Obamacare Goes Back on Trial: Supreme Court Agrees to Hear ACA Tax Subsidies Challenge

The U.S. Supreme Court agreed today to rule on
the Obamacare case King v. Burwell, which asks whether the
text of the Patient Protection and Affordable Care Act forbids the
granting of tax credits to individuals who purchased health
insurance on health care exchanges operated by the federal
government. The legal controversy arises from the fact that the
text of the 2010 health care law limits such tax credits to
individuals who purchased their insurance from an “exchange
established by a State.” Do those words cover the federally run and
established exchanges now operating in more than 30 states? We’ll
soon find out.

In its July 2014 ruling in favor of the Obama administration in
this case, the U.S. Court of Appeals for the 4th Circuit held that
while the text of the law appears to cut against the federal
government, the government’s interpretation was nonetheless
entitled to deference. “We cannot discern whether Congress intended
one way or another to make the tax credits available on
HHS-facilitated Exchanges. The relevant statutory sections appear
to conflict with one another, yielding different possible
interpretations,” the 4th Circuit argued. “Confronted with the
Act’s ambiguity, the IRS crafted a rule ensuring the credits’ broad
availability and furthering the goals of the law. In the face of
this permissible construction, we must defer to the IRS Rule.”

The big question now is whether the U.S. Supreme Court will also
defer to the I.R.S. rule, or whether this time around the Court
will deliver Obamacare a death blow.

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Peter Suderman Reviews Interstellar

I liked this one, despite its
flaws:

How to describe “Interstellar?”

Is it a chilly hard sci-fi adventure in the tradition of “2001:
A Space Odyssey?” A metaphysical space opera that frequently
embraces go-for-broke sentimentality? A technically proficient,
crowd-pleasing blockbuster in the tradition of James Cameron and
Steven Spielberg?

The best answer to all of the above is yes.

But mostly “Interstellar” is a Christopher
Nolan movie. Like “Memento,” “The Prestige” and “Inception,”
it’s a complex puzzle-box narrative about the nature of time and
identity with a grand scope, sweeping visuals, and lots and lots of
heady dialogue. All of the tics and tendencies that made Mr.
Nolan’s previous films thrilling and awe-inspiring are present and
magnified, as are those that were frustrating.

It’s a bigger, bolder and more captivating movie than
anything Mr. Nolan has made before, and also a more
flawed one.

Mr. Nolan’s Batman trilogy imagined the superhero as a lone
crusader out to save the crumbling city of Gotham. “Interstellar”
takes that basic idea and expands it to a planetary scale: It’s not
a city that’s dying, but the entire Earth.

In the near future, dust storms have ravaged the planet, and a
blight is slowly strangling the ability to grow food. Invention and
innovation are discouraged as frivolous, and schools teach the moon
landing as a hoax.

It’s a sci-fi riff on economic malaise and great stagnation —
with the power of human will and ingenuity offering the only
possible salvation.


Read the whole review
 in The Washington
Times

One thing I didn’t really address at length in my review is how
much Interstellar plays like a sharp retort to 2001: A
Space Odyssey
.

The movie is very much a riff on the same ideas, and it
references Stanley Kubrick’s film repeatedly in both its story and
its visuals. It’s clearly a movie that Christopher Nolan respects
quite a bit. But it’s also one that he seems to have some
fundamental disagreements with in terms of outlook.

Kubrick’s movie was chilly and removed, a technically brilliant
vision of humanity’s cosmic helplessness. It was a movie that
downplayed human relationships (think of the sequence at the
beginning when a disinterested father calls his daughter on her
birthday), and emphasized humanity’s inability to master its own
fate. Our technology turns on us. Our ability to understand the
universe eventually reaches its limit. It’s a movie about how small
humans are, and how little they can accomplish.

Nolan’s film is cold at times, especially in the way it treats
its space vistas, and it’s technically brilliant in its own way,
relying heavily on models and location shooting instead of computer
animation. But Interstellar is also unabashedly
sentimental (sometimes overly so), especially with regards to
parent-child relationships, and it ends on a note of triumphant
humanism. 2001 is the better movie, but there’s quite a
bit to like about Interstellar’s determined
optimism. 

Read Kurt Loder’s review for Reason here

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Dallas Cop Allegedly Threatens to Kill His Children, Arrested on Misdemeanor Harassment Charge, Placed on Paid Leave

Casarae WombleLast Friday detectives from the Child Abuse Squad
of the Dallas Police Department arrested Officer Casarae Womble of
the Metro Task Force, on a charge of misdemeanor
harassment
, and was placed on paid administrative leave pending
an “administrative investigation” by the Internal Affairs Division,
according to a Dallas police spokesperson.

The Dallas Morning News reports the
details of the allegations
:

Police said in court documents that Womble called the mother of
his child about their break-up and had a conversation that was
“quite heated.”

The woman, who was out of state for training but lives with
Womble, recorded the call using a cellphone app, police said.

Womble allegedly threatened to hit the woman at her “core.” He
then allegedly asked her, “what if you have to go to two
funerals?”

“Whose funerals?” the woman replied.

“You figure it out,” Womble said, according to the police
account. “I got two in my house right? I’ll hit you in the
core.”

Womble was released on $500 bond, the
base amount
for a Class B Misdemeanor in Texas.

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Feds Punish Princeton For Liking Due Process Too Much

PrincetonEarlier this week, the U.S.
Department of Education
wrapped up its investigation
of Princeton University’s sexual
harassment and assault policies. The findings were unsurprising,
though still striking: the government essentially accused the
university of violating federal anti-discrimination law by
extending too much due process to accused
students.

Princeton had been one of the last hold-outs on the standard of
proof in college rape trials. The university required adjudicators
to obtain “clear and convincing” proof that a student was guilty of
sexual assault before convicting him. That’s too tough, said DOE.
As
part of its settlement
, Princeton is required to lower its
evidence standard to “a preponderance of the evidence,” which means
adjudicators must convict if they are 50.1 percent persuaded by the
accuser.

Princeton’s old policy was also criticized by DOE for allowing
accused students to appeal decisions, but not accusers. Both this
practice and the evidence standard were revised under Princeton’s
new, DOE-compliant policy.

Both of these are worrying changes for civil libertarians. Using
a low burden of proof in college rape trials is very problematic,
since adjudicators are poorly equipped to determine innocence or
guilt in the first place. They just don’t have the right training.
That’s part of the reason
28 Harvard University law professors
have spoken out against
their own campus’s new, similarly unfair policy.

And wile DOE claims that Title IX of the Education Amendment of
1972 requires colleges to use the preponderance of evidence
standard, no court or Congress has ever weighed in on the matter.
As Joe Cohn of the Foundation for Individual Rights in Education
told
InsideHigherEd
:

While the Department of Education has the ability to determine
what exactly violates Title IX and potentially pull federal funding
from colleges who are in violation, preponderance of evidence has
not been codified by Congress. The Campus SaVE act does not dictate
what standard a college should use, only requiring that
institutions disclose what that standard is. Joe Cohn, legislation
and policy director at the Foundation for Individual Rights in
Education, said that the department is “on shaky ground when they
insist that preponderance of evidence is the only acceptable
standard of proof under Title IX,” because, legally, it is only the
current administration’s interpretation of the law.

“But it doesn’t matter if their interpretation is off by an inch
or a mile, because who is willing to be a test case on that,” Cohn
said. “With federal funding at stake, institutions are too afraid
to engage and criticize a regulating body. This type of chilling
atmosphere is not helpful to anyone. Nobody is willing to take a
stand.”

On the other side, Laura Dunn, executive director of victims’
advocacy center SurvJustice, hilariously told InsideHigherEd that
“ingrained male privilege” was the only reason for using a lower
evidence standard. Thankfully, the federal government is beating
that tendency out of colleges, she said:

“It’s mostly at these elite schools that we see a real
pushback,” Dunn said. “To put it bluntly, I think it’s arrogance
and ingrained male privilege, but I think they’re starting to get
the message.”

It’s very discouraging to see support for robust due process
written off as a symptom of male privilege. Of course, plenty of
women are concerned that these new policies, far from chipping away
at male privilege, unfairly punish men. (I
interviewed one of them
for my August article on criminalizing
campus sex.)

As for Princeton’s former policy of only allowing accused
students to appeal decisions, while that may seem unfair at first
glance, it actually makes sense. Hans Bader—a senior attorney at
the Competitive Enterprise Institute and former Office of Civil
Rights lawyer—pointed out to me that the American criminal justice
system typically permits only defendants to appeal verdicts. This
follows from the principle that accused persons should have every
opportunity to prove they are innocent, but once they are
found innocent, they can’t be retried.

“The Education Department’s claim that it violates Title IX to
allow the accused but not the accuser to appeal is hard to
reconcile with the fact that courts have never construed civil
rights laws to ban that,” Bader told Reason.

Unfortunately, no legal authority will ever have the chance to
examine DOE’s very due-process-unfriendly interpretation of the
law, because colleges are either too afraid of standing up to the
feds, or have an ever-weakening commitment to civil libertarian
values. Or both.

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Kerry to Talk With Russia Tomorrow. Putin Sends Tanks Into Ukraine Today.

Russia is making no effort to
conceal its invasive war in Ukraine anymore. Secretary of State
John Kerry will meet with Russian Foreign Minister Sergei Lavrov
tomorrow to discuss the situation.

A Kremlin source
tells
reporters that the two will have an unofficial “sideline”
meeting in Beijing at the Asia-Pacific Economic Cooperation summit
tomorrow. The two have met nearly a dozen times this year, but
tensions between the U.S. and Russia have only escalated, as has
the bloody, brutal war against Ukraine.

Kerry, as well as German Chancellor Angela Merkel, this week

called
for more economic sanctions against Russia for
supporting sham elections in Ukraine’s war-torn east.

President Barack Obama is also set to have an
unofficial meeting
with Russian President Vladimir Putin at the
same summit, as well as at the G20 summit in Brisbane soon
thereafter.

Is this going to be too little, too late?

Russian tanks and ballistic-equipped units are reportedly
already crossing into Ukraine.
From Reuters
:

Thursday’s cross-border incursion, if confirmed, is a
significant escalation of a conflict that has killed more than
4,000 people since the separatists rose up in mid-April and would
call into question Russia’s commitment to a two-month-old ceasefire
deal… .

“Supplies of military equipment and enemy fighters from the
Russian Federation are continuing,” [Ukrainian] military spokesman
Andriy Lysenko told a briefing in Kiev, describing a column that
included 16 big artillery guns and 30 trucks carrying troops and
ammunition as well as 32 tanks.

Putin was just
declared
the world’s most powerful person by Forbes.
Obama came in second place.

In spite of much admiration,
even from Fox News hosts
, for his strongman exterior, Putin may
have a less coherent plan than he appears. One exiled oligarch who
used to be a close aide to the Kremlin Gremlin tells
Time this week that the autocrat is just winging it.
“Putin is not someone who sets strategic plans; he lives
today.”

And, his land-grab is costly. Russia’s economy is tanking to
recession levels, partially due to American and European Union
sanctions. Today, against the dollar Russia’s currency is worth

41 percent less
than it was on January 1. Russians wealthy and
educated enough to flee
are doing so
.

Read Reason‘s
coverage
of the Cold War-esque conflict between the Obama and
Putin administrations. Check out this funny Russian propaganda in
which
Putin spanks Obama
.

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Steven Greenhut: Stockton Bankruptcy Ruling Not as Bad as It Looks

When it comes to pension
reform, Steven Greenhut writes, I’ve long been a pessimist given
the realities in the Capitol and courts. A federal judge’s
decision in part two of the Stockton bankruptcy case last
Thursday, approving an exit plan that doesn’t chip away at the
city’s looming pension debt, at first seems to warrant even more
negativism. But it’s probably not as bad as it seems for those who
want these municipal debts tamed so that public services can be
restored and residents aren’t stuck with escalating tax burdens.
Sure, Stockton officials chose not to reduce pensions, but other
cities are free to address them in the future, thanks to the first
part of the decision the judge issued early this month.

View this article.

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Associated Press to FBI: Stop Pretending to Be Us

Sexy journalist costume. Post-Halloween sale, 50 percent off.In 2007, an FBI agent pretended
to be a journalist from the Associated Press to trick an anonymous
suspect into clicking on an e-mail link that installed malware to
track the guy. This was all done to catch a guy who launched
cyberattacks and sent in bomb threats to a Seattle high school.

The Associated Press is not happy. They’ve already had to deal
with the Department of Justice quietly
seizing their phone records
in order to track down a leaker,
which obviously serves (possibly deliberately) to scare away other
potential federal leakers or whistleblowers. Now they have to worry
that they’ll be unable to interact with anybody engaged in any sort
of sketchy behavior if they think they’re actually corresponding
with a federal agent.

The New York Times
took note
of this behavior, as well as another incident where
the FBI, unable to get a warrant to search Las Vegas hotel rooms to
investigate possible illegal gambling, shut down their targets’
Internet and then posed as repairmen in order to gain access. In an
editorial, the Times worried that these deceptive methods
would lead to wider constitutional abuses.

FBI Director James Comey responded that their Associated Press
impersonation was completely legal, and besides, they didn’t really
publish an actual story anywhere posing as the press. Only their
suspect interacted with the fake reporter. But even though it was
completely legal then, maybe there would be more oversight now,

Comey admits
:

That technique was proper and appropriate under Justice
Department and F.B.I. guidelines at the time. Today, the use of
such an unusual technique would probably require higher level
approvals than in 2007, but it would still be lawful and, in a rare
case, appropriate.

So it was legal at the time, even though we’ve now put in more
steps before they can do this, so what’s everybody worried
about?

The Associated Press and the Reporters Committee for Freedom of
the Press is not having it. They’ve sent a letter to the Department
of Justice demanding they
stop impersonating the media
. Via CNN:

“The utilization of news media as a cover for delivery of
electronic surveillance software is unacceptable. This practice
endangers the media’s credibility and creates the appearance that
it is not independent of the government,” it said.

“It undermines media organizations’ ability to independently
report on law enforcement. It lends itself to the appearance that
media organizations are compelled to speak on behalf of the
government.” …

“The FBI may have intended this false story as a trap for only
one person. However, the individual could easily have reposted this
story to social networks, distributing to thousands of people,
under our name, what was essentially a piece of government
disinformation.”

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Fear Of Cannabis Commerce Didn’t, Won’t, and Shouldn’t Stop Legalization

The voters who
approved
marijuana legalization in two states and Washington,
D.C., on Tuesday were unswayed by warnings that capitalism and
cannabis are a dangerous mix. In my latest
Forbes column, I probe the weaknesses of that
message. Here is how the piece starts:

Three marijuana legalization initiatives were on the ballot this
week, and all
three won
. That’s a better outcome than I was expecting. I was
surprised when voters in Colorado and Washington approved
legalization
 two years ago, and I was surprised again when
voters in Alaska, Oregon, and Washington, D.C., followed suit.

Partly that’s because, after 25 years of advocating drug
legalization (along with various other unpopular positions), I am
accustomed to  losing. But it’s also because I had looked at
the polling
data
. The victory in D.C. seemed like a pretty sure thing,
given the legalization initiative’s 2-to-1 advantage in
September
survey
 commissioned byThe Washington Post. But
the poll numbers were much closer in Oregon and Alaska.

There were other reasons for low expectations. I doubted that
Oregonians and Alaskans would be eager to imitate Colorado and
Washington so soon after the votes there, especially given that
legal recreational sales began only this year in both states. And
like the activists who are waiting until 2016 to push initiatives
in states such as California and Massachusetts, I thought
legalization would have a better shot in a presidential election
year.

Judging from the ebullient reactions I saw on Twitter, I was not
the only antiprohibitionist who was pleasantly surprised by
Tuesday’s amazing cannabis trifecta. Yet anti-pot activist Kevin
Sabet—who a week earlier had joked, in
an interview with The New York Times, that “it
looks bad; I want to be on the other team”—claimed “this
was not the complete slam-dunk the legalization groups expected.”
Later Sabet, co-founder and president of the prohibitionist group
Project SAM, told the
Associated Press, “I think we’ve slowed the legal-marijuana freight
train.”

As you probably have figured out by now, I am not given to
optimism about the prospects for drug policy reform. But Sabet’s
spin seems delusional even to me. If the legalization train has
slowed, that’s only because so many people are clamoring to get
aboard. And if Sabet has failed to stop it, that’s because he
unrealistically expects voters to be horrified at the very thought
of a profit-driven cannabis industry.


Read the whole thing
.

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4 Things to Know About Obamacare After the Midterms

Over the course of this year’s midterm campaign,
Republicans ran endless ads against the Affordable Care Act, the
health care law better known as Obamacare. In weeks leading up to
the vote, it was the top Republican ad issue for Senate campaigns
by far.

So now that Republicans have won majority control of the Senate,
and increased their majority in the House, what might that mean for
Obamacare?

Here are four things to know and watch out for: 

1) Obamacare continues to be political poison for
Democrats.
Of the 60 Senators who voted for Obamacare in
December of 2009, 24 are now out, as The Washington
Examiner
’s Philip Klein
points out
. Now, some of them were replaced by Democrats,
but  and not all of the turnover is strictly the fault of
Obamacare. But the retention rate for upper-chamber legislators who
voted for the law is not strong, and the majority of those who are
gone were replaced by Republicans. It’s worth singling out the
Arkansas Senate race here. Incumbent Democrat Mark Pryor was the
only Democrat in a close Senate contest to run an ad that could
reasonably be described as supportive of Obamacare. Tellingly, the
ad didn’t name the law at all, but it did describe support for some
of its benefits. Pryor lost,
pulling in just 39 percent of the vote
. In contrast, Ed
Gillespie, the GOP Senate candidate in Virginia, was expected to
lose by as much as 9 points. He was the rare GOP Senate candidate
to endorse a relatively detailed Obamacare plan—and he ended up
losing in a squeaker of an election by
less
than a single point.

Pinning down the exact impact of Obamacare on the midterms is
obviously difficult, but there’s solid evidence suggesting that in
2010, voting for the law
cost
Democrats an estimated 25 seats in the House—enough that
they lost control of the lower chamber because of it. Regardless of
exactly how much Obamacare hurt Democrats politically, it’s
virtually impossible to make a case that it helped.

2) The bulk of Obamacare is not going to be
repealed.
Republicans have promised repeatedly to repeal
Obamacare, and in a joint Wall Street Journal op-ed, GOP
Senate Majority Leader Mitch McConnell and House Speaker John
Boehner put “renewing our commitment to repeal Obamacare” near the
top of the party’s priority list. Expect to hear an awful lot about
various
strategies
for using the reconciliation process, which would
allow Republicans to move a partial repeal bill out of the Senate
and to the president’s desk with a simple majority vote. The
details are complicated, and even experts don’t know for certain
exactly how much of Obamacare could be attacked using this
process.

But at least in the short term the particulars don’t matter all
that much. Regardless of the party’s commitment to repeal or its
procedural savvy, the vast majority of the law isn’t going
anywhere, because Obama isn’t going to sign a bill that repeals it.
If it wasn’t already perfectly clear that he wouldn’t agree to
scrap his signature accomplishment, he reiterated his position at a
press conference this week. “Repeal of the law—I won’t sign,”

he said
. That’s that.

McConnell knows this. Boehner knows. Republicans aren’t actually
expecting to fully take the law down. Instead, they hope to keep
pressure on the president regarding the unpopular law, highlighting
the GOP’s continued opposition and Obama’s continued support.

3) Republicans will likely target specific components of
the law—and might actually succeed in taking a few of them
out.
Most of the law will stay in place. But Republicans
might be able to nibble around the edges. At the press conference
this week, President Obama indicated that he might be willing to
accept some changes to the law, so long as they didn’t impact
coverage. What sort of small tweaks might Republicans aim for? The
most likely item on the list is a repeal of the law’s medical
device tax, which is
opposed by many Democrats
—particularly those who represent
states where the medical device industry has a strong presence.
Republicans will try to make an issue out of the individual mandate
which is widely disliked, but Obama won’t let that one get through.
The employer mandate, however, might be a successful target: The
administration has delayed and undercut the provision on multiple
occasions, and liberal policy shops have argued that it’s not
necessary.

4) There are still more glitches to come. At
the press conference, Obama was adamant that the federal health
insurance exchange, which failed so thoroughly when it opened last
year, would work well. “We’re really making sure that that Web site
works super well before the next open enrollment period,” he said.
“We’re double- and triple-checking it.” There’s no doubt that the
exchange, the front end of which was reasonably functional by the
end of last year’s open enrollment period, will perform
significantly better when this year’s open enrollment period starts
later this month. But much of the back-end functionality—the guts
of the system—remains incomplete, and that’s going to cause some
problems. As The Wall Street Journal
reported
earlier this week:

Consumers who bought policies on the exchange for 2014
and switch to a different insurer for 2015 could end up enrolled in
two plans, with bills for both, in January, according to two
industry officials. Others who stopped paying premiums for their
plans this year could find themselves automatically re-enrolled in
those plans for 2015 regardless of whether they want them.

Meanwhile, lower-earning Americans who receive federal tax
credits to offset the cost of their coverage might not get a form
they need to file their 2014 taxes because the federal government
has an incorrect address for them, these officials say.

 These issues are likely to have an impact on tens of
thousands of people, according to the report, and some of them
won’t be apparent until tax time next year. Obamacare’s second open
enrollment period will be far smoother than last year’s, but it
will still be a bumpy ride.

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Friday A/V Club: Legalizing Liquor-By-the-Drink

On Election Day, as my colleague Jacob Sullum noted
earlier this week
, voters considered, and in some cases passed,
measures to strike down some of the legal relics restricting the
alcohol trade. In honor of those battles, here’s a vintage ad on a
similar theme.

It dates from the 1970s, when one of the hot issues in North
Carolina politics was whether commercial establishments should be
allowed to sell “liquor by the drink.” This had been banned across
the state in the Progressive Era; in 1973, a referendum proposed to
end the statewide rule and let counties decide the issue for
themselves. Opposition to this idea was led by the Christian Action
League
, but because they knew they needed more than just the
evangelical vote they created a new group called
People Who Care About North Carolina
that focused on secular
arguments.

In this case, the commercial highlights the idea that allowing
restaurants to serve mixed drinks will lead to more drunk driving.
But another argument creeps in at the :19 mark, when a woman
explains that that she’s lived in Atlanta—that sinful urban
wasteland—”and I don’t want a bar on every street corner in
our town.”

The anti-liquor forces won that round, but it was a temporary
victory. In 1978 the legislature passed a law devolving the
decision to the counties, and voters in several sections of the
state promptly marched to the polls to
legalize it
. That left Oklahoma as the last segment of the
union with a statewide ban; it in turn folded in 1984.

(For past editions of the Friday A/V Club, go here.)

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