King v. Burwell or, if you Prefer, Just Rewrite the Law if You Don't Like It

[jgiffin]

After returning to the US after a week-long vacation, I noted the Supreme Court had issued two really, really interesting opinions. This one says that the word "State" in a statute really means "State or Federal" because, well, if it didn't then the statute would be bad law. http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf

What? Don't believe me? Here is the best the justices could do to rationalize their purely political and ideological decision.

When analyzing an agency's interpretation of a statute, we often apply the two-step framework announced in Chevron, 467 U. S. 837. Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency's interpretation is reasonable. Id., at 842–843. This approach "is premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps." FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159 (2000). "In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation." Ibid.

This is one of those cases. The tax credits are among the Act's key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep "economic and political significance" that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly.

Let's cover this just briefly - read the dissent for a more complete and scathing indictment. First, the term "State" is not ambiguous. It is quite well defined BY THE STATUTE, ITSELF, to include only the 50 states (plus DC). Done. Go no further. No ambiguity. The Court responds with "gosh, though, if the statute means what it says then it doesn't work." Yes. Precisely. It doesn't. Instead of acknowledging Congress should, perhaps, not tinker with 12,000 page laws, the Court just re-fucking-writes the damn thing (again) in an effort to revive an already quite desiccated patient.

Whatever. It is what it is. The checks and balances established by the Constitution (i.e., legislative, judicial, and executive branches) have been obviated by allegiance to political parties and ideological concerns. Long live Big Brother.

Entirely extraneous and gratuitous comment: why the fuck does Ginsburg still get a vote when she falls asleep during the state of the union address and shits herself on the bench? No reasonable person would trust her to hand out change on a toll road, much less make major policy (notice I avoided the phrase "legal") decisions for a nation of 300 millions.

[DigitalBuddha]

This aggression will not stand, man!!!

I think the crazy fucks on the High Court are more or less re-writing the US Constitution to suit their fancies, and making, effectively, law from the bench. Most undude of them!! The founding dudes of this nation would yell "OVER THE LINE" for sure, mang! Same sex marriage laws should be a state matter, not a Federal matter. Where in the Constitution is the Fed given (delegated) the right to decide who can marry who?

Amendment 10, US Constitution...........

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

That's just like my opinion, man.

[BikerDude]

My 2 cents.
You know I can't help but see the court's decision as the libertarian side.
I don't really see this as court activism when the decision ensures  peoples freedom to choose for themselves how to live.
I'm straight, but I wouldn't dream in a million years of telling gays how they should or shouldn't live.
I mean the term that comes to mind is "ABIDE".

https://www.youtube.com/watch?v=NwAuZJsDXQE

[TheBigGandalfowski]

This aggression will not stand, man!!!

I think the crazy fucks on the High Court are more or less re-writing the US Constitution to suit their fancies, and making, effectively, law from the bench. Most undude of them!! The founding dudes of this nation would yell "OVER THE LINE" for sure, mang! Same sex marriage laws should be a state matter, not a Federal matter. Where in the Constitution is the Fed given (delegated) the right to decide who can marry who?

Amendment 10, US Constitution...........

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

That's just like my opinion, man.

Well the way I see it, and this is also just like my opinion man, but I think there's a blurry gray area when it comes to heavy topics like Gay marriage, race issues, etc. I'm all for churches being able to opt out of the ceremonies and they shouldn't be harassed into performing gay weddings. That's for sure. And I'm not saying the government should make laws to control the states...but what we have here is a moral issue. I just think the constitution needs to be amended when people's rights are being stepped on by the states. If a state tried to make slavery legal again, well...well we saw what happened the first time around a couple hundred years ago. But you just can't have slavery goin' on in a modern world, man. If someone doesn't want to perform a gay wedding, they don't have to. But, if someone DID want to before the recent ruling, they couldn't, and that's an imbalance. Pursuit of happiness and all that, Dude.

[jgiffin]

To be clear, this opinion (King v. Burwell) wasn't the one addressing gay marriage. However, I do think the gay marriage opinion was dropped to overshadow the Obamacare one. No one is paying attention to the more important issue because they've all been taken in by the shiny quarter on the sidewalk.

I'm cool with gay marriage. But the Court really shouldn't pretend it's a Constitutional right. It isn't. I've read the thing. We can MAKE it a Constitutional right. We can pass a statute authorizing it. We can do any number of things to effect this result. But if we allow the Court the power to read such a "right" into the Constitution, we've abrogated a terrible authority to an entity which is fundamentally corrupt and incapable of wielding it responsibly.

It's possible to view the decision as recognizing the libertarian concept of negative rights. I'm not sure I agree with that interpretation - primarily because every-fucking-thing else this Court does is 100% about empowering big government and political parties. The decision, instead, seems to stem from a positive right granted to a minority interest more than a restriction upon government. But I need to read it first. I'm just going by the reporting. And the reporting is, if recent history is any indication, misleading and fraudulent.

[TheBigGandalfowski]

It's possible to view the decision as recognizing the libertarian concept of negative rights. I'm not sure I agree with that interpretation - primarily because every-fucking-thing else this Court does is 100% about empowering big government and political parties. The decision, instead, seems to stem from a positive right granted to a minority interest more than a restriction upon government. But I need to read it first. I'm just going by the reporting. And the reporting is, if recent history is any indication, misleading and fraudulent.

Interesting, that's fucking interesting, man. I admit, I'm very pro LGBT, so this could be clouding my judgment with bias. Are there any articles or books you might suggest for me to read about the concept of negative rights?

[jgiffin]

It's possible to view the decision as recognizing the libertarian concept of negative rights. I'm not sure I agree with that interpretation - primarily because every-fucking-thing else this Court does is 100% about empowering big government and political parties. The decision, instead, seems to stem from a positive right granted to a minority interest more than a restriction upon government. But I need to read it first. I'm just going by the reporting. And the reporting is, if recent history is any indication, misleading and fraudulent.

Interesting, that's fucking interesting, man. I admit, I'm very pro LGBT, so this could be clouding my judgment with bias. Are there any articles or books you might suggest for me to read about the concept of negative rights?

Sure, dude. Let me hit you with some sources before I take a swing at demonstrating how negative rights and libertarian philosophies arrive at the position you naturally endorse. Unfortunately, it's not light reading - I'm not aware of any book that winnows it down that narrowly or that neatly. It may help to acknowledge that, in many cases, negative rights are the same thing as natural rights or classically liberal rights.

1.  Locke, John. Two Treatises of Government.
2.  Mason, George. Virginia Declaration of Rights.
3.  Paine, Thomas. Rights of Man.

I'm currently reading The Libertarian Mind: A Manifesto for Freedom by David Boaz. So far, it's proven a nice little compendium for libertarian and negative rights oriented positions. I'm sure there is other stuff out there, I'm just not thinking about them.

Now, I hear you on the pro-LGBT thing. But libertarian philosophy is perfectly in accord with these, and other, rights. At essence, a negative right is the right to be left alone. Amendments preceding the New Deal era were essentially negative in nature; that is, they restricted governmental interference with private action. After the New Deal, well, yeah, shit hit the fan. They actually IMPINGED on the natural rights of some people by requiring them to subsidize the artificial "rights" of other people. I think we're seeing a third-wave evolution of that process now. It's all about identity politics, special interests, and voting blocks. The extent of your rights is equal to the amount of political pressure you can bring to bear.

Heretofore, the concept of negative rights has been the best practical limitation on governmental power. Taking things back, to my mind it originated (or at least took modern form) with Magna Carta in 1215. That was an early (western) example of a ruling class (in that case, the king) conceding limitations to power. Now, it was incredibly more complicated than that (King John didn't voluntarily endorse it, the most critical protections were extended only to nobility and clergy, and it was subsequently modified, etc.) but still a very fine start. To make things more complicated, things we now consider "conservative" or "libertarian" are really more akin to what was previously called "classical liberalism." The left (now calling themselves "liberals") has relentlessly misappropriated language for its own purposes.

Sadly, albeit predictably, the modern ruling class (and especially the progressive movement) are not satisfied with the chains fastened by the Constitution. You hear it, particularly through mouthpieces like Obama and Warren, trying to shift voluntary responsibilities and moral obligations into affirmative "Constitutional" rights simply by saying they are.

[BikerDude]

It's possible to view the decision as recognizing the libertarian concept of negative rights. I'm not sure I agree with that interpretation - primarily because every-fucking-thing else this Court does is 100% about empowering big government and political parties. The decision, instead, seems to stem from a positive right granted to a minority interest more than a restriction upon government. But I need to read it first. I'm just going by the reporting. And the reporting is, if recent history is any indication, misleading and fraudulent.

This is true.
It's not typical of this court.
But since there is little or no monetary interest involved it's a coin toss.
Doesn't cost anything except perhaps a compromise of small c "conservative values" (which is a laugh since the real capital C conservative principles are actually about keeping government out of people lives. The new conservative thing is keeping government out of "my life" and in others not like "me")

[BikerDude]

Just for the record I am not a libertarian.
But I do find a libertarian bent an improvement upon the current situation where government works to benefit just a small portion of citizens.
Ideally I'd like to see a government active in benefiting the larger populace in positive ways. (Think public works, education, research etc...)
Of course this won't happen without huge changes at a grass roots level.
The capitalists are systematically tearing down the temple.
Like the old saying of the robber barons goes "After me the flood" taken from Louis XV

Ultimately, Louis XV failed to overcome [serious] fiscal problems, mainly because he was incapable of putting together conflicting parties and interests in his entourage. At Versailles, the king and the nobility surrounding him showed signs of boredom, signalling a monarchy in steady decline. Worse, Louis seemed to be aware of the forces of anti-monarchism threatening his family's rule and yet failed to do anything to stop them. Popular legend holds that Louis predicted, "After me, the deluge" ("Apr?s moi, le d?luge"). In fact this quotation is more precisely attributed to Madame de Pompadour, although it is not certain that even she ever said it.

[TheBigGandalfowski]

At essence, a negative right is the right to be left alone. Amendments preceding the New Deal era were essentially negative in nature; that is, they restricted governmental interference with private action. After the New Deal, well, yeah, shit hit the fan. They actually IMPINGED on the natural rights of some people by requiring them to subsidize the artificial "rights" of other people. I think we're seeing a third-wave evolution of that process now. It's all about identity politics, special interests, and voting blocks. The extent of your rights is equal to the amount of political pressure you can bring to bear.

Now, I agree with you there, man. I do believe anyone can play a victim and get laws changed in their favor just by repeating slogans over and over. No doubt. But again, when it comes to Same Sex marriage, doesn't a ban on it federally impede the rights of gays? Who's right is it to be left alone? The angry religious paraquat group? I don't know man, I sort of see this as a victory for freedom. Is true freedom the right to take someone else's away? There's just a lot of gray there to me. Now, if they made a ruling that outlawed wearing Isamic garb in public, now that would be telling some people they can't go on doing what they want to do. But with this ruling I feel like we are telling people that they HAVE the right to do something they couldn't before.
But anyway, I put those books on my reading list. Thanks for the input, brother.

[jgiffin]

Now, I agree with you there, man. I do believe anyone can play a victim and get laws changed in their favor just by repeating slogans over and over. No doubt. But again, when it comes to Same Sex marriage, doesn't a ban on it federally impede the rights of gays? Who's right is it to be left alone? The angry religious paraquat group? I don't know man, I sort of see this as a victory for freedom. Is true freedom the right to take someone else's away? There's just a lot of gray there to me. .

I think I get to the same place via a different route. I don't think the federal government should be involved in the marriage business one way or the other. It's just not a power delegated to it by the Constitution. Therefore, it shouldn't be able to prohibit (or, for that matter, endorse) gay marriage, hetero marriage, polygamy, or whatever. Now, if one group or the other wants to amend the Constitution in accordance with their views - fine, do it. But let's not pretend it's already in there.

[jgiffin]

Ideally I'd like to see a government active in benefiting the larger populace in positive ways. (Think public works, education, research etc...)

But that's precisely where the problem starts. Anything the government does just takes something from certain individuals and redistributes or reapportions it to other individuals as the government sees fit. This results in serious problems. Here are just a few.

First, it impinges on individual liberties. The government is essentially saying "We know how to use your property better than you, so give it over." By what right? Just because it's supposed to go to some worthy cause? If the cause is worthy, then individuals will support it of their own volition. If not, then why are we so sure it's a worthy cause?

Second, it distorts the natural market for goods and services. Example: People bitch about high rents. Government institutes rent control. Landlords respond by leaving the market, letting their properties run down, or taking money under the table. So what just happened? We tried to lower rents and - instead - ended up with less housing, ghettos, and grift. Yes, let's have more of that.

Third, the right to redistribute necessarily corrupts. Let's take research. The government wants to fund it. Who, then, is selected for the grants? More importantly, who is selecting them? Oh, right, politicians. Well, they have their own agendas. Maybe a solar company is my main contributor. Well, a paper detailing the problems with wind and wave technologies would be pretty helpful. Let's pay that guy. Even worse, this is how we get lobbyists. I would compare them to whores but don't want to offend any whores.

This all gets at the central problem. There are two ways to obtain money. (1) You can offer a good or service for which others voluntarily exchange money. (2) You can compel others to give you money by either brute or legalized force. The first method is productive, I think moral, and what we typically call "work." The second method is not productive - it is redistributive. We call it robbery when brute force is used or politics when legalized force is used. Frankly, I find robbery slightly less offensive on the basis of its honesty and the availability of retaliation. 

[DigitalBuddha]

A thought...........

The US Constitution DOES NOT guarantee "equal rights," or that everyone is "equal;" you will find that NO WHERE in the Constitution. IT DOES, however, guarantee that everyone in the United States is EQUAL UNDER THE LAW (14th Amendment), that is to say that a LAW applies equally to everyone it affects. If the LAW in a state defines a marriage as ONE MAN and ONE WOMEN, all men and women UNDER THAT LAW are equal under it.

[jgiffin]

Yep. We started with a (commonsensical) notion that all persons are "equal under the law."

They later decided that meant people were protected against valid laws which applied equally but had a "disparate impact" on certain groups.

Now they're more than halfway to guaranteeing "equal outcomes" regardless of merit, work, aptitude, or other individual factors.

[DigitalBuddha]

Fuckin' eh!