Archive for the ‘SCOTUS’ Category
This weekend, after he met with Raul Castro, President Obama continued his hate America tour, declaring that he was “very aware of the fact that there are dark chapters in our own history.”
There’s no doubt that this nation has seen dark chapters during its history. While the darkest of those dark chapters is either the Civil War or the bombing of Pearl Harbor, not all of this nation’s darkest chapters involve war. The Obama administration is one of those dark chapters.
Betraying Israel is a sad chapter in US history. President Obama has frequently betrayed Israel, whether it’s through revealing Israel’s sensitive nuclear secrets or by sending his political operatives to Israel to defeat Israel’s sitting prime minister. Frankly, betraying Israel is betraying the United States’ Judeo-Christian heritage.
Frequently ignoring the Constitution is another instance where the Obama administration has led the United States into a dark chapter in our nation’s history. No other administration has had the Supreme Court rule unanimously against their power grabs thirteen times. That’s a record that’s as likely to get broken as Cy Young’s 511 victories as a pitcher.
Negotiating a nuclear proliferation treaty with Iran, which is what John Kerry’s framework really is, is a betrayal of our allies in the region. That’s before talking about how it establishes Iran as the regional superpower. That’s before talking about how it endangers our national security by pumping new money into Iran’s coffers to support regional and worldwide terrorist attacks.
That’s before highlighting this foolish statement:
“The cold war has been over for a long time and I’m not interested in battles that have been over frankly, before I was born,” President Obama stated.
It’s stupid for President Obama to insist that the Cold War is over. Putin’s on the march, gobbling up huge parts of neighboring countries. Further, I’m interested in hearing him explain how the Berlin Wall fell in 1989, when he was 28 years old. Perhaps he didn’t notice because he was too busy selling cocaine?
The only potential positive that might come out of the Obama administration is the stench that will remind us we’ve survived a national nightmare of incredible intensity.
Technorati: Barack Obama, Foreign Policy, State Sponsors of Terrorism, Nuclear Proliferation, Iran, Appeasement, Terrorists, Cuba, National Security, Israel, Pearl Harbor, Civil War, Supreme Court, Constitution
Judge Andrew Hanen refused to lift his temporary hold on President Obama’s executive action, saying that the DOJ hasn’t “shown any credible reason for why this Directive necessitates immediate implementation.” Here are the arguments both sides are making:
The coalition of states leading the challenge filed its lawsuit to overturn Obama’s executive actions, which would prevent as many as 5 million people who are in the U.S. illegally from being deported. The states, led by Texas, argue that the action is unconstitutional and would force them to invest more in law enforcement, health care and education. The injunction is intended to stall Obama’s actions while the lawsuit progresses through the courts.
Justice Department attorneys argue that keeping the temporary hold harms “the interests of the public and of third parties who will be deprived of significant law enforcement and humanitarian benefits of prompt implementation” of the president’s immigration action.
First, it isn’t likely that the Obama administration will win this fight. If I were putting out odds, I’d say the administration’s odds of winning was less than 15%. That’s enough to stop the DOJ’s request dead in its tracks. Second, Judge Hanen’s statement that the DOJ hasn’t “shown any credible reason for why this Directive necessitates immediate implementation” is a rather chilly statement. (Ed Morrissey’s post explains why the relationship between Judge Hanen and the DOJ is frosty.)
Hanen issued his initial injunction believing that neither of those orders had taken effect. About a month later, the Justice Department confirmed that more than 108,000 people had already received three-year reprieves from deportation and work permits, but DOJ attorneys insisted the moves were made under 2012 guidelines that weren’t blocked by the injunction. The DOJ apologized for any confusion, but Hanen seemed unconvinced during a hearing last month and threatened to sanction the attorneys.
He wrote Tuesday that while the federal government had been “misleading” on the subject, he would not immediately apply sanctions against the government, saying to do so would not be “in the interests of justice or in the best interest of this country” because the issue was of national importance and the outcome will affect millions of people.
“The parties’ arguments should be decided on their relative merits according to the law, not clouded by outside allegations that may or may not bear on the ultimate issues in this lawsuit,” Hanen wrote.
I’m not a lawyer but I can’t imagine it’s a good thing for a judge to say that “the federal government had been ‘misleading'” the judge. I’ve got to think that the appellate court won’t be impressed with the DOJ’s actions.
I’d be very surprised if the Supreme Court doesn’t a) hear this case and b) rule against the administration.
Just when I thought it was safe to listen to former State Sen. Steve Murphy again, he said something strikingly stupid. Friday night on Almanac’s Roundtable, Indiana’s RFRA law was brought up. Here’s what Murphy said:
I really don’t think nationally that we need any laws like that.
That isn’t just strikingly stupid. It’s frightening that a politician wouldn’t know that Bill Clinton signed RFRA into law in 1993 or that it passed the House unanimously and the Senate with overwhelming bipartisan support. Further, it’s frightening that a politician wouldn’t remember that RFRA was cited by Justice Samuel Alito’s majority opinion in the Burwell v. Hobby Lobby decision:
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A).
Simply put, the government can’t force people to act against their religious beliefs unless the government can offer a compelling reason for restricting a person’s religious rights. Even if the government can provide a compelling reason for limiting a person’s religious beliefs, the government’s solution must be “is the least restrictive means of furthering that compelling governmental interest.”
Earlier in the segment, Ember Reichgott-Junge said that “the Religious Right” is wise in not introducing RFRA legislation. I’d just recommend Sen. Reichgott-Junge read John Hinderaker’s post about RFRA. Specifically, she should read this part of John’s post:
The hysterical reaction to Indiana’s law can only be described as insane. As we noted here, there is a federal RFRA that governs federal laws, 19 states have their own RFRAs, and ten other states have adopted the “strict scrutiny” standard of the Indiana statute by judicial opinion. Governor Dayton is perhaps unaware that Minnesota is one of those ten states. Hill-Murray Fed’n of Teachers v. Hill-Murray High School, 487 N.W.2d 857, 865 (Minn. 1992); State v. Hershberger, 462 N.W.2d 393, 398 (Minn. 1990).
Remember that these are prominent former DFL state senators. When they’re sworn in, they swear an oath to “support the Constitution of the United States, the constitution of this state and to faithfully discharge the duties of his office to the best of his judgment and ability.” It’s impossible to support the US Constitution if you don’t know what’s in it.
Finally, Sen. Murphy is the guy who said that he wasn’t trying to hide tax increases in his transportation bill. He’s also famous for saying this:
“Everything is fun and games until someone gets an eye poked out, and the governor just poked out my eye by vetoing this bill,” said Sen. Steve Murphy, DFL-Red Wing. “I think that is a clear indication he wants a train wreck at the end of session. He wants the Legislature to fail, and he wants to blame us.”
Steve Murphy and Ember Reichgott-Junge’s ignorance of the Constitution and major Minnesota court cases are frightening, especially considering the fact that the DFL is the party that thinks government is the dispenser of good things. Frankly, these DFL has-beens couldn’t support the Constitution they wore to uphold.
Scott Pruitt, Oklahoma’s attorney general, distinguished himself in writing this op-ed in the Wall Street Journal. This paragraph is especially inspirational to this federalist:
Declining to establish a state exchange allowed Oklahoma to voice its strong political opposition to the Affordable Care Act as a whole, as well as to make a statement that it wanted neither the large-employer mandate nor the individual mandate to have effect within its borders. That was the trade-off. Oklahoma declined the premium tax credits, but freed itself of those mandates, and that was a choice the state was happy to make.
The states aren’t imbeciles that need the federal government’s protection from themselves. They’re co-equal sovereign governments quite capable of making decisions for themselves. In the early 1990s, the federal welfare programs were out of control. States like Arkansas, Massachusetts, Michigan and Wisconsin started experimenting on welfare. First, they got waivers from HHS giving them the authority to experiment.
Thanks to their experimentation, they improved millions of people’s lives.
Another point worth making is that the ACA, aka Obamacare, is an experiment in anti-federalism. Rather than letting states experiment, President Obama pushed a one-size-fits-all plan down our throats. Scott Pruitt and Oklahoma asserted their rights to make their own decision as allowed by the ACA. It might be that Oklahoma made the wrong decision but it’s their decision to make. The fact that they made an informed choice is proof that they weren’t coerced.
In the original Obamacare lawsuit NFIB vs. Sebelius, the Supreme Court ruled that Medicaid expansion was unconstitutional because the ACA didn’t give the states of opting out of Medicaid expansion. The fact that Oklahoma said no, according to Pruitt, made their decision based on the trade-off of not getting IRS subsidies in exchange for not dealing with the individual and employer mandates. That’s a rational choice, something that wasn’t there with Medicaid expansion.
Third, this sort of federal program isn’t antithetical to federalism, it is federalism. As we explained in our amicus brief to the court, this carrot-and-stick approach is found in dozens of federal programs sprinkled throughout the United States Code. The states are not children that the federal government must paternalistically “protect” from the consequences of their choices by rewriting statutes. In our constitutional system, states are free to make decisions and bear the political consequences, good or bad, of those choices.
Frankly, I’d rather trust decisions made at the state level than decisions made by a DC politician or bureaucrat. In fact, it wouldn’t take more than a nanosecond or 2 to make that decision for me.
Technorati: Scott Pruitt, Oklahoma, Attorney General, Federalism, Medicaid Expansion, Individual Mandate, Employer Mandate, IRS Subsidies, King v. Burwell, NFIB v. Sebelius, Anthony Kennedy, SCOTUS, Affordable Care Act, Obamacare
Dylan Scott’s article about what might happen if the Supreme Court invalidates health insurance subsidies being paid to people who bought insurance through HealthCare.gov is fascinating. For instance:
What leeway does the ACA itself give the administration? It seems self-evident that the states currently using the federal exchange would be required to do something, to “establish” their own exchanges, and the Health and Human Services Department therefore couldn’t just decree that all exchanges are state-based. States also probably need to do more than, say, sign a piece of paper declaring their exchange state-based.
“Now you could perhaps define the word ‘established’ down. HHS might be tempted to do so,” Bagley said. “But at the minimum, that kind of move from the administration would be sure to provoke a prompt legal response.”
There’s an additional problem not cited in the article. Specifically, state-established exchanges are part of Section 1311:
(1) In general
An Exchange shall be a governmental agency or nonprofit entity that is established by a State.
Changing that language requires legislation, which Mitch McConnell might agree to in exchange for other concessions:
That also extends to Congress, which as Bagley and Jones both noted, could correct the problem with ease by amending the law to allow tax credits on the federal exchanges. “Congress could fix this with a stroke of the pen,” Bagley said. “I could write the statute in a single sentence.”
But nobody is really expecting that. Incoming Senate Majority Leader Mitch McConnell said earlier this month that SCOTUS could “take down” Obamacare in the King case and that would open up the opportunity for “a major do-over.”
“If that were to be the case, I would assume that you could have a mulligan here, a major do-over of the whole thing,” he said, in comments flagged by the Washington Post’s Greg Sargent.
While the administration might be willing to do a lot to save the law, an emboldened Republican Congress seems unlikely to settle for anything less than major concessions, as McConnell suggests. So a fix in Washington doesn’t appear in the cards.
It’s interesting that Democrats fear a Washington fix because that would require them making major concessions in exchange for those subsidies. In other words, DC Democrats are most afraid of actually improving the ACA.
That’s insane on a multitude of fronts, starting with the fact that the ACA is a weighty millstone around their political necks. Democrats got crushed in 2010 and 2014 because of the ACA. Despite experiencing those historical thumpings, Democrats don’t want to change the ACA. It’s their right to commit political suicide.
Talking Points Memo’s article shows that they’re either hallucinating or they’re thinking words don’t have meanings. They’re talking about possibilities about how to skirt the Supreme Court’s ruling should they rule against the administration:
The specter of the Supreme Court gutting Obamacare and putting health coverage for millions of people at risk is back in a very real way, with the justices taking up the lawsuit that would prohibit tax subsidies from being given to people in the 36 states that use the federal health exchange, HealthCare.gov.
But while the White House has been publicly mum about how it would address that worst-case scenario, policy experts have told TPM that there could be ways for the Obama administration to get around such a ruling.
The specifics would need to be worked out, but the crux is this: States could continue to use HealthCare.gov as their technical backdrop, but they would be considered state-based exchanges. That would allow the law’s tax subsidies to keep flowing, even if the Supreme Court were to invalidate them on the federal exchange, as the lawsuit’s plaintiffs argue it should.
That might work with the Nevada and Oregon exchanges but it won’t fly with the 36 states that refuse to create a state-run exchange. Apparently, that didn’t dawn on these geniuses until later in the article:
“One such scenario would be for HHS to effectively deem all of the exchanges to be state-based, but continue operating them through HealthCare.gov,” Caroline Pearson, vice president at Avalere Health, an independent consulting firm, told TPM earlier this year. On Thursday, she added that the legal grounds for such a move would be “uncertain,” however.
Every bill that’s signed into law, especially lengthy, complex statutes like the ACA, contain a list of definitions specific to that legislation. Section 1311 of the ACA establishes how state-run exchanges are created. This part is vital:
SEC. 1311. AFFORDABLE CHOICES OF HEALTH BENEFIT PLANS.
(a) ASSISTANCE TO STATES TO ESTABLISH AMERICAN HEALTH BENEFIT EXCHANGES.—
(1) PLANNING AND ESTABLISHMENT GRANTS.—There shall be appropriated to the Secretary, out of any moneys in the Treasury not otherwise appropriated, an amount necessary to enable the Secretary to make awards, not later than 1 year after the date of enactment of this Act, to States in the amount specified in paragraph (2) for the uses described in paragraph (3).
(2) AMOUNT SPECIFIED.—For each fiscal year, the Secretary shall determine the total amount that the Secretary will make available to each State for grants under this subsection.
(3) USE OF FUNDS.—A State shall use amounts awarded under this subsection for activities (including planning activities) related to establishing an American Health Benefit Exchange, as described in subsection (b).
This is vital in the context of HHS “effectively deem[ing] all of the exchanges to be state-based.” Section 1311, paragraph (3) specifically talks about the grants from HHS to each of the states. The states must use that money to create their exchanges. Since 36 states didn’t accept grants from HHS under Section 1311, paragraph (3), that means the exchange is federally run.
Technically, Oregon and Nevada took HHS grant money. Therefore, they’re technically classified as state-run exchanges. Wyoming and Wisconsin, by contrast, didn’t accept 1311 grants from HHS. Therefore, those states’ exchanges aren’t state-run exchanges.
Simply put, that means any attempt by the Democrats to change the clearly-written definitions in the ACA will likely be quickly rejected by the Supreme Court. It’s further proof that Democrats put their ideology ahead of doing what’s right for the nation.
Yesterday, I got an email alert about a lawsuit filed by the Center for Competitive Politics challenging the constitutionality of another provision of McCain-Feingold. Here’s the heart of the matter:
The Independence Institute wishes to run two ads: one asking Colorado Senators Mark Udall and Michael Bennett to support a federal sentencing reform bill, and one asking citizens to contact Colorado Governor John Hickenlooper and urge him to initiate an audit of the Colorado Health Benefit Exchange. The McCain-Feingold law, along with a similar state statute, effectively prevents the group from raising money for the ads.
“This situation shows the damage to free speech caused by carelessly written campaign finance laws,” said David Keating, president of CCP. “Instead of advocacy on an important public issue, there will be silence. That’s unacceptable under the First Amendment, and is the reason why we filed this lawsuit.”
Prior to the passage of Obamacare, McCain-Feingold was the worst legislation in the last half century. I can’t even say that the intent behind McCain-Feingold was good. Its effect was to protect incumbents while limiting political speech.
There’s nothing honorable about either thing.
Here’s what McCain-Feingold does to issue advocacy:
Colorado and federal law treat speech about public issues as campaign speech whenever a candidate is mentioned in a broadcast ad within 60 days of the general election. Groups must either file public reports with personal details about donors who have provided funds for the ads, or refrain from speaking. The result is what First Amendment advocates call a “chilling” effect on advocacy, depriving the public of important speech about issues of public importance.
Here’s why disclosure in these instances is frightening:
Donors and speakers have many reasons to protect their privacy. Some fear retaliation from government officials who disagree with them. Others fear physical harm or threats to themselves and their families, vandalism to their property, loss of jobs, or boycotts of their business if they support unpopular views.
Over half a century ago, the Supreme Court ruled in NAACP v. Alabama that not disclosing donors to issue advocacy groups was constitutionally protected. Imagine the fury that the KKK would’ve visited upon the people supporting the NAACP.
While the threats are different today, the threats are just as real. Instead of fearing the KKK, these days, issue advocacy groups have to worry about the Justice Department, the IRS and other agents representing weaponized government.
It’s time to eliminate another disgusting part of McCain-Feingold. The sooner it’s eliminated, the better.
Technorati: McCain-Feingold, Censorship, Issue Advocacy, NAACP v. Alabama, Supreme Court, Independence Institute, Center for Competitive Politics, Civil Rights, First Amendment, Weaponized Government, IRS, DOJ
Jeffrey Toobin’s article isn’t factually accurate:
As Congress originally conceived it, the A.C.A. called for each state to set up its own exchange with a Web site, which most of the blue states and a few of the red ones did. But two dozen of them did not, so the Obama Administration established a federal counterpart, centered on the Web site healthcare.gov.
First, three dozen states didn’t create state-run exchanges, not two. Next, HealthCare.gov was created in the same legislation that authorized states to build their exchanges. The Obama administration didn’t create HealthCare.gov after they saw states refuse to create state-run exchanges.
Then there’s this:
According to the D.C. Circuit majority, one line in the text of the A.C.A. makes the federal exchange invalid. The law says that subsidies are to be available through exchanges that are “established by a State,” without an explicit authorization of federal exchanges. Thus, according to the judges in the majority, five million or so people who have used the federal exchange to buy health insurance must now lose it.
That’s another inaccurate statement. It isn’t just that judges said people who bought insurance through HealthCare.gov weren’t eligible for subsidies. The US House, the US Senate and President Obama said it, too.
If the US House, the US Senate and President Obama wanted everyone to get these subsidies, they could’ve written it into the ACA’s language. What’s really at play here is that the US House, the US Senate and President Obama wanted everyone to be eligible for those subsidies but they also understood that they’d need a hammer to hold over red states to force them into creating state-run exchanges.
The US House, the US Senate and President Obama calculated that they could force red states into creating state-run exchanges by making it politically unpopular to not create state-run exchanges.
The problem with the Democrats’ bluff is that red states called the Democrats’ bluff. They essentially said that they weren’t worried about not creating a state-run exchange in their states.
Next, Toobin constructs a strawman argument:
Katzmann writes that “excluding legislative history is just as likely to expand a judge’s discretion as reduce it…. When a statute is ambiguous, barring legislative history leaves a judge only with words that could be interpreted in a variety of ways without contextual guidance as to what legislators may have thought. Lacking such guidance increases the probability that a judge will construe a law in a manner that the legislators did not intend.”
There’s nothing abiguous about the legislative language in this provision. It’s exceptionally clear. When a statute says that subsidies are only through exchanges “established by a state”, that means that subsidies aren’t available to people who bought their insurance through HealthCare.gov.
The more important point is that this should be a shot across the legislators’ bow to write clearly written statutes. If legislation can be “interpreted in a variety of ways”, then legislators aren’t doing their job. If the legislators who wrote the law can’t write it clearly, then that’s their problem. Period. The citizens who didn’t qualify for subsidies should take it out on the people who wrote the bill and the people who voted for the legislation.
Further, people who don’t qualify for these subsidies should take it out on Harry Reid and Nancy Pelosi. They’re the people who brought the bill up for a vote before anyone could read the bill. They’re the people who wrote the final bill in the privacy of their offices rather than marking it up in committees.
Here’s a whopper:
When the Affordable Care Act was being debated, every member of Congress–supporters of the A.C.A. as well as opponents–understood that the federal government would have the right to establish exchanges in states that chose not to create them. As Judge Harry Edwards observed in his dissenting opinion in the A.C.A. case, “The Act empowers HHS to establish exchanges on behalf of the States, because parallel provisions indicate that Congress thought that federal subsidies would be provided on HHS-created exchanges, and, more importantly, because Congress established a careful legislative scheme by which individual subsidies were essential to the basic viability of individual insurance markets.”
Judge Edwards is wrong. The clear language of the bill doesn’t imply that “federal subsidies would be provided on HHS-created exchanges.” It directly says the opposite.
What can be stated is that Congress wanted everyone who made less than 400% of the federal poverty level to be eligible for subsidies and that all 50 states establish state-run health insurance exchanges. Further, we can state that Congress wrote the bill the way they did to force states into creating their own health insurance exchanges.
Congress can’t have it both ways. Either they write the law to make everyone below a certain income level eligible without conditions or they write it so that only people that met specific criteria were eligible.
As the Halbig case demonstrates, textualism is as politically fraught as any other approach to judging. The Halbig case is not an attempt to police unclear drafting but rather the latest effort to destroy a law that is despised by many conservatives.
Without question, Halbig is an attempt to destroy Obamacare. The thing is whether the Supreme Court will have the courage to say that specific language means specific things or whether they’ll say that the executive branch can change a law after it’s been written by Congress, voted on by Congress and signed by the president.
What Toobin is essentially asking for is a mulligan. He’s asking for that because 36 states didn’t do what Congress had hoped they’d do. Mulligans are for golfers, not major legislation that was passed without scrutiny in the dead of night the night before Christmas Eve.
When I wrote this post, I wrote it to highlight the tactics Democrats use to steal elections. In the first post, I focused on the things the local Democratic Party is doing.
Unfortunately, this isn’t just happening at the state level. It’s happening at the federal level, too:
NOM said that an investigation revealed that its 2008 tax return and list of major donors was released to Matthew Meisel, a gay activist in Boston, MA. Email correspondence from Meisel revealed that he told a colleague that he had “a conduit” to obtain NOM’s confidential information. While testifying under oath in a deposition in the litigation, Meisel invoked the 5th Amendment against self-incrimination and refused to disclose the identity of his conduit. Documents obtained during the litigation prove that Meisel then provided NOM’s tax data to the Human Rights Campaign (whose president was a national Co-Chair of the Obama Reelection Campaign). The information was also published by the Huffington Post.
The weaponization of government by Democrats can’t be denied. In Wisconsin, John Chisholm, the Milwaukee County Attorney, opened a John Doe investigation into something that isn’t a crime in a blatant political move to scuff up Scott Walker in the hope that he’d either lose his re-election bid or that he’d be damaged goods if he wanted to run for governor.
In Minnesota, 13 DFL candidates for the Minnesota state senate coordinated their mailings with the DFL Senate Campaign Committee in an attempt to steal the Senate majority. When 11 DFL candidates got elected, the DFL Senate Caucus wrote a $100,000 check.
Nationally, the IRS sent the Human Rights Council, an issue advocacy organization, confidential IRS filings from the National Organization for Marriage, aka NOM, that listed NOM’s contributors. That’s been prohibited since the US Supreme Court issued its ruling on the NAACP v. Alabama lawsuit on June 30, 1958.
The point of this is to show the Democrats’ disdain for the rule of law, long-settled Supreme Court rulings and the Bill of Rights. If these things are standing between Democrats and election victories, then it’s predictable that Democrats will ignore the rule of law, the Bill of Rights and US Supreme Court rulings.
If I wanted to summarize this with a bit of snark, I’d say that the Democrats’ method of operation is this: Win if you can, lose if you must but always cheat. In the Democrats’ minds, it isn’t really cheating if its for the greater good.
I know that lefties’ heads will explode when they hear this but that’s their problem. These are just some of the most recent incidents when the left just threw the rules out the window. This isn’t a comprehensive list by any stretch of the imagination. In fact, it’s barely the tip of the iceberg.
These days, the Democrats’ defining priority is winning at all cost. If that means lying, fine. If that means breaking well-established laws, that’s ok. If that means intimidating people out of participating in the political process, Democrats don’t have a problem with that.
Democrats won’t hesitate in cheating if it helps them win elections. The only question I have is this: when did Democrats stop caring about the rule of law?
Technorati: Chilling Speech, Censorship, IRS, Confidential Records, National Organization for Marriage, Human Rights Council, Matthew Meisel, Weaponized Government, NAACP v. Alabama, Democrats, Supreme Court Rulings, Campaign Finance Laws, Elections
Brian Beutler’s article attempts to make the case that Republicans might ultimately lose if the Supreme Court upholds today’s ruling:
An adverse Supreme Court ruling would throw the ACA into chaos in three dozen states, including huge states like Florida and Texas. The vast majority of beneficiaries in those states would be suddenly unable to afford their premiums (and might even be required to reimburse the government for unlawful subsidies they’ve already spent). Millions of people would drop out of the insurance marketplaces. Premiums would skyrocket for the very sick people who need coverage the most.
But that’s where the conservatives’ “victory” would turn into a big political liability for red- and purple-state Republicans. An adverse ruling would create a problem that could be fixed in two ways: With an astonishingly trivial technical corrections bill in Congress, or with Healthcare.gov states setting up their own exchanges. If you’re a Republican senator from a purple Healthcare.gov state—Wisconsin, Pennsylvania, Nevada, North Carolina, Florida, Ohio, and others—you’ll be under tremendous pressure to pass the legislative fix. If you’re a Republican governor in any Healthcare.gov state, many thousands of your constituents will expect you to both pressure Congress to fix the problem, and prepare to launch your own exchange.
Conservatives would like to believe that they could just leave something as deeply rooted as Obamacare permanently hobbled, or that they could use the ensuing chaos as leverage, to force Democrats to reopen the books, and perhaps gut the law in other ways. I think they’re miscalculating. Just as government shutdowns and debt default threats don’t create leverage because the public doesn’t support inviting chaos in pursuit of unrelated goals, I don’t think an adverse ruling in Halbig will create leverage for the GOP.
I think Beutler isn’t just wrong about the leverage. I think he’s kidding himself if he thinks this puts Republicans in a difficult position.
By the time the Supreme Court rules on this lawsuit, it’s quite possible that there will be Republican majorities in the House and Senate. If that’s the case, think of this scenario:
Congress might well change Section 36B as part of a bigger bill that’s sure to include other provisions that Republicans like and that President Obama doesn’t like.
For instance, a new bill might include a change to 36B along with a change that eliminates the medical device tax, another change that changes the definition of a Qualified Health Plan, aka QHP, and a change that reduces the penalties for the employer and individual mandates.
Employers and families would certainly love a tiny penalty for not obeying the law. Young people would love being able to buy a catatrophic policy with a HSA to cover other expenses. There’s no question that eliminating the medical device tax would make medical device manufacturers happy.
At that point, President Obama signs the bill that’s essentially a fresh start that dramatically improves the ACA or he vetoes a popular bill that forces families to pay higher insurance premiums, that doesn’t repeal an unpopular tax and he alienates major parts of his base. In my opinion, that’s ‘Rock meets hard place’ territory for President Obama. The good news is that it’s great news for employers, families and young people.
All that’s required is for Republicans to pass a bill that’s filled with popular provisions. Since a majority of people don’t like the bill’s specifics, that shouldn’t be that difficult.
Finally, Beutler insists that this is judicial activism. There’s nothing activist about the DC Circuit’s ruling. They said that Section 36B meant what it said. For the record, here’s the specific language of Section 36B:
monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311  of the Patient Protection and Affordable Care Act
The judiciary’s first responsibility is to determine whether a law is constitutional. If it passes that test, the next test is to determine whether the statute gives the executive branch the authority to take action.
In this instance, the DC Circuit ruled that the ACA didn’t give the executive branch, in this case the IRS, the authority to change a major provision of the statute.
It isn’t radical to think that the executive branch doesn’t have the authority to rewrite specific provisions of existing statutes. If the Supreme Court validates this ruling and if President Obama wants that provision changed, there’s a simple remedy: work with Congress to change that part of the ACA.
Technorati: President Obama, Halbig v. Burwell, DC Circuit Court of Appeals, Qualified Health Plans, Employer Mandate, Individual Mandate, Medical Device Tax, HSAs, Insurance Subsidies, Supreme Court, Republican Reforms