Tag: aca

How ObamaCare’s Victories Count Against It In Sissel v. HHS

Randy Barnett has an excellent post at the Volokh Conspiracy about his recent amicus brief requesting the D.C. Circuit grant en banc review of Sissel v. HHS. (Sound familiar?Sissel challenges the constitutionality of ObamaCare’s individual mandate – which the Supreme Court ruled could only be constitutional if imposed under Congress’ taxing power – on the grounds that this, ahem, tax originated in the Senate rather than the House, as the Constitution’s Origination Clause requires.

A three-judge panel of the D.C. Circuit ruled against Sissel. The panel’s rationale was that the Patient Protection and Affordable Care Act was not the sort of “Bill[] for raising revenue” that is subject to the Origination Clause, because the purpose of the PPACA is to expand health insurance coverage, not to raise revenue. Barnett explains why this reasoning is nutty. Under the Sissel panel’s ruling, no bills would ever be considered revenue measures because all revenue measures ultimately serve some other purpose.  The panel’s interpretation would therefore effectively write the Origination Clause out of the Constitution. Barnett argues instead that the courts must recognize the PPACA as a revenue measure subject to the Origination Clause because the Supreme Court held the taxing power is the only way Congress could have constitutionally enacted that law’s individual mandate.

A shorter way to describe Barnett’s argument is that he turns ObamaCare supporters’ own victory against them: “You say the individual mandate is constitutional only as a tax? Fine. Then it’s subject to the Origination Clause.”

Barnett again corners the D.C. Circuit with another sauce-for-the-gander argument on the procedural question of whether that court should grant en banc review of its panel decision in Sissel:

Of course, en banc review is rarely granted by the DC Circuit, but given that it recently granted the government’s motion for en banc review of the statutory interpretation case of Halbig v. Burwell presumably because of the importance of the ACA, the case for correcting a mistaken constitutional interpretation is even more important, especially as the panel’s reasoning has the effect of completely gutting the Origination Clause from the Constitution…

Or, the shorter version: “You guys think Halbig is worthy of en banc review? Fine. If the Sissel panel erred, the downside is even greater.”

We’ll see whether the D.C. Circuit thinks the Constitution is as worthy of its protection as ObamaCare.

(Cross-posted at my comment-friendly blog, Darwin’s Fool.)

Cato Conference: “Pruitt, Halbig, King & Indiana: Is ObamaCare Once Again Headed to the Supreme Court?”

On October 30, the Cato Institute will host a conference featuring leading experts on four legal challenges that critics understandably yet mistakenly describe as “the most significant existential threat to the Affordable Care Act”:

PruittHalbigKing & Indiana: Is ObamaCare Once Again Headed to the Supreme Court?

Thursday, October 30, 2014, 9:00AM – 1:30PM. 

Luncheon to follow.

Featuring: Oklahoma Attorney General Scott Pruitt; Indiana Attorney General Greg ZoellerRobert BarnesThe Washington PostJonathan Adler, Case Western Reserve University School of Law; David Ziff, University of Washington School of Law; Brianne Gorod, Constitutional Accountability Center; James Blumstein, Vanderbilt University; Michael F. Cannon, Cato Institute; Len Nichols, George Mason University; Tom Miller, American Enterprise Institute; and Robert Laszewski, Health Policy and Strategy Associates, LLC.

In Pruitt v. Burwell and Halbig v. Burwell, federal courts have ruled that the Internal Revenue Service is misinterpreting the Patient Protection and Affordable Care Act, unlawfully paying billions of dollars to private health insurance companies, and unlawfully subjecting more than 50 million individuals and employers to the Act’s individual and employer mandates. In King v. Burwell, another federal court found the IRS’s interpretation is permissible. A fourth lawsuit, Indiana v. IRS, is due a ruling at any time.

While these cases attempt to uphold the ACA by challenging the Obama administration’s interpretation, supporters and critics agree they could have as large an impact on the law as any constitutional challenge. Is the IRS acting within the confines of the law? Is the ACA unworkable as written? Is it inevitable that the Supreme Court will hear one of these cases, or a similar challenge yet to be filed? What is the impact of the IRS’s (mis)interpretation? What impact would a ruling for the plaintiffs have on the health care sector and the ACA? Leading experts, including the attorneys general behind Pruitt v. Burwell and Indiana v. IRS, will discuss these and other dimensions of this litigation.

To register to attend this event, click here and then submit the form on the page that opens, or email events [at] cato [dot] org, or fax (202) 371-0841, or call (202) 789-5229 by 9:00 a.m. on Wednesday, October 29, 2014.

Pruitt v. Burwell: A Victory for the Rule of Law

From Darwin’s Fool:

The U.S. District Court for the Eastern District of Oklahoma handed the Obama administration another – and a much harsher — defeat in one of four lawsuits challenging the IRS’s attempt to implement ObamaCare’s major taxing and spending provisions where the law does not authorize them. The Patient Protection and Affordable Care Act provides that its subsidies for private health insurance, its employer mandate, and to a large extent its individual mandate only take effect within a state if the state establishes a health insurance “Exchange.” Two-thirds (36) of the states declined to establish Exchanges, which should have freed more than 50 million Americans from those taxes. Instead, the Obama administration decided to implement those taxes and expenditures in those 36 states anyway. Today’s ruling was in Pruitt v. Burwell, a case brought by Oklahoma attorney general Scott Pruitt.

These cases saw two appellate-court rulings on the same day, July 22. In Halbig v. Burwella three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ordered the administration to stop. (The full D.C. Circuit has agreed to review the case en banc on December 17, a move that automatically vacates the panel ruling.) In King v. Burwell, the Fourth Circuit implausibly gave the IRS the thumbs-up. (The plaintiffs have appealed that ruling to the Supreme Court.) A fourth case, Indiana v. IRS, brought by Indiana attorney general Greg Zoeller, goes to oral arguments in federal district court on October 9.

Today, federal judge Ronald A. White issued a ruling in Pruitt that sided with Halbig against King, and eviscerated the arguments made by the (more senior) judges who sided with the government in those cases…

Read the rest.

Halbig v. Burwell: House Oversight Committee Subpoenas IRS

This was a long time coming.

Those who follow Halbig v. Burwell and similar cases know the IRS stands accused of taxing, borrowing, and spending billions of dollars contrary to the clear language of federal law. The agency is quite literally subjecting more than 50 million individuals and employers to taxation without representation.

Congressional investigators have been trying to figure out how the IRS could write a rule that so clearly contradicts the plain language of the Patient Protection and Affordable Care Act. Unfortunately, the agency has been largely stonewalling their efforts to obtain documents relating the the development of the regulation challenged in the Halbig cases.

Fortunately, finally, last week the House Committe on Oversight and Government Reform used its subpoena power to demand the IRS turn over the documents that show what whent into the agency’s decision.

We’ll see if the IRS complies, or if another of the agency’s hard drives conveniently crashes.

I’ve got a fuller write-up over at Darwin’s Fool.

ObamaCare Exchanges Recklessly, Often Unlawfully, Throwing Taxpayer Money At Health Insurance Companies

Robert Laszewski, health policy wonk, blogger, and president of Health Policy and Strategy Associates, tells Inside Health Insurance Exchanges:

The Obama administration has no idea how many people are currently enrolled [in exchanges] but they keep cutting checks for hundreds of millions of dollars a month for insurance subsidies for people who may or may not have paid their premium, continued their insurance, or are even legal residents.

And if you think they’re doing those “enrollees” a favor, remember that if it turns out a recipient wasn’t eligible for the subsidy, he or she has to pay the money back.

Surprised? Don’t be. This is part of a deliberate, consistent strategy by the Obama administration to throw money at individual voters and key health care industry groups—lawfully or not—to buy support for this consistently unpopular law.

The D.C. Circuit Grants En Banc Review of Halbig

My reaction to the D.C. Circuit’s decision to grant en banc review of Halbig v. Burwell in a nutshell:

  1. It is unnecessary.
  2. It is unwise.
  3. It is unfortunate.
  4. It appears political, as would a decision to overrule Halbig.
  5. It will likely only delay Supreme Court review.
  6. En banc review does not necessarily mean the court will overturn Halbig, though it doesn’t look good.
  7. I predict that even if the court overturns Halbig, the Obama administration will lose ground.
  8. The D.C. Circuit will not have the last word.

If you want to go outside the nutshell, where I unpack all this with more words and facts and links, go here

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