Anatomy of a Juggernaut

October 2, 2014

Moreno suggests that the Obama presidency has brought this Progressive narrative squarely before the bar of public opinion. Enduring doubts about the constitutionality of the Patient Protection and Affordable Care Act, commonly known as “Obamacare,” conjoined with concerns about unprecedented levels of government spending, have shown that older notions of constitutional limits still animate at least some citizens. They demand a full hearing for constitutional arguments long after the political classes gave up on such arguments—nowhere better captured than in former Speaker of the House Nancy Pelosi’s dismissive response to a question about Obamacare’s constitutionality: “Are you serious?” she asked, with an incredulous laugh.

Our current situation, says Moreno, is that we occupy a “twilight zone between constitutional and unlimited government.” The political philosophy of the Founders is alive, if on life support. They were neither laissez faire libertarians nor statists, but constitutionalists. Their arguments are echoed today by Americans who believe that the U.S. Constitution has a fixed meaning that binds political actors, a meaning that is informed by a moral and political philosophy anterior to the writing of that document.

via Anatomy of a Juggernaut.


As the courts turn: The continuing legal perils of Obamacare | AEIdeas

October 1, 2014

Legal challenges to various aspects of Obamacare aka the Affordable Care Act keep traveling on a rollercoaster. Today’s episode of the law’s continuing courtroom soap opera involves a ruling by a federal district court in Oklahoma, which overturned a 2012 IRS rule authorizing premium assistance tax credits in federal exchanges since rebranded as “federally facilitated marketplaces”.

The decision improves the likelihood that the Supreme Court ultimately will consider this issue on appeal; either in the spring of 2015 or during its next 2015-2016 term.Judge Ronald White ruled in State of Oklahoma v. Burwell that the IRS rule is “arbitrary, capricious, an abuse of discretion not in accordance with law, pursuant to 5 U.S.C. section 7062A, in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, pursuant to 5 U.S.C. section 7062C, or otherwise is an invalid implementation of the ACA, and is hereby vacated.”

In other words, it was not just a “bad idea,” but an illegal one, too.

via As the courts turn: The continuing legal perils of Obamacare | AEIdeas.


Pruitt v. Burwell: IRS’s Illegal ObamaCare Taxes/Spending Suffer Another Defeat In Federal Court

September 30, 2014

The U.S. District Court for the Eastern District of Oklahoma handed the Obama administration another – and a much harsher — defeat in one of four lawsuits challenging the IRS’s attempt to implement ObamaCare’s major taxing and spending provisions where the law does not authorize them. The Patient Protection and Affordable Care Act provides that its subsidies for private health insurance, its employer mandate, and to a large extent its individual mandate only take effect within a state if the state establishes a health insurance “Exchange.” Two-thirds 36 of the states declined to establish Exchanges, which should have freed more than 50 million Americans from those taxes. Instead, the Obama administration decided to implement those taxes and expenditures in those 36 states anyway. Today’s ruling was in Pruitt v. Burwell, a case brought by Oklahoma attorney general Scott Pruitt.

via Pruitt v. Burwell: IRS’s Illegal ObamaCare Taxes/Spending Suffer Another Defeat In Federal Court.


The Halbig Subpoena

September 29, 2014

But congressional investigators whom the agencies permitted to review the documents behind closed doors, and to interview the Treasury/IRS staff who wrote the challenged regulation, issued a report detailing troubling aspects of how the IRS developed the regulation.

According to investigators, prior to March 2011, the IRS’s draft regulations included the statutory requirement that subsidy recipients enroll in coverage through an Exchange “established by the State.” The employer and individual mandates are tied to the availability of the subsidies. In March 2011, however, IRS officials read a news article about how ObamaCare opponents were considering a constitutional challenge based on the fact that the PPACA offers subsidies only in states that establish Exchanges. That statutory requirement disappeared from the draft regulations at the same time IRS officials learned that opponents might challenge that feature of the law in court.

via The Halbig Subpoena.


Court tosses Obamacare mandate lawsuit brought by doctors – Jennifer Haberkorn – POLITICO.com

September 23, 2014

A federal appeals court has summarily tossed a lawsuit challenging the Obama administration’s delay of Obamacare’s employer mandate — a case that is similar to the one that House Republicans plan to file against the president.This suit was filed by the Association of American Physicians and Surgeons, which argued that the delay could hurt doctors financially. But the 7th Circuit Court of Appeals in Chicago on Friday said the plaintiffs don’t have a right to sue.

via Court tosses Obamacare mandate lawsuit brought by doctors – Jennifer Haberkorn – POLITICO.com.


Halbig: Another Expert View | Online Library of Law & Liberty

September 16, 2014

On December 24, 2009, the wretched PPACA child was spawned by the U.S. Senate in the wee morning hours, with not a vote to spare. In January 2010, Senator Brown was elected to Ted Kennedy’s former seat, depriving the Democrats of a filibuster-proof majority. Whereupon a bunch of experts, including the aforementioned gentlemen, sent a letter to the House leadership, urging them to pass the Senate bill, warts and all. Best we can get, they said, and too important to be renegotiated. Details can be fixed through reconciliation which did take place but conspicuously did not address the Halbig issue. Pass it.

The letter merits re-reading for its unctuous tone; for the “experts’” preposterous proposition that the ACA would or even sought to create “functioning insurance markets”; and for the light it sheds on this latest round of unsolicited expert advice. In this country, we usually follow the laws that Congress did enact, not some blowhard’s latter-day reconstruction. In 2010, they begged for an imperfect bargain; now, they want it back.

via Halbig: Another Expert View | Online Library of Law & Liberty.


In Hobby Lobby Ruling, a Missing Definition Stirs Debate – NYTimes.com

September 3, 2014

The debate continues over religious protections and whether corporations can be considered people, but it misses a more immediate issue from the court’s opinion: What exactly is a “closely held corporation”?Regulators are grappling with this issue as they consider which corporations get to opt out of the law’s requirement on contraceptive coverage. And more than contraception is at stake; deciding which companies can assert religious principles determines who among millions will receive other services like abortion.

via In Hobby Lobby Ruling, a Missing Definition Stirs Debate – NYTimes.com.


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