Tag: aca

What’s Next in the Obamacare Litigation?

My colleagues and I have covered the substance of the Eleventh Circuit ruling that two weeks ago struck down the individual mandate, but where do we go from here?  Why hasn’t the Supreme Court yet resolved the conflict between that ruling and the Sixth Circuit’s from earlier in the summer?  When will it do so?  A few points:

  1. The government is now likely to seek en banc review, meaning that they want the entire 10-judge court to review the 3-judge panel’s ruling.  It’s extremely unlikely that the Eleventh Circuit would grant such a motion because the panel is already 2-1 against and the members of the court not on the panel are a 4-3 Republican-appointed majority.  You need a majority (6 of 10) to get en banc review, which means the dissenting Judge Stanley Marcus from the panel, plus the three other Democratic appointees, plus two others.  Not gonna happen.  Thus, a government motion for en banc rehearing would be a purely political ploy to push the eventual Supreme Court decision past the election – no legal reason to do it. The release of the decision not to grant en banc review (which doesn’t require a written opinion) could be delayed, however, by the writing of a dissent from that denial.
  2. The earliest the Supreme Court could grant cert – on the existing petition out of the Sixth Circuit – is the moment after this blogpost goes live.  (Note that Cato adjunct scholar Tim Sandefur filed an amicus brief supporting that petition for the Pacific Legal Foundation, which brief he describes here.)  More realistically, it would be the week before the term opens for argument in October, right after the so-called long conference, when the justices review and rule on all the petitions that have come in over the summer. But they’ll likely wait to get the Eleventh Circuit case because they’d probably rather hear from the 26 states (and their counsel, former solicitor general Paul Clement) than any other plaintiffs. Here’s where it gets interesting: Assuming the government asks for en banc review, the plaintiffs could still file their own cert petition because they lost on severability and the Medicaid-coercion issue. Stay tuned.
  3. I still think this will get to the Court this term one way or another, with argument in the spring and a decision the last week of June.
  4. No stay of the Eleventh Circuit’s ruling is needed because the individual mandate doesn’t go into effect until 2014 and that’s the only provision that’s been struck down. So we don’t need to go into the type of analysis we did after Judge Vinson’s decision about what the federal government is authorized to do to keep implementing the legislation, in the 26 states or generally.

For more analysis, largely based on the above, see Jennifer Rubin’s Washington Post blog.

An Unprecedented Expansion of Federal Power

That’s how I describe the individual mandate in my contribution to SCOTUSblog’s online symposium on Obamacare, which Trevor Burrus has already highlighted.  Here’s an excerpt:

All the Obamacare legal challenges boil down to Congress’s authority – or lack thereof – to require people to buy private insurance.  Although unfortunately not dispositive of modern judicial decisions, the text of the Constitution demands that the Supreme Court strike down the individual mandate as an unconstitutional exercise of Congress’s power to regulate interstate commerce.  Finding the mandate constitutional would be the first interpretation of the Commerce Clause to permit the regulation of inactivity – in effect requiring an individual to engage in an economic transaction.

Moreover, upholding Obamacare would grant the federal government wide latitude to mandate that Americans engage in activities of its choosing.  An expansive holding here would fundamentally alter the relationship between the government and the people.  If the challenges fail, there will be no principled limits on federal power.

I go on to describe the current state of play at the appellate and outline what we can expect going forward, as well as providing links to useful resources on this issue.  Read the whole thing.

Likely Voters Oppose ObamaCare by Nearly a 20-Point Margin

It has been a while since I generated a Pollster.com chart showing support/opposition to ObamaCare among only likely voters, so here goes.

Note that a majority of likely voters oppose ObamaCare, and that opposition exceeds support by nearly 20 percentage points.  That’s compared to a 10-point spread among all adults.

ObamaCare: a Federal Takeover, No Matter Who Runs the Exchanges

Merrill Goozner read my article in the March 21 National Review, in which I argue that states should refuse all ObamaCare funds and refuse to erect an ObamaCare Exchange that would execute the law’s many health-insurance regulations. Since ObamaCare provides that the feds will set up and administer an Exchange in states that don’t do so themselves, Goozner concludes that I’m actually advocating a federal takeover of health care. Really?

Goozner either completely missed the point of my article, which I sort of doubt, or he’s trying to be cute.  Let’s assume it’s the former.

As I explain in that article, under ObamaCare the feds will write all the rules governing health insurance, so who administers the Exchanges is well-nigh irrelevant. ObamaCare is a federal takeover of health care, no matter who runs these new government bureaucracies that we call health insurance Exchanges.

Then again, there is reason to suspect that Goozner is just trying to be cute. ObamaCare apologists know that if states stop implementing the law, it will be easier for Congress to repeal it or for the Supreme Court to strike it down.  They know that if states don’t set up their own Exchanges, HHS may not be able to set them up itself, which would jeopardize the federal government’s ability to start doling out ObamaCare’s hundreds of billions of dollars in new debt-financed entitlement spending in 2014.  So it makes sense to attack or ridicule me for suggesting that states should obstruct ObamaCare because he suspects that could bring the whole miserable operation down.  But surely Goozner can come up with something more plausible than  suggesting that I’m advocating a federal takeover of health care.

Mitch Daniels and ObamaCare, Round Two

In a March 4 article for National Review Online titled, “Mitch Daniels’s Obamacare Problem,” I explain how Indiana Gov. Mitch Daniels (R) is undermining the effort to repeal ObamaCare, and how he might do even more damage to that movement as the Republican nominee for president.  My article came under fire from Daniels’ policy director Lawren Mills (in the comments section of my article), Grace-Marie Turner of the Galen Institute, and Bob Goldberg of the Center for Medicine in the Public Interest.

Today, NRO runs my response.  An excerpt:

In brief, the trio believes that Daniels’s expansion of government-run health care is a conservative triumph. I can’t believe we’re even having this conversation…

Daniels has an ObamaCare problem that could hurt the repeal movement if he doesn’t deal with it. Turner is creating more ObamaCare problems. This isn’t the first time conservatives have danced with the devil on health-care questions (see Massachusetts), but with health-care freedom now at its moment of maximum peril, that needs to stop. It will probably, however, take more than just the usual voices of protest to stop it. Tea Party and traditional conservative groups should perhaps spend less time attacking congressional Republicans over relatively minor tactical disagreements, and more time educating the governors, state legislators, and (yes) policy wonks who are actively implementing ObamaCare in their own backyards.

I’ll be speaking tonight at a Capitol Hill event sponsored by the Galen Institute (among others).

What on Earth Is Ezra Klein Talking about?

The Washington Post’s Ezra Klein writes:

It’s put-up-or-shut-up time for Republicans. They managed to make it through the health-care debate without offering serious solutions of their own, and - perhaps more impressive - through the election by promising to tell us their solutions after they’d won. But the jig is up. They need a health-care plan - and quickly.

The GOP knew this day would come.

Say what?  Exactly what political factors are forcing the GOP to put up or shut up?  Their base is happy; it wants an all-out assault on ObamaCare, and congressional Republicans are giving it to them.  Republicans are even winning the ObamaCare debate among the broader public:

So why should Republicans all of a sudden stop attacking ObamaCare and start talking about their own refor–ohhhh…I see.  Klein is trying to talk the dog off the meat wagon.  Good luck with that.

So This Is Freedom? They Must Be Joking.

That’s the title of my latest Kaiser Health News column, which addresses President Obama’s offer to accelerate the waiver process that would allow states to replace many of ObamaCare’s most offensive provisions:

If you think that means the president was himself exhibiting flexibility, you would be wrong. Despite the rhetoric about compromise, what the president actually did was offer states the option of replacing his law with a single-payer health care system three years earlier than his law allows…

HHS Secretary Kathleen Sebelius has written that ObamaCare gives states “incredible freedom” to implement the law. We now know what she meant: states are free to coerce their residents even more than ObamaCare requires. What’s incredible is that she calls that freedom.

Apologies to to the Housemartins.