"TO SECURE THESE RIGHTS"- The NY Daily News Has the Pics

A few weeks ago we submitted to the "Spade In The Dark Loam" Page section of this blog an item we filed under Harry S. Truman's greatest Hits - An intro to the Report- To Secure These Rights - he commissioned on the current state of civil rights in the country ( the America of December, 1946). We thought it pertinent and timely anent the current state of affairs in the America of 2015. A reminder of how far we have (not) come. The report included the horror story that was reported online today - Feb. 17, 2015 -in the New York Daily News about a young Black man named Roger Malcolm- The News spells it Malcom- who had been arrested for allegedly stabbing a white farmer- who in the Commission's report is described as Malcolm's employer but is not in the News story. 

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FBI questions elderly Georgia man in connection with unsolved 1946 lynching at Moore’s Ford Bridge Charlie Peppers, 86, claims federal agents grilled him about the long-unsolved killing of four black sharecroppers in Georgia, the Guardian reported. 

BY DOYLE MURPHY  

 

NEW YORK DAILY NEWS

 

Published: Monday, February 16, 2015, 5:43 PM

Updated: Tuesday, February 17, 2015, 7:50 AM

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 Anyway, a guy named Loy Harrison, another white farmer and is described in the News story as Mr. Malcolm's employer, posted bond on July 20, 1946, for his release from the Monroe, GA jail. Not only that but this Mr. Harrison offered to drive Mr. Malcolm and his wife, Dorothy, and his brother-in-law, a war veteran named George Dorsey and his wife, Mary, Roger's sister- in the News story she is Mae Murray,  home. Outside of Monroe, at a place called Moore's Ford Bridge a mob stopped the car. The News- in need of better editors- mis- led with four young men being lynched but of course in the body of the story we learn that it was two couples who were slaughtered. The center of the News story is an 86 year-old who is currently being questioned by the FBI about this incident and of course he is denying everything and thinks the FBI is persecuting him. Boy, if I had a nickel, eh? But what we found of interest is how the President's Commission reported the atrocity:

"At a bridge along the way a large group of unmasked white men, armed with pistols and shotguns was waiting.They stopped Harrison's car and removed Malcolm and Dorsey. As they were leading the two away, Harrison later stated, one of the women called out the name of a member of the mob. Thereupon the lynchers returned and removed the two women from the car. Three volleys of shots were fired as if by a squad of professional executioners. The coroner's report said that at least sixty bullets were found in the scarcely recognizable bodies. Harrison consistently denied that he could identify any of the unmasked murderers. State and federal grand juries reviewed the evidence in the case, but no person has yet been indicted for the crime."

We learn in the Daily News story that the FBI has been working on this case for some time. But what I find so disheartening - if thats the word- is : didn't anyone back then ask whose name it was that one of the women called out? Harrison says he didn't recognize any of the unmasked white men- but he must have heard the name being called out. 

This is one of those unsolved horror stories that will continue to arise from time to time as well it should as America too slowly and hesitantly confronts its past and for what its worth- its present. This very story was once featured on NPR who interviewed the author of a book on this very subject.  Laura Wexler's Fire in a Canebrake, is about the lynching at Moore's Ford Bridge. It was published about 12 years ago and although the author doesn't solve the case the revelations she does uncover are more about us than we probably want to know. In her interview (online, of course) with NPR she is asked:

Q: How disappointed were you, at the end of these years of investigating this, that you weren't able to solve it?

Well, I knew that it wasn't probable, but I knew it was possible. Several years into my research when I had the small miracle of getting a portion of the FBI's original investigative report, uncensored, I thought, This is it; these are the names of the suspects that have never been made public. I literally took that report and put it next to the local phone directory and looked for the names. At first I was so delighted because I found a lot of the names of the suspects. I went to the houses only to realize that the widows were continuing to list their phone number as their husband's name. Their wives were still living in the very same places where they were in 1946.

I did find two men who were suspects in 1946 that were still living and I was able to interview them, to confront them, to basically ask them the same questions that the FBI had asked fifty years before.

Q: And?

And they said almost word for word the very same things they said in 1946. It was remarkable to me and then I thought, in a way, it's a script. This was their story and they were sticking to it. That's one of the remarkable things about this lynching. Fifty-seven years later, the silence still holds. Nobody's cracked. To me, that demonstrates the power of racism. The power of racism to distort and to destroy a community's and individual's ability to tell the truth.

Make that 69 years and counting.

The Spade In The Dark Loam

Jan. 25, 2015

Once upon another time:

(From Harry S. Truman's Greatest Hits)

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Assignment from the President
MR. PRESIDENT:
This is the report which we have prepared in accordance with the instructions which you gave to us in your statement and Executive Order on December 5, 1946:

Freedom From Fear is more fully realized in our country than in any other on the face of the earth. Yet all parts of our population are not equally free from fear. And from time to time, and in some places, this freedom has been gravely threatened. It was so after the last war, when organized groups fanned hatred and intolerance, until, at times, mob action struck fear into the hearts of men and women because of their racial origin or religious beliefs.

L'CHA'IM !

How is it- my pedestrian noggin wants to know- that four people from the state of old Virginny- people who perhaps have about as much in the bank as I have, which if you must know is not more than my monthly social security and I know this because according to a landmark case-to-be now pending, as they say, before the highest court in the land,

RYAN'S WORLD: THERE'S THE MAKERS & THE TAKERS

  Lordy help us, these four, beginning with a guy named KING, cannot afford health insurance "but want to be declared ineligible anyway for the federal tax subsidies that would make insurance affordable for them", how is it they they CAN afford to have their case - and if I may, their cockamamie case, go all the way to the Supreme (keinahora) Court? As Linda Greenhouse writes (today):

"If the Supreme Court agrees with the challengers, more than seven million people who bought their insurance in the 34 states where the federal government set up the marketplaces, known as exchanges, will lose their tax subsidies. The market for affordable individual health insurance will collapse in the face of shrinking numbers of insured people and skyrocketing premiums, the very “death spiral” that the Affordable Care Act was designed to prevent."

Amici Curiae for those of you scoring at home is one of those important sounding Latin terms meaning "Friends of the Court" and these friends don't have to be actual participants in the case being heard and there are protocols in place as to how to go about being a friend, especially involving a Supreme Court case (someone has to read it to Judge Thomas- ) It is interesting but not surprising that the amici brief that was prepared for the health-denying senators and representatives was by a right-wing "lawyerly" organization in Washington, D.C. most noted for its opposition to affirmative action and well, people having healthcare for the first time.

In the

Supreme Court of the United States

______________

DAVID KING, ET AL.,v. Petitioners,SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,Respondents. On Writ of Certiorari to the United StatesCourt of Appeals for the Fourth Circuit ______________


BRIEF OF AMICI CURIAE SENATORS JOHN CORNYN, TED CRUZ, ORRIN HATCH, MIKE LEE, ROB PORTMAN, AND MARCO RUBIO; AND REPRESENTATIVES MARSHA BLACKBURN, DAVE CAMP, RANDY HULTGREN, DARRELL ISSA, PETE OLSON, JOE PITTS, PETER J. ROSKAM, PAUL RYAN, AND FRED UPTON IN SUPPORT OF PETITIONERS

Counsel for Amici Curiaei TABLE OF CONTENTS

Page TABLE OF AUTHORITIES.................................. iii

INTEREST OF AMICI CURIAE .......................... 1 SUMMARY OF ARGUMENT ............................... 3 ARGUMENT.......................................................... 5

I. Congress Has Not Granted the IRS Any Authority To Extend Premium Subsidies to Health Plans Offered Through an Ex- change Established by the Federal Gov- ernment. ...................................................... 5

a. The Plain Text of the ACA Demon- strates that Premium Subsidies Are Available Only Through an Ex- change Established by a State ........ 5

b. The IRS’s Expansive Interpretation of the ACA’s Subsidy Provision Vio- lates the Separation of Powers by Unraveling the Specific Compro- mises Crafted by Congress in Favor of an Interpretation Foreclosed by the Statutory Text............................ 10

c. The ACA Should Not Be Inter- preted To Delegate to the Executive a Decision with Such Broad-Rang- ing Consequences in So Cryptic a Fashion. ............................................ 22

ii

II. The IRS’s Regulation Was Not the Product of the Reasoned Decisionmaking Required of All Agency Action.................................... 30

CONCLUSION ...................................................... 33

INTEREST OF AMICI CURIAE1

Senator John Cornyn is the Senate Republican Whip. Senator Ted Cruz is the Ranking Member of the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights. Senator Orrin Hatch is the Ranking Member of the Senate Finance Com- mittee. Senator Mike Lee is the Ranking Member of the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights. Senator Rob Portman is the Ranking Member of the Senate Finance Subcommittee on Fiscal Responsibility and Economic Growth. Senator Marco Rubio is the Rank- ing Member of the Senate Foreign Relations Subcom- mittee on East Asian and Pacific Affairs. Representa- tive Marsha Blackburn is the Vice Chair of the House Energy and Commerce Committee. Representative Dave Camp is the Chairman of the House Ways and Means Committee. Representative Randy Hultgren is a member of the House Committees on Financial Ser- vices and Science, Space and Technology. Representa- tive Darrell Issa is the Chairman of the House Over- sight and Government Reform Committee. Repre- sentative Pete Olson is the incoming Vice Chair of the House Energy and Commerce Subcommittee on En- ergy and Power. Representative Joe Pitts is the Chair- man of the House Energy and Commerce Subcommit- tee on Health.Representative Peter J. Roskam is the incoming Chairman of the House Ways and Means Subcommittee on Oversight. Representative Paul Ryan is the Chairman of the House Committee on the Budget. Representative Fred Upton is the Chairman of the House Committee on Energy and Commerce.

As elected representatives, amici have a power- ful interest in protecting the liberty of their millions of constituents. Amici have taken a strong interest in the implementing regulations of the Patient Protec- tion and Affordable Care Act (“ACA”) in general and the regulation at issue in this case in particular. Two amici were members of the Senate Republican caucus that originally united against the passage of the ACA. Another amicus, the Ranking Member of the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, released a report that out- lines the current Presidential Administration’s re- peated attempts to ignore the ACA’s statutory text, in- cluding by adopting the interpretation at issue in this case. UNITED STATES SENATOR TED CRUZ, THE LEGAL LIMIT: THE OBAMA ADMINISTRATION’S ATTEMPTS TO EXPAND FEDERAL POWER—REPORT NO. 2 (Dec. 9, 2013), http://goo.gl/BX5oer (all websites last visited Dec. 29, 2014). Two amici are the Chairmen of the House Ways and Means and the House Oversight and Government Reform Committees, which produced a joint report documenting the results of a year-long in- vestigation that revealed that the Internal Revenue Service (“IRS”) failed seriously to grapple with the plain meaning of section 36B before issuing its regu- lation. 

AND SUBSIDIES (Feb. 5, 2014), http://goo.gl/5thZ4J (“JOINT REPORT”).

SUMMARY OF ARGUMENT

The plain text of the ACA reflects a specific choice by Congress to make health insurance pre- mium subsidies available only to those who purchase insurance from “an Exchange established by the State.” 26 U.S.C. § 36B(c)(2)(A)(i). The IRS flouted this unambiguous statutory limitation, promulgating regulations that make subsidies available for insur- ance purchased not only through exchanges estab- lished by the States but also through exchanges estab- lished by the federal government. And the court below upheld this ultra vires action, straining to find ambi- guity in a perfectly clear statutory text so that it could defer to the IRS’s resolution of this purported ambigu- ity. This was error. As a panel of the Court of Appeals for the D.C. Circuit rightly concluded, “the ACA un- ambiguously restricts the section 36B subsidy to in- surance purchased on Exchanges ‘established by the State’ . . . .” Halbig v. Burwell, 758 F.3d 390, 394 (D.C. Cir.), judgment vacated and en banc reh’g granted, 2014 WL 4627181 (D.C. Cir. Sept. 4, 2014). (In grant- ing en banc review, the D.C. Circuit vacated the panel’s judgment, not its opinion, and that opinion at a minimum retains its persuasive value. See, e.g., Los Angeles Cnty. v. Davis, 440 U.S. 625, 646 n.10 (1979) (Stewart, J., dissenting); Action Alliance of Senior Cit- izens of Greater Phila. v. Sullivan, 930 F.2d 77, 83–84 (D.C. Cir. 1991)). Because Congress “has directly spo- ken to the precise question at issue,” that must be “the end of the matter.” Chevron, USA, Inc. v. NRDC, 467 U.S. 837, 842 (1984).