Please explain to me…

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Jaybird

Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com

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47 Responses

  1. Avatar Michael Drew
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    says:

    My guess is that it depends what authorities the different laws give to the departments they assign to enforce their various provisions. Unless I’m mistaken, a statute can give essentially any amount of executive discretion (including with or without guidelines for the exercise thereof) to specified parts of the Executive Branch in how to approach enforcement of said statute, consistent with other constitutional limitations (due process, which in cases like this would likely be seen to largely be a function of the given department having sufficient process for following the guidelines for the discretion they’re given). I think there is some degree of debate about what constitutional limits might exist at the outer edge of that discretion, but the concept in general I think is pretty universally accepted.

    So perhaps the federal government could do that – it depends what exactly the Controlled Substances Act says about Executive discretion in its enforcement, I imagine.Report

  2. Avatar Will Truman
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    says:

    I think it helps the case that there are criteria for a waiver. It would be tougher if they were granted on a whim.Report

    • Avatar Will H. in reply to Will Truman
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      says:

      There’s criteria for receiving a subway token, but that doesn’t mean tokens always change hands on the up-and-up.
      Because this strikes me as pretty much the same thing as giving a whole state a subway token.
      I wish Chief Justice Roberts would cite other instances where whole states are taxed at one time rather than assessed on individuals.
      However, for now my thoughts are consumed with the notion that all of the documents shredded by Oliver North were good American documents that really needed to be shredded. Otherwise, there might have been the semblance of wrong-doing in there.Report

  3. Avatar Troublesome Frog
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    says:

    My guess is that it’s a wavier for some sort of regulatory compliance that’s handled entirely at the discretion of the agency empowered to regulate it. I don’t think that the FDA and DEA could exempt just Colorado (unless they announced rules that applied to everybody but only happened to be satisfied in Colorado), but they do appear have the power to, say, unilaterally reschedule marijuana without the legislature amending any laws.Report

    • Avatar Dan Miller in reply to Troublesome Frog
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      says:

      Wouldn’t that be a violation of various international treaties, though? My understanding was that Colorado and Washington State could do this because they weren’t considered signatories to the various UN Narcotics treaties, but the federal government surely is. IANAL, so clarification appreciated!Report

  4. Avatar Shannon's Mouse
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    says:

    Section 1332 of the PPACA explicitly creates a waiver provision and describes the process that HHS must carry out for creating associated regulations. All states are subject to the law and the law includes provisions for freeing a state from some of the requirements of the law. It’s not saying, effectively or otherwise, that some states are “exempt” from the law. Googling to discover these facts took less time than it probably took for you to compose this post.

    Is there any provision for waivers from requirements of the Controlled Substances Act actually IN the CSA?Report

    • Avatar Jaybird in reply to Shannon's Mouse
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      says:

      The difference between a state being freed from some of the requirements of the law and states being exempt from some of the requirements of the law is lost on me. (I phrased this state is exempt from the law (or that the law doesn’t apply to this state or whathaveyou) inaccurately. I ought to have said “this state is exempt from this part of the law (or that this part of the law doesn’t apply to this state or whathaveyou)”.)

      While I suppose that I can see how a law specifically writing specific waiver language into itself might answer the question of whether waivers for laws would be Constitutional… on another level, I see waiveable laws as likely to violate such concepts as “equal protection”. Am I wrong on that?Report

      • Avatar Morat20 in reply to Jaybird
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        says:

        I ought to have said “this state is exempt from this part of the law (or that this part of the law doesn’t apply to this state or whathaveyou)”.)

        Shooting a man is murder. Unless you did it in self-defense, in which case it’s not a crime. How is that any different?

        The law applies under THIS condition but not THAT condition.

        Selling morphine is legal IF you’re a pharmacist, but NOT if you’re a guy on the street.

        It’s just a flat-out condition of the law. “This is the rule, unless you meet criteria X, Y, or Z”. That’s like….the basis of most laws, regulations, and you know — government. “This is the rule, here is WHEN it applies and here is when it DOESN’T apply”.

        The only difference between a waiver and, say, a successful self-defense claim is you apply for the waiver beforehand, not after.Report

      • Avatar Jaybird in reply to Jaybird
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        says:

        The law applies under THIS condition but not THAT condition.

        That isn’t how I generally see the term “waiver” used.

        “This product must only be sold by people who meet the following criteria including having the following credentials: X, Y, Z.”

        It seems to me that arresting someone for selling Sudafed while not arresting a pharmacist for selling it isn’t the result of the pharmacist having a waiver from being arrested for selling Sudafed.Report

  5. Avatar Morat20
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    says:

    Well, your very FIRST question should be “Does the law allow for a waiver process”?

    It turns out it does. There are specific criteria (it depends on what sort of waiver the State is seeking) spelled out in the law. Some explicitly, and some basically outlining that there has to be a process in place to determine eligibility. Which is..perfectly constitutional. For the same reason that self-defense is a ‘waiver’ from a murder charge. It’s not unfair to ACTUAL murderers that someone who killed in self-defense doesn’t go to jail, is it?

    Your second question should be “What sort of waiver”? There are a number. The most common sought by states is a one-year delay in hitting the 80% MLR (the 80 cents on every insurance dollar must be spent on health care bit) — a number of states applied. (The PPACA hasn’t given out any waivers. Health and Human Services have. Some 200 plus to companies giving them extra time to come into compliance, some dozen or more to states for various reasons. None permanent, none total — just waivers to some aspect of the law if the states met the rules HHS finalized and made public like two or three years ago.)

    Given the ACA explicitly required HHS to set up rules for administering the exchanges, and the transition TO the exchanges, this is perfectly in tune with the law.

    The ACA allows for a waiver process — in fact, it explicitly allows for a NUMBER of waivers (in fact, it’s got a whole section devoted to waivers for the purposes of medical innovation, designed to let states try to get better results through innovation) and the actual implementation and transition parts of the law allow for more.

    This isn’t rocket science. It’s not unusual government. It’s pretty much bog-standard — I mean, good lord, look at the FDA. It was created by the Pure Food and Drug Act. But the Pure Food and Drug Act didn’t set up the FDA’s certification process, it didn’t give the rules under which food was inspected or drugs allowed on the market.

    And no one says “It’s unconstitutional that the FDA approved THIS drug and not THAT one”..Report

    • Avatar Jaybird in reply to Morat20
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      says:

      Well, your very FIRST question should be “Does the law allow for a waiver process”?

      But what if my SECOND question is “doesn’t this violate equal protection”?

      I understand why the FDA might approve this drug but not that one… but I don’t understand why this company might have to follow all of the FDA’s rules but that company might not.Report

      • Avatar Morat20 in reply to Jaybird
        Ignored
        says:

        Because it met the criteria for an exemption.

        Again, to murder: If I shoot a guy in cold blood and you shoot a guy in self-defense, do I have an equal protection claim on the fact that I got sentenced to 25 years to life and you didn’t go to jail, even though were judged guilty of shooting a man as well?

        You can’t make an equal protection argument unless you claim there was either no criteria at all OR the criteria was applied unfairly or in a biased fashion. You’re basically arguing that any conditions in the law at ALL are a violation of equal protection, which is basically claiming basically every law and regulation on the books (federal, state, and local) in the United States is unconstitutional.

        I mean, my city allows the use of pex piping, but only if it’s expansion joined not compression. Is that some violation of the law, because sometimes pex is legal and sometimes it’s not?Report

      • Avatar Jaybird in reply to Jaybird
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        says:

        Are the other conditions given in the other laws usually (let’s say half or more than half of the time) described as “waivers”?Report

      • Avatar Badtux in reply to Jaybird
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        says:

        I’m not understanding the question. Due process is specified in the ACA for granting waivers under certain conditions. This is in full compliance with the 5th Amendment requirement for due process (not that there is a right to health insurance under the Constitution) and the 14th Amendment requirement that everybody in a specific state be treated equally under the law. Everybody in a state is subject to the same waiver as specified in the law, which is all that the 14th Amendment requires.

        The 14th Amendment does not require that people in Texas be treated the same under the law as people in California. There is no such Federal-level equal protection clause in the 14th Amendment. It’s just not there, and if you consider the history of the 14th Amendment it’s clear why it’s not there (it would have prevented the Federal government from punishing the Southern states by imposing Reconstruction upon them while not imposing Reconstruction-type laws upon the other states). The only thing there on the Federal level is the due process clause, which the ACA’s hearing process for granting waivers satisfies under numerous court rulings dating back to at least the 1930’s.Report

      • Avatar Jaybird in reply to Jaybird
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        says:

        Everybody in a state is subject to the same waiver as specified in the law, which is all that the 14th Amendment requires.

        So people in *THIS* state can be treated one way and people in *THAT* state can be treated another and we’re cool?

        So a waiver could be applied to Colorado for (some minor portions of) the CSA?Report

      • Avatar Mike Schilling in reply to Jaybird
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        says:

        So people in *THIS* state can be treated one way and people in *THAT* state can be treated another and we’re cool?

        Sure, unless you believe John Roberts’s transparent nonsense about the VRA.Report

      • Avatar Badtux in reply to Jaybird
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        says:

        The Controlled Substances Act does in fact contain a waiver process in it. A waiver process overseen by the DEA. A waiver process that has, in fact, never actually granted a waiver. But that’s because waivers would hurt the DEA’s arrest rate and thus its budget, not because it would be illegal or unconstitutional to grant a waiver.Report

      • Avatar Jaybird in reply to Jaybird
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        says:

        A waiver process that has, in fact, never actually granted a waiver.

        Okay.

        *THIS* makes sense to me now. Thank you.

        I’m wondering if this isn’t a direction worth exploring for Colorado/Washington.Report

      • Avatar Michael Cain in reply to Jaybird
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        says:

        I’m wondering if this isn’t a direction worth exploring for Colorado/Washington.

        Technically, the CSA doesn’t have waivers; it has a process for requesting that a certain drug be “rescheduled”, moved from one list to another. Marijuana is currently a Schedule 1 drug, implying no currently accepted medical uses and high potential for abuse. Multiple requests for rescheduling have been denied by the DEA. IIRC, Washington and some other states filed another rescheduling request in 2011 to move marijuana to another schedule so that it could be available by prescription. At the end of 2012, one of Colorado’s Representatives introduced legislation to modify the CSA so that state laws on marijuana would take precedence over the federal law. There will almost certainly be additional rescheduling requests filed as a result of the changes in Washington and Colorado, particularly if more states decriminalize.

        Possibly worth noting that removing marijuana from Schedule 1 would put the US in violation of the UN Single Convention on Narcotics, to which the US is a signatory.Report

      • Avatar Jaybird in reply to Jaybird
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        says:

        We can’t do medical testing on a plant due to a treaty signed back in the year the president was born.

        This strikes me as a crappy way to do things… but it does explain why Colorado/Washington shouldn’t expect any relief from a waiver.Report

      • Avatar Kazzy in reply to Jaybird
        Ignored
        says:

        “…which is basically claiming basically every law and regulation on the books (federal, state, and local) in the United States is unconstitutional…”

        Careful. Don’t give Jaybird any ideas.Report

  6. Avatar KatherineMW
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    says:

    I’m far from an expert on the Affordable Care Act, but I remember when it was being written that part of it said states didn’t have to participate in the insurance exchanges if they had an alternative system in place that fit a number of requirements. This makes perfect sense to me and seems like something a libertarian should even support – it allows a degree of state-level experimentation while still ensuring that people in all states have access to a minimum standard of health insurance. The Constitution doesn’t come into it at all.

    A quick Google found an article that describes the situation clearly: http://newsroom.highroads.com/hr-compliance-connection/states-may-gain-right-to-earlier-waivers-of-ppaca-provisions

    The Patient Protection and Affordable Care Act (“PPACA”) allows states to apply for a “Waiver of State Innovation”, exempting the state and its residents from the application of certain PPACA provisions, such as:
    • the requirement to establish Health Insurance Exchanges;
    • penalties against employers for failing to provide adequate healthcare coverage to their employees; and
    • the individual insurance mandate penalty.
    Nonetheless, the Waiver would not exempt a state from some of PPACA’s health insurance reforms such as the prohibition against excluding persons due to pre-existing conditions or requiring group health plans to cover participants’ adult children until age 26.

    To receive the Waiver, a state must first design and enact a law that provides health insurance to its residents. The federal government must then review the law and conclude that its design:
    • is deficit neutral to the federal government;
    • provides healthcare benefits to its residents that are as comprehensive and affordable as healthcare benefits that would otherwise be available under a Health Insurance Exchange; and,
    • covers at least as many residents as would be covered under a Health Insurance Exchange.
    If a Waiver is granted, a state could use the federal funds it would otherwise receive for Health Insurance Exchanges to fund its own health insurance law.

    The current change is just that states can apply for this exemption immediately instead of in 2017.Report

    • Avatar J@m3z Aitch in reply to KatherineMW
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      says:

      part of it said states didn’t have to participate in the insurance exchanges if they had an alternative system in place that fit a number of requirements.

      This. It’s quite common, and falls under the rubric of regulatory federalism.

      While Congress is supposed to look toward the national interest (that charming mythology), they are all tied to local and state interests by virtue of being elected from districts or states. So if there is some national-level goal, it’s easier to get state and local buy in if you give states some flexibility in how to achieve it. That is, it’s easier to scrounge up enough votes for a program if you minimize the electoral threat to representatives.

      There’s no equal protection problem because any state is eligible for the waiver, as long as they are willing to meet the requirements.Report

  7. Avatar Pierre Corneille
    Ignored
    says:

    Not knowing enough about the PPACA or about the specific waivers in question, my answer can be only speculative. But I don’t think a generally applicable law, in which waivers are granted to states, necessarily violate equal protection provisions or whatever provision that says the feds must must not treat some states unfairly in preference to others.

    Maybe “necessarily” in the preceding sentence does too much work, but it is the key word, and I imagine some waivers could conceivable violate those terms. Again, not knowing enough about the PPACA specifically, here are some general criteria I would pose for a constitutional waiver process (this list is meant as a general guide….I’m not sure all criteria ought to be meetable):

    1. Their must be a clearly elucidated way for each state to obtain the waiver if it wants to
    2. Or if it can be shown that the rules imposed by the law are in themselves discriminatory and the waiver is necessary to make them not so.
    3. The criteria obtaining a waiver must not on its face discriminate against some states. (I.e., no waivers saying “all states can have a waiver if they can show that they have fewer than 10 million residents.”)
    4. The generally applicable rules are designed to achieve a certain policy outcome in each state, and if a state can achieve that outcome without following those generally applicable rules, then it can get a waiver on that basis (as long as the process for getting a waiver is set out beforehand).

    It seems to me that if the situation is as KatherineMW suggests above, enough of the criteria are met in this case to say the waivers are not unconstitutional.Report

    • Avatar Caleb in reply to Pierre Corneille
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      says:

      Can a state make an equal protection challenge against a federal law? It’s been a while since Con Law, but I don’t remember any cases where a state was a claimant.Report

      • Avatar Burt Likko in reply to Caleb
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        says:

        The Federal government is not required to treat the states equally. Congress may allocate, say, more highway funds to one state than it does to another, or vice versa.Report

      • Avatar Pierre Corneille in reply to Caleb
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        says:

        Burt,

        When I wrote what I did about “whatever provision that says the feds must must not treat some states unfairly in preference to others”, I was thinking of art. I, sec. 9: “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”Report

      • Avatar Pierre Corneille in reply to Caleb
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        says:

        That’s not to say I made the right inference from that clause, only that that’s what I was thinking of.Report

      • Avatar Mike Schilling in reply to Caleb
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        says:

        The Federal government is not required to treat the states equally.

        What about “the fundamental principle of equal sovereignty”?Report

      • Avatar Caleb in reply to Caleb
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        says:

        @ Burt Likko

        Thank, that’s what I thought.Report

      • Avatar J@m3z Aitch in reply to Caleb
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        says:

        @mike-schilling,

        Sovereignty only means the stateshave authority that is wholly independent of the federal government.* It doesn’t indicate any rights to receive anything or be treated in any particular way.
        ————-
        *It’s rarely remembered now, but all federal sovereignty is essentially a grant from the states, is a subtraction from their pre-existing sovereignty, and that it was a grant of only limited authority. In our era the norm is to see the federal gov’t as having sovereign authoritu over the states, which is quite a substantial change in our theory.Report

      • Avatar Mike Schilling in reply to Caleb
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        says:

        @James

        Someone needs to explain that to John Roberts, ideally with a blunt instrument.Report

      • Avatar J@m3z Aitch in reply to Caleb
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        says:

        Mike, what case(s)/issue(s) do you have in mind?Report

      • Avatar Mike Schilling in reply to Caleb
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        says:

        Shelby County.Report

      • Avatar j@m3z Aitch in reply to Caleb
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        says:

        OK, I’m not following you. Regardless of where one stands on the case, it doesn’t seem to be one that promotes federal authority over the states, right? Rather the opposite, right, as it was a pro-federalism decision?

        Am I misunderstanding what you’re saying?Report

      • Avatar Mike Schilling in reply to Caleb
        Ignored
        says:

        I’m obviously being horribly unclear. What I’m trying to say is that the Shelby County decision was based on a theory that the states have to be treated equally, and that it’s completely spurious nonsense, just as Burt says at 9:51.Report

      • Avatar J@m3z Aitch in reply to Caleb
        Ignored
        says:

        OK, I get you now.

        Yeah, there’s a lot to criticize in the legal logic of that decision. It’s almost as though Roberts didn’t quite remember that the 15th Amendment not only took an additional chunk out of state sovereignty, but explicitly gave Congress power to enforce it.Report

      • Avatar Michael Cain in reply to Caleb
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        says:

        The Federal government is not required to treat the states equally.

        Look no farther than Medicaid. For California and Colorado, the feds pick up 50% of the expense for pre-PPACA Medicaid. For Mississippi, 74.18%. Or even Texas, at 58.22%. I’m always amused when Texans criticize California’s tax rates. If Texas got the same deal on Medicare that California does, Texas would have to find something north of another billion dollars in state revenues per year to pay their share.Report

      • Avatar Will Truman in reply to Caleb
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        says:

        Michael, I am pretty sure that’s not a fair comparison. When I last looked up the actual numbers, California was receiving more per-capita than was Texas for Medicaid. The reason that the government’s percentage of the bill was lower was because California chooses to cover more people while Texas doesn’t. Not because the latter is getting a better deal than the former.

        It’s like college subsidy. If someone gets $1k in subsidy to attend San Jose State and someone else gets $1200 in subsidy to attend UCSF, and the former is significantly cheaper than the latter, the percentage of the government subsidy on the latter will likely be lower even though they actually got more money. [ed note, italicized portion added after-the-fact]Report

      • Avatar Michael Cain in reply to Caleb
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        says:

        If someone gets $1k in subsidy to attend San Jose State and someone else gets $1200 in subsidy to attend UCSF, and the former is significantly cheaper than the latter, the percentage of the government subsidy on the latter will likely be lower even though they actually got more money.

        I’ll disagree with the analogy because the federal offer is always done in percentages, never in absolute numbers. The equivalent offer is that the feds say to student A, “We’ll cover 50% of your tuition no matter whether you go to SJSU or UCSF.” Then they say to student B, “In light of you being poorer, we’ll cover 60% of your tuition, no matter whether you go to SJSU or UCSF.” And to student C, “Since you’re dirt poor, we’ll cover 75%, either way.” At least nominally, the Medicaid percentages are intended to make things equal for the states: to make the cost of a dollar of spending on health care for the poor cost roughly the same relative to average per-capita income in the state, plus some progressivity to help really poor states even more.

        Nevertheless, I’ve probably been less than clear. I find two things amusing. First, when Texas claims, “We’re doing everything right and California is doing everything wrong,” I always want to answer with “Yeah? Then how come you’re still poor enough that the feds give you 60 cents on the dollar for Medicaid, but California is rich enough they only get 50 cents?” And the second is that the Texas Congressional delegation, advocates of cutting spending at the federal level, has never even hinted that if all states were treated equally and got the basic 50% reimbursement, the cost of the Medicaid program (at the federal level) would be reduced substantially. And when some of them have proposed converting Medicaid to a block-grant program, I believe the suggested size of state grants continue the current progressivity.Report

      • Avatar Will Truman in reply to Caleb
        Ignored
        says:

        Michael, I don’t think that a flat reimbursement rate regardless of what is spent is the logical baseline assumption. I think it makes just as much sense for the federal government to say “We’ll find this much of it up to here, then less up to here, then less up to here.”

        That way you are strongly encouraging states to provide the bare minimum, but still assisting states (to a lesser degree) that want wider or more Medicaid coverage. I certainly don’t think that the government should be indifferent between the first dollar and the highest dollar spent.

        And under this regime, the more a state elects to spend, the more coverage a state elects to have, the greater percentage of it they are paying themselves.Report

      • Avatar Kazzy in reply to Caleb
        Ignored
        says:

        @will-truman

        “The reason that the government’s percentage of the bill was lower was because California chooses to cover more people while Texas doesn’t.”

        Assuming this is true… and everything Michael says is more or less true… than isn’t it a bit disingenuous for Texas to criticize California’s taxes when California is doing more (i.e., more people covered) with those tax dollars?

        You could criticize whether or not California should cover those people… but attacking the guy with 8 kids for spending more money on food than the guy with 4 kids is sort of missing the point, no?Report

      • Avatar Will Truman in reply to Caleb
        Ignored
        says:

        than isn’t it a bit disingenuous for Texas to criticize California’s taxes when California is doing more (i.e., more people covered) with those tax dollars?

        That depends on the nature of the criticism. If the criticism is that doing more requires higher taxes which outstrips the advantages, then it’s still a fair criticism to whatever extent that one agrees with the premises. If the criticism is that Californians are paying more taxes and not getting anything in return, that’s off-base.Report

      • Avatar Kazzy in reply to Caleb
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        says:

        It would seem that any criticism would need to take into account both the pros and the cons of the practice. I mean, that seems like a pretty good universal rule for criticism.

        I don’t know the specifics of the criticism Texas/Texans levy on California/Californians. But if it is simply, “What a bunch of jerks with their high taxes! Why aren’t they more like us?” that seems a bit silly.Report

  8. Avatar Michael Cain
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    says:

    I think it’s one of those cases where the word doesn’t mean quite what you think it does. Certainly the most common “waivers” historically have been with respect to the Medicaid program. The law provides a limited list of things that the money can be spent on. But Congress provided a waiver mechanism so that any time a state had a good idea about something to add to that list, CMS could approve the addition (for that state) without coming back to Congress. The most common Medicaid waiver is probably for in-home support for the elderly. I think almost all states have received such a waiver, because keeping an elderly person who needs a little daily assistance in their own home is enormously cheaper than institutional care. But each state is required to show to CMS that their particular in-home support program will be cost-effective as well as providing the full range of necessary assistance.Report

  9. Avatar Rod Engelsman
    Ignored
    says:

    Perhaps OT, but here’s what I wonder wrt the new marijuana laws in Colorado and Washington. Given that the Raich case was decided on the basis that even private consumption of mj grown in your basement in some way affects the interstate trade in mj, does that reasoning still apply to Colorado mj?

    Here’s my reasoning: The Colorado statutes (and I assume the Washington one as well, but I know less about them) goes to great pains–through a nigh draconian process of licensing, certification, and chain-of-custody paperwork–to cleanly separate legal weed from illegal weed. It seeks to ensure that no weed from illegal sources enters the system and also prevent legally grown weed from leaking out into the unregulated market.

    Given the above, might it be fair to claim that Certified Colorado Weed (CCW) is a substantially distinct product from the unregulated weed that is currently the stock in trade of the illegal market? By definition if nothing else?

    I would enjoy hearing someone try to justify Federal obstruction of the CCW trade on Commerce clause grounds given that the effect on the illegal interstate trade is substantially the same as the intent of the CSA in the first place: i.e., to reduce such trade.Report

  10. Avatar Damon
    Ignored
    says:

    Jaybird,

    You know exactly HOW these wavers were obtained. The requesters had political pull and were granted them. If anyone looks into it hard, the “facts will be made to fit the decision”.Report

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