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Column: How right-wing judge-shopping in Texas is erasing Americans’ rights everywhere

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Column: How right-wing judge-shopping in Texas is erasing Americans’ rights everywhere

You might need thought that, greater than a dozen years after its enactment, the Reasonably priced Care Act was lastly secure from interference by right-wing judges carrying water for spiritual fanatics and anti-government activists.

Sadly, a ruling from a one-horse federal courtroom in Texas reminds us that there’s virtually an infinite provide of these litigants and the judges who run with them. Lower than two weeks in the past, U.S. Decide Reed O’Connor invalidated an ACA provision mandating {that a} lengthy record of preventive care companies be offered to sufferers with out co-pays or deductibles.

If O’Connor’s March 30 ruling stands (the federal government is definite to enchantment), it could block no-fee preventive companies similar to breast- and cervical-cancer screenings for thousands and thousands of girls, smoking cessation packages, hepatitis exams, screening for diabetes, osteoporosis, despair, HIV and lots of different situations and well being dangers.

A court docket oversteps its authority when an injunction does greater than profit the plaintiffs who’ve sued.

— Legislation professors Nicholas Bagley and Samuel Bray

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The anti-HIV provision, because it occurs, was the principal goal of the plaintiffs on this case. Amongst them are Steven Hotze, a self-described Christian proprietor of a “wellness” middle who complained that the Reasonably priced Care Act mandate to offer anti-HIV medicine would “facilitate behaviors similar to gay sodomy, prostitution, and intravenous drug use — all of that are opposite to Dr. Hotze’s honest spiritual beliefs.”

Hotze additionally objects to different preventive-care mandates that require his enterprise’ well being plans to cowl screening for and counseling about sexually transmitted ailments “for these engaged in non-marital sexual conduct.”

O’Connor’s ruling undermines one of many bedrock public-health options of the Reasonably priced Care Act, its encouragement of companies aimed toward protecting Individuals wholesome by catching indicators of growing medical points earlier than they require expensive interventions.

Sadly, the ruling didn’t come as a lot of a shock: Not solely did O’Connor telegraph his resolution throughout hearings on the lawsuit months in the past, however he’s the identical decide who in 2018 tried to throw a monkey wrench into Obamacare by declaring all the legislation unconstitutional.

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The Supreme Courtroom slapped him down with a 7-2 ruling upholding the act’s constitutionality in 2021, however that didn’t appear to take a position O’Connor with any measure of humility.

O’Connor’s newest ruling underscores a serious drawback with America’s federal judicial system. That’s the power of hack judges in backwater courthouses to intrude with coverage by issuing nationwide injunctions primarily based on specious or at the least shallow authorized arguments.

“A court docket oversteps its authority when an injunction does greater than profit the plaintiffs who’ve sued,” Nicholas Bagley of the College of Michigan and Samuel Bray of Notre Dame wrote in 2018, when the follow started to proliferate.

Nationwide injunctions, they argued, encourage “discussion board buying.”

“As a result of a litigant solely has to win in a single court docket to cease the implementation of a congressional statute or company rule,” they wrote, “he has an enormous incentive to choose a jurisdiction the place he’s more likely to win.”

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That’s precisely what’s been occurring, with Texas federal courts having turn into the epicenter of such judicial activism, thanks largely to a number of anti-Biden campaigns by Texas Atty. Gen. Ken Paxton.

The principles governing venues amongst federal courts are, on the floor, simple. Plaintiffs are anticipated to have a motive to decide on a specific location, maybe as a result of they stay within the judicial district or their case entails actions that occurred there.

However issues should not that easy. Underlying Paxton’s filings is the notion that the state as an entity resides in all of the federal judicial districts inside its borders and due to this fact it may well correctly file its lawsuits in any of them.

That assertion, nevertheless, merely skates over the elemental cynicism of Paxton’s technique. Texas is uncommon in having a surfeit of federal courthouses with just one or two sitting judges — in lots of instances former President Trump-appointed judges with a definite conservative outlook.

It’s true that forum-shopping is neither unlawful nor practiced solely by conservative litigants. Blue states and liberal litigants usually filed instances difficult Trump administration insurance policies in districts the place they’d hopes of touchdown a progressive-oriented decide, such because the Northern District of California, headquartered in San Francisco.

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That district, nevertheless, has 21 judges assigned amongst three courthouses, not all of whom could possibly be described as liberal. Submitting a case there improves the percentages of getting it in entrance of a sympathetic decide however doesn’t assure it.

All 28 of Texas’ lawsuits in opposition to the Biden administration, alternatively, have been filed in one in all “simply seven divisions the place native guidelines severely restrict the variety of judges to whom the instances could possibly be assigned,” the Division of Justice noticed in asking federal decide Drew Tipton to relinquish an immigration case filed in his court docket in Victoria, Texas, the place Tipton is the one sitting federal decide.

These included 18 lawsuits filed in divisions the place the case “would essentially be assigned to a single pre-determined decide.” There was no method to clarify the state’s resolution to file the case in Victoria, the place Tipton, a Trump-appointed decide, presides over all instances, “apart from judge-shopping.” Tipton up to now has refused.

The Biden administration has begun to combat again in opposition to Texas judge-shopping. Along with its movement earlier than Tipton, it has filed motions for transfers in two different instances.

One entails a lawsuit Paxton filed in February to invalidate the $1.7-trillion omnibus spending invoice signed by Biden in December.

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That measure included support to Ukraine; catastrophe reduction for victims of Western wildfires and southeast tornadoes, hurricanes and floods; strengthening of federal election legislation to forestall any makes an attempt to overturn votes similar to these threatened within the Jan. 6 riot; and different investments.

That case landed earlier than Trump appointee James W. Hendrix, who hears about two-thirds of the instances in his Lubbock courthouse. The administration has requested Hendrix to switch the case both to Washington, D.C., the place the spending invoice was enacted, or Austin, the place Paxton’s workplace is.

The second movement asks Decide Matthew Kacsmaryk, additionally a Trump appointee, to switch a case difficult Biden administration insurance policies permitting fiduciaries overseeing retirement accounts to think about “environmental, social and governance” components, often known as ESG, in judging the prudence of pension fund investments.

The federal government accused the plaintiffs, who embody Texas and 25 different largely crimson states, of “gamesmanship” that “undermines public confidence within the administration of justice.” The movement requested to switch the lawsuit to Washington, D.C., Austin or Salt Lake Metropolis (Utah is technically the lead plaintiff). Kacsmaryk refused.

The issue of nationwide injunctions is magnified by the chance that conservatives submitting in one- or two-judge court docket divisions will acquire a preordained consequence.

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Contemplate the absurdity of a lawsuit filed in November searching for a ban on the abortion remedy mifepristone. Anti-abortion activists filed the case in Amarillo, realizing it could absolutely come earlier than Kacsmaryk, who presides over each civil case introduced in that courthouse.

Kacsmaryk, who might challenge his ruling at any second, seems to be the quintessential identified amount. Earlier than becoming a member of the bench, he served as a lawyer for a Christian conservative authorized group that filed anti-abortion instances, amongst others.

In simply the previous couple of months, in keeping with Reuters, Kacsmaryk blocked Biden’s plan to finish the Trump-era “stay in Mexico” immigration coverage that stored asylum-seekers from crossing the U.S. border, dominated in opposition to administration insurance policies defending LGBTQ folks from office discrimination, and overturned a federal program permitting minors to acquire free contraceptives with out parental consent.

That brings us again to O’Connor’s ruling on the Reasonably priced Care Act’s preventive-care mandate. As many as 150 million Individuals have taken benefit of the mandate by acquiring the coated companies with out paying an out-of-pocket charge.

O’Connor’s order doesn’t apply to all mandated preventive care companies. It applies to these designated as “extremely really useful” by the U.S. Preventive Companies Activity Pressure, a volunteer professional physique that the Reasonably priced Care Act tasked with making these suggestions, and particularly the companies really useful after March 23, 2010.

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O’Connor particularly barred free provision of pre-exposure prophylaxis, or PrEP, medicine administered to folks at excessive threat of HIV an infection. Forcing well being plans to cowl these medicine with out co-pays or deductibles, he wrote, infringes on the plaintiff’s spiritual freedom as a result of they “imagine that (1) the Bible is ‘the authoritative and inerrant phrase of God,’ [and] (2) the ‘Bible condemns sexual exercise outdoors marriage between one man and one girl, together with gay conduct.’ ”

A right-wing decide with a longtime anti-Obamacare document accepted a tendentious interpretation of the biblical “phrase of God” to disclaim accessible and inexpensive healthcare to all the nation. That makes the hazard of expansive injunctions, as they’re produced by Trump-appointed judges in Texas, crystal clear.

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In big win for business, Supreme Court dramatically limits rulemaking power of federal agencies

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In big win for business, Supreme Court dramatically limits rulemaking power of federal agencies

In a major victory for business, the Supreme Court on Friday gave judges more power to block new regulations if they are not explicitly authorized by federal law.

The court’s conservative majority overturned a 40-year-old rule that said judges should defer to agencies and their regulations if the law is not clear.

The vote was 6 to 3, with the liberal justices dissenting.

The decision signals a power shift in Washington away from agencies and in favor of the businesses and industries they regulate. It will give business lawyers a stronger hand in challenging new regulations.

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At the same time, it deals a sharp setback to environmentalists, consumer advocates, unions and healthcare regulators. Along with the Biden administration, they argued that judges should defer to agency officials who are experts in their fields and have a duty to enforce the law.

This deference rule, known as the Chevron doctrine, had taken on extraordinary importance in recent decades because Congress has been divided and unable to pass new laws on pressing matters such as climate change, online commerce, hospitals and nursing care and workplace conditions.

Instead, new administrations, and in particular Democratic ones, sought to make change by adopting new regulations based on old laws. For example, the climate change regulations proposed by the Obama and Biden administrations were based on provisions of the Clean Air Act of 1970.

But that strategy depended on judges being willing to defer to the agencies and to reject challenges from businesses and others who maintained the regulations went beyond the law.

The court’s Republican appointees came to the case skeptical of the Chevron doctrine. They fretted about the “administrative state” and argued that unelected federal officials should not be afforded powers typically reserved for lawmakers.

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“Chevron is overruled,” Chief Justice John G. Roberts Jr. wrote Friday for the majority. “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” Judges “may not defer to an agency interpretation of the law simply because a statute is ambiguous,” he added.

In dissent, Justice Elena Kagan said the Chevron rule was crucial “in supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest. And the rule is right,” she said. It now “falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.” Justices Sonia Sotomayor and Ketanji Brown Jackson agreed.

Senate Majority Leader Charles E. Schumer (D-N.Y.) voiced outrage. “In overruling Chevron, the Trump MAGA Supreme Court has once again sided with powerful special interests and giant corporations against the middle class and American families. Their headlong rush to overturn 40 years of precedent and impose their own radical views is appalling.”

Experts said the impact of the ruling may not be clear for some time.

Washington attorney Varu Chilakamarri said the ruling means “industry’s interpretation of the law will be viewed as just as valid as the agency’s. It will be some time before we see the effects of this decision on the lawmaking process, but going forward, agency action will be under even greater scrutiny and there will likely be more opportunities for the regulated community to challenge agency rules and adjudications.”

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In decades past, the Chevron doctrine was supported by prominent conservatives, including the late Justice Antonin Scalia. In the 1980s, he believed it was better to entrust decisions about regulations to agency officials who worked for the president rather than to unelected judges. He was also reflecting an era when Republicans, from Richard Nixon and Gerald Ford to Ronald Reagan and George H.W. Bush, controlled the White House.

But since the 1990s, when Democrat Bill Clinton was president, conservatives have increasingly complained that judges were rubber-stamping new federal regulations.

Business lawyers went in search of an attractive case to challenge the Chevron doctrine, and they found it in the plight of four family-owned fishing boats in New Jersey.

Their case began with a 1976 law that seeks to conserve the stocks of fish. A regulation adopted by the National Marine Fishery Service in 2020 would have required some herring boats to not only carry a federal monitor on board, but also pay the salary of the monitor. Doing so was predicted to cost more than $700 a day, or about 20% of what the fishing boats earned on average.

The regulation had not taken effect, but it was upheld by a federal judge and the D.C. Circuit Court’s appellate judges who deferred to the agency’s interpretation of the law.

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State Farm seeks major rate hikes for California homeowners and renters

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State Farm seeks major rate hikes for California homeowners and renters

State Farm General is seeking to dramatically increase residential insurance rates for millions of Californians, a move that would deepen the state’s ongoing crisis over housing coverage.

In two filings with the state’s Department of Insurance on Thursday signaling financial trouble for the insurance giant, State Farm disclosed it is seeking a 30% rate increase for homeowners; a 36% increase for condo owners; and a 52% increase for renters.

“State Farm General’s latest rate filings raise serious questions about its financial condition,” Ricardo Lara, California’s insurance commissioner, said in a statement. “This has the potential to affect millions of California consumers and the integrity of our residential property insurance market.”

State Farm did not return requests for comment.

Lara noted that nothing immediately changes for policyholders as a result of the filings. His said his department would use all of its “investigatory tools to get to the bottom of State Farm’s financial situation,” including a rate hearing if necessary, before making a decision on whether to approve the requests.

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That process could take months: The department is averaging 180 days for its reviews, and complex cases can take even longer, according to a department spokesperson.

The department has already approved recent State Farm requests for significant home insurance rate increases, including a 6.9% bump in January 2023 and a 20% hike that went into effect in March.

State Farm’s bid to sharply increase home insurance rates seeks to utilize a little-known and rarely used exception to the state’s usual insurance rate-making formula. Typically, such a move signals that an insurance provider is facing serious financial issues.

In one of the filings, State Farm General said the purpose of its request was to restore its financial condition. “If the variance is denied,” the insurer wrote, “further deterioration of surplus is anticipated.”

California is facing an insurance crisis as climate change and extreme weather contribute to catastrophic fires that have destroyed thousands of homes in recent years.

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In March, State Farm announced that it wouldn’t renew 72,000 property owner policies statewide, joining Farmers, Allstate and other companies in either not writing or limiting new policies, or tightening underwriting standards.

The companies blamed wildfires, inflation that raised reconstruction costs, higher prices for reinsurance they buy to boost their balance sheets and protect themselves from catastrophes, as well as outdated state regulations — claims disputed by some consumer advocates.

As insurers have pulled back from the homeowners market, lawmakers in Sacramento are scrambling to make coverage available and affordable for residents living in high-risk areas.

Times staff writer Laurence Darmiento contributed to this report.

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High interest rates are hurting people. Here's why it's worse for Californians

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High interest rates are hurting people. Here's why it's worse for Californians

By the numbers, the overall U.S. economy may look good, but down at the street level the view is a lot grimmer and grittier.

The surge in interest rates imposed by the Federal Reserve to slow inflation has closed like an acrid cloud over would-be homeowners, car buyers, growing families, and businesses new and old, large and small. It has meant missing opportunities, settling for less — and waiting and waiting and waiting.

It’s not that the average American is underwater. It’s that many feel that they’re struggling more than they anticipated and feel more constricted. In the American Dream, if you work hard, things are supposed to get better. Fairly or not, that may be a big part of why so many voters have expressed unhappiness with President Biden’s handling of the economy.

The cost of borrowing, whether for mortgages, credit cards or car loans, is the highest in more than two decades. And that is weighing especially hard on people in California, where housing, gas and many other things are more expensive than in most other states.

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California’s economy also relies more on interest rate-sensitive sectors such as real estate and high tech, which helps explain why the state has been lagging in job growth and its unemployment rate is the highest in the nation.

Harder to budget

When interest rates rise, savers can earn more on their deposits. But in America’s consumer society, for most people higher rates mean that a lot of things cost a little (or a lot) more. That makes it harder to stretch an individual or family budget. It may mean giving up on the nicer car you had your heart set on, or settling for a smaller house, or a shorter, less glamorous vacation.

And with every uptick in interest rates, which is almost inevitably passed on to customers, some have had to give up on a purchase entirely.

Geovanny Panchame, a creative director at an advertising agency, knows these feelings all too well: He thinks often about what could have been if he and his wife had bought the starter home they were planning for in 2020.

Back then, they had been pre-approved at an interest rate of 3.1% — right around the national average — but were outbid several times. They figured they’d wait a few years to save more money for a nicer place.

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Four years later, the couple are still renting an apartment in Culver City — and now they’re expecting their first child.

Pushing to buy a house and get settled before their son is born in December, they recently made an $885,000 offer for a three-bedroom, 1.5-bath home in Inglewood. They plan to put down 10%. At the current average mortgage interest rate of 7%, that would mean a monthly payment of about $5,300 — $1,900 more than if they had an interest rate of 3.1%.

The source of that increase is the Federal Reserve’s power to set basic interest rates, which determines the interest rates for almost everything else in the economy. The Fed’s benchmark rate went up rapidly, from near zero in early 2022 to a generational high of about 5.5%, where it has been for almost a year. The rate has been higher in the past, but after two decades in which it was mostly at rock bottom, most people had gotten used to both very low inflation and low interest rates.

“Clearly, we look back and we probably should have kept going and hopped into something,” Panchame, 39, said. “I’ve been really sacrificing a lot to get to this point to purchase a home and now I just feel like I got here but I didn’t work quick enough because interest rates have gotten the better of me.”

Add property taxes and home insurance, and it’s even more painful for home buyers because those costs have also risen sharply since the COVID-19 pandemic, along with housing prices themselves.

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A typical buyer of a mid-tier home in California, priced at about $785,000 in the spring, was looking at a total housing payment of about $5,900 a month. That’s up from $3,250 in March of 2020 and almost $4,600 in March of 2022, when the Fed began raising interest rates, according to the California Legislative Analyst’s Office.

It wasn’t supposed to work like that: Lifting interest rates as fast and as high as the Fed did, in its effort to curb inflation, should have led to falling home prices.

But that didn’t happen, mainly because relatively few homes came on the market. Most existing homeowners had locked in lower mortgage rates before the surge; selling those houses once interest rates took off would have meant paying higher prices and interest rates on other homes, or bloated rents for apartments.

For most homeowners sitting on the low rates of the past, their financial well-being was further supported by low unemployment and incomes that generally remained on par with inflation or grew a little faster. And many had cushions of savings built up in early phases of the pandemic, thanks partly to government support.

All of which has kept the U.S. economy as a whole humming along, blunting the full effects of higher interest rates.

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“Consumers are doing their job,” said Claire Li, senior analyst at Moody’s Investors Service, though she added that there are now signs of slower spending, evidenced by consumers cutting back on credit card purchases.

Unlike most home loans, credit card interest rates aren’t fixed. And today the average rate has bounced up to almost 22% from 14.6% in 2021, according to Fed data. That’s starting to squeeze more borrowers, adding to their unease.

Rising credit card debt

In California, the 30-day delinquency rate on credit cards is nearing 5% — something not seen since late 2009 around the end of the Great Recession, according to the California Policy Lab at UC Berkeley.

Lower-income and younger borrowers are more prone to falling behind on credit card, auto and other consumer loan payments than those with higher incomes. And it’s these groups that are feeling the effects of higher interest rates the most.

Christian Shorter, a self-employed tech serviceman who lives in Chino, just bought a used Volkswagen Jetta for $21,000. He put down $3,500 and financed the rest over 69 months at an annual interest rate of 24%. His monthly payment is more than $480, and by the end of the loan he will have paid about $15,000 in interest.

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Shorter, 45, said he doesn’t have good credit. He plans to take out a personal loan when interest rates drop and pay off the car debt. “Definitely, definitely, they should lower interest rates,” he said of the Fed.

Between the jump in interest rates and prices of new vehicles, some auto buyers have downgraded to cheaper models. The biggest shift, though, especially in California, has been a move by more buyers to turn to electric vehicles to save on fuel costs, says Joseph Yoon, a consumer analyst at Edmunds, the car research and information firm in Santa Monica.

In May, he said, buyers on average financed about $41,000 on a new vehicle purchase at an interest rate of 7.3% (compared with 4.1% in December 2021). Over 69 months, that translates to a monthly payment of $745.

“For a big part of the population, they’re looking at this car market and saying, ‘I got to wait for something to break,’ like interest rates or dealer incentives,” Yoon said.

For a lot of small-business owners, who drive much of the economy in Los Angeles, they don’t have the luxury of waiting it out. They need funds to survive, or to expand when things are going well.

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But many can’t qualify with traditional commercial lenders, and when they can they’re typically looking at interest rates of 9%; that’s more than double what they were before the Fed’s rate hikes, according to surveys by the National Federation of Independent Business.

One result: More and more people in Southern California are looking for help from lenders such as Brea-based Lendistry, one of the nation’s largest minority-led community development financial institutions.

From January to May, applications were up 21% and the dollar volume of loans rose 33% compared with a year earlier, said Everett Sands, Lendistry’s chief executive. Interest rates on his loans range from 7.5% to 14.5%.

“Business owners, they’re resilient, entrepreneurial, scrappy — they’ll figure out a way,” he said, adding that he sees many doing side jobs like driving for Uber or making Instacart deliveries at night.

Even so, Sands said, the higher borrowing costs inevitably mean less money spent on things like investing in new technology and software and bringing on additional staff, as well as delays in owners growing their businesses.

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“Some of them lose out in progressing forward.”

‘When you put everything on the line, you get desperate.’

— Jurni Rayne, Gritz N Wafflez

Jurni Rayne, 42, started her brunch business, Gritz N Wafflez, as a ghost kitchen in February 2022, preparing food orders for delivery services. She financed that by maxing out her credit cards and getting a merchant cash advance, which is like a payday loan with super high interest rates. Her debts reached $70,000.

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“When you put everything on the line, you get desperate,” said Rayne, a Dallas native who moved to Los Angeles a decade ago and has worked as a manager at California Pizza Kitchen and the Cheesecake Factory. “You don’t care about the interest rate, because it’s something like between passion and insanity.”

She has since paid off all the merchant loans. And her business has seen such strong growth that last year Rayne got out of the ghost kitchen and into a small spot in Pico-Union, starting with just three tables. She now has 17 tables and a staff of 14.

This fall she’ll be moving to a bigger location in Koreatown and has her sights on a second restaurant in South Los Angeles. But she frets that she could have expanded sooner if interest rates had been lower and she’d had more access to financing.

Economists call that an opportunity cost. For Rayne, it’s personal.

“Absolutely, lower interest rates would have helped me,” she said.

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For many others, the wait for lower rates continues without the balm of intermediate success.

Lynn Miller, 60, began looking to buy a home in Orange County about a year ago, hoping to upgrade from her current 1,600-square-foot apartment.

“It’s not bad, it’s just not mine — the dishwasher is crappy, the washing machine is old,” she said of her rental in Corona del Mar. “I’m obviously not going to invest in these appliances. It’s just different not owning your own home.”

It’s been a discouraging process, she said, especially when she inputs her numbers into the mortgage calculators on Zillow and Realtor.com, which churn out estimates based on current interest rates.

“If you look at those monthly payment numbers, it’s shocking,” Miller, a marketing consultant, said. “It’ll get better, but it’s just not better right now.”

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She’s continuing her house search — she’d love to buy a single-family, three-bedroom home with a backyard for a dog — but is holding off for now.

“I’m still waiting because I do think that interest rates are going to go down,” Miller said, although she knows it’s a guessing game. “I could end up waiting a long time.”

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