On Friday, United States Supreme Court agreed to hear the appeal in King v. Burwell. The plaintiffs in that case assert that the Patient Protection and Affordable Care Act only allows tax credits to people who buy insurance “from an exchange established by a state.” The Fourth Circuit Court of Appeal disagreed and ruled that the federal government may interpret that language as allowing tax credits to purchasers who bought insurance on one of the federal exchanges, operating in the more than 30 states that declined to create their own.
On the same day the Fourth Circuit delivered its decision in King, a panel in the D.C. Circuit found for the plaintiffs in a companion case captioned Halbig v. Burwell. This conflict would ordinarily invite SCOTUS to weigh in. However, the D.C. Circuit then accepted a rehearing en banc in Halbig. Thus, even though the King plaintiffs appealed, many observers speculated SCOTUS would wait to see if a conflict really developed, or if after rehearing in Halbig, the courts ended up aligned.
[F]our justices apparently think—or at least are inclined to think—that King was wrongly decided. … [T]here’s no other reason to take King. The challengers urged the Court to intervene now in order to resolve “uncertainty” about the availability of federal tax credits. In the absence of a split, however, the only source of uncertainty is how the Supreme Court might eventually rule. After all, if it was clear that the Court would affirm in King, there would have been no need to intervene now. The Court could have stood pat, confident that it could correct any errant decisions that might someday arise.
There’s uncertainty only if you think the Supreme Court might invalidate the IRS rule. That’s why the justices’ votes on whether to grant the case are decent proxies for how they’ll decide the case. The justices who agree with King wouldn’t vote to grant. They would instead want to signal to their colleagues that, in their view, the IRS rule ought to be upheld. The justices who disagree with King would want to signal the opposite.
And there are at least four such justices. If those four adhere to their views—and their views are tentative at this stage, but by no means ill-informed—the challengers just need one more vote to win. In all likelihood, that means that either Chief Justice Roberts or Justice Kennedy will again hold the key vote.
If I read this correctly, the speculation is that four (or more) SCOTUS justices agreed to accept the case in order to send a signal to the lower courts still considering challenges to this provision of the ACA. The signal they wanted to send is that those other courts should not necessarily follow King, because SCOTUS might think it was wrongly decided.
A reversal of King (i.e., a finding in the plaintiff challengers’ favor) would seriously undermine—perhaps fatally—the structure of the Affordable Care Act. Fully 87% of the people who purchased policies through the federal exchanges during the first open enrollment period are receiving subsidies. If the government cannot give subsidies to low-income purchasers, it cannot tax them for failing to have the insurance, and the entire system collapses under its own weight. Fewer people can afford the insurance, the risk pool shrinks, costs rise, and more people are forced to opt out.
On Thursday, the U.S. Court of Appeals for the Sixth Circuit upheld gay marriage bans in Ohio, Michigan, Tennessee and Kentucky. It did so by reversing lower court rulings striking down the bans. This decision puts the Sixth Circuit out of step with the other circuit courts to address the issue thus far (the Fourth, Seventh, Ninth and Tenth). The decision is sure to be appealed, and many observers believe it will be the vehicle by which SCOTUS finally weighs in on the issue.
DeBoer v. Snyder was decided 2-1. The majority decision was authored by Judge Jeffrey S. Sutton. Sutton largely argues that the definition of marriage should not be “constitutionalized” and that change should come from the voters. He maintains that the right to marriage recognized as fundamental in prior SCOTUS cases is defined by, and presumes, a relationship between one man and one woman. He rejects sexual orientation as a suspect classification entitled to heightened scrutiny, and frets that constitutionalizing gay marriage will require recognition of plural marriages.
Having found no need to apply heightened scrutiny to the bans, Sutton finds two rational bases for denying marriage to same sex couples. The first involves channeling straight people’s sexual energies into monogamous, legally binding relationships:
One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.
Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means.
The dissent scores powerful points observing that heterosexuals are already free to follow their procreative urges where they will, and that the unwanted children resulting from such unions suffer when their adopted same-sex parents are precluded from marrying. In any case, Sutton’s second rationale for upholding the bans has to do with principles of federalism:
[O]ne of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time. …. How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? A State still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere. Even today, the only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know. A Burkean sense of caution does not violate the Fourteenth Amendment, least of all when measured by a timeline less than a dozen years long and when assessed by a system of government designed to foster step-by-step, not sudden winner-take-all, innovations to policy problems.
Indeed, this decision creates a conflict among the circuit courts that did not exist (or at least not clearly) back in October, when SCOTUS declined to hear appeals from decisions in the Fourth, Seventh and Tenth circuits striking down similar bans.
Shortly after SCOTUS declined those appeals, the Ninth Circuit also struck down bans.
Collectively, those decisions were reached in a variety of ways: finding that the bans failed under rational basis review; applying heightened scrutiny to restriction of a fundamental right under a due process analysis; or applying heightened scrutiny under an equal protection analysis based on suspect classification or history of animus. However reached, they had the result of making gay marriage legal in 32 states (with three additional states with bans still technically in effect, which will inevitably be struck down).
That left litigation percolating in the Fifth, Sixth, Eighth, and Eleventh circuits. The decision Thursday by the Sixth was the first to break the prior pattern. Most commentators believe SCOTUS will now accept review to resolve the conflict. As Doug Mataconis, writing for Outside the Beltway, explained:
[T]he most important thing about the decisions in these cases is the fact that it creates the split among the Circuit Courts of Appeals that the Justices apparently felt was lacking when they considered the appeals it acted on in early October. … With this decision, though it can no longer be said that there is not a Circuit split since the differences between Judge Sutton’s opinion and those from the other four Circuits could not be more apparent. Thus, the one thing that didn’t exist on this issue in early October regarding this issue can now be said to clearly exist, and the likelihood that the Supreme Court will accept an appeal to this decision would seem to be quite high.
Only four justices need to agree for SCOTUS to accept an appeal. Assuming one is accepted, Mataconis and others predict SCOTUS will rule that the states cannot regulate gay marriage, by a majority consisting of at least Ginsburg, Breyer, Sotomayor, and Kagan, plus Kennedy.
From my own perspective, I do not see how we avoid the leviathan of government once we accept its tentacles are properly applied to the regulation of personal relationships. Even if the collective will was acceptably used to such ends, I have not come across convincing reasons for denying same sex couples access to the same bag of government goodies, incentives and subsidies enjoyed by opposite sex couples. The various theories propounded by opponents of gay marriage are belied by the sound sociological research to the contrary. Plural marriage does not frighten me, both because it does not rise to the same level of constitutional scrutiny as gay marriage—and because it is inherently non-frightening. Finally, I have and will continue to oppose all efforts to force private people, churches or businesses to associate with gay marriages against their will. The same principles that underpin the right to choose a spouse also underpin the right to choose with whom to do business.
I will close with Justice Sutton’s own observation that:
Over time, marriage has come to serve another value—to solemnize relationships characterized by love, affection, and commitment. Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. All of this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen States have done through their own sovereign powers.
 Kennedy wrote the majority decisions in Romer v. Evans (overturning a Colorado law preventing local governments from enacting anti-discrimination regulations to protect homosexuals), Lawrence v. Texas (overruling sodomy laws), and U.S. v. Windsor (overturning provisions of DOMA allowing the federal government to refuse recognition of same-sex marriages performed by states).
Veronique de Rugy, writing for the National Review Online, nailed it in her piece entitled “What the New Republican Congress Should and Shouldn’t Do.” Recognizing the GOP victory reflects frustration with the current administration, rather than endorsement of any GOP mandate, she lists suggestions for what Republicans should and should not attempt in the next few years. I agreed with every item on her list and urge everyone to read it in its entirety.
On her list of Do’s: continuing to work toward repeal of Obamacare and passing as many piecemeal anti-Obamacare bills as possible via budget rules; radically reforming the FDA using the opportunity of its reauthorization in 2015; reforming the corporate income tax (de Rugy proposes doing away with it, but she would settle for lowering it below the rate in other countries); and ending the War on Drugs.
Her list of Do Not’s include: warmongering and nation-building; a federal minimum wage increase; reauthorizing the Ex-Im Bank charter; enacting an internet sales tax; creating any new entitlement program; cutting taxes without paying for it with spending cuts; or increasing spending.
I thought her list was pretty comprehensive, but I have seen good additions from my fellow contributors at the Liberty Papers over the last few days. In a post on his Facebook page, Kevin Boyd added education reform and immigration reform as “Do’s.” In a post-election essay here at The Liberty Papers, he added:
Here’s what the GOP needs to do, they need start giving the American people reasons to vote for them in 2016. Start passing and forcing Obama to veto no-brainer bills on tax reform, spending cuts, healthcare reform, crony capitalism repeal, ending Common Core, etc. Also, the GOP must restrain the Ted Cruz types from picking unnecessary fights for publicity. They cannot let the Tea Party dominate messaging. Finally, Republicans must step up outreach towards minorities and young people, starting now.
I also agreed with Tom Knighton’s conclusion that the GOP should not assume it has been given a mandate for social conservatism on the national level:
[A]lso in Tuesday’s results were…new locations approving marijuana use on some level… Polls show support for marijuana (at least for medical use) and support for gay marriage. Translation: There’s zero reason to believe that the American people actually support social conservatism.
… You see, the American people don’t want that. The[y] like the idea of freedom, more or less.
What about you? Can you think of any other important Do’s or Do Not’s for the new Republican Congress? If so, share them in the comments.
Colorado Senator Mark Udall has a strong record of fighting back against surveillance state abuses. If I lived in Colorado, I would have considered voting for him, as the lesser of two evils, on that basis alone. Instead “Senator Uterus” squandered that advantage by running on the phony and demeaning “war on women.” Let us hope his defeat, along with that of Wendy Davis, sends this insulting meme to the quick death and deep burial it deserves.
Even the use of the word “war” is offensive.
War is the Rape of Nanking. It is the Sebrenica Massacre. War is the Rwandan Genocide. It is 45 million people dead in four years under Mao Ze-Dong and twenty million murdered or starved under Stalin.
War is the freakin’ Holocaust.
Acid attacks, honor killings, forced marriages, slavery, and stoning. Those things might rise to the level of a “war on women.”
Having to pay for your own birth control does not. Neither does a deadline of twenty weeks to terminate a pregnancy. If the wage gap was real (it is not), even that does not constitute “war.”
Using that word to describe anything experienced by women in the 21st century in the United States is an insult to my fortitude and intelligence, and to the victims of real wars all over the world.
But the meme does not stop there. It doubles down on this heaping pile of insult by treating certain issues as inherently interesting to women.
I am more than the sum of my “lady parts” and the issues inevitably lumped together under the rubric “women’s issues” hold little interest for me.
Abortion has been protected since 1973. Only 28% of women believe it should be legal in all circumstances. Like 72% of all women, I am not one of them. The wage gap has been massively and repeatedly debunked. The right to purchase and use birth control has been protected since 1965, and I have been able to afford it since I took my first job as a teenager. To the extent I have political concerns about birth control, it is to support over-the-counter availability, as proposed by Udall’s Republican challenger, or to wonder: If birth control is so unaffordable, how are women to pay for the health insurance policies covering birth control as just one of many expensive mandates?
Here are my issues: I think the growth of the surveillance state is an unacceptable trade-off in the fight against terrorism. I worry that the U.S. is crossing moral lines in its reliance on drone warfare, and that we are getting bogged down in never-ending conflicts in the Middle East. I fear our overseas interventions constitute sprinkling water on little terrorist Mogwai. I want non-violent drug offenders released from prison and reunited with their families. I worry about inflation in consumer prices outpacing real increases to income. I believe free markets produce the most beneficial results and that minimum wage laws destroy jobs and harm low-income workers. I think government debt and deficits are immoral and untenable burdens to pass on to our children. I am opposed to restrictions on political speech.
I care passionately about each one of those things.
When politicians suggest I should instead be focused on free birth control or manufactured outrage over phantom discrimination, it is like they are saying, “Oh, don’t worry your little head about those other issues. Those are for the menfolk to work out.”
It is like I am being patted on the head and told, “You’re pretty smart…for a girl.”
To those on the left who want to keep this meme alive, please watch this video of a woman fall down, get back up and start running again. Then consider whether you really want to tell us you think buying our own birth control is too hard.
 Unlike man parts, lady parts are protected by U.S. law, both figuratively—as set forth in this post—and literally.
 When economists control for educations, occupations, positions, length of time in the workplace, hours worked per week, and other similar variables, the gap narrows to pennies on the dollar. It may not exist at all, since even the remaining gap may be explained by “legitimate wage differences masked by over-broad occupational categories,” lumping together such disparate professions as sociologists and economists or librarians, lawyers and professional athletes.
Thus proclaims Arvin Vohra, Vice Chair of the Libertarian National Committee and a candidate for Maryland’s fourth congressional district. Vohra and I are in agreement that the only effective way to tell politicians they must shrink the size and scope of government is to vote for libertarian candidates (“small l” intended).
Not voting at all accomplishes nothing more than making one’s opinions irrelevant to the people who hold political power. Voting for the “less bad” of the two contenders is guaranteed to continue the policies of the last two administrations.
In contrast, consistently voting only for libertarian candidates pulls the two major parties toward more libertarian positions. That, standing alone, is reason to vote libertarian.
We know the strategy works because it is working! Twenty-five years ago, mainstream journalists rarely mentioned libertarians. Now, not a day goes by that the word is not featured in the headlines of big-name publications or crossing the lips of mainstream commentators.
Google the words “libertarian moment,” and witness how shrilly both the left and the right deny that one is occurring.
Thanks for these shifts goes in some degree to the people who consistently prove their motivation to visit the polls, while simultaneously refusing to cast votes for statist candidates in either party. More people today identify as independents than either Republicans or Democrats. Fifty-nine percent of voters self-identify as “fiscally conservative and socially liberal.” Even under conservative estimates, 15% of voters can be treated as consistently “libertarian” in their positions.
Libertarians (“small l”) have become a swing-voting block as powerful as the religious right.
The best use of that power is to end the conspiracy of false choice and emotional partisanship that operates to keep the two-party oligarchy in power.
The Republocrats have given us federalized schools; a morass of unfunded entitlements and dependency; wild inflation in the cost of education and healthcare; the Drug War, the highest incarceration rate in the world, militarized police, and asset forfeitures; welfare and cronyism for corporations, agribusiness and green energy; a national debt in the trillions; the surveillance state and the erosion of the fourth amendment; expensive, immoral, ineffective and deadly interventions overseas; and restrictions on political speech.
If the foregoing is not convincing enough, consider the following. When Republicans are in power, Democrats support balanced budgets, oppose unfunded spending and resist increases to the debt ceiling. As then-senator Barack Obama said in 2006:
This rising debt is a hidden domestic enemy, robbing our cities and States of critical investments in infrastructure like bridges, ports, and levees; robbing our families and our chil- dren of critical investments in edu- cation and health care reform; robbing our seniors of the retirement and health security they have counted on.
* * *
Increasing America’s debt weakens us domestically and internationally. Leadership means that ‘‘the buck stops here.’’ Instead, Washington is shifting the burden of bad choices today onto the backs of our children and grandchildren. America has a debt problem and a failure of leadership. Americans deserve better.
Or consider this example from Robert Sarvis, Virginia’s libertarian candidate for U.S. Senate:
In 2008, when Republicans were the ones supporting the Export-Import Bank, candidate Barack Obama called it little more than corporate cronyism, but in 2014, it was Democrats lining up to support it. Virginia’s Democratic Senators Mark Warner and Tim Kaine introduced the reauthorization bill, and President Obama signed it.
Republicans are keeping the bank going until 2015 when they can figure out who is is in power, so they know which position to take.
How anyone keeps falling for this shtick is beyond me.
Spoilerism is a feature of third party voting, not a glitch. It communicates to mainstream politicians that we’re here, we vote, and if they want to beat their opponent, they need us to do it. The libertarian moment is nigh. Stay the course.