Update II: Well at least one person agrees with us – Obama’s law professor: There’s a “very high risk” that a federal court is going to gut ObamaCare. How big is Halbig? Big, big, big, says Lawrence Tribe from his feathery perch at Harvard:
Obamacare could take another spin in front of the Supreme Court – with vastly uncertain consequences.
Harvard legal scholar Laurence H. Tribe warned Tuesday of a “very high risk” that a crucial aspect of Obamacare – its government subsidies provision – could fall victim to a major legal challenge being mounted by conservatives. That is why, he also said, that the Supreme Court will almost certainly get “a second bite of the apple” in determining the fate of President Obama’s signature health law, with uncertain consequences.
Tribe, 72, a prominent proponent of the Affordable Care Act – who taught both Obama and Supreme Court Chief Justice John Roberts as constitutional law students at Harvard Law School years ago – warned of the ACA’s prospects for surviving intact during an exclusive, hour-long interview in New York with editors of The Fiscal Times. [snip]
“It looks like the panel is quite divided over what to do with what might [have been] an inadvertent error in the legislation or might have been quite deliberate,” Tribe said. “But it’s very specific that only people that go onto a state exchange are eligible for the subsidies. And if that becomes the ultimate holding of the U.S. Supreme Court, where this is likely to end up – that’s going to have massive practical implications for the administrability of Obamacare.”
“I don’t have a crystal ball,” Tribe said in discussing the law’s chances should it reach the Supreme Court for yet another critical review. “But I wouldn’t bet the family farm on this coming out in a way that preserves Obamacare.”
Tribe, whose new book, Uncertain Justice, takes a deep dive into the Roberts court, said the plaintiffs make a strong argument. The legislative language is clear, he said, that the subsidies apply to exchanges established by states. Yet in drafting the law, Tribe said the administration “assumed that state exchanges would be the norm and federal exchanges would be a marginal, fallback position” – though it didn’t work out that way for a plethora of legal, administrative and political reasons.
Holy Kalamazoo Batman! Tribe guessed right in the earlier ObamaCare case about his former law student upholding ObamaCare but now Tribe is um, like Elizabeth Warren in other ways, off the reservation by saying the law is “very specific” and possibly trying to open a shut door for Roberts to walk through:
Tribe suggested that the case will, like the individual mandate challenge before it, hinge on Chief Justice John Roberts’s decision. “He would be asking himself the hard question: ‘Is it so clear under existing law that it has to be construed in this literal and somewhat bizarre way . . . that subsidies or tax credits cannot be provided on the federal exchanges, or is it sufficiently ambiguous that it gives me the necessary legal wiggle room’ [to side with the administration once again?]” Tribe said.
Forbes contributor Jeffrey Dorman notes that a recent ruling in a case involving the Environmental Protection Agency could make it harder for Roberts to conclude that he has that wiggle room.
“The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice,” Justice Antonin Scalia wrote in an opinion that Roberts joined in full.
So Tribe thinks the law is “very specific” and also thinks the question for Roberts is “Is it so clear under existing law” – it’s almost as if Tribe is answering himself and making the case for Roberts – shutting, opening, then shutting the door again.
As Halbig goes big time, Judge Walton hit the IRS over the head today as he prepares to crush the IRS soon:
A federal judge Friday gave the IRS one week to hand over details on Lois Lerner’s crashed hard drive and how to track it, the second federal judge in as many days to seek more information about the elusive emails.
Judge Reggie Walton of the U.S. District Court of the District of Columbia ordered the the tax agency to find out by July 18 what happened to the crashed hard drive responsible for erasing two years worth of the former IRS official’s emails, including whether it’s traceable through a serial number.
If such information is gone, the judge wants an affidavit written under penalty of perjury by an IRS IT professional with “firsthand knowledge” of the situation. [snip]
Walton did not rule on the request for expedited discovery or injunction relief — both of which the government argued were not necessary.
Instead he ordered more information due by next Friday, including a rundown of TIGTA’s qualifications for the probe, a date when it will be completed and the qualifications of individuals who “previously conducted forensic examinations or otherwise attempted to recover information” from Lerner’s computer.
“I still would want to know the expertise of the individuals doing the investigation, and also why the hard drive can’t be identified,” Walton said.
It is unclear when Walton will rule on the potential of appointing an outside forensic specialist.”
“Now we’re cooking with peanut oil” as the Duck man says. For now, we’re staying on the sunny side of the street with galoshes on and an umbrella handy.
Update: Maybe our idea of a judicial branch/legislative branch coalition against the gangster executive branch will come to pass. Thus far there is no Halbig decision but there is much pertinent news. Consider – Public opinion of the Supreme Court has improved in the wake of the Hobby Lobby decision, particularly among independents. If the courts are afraid of a public backlash against taking on Obama gangster government they can feel a bit more at ease.
With an eye towards justice, not the polls, another court joins the fight. Federal judge to IRS: Explain these “lost” e-mails, please … under oath.
Later on Friday we will hear from yet another judge. Judge Reggie Walton will soon issue another decision/assault against the gangster government iron triangle – the Obama White House, the Holder Justice Department, and Obama congressional henchmen/hemchwoman (all aided by a corrupt Big Media).
Oh, and before any Obama race-baiters start spewing “lynch mob” or “raists!” against these potential John Sirica’s, both Judge Sullivan and Judge Walton are African-Americans.
So many Barack Obama caused disasters are raging through this land and the world it is quaint of us to focus on the Frankenstein monster still pillaging the nation – ObamaCare. Pardon us for not focusing today on the Obama gangster government disasters at the southern border of this country, Obama’s pals attacking Israel with rockets and commandos, VA illegalities and Va whistle-blower suppression, the Marine held in a Mexican prison, and the many other high crimes and misdemeanors, as well as the usual day-to-day treacheries and booberies of King Boob Obama I.
Today we take another walk on the sunny side of the street.
We are way overdue for a court decision on an ObamaCare case Halbig v. Sebelius that if successful would be equivalent to sawing through the axles of a covered wagon. The rickety contraption known as ObamaCare – thus far kept from collapse only by the gangster lawlessness of Barack Obama and his henchmen, might find itself without an axle to grind as early as this Thursday if and when the Federal District Appeals Court issues its decision.
Halbig v. Sebelius can be explained simply. In brief and in plain English, the printed letter of the ObamaCare law specified that subsides for individuals buying ObamaCare insurance must do so “through an Exchange established by the State under Section 1311”. Obama and his henchmen and henchwoman ignored that wording and declared that everyone, whether on the federal or state exchanges, would qualify for government subsidies.
If the Federal Appeals Court says that the letter of the law applies, that Obama cannot rewrite laws though rules and regulations, ObamaCare is deader than dead. Yes, Obama and his lawless henchmen will appeal that decision to a full panel of the appeals court and they will likely win in the full panel. But then the case would go to the Supreme Court with a victory notch in the belt.
Many will scoff that the Supreme Court will not rule against ObamaCare and their sturdy evidence is the contortions Chief Justice John Roberts underwent to pronounce the law “constitutional”. Without delving into whether it was Obama thuggery, or that ObamaCare really is not a mandate but a tax (a political argument Mitt Romney failed to exploit), or gay blackmail against Roberts, we/ve espoused a much more generous attitude towards the Chief Justice which many do not share but which leads us to believe that the Supreme Court will eventually send ObamaCare to a death panel.
Why do we think the above? A small part of our confidence is based on the post ObamaCare case decisions. Chief Justice Roberts has mustered unanimous decisions for more than half the decisions issued in the last term. Some of those unanimous decisions, such as the recess appointments opinion, have been disastrous for Obama’s lawless rule. When necessary, Roberts and the conservatives on the court have proven they will issue tough opinions. The Hobby Lobby ObamaCare decision is an example of the lessened temerity of the court’s conservative wing.
The main reason for our belief that the Supreme Court might cut the axles on the ObamaCare Conestoga is the strategic landscape on Halbig.
The strategic benefits of Halig v. Sebelius are that the ObamaCare collapse would be in slow motion not in one fell chop. In the big ObamaCare case which rescued ObamaCare by declaring it a tax Chief Justice Roberts was aware that a declaration by the Supreme Court that ObamaCare was unconstitutional would have meant the immediate sudden death of ObamaCare. The Supreme Court would have been the central issue in the 2012 presidential campaign and no doubt charges of racism and other lies would have been spat out by Obama and his thugs.
With Halig v. Sebelius the political trap is avoided. A slow death of ObamaCare after the November elections will deprive Obama of a new politically useful distraction from his myriad other catastrophes and prevent Obama from denouncing the Supreme Court for his nefarious political schemes.
There is also a matter of complexity. On the big ObamaCare case there were legal issues aplenty to consider such as the Anti-Injunction Act and Commerce Clause jurisprudence which to most American are difficult to understand. Not so with Halbig v. Sebelius:
Obamacare may have its problems, including more bugs than you can find in the cornfields of Nebraska, but its legal worries were meant to end after the Supreme Court upheld the individual mandate, the heart of the Affordable Care Act. [snip]
“This is literally the simplest case I’ve ever had in 30 years of practicing law,” Carvin said at a Cato event this summer. “No one but a lawyer could seriously stand up here and tell you that north means south, black means white and state means federal. And all you need to do is read the statute and know that that is what the law is.” [snip]
Defenders of the law argue that the phrase “established by the State under section 1311” does not exclude federally-run marketplaces. Their legal argument is simple: the law defines an “Exchange” as established by the state, then orders the federal government to establish the exact same exchange, denoted as “such Exchange,” if a state fails to act. In other words, it authorizes the government to act as the state and set up an exchange as it is defined in section 1311. Whether a particular section of the law references an “Exchange” or an “Exchange established by the state” is the same thing as referring to the law variously as the “Affordable Care Act” and “Obamacare,” two terms with identical meaning, because a federally-run exchange is, for the purposes of the law, the same as a state-run exchange.
While it is true that the Supreme Court provides great leeway for agencies to implement laws as they see fit the question remains as to whether the subsidies are meant only for state exchanges. The plaintiffs in Halbig should easily demonstrate that Congress meant to induce the states to establish ObamaCare exchanges with the sweetener of subsidies denied to the federal exchange. The implications are enormous:
In a nutshell, plaintiffs in the case Halbig v. Sebelius claim those often-valuable subsidies are illegal because the Affordable Care Act only authorized such tax credits for people who bought insurance through one of the exchanges originally set up by an individual state or the District of Columbia—not the federal exchange. Nearly 90 percent of the people who enrolled in plans via the federal exchange qualified for those subsides because they had low or moderate incomes.
Take away those subsidies and many, if not most, of the enrollees on HealthCare.gov might not buy insurance next year because they will find it unaffordable at the full premium price. That, in turn, could create a much-feared “death spiral,” where insurance pools have too many sick enrollees and not enough young healthy ones, and premium rates skyrocket. [snip]
And if those subsidies are not available to individuals in the states served by HealthCare.gov, it would also mean that businesses in those states could not be mandated starting next year to offer affordable health insurance to their workers or pay a fine. That’s because the so-called employer mandate is linked to the availability of those subsidies for workers who opt to buy individual insurance.
Thirty-four states have refused to foist the ObamaCare scam on their citizens so an adverse decision on Halbig will have massive impact. No matter how much ObamaCare supporters deride Halbig, it is a serious lawsuit which most Americans can understand:
So, the IRS rode to the rescue. It wrote a regulation that, despite the provisions in the ACA itself, provided a subsidy for all income-qualified purchasers, even those on federally-run exchanges. A result is that an employer could face a substantial new tax if just one employee receives a federal subsidy, even if the employer’s state has chosen not to set up an exchange. And the states would no longer have an incentive to run an exchange since residents would receive federal subsidy on federally-run exchanges.
This seems pretty straightforward: There are two types of exchanges under the ACA, one established by states, and another established by the federal government. The statute only authorizes subsidy on state-run exchanges.
The piano players in the ObamaCare whorehouse are worried about an adverse ruling:
“If the legislation is just stupid, I don’t see that it’s up to the court to save it,” Judge A. Raymond Randolph said during oral arguments in March.
Randolph, a George H.W. Bush appointee, said the text of the statute “seems perfectly clear on its face” that the subsidies are confined to state-run exchanges. Carter-appointed Judge Harry T. Edwards slammed the challengers’ claims as “preposterous.” So the deciding vote appears to be with George W. Bush-appointed Judge Thomas B. Griffith, who wasn’t resolute but sounded unconvinced of the Obama administration’s defense, saying it had a “special burden” to show that the language “doesn’t mean what it appears to mean.”
Turley said, “If this case were decided on the basis of the statutory language, the advantage goes to the challengers. If the court is willing to broaden its interpretation then the administration may have an edge. It depends entirely on how the panel structures its analysis.”
If the three judge panel decides based on the language of the law and thereby guts ObamaCare, ObamaCare defenders will go to the full appeals panel (7 Democrats, 4 Republicans). Barack Obama has appointed four of the eleven judges on this panel during his second term – which demonstrates he is worried about this decision and that is why he instructed Harry Reid to destroy the Senate rules on the filibuster.
Most state health insurance rates for 2015 are scheduled to be approved by early fall, and most are likely to rise, timing that couldn’t be worse for Democrats already on defense in the midterms.
ObamaCare is in a death spiral already but Halbig might be the pillow over the face that finishes it off. And Halbig is about much more than just ObamaCare. Remember all that stuff in our first paragraph we said we weren’t writing about today? Halbig is about all of them in a way. Jonathan Turley sees it that way too:
In crafting the act, Congress created incentives for states to set up health insurance exchanges and disincentives for them to opt out. The law, for example, made the subsidies available only to those enrolled in insurance plans through exchanges “established by the state.” [snip]
The administration attempted to solve the problem by simply declaring that even residents of states without their own exchanges were eligible for subsidies, even though the law seemed to specifically say they were not. [snip]
But the D.C. Circuit Court may see things quite differently, especially in light of recent Supreme Court opinions holding that the Obama administration has exceeded its authority and violated separation of powers.
In Michigan vs. Bay Mills Indian Community, for example, Justice Elena Kagan noted that “this court does not revise legislation … just because the text as written creates an apparent anomaly as to some subject it does not address.” In Utility Air Regulatory Group vs. EPA, Justice Antonin Scalia, writing for the majority, stressed that “an agency has no power to tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” And a third strike came last week in National Labor Relations Board vs. Canning, when the Supreme Court unanimously found that President Obama had violated the Constitution in circumventing Congress through his use of recess appointments.
The D.C. Circuit Court is expected to rule any day now on the Halbig case, and supporters of the Affordable Care Act are growing nervous. In January, an Obamacare advocate described the Halbig case to a reporter for the Hill as “probably the most significant existential threat to the Affordable Care Act. All the other lawsuits that have been filed really don’t go to the heart of the ACA, and this one would have.” And in a fraught oral argument before the D.C. Circuit Court, the administration seemed to struggle to defend its interpretation.
Halbig is an opportunity for the courts and the judicial branch to lock arms with Congress, the legislative branch in opposition to Barack Obama and the Chicago gangster lawlessness he represents and imported to the nation’s capital.