**Written by Doug Powers
Michelle Obama did an impression of kids eating a FLOTUS-approved school lunch today. Twitchy sets the scene:
A group of fifth graders joined the first lady in the White House garden Tuesday for the fall harvest and later dined with Mrs. Obama on the just-picked vegetables.
“REAL tomato ketchup, Eddie?”
Mrs Obama joins kids in eating some of the just-picked veggies in the healthy meal recipes. pic.twitter.com/anlj6c8YLb
— Mark Knoller (@markknoller) October 14, 2014
So I guess we should also talk about his, eh?
— The First Lady (@FLOTUS) October 15, 2014
Don’t miss FLOTUS’ upcoming remakes of and “If I Didn’t Carrot.”
**Written by Doug Powers
**Written by Doug Powers
At yesterday’s New Hampshire Senate debate, incumbent Jeanne Shaheen didn’t deny that she’s voted with Obama 99 percent of the time (I was surprised it was that low), but when asked to answer yes or no to the question of whether Obama’s done a good job, Shaheen went into full “pretzel twist” mode:
The moderator should have asked her if she voted for Obama and it might have gotten really funny.
**Written by Doug Powers
While conventional wisdom among U.S. Supreme Court watchers is that the narrowness of many of the justices’ recent decisions has created a “faux-nanimity,” the court’s docket control — its ability to pick and choose which cases to hear — goes even further in explaining why the justices are agreeing at record rates. Last week’s denial of review in a key sentencing case — Jones v. United States, on which more anon — is just the most recent example of the court side-stepping its responsibility to grapple with issues that demand its attention.
It’s not just high-profile culture-war issues like same-sex marriage and the right to bear arms that the Supreme Court is avoiding like the plague. On issues ranging from federalism to property rights to broadcasting regulation, the court increasingly declines to hear any case it doesn’t absolutely have to — no matter how critical the questions presented — especially if there’s a threat of an irreconcilable split among the justices.
This extreme selectivity goes a long way to explaining the growing unanimity and is a reflection of the “judicial minimalism” that Chief Justice John Roberts has vowed to instill. To extend a metaphor he used during his confirmation hearings, it’s much easier to call balls and strikes when all the pitches are either right down the pipe or way outside.
“It’s not just high-profile culture-war issues like same-sex marriage and the right to bear arms that the Supreme Court is avoiding like the plague.”
Jones, a constitutional criminal procedure case, was the court’s latest big “decision not to decide.” The issue there was whether a defendant can be sentenced for conduct of which he was acquitted, based on facts that the judge determined. (Read that sentence again; I’m not making this up.)
In United States v. Booker (2005), the Supreme Court held that the Sixth Amendment prohibits a judge from sentencing a convicted defendant to a prison term exceeding the law’s maximum penalty for the crime committed unless additional aggravating facts are found by the jury or admitted by the defendant. The court also held that all sentences must be reasonable.
In a subsequent case, Justice Antonin Scalia wrote a concurrence in which he expressed concern about situations in which judges issue sentences below the statutory maximum, but which would only be reasonable in light of additional facts found solely by the judge. He proposed a doctrine in which the reviewing court asks whether the sentence would be reasonable as applied only to those facts found by the jury.
The situation that Scalia feared became manifest in Jones for three criminal defendants who were convicted of selling small quantities of drugs but acquitted of conspiracy charges relating to larger quantities. Despite the acquittals, all three received sentences four times greater than any other defendant convicted of the same crimes in the post-Booker era using the U.S. Sentencing Commission’s guidelines.
The defendants argued — and no prosecutor or judge has disputed — that their sentences would be unreasonable without consideration of the additional conspiracy evidence. The U.S. Court of Appeals for the D.C. Circuit nevertheless affirmed the sentences, declining to adopt Scalia’s proposed doctrine.
But shouldn’t the Sixth Amendment be read to prohibit increased sentencing based solely on judge-found facts, regardless of whether the final sentence remains below the statutory maximum? Indeed, the defendants’ constitutional right to a jury trial can be traced back to Article 39 of the Magna Carta — the celebrated document that will mark its 800th anniversary in June — which is also the historical origin of the Constitution’s prohibition on ex post facto, or retrospective, criminal laws.
Article 39 reflected a deep concern that the government would undermine the jury’s role and imprison defendants without the input of their peers. Given the status of sentencing guidelines as “law” for purposes of the ex post facto clause, the Sixth Amendment should extend to the defendant’s right to the “lawful judgment of his peers,” meaning that a judge can only render a sentence based on the jury’s factual findings.
In other words, if it’s unconstitutional to sentence a defendant based on rules issued after he commits the purported crime, it must be unconstitutional to sentence a defendant without the input of his peers.
Despite the seeming incongruity between the Sixth Amendment jury right and sentences based on judge-found facts — not to mention the injustice of it all — the Supreme Court declined to hear this case.
While normally we don’t know what the justices are thinking when they deny a cert petition — or even if anybody disagreed — but in the Jones denial, Scalia wrote a rare dissenting opinion, joined by Justices Clarence Thomas and Ruth Bader Ginsburg. Here’s the salient bit:
“The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, ‘requires that each element of a crime’ be either admitted by the defendant, or ‘proved to the jury beyond a reasonable doubt.’ Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, and ‘must be found by a jury, not a judge.’ We have held that a substantively unreasonable penalty is illegal and must be set aside. It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.”
And so the petitioners came one vote short of the four needed to grant. The three dissenters may seem like an unusual grouping, but actually these justices vote alike on criminal defendants’ jury-trial rights. They were together in Booker, for example, as well as in more recent cases involving the right to confront witnesses. It’s sort of the court’s left and right against the center.
Alas, the Scalia trio was traditionally joined in these kinds of cases by Justices John Paul Stevens and David Souter, who have since been replaced by Justices Sonia Sotomayor and Elena Kagan, respectively. It’s not a big surprise that Kagan seems to have joined the “pragmatic” bloc for these purposes, but Sotomayor’s vote is disappointing. Some commentators point to her background as a prosecutor to explain such deference, but Sotomayor is one of the most pro-defendant votes in Fourth Amendment and habeas corpus cases.
Whatever the reason for the lack of a crucial fourth vote, the Supreme Court missed an opportunity for principled jurisprudence. And while the Sixth Amendment isn’t the sexiest constitutional provision — sentencing cases often make one’s eyes glaze over — the justices’ demurral in Jones is but the latest example of how the court increasingly shirks its primordial duty to say what the law is.Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Cato, joined by the Rutherford Institute, submitted an amicus brief supporting the cert petition in Jones v. United States.
Michael D. Tanner
The conventional wisdom says that corporate welfare is the exclusive province of Republicans, always eager to do the bidding of their corporate donors. And, indeed, there are far too many examples of Republicans confusing “free markets” with “good for business.”
Still, there are more than enough examples to show that corporate welfare is a bipartisan sin. The Export-Import Bank? It’s backed by such “populist” Democrats as Senators Elizabeth Warren (Mass.) and Sherrod Brown (Ohio). More Democrats than Republicans support sugar subsidies and programs like the Market Access Program, which subsidizes overseas marketing and promotional activities for agricultural companies and trade associations.
But to see corporate welfare at its most insidious, one need look no further than Obamacare.
President Obama may have indulged the fantasy of himself as lone champion of consumers, standing up to evil Republican-allied insurance companies. But, in reality, Obamacare was a deal between the administration and insurers from the very beginning. In fact, a recent House Oversight Committee report details the close cooperation between White House adviser Valerie Jarrett and insurance-company executives.
“To see corporate welfare at its most insidious, one need look no further than Obamacare.”
This should not be a big surprise. One can go all the way back to Hillarycare in the 1990s, when the Big Five insurance companies at the time (Travelers, Aetna, Cigna, Metropolitan Life, and Prudential, in addition to Blue Cross/Blue Shield plans) were part of the secret White House task force that helped Clinton draft her version of government-run health care.
To see the outlines of the deal that President Obama cut, look no further than the individual mandate. Insurers would accept additional regulation, but in exchange would be guaranteed millions of new customers. After all, what business would not like the government to require consumers to buy its products? If that wasn’t enough to make insurance bigwigs smile, Obamacare would even provide subsidies to help people buy their products.
So far, insurers have done very well under Obamacare. Most of the major insurance companies have seen their stocks rise more than 100 percent since 2010, significantly outperforming the market as a whole.
Now the administration is tying itself in knots in an attempt to make absolutely certain that insurers don’t lose money because of Obamacare.
The latest dustup has to do with a provision of the health-care law referring to “risk corridors.” To make a complex actuarial concept simple: Risk corridors are essentially a mechanism to reimburse insurance companies for losses suffered because too many sick people enrolled in their plans. In the absence of such payments, insurers would likely set their premiums higher in order to make sure that revenue was sufficient to pay expected claims. The Obama administration, though, wanted to encourage insurers to keep their premiums artificially low. The answer was risk corridors. In a sort of insurance-company socialism, companies that priced their plans too high, and therefore made “excessive” profits, would have to pay, and companies that priced their policies too low, and therefore lost money, would be reimbursed.
Unfortunately, as with so much of Obamacare, the theory and what the law actually says are in conflict. Specifically, the law doesn’t actually appropriate any funds for payment to the insurers. But as we’ve learned by now, the administration hardly feels bound by what the law says. First, the Department of Health and Human Services considered setting up a revolving fund, using the designated payments from insurers. The effort was stymied when the Congressional Research Service determined that there was not sufficient legislative authority to create the fund. Undaunted, the administration simply reclassified the insurance-company payments as user fees, since the catchall spending bill passed last January gave it the authority to collect user fees and keep the fees available for use through FY2019.
The problem hasn’t gone away, however. While the bill authorized the Centers for Medicare and Medicaid Services (CMS) to keep those user fees available through 2019, it authorized the fees to be collected only in FY2014 (ironically, a year in which there were no fees to be collected or payouts to be made). The Government Accountability Office says that if CMS is to collect fees and make payments next year, when the government is actually expected to have to pay insurers, there will have to be specific authorization in this year’s spending bill, whether it is a consolidated appropriations bill or another continuing resolution.
The current stopgap continuing resolution expires on December 11, leaving it to a lame-duck Congress whether to renew authority for this insurance-company bailout. Senator Marco Rubio and House Speaker John Boehner have raised objections, but it’s uncertain what Congress will do.
If Congress does authorize the risk corridors, it will be yet more evidence that, when it comes to corporate welfare, bipartisanship still reigns.Michael Tanner is a senior fellow at the Cato Institute and the author of Leviathan on the Right: How Big-Government Conservatism Brought Down the Republican Revolution.