Cases involving religious details, however, do have a way of stopping big social legislation, and not only because they violate the principles of the religious denominations involved. Regardless of the Court’s decision, even pro-choice Jews, Unitarians, and Muslims may eventually change their views on the ACA precisely because of Hobby Lobby and cases like it.
New Nonpartisan Analysis Raises Questions Surrounding Legality of Administration’s Pivot to Subsidize Health Plans Outside of Federal Exchange | Energy & Commerce CommitteeApril 9, 2014
A recent memo prepared by the nonpartisan Congressional Research Service (CRS) in mid March raises questions about the legality of the administration’s February 27, 2014, decision to allow states to offer subsidies to individuals enrolling in health care coverage outside of the exchanges. House Energy and Commerce Committee staff requested CRS examine the administration’s decision regarding the advance premium tax credits. The administration’s announcement is just one of dozens of unilateral changes to the president’s signature health care law.
Now we await a decision as the Halbig plaintiffs’ appeal is considered. The three-judge panel that heard the Halbig appeal displayed a significant level of disagreement over the fate of the rule. Even as one judge pointed to the absurd results of reading seven words so literally and accused plaintiffs of trying to “gut the statute,” another judge focused on the words themselves and raised concerns about equating the federal and state marketplaces given the highly federal nature of the ACA.
In the meantime, the Fourth Circuit Court of Appeals will hear arguments in King; the Indiana and Oklahoma cases remain in the trial court stage. Whether the full D.C. Court of Appeals would agree to rehear the case en banc (when all of the judges on an appeals court agree to review a decision previously issued by a smaller group of judges) cannot be known at this point. The matter is expected to move along relatively quickly given the enormous importance of the case to the future of the ACA, with decisions later this year. If the case is appealed to the Supreme Court, it surely would be on the Court’s 2015 docket, when a second round of open enrollment would be under way.
Rep. Steve Chabot (R-Ohio) on Tuesday challenged Attorney General Eric Holder over the legality of the Obama administration’s decision to delay the employer mandate under the Affordable Care Act.
In a terse back and forth in front of the House Judiciary Committee, Chabot argued that because the implementation date for the employer mandate had been written specifically into the law, the executive branch had no authority to alter it.
“When Congress puts effective dates in laws, do we need to further state that the effective date cannot be waived or modified by the executive branch, or is the president required to follow the law, and also follow the dates set by Congress?” Chabot asked.
Holder responded that “the president has the duty, obviously, to follow the law,” but that “it would depend on the statute” and statutory interpretation of the law.
All Hobby Lobby is doing is providing the platform for employees to make those same choices themselves in partnership with plan administrators.
It’s an absurd argument, and one which isn’t that hard to dispute if you’re familiar with how 401(k) plans actually work. But it’s not surprising to see such a weak argument advanced. The secular Left is doing everything they can to drive people of faith from the public square’s marketplace. The ridiculous idea that a religiously-convicted employer can’t offer a reasonable 401(k) plan is really not that different from saying a religiously-convicted photographer can be ordered by the government to shoot a gay wedding. Religious minorities are under assault from secular bullies, and unfortunately Redden and Ungar are in their ranks.
Given the way oral arguments recently went in a case challenging subsidies issued under the health law, the administration may be especially glad that Senate Democrats last year exercised the “nuclear option” to ease appointments to the federal bench.
The move could wind up heading off a ruling by the influential U.S. Appeals Court for the District of Columbia that would be devastating to the health law—namely, that its subsidies to help low and moderate income Americans buy health insurance can only legally be granted to the residents of the 14 states and the District of Columbia that operate their own insurance exchanges.
Two members of the three-judge panel that heard the arguments in Halbig v. Sebelius seemed open to ending subsidies to the residents of the other 36 states and effectively wiping out an estimated $800 billion in federal dollars to help residents over the next decade defray the cost of insurance.
If the panel rules to limit the subsidies, the administration will be able to appeal the decision to the full 11-member court, which includes seven judges nominated by Democratic presidents.
Richard Epstein examines the points made during oral arguments to the Supreme Court advocating Hobby Lobby’s challenge to Obamacare’s contraception mandate.
Two of the three federal judges hearing a challenge to the Affordable Care Act appeared open on Tuesday to the argument that people buying health insurance in the federal marketplace should not be eligible for tax subsidies, the first indication that the White House could be facing another potentially serious legal challenge to a central part of President Obama’s health care law.
As Verrilli’s situation worsened, Justice Kennedy moved in to wonder why it was that Congress would allow a government agency — the Health and Human Services Department — “the power to decide a First Amendment issue of this consequence…. That is for Congress, not for an agency.” Kennedy would repeat that criticism later in the argument.
Although the Solicitor General had to contend mostly with questions and comments by the conservative members of the Court, he also had some difficulty when one of the Court’s moderate liberals — Justice Stephen G. Breyer — finally moved into the argument to ask why the government couldn’t just pay for the services it wanted female workers to have.
Verrilli tried to answer by saying that, if the government did try a different way to assure such services for corporate employees, the religious owners of some companies would just challenge that, too. That did not satisfy Breyer, who wanted to know “how this case fits into the broader spectrum” of how courts and government accommodate religion.
Breyer did not seem to be lining up with the corporations, but instead looking for assurances that a ruling against them in this case might have broader implications that worried him.
The low point for Verrilli, however, came late in his argument, when Justice Kennedy told him bluntly: “Under your view, for-profit corporations can be forced to pay for abortion. Your reasoning would permit that…. You say that for-profit corporations have no standing to litigate what their shareholders believed.”
Wisely, and predictably, Clement would start his rebuttal with Kennedy’s comment about corporations being forced to pay for abortions. He obviously wanted that thought to linger as the Justices left the bench.
As might be expected, yesterday’s oral arguments in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, the challenge to the Affordable Care Act’s contraception mandate, garnered extensive coverage. Lyle Denniston reported on the oral arguments for this blog, while I did the same in Plain English and Kali Borkoski compiled post-argument reactions and commentary outside the Court. Other coverage comes from Nina Totenberg of NPR, Richard Wolf of USA Today, and Jess Bravin of The Wall Street Journal. Writing for Talking Points Memo, Sahil Kapur has three posts on the oral argument: the first focuses on the role of the female Justices; the second looks at the conservative Justices’ apparent willingness to strike down the mandate; and the third examines the extent to which Justice Elena Kagan “cleverly echoed Justice Antonin Scalia’s past warning that religious-based exceptions to neutral laws could lead to ‘anarchy.’” Ruthann Robson focuses on the questions and comments by Justice Anthony Kennedy in a post at Constitutional Law Prof Blog, while Noah Feldman previewed the case and the issues before the Justices for Bloomberg View.