I guess I'll have to tout this myself. Last week, the Hill newspaper put me on its list of "the 100 people you can’t ignore this fall if you’re wondering how events in Congress and the White House will play out." Here's the write-up:
Michael Cannon Director of health policy studies at the Cato Institute
Think the Supreme Court has settled the question of ObamaCare’s legality? Not if Cannon has anything to say about it. Cannon is a tireless advocate for the argument that the IRS has illegally implemented the healthcare law’s insurance subsidies, which will help low-income households cover the cost of their premiums.
His argument is that healthcare law, as written, does not allow for the subsidies to be used in healthcare marketplaces that are set up by the federal government.
He helped the state of Oklahoma file a lawsuit against the subsidies, and a group of small businesses filed a separate suit on the same grounds, in case Cannon’s runs into procedural roadblocks.
If the lawsuits Cannon has spearheaded are successful, they could have a devastating impact on the healthcare law. A final decision in favor would stop the flow of tax subsidies to people in more than half of the states, making ObamaCare far less attractive to consumers and stripping away much of the law’s promise of affordability.
Corrections and amplifications. The argument is as much Jonathan Adler's as mine; we develop it together in this law-journal article. The argument is not that the IRS is illegally implementing otherwise lawful subsidies; it is that the IRS is trying to dispense some $700 billion in illegal subsidies that Congress expressly did not authorize, and impose illegal taxes on millions of employers and individual Americans starting in 2014; that the Obama administration is attempting to tax, borrow, and spend nearly $1 trillion without congressional authorization. Finally, I am neither a party nor counsel nor financier to either Pruitt v. Sebelius or Halbig v. Sebelius.
In the just‐released Spring 2013 issue of Harvard Health Policy Review, I have an article titled “ObamaCare: The Plot Thickens.” The article examines the IRS rule that purportedly implements ObamaCare’s tax credits, but actually violates that statute by taxing, borrowing, and spending hundreds of billions of dollars contrary to Congress’ explicit instructions. (The article is a less‐technical version of my Health Matrix article (coauthored with Jonathan Adler), “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA.”) Here’s an excerpt:
In broad daylight, the Internal Revenue Service is attempting to tax, borrow, and spend [roughly] $800 billion — contrary to both the express language of the PPACA and congressional intent. Thus in addition to other abuses that have recently come to light, the IRS is attempting to tax millions of employers and individuals without congressional authorization…
In this still‐unfolding narrative, the Obama administration’s actions are triply anti‐democratic. First, the IRS is violating a direct constraint that popularly elected legislators placed on the executive branch. Second, it is violating that duly enacted statute for the purpose of denying popularly elected state officials the vetoes Congress gave them over certain provisions of the statute. And third, it is violating the statute because administration officials either cannot fathom or will not accept that Congress meant to do what it clearly did.
Obama administration officials continually emphasize that the PPACA is “the law of the land.” That remains to be seen, in more ways than one.
As Jonathan Adler and I detail in our Health Matrix article, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA,” the Obama administration is attempting to rescue Obamacare from oblivion by literally taxing, borrowing, and spending more than $700 billion without congressional authorization. In a recent letter to the editor of the Washington Post, I explain how these illegal taxes are already hurting workers.
On July 25, chairmen of the House Ways & Means Committee, the House Committee on Oversight & Government Reform, and two Oversight subcommittees sent a letter to Treasury Secretary Jacob Lew demanding information related to the illegal tax‐credit rule.
The House Oversight Subcommittee on Health Care has announced it will hold a hearing this Wednesday, July 31, on the IRS’s illegal tax‐credit rule titled, “Oversight of IRS’s Legal Basis for Expanding ObamaCare’s Taxes and Subsidies.” Adler will testify alongside Oklahoma Attorney General Scott Pruitt and Missouri physician and small business owners Charles Willey, each of whom has filed suit to block the IRS’s illegal rule.
On Sunday, The Washington Post published my letter to the editor:
The excellent July 24 front‐page article “Health law’s unintended impact on part‐timers” showed how President Obama’s health‐care law is cutting part‐time workers’ pay by forcing employers to limit these employees’ hours in order to avoid penalties. Yet the reality is even worse.
Obamacare does not authorize those penalties in states that leave the task of establishing a health insurance exchange to the federal government. That means most of the employers the article cited — the commonwealth of Virginia, various Texas employers, the Ohio‐based White Castle burger chain, the city of Dearborn, Mich., and Utah’s Granite School District — don’t need to cut part‐timers’ hours, because the federal government has no authority to penalize them.
Yet the Obama administration has decreed it will do so anyway, contrary to the clear language of federal law, proving that taxation without representation is not confined to the District.
Two lawsuits have been filed to stop this illegal action — one by the state of Oklahoma, another by employers and individual taxpayers in Kansas, Missouri, Tennessee, Texas, Virginia and West Virginia.
Even so, thousands of part‐time workers are already losing wages because of a tax Congress did not authorize. As underemployed music professor Kevin Pace told The Post, “This isn’t right on any level.”
Michael F. Cannon, Washington
The writer is director of health policy studies at the Cato Institute.
divOn Wednesday, July 31, a House oversight subcommittee will be holding a hearing on the IRS’s illegal taxes, borrowing, and spending.
Obamacare had a rough day in court yesterday. In Liberty University v. Lew, the Court of Appeals for the Fourth Circuit ruled against Liberty University's challenge to various aspects of the law. One might think, as SCOTUSblog reported, this was a victory for the Obama administration.
In the process, however, the Fourth Circuit undercut three arguments the administration hopes will derail two lawsuits that pose an even greater threat to Obamacare's survival, Pruitt v. Sebelius and Halbig v. Sebelius.
The plaintiffs in both Pruitt and Halbig claim, correctly, that Obamacare forbids the administration to issue the law's "premium assistance tax credits" in the 34 states that have refused to establish a health insurance "exchange." The Pruitt and Halbig plaintiffs further claim that the administration's plans to issue those tax credits in those 34 states anyway, contrary to the statute, injures them in a number of ways. One of those injuries is that the illegal tax credits would subject the employer-plaintiffs to penalties under Obamacare's employer mandate, from which they should be exempt. (The event that triggers penalties against an employer is when one of its workers receives a tax credit. If there are no tax credits, there can be no penalties. Therefore, under the statute, when those 34 states opted not to establish exchanges, they effectively exempted their employers from those penalties.)
The Obama administration has moved to dismiss Pruitt and Halbig on a number of grounds. First, it argues that those penalties are a tax, and the Anti-Injunction Act (AIA) prevents taxpayers from challenging the imposition of a tax before it is assessed. Second, the administration argues that the injuries claimed by the employer-plaintiffs are too speculative to establish standing. Third, shortly after announcing it would effectively repeal the employer penalties until 2015, the administration wrote the Liberty, Pruitt, and Halbig courts to argue that the delay should (at the very least) delay the courts' consideration of those cases. In Liberty, the Fourth Circuit rejected all of those claims.
In discussing whether the "assessible payment" that the employer mandate imposes on non-compliant employers falls under the AIA, the court writes:
Here he is discussing the case on Cavuto last month:
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.