The United States Department of Justice is now on the record saying that South Dakota is violating the Indian Child Welfare Act in its removal of Indian children from their homes. On Friday, Judge Jeffrey Viken accepted the DOJ's motion to submit an amicus brief in support of the Indian plaintiffs in Oglala Sioux Tribe v. Van Hunnik.

The federal brief affirms the position laid out by the ACLU that South Dakota has denied Indian parents due process in Pennington County's 48-hour custody hearings and illegally separated Indian children from their families and tribes:

DOJ’s brief emphasizes that the federal government has a “special relationship” with Indian tribes and Indian people, and that ICWA was passed by Congress to promote and further that relationship.  ICWA places substantial limits on the ability of state officials to remove Indian children from their homes in order to protect the integrity of Indian families and the survival of Indian tribes.  DOJ expressly criticized positions taken by the Defendants, one of which contended that the protections guaranteed in ICWA did not apply to their 48-hour hearings.  The DOJ brief explains that, contrary to the State’s arguments, ICWA “immediately imposes specific ongoing obligations on state officials” in these 48-hour hearings [ACLU press release, via Lakota Voice, 2014.08.18].

The 24-page brief, signed along with the motion to file it by U.S. Attorney Brendan Johnson, says to South Dakota, This is what ICWA says, and you're reading it wrong. It explicitly and vigorously rejects South Dakota's contention that we can ignore ICWA in emergency custody hearings.

South Dakota's violation of Indian family rights under ICWA must be remarkable: ACLU attorney Stephen Pevar, who is helping the Lakota plaintiffs argue their case in Rapid City, says this may be the first time since ICWA was enacted in 1978 that the federal government has intervened in a case like this at the District Court level.

The Department of Justice's intervention in Oglala Sioux Tribe v. Van Hunnik makes clear who really stands on the side of Indian families in South Dakota. It's not the co-opted South Dakota Libertarian Party and its cast of clowns who would dismantle government and abandon Indians to assimilation. It's not fake attorney general candidate Chad Haber, who squawks about abuse in the foster care system to exploit Indian children to fill his campaign bank account and blow smoke in front of his and his wife's own corruption.

The real defenders of South Dakota's Indian families are good people who recognize the need for strong laws and strong government to protect due process and tribal integrity from racism and corruption. The real defenders are good people like U.S. Attorney Brendan Johnson, who signed DOJ's amicus brief and the motion to file it, and the American Civil Liberties Union, which has the knowledge and resources to assist Indian families in this case.

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Aw, nertz! If Marty can't give Jason legal advice, who can?

I've been pinning my needles all day, waiting for the announcement Secretary of State Jason Gant said he would make this morning about the status of the Libertarian nominations of Ryan Gaddy and Chad Haber. There is now grave doubt about the validity of those nominations, since SDLP executive committee member Bob Newland says the two men handed him their voter registration applications on Saturday at convention, and Newland mailed those applications to the county auditor on Monday, meaning those applications had not been processed and Gaddy and Haber were not registered Libertarian voters at the time they were nominated, which state law requires they have been to be legally nominated.

Our grave doubts shall remain unsated for at least another day, maybe longer. Secretary Gant had turned to Attorney General Marty Jackley for a legal opinion on the situation. AG Jackley said, No way!

...[T]he question presents a potential conflict of interest. A ruling against Haber would remove Jackley's only opponent in the November election and give him a second full term unopposed.

Previously, Jackley said he was recusing himself from the question and leaving it in the hands of deputies under a "conflict wall."

"I'm not part of those discussions or that decision-making," Jackley said Thursday afternoon. "I'm not overseeing any advice that is given in relation to that issue."

But discussions had been underway for days about a more radical solution: removing Jackley's office from the picture entirely.

By late Thursday, Jackley said, "everyone was comfortable with it and agreed to it" and Gant announced attorney general's office would remove itself entirely [David Montgomery, "Gant: AG Office Removing Itself from Haber Decision," that Sioux Falls paper, 2014.08.14].

So to whom does Gant turn for legal advice? An attorney general from another state? (Oh, I bet Utah is out.) A U.S. Attorney? (Again, more conflicts.) Hire a private lawyer? (Uh oh: not Brandon Taliaferro! Not Joel Arends!)

Jeepers, Jason: instead of trying to find a lawyer not somehow tainted by Haber's scams, it might be quicker to just use the brains whatever God you believe in gave you and that the voters charged you with using, read statute and your predecessor's very clear precedential statements, and call Gaddy and Haber's nominations what they are: illegal.

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South Dakota Libertarian Party Executive Committee member Bob Newland may have just cut the number of Libertarians on the South Dakota ballot by one third.

Amidst a Facebook discussion of the "huge success" of the SDLP convention last Saturday, I noted that Secretary of State Jason Gant still hadn't added the six Libertarian nominees to the official candidates list as of the end of business Tuesday. Newland replied with this possible explanation for the hold-up:

Bob Newland, Facebook comment, 2014.08.12

Bob Newland, Facebook comment, 2014.08.12

Newland says he received voter registration forms from Ryan Gaddy and Chad Haber on Saturday, August 9, at the convention. The SDLP nominated Gaddy and Haber that day for Public Utilities Commission and attorney general, respectively. Newland says he mailed those forms to Minnehaha County Auditor Bob Litz on Monday.

Now step carefully. There is no need to submit a voter registration card unless one is not registered to vote or unless one is changing one's party registration. Assuming Gaddy and Haber are rational individuals, not given to unnecessary actions, we may reasonably conclude that they handed those forms to Newland on Saturday because they had not yet registered as Libertarian voters.

However, one does not become a registered Libertarian voter the moment one hands a voter registration card to Bob Newland. That voter registration doesn't kick into gear the moment Bob Newland drops that card into the mailbox. One becomes a registered Libertarian voter after the county auditor receives and processes that card. That didn't happen Saturday at convention. It didn't happen Monday at the mailbox. It still hasn't happened in the eyes of the Secretary of State, whose official voter registration database as of end-of-business Tuesday still showed Haber registered Republican.

But back to Saturday. Let's read SDCL 12-6-3.2:

Candidate required to register with party. No person may sign a declaration of candidacy or be nominated as a political candidate for a party unless that person is a registered voter with that party affiliation [South Dakota Codified Law 12-6-3.2].

That law is written in present tense: is, not will become or has applied to become.

That's why, the night before the 2010 Democratic convention, Ben Arndt had to get Lincoln County Auditor Kathy Bonnema to come back to the courthouse after 8 p.m. on a Friday to officially re-register Arndt from Republican to Democrat so the South Dakota Democratic Party could nominate him for lieutenant governor the next day. If Arndt had not done so, then-Secretary of State Chris Nelson would have declared Arndt's nomination illegal and refused to place him on the ballot.

If what Bob Newland says is accurate, if Gaddy and Haber were just handing in their voter registration applications at convention Saturday, if their actual Libertarian voter registrations had not been processed by the county auditor at the time of their nominations, then state law obliges Secretary of State Jason Gant to reject their nominations.

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On Thursday, Attorney General Marty Jackley filed a motion in federal court to dismiss independent gubernatorial candidate Mike Myers's lawsuit against Secretary of State Jason Gant. Myers wants Secretary Gant to put Myers's withdrawn running mate Caitlin Collier with his desired replacement, Lora Hubbel, on the November ballot. Secretary Gant refuses to do so, claiming state law does not authorize such a replacement for independent candidates.

I find that reasoning selective and specious. We could probably identify a number of actions Secretary Gant has taken in the interest of solving problems and helping elections run smoothly that aren't explicitly stated in statute but which make perfect sense.

AG Jackley, alas, is backing Secretary Gant's illogic with more illogic:

The state's lawyers argue that current law allows party-endorsed candidates a chance to replace a nominee through a vote of the party. Without a nominating convention or a party vote on Collier's replacement, allowing Myers to substitute Hubbel would "discard the public's representation in the political process and replace it with the will of one individual" [David Montgomery, "Jackley Wants Judge to Dismiss Mike Myers'[s] Lawsuit," that Sioux Falls paper, 2014.08.08].

Statute doesn't spell out any public representation in the nomination of a lieutenant governor any more than it spells out the process for replacing an independent running mate. Yet where Secretary Gant says the absence of the former binds him to inaction, AG Jackley conjures the former ex nihilo as legal grounds for his defense of Gant.

As I have laid out, discarding the public's representation in the political process happens under Gant and Jackley's interpretation: by maintaining the fiction of Collier's running-mate status on the ballot, Gant denies Myers the chance to select and all voters the chance to directly approve his choice for lieutenant governor. If he would win the election, Myers would be forced to submit Hubbel for confirmation to the Legislature, either house of which could reject the will of the voters. The Attorney General's own argument should compel the Secretary to act in the interest of the voters and truth and print Hubbel's name next to Myers's on the ballot.

Gant himself acknowledges that placing Hubbel on the ballot poses no practical problem:

"Should the judge decide to allow the switch, that will be fine," Gant said. "There's plenty of time" [Montgomery, 2014.08.08].

Gant's predecessor, Chris Nelson, testified to the Legislature in 2009 that the state has no compelling interest in locking in the names of independent candidates before August:

At some point, an independent’s going to challenge that.... Their question to the court is going to be, what is the state’s compelling interest for compelling ... an independent candidate to file so early? ... The state doesn’t need to know who independent candidates are until August, when we begin putting the ballot together [Secretary of State Chris Nelson, Legislative testimony on 2009 HB 1234, February 2009; quoted in David Montgomery, "S.D. Independents Might Have Case for Ballot Leniency," that Sioux Falls paper, 2014.05.06].

Without a compelling reason to keep Myers from replacing his running mate, Gant is denying Myers a right that other party candidates enjoy. Recall that Collier officially withdrew on June 12, and Myers officially announced Hubbel as his second choice on July 8. If either GOP Lieutenant Governor Matt Michels or Democratic running mate Susy Blake had withdrawn and been replaced on that timeframe, Secretary Gant would not have batted an eyelash.

SDCL 12-7-1, which uniquely requires independent gubernatorial candidate to file the names of their running mates before they circulate petitions, and SDCL 12-6-56, which uniquely permits parties to replace withdrawn partisan candidates, work together to restrict access to the ballot for independent candidates without basis in compelling state interest. The 1989 El-Amin v. State Board of Elections of Virginia decision says that sort of discrimination is unconstitutional. The 1980 Anderson v. Firestone decision followed similar reasoning, overruling a similar combination of extra statutory burden on independents and absence of statute making clear a replacement process for independent candidates. In Anderson, a federal court ordered Florida to accept the withdrawal of independent presidential running mate Milton Eisenhower and print on the ballot John Anderson's replacement pick, Patrick Lucey.

Precedent and common sense say Mike Myers should have the same right to replace his running mate as partisan candidates enjoy. Neither Secretary Gant nor Attorney General Jackley has offered a compelling state interest in denying Myers and the voters the opportunity to see Lora Hubbel on the ballot as independent candidate for lieutenant governor.

p.s.: Even if the state prevails in quashing Myers's lawsuit, Secretary Gant still can't print Caitlin Collier's name on the ballot. Collier followed the procedure laid out in SDCL 12-6-55 for candidates to withdraw, and that statute says, "No name so withdrawn shall be printed upon the ballots to be used at such election."

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Let's see: can't fix the Highway Trust Fund, can't fully fund a veterans health care bill, can't provide child immigrants with basic due process... but with the five-week summer recess just hours away, our Congresswoman Kristi Noem finds time to vote for a coup.

Yesterday, Rep. Noem joined 224 of her Republican colleagues in voting to sue the President of the United States of America. Noem and friends are hoping to find some activist judge who will usurp executive power and hand it to the legislative branch. That's a coup.

The House wants a judge to rescind the President's one-year delay of the large-business insurance mandate and tax penalties under the Affordable Care Act and force the President to immediately implement and enforce those provisions. Of course, Noem and her fellow Republicans have tried to repeal that law fifty times, but she'll make a federal case of the President's exercise of his authority to implement that law more slowly than planned.

And yes, the President has that authority:

In fact, applicable judicial precedent places such timing adjustments well within the Executive Branch's lawful discretion. To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been "unreasonably delayed." But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor a credible end to its dithering. In deciding whether a given agency delay is reasonable, current law tells courts to consider whether expedited action could adversely affect "higher or competing" agency priorities, and whether other interests could be "prejudiced by the delay." Even in cases where an agency outright refuses to enforce a policy in specified types of cases -- not the case here -- the Supreme Court has declined to intervene. As held by former Chief Justice William Rehnquist in a leading case on this subject, Heckler v. Chaney, courts must respect an agency's presumptively superior grasp of "the many variables involved in the proper ordering of its priorities." Chief Justice Rehnquist suggested that courts could lose their deference to Executive Branch judgment if an "agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." The Obama Administration has not and is not about to abdicate its responsibility to implement the statute on whose success his historical legacy will most centrally depend [Simon Lazarus, "Delaying Parts of Obamacare: 'Blatantly Illegal' or Routine Adjustment?" The Atlantic, 2013.07.17].

Question #1 for Kristi at her upcoming debates with Corinna Robinson: "Tell us, Congresswoman, how does suing the President to force implementation of a law that you want repealed and that you say will increase costs for businesses practically benefit South Dakota?"

Question #2: "How much will your lawsuit cost the taxpayers?"

Question #3: "Barack Obama won two Presidential elections and is in the sixth year of his Presidency. Are you willing to acknowledge this fact and move on?"

Voters, feel free to bring these questions up at all of the constituent service events and town halls that I'm sure Rep. Noem will be filling her recess calendar with. But don't take too long to ask: along with frivolous litigation, Noem is busy organizing a pheasant hunt for her big donors September 14–16. Suggested donations: $1,500 for individuals, $2,500 for PACs. (I'd like to see what kind of shotgun a PAC packs.)

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Senator Larry Tidemann (R-7/Tidemann) acts like he's afraid of his own shadow. He chairs the Legislature's Government Operations an Audit Committee. His committee has the power to subpoena witnesses to investigate crimes, corruption, and just plain sloppy work in state government.

Yet, as was the case in June, Senator Tidemann keeps looking for excuses not to use that subpoena power. Heading into today's GOAC meeting, during which the committee is supposed to discuss financial misconduct in the Governor's Office of Economic Development and the EB-5 visa investment program, Senator Tidemann tells David Montgomery that he doesn't think he can subpoena EB-5 chief Joop Bollen:

Tidemann said his committee has a limited scope in terms of investigating a complex scandal that combines government and private business.

“We are not the court system,” Tidemann said. “We can bring in things that deal with state government. I can’t bring you in to talk about your private funds. I don’t think that’s in the authority of GOAC” [David Montgomery, "," that Sioux Falls paper, 2014.07.29].

Even though Kurt Evans has taken the weight off my shoulders, permit me to do the attorney general's job for a moment.

GOAC, the Legislature, and all sorts of other public agencies have subpoena power:

1-26-19.1.   Administration of oaths--Subpoena powers--Witness fees--Disobedience of subpoena. Each agency and the officers thereof charged with the duty to administer the laws of this state and rules of the agency shall have power to administer oaths as provided by chapter 18-3 and to subpoena witnesses to appear and give testimony and to produce records, books, papers and documents relating to any matters in contested cases and likewise issue subpoenas for such purposes for persons interested therein as provided by § 15-6-45. Unless otherwise provided by law fees for witnesses shall be as set forth in chapter 19-5 and be paid by the agency or party for whom the witness is subpoenaed.

Failure of a person to obey the subpoena issued pursuant to this chapter may be punished as a contempt of court in the manner provided by chapter 21-34 [South Dakota Codified Law 1-26-19.1].

The Legislature itself acknowledged GOAC's subpoena power in HCR 1010, the resolution the Legislature passed last February to assure us that the Legisalture would do something about the GOED/EB-5 scandal and to forestall pressure for immediate and firmer action against GOED and SDRC Inc.:

...the South Dakota Legislature requests the Joint Committee on Government Operations and Audit to conduct hearings on issues related to the Governor's Office of Economic Development, beginning this 89th Legislative Session upon receipt of three independent audits. Hearings may include a review of all available audits and other information, ordering of additional audits, questioning of persons involved in related economic development projects, and opportunities for public testimony. The committee's powers to summon witnesses and issue subpoenas may be exercised as necessary... [2014 HCR 1010].

Review the rules of procedure for subpoenas in Chapter 15-6, and you find no language exempting private parties or private funds from subpoena. Senator Tidemann may defend his subpoenal reticence with SDCL 2-6-4, which defines the scope of GOAC's investigative power:

2-6-4. Investigative powers of Government Operations and Audit Committee. The Government Operations and Audit Committee may examine all records and vouchers, summon witnesses, and thoroughly examine all expenditures and the general management of each department [SDCL 2-6-4].

That statute refers to government departments. But remember, everything Bollen did in managing EB-5, even after he and Richard Benda finagled EB-5 authority into a private entity to better shield their get-rich-quick schemes from public oversight, he did under authority granted solely by a state contract with the Department of Tourism and State Development (now GOED). The funds Bollen managed were authorized by the state. The $989,946 indemnification fund that Bollen's SDRC Inc. is still holding belongs to the state.

Senator Tidemann, this isn't hard. Governors Rounds and Daugaard allowed the privatization of a state program. Under Bollen, SDRC Inc. was carrying out the functions of a state department. To suggest that state functions are rendered immune from state oversight by handing them to private contractors creates a perverse incentive and escape for corrupt state officials.

Subpoena Bollen. Find out how he used his state authority.

22 comments

Leading the fight against abuses of South Dakota's foster care system is the American Civil Liberties Union, which is helping the Oglala and Rosebud Sioux tribes fight state officials who have been removing children from American Indian homes without sufficient due process and in violation of the federal Indian Child Welfare Act.

The ACLU had to fight South Dakota judges to gain access to transcripts from initial custody hearings involving Oglala and Rosebud parents and children. ACLU attorney Stephen Pevar says the 120 transcripts they've been able to review so far show regular disregard for parental and child rights under ICWA:

Nearly 100 percent of the time, Indian children were removed from their homes in those hearings. The average length of time those hearings took was less than 4 minutes. Within that time, of the six different judges that oversaw the hearings, not one judge ever told one Indian parent that they have a right to contest the state's petition for temporary custody of their children in the hearing on the petition.

During those hearings, the parents were not told the reasons for the removal, not provided with an attorney, not allowed to submit any evidence, and not allowed to cross-examine the Social Services worker who had submitted an affidavit against them. In most cases, the parents were not even allowed to see the affidavit [Stephen Pevar, "Why Are These Indian Children Being Torn Away From Their Homes?" ACLU: Blog of Rights, 2014.07.23].

Department of Social Services data show that South Dakota Indian children are eleven times more likely to be taken from their parents and placed in foster care than non-Indian children.

In a motion for summary judgment filed July 11, the ACLU and plaintiffs contend that the defendants (Department of Social Services Secretary Kim Malsam-Rysdon, Department of Social Services employee LuAnn Van Hunnik, Pennington County State's Attorney Mark Vargo and 7th Judicial Circuit Court Presiding Judge Jeff Davis) have failed to dispute any material facts in the case, including the clear obligation imposed on the state by this clause in the Indian Child Welfare Act:

Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, official or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate [ICWA, Section 1922, emphasis added in plaintiffs' motion for summary judgment, Oglala et al. v. Hunnik et al., 2014.07.11].

Pevar offers these examples from the 48-hour hearing transcripts of the state failing to terminate emergency removal or placement of Indian children when the threat of imminent harm has passed:

  • A mother abused by her boyfriend lost custody of her child even though the abuser was not being allowed to return to the home. Before the judge's decision, the mother pleaded with the judge not to punish her for what the abuser had done.
  • A father going through divorce was denied custody of his children solely because his estranged wife got into trouble with the police, even though no evidence was introduced suggesting that the children would be at risk staying with the father.
  • A mother lost custody of her daughter merely because the daughter's babysitter had become intoxicated, without any showing that the mother knew that such a thing might occur.
  • A father who tried to discuss the merits of his case was interrupted by the judge and told that the details of child custody removals were not to be discussed in 48-hour hearings, and then the judge signed an order removing the child from the father's custody [Pevar, 2014.07.23].

The plaintiffs had to get federal Judge Jeffrey Viken to order the release of the transcripts that support their case. Defendant Judge Davis had released some of those transcripts of his own accord but now is apparently trying to withhold additional information. In a motion to unseal filed Monday, the plaintiffs allege that Judge Davis is "concealing information prejudicial to his case" by asserting that a motion for sanctions filed by the plaintiffs should remain sealed because "it subjects the Defendant Judge Davis to unnecessary and unjustified embarrassment and public scandal." The plaintiffs find that justification for sealing a public document wanting:

The ground asserted by Judge Davis in support of keeping the Motion sealed is invalid in this context. Specifically, if subjecting a party to “unnecessary and unjustified embarrassment and public scandal” could justify the sealing of pleadings in federal litigation in the manner asserted here, every defendant in every civil case would have the power to seal each plaintiff’s complaint and other court filings.

...The sole ground tendered by Judge Davis for keeping Plaintiffs’ Motion for Sanctions sealed is invalid. This is a case of major public importance, involving the fundamental liberty interests and federal statutory rights of every Indian family with children in Pennington County, South Dakota. Judge Davis may not control the public’s access to documents filed in federal court merely to protect his sensibilities or his reputation [Plaintiff's Motion to Unseal, Oglala et al. v Hunnik et al., 2014.07.21].

This is a case of major public importance. A victory in this lawsuit would be a firm step toward addressing the systemic abuses of Indian family rights in South Dakota's foster care system revealed by NPR's Laura Sullivan and Amy Walters in 2011. That victory requires the persistence of the tribes and the continued conscientious service of the ACLU.

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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.

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