National Review Online misinformed about an amendment that would reinstate the ability of Congress to regulate campaign finance and counter Citizens United -- the infamous Supreme Court decision that opened the door for the super-rich and corporations to drown out average Americans in the political debate with unlimited sums of money.
On September 8, the Senate voted to debate the proposed constitutional amendment, which would re-establish campaign finance laws that the conservative justices of the Supreme Court struck down in Citizens United in 2010. That decision overturned part of the McCain-Feingold Act -- much-needed bipartisan campaign finance reforms instituted to prevent corruption of the political process and level the playing field between small donors and the wealthy -- and effectively eliminated limits for independent corporate spending in federal elections. Specifically, Citizens United radically rewrote First Amendment precedent and expanded the legal concept of "corporate personhood," with the court ultimately deciding that the political spending by corporations was constitutionally equivalent to the free speech of actual human voters. The conservative justices chipped away at campaign finance limits even further this year in McCutcheon v. FEC, which abolished direct contribution limits that worked to control the corrupting influence of multimillion-dollar donations.
Although the proposed amendment is intended to restore the First Amendment to its pre-Citizens United interpretation, right-wing media are already denouncing the Senate's attempts to stem the explosion of unregulated high-dollar donations with wild exaggerations. In a September 9 editorial, NRO complained that Democrats were planning to "repeal the First Amendment" by proposing the Citizens United amendment -- which the editorial board called "an attack on basic human rights, the Constitution, and democracy itself" -- and suggested the move would "censor newspapers and television reports." From the editors:
Senate Democrats are on the precipice of voting to repeal the First Amendment.
That extraordinary fact is a result of the increasingly authoritarian efforts of Democrats, notably Senate majority leader Harry Reid of Nevada, to suppress criticism of themselves and the government, and to suffocate any political discourse that they cannot control.
The Supreme Court in recent years has twice struck down Democratic efforts to legally suppress inconvenient speech, citing the free-speech protections of the First Amendment in both cases. Senator Reid's solution is to nullify the first item on the Bill of Rights.
The Democrats are not calling this a repeal of the First Amendment, though that is precisely what it is. Instead, they are describing the proposed constitutional amendment as a campaign-finance measure. But it would invest Congress with blanket authority to censor newspapers and television reports, ban books and films, and imprison people for expressing their opinions. So long as two criteria are met -- the spending of money and intending to influence an election -- the First Amendment would no longer apply.
The amendment that Democrats are putting forward is an attack on basic human rights, the Constitution, and democracy itself. If those who would criticize the government must first secure the government's permission to do so, they are not free people.
National Review Online columnist Mona Charen criticized the Department of Justice's efforts to address potential civil rights violations by the Ferguson Police Department, calling previous investigations in other jurisdictions "heavy on the implied racism" despite statistical evidence of racially biased and unconstitutional policing tactics.
On September 4, Attorney General Eric Holder announced that the DOJ would investigate the Ferguson Police Department, an overwhelmingly white force with a history of serious misconduct, after one of its officers shot unarmed black teenager Michael Brown. These types of investigations are not unusual for police departments under suspicion for systemic abuse of authority and civil rights violations, but right-wing media have still accused Holder of playing "the race card" and have called the DOJ's involvement "inherently political" and "absolute garbage."
In a September 9 column, Charen followed the attacks on Holder and questioned the objectivity of the DOJ's investigation. She suggested that it "will be premised on the racist-white-cop-shoots-black-man narrative" because Holder acknowledged he understood the mistrust between the police and the Ferguson community both as the attorney general of the United States and as a black man who has been unfairly racially profiled in the past.
Charen went on to characterize Holder's involvement in Brown's case as another example of the DOJ's "extremely aggressive pattern vis-à-vis local police," and used as her example a recent investigation of the Newark Police Department that showed officers unjustifiably stopped and arrested a disproportionate number of residents of color. As far as Charen is concerned, the number of stops in Newark "might be too low," however, and the statistics "do not come close to proving police wrongdoing":
The Department of Justice recently concluded an investigation into the Newark, N.J., police department, which it found to have repeatedly violated the civil rights of Newark's black residents. The evidence? Justice found that while blacks account for 54 percent of Newark's population, they represent 85 percent of pedestrian stops and 79 percent of arrests.
Police misconduct must always be taken seriously and vigilantly corrected, but these numbers do not come close to proving police wrongdoing, far less denial of Newarkers' civil rights. To know whether 85 percent of pedestrian stops is a reasonable number or not, you need to know how many pedestrians of various races are committing crimes. If 90 percent of pedestrian criminals are black, then 85 percent might be too low. In any case, the relevant measure is the percentage of criminals, not, as the Justice Department explained, whether "officers ... disproportionately stopped black people relative to their representation in Newark's population."
Announcing the DOJ's report, Holder went heavy on the implied racism. "We're taking decisive action to address potential discrimination and end unconstitutional conduct by those who are sworn to serve their fellow citizens," he declaimed. It's possible that Newark police are engaged in wrongdoing, but the DOJ's use of statistics certainly didn't prove it. If the attorney general believes that black and Hispanic officers are stopping and arresting black people out of racial animus, he failed to say so, and if not, he's in effect arguing that all of the misconduct is attributable to the roughly one-third of the force that is white.
The New York Times did not follow the advice of its public editor, who has argued the paper should report that the type of voter fraud that strict voter ID laws are supposed to prevent is virtually nonexistent. In the two-year period between her current and past request that the paper add "the truth" to "he said, she said" coverage on voter ID and voter fraud, the Times reported the evidence on in-person voter impersonation in only 15 of 28 articles.
National Review Online is repeating the claims of conservative groups who compared voter registrations in Maryland and Virginia and flagged potential instances of "double voting" -- voters with the same name and birthdate who may have voted in both states. This method of election integrity has been discredited due to its high rate of false positives and significant risk of voter disenfranchisement.
The New York town of Greece, whose policy of allowing sectarian Christian prayers to be delivered before town meetings was the subject of a recent First Amendment challenge before the Supreme Court, has now adopted a new set of rules that appear to exclude non-believers from this practice -- discrimination that the town's defenders in right-wing media pretended didn't exist.
In May, the conservative justices of the Supreme Court ruled in Town of Greece v. Galloway that the prayer offered before this town's meetings was permissible under the First Amendment -- despite the fact that "the invocations given ... were predominantly sectarian in content," which "repeatedly invoked a single religion's beliefs," as Justice Elena Kagan explained in her dissent. Yet the majority found this apparent preference for Christian prayers constitutionally acceptable because the town assured the Court "that a minister or layperson of any persuasion, including an atheist, could give the invocation." It was this claim that the prayer policy was non-discriminatory and would allow non-Christians to participate that the Court, as well as right-wing media outlets, relied upon.
After the decision, Washington Post columnist George Will attacked the Jewish and atheist plaintiffs who challenged the town's prayer policy, calling them "prickly plaintiffs" and "flimsy people" who were "theatrically offended" over nothing more than "brief and mild occasional expressions of religiosity." The Wall Street Journal also celebrated the conservative decision in Town of Greece, and specifically hailed the inclusivity the town of Greece had told the Court it practiced:
The town of Greece used mostly Christian prayers because its citizens are predominantly Christian. Yet when rabbis and clerics of other faiths asked to give the prayer, they were welcome. Even a Wiccan priestess was allowed to issue what we suppose was an anti-prayer. Council members and visitors were under no obligation to pray along and there was no evidence of punishment or even disapproval for anyone who didn't.
Both Will and the Journal ignored the fact that town officials extended those invitations to non-Christians only after the lawsuit was filed.
Now it appears the town of Greece has backed away from the inclusivity that right-wing media touted. As the Rochester Democrat and Chronicle reported, last week the town adopted a new policy for its legislative prayer that is being condemned as "an enormous bait and switch" because it seems to bar the non-believers the Supreme Court claimed were allowed to participate. Designed by the religious right's Alliance Defending Freedom -- the legal organization who led the Court to believe that "a minister or layperson of any persuasion, including an atheist, could give the invocation" -- the new guidelines require that speakers represent a local, established religious organization that "regularly meet[s] for the primary purpose of sharing a religious perspective."
Fox News host Shannon Bream misled about new regulations from the Department of Health and Human Services (HHS) that allow both non-profit and for-profit entities to opt-out of health insurance coverage for contraception, while pretending this new accommodation was contrary to the Supreme Court's recent orders on the "contraception mandate" of the Affordable Care Act (ACA).
On August 22, HHS announced a new set of rules aimed at accommodating non-profits and business owners who object on religious grounds to providing comprehensive health insurance to their employees. The new regulations are designed to comply with the Supreme Court's ruling in Burwell v. Hobby Lobby, which held that certain "closely-held" for-profit corporations can be exempted from the requirement that contraception be covered in their employer-sponsored plans. This exemption now aligns the treatment of these businesses with that of religiously-affiliated non-profits, an accommodation the conservative Justices of the Court explicitly directed HHS to consider.
But on the August 25 edition of Fox News' Real Story, host Shannon Bream ignored the fact that the new rules were based on instructions from the Supreme Court.
Bream claimed that "a lot of people are saying" that HHS's rule change "was just a sleight of hand" that "doesn't really change anything." The Fox host went on to argue that these new regulations were contrary to the ruling in Hobby Lobby because "the Supreme Court said simply they don't have to comply with the mandate, now they'd have to fill out paperwork to comply with the mandate":
Bream's pretense that the HHS regulations do not track the Supreme Court's recent rulings is wrong. In his majority opinion for the conservative justices in Hobby Lobby, Justice Samuel Alito wrote that there was "no reason" why HHS couldn't offer an accommodation of this sort to both non-profit and for-profit entities alike, and that such a process for this exemption to the contraceptive mandate "constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty."
Moreover, the new regulations also address the additional issue raised by the conservative justices in an interim order issued after Hobby Lobby in Wheaton College v. Burwell, a case where a Christian university successfully claimed that even signing the form that notified its insurance issuer of its objection to birth control coverage was also an impermissible burden on religious freedom. To deal with that objection, HHS' new rules -- in an attempt to meet the instructions of the Court in both Hobby Lobby and Wheaton -- now create an accommodation to its accommodation and will allow "institutions ... to tell the federal government which company administers their health-insurance plan, and the government would then contact that administrator to ask it to arrange contraception coverage for the institution's employees."
HHS has now done what the conservative justices twice told it to do, a fact Fox News forgets as it complains that in accommodating objections to female employees' access to contraception, HHS still hasn't done enough.
A new report from the New York Civil Liberties Union that offers a "complete factual record of stop-and-frisk activity" in New York City between 2002 and 2013 has found that this unconstitutionally performed policing tactic was largely ineffective at reducing violent crime, a clear rebuttal to right-wing media's frequent justifications for the practice.
Right-wing media have long supported stop-and-frisk policies that allow police officers to stop, question, and pat down "suspicious" pedestrians. Although stop-and-frisk when correctly practiced is generally legal, the racially discriminatory version employed by the New York Police Department was determined to be unconstitutional by a federal judge in 2013. The judge in that case determined that "at least 200,000 stops were made without reasonable suspicion," which "resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause."
Nevertheless, right-wing media complained loudly about the decision, accusing the judge of "substitut[ing] her own view of the world, her own utopian view of how the world should be for the way the real life is, for the people who are trying to get by, not get killed, not get robbed, not get raped on the streets of New York."
Fox News has been particularly vocal in their support for stop-and-frisk, with Bill O'Reilly continually insisting that stops reduce crime because "the police take the guns and they pat down people" and that without it, "more black Americans and more Hispanic Americans are going to die." O'Reilly has also stated that stop-and-frisk "is racial profiling, but it's really criminal profiling." Most recently, frequent Fox guest Bo Dietl, a former New York police officer, argued that scaling back stop-and-frisk was "ridiculous," because, he claimed, it made the streets less safe for law enforcement. Fox & Friends co-host Steve Doocy agreed, and suggested that the police were "demoralized" after Mayor Bill de Blasio announced reforms to address unconstitutional policing tactics. Other Fox hosts have erroneously claimed that stop-and-frisk is responsible for New York City's declining murder rate.
But the NYCLU's comprehensive report, which analyzes 12 years of stop-and-frisk data from NYPD records, debunks right-wing media's claims that this controversial law enforcement tool was essential for public safety. From the report:
The NYPD often sought to justify the large number of stops on the grounds that the stop-and-frisk program was critically important to recovering guns and thus reducing shootings and murders. The NYPD's data contradict this argument.
Between 2003 and 2011, annual stops increased dramatically, but gun recoveries, which were always a tiny percentage of stops, moved up and down and any increases were quite small. During that same time, the number of shooting victims remained largely flat and murders moved up and down. By contrast, in 2012 and 2013, recorded stops dropped dramatically. At the same time shootings and murders dropped dramatically.
As The Washington Post explained, "to the extent that supporters have argued that stop-and-frisk makes cities safer, the above chart is a fair rebuttal."
Right-wing media are parroting local Republican officials and criticizing voter registration drives in Ferguson, Missouri, the site of intense protests after the death of unarmed teenager Michael Brown. Voting rights advocates argue that registering the electorate is crucial for the community to hold their government accountable, but right-wing media condemn these efforts as "liberal activism."
Fox News has repeatedly dismissed the federal civil rights investigation into the shooting death of unarmed teenager Michael Brown, calling it "political optics" and an example of President Obama and Attorney General Eric Holder playing "the race card." In fact, under long-standing civil rights law, the federal government has parallel investigative powers alongside local authorities and frequently investigates local police departments that may have a pattern or practice of abuse.
Myths about voter ID are reemerging in the wake of a federal judge's ruling against the government in North Carolina, a voting rights case right-wing media characterized as a "huge loss" for the Obama Administration, despite the fact that the decision is preliminary and the government has prevailed in similar cases in other states.
In 2013, the Supreme Court struck down Section 5 of the Voting Rights Act in Shelby County v. Holder, a provision that required states with a history of suppressing the minority vote to pre-clear changes to their election laws with the Department of Justice or a federal court. Almost immediately after the decision in Shelby County, states that had been subject to the preclearance requirement, like North Carolina, began passing and implementing strict voter ID laws, an expensive fix to a problem that is essentially non-existent. Nevertheless, unnecessarily restrictive and redundant voter ID laws have become a favorite policy proposal for conservatives and right-wing media.
A recent order denying DOJ's request for a preliminary injunction against North Carolina's new voter ID requirements -- part of the "country's worst voter suppression law" -- has now given right-wing media a fresh opportunity to dredge up old misinformation about the legal struggle over these measures. Frequent National Review Online contributor Hans von Spakovsky, a vocal proponent for oppressive voter ID laws and questionable election procedures, called it "a huge loss" for Attorney General Eric Holder and the DOJ, and claimed that the judge "simply shreds the arguments by the DOJ" in the opinion:
Judicial Watch filed an expert report in the case through an amicus brief that showed that in the May 2014 primary election, black turnout was up an astounding 29.5 percent compared with the last midterm primary election in May 2010. White turnout was up only 13.7 percent. As Judicial Watch said, these results were "devastating to the plaintiffs' cases because they contradict all of their experts' basis for asserting harm."
[T]his is a significant blow to DOJ and other opponents of commonsense election reforms.
That is particularly true when one remembers that this is DOJ's second big loss in the Carolinas. South Carolina attorney general Alan Wilson beat DOJ in 2012 when a federal court threw out a claim that South Carolina's voter-ID law was discriminatory. That law is in place today -- and there is a high probability that North Carolina's voter-ID requirement will also be in place in 2016 for the next presidential election.
A new report has debunked the primary voter fraud argument right-wing media have used for years to promote unnecessarily strict voter identification laws, which alienate eligible voters and often have the effect of suppressing the vote in minority and heavily-Democratic jurisdictions.
These kinds of voter ID laws, which require voters to present certain forms of ID at polling locations when attempting to vote, disproportionately affect people of color and can cost states millions of dollars to implement. But right-wing media have continued to promote them, especially since 2013, when the Supreme Court struck down a key provision of the Voting Rights Act (VRA) that prevented suppression efforts in states with a history of racially-motivated voting laws. As Ezra Klein noted on the August 6 edition of MSNBC's All In, right-wing media have consistently raised the specter of in-person "voter fraud" to justify their support for these redundant and highly restrictive voter ID laws.
But as election law experts repeatedly point out, the specific type of fraud that voter ID can prevent -- voter impersonation -- is extremely uncommon.
National Review Online contributors John Fund and Hans von Spakovksy have been at the forefront of right-wing media's push for burdensome voter ID laws, calling Texas's law "a good thing," despite the fact that voters reported being turned away from the polls. Both Fund and von Spakovsky have advocated for further gutting what's left of the Voting Rights Act, making it nearly impossible for citizens who have been prevented from voting due to needlessly cumbersome election laws to legally challenge these oppressive regulations. Fund has also downplayed how difficult it can be for citizens -- particularly people of color, women, and low-income voters -- to obtain the right kind of identification needed to vote. In response to a Pennsylvania state court case that found the state's voter ID law unconstitutional, Fund called evidence that thousands of voters lacked the proper ID nothing more than an "inflated estimate."
While evidence of widespread voter fraud has yet to surface, right-wing media figures have nevertheless insisted that "there are plenty of instances" of voter fraud and that there is "concrete evidence ... of massive voter fraud." But according to a new study by Loyola University law professor Justin Levitt, the in-person voter fraud that strict voter ID prevents is still nearly non-existent. Levitt's study, which "track[ed] any specific, credible allegation that someone may have pretended to be someone else at the polls, in any way that an ID law could fix" found just 31 instances of this potential voter fraud between 2000 and 2014. According to Levitt, "more than 1 billion ballots were cast in that period."
Election fraud happens. But ID laws are not aimed at the fraud you'll actually hear about. Most current ID laws (Wisconsin is a rare exception) aren't designed to stop fraud with absentee ballots (indeed, laws requiring ID at the polls push more people into the absentee system, where there are plenty of real dangers). Or vote buying. Or coercion. Or fake registration forms. Or voting from the wrong address. Or ballot box stuffing by officials in on the scam. In the 243-page document that Mississippi State Sen. Chris McDaniel filed on Monday with evidence of allegedly illegal votes in the Mississippi Republican primary, there were no allegations of the kind of fraud that ID can stop.
Instead, requirements to show ID at the polls are designed for pretty much one thing: people showing up at the polls pretending to be somebody else in order to each cast one incremental fake ballot. This is a slow, clunky way to steal an election. Which is why it rarely happens.
Nightly network newscasts and Sunday morning talk shows have largely failed to connect two recent Supreme Court decisions to Citizens United v. FEC, the case that radically expanded the legal concept of "corporate personhood" -- the idea that corporations have constitutional rights. This has left viewers with an incomplete understanding of how the Court applied this dangerous precedent to campaign finance and reproductive rights law.
The Wall Street Journal complained about a lawsuit filed by defeated Republican senatorial candidate Chris McDaniel, calling the suit "meritless" and an attempt to funnel money to trial lawyers -- despite the fact they have championed similarly far-fetched and expensive lawsuits that have been filed against President Barack Obama.
McDaniel, a right-wing tea party candidate, lost to incumbent Sen. Thad Cochran (R-MS) in the June 24 primary. McDaniel blamed his loss on voter fraud, claiming that his campaign found irregular voting patterns. Given the Journal's past concern with voter fraud and the American right to vote, it seems like McDaniel's lawsuit is just the sort of thing they would support.
But in an August 5 "political diary" titled "If You Can't Win, Sue," Journal opinion editor Allysia Finley criticized McDaniel's decision to challenge the election results, calling his proposed lawsuit an effort to "raise money to feather the nests of election lawyers." Finley also argued that the suit was "meritless" because "overturning the election results is a long shot, but then the real motivation of this Hail Mary may be to whip up populist furies."
From the editorial:
At a press conference Monday, Mr. McDaniel lambasted the "dirty money coming in from D.C.," and his attorney suggested that Cochran supporters who perpetrated the alleged election fraud ought to go to jail. Mr. McDaniel intends to take legal action in the event that the state GOP squashes his petition. The case could then take any number of routes through the state court system, but sustaining the challenge would require lots of lawyers and money regardless of how it proceeds. This would be a bonanza for Mr. McDaniel's election attorneys who have been making nice work from filing records requests.
Last month the McDaniel campaign sued county circuit clerks for denying them access to polling records with voters' birth dates. After the state Supreme Court rejected the petition, the campaign filed a motion for a rehearing, which was also denied summarily. Keep in mind that Mr. McDaniel started out as a trial lawyer. Filing meritless claims might be par for the course.
But Finley's editorial colleagues at the Journal apparently disagree that lawsuits filed by political losers are "meritless." Earlier this year, the Journal published Sen. Ron Johnson's (R-WI) announcement of his lawsuit suing the twice-elected Obama administration over the Affordable Care Act (ACA), promoting a lawsuit that was almost immediately thrown out of court. On June 27, the editorial board went further and directly praised John Boehner's questionable plan to sue President Obama over the one-year delay of the employer mandate of the ACA. Although many legal experts have largely dismissed this suit as well, the Journal argued that Boehner's lawsuit was evidence that "the Speaker is showing more care that the laws be faithfully executed than is President Obama." That editorial went on to assert that the lawsuit wasn't "frivolous" because apparently Boehner wouldn't "wager the House's reputation, and his own, on a novelty lawsuit."
In another editorial from July 31, the editorial board again encouraged Boehner's lawsuit, calling it a "shame" that the suit was being dismissed as "frivolous" because it purportedly "involves crucial questions about the architecture of American government and the separation of powers." The Journal ultimately concluded that "the courts may take such a challenge seriously." Strangely enough, none of these latter editorials seemed particularly concerned with the costs associated with Boehner or Johnson's suits, or how they might "feather the nests" of trial lawyers -- but perhaps money is no object as long as the defendant is Barack Obama.
The Wall Street Journal took a stand against fair treatment for pregnant workers, complaining that the Equal Employment Opportunity Commission's (EEOC) new guidelines designed to fight pregnancy discrimination despite conservative Supreme Court opinions holding discrimination against pregnant women is not sex discrimination was a "radical" reading of federal law.
Last week, the EEOC issued new guidelines to employers in an effort to curb increasing incidents of pregnancy discrimination in the workplace -- the first time in 30 years the agency had updated its guidelines regarding fair treatment of pregnant employees. One of these new guidelines interpreted the Americans with Disabilities Act (ADA) to include reasonable accommodations for "pregnancy-related impairments," which can include serious ailments like anemia, gestational diabetes, and abnormal heart rhythms, among others.
But in a July 27 editorial, the Journal argued that protections provided by the ADA should be reserved only for the "truly disabled," not women who are disabled due to medical conditions caused by their pregnancies. The editorial also ignored the reality of pregnancy discrimination in the workplace, and claimed that the EEOC's comprehensive new guidance was a "radical legal interpretation" of the ADA that served no purpose other than to provide a "launching pad for trial lawyers." It went on to argue that the guidance was unnecessary given the fact that "pregnancy is not unprotected under federal law," without mentioning that these protections were a direct response to conservative case law that refused to treat pregnancy as a sex-based classification under federal law:
Even after the 2008 amendments, the ADA at no point defines pregnancy as a "disability." To end-run this fact, the agency discovers pregnancy's "impairments." The EEOC's guidelines argue, "Although pregnancy itself is not a disability, impairments related to pregnancy can be disabilities if they substantially limit one or more major life activities." Morning sickness, for example, would become a qualifying impairment under the ADA.
Thus the EEOC is piling one radical legal interpretation (discarding the ADA's clear intent to help the truly disabled) upon another (granting protections to pregnant women, who aren't covered under the ADA).
Pregnancy is not unprotected under federal law. The 1964 Civil Rights Act protects workers from discrimination on the basis of "race, color, religion, sex, or national origin." And the 1978 Pregnancy Discrimination Act amended that law to protect, yes, pregnant women.
Anyone who reads the text of the EEOC guidance can see the rationale behind yet another display of Obama executive-branch muscle. The rules' imprecision is a launching pad for trial lawyers, a primary source of grateful Democratic campaign money. And Valerie Jarrett's CNN piece makes clear the initiative is another politicized front in the "war on women."
Ms. Jarrett says the guidelines will help employers "understand their obligations." With the most important being to hire more lawyers and fewer employees, of any sex.
The Wall Street Journal portrayed the D.C. Circuit's radical decision nullifying tax credits for consumers on the federal exchanges of the Affordable Care Act (ACA) as a check on President Obama's "penchant for treating laws as unlimited grants of power," all while ignoring the fact that multiple federal courts -- including the Supreme Court itself -- have upheld or acknowledged the very same tax breaks that the Journal now condemns as "illegitimate."
On July 22, the D.C. Circuit Court of Appeals issued its split decision in Halbig v. Burwell, one of many lawsuits applauded by conservatives that have challenged the ACA since President Obama signed it into law in 2010. Three of these lawsuits are based on the same legal arguments of Halbig, and the Fourth Circuit Court of Appeals rejected a Halbig-like challenge and upheld the validity of the tax credits on the same day Halbig was decided. The plaintiffs in these cases, relying on a legal theory that has long been a favorite of right-wing media, argued that, somehow, a law drafted to make insurance affordable for all Americans actually denies crucial tax credits for the 5 million consumers who purchased insurance through the federal exchange because their home states refused to set up their own health insurance sites.
Celebrating the majority decision in Halbig by calling the case a "remedial civics lesson" for the Obama administration, the Journal misleadingly claimed that the "plain statutory language of ObamaCare repeatedly stipulates" that the tax credits are only available for state exchanges. The July 23 editorial largely ignored the contradictory ruling from the Fourth Circuit and the vast majority of experts knowledgeable with the law and the basics of statutory construction that took no issue with the administration's commonsense execution of the ACA's tax credits:
The courts usually defer to executive interpretation when statutes are ambiguous, but Mr. Obama's lawyers argued that the law unambiguously means the opposite of the words its drafters used. Judge Thomas Griffith knocked this argument away by noting in his ruling that, "After all, the federal government is not a 'State,'" and therefore "a federal Exchange is not an 'Exchange established by the State.'"
The White House also argued that the court should ignore the law's literal words because Congress intended all along to subsidize everybody, calling the contrary conclusion an "absurd result." Yet this is merely ex post facto regret for the recklessness and improvisation of the way ObamaCare became law, when no trick was too dirty after Democrats lost their 60-vote Senate supermajority. Nancy Pelosi said we had to pass the bill to find out what's in it. Now we know.