Wording and intent of ObamaCare law meant nothing … law is written on the wind

Remember how Jonathan Gruber, one of the architects of ObamaCare, explained why the law was written in such a way that states had to establish healthcare exchanges in order for citizens to get subsidies?

The Supreme Court ruled today that the clear wording and the intent of the law are meaningless.

“I think what’s important to remember politically about this is if you’re a state and you don’t set up an exchange that means your citizens don’t get their tax credits,” Gruber had said.

“But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges and that they’ll do it, but you know once again the politics can get ugly around this,” he continued

Here are the opening paragraphs of Antonin Scalia’s dissent in King v. Burwell, which was joined by Clarence Thomas and Samuel Alito (cites deleted):

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.

The Patient Protection and Affordable Care Act makes major reforms to the American health-insurance market. It provides, among other things, that every State “shall . . . establish an American Health Benefit Exchange” — a marketplace where people can shop for health-insurance plans. And it provides that if a State does not comply with this instruction, the Secretary of Health and Human Services must “establish and operate such Exchange within the State.”

A separate part of the Act — housed in §36B of the Internal Revenue Code — grants “premium tax credits” to subsidize certain purchases of health insurance made on Exchanges. The tax credit consists of “premium assistance amounts” for “coverage months.” An individual has a coverage month only when he is covered by an insurance plan “that was enrolled in through an Exchange established by the State under [§18031].”  And the law ties the size of the premium assistance amount to the premiums for health plans which cover the individual “and which were enrolled in through an Exchange established by the State under [§18031].”  The premium assistance amount further depends on the cost of certain other insurance plans “offered through the same Exchange.”

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious — so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State — which means people who buy health insurance through such an Exchange get no money under §36B.

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges. “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.”

And you thought jalapenos were hot?

Cooking peppers and onions on the grill's side burner

Cooking peppers and onions on the grill’s side burner

I decided to make some salsa from the tomatoes, peppers and cilantro in the garden, but figured I did not want to heat up the kitchen. So I used the side burner on the grill.

I soon discovered I had to stand close to the fire to keep cool.

From the temperature of the tiles, I did not need to light the burner.

From the temperature of the tiles, I did not need to light the burner.


Who gets to say what, wave what flag and have what mascot?

Obama radio interview

 “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
’The question is,’ said Alice, ‘whether you can make words mean so many different things.’
’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”
Lewis Carroll, Through the Looking Glass

You can’t tell what is politically correct without a program, but who the hell has the program?

Several years ago I wrote an editorial for the Las Vegas newspaper excoriating the bowdlerized version of Mark Twain’s “Huckleberry Finn” that was being published then, because it changed the nickname of the character Jim to “slave” instead of that racial slur used by Twain 219 times in the novel. To avoid the obvious hypocrisy I spelled out the word.

The then-publisher spiked it after the one black employee he could find said it was offensive. He didn’t edit out the “offensive” word, he spiked it. That was his privilege.

So in the same week that everyone is talking about removing “racist” symbols, such as state flags and university team mascots, following the killing of black churchgoers in South Carolina, Obama goes on the radio and uses that offensive term, while claiming that racism is in our DNA.

“And it’s not just a matter of it not being polite to say ‘nigger’ in public,” Obama said. “That’s not the measure of whether racism still exists or not. It’s not just a matter of overt discrimination. We have — societies don’t overnight completely erase everything that happened 200 to 300 years prior.”

A black Las Vegas Councilman and UNLV-alum Ricky Barlow was on KXNT this morning. He opposed doing away the UNLV mascot known as Hey Reb, which was illustrated by the late-newspaper artist Mike Miller and sold to the school for a dollar.

Symbols and words don’t spur people to kill, being crazy does. We can’t gag everyone and prohibit ideas and debate because a few people are nuts.

Miller and mascot

The Las Vegas Sun has a story online saying Harry Reid did not call for UNLV to drop the Rebel name and mascot. Who are going to believe? Harry or your lying ears?

The R-J story has the same spokesman quoted by the Sun denying the stance confirming the position.




Harry calls for changes in symbols, some of which he has ignored for four decades

In remarks on the Senate floor today Sen. Harry Reid said in prepared remarks:

It is unfathomable that even as the community of Charleston grapples with the devastation of this hateful act, African-American men and women have to walk underneath a confederate flag when they step on the grounds of the South Carolina State House in Columbia. The confederate flag is a symbol of the dark past from which our country has come. It does not and it should not represent our values or the way we treat our fellow Americans.

It is a symbol of slavery and white-supremacy. There is no other way to explain it. It often flew high as vile organizations such as the Ku Klux Klan torched African-American churches. This symbol of the past has no place atop buildings that govern Americans. It’s just not who we are. This flag should be removed and removed now.

Earlier he said on the Senate floor:

I find it stunning that the NFL is more concerned about how much air is in a ball than with a racist franchise name that denigrates Native Americans across our country. The Redskins name is a racist name.  So I wish the Commissioner would act as swiftly and decisively in changing the name of the Washington, D.C. team, as he did enforcing how much air is in the football.

This is the same Harry Reid who praised former KKK leader Robert Byrd with a glowing memorial upon his death.

This the same Harry Reid who has not said anything about his hometown university teams being called the Rebels and having a mascot called Hey Reb, until today.

According to an AP story posted at the Las Vegas Sun website, Reid told reporters in Washington, D.C., that Nevada’s Board of Regents should consider changing the mascot and sports team name. The name has been around since 1969. Took him awhile.


Photo of Hey Reb from the UNLV campus newspaper The Rebel Yell.


Feds continue futile and constitutionally shaky subpoenas of people anonymously expressing hyperbole

“Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced.” — Justice Louis Brandeis

Reason magazine has been hit with a federal subpoena seeking “any and all identifying information” about comments posted on an online blog discussing the conviction of the founder of an online website where illegal drugs could be bought and sold.

One comment on the blog suggested, “Its (sic) judges like these that should be taken out back and shot.” Another, “Why waste ammunition? Wood chippers get the message across clearly.”

Robert Kahre on trial for tax fraud. (R-J illustration, probably by David Stroud)

For two weeks the magazine was under a gag order to not discuss the subpoena, but that has been lifted.

“From press accounts of similar actions at other news publications and social media sites, we know that it is increasingly common for the federal government to demand user information from publications and websites while also stifling their speech rights with gag orders and letters requesting ‘voluntary’ confidentiality,” a recent Reason blog posting states. “Exactly how common is anyone’s guess; we are currently investigating just how widespread the practice may be.”

May I reply? Been there done that. It is all too common and entirely outrageous and a futile waste of time and money on the government’s part.

In 2009 in a remarkably similar case the feds issued a sweeping subpoena for information on those who commented on the trial of Las Vegan Robert Kahre, who was on trial for tax fraud for using the rather inventive argument that he could pay people in U.S. minted gold and silver coins based on their precious metal value but for tax purposes use their face value, which is many times less.

One person who signed himself “Louis D. Brandeis” called the federal prosecutor “evil incarnate and everything that is against the American justice system.”

“Christian Patriot” wrote a couple days later, “I suggest we go back to a gold and silver standard, which would immediately wipe out the national debt, not charge us interest for their toilet paper, or better yet, I’ll trade you eggs for milk. Tax that if you will.”

“Randall” wrote, “If it is legal tender, value of said legal tender it set by the gov and stamped on the face. Maybe the Government should be on trial.” (The comments have long since been removed from beneath the story.)

The newspaper was served with a grand jury subpoena from the U.S. attorney’s office demanding that the paper turn over all records pertaining to those postings, including “full name, date of birth, physical address, gender, ZIP code, password prompts, security questions, telephone numbers and other identifiers … the IP address,” et (kitchen sink) cetera. There was no indication what they were looking for or what crime, if any, was being investigated, just a blanket subpoena for voluminous and detailed records on every private citizen who dared to speak about a federal tax case.

I wrote at the time:

My first instinct is to fight the subpoena tooth and nail. After all, John Peter Zenger was just the printer who published anonymous essays critical of the colonial governor. His jury nullified the existing law and freed him.

On the other hand, if someone were to confess to a real and specific crime on our Web site, I’d give him up at the drop of a hat.

Bottom line: We could fight the federal subpoena, at considerable expense, and lose. Our attorneys are now trying to see if we can limit the scope of the information sought.

What the prosecutors don’t appear to understand is that we don’t have most of what they are seeking. We don’t require registration. A person could use a fictitious name and e-mail address, and most do. We have no addresses or phone numbers.

To add prior restraint to the chilling effect of the sweeping subpoena, we were warned: “You have no obligation of secrecy concerning this subpoena; however, any such disclosure could obstruct and impede an ongoing criminal investigation. …”

Even writing that was provoking the beast with long talons and unlimited tax money to feed its fight.

Within about a week the prosecutors did in fact narrow the subpoena, asking for information pertaining to only a few comments that might be construed as threatening to jurors or prosecutors. The paper agreed to comply.

“I’d hate to be the guy who refused to tell the feds Timothy McVeigh was buying fertilizer,” I quoted by the paper as saying, referring to domestic terrorist McVeigh, who destroyed a federal building in Oklahoma City in 1995.

But the American Civil Liberties Union vowed to fight on, believing a chilling effect remained. Staff attorney Margaret McLetchie said the civil rights organization wss seeking a court order declaring the original subpoena unconstitutional. She said theACLU had filed on behalf of three clients, who posted anonymously on the Review-Journal Web site and who would remain anonymous during the legal action.

“The right to speak anonymously about politics is older than the Constitution,” she said.

At one point I asked readers what they would do if confronted with a subpoena from a federal grand jury demanding extensive identifying information about people who had posted comments about a federal tax fraud trial.

The readers were quite brave with my company’s money and my freedom. Nearly 700 people voted. Of those, 51 percent bravely said they would have fought to the highest court in the land even if they (meaning I) landed in jail. Only 16 percent said they would immediately turnover what the feds were asking for, while 33 percent said they would surrender information only on those who clearly made threats or admitted criminal acts.

“For many people now and in the future, this is not academic. What will happen when a friendly federal investigator visits your employer asking about what you’ve been posting online?” I wrote then.

All of the comments on the Reason site and the R-J site were cliches of outrage and mere hyperbole, which are protected free speech rights.

In 1969, the U.S. Supreme Court threw out a case against a man who while protesting the draft had stated that if he were made to carry a rifle “the first man I want to get in my sights is L.B.J.” The court called this “crude political hyperbole which, in light of its context and conditional nature, did not constitute a knowing and willful threat against the President …”

Why the feds continue to pursue such matters is a mystery, but they do. A 2012 Southern Law Journal study reported on several such subpoenas, including the R-Js.

The study reported that in June 2010, Judge David A. Ezra, the presiding judge in Kahre case, commented:

There is no stronger defender of the First Amendment than me … My concern here, however, is that it is a federal crime and a very serious one to attempt in any way, shape or form to threaten or obstruct or impede a jury in either a civil or criminal case … Somebody writing in and saying, you know, if the jury reaches a … verdict of conviction, they should be hung, is really no different than saying, you know, if President Obama does X, Y or Z, he should be killed. That’s a crime, too. So I think we have to be very, very careful when we say that there is no basis to be concerned here or that this is simply government demagoguery or something of the sort. (See the L.B.J. comments above.)

But in December 2010, the 9th Circuit Court of Appeals affirmed federal Judge Kent J. Dawson’s ruling that claims of those persons who had been subpoenaed groundless because the subpoenas were no longer in effect and “alternatively, that there was no set of facts supporting Does 1-4’s First Amendment claims. We do not reach the First Amendment claims because we decide the case on standing and mootness grounds.”

So the case just petered out, ending not on constitutional firm footing but no standing and mootness.

This is not academic. This is a serious waste of tax money and a breach of fiduciary responsibility and constitutional rights by federal prosecutors.

Reason found a 2013 report by Mother Jones magazine stating that Google, Facebook, Twitter, and Microsoft have received “tens of thousands of requests for user data from the US government annually.” The magazine reported that a Facebook spokesperson said the company provided information in response to 79 percent of the data requests it received between July and December 2012.

Here are three ACLU of Nevada postings on this topic that contain cogent arguments and cite specific cases:

Protecting Anonymous Online Speech

ACLU of Nevada’s Case Protecting Anonymous Online Speech

ACLU of Nevada Continues to Fight for Anonymous Online Speech

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. — Fourth Amendment




Longtime newspaper rivalry continues to this day with references to the past rivalry

The photo that warranted an inside page in the Sun in 1967 but no printed page in today’s R-J.

You’ve got to love a good newspaper spat, especially one that goes back decades.

Today the Las Vegas Review-Journal has a story about how a few teenagers in 1967 hoaxed the Las Vegas Sun with a Polaroid “UFO” photo that was actually a hubcap tossed into the air. The photo warranted a screaming red, all-caps banner headline in a size they used to call a “wood,” because no one had metal type that big. The headline reads: “Mysterious flying ship ‘scouts’ Las Vegas area.”

But the photo that was the central topic of the tale ran on an inside page, while the dominant photo on the front page was one of Gov. Paul Laxalt talking at some pro-Israel function, a favorite topic of the Sun, possibly because its editor had been convicted of running guns to Israel. Next to that photo was Hank Greenspun’s “Where I Stand” column. He gave the column that name because an R-J editor once wrote a “Where I Sit” column.

Now, in my way of thinking, a photo that warranted a screaming headline on the cover screamed to be printed on the cover, but no. As for the R-J’s coverage of the hoax, it did not find that photo worthy of print, relegating the actual hoax pix that was the topic of the piece to a package of photos online.

The R-J story also noted that it was the R-J that corrected the hoax the next day:

On June 14, 1967, a mere 24 hours after the hoax had gone as viral as something could go in the ’60s, the Las Vegas Review-Journal ended it.

“The mysterious flying ship ‘scouting’ Las Vegas Monday night turned out to be a hubcap, sources close to the ‘ship’ revealed Tuesday afternoon,” the lede read.

Yes, the story uses the old typesetter’s lexicon, spelling the word “lede,” which is not in most dictionaries nor in the AP Stylebook, which I think they still use, even though they don’t subscribe to the AP service.

But two old Hank Greenspun columns delivered on the same day is a bit much. Over in the Sun section, son Brian reprinted the second of three columns from the era of the hoax by Hank. The intro by Brian includes this dig at the R-J:

The first two columns talk about the building of the MGM Hotel (now Bally’s) and the third discusses allegations of mob association that existed only in the small minds of some hoodlums and on the pages of the other newspaper in Las Vegas.

I wonder whether the third installment will mention that in 1947 Greenspun was hired by mobster Bugsy Siegel as publicist for his Flamingo Hotel or that  Greenspun wrote a column called “Flamingo Chatter” for the R-J? Will it mention his stake in the Desert Inn was reduced to 1 percent when Cleveland racketeers Morris “Moe” Dalitz, Sam Tucker and Morris Kleinman won control.

The R-J story did not mention that there were a number of UFO sightings in 1967.

Of course, I must plead guilty to having tweaked the upturned Greenspun nose a time or two myself.



Credibility of newspapers, part 2

The Las Vegas newspaper contained two glaring errors Saturday, but only one warranted a correction in the paper today:

“A Saturday story on job growth contained an error. Nevada’s private sector job growth, not public sector job growth, ranked second in the nation last year.”

The story online was fixed.

The headline that said the Charleston gunman obtained his gun illegally, though the story said it was purchased legally, did not warrant a correction.