise a workaround—which is what it did.

***

In 2012, HHS and the Internal Revenue Service arrogated to themselves the power to rewrite the law and published a regulation simply decreeing that subsidies would be available through the federal exchanges too. The IRS devoted only a single paragraph to its deviation from the statute, even though the "established by a State" language appears nine times in the law's text. The rule claims that an exchange established on behalf of a state is a "federally established state-established exchange," as if HHS is the 51st state.

Careful spadework into ObamaCare's legislative history by Case Western Reserve law professor Jonathan Adler and Michael Cannon of the Cato Institute has demonstrated that this jackalope rule-making was contrary to Congress's intent. For example, the bill appropriated a mere $304 million for HHS to run exchanges. The actual cost turned out to be $3.3 billion as state after state dropped out.

But legislative intent is irrelevant in matters of statutory interpretation. All that matters is the plain meaning of the words of the law. In administrative law, agencies are granted wide deference to interpret and resolve ambiguous statutes under the Chevron v. Natural Resources Defense Council standard, but here the text is clear, consistent and tightly worded: Subsidies in state-based exchanges only. There is also the so-called Yazoo standard, from a 1899 case, that holds that tax benefits "must be expressed in clear and unambiguous terms" and "unquestionably and conclusively" established.

This is meant to protect taxpayer rights and the integrity of the Treasury, which the IRS and HHS are eviscerating. If the Administration can rewrite the law, why not extend subsidies to, say, people whose incomes are currently too high to qualify? As it happens, though ObamaCare says subsidies will only be available to people who enroll through an exchange, HHS has already unilaterally extended subsidies to people who enroll outside of an exchange to compensate for its botched rollout.

The Administration's dozens of ObamaCare rewrites and delays have gone mostly unchallenged because they tend to insulate people from harm and thus no one has standing to sue. But the availability of subsidies triggers liability for other ObamaCare penalties, such as the individual and employer mandates. Thus in this case the HHS-IRS rule injures people who would otherwise be exempt.

Federal judge Paul Friedman, a Clinton appointee, ruled in favor of the Administration in January. But the three-judge D.C. Circuit panel may be another story. It includes Judges Thomas Griffith (a George W. Bush nominee), A. Raymond Randolph ( George H.W. Bush ) and Harry Edwards ( Jimmy Carter ). The fear of an adverse panel ruling is one reason that Senate Democrats broke the filibuster rule to pack the D.C. Circuit with three more liberals this year. If the Administration loses at the panel level, it will ask for an en banc ruling that it thinks it will win and thus delay any Supreme Court judgment by many months.

Fear of legal defeat also explains why the Administration is suddenly claiming that the appeals court lacks the jurisdiction to invalidate its interpretation of ObamaCare. Last week the Justice Department submitted a so-called 28(J) letter, declaring that because Halbig is not a class action, any adverse ruling only applies to the named plaintiffs.

In other words, even if the court finds that the Administration is acting illegally, it cannot strike down the IRS-HHS rule and the executive branch will continue to ignore both Congress's law and the law of the courts. There are few if any precedents for such a remarkable argument.

***

After Chief Justice John Roberts upheld ObamaCare, the refrain on the political left was "it's the law," but the last year has proven that the White House thinks the law is whatever it says it is. Mr. Obama has conceded that "obviously we didn't do a good enough job in terms of how we crafted the law." The right and only lawful way to repair ObamaCare is through another act of Congress. In Halbig, the judiciary can remind the Obama Administration of this basic constitutional truth.

 

http://online.wsj.com/news/articles/SB10001424052702303775504579395231042008894?mg=reno64-wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424052702303775504579395231042008894.html