Our regular readers will not be surprised because we predicted so much of it. While the world burns, Obama golfs and vacations, and the American Southern border is as open and free as an Obama work schedule, let’s discuss Halbig and other Obama health scam related stories.
Our regular readers will recall our last Halbig article in which we made several predictions. We noted that ObamaCare “architect” Jonathan Gruber is a great help to ObamaCare opponents. We predicted that Gruber’s comments will be, either through judicial notice or part of the record, introduced by ObamaCare opponents into the judicial record.
We have been proven correct. Plaintiffs in an Oklahoma ObamaCare case have moved to supplement the record with Jonathan Gruber’s helpful comments and history. For our non-regular readers, here is a video hilarity of Gruber’s helpful comments for ObamaCare opponents:
Our Gruber prediction was not very daring. It was obvious. Less obvious at the time to all but us here at Big Pink was the good fortune of that Fourth Circuit pro-ObamaCare decision that came in two hours after the D.C. Circuit cut the guts out of ObamaCare. Our prediction? We predicted that the Fourth Circuit plaintiffs would race to the Supreme Court and skip the en banc stopover. Result? We are right again.
The Fourth Circuit plaintiffs could have asked the full panel of the Fourth Circuit to take up the case and therefore tie themselves down alongside the ObamaCare plaintiffs in the D.C. Circuit where the ObamaCare scam artists ask the full en banc court panel to take up the case. ObamaCare lawyers, it was widely presumed, would appeal their loss in D.C. to the full en banc panel which is packed with Obama appointed judges after Harry Reid destroyed the Senate and its filibuster rules. The likelihood was (although this was before Jonathan Gruber’s comments came to light) that the full D.C. panel would uphold ObamaCare and thereby end the “split” decisions in the circuits making it less likely that the Supreme Court would take up the ObamaCare HalBIG cases.
But we suspected and predicted that the Fourth Circuit plaintiffs would skip the full panel in the Fourth Circuit and instead go directly to the Supreme Court. This they did and we go to the head of the class.
On Friday, August 1, pro-ObamaCare lawyers, as predicted by most, filed their appeal for an en banc hearing before the entire D.C. Circuit panel. On July 31, however, the plaintiffs in the Fourth Circuit made their move. The “losers” in the Fourth Circuit beat the D.C. “winners” to the Supreme Court.
The writ to the Supreme Court by the Fourth Circuit plaintiffs cites their new pal “architect” Jonathan Gruber:
The petition to the Supreme Court cites recently-uncovered videos of Obamacare’s chief architect Jonathan Gruber in which he appears to support the position that subsidies were intended for state-run exchanges only.
For his part, Gruber, who has signed onto an amicus brief which supports the Obama administration’s position, claims both incidents were simply a “speak-o, like a typo.” But supporters of the interpretation that subsidies are meant to go to state exchanges only have pointed out that not only did Gruber suggest that the text of the law states subsidies are only for state exchanges, but he also provided an argument for why Congress would have done so.
“That is really the ultimate threat,” Gruber said at a 2012 event, “will people understand that gee, if your governor doesn’t set up an exchange, you’re losing hundreds of millions of dollars in tax credits to be delivered to your citizens. So that’s the other threat, is will states do what they need to do to set it up.”
Gruber’s opinion is cited in the petition as all the more reason that the Supreme Court should take the case.
As we predicted the timing was the interesting aspect:
Under the court’s rules, lawyers who lose in an appeals court have 90 days to seek a review in the Supreme Court. And normally, lawyers take the full time. But in this instance, the opponents of the Affordable Care Act want the court’s conservative justices to have a chance to take up the new healthcare case in a few months so they can rule by next spring.
The Obama administration has the opposite strategy on timing. The Justice Department said it planned to ask the full appeals court in the District of Columbia to reconsider last week’s ruling by a three-judge panel. If so, that could delay a final ruling from the appeals court until next year and push off a Supreme Court decision to 2016.
By then, millions of Americans will have relied for several years on having health insurance they could afford thanks to the subsidies. A single adult with an income up to $45,960 and a family of four with an income up $94,200 may obtain insurance on an exchange at a reduced cost.
We’ll address the issue of hooking Americans to ObamaCare subsidies as a political strategy below. We’ve already addressed why this line of HalBIG cases can be successful politically for the courts and that the Supreme Court will see that these ObamaCare cases are best settled outside the 2016 (and 2014) election window. Obama of course wants to attack the Supreme Court in an election year just like he so successfully used that timing to his advantage in 2012.
The Writ Of Certiorari filed so quickly, not waiting 90 days, comports with the strategy we have espoused of avoiding as much as possible an election year fight which will fill Chief Justice Roberts with angst. A non-election year ruling right after the November 2014 elections but well before 2016 is just what Roberts needs to calm his nerves.
ObamaCare opponents quoting ObamaCare architect Jonathan Gruber in court documents and the speedy run to the Supreme Court is tasty enough. But there is icing for that already delicious cake.
The dollops of icing come from ObamaCare supporters in Big Media fighting a scorched earth, last ditch attempt to salvage ObamaCare. Greg Sargent provided the laughs in a defense of ObamaCare that was so hapless, so stupid, so inept, it must have been ghost written by Barack himself not the half-wit Greg. The title for that idiotic counter-productive article is “Senate documents and interviews undercut ‘bombshell’ lawsuit against Obamacare“.
Far from undercutting the anti-ObamaCare lawsuits, Sargent is as helpful as Jonathan Gruber to the forces against the ObamaCare scam. The self-described “morons” at Ace of Spades demolished Sargent:
Let’s pause for a moment and savor that headline on its own for the spectacular own-goal carnage that’s about to follow.
Sargent’s argument, summarized, is that of course Congress meant all along for the ACA to offer subsidies on both the state and Federal exchanges, and intent only got muddled when two separate versions of the ACA legislation (one coming out of the Senate Finance Committee and one coming out of the Health, Education, Labor & Commerce Committee) were awkwardly and imperfectly merged.
There is so much that is wrong with Sargent’s legal reasoning here that it’s hard to know where to start. We’ll go with the money shot, I guess.
1) The first Senate version of the health law to be passed in 2009 — by the Health, Education, Labor and Pensions Committee — explicitly stated that subsides would go to people on the federally-established exchange. A committee memo describing the bill circulated at the time spelled this out with total clarity.
I could stop right here. In fact, I will. And so would the courts, if we were dealing with a less politicized piece of legislation.
Sargent just helpfully informed us that an earlier version of the ACA — not a draft, mind you, but one that was actually passed out of committee — included explicit language granting subsidies to people on federal exchanges, language that was later dropped from the final bill.
If Sargent had been an attorney rather than a layman, this is the point where he would have hit “delete” on his draft post and forgotten all about it.
One of most fundamental rules of statutory interpretation used by courts when they are asked to discern legislative intent from ambiguous statutory language is this: if explicit language was in an earlier version of a bill but dropped from the final version, the court will treat that as proof it was removed on purpose. [snip]
Similarly, the argument advanced by the Left (and Sargent) that “of course the ACA intended all along for subsidies to cover federal exchanges!” is runs squarely onto the rocks of this earlier language. Thanks to Sargent’s crack reporting we have now confirmed that earlier iterations of the ACA specifically granted subsidies to federal exchanges…but that, for whatever reason, this language was later stripped from the bill.
The subsequent blathering about “why” this language fell out of the bill (“drafting errors,” you see) is immaterial as far as the Court is concerned, and this is apparently what Sargent doesn’t seem to realize; in a case where the wording of the statute is otherwise clear, the Court’s inquiry will stop cold right here — or at least it should. [snip]
This is not a fringe theory. This is not a novel legal argument. There’s a reason that canons of construction are called “canons,” after all. And of all the canons of statutory construction, “few are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that has earlier discarded in favor of other language.”
(Don’t take my word for it: that last quote is from the Supreme Court in INS v. Cardozo-Fonseca (1987).)
And the fact that Greg Sargent could blithely drop, in the midst of an attempt to shore up the Left’s “legislative intent” argument, a bombshell that utterly devastates that very argument’s legal chances in court without even realizing it is a mighty example of the Dunning-Kruger effect in action.
I, for one, thank him for his efforts in assisting with the legal case against Obamacare.
Greg Sargent’s ghost writer better go back to law school or at least read up on basic law in the internets. Greg Sargent is not alone in his self-immolation as Sean Davis brutally documents in “Halbig Shows How Leftist Wonks Just Aren’t Very Good At Their Jobs”:
Another day, another liberal wonkblogger contradicting the government’s position in the Halbig case. First we had Jonathan Gruber demonstrating that the plaintiff’s case in Halbig was quite plausible. Then we had Jonathan Gruber demonstrating that the plaintiff’s case in Halbig was quite plausible…again. Then we had Greg Sargent unwittingly demonstrating that the plaintiff’s case in Halbig wasn’t only plausible, but quite likely.
Today, thanks to Phil Kerpen of American Commitment, we have Jonathan Cohn, one of the Left’s foremost experts on Obamacare, contradicting himself and demonstrating that the plaintiff’s case in Halbig was plausible:
We’ll spare you from reading the destruction of “leading experts on health care policy” ObamaCare supporters like Brian Beutler, Ezra Klein, and Jonathan Cohn. Read the entire brutal story for yourself.
Instead of lambasting the “juicebox crowd” of ObamaCare supporters, let’s listen to a grizzled ObamaCare supporter that was in Congress. Yup, we mean Barney Frank interviewed by Huff n’ Puff:
“The rollout was so bad, and I was appalled — I don’t understand how the president could have sat there and not been checking on that on a weekly basis,” Frank told HuffPost during a July interview. “But frankly, he should never have said as much as he did, that if you like your current health care plan, you can keep it. That wasn’t true. And you shouldn’t lie to people. And they just lied to people.”
“He should have said, ‘Look, in some cases the health care plans that you’ve got are really inadequate, and in your own interests, we’re going to change them,’” Frank said. “But that’s not what he said.”
Why tell a big lie when Barack Obama can tell a huge lie? Barack Obama rather tell a whopper than just a run of the mill big lie. And that ObamaCare website rollout? Yeah, that cost the taxpayer, thus far, $840 million. $840 MILLION! Now we know how much waste is necessary to appall Barney Frank.
Have the billions wasted on ObamaCare been worth it? At the New York Times an Obama voter and ObamaCare supporter feels duped:
Last week, Salwa Shabazz arrived at the office of a public health network here with a bag full of paperwork about her new health insurance — and an unhappy look on her face. She had chosen her plan by phone in March, speaking to a customer service representative at the federal insurance marketplace. Now she had problems and questions, so many questions.
“I’ve had one doctor appointment since I got this insurance, and I had to pay $60,” Ms. Shabazz told Daniel Flynn, a counselor with the health network, the Health Federation of Philadelphia. “I don’t have $60.”
Mr. Flynn spent almost two hours going over her Independence Blue Cross plan, which he explained had a “very complicated” network that grouped doctors and hospitals into three tiers. Ms. Shabazz, who has epilepsy, had not understood when she chose the plan that her doctors were in the most expensive tier.
“None of that was explained when I signed up,” she said. “This is the first I’m hearing it.” [snip]
In one sign of widespread confusion, a recent Kaiser Family Foundation survey of programs that helped people apply for marketplace coverage found that 90 percent had already been re-contacted by consumers with post-enrollment questions. [snip]
Ms. Shabazz, 38, paid only about $32 a month in premiums, with federal subsidies of $218 covering the rest. But she could not afford the $60 co-payments to see her specialists on her annual income of $19,000.
Her financial situation worsened when she had to quit her job at the Pennsylvania Liquor Control Board in June because of the epilepsy, she said. She had called the federal marketplace to report her change in income, and had received a letter that she handed to Mr. Flynn, hoping he could explain it. The news, he said, was not good: With no more paychecks, she had fallen into the so-called coverage gap, earning too little to keep qualifying for the subsidies that made her premiums affordable, but likely still not qualifying for Medicaid because Pennsylvania has not expanded that program, as 26 states have under the Affordable Care Act.
“You’ll probably have to cancel your plan,” he said.
Ms. Shabazz’s mother, Waheedah Shabazz-El, who had accompanied her to the appointment, shook her head as her daughter wiped away tears. “There are so many layers to this,” Ms. Shabazz-El said.
Ms. Shabazz said she was relieved to finally figure out her plan, even though she would not be keeping it. “I have a much clearer understanding now,” she said. “But I’m still kind of sad. I’m worried.”
Yup, we predicted this too. A lot of ObamaCare supporters thought they would get an ObamaCare card and then treated like the Shah of Iran or Warren Buffet (the example we cited in 2012). Instead they are now learning about the scam called ObamaCare and high deductibles and high premiums. And those are the lucky ones – the poor ones. The Middle Class suckers will be bled dry for nothing. Which is why:
After remaining steady for several months, the share of the public expressing an unfavorable view of the health care law rose to 53 percent in July, up eight percentage points since last month’s poll. This increase was offset by a decrease in the share who declined to offer an opinion on the law (11 percent, down from 16 percent in June), while the share who view the law favorably held fairly steady at 37 percent, similar to where it’s been since March.1 Republicans continue to be the group with the strongest opposition to the law, but the increase in the share with an unfavorable view between June and July was similar across the political spectrum and different demographic groups.
It’s gonna get worse unless the Supreme Court steps up and steps on this cockroach.