We now present Halbig v. Burwell, the court challenge by which two D.C. Court of Appeals judges would destroy the Affordable Care Act, thanks to one selfish dolt.

First, let's understand the grounds for the ruling. The plaintiffs don't like the ACA's health insurance mandate. They don't want to have to buy health insurance. They also don't want to pay the ACA penalty for not buying insurance. They face this penalty because, thanks to the tax subsidies offered by the ACA, they could buy health insurance on the ACA exchange for less than 8% of their income (that's the standard for "affordability" used by the ACA to determine whom to exempt from the insurance mandate).

But wait: if those subsidies weren't available, the cost of those cheapest qualifying policies would be more than 8% of their income. The ACA doesn't penalize people who can't afford insurance. So get rid of the subsidy, make health insurance unaffordable, and the plaintiffs get out of the penalty and the health insurance mandate!

So the plaintiffs get the D.C. Court of Appeals to rule that the language in the ACA authorizes the federal health insurance premium subsidy only in states that set up their own health insurance exchanges, leaving folks in 36 states (like South Dakota) forced onto the federal exchange by circumstance or Republican governors unable to access the premium subsidy that Congress intended via the ACA to make available to every American.

This thrilling political adventure is brought to you by one West Virginia man who would rather flip the bird at Uncle Sam and cause millions of his fellow Americans to pay hundreds, perhaps thousands of dollars more on their health insurance than pay $21 a year for health insurance for himself. From today's ruling:

The district court determined that at least one of the appellants, David Klemencic, has standing. Klemencic resides in West Virginia, a state that did not establish its own Exchange, and expects to earn approximately $20,000 this year.1 He avers that he does not wish to purchase health insurance and that, but for federal credits, he would be exempt from the individual mandate because the unsubsidized cost of coverage would exceed eight percent of his income. The availability of credits on West Virginia’s federal Exchange therefore confronts Klemencic with a choice he’d rather avoid: purchase health insurance at a subsidized cost of less than $21 per year or pay a somewhat greater tax penalty [Judge Thomas B. Griffith, Halbig v. Burwell, D.C. Court of Appeals, 2014.07.22].

For the record: if there's a health insurance policy sitting on your plate for $21 a year, and you don't want it, I'll buy it. Heck, I'll buy it and another one for you. I can find twenty people in ten minutes who would each chip in a buck to buy you your $21 a year policy just so you'll shut up and let everyone else enjoy affordable health insurance.

Mr. Klemencic's crass selfishness did not become law of the land today. Down the road in Richmond, the federal 4th Circuit Court, hearing the similar King v. Burwell lawsuit, ruled the opposite way. The 4th Circuit doesn't dunk the ball for the ACA, saying that the federal government offers a slightly better but not conclusive argument of legislative intent. Faced with plausible alternative interpretations, the court chooses not to usurp the  IRS's regulatory authority to interpret legislative intent by applying the premium subsidy to federal exchange customers.

Read that again, Republican readers: the IRS is using its discretion to lower more Americans' taxes, and the 4th Circuit is eschewing judicial activism. Who's your friend?

The two D.C. Court of Appeals judges who supported Klemencic's argument are Republican appointees; the dissenting judge is a Democratic appointee. The three 4th Circuit judges who ruled in favor of the ACA and IRS are all Democratic appointees. Whatever the proper interpretation of the law (and heck, even mine may be colored by partisanship!), Black Hills  big-thinker Stan Gibilisco wishes the courts could assure us they are reading the law, not the political scorecards:

Much to Gibilisco's chagrin, the press is playing that baseball, counting seven Democratic heads and four Republican on the full D.C. Court of Appeals, from which the Obama Department of Justice has already promised to request an en banc review of Halbig.

Meanwhile, over four million taxpayers who purchased insurance on the federal exchange and qualified for premium subsidies will live in uncertainty as to whether their insurer or the IRS will take that money back. But if those taxpayers lose, they can at least be happy for Citizen Klemencic's pyrrhic $21 savings.

23 comments

A friend of the blog calls to express her annoyance and puzzlement at being pestered by the Republican National Committee at home today. My correspondent reports receiving a 35-second robocall this morning from some outfit with the words American, research, and survey in its name, although the robocall appeared to be doing neither of the latter. The call  instead maligned President Barack Obama and Senate Majority Leader Harry Reid and urged my correspondent to weaken those two leaders by not sending Rick Weiland to the Senate. The call did not mention Mike Rounds's name. It concluded by saying it was paid for by the RNC.

My correspondent expressed puzzlement for three reasons:

  1. It's July. One might expect calls like this to roll out right before people go to the polls.
  2. My correspondent is a known Democrat. My correspondent reports that one other strong Democrat in her black book received the same RNC robocall. What political consultant thinks throwing Obama and Reid and Democrats is the most effective way to get them not to vote for Democrats? Is the RNC worried that Elizabeth Warren is going to inspire South Dakota Democrats to stop apologizing and work even harder for her friend Rick Weiland?
  3. It's South Dakota. Nobody in the national media has declared South Dakota's Senate race competitive. What evidence would the RNC be looking at to motivate them to spend money on the South Dakota Senate race?

I invite your interpretations of this minor RNC engagement in the Rounds–Weiland race. And if you get such a call, I welcome your transcript thereof!

19 comments

Last month, Toby Uecker brought you the debut of Rick Weiland's newest campaign song, "Bring on the Road," as performed live on the shore of Lake Madison at the home of Jeff and Trudi Nelson.

Now the Democratic candidate for U.S. Senate releases the official campaign music video version of the Roger Miller refit.

Weiland amps up the delivery—not quite to an Axl Rose yowl, but definitely adding some growly edge over the debut performance at Lake Madison. I like some growl in my campaigns!

The song is a fine follow-up to Weiland's spring single "Everywhere Man." If he releases just a couple more songs, Rick could play the Freedom Stage at the State Fair... or open for Alabama!

Update 12:33 CDT: Team Weiland may not get to open for Alabama, but they will be airing this video on real TV, on KELO News at 6 p.m. tonight.

10 comments

Livability.com screws up royally in ranking Spearfish the seventh best small town in America. They should, of course, rank Spearfish #1!

What makes Spearfish so great in Livability's eyes and mine?

Here are the six towns Livability mistakenly ranked as better than Spearfish, plus the remainder of the top ten:

  1. Los Alamos, New Mexico
  2. Northfield, Minnesota
  3. Lebanon, New Hampshire
  4. Hood River, Oregon
  5. Port Angeles, Washington
  6. Glenwood Springs, Colorado
  7. Spearfish, South Dakota
  8. Heber City, Utah
  9. Traverse City, Michigan
  10. Hailey, Idaho
12 comments

In discussing the relative merits of potential Libertarian candidates for attorney general, my Libertarian neighbor Bob Newland has noted that Republicans have selected candidates for that office whom he finds extremely objectionable, like Bill Janklow.

Bill Janklow, 1978, Chad Haber, 1998... sure, I can see the resemblance, kinda, sorta...

Bill Janklow, 1979, Chad Haber, 1998... sure, I can see the resemblance, kinda, sorta...

I remind Newland and his Libertarian cohorts that the man most publicly seeking their AG nomination, Chad Haber, likes to tout that he's just like Bill Janklow.

In March 2013, Haber's non-profit Preventive Health Strategies published a newsletter in which one article credited Haber for restoring running water to 70,000 villagers in Cabaret, Haiti. The article deemed Haber "The Haitian Bill Janklow":

Most South Dakotans knew the late Bill Janklow, a former 16-year governor, as a fast-driving, gun-carrying, extremely no-nonsense politician.

Haber knew Janklow well, as governor, Congressman, private-practice attorney and friend [Preventive Health Strategies, "South Dakotan Brings Running Water to Haitian Village," Meaningful Medicine, March 2013].

Responding to a tense clash with the local mayor, Haber recalled an alleged incident with Janklow:

“I was in a meeting once when Bill Janklow whipped out a pistol and waved it around. It probably wasn’t appropriate here, but I just laughed.”

“‘I had a friend I wish you could have met,’” [Haber] told the Mayor.

At that point, the Mayor started laughing, as well, and the meeting continued.

Haber realized he was asking for too much, but, like Janklow, he likes to get right to the point [PHS, March 2013].

Libertarians have an opportunity to nominate a candidate who would represent a real change from the status quo of Republican power politics in South Dakota. They will squander that opportunity if they nominate Chad Haber, a registered Republican who styles himself as the next incarnation of Bill Janklow.

8 comments

Secretary of State Jason Gant has refused to place Lora Hubbel on the November ballot. Yesterday Hubbel received a letter from Secretary Gant, dated July 18, stating that there is no statutory mechanism by which his office can accept Hubbel's certification of her status as Myers's running mate nor recognize the withdrawal from the ticket of the candidate Hubbel would replace, Caitlin Collier.

The procedures for the nomination of independent candidates for Governor and their running mates are covered in South Dakota Law (SDCL) Chapter 12-7. SDCL 12-7-1 provides in part "An independent candidate for Governor shall certify the candidate's selection for lieutenant governor to the secretary of state prior to the circulation of the candidate's nominating petition. The candidate and the candidate's selection for lieutenant governor shall sign the certification before it is filed." In this case, Ms. Collier was properly certified before the circulation of the petition.  Because the time for petition circulation and the filing deadline have passed, there is no statute allowing certification of another independent candidate for lieutenant governor. Additionally, an independent candidate for lieutenant governor cannot simply drop off the ballot. Article IV section 2 of the South Dakota Constitution requires that the governor and lieutenant governor be jointly elected.

If Michael Myers is elected as Governor he may appoint a new lieutenant governor subject to confirmation by majority members [sic] of each house of the legislature pursuant the South Dakota Constitution Article IV section 6 [Secretary of State Jason Gant, letter to Lora Hubbel, 2014.07.18].

I recognize the need for the secretary of state to be a stickler for rules, and Secretary Gant has demonstrated that he can be a stickler when he wants to be. But in this case, Secretary Gant is needlessly punishing Hubbel (a known bête noire among Gant's Republican friends), Myers, and the voters. No votes have been cast. No ballots have been printed. No dispute exists over the practical facts of Collier's withdrawal or Myers's selection of Hubbel. No fraud has been committed by anyone in seeking to place Hubbel's name on the ballot next to Myers's, and no harm will be done to anyone by the stroke of the pen that would align the November ballot with reality.

Quite the opposite: by refusing to place Myers's running mate on the ballot, Secretary Gant is disenfranchising the thousands of citizens who will hear Myers and Hubbel campaign and wish to vote for Myers and Hubbel in November. While citizens voting Republican or Democrat get to choose their lieutenant governor by direct vote, Secretary Gant is pre-empting the will of Hubbel voters and subjecting their choice to the will of a partisan Legislature.

As with many other electoral laws, the statute Secretary Gant discriminates against candidates who are not members of recognized political parties. Independent Myers had to get Collier to file her status as his running mate last winter, before he could circulate his petitions. Republican Governor Dennis Daugaard and his Democratic challenger, Rep. Susan Wismer, did not have to name their running mates until June. Independent running mates apparently have no right to withdraw, and Independent gubernatorial candidates have no right to replace. If either Republican running mate Matt Michels or Democratic running mate Susy Blake decided to withdraw today or during the next two weeks, statute would clearly permit Daugaard and Wismer to name replacements through August 12.

Keeping Lora Hubbel off the ballot serves no compelling state interest. The question now is whether the Myers-Hubbel campaign will take that argument to court. Challenging statutory discrimination and disenfranchisement could win Myers more support among Independents who are sick of the big-money parties rigging the system. Myers is a law professor, so he could argue his own case and minimize the impact on his cash-strapped campaign. And not that anyone should use the courts for publicity, but one could argue that fighting a high-profile court battle against the Secretary of State could bring the Myers-Hubbel campaign more positive publicity for the dollar than any other investment of their sparse campaign resources.

But time is tight: Myers has three weeks to make these arguments in court. After that, the chances of a judge raising a stop sign to printed ballots (even false ballots) diminish greatly, and we would have to wait for a legislative fix.

4 comments

I may agree with 52% of the Libertarian platform, but I'm in 99.5% agreement with Senator Elizabeth Warren's progressive principles, which she offered Friday, July 18, at Netroots Nation in Detroit. Let's do some line by line!

1. "We believe that Wall Street needs stronger rules and tougher enforcement, and we're willing to fight for it."

  • Crash your truck into city hall, and you will spend time in jail. Get a bunch of greedy MBAs together and crash the global economy, and you don't even get a ticket. Yup, I'm with you, Senator Warren.

2. "We believe in science, and that means that we have a responsibility to protect this Earth."

  • Prayer didn't decrease acid rain, and Jesus won't get us to Mars or Alpha Centauri.

3. "We believe that the Internet shouldn't be rigged to benefit big corporations, and that means real net neutrality."

  • Internet is like water now: information and equal access for all.

4. "We believe that no one should work full-time and still live in poverty, and that means raising the minimum wage."

5. "We believe that fast-food workers deserve a livable wage, and that means that when they take to the picket line, we are proud to fight alongside them."

  • I'll take a half-point off for singling out fast-food workers; every worker deserves a livable wage. That said, food service folks, I'm with you, right beside Senator Warren.

6. "We believe that students are entitled to get an education without being crushed by debt."

  • The less debt students are saddled with when they start working, the more money they can pour into (a) immediate economic activity and (b) long-term savings, both of which improve our national budget situation.

7. "We believe that after a lifetime of work, people are entitled to retire with dignity, and that means protecting Social Security, Medicare, and pensions."

  • Work should be a vocation, an activity in which we take pride. But in a wealthy society, even the luckiest workers who love their jobs should have the liberty to say, "I've done enough" and rest.

8. "We believe—I can't believe I have to say this in 2014—we believe in equal pay for equal work."

  • Again, every worker has dignity. Pay must respect that dignity. To say one worker has less dignity than another is immoral.

9. "We believe that equal means equal, and that's true in marriage, it's true in the workplace, it's true in all of America."

10. "We believe that immigration has made this country strong and vibrant, and that means reform."

  • If the Iroquois had rounded up the Cherokee, Lakota, and others and built better walls, we wouldn't be here.

11. "And we believe that corporations are not people, that women have a right to their bodies. We will overturn Hobby Lobby and we will fight for it. We will fight for it!"

  • How can we treat Hobby Lobby like a person while treating women like breeding stock?

Yup, looks like I'm a 99.5% Warren Democrat. Rick, you are too, right? Corinna? Susan? Come on, what Democrat wouldn't be? What worker, mother, son, or American wouldn't be?

20 comments

The South Dakota Libertarian Party doesn't have to nominate a con-artist or a socialist French teacher for attorney general. The SDLP can choose to nominate no one. That's the question I turn over to you, dear readers: given a choice between Chad Haber and Cory Allen Heidelberger, whom should the SDLP nominate? Or in that situation, should the SDLP nominate no one, and let AG Marty Jackley ascend to a second term unopposed?

*   *   *
Chad Haber has finally poked his head out from under his shell and handed the press his jobless, degree-less résumé to support his effort to distract from his wife's impending conviction. The putative (the Spanish would use a shorter word) candidate for the Libertarian nomination for attorney general asserts that he will help the Libertarian Party by being a viable candidate:

"This'll be a real candidacy. We know how to raise money," Haber said [David Montgomery, "S.D. Politics: Libertarians Looking to Fill Gap," that Sioux Falls paper, 2014.07.21].

The thunder you hear is unpaid employees, raffle ticket holders, and the folks who loaned Haber and his wife an RV to winter in all laughing.

Haber also feigns largesse by saying he'll defer to a candidate who satisfies his criteria for "more qualified":

But he said he was hoping to find another lawyer to run against Jackley, and is still willing to "step aside" if "someone more qualified steps up."

Haber said his standards for "more qualified" primarily are based on a candidate being willing to "stand up" to Jackley [Montgomery, 2014.07.21].

O.K., Chad. I'm your man.

I've been calling out Marty Jackley for dereliction of duty and the state of South Dakota in general for corporate cronyism and oppression since before Chad and Annette fled his failing mortgage scam in Utah (which, by the way, Pat Powers finally gets around to throwing in Haber's face now that Chad is attacking Pat's pal Marty... more than a full year after I brought you that story and Raymond Paul Morris's accusation that Haber ran the mortgage-Ponzi scheme that sent half a dozen people to federal prison).

So Chad, you can already drop your candidacy, because a better candidate has come along: Cory Allen Heidelberger, honest and dedicated stander-upper to Marty Jackley.

Not that the South Dakota Libertarian Party needs convincing, since every Libertarian who has spoken publicly about the Haber candidacy has rejected it, but I made this case Friday to Bob Newland and other Libertarians that I'm a better candidate for their party. Look at all the qualities I can bring to the ticket that Chad Haber cannot:

  1. Lots of Democratic voters.
  2. The highest vote total ever received by a Libertarian nominee in South Dakota.
  3. Proven rhetorical skills (read Chad's writing, especially when he tries to get technical: you need to communicate more coherently than that to campaign, not to mention produce legal opinions and speak for the state of South Dakota).
  4. No one in my immediate family distracting with felony charges.
  5. Firm grasp of South Dakota legal and political issues, including EB-5.
  6. Proven record of reporting corruption in South Dakota, including the Taliaferro/Schwab case, which I covered two years before Chad Haber ever mentioned it.
  7. An honest dedication to truth, justice, and South Dakota, not self-promotion.

Plus, I've established that I can accept at least 52% of the Libertarian platform. Haber has offered no such detailed analysis of his political views.

Libertarians should not be fooled by Chad's only other claim to qualification for candidacy, his and his wife's purported ability to raise money. Sure, on paper, they raised more money for the GOP Senate primary than everyone else except Mike Rounds (and they outdid him in April and May). But every penny documented so far covered paid Base Connect and its associates to get those donations. That money didn't promote a political agenda. It enriched clever direct mail companies and bought Annette some Starbucks. That money also came mostly from out-of-state hot-button donors who won't give a rat's toejam about an in-state AG's race.

Translation: Chad won't bring you Libertarians any money. I can promote the Libertarian agenda better with a couple speeches and a few good blog posts.

But here's the big question for the South Dakota Libertarian Party: do you want either of us?

Suppose those lawyers Emmett Reistroffer is jawboning all back out. Suppose the Libertarian Party is stuck with just two candidates for attorney general: Haber and me. We both can get press for the party, but we neither one are lawyers, meaning we neither one can carry out the primary statutory duty of the attorney general: representing South Dakota in court. The question may not be who's the better candidate; it may be which one is less of a joke?

31 comments

MVT Poll: US Senate

U.S. Senate - July 2014
Who gets your vote for U.S. Senate?

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