The Equal Protection Clause's Double Edged Sword

The Supreme Court has placed two cases on their docket in 2015 that will be decided by June 30 that have the potential to be important turning points for our country.  This post presents a legal logic that shows how a decision by the Supreme Court that finds homosexual marriage constitutional in the first case should also find the current ObamaCare case before the court unconstitutional. 

 

Earlier this month the Supreme Court announced it was getting back in the marriage business when it said it would decide whether or not homosexual couples have the constitutional right to marry everywhere in America – currently 36 states & DC legally recognize homosexual marriage meaning there are only 14 states that don't.  See graph below from Wikipedia.

 

click on map to enlarge

 

Couple this homosexual marriage case with the addition of the ObamaCare case last November to the Supreme Court docket regarding whether or not subsidies (in the form of income tax credits applied to healthcare insurance premiums) for low and middle income healthcare insurance purchasers are available under the ObamaCare legislation if healthcare insurance is purchased on a federal exchange rather than a state exchange & we have the potential for two important turning points in our country in 2015.  Currently only 16 states and DC have established healthcare insurance exchanges so a ruling denying subsidies to the people in the 34 states that bought their healthcare insurance under the federal exchange has the potential to cripple ObamaCare as described hereinafter. 

 

The homosexual marriage issue gained momentum after June of 2013 when the Supreme Court struck down part of the anti-homosexual Defense of Marriage Act that was enacted in 1996 during the Clinton administration.  Since then courts have found bans on homosexual marriage unconstitutional & four Appeals Courts have upheld the unconstitutionality of such bans.  When the Court of Appeals for the Sixth Circuit found the bans constitutional in the four states (KY, MI, OH, TN) served by the Sixth Circuit Court the Supremes agreed to hear four cases that were brought on appeal by homosexual-couple plaintiffs regarding the Sixth Circuit Court's ruling regarding whether states may constitutionally ban same-sex marriages &/or refuse to recognize such marriages legally performed in another state.

 

The foregoing is a brief summary of the court actions that resulted in the Supreme Court agreeing to take up the homosexual marriage issue.  Do your own research if you need more detail on the cases.

 

The common thread in all of the lower court cases that found the homosexual marriage bans unconstitutional was the Equal Protection Claus of the 14th Amendment - no state shall deny to any person within its jurisdiction "the equal protection of the laws", & if this controls in the Supreme Court decision homosexual marriage will be the law of all the land.

 

Now extend the same equal-protection-of-the-laws logic to the ObamaCare case.  Does someone in New Jersey not have the same right to subsidies when buying the same healthcare insurance policy as someone in New York does just because NJ did not set up its own healthcare insurance exchange like NY did?  Of course this logic separates all the 16 states & DC who set up their own healthcare insurance exchanges from the 34 states who did not set up their own healthcare insurance exchanges.  See map below that shows the 34 states where people could lose their healthcare insurance subsidies because of the ObamaCare lawsuit described above.  The case is not intended to directly affect the half of the law's coverage regarding Medicaid expansion.  This post also does not address the probable dissatisfaction with ObamaCare that healthcare insurance policy holders will feel once they realize the co-pays & high deductibles that must be met before any benefits are paid.

 

 click on map to enlarge

 

In this eventuality the problem for the ObamaCare legislation starts because many people in the aforementioned 34 states would not be able to afford the healthcare insurance premiums without the subsides & accordingly the individual mandate that requires people to buy healthcare insurance in the first place would no longer apply to such people who would just simply drop their healthcare insurance coverage – ObamaCare exempts people from complying with the law if the premiums exceed 8% of household income.  Similarly, such a ruling would extend to large employers in these 34 states who don't offer healthcare insurance to fulltime employees in that they would no longer have to pay a penalty for not offering healthcare insurance because the employer mandate is contingent upon the employer's employees being eligible for the subsidies.  No healthcare insurance policy, no premiums, & no penalty for either the individual or employer for respectively not having or providing healthcare insurance means ObamaCare is rendered null & void for over half the people in the country because the law would be unconstitutional because it would not treat people in all 50 states the same.

 

This provides a tremendous opportunity for the Republicans who have incessantly talked about reforming & replacing ObamaCare for years.  But what would they actually do?  Boehner says there are three committees working on a Republican alternative but one unifying replacement has never been presented.

 

What is known is that 87% of the people who signed up for ObamaCare on the federal exchange in 2014 were eligible for subsidies that covered three quarters of the premiums – the average monthly premium was $346 for individuals who qualified for federal subsidies but those individuals were responsible themselves only for $82 a month once the subsidies were applied.  Nearly half of such people paid less than $50 per month.

 

It is highly doubtful that these recipients will want to give up their healthcare insurance policies & subsidies just because nine unidentifiable people (to most of them) in black robes made a decision based on a document written 228 years ago.  This type of practicality by people only interested in what they can game out of the system today will put tremendous pressure on 1) Republican members of Congress to quickly remedy the ObamaCare legal problem in a way that restores the subsidies &/or 2) governors in the 34 nonconforming states to establish their own state ObamaCare healthcare insurance exchanges thereby making everyone with earnings below 400% of the federal poverty level within their state eligible for the subsidies.  Either way it will not be a pretty picture of capitulation.  I would have to see Boehner & the Republicans stand up to this pressure to believe it.

 

To not leave Boehner alone on the limb that is being sawed off I offer The Solution To America's Healthcare Problems.

 

With regard to the homosexual marriage case - the problem really is that the government has stuck its nose in & there are some 1,100 federal laws that rest on the definition of marriage.  Do away with these laws & you have removed the equal protection of the laws argument. 

 

Bill Rollyson has written to me regarding government approved marriage -  "It is another source of government control. . .heterosexual couples should be fighting to leave a state-controlled approved marriage instead of gay couples fighting to be put under its control."

 

Reference Post - Individual Rights & Homosexual Marriage

 

Business Failures & Worker's Declining Income Portray The Real SOTU But BO's Approval Bumps Up

". . . when small & medium-sized businesses are dying faster than they're being born, so is free enterprise.  And when free enterprise dies, America dies with it.  Let's get one thing clear: This economy is never truly coming back unless we reverse the birth & death trends of American businesses." – Jim Clifton, Gallup CEO & Chairman speaking about business survival in America

 

click on graphs to enlarge

 

The above remarks by Jim Clifton & the information on the above graphs conveys the current state of the union much clearer than anything BO said in Tuesday night's SOTU address where BO again presented totally misleading information on just about every issue.

 

Since 2008 employer business startups have been exceeded by business failures.  Gallup reports there were 400,000 new business startups & 470,000 business failures in 2011.  The U.S. now ranks twelfth among developed nations in business startups behind such countries as Hungary, Denmark, Finland, New Zealand, Sweden, Israel, & Italy – the country is heading in the wrong direction but is still higher in this regard than BO would like.

 

We can see that a deteriorating trend was already underway when the keeping of these records began in 1977 – such deterioration coincides with the country's descending stages of Death Of Democracy.  In the 70s & early 80s America was in the complacency to apathy stage with a slight uptick thanks to President Reagan that lasted a few years.  Since then we have declined to the apathy to dependence stage right before our eyes & BO is trying his best to accelerate the dependence back into bondage stage during his last two years in office.

 

Death Of Democracy describes the path a country follows when it operates with one big government party with two wings who take turns being in power playing loose with the citizen's money.  BO did not cause the problem but he sure is trying to seal the deal as more & more regulations & taxes make running a small business virtually impossible thereby leading to increasing government dependence.

 

The graph below shows another terrible state of our union - the over $2,000 in inflation adjusted decline in the median household income from 2009 through 2013 under BO's presidency.

 

click on graph to enlarge

 

But, despite all this economic misery, since the first of the year every poll measuring BO's job approval has increased with the Washington Post – ABC News poll coming in @ 50% approval.  In fact BO is now in a statistical tie with President Reagan's approval ratings @ the start of his seventh year in office.

 

click on graph to enlarge

 

Now I know that the Washington Post brings up suspicion among conservative readers of RTE but all the other polls also show good bumps up for BO.  The above graph shows 10% gains for BO among Dems, moderates, & white evangelical Christians, 22% for Hispanics, & 19% for adults younger than 30.  BO may lose some of these groups for a short time from time to time, but except for the evangelicals, they always come back to him & really any Democrat.

 

Many showing favor for BO in the above graph may not have the economy & the poor jobs condition described above as their top priority.  For instance, last fall Hispanics could only be pleased with BO's executive action that was the biggest rewrite of U.S. immigration policy in decades that removes the threat of deportation for millions of illegal immigrants – having Ana Zamora, an illegal immigrant as a guest in MO's SOTU box, does not hurt either.  Zamora has gained work authorization through BO's pro-amnesty policies, obtained a work permit, a Social Security number, a driver's license, & her parents are eligible to participate in another one of BO's programs regarding parents that was announced by BO in November.  Thanks to Iowa Congressman Steve King for pointing this out to me.

 

BO's plans call for tripling the maximum child-care tax credit to $3,000, expanding the Earned Income Tax Credit to childless adults, & creating a new $500 credit for households where both adults work – the new spending programs are paid for by $320 billion in new taxes over ten years coming theoretically from revenue from higher top capital-gains tax rates & new inheritance taxes.

 

In addition 1) BO would like Congress to pass legislation that would increase paid sick leave thereby extending government's reach in making policies for businesses & 2) make community college free for some low income workers picking them as winners while choosing people who had responsibly used the popular 529 accounts to save for their children's education as losers.  BO said that lowering taxes of the working class will be "putting thousands of dollars in their pockets each year."

 

It is this nine word statement that is the key to understanding why many people have no interest in the poor job condition of America – BO plans on "putting thousands of dollars in their pockets each year."  By making government bigger the welfare class is spread even further making more people dependent on government – exactly per BO's design. 

 

I recently presented a report by the Manhattan Institute that showed

there has been no increased inequality in America from 1987 to 2012 when measured by real spending per person by income quintile – the best measure of a person's financial well being.  Every politician knows this.

 

Over the years Congress & our state elected representatives have done a masterful job of distributing a portion of the tax revenues to people in the lower quintiles so that the ratio of the top to the bottom quintiles remained constant – hence no increased income inequality & BO's proposals in the SOTU will only add to the precision with which this socialization of America continues. 

 

Reference Post:

Why Income Inequality Has Not Increased In America

 

Senator Tom Coburn's Farewell Address

Last month the great Oklahoma Senator Tom Coburn gave an emotional farewell address on the Senate floor after announcing earlier that he was retiring before the end of his term reportedly because of medical reasons. 

Readers of RTE will recall that I had hoped over the past few years that new Senate members like Rand Paul, Marco Rubio, Mike Lee, & Ted Cruz would caucus with Jim DeMint & Tom Coburn to form a pro-American block of senators.  Now, in 2015, both Jim DeMint & Tom Coburn are no longer even in the Senate – how fragile our Republic is.

I present below two videos of the great senator's farewell address:

The first is the portion of his address that dealt with the Senate Oath & its relationship to the Constitution, & the fact that the oath not only has nothing to do with bringing back funds & grants for states but solely swears in senators to "protect the United States Of America, its Constitution, & its liberties" –one of the themes of RTE.

The second video is the entire emotional address. 

Maybe I am the eternal optimist  - I noticed that NJ Senator Cory Booker was presiding over the Senate during Dr. Coburn's address.  My hope of hope is that Senator Booker, whose political potential is unlimited, is positively inspired for America by Tom Coburn - this impressive magnificent man who lives & governed in the image of our Founders.

December Unemployment Report Masks The Misery Of U.S. Job Market

"If you've got a part-time job & still can't find full-time work – or if you've just given up because you can't find a good job to replace the one you had – you are counted as part of the drop in unemployment."  MA Senator Elizabeth Warren speaking @ the AFL-CIO National Summit on Raising Wages this past Wednesday.

 

click on graph to enlarge

 

Until the past six years, coinciding within BO's presidency, the headline unemployment figure known as U-3 would suffice to give an accurate enough portrayal of the health of the U.S. job market.  When this number went up things were not good & when it went down good paying jobs were becoming more plentiful – but not any longer.

 

But the last several years you could not rely on this one number each month to verify that your own job seeking experience was in line with the general trend presented by the Department of Labor reports.  Instead, if you wanted answers as to why you or your friends, family, or neighbors were not participating in the seemingly improving unemployment picture, you had to analyze the Bureau of Labor Statistics (BLS) tables. 

 

For instance in these tables you would find that part-time workers were counted as employed if they worked as little as one hour a week thereby bringing the U-3 unemployment rate down.  This is inline with Elizabeth Warren's point above – i.e., a drop in U-3 can come about because people can't find a job & have dropped out of the labor market.

 

Now over the years enough posts have been written on RTE illustrating the above type points so that subscribers to RTE were not fooled last Friday when it was reported that U-3 fell from 5.8% in November to 5.6% in December. 

 

In December there were 252,000 jobs created (240 K in the private sector & 12 K in the public sector) but what were the quality of those jobs?  Hourly wages in the private sector actually dropped 5 cents in December from November & the labor force decreased by 273,000. 

 

Commentary taken directly from the BLS report for December - the number of long-term unemployed was unchanged @ 2.8 million – 31.9% of the unemployed; the civilian labor force participation rate edged down by 0.2 percentage point to 62.7 percent; the employment-population ratio was 59.2 percent for the third consecutive month; the number of persons employed part time for economic reasons (also referred to as involuntary part-time workers) was little changed in December at 6.8 million; 2.3 million persons were marginally attached to the labor force, little changed from a year earlier.

 

To understand the impact of the decline of the civilian labor force participation rate (LFPR) please look @ the graph below.  The LFPR in December, 2007 (when the recession began) was 66.0%.  If 66.0% of the civilian noninstitutional working age population were working or looking for work today, we'd have a labor force of 164.4 million workers, which is 8.3 million more than our actual labor force of 156.1 million.  Do your own arithmetic to determine how long it will take for the country to return to a pre-recession LFPR of 66.0% if job growth is 252,000 per month & the civilian noninstitutional working age population increases 183,000 per month like both did in December.

 

click on graph to enlarge

 

But of course there is more - nearly a third of people aged 22 to 26 with a Bachelor of Arts degree either don't have a job or are working @ one that doesn't require a university degree.  The numbers are similar for young people with vocational degrees – source WSJ January 8, 2015.

 

In 1992, 100 workers supported 92 nonworkers – mainly the young, the elderly, & those with disabilities.  By 2012, 100 workers were supporting 102 nonworkers, a number that is projected to rise to 107 by 2022.  Source William Galston of the Brookings Institute.

 

Accordingly more & more people continue to rely on rotten part-time jobs, going on a government program or two to receive benefits, moving in with friends or family to save money, & spending down whatever wealth they can lay their hands on.  The flow into the productive wealth creating labor force continues to decline – all per BO's destructive purposeful design.

 

It has been hard to find a truly accurate measure of the jobs condition in America since BO came into office – we just know it is terrible.  U-6 – still 11.2% in December - includes the total unemployed (U-3), plus all persons marginally attached to the labor force including discouraged workers who have stopped looking for work, plus the millions working part time who want full time employment.  I have recommended a U-7 category.  My proposed U-7 would include all of U-6 plus those employed full time who make a fraction of their former pay.  U-6 & U-7 give the most complete picture of those relying on their wealth spend down to live on, whether that of friends or family, which is an excellent measure of the unhealthiness & misery of today's job market.

 

Boehner Elected Speaker - Not A Good Start For The New Congress

During the past four years John Boehner, as Speaker of the House, presided over the largest spending & borrowing binge in the country's history – in essence he gave BO most of the money that has expanded big government & increased the national debt to record levels.  Democrat pollster Pat Caddell recently found that 60% of Republicans who voted last November did not want Boehner reelected Speaker because he is considered ineffective in representing the values of the majority of Republicans.  In brief Boehner has done a lousy job.

 

Caddell's poll also found that only 16% wanted "both" Boehner & KY Senator Mitch McConnell to be their leaders in Congress & that @ least one quarter to a third of those polled are ready to leave the GOP & form a third party.  Both men being elected to their respective leadership posts provides a bad start for this newly elected Republican controlled Congress.

 

Boehner had some difficulty becoming Speaker of the House in 2012 & that difficulty only increased on Tuesday – but not enough because he was voted Speaker receiving 216 out of the 408 votes cast in another low turn-out election.  Politicians like Boehner always need low turnouts to win.  In this case the 27 no-shows were either attending the Cuomo funeral in NY, delayed by the weather, or had resigned, in the case of Michael Grimm after pleading guilty to a single count of felony tax fraud.

 

Below is the list of the 25 Republican lawmakers who did not vote for Boehner – if your congressmen is not on this list they voted for Boehner (Boehner, Carter (TX), Gowdy, Nunnelee, & Young (AK) did not vote):

Justin Amash (R-Mich.) 
Brian Babin (R-Texas) 
Rod Blum (R-Iowa)
Dave Brat (R-Va.)
Jim Bridenstine (R-Okla.)
Curt Clawson (R-Fla.)
Scott DesJarlais (R-Tenn.)
Jeff Duncan (R-S.C.)
Scott Garrett (R-N.J.)
Chris Gibson (R-N.Y.)
Louie Gohmert (R-Texas)
Paul Gosar (R-Ariz.)
Tim Huelskamp (R-Kan.)
Walter Jones (R-N.C.)
Steve King (R-Iowa)
Thomas Massie (R-Ky.)
Mark Meadows (R-N.C.)
Richard Nugent (R-Fla.)
Gary Palmer (R-Ala.)
Bill Posey (R-Fla.)
Scott Rigell (R-Va.)
Marlin Stutzman (R-Ind.)
Randy Weber (R-Texas)
Daniel Webster (R-Fla.)
Ted Yoho (R-Fla.)

But the dirty pool gets worse.  There were six out of the fourteen freshmen Republicans who had campaigned on dissatisfaction with the Republican leadership & had promised not to support Boehner for Speaker  – yet in their first ever House vote they broke their word.

On his RedState blog Eric Erickson provided this list of six freshmen Republicans who lied during the campaign about voting against Boehner as Speaker:

LIAR: Jody Hice of Georgia

Hice said he would support "new leadership, and new leadership with a backbone," over Boehner.

LIAR: Barry Loudermilk of Georgia

"He will not support Boehner as speaker," spokesman Dan McLagan said.

LIAR: Glenn Grothman of Wisconsin

"I would have no problem looking for an alternative to Speaker Boehner," Grothman said...

LIAR: John Ratcliffe of Texas

'There are other people I would support and think would be a better choice than Boehner'

LIAR: Mark Walker of North Carolina

"[Walker] said he hoped the conference would instead back Rep. Trey Gowdy for Speaker."

LIAR: Alex Mooney of West Virginia

[Mooney] signed [a] pledge promising "to vote against the current leadership..."

In addition you can add to this freshman list of disappointments Mia Love who also voted for Boehner.  Love is the first black female Republican elected to the House after being endorsed by FreedomWorks, Tea Party Express, & Sarah Palin.  Love gave a speech @ the 2012 Republican National Convention & was thought to be a rising star in the party although she lost her race that November by a very narrow margin in conservative Utah before winning in 2014.

 

Without these seven votes Boehner still would have won but barely - thereby making the vote closer with the chance of sending the election of Speaker into a second round – a small moral victory.  It is getting late in our Republic for moral victories though – isn't it?

 

Reference Post after 2010 midterm election:  Only 21 Of 87 Freshman House Republicans Are Still With You

 

SC Senator Tim Scott Explains Needed Mindset Changes

"What can I do that no one else will if I don't?" – part of entrepreneur Peter Thiel's challenge to ISI Collegiate Network students @ the ninth annual Dinner for Western Civilization.  Mr. Thiel went on to identify stifling "political correctness" as the number one problem in America today that has turned so many of our fellow citizens into pessimistic conformists instead of courageous pioneers saying "We live in a world in which courage is in far shorter supply than genius."

***

Mr. Thiel's above challenges provide an inspirational start to 2015 not just for the ISI students but for all of us.  Someone who is up to any challenge is SC Senator Tim Scott. 

As many of you know two years ago SC Governor Nikki Haley appointed then Congressman Tim Scott to complete Jim DeMint's term as senator when Jim left politics to head the Heritage Foundation.

Last November Tim Scott made history when the voters of SC elected him the first Black senator from the South since the passage of the 17th Amendment.  As documented several times on RTE Tim's voting record in both the House & Senate has been excellent.

Click here to watch an MSNBC host ask about the senator's "F" grading by the NAACP on their annual scorecard.   Senator Scott responds by pointing out that success is obtained when people get a good education & have a strong work ethic & that the brilliance of the American economy happens through business ownership & entrepreneurial spirit – all changes in mindset that are most needed.