“Rick Perry’s Operation Strong Safety”: Creating A Talking Point For The Campaign Trail, Not Searching For A Practical Solution
Texas Gov. Rick Perry (R) recently appeared on Fox News, stressing his support for deploying National Guard troops to address the humanitarian crisis at the Southern border. Brit Hume asked the governor to explain what the Guard would actually do. Perry struggled to explain.
Hume reminded Perry, “[I]f these children who’ve undergone these harrowing journeys, to escape the most desperate conditions in their home countries, have gotten this far, are they really going to be deterred by the presence of troops along the border who won’t shoot them and can’t arrest them?”
At this point, Perry changed the subject.
But that was last week. This week, the Republican governor and likely presidential candidate is moving forward with his idea, whether he can explain its merits or not.
Republican Gov. Rick Perry on Monday requested the immediate deployment of as many as 1,000 service members to assist with security at the U.S.-Mexico border.
The soldiers, from both the Texas National Guard and State Guard, will mobilize throughout the next 30 days to carry out “Operation Strong Safety” along the border region.
“I will not stand idly by while our citizens are under assault,” Perry said Monday during a press conference.
First, there’s very little to suggest Texans are “under assault.” Second, “Operation Strong Safety” is an unintentionally amusing phrase. As Paul Waldman joked, “ ‘Operation Strong Safety’? Why not just go ahead and call it Operation America Macho TestosteReagan?”
But even putting that aside, at its core, the most meaningful concern here is that Perry’s solution doesn’t match the problem.
The obvious question in response to the announcement from the governor’s office is simple: what, exactly, does Perry expect the Guard to do?
Part of the rationale, he said yesterday, was to deter others from entering the United States illegally. Again, this is predicated on a mistaken assumption about the nature of the crisis itself. These unaccompanied children are not sneaking into the country – on the contrary, they’re walking up to law-enforcement officials and gladly turning themselves in.
There is no deterrent effect in having more law-enforcement personnel because the kids aren’t afraid of getting caught. They fully expect to be taken into custody; they want to be taken into custody. Does Perry not understand these details? If not, why not?
What’s more, Greg Sargent recently talked to the head of the National Guard under the Bush/Cheney administration, who offered a valuable perspective.
[I]n an interview today, the head of the National Guard under George W. Bush said he had not yet heard a clear rationale for sending in the Guard and suggested it might not be the appropriate response to the problems at the core of the current crisis, though he did say he could envision the Guard playing some sort of part in a broader solution.
“Until mission requirements are clearly defined, it can’t be determined whether this is an appropriate use of the Guard in this particular case,” H. Steven Blum, who was the Chief of the National Guard Bureau from 2003 to 2009 and has been a career military man for decades, told me. “There may be many other organizations that might more appropriately be called upon. If you’re talking about search and rescue, maintaining the rule of law or restoring conditions back to normal after a natural disaster or a catastrophe, the Guard is superbly suited to that. I’m not so sure that what we’re dealing with in scope and causation right now would make it the ideal choice.”
That still seems to be an exceedingly polite way of saying, “Republican demands don’t seem to make any sense.”
Of course, it’s possible Perry’s decision is less about making sense and more about presidential posturing in advance of a national campaign. Immigration was an albatross for the Texas governor in 2012 – remember the “have a heart” problem? – and the Republican is no doubt eager to chart a different course in advance of 2016. Dispatching the National Guard, in this sense, is about looking “tough” and creating a talking point for the campaign trail, not searching for a practical solution.
It led Rep. Lloyd Doggett (D-Texas) to say in a statement, “Once again, Texas taxpayers are being forced to pay for Governor Perry’s grandiose political ambitions. It is a costly misuse of our highly skilled National Guard to demand its service as a mere referral agent for children seeking refuge from abuse. Doing its job effectively, our Border Patrol does not need interference from either Governor Perry or vigilantes. We deserve Texas tough, but today we get only Texas Governor weak – weak on any bipartisan solutions, weak on any meaningful action.”
By: Steve Benen, The Maddow Blog, July 22, 2014
“The Limited Role Of The Courts”: Why Obamacare Probably Isn’t Doomed
The Affordable Care Act took a potentially serious hit today when the D.C. Circuit Court of Appeals struck down a rule that extended the law’s health-care subsidies to residents of the three-dozen states where the federal government runs a health insurance exchange.
But the fact that another court of appeals upheld the same rule on the same day shows that the legal issue is very thorny and will very likely be ultimately resolved by the Supreme Court. And the administration probably will come out ahead in the end.
The controversial part of the law says that the government can provide subsidies for health insurance bought on exchanges “established by [a] State.”
The argument against the administration’s rule is straightforward: if a state refuses to set up an exchange, forcing the federal government to operate it instead, then the subsidies aren’t available. That legal reading of the statute makes some sense, because Congress may have wanted to encourage states to create exchanges with the carrot of promising subsidies for the states’ residents.
But the courts are required to uphold the rule if the law is ambiguous and the administration’s position is reasonable. The Supreme Court will probably uphold the rule under that lax standard.
Here’s why. Other provisions of the statute reference an exchange “established by [a] State,” but really include the federal government. Another section of the law refers to a state-run exchange when everyone agrees that it means to include the federal government too. Also, the law actually requires every state to set up an exchange, and it refers to all the exchanges as having been established by states. So you can look at the statute as a whole and reasonably read it to extend the subsidies to residents of every state.
It also makes some difference that the section of the law cited by the rule’s opponents is a strange place for Congress to have limited the availability of subsidies, because that section states the formula for tax credits rather than core rules on who gets benefits under the Act. There also isn’t much evidence to suggest that Congress actually was intending to use the subsidies to encourage states to create exchanges.
We won’t have a final answer for a while. The parties can ask all the judges of both of the courts of appeals that issued today’s rulings to rehear the case. The administration has the better chance, because recent appointments to the court that struck down the rule tilt the court to the left. But it may be that both courts will see that Supreme Court review is inevitable and stand aside to let the Justices decide the issue.
The issue is so close and contentious that it is basically inevitable that the Supreme Court will have to resolve it. If the case goes straight to the Supreme Court, we will get a final decision within a year; otherwise, it will probably be two. My best guess is that a majority of the Justices will cite the limited role of the courts and rule for the administration and uphold the rule by the same5-to-4 majority that rejected the major constitutional challenge to the law two years ago.
By: Tom Goldstein, Appellate Advocate, best known as one of the nation’s most experienced Supreme Court practitioners, Co-founder and Publisher of SCOTUSblog; The Washington Post, July 22, 2014
“It’s Not A Game, It’s People’s Lives”: What Today’s Obamacare Ruling Reveals About The GOP
Today in a two-to-one decision a three-judge panel of the Court of Appeals for the D.C. Circuit delivered Republicans perhaps their biggest victory yet in their ongoing legal battle to destroy the Affordable Care Act. This case is far from over — it will probably be appealed to the full appeals court (where today’s decision is likely to be reversed) and then to the Supreme Court. But it demonstrates just how willing Republicans are to lay waste to Americans’ lives if it means they can strike a blow at Barack Obama and his health law.
In some of their challenges to the ACA, there was a legitimate philosophical or practical point Republicans were making. You or I might think the idea that a mandate to carry insurance constitutes the death of liberty is ridiculous, but at least it was a substantive objection. Not so in this case, Halbig v. Burwell. Here, Republicans literally found a legislative drafting error in the ACA that they hoped could be used to deal a near-fatal blow to the law, and two Republican-appointed appeals court judges agreed with them.
In a section of the ACA concerning the subsidies given to low- and middle-income people to buy insurance on the exchanges, the legislation refers to subsidies provided through “an Exchange established by the State.” Since over half the states didn’t create their own exchanges and ended up with the federal exchange, the plaintiffs argue that no one in those states should be eligible to receive subsidies. If they’re successful, it would mean that if you live in Kentucky, which has a state exchange, you can get federal subsidies to buy insurance, but if you live next door in Tennessee, which uses the federal exchange, you can’t.
Now pause for a moment and consider what it is Republicans are asking the courts to do here. They want millions of Americans to lose the subsidies they got this year, in many if not most cases making health insurance completely unaffordable for them, and their justification is this: We found a mistake in the law, so you people are screwed. As far as the Republicans are concerned, it’s like spotting that a batter’s toe missed second base as he was trotting around for his home run, and therefore claiming that they won the game after all.
But it’s not a game, it’s people’s lives. If they succeed at the Supreme Court, people will die. That’s not hyperbole. Millions of Americans will lose their health coverage — 6.5 million by one estimate — and many of them won’t be able to afford to go to the doctor, and many of them will have ailments that go untreated. People will die.
If you want to read a comprehensive analysis of how legally and logically absurd this decision was, I’d recommend this one by Ian Millhiser. Cases like this often turn on Congress’ intent in writing legislation, and in this case there is no question about that intent — at no point in the debate or drafting or voting did anyone say that if a state chose to use the federal exchange then the people in that state wouldn’t get subsidies. But if you read the majority’s decision, you can see the two Republican judges positively luxuriating in the drafting error for page after page, exploring every possible way in which it could trap the government into denying subsidies to people.
Most ridiculously, they assert that there’s just no way to know whether Congress actually intended that people in states using the federal exchange should get subsidies, so their intent can only be inferred by the phrase “established by the State.”
As I said, this is a temporary victory for the ACA’s opponents — the whole D.C. Circuit court is likely to reverse this decision, though what will happen at the Supreme Court is less than clear. But when you see Republicans raising glasses of champagne to congratulate themselves on how clever they are, remember what it is they’re celebrating. It isn’t that conservatism won some meaningful philosophical victory, or that they’ve managed to make the country a better place. All that’s happening is that they may have succeeded in taking health insurance away from millions of Americans.
By: Paul Waldman, Contributing Editor, The American Prsospect; Published at The Plum Line, The Washington Post, July 22, 2014
“Arrogance Cloaked In Humility”: Conservative Judges Are Ganging Up To Steal Your Affordable Healthcare
Tuesday morning, two competing courts – and the conservative judges turned silent partisan assassins that dominate them – put at risk the affordable health insurance on which millions of Americans have already come to rely. These six robed men in Washington and Virginia, within about two hours, have now set up yet another US supreme court showdown on the Obamacare law Republicans on Capitol Hill just couldn’t kill, despite trying more than 50 times.
Up first: an outrageous two-to-one decision by a panel of the Court of Appeals for the DC Circuit ruling against sensible subsidies that real people need, based on what we can charitably called the “reasoning” of the two Republican nominees on the three-judge panel – the opinion was written by an appointee of George HW Bush, along with a judge nominated by his son.
They were asked to decide on the legality of the subsidies based on the precise wording of the Affordable Care Act, which provided health benefits to non-affluent Americans purchasing insurance from federal exchanges newly established under President Obama’s signature health-care law. In the literal language of the statute, subsidies are available to those purchasing insurance on “state exchanges”, although a majority of exchanges were ultimately established in the states by the federal government because of state-level Republican hostility to the law. Sensibly, the Internal Revenue Service allowed anyone who purchased from any exchange – federal or state – to qualify for the subsidies.
The Bush-appointed judges, however, aren’t much for being sensible: they ruled instead that only those who purchase insurance from the exchanges established by the states are allowed subsidies.
In what can only be described as black comedy, the majority opinion concludes with paeans to judicial restraint. (One is reminded of Lewis Carroll’s Walrus, “deeply sympathizing” with oysters prior to having “eaten every one”.) “We reach this conclusion, frankly, with reluctance,” the majority wrote, going on to concede the following:
[O]ur ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly.
But they are compelled, you see, to inflict these consequences as a means of “ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.” For two judges to subvert the clear purpose of the law in the name of judicial restraint is, to borrow Justice William Brennan’s phrase, arrogance cloaked as humility.
The sole dissenting judge, Harry Edwards, in his tour de force dissent, made clear his distaste for appointed judges making new law – and pointed out that the majority opinion requires the courts to ignore all the sound principles of statutory construction.
Congress clearly thought the subsidies were essential to the functioning of the exchanges, and it permitted the federal government to establish exchanges in order to prevent states from thwarting the aims of the ACA – which is to help people buy more affordable health insurance.
The majority’s reading, however, would allow hostile states to do exactly what the law was designed to prevent: by refusing to establish a state exchanges, they could effectively stop all the exchanges from working properly.
As Edwards observes, the majority’s interpretation “is implausible because it would destroy the fundamental policy structure and goals of the ACA that are apparent when the statute is read as a whole”. Plus, not a single state government – even those hostile to the law – believed that the statute demands what the majority says it does. Nobody is confused about what the law intended, but some people who oppose the ACA on political grounds are opportunistically pretending to be.
Meanwhile, just across the Potomac River, the Fourth Circuit Court of Appeals was charged with hearing a different case on the same question. But it ruled in favor of the administration, effectively siding with the first ruling’s minority opinion. That’s the sort of legal dichotomy – however strange the buzzer-beater timing – that pretty much guarantees the supreme court will ultimately answer this question for all the Americans using the federal exchanges.
That’s slim comfort for some: while most of the law narrowly survived a constitutional challenge that made it to the supreme court, the number of Americans covered by it would be much higher had the court not used bafflingly illogical reasoning to re-write the act’s Medicaid expansion in a separate ruling, which made it easier for states to opt out of that provision.
That’s all part of the Republican strategy, of course: once they lost their battle in Congress to ensure that as many non-affluent Americans as possible would continue to experience the “freedom” of going without health insurance coverage, they’ve been throwing ad hoc legal arguments at the ACA, hoping that something would stick.
Don’t be fooled that the judges who hear these challenges are not influenced by the ongoing political partisanship. As Ian Millhiser of ThinkProgress demonstrated, both judges who ruled against the subsidies today are highly partisan Republicans.
Despite Republican efforts, a study in the New England Journal of Medicine published last week found that 20m Americans are now covered by the exchanges and Medicaid expansion created by the Affordable Care Act. For all its imperfections, the law is a striking policy success and has done a great deal to address a major national problem. However, the Republican party – and most of its agents on the federal courts – would still prefer the number of Americans who benefit from the law to be much lower, as evidenced by their legal strategy.
The only good news is that this decision against the subsidies may not stand. The federal government is expected to appeal for a hearing from the entire DC circuit court, and it is unlikely that the full court would reach the same conclusion. It’s also far from clear that opponents’ argument could command a majority of the supreme court, where the cases are probably headed.
But it’s still remarkable that an argument this legally weak – and with such destructive human consequences – could command support from the majority of an appellate panel. Given the active Republican hostility to the Affordable Care Act, and the party’s utter indifference to the fate of the millions of people is helping, there’s no way to be entirely confident that the supreme court won’t use the opportunity of a new case to take something else away from the Americans who need it.
By: Scott Lemieux, The Guardian, July 22, 2014
“All Aboard, Suckers”: Florida Taxpayers About To Be Railroaded
Here’s a really clever idea:
Let’s run express passenger trains 16 times round-trip every day between downtown Miami and the Orlando airport. That’s right, the airport.
Except the trains won’t go straight there, but will stop first in Fort Lauderdale and West Palm Beach, then head up the seaboard to Cocoa and hang a hard left 40 miles west across the middle of the state.
Oh, and the trip will take at least three hours one way.
Leaving aside the fact that you can inexpensively drive from downtown Miami to the Orlando airport in about the same time (or fly commercially in only 42 minutes), the project grandly known as All Aboard Florida raises other elementary questions.
Like, “Why?”
As it waddles down the tracks, this turkey enjoys the robust blessing of the Republican-led Legislature and Governor Rick Scott, who said the following to a reporter last month:
“It’s all funding that will be provided by somebody other than the state. It’s a private company.”
Scott’s either clueless or lying. All Aboard Florida is a future train wreck for taxpayers. With the possible exception of the Hogwarts Express, passenger rail services almost always lose money and end up subsidized by government.
All Aboard Florida already has applied for $1.6 billion in federal loans and plans to rent space at a new terminal at the Orlando International Airport, for which state lawmakers recently appropriated $213 million.
That’s just the beginning. According to the Scripps/Tribune Capitol Bureau, the company also wants the state to pay $44 million to connect its lines with Tri-Rail, the daily commuter link serving South Florida.
Only three short years ago, playing the Tea Party scrooge, Scott killed a proposed high-speed train project between Orlando and Tampa. In rejecting about $2 billion in federal funds, the governor asserted that Florida taxpayers would have ended up paying to operate the rail service once it was finished. He was right.
Now he’s yodeling a different tune, perhaps because his latest chief of staff, Adam Hollingsworth, formerly worked for one of the companies connected to All Aboard Florida. (When a reporter asked Scott if he’d talked to Hollingsworth about the project, he didn’t answer.)
Meanwhile, all along the proposed route, opposition is erupting. Here was the front-page headline in the July 13 Indian River Press Journal: ALL AGAINST ALL ABOARD.
Officials in Stuart, Fort Pierce, Vero Beach and other communities are rightly worried about the impact of adding 32 trains every day on the Florida East Coast tracks that All Aboard Florida plans to use.
The frequent stoppage of traffic at rail crossings is a major concern, especially because it will impede police, firefighters and other emergency responders. For residents and businesses near the track, the train noise and vibrations will be a recurring headache.
Indian River County Commissioner Bob Solari believes it could hurt local property values. And where the trains will cross busy waterways like the St. Lucie River, many say the repeated lowering of the railroad bridges will restrict boat travel and hurt the marine trades.
All Aboard Florida insists that its trains will be moving so fast that boaters and motorists won’t be inconvenienced for long periods, and it has promised to upgrade the road crossings to make them safer.
Few of the many critics seem reassured. Municipalities and counties fear they’ll be stuck with funding new infrastructure, just for the privilege of watching shiny locomotives whiz past all day long.
The whole project is anchored on the dubious notion that millions of people can’t wait to hop a train from Miami to the Orlando airport (via Cocoa). Although All Aboard Florida has sued to keep secret its ridership surveys, its website sunnily predicts that three out of four passengers will be tourists.
Tourists who are what … afraid to fly? Too scared to drive?
Talk about a narrow market.
And while it’s always beneficial to reduce the number of cars on the highway, this particular experiment can’t possibly break even. The only money will be made in the beginning with real-estate deals, by well-connected contractors working on new stations, modernizing the rails and laying 40 miles of fresh track between Brevard County and the land of Disney.
At this point, the momentum for All Aboard is all political, and only the rising outcry can derail it. Scott, who’s up for re-election, recently asked the Federal Railroad Administration to extend to 75 days the public-comment period that will follow the agency’s upcoming environmental impact study.
If the trains ever start running, spewing red ink with every toot of their horns, don’t be surprised if the state steps in to bail out the project, or asks the feds to do it.
Either way, we’ll get stung with the bill somewhere down the line.
All aboard, suckers.
By: Carl Hiaasen, Columnist, The Miami Herald; The National Memo, July 22, 2014
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