When conservatives have disagreed with Barack Obama’s policies, they have tried to beat him at the polls and in the courts (they have generally failed). When conservatives have disagreed with Congress’s actions, they have worked to elect more conservatives (they have recently succeeded… although one can make a serious argument that South Dakota’s Congressional delegation is not really conservative).
But when conservatives disagree with the Supreme Court’s decisions, how can they seriously suggest that we should not recognize the Constitutional authority given to the Supreme Court by the Founding Fathers?
Louisiana Governor and presidential candidate Bobby Jindal says, “The Supreme Court is completely out of control, making laws on their own, and has become a public opinion poll instead of a judicial body…. If we want to save some money let’s just get rid of the court.”
I was just notified by the county’s insurer that in light of the final federal court (Sorry to say, they’ve lost their “Supreme” title as far as I’m concerned. Of course, they’re no longer a court either, but I’m at a loss on what to call them.) decision on gay marriage, the county may be liable for its own costs if our register of deeds does not allow filing of same-sex marriages. Our register of deeds is an independent official and she will decide whether to obey our robed “legislators”. I expect she will [Alan Aker, Facebook post, 2015.06.26].
Former legislator Gary Jerke joins Aker in renouncing the supremacy of the court. jerke also renounces his citizenship:
Five individuals (5 out of 9) that the United States has arrogantly named SUPREME COURT have declared that God’s plan for mankind is incorrect. Our president (small case) boasted before his first election that the would “fundamentally transform America” and 5 black robed individuals did just that setting aside our Constitution and literally toke [sic] over the government telling individuals and states that their opinions do not matter. This is a truly sad day for all who live in the United States and as I shared on my facebook page I hereby declare I do not consider myself a citizen of this country in the respect that I am captive to God and God alone and a citizen of His Kingdom with allegiance to Him first and foremost [Gary Jerke, “God Gave Them Up,” The Right Side, 2015.06.28].
Jerke’s hyperbole is specious. The five individuals who this week made marriage equality the law of the land are not just five random people off the street. They are a majority of the Supreme Court, justices chosen by Presidents, confirmed by Senators, and empowered by Article 3 of the United States Constitution to decide such questions of law. The Founding Fathers themselves called the pinnacle of the judicial branch “Supreme Court.” The Founding Fathers were not arrogant (well, except in George III’s addled mind); they were clear: they recognized that their nation required one Supreme Court to ultimately settle certain disputes. To suggest otherwise is to ignore history, abandon American civic spirit, and invite anarchy.
* * *
In arguably related news, Edward Cline of Watertown exhibits a similar lack of faith in law and the judiciary and suggests I be taken out back for a stern discussion about my blogging:
You can disagree all you want with the conduct of the judiciary and other branches of government nationally and here in South Dakota. But to suggest that America is lost and that we cannot find solutions through our civic institutions invites exactly the kind of darkness, violence, and anarchy that Edward Cline advocates.
Update 09:35 CDT: A Facebook friend reminds me of two relevant numbers:
Percentage of the 2006 South Dakota electorate that voted to ban marriage equality in the Constitution: 52%
Percentage of the Supreme Court that voted to allow marriage equality: 55%
It has always been my position that the citizens of our state should define marriage, and not the federal government…. Five members of the U.S. Supreme Court have now determined neither the States nor our citizens have the right or the ability to define marriage [SD Attorney General Marty Jackley, press release, 2015.06.26].
Today’s ruling is a blow to state’s rights…. I believe states have a constitutional role in setting their own policy on marriage. Marriage is between a man and a woman, and traditional families play an important role in the fabric of our society [US Senator M. Michael Rounds, quoted in Amber Hiles, “Flags Fly, Couple Celebrate in Mitchell Following Same-Sex Marriage Announcement,” Mitchell Daily Republic, 2015.06.26]
The government shouldn’t be dictating how the states operate in the first place. They shouldn’t have gotten involved in the marriage issue [SD Rep. Dan Kaiser, quoted in Katherine Grandstrand, “Local Politicians Divided on Same-Sex Marriage Decision,” Aberdeen American News, 2015.06.27].
The discussion centered around an assumption that the movement to refer Senate Bill 69 (which in part was designed to make South Dakota more compliant with federal mandates to allow at least 45 days for military voting) is likely not going to be successful one, and may fall short of it’s [sic] goals. The talk was that, recognizing that likely outcome, the liberal powers that be decided to move forward with the lawsuit in an attempt to take up another front against the clean-up legislation [Pat Powers, “Is SB69 Lawsuit a Stop Gap Effort Because They Know Referral Isn’t Going to Happen?” Dakota War College, 2015.06.26].
Let’s count the errors:
Some friends and I will walk into Secretary of State Shantel Krebs’s office on Monday around 11:00 or 11:30 (depending on how many last-minute sheets we need to notarize) to submit two referral petitions—one for Senate Bill 69, the Incumbent Protection Plan that Powers so loves, and one for Senate Bill 177, the youth minimum wage. I will sign an affidavit swearing that, to the best of my knowledge, the sheets for each petition “contain a sufficient number of signatures to be certified to the ballot.” Whether Team Krebs’s 5% sampling of those signatures produces an error rate that throws out too many signatures is unknowable, although I want to believe that the circulators of these petitions have run a tight ship.
There are no “liberal powers that be.” What state are we living in again, Pat?
The lawsuit cannot be considered a “stop-gap” measure. “Stop gap” implies a temporary measure taken in anticipation of some subsequent permanent solution. The lawsuit is not a placeholder or a delaying tactic; it is a challenge to one clearly unconstitutional provision of SB 69 that seeks to make it harder for new parties to challenge the existing powers that be.
Senate Bill 69 is not “clean-up legislation”… unless Powers means it helps incumbents clean up at the polls. Senate Bill 69 dirties up our statutes with unconstitutional violations of the rights of new parties and voters who want to support Independents. Senate Bill 69 dirties Christmas by pushing candidate petition circulation back into December. Senate Bill 69 dirties democracy by deterring major-party candidates with unnecessary increases in the number of signatures they must collect to make the ballot. These provisions do nothing to clean up the mess of petition fraud and only deter candidates and voters from participating in the democracy this bill soils.
DWC’s misportrayal of Senate Bill 69 and the efforts to stop it are predictable. Powers has never understood Senate Bill 69. He is only propagandizing on behalf of his patrons and not trying to help South Dakotans understand the harm this bill does to democracy.
…yup, still shining, even after the United States Supreme Court ruled that every state in the Union, including South Dakota, must recognize same-sex marriage… or is the laws of this land shall now call it, marriage.
I invite your favorite passages from the Supreme Court ruling in Obergefell v. Hodges. I find these words useful:
The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the aban- donment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations [Syllabus, Obergefell v. Hodges, United States Supreme Court, 2015.06.26].
And this ruling is a victory for America. This decision affirms what millions of Americans already believe in their hearts. When all Americans are treated as equal, we are all more free.
…We are big and vast and diverse, a nation of people with different backgrounds and beliefs, different experiences and stories but bound by the shared ideal that no matter who you are or what you look like, how you started off or how and who you love, America is a place where you can write your own destiny.
We are people who believe every child is entitled to life and liberty and the pursuit of happiness. There is so much more work to be done to extend the full promise of America to every American. But today, we can say in no uncertain terms that we’ve made our union a little more perfect [President Barack Obama, remarks on Supreme Court ruling on Obergefell v. Hodges, 2015.06.26].
Change, said candidate Obama in 2008. Change we have.
Evidently Bosworth and her husband Chad Haber are in no such tight financial situation:
An eager readers sends the above Facebook posts indicating that Bosworth and Haber are sitting on enough cash to send two of their children on overseas trips. Bosworth can’t go with, since Judge John Brown is still holding her passport, but other members of her family can scout out foreign getaways.
Flights from Sioux Falls to Oslo are more than $2,000. The cheapest ticket from here to San Jose, Costa Rica, is just under $800. I can’t speak to the cost of specific camps or tours in Norway and Costa Rica, but I suspect they cost more than Art Camp at the Granary.
p.s.: Bosworth dupes continue to seek smokescreens for their idol’s failings, complaining that Attorney General Marty Jackley isn’t investigating Steve Hickey’s alleged 2012 petition missteps as avidly as he investigated Bosworth’s now proven 2014 petition perjury. AG Jackley says there’s a difference:
Although it’s only been six months since the raises went into effect, [CFO Rob] Olson said Ikea is on pace to reduce turnover by 5 percent or better this fiscal year. Holding onto employees longer means the company is spending less on recruiting and training new replacements.
Ikea is also attracting more qualified job seekers to work at its stores, according to Olson. Pay for retail sales workers in the U.S. is generally very low, with an average industry wage of just $12.38 per hour, according to the Bureau of Labor Statistics. But Ikea’s average store wage is heading north of $15. After its living wage announcementlast year, the company opened two new locations — one in Merriam, Kansas, and another in Miami — and the higher wages (and attendant publicity) likely helped the company lure more candidates.
“At both of those stores, the applicant pool was fantastic,” Olson said.
The living wage has worked so well, Ikea is sticking with it and raising its minimum wage again. By January, “all of the company’s U.S. stores will be paying at least $10 per hour, and the average minimum wage across all locations will be $11.87—a 10.3 percent increase over the previous year.”
MIT says the living wage for one adult in South Dakota is $9.48 an hour. The wage necessary to support a two-adult, two-child family is $21.42 an hour.
A school administrator at one of the Blue Ribbon K-12 funding meetings in Aberdeen Tuesday said that South Dakotans won’t support major funding increases around the idea that teachers deserve higher pay. The administrator said that many South Dakotans think, contrary to all evidence, that teachers make too much and that dropping another $10,000 or $20,000 in their laps would rouse great resentment, especially in smaller towns. The only way we’ll get widespread political support for any policy to meaningfully raise teacher pay, said this administrator, is to show people that current teacher pay leads to their kids going without essentials, like math teachers.
Anderson reports that Sittig lucked out: the math teacher who resigned decided to come back. But lucking out is not a sustainable hiring policy for our schools. If we want our kids to learn math, we’ve got to pay for it. If we want more applicants to choose from, we have to end South Dakota’s reputation for shortchanging teachers.
The administrator I talked with Tuesday mentioned something many other participants in the Blue Ribbon sessions around the state mentioned, that the K-12 funding task force should look for ways to increase respect for teachers. Rather than fiddling around with ideas for outreach (what, another ad campaign from Lawrence & Schiller? South Dakota Teachers—Nicer Than Martians!), the task force and the Legislature should take action that directly solves the problem of low teacher pay draining the applicant pool. If the Legislature waits for cultural perceptions of teachers to shift, the Legislature will never act.
The Legislature didn’t wait for the culture to shift this year when it raised taxes $85 million to fix our roads. Of course, as my administrator interlocutor noted, people can see and feel potholes. Maybe that problem already had sufficient public buy-in for legislators to feel they had electoral cover to act. (Also helping: not an election year! The Blue Ribbon panel’s recommendations will come up in an election year.)
So on K-12 funding, must the Legislature wait for enough South Dakotans to feel the potholes—the math-holes, the music-holes (Anderson reports that an applicant turned down the Alcester-Hudson music position because she could make more teaching music half-time across the border in Iowa), the opportunity-holes caused by our state’s cheapness? Or does the Legislature choose lead, raise teacher pay to competitive interstate levels, and spend the 2016 election season defending that policy and leading a conversation about why teachers deserve such a raise and such respect?
None of the three sessions I attended Tuesday here in Aberdeen fit that description. The meetings played out like an honest attempt to solicit input from the citizens in attendance on three questions, the same questions posed at all eighteen sessions around the state:
When you think about funding in your local community, what is important to you?
What ideas or new approaches might make those priorities more possible for schools in your community?
What advice do you offer to the Task Force as the work moves forward?
I didn’t see dogs or ponies, just sticky notes. Participants sat in different small groups for each question. They wrote down each noteworthy point of their discussions on sticky notes. They then starred the three most important responses their table produced for display on the wall. (I have altered some of the photos to reduce size; I have not altered the text appearing on the notes; click each to embiggen!)
Two TIE staff—current director Julie Mathiesen and former director turned senior consultant Jim Parry—will transcribe and analyze every sticky note, starred or not, from all sessions to identify major themes. They’ll come up with themes as obvious in the Aberdeen session as in the Watertown sessions the day before. Paraphrasing from a summary provided by a correspondent who attended one of the Watertown sessions, I predict the six big idea walls will boil down to this sentence:
The task force needs to identify new revenue streams to provide stable, consistent K-12 funding sufficient to recruit and retain qualified teachers.
That’s a very small verbal precipitate from a big swirling solution of conversation and sticky notes. It does not capture the most vivid anecdote I heard all day in Aberdeen, a story that won’t fit on a sticky note but captures South Dakota’s K-12 funding problem in toto:
A superintendent was driving down the highway and had to stop for road construction. The flagger noticed the superintendent’s school plates and asked where he worked. They got to talking, and the superintendent learned the flagger was a South Dakota native who moved back here with his wife after teaching special ed in Alaska for a few years. The superintendent said he knew of 29 special education openings around South Dakota and asked the flagger if he’d applied. The flagger said no way—why would he, when he can make more flagging cars all construction season?
The TIE folks will honestly analyze the qualitative data produced by the World Café conversations the Blue Ribboneers hosted for us this month. But their data will not tell us anything the flagger’s story does not. We aren’t paying teachers enough to compete with other jobs in state, let alone teaching jobs out of state. Every teacher knows this. Every administrator knows this. Even every legislator who doesn’t want to do anything about the problem knows this.
The problem is as obvious as the solution: put more money toward schools. The specific legislation that would enact that solution won’t come from one-off public brainstorming sessions. Good public policy comes from ongoing conversations among colleagues who meet regularly, step back to study and think, then get together again and again until they can draft a specific proposal that experts and the general public can digest and debate.
The Blue Ribbon listening sessions weren’t a dog-and-pony show… unless we were the dogs and ponies, meant to enjoy the public display of our voices before the task force gets to its real work. But if only one story, like the flagger story, comes out of these sessions and sticks in the handpicked task force members’ minds, they’ll be able to end our Legislature’s and Governor’s complacency and propose a real solution to South Dakota’s teacher shortage.
We’ll know the true value of this exercise nine months from now, when the 2016 Legislature gavels out.
Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”
…(Understatement… Impossible possibility… Contrivance! Thy name is an opinion on the Affordable Care Act!)…
…the opinion continues, with no semblance of shame….
…Faced with overwhelming confirmation that “Exchange established by the State” means what it looks like it means, the Court comes up with argument after feeble argument to support its contrary interpretation.
…context only underscores the outlandishness of the Court’s interpretation.
…For its next defense of the indefensible….
Could anyone maintain with a straight face that §36B is unclear?
…Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting” [Justice Antonin Scalia, dissent, King v. Burwell, 2015.06.25].
Justice Scalia throws this decision in the same pot as the 2012 ACA-saving NFIB v Sebelius decision and, in his concluding lament, accuses the majority of cahootsifying with President Obama and certain favorites in Congress to rewrite Obamacare to keep it alive:
…The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.
Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by liti- gants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
Justice Scalia’s rage makes for blistering entertainment, but it didn’t persuade the six-justice majority, led by Chief Justice John Roberts, who today as in 2012 helps save President Barack Obama’s crowning achievement. Roberts (joined by Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan) looks at the reforms Massachusetts adopted to avoid the “economic death spiral” that earlier insurance reforms in isolation caused, sees the same integral package of reforms enacted in the ACA, and decides that Congress could not have meant to guarantee affordable health insurance to all Americans without expecting that tax subsidies for insurance premiums and the individual insurance mandate would take effect in every state.
In other words, this Supreme Court decision in favor of Obamacare is brought to you by Mitt Romney.
Chief Justice Roberts dismisses the minority’s cry of plain language! words on the page! by pointing out that “Our duty, after all, is ‘to construe statutes, not isolated provisions.'” Yes, yes, Section 36B says individuals qualify for the premium tax credit if they enroll in “an Exchange established by the State under [42 U. S. C. §18031].” But the Chief Justice reads that provision in this context (the core of the semantic argument):
First, all parties agree that a Federal Exchange qualifies as “an Exchange” for purposes of Section 36B. See Brief for Petitioners 22; Brief for Respondents 22. Section 18031 provides that “[e]ach State shall . . . establish an American Health Benefit Exchange … for the State.” §18031(b)(1). Although phrased as a requirement, the Act gives the States “flexibility” by allowing them to “elect” whether they want to establish an Exchange. §18041(b). If the State chooses not to do so, Section 18041 provides that the Secretary “shall . . . establish and operate such Exchange within the State.” §18041(c)(1) (emphasis added).
By using the phrase “such Exchange,” Section 18041 instructs the Secretary to establish and operate the same Exchange that the State was directed to establish under Section 18031. See Black’s Law Dictionary 1661 (10th ed. 2014) (defining “such” as “That or those; having just been mentioned”). In other words, State Exchanges and Federal Exchanges are equivalent—they must meet the same requirements, perform the same functions, and serve the same purposes. Although State and Federal Exchanges are established by different sovereigns, Sections 18031 and 18041 do not suggest that they differ in any meaningful way. A Federal Exchange therefore counts as “an Exchange” under Section 36B [Chief Justice John Roberts, majority opinion, King v. Burwell, 2015.06.25].
Such—that one word roasts the beef brought by four selfish Virginians who didn’t want to buy health insurance over four words. Fascinating.
That semantic argument gives the majority the ground to follow the principle that the Supreme Court “cannot interpret federal statute to negate their own stated purpose” [Roberts, p. 15]. The majority recognizes that affirming the plaintiffs’ position would immediately deny residents of 34 states access to one key reform of the ACA, the premium tax subsidy, then practically negate in 34 states the meaningful application of a second key ACA reform, the individual insurance mandate, leaving the ACA unable to function the way Congress intended. To support that point, Roberts quotes Scalia:
The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. One study predicts that premiums would increase by 47 percent and enrollment would decrease by 70 percent. E. Saltzman & C. Eibner, The Effect of Eliminating the Affordable Care Act’s Tax Credits in Federally Facilitated Marketplaces (2015). Another study predicts that premiums would increase by 35 percent and enrollment would decrease by 69 percent. L. Blumberg, M. Buettgens, & J. Holahan, The Implications of a Supreme Court Finding for the Plaintiff in King vs. Burwell: 8.2 Million More Uninsured and 35% Higher Premiums (2015). And those effects would not be limited to individuals who purchase insurance on the Exchanges. Because the Act requires insurers to treat the entire individual market as a single risk pool, 42 U. S. C. §18032(c)(1), premiums outside the Exchange would rise along with those inside the Exchange. Brief for Bipartisan Economic Scholars as Amici Curiae 11–12.
It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”). Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation. But those requirements only work when combined with the coverage requirement and the tax credits. So it stands to reason that Congress meant for those provisions to apply in every State as well [Roberts, 2015.06.25].
Contrary to Scalia’s assertion that the majority opinion rewrites the law and “aggrandizes judicial power,” Roberts says this ruling is very much about putting the will of Congress above the Court’s creative nitpickery:
In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.
Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt [emphasis mine; Roberts, 2015.06.25].
Enter Rep. Lana Greenfield (R-2/Doland), who appears determined to cling to some excuse for the Legislature not to raise teacher pay. Rep. Greenfield attended the educator and general public listening sessions of the K-12 task force in Aberdeen Tuesday. During at least one table discussion at the public session where participants were saying pretty strongly that the schools need more money to recruit and retain teachers, Rep. Greenfield defied Governor Daugaard’s hushing and told her table-mates that there’s a teacher shortage nationwide, so raising teacher pay won’t do any good.
Loving kids does not oblige a teacher to work for free (which, compared to the going wage in surrounding states, one could argue South Dakota teachers do for 41 days out of a 180-day school year). The decline in workers interested in teaching does not justify failure to raise teacher pay. Quite the opposite: if not enough people are going into teaching, simple market economics tells us we have to raise wages to balance supply of labor with demand for services.
Ignoring those simple principles requires Rep. Lana Greenfield to adopt a willful blindness to the harm her Legislature and her party have perpetrated on South Dakota’s K-12 education system.
When other folks at the table told Rep. Greenfield that a nationwide shortage of teachers should not stop us from trying to recruit more, the Doland legislator said something about how such competition between states turns into “cannibalism” or a “dog-eat-dog” situation. Another participant at the table said this task force and this Legislature are here to take care of South Dakota first. I think I said something like, “Let’s listen to the market and eat the dog.”
Even Governor Daugaard should reject Rep. Greenfield’s implication that we should not raise teacher pay for fear of competing with other states. The Governor’s Office of Economic Development works daily to raid businesses and workers from other states. Why would we hesitate to compete with other states for the best teachers in the country… unless deep down we fear we’d lose a heads-up pay battle with Minnesota… or unless deeper down we just don’t want to pay teachers what the market says they are worth?
Let’s not be cowards or cheapskates. Let’s ignore Rep. Greenfield’s excuses. If teacher shortages abound—in Nevada, Arizona, North Dakota, New York, Texas, and California—that’s more reason, not less, to take serious action. And the most serious and straightforward action South Dakota can take is to put more money in teachers’ pockets.