A summer whose entertainment headlines were dominated by Taylor Swift and her blowout concert tour just…
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Event Ticket Purchases: The Proposed BOSS Act Would Empower Biden’s Rogue FTC and Make Matters Worse, Not Better

A summer whose entertainment headlines were dominated by Taylor Swift and her blowout concert tour just came to an end.  Unsurprisingly, a significant number of those headlines centered upon the ongoing public policy debate over the consumer ticket purchase experience, along with varying and differing calls for reform.

Unfortunately, some of that discussion served to introduce terribly ill-advised proposals that would only make the industry and American consumers’ enjoyment of it far worse.

To be sure, the genesis of the problem underlying various reform proposals is the issue of predatory ticket resellers who engage in harmful practices that hurt fans as well as the artists themselves.  As just one illustration, resale ticket prices at StubHub alone have increased over 100% since…[more]

September 26, 2023 • 07:25 PM

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Senate Democrats and Scorched-Earth Judicial Politics Print
By Timothy H. Lee
Thursday, September 11 2014
The full court's unjustified decision to rehear the case en banc not only unnecessarily obstructs and delays Supreme Court resolution, it appears to be a transparently politicized decision to rescue ObamaCare.

Whereas Senate Democrats routinely employ scorched-Earth tactics in the realm of judicial politics, Senate Republicans have tended to act with comparative timidity. 

In an ominous new ruling from the full D.C. Circuit Court of Appeals regarding an important ObamaCare decision from earlier this summer, Democrats' Machiavellian methods are again proving fruitful.  Accordingly, as the likelihood of a GOP takeover this November appears increasingly likely, the question becomes whether they've learned their lesson and will respond appropriately going forward. 

Back in 2005, President George W. Bush had just won reelection and Republicans controlled the Senate by a comfortable 55 to 45 disparity. 

Led by then-Minority Leader Harry Reid (D - Nevada), Democrats responded with unprecedented hardball tactics, filibustering appellate court nominees on a wholesale basis for the first time.  After ten more Bush nominees were summarily filibustered - including Miguel Estrada, whom Democrats literally labeled "Especially dangerous ... because he is Latino" - Senate Republicans finally began responding with corrective measures.  Specifically, they contemplated changing Senate rules to prohibit filibusters during judicial confirmation votes. 

Reid and Senate Democrats howled in protest, asserting that sacred Senate tradition must be preserved, and that rules required a two-thirds majority to revise or amend them in any case. 

At that point, seven of the more infamously fainthearted Republican Senators - Lincoln Chafee, John McCain, Lindsey Graham, Susan Collins, John Warner, Olympia Snowe and Mike DeWine - came to Harry Reid's rescue.  Along with seven Democratic Senators, they collectively formed the "Gang of Fourteen" and agreed that Democrats could only filibuster in "extraordinary circumstances." 

And so Harry Reid's cherished filibuster lived another day. 

Until November 2013, that is.  The same Harry Reid who claimed to treasure Senate tradition when Republicans controlled that branch cobbled together a narrow 52-48 vote (with 3 Democrats and all Republicans in opposition) to prohibit filibusters against all executive branch nominations, with the sole exception of Supreme Court nominees. 

Say what you will about the habitually sleazy behavior of Harry Reid, his maneuvers often achieve his desired ends.  A new ruling from an appellate court he helped pack is the latest example.  Just days ago, the D.C. Circuit Court of Appeals, which Reid and Obama had packed after ending the Senate filibuster, voted to rehear en banc the Halbig v. Burwell decision from earlier this year. 

By way of reminder, Halbig is the case in which a 2-1 majority ruled earlier this summer that ObamaCare's statutory text meant what it said in creating federal subsidies only for exchanges "established by the State."  When the Democrat-controlled Congress passed ObamaCare in 2010 by a razor-thin margin, it sought to persuade states to create insurance exchanges through which the dysfunctional law would operate.  But because the federal government can't outright order states to carry out its policies, Congress offered the carrot of federal subsidies for states that cooperated, and the stick of denying subsidies for states refusing to cooperate.  Thus the law's text directed federal dollars to "an Exchange established by the State."  Little did ObamaCare's proponents anticipate that 36 states would subsequently decline to involve themselves in the law's dysfunction.  Facing logistical disaster, the IRS simply chose to ignore the law's plain text, and ordered that subsidies also be allowed for exchanges operated by the federal government in the 36 non-participating states. 

In July, however, the D.C. Court of Appeals invalidated that Obama Administration attempt to circumvent its own law.  "It is not our job," the 2-1 majority held, "to protect the people from the consequences of their political choices." 

Enter the full D.C. Court of Appeals, which now maintains an 8 to 5 liberal majority after Reid's court-packing effort added three new Obama appointees last year. 

The D.C. Circuit's own guidelines for en banc review set a very high "exceptional importance" standard for reviewing panel rulings, usually limited to cases in which the panel has overturned existing D.C. Circuit precedent or some constitutional principle is involved (as opposed to statutory interpretation as in this case).  In a typical year, only one or two out of 500 cases heard qualify for such review. 

The full court's unjustified decision to rehear the case en banc not only unnecessarily obstructs and delays Supreme Court resolution, it appears to be a transparently politicized decision to rescue ObamaCare.  On that note, Harry Reid openly congratulated himself when asked whether his Senate tactics underlie this turn of events by saying, "If you look at simple math, it sure does." 

But polls increasingly suggest that Reid's days as Majority Leader are numbered. 

As November approaches, and the possibility of additional appellate court and even Supreme Court nominations over the next two years looms, American voters are entitled to consider Reid's behavior and the role the Senate plays in critical judicial matters.  They might also press Senate candidates seeking their votes to answer whether they're willing to play judicial hardball as well. 

Notable Quote   
"A disturbing report on the quality of living conditions at military barracks, released by the General Accountability Office (GAO), reflects a failure of America's military leaders, who are supposed to look out for and care for the well-being of their people.While inspecting 10 barracks, GAO investigators observed numerous potentially serious health and safety risks: mold and mildew, bug infestations…[more]
— Rear Adm. (Ret.) Tom Jurkowsky, Author and Board Member for the Military Officers Association of America
Liberty Poll   

In your opinion, how likely is a federal government shutdown at the end of September, based on budgetary and other disagreements in the fractured House of Representatives?