Editorial: Repeal ObamaCare and let states handle health insurance

The bad news for those who live in Clark, Carson City and Nye counties is that companies offering ObamaCare-compliant health insurance policies have requested 38 percent premium increases in 2018. The good news for those in the rest of Nevada is that their ObamaCare premiums will not be going up because there are no companies offering such policies.

In pulling out of those counties Anthem stated the “individual market remains volatile” and “planning and pricing for ACA (Affordable Care Act)-compliant health plans has become increasingly difficult due to a shrinking and deteriorating individual market …”

As libertarian economist F.A. Hayek warned years ago, central planning, such as ObamaCare, which dictates to private companies to whom they must sell their services and at what price, cannot possibly work. There are too many abstract factors that only a free market can account for. Witness the lack of willing ObamaCare insurance sellers in 14 Nevada counties.

Congressman Mark Amodei, who represents six of the counties without an ObamaCare option, said, “Sadly, this news isn’t shocking. It represents another symptom of the sickness that is killing America’s health care system. While there are plenty of arguments on how to fix this, regardless of your political views, it’s clear the status quo isn’t working and is in need of serious repair. Once again, I’m left wondering, when is Congress going to put the issue ahead of the politics? I will continue to focus on the facts and the policy options to be applied in Nevada. As always, my goal is to ensure that any reform package increases Americans’ access to quality and affordable care, while paying respect to rural communities like ours that are being hit the hardest.”

The House version of ObamaCare repeal and replace is currently stalled in the Senate, where Nevada Sen. Dean Heller is balking at supporting it due to the potential reduction in Medicaid funds for Nevada. Gov. Brian Sandoval opted to expend Medicaid under ObamaCare, and Heller is reluctant to retrench.

Apparently Nevadans are of two minds when it comes to deciding what to do about ObamaCare.

According to a recent American Medical Association survey, when asked straightforward whether ObamaCare was a good or bad idea, fully 45 percent of Nevadans say it was a good idea, while 37 percent say it was a bad idea.

But when you get down to whether Congress should change that law, the opinions are more varied. When asked, “As you may be aware, in order for the health care legislation passed by the House to become law, the United States Senate must review and pass the legislation. Do you think the U.S. Senate should …”

Seven percent said pass the House legislation as is; 23 percent said make minor changes to it and pass it; 27 percent said make major changes to it and pass it; 33 percent said Congress should not pass any part of the House legislation, thus leaving ObamaCare in place

So, 33 percent say leave it as is, while 57 percent call for some changes.

But when asked about specific changes being proposed, the Nevadans surveyed largely opposed those changes.

They opposed dropping the mandate to buy health insurance. They opposed dropping various federal subsidies and eliminating the ObamaCare requirement that all health plans sold must provide a standard set of government-established benefits, including mental health services, addiction treatment, maternity care and preventive health services with no out-of-pocket costs.

Nevadans favor providing federal funding for states to cover people with pre-existing conditions, the survey says.

Frankly, Congress should repeal ObamaCare and turn over policing of health insurance to the states, which under the 10th Amendment is the proper jurisdiction for wielding power in this arena. Congress should merely exercise the power of the Commerce Clause to assure health insurance can be sold across states lines.

Leaving the status quo in place is not an option, as rising premiums and deductibles and a lack of willing sellers attests.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Nate Beeler cartoon

Newspaper column: How to make use of those Yucca Mountain tunnels

Obama and Reid tour Nellis AFB solar panel site. (R-J pix)

Sometimes things just naturally come full circle.

For decades Nevada’s former U.S. Sen. Harry Reid constantly pounded on two themes: Blocking nuclear waste from being stored in Yucca Mountain in Nye County and pressing for more and more solar panels to be thrown up on thousands of acres of public land and on rooftops across the state.

When Congress designated Yucca Mountain as the nation’s sole nuclear waste dump in 1987, Reid said two things, no and hell no. As he rose in seniority in the Democratic Party to become Senate majority leader, he finally found the power to make those words stick and steadily turned down the funding spigot for the project until President Obama shut it down entirely.

As he neared retirement, Reid declared Yucca Mountain dead, though President Trump and his Energy Secretary Rick Perry have been trying to breathe life back into it.

Meanwhile, Reid campaigned vigorously for green energy, bragging about his role in the state investing $6 billion in green energy and creating 20,000 jobs. The projects include sites such as the 3,000-acre Copper Mountain Solar project outside Boulder City and the 15-megawatt solar panel installation on Nellis Air Force Base.

Almost every year at his long-running green energy conference in Las Vegas, Reid would drag out some dignitary from the base to repeat the boast that the project was saving taxpayers $1 million a year in power costs — without ever bothering to mention the panels cost $100 million in 2007 and would reach obsolescence in 25 years and need to be disposed of.

Which brings us to the closing of the circle.

An alert reader recently brought to our attention a report from a Berkeley-based group called Environmental Progress. It seems that when you do the math, solar panels create 300 times more toxic waste per unit of energy output than nuclear power plants.

This prompted our alert reader to suggest it is time to contemplate the Yucca Mountain Solar Panel Repository.

“We talk a lot about the dangers of nuclear waste, but that waste is carefully monitored, regulated, and disposed of,” Michael Shellenberger, founder of Environmental Progress, an advocate for nuclear energy, told the National Review. “But we had no idea there would be so many panels — an enormous amount — that could cause this much ecological damage.”

The Environmental Progress report states, “If solar and nuclear produce the same amount of electricity over the next 25 years that nuclear produced in 2016, and the wastes are stacked on football fields, the nuclear waste would reach the height of the Leaning Tower of Pisa (52 meters), while the solar waste would reach the height of two Mt. Everests (16 km).”

Those innocent looking solar panels contain elements such as lead, chromium and cadmium — known carcinogens. The panels are difficult and expensive to recycle. The process is labor intensive and the price of the resulting scrap material is low, according to the National Review. (Never mind the toxic waste created during the manufacturing process.)

But, since they are already imbedded in glass and plastic and would not necessarily have to be protected by water shields like nuclear waste canisters if they were buried in those miles of tunnels at Yucca Mountain, it seems like a solution to the problem of what do with that $15 billion project sitting idle in the desert. The main problem is that it may not be big enough.

The United States has more than a million solar energy installations, many of which are nearing the end of that 25-year life expectancy, and more are being built, though currently solar produces only about 1.3 percent of the world’s electricity, compared to 10 percent for nuclear power.

As for the nuclear waste, we never thought it a good idea to dump it in a hole in the ground, when it can be recycled, as many countries currently do. It would be rather easy to haul the stuff to the desert at or near Yucca Mountain and store it above ground in dry casks until it can be recycled, possibly on site, which would create a number of high tech jobs.

Don’t you love it when mislaid plans come together?

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Yucca Mountain entrance. (ABC pix)

ObamaCare will live on … until single-payer takes its place

Sen. Mitch McConnell today released ObamaCare repeal and replace legislation. (AP pix via WSJ)

You can’t drive a stake through its heart. It looks like ObamaCare will live on — or at least until the death spiral of premium and deductible hikes force Congress to pass single-payer, as was the plan all along.

Today the Senate Republicans released their revised repeal and replace legislation, according to The Wall Street Journal, and it would include steep Medicaid cuts. With only 52 Republicans in the Senate and no Democrat likely to get on board, that likely means Republicans like Dean Heller of Nevada will balk and the 50 needed votes can’t be found.

“If you want my support (on repealing Obamacare) … you better make sure that the Republican governors that have expanded Medicaid sign off on it,” Heller was quoted as saying by a morning newspaper columnist a few weeks ago. “I’ve been saying that for months. … Where is Governor (Brian) Sandoval? What does he think?”

Sandoval was one of 31 governors to expand Medicaid with the promise that the feds would pick up 90 percent of the cost. He was quoted as saying, “As a result of [expanding Medicaid] we’ve added 210,000 Nevadans and allowed them to access health care,” Sandoval said. “These are our friends. These are our families. These are our neighbors.”

In addition to Heller several moderate Republicans have voiced opposition to Medicaid cuts.

So, when the death spiral hits bottom, that’s when the Democrats’ plan will kick in. Nevada’s former Democratic Sen. Harry Reid admitted four years ago on public radio here that the country will eventually drop private health insurance for the single-payer government-run-and-funded medical coverage.

Reid said the country has to “work our way past” private health insurance.

“What we’ve done with Obamacare is have a step in the right direction, but we’re far from having something that’s going to work forever,” Reid was quoted as saying by the Las Vegas Sun. “We had a real good run at the public option … don’t think we didn’t have a tremendous number of people who wanted a single-payer system,” but he could not get enough votes then.

That was then.

At a meeting with constituents in April in Las Vegas, Reid’s successor Catherine Cortez Masto was repeatedly asked about single-payer legislation.

At first she said, “We are fighting Republicans who want to take away health care. […] We have to be realistic.” But when asked again about single-payer, she replied, “I will take a look at it.”

 

Real reason the Faraday Future deal should never have been struck

For all the recriminations and navel gazing over the Faraday Future flop, no one is bringing up the real reason that the deal should never have been made in the first place.

Yes, it was an ill-conceived idea for gullible Nevada lawmakers in a special session in 2015 on blind faith alone to agree to dole out $215 million in tax abatements and credits to entice Faraday Future to build an electric car factory at the Apex industrial complex in North Las Vegas, though at the time it did not even have a prototype vehicle. The deal, struck by the Governor’s Office of Economic Development, also promised to spend $120 million on infrastructure improvements at the site — water, rail and widening of Interstate 15.

Faraday promised to build a $1 billion manufacturing facility, create 4,500 jobs and start producing cars as early as 2016.

After visiting China in 2016 state Treasurer Dan Schwartz, long a critic of the Faraday largesse by the state, told the press, “We’re increasingly more concerned than we were before that this is just a big Ponzi scheme.”

He and all the handful of other naysayers were right. Faraday has pulled the plug, tucked tail and run off.

But it wasn’t just naiveté or poor negotiating skills or poor judgment that made this a bad deal. It was blatant and arrogant flouting of the state Constitution. In fact, it was a double flout.

You see the Constitution has a Gift Clause, which states, “The State shall not donate or loan money, or its credit, subscribe to or be, interested in the Stock of any company, association, or corporation, except corporations formed for educational or charitable purposes.”

Self-styled economic development advocates have tried three times to amend the Constitution and remove the Gift Clause. The voters rejected those attempts all three times — in 1992, 1996 and again in 2000 by wide majorities.

The state Supreme Court has said that when the state provides something to a private entity without getting adequate compensation for the value, that is a gift and thus a violation of the Constitution.

Nevada’s high court has cited an Arizona Supreme Court ruling on that state’s nearly identical Gift Clause. The Arizona court said its Gift Clause “represents the reaction of public opinion to the orgies of extravagant dissipation of public funds by counties, townships, cities, and towns in aid of the construction of railways, canals, and other like undertakings during the half century preceding 1880, and it was designed primarily to prevent the use of public funds raised by general taxation in aid of enterprises apparently devoted to quasi public purposes, but actually engaged in private business.”

Then there is the section of the Nevada Constitution that clearly states, “The Legislature shall provide by law for a uniform and equal rate of assessment and taxation …” It ain’t uniform or equal if a select few get breaks while others don’t.

Despite these clearly worded prohibitions the state doled out $1.3 billion in tax breaks to Tesla Motors to build a battery factory near Sparks. The projections on capital investment and number of jobs to be created have fallen far short. All it would take to make the whole deal go bust is a technological breakthrough that makes lithium ion batteries obsolete.

That $750 million to build a Las Vegas stadium for the Oakland Raiders football team on a site with woefully adequate parking spaces still could come up a piker.

But none of them should ever have been allowed in the first place.

The only car Faraday Future has made.

 

 

Federal judge won’t allow Bundy defendants to present evidence that might’ve resulted in hung jury

Protesters outside courthouse during first Bunkerville standoff trial, which ended in a mistrial. (R-J pix)

railroad —  to convict with undue haste and by means of false charges or insufficient evidence; to push through hastily or without due consideration

Before jury selection began Monday in the retrial of four defendants in the 2014 Bunkerville standoff at the Bundy ranch federal Judge Gloria Navarro granted a prosecution motion to bar presentation of evidence “supporting jury nullification.”

In April, in the first of three scheduled trials for the Bunkerville defendants — charged with obstruction of justice, conspiracy, extortion, assault and impeding federal officers — ended in a mistrial. The jury found only two of six people on trial guilty of some charges but deadlocked on the others. The jurors agreed to convict on only 10 of the 60 charges brought. None of the conspiracy charges stuck.

The standoff occurred after armed Bureau of Land Management agents attempted to roundup Bundy’s cattle after he had refused for 20 years to pay grazing fees in the Gold Butte area. The BLM said he owed $1 million in fees and penalties. Faced with armed protesters the BLM agents eventually released the cattle and left to avoid potential bloodshed.

Two more trials are pending, with Cliven Bundy and his four sons scheduled to be the last. Most defendants have been jailed without bail for a year and half.

Two of Bundy’s sons, who had been arrested on separate but similar charges of illegally occupying an Oregon wildlife refuge to protest the jailing of father and son ranchers under a terrrorism law for letting fires get out of control and burn a few acres of federal public land, were acquitted of those charges this past fall by a jury, along with their co-defendants.

In mid-June the prosecution filed a motion asking the judge to bar the jurors in the current trial in Las Vegas from ever even hearing certain so-called state of mind arguments — arguments that the defendants felt justified to show up and protest the confiscation of Bundy’s cattle because of abusive use of force by law enforcement and that they were simply exercising their First and Second Amendment rights.

Navarro noted in her ruling Monday that in the first trial she had rejected the Bill Rights arguments and that would stand for this trial. “The Court also rejected Defendants’ proposed instructions on the First and Second Amendment because they are not legally cognizable defenses, or in other words, the law does not recognize these Amendments as legal defenses to the crimes charged.” (navarro ruling)

A rather convoluted argument, but what else would one expect from those who see their jobs as enforcing laws rather than upholding rights.

The Bill of Rights were added to the Constitution in order to spell out certain inalienable rights that Congress must not trample with its laws.

First Amendment: “Congress shall make no law … abridging the freedom of speech … or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Second Amendment: “… the right of the people to keep and bear arms, shall not be infringed.”

But those are not defenses against laws prohibiting behavior that causes federal officers to feel threatened.

Navarro quoted from a 9th U.S. Circuit Court of Appeals ruling on the topic of jury nullification:

Jury nullification occurs when a jury acquits a defendant, even though the government proved guilt beyond a reasonable doubt. …  [J]uries do not have a right to nullify, and courts have no corresponding duty to ensure that juries are able to exercise this power, such as by giving jury instructions on the power to nullify. … On the contrary, “courts have the duty to forestall or prevent [nullification], whether by firm instruction or admonition or . . . dismissal of an offending juror,” because “it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.”

Juries are just rubber-stamps.

Navarro concluded, “The Court will not permit argument, evidence, or testimony regarding Defendants’ beliefs about the constitution as such beliefs are irrelevant and a possible jury nullification attempt.”

The concept of jury nullification dates to colonial days and is widely taught in journalism schools, because it involved printer John Peter Zinger who was indicted for criminal libel against the colonial governor and tried in 1735. His attorney Andrew Hamilton offered as a defense that what was printed was true, even though under the law truth was not a defense but rather a confirmation of guilt.

The judge at Zenger’s trial ruled that Hamilton could not present evidence of the truth of the printed statements. “The law is clear that you cannot justify a libel,” the judge said. “The jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.”

Here is a portion of Hamilton’s closing argument:

It is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt. They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon

Andrew Hamilton arguing Zenger case.

it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow. …

The loss of liberty, to a generous mind, is worse than death. And yet we know that there have been those in all ages who for the sake of preferment, or some imaginary honor, have freely lent a helping hand to oppress, nay to destroy, their country. … This is what every man who values freedom ought to consider. He should act by judgment and not by affection or self-interest; for where those prevail, no ties of either country or kindred are regarded; as upon the other hand, the man who loves his country prefers its liberty to all other considerations, well knowing that without liberty life is a misery. …

But to conclude: The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.

The jury quickly returned with a verdict of not guilty.

 

 

During Bundy case retrial, state wants to quash evidence

Bundy ranch standoff. (Reuters pix)

Voir dire begins this week in the retrial of four defendants in the 2014 Bundy ranch standoff — or as a friend of mine always notes, voir dire is French for jury tampering.

In April, in the first of three scheduled trials for the Bunkerville defendants — charged with obstruction of justice, conspiracy, extortion, assault and impeding federal officers — ended in a mistrial. The jury found only two of six people on trial guilty of some charges but deadlocked on the others. The jurors agreed to convict on only 10 of the 60 charges brought. None of the conspiracy charges stuck.

The seating of a jury sympathetic to a given side’s arguments is always paramount in such trials.

The prosecution wants jurors ready and willing to punish those who dare to “threaten” and “extort” law enforcement officials simply doing their duty.

The defendants want jurors who are willing to accept that people may exercise both their First and Second Amendment rights in the face of excessive force by government agents.

In mid-June the prosecution filed a motion asking the judge to bar the jurors from ever even hearing such arguments. The judge reportedly has not yet ruled on the motion, which makes it tough for the defendants to prepare for trial.

The motion signed by Assistant U.S. Attorney Steven Myhre argues that certain evidence, such as the culpability of the law enforcement victims, should not be allowed to be presented.

The government specifically wished to prohibit:

  • April 6, 2014, officer encounters with civilians during the arrest of Dave Bundy, including any testimony concerning, or video/audio depicting, that event;
  • April 9, 2014, officer encounters with civilians during the convoy block, including any testimony concerning, or video/audio recordings depicting officer encounters with Ammon Bundy or Margaret Houston;
  • Third-party/lay person testimony or opinion about the level of force displayed or used by law enforcement officers during impoundment operations, including operations on April 12, 2014;
  • References to the opinion/public statement of Governor Brian Sandoval of April 8, 2014, and/or opinions registered by other political office holders or opinion leaders about BLM impoundment operations;
  • References to First Amendment zones;
  • References to Cliven Bundy’s grazing, water, or legacy rights on the public lands;
  • References to infringements on First and Second Amendment rights; and
  • References to punishment the defendants may face if convicted of the offenses.

And you thought the jury tries the facts and the facts include the circumstances. The state doesn’t want the jury to also try the law, a process called jury nullification — a term that recurs often in the prosecution motion.

The concept of jury nullification dates to colonial days when a jury acquitted printer John Peter Zenger of libeling the colonial governor even though he was clearly guilty under the law as written. The jury nullified the law, because they deemed the law wrong.

Jurors have since acquitted people accused of harboring slaves and violating Prohibition, among other things.

The state argues, “To adduce evidence of these events, whether on direct or cross-examination or in closing argument, unfairly prejudices the government by placing it in a position of having to prove a negative; that is, to explain or prove that the officers did not act unlawfully or otherwise supposedly overreach their authority.”

Isn’t that what trials are for?

But the motion goes on to argue:

To allow otherwise, merely provides the defendants with a vehicle to expound upon their beliefs about the First Amendment, the BLM, their alternative reality view of the world, and a host of other irrelevant matters – all in an attempt to nullify the verdict. … (“To permit nullification in cases where a defendant has a ‘good’ reason for his conduct when motive is not an element of the crime allows jurors to use their individualized set of beliefs as to ‘good’ reasons to be determinative of guilt or innocence”).

The state apparently is fearful the jurors might not fully buy into the ready answer to the question: “Did this defendant intentionally threaten a law enforcement officer?”

The officer might have felt threatened, but did the defendant threaten or merely exercise his free speech right while carrying a gun?

As for the remaining Bundy case defendants who have spent a year and a half in jail, pay no attention to the Sixth Amendment guarantee of a speedy trial.

Editorial: Return authority over intrastate water to the states

The Environmental Protection Agency announced this past week that it is moving to rescind the Obama administration’s 2015 rules that defined the “waters of the United States” (WOTUS) under the Clean Water Act of 1972 as every stream, ditch, wetland or mud puddle that might eventually after a deluge spill a few drops into any rivulet that might occasionally be navigable with an inner tube.

As the courts have noted, the Clean Water Act was intended to give the EPA and the Army Corps of Engineers and other federal agencies authority over “navigable waters” only.

President Trump signed an order in February instructing the EPA to consider repeal and replacement of Obama’s EPA water rules.

Now the EPA is beginning the process of rewriting the rules, hopefully to take into account the role and authority of the states over intrastate water resources.

“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” said EPA administrator Scott Pruitt in a press release. “This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

As it now stands with this order and several court rulings, including one from the U.S. 6th Circuit Court of Appeals, the EPA is enforcing clean water rules that were in place prior to the 2015 attempted usurpation of power.

Pruitt would do well to lift heavily from a June 19 letter to him from the attorneys general of 20 states, including Nevada’s AG Adam Laxalt, which offers suggestions on how to include input from the states and retain state jurisdiction over intrastate waters.

Laxalt was one of 23 attorneys general who backed a lawsuit that went all the way to the Supreme Court and resulted in the court saying property owners have a right to sue in court over EPA permitting determinations under WOTUS rules. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

The attorneys general letter notes the burden the Obama era rules were on land owners, because the discharge of any pollutant — be it mere soil, rocks or sand — required obtaining a permit that is excessively expensive and takes years to obtain.

In that Supreme Court case Chief Justice John Roberts noted that a specialized individual permit, such as the one sought by the plaintiffs, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required.

Further, discharging into “waters of the United States” without a permit can subject a farmer or private homeowner to fines of up to $51,570 per violation, per day.

The attorneys general noted that the Obama water rules violated the Constitution by intruding on the states’ reserved authority under the 10th Amendment and usurped Congress’s authority under the Commerce Clause. They called for an approach that would allow the states the flexibility to design state law in order to protect the water resources within their borders. “It also would provide any state for which EPA attempts to designate certain waters an opportunity to explain to EPA why its regulatory program is sufficient to protect those waters and contest EPA’s determination that those waters significantly affect navigable waters,” they wrote.

It is time to return those 10th Amendment rights to the states.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.