Tag: Tom Miller

Top Ten Reasons You Should Attend Cato’s Conference on the Halbig Cases This Thursday

Here are ten reasons everyone should attend this Thursday’s Cato Institute conference, “Pruitt, Halbig, King & Indiana: Is Obamacare Once Again Headed to the Supreme Court?

  1. The very next day – October 31 – the Supreme Court could grant certiorari in King v. Burwell. Reporters who attend will be able to write their stories in advance.
  2. Our luncheon keynote speaker, Oklahoma attorney general Scott Pruitt, filed the first Halbig-style challenge in September 2012. (Does that mean I should call them “Pruitt-style challenges”?) Last month, a federal district court sided with Pruitt against the federal government. Our morning keynote speaker, Indiana attorney general Greg Zoeller, filed the fourth such challenge, Indiana v. IRS. A ruling is expected at any time. Pruitt and Zoeller will discuss why they have asked the Supreme Court to grant cert in King.
  3. We’ve already been King-ed! The Center for American Progress and Families USA were so impressed (or worried) about our conference that they scheduled a conference call with reporters to piggyback on (or drown out) any coverage of our conference. Their teleconference is on Wednesday, October 29, at 10am ET. Dial in: 888-576-4398. Confirmation code: 1635383.
  4. Case-Western Reserve University law professor Jonathan Adler, an intellectual father of the Halbig cases, will discuss recent and future court rulings. So will law professor Jim Blumstein, intellectual father of the Supreme Court’s Medicaid ruling in NFIB v. Sebelius, who also played a seminal role in the Halbig cases.  
  5. Len Nichols, who advised the Senate on state-run vs. federal Exchanges will explain why all this is nonsense.
  6. Health-insurance industry expert Bob Laszewski will explore the possible impact of Halbig.
  7. University of Washington law professor David Ziff will discuss how Halbig critics could improve their arguments.
  8. The Constitutional Accountability Center’s Brianne Gorod, who wrote the amicus briefs filed by the members of Congress who wrote Obamacare, will explain what Congress really intended.
  9. AEI’s Tom Miller, who helped launch the Halbig cases, will explore how states might respond to a Halbig win.

And finally, the number-one reason you should attend this conference…

  1. Obamacare architect Jonathan Gruber will explain his flip-flop on Halbig. Ha! Just kidding. The real number-one reason is: these lawsuits have more of a shot than you thought, and you need to get up to speed.

Register now.

Oklahoma Challenges Obama’s Illegal Employer Tax

Yesterday, the attorney general of Oklahoma amended that state’s ObamaCare lawsuit. The amended complaint asks a federal court to clarify the Supreme Court’s ruling in NFIB v. Sebelius, but it also challenges an IRS rule that imposes ObamaCare’s employer mandate where the statute does not authorize it: on employers in the 30 to 40 states that decline to implement a health insurance “exchange.”

Here are a few excerpts from Oklahoma’s amended complaint:

The Final Rule was issued in contravention of the procedural and substantive requirements of the Administrative Procedures Act…; has no basis in any law of the United States; and directly conflicts with the unambiguous language of the very provision of the Internal Revenue Code it purports to interpret…

Under Defendants’ Interpretation, [this rule] expand[s] the circumstances under which an Applicable Large Employer must make an Assessable Payment…with the result that an employer may be required to make an Assessable Payment under circumstances not provided for in any statute and explicitly ruled out by unambiguous language in the Affordable Care Act.

Plaintiff believes…that subjecting the State of Oklahoma in its capacity as an employer to the employer mandate would cause the Affordable Care Act to exceed Congress’s legislative authority; to violate the Tenth Amendment; to impermissibly interfere with the residual sovereignty of the State of Oklahoma; and to violate Constitutional norms relating to the relationship between the states, including the State of Oklahoma, and the Federal Government.

As for the latest claim to be made in defense of the IRS rule – that an Exchange  established by the federal government under Section 1321 is an Exchange “established by the state under Section 1311” – the complaint says this:

If the Act provides or is interpreted to provide that an Exchange established by HHS under Section 1321(c) of the Act is a form of what the Act refers to as “an Exchange established by a State under Section 1311 of [the Act],” then Section 1321(c) is unconstitutional because it commandeers state governmental authority with respect to State Exchanges, permits HHS to exercise a State’s legislative and/or executive power, and otherwise causes the Exchange-related provisions of the Act…to exceed Congress’s legislative authority; to violate the Tenth Amendment; to infringe on the residual sovereignty of the States under the Constitution; and to violate Constitutional norms relating to the relationship between the states, including the State of Oklahoma, and the Federal Government.

Oklahoma does not yet list any private-sector employers as co-plaintiffs, but that may change.

Since this IRS rule also unlawfully taxes 250,000 Oklahomans under the individual mandate – a tax that in 2016 will reach $2,085 for a family of four earning $24,000 – the attorney general has an awful lot of individual Oklahomans that he could add to its plaintiff roster.

Jonathan Adler and I first wrote about President Obama’s illegal taxes on employers in the Wall Street Journal and again in the USA Today. Since parts of those opeds have been overtaken by events, I recommend reading our forthcoming Health Matrix article, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA.” Yes, all 82 pages of it.

Internet Censorship

On August 24th, the Attorneys General of 17 states sent a letter [PDF] to the founder and CEO of the Craigslist online platform, to “request” that they take down the “Adult Services” section of the site. The link to that section of the site now stands with a “CENSORED” label over the place where the link stood.

On the TechLiberationFront blog, Ryan Radia has a good write-up, including the legal protections Craigslist enjoys under federal law as a provider of an “interactive computer service.” The AGs undoubtedly know that could not directly shut down Craigslist. They wouldn’t have a legal leg to stand on if they attacked the site for the behavior of its users. But they also know that publically badgering Craigslist can win them political points and cut into the site’s image, profits, and ultimately, perhaps, viability. Several Attorneys General have doggedly asked Craigslist to patrol the behavior of its millions of users, never satisfied with the company’s efforts.

The turning point seems to have been a CNN “ambush” interview with Craigslist founder Craig Newmark in which reporter Amber Lyon sprung a terrific gotcha line, calling Craigslist “the Wal-Mart of online sex trafficking.” It’s a sound-bite with just enough truth: In a community of millions of people, there may be some such trafficking.

Newmark is an unusual character in any world, but especially in media and politics. He is meek, soft-spoken, and utterly guileless. A part of West-Coast tech’s recent interest in East-Coast government and politics, Newmark sought me ought a few months ago for a wide-ranging, ambling, and—for those reasons—charming chat.

Newmark was utterly caught off guard by the interview with the CNN reporter. The tape rolls through painfully awkward moments when Newmark remains simply silent or paces around, making him look stupid, mendacious, or both. (His comment on the interview is here, to which Lyon responds in the video linked above at “ambush.”)

The AGs smelled blood in the water. Their letter pounces on Craigslist and Craig Newmark’s inartful performance.

So the next step is the “CENSORED” block on Craigslist’s “Adult Services” section. Perhaps it’s meant to engender support for First Amendment rights, and to an extent it has. Early returns show support for Craigslist. But it may also create an expectation that large Web sites on which a tiny minority of people abuse speech rights to plan and execute crime may lose their speech protections themselves.

In case it needs pointing out, shutting down a Web site, or the portion of a Web site, on which people plan crime will only move crime to other places on the Internet. The cost to free speech in the AGs’ badgering of Craigslist vastly outweighs the infinitesimal crime-prevention benefit.

The Attorneys General sacrificing speech this way are: Richard Blumenthal (D) of Connecticut (a candidate for U.S. Senate), Dustin McDaniel (D) of Arkansas, Lawrence G. Wasden (R) of Idaho, Lisa Madigan (D) of Illinois, Tom Miller (D) of Iowa, Steve Six (D) of Kansas, Douglas F. Gansler (D) of Maryland, Mike Cox (R) of Michigan, Jim Hood (D) of Mississippi, Chris Koster (D) of Missouri, Michael A. Delaney (D) of New Hampshire, Richard Cordray (D) of Ohio, Patrick C. Lynch (D) of Rhode Island, Henry McMaster (R) of South Carolina, Robert E. Cooper, Jr. (D) of Tennessee, Greg Abbott (R) of Texas, and Kenneth T. Cuccinelli, II (R) of Virginia.