Tag: Michael Carvin

Michael Carvin on Halbig v. Sebelius

Michael Carvin is the lead attorney in Halbig v. Sebelius, a legal challenge that various media report “could tear down major pieces of ObamaCare” or even “sink ObamaCare.”

Carvin will be discussing Halbig at a Cato policy forum on the case this coming Monday, June 17. Register to attend here.

Here he is discussing the case on Cavuto last month:

Plaintiffs Ask Court to Block IRS’s Illegal ObamaCare Taxes this Year

I have blogged about the Internal Revenue Service’s attempt to tax, borrow, and spend $800 billion contrary to the clear language of ObamaCare, and how both Oklahoma (in Pruitt v. Sebelius) and a group of individuals and small businesses (in Halbig v. Sebelius) have filed suit to block this raw power grab. The Congressional Research Service writes that these challenges “could be a major obstacle to the implementation of [ObamaCare].” George Mason University law professor Michael Greve writes:

This is huge: all of Obamacare hangs on the outcome…If successful…[either] case will bring Obamacare’s Exchange engine to a screeching halt…In short, this is for all the marbles.

Last week, the Halbig plaintiffs asked the U.S. district court for the District of Columbia to speed things up. Though the IRS doesn’t have to respond to the Halbig complaint until July, the plaintiffs filed a motion for summary judgment asking the court to rule on the case before the end of 2013. According to the plaintiffs:

Plaintiffs need a determination on the merits far enough in advance of January 1, 2014, to allow them to conform their behavior to the law. Because the validity of the regulation turns on a purely legal question and the administrative record is closed, Plaintiffs are moving for summary judgment now, and hope thereby to avoid the need to litigate a motion for preliminary injunction or temporary restraining order at the eleventh hour.

The plaintiff’s motion for summary judgment cites my paper (with Jonathan Adler), “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA.”

On June 17, one week from today, Cato will host a policy forum on Halbig v. Sebelius featuring plaintiffs’ counsel Michael Carvin and other luminaries. Register here.

Big Out-of-Control Government Has Had Better Days at the Supreme Court

This morning at the Supreme Court, the federal government argued for the continued existence of the Public Company Accounting Oversight Board (PCAOB, pronounced peek-a-boo) – and by extension the nefarious financial regulatory scheme known as Sarbanes-Oxley.  Cato filed a brief supporting a free market advocacy group and an accounting firm, who sued PCAOB for violating both the Appointments Clause and general constitutional separation-of-powers principles.

Passed with scant deliberation in the wake of the Enron and WorldCom scandals, the Sarbanes-Oxley Act of 2002 established PCAOB to oversee the accounting practices of the nation’s public companies.  As my piece with Cato legal associate Travis Cushman details today, PCAOB enjoys the rare authority to make its own laws, collect taxes, inspect records, prosecute infractions, make judgments, and impose sanctions.

Traditionally, independent agencies that serve such executive functions must be accountable to the president.  PCAOB members, however, may only be removed “for cause” by members of the Securities and Exchange Commission, who in turn may only be removed “for cause” by the president.  I previously blogged about the case, Free Enterprise Fund v. PCAOBhere, here, and here.

As far as how the argument went, I think the forces of limited constitutional government have eked out a 5-4 victory.  Justices Ginsburg, Breyer, and Sotomayor were extremely hostile to the challengers’ argument, while the Chief Justice and Justices Scalia and Alito were supportive.  (Scalia at one point joked that he had no less power than the president – meaning not very much – to influence PCAOB.)  Justice Stevens only spoke up once but seemed to show a leaning towards the government position.  Justice Thomas, while remaining silent, can be expected to support the view of D.C. Circuit Judge Brett Kavanaugh – whose blistering yet scholarly dissent likely prompted the Court to take up the case.

And so the ruling rests, as often happens with the most interesting cases, on the shoulders of Justice Kennedy.  I remain cautiously optimistic that Kennedy will decide to uphold constitutional checks and balances and strike down what has become an unholy new branch of government.

Two curious notes from the argument: 1. Petitioners’ counsel Michael Carvin referenced Cato’s brief in discussing PCAOB’s overreach internationally – seeking to regulate even foreign accounting standards – without oversight from the State Department or the SEC, let alone the president; 2. PCAOB brought its own lawyer to argue alongside the solicitor general, begging the question: if PCAOB is subservient to the SEC and/or the president, why does it need its own counsel to represent its own views?