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Supreme Court

Public Sours on Anti-Gun Businesses, GOP Dodges Scandal, No Tax = No Obamacare?

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Jim Geraghty of National Review and Greg Corombos of Radio America discuss new polling showing public perception dropping for businesses that are publicly breaking ties with the NRA, due entirely to a massive plunge in favorability among Republicans.  They also breathe a sigh of relief as Republicans in Arizona’s eighth congressional district reject the frontrunner in the primary after the married minister was caught exchanging inappropriate texts with a female staffer.  And they wish the best of luck to 20 state attorneys general who argue that all of Obamacare should be declared unconstitutional now that the tax provision that saved it at the Supreme Court in 2012 has been scrapped in the new tax law.

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20 States Take Aim at Obamacare

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The recent tax cut legislation also puts an end to penalties for failing to buy health insurance, a development 20 states now argue should render the rest of Obamacare unconstitutional.

Led by Texas Attorney General Ken Paxton, the states filed suit in federal district court in Fort Worth on Monday, asking for an injunction against continued enforcement of the Affordable Care Act and, ultimately, for the law to be struck down.

President Trump and Republicans often assert that the tax bill repealed the individual mandate, but that’s not exactly correct.

“It made the individual mandate a zero.  It zeroed it out, which is what they could do because the Supreme Court had declared the individual mandate a tax but it didn’t strike the language from the statute,” said Rob Henneke, a former colleague of Paxton’s who is now general counsel at the Texas Public Policy Foundation.

“So part of the argument that the states have here is that because the individual mandate is set at zero, it is not performing the functions of a tax and therefore cannot still be construed constitutional by the Supreme Court under the taxing powers of Congress,” said Henneke.

And why is that?  In 2012, despite ruling that the law violated the Commerce Clause of the Constitution by forcing Americans to purchase a product, Chief Justice John Roberts saved the Affordable Care Act by declaring the the individual mandate a tax, which is within the powers of Congress.

Henneke says without that rationale, Obamacare collapses.

“The whole crux of that regulatory scheme rests on the essential component of being able to compel Americans to purchase health insurance or pay this tax penalty.  Now that that one card has been pulled out of that house of cards, the states argue that the entire regulatory scheme collapses,” said Henneke.

Henneke admits that the justices seem very reluctant to confront Obamacare again, but he says the states are hoping Roberts will reverse course once he’s confronted with his own words.

“In this situation, it is the Supreme Court’s own words in the NFIB v. Sebelius case, where they point to the individual mandate as the key component in what made the Affordable Care Act constitutional,” said Henneke.

Another big question, says Henneke, is whether the defendants will put up much of a fight this time around.

“It remains to be seen what position this administration and the Department of Justice is going to take and if and how they are going to defend the law.

“The president has been very critical of the Affordable Care Act.  It’s been a cornerstone of what he campaigned on.  Are they really going to disagree with the 20 states that have challenged the constitutionality of this law or do they agree with the argument presented by the states? ” said Henneke.

He says it’s also possible that this case could make it through the system pretty quickly.

“[The states] are asking for a court to enjoin the Affordable Care Act, to have a court order that would stop that law from continuing.  That is the ultimate relief that is sought in the lawsuit. but stay tuned.  We may see those states come to court earlier and ask for a preliminary injunction to stop the Affordable Care Act while the lawsuit goes on,” said Henneke.

“If that happens, then that could be a decision that moves up through the court system much, much faster than the three or four years it takes a lawsuit to normally get through the trial court,” he added.

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Union Dues Battle Reaches Supremes Again

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The Supreme Court heard oral arguments over whether labor unions can force non-members to pay dues when they hold public sector jobs, and the upcoming verdict may have a major impact on organized labor going forward.

And one leading expert says if unions cannot count on compulsory dues, their next plan may be to get it from the taxpayers.

On Monday, justices heard the case of Janus v. American Federation of State, County, and Municipal Employees, or AFSCME.  Mark Janus is an employee with the Illinois Department of Public Health.  He is not a member of AFSCME, but $50 is still taken out of his paycheck each month in union dues.

AFSCME contends that the collective bargaining it does on behalf of public sector employees ends up benefiting all workers, thus collecting $50 per month from people like Janus is reasonable.

National Right to Work Legal Defense Foundation President Mark Mix says organized labor’s argument is full of holes.

“The fact that the unions have positioned themselves as the exclusive bargaining agent and the monopoly voice of all workers in the public sector is really the issue.  This is the fundamental problem and the injustice of this particular situation.  The unions say that everything they do benefits everybody they come in contact with.  That’s just not true.

“So the idea is that Mark Janus, our client who we represented at the Supreme Court, is basically saying that what they’re doing in some cases hurts him.  In some cases it’s arguable that it doesn’t help him.  In some cases it probably does.  But the bottom line is that he would lose his job if he did not pay these fees to the union,” said Mix.

It’s the compulsory policy aimed at non-members that Mix believes is unconstitutional.

“In order to work for his government and have a voice, he’s got to pay a private organization for that privilege.  We believe that it all should be voluntary.  If the union’s doing great work and they’re providing all these great benefits, then workers will join them voluntarily and that’s the way it should work,” said Mix.

Mix says organized labor often positions itself as looking out for the working class and middle class employees, but he alleges the reality is just the opposite.

“If Mark Janus wins this case, there’s nothing that stops any individual from joining a union.  It won’t prohibit anything.  It just simply gives individual workers the choice, and really, when you boil this out that’s what this is.  It’s a battle, literally, between union officials and the rank-and-file workers they claim to represent

“What they’re saying is, ‘If you give these workers a choice…they may decide to do something different, and that’s really the fundamental issue at the bottom of this case.  Union official are worried that if workers are given the choice, they may not choose to support them financially,” said Mix.

National Right to Work Legal Defense Foundation Staff Attorney William Messenger argued before the Supreme Court on behalf of Janus.  Mix says Messenger was pleased with the way oral arguments went Monday, and he also highlighted how the various justices approached the discussion.

“In the last five years they have asked and talked about this issue, so they were well-informed,” said Mix, noting that the high court heard very similar cases in 2012, 2014, and 2016.  The 2016 case deadlocked at 4-4 due to the death of Justice Scalia.

“Justice Kennedy was pretty animated and interested in this case.  The first amendment is really the ultimate question here.  Justice Thomas did not ask a question.  Justice Gorsuch did not ask a question.  Roberts had a few, Alito had a couple, and Sotomayor and Kagan led the charge for the other side,” said Mix.

Gorsuch not asking a question leaves some mystery as to the final verdict, since the other eight justices are on the record with their views.  While not hazarding a guess as to how the court will rule, Mix says he “hopes the fundamental argument of free speech will hold the day.”

If his side wins, Mix says unions will quickly start looking for other sources of revenue and in left-leaning states that money might come from the taxpayers.

“They’re trying to convince legislatures to give them the authority to collect money from taxpayers if they lose the Janus case.  We’re seeing things pop in New York, in California, in Washington state, and Hawaii.  They’re actually going to ask the taxpayers to pay the fees they can no longer collect from non-members if we win this case, said Mix.

He suspects that road will also wind up a dead end.

“I think that gets them deeper into the hole as opposed to providing solutions for them.  They may win on the short term by getting taxpayers to fund it, but I think once taxpayers find out they’re paying a private organization taxpayer money to do the work they’re doing, I think that will be another problem for organized labor down the road,” said Mix.

Mix says a far better reaction would be for unions to shape up and show non-members there is great value in paying fees for ongoing representation in collective bargaining and other areas.

A ruling on Janus v. AFSCME is expected before the end of June.

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SCOTUS Allows Travel Ban Enforcement, RNC Backs Moore Again, Conyers ‘Retires’

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Jim Geraghty of National Review and Greg Corombos of Radio America react to the U.S. Supreme Court allowing President Trump’s travel ban on six nations to go into effect while the courts sort out the legal challenges.  Regardless of whether the ban is a good idea, U.S. law clearly gives the president the authority to do this.  They also shudder as the Republican National Committee follows President Trump’s lead and jumps back in to help Alabama U.S. Senate candidate Roy Moore.  And they shake their heads as Michigan Rep. John Conyers says he is “retiring” from Congress and endorses his son in the race to succeed him.

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Trump’s Travel Ban Triumph, Religious Freedom Victory, Pride March Mayhem

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David French of National Review and Greg Corombos of Radio America celebrate the Supreme Court decision that upheld a portion of President Trump’s travel ban, overturning lower court rulings. They also applaud the SCOTUS decision in favor of Trinity Lutheran Church against the State of Missouri in a religious liberty case. And they question Pride Month’s “inclusivity” as LGBT members of the Jewish community are ejected from a Chicago pride march for having the Star of David on a rainbow flag.

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Optimism in Georgia Election, Hail to the Redskins, US Downs Syrian Drone

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Jim Geraghty of National Review and Rich McFadden of Radio America feeling optimistic after a recent poll shows that Republican Karen Handel has a slim lead over Democratic candidate Jon Ossoff in the Georgia runoff election. They also praise the Supreme Court which ruled unanimously in favor of protecting trademarks that some parties may consider offensive or disparaging. And they applaud the U.S. military as they down the third pro-Syrian regime aircraft this month, an action which prompted a harsh Russian response.

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UK Terror Continues, SCOTUS To Draw the Lines, The Left is America’s ISIS?

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Jim Geraghty of National Review and Rich McFadden of Radio America react to news of yet another terror attack in the UK which targeted British Muslims outside of a London mosque after their evening prayers for Ramadan. They also discuss the Supreme Court’s announcement that they will take up the partisan gerrymandering case in the state of Wisconsin to determine whether or not the act is unconstitutional. And they respond to Erick Erickson’s sensationalist comments as he refers to the left as “America’s ISIS” and advocates for state secession.

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