Campaign dispatch, February 10, 2016

clock-384646_1280• Down to the wire: Chief Justice of the U.S. John Roberts says the plaintiffs suing the state over its congressional maps must file a response by Tuesday explaining why the order demanding new maps should not be put on hold until after the March 15 primary. If Roberts (or all the justices) let the order go forward, the General Assembly will have to convene a special session and have new maps drawn and approved by next Friday — or, possibly, delay at least some of the races contested in the primary. Stay tuned to Carolina Journal for more details as they arise.

• Wake County Republicans held a straw poll, and the big winners were … Sen. Ted Cruz for president, incumbent U.S. Sen. Richard Burr (though not by much over Greg Brannon), incumbent state Rep. Nelson Dollar, 2nd District congressional challenger Jim Duncan, and those opposing the Connect NC bond package. The results are here.

• Davie County Republicans will be able to watch a debate among some Senate candidates, even if the incumbent doesn’t show. Challengers Larry Holmquist and Brannon have agreed to a televised debate in Mocksville — as has Pattie Curran, who’s challenging 5th District Rep. Virginia Foxx. Problem is, neither Burr nor Foxx has agreed to a primary debate. Wonder if the sponsors will have empty chairs on stage?

• Speaking of debates, Democrat Ken Spaulding, a Durham attorney seeking the party’s nomination for governor against Attorney General Roy Cooper, dispatched a couple of supporters wearing chicken costumes to the Department of Justice. Cooper has refused an invitation to debate Spaulding March 1.

• The low-key campaign of Democratic state treasurer hopeful Ron Elmer got a boost from the political arm of the State Employees Association of North Carolina. SEANC’s PAC endorsed Elmer over former Wake County Democratic Party chairman Dan Blue III, citing in part Elmer’s vow to slash investment fees in the state pension plan.

Big Data In Health Care

The North Carolina General Assembly has enacted a Medicaid Reform that is set to phase in by 2022. The proposal looks to better manage Medicaid costs and improve patient health outcomes by utilizing Big Data through the statewide Health Information Exchange (HIE).

Big Data is all the rage nowadays in health care, and it’s an unwieldy concept that arguably can improve the value of health care delivery in the U.S. 

What exactly is “Big Data”? You’ll come across many definitions, but in the world of health care, Big Data captures multiple streams of patient information and deposits it into a clearinghouse (like the HIE) where it can be analyzed. Databases that can better store, compute, and make health care data more accessible for a patient and all of his providers has the potential to reduce health care inefficiencies, such as duplication of services or medical errors. Big Data can also promote transparency regarding best evidence-based medical practices.

For more information, the Harvard Business Review and McKinsey, one of the leading consulting firms, offer some insight.

You’ve got to love NC’s alcohol laws—NOT!

I recently tried to use a voucher that I received for purchases from an online wine distributor. After entering the voucher number and the state where I reside the following message came up.

  • Sorry, the state of North Carolina won’t allow you to use this voucher because of some quaint alcohol regulations.

I must say I do appreciate the company’s sarcasm.

OECD: U.S. made little progress on raising student achievement

According to a new book published by the Organization for Economic Cooperation and Development (OECD), the United States had the same percentage of low-performing 15-year-olds on international reading and math tests in 2012 than it did in 2003.  On the bright side, there was a 6 percentage point decrease in low-performing science students.

According to an Education Week report,

America was flat during that period, remaining a little worse than the international average in the share of students who performed below minimum proficiency in all three subjects.

Among U.S. 15-year-olds, 26 percent were low-performing in math, 17 percent in reading, and 18 percent in science. More than 1 in 10—some 95,000 students—scored low on all three subjects.

Those are sobering figures, to say the least.

Costs vs. benefits of that “Clean Power Plan” on hold

A major, crippling regulatory takeover has been at the very least delayed, and I hope it may be eventually averted altogether.

As I explained last summer, the proposed regulations would:

  • impose at least $366 billion in costs
  • hit residents in 43 states with double-digit percentage increases in their electricity bills
  • cost consumers and businesses $41 billion to $73 billion or more for electricity per year
  • prematurely shutter 45,000 megawatts of coal-fired power generation capacity — more than New England’s entire electric generating capacity — and as much as 169,000 megawatts if EPA cannot legally allow all options it specified for compliance.
  • shut down 68,000 megawatts of fossil fuel electric generating capacity
  • lead to widespread rotating blackouts in parts of the country

OK, but what would the offsetting benefits be? This:

Read my newsletter today to see the EPA’s reckless game of imposing and forcing costly compliance with illegal rules, with the expectation that court action will be beside the point when it finally happens. That’s what this emergency stay hopefully puts a stop to.

Also read my colleague Jon Guze’s post below mine for more info.

US Supreme Court Puts the President’s Clean Power Plan on Hold

Yesterday I reported that representatives of 29 states and state agencies–including the North Carolina Department of Environmental Quality–had asked Chief Justice Roberts for an emergency stay of the EPA’s “clean power plan” (CCP) pending appeal. Today I’m pleased to add that that request has been granted. In a terse one-page order, the Supreme Court announced that:

The application for a stay submitted to The Chief Justice and by him referred to the Court is granted. The Environmental Protection Agency’s “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” …  is stayed pending disposition of the applicant’s petition for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicant’s petition for a writ of certiorari, if such writ is sought.

Justices Ginsburg, Breyer, Sotomayor, and Kagan appended a note stating that they would have denied the application. However, the rest of the Court presumably wanted to avoid what had happened in Michigan v. EPA when it’s ruling against EPA’s imposition of unreasonable mercury emissions standards came too late to have any effect. In their application for the stay the states had noted that:

The day after this Court ruled in Michigan that EPA had violated the Clean Air Act … in enacting its rule regulating fossil fuel-fired power plants…, EPA boasted in an official blog post that the Court’s decision was effectively a nullity. Because the rule had not been stayed during the years of litigation, EPA assured its supporters that “the majority of power plants are already in compliance or well on their way to compliance.”

And that:

EPA extracted “nearly $10 billion a year” in compliance from power plants before this Court could even review the rule … and then successfully used that unlawfully-mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law.

Other considerations presumably played a part as well. In the Washington Post Jonathan Adler suggests that:

A majority of the court has concerns about the EPA’s authority to impose the CPP under the Clean Air Act….

There are serious legal arguments against specific elements of the CPP (such as the consideration of potential emission reductions to be achieved “outside the fence” of regulated facilities) as well as the position that Section 111 of the CAA allows the EPA to regulate greenhouse gases from power plants in the first place. The latter concerns raise the stakes of the case and strengthen the argument for a stay. This is because the question at issue is not merely whether the EPA observed the relevant procedural niceties or properly exercised its authority on the margin. Rather, the question is whether the EPA has the authority to do this at all.

And adds:

I suspect that the EPA’s arguments against the stay were undermined by the Agency’s own statements about the potentially revolutionary nature of the CPP. In promoting the plan, the EPA repeatedly emphasized that the CPP represented the most ambitious climate-related undertaking in the agency’s history and crowed that the plan would lead to the complete restructuring of the energy sector. Making these claims may have undermined the EPA’s position, because it made it easier for the stay applicants to argue that a stay was justified. Put another way, an unprecedented assertion of regulatory authority may itself have justified an unprecedented exercise of the Court’s jurisdiction to stay the agency’s action.

Whatever the Court’s reasons for granting it, the stay means the EPA may not implement or enforce the CPP until the U.S. Court of Appeals for the D.C. Circuit–and, most likely, the Supreme Court itself–has ruled on its legality. It will, therefore, be years before the CPP can take effect, if, indeed, it takes effect at all.

Leef’s latest Forbes column praises court for Second Amendment ruling

George Leef’s latest Forbes column focuses on the U.S. Fourth Circuit Court of Appeals’ recent ruling on gun rights.

In an extremely important decision on Feb. 4, the Fourth Circuit Court of Appeals reversed a lower court’s ruling in favor of Maryland’s 2013 “Firearms Safety Act.” That statute (like so many supposed gun control laws) banned a wide range of “assault weapons” and prohibited the sale of magazines that can hold more than ten rounds.

Crucially, in Kolbe v. Hogan, the majority held that courts must use “strict scrutiny” when they evaluate laws that impinge upon the Second Amendment rights of Americans. If the decision is upheld (and enemies of the Second Amendment will try desperately to get it overturned), then a great many laws that whittle away at the right of self-defense will fall.

To begin with, non-lawyers may be wondering what “strict scrutiny” means.

In litigation over constitutional rights, the level of scrutiny that a court chooses to employ is exceedingly important. Although the Constitution itself says nothing about this, the Supreme Court long ago created a dichotomy between “strict scrutiny” and lower levels of scrutiny. (It’s a bad dichotomy, since judges shouldn’t decide which rights are fundamental and which ones are relatively unimportant – but that’s an article for another day.)

When a court uses the former, the judges look very carefully at the government’s rationale for enacting a law. …

… When courts employ strict scrutiny, the government has a heavy burden to show that the challenged law should stand. Quite often, it fails and the law is invalidated. But when courts use a lower level, the burden on the government is relaxed. In practice, it often means no scrutiny at all, but just accepting any rationale that the counsel for the government offers.

A ‘Lynch pin’ in the Clinton investigation

Ed Morrissey writes at about pressure the Obama administration faces to step up its action on the Hillary Clinton e-mail scandal.

Will she or won’t she? That’s the question Loretta Lynch faces on the investigation into Hillary Clinton’s unauthorized homebrew e-mail server, on two levels. If the FBI brings her a recommendation for indictments, will she pursue the case? Or, will Lynch opt for a special counsel if that decision comes with too much political freight?

The Hill recaps the status quo, but also offers some interesting background for both scenarios. On one hand, Lynch and Hillary don’t have any personal ties, even though she owes her appointment as US Attorney to Hillary’s husband:

Lynch and Clinton never had much of a personal relationship, former colleagues told The Hill this week.

“I’m not aware of any relationship with Hillary Clinton,” said Steven Edwards, who worked alongside Lynch for nearly a decade at the law firm Hogan Lovells (the firm was previously called Hogan & Hartson when Lynch joined it in 2001).

Lynch was appointed to be the U.S. attorney for the Eastern District of New York in 1999 by President Bill Clinton, Hillary’s husband.

However, she was personally recommended for the position by Sen. Charles Schumer (D-N.Y.), and one government official said Clinton himself had a relatively minor role in the selection process.

Minor? Then-President Bill Clinton actually made the appointment. Perhaps Bill just acted as a rubber stamp for Schumer, but if so, that brings up another issue. Schumer and Hillary have a close personal and political relationship. In fact, Schumer was one of the first Democrats on the national stage to endorse Hillary’s presidential bid, stepping forward in November 2013 when Hillary needed to keep the field clear. That’s not to say that Lynch takes orders from Schumer, but if there is political pressure that could have an impact, then the circumstances of her appointment still could have something to do with it.

The other political pressure point might be Lynch’s current position. Julian Hattem points out that Lynch will only get about 18 months or so as Attorney General, thanks to a fight between Barack Obama and Senate Republicans after Eric Holder’s announced departure. A Hillary Clinton presidency offers an opportunity to extend her time at the top of the Department of Justice — an opportunity that would almost certainly not exist in a Republican administration: