Relevant and even prescient commentary on news, politics and the economy.

SCOTUS: States Can Regulate Insurance Plan Contractors

While briefly discussing (accessible link below for addition information) this decision, keep in mind this is a big deal in lowering the costs of pharmaceuticals as it goes right to the source of some of the excess takings involved in the distribution of drugs from manufacturer to drug stores.

December 10, 2020: the Supreme Court handed a win to states and broadened the path for state health care cost control efforts. In Rutledge v. Pharmaceutical Care Management Association, the Court ruled 8-0 that the Employee Retirement Income Security Act (ERISA) did not preempt Arkansas’s law regulating pharmacy benefit managers (PBMs), the intermediaries that administer prescription drug benefits for health plans.

Speaking for an unanimous Court, Justice Sonia Sotomayor, held that “state laws requiring PBMs to pay pharmacies no less than their acquisition costs for prescription drugs was not preempted by ERISA (the federal statute governing employee benefits). ERISA does not pre-empt state rate regulations that merely increase costs or alter incentives for ERISA plans without forcing plans to adopt any particular scheme of substantive coverage.”

The GOP has crossed the Rubicon

The GOP has crossed the Rubicon

 – by New Deal democrat

In the Roman Republic, military leaders automatically lost their legal authority to command at the Rubicon River in northern Italy. When Julius Caesar crossed the Rubicon with his legions, it was an act of war against the Republic. With the filing of their  Amicus brief in the Supreme Court this past week, the GOP as represented by their Congressional delegation similarly finally broke with the idea of American democracy itself. 


For the first several weeks after Trump’s railing against the election results, the GOP simply took the position that he was entitled to pursue legal remedies if he believed he was wrong. The mask was ripped off, and that pretense abandoned, when in their brief, the GOP took the core position  not just that there were allegations of errors which were entitled to be explored, but rather ***asserted as a fact*** that millions of votes in 4 swing States were invalid and should not be counted. Not because dead people voted, or people not properly registered had voted, but rather simply on the flimsiest of assertions that actions by Courts and Executive officials carrying out their respective States’ election laws rendered all of the votes cast in good faith reliance upon the law by millions of voters in those States null and void.


Here’s the “Summary of Argument” from the GOP Brief:

SCOTUS Decides Texas Lawsuit regarding Georgia, Pennsylvania, Michigan and Wisconsin

Given the makeup of the Supreme Court after 3 conservative appointments to the court, I was concerned as to what the outcome of the Court’s decision might be. Whether they would agree with Texas and trump was the concern.

The italicized sentence is basically the Court’s decision. The note from Alito and Thomas being an acceptance of the motion for review and not grant the petitioner relief.


“The justices’ dissents, though, are considerably less significant than all that.

As The Post’s Supreme Court guru Robert Barnes and many others noted, the dissents echoed the long-standing positions of the two justices, which is that the court’s “original jurisdiction” means it must accept such a case involving conflicts between states. Their dissents on that point, in fact, were merely a matter of course for them — something they’ve done before — not any kind of commentary on the substance of the claims.

And indeed, they actually made a pretty significant statement about the substance — but not in Trump’s favor.

“I would therefore grant the motion to file the bill of complaint but would not grant other relief,” Alito said in the dissent which Thomas joined, “and I express no view on any other issue.”

Social Security Trustees Update 2020 Report To Include Effects of Covid Recession

Reader and poster Coberly updating Angry Bear readers on recent Social Security findings in the 2020 report. Reader Bruce Krasting had alerted Angry Bear to the publication by the Social Security Trustees of a “revised baseline” that includes effects of the Covid recession on their projections otherwise from the 2020 Trustees Report.Updated Baseline for Actuarial Status of the OASI and DI Trust Funds, Reflecting Pandemic and
Recession Effects

The Trustees have better information than I have and assumed a lower unemployment rate with effects of the recession lasting over several years, but returning to “normal” by the year 2029.  Their new projections bring the Trust Fund exhaustion date one year closer, but the ultimate 75 year deficit remains at about 4% of payroll.

Using their revised baseline, and attendant projected changes in some of the parameters they use for their projections, I was able to replicate their calculations, giving me confidence that my own findings regarding necessary payroll tax changes are consistent with their projections.

The necessary payroll tax changes amount to an average tax increase of less than one tenth of one percent (each) per year.  This is different from my pre-covid findings only in that the tax increases would need to be a bit larger in the first years than previously estimated.

PRC busts the price cap, lawsuits sure to follow

Fact: Contrary to what President Trump claims, the Postal Service can’t solve its financial problems by raising “the price of a package by approximately four times.”

Steve Hutkins at Save The Post Office discusses the financial issues facing the United States Postal Service and why the Postal Regulatory Commission  new plans to increase prices may be problematic. By no means is this a new topic. It has been brought up repeatedly by members of Congress and this administration as well as earlier administrations. The USPS was not meant to be profitable and its present situation is the result of the Postal Accountability and Enhancement Act.

**********************************************

The Postal Regulatory Commission has spent the past four years working on a revision of the rate system for Market Dominant products. Yesterday the Commission issued its final rule on the changes. The order is here. The PRC’s press release is here. The media kit contains a useful FAQ.

The process of reviewing the rate system involved the Commission, the Postal Service, and an extensive list of stakeholders and commenters.  And even though it’s been going on since December 2016, it’s not over yet, not by a long shot. Given that many of the mailers have fought the changes that were finally approved, it’s widely expected that some stakeholders will appeal the PRC’s order to the D.C. Circuit.

Don’t Pay Your Rent? Go to Jail in Arkansas

Arkansas is the only state where landlords can file criminal charges rather than civil complaints against tenants for falling behind on rent. Gee, whata surprise! As picked up from Crooks and Liars and originally reported by ProPublica – When Falling Behind on Rent Leads to Jail Time, ProPublica.

An Arkansas prosecutor has been fired after speaking out against a 119 year old law jailing people who are behind on rent and mostly impacting female, Black, and low-income renters. Garland County deputy prosecutor Josh Drake was let go from his position on Oct. 31 by Michelle Lawrence, the prosecuting attorney.

Josh Drake told ProPublica:

I hate that law. It’s unconstitutional. It constitutes cruel and unusual punishment, echoing other Arkansas legal experts and advocates across the political spectrum.

Under the law, which dates to 1901, if a tenant’s rent is a day overdue, they forfeit their right to be in the property. If they don’t leave their homes within 10 days of getting a notice from their landlords, they can be charged with a misdemeanor and fined for each day they overstay.

Evictions in the state can snowball from charges to warrants to arrests to jail time, leaving people with criminal records that hinder their ability to find a new home or get a job. In civil evictions, by contrast, landlords can pursue unpaid rent and other additional fees from tenants, but the process doesn’t include daily fines for staying in the property without paying or put tenants at risk of jail time.

ProPublica found that since 2018, more than 1,000 cases have been filed under the criminal eviction statute. During that time, judges have sentenced at least 37 renters to jail after charges stemming from the law, which is officially known as “failure to pay rent, failure to vacate.” Women and people of color have disproportionately been charged.

And yes, not even the pandemic (U.S. Centers for Disease Control and Prevention’s) national moratorium on evictions can stop Arkansas courts from jailing people.  Approximately 49 people have been charged, with more than two dozen cases filed since September 4. And landlords?  Landlords preferred the criminal statute to civil evictions because the criminal process is cheaper. In criminal cases, taxpayers shoulder the cost when county attorneys pursue tenants in Arkansas while in in civil eviction hearings, the landlords have to cover their attorney fees.

Yemen: More Damage To World Peace And Security Due To Trump Wrecking Everything As He Exits

Yemen: More Damage To World Peace And Security Due To Trump Wrecking Everything As He Exits

Michigan certified its vote results for Biden, and now crucially Emily Murphey at the GSA has agreed and now recognized officially that at least Joe Biden should be allowed to transition properly as has always happened in the past normally.

But in his lame duckery, still denying his obvious loss, Donald Trump is trashing everything in sight.  Very serious matters of foreign policy are part of this. One of these has been discussed in comments here previously, the removal from the Open Skies Treaty, which right now I am watching Rachel Maddow report that DOD is destroying the planes US used for this. Ack!!!
But for this post I am noting another awful thing they are doing along a bunch of others.  This involves Yemen, long one of the worst humanitarian disasters on the planet, horrible, but so in place for so long that most people pay no attention anymore because, bore, been there done that snore. But it continues to be a place of ongoing civilian deaths from bombs and economic deprivation.
So, just to make things “better,” the Trump admin has decided to declare that the Houthi group who rule not only most of northern Yemen, but also its capital, Sana’a, to be officially a “terrorist group.” The immediate result of this ruling is that all kinds of humanitarian aid that has been going to people in the parts of Yemen they live in will no longer receive it.  This is morally awful and just plain stupid.
So this is part of Trump frustrated in his anti-Iran policy.  He exited the Iran nuclear treaty, leading to a massive increase in enriched uranium there.  Ooops! He killed a top general from there to stop attacks on US forces in Iraq by Iranian militias.  But those continue, with more political support in Iraq. Duh.

John Locke: decisionmaking by standing rules set in advance is a foundational requirement for civil government

John Locke: decisionmaking by standing rules set in advance is a foundational requirement for civil government

John Locke’s “Second Treatise of Government,” published in 1690 just after and in support of the Glorious Revolution, is the founding philosophical document of modern liberal representative democracies.
In it he anticipates John Rawls’s “original position.” Locke argues that in order to protect their property, over time all groups of humanity form “civil societies” by agreeing *in advance* to rules that will be applied to public and private controversies, civil and criminal; and by establishing a legislature which will make further laws – again, *in advance* – to govern new controversies which may arise.
The essence of this argument is found in Sections 87, 88, 89, 94, 124, 131, and 142, which I have abridged below (advance warning: Locke writes in *extremely* long and convoluted sentences!)(bold emphasis is mine):

Sect. 87. … [B]ecause no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto, punish the offenses of all those of that society; there, and there only is political society, where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it. And thus … the community comes to be the umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offenses which any member hath committed against the society, with such penalties as the law has established…

 

Is Trump Going To Attempt A Coup?

Barkley Rosser, Econospeak Blog, “Is Trump Going To Attempt A Coup?

I realize that Joe Biden just held a press conference where he basically dismissed the refusal of Trump and a lot of other Republicans to concede the presidential election to Biden as “embarrassing,” laughing at Secretary of State Pompeo who earlier today talked about a transition to a second Trump term, and said it will all be over and fine by Jan. 20. Maybe, but I am somebody who has taken seriously for a long time words from people like Michael Cohen and more recently Mary Trump who have said he simply will not go willingly and will continue to refuse to accept defeat. I have watched various commentators supporting him from time to time thinking, “Will they support him if he declares martial law?” Unfortunately, I think a lot of them will.

He certainly is laying the groundwork for making an attempt. The obvious such sign was yesterday’s firing of SecDef Esper, reportedly because Esper made it clear in June he would not order US troops to move on peaceful civilian demonstrators in Washington. Rumor has it he is about to replace the FBI and CIA directors also. And the Undersec of DOD is also out. It certainly looks like he is trying to stock the top levels of the military and intelligence establishment with total toadies who will do his bidding. If he makes the move and invokes the Insurrection Act or simply declares a National Emergency, which, frankly, is in his legal power. Will these newly installed flunkies stand up to him? Who will?

I am seriously worried about this, and the more I see people like Mitch McConnell and Sean Hannity just spouting rank lies about the election, my concern grows. I hope I am wrong, but I am now afraid we may be facing a very serious showdown over this, and I see the refusal of certain foreign authoritarian leaders friendly to Trump, such as Putin, not accepting the result, as a sign that they would support him if he made such a move, and we know he really likes and admires those guys. This is a very bad situation.

Barkley Rosser

SCOTUS ACA Update

This update from XPOSTFACTOID showed up in my inbox. If Roberts and Kavanaugh continue on the same path they have started out on initially, it appears the case brought about by Texas may fail. Briefly, here are some points made.

November 10, 2020 in oral argument; California v. Texas  Roberts appears equally skeptical about this argument from intent. In oral argument yesterday, Kyle Hawkins, arguing for Texas, made the case:

“I think it’s critical that, in 2017, Congress could have excised the legislative findings in 18091 [the assertion of severability], but it chose not  to do so. It could have excised —

Roberts interjected:

Well, but I mean — I — I certainly agree with you about our job in interpreting the statute, but, under the severability question, where — we ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed. And, here, Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question.

In Roberts’ King v. Burwell decision: Congress repealed the individual mandate penalty, not the entire law.

Erwin Chemerinsky Explains Severability