ruling

The Washington state Supreme Court on Sept. 4 rule the state’s charter school law as unconstitutional. The justices dug deep to justify their decision, referencing a definition of public schools from a 1909 case, School District 20 vs. Bryan. Instead of citing a particular right spelled out in the U.S. Constitution or Washington state’s constitution, the court based its ruling largely on its own, distinctive interpretation of the term “common schools.”

Think of the FCC, unilaterally self-armed with the “strongest possible rules” of Title II 1934 monopoly telephone regulation, as a Washington backwater “kangaroo court,” where innocent communicators can be hauled before a mock court system where normal due process, rule of law, and justice may not apply.

For as Blow then recounts, Obama’s 2013 response to Republicans was: “You don’t like a particular policy or a particular president? Then argue for your position. Go out there and win an election.” Which Republicans, of course, promptly did, in both 2010 and 2014.

Following oral arguments, I was not optimistic about this ruling. The Court could have bought into the argument that Hobby Lobby can’t really complain about this requirement when they have the capability to not offer coverage at all, instead shifting people under their employ to the taxpayer via Medicaid or the exchanges. The penalty for offering coverage which fails to meet essential benefits is clearly absurd and sizable, but the penalty for not offering coverage at all would actually cost them less than offering coverage in the first place (around $26 million per year). The “gun to your head” penalty was the one which moved the court on the Medicaid/federalism question before, in a ruling that unexpectedly led to half the states declining to expand Medicaid. Justices Kagan and Sotomayor stressed this in oral argument and the Court could have found that this factor removes the pressure of an actual requirement. You can understand the reasoning: Just like the requirement to purchase insurance, it’s not illegal, it’s just a tax!