goldwater institute
April 28, 2016 10:04AM
Philly Pays $1.5 Million to "Ghost Teachers"
The Philadelphia school district is in a near-constant state of financial crisis. There are many factors contributing to this sorry state–particularly its governance structure–but it is compounded by fiscal mismanagement. One particularly egregious example is paying six-figure salaries to the tune of $1.5 million a year to "ghost teachers" that do not teach. Pennsylvania Watchdog explains:
As part of the contract with the School District of Philadelphia, the local teachers union is permitted to take up to 63 teachers out of the classroom to work full-time for the Philadelphia Federation of Teachers. The practice, known as "release time" or "official time," allows public school teachers to leave the classroom and continue to earn a public salary, benefits, pension and seniority.
These so-called ghost teachers perform a variety of jobs for the PFT, serving as either information officers for other teachers or carrying out the union's political agenda.
"Teachers should be paid to teach," attorney Kara Sweigart, who is arguing ghost teacher lawsuits for the Fairness Center, a free legal service for employees who feel they've been wronged by their unions, told Watchdog.
"At a time when school districts are hurting financially, districts should be devoting every tax dollar to support students," she said, "not to pay the salaries of employees of a private political organization."
According to public salary data available through Philadelphia city agencies, the school district is paying 16 ghost teachers $1.5 million this year. All of them are making at least $81,000.
Ohio, Missouri Introduce the Health Care Freedom Act 2.0
Ohio Reps. Ron Young (R-Leroy Twp.) and Andy Thompson (R-Marietta), and Missouri Sen. John Lamping (R-St. Louis County), have introduced legislation—we call it the Health Care Freedom Act 2.0—that would suspend the licenses of insurance carriers who accept federal subsidies through one of the Patient Protection and Affordable Care Act's (PPACA) health insurance Exchanges. At first glance, that might seem to conflict with or otherwise be preempted by the PPACA. Neither is the case. Instead, the HCFA 2.0 would require the IRS to implement the PPACA as Congress intended.
Here's why. Under the PPACA, if an employer doesn't purchase a government-prescribed level of health benefits, some of its workers may become eligible to purchase subsidized coverage through a health insurance "exchange." When the IRS issues the subsidy to an insurance company on behalf of one of those workers, that payment triggers penalties against the employer. Firms with 100 employees could face penalties as high as $140,000.
Congress authorized those subsides, and therefore those penalties, only in states that establish a health insurance Exchange. If a state defers that task to the federal government, as 33 states including Missouri and Ohio have done, the PPACA clearly provides that there can be no subsidies and therefore no penalties against employers. The IRS has nevertheless announced it will implement those subsidies and penalties in the 33 states that have refused to establish Exchanges. Applying those measures in non-establishing states violates the clear language of the PPACA and congressional intent. See Jonathan H. Adler and Michael F. Cannon, "Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA," Health Matrix: Journal of Law-Medicine 23 (2013): 119-195.
Whether legal or illegal, those penalties also violate the freedoms protected by the Health Care Freedom Amendment to Ohio's Constitution, and Missouri's original Health Care Freedom Act, which voters in each state ratified by overwhelming majorities. The Ohio (HB 91) and Missouri (SB 473) bills would protect employers and workers from those penalties, and thereby uphold the freedoms enshrined in Missouri statute and Ohio's Constitution, by suspending the licenses of insurance carriers that accept those subsidies.
The question arises whether the PPACA would preempt such a law. It does not. The HCFA 2.0 neither conflicts with federal law, nor attempts to nullify federal law, nor is preempted by federal law.
The HCFA 2.0 concerns a field of law—insurance licensure—that has traditionally been a province of the states under their police powers. In preemption cases, courts "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009). Courts then must determine whether the state law in question is nevertheless trumped by express or implied federal preemption.
Guns and the Commerce Clause: On the Way to the Supreme Court?
Nearly two years ago, I wrote about an intriguing Commerce Clause case involving the Montana Firearms Freedom Act. To wit, Montana enacted a regulatory regime to cover guns manufactured and kept wholly within state lines that was less restrictive than federal law. The Montana Shooting Sports Association filed a claim for declaratory judgment to ensure that Montanans could enjoy the benefits of this state legislation without threat of federal prosecution. The federal district court ruled against the MSSA.
On appeal to the Ninth Circuit, Cato joined the Goldwater Institute on an amicus brief, arguing that federal law doesn't preempt Montana's ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which is a state-specific market distinct from any related national one.
The lawsuit's importance is not limited to Montana; a majority of states have either passed or introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.
Well, after much delay – in part due to the Ninth Circuit's waiting for Supreme Court instruction on the Commerce Clause in the Obamacare litigation – MSSA v. Holder finally saw oral argument two weeks ago. The Goldwater Institute's Nick Dranias, who was the principal author of our joint brief, was able to get 10 minutes of argument time and sent me this report afterwards, which I reprint with his permission:
ObamaCare Debate Challenge: Lawrence Wasden Edition
Congress empowered states to block major provisions of ObamaCare, including its subsidies and employer mandate. All states need do to is refuse to create a health insurance "exchange." (And a whopping 34 states, accounting for two-thirds of the U.S. population, have done just that.)
Goldwater Attorney: ObamaCare-Compliant Exchange Would Violate Idaho's Health Care Freedom Act
Idaho Gov.
Why I Love, and Hate, American Higher Education
Goldwater Institute Video on ObamaCare Exchanges
Great video:
For a longer video version of the case against states creating Exchanges, see this somewhat-dated-but-still-relevant Cato video:
I Have Been False*
*According to PolitiFact.
'The IRS Overstepped Its Bounds and Lacked the Power to Rewrite the Law'
Of course, that is just Reuters paraphrasing me:
Cato Study: Heretofore Unreported ObamaCare 'Bug' Puts IPAB Completely beyond Congress' Reach
Today, the Cato Institute releases a new study by Diane Cohen and me titled, "The Independent Payment Advisory Board: PPACA's Anti-Constitutional and Authoritarian Super-Legislature." Cohen is a senior attorney at the Goldwater Institute and lead counsel in the Coons v. Geithner lawsuit challenging IPAB and other aspects of the Patient Protection and Affordable Care Act of 2010, a.k.a. ObamaCare.
From the executive summary: